Contents GazetteLawSociety

Regulars Cover Story Secure in the knowledge News 2 8 Since the last Data Protection Act was passed in 1988, technology has become all-pervasive and our personal information is stored Viewpoint 5 somewhere on someone’s database. Denis Kelleher outlines how the Data Protection (Amendment) Bill, 2002 will affect our right to Letters 7 know what others know about us Book review 31

Tech trends 32 One step forward, 12 two steps back? Stockwatch 35 The European convention on human rights Briefing 36 will eventually become law in Ireland. But if it’s enacted in the way the government Council report 36 proposes, this significant addition to our Committee law may have little practical effect, suggests reports 37 John Moher Legislation update 38 A game of high stakes SBA annual 18 The director of public prosecutions recently issued new accounts 41 guidelines that aim to make prosecution decisions a little Personal injury more transparent. Dr Eamonn Hall discusses the issues judgment 42 involved Firstlaw update 44 Eurlegal 50 Defamation: which court to choose? In the light of recent high-profile libel actions, Pamela People and 22 Cassidy argues that careful consideration should places 54 be given to whether a plaintiff’s Obituaries 57 defamation claim justifies going to the High Court at all Apprentices’ page 59 Professional Bridging the gap information 61 26 How can businesses manage the gap between COVER: [email protected] their book debts and their cashflow without extending their compa- ny’s overdraft or getting deeper into hock? Barry O’Halloran explores some options

Editor: Conal O’Boyle MA. Assistant editor: Garrett O’Boyle. Designer: Nuala Redmond. Editorial secretaries: Catherine Kearney, Nicola Crampton. 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), Eamonn Hall, Mary Keane, Ken Murphy, Michael V O’Mahony, Michael Peart, Keith Walsh

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

Published at Blackhall Place, Dublin 7, tel: 01 672 4800, fax: 01 672 4877. Volume 96, number 3 E-mail: [email protected] Law Society website: www.lawsociety.ie Subscriptions: €57.15

1 Law Society Gazette April 2002 News

IBA DUBLIN CONFERENCE The International Bar Top awards for Dublin firms Association will hold a conference on technology and n the season of Oscar hard work and expertise of on the takeover of Eircom plc. the law in Dublin at the end of Iceremonies and BRIT awards, everyone in the firm’. Goodbodys won the award next month. The conference two of Dublin biggest Meanwhile, A&L Goodbody jointly with the UK firm will ‘consider the impact of corporate law firms, Matheson has won Legal Business’s Freshfields Bruckhaus technological advancement in Ormsby Prentice and A&L Private equity deal of the year Deringer. Again, this is the law practice management and Goodbody, have earned award, for its work in advising first time that an Irish law firm its role in creating a better plaudits of their own. Valentia Telecommunications has won such an award. managed legal world’. It takes MOP has won the place on 29 May and further prestigious European law firm of information can be obtained the year 2001, run by UK New developments at Land Registry from June Elliott on +44 (0)20 publisher, Legal Business. 7629 1206. MOP is the only Irish law firm to have won this major award, SOLICITORS IN EMPLOYMENT which is open to law firms BOOKLET across Europe and which was The second edition of the Law won last year by a leading Society information booklet for German firm. The award is in solicitors in employment recognition of the firm’s outside private practice has growth over the last decade, been published. A copy is underlined by the volume and being sent to all solicitors in value of business transacted this category, who now number and the growth in personnel about 600. According to Kevin numbers. By 2001, MOP had Finucane, chairman of the 40 partners and a total of 233 society’s Corporate and Public fee-earners, compared with Sector Committee: ‘If you are 14 partners and 56 fee-earners Catherine Treacy, chief executive of the Land Registry, formally thinking of moving from private in 1991. presents the registry’s Statement of strategy and business plan practice to a corporate or Commenting on the award, 2002-05 to justice minister John O’Donoghue. Details of the plan public services position, this MOP’s managing partner are available on the registry’s website at www.irlgov.ie/landreg. booklet is essential reading’. Donal Roche said: ‘This award Meanwhile, the government has announced that the major comput- erisation contract for the Land Registry has been awarded to EDS Copies are available free from is testament to the commercial Ireland Ltd. The multi-million euro project will eventually allow Suzanne Chesney at the Law success and innovative solicitors and other users to access the registry’s records over Society on tel: 01 868 1220 or approach of the firm in recent the Internet. at [email protected]. years, and is a tribute to the ONE TO WATCH: NEW LEGISLATION Valuation Act, 2001 moorings, mines, quarries, pits libraries, parks or national figure up to date. The level of The Valuation Act, 2001 is and wells, fishery rights, profits monuments, property occupied rate struck will, of course, have expected to be commenced in a prendre, tolls, easements and by a list of organisations to be adjusted to reflect the early May 2002. It replaces rights over lands, petroleum including the National Museum, new values. This revaluation will legislation going back to 1838 and drilling rights, canals and National Library and National be undertaken by local authority is designed to form a basis for a navigation rights, electricity Concert Hall, property used for area on the commissioner of fresh valuation of all rateable generating stations and ancillary caring for elderly, handicapped valuation making a valuation property in the state, and regular installations or disabled people, community order, appointing an officer to reviews and updates in the future. • Exceptions (s15(2)) are set out halls, property occupied by undertake the job (s19) to be The intention is to remove the in schedule 4. They include charitable organisations or for known as a valuation manager. many anomalies in existing agricultural land or land used for the advancement of science, The valuation order will valuations, and improve the horticulture, forestry, sport, literature or the fine arts, nominate a date by reference to process. farm buildings, domestic provided that none of these has which all valuations are to be The following are the main premises, buoys, beacons or an element of private profit made, and also a date for provisions of the act: lighthouses, turf bog used for •Properties occupied by the state publication of the list of rateable •Properties which are rateable fuel or turf mould, property are not rateable (s15 (3)). properties and their values are referred to as ‘relevant used as constituency offices by Instead, local authorities get a under s23, to be no more than property’ (s15(1)), to be TDs or MEPs. Also included are rate support payment through three years after the date of the construed with reference to property used exclusively for the local government fund valuation order. On publication schedule 3. This includes religious worship, hospitals, • The existing concept of net of a new valuation list, it will buildings, lands used or burial grounds or crematoriums, annual value is retained replace the existing one (s23), developed for any purpose, educational establishments (s48(1)), but it is proposed to and every occupier will receive a railways and tramways, used exclusively for education, undertake a countrywide certificate of the new rateable harbours, piers, docks and fixed art galleries, museums, revaluation which will bring this value (s24)

2 Law Society Gazette April 2002 News

COMPENSATION FUND PAYOUTS No ban on joint advocacy The following claim amounts were admitted by the Compensation Fund Committee with solicitors, says the Bar and approved for payment by the Law Society Council at its he Bar Council has publicly lead advocate. Pressed by meetings in February and Tconfirmed for the first time Shatter to say whether the Bar March 2002: Michael P that there is no rule or practice Council had informed its McMahon, 5/6 Upper preventing solicitors and members of this, Brady replied: O’Connell Street, Dublin 1 – barristers acting together as ‘As far as we’re concerned, I’ve £8,625.33 and £7,534.33. advocates in court proceedings. stated the position publicly. I The admission came before a don’t intend to write letters to NEW LAW CENTRE AND Dáil Select Committee hearing every solicitor around the REFUGEE SERVICE OFFICE on the Court and Courts Officers country. I can’t make it any A new Legal Aid Board office Bill, 2001 last month. clearer than that’. has been opened at 48/49 Both the Bar Council and The Law Society’s North Brunswick Street in the Law Society had been representatives, Director Alan Shatter: proposed Dublin 7. The premises will amendment invited to attend before the General Ken Murphy and house the Refugee Legal committee to discuss an President Elma Lynch, told the ‘If, in circumstances where a Services and the Dublin law amendment to the bill proposed committee that, while the solicitor and barrister are centre that has relocated from by deputy Alan Shatter. The society did not seek the acting jointly as advocates, and Upper Mount Street. amendment reads: ‘For the amendment, it supported it. it is the solicitor who is more removal of doubt, a solicitor or They said that the society suited in knowledge and ability PRIVATE EQUITY CONFERENCE solicitors may together with a suspected that many barristers to act as the lead advocate, InterTradeIreland, the barrister or barristers appear and and solicitors believed that then there should be no development body set up to act together as advocates in any there was indeed a rule objection to this occurring in facilitate cross-border trade, is proceedings’. preventing barristers from the best interest of the client’, running a conference entitled In its submission to the acting jointly as advocates with said Lynch. ‘If the Law Society Private equity: an island and committee, Bar Council solicitors. Lynch added that were to agree today to any- international perspective. The chairman Rory Brady said that while the Bar Council seemed thing other than this, we would conference will be held in there were no rules prohibiting to be worried about how in effect be agreeing with the Belfast on 24 April. For further joint advocacy by solicitors and precedence would apply proposition that a solicitor information, visit the barristers and denied that there between solicitor and barrister acting as advocate could never organisation’s website at would be any ‘disapproval’ of advocates, this was ‘not a be other than the equivalent of www.intertradeireland.com or junior counsel if they acted in matter of concern’ to the Law a junior counsel. This is most call Nicola McGuinness on 028 cases where a solicitor was the Society. certainly not the case’. 3083 4154.

• While the revaluation exercise rating authority or on the authority areas revaluation of all rateable will take place by local authority initiative of the commissioner • The appeals system continues properties, which will be updated area, it can be expected that for valuation, and a revision as before (see part 7). Initially, at least every ten years. The many areas will be revalued at officer must review the valuation appeals lie to the commissioner artificiality of very low rateable the same time. S25 provides within six months of valuations, and from there to valuations will be a thing of the that further revaluations must • In order to prevent rate inflation, the Valuation Tribunal. Schedule past, as will be the need to use take place from time to time, s56 provides that the total rates 2 sets out the provisions in factors to reduce the current between five and ten years from collected in any local authority relation to the tribunal, the 13 rateable value of new properties the publication of the last area are to be capped for the members of which are appointed to bring them in line with past valuation list first year after the revaluation at by the minister for finance. The valuations (currently 0.63 % for • Occupiers are to be given notice the existing level increased by tribunal sits with three members cities and 0.5% elsewhere). The of the proposed valuation of no more than the consumer in private, and all decisions complex law in relation to their properties three months price index. This will allow some must be reasoned and in writing. charities and other public prior to publication of the rates to go up, to reflect the Appeals on points of law lie to organisations is much simplified, valuation list, and may make new valuations, and some to go the High and Supreme Courts widening the entitlement to relief representations within 28 days down, but the total must remain (s39). The appellant must considerably. The new, simplified to the valuation manager. This much the same. After that first indicate the grounds of appeal system will be easier to work for consultation period is a year, there is no guarantee of and the value he considers to be the Valuation Office, the local welcome innovation and may rate levels appropriate, based on other authorities, valuers and rate- reduce appeals (s26) • S53 provides for the ‘global’ comparable properties in the payers. G • Part 6 provides for revisions of (countrywide) valuation of public valuation list (s31). valuations at the request of utilities and for the Alma Clissmann is the Law occupiers or persons with apportionment of their values This act is to be welcomed Society’s parliamentary and law interest in the property, the between the various local because it will involve a complete reform executive.

3 Law Society Gazette April 2002 News

EU IMMIGRATION LAW LECTURE Crackdown on smoking The Irish Society for European Law is holding a public lecture entitled EU immigration law: in the Four Courts recent developments. The mokers who light up in the appear almost certain that it meeting will take place on SFour Courts and its was not members of the 25 April at 6.15pm in the associated buildings could face general public who were European Parliament Office on prosecution, the Courts smoking in the area’, he writes. Dublin’s Molesworth Street. Service, has warned. In a letter Describing smoking in public The meeting is free and open to Law Society President Elma buildings as ‘flagrantly in to the public. For further Lynch, the head of the Courts breach of the law’, Fitzpatrick information, contact Jeanne Services, PJ Fitzpatrick, says adds that the Courts Service Dermody on tel: 01 829 0010. that the Four Courts had to be has arranged with the relevant evacuated on 28 February authorities to carry out regular COPYRIGHT ASSOCIATION because a fire alarm was inspections and ‘we will be SEMINAR activated, probably as a result asking the relevant authorities The Copyright Association is of smokers lighting up in the to have the offenders running an all-day seminar on particular area. ‘It would prosecuted’. The Internet, e-commerce and IPRs: recent developments, on 30 April at the Industrial Tackling conflict management Conference Centre, Belfield, Dublin 4. Among other things, he International Centre for commercial dispute resolution. experts ‘to communicate and the seminar will cover: e- TDispute Resolution (ICDR) Among the speakers at the share ideas in order to facilitate commerce issues and models; is holding a one-day ‘conflict forum will EU Commissioner continuing global growth and infringement in the digital management forum’ in Dublin David Byrne and William Slate, development in the commercial decade; on-line arbitration; and on 29 May. The event will take president of the American dispute resolution arena’. US e-developments. For further place in the Davenport Hotel Arbitration Association. The For more information, information, contact Paul and will discuss trends, topics ICDR Dublin forum aims to contact Mandy Sawier on Lambert on tel: 01 644 2074. and issues in international bring together international +353 1 418 2291. leaders… in the quest for excellence…

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4 Law Society Gazette April 2002 Viewpoint Time to decommission the Special Criminal Court? In a democratic state, an extraordinary court should be reserved for extraordinary times. Does the year 2002 qualify? asks Pat Igoe t least, let nobody say that provided that the government Awe have a pathetic, could declare that offences sectarian, mono-ethnic and which had been brought under mono-cultural courts system. the authority of the court would The continuing quiet no longer be such scheduled existence of the non-jury offences. Special Criminal Court shows So, ‘whenever the how pluralistic, diverse and government is satisfied that the imaginative we can be. effective administration of And yet, there must come a justice and the preservation of point when we agree that the public peace and order’ in guns have indeed fallen silent, relation to certain offences can The ‘full panoply of security measures’ on the way to the even if their users have not Special Criminal Court be pursued through the ordinary gone away. As the mortar of the courts, it could order their Good Friday agreement continues reach of judicial control. The subversion on this side of the return to the ordinary courts. In to solidify, and with the gunmen government had a duty to keep border was a very credible fear. this way, the act enabled receding into the shadows, have the existence of the court under The court has been with us successive governments to both we reached the time to ‘stand- review. since then. Since 1990, there increase and reduce the ambit of down’ the Special Criminal But the extent and depth of have been just over 220 cases, an the Special Criminal Court. Court and to give over its the government’s reported average of about 20 a year. Many The remit of the three-judge ancient Green Street building annual review of the court is of the cases, especially in the court spans the criminal code, to ease the pressures in the unclear in the absence of a full 1990s, had the full panoply of ranging from the Malicious other courts? and well-briefed annual debate security measures, with Damage Act of 1861 to the Almost seven years ago, the in the Dáil on the 1939 act and motorcycle outriders resembling Explosive Substances Act of 1883 then-government announced its ethos in modern times. Most motorcades up Dame Street to and the Conspiracy and Protection that it was reviewing the need jurists would argue that Dublin Castle during EU of Property Act of 1875. The list for the Special Criminal Court. emergency legislation with summits. can be increased or reduced at Developments since then in the provisions for special courts will by the government, being North, including the Omagh should be subject to regular Anti-democratic nature directed in reality by just two atrocity, brought the short-lived promulgation or annulment to The anti-democratic nature of people – the taoiseach and the initiative to a standstill. The accord with passing time and the court must trouble jurists, minister for justice. Their view court remains, despite calls for security imperatives. Section 35 politicians and the public alike. must consider the adequacy of its abolition by the Irish provides for this. Has it been And yet, it is unclear whether the the ordinary courts to secure Council for Civil Liberties and used adequately? lack of insistent and spontaneous justice and preserve public order. challenges to its constitution- Part V of the 1939 act was questioning of its continuing The Special Criminal Court ality before the Supreme Court. first brought into effect in the existence springs from apathy of has a unique place in Irish In a significant judgment six year of its enactment. It then our times, inertia or simply that jurisprudence and in Irish years ago, presided over by the ceased to be in force in 1962, lawyers and the public continue history – ranging from being late Chief Justice Liam with the number of cases before to give the government the lauded for its role in preserving Hamilton, the Supreme Court the court being very few benefit of the doubt. the state and the population reminded politicians that between 1946 and 1962. With The drafters of the 1939 act from subversive attack to its continuation of the court was a the political temperature clearly appreciated its draconian nature. being an excessively large blot political decision and that the rising in Northern Ireland in So much so that they provided on the Irish legal landscape. government had a duty to annul the early 1970s, the legislation in the act both that the Dáil In a democratic state, an the act establishing the court if was re-proclaimed on 26 May could pass a resolution at any extraordinary court should be it was satisfied that it was no 1972 and the Special Criminal time annulling the government’s preserved for extraordinary longer necessary. The judges Court (or more precisely a proclamation enabling the court times. Does the year 2002 also warned that the Special Criminal Court) was to be established and also that qualify? G continuance in force of part V established four days later. This the government itself could of the Offences against the State was a time both when the proclaim that part V of the act Pat Igoe is principal of the Dublin Act, 1939 could not be regarded resources of the state were more be no longer in force. The law firm Patrick Igoe and as being forever beyond the limited than now and when legislation also significantly Company.

5 Law Society Gazette April 2002 Viewpoint Court confirms core values of legal profession Ken Murphy argues that the recent NOVA decision by the European Court of Justice on multi- disciplinary partnerships between accountancy firms and law firms identifies and vindicates the legal profession’s core values

n a recent landmark solicitors and accountants be seen as a victory for lawyers Idecision, the European would be contrary to the public over accountants. It is a victory Court of Justice held that a interest. for the fundamental freedoms ban on multi-disciplinary But how is it that something of all citizens. partnerships (MDPs) between which the court acknowledges A breach of the competition lawyers and accountants was is anti-competitive is law principles of the Treaty of legal, even though it was anti- nevertheless approved by it? It Rome, on which principles Irish competitive (see Gazette, last is because the court saw the competition law is also based, is issue, page 3). The Dutch overall objective of the Dutch not illegal if it can be justified. bar’s ban was justified because ban on MDPs as being ‘to In this case, the ultimate of the different requirements ensure that the ultimate authority on such matters, the of professional conduct consumers of legal services and European Court of Justice, has between the two professions. the sound administration of found the necessary The judgment is a major Ken Murphy: ‘MDPs involving justice are provided with the justification to exist. The setback for the accountancy solicitors and accountants would necessary guarantees in relation objective of the statutory firms involved in the case, be contrary to the public interest’ to integrity and experience’. In prohibition on fee sharing by Arthur Andersen (the auditors particular, the court approved solicitors in Ireland – which of the failed US energy trading one which has been brought of the requirement that lawyers effectively prohibits MDPs in giant Enron) and rivals into sharp focus by the Enron ‘should be in a situation of this jurisdiction – is compatible PricewaterhouseCoopers. debacle – is the potential for independence vis-à-vis the with the underlying principles Other members of the ‘big five’ conflict of interest. As the court public authorities, other of EU and Irish competition accountancy firms have also delicately put it, ‘the operators and third parties, by law. sought to create tie-ups with concurrent pursuit of the whom they must never be Even beyond the borders of law firms in countries around activities of statutory auditor influenced’. the EU, in other countries such the world. They may now have and of adviser, in particular This concept of the as the United States where to look again at how their legal adviser, also raises independence of the legal lawyer involvement in MDPs is arrangements with law firms questions within the profession is the key. In also prohibited in the public operate in various EU member interest, encouragement will be states. taken from this hugely The court endorsed The ‘The fundamental rights of every citizen significant judgment. Netherlands bar’s rules setting Irish solicitors recognise the out the essential duties for the depend on the existence of an independent benefits of competition. Intense proper practice of the legal legal profession’ internal and external profession, namely ‘the duty to competition is a daily reality act for clients in complete for practising solicitors. What independence and in their sole this case illustrated, however, is interest, the duty to avoid all accountancy profession itself’. essence, if there were no that there can be more risk of conflict of interest and The potential for conflict of independent legal profession, fundamental principles at stake the duty to observe strict interest outweighed any there could be no independent which can justify a rule that professional secrecy’. It also ostensible economic advantage judiciary. If there were no infringes competition. This found that ‘by contrast, the in the availability of a ‘one-stop independent judiciary, there judgment has confirmed the profession of accountant is not shop’. could be no rule of law. If there special value to all citizens of subject, in general, and more This judgment from the were no rule of law, there could the legal profession’s particularly in The Luxembourg-based court has be no justice, democracy or independence, confidentiality Netherlands, to comparable been welcomed by members of freedom. The fundamental and avoidance of conflicts of requirements of professional the legal profession throughout rights of every citizen depend interest. G conduct’. the EU and beyond. The Law on the existence of an Another issue identified by Society of Ireland views it as a independent legal profession. Ken Murphy is the director the court – not a new issue for vindication of its long-held Accordingly, this decision by general of the Law Society of the accountancy profession but view that MDPs involving the Court of Justice should not Ireland.

6 Law Society Gazette April 2002 Letters Letters

Lack of judges: could arbitration be the answer? From: Anthony Hussey, Hussey available, whereas in the case of was no judge available at the either. The other case had been Fraser, Solicitors, Dublin the former he is very sorry. 11am call-over. Fortunately, a listed for hearing twice, but was read with interest the director Of my two most recent cases judge became available at not reached on either occasion, Igeneral’s article in the March in the High Court, one was approximately 3.30pm. Had the although it was top of the list issue of the Gazette (page 9), specially fixed and the other case at hearing lasted until on the second occasion. It was bemoaning the lack of judges was not. The specially fixed 4pm, we would have been put heard on the third occasion. available to hear cases in the case involved a number of back into the list to fix dates I would suggest that High Court. It seems to me witnesses travelling to court with no guarantee of being solicitors should give careful that this has reached a from outside Europe. There heard on the next occasion consideration, particularly in sufficient crisis point that cases involving witnesses solicitors embarking on travelling from abroad, to litigation should at least DUMB AND DUMBER referring disputes to consider the possibility of arbitration. Even if the case has resolving any dispute through commenced in court and has arbitration. been fully pleaded, there is no Apart from personal injury reason why it should not be actions in the High Court, it referred at that stage to would appear that the chances arbitration. The parties can of a case listed for hearing agree that all the pleadings in being actually heard on the day the High Court action will is no better than 50/50 because constitute the pleadings in the of the lack of available judges. arbitration and go straight to It is not unusual for the same hearing. Even if one is not case to be listed twice without otherwise convinced of the being heard, and the only virtues of arbitration over court difference between having a litigation, it is suggested that Jodee Berry, of Panama City, Florida, sits with her toy Yoda at her lawyer’s case specially fixed for hearing office. Berry, a former Hooters waitress, has sued the restaurant where she clients should at least be made and otherwise fixed for hearing worked saying she was promised a new Toyota for winning a beer sales contest in aware of the problems which is that in the case of the latter April. Berry, 26, believed that she had won a new car, but she was blindfolded, led may be encountered and of the the presiding judge is sorry that to the parking lot and presented a toy Yoda, the little green guy from Star Wars. availability of this alternative he does not have a judge route. G LEAVE IT TO THE EXPERTS!

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7 Law Society Gazette April 2002 Cover story

The world has seen many changes since the last Data Protection Act was passed in 1988. Technology has become all-pervasive and personal information about every one of us is stored somewhere on someone’s database. Denis Kelleher outlines how the long-anticipated Data Protection (Amendment) Bill, 2002 will affect our right to know what others know about us

SECURESECURE IN THE

he Data Protection (Amendment) Bill, 2002 was introduced in the Oireachtas in February. The new bill, which will implement the Data protection directive KNKN T that should have been in force by the end of October 1998, will change Irish law in a number of different ways. that its provisions extend to One of the key changes in the new bill is that it ‘sound and image data’. will now apply to ‘manual data’. This is defined as However, the directive ‘information that is recorded as part of a relevant will only apply to filing system’ where a relevant filing system is such processing ‘if defined as ‘any set of information relating to it is automated or individuals to the extent that, although the if the data • Data Protection information is not processed by means of processed are (Amendment) equipment operation automatically in response to contained or are Bill extends instructions given for that purpose, the set is intended to be scope of structured either by reference to individuals or by contained in a filing protection to reference to criteria relating to individuals’. What system structured paper-based this means is that information which is stored in a according to specific files paper-based filing system will be subject to data criteria relating to • Gives new protection law. So it will no longer be possible to individuals, so as to permit rights to circumvent the Data Protection Act, 1988 by holding easy access to the personal individuals information in a paper system. Concerns about such data in question’. The while imposing circumvention are one reason why this provision advent of cheap digital new duties on was introduced. recording facilities may data controllers The bill should also mean that data protection mean that this provision will • Creates a will apply to audio-visual data, such as that derived have considerable application general duty to from CCTV systems. This is not explicitly stated in to technologies such as the register, with the bill, but it does provide that ‘a word or CCTV cameras that are increasingly limited expression that is used in this act and also in the used in Irish town centres. exceptions directive has ... the same meaning in this act as it If visual images are in a digital format, they can

MAIN POINTS has in the directive’, and the directive makes it clear be processed. There are a number of software

8 Law Society Gazette April 2002 Cover story

NOWLEDGENOWLEDGE

packages that can search through a stream of digital images and identify known individuals. Packages such as this are being touted as a solution to American security worries in the aftermath of 11 September and are already being used successfully. One example is the Trump Marina casino in Atlantic City, which uses facial recognition software to continually scan every face in the casino and match them with a database of over 9,000 individuals. Within days of its installation, the cameras identified a group of six baccarat cheaters who had previously been arrested in California and they have identified hundreds of ‘undesirables’ since then (Fortune, 29 October 2001). The use of systems such as this in Ireland would raise

9 Law Society Gazette April 2002 Cover story

‘The giving of obvious concerns about the right to privacy and perhaps other rights, such as those provided by the references is Equal Status Act, 2000. becoming New rights for individuals controversial and The bill will give individuals (who in the jargon of some employers the bill are termed ‘data subjects’) a right to object to processing if it would cause them are beginning to substantial and unwarranted damage or distress. refuse to give There are exceptions to this, such as where the ‘subject’ has given his consent or where processing is them at all, carried out by a political party in the course of while others electoral activities. Where a decision will significantly affect a subject, such as a decision about simply confirm their performance at work, creditworthiness, the bare details reliability or conduct, then it may not be based solely on data processing by automatic means. Again that a named there are exceptions, most notably where the subject individual worked consents. Consent is an important issue in data protection for them law: the directive defines consent as ‘any freely given between certain specific and informed indication of his wishes by which the data subject signifies his agreement to dates’ personal data relating to him being processed’. This means that a subject will have to indicate that he is happy to see his data processed; it is doubtful whether asking a subject to indicate if he objects to having his data processed would be sufficient. The bill also provides that subjects must be given certain information about how their data is to be processed, if that processing is to be done fairly. The right of access is also revised and extended, and the bill takes steps to ensure that this right is not abused. One form of abuse is to force employees to access medical or other records and hand them over to the employer. The bill provides that employees or prospective employees cannot be required to request access to their personal data or to supply their employer with the results of an access request. Breach of this provision will be an offence. The use of the right of access may cause other problems for employers, too. The bill provides that where personal data consists of an expression of opinion about the subject by another person, the also have to pay attention to the criteria for making data may be disclosed to the subject without the data processing legitimate. These criteria provide consent of that other person. References and other that data may only be processed where: ‘expressions of opinion’ are open to review in a • The subject has given his explicit consent variety of ways. The most obvious of these is an • The processing is necessary for the performance action for defamation, but such an expression could of a contract to which the subject is party also be grounds for complaint under the Employment • It is necessary in order to take steps at the request Equality Act, 1998 or a prosecution under the of the subject prior to entering into a contract Prohibition of Incitement to Hatred Act, 1989. • It is necessary to prevent injury, loss or damage The giving of references is becoming being caused to the data subject, where seeking controversial and some employers are beginning to the consent of the subject would damage those refuse to give them at all, while others simply interests confirm the bare details that a named individual • It is necessary for the administration of justice, the worked for them between certain dates. performance of a statutory or ministerial function, or a public nature function in the public interest, or New duties for businesses • It is necessary in the legitimate interests of the The principles of data protection are repeated (and controller, except where the processing is amended) in the Data Protection Bill, 2002. A major unwarranted by reason of the prejudice to the change is that, in addition to these, controllers will rights and freedoms of the subject.

10 Law Society Gazette April 2002 Cover story

The criteria for legitimate processing have to be The powers of the commissioner will also read in addition to and in conjunction with the change in relation to cross-border information principles of data protection. exchange. The bill provides that data cannot be Some provisions of the bill will become law on 1 transferred to a country outside the European April 2002, pursuant to the European Union (Data Economic Area, unless that country provides an Protection) Regulations 2001 (SI 626/2001). One adequate level of data protection. The bill sets out relates to the securing of personal data: controllers a list of criteria which may be used in assessing the are under a duty to keep data secure but the circumstances in which the data is being regulations provide that, in determining the security transferred, but in time this function will be measures which they will use, they can have regard transferred to the EU. If a community finding has to the state of technological development, the harm been made that a country such as Hungary or which might result from the unauthorised or Switzerland has adequate levels of data protection, unlawful use of the data and the nature of the data then that finding will be binding. concerned. A controller must brief his staff about The Data Protection Bill, 2002 also sets out a host these security measures and must ensure that sub- of situations where this prohibition will not apply, contractors are placed under a contractual duty to including situations where the transfer is required maintain the security of the data. by an Irish statute or international treaty, the One significant change in the bill is that it subject has given his or her consent, the transfer is increases the number of individuals and companies necessary for the performance of a contract between that will have to register to include all data the subject and controller or the transfer is controllers and data processors, except those who necessary for the purposes of getting legal advice. are specifically exempted under the legislation. Although the commissioner still has the right to There are exceptions to this, such as keepers of prohibit a transfer, these exceptions may effectively public registers, processors of manual data, or non- limit the commissioner’s power to do so. The profit clubs and societies who maintain membership changes in relation to cross-border data flows are to lists. take effect from 1 April 2002. The form in which registration must be made is also changed. If a controller keeps data for two or A brave new world? more unrelated purposes, he must apply for Many political, social, economic and technological registration separately in respect of each of them. changes have taken place since 1988. New Other significant changes are made to the manner technologies such as the Internet have all had a in which a controller can process sensitive personal significant impact on data protection laws – the data. The bill also contains a limited exemption for harvesting of European personal data by US processing that is done for journalistic, artistic or websites was one spur to the EU developing its ‘safe literary purposes. harbour principles’ with the USA, which are supposed to regulate the use of European data by Data protection commissioner US-based firms. The position of the data protection commissioner One of the most significant changes may be the will also change under the bill. Some of these boom in technology spending over the last few changes are subtle: his report will be absolutely years. This means that information technology is privileged for the purposes of the law of now pervasive, from government departments to defamation and he and his staff will be placed commercial organisations. As a result, the under a duty of confidentiality, breach of which requirements of data protection have to interact will be a criminal offence. Other changes are more with many other items of legislation. For example, dramatic. section 2(1)(c)(iv) provides that data ‘shall not be The commissioner may be required to engage in kept for longer than is necessary’. The precise ‘prior checking’, that is, controllers or processors assessment of how long it is necessary to keep data may apply to the commissioner for an assessment of may prove difficult. The Directive on the processing of whether or not their processing complies with the personal data in the telecommunications sector (directive Data Protection Act, 1988. The commissioner must 97/66/EC) states that details of subscriber billing then reply within 90 days, stating whether or not may only be retained up until the end of the period the processing is likely to comply, although this within which the bill may be challenged. It has period can be extended. The right to prior checking become clear that mobile phone networks were is not automatic: the commissioner has to undertake storing billing data for up to six years, stating that this only where the processing is of a kind likely to they were required to do so under other legislation, cause substantial damage or distress to data subjects. such as the Statute of Limitations. But if the processing is of this kind, it cannot be It may be that further regulations will be required carried on unless the processing operation is to reconcile conflicting provisions such as these. G registered or the controller or processor has applied to the commissioner for prior checking in respect of Denis Kelleher is a barrister and the co-author, with it. Breach of this provision will be a criminal Karen Murray BL, of Information technology law in offence. Ireland, published by Butterworths.

11 Law Society Gazette April 2002 Human rights

The European convention on human rights will eventually become law in Ireland. But if it’s enacted in the way the government proposes, this significant addition to our law will have little practical effect, argues John Moher

he European convention for the protection of exhausted before a complaint can be brought by a human rights and fundamental freedoms is citizen to the court. The purpose of the European an international treaty devised by the Convention on Human Rights Bill, 2001, when enacted, Council of Europe that gives effect to is to transpose the convention into Irish law, thereby T some of the rights expressed in the 1948 enabling breaches of its provisions to be litigated in United Nations Universal declaration of human rights. Irish courts. As such, the origins of the convention lie in the international response to the crimes against Background to the bill humanity perpetrated before and during the Second Ireland is the only member state of the Council of World War. Europe which has yet to incorporate the convention One step TWO STEPS

The convention protects fundamental civil and into its domestic law, a state of affairs which the bill political rights such as the right to life (article 2), the seeks to rectify. Further impetus for incorporating right to freedom from torture and inhuman or the convention was provided by the Good Friday degrading treatment or punishment (article 3), the agreement, in which the government committed itself right to liberty (article 5), the right to respect for to strengthening the constitutional protection of private and family life, home and correspondence human rights in the state and, in so doing, to draw (article 8) and the right to freedom of expression on the convention. In addition, the agreement (article 10). Further rights, including certain social obliges the state to establish a level of human rights • Background to and cultural rights (such as property, educational and protection which is at least equivalent to that in the European electoral rights) were subsequently introduced by Northern Ireland. convention on four operational protocols to the convention. In 1996, the Constitution Review Group human rights The convention was signed by the Irish minister considered the question of whether the convention • The European for external affairs on 4 November 1950 and became should be incorporated into Irish law. The group Convention on binding on the state (but not within the state) on 3 believed that the outright replacement of existing Human Rights September 1953. fundamental rights provisions in the constitution by Bill, 2001 The rights protected by the convention have been, the convention would lead to the diminution of • Influential Irish and still are, unenforceable in Irish courts. some individual rights (for example, personal liberty cases before Contracting states, and the citizens of such states in article 40.4) which are more extensively protected the European accorded the right of petition (such as Irish citizens), by the provisions of the constitution than under the Court of can lodge complaints against (other) contracting equivalent provisions of the convention. In the Human Rights states with the European Court of Human Rights in review group’s opinion, incorporation by direct

MAIN POINTS Strasbourg. But all domestic legal avenues must be replacement would also mean ‘jettisoning almost 60

12 Law Society Gazette April 2002 Human rights

FORWARDOne of a long line of important Irish cases decided by the European Court of Human Rights: in 1992, it held that restrictions on the dissemination of information breached BACK? article 10 of the convention

years of well-established and sophisticated case law’. which provides that: ‘In interpreting and applying The review group recommended that the existing any statutory provision or rule of law, a court shall, fundamental rights provisions of the constitution be in so far as is possible, subject to the rules of law built upon and improved by liberally drawing on the relating to such interpretation and application, do so convention text where necessary. The group in a manner compatible with the state’s obligations concluded that the text of the convention (and other under the convention provisions’. international human rights conventions) should be Section 2(2) of the bill provides that this rule of used where: interpretation is to apply to all statutory provisions • The right in question is not expressly protected or rules of law in force immediately before the by the constitution passing of the bill, and to all provisions and rules of • The standard of protection of the right in law introduced after the enactment of the bill. question is superior to that guaranteed by the constitution, or Declarations of incompatibility • The wording of a clause of the constitution Section 5(1) of the bill provides that in any protecting such a right might be improved. proceedings, the High Court, or the Supreme Court on appeal, may, where no other legal remedy is The government did not adopt the adequate and available, declare a statutory provision recommendations of the review group. Instead, it or rule of law to be incompatible with the state’s followed the example set in the UK by the Human obligations under the convention. Rights Act 1998 and opted for the ‘interpretative These provisions are set to be deprived of any model’ of incorporation. This method of real effect, however, by section 5(2)(a) of the bill, incorporation is explained by section 2(1) of the bill, which provides that a declaration of incompatibility

13 Law Society Gazette April 2002 Human rights IMPORTANT IRISH CASES AT THE shall not affect the validity, continuing operation or enforcement of the statutory provision or rule of EUROPEAN COURT law in question. So, for example, a statutory OF HUMAN RIGHTS provision upon which civil or criminal proceedings have been instituted would remain in force, and ecisions of the court in certain cases brought against the state have had a such proceedings could continue, despite a finding Dnotable effect on the development of fundamental rights in Irish law. by the High Court or Supreme Court that the • In the case of Airey v Ireland (application number 00006289/73, 9 October statutory provision contravenes the convention. 1979), the applicant claimed that because legal aid was not available to her for The injustices that could flow from section the purpose of bringing separation proceedings, she was denied effective 5(2)(a) of the bill can be easily imagined. Suppose, access to court in violation of article 6(1) of the convention. Article 6(1) states for example, that David Norris had not embarked that in the determination of civil rights and obligations, everyone is entitled to a on the long road to Strasbourg when he did (see fair and public hearing within a reasonable time by an independent and impartial panel), but instead brought his challenge under the tribunal established by law. The parties ultimately reached a settlement, which bill when enacted. The High Court or Supreme was approved by the court. The following year, the Irish government introduced a Court would presumably declare the impugned non-statutory scheme of civil legal aid which, 15 years later, was replaced by the statutory provisions to be incompatible with the Civil Legal Aid Act, 1995. state’s obligations under the convention, but the • In the case of Johnston and others v Ireland (no 00009697/82, 18 provisions would remain in place and could December 1986), the applicants complained, among other things, of the conceivably have grounded future criminal unequal treatment under Irish law of children born outside marriage as prosecutions. compared to children born to married parents. The court found that the normal And what of a modern day Joseph Keegan, development of family ties between the natural parents and their daughter challenging the absence of any provision in law for requires that the child should be placed, legally and socially, in a position akin his consent as a natural father regarding the to that of a child born to married parents. The court held that there had been a adoption of his child (supposing, again, that the breach of article 8 of the convention in that the legal regime concerning the original challenge and subsequent change in the law status of children under Irish law failed to respect the family life of the natural did not occur)? The bill provides for declarations of parents and their child. The government subsequently introduced the Status of incompatibility regarding existing statutory Children Act, 1987, which sought to abolish the legal status of illegitimacy. provisions and rules of law, but not their absence. • In Norris v Ireland (no 00010581/83, 26 October 1988), the applicant Assuming this hurdle could be overcome, Mr challenged provisions of the Offences against the Person Act 1861 and the Keegan would have been faced with the prospect of Criminal Law Amendment Act 1885, which criminalised private homosexual acts the courts agreeing with his complaint, but being between consenting adults. The court rejected the Irish government’s argument powerless to make any real difference. Would that such provisions were necessary for the protection of ‘health and morals’, anyone have suggested that his exclusion from the and found that the impugned legislation interfered with Mr Norris’s right to adoption process of his child could be remedied by respect for his private life under article 8.1 of the convention. Five years after a declaration and nothing more? this decision, the Criminal Law (Sexual Offences) Act, 1993, which These are more than mere examples of how decriminalised homosexual activity, was implemented. previous successful litigants before the court may • In Open Door Counselling and Dublin Well Woman v Ireland (no have fared under the regime proposed under the 00014234/88, 29 October 1992), the applicants challenged a Supreme Court bill. They also serve to illustrate how the proposed injunction which restrained the dissemination of information to pregnant women new law, when invoked, is in many cases likely to concerning abortion facilities outside Ireland. The court held that the state did make little or no real difference to those whose not have an unfettered or unreviewable discretion in the field of morals. It noted convention rights have been infringed. the absolute nature of the injunction, which imposed a perpetual restraint on the provision of information to pregnant women concerning abortion facilities No entitlement to damages abroad, regardless of age or state of health or their reasons for seeking To compound matters, it is intended that the High counselling on the termination of pregnancy. The court concluded that the Court shall not award damages for injury, loss or restraint imposed on the applicants from receiving or imparting information was damage suffered as a result of the incompatible law disproportionate to the aims pursued and that, accordingly, there had been a in question. breach of article 10 of the convention (which protects the right to freedom of Section 5(4) of the bill provides that where ‘(a) a expression). declaration of incompatibility is made, (b) a party to Shortly after this decision, and that of the Supreme Court in the X Case, the the proceedings concerned makes an application in 14th amendment to the constitution, permitting the provision of information on writing to the attorney general for compensation in services lawfully available in other states, was enacted. respect of an injury or loss or damage suffered by • In Keegan v Ireland (no 00016969/90, 29 May 1994), the court agreed with him or her as a result of the incompatibility the applicant’s argument that the lack of any need in law for his consent as a concerned, and (c) the government, in their natural father for the adoption of his child, and the related lack of access to discretion, consider that it may be appropriate to court, constituted violations of articles 6 and 8 of the convention (protecting the make an ex gratia payment of compensation to that right to a fair hearing and the right to respect for private and family life). Mr party (“a payment”), the government may request Keegan was awarded damages and costs. Four years later, with the passing of an adviser appointed by them to advise them as to the Adoption Act, 1998, consultation procedures for natural fathers in the the amount of such compensation (if any) and may, adoption process were introduced. in their discretion, make a payment of the amount aforesaid or of such other amount as they consider

14 Law Society Gazette April 2002 Human rights appropriate in the circumstances’ (emphasis added). The attorney general has explained the proposed lack of any entitlement to damages for loss or injury arising from a law which is incompatible with the convention, but which is constitutional, as follows: ‘If legislation is intra vires the Oireachtas under our constitution, and if it authorises or mandates a particular action or omission in respect of a citizen, it seems on the face of it to be unconstitutional to create a jurisdiction for the courts to penalise such lawful act or omission by damages as though it were unlawful’. In other words, if the law that breaches the convention does not breach the constitution, the courts cannot award damages. This problem would have been avoided by the incorporation of the convention in the way proposed by the Constitution Review Group: convention rights would have been brought within the constitutional framework where desirable, thus helping to ensure that laws which breach the convention would also be unconstitutional and that, as a consequence, Would previous successful damages for loss or injury arising from such laws litigants before the ECHR, could be provided. such as David Norris, doctrine of precedent, but tends to assess damages Furthermore, Mr Justice Donal Barrington, the fare as well under the on an equitable case-by-case basis. In addition, proposed new regime? chairman of the Human Rights Commission and a rules or methods governing the assessment of former judge of the Supreme Court, has queried the damages vary between member states of the constitutionality of legislation that creates rights but Council of Europe. prohibits the courts from awarding compensation For example, Irish and English rules based on for breaches of those rights. causation and foreseeability can contrast with the The constitutional requirement that justice be application by French and Belgian courts of administered in courts (article 34.1) may be relevant considerations of fairness. to any review of, or challenge to, the bill for The court does, however, apply the principle of creating justiciable rights, but providing that restitutio in integrum (restoration to the original breaches of those rights can only be compensated position) when awarding compensation and, to this by the executive. Furthermore, an act of the extent at least, the court’s assessment of damages Oireachtas purporting to confer on the High Court can be said to resemble that of Irish courts. such a circumscribed jurisdiction could raise In many cases, however, the court rules that the questions as to its compatibility with article 34.3.1 finding of a violation of the convention in itself of the constitution, which confers on the High (without compensation) constitutes just satisfaction. Court full original jurisdiction in all matters. It may be interesting to see the extent to which the attorney general is advised (and decides) that a Just satisfaction declaration of incompatibility by the courts in itself Section 5(5) of the bill provides that, in advising the is reward enough, or just satisfaction, for the government on the amount of compensation that individual whose rights have been breached. might be appropriate, the adviser shall take appropriate account of the principles and practice Still a last resort? applied by the court in affording ‘just satisfaction’ Section 3 of the bill provides for the recovery of under article 41 of the convention. damages for injury, loss or damage caused by the Article 41 of the convention states that ‘if the failure of an ‘organ of the state’ to conform with its court finds that there has been a violation of the obligations under the convention. Excluded from convention or the protocols thereto, and if the the definition of ‘organ of the state’, however, are internal law of the high contracting party concerned the courts, the Oireachtas, Oireachtas committees allows only partial reparation to be made, the court and the president. Significantly, under the UK shall, if necessary, afford just satisfaction to the Human Rights Act 1998 courts are included in the injured party’. definition of the ‘public authorities’ which are While ‘just satisfaction’ can take the form of required to comply with the convention. monetary compensation for pecuniary and non- The fact that loss or injury caused by breaches of pecuniary damage and costs and expenses, few clear the convention by UK courts can be compensated, principles governing the award of damages by the but that such loss or injury caused by Irish courts court exist. Several reasons have been advanced for will not, begs the question as to whether the state, this. For example, the court does not apply a strict in enacting the bill, will be in breach of the Good

15 Law Society Gazette April 2002 COMPANY LAW REVIEW GROUP WORK PROGRAMME 2002-2003

The Company Law Review Group has been established under the Company Law Enforcement Act 2001 to advise the Minister for Enterprise Trade and Employment on reform and review of company law. The Review Group is chaired by Thomas B Courtney, solicitor. The Review Group is seeking submissions from interested parties for its second two-yearly work programme 2002 - 2003. Submissions received will be used to assist the Review Group’s consideration of the issues listed below. The Review Group will produce by end-2003 a report with recommendations on the future content and structure of company law in Ireland on these issues. 1. Shares and share capital 2. Winding up of companies 3. Charges and security 4. Company management regulations (Table A) Explanatory note: In its First Report the Review Group concluded that the provisions of Table A relating to internal corporate governance should be set out in the main statute. The Group’s First Report details in Chapter 4 the approach proposed towards specific Table A Regulations. Work has begun on the translation of the recommendations in the first report into legislative proposals. In its second work programme the Review Group will consider those Regulations in Table A not dealt with in its First Report, with the intention of either migrating them to the main statute or repealing them. 5. Liquidators and liquidation service Explanatory note: The Review Group will consider how Ireland can ensure that liquidators are appointed for the proper winding up of all insolvent companies; and in this context whether Ireland should have a State-funded public interest liquidation service. 6. Proposed EU developments in company law 7. Accounting and audit We welcome receipt of submissions in electronic form. These can be submitted on-line at www.clrg.org They may also be emailed to [email protected] Submissions by post should be sent to: PAT NOLAN, Secretary Company Law Review Group Earlsfort Centre Hatch Street Lower. Dublin 2 Information on the Review Group is available on our website: www.clrg.org. The First Report of the Review Group was published on 28 February 2002. It can be downloaded from our website www.clrg.org and from the website of the Department of Enterprise, Trade and Employment www.entemp.ie. The First Report can be purchased from the Government Publications Sale Office, Molesworth St., Dublin 2 for _20 per copy. Human rights

Friday agreement for failing to ensure a level of of human rights protection equivalent to that in human rights protection equivalent to that in Northern Ireland will exist here when the bill is Northern Ireland. enacted, and, as such, whether the state would be Even if an ‘organ of the state’ breaches a in breach of the Good Friday agreement in passing convention right, the injured party may encounter the bill as it stands. significant difficulties in recovering compensation The UK case of Marcic v Thames Water Utilities under section 3 of the bill (when enacted). Section Limited (Technology and Construction Court, 14 3(2) of the bill provides that a person who has May 2001) illustrates the importance, were suffered injury, loss or damage as a result of the illustration needed, of allowing the convention to failure of an ‘organ of the state’ to conform with its be pleaded in the alternative to other grounds. The obligations under the convention, ‘may, if no other plaintiff’s property was flooded repeatedly over remedy in damages is available, institute nine years by water from the defendant’s sewerage proceedings to recover damages in respect of the system. The plaintiff sought damages and an contravention’ (emphasis added). injunction on various grounds, including common- At face value, this provision implies that where law nuisance, negligence, breach of statutory duty another remedy in damages might exist, this must and contravention of the UK Human Rights Act be pursued before damages for breach of 1998. convention rights can be sought. In other words, a The court found that the defendant was not claimant could not plead breach of his convention liable in nuisance, and that its failure to carry out rights in the alternative to other grounds. As such, remedial works to the sewerage system did not the very difficulty that the bill is supposed to amount to negligence or a breach of statutory duty. remedy, namely the necessity that all other The court held, however, that failure to carry out remedies be exhausted before damages can be the works was a contravention of the claimant’s sought under the convention, is expressly right to respect for private and family life under perpetuated by the bill itself. article 8 of the act (which implements article 8 of What if it is unclear as to whether a ‘non- the convention), and his right to peaceful ‘If the claimant convention’ ground will provide a remedy in enjoyment of property and possessions under must go to such damages? Is the claimant still required to sue on article 1, first protocol, of the act (which this other ground, and run the risk of losing and implements article 1, first protocol, of the lengths, it incurring costs, before suing under section 3? Or convention). might have must he seek the assistance of the courts by looking Were the same case to be tried here, the plaintiff for an appropriate declaration in cases of doubt? If would either have to sue on common law and ‘non- made little the claimant must go to such lengths (as a literal convention’ statutory and other grounds (perhaps difference to interpretation of section 3(2) suggests), it might also to no avail) before suing under the bill when have made little difference to him had the enacted, to seek a declaration to the effect that him had the legislature not taken the trouble to introduce the such other grounds would be inadequate, or to sue legislature not bill in the first place. under the bill (when enacted) in the first instance The apparent reluctance on the part of the and try to overcome a strong argument from the taken the government to allow citizens to rely on the defendant that he has failed to exhaust all other trouble to convention in Irish courts is underscored by section remedies in damages. 3(5)(a) of the bill, which provides that proceedings The bill, if enacted as it stands, would permit introduce the for breaches of the convention by an ‘organ of the the continued operation of laws that infringe the bill in the first state’ must be brought within one year of the convention, prohibit the courts from awarding breach. In other words, and attributing to the damages in respect of ‘incompatible’ laws, and place’ provisions of section 3 their ordinary meaning, prohibit reliance on convention rights in the before suing for damages under section 3, the alternative to other grounds when seeking damages injured party must, within one year, exhaust all for convention breaches by ‘organs of the state’. other potential remedies in damages without These features of the bill appear to be based on an success! assumption that adequate fundamental rights Under section 3(5)(b), the one-year limitation protection already exists in Ireland, but that the period may be extended by court order if it is convention has to be seen to be incorporated into appropriate to do so ‘in the interests of justice’. Irish law nonetheless. Why not prevent a host of applications for such While strong fundamental rights protection extensions, and the ensuing hardship and exists in certain areas, thanks largely to judicial uncertainty for claimants, by simply allowing the activism of past years, clearly it would be wrong to convention to be pleaded in the alternative to other assume that any framework for the protection of heads of law? human rights is ever complete. Just ask David In the UK, plaintiffs suing under the Human Norris. G Rights Act 1998 are not precluded from pleading the convention in the alternative to other grounds. John Moher is a solicitor in the commercial litigation This difference between the bill and the UK act and dispute resolution department of Dublin law firm once again raises the question as to whether a level Matheson Ormsby Prentice.

17 Law Society Gazette April 2002 Criminal law A game of hi Anyone working for the director of public prosecutions needs to have a touch of the gambler in them: they need to know when to hold them and know when to fold them. Recently, the DPP’s office issued new guidelines that aim to make its prosecution decisions a little more transparent. Dr Eamonn Hall puts on his poker face and raises some issues

he primary duty of a lawyer in charge of public interest reason not to. The guidelines state prosecutions is not to convict, but to that the prosecutor approaches each case first by ensure that justice is done. ‘Justice’ is asking whether the evidence is sufficiently strong to referred to in the preamble of the justify prosecuting. If the answer to that question is T constitution in the context of seeking to ‘no’, then a prosecution will not be pursued. If the promote the common good so that the dignity and answer is ‘yes’, then before deciding to prosecute, the freedom of the individual may be assured and true prosecutor will ask whether the public interest social order attained. favours a prosecution or if there is any public interest In October 2001, James Hamilton, the director of reason not to prosecute. public prosecutions, published a Statement of general In the context of whether to prosecute or not, guidelines for prosecutors. It sets out the principles which much depends on the duty of the prosecutor. The should guide the initiation and conduct of prosecutions new guidelines explain what these are (see panel, in Ireland. The document was intended to give general page 19). guidelines to prosecutors so that a fair, reasoned and consistent policy underlies the prosecution function. Far-reaching consequences The guidelines are of considerable significance. The decision to prosecute or not to prosecute is of Although not issued on foot of any statutory duty or great importance. It can have the most far-reaching power, they represent the collective wisdom of the consequences for an individual. Even where the current director of public prosecutions and his office accused person is acquitted, the guidelines and of his predecessor, Eamonn Barnes. This article acknowledge that the consequences resulting from a will concentrate on one aspect of the guidelines, the prosecution can include loss of reputation, disruption decision whether or not to prosecute. of personal relations and loss of employment and Under article 30 of the constitution and the financial expense, in addition to the anxiety and Prosecution of Offences Act, 1974, all crimes and trauma caused by being charged with a criminal offences, other than those prosecuted in a court of offence. Further, for victims and their families, a summary jurisdiction, are brought in the name of the decision not to prosecute can be distressing. As far as People and at the suit of the director of public victims are concerned, where they have made what is prosecutions, except for a limited number of offences often a very difficult and traumatic decision to report which are still prosecuted at the suit of the attorney a crime, they may well feel rejected and disbelieved if general. In the context of indictable offences brought a decision is taken not to prosecute. at the suit of the DPP, the decision to prosecute or not is taken by the DPP personally or by an officer of The strength of the evidence the DPP who is authorised to take such a decision. The strength of the evidence is a critical factor in • The general deciding whether or not to proceed with a duties of a The public interest prosecution. It may be said that it is not in the public prosecuting A fundamental consideration when deciding whether interest to use public resources on a prosecution case lawyer to prosecute is whether to do so is in the public which has no reasonable prospect of success. • Evaluating the interest. The guidelines specify that a prosecution Furthermore, if there is a high rate of prosecutions strength and should be initiated or continued, subject to the resulting in acquittals, the guidelines state that this admissibility of available evidence disclosing a prima facie case, if it is could undermine public confidence in the criminal the evidence in the public interest and not otherwise. justice system. A prosecution should not be instituted • Mitigating The guidelines provide that there is a clear public unless there is a prima facie case against the accused. factors that interest in ensuring that crime is prosecuted and that This means in essence that the evidence is reduce the the wrongdoer is convicted and punished. It follows admissible, substantial and reliable, and that a possibility of a that it would generally be in the public interest to criminal offence known to the law has been prosecution prosecute a case where there is sufficient evidence to committed by the accused. The evidence must be justify doing so, unless there is some countervailing such that a jury, properly instructed on the relevant MAIN POINTS

18 Law Society Gazette April 2002 Criminal law igh stakes

Director of Public Prosections James law, could conclude beyond a reasonable doubt that credibility (see panel, page 20). Hamilton (right) with the accused was guilty of the offence charged. The guidelines provide that the assessment of the Garda Commissioner The guidelines provide that the prosecutor evidence not only has to be made initially, but needs Pat Byrne and Attorney should not lay a charge where there is no reasonable to be reviewed at every stage of the proceedings. The General Michael McDowell, launching prospect of securing a conviction before a investigator would be expected to express views on the new guidelines for reasonable jury (or a judge in cases heard without a the evidence upon referring the case to the prosecutors jury). The question of what is meant by ‘a prosecution authorities. Likewise, it applies to the reasonable prospect of conviction’ is not capable of being answered by a precise mathematical formula. THE GENERAL DUTIES The guidelines provide that a prosecution should OF THE PROSECUTOR not be brought where the likelihood of conviction is • The prosecutor has a duty to act honestly, fairly, effectively non-existent. Where the likelihood of impartially and objectively conviction is low, other factors, including the • The prosecutor should at all times respect the seriousness of the offence, may come into play in fundamental right of all human persons to be held equally before the law, and should abstain from any deciding whether to prosecute. wrongful discrimination In evaluating the prospects of a conviction, the • The prosecutor has a duty to respect, protect and guidelines provide that the prosecutor has to assess uphold the universal concept of human dignity and the admissibility, sufficiency and strength of the human rights evidence that will be presented at the trial. This • The prosecutor should at all times uphold the rule goes beyond the issue of whether the statement or of law, the integrity of the criminal justice system group of statements amounts to a prima facie case. In and the right to a fair trial effect, the prosecutor must consider whether • The prosecutor should remain unaffected by witnesses appear to be reliable and credible. The individual or sectional interests and public or media guidelines note that accusations of criminal pressures, having regard only to the public interest. wrongdoing can be unreliable for all sorts of These fundamental duties should inform all aspects reasons: they can be unfounded or inaccurate of the prosecutor’s work, including decisions whether without being deliberately manufactured, they may to prosecute or withdraw charges, bring appeals, be the result of human error, or they can be made decisions concerning the choice of charge and the maliciously. A statement may not simply be accepted conduct of the prosecutor in court. at face value and acted upon without considering its

19 Law Society Gazette April 2002 Criminal law solicitor for the prosecution. A decision not to charge will tend to increase the likelihood that the public may not be final, particularly when the reason is a interest requires a prosecution: simple insufficiency of evidence. To postpone the ‘a) Where a conviction is likely to result in a bringing of proceedings due to the lack of available significant penalty evidence may be preferable to having proceedings fail b) If the accused was in a position of authority or because they are brought prematurely. trust and the offence is an abuse of that position c) Where the accused was a ringleader or an Factors to consider organiser of the offence Once the DPP, or his officer dealing with the case, is d) Where the offence was premeditated satisfied that there is sufficient evidence to justify the e) Where the offence was carried out by a group institution or continuance of a prosecution, the issue f) Where the offence was carried out pursuant to a arises as to whether, in the light of the provable facts plan in pursuit of organised crime and the whole of the surrounding circumstances, the g) Where the victim of the offence has been put in public interest requires a prosecution to be pursued. fear, or suffered personal attack, damage or The guidelines provide that it is not the rule that all disturbance. The more vulnerable the victim the offences for which there is sufficient evidence must be greater the aggravation prosecuted. h) Where there is a marked difference between the The factors that may be taken into account in the actual or mental ages of the accused and the victim context of the public interest being not to prosecute and the accused took advantage of this vary from case to case. The interest in seeing the i) If there is any element of corruption wrongdoer convicted and punished, and crime j) Where the accused has previous convictions or punished, is in itself a public interest consideration. cautions which are relevant to the present offence The guidelines provide that the more serious the k) If the accused is alleged to have committed the offence and the stronger the evidence to support it, offence whilst on bail, on probation, or subject to a the less likely that some other factor will outweigh suspended sentence or an order binding the that interest. The first factor to consider in assessing accused to keep the peace and be of good where the public interest lies is, therefore, the behaviour, or released on licence from a prison or seriousness of the alleged offence and whether there a place of detention are any aggravating or mitigating factors. l) Where there are grounds for believing that the The guidelines set out the aggravating factors, offence is likely to be continued or repeated, for which are not intended to be exhaustive, that tend to example, where there is a history of recurring increase the seriousness of the offence and, if present, conduct’. EVALUATING THE EVIDENCE The guidelines set out some factors which the prosecutor should witness likely to stand up to cross-examination? consider in evaluating the admissibility and strength of evidence. They h) If there is conflict between witnesses, does it go beyond what might say that each case is unique and the variety of human experience and be considered normal, and hence materially weaken the case? behaviour so great so as to make a comprehensive list of all possible i) If, on the other hand, there is a lack of conflict between witnesses, considerations which could arise impossible. Issues that arise may is there anything which causes suspicion that a false story may include the following, which are set out at paragraph 4.11 of the have been concocted? guidelines: j) Are all the necessary witnesses available to give evidence, including ‘a) Are there grounds for believing that evidence may be excluded, any who may be abroad? In the case of witnesses who are abroad, bearing in mind the principles of admissibility under the Constitution the possibility of obtaining the evidence through a live television of Ireland, at common law and under statute? For example, has link, pursuant to section 28 of the Criminal Evidence Act, 1992 or confession evidence been properly obtained? Has evidence obtained by means of the issue of letter of request under the Criminal Justice as a result of search or seizure been properly obtained? Act, 1994 should be considered b) If the case depends in whole or in part on admissions by the k) Are all the necessary witnesses competent to give evidence? If so, suspected person, are there grounds for believing that the are they compellable? If competent but not compellable, have they admissions may not be reliable considering all the circumstances of indicated their willingness to testify? the case including the age, intelligence, mental state and apparent l) Where child witnesses are involved, are they likely to be able to give understanding of the suspect? Are the admissions consistent with sworn evidence or evidence in accordance with the criteria in section what can be objectively provided? Is there any reason why the 27 of the Criminal Evidence Act, 1992? How is the experience of a suspect would make a false confession? trial likely to affect them? In cases of sexual offences or offences c) Does it appear that a witness is exaggerating or has a faulty involving violence, should children’s evidence be presented by way of memory, or is either hostile or friendly to the accused, or may be television link in accordance with section 13 of the act? unreliable in some other way? Did a witness have the opportunity to m) In relation to mentally handicapped witnesses, are they capable of observe what he or she claims to have seen? giving an intelligent account of events which are relevant to the d) Has a witness been consistent in his or her evidence? proceedings so as to enable their evidence to be given pursuant to e) Does a witness have a motive for telling an untruth or less than the section 27 of the Criminal Evidence Act, 1992? whole truth? n) If identification is likely to be an issue, how cogent and reliable is f) Could the reliability of evidence be affected by physical or mental the evidence of those who claim to identify the accused? illness or infirmity? o) Where there might otherwise be doubts concerning a particular g) What sort of impression is a witness likely to make? How is the piece of evidence, is there any independent evidence to support it?’

20 Law Society Gazette April 2002 Criminal law

The guidelines set out certain mitigating factors, which, if present, tend to reduce the seriousness of the DELAYS IN TAKING PROSECUTIONS offence and hence the likelihood of a prosecution According to the DPP’s guidelines (para 4.19), prosecutors should bear in mind the being required in the public interest. These include following factors in relation to delays in prosecution: the issue of whether the court is likely to impose a very ‘a)Whether any delay was caused or contributed to by the alleged offender small or nominal penalty, where the loss or harm can b) Whether the fact of the offence or of the alleged offender’s responsibility for it be described as minor and was the result of a single has recently come to light incident – particularly if it was caused by an error of c) Where any delay was caused or contributed to by a long investigation, whether judgement, or where the offence is a first offence – and the length of the investigation was reasonable in the circumstances if it is not of a serious nature and is unlikely to be d) Where the victim has delayed in reporting the offence, the age of the victim both repeated. when the offence was committed and when it was reported Other factors may also arise in considering whether e) Whether the alleged offender exercised a dominant position over the victim the public interest requires a prosecution. These are f) Whether there is actual prejudice caused to the alleged offender by reason of any set out in the guidelines and are of such importance delay or lapse of time’. that they deserve to be quoted in full (para 4.18): ‘a) Where the offender is either very young or elderly or suffering from significant mental or physical ill factors that should be taken into account by the health or disability. In such cases, however, other sentencing court in the event of a conviction, rather factors tending to indicate that the offence is than factors which should lead to a decision not to serious or that there is a risk of the offence being prosecute. Nevertheless, the guidelines provide that repeated must be taken into account. In the case of where the alleged offence is not so serious as plainly young offenders, the use of the Juvenile Diversion to require a prosecution, the prosecution should Programme should be considered consider in the circumstances whether the public b) The availability and efficacy of any alternatives to interest requires it. prosecution In the context of mitigating factors and other c) The prevalence of offences of the nature of that relevant issues, lawyers should bear in mind that alleged and the need for deterrence, both generally pursuant to section 6 of the Prosecution of Offences Act, and in relation to the particular circumstances of 1974 and section 2(4) of the Criminal Justice Act, 1993, the offender the prosecutor is precluded from considering certain d) Whether the consequence of a prosecution or a unlawful communications when considering a decision conviction would be disproportionately harsh or ‘The guidelines to prosecute or to seek a review of sentence on the oppressive in the particular circumstances of the grounds of undue leniency. The prohibition on offender provide that the communications to the DPP does not apply to a e) The attitude of the victim or the family of a victim assessment of communication made by a person who is a defendant of the alleged offence to a prosecution or a complainant in criminal proceedings or who f) The likely effect on the victim or the family of a the evidence not believes he or she is likely to be a defendant in victim of a decision to prosecute, or not to only has to be criminal proceedings, or communications made by a prosecute person involved in the matter either personally or as g) Whether the likely length and expense of a trial made initially, legal or medical adviser to a person involved or as a would be disproportionate, having regard to the but needs to be social worker or member of the family of the person seriousness of the alleged offence and the strength involved in the matter. of the evidence reviewed at Many people consider that criminal law is h) Whether the offender is willing to co-operate in every stage of confined to matters such as offences against the the investigation or prosecution of other offenders, person, sexual offences, larceny and such like, and or has already done so the proceedings’ somehow consider that the same rigor and i) If a sentence has already been imposed on the implications do not apply to the myriad of offences offender in relation to another matter, whether it is under company law and under a host of statutes likely that an additional penalty would be imposed which some consider to be ‘civil’ matters. A criminal j) Whether an offender who has admitted the offence offence under any code is a criminal offence and has shown genuine remorse and a willingness to must be taken seriously, and a prosecution may have make amends’. the most profound consequences for any individual. All lawyers, of whatever hue, will be asked in one The complex issue of delay is a crucial factor, and has context or another to advise a client or a member of resurfaced recently in the courts in the context of the a client’s family in relation to a criminal prosecution. prosecution of sexual offences. The guidelines state Whether that lawyer is a corporate lawyer, one of the that the prosecutor should, in any case where there great solicitors in single or two-person practices, in has been a long delay since the offence was one of the large firms, or an in-house lawyer to a committed, consider in the light of the case law of the corporation, we should note that these guidelines will courts whether that delay is such that the case should have an impact on the governance of the lives of all not proceed (see panel above). citizens and business entities in the state. G Where there are mitigating factors present in a case, the prosecutor should consider whether these are Dr Eamonn Hall is chief legal officer of Eircom plc.

21 Law Society Gazette April 2002 Litigation

Recent costs awards in the DEFAMATION: Sherwin and Mangan libel actions have turned the spot- which court light firmly on the penalising n 7 December 2001, a High Court libel jury found that a 1999 Sunday provisions of the Independent report suggested that Seán Courts Act, Sherwin had wrongfully solicited O money from a property developer for 1981, as amend- his sister-in-law, and that this suggestion was false. ed in 1991. Nevertheless, they awarded him damages of just £250. The Sunday Independent argued that this was Pamela Cassidy no vindication and that Mr Sherwin should have no argues that costs at all or, alternatively, that any award of costs should be limited to the Circuit Court scale. careful consider- Furthermore, it argued that Mr Sherwin should pay ation should be the difference between the paper’s actual High Court costs and its costs had it defended a Circuit given to whether Court action. a plaintiff’s The trial judge refused the ‘no costs’ application, dismissing the argument that the award was defamation claim ‘nominal’. He awarded Mr Sherwin costs of £5,000 justifies going to – the District Court does not have jurisdiction to hear libel actions, but the judge accepted that, in the High Court view of the actual damages awarded, costs must be at all limited to the Circuit Court threshold of £5,000. Mr Sherwin was also ordered to pay the costs of the paper, amounting to half of the difference between its High Court costs and what those costs would have been had the case been taken in the Circuit Court, estimated at £100,000. Despite the jury verdict in his favour, Mr Sherwin was left with a costs bill estimated at £300,000.

The Mangan case On 19 February 2002, a High Court libel jury found that a 1998 Sunday Independent article suggested that District Judge Joseph Mangan had acted in a short, the lawyers who advised Judge Mangan to take manner inconsistent with the proper discharge of his case in the High Court will bear the penalty for his judicial functions by taking a call on his mobile the low award. phone from the bench, rejecting the paper’s case • Plaintiff’s that it had not libelled the judge. The jury awarded Trial by jury entitlement to the plaintiff €25,000 in damages. The plaintiff One consequence of the costs provisions of the Courts costs recovery immediately accepted that his costs should be Act, 1981 (see panel) is to penalise the plaintiff who under the limited to the Circuit Court scale. The paper argued seeks a jury trial. A favourable verdict from a jury is of Courts Acts that he should make a contribution to its High value in itself. Mr Justice Hardiman has said, speaking • The Sherwin Court costs. The judge refused this application, and extra-judicially, that ‘the verdict of a jury is felt to and Mangan awarded the plaintiff his costs on the Circuit Court carry a degree of authoritative vindication difficult to cases scale. The paper will appeal. replace in any other way’. • Complexities Actual costs of both parties are estimated at The issue is not merely academic: in the Mangan of defamation €750,000. The plaintiff is unlikely to be left with an case, a decision in the plaintiff judge’s favour by a fellow suits outstanding costs bill, as his legal team have agreed judge, sitting alone without a jury (as he must do in the

MAIN POINTS to limit their fees to the Circuit Court scale. In Circuit Court) may have caused public unease, which

22 Law Society Gazette April 2002 Litigation to choose?

makes his case ‘exceptional’. But if jury vindication is disputed issues (for example, what they will make of to have any value, the courts must take it into account the words complained of) and in predicting the level in cost awards. Under the present legislation, a High of the jury award. What words mean and whether Court judge can only do so where the award exceeds they are defamatory is an essential preliminary €31,743.45. He has no discretion otherwise. question in many libel actions. This makes the A jury vindication is particularly important in a defamation action different from, say, personal jurisdiction like ours, where a publisher can never be injury actions, where there is a recognised level of forced to apologise. Jury trial in defamation actions is awards for particular injuries. regarded in England as a constitutional right for both In the Mangan case, the Sunday Independent plaintiff and defendant, and judges are reluctant to argued that it was not defamatory to call a judge a accede to applications for trial by judge alone mobile phone freak. In a case tried by a Dublin jury without the consent of both parties. last July, the Irish Times argued that it was not defamatory of Peter Boyle, former chairman of the Defamation complexities Leinster branch of the IRFU, to report the alleged The question of ‘which court?’ is complicated by the criticism of a French rugby player over a three-week difficulty in forecasting how a jury will react to the suspension from play. The jury in each case

23 Law Society Gazette April 2002 ADVERTISEMENT MEDICAL MALPRACTICE The Medical Report

Article written by John H Scurr, Consultant Surgeon and Director Of Medico Legal Chambers Ireland. He has just been awarded the JW Starkey medal by the Council of the Royal Society for Promotion of Health for his outstanding research in the field of Deep Vein Thrombosis (DVT) Travel Thrombosis.

dvances in medical care have lead to increased expectation. In the last explanation of the terminology, the issues and the outcome are essential. fifty years we have seen major infections controlled, major advances When providing a report, it is important to consider all issues, to take Ain cardiovascular surgery leading to cardiac transplantation, liver account of statements from both the defendants and the claimant and carry transplantation and the introduction of in-vitro fertilization with life expectan- out a thorough and comprehensive review of all the medical records. cy greatly prolonged. Deficiencies in the medical records can be identified. Absent charts and With all these advances comes a public perception that all operations missing results can be highlighted. should be 100% successful, that complications should no longer occur, that The preparation of the medical report is akin to a detective story. It may every baby born is perfect and doctors do not make mistakes. Sadly, despite be necessary to look at the outcome and attempt to work back, creating a major advances in science, much of medicine remains marred. Outcomes can- hypothesis. Using the medical records the hypothesis can be tested and an not be guaranteed. Some patients will suffer minor and on occasions, serious opinion derived. complications. Doctors are now more accountable than ever before, better The best Medico-Legal reports are ones that identify the issues, provide trained with better technology but despite this problems arise. The culture a full and comprehensive explanation and then provide adequate conclusions. whereby it became common practice to sue doctors arose in the United States, Any statement in the report should be supported by references. Statements it has rapidly spread to the UK and now Ireland. Mistakes do happen. Patients like “it is always done that way” have no value, unless supported by medical do suffer and some form of compensation is appropriate. In many instances, literature. It has long been recognised that there may be alternative ways of patients are simply looking for an explanation. Good communication, a thor- achieving an outcome and therefore there are a reputable body of medical ough explanation of events and many potential medical negligence cases will opinion who will do things in a different way. It is no longer acceptable in the resolve. UK to get a group of experts to support a hypothesis, unless they can truly For medical negligence cases to succeed there has to be a breach of duty back that with scientific evidence. When preparing a report, it is clearly and this breach of duty must cause some damage. Sadly, the only outcome of important to consider alternative methods of treatment and alternative out- a medical negligence case is a financial contribution to the victim if negli- come. gence is proven. It is for the victim to show both breach of duty and causation and that is where medical reports become essential. Medical reports are pre- CURRENT CONDITION AND PROGNOSIS: pared from the medical records and witness statements. The reports may be Reports relating to Current Condition and Prognosis are important, particu- supplemented by reference to learned literature and by examination and re- larly with regard to quantum. In the UK there is an increasing tendency to examination of the patient. issue joint instructions to a single joint expert. The report is then accepted by Medical records remain a variable part of the process. The records may both sides, who are free to question the expert. The report is prepared for the be incomplete, illegible or inaccurate. Medical records are created by the doc- court and clearly if independent in the preparation of these reports, it may be tors and nurses treating the patient. The entries represent their findings and necessary to carry out up to date investigations which may be useful to deter- their interpretation of the findings. Medical students are trained to write a full mine the long term outcome. Nerve conduction studies, vascular assessment, set of notes. In particular this may include negative findings indicating that a blood tests can be extremely helpful. In the preparation of these reports pri- particular examination was not carried out which may be extremely useful in marily intended to settle the case, recommendations about future treatment constructing a Defence. Sparse notes may imply that an examination was not and the cost of future treatment are often included. carried out, but as is so common in clinical practice, the doctor when provid- ing his witness statement will often refer to the fact that it is normal practice MEDICO LEGAL CHAMBERS: to do a particular examination in a certain way. Medico-Legal chambers were developed to assist in the preparation of med- Operative findings again record the surgeon’s perception of what he saw ical reports and provide expert opinions in the management of Medico-Legal and what he did. When a surgeon records that all layers were sutured, this is cases. Experts covering all medical disciplines with experience in the prepa- his perception of what was done as opposed to what was actually done. When ration of Medico-Legal reports, and the provision of opinions, work together nursing notes indicate “no problem seen” it is a matter of interpretation as to assisting both the claimant and the defendant. Preliminary letters of instruc- how careful that examination was. tions will be evaluated and the appropriate expert selected. Full and precise instructions will be given to the expert, along with all documentation required MEDICAL REPORTS: for the purpose of preparing the report. In addition to receiving the report, fur- Medical reports range from a simple letter through to a more structured doc- ther recommendations concerning other expert opinions may be offered. ument, detailing the source of information, providing a chronology opinion, Experts are available to attend Medico Legal Conferences and are available conclusions and references. It perhaps goes without saying that it is impor- to attend court. tant to obtain the appropriate expert. The appropriate expert should be some- body practicing within that field of medicine, with specific experience and • Selection of Expert(s) regard to the specific problems and complications. The person must be truly • Obtaining appropriate documentation. independent. A medical report prepared for a claimant or defendant by some- • Sorting and processing medical records. body who has a specific interest is of little use. A truly independent report • Full and proper instruction of Expert(s). aimed at assisting the court, analyzing the facts, identifying areas of conflict •Preparation of the independent Medical Report: and offering an adequate explanation of events is always preferred. It addressing positive and negative issues. remains an intellectual myth that the greater the expert, the greater the com- •Preparation of references to substantiate Medical Report. plexity of the report. The best experts will provide a very simple report, with •Preparation of Report on Current Condition and Prognosis. a very simple understanding. Medical issues are often complex and a full • Recommendation for further Expert opinion.

Further details of the chamber from: Marie Coyle Practice Manager MEDICO LEGAL CHAMBERS IRL.LTD 8 Taney Lawn, Dundrum, Dublin 14. Tel/fax 01-2962570 DX 76012 Dundrum Litigation WHAT THE COURTS ACT SAYS

Section 17 of the Courts Act, 1981, as substituted by section 14 and for the costs and expenses incurred by him in the doing of of the Courts Act, 1991 reads: any specified thing in any particular form of action or other ‘17(1) Where an order is made by a court in favour of the plaintiff proceeding or applicant in any proceedings (other than an action specified (5) (a) Where an order is made by a court in favour of the plaintiff in sub-sections (2) and (3) of this section) and the court is not or applicant in any proceedings (not being an appeal) and the the lowest court having jurisdiction to make an order granting court is not the lowest court having jurisdiction to make an the relief the subject of the order, the plaintiff shall not be order granting the relief the subject of the order, the judge entitled to recover more costs than he would have been entitled concerned may, if in all the circumstances he thinks it to recover if the proceedings had been commenced and appropriate to do so, make an order for the payment to the determined in the said lowest court defendant or respondent in the proceedings by the plaintiff or (2) In any action commenced and determined in the High Court, applicant of an amount not exceeding whichever of the following being an action where the amount of damages recovered by the the judge considers appropriate: plaintiff exceeds €31,743.45 but does not exceed €38,092.14, (i) the amount, measured by the judge, of the additional costs the plaintiff shall not be entitled to recover more costs than he as between party and party incurred in the proceedings by would have been entitled to recover if the proceedings had been the defendant or respondent by reason of the fact that the commenced and determined in the Circuit Court, unless the proceedings were not commenced and determined in the judge hearing the action grants a special certificate, for reasons said lowest court, or stated in the order, that, in the opinion of such judge, it was (ii) an amount equal to the difference between reasonable in the interests of justice generally, owing to the (I) the amount of the costs as between party and party exceptional nature of the proceedings or any question of law incurred in the proceedings by the defendant or respondent contained therein, that the proceedings should have been as taxed by a taxing master of the High Court or, if the commenced and determined in the High Court proceedings were heard and determined in the Circuit Court, (3) In any action commenced and determined in the High Court, the appropriate county registrar, and being an action where the amount of the damages recovered by (II) the amount of the costs as between party and party the plaintiff exceeds €6,348.69 but does not exceed incurred in the proceedings by the defendant or respondent €19,046.07, the plaintiff shall not be entitled to recover more as taxed by a taxing master of the High Court or, if the costs than whichever of the following amounts is the lesser, that proceedings were heard and determined in the Circuit Court, is to say, the amount of such damages or the amount of costs the appropriate county registrar on a scale that he considers which he would have been entitled to recover if the action had would have been appropriate if the proceedings had been been commenced and determined in the Circuit Court heard and determined in the said lowest court (4) It shall not be lawful for rules of court to contain or impose any (b) A person who has been awarded costs under paragraph (a) restriction on the amount of costs recoverable by any party from of this sub-section may, without prejudice to his right to recover any other party in any action or other proceeding, but nothing in the costs from the person against whom they were awarded, set this sub-section shall prevent the insertion in rules of court of a off the whole or part thereof against any costs in the restriction on the amount of the costs recoverable which is proceedings concerned awarded to the latter person against the identical with a restriction imposed by this section nor the fixing first-mentioned person by rules of court of the amount recoverable by any person as (6) In this section “relief” includes damages’.

disagreed with the paper and found for the plaintiff. in the High Court if he does not obtain an award of Mr Boyle was awarded £50,000. damages of more than €31,743.45. And there are other complexities, such as difficult issues of law, which may make a case more suitable Which court to choose? for determination in the High Court. How, for The client’s objective is the vindication of his example, is a Circuit Court judge likely to react to an reputation, achieved by a combination of three application for service of interrogatories by a plaintiff, factors: a verdict in his favour on the substantive made before he particularises his claim, where he has issue, a sum in damages sufficient to serve as a a good cause of action in slander but is obliged to warning that the allegations are false and should not resort to the defendant to make out that case, or the be repeated, and recovery of his costs. plaintiff who seeks immediate disclosure of e-mail Prudence dictates that unless your client has a material? The authorities suggest that the proper very clear case (so that a jury verdict against him procedure is the issue of a High Court plenary would be perverse) and the defamation and/or the summons, followed by an application for inter- publisher’s conduct is particularly grave, he should rogatories or disclosure. If he contemplates taking be advised to give very careful consideration as to his case in the Circuit Court, the plaintiff is most whether his claim justifies trial before a jury in the unlikely to obtain interrogatories or disclosure before High Court. G he issues his civil bill, although he cannot properly particularise his case until he has this material. Yet Pamela Cassidy is a partner with the Dublin law firm this plaintiff will be penalised on costs for proceeding BCM Hanby Wallace.

25 Law Society Gazette April 2002 Business

Your business clients know the story: the cheque is in the post, but they have yet to see the colour of their customers’ money while their own creditors are banging down the door. So how can they manage the gap between book debts and cashflow without extending their company’s overdraft or getting deeper into hock? Barry O’Halloran looks at some options BRIDGING G

• Managing cashflow is difficult if customers are slow to pay • Factoring and t’s stating the obvious, but cashflow is the scale the following year, with a stg£17 million invoice lifeblood of any business. Many businesses difference between cash from operations and its discounting are stand or fall on the simple operation of reported profits of stg£15 million. A number of alternative managing what’s coming in and going out. analysts pointed to these warning signs, but nobody sources of Accountants point to it as an indicator of the (least of all Independent’s own management) working capital I real underlying health of an organisation. appeared to be listening. The result was that the • Most business Take last year’s collapse of Independent Insurance business went to the wall. types, in the UK, which left 900 Irish motorists and a range One of the reasons for last year’s hi-tech collapse including of large and small businesses in this country without was that investors suddenly realised that a high partnerships, cover. In 1999, Independent Insurance reported proportion of these companies were spending money can avail of profits of stg£61 million, while it had negative at an enormous rate, but bringing in little or nothing. these services cashflow of stg£45 million – a stg£106 million The result was that the investors said ‘no more’ and

MAIN POINTS difference. The pattern was repeated on a smaller the rest, as they say, is history.

26 Law Society Gazette April 2002 Business

people agree to cough up within 30. In some cases, large and powerful customers can impose onerous terms on their smaller suppliers, requiring them to wait the longest possible time for their money. In turn, suppliers have creditors who are banging down the door demanding to be paid. This so-called ‘vicious cash cycle’ can reach a point THE where businesses actually find themselves at risk, as they are effectively in a situation where they cannot pay their own debts as they fall due. Extending an overdraft or raising new loans from the bank are not necessarily viable ways out of this situation. So, while you’re waiting weeks for the proverbial cheque in the post and your own creditors are on the point of sending around a couple of guys with baseball bats, what do you do? Or more particularly, what do you do if you can’t afford, or don’t want, conventional short-term credit from the banks? GAP There is one, or rather two, ways out of this: invoice discounting and factoring. These basically involve getting a financial institution to advance you most of the money your customers owe you. They in turn collect the money, for a fee, normally charged as a percentage of the total amount. In short, they convert the unpaid invoices into cash or working capital. On the face of it, this looks like a route that an increasing number of businesses take. According to the latest figures available from the Factors’ and Discounters’ Association (FDA), a British-based organisation whose members include the major Irish players in the market, namely AIB, Bank of Ireland Finance and Ulster Bank, members’ turnover more than tripled over the last decade. In 1993, invoice-discounting volumes came to stg£12.4 billion for the year; by 2000 that had grown to stg£57.2 billion. During the same period, factoring volumes grew from stg£6.5 billion to stg£16 billion. Total volumes, including international business, went from stg£19.7 billion to stg£77 billion during the same seven-year period. Small businesses were by far the biggest customers. Almost half of FDA members’ clients (47%) had For the 90% or so of Irish businesses that fall into annual turnovers of stg£500,000 or less. Those in the the small or medium-sized category, cashflow is stg£500,000 to stg£1 million range accounted for 18%, almost a life-and-death matter. But the biggest source while those in the stg£1m to stg£5m bracket generated of that cash is, in most cases, the money they are 27% of all the business done during the same seven- owed by their customers. In fact, a look at most of year period. their balance sheets will show you that one of the This means that over 92% of FDA clients had biggest assets they have is their book debt. In theory, turnovers in a range where they would be classed as this should provide a ready source of, well, readies. small businesses in this country. In terms of sectors, But like a lot of theories, this doesn’t always work manufacturing and services were the biggest clients, in practice. Customers can be slow to pay: 30 days’ but all bar financial services had recourse to either credit can stretch into 60 or even longer. According factors or invoice discounters. The FDA’s figures are to the Small Firms’ Association, the average payment largely UK focused, but there are no comparable time in this country is 57 days, even though most surveys carried out here.

27 Law Society Gazette April 2002 Business FACTORING AND INVOICE DISCOUNTING: speeding up the rate at which customers pay, without losing their good will. This generally involves working WHAT’S INVOLVED? out an agreed credit terms policy with the client and the customers. In theory at least, the two key FACTORING INVOICE DISCOUNTING advantages are that there is less need to borrow A factor advances you 80% to 85% of A discounter advances you 80% to 85% because cashflow is dependable and debtors are paying approved trade debts, and assumes of approved trade debts. You still responsibility for credit control and maintain control of collection, but the faster, and that companies can save substantially on the collection. They will charge you a fee or funds are placed in an account that the administration associated with credit control and percentage of turnover for the service. discounter administers. The relationship collection. It may also be useful for a business that does The factor puts an assignment stamp on is generally not disclosed to the not have the resources for good credit control. the invoices, as they are effectively the customer. Note that for this to work The fundamental difference between factoring and creditors. This means the relationship is effectively, you need to have an efficient invoice discounting is that in the latter case the disclosed to the customer. credit control system of your own. business maintains control of the sales ledger, collection and credit control, while customers are not The business banking or asset Richmond, Surrey TW9 1QE, England. generally told about the service. This implies that the financing arms of the country’s Tel: + 44 20 8332 99 55; business already has the staff and systems to manage leading financial institutions provide website: www.factors.org.uk. credit control. The institution still takes ownership of factoring and invoice discounting services. There are a number of Some key providers of the service: the debt, and the customer is required to sign a debt independent providers. A full list of • AIB Commercial Services purchase agreement before getting the facility. Irish and UK players is available from • Anglo Irish Bank plc ‘It’s a simple, cost-effective method of raising the Factors’ and Discounters’ • Bank of Ireland Finance working capital by converting trade debts into cash’, Association (FDA) Ltd, Second Floor, • Ulster Bank Commercial Services says Bank of Ireland’s Pat Gallagher. ‘It’s an ideal Boston House, The Little Green, • Celtic Invoice Discounting plc. product for expanding companies: as sales and debtors grow, so too does the amount of money available’. However, the picture in this country is reckoned to But it does not necessarily have to be used solely for be broadly similar. Pat Gallagher, marketing manager raising working capital, Ulster Bank Commercial of Bank of Ireland Finance, one of the market leaders Services (UBCS) says that it can also be an appropriate here, says invoice discounting has grown method of raising money for management buy-outs or ‘phenomenally’ over the last three years. mergers and acquisitions. It’s worth noting that factors print an assignment Old fashioned image notice on invoices. This informs customers that the Invoice discounting accounts for a higher proportion of benefit of the contract has passed to the factor, and the volumes, largely, industry sources say, because that they are effectively the creditors, even though factoring ‘went out of fashion, or was perceived as old someone else is providing the goods or services for fashioned’. Sean Forrestal of AIB points out that which the customer is invoiced. Depending on the factoring is not popular in this country, as it has kind of business relationship that companies maintain historic connotations. ‘It used to be seen as a sign that with their customers, this may not suit everybody. As a you could not get credit anywhere else and that your result, there may be situations where it may be better own controls were not that good’, he says. But he adds to use invoice discounters. that the bank does provide factoring to exporters. In fact, there is not a huge difference between the Money up front two financing methods (see panel). They are both In common with factors, invoice discounters provide a based on a particular class of assets, that is, a company’s percentage of approved debts up front on receipt of book debts, and they are both geared towards invoice copies. Again, this is normally around 80% to managing the gap between those debts and reliable 85% of the amount owed, but there is no hard and fast cashflow. rule. In general, the payments received are paid into a Factoring (sometimes called full-service factoring) is bank account administered by the invoice discounter. It considered to be the better option for slow paying takes repayment for the advance from this, subtracts its creditors or for dealing with a short or medium-term own charges and credits the balance to the business. shortage of working capital. It’s generally the option Depending on the financier and the nature of the most frequently recommended to exporters, and some client, the charges can be a flat fee or a percentage of factors will offer a form of protection or insurance turnover. The latter option appears to be the most against bad debts. common. In some cases, discounters will also offer A factor pays a percentage of approved debts (that is, some form of cover or insurance against bad debts. approved by the factor) on receipt of invoice copies. The financial institutions offering these services do The percentage depends on the agreement itself, but not restrict themselves to limited companies. UBCS generally comes to around 80% to 85% of the full says it will cater for small owner-managed businesses, amount. The balance, less charges, is paid when the limited companies, plcs and partnerships. In general, customers pay. The charges may vary, but are usually businesses that are involved in manufacturing and the negotiated on the basis of turnover. sale of goods and services are most suited. The factor then takes over the business of credit Construction, and any industries where stage contracts control and collection, normally with the aim of are common, tend not to be favoured because there are

28 Law Society Gazette April 2002 Business particular difficulties associated with these agreements. valued at €200,000, and €40,000 of that figure is Ulster Bank stipulates that, to qualify, the business Invoice discounting outstanding for more than 90 days (or whatever other should have a turnover of €1.27 million (previously £1 and factoring can be time limit the individual institution sets), the bank million) a year. The Bank of Ireland Finance threshold used to: subtracts this and multiplies the remainder by the pre- is lower, at €317,400 (previously £250,000). AIB •Meet day-to-day payment rate, for example, 70%. In this case, it is 70% cash flow stipulates a threshold of €0.5 million. AIB’s Sean of €160,000, or €112,000 – amounting to 56% of the requirements Forrestal says that it will also look for a certain level of overall debt. • Fund new market debtors. ‘We would generally look for a minimum of development or The limit can be adjusted up or down according to €0.5 million’, he says. ‘But if you have a scenario where new product lines how good the client is at collecting the debts. The you are a start-up and it is likely that you will have a • Finance mergers banks get a copy of the monthly sales ledger and if it turnover of €0.5 million or over within 12 months, and acquisitions shows that the collection performance improving, then we could agree to give you a facility’. • Finance then the facility’s limit will be increased accordingly. Before getting final approval for invoice discounting, management Conversely, if performance heads in the other the banks will carry out a kind of mini due diligence buy-outs. direction, then the limit is cut. exercise which is aimed at ensuring that the business has ‘In one way that’s the beauty of invoice the requisite credit controls in place. ‘Part of the whole discounting’, Forrestal argues. ‘We had a client who process is that you would have to get credit approval’, started with us two years ago with a limit of €350,000. says Forrestal. ‘Our surveyors will go in and sit down He came back to us after three months and said: with the client and look at their controls and collection “Look, this has gone through the roof. I’m right up system, look at the arrangements they have with against my limit”, so we increased it to €500,000. He customers and look for things like proof of delivery’. was back again after another three months and we were able to give him €750,000. He also had an Exposure to risk overdraft of €100,000, so he had total facilities of Banks will also scrutinise the debts for their exposure to €850,000. That working capital added a huge amount risk, and will determine the facility’s limit as a to his bottom line’. percentage of the approved amount. Forrestal points Presumably not all stories are as good as this one, out that debts outstanding for 90 days or more are but it does indicate that invoice discounting can be a unlikely to be approved unless this is the result of a more flexible system of raising cash than special agreement. ‘Unless there are special credit straightforward loan finance. G terms, it’s more than likely that it will be a difficult debt to collect, and it hints at problems’, he says. Barry O’Halloran is a staff reporter with Business & He explains that if a client has total book debts Finance magazine.

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29 Law Society Gazette April 2002

Books Book review Sources of law (second edition) Thomas O’Malley. Round Hall Sweet & Maxwell (2001), 43 Fitzwilliam Place, Dublin 2. ISBN: 1-85800-185-4. Price: €50.

awyers of my age were the first edition of the Manual paper and electronic sources of in getting titles correct: for Ltaught fundamental of the law of real property that Irish, British, European, example, ‘The Honorable principles of law. Negligible his (Sir Robert’s) stated aim American, Commonwealth and Society of King’s Inns’ is attention was given to the issue was to help the ‘examination international law. correct, but ‘The Honourable of ‘finding’ the law. Today, candidate whose main anxiety Appendices to the book Society of the Kings’ Inns’ knowledge of the principles of is not whether he will head the contain a list of abbreviations contains at least three errors. law is still important, but more list but whether he will appear commonly encountered in legal One refers to ‘Queens’ is required. A lawyer today in it at all’. Noting, with even literature and a glossary of College, Cambridge’, named needs to possess the skill to greater modesty, that his book Latin and French words after two queens, but ‘The ‘find’ the law. could not even guarantee an commonly used in legal Queen’s College, Oxford’, It was Thomas Jefferson who appearance on the list, Tom writing. If a judge said ‘res named after one queen. wrote that a lawyer without O’Malley hopes that it will integra’, you would appreciate Why is legal writing books would be like a workman eliminate some of the that the judge was speaking important? Words are the without tools. We all know that confusion understandably felt about an issue on which there vehicle of thought; style is the the mass of the law is by students as they try to is no existing rule or precedent neat dress of thought. Words accumulating with frightening become familiar with legal and which therefore must be express thoughts and words rapidity. That is why the skill to sources. The problem is not decided in accordance with are the very tools of our ‘find’ the law is of such confined to students: I have first principles. A list of Irish profession. Words count. importance. learned much from this book. law books published since 1950 Sources of law is a gem of Tom O’Malley, a barrister The author has added new is set out under different completeness and accuracy and lecturer in law at NUI material in this edition for the subject headings. The final that will provide a most Galway and the author of benefit of practitioners, and appendix contains a selection valuable aid to law students, several publications, states in this is most welcome. The new of useful websites. practitioners and high priests his preface that the objective of chapters on electronic sources Readers will undoubtedly of the law. It is written in a this book is to introduce of law and legal citation are know all about split infinitives very readable style, with an students to the primary and particularly helpful, and the and other matters of grammar abundance of authoritative secondary sources of law and to chapters on legal writing have and syntax, but the author information. G equip them with basic research been extensively revised. provides a most useful skills. Modestly, the author Other chapters provide a refresher course for all of us. Dr Eamonn Hall is chief legal quotes Sir Robert Megarry in comprehensive account of the There is also a certain charm officer of Eircom plc.

31 Law Society Gazette April 2002 Gadgets Tech trends Small notebook, big performance A dumb

ell computers has I know you want to hear this idea for a Dlaunched the bit, so you can bluff your mates latest in its line of down the pub: the Inspiron phone? notebook computers, runs at up to 1.7Ghz with the Inspiron 8200. 400Mhz processor bus speed. The Inspiron runs What this means really is that on the latest Intel it is a very fast machine indeed. Mobile Pentium 4 It has up to 1 gigabyte of processor – the M system memory and runs a series, supposedly variety of fancy-sounding the fastest multimedia graphics and processor chip memory chips that I won’t bore ow that available for you with here. But perhaps its Nthe world mobiles. Now, strongest selling point is the and his wife has price: at around €1,500, it a mobile phone, won’t break the bank and the companies that you will have in make them are your hands a beating themselves up trying to seven-and-a- find a new angle to make you half pound part with your cash. This one mobile PC that doesn’t might just work. It’s a phone trail its desktop counterpart that takes pictures. Doesn’t that by much at all. sound like a good idea, if Available from Dell computers you’re a deaf mute? The new (www.dell.ie) and from computer Nokia 7650 doubles as an outlets. ‘integrated digital imaging device’. That’s a camera to you Gaming for generation X and me. Point the phone, use the colour display as a othing beats the simple joy 8Mb internal hard drive PS2, which does many of the viewfinder, snap a picture, and ‘Nof a monkey knife-fight’, (allowing faster loading of same things. share the moment by texting it the Duke of Wellington once games), a DVD player and Whether the Xbox will to someone who, like you, has memorably said. Everyone 64Mb of memory. Microsoft represent a real challenge to more money than sense. This loves monkeys, and if they ever claims that its 233Mhz the Playstation’s market handset is almost guaranteed to invent a monkey knife-fighting graphics-processing unit dominance, only time (and take all the fun out of making game we’ll be first in the queue (GPU) will deliver more than your wallets) will tell. In the phone calls from the toilet. to buy it. And there’ll probably three times the graphics meantime, let the monkey The Nokia 7650 should be in be only one games console that performance of other consoles fights begin! the shops this summer, but the could do it justice: the new on the market. This may well Available from Virgin Megastores company hasn’t a clue how Xbox from Microsoft. be true, because the Xbox is and electronics outlets. much it will cost yet. It’s been a long time basically a PC dressed up as a coming, and in the meantime games console, with a host of Sony’s Playstation and PS2 peripherals such as surround consoles have developed a near sound, a CD burner monopoly on the gaming and on-line market, which is estimated to capabilities. be worth about €23 billion a The downside year. Microsoft’s Xbox – and it’s a very represents the first realistic big downside if competition to Sony’s you’re a parent stranglehold. It boasts an Intel – is that the 733MHz Pentium III Xbox costs €479 processor, the most powerful including VAT. That’s a CPU of any games console, an good €150 more than Sony’s

32 Law Society Gazette April 2002 Gadgets Take all the fun out of being a kid! his one’s a bit of a cheat throw away the key? Well, you wrist like a watch. You address (it also includes a one- Tbecause it’s not available in can’t do that, but you can make simply log onto your button 911 emergency Ireland, but it’s such a cool sure you know where they are, computer (or call response feature). What idea that we thought you’d like to within a few feet, at any given the company) and a perfect opportunity to know about it. I mean, how time by using a global Wherify will to ruin their teenage many times have you wished positioning system (GPS) to flash up a map years. The device that you could electronically keep tabs on them. The Personal showing your costs just under $400 tag your kids? For that matter, Locator from US electronics child’s current and is currently only how many times have you firm Wherify is a rugged, location and available in the USA. wished you could bang the lightweight and near indestruct- provide you with For more information, see www. little buggers up in jail and ible device worn on a child’s the closest street wherifywireless.com/prod_watches. Sites to see

Guitar chords on-line (www.guitartabs.cc). A good site to visit DVD rentals (www.dvdrentals.ie). Couch-potato heaven! If if you’re looking for the lyrics of a particular song or just advice you’re too lazy to walk to the video shop, log on to this site and on how to play it. The songs are presented as guitar tablature they’ll send you out a rental DVD film on the same day by (an alternative to traditional music notation). The extensive first-class post. The site boasts an extensive list of films and database of old and new songs should put you well on the road they say you can keep your rental as long as you like without to annoying your neighbours with your bizarre musical stylings. incurring any late return fees.

Blast from the past (www.schoolfriends.ie). The international fad Custom-made speeches (www.speechwriters.com). Within 60 for digging up old school friends has come to Ireland. Log on seconds of receiving your order, this site will e-mail you pre- to this site and find out what happened to the school bully written speeches, poems and eulogies that you can trot out for (assuming the big lunkhead ever learnt how to use a computer). weddings, funerals and formal dinners. Give them a few more A great excuse to lie about how well you’re doing. days, and they’ll prepare a personalised speech for you.

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any economic indicators quarter is shaping up to be might be to buy from the Mare starting to show that better than last year’s brutal expansive list of exchange the US economy is emerging first quarter, when 70% of pre- traded funds on offer. from its zero-growth period, announcements were negative although whether it will and only 14% were positive. What are exchange Alan Murphy: ‘ETFs are excellent continue to build on its recent Interestingly, though, the traded funds? tools for wary investors seeking strength and avoid the much- earnings estimates and pre- During the past eight years, market exposure with the vaunted double-dip back to announcement data for there has been significant enhancement of liquidity’ recession is unclear. technology firms hint at growth in the exchange traded In March, the US Federal continued tough times for the fund (ETF) market. ETFs (SPDRs) and the Nasdaq 100 Reserve (Fed) changed its sector. More than twice as represent shares in either funds Tr ust, account for 67% of the policy stance to ‘neutral’ from many tech companies have or unit investment trusts that total asset size of the ETF an interest rate ‘easing bias’. issued earnings warnings for hold portfolios of stocks which market. However, exposure to This can be interpreted to mean the first quarter than raised closely track the performance the market is not limited to just that US interest rates may have expectations. and dividend yield of specific these two. There are also bottomed. It stated that the Diamonds, streeTracks, and economy was ‘evenly balanced’ TYPES OF EXCHANGE TRADED FUNDS recently Barclays Global and it believes the US economy Investors entered the market is showing signs of a Broad-based with its suite of iShares sustainable and robust recovery, These track a broad group of stocks from various markets. For providing greater international with US manufacturing starting example, S&P SPDR is a broad-based ETF that tracks the S&P 500 exposure. to produce again. This in the US, and the iShares FTSE tracks the FTSE 100. There is no minimum reinforces the optimists’ view. investment amount, or indeed On the face of it, while it Sector-based timeframe, required for may look like the Fed is These track companies represented in related industries. For investing in exchange traded moving to a neutral stance, example, the iShare Dow Jones US Healthcare-sector Index Fund is funds. As with all securities, the market reaction has been a sector ETF that tracks the Dow Jones healthcare sector, and the value of ETFs can go down as mixed. The market sees the XLK Technology Select SPDR tracks the top 100 technology stocks well as up, and there is an change in stance as the first listed in the US. element of risk attached to step towards a round of investing in them. monetary tightening from the All in all, the pessimists indexes, either broad market or At present, investors might summer months onwards. could be in for a difficult time, sector based. consider the FTSE 100 iShare particularly over the next six The first ETF began trading as an index fund of choice. The Earnings pre-announcements to eight weeks, and especially in January 1993. Since then, the FTSE 100 has unjustifiably are improving if a pronounced flow of number of ETFs has increased underperformed the S&P, the On the earnings front, most investors’ funds returns to to over 100, as investors seize Dow Jones and continental US companies will not equities. the opportunity to buy or sell European equity markets. As the officially report first quarter However, history has shown an entire portfolio of stocks in a earnings that underpin the figures until April. But many that it will take a sustained single security. ETFs can be FTSE are no less robust in have already told the market period of positive equity bought and sold via your nature than its counterparts, it is what to expect. So far, performance before a marked stockbroker throughout the a great way to build a weighting according to Thomson shift in asset allocation by trading day – as easy as buying in a market that is 25% off its Financial/First Call, almost retail investors occurs. As or selling a share. As such, they all-time high. It also trades on 30% of first-quarter earnings company fortunes do not are excellent tools for wary 18.5 times earnings compared to pre-announcements have been appear to be improving investors seeking market 23 times for the S&P 500. G positive and 48% were dramatically in the short term exposure with the enhancement negative. in tandem with the economy, of liquidity. Alan Murphy is a portfolio Though earnings warnings a safer way to move back into Two of the largest ETFs, the manager with Davy Stockbrokers’ still outnumber good news, this equities quickly and efficiently S&P Depository Receipts private clients unit.

35 Law Society Gazette April 2002 Briefing Report of Law Society Council meeting held on 1 February 2002 Motion: Mentor programme ment of ten years’ qualification ing group of people invited to at 200 pages, would be circulat- ‘That this Council approves the in order to participate on the complain, but would probably ed for consideration by the report of the Mentor Programme panel, and that practitioners be presented as ‘evidence’ of Council shortly. Task Force.’ should be invited to participate overcharging by solicitors. Proposed: Stuart Gilhooly through the society’s commit- The Council noted that, in ‘Tesco Legal Services’ Seconded: Kevin D O’Higgins tees and the bar associations. certain circumstances, it was The director general reported The Council approved the pro- perfectly legitimate to charge a that the Law Society of Stuart Gilhooly noted that the posal, subject to the exclusion of solicitor/client fee in addition England & Wales was consider- task force had been established current members of the society’s to party-and-party costs already ing the removal of its prohibi- following the passing of a regulatory committees. received. It was agreed that this tion on solicitors employed by motion at the last AGM that a should be clarified in the media, non-solicitors giving legal programme should be developed Personal Injuries Assessment as should the right of clients to advice to anyone other than by the Law Society whereby sole Board (PIAB) tax their costs or to make a their employer. The proposal practitioners could approach Ward McEllin reported that a complaint of excessive fees. had been dubbed ‘Tesco Legal mentors within the profession letter had been received from However, the society could not Services’ and was a very serious when faced with difficulties in the Interdepartmental Imple- support any solicitor who did issue, impacting as it did on the their practices. The proposal was mentation Group for the PIAB, not reveal a party-and-party fee core values of independence, that a panel of mentors should inviting the society to meet the to his client, who charged on a confidentiality and conflicts of be established, with a require- group to express its views on the percentage basis or who interest. Michael Irvine said PIAB. The society’s task force charged a fee that would not that the cost of independent had considered the matter and tax. Andrew Dillon said that the legal advice represented the In briefing had agreed to seek access to the assertion that 42% of awards price of democracy. If legal group’s draft proposals in were required to meet legal services were to be provided by this month ... advance of any such meeting. costs was patently untrue and organisations who were ■ Council report page 36 He noted that, having ignored he said that the costs associated dependent on the government the legal profession so far, it was with the delays in settlements for lucrative contracts or busi- ■ Committee page 37 now proposed to ‘consult’ at a caused by insurance companies ness deals, this would represent reports very late stage. The Council should also be emphasised. a most invidious form of pres- ■ Legislation page 38 agreed that the task force should Anne Colley said that the sure in relation to legal pro- update not engage in a cosmetic exer- real issue was not ceedings in which the state was ■ SBA annual page 41 cise and should seek to secure solicitor/client charges, but involved, and true independ- report and adequate information before rather the structure of the deliv- ence would be a thing of the accounts agreeing to participate in any ery of compensation. She past. discussion. believed that the society’s pri- The director general agreed ■ Personal injury page 42 mary concern should be to pro- that there were organisations judgment Motor Insurance Advisory tect a client’s right to obtain fair that would wish to exploit the ■ FirstLaw update page 44 Board (MIAB) and reasonable compensation. brand of ‘solicitor’ by providing • Criminal The director general reported legal services as one of a range • Discovery that the forthcoming report of Competition Authority study of products, but not necessarily • Family • Land law the MIAB, which had been The director general reported with the public interest in mind. • Landlord and tenant leaked to the media, appeared that a detailed questionnaire He said that the society would • Litigation to be very critical of solicitors comprising 74 questions had communicate its views at a • Medical negligence and of solicitor/client costs. been received from the meeting with the law societies • Mental health One newspaper article indicat- Competition Authority and of England & Wales, Scotland • Practice and procedure ed that the report ‘accuses responses were being prepared and Northern Ireland being ■ Eurlegal page 50 many solicitors of being paid on by a task force comprising him- held on 28 February. •Damages now available for the double when they win self, John Fish, Michael Peart breaches of EC competition insurance claims for clients’. and Mary Keane, in conjunc- Supreme Court law – the ECJ’s judgment in The Council noted that the tion with advisors from A&L computerisation C-453/99 Courage v Crehan MIAB had advertised in the Goodbody, Solicitors. While The Council approved the • Recent EU legislative media the previous summer the Competition Authority had nomination of Frank Nowlan developments: December 2001, January and inviting clients who believed initially sought a response by 4 and Frank Lanigan to a working February 2002 they had been overcharged by February 2002, the society had group being established by the • Recent developments in their solicitors to contact the sought and obtained an exten- chief justice to consider issues European law board. Clearly, this had yielded sion of time. The draft relating to the computerisation ‘war stories’ from a self-select- response, which currently stood of the Supreme Court. G

36 Law Society Gazette April 2002 Briefing Committee reports CONVEYANCING that the conference papers in where he has reasonable cause to •A letter of no objection from relation to the Irish and English believe that a company is no the Revenue Commissioners The Land Registry has brought systems would be of particular longer carrying on a business. •A copy of an advertisement in to the attention of the interest to conveyancing practi- However, this is a discretionary the approved form published Conveyancing Committee the tioners. power which the registrar is pre- in one daily newspaper indi- fact that conference papers pared to use only if a director of cating the intention to apply from a property registration BUSINESS LAW a company furnishes a statement to have the company struck conference which took place in to the effect that the company off the register. October of last year are avail- CRO waives late filing penalty has ceased trading or has never able on the Land Registry web- for strike-off applications traded, that it has no assets or In order to facilitate the site and might be of interest to The Companies Registration liabilities and that it wishes its removal of moribund/off-the- practitioners. The subject mat- Office has announced a waiver name to be struck off the regis- shelf companies from the reg- ter was property registration in of the late filing penalty for ter. In a revised process, intro- ister, it has been decided to the electronic era. There are applications for strike-off duced on 12 October 2001, such waive the late filing penalty in two ways of accessing the con- received prior to close of busi- a statement must be accompa- respect of applications for vol- ference papers: ness on 2 August 2002. Its state- nied by the following: untary strike-off which com- • www.irlgov.ie/landreg – when ment reads: • All outstanding annual ply with all other conditions, you access this site, you go to ‘Section 311 of the Companies returns, including accounts, where applications are What’s new Act, 1963 (as amended) empow- and relevant filing fees, received prior to the close of • Alternatively, the Land ers the registrar of companies to including late filing penalty (if business on Friday 2 August Registry’s own website can be strike companies off the register any) 2002. accessed at www.landreg- Note, none of the other con- istry.ie and you then go to ditions will be waived and PROBATE, ADMINISTRATION & TAXATION Land Registry Information absolutely no further extension Publications website and then TAX GUIDE 2002 of time will be granted. to What’s new. An error occurred in the recently distributed Tax guide 2002. Applicants for voluntary strike- Practitioners should note that, in the stamp duties section, under off since 12 October 2001, who The committee is happy to pass ‘residential property’, the third column which reads ‘buyer rate’ have paid the late filing penalty, on this information to the pro- should read ‘first-time buyer rate’. will have the penalty refunded in fession and it has been indicated due course’. G

CRIMINAL LAW COMMITTEE SEMINAR THE COURTHOUSE*, SLIGO, SATURDAY 11 MAY 2002 *By kind permission of the Courts Service €120 per person (includes materials, morning coffee and lunch) Chairman: Judge Conal Gibbons

10am Registration 10.30am Morning session • Putting justice to the hazard: developments in BOOKING FORM the area of disclosure/discovery for criminal trials Name: Speaker: Niall Dolan, solicitor • Forensic science from an independent Firm: viewpoint Speaker: Keith Borer, consultant forensic scientist 12.45pm Lunch 2.15pm Afternoon session Please reserve place(s) • Section 4 of the Criminal Justice Act, 1984: detentions and Garda video-taping of interviews Cheque in the sum of attached (including on-site video demonstration) Speaker: Hugh Sheridan, state solicitor, Sligo • The Lion Intoxylizer 6000 and the Please forward booking form and payment (to be received no later than Intoximeter EC/IR: an update Thursday 9 May) to: Colette Carey, Solicitor, Criminal Law Committee, Speaker: Kevin Kilrane, solicitor Law Society of Ireland, Blackhall Place, Dublin 7. 4pm End of seminar

37 Law Society Gazette April 2002 Briefing LEGISLATION UPDATE: 12 JANUARY – 21 MARCH ACTS PASSED 2002 as the commencement ule to the Companies Act, 1963 22/2/2002 as the commence- State Authorities (Public date for the above sections as amended by the Companies ment date for the act Private Partnership (Forms) Order 1991 (SI Arrangements) Act, 2002 Capital Gains Tax (Multipliers) 161/1991) (annual returns). Diseases of Animals Act, 1966 Number: 1/2002 (2002) Regulations 2002 Prescribes a new form B73 and (Foot and Mouth Disease) Contents note: Makes provision Number: SI 1/2002 B73(a) for the purposes of sec- (Restriction on Imports from in relation to the functions and Contents note: Specify the multi- tion 127 of the Companies Act, the United Kingdom) (No 3) powers of certain state authori- pliers by reference to which 1963 as amended by section 60 Order, 2001 (Amendment) ties, in particular to enable them sums (such as the base cost of of the Company Law Enforcement Order 2002 to enter into public-private part- an asset and enhancement Act, 2001 (annual returns) Number: SI 6/2002 nership arrangements; also expenditure incurred on it) which Commencement date: 1/3/ empowers state authorities to are allowable as a deduction 2002 Diseases of Animals Act, 1966 form companies and to enter into from the consideration for the (Foot and Mouth Disease) joint ventures for the purpose of disposal of an asset in the year Companies (Forms) (No 2) Order (Restriction on Imports from a public-private partnership and of assessment 2002 are to be 2002 the United Kingdom) (No 3) gives state authorities the legal increased, under section 556(2) Number: SI 54/2002 Order 2001 (Second capacity necessary to contract of the Taxes Consolidation Act, Contents note: Prescribes a new Amendment) Order 2002 with the private financiers of pub- 1997, for the purpose of com- form B74 for the purposes of Number: SI 12/2002 lic-private partnerships; provides puting the chargeable gain accru- section 195 of the Companies that the functions of a state ing to a person on such a dis- Act, 1963 as amended by sec- Employment Equality Act, 1998 authority may be conferred under posal tion 91 of the Company Law (Code of Practice) the public-private partnership Enforcement Act, 2001 and for (Harassment) Order 2002 arrangement to the private sec- Civil Legal Aid Regulations the purposes of section 3A of the Number: SI 78/2002 tor, subject to the general control 2002 Companies (Amendment) Act, Contents note: Declares that the of the state authority Number: SI 8/2002 1982 as inserted by section 101 code of practice on sexual Date enacted: 21/2/2002 Contents note: Amend the Civil of the Company Law Enforcement harassment and harassment at Commencement date: 21/3/ Legal Aid Regulations 1996 (SI Act, 2001. The form sets out the work set out in the schedule to 2002 (per section 9(2) of the 273/1996) to give effect to additional statement that must the order is an approved code of act) revised financial criteria for eligi- be sent to the registrar by a per- practice for the purposes of the bility to obtain legal aid or advice. son who has been disqualified Employment Equality Act, 1998 Sustainable Energy Act, 2002 Also amend the Civil Legal Aid under the law of another state Commencement date: 8/3/ Number: 2/2002 Regulations 1996 to allow a from being appointed director or 2002 Contents note: Provides for the member of staff of the Civil Legal acting as a director or secretary establishment of the Sustainable Aid Board give a signed opinion of a company European Communities (Civil Energy Authority of Ireland, under as to whether a certificate Commencement date: 26/2/ and Commercial Judgments) the auspices of the minister for should be granted: previously 2002 Regulations 2002 public enterprise, which will gen- this opinion was given only by a Number: SI 52/2002 erally trade under the name solicitor Company Law Enforcement Act, Contents note: Set out the effect Sustainable Energy Ireland. The Commencement date: 16/1/ 2001 (Commencement) (No 4) on domestic legislation and pro- main functions of the authority 2002 Order 2002 vide for the administration of are to promote and assist envi- Number: SI 43/2002 council regulation (EC) no 44/ ronmentally and economically Companies Act, 1990 Contents note: Appoints 2001 of 22/12/2000 on jurisdic- sustainable production, supply (Commencement) Order 2002 1/3/2002 as the commence- tion and the recognition and and use of energy in all sectors Number: SI 57/2002 ment date for the following sec- enforcement of judgments in civil of the economy; to promote ener- Contents note: Appoints 28/2/ tions of the act: 1) paragraphs and commercial matters (Brus- gy efficiency and renewable 2002 as the commencement (a) and (c) of section 25, insofar sels I regulation). The Brussels I energy; and to minimise the envi- date for section 248 of the act as those paragraphs relate to regulation supersedes the 1968 ronmental impact relating to the investigations under section 8 of Brussels convention in the mem- production, supply and use of Companies Act, 1990 (Form the Companies Act, 1990 initiat- ber states of the European energy. The functions are prima- and Content of Documents ed on or after 1/3/2002; 2) sec- Community, other than Denmark. rily based on those outlined in Delivered to Registrar) tion 107 The Jurisdiction of Courts and the green paper on sustainable Regulations 2002 Enforcement of Judgments Act, energy (1999) Number: SI 39/2002 Company Law Enforcement Act, 1998 shall, except as provided in Date enacted: 27/2/2002 Contents note: Prescribe the 2001 (Commencement) (No 5) article 68 of the council regula- Commencement date: 27/2/ form, content and manner of Order 2002 tion, cease to apply as between 2002. Establishment day order completion of documents Number: SI 53/2002 the state and member states to be made (per section 3 of the deposited with the Companies Contents note: Appoints 1/3/ Commencement date: 1/3/ act) Registration Office 2002 as the commencement 2002 Commencement date: 1/3/ date for sections 40, 41, 42, SELECTED STATUTORY 2002 84(b), 91(a) and 101 of the act Extradition (European Union INSTRUMENTS Conventions) Act, 2001 ACC Bank Act, 2001 (Sections Companies (Forms) Order 2002 Customs and Excise (Mutual (Commencement) Order 2002 6, 8, 10, 11(2) and 12) Number: SI 38/2002 Assistance) Act, 2001 Number: SI 85/2002 (Commencement) Order 2002 Contents note: Substitutes a (Commencement) Order 2002 Contents note: Appoints 20/3/ Number: SI 69/2002 new form B1 for the form out- Number: SI 59/2002 2002 as the commencement Contents note: Appoints 28/2/ lined in part II of the fifth sched- Contents note: Appoints date for the act

38 Law Society Gazette April 2002 Briefing

Industrial Relations Act, 1990 3(3) and 5 of schedule 10; Mental Health Act, 2001 Commencement date: 11/3/ (Code of Practice detailing 17/7/2002 for section 5(1) of (Establishment Day) Order 2002 Procedures for addressing and part 1 of schedule 3 to the 2002 Bullying in the Workplace) act for the purposes of the Number: SI 91/2002 Road Traffic (Construction, (Declaration) Order 2002 repeal of local government legis- Contents note: Appoints 5/4/ Equipment and Use of Vehicles) Number: SI 17/2002 lation set out in part 1 of the 2002 as the establishment day (Amendment) (No 2) Contents: Declares that the code schedule to this order (SI for the purposes of part 3 of the Regulations 2001 of practice set out in the schedule 65/2002); 17/7/2002 for sec- act Number: SI 93/2002 to the order is a code of practice tion 5(2) of and part 2 of sched- Contents note: Prohibit the use for the purposes of the Industrial ule 3 to the act for the purposes Mental Health Act, 2001 of a hand-held mobile phone or Relations Act, 1990 of the revocation of articles 36 (Sections 1 to 5, 7, 31 to 55) similar communications appara- Commencement date: 25/1/ and 38 of the schedule to the (Commencement) Order, tus while driving a mechanically- 2002 Local Government (Application of 2002 propelled vehicle Enactments) Order 1898 (SR & O Number: SI 90/2002 Commencement date: 19/3/ Local Government Act, 2001 1898/1120); 1/5/2004 for Contents note: Appoints 5/4/ 2002 (Commencement) Order 2002 paragraph 3(3) of schedule 10 to 2002 as the commencement Number: SI 65/2002 the act date for the above sections Safety, Health and Welfare at Contents note: Appoints the fol- Work (Chemical Agents) lowing commencement dates for Local Government Act, 2001 Ordnance Survey Ireland Act, Regulations 2001 specified provisions of the Local (Meetings) Regulations 2002 2001 (Establishment Day) Number: SI 619/2001 Government Act, 2001 (mainly Number: SI 66/2002 Order 2002 Contents note: Give effect to relating to local authority meet- Contents note: Provide for mat- Number: SI 73/2002 council directive 98/24/EC of ings and committees, including ters relating generally to meet- Contents note: Appoints 4/3/ 7/4/1998 on the protection of repeals): 11/3/2002 for section ings of local authorities, includ- 2002 as the establishment day the health and safety of workers 5(1) of and part 1 of schedule 3 ing public and media access to for the purposes of the act from the risks related to chemi- to the act for the purposes of the their committee meetings cal agents at work, and give repeal of section 4 of the City Commencement date: 17/7/ Planning and Development effect to commission directive and County Management 2002 Regulations 2002 2000/39/EC of 8/6/2000, (Amendment) Act, 1955, insofar Number: SI 70/2002 establishing a first list of indica- as that section is not already Lottery Prizes Regulations 2002 Contents note: Modify the tive occupational exposure limit repealed; 1/5/2002 for section Number: SI 29/2002 scales of location maps to values in implementation of 19 and for section 5(1) of and Contents note: Increase the limit be used in areas other than council directive 98/24/EC, part 1 of schedule 3 to the act on the total value of prizes for lot- built-up areas. Also modify the through an approved code of for the purposes of the repeal of teries held under section 28 of details to be indicated on practice section 11 of the Local the Gaming and Lotteries Act, location maps to be submitted Commencement date: 19/12/ Government Act, 1994; 1956 from €19,046.07 with a planning application. 2001. G 17/7/2002 for part 6 and part 7 (£15,000) to €20,000 Amends the Planning and of the act and for schedule 10 to Commencement date: 1/3/ Development Regulations 2001 Prepared by the the act other than paragraphs 2002 (SI 600/2001) Law Society Library

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39 Law Society Gazette April 2002 LAW AGENCY SERVICES ENGLAND & WALES WHERE THERE’S A WILL THIS IS THE WAY… SOLICITORS Established 1825

When a client makes a will in favour of the Society, it would be appreciated if the bequest were stated in the following words: “I give, devise and bequeath the sum of X pounds to the Irish •Fearon & Co specialise in acting for Irish residents in Cancer Society Limited to be applied by it for any of its the fields of probate, property and litigation charitable objects, as it, at its absolute discretion, may decide.” • Each solicitor is available by direct line, fax or e-mail. Conferences can be easily arranged All monies received by the Society are expended within the •Fearon & Co is committed to the use of information Republic of Ireland. technology to help improve both the quality and speed of service for the benefits of all clients both at “Conquer Cancer Campaign” is a Registered Business Name home and abroad and is used by the Society for some fund-raising purposes. • The firm’s offices are within half an hour of London The “Cancer Research Waterloo station and within a short travel from both Advancement Board” Gatwick and Heathrow airports, with easy access from the London orbital M25 motorway allocates all Research • No win, no fee arrangements are available in Grants on behalf of the appropriate cases Society. PHONE NOW FOR A BROCHURE Westminster House 12 The Broadway, Woking, Surrey GU21 5AU England Fax: +44 (0)1483 725807 Email: [email protected] www.fearonlaw.com 5 Northumberland Road, Dublin 4. Tel: (01) 668 1855 LITIGATION PROPERTY PROBATE 15 Bridge Street, Cork. Tel: (021) 4509 918 Martin Williams John Phillips Francesca Nash Tel: +44 (0)1483 776539 Tel: +44 (0)1483 747250 Tel: +44 (0)1483 765634

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SPANISH LAWYERS Director: Sheila Kavanagh RAFAEL BERDAGUER Experts in ABOGADOS Overnight Transcripts

PROFILE: FIELD OF PRACTICES: Specialists in panish Lawyers Firm focussed eneral Practice, Administra- Court Reporting Son serving the need of the for- Gtive Law, Civil and Commercial eign investors, whether in compa- Law, Company Law, Banking and Medical Cases / Arbitrations ny or property transactions and all Foreign Investments in Spain, Conferences / Board Meetings attendant legalities such as ques- Arbitration, Taxation, Family Law, tions of immigration-naturalisa- International Law, Immigration tion, inheritance, taxation, and Naturalisation, Litigation in all Contact: accounting and bookkeeping, Courts. Hillcrest House, planning, land use and litigation in all Courts. Dargle Valley, Bray, Co. Wicklow. Telephone/Fax: (01) 286 2184 Avda. Ricardo Soriano, 29, or Edificio Azahara Oficinas, 4 Planta, 29600 Marbella, Malaga, Spain 4b Arran Square, Dublin 7 Tel: 00-34-952823085 Fax: 00-34-952824246 Telephone: (01) 873 2378 e-mail: [email protected] Briefing Solicitors’ Benevolent Association 138th report and accounts Year 1 December 2000 to 30 November 2001 he Solicitors’ Benevolent not been increased for some time, those who may need personal or TAssociation, founded in 1863, despite rising costs. Also, in sev- professional advice. DIRECTORS AND is the profession’s voluntary chari- eral instances increased needs The directors are grateful to OTHER INFORMATION table body. It consists of members are apparent in cases where bene- both law societies for their sup- of the profession throughout ficiaries are of advanced age. For port and, in particular, wish to Directors Ireland who contribute to our these reasons, the directors par- express thanks to Ward McEllin, Thomas A Menton (chairman) funds, and its aim is to assist ticularly welcome higher levels of past president of the Law Society John Sexton (deputy chairman) members or former members of subscriptions, donations and lega- of Ireland, John Neill, past presi- Sheena Beale, Dublin the profession and their spouses, cies and the general support of dent of the Law Society of Desmond Doris, Belfast dependants and families who are the profession. Northern Ireland, Ken Murphy, Felicity M Foley, Cork in need. The association also pro- The rules of the association director general, John Bailie, chief John Gordon, Belfast vides advice and financial assis- were amended at a special gener- executive and all the personnel of Colin Haddick, Newtownards tance on a confidential basis and al meeting on 5 July 2001, in order both societies. Niall D Kennedy, Tipperary functions independently of both law for the association to retain its I wish to express particular Mary H Morris, Swinford societies. charitable status. Copies of the appreciation to all those who con- John M O’Connor, Dublin The amount paid out during the new rules can be obtained from tributed to the association when Sylvia O’Connor, Wexford year in grants was IR£245,816. the secretary or any of the direc- applying for their practising certifi- Brian K Overend, Dublin Currently, there are 54 beneficiar- tors. There are currently 15 direc- cates, to those who made individ- ies in receipt of regular grants and tors, three of whom reside in ual contributions and to the Colm Price, Dublin approximately one third of these Northern Ireland, and they meet following: David Punch, Limerick are themselves supporting spous- monthly in the Law Society’s • The Law Society Andrew F Smyth, Dublin es and children. offices, Blackhall Place. They meet • Northern Ireland Law Society The directors anticipate that, at Law Society House, Belfast, • Dublin Solicitors’ Bar Associa- Trustees (ex officio directors) particularly in view of the increas- every other year. The work of the tion Brian K Overend ing number of families with young directors, who provide their servic- • Belfast Solicitors’ Association John M O’Connor children being helped, there will be es entirely on a voluntary basis, • Faculty of Notaries Public in Andrew F Smyth a need for increased assistance in consists in the main of reviewing Ireland the coming years. Again, in a num- applications for grants and approv- • Limavady Solicitors’ Associa- Secretary ber of cases, the directors are con- ing new applications. The directors tion Geraldine Pearse scious of the fact that grants have also make themselves available to •Tipperary and Offaly Bar Asso- ciation Bankers •Mayo Bar Association AIB plc RECEIPTS AND PAYMENTS ACCOUNT • Southern Law Association 37/38 Upper O’Connell Street Dublin 1 YEAR ENDED 30 NOVEMBER 2001 • County Galway Solicitors’ Bar Association 2001 2000 •West Cork Bar Association First Trust RECEIPTS • Kerry Law Society. 31/35 High Street IR£ IR£ Belfast BT1 Subscriptions 189,595 187,454 To cover the ever greater Donations 29,975 19,664 demands on the association, Stockbrokers Investment income 35,116 34,799 additional subscriptions are more Bloxham Stockbrokers Bank interest 2,980 2,640 than welcome as, of course, are 2-3 Exchange Place 257,666 244,557 legacies. Subscriptions and dona- IFSC Dublin 1 PAYMENTS tions will be received by any of the Grants (245,816) (215,170) directors or by the secretary, from Bank charges (1,537) (1,322) whom all information may be Accountants Administration expenses (17,006) (15,839) obtained at 73 Park Avenue, Deloitte & Touche Deficit on movements in investments – (528) Dublin 4, and I would urge all Chartered Accountants (264,359) (232,859) members of the association, when Deloitte & Touche House making their own wills, to leave a Earlsfort Terrace (DEFICIT)/SURPLUS legacy to the association. You will Dublin 2 FOR THE YEAR BEFORE find the appropriate wording of a SPECIAL EVENTS PROCEEDS (6,693) 11,698 bequest at page 26 of the Law Offices of the association Lawyers diaries and christmas cards (369) 16,910 directory and on page 11 of the Law Society of Ireland Irish conveyancing precedents 2002 Gazette yearbook and diary. Blackhall Place publication 4,678 – I would like to thank all the Dublin 7 (DEFICIT)/SURPLUS (2,384) 28,608 directors and the association’s FOR THE YEAR secretary, Geraldine Pearse, for The Law Society of Northern BEFORE LEGACIES their valued hard work, dedication Ireland Legacies 165,016 111,418 and assistance during the year. Law Society House 90/106 Victoria Street SURPLUS FOR THE YEAR 162,632 140,026 Thomas A Menton, Belfast BT1 3JZ chairman

41 Law Society Gazette April 2002 Briefing Personal injury judgment

Negligence – duty of care – purchase of cotton dress – dress catching fire – no chemical fire-retardant treat- ment on dress – whether retailer liable – High Court dismissed claim of mother – appeal to Supreme Court on basis of inadequacy of fire warning – argument about whether warning was too bland

CASE Rebecca Cassells (a minor), suing by her mother and next friend, Martina Cassells v Marks and Spencer plc, Supreme Court (Murphy, Murray and McGuinness JJ), judgment of McGuinness J of 30 July 2001. THE FACTS ebecca Cassells, born 27 Rebecca and her mother entered tock on the left side, the back, one-and-a-half inches wide by RSeptember 1989, lived with the living room, Mrs Cassells lit the left armpit and left upper two inches long, contained on her mother in Navan. Prior to the fire, which was in a typical arm. one side a warning in large red late 1994, the family lived in open domestic fireplace. There The dress which Rebecca was letters that read ‘in the interest Brixton, London. In September was no fire guard. Rebecca went wearing was made of 100% cot- of safety, it is advisable to keep 1994, Martina Cassells, mother to turn the television on as her ton material. This cotton mate- your child away from fire’. The of Rebecca, purchased a cotton mother left the room briefly to rial had not been treated with a same warning was repeated in day dress for Rebecca at the go upstairs. The mother was out chemical fire retardant. On a small red capital letters on the retail store of Marks and of the room for about three label on the dress there was a other side of the tag in English Spencer at Brixton. The dress minutes. On her way down- warning in red, ‘keep away from and three other languages. had a full flared skirt. As stairs, the mother heard fire’, in English and three other Mrs Cassells issued High Rebecca was small for her age, Rebecca screaming. She ran languages. The label was a per- Court proceedings, claiming the skirt reached to within three downstairs and found the child manent part of the dress. that Marks and Spencer was to four inches of her ankles. in the kitchen with the back of The normal practice of negligent in selling and market- At 5.30pm on 24 May 1995, her dress in flames. Mrs Cassells Marks and Spencer was to ing the dress in question with- Rebecca and her mother put her daughter into the attach to the dress two sizeable out having it treated with a returned home to their house in kitchen sink and extinguished cardboard tags which hung chemical fire retardant. It was Navan. Rebecca was wearing the flames by turning on the below the hem of the dress and also contended by Mrs Cassells the dress with a light cardigan cold tap. Rebecca suffered were intended to be removed that the dress did not contain an and normal underclothes. She severe and extensive burns after purchase. One of these adequate warning of the dangers complained she was cold. When involving the upper leg and but- tags, which was approximately of fire. THE HIGH COURT he matter came before Barr burning, the child screamed have fitted the fire guard after Cassells’s claim. TJ of the High Court, who and ran towards the kitchen she lit the fire and that chil- Mrs Cassells appealed to the delivered judgment on 25 where she was rescued by her dren should not be left unac- Supreme Court. There was no March 1999. In his judgment, mother a few seconds later. companied in a room with an appeal from the decision of Barr J stated that the probabil- Barr J stated that it had been open fire. Mrs Cassells had Barr J on the fire retardant ity was that, having turned on established that a cotton mate- not intended to be out of the issue. Mrs Cassells appealed the television, Rebecca went rial comprised in the dress was room for long. Barr J rejected only on the issue of the inade- over to the fire to warm herself highly flammable and a source the contention that Marks quacy of the fire warning given and stood with her left side of immediate danger for a child and Spencer was negligent in by Marks and Spencer that the nearest the flames as she to wear if exposed to fire. selling and marketing the dress should be kept away from watched the television. He stat- In the High Court, Barr J dress in question without hav- fire. It was claimed that the ed that the hem of her flared accepted that in all probability ing it treated with a chemical High Court was wrong in law skirt on that side caught fire the warnings referred to earlier fire retardant. He also reject- and on the facts in holding that, and the flames spread rapidly had been appended to the dress, ed the argument on behalf of despite the finding that the cot- upwards. As soon as she as contended by Marks and Mrs Cassells that the dress ton used in Rebecca’s dress was became aware that her dress Spencer. did not contain an adequate highly flammable, the warning was on fire, or at least when she Mrs Cassells conceded in the warning of the dangers of fire. by Marks and Spencer was ade- began to feel pain from the High Court that she should Barr J dismissed Mrs quate.

42 Law Society Gazette April 2002 Briefing THE SUPREME COURT

he case came before the that Marks and Spencer had either in Ireland or the United does not warn that the material TSupreme Court composed ‘voluntarily adopted and is Kingdom for children’s day- burns rapidly, one might think of Murphy, Murray and complying with a minimum wear clothes, of whatever that there was really no danger McGuinness JJ, with standard of safety vis-à-vis fire material, to meet any particu- in allowing the garment to McGuinness J delivering risk relating to children’s day- lar flammability standard or to come in contact with a naked judgment on 30 July 2001. In wear which leads the field in carry any label warning against flame? Is it suggested that a the Supreme Court judgment, the retail trade in the UK and fire. In the case of Rebecca’s child dressed in material which the court reviewed the facts Ireland’. dress, Marks and Spencer of its burns more slowly, but is and the decision of the High Counsel for Rebecca own volition provided a per- nonetheless flammable, may Court. McGuinness J noted Cassells submitted in the High manent label carrying a warn- safely be exposed to unprotect- that there had been consider- Court that, in the circum- ing. ed fire, or in that case, a “keep able technical evidence in the stances of the case, the warn- away from fire” warning may High Court as to the testing ings provided by Marks and Duty of care be ignored?’ of materials for flammability Spencer were inadequate. It Of the cases open to the court McGuinness J noted that and as to statutory and other was argued that the warnings by counsel on both sides, different materials had differ- regulations in England and were ‘mere platitudes’ and did McGuinness J noted that the ent properties when exposed to Ireland covering both the not tell purchasers anything two most relevant were Duffy fire; it was well known that flammability of materials and they did not already know. It (a minor) v Patrick Mooney and some emit fumes, others melt the need for warning labels on was argued that the light cot- Dunnes Stores (Dundalk) and may adhere to the flesh garments. Certain regulations ton material was very danger- Limited (Supreme Court, unre- causing severe burns, and oth- as to flammability applied ous if exposed to fire because ported, 23 April 1988) and ers – like cotton – burn rapidly. only to nightwear, and it of the rapidity and acceleration O’Byrne (a minor) v Brendan The judge noted that when a appeared there were no regu- of the flame along the fabric. Gloucester and others (Supreme purchaser was presented with a lations of a particular type Counsel for Rebecca referred Court, unreported, 3 warning label that read ‘keep relating to children’s daywear. to the case of O’Byrne v November 1988). The court away from fire’, the only logical It was noted by the Gloucester (Supreme Court, noted that in both these cases reaction is to do precisely that, Supreme Court that the High unreported, 3 November children were badly burnt as a regardless of the nature of the Court had observed that 1988), where, in similar cir- result of their clothes catching particular garment or the mate- Marks and Spencer was one of cumstances, Finlay CJ in his fire. However, in neither case rial of which it was made. The the leading retailers of chil- judgment suggested the did the garment in question court noted that, to her credit, dren’s clothing both in the attaching to the garment in bear any label whatsoever Mrs Cassells accepted that she United Kingdom and Ireland, question of ‘a simple warning warning of the dangers of fire. had seen the warning label and and their clothing had ‘long that it was dangerous if In both cases, the court accept- knew of the danger of an enjoyed a high reputation for exposed to a naked flame and ed the need for such a label and unguarded fire. quality and value’. The High would burn rapidly’. It was that the failure to provide a Court had accepted that suggested by counsel that this warning label was a breach of Tragic accident Marks and Spencer had a wording was much more effec- the retailer’s duty of care. In The Supreme Court stated that regard for safety which tive than that the ‘bland’ warn- the present case, Marks and it was tragic that Rebecca exceeded that displayed by ing in the present case. Spencer acknowledged the Cassells had suffered serious many of their competitors in Counsel for Marks and duty of care owed to the pur- injury. Unfortunately, the court the clothing industry. Spencer submitted that the chaser. It also accepted that, observed that it was a fact of life warning was sufficiently clear. without the provision of the that, in spite of reasonable care Standard of flammability It was also submitted that the warning label, it would be in on the part of those concerned, McGuinness J stated that, evidence showed that some breach of this duty of care. such as retailers and parents, during the course of the trial, 200,000 children’s dresses of McGuinness J stated that she such tragic accidents do hap- 18 children’s dresses made of the style in question had been found it somewhat difficult to pen. McGuinness J joined with cotton and other comparable sold by Marks and Spencer follow the logic of the argu- Barr J in the High Court in materials that had been pur- with 60,000 of the dresses sold ment asserted on behalf of admiring the way in which chased from Marks and in that season alone. The pres- Rebecca Cassells that the Rebecca Cassells and her Spencer’s major competitors ent case was the only case warning ‘keep away from fire’ mother had dealt with a sad sit- were introduced in evidence. known to Marks and Spencer merely ‘tells people what they uation. Nevertheless, the All had been tested by inde- where a child wearing one of know already’ and is too bland. Supreme Court dismissed the pendent experts. None con- these dresses had been injured The warning clearly indicated appeal and upheld the decision formed to the Marks and by fire. It was argued that this that the garment was made of of the High Court judge hold- Spencer’s standard of flamma- demonstrated that Marks and flammable material; otherwise ing that Marks and Spencer was bility for children’s daywear Spencer’s fire warning was in there would be no need for the not liable. G and none had any fire warning fact adequate and effective. warning. label. It was noted that Barr J McGuinness J stated that The judge added: ‘Is it sug- This case was summarised by solic- in the High Court had stated there was no requirement gested that because the label itor Dr Eamonn Hall.

43 Law Society Gazette April 2002 Briefing Update

News from Ireland’s on-line legal awareness service Compiled by Robert Forde BL for FirstLaw

CRIMINAL sought to vary the terms of bail Mr Justice Herbert refused the offence under the other sec- and had applied to Mr Justice application. Notwithstanding tion. On behalf of the appel- Bail, delay, res judicata O’Higgins, who decided that the apparent inconsistencies, it lant, it was argued that the Appeal – rape charge – res judica- the matter warranted a complete was still a matter for the jury to respondent had been lawfully ta – delay – whether change of cir- re-hearing. Mr Justice Smyth in determine. It was not just a arrested, no issue regarding the cumstance had occurred sufficient the High Court revoked bail on borderline case. A mild direc- taking of the specimens was to grant bail the basis that the applicant tion would be given to the jury raised and the prosecution was The applicant had sought bail, would not stand trial if admitted that, given the inconsistencies, entitled to put either charge to which had been refused in the to bail. it should only convict after the respondent. It was submit- High Court. The applicant had The Supreme Court allowed assessing the complainant’s evi- ted that the evidence before the been charged with rape offences the appeal. Originally, given the dence with great care. court supported a charge of and at a previous hearing there circumstances of the applicant, DPP v Nolan, High Court, either section 49(2) or section had been evidence given of bail had been granted on quite Mr Justice Herbert, 50(2). The District Court judge threats and intimidation, and stringent conditions. There had 27/11/2001 [FL4802] accepted the argument made bail was refused. The applicant been no appeal against the order on behalf of the respondent and now appealed against the refusal of Mr Justice Quirke and there Drink driving, powers dismissed the charge against of bail and contended that the was no suggestion that the of arrest him. The District Court judge trial date was a considerable wrong principles had been Road traffic – drink driving – stated a case for the opinion of time away. The applicant also applied. Settled jurisprudence whether accused arrested under the High Court as to whether indicated a willingness to reside precluded one High Court correct section – whether person he was correct in law in dis- elsewhere, away from the com- judge from reopening the terms arrested under section 49(8) of the missing the charge. plainant. of bail granted by another High Road Traffic Acts, 1961-95 Mr Justice Finnegan The Supreme Court (Keane Court judge unless there had could be charged with offence answered the case stated in the CJ delivering judgment) dis- been a change in circumstance. under section 50 of the acts – negative, holding that if a man missed the appeal, holding that The order of the High Court Road Traffic Act, 1961 – Road was to be deprived of his free- the fact that there would be a revoking bail was wrong in law Traffic Act, 1994 dom he was entitled to know delay in bringing the applicant and the matter would be remit- The respondent had been the reason why. However, an to trial was not a change of cir- ted to the High Court to deter- requested by a garda to give a arrest did not become wrongful cumstance. The undertaking to mine on what conditions the breath sample on the suspicion merely because a man was reside elsewhere was not a applicant should be admitted to that he had consumed alcohol. arrested for one felony and was change in circumstance. The bail. The sample was positive and subsequently charged with appeal would be dismissed and DPP v Horgan, Supreme the garda informed the respon- another one. The garda had the order of the High Court Court, 21/12/2001 [FL4759] dent that it was his opinion that formed the opinion that the affirmed. the respondent had committed respondent had consumed DPP v Doherty, Supreme Dismissal of proceedings, evi- an offence under section 49 of intoxicating liquor and had so Court, 30/07/2001 [FL4734] dence the Road Traffic Act, 1961 and informed the respondent. The Practice and procedure – evidence – was arresting him pursuant to respondent furnished a speci- Bail, fair procedures sexual offences – application that that section. The respondent men of his breath which proved Jurisdiction of High Court – case be withdrawn from jury – role was in fact later charged under positive. The respondent was whether bail correctly revoked – of jury – right to fair trial – section 50 of the act. In the told that he was being arrested whether change of circumstance whether case should be left to jury District Court, the solicitor on for drink driving. It was quite had occurred The accused had been charged behalf of the respondent con- clear that the arrest was lawful. The applicant had been charged with alleged rape. At the conclu- tended that the state was not These facts together were suffi- in respect of the death of a sion of the case for the prosecu- entitled to prosecute a section cient to constitute the crime woman. Originally, the appli- tion, an application was made 50 charge when the respondent with which he was charged, cant had been granted bail by that the case be withdrawn from had been arrested under sec- which was an offence under the Mr Justice Quirke. Bail was the jury and a verdict of not tion 49 of the act. It was argued Road Traffic Acts, 1961-1994. It granted on the basis that a cash guilty be directed. It was sub- that there were two distinct was immaterial that he was in lodgement of £10,000 be made mitted that the quality of the powers of arrest – one set out fact arrested pursuant to the as well as two independent state’s evidence was poor and in section 49(8) and the other statutory power of arrest con- sureties of £20,000, together unreliable, owing to inconsis- in section 50(10). It was sub- ferred by section 49(8) of the with signing on conditions at a tencies in the evidence given by mitted that neither section acts. The scheme of the Road garda station. The applicant had the complainant. gave power to arrest for an Traffic Acts was also relevant.

44 Law Society Gazette April 2002 Briefing

Had the respondent in fact been DISCOVERY The application for the dis- ceedings for legal separation charged under section 50 of the missal of the plaintiff’s action on had been concluded. acts, he could have been con- Practice and procedure the basis of an alleged failure to Mr Justice Butler refused the victed under section 49 of the Litigation – notice for particulars – comply with an order of discov- relief sought, holding that there act and vice versa. The district damages – whether order of discov- ery would be refused. The order was no connection between the judge was not correct in dis- ery complied with – whether plain- of discovery was extremely wide applicant being forced to leave missing the charge. tiff should furnish further particu- ranging and covered a huge her home and the delay in the DPP v Moloney, High Court, lars of claim quantity of correspondence. judicial separation proceedings, Mr Justice Finnegan, The case concerned allegations The court had undoubtedly a as legal aid was available to her 20/12/2001 [FL4820] by the plaintiff that the defen- jurisdiction to strike out pro- under the private practitioner dants, as members of the ceedings over non-compliance scheme. The delay suffered by Sentencing Church of Scientology, put with a court order. The plaintiff the applicant in the processing Drug offences – appeal against sen- undue pressure on her to pay had maintained that she had of her application for legal aid tence – statutory guidelines – for and attend various courses. complied with the order of dis- was the ordinary inconvenience whether minimum sentence appro- The plaintiff alleged that the covery. The High Court judge caused by any such delay. priate – whether sentence unduly actions of the defendants had had correctly declined to dis- Orders of mandamus could not harsh – Misuse of Drugs Act, breached the plaintiff’s consti- miss the plaintiff’s proceedings be obtained as the proceedings 1977, sections 15(A) and 27(3) – tutional rights to bodily integri- and the defendants’ appeal for legal separation were moot. Criminal Justice Act, 1999, sec- ty, mental and psychological would be dismissed. The language of section 5(1) of tions 4 and 5 integrity and personal privacy. Johnston v Church of the Civil Legal Aid Act, 1995 was The applicant had pleaded guilty The defendants denied the Scientology, Supreme Court, plain and obvious and required in the Circuit Court to five claims of the plaintiff and 07/11/2001 [FL4752] no special interpretation. The counts of being in possession of brought two motions to the board was obliged to provide, controlled drugs for the purpose High Court, one seeking fur- within its resources and subject of sale or supply contrary to the ther and better particulars of FAMILY to other provisions of the act, Misuse of Drugs Act, 1977. The the plaintiff’s claim and the legal aid to persons who satis- applicant was sentenced to six other seeking to have the plain- Delay, legal aid fied the requirements of the act. years’ imprisonment in respect tiff’s claim dismissed for an Judicial review – legal aid – fami- The words simply meant that of one of the counts and also alleged failure to comply with ly law – delay – damages – statuto- legal aid shall be provided with- received a number of lesser sen- an order of discovery. Both ry interpretation – Legal Aid in the board’s resources and that tences. An application was motions were refused in the Board – whether board failed to was precisely what the board did brought for leave to appeal on High Court and the defendants process request of applicant with in this case. The board had a the ground that the sentences appealed to the Supreme Court. reasonable expedition – whether method of dealing with cases in were unduly severe. The Supreme Court held that it respondent in breach of statutory a certain order of priority and The Court of Criminal was most unfortunate that an duty – Civil Legal Aid Act, 1995 within that scheme the appli- Appeal dismissed the applica- action begun in December 1995 The applicant had applied to cant was given equal treatment tion, holding that section 27 of was pursuing a laborious and the legal aid board for legal aid to all other applicants. The the Misuse of Drugs Act, 1977 protracted course through the in connection with an applica- relief sought was refused. provided for a mandatory mini- courts. The issues in the case tion for judicial separation. By Kavanagh v the Legal Aid mum sentence of ten years’ were relatively straightforward letter, the board indicated that Board and Others, High imprisonment. The Circuit and did not require the on account of the demand for Court, Mr Justice Butler, Court judge had assessed a sen- immense panoply of particulars legal services it could not 24/10/2001 [FL4793] tence of 15 years and had and of discovery that had so far process her application. The adjusted this downwards taking issued. However, some of the applicant’s request was not Divorce, domicile into account a plea of guilty and legal issues involved were novel processed until almost 20 Recognition of foreign divorce – the fact that it was a first and the defendants were enti- months later. While awaiting preliminary issue – whether offence. This resulted in a sen- tled in some respects to further the outcome of the application respondent had discharged onus of tence of six years. The Circuit particulars of the claim being for legal aid, the applicant was proof that he had relinquished Court judge had felt that it was alleged against them. It ordered forced to leave the family home domicile of origin – whether for- inappropriate to increase the that further particulars should because of a violent incident. eign divorce entitled to recognition sentence to the statutory mini- be furnished regarding the The applicant sought various – Judicial Separation and mum, but had taken into alleged pressure that was declarations, including orders of Family Law Reform Act, 1989 – account the existence of a statu- brought on the plaintiff to sub- mandamus, to the effect that the Family Law Act, 1995 – Family tory minimum sentence and was scribe to other courses. The respondent was obliged to con- Law (Divorce) Act, 1996 – bound to do this. The court was plaintiff should indicate what sider her application for legal Family Law (Maintenance of unable to detect any error in form the alleged pressure took. aid within a reasonable time and Spouses and Children) Act 1976 principle on the part of the In other respects, the particulars that the board had failed to – Domicile and Recognition of Circuit Court judge and the sought were matters relating to prosecute her proceedings for Foreign Divorces Act, 1986 application would be refused. evidence which the plaintiff judicial separation with reason- The applicant had sought a DPP v Duffy, Court of would give at trial. To a certain able expedition. The respon- decree of judicial separation Criminal Appeal, 21/12/2001 extent, the defendants’ appeal in dents argued that the proceed- pursuant to the Judicial [FL4796] this matter would be allowed. ings were now moot as the pro- Separation and Family Law

45 Law Society Gazette April 2002 Briefing

Reform Act, 1989 and other choice in the Netherlands. The Domicile and Recognition of Foreign door (where the accident ancillary reliefs. It was ordered applicant disputed the respon- Divorces Act, 1986. The question occurred) did not constitute a that the issue of whether a dent’s assertion and contended was whether foreign divorces danger or a hazard. Further- divorce obtained in the that the respondent’s move to were regulated by the common more, it was submitted that the Netherlands was entitled to the Netherlands was no more law or were they regulated by proximate cause of the accident recognition in this state should than a career change and was statute. With the enactment of was that the plaintiff failed to be tried as a preliminary issue. motivated by the tax regime in section 5 of the 1986 act, the look where she was going. The respondent claimed that Ireland and that he had returned rules relating to recognition of Mr Justice Lavan found in the divorce obtained in the to Ireland to discuss the job foreign divorces passed from the favour of the plaintiff, holding Netherlands was entitled to which his employer (an interna- common law and thereafter were that there had been a danger and recognition in the state on the tional firm) would give him in regulated by statute. Thereupon a hazard present due to the state basis that on the date when the Ireland. The applicant stated the court’s right to alter the rules of the premises. The plaintiff’s divorce was obtained he was that she had initiated divorce ceased. Residence was not a basis actions in talking to her family domiciled in that jurisdiction. proceedings in the Netherlands for recognition under the act. and walking through the door The respondent also claimed as she needed sufficient funds to Accordingly, the respondent was was an act of momentary inad- that the divorce was entitled to keep herself and the children. not entitled to a declaration that vertence. It would be unreason- recognition on the basis of resi- She applied for interim mainte- the divorce obtained in the able to make a finding of contrib- dence. Both parties had a domi- nance in the Netherlands and it Netherlands was entitled to utory negligence. A total of cile of origin in Ireland and had was a condition of such an order recognition in this state. £41,200 in damages would be married and set up the family that the applicant prosecute the DT v FL, High Court, Mr awarded. home in Dublin. Some years case to seek a divorce. Justice Morris, 23/11/2001 Sheehy v Devil’s Glen Tours, later the family moved to the Mr Justice Morris stated that [FL4839] High Court, Mr Justice Lavan, Netherlands when the respon- the respondent had not acquired 10/12/2001 [FL4730] dent was appointed to a position a domicile of choice in the there. Both parties learnt and Netherlands. The respondent LAND LAW spoke Dutch fluently. Their became fond of living in the LANDLORD AND TENANT children were enrolled in pri- Netherlands and was content to Negligence, occupier’s mary schools. Differences arose remain there for the purposes of liability Contract, land law in the marriage, and the appli- his work. However, the respon- Personal injuries – negligence – Equity – option to purchase – specif- cant and the children returned dent had not formulated any damages – whether defendant failed ic performance – whether option to Ireland. The applicant intention of abandoning Ireland to take reasonable care to ensure could be exercised – whether vendor believed that the respondent was as his domicile of origin. plaintiff did not suffer injury – had wrongfully refused to complete – in negotiation with his employer Accordingly, on the date on whether plaintiff guilty of contribu- whether just and equitable to grant with a view to returning to which the divorce was obtained tory negligence – Occupier’s relief sought Ireland. The respondent con- in the Netherlands, the respon- Liability Act, 1995 The plaintiff had negotiated a tended that the idea of returning dent was domiciled in Ireland. The plaintiff had been injured in lease with his landlords (the sec- to work in Ireland was one of The court was satisfied that the a ‘trip and fall’ accident at an ond- to seventh-named defen- many options he considered and respondent, being aware of the equestrian centre and as a result dants) for the rental of a particu- did so only in the hope that it divorce proceedings, availed of had sued the defendant, claiming lar premises. The lease provided might save the marriage and that their existence to settle up out- that the defendant had failed to that a non-returnable deposit was it was always his intention to standing matters. It was common take reasonable care to ensure to be paid along with an option remain in the Netherlands. The case that a Dutch court would that the plaintiff had not suffered to purchase the premises. The respondent contended that he accept jurisdiction based on the injury within the meaning of the tenant paid the deposit and had severed his connections residence of one of the parties. Occupier’s Liability Act, 1995. On signed a standing order for the with Ireland and that he now The divorce was granted after behalf of the defendant, it was payment of rent. During the cur- had acquired a domicile of the coming into operation of the submitted that the saddle of the rency of the lease, the landlords

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46 Law Society Gazette April 2002 Briefing sold their interest to the first- option were quite astonishing. an accident at his workplace and dants argued that any cause of named defendant (Albion). The None of the grounds had the had brought a claim for damages action of the plaintiffs in con- plaintiff was not notified of this slightest validity. The option for personal injuries. The plain- tract accrued when the defective transaction for some time and clearly formed part of the tenan- tiff was awarded £50,300 in dam- blocks were used in the construc- continued to pay rent to his orig- cy agreement. Undoubtedly ages, which was reduced to tion of the house. inal landlords. Subsequently, the there was an argument to be £37,725 on the basis of contribu- Mr Justice Finnegan declared plaintiff cancelled the standing made that time should be of the tory negligence. The defendants that the action by the plaintiffs order and wrote to Albion seek- essence of the contract. appealed the judgment on the based on tort was not statute- ing to exercise the option to pur- However, the landlords were basis that the findings of facts of barred. The relevant period of chase. At this point, rent had not bound to furnish evidence of title the trial judge were unsatisfacto- limitation in tort applicable in been paid for three months. within six months from the date ry. The plaintiff had slipped on this matter was six years from the Albion then wrote to the plaintiff of the lease and had failed to do the floor of the workplace and date on which the cause of action pointing out that there were so. As a result, the plaintiff could evidence had been given in rela- accrued. An action in contract arrears of rent, that these should not complete within the speci- tion to the build-up of water on had become time-barred by the be discharged and also pointed fied time and there could not be the floor. The defendants con- time the plenary summons was out that the title deeds had been any question of time being of the tended that the trial judge had issued. The existence of a con- lost for a number of years. The essence of the contract. Also, failed to adjudicate on a matter tractual relationship between plaintiff replied that it had been Albion’s solicitors had undertak- relating to the seeping of water parties did not preclude the assumed that the deposit would en to issue contracts for sale. from a manhole cover and also injured party from seeking a cover the outstanding rent. Undoubtedly the plaintiff was objected to the rejection of the remedy in tort on the same facts. Albion then sought the prompt technically in arrears of rent evidence of their expert witness. The cracks that occurred did not payment of the option purchase when the option was exercised, The Supreme Court dismissed develop until well within the price. Further correspondence due to his mistaken belief that he the appeal, holding that the trial limitation period of six years. ensued and Albion stated that it could use the deposit to pay the judge had made findings on the The cause of action pleaded in was not bound by the option to last three months’ rent. evidence which he was entitled to tort against the defendants was purchase agreement. The plain- However, the plaintiff had fur- make. He had also preferred the not time-barred. tiff issued proceedings seeking to nished a cheque for the rent and evidence of one expert engineer O’Donnell and Anor v Kilsaran enforce the option agreement. subsequently a bank draft. The over another. The appeal would Concrete and Anor, High Albion contended that the sale option agreement did not con- be dismissed and the order of the Court, Mr Justice Herbert, should have been completed by a tain any express provision mak- High Court affirmed. 02/11/2001 [FL4777] certain date. It was argued that ing it a condition precedent to Cassidy v Wellman Inter- the option could only be exer- the exercise of the option and the national Limited, Supreme Occupier’s liability cised if the plaintiff was not in court was not prepared to imply Court, 31/10/2001 [FL4733] Personal injuries – litigation – neg- breach of covenant at the time of such a condition. In the circum- ligence – status of plaintiff on build- the exercise of the option. As the stances, the plaintiff had validly Negligence, Statute of ing site – access to unsecured ladder plaintiff was in arrears with his exercised the option to purchase Limitations – whether plaintiff trespasser or vis- rent, it was submitted that the and Albion had wrongfully Practice and procedure – Statute of itor – Occupier’s Liability Act, exercise of the option was refused to complete. There was Limitations – tort – property and 1995 invalid. Albion also argued that nothing inequitable in the plain- construction – negligence – contract The plaintiff was the manager of specific performance was an tiff’s behaviour which would – whether action statute-barred – a guttering distribution firm and equitable remedy and that it warrant a refusal of the remedy whether cause of action accrued from had been requested by a builders’ would not be just and equitable of specific performance. A decla- date of construction of house – providers to fly over from to grant it. ration would issue that Albion Statute of Limitations 1957 – England to look at a problem Mr Justice McCracken grant- was bound by the option agree- Statute of Limitations relating to the installation of gut- ed the relief sought, holding that ment and specific performance (Amendment) Act, 1991 – Rules tering at a building site. While the plaintiff had wrongly would be ordered. of the Superior Courts 1986, on the site, the plaintiff accessed believed that the deposit could Te rry v Albion Enterprises order 25 a ladder, fell and suffered person- be used for the payment of the Limited and Others, High The plaintiffs instituted proceed- al injuries. The plaintiff issued rent for three months. The lease Court, Mr Justice McCracken ings against the defendants in proceedings and claimed dam- only provided that the deposit 14/11/2001 [FL4807] respect of the building of their ages for personal injuries on the could be used to pay the rent for dwelling-house. Cracks had basis of common-law negligence the last three months of the term appeared in the house shortly or breach of statutory duty. Mr granted by the lease provided the LITIGATION after it was built and repairs had Justice Morris held that the first lease had run its full term. By been carried out. However, some issue to be decided must be the exercising the option, the plain- Evidence, negligence years later further cracks status of the plaintiff on the site tiff ensured that the lease had not Personal injuries – litigation – evi- appeared and the plaintiffs sued, at the relevant time. Counsel on run its full term. However, this dence – negligence – appeal – basing their claim on both con- behalf of the defendants submit- would appear to have been put whether findings of fact made by tract and negligence. The defen- ted that the plaintiff was on the right by the payment by the ten- trial judge correct – whether trial dants denied the claims and a building site as a trespasser. It ant of the three months’ rent. judge incorrectly dismissed evidence preliminary issue arose as to was submitted that within the The contents of the letter from of expert witness whether the action was statute- meaning of the Occupier’s Albion which challenged the The plaintiff had been injured in barred. Counsel for the defen- Liability Act, 1995 they had not

47 Law Society Gazette April 2002 Briefing acted with reckless disregard for the Safety, Health and Welfare at the roof in the manner described reckless way, and therefore the the person or his property. On Work Act, 1989 imposed a fur- on behalf of the plaintiff. The plaintiff was not entitled to any behalf of the plaintiff, it was sub- ther duty on the occupiers of the court was not satisfied that the relief under the Occupier’s mitted that he was on site as a vis- site. plaintiff was entitled to be Liability Act. There was no evi- itor and that he was owed the Mr Justice Morris said he regarded in law as a visitor with- dence which established that the duty of care as set out in the found some conflict in the evi- in the meaning of the Occupier’s premises were ‘made available to Occupier’s Liability Act, 1995. It dence given by the plaintiff’s wit- Liability Act, 1995. No case had the plaintiff’ and accordingly the was further submitted on behalf nesses. The court did not believe been made out that the first- plaintiff was not entitled to any of the plaintiff that section 8 of that the party had come to be on named defendant acted in such a rights under section 8 of the

Law Society of Ireland – Continuing Legal Education EUROPEAN LAW HEALTH CHECK 2002 On Saturday 20 April 2002, at Maryborough House Hotel, Maryborough Hill, Douglas, Cork. Fee: €100 (€60 trainees/students).

9AM REGISTRATION AND COFFEE 11am Recent developments in family law Rosemary Horgan 9.30am Introduction (Ronan Daly Jermyn) Patrick Dorgan (president, Southern Law Association) 11.30AM COFFEE BREAK 9.45am Treaty of Nice – legal implications John Handoll 11.45am Competition update (William Fry) John Handoll Human rights developments in Europe (William Fry) Hugh O’Donoghue 12.15pm Environmental law update (HV O’Donoghue) Joe Noonan 10.30am Recent European developments in (Noonan Linehan Carroll Coffey) litigation and employment law 12.45pm Regulation and utilities TP Kennedy Denise Casey (director of education, Law School) (A&L Goodbody)

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48 Law Society Gazette April 2002 Briefing

Safety, Health and Welfare at delay was likely to have caused Ejectment proceedings had Dismissal of proceedings Work Act, 1989. There was a serious prejudice to the defen- been taken by the plaintiff over Litigation – application for non- responsibility on a main contrac- dants. The High Court had not non-payment of rent. The suit – whether trial judge had tor if a ladder was allowed to be erred in its discretion in dismiss- defendant brought a defence incorrectly applied test for non-suit left unattended and unsecured, ing the proceedings. and counterclaim, alleging that When the present case was leaning against a scaffolding, and Brennan v Fitzpatrick and the plaintiff had committed a being heard in the High Court, if a visitor as defined in the 1995 Others, Supreme Court, number of torts against the counsel on behalf of the defen- act used the ladder and suffered 23/11/2001 [FL4851] defendant, including injurious dant had applied for a non-suit. personal injuries as a result of a falsehood and negligent mis- The trial judge had inquired as fall. However, the plaintiff was statement. In particular, allega- to whether the defendant not a visitor within the terms of MENTAL HEALTH tions were made that malicious intended on going into evi- the act and was not entitled to phone calls were made from dence if the application was succeed in this action. Detention, guardianship telephone lines owned by a refused. The defendant indi- Williams v TP Wallace Practice and procedure – mental person who was associated with cated he would and the trial Construction and Others, High health – detention – whether wel- the plaintiff. The defendant judge held that the defendant Court, Mr Justice Morris, fare of applicant best met by contin- had sought to obtain docu- had a case to answer. Having 23/11/2001 [FL4794] ued detention – whether case should ments which would support its heard the defendant’s evidence, be heard or adjourned counterclaim and experienced the trial judge held that the The applicant had been considerable delay in obtaining plaintiff was not entitled to suc- MEDICAL NEGLIGENCE detained in the Central Mental these documents. When these ceed and dismissed the plain- Hospital by order of the High documents were obtained, it tiff’s case. However, the trial Delay, dismissal of Court (Mr Justice Kelly). The was apparent that the defen- judge had stated when dealing proceedings guardian of the applicant wished dant might wish to amend its with the application for a non- Practice and procedure – dismissal to appeal against the decision. pleadings. Mr Justice suit that if the defendant had of proceedings – medical negligence At the High Court hearing, the McCracken refused the appli- proposed not to go into evi- – lay litigant – whether delay inor- applicant made an unsworn cation to amend the pleadings dence then he would have dis- dinate and inexcusable statement to the effect that she on the grounds of delay and missed the plaintiff’s case. The The plaintiff had initiated pro- would prefer to stay in the also on the grounds of preju- plaintiff appealed against the ceedings against the defendants Central Mental Hospital. In the dice that would result to the dismissal of proceedings. over an alleged failure to treat Supreme Court, Chief Justice plaintiff. The Supreme Court the plaintiff’s medical problems Keane held that the applicant The Supreme Court (Keane allowed the appeal, holding properly. The plaintiff’s claim was a young woman with a sig- CJ delivering judgment) that the trial judge had not had been dismissed in the High nificantly troubled past. The allowed the appeal, holding that dealt with the application for a Court by Mr Justice Johnson for court was not in a position to the plaintiff in a broad sense non-suit in a satisfactory man- want of prosecution. The plain- embark on the hearing of the must have been aware of the ner. Where a trial judge tiff sought to appeal against the appeal from the order by the nature of the case that the believed there was no ‘case to decision and also sought liberty High Court made on the previ- defendant was making. Where meet’, then that was all the to adduce fresh evidence and to ous day. None of the materials an amendment could be made trial judge was required to say. amend the notice of appeal. The which were before the High without causing prejudice to To indicate to the defence that plaintiff was a lay litigant and Court judge were before the the other party and enable the the plaintiff had not made out contended that the defendants Supreme Court. The appropri- real issues to be tried, the a case could only be an indica- had not made a full discovery of ate procedure was to adjourn the amendment should be made. In tion to the defendant that the relevant documents and that on case to a date in respect of which order for the real issues to be more evidence they called the the merits of the issue the plain- submissions by counsel would tried in this case, the amend- more their prospects of win- tiff had an arguable case. be heard. This would give the ment sought should be allowed. ning the case diminished. The The Supreme Court dis- guardian ad litem an opportunity If the defendant was precluded appeal would be allowed and a missed the appeal, holding that to consider how best to proceed. from producing that evidence, re-trial would be ordered on all there had been inordinate delay P v Eastern Health Board, an injustice would be created. issues. in the case and that the question Supreme Court, 10/05/2000 While there had been a delay in O’Donovan v Southern Health to be determined was whether it [FL4804] seeking the amendment, the Board, Supreme Court, was inexcusable. The matter of delay of itself would not be a 02/11/2001 [FL4749] G seeking an additional medical sufficient ground for refusing report was not a sufficient PRACTICE AND the amendment. There was not The information contained here excuse for the delay in obtaining PROCEDURE any degree of prejudice to the is taken from FirstLaw’s Legal a second notice of trial. The plaintiff which would justify the Current Awareness Service, pub- problems in relation to discov- Amendment of pleadings, refusal of the amendments. The lished every day on the Internet ery could have been dealt with delay order of the High Court would at www.firstlaw.ie. For more by the former solicitors engaged Litigation – amendment of plead- be discharged and the amend- information, contact bartdaly@ by the plaintiff. The inordinate ings – delay – whether amendment ment allowed. firstlaw.ie or FirstLaw, delay had given rise to a sub- of counterclaim should be allowed – Crofter Properties v Genport, Merchants Court, Merchants stantial risk that it was not possi- whether amendment would preju- Supreme Court, 16/03/2001 Quay, Dublin 8, tel: 01 679 ble to have a fair trial and the dice plaintiff’s case [FL4827] 0370, fax: 01 679 0057.

49 Law Society Gazette April 2002 Briefing Eurlegal News from the EU and International Affairs Committee Edited by TP Kennedy, director of education, Law Society of Ireland Damages now available for breaches of EC competition law: the ECJ’s judgment in C-453/99 Courage v Crehan

he European Court of national courts, based on gener- Commission for exemption with EC law of English laws by TJustice (ECJ) has recently al EC law principles of direct from article 81(1), which was which a party to an ‘illegal’ sent an important and double- effect. The ECJ has long since refused, partly due to tenants’ agreement cannot seek declara- edged message to people or ruled that article 81, by its very submissions that there were sig- tory relief (that the agreement companies that are party to ille- nature, produces direct effects nificant price differences is void) or claim damages from gal agreements, namely that: (1) in relations between individual between Courage beer supplied the other party to the agree- being a party to an illegal agree- undertakings, and therefore to tied tenants and free houses. ment, on the basis that one ment does not necessarily stop article 81 creates a direct right IEL withdrew that notification should not be able to profit you from seeking full remedies for such undertakings, which and notified a new standard from unlawful conduct. The before national courts (even national courts have a responsi- form lease, which afforded tied ECJ replied that: damages) against your ‘partners bility to safeguard. tenants discounts off list prices • Article 81 is a fundamental in crime’, provided you were not for Courage beer. provision of EC law and significantly responsible for the Actions for breach of article Meanwhile, Crehan left the essential for the proper func- illegality in question; and (2) as a 81 before national courts pub, claiming that the beer tie tioning of the internal market result, the chances of parties In the UK, it had been general- and the inflated prices had driv- • The nullity of agreements going to court over anti-com- ly accepted that a third party en him out of business. breaching article 81(1) can petitive agreements have now affected by the unlawful conduct Courage sued Crehan for be relied on by anyone increased. The ECJ’s judgment of others contrary to article 81 unpaid beer, and he counter- •Article 81 has direct effect comes in the case of Crehan (on had a right of action before the claimed for loss suffered by which includes granting reference from the English national court and a remedy adhering to the original beer rights to individuals without Court of Appeal) and has been available in damages. What was tie, which had prevented him limitation. The ECJ ruled heralded as a potential starting not accepted, however, was the from buying beer from cheaper therefore that an individual point for a wave of competition- idea that a party to an agree- sources. Crehan claimed that has a right to seek declarato- law based litigation. This article ment itself, which infringed arti- the original lease to which he ry relief based on a breach of examines what the ECJ has said cle 81, had a right of action had been a party evidently article 81 even where he is a in some more detail and, in par- against his co-contractor(s), infringed article 81(1) given its party to a restrictive agree- ticular, considers what it might together with a remedy in dam- rejection by the commission, ment mean in Irish terms. ages. The theory was that no- and that therefore his misfor- •To preclude the possibility of one could base a cause of action tunes were the result of an illegal damages would breach the Legal basis upon an illegal agreement to agreement to which, admittedly, principle of effective protec- Article 81(1) of the EC treaty which they themselves were a he was a party, but for which in tion. If a contractor has a prohibits agreements having a party, and therefore complicit reality he was not responsible right to seek declaratory potential effect on trade (in pari delicto). and had no control over. relief, this right alone (that is, between member states and without possibility for dam- which prevent, restrict or distort The facts of the Crehan case Questions before the ECJ ages) might be insufficient to competition. Article 81(2) ren- Bernie Crehan was a tenant of a The Court of Appeal was aware provide effective protection ders such agreements void and public house, who in 1991 of a US decision, Perma for that right. A right to seek unenforceable. The European entered into two tenancy agree- Mufflers v Intl Oarts Corp (US damages may not then be Commission is the guardian of ments with his landlord, 134 [1968]), that states that a precluded. The ECJ added the treaty, and has wide-ranging Inntrepreneur Estates Limited party to an anti-competitive that a clear right to claim powers to enforce respect for (IEL), a joint venture between agreement, which is at an eco- damages would positively article 81 and other EC compe- Courage and Grand nomic disadvantage, may bring strengthen enforcement of tition provisions. However, Metropolitan. Crehan leased an action for damages against EC competition law and dis- what the European Commission the pub under a standard 20- the other party. The Court of courage unlawful contracts (and indeed the European year IEL lease which contained Appeal felt there was a need for •To recover damages it must courts) cannot do is adjudicate an exclusive purchasing obliga- clarification of this issue, hence be shown that the party civil remedies between private tion, the beer tie, in favour of the referral to the ECJ. claiming damages was not parties based on infringement of Courage. The standard lease The ECJ was asked essential- ‘significantly responsible’ for EC law. This is the preserve of was notified to the European ly to judge the compatibility the agreement. In this

50 Law Society Gazette April 2002 Briefing

regard, the ECJ suggested ulation of such agreements to cases concerning the 1991 are given effective protection. that matters to be taken into under EC competition law is act would not seem to apply Moreover, this applies even if in account by national courts in heavily linked to the market equally to breaches of the UK so doing national courts find determining ‘significant shares of the parties concluding Competition Act 1998. This is themselves giving those litigat- responsibility’ might include the agreement, especially if over because section 60(2) of that act ing on a point of community the economic and legal con- 30%. A rule of thumb therefore obliges the national courts to law access to a remedy denied to text in which the respective might be that the more market ensure, as far as possible, con- litigants relying purely on parties to the agreement had power enjoyed by parties to ver- sistency between decisions national law. found themselves, their tical agreements, especially if made under the 1998 The present regulation 17/62 respective bargaining power, over 30%, the greater the likeli- Competition Act and the princi- governing the application of the and their conduct. hood of competition law prob- ples enshrined in the EC treaty, EC competition rules is expect- lems arising, which in turn, as interpreted in the decisions ed to be replaced in mid-2003 The discretion as to the role based on Crehan, may now lead of the European courts. by a directly effective enforce- played by each party and to a greater likelihood of Conversely, the Irish act of ment system which shall see whether or not parties will be national court litigation and 1991 is said to function ‘by both the Irish Competition allowed to claim damages will thereafter possibly damages. analogy with articles 85 and 86 Authority enforcing EC compe- still remain with the national This is an over-simplification, of the treaty’ only; it contains tition rules and the Irish courts courts. Crehan’s case will now but will surely create a more no provision such as that found adjudicating upon them. If and return to the Court of Appeal, genuine commercial concern on in the UK act. As noted by when this happens, the basis of which, having established that a day-to-day basis when con- Shanley J in Bleming v David the above comments may he is able to bring a claim cluding and operating vertical Patton Ltd (High Court, unre- change entirely. In principle, against Courage and can claim agreements, and will also create ported, 15 January 1997): ‘In however, it should remain a damages as a result of that a more significant concern in applying the jurisprudence of matter for the national courts to action, will decide on the facts due diligence assessments of the ECJ, the CFI and the com- provide the necessary remedies whether or not actually to award risk when buying or selling mission to sections 4 and 5 of to ensure effective enforcement. damages and, if so, in what companies. the 1991 act, there is no doubt This has led many commenta- amount. that decisions of those bodies tors to criticise the commission Significance of the judgment should have very strong persua- for decentralising the applica- Significance of the judgment in Ireland sive force – however, it should tion of the competition rules throughout the EU The significance of this judg- be borne in mind that such without either ensuring the har- The long-term significance of ment for the Irish courts is decisions are based on competi- monisation of the national rules the judgment remains to be three-fold: tion rules which are, textually of procedure so as to ‘level the seen, but a healthy prediction is • It offers a new and potential- and contextually, different from playing field’, or guaranteeing that it will open the eyes of liti- ly valuable weapon for the the 1991 rule and which often litigants access to adequate gators to the possibility that courts to ensure the full are decisions influenced or remedies. national courts are a viable enforcement of EC competi- affected either by policy consid- Nonetheless, the judgment option for competition law- tion law erations, objectives or articles gives a clear indication of the based remedies. Furthermore, • It challenges the autonomy of of the treaty which do not nec- steps the ECJ is prepared to take would-be infringers of EC com- national courts to decide essarily underpin the 1991 act’. to do both. G petition law will now know that upon matters relating to As a general principle, com- being dragged into national remedies and rules of proce- munity law does not create any Jonathan Branton and Donogh courts on account of their dure, when adjudicating on remedies for the infringement Hardiman are solicitors with the actions is a far more real and EC law1 of the rights that it confers: law firm Hammond Suddards greater possibility. The fact that • Litigants pleading breach of rather, that is a matter for Edge, in Brussels. current proposals before the section 4 of the Competition national law, as emphasised by European Commission seek an Act, 1991 will not benefit the ECJ in Case C 158/80 Rewe Footnote even greater enforcement role from the same ‘advantage’ v Hauptzollamt Kiel ([1981] 1 In this respect, the decision in for national courts may signifi- available to litigants pleading ECR 1805). However, the Courage v Crehan fits into an cantly add to this. on the grounds of EC law. national rules regarding the established line of ECJ case What the above basically Thus it would appear that lit- remedies available for European law, under which the ECJ has means is that the chances of lit- igants before the Irish courts law litigants are ruled by the forced national judges to igation arising from agreements seeking damages relating to twin principles of equivalence ignore national procedural with one’s business partners contracts in breach of the and effectiveness. Equivalence rules which would impede a have risen dramatically, particu- 1991 act, to which they essentially amounts to ensuring litigant’s ability to access their larly where there is an imbal- themselves have been a party, that all remedies available under EC law rights, even if those ance in each party’s relative bar- will find themselves frustrat- national law should be available rules would have produced gaining power. Where this is ed by the in pari delicto to litigants pleading a commu- the same impediment for a most obvious is in so-called principle. nity law right. However, this litigant pleading under ‘vertical agreements’ – that is, principle is subject to the over- national law. those between parties operating It is perhaps notable that the riding rule, as proved in Crehan, In particular, see Case C- at a different level in the supply last point above regarding the that national courts must 312/93 Peterbroek v Belgium and distribution chain. The reg- lack of benefit of the judgment ensure that community rights ([1995] ECR I-4599).

51 Law Society Gazette April 2002 Briefing Recent EU legislative developments: December 2001, January and February 2002

Standardisation of public be required from airlines from throughout the EU, increases potential changes to the con- procurement notices. The non-EU countries. the activities which they are cept of concentration are also European Commission has allowed to undertake as non- being examined. adopted a directive imposing, Data protection: standard core services, and increases One of the substantive from 1 May 2002, the use of clauses. The commission has, investor protection by the reforms includes holding a standard forms in contract by decision, stipulated standard introduction of a simplified debate on the substantive test notices published in the EU’s clauses for contracts that will be prospectus requirement which applied by the Merger regula- Official journal when public enti- considered to meet the data will provide more accessible and tion (4069/89/EEC) to include ties purchase goods, works or protection safeguard require- detailed information. whether a concentration will services in circumstances where ments of the Data protection create or strengthen a domi- the EU procurement directives directive (95/46/EC). The claus- Framework directive on work- nant position in the common are applicable. The object of this es cover the transfer of person- er information and consulta- market. Comments are invited initiative is to promote efficiency al data from EU-based con- tion. This directive sets out the on whether the proposed test and transparency and facilitate trollers to recipients in non-EU rules for companies on inform- of the ‘substantial lessening of electronic procurement. countries where an adequate ing and consulting with their competition’ as used in other level of data protection has not employees. Three years is the jurisdictions, such as the US, Emergency measures to sup- been recognised. When con- period within which national would be desirable. port EU airlines and increase tracts involving the transborder governments have to implement The proposed procedural security. This proposed regula- flow of data incorporate the this directive into national law. reforms include allowing the tion deals with the adoption and standard clauses, national Before certain decisions involv- parties to request the extension enforcement of common securi- authorities in the EU will not ing a company are taken, includ- of the timetable for the sub- ty rules for civil aviation. be able to block the transfer of ing those affecting employment, mission and discussion of Notwithstanding the adoption information based on reasons of all businesses having more than remedies designed to meet of this package by the commis- inadequate data protection 50 employees will be obliged to objections raised by the com- sion, all state aid and agree- (decision 2002/16EC, OJ supply information to and con- mission in phase I or phase II ments still require to be notified L6/52, 10 January 2002). sult with their employees. of the merger review process. to the commission and be Provision must be made at Comments are also invited on assessed on a case-by-case basis. Proposed directive to extend national level for sufficient the procedural issues, in partic- Under this package, member the scope of the Seveso II penalties to deter companies ular whether the procedures states are allowed to compensate directive (96/82/EC) on the from breaching the directive. involve due process, on the airlines for revenue losses as a control of major accident haz- event which leads to notifica- result of the closure of US air- ards involving dangerous sub- Commission green paper on tion, the standstill obligation, space for four days; the under- stances. The adoption of this merger control reform. The filing electronically, notifica- writing by member states of the proposed directive by the com- proposals include extending the tion filing fees, submission by additional insurance costs to the mission follows several major scope of the commission’s pro- the parties themselves of noti- end of the year will be looked on industrial accidents over the last posal to cover cases subject to fication copies to member favourably by the commission; few years. The amendments notification under the EU states, the stage at which the increased security measures will cover tailings, explosives, stor- Mergers control regulation commission can declare a noti- also be favourably considered; age and carcinogenic and aqua- regarding transactions involving fication incomplete and the competition rules will be relaxed toxic substances. It is expected undertakings in three or more enforcement procedures which between airlines whose function that there will be a further member states in the interest of the commission has at its dis- is to maintain regular schedules amendment to cover land use impending EU enlargement. posal. Provision is also made on less frequented routes or to planning. The green paper also proposes for lessening the burden of co-ordinate schedules during to simplify the circumstances in notification in simple cases. off-peak periods; and airlines are Two directives on investment which the commission is also permitted to keep their funds (UCITS). The first of empowered to refer transactions Ratification of Rotterdam existing airport slots until 26 these directives removes barri- back to national authorities or convention on hazardous October 2002. Provision is also ers to cross-border marketing receive referrals from national chemicals. This proposal made for a code of good conduct of units of collective investment authorities under articles 9 would ratify the Rotterdam con- in relation to the US authorities, funds by widening the scope of (referral to a member state) and vention procedure for handling which will be proposed by the assets in which they can invest. 22 (referral by a member state). hazardous chemicals in interna- commission and will avoid dis- These include bank deposits, It is also proposed in relation to tional trade. Countries partici- tortions of competition result- money market instruments and article 9 that the commission pating in the Rotterdam conven- ing from aid being given to financial derivatives. The sec- would be given the power of its tion have the right to refuse the US airlines. Proof of mini- ond directive permits manage- own initiative to carry out an imports of certain dangerous mum insurance cover will ment companies to operate investigation. A number of chemicals and establish a sys-

52 Law Society Gazette April 2002 Briefing tem of information exchange checks and market surveillance. 14 February 2002, this notice forward, is not to have taken regarding dangerous chemicals. By creating a clear and reliable replaces the 1996 Leniency steps to coerce other undertak- The commission has decided to regulatory environment for notice for all cases in which an ings to participate in the propose detailed rules for the these products, it is intended to undertaking has not contacted infringement. Immunity appli- implementation of the conven- benefit both patients and manu- the commission in order to cants will be quickly informed tion’s provisions, replacing cur- facturers, most of which are take advantage of the of their situation and, if they rent EU arrangements control- small and medium-sized enter- favourable treatment set out in qualify, conditional immunity ling the import and export of prises. The rules governing the that notice. The purpose of the will be granted to them in writ- dangerous chemicals. The com- placing on the market and sur- new rules is to make the policy ing. If companies comply with mission’s proposal goes further veillance of herbal medicines even more effective and attrac- their obligations of complete than the convention in impor- differ between member states, tive for companies to come for- and continuous co-operation, tant areas; for example, by cover- which has a detrimental impact ward, to obtain full immunity this conditional immunity will ing a wider range of chemicals. on public health protection and to provide more certainty be confirmed in the final deci- standards and the free move- against the imposition of sion. G Registration procedure on tra- ment of goods within the EU. fines or the level of fines. The ditional herbal medicines. The main requirement for qualify- Jennifer McGuire is a trainee rationale for this proposed Immunity from, and reduction ing for full immunity, besides solicitor with the Dublin law firm directive is to improve quality of, fines in cartel cases. From having to be the first to come LK Shields. Recent developments in European law CONSUMER LAW undertaking subject to EU competi- whether EU action should be taken to She received a letter indicating that tion law. It left it to the German improve state compensation to vic- her contract would terminate on 2 The commission has proposed a reg- courts to determine whether there tims of crime. At present there are June. She challenged her dismissal ulation (2 October 2001) to remove had been any abuse of a dominant significant differences between on grounds of discrimination and national restrictions on sales promo- position. It examined whether any states on the level of compensation breach of fundamental rights. tions within the EU. The regulation abuse of a dominant position might payable and the criteria on which an Tele Danmark had employed Ms will apply to certain price-related be justified by the existence of a task award for compensation is based. Brand-Nielsen for six months from 1 restrictions on promotional instru- of general economic interest. The The commission wishes to ascertain July 1995. In August, she informed ments. This will cover free gifts, dis- ECJ held that this was such a task, whether the situation can be her employer that she was pregnant counts and promotional contests as it consisted of an obligation to improved in cross-border cases. It and expected to give birth in early and games. Its objective is to make provide permanently the service of outlines two possible approaches. November. On 23 August, she was it easier to use such promotions on transporting sick or injured persons Firstly, it will examine whether it dismissed with effect from 30 a cross-border basis. throughout the territory at a uniform should be compulsory for states to September, as she had not informed rate and on identical conditions as to provide an adequate level of com- her employer of her pregnancy when COMPETITION quality without regard to individual pensation. The second approach is she was recruited. She argued that situations or to the degree of eco- to ensure that compensation is her dismissal was discriminatory. Case C-475/99 Ambulanz Glöckner v nomic profitability of each individual accessible regardless of where the The two courts referred questions Landkreis Südwestpfalz, 25 October operation. In that context, restric- individual became a victim. to the ECJ on the scope and interpre- 2001. In 1990, the applicant tions or exclusions of competition Interested parties were invited to tation of the EU provisions on equal received authorisation to provide a may be permissible if they are nec- submit views before 31 January treatment and the specific measures patient transport service until essary for the performance of the 2002, after which a public hearing which oblige member states to pro- October 1994. In July 1994, it particular task. There is a need to will be organised to further debate hibit the dismissal of female workers applied for the renewal of its authori- offset the costs of providing the the issues raised to consider during the period from the start of sation to the territorial authority – the emergency transport service with whether legislation is necessary. pregnancy to the end of maternity Landkreis. Under a 1991 law, the revenue from non-emergency trans- leave, save in exceptional cases not authority could refuse to grant such port, which is more lucrative. The EMPLOYMENT linked to their condition. The ECJ held an authorisation if its use might have German court had to determine that there is no distinction between an adverse effect on the functioning whether the restriction of competi- Discrimination fixed term and indefinite employment and profitability of the public ambu- tion placed on non-emergency trans- Cases C-438/99 and 109/00 Maria contracts and that the measures lance service. The Landkreis refused port patients was necessary to Luisa Jiménez Melgar v Ayuntamiento apply equally to both. However, the the authorisation, as the two public enable the public service to carry out de Los Barrios and Tele Danmark A/S non-renewal of a fixed-term contract, facilities in the area were not fully their task of general interest in eco- v Handels-og Kontorfunktionærernes which has reached its termination used and were operating at a loss. nomically acceptable conditions. It Forbund i Danmark (HK), 4 October date, cannot be equated with dis- The German court asked whether the also had to be ascertained that 2001. The municipality of Los Barrios missal. In certain circumstances, grant of a monopoly over the trans- these organisations provided a trans- recruited Ms Melgar for three such non-renewal can be regarded as port of patients in a limited geo- port service in an effective manner. months. Her contract was renewed a refusal of employment. The refusal graphical region was compatible with twice until 2 May 1999. On the fol- to employ a woman, despite the fact EU rules on competition. The ECJ CRIMINAL LAW lowing day, she signed a new contract that she is considered suitable to per- held that the public ambulance serv- on a part-time basis and for a fixed form the work in question, on account ice to which was reserved the emer- On 28 September 2001, the com- term. Subsequently, the municipality of her pregnancy is direct discrimina- gency transport service was an mission adopted a green paper on was informed that she was pregnant. tion on grounds of sex. G

53 Law Society Gazette April 2002 People and places

New recruit Foreign affairs Tamsyn Broderick recently The entire membership of the Supreme Court of Cyprus recently visited Blackhall Place, meeting members of joined the legal recruitment the society’s EU and International Affairs Committee to explore the legal effects of joining the European Union. team at Osborne Pictured above are (seated, from left) Christakis Elades and Pallas Gavrielides, both judges of the Cypriot Recruitment. She is Supreme Court; Georghias M Pikis, president of the court; Law Society President Elma Lynch and Solon responsible for recruiting Nikitas, judge of the Supreme Court of Cyprus. Standing (from left) are Director General Ken Murphy; Cypriot solicitors, paralegals and ambassador Nicholas Emiliou; Wendy Hederman; John Handoll; TP Kennedy, the society’s director of education; legal executives former Circuit Court Judge John Buckley; and the Law School’s Brid Moriarty

Distinguished guests Pictured at the recent SADSI guest speaker debate are (from left) Director General Ken Murphy, Professor Ivana Bacik of TCD’s law school, and Liam Herrick, chair of the ICCL. The motion for the debate was that ‘Ireland has a justice system to be proud of’

Joint effort Pictured at the joint conference of the Society of Young Solicitors Ireland and the Northern Ireland Young Solicitors Association in March are (seated, from left) Law Society President Elma Lynch; Alan Hewitt, president of the Law Society of Northern Ireland; Maureen Bell, chairperson of NIYSA; Daniel Morrissey, president of the Waterford Bar Association; and Kay Finnegan. Also pictured (back row, from left) are Neil Faris, managing partner of Cleaver Fulton Rankin, Solicitors, Belfast; Osborne Recruitment’s Tamsyn Broderick; Enda Murphy of Bank of Ireland; Nora Lillis, secretary of the SYS; President of the High Court Mr Justice Joseph Finnegan; Suzanne Johnston, director of Osborne Recruitment; Nessa Agnew, vice- chair of NIYSA; and William Aylmer, chairman of SYS

SOLICITORS’HELPLINE Wood you be interested? The Solicitors’ Helpline is available to assist every member of the profession with any Don’t forget the Calcutta Run on Sunday 19 May, problem, whether personal or professional. which is organised by solicitors to help homeless The service is completely confidential and totally independent of the Law Society. children in Calcutta and Dublin. Run or walk or If you require advice for any reason, phone: 01 284 8484 sponsor a colleague, and enjoy a barbecue afterwards. Information and sponsorship cards can 01 284 8484 be obtained by e-mailing [email protected], or visit the website www.calcuttarun.com

54 Law Society Gazette April 2002 People and places On the road again

The Law Society’s ‘roadshow’ to explain the Solicitors’ accounts regulations 2001 recently visited Kilkenny and Sligo. Pictured at the Kilkenny seminar (above left) are Anne Colley of the society’s Compensation Fund Committee and accountant Charles Russell. Pictured in Sligo are (above right, from left) investigating accountant Tim Bolger; immediate past president Ward McEllin; Tina Beattie, executive officer with the society’s regulatory department; Simon Murphy, chair of the Compensation Fund Committee; and accountant Charles Russell

On a silver platter Eric Plunkett and his wife Myra recently presented the Law Society with a salver that was owned by the late Eric A Plunkett, a former secretary (director general) of the society. The salver was presented to Conference call Mr Plunkett in 1955. Pictured with Eric Plunkett and Law Society President Elma Lynch and Rory Brady SC, chairman of the Bar Council, pictured his wife are President Elma Lynch and Director at a working session during the Conference of European Presidents in Vienna in February General Ken Murphy

It’s all moot

The finalists of the trainee solicitors’ moot court competition: pictured (above left) are the successful appellants Patrick English and Caoimhe Daly, and (above right) are the respondents Sinead Lynch and Sinead Keaveney

55 Law Society Gazette April 2002 People and places

Presidents and secretaries he leaders of approximately core values of the profession, T120,000 solicitors met in the controversy in England about Dublin last month to discuss a ‘Tesco legal services’, the range of issues of mutual European Court of Justice interest. The presidents, vice- judgment in the NOVA case, the presidents and secretaries of UK’s Office of Fair Trading the law societies of Northern report, Scotland’s ‘Justice I’ Ireland, Scotland, Ireland and Committee and Ireland’s England & Wales meet twice a Competition Authority study, the year in either Belfast, Edinburgh, future of self-regulation, the Yes, minister London or Dublin, with each Personal Injuries Assessment The Minister for Justice, Equality and Law Reform John O’Donoghue, who society hosting the event once Board proposal, legal aid reform is a solicitor, was heavily engaged recently in piloting through the every two years. Among the and legal expenses insurance, Oireachtas two pieces of legislation of considerable interest to the solicitors’ profession, namely the Solicitors (Amendment) Bill and the issues discussed over the two- the CCBE, e-conveyancing and Courts and Court Officers Bill. Before doing so, and in recognition of his day meeting in Dublin were the digital signatures. nearing completion of a term of five years as minister, he met recently in Blackhall Place with the representatives of the society pictured above: (seated) Minister O’Donoghue and President Elma Lynch, and (standing, from left) Senior Vice-President Geraldine Clarke, Director General Ken Murphy, immediate past president Ward McEllin, Junior Vice-President Philip Joyce and Deputy Director General Mary Keane

Pictured are (front row, from left) Martin McAllister, president of the Law Society of Scotland; David McIntosh, president of the Law Society of England & Wales; President Elma Lynch; and Alan Hewitt, president of the Law Society of Northern Ireland. Standing are (from left) Joe Platt, vice-president elect, Law Society of Scotland; Ken Murphy, director general; Douglas Mill, secretary, Law Society of Scotland; Janet Paraskeva, chief executive, Law Society of England & Seat of power Wales; Geraldine Clarke, senior vice-president; Mary Keane, deputy At a recent dinner in Blackhall Place for the four solicitors who represent director general; David Preston, vice-president, Law Society of the Fine Gael party in the Dáil, Deputy Jim O’Keeffe got the opportunity to Scotland; Joe Donnelly, junior vice-president; and John Bailie, chief sit in the Law Society president’s chair, and seemed to enjoy it very much. executive, both from the Law Society of Northern Ireland Also pictured are (from left) Charles Flanagan TD, Tom Enright TD and Director General Ken Murphy. Alan Shatter TD also attended the dinner

Royal charter

This year is the 150th anniversary of the 1852 charter from Queen Victoria that established the Incorporated Law Society of Ireland. The term ‘incorporated’ was deleted by statute in 1994. The original charter hangs in the Council chamber and some distinguished visitors to Blackhall Place were recently given the opportunity to see it. Pictured with the charter and President Elma Lynch are (above left) Minister for Justice, Equality and Law Reform John O’Donoghue and (above right) the leader of Fine Gael, Michael Noonan

56 Law Society Gazette April 2002 People and places

Gerald Hickey: a tribute ames Gerald Hickey was born on 16 man in the very broadest sense of the term. JMarch 1927, at Naas, Co Kildare, to Being gifted with total recall made him the James Joseph Hickey and his wife Greta. most interesting company on any occasion. His father moved to Dublin in the early During his period as a member of the 1930s, setting up practice in O’Connell Council of the Law Society, Gerry served Street and then going into partnership as chairman of many different committees with the late Tommy O’Reilly, who was and was actively involved in the subsequently president of the then development of the society’s headquarters Incorporated Law Society for 1954/55. at Blackhall Place. His organisational skills Gerry, as he is known to his colleagues and enthusiasm played an enormous part and friends, was educated in Xavier’s in raising the necessary finance from Private School in Donnybrook, within the profession to make the graduating from there at the young age undertaking the success it is today. As of 17 to enter Trinity College in 1944. At president, Gerry, with his gracious wife that time it was necessary for his father Dorinda, represented the society in the US to obtain permission from the Catholic and elsewhere. His ability as an erudite and Archbishop of Dublin, John Charles witty public speaker, as well as his ability to McQuaid, for Gerry to begin his studies appreciate the good things in life, assured at what was then perceived to be a Protestant institution! He his success as a worthy ambassador, not only for the Irish legal began his apprenticeship in the family firm and took the profession but for Ireland as well. professional examinations with the Incorporated Law Society. Those of us who had the privilege of serving with Gerry on He qualified in an unusually short period, with the result that the Council, and who indeed would have known him as a he had to wait some time to reach his 21st birthday, when he colleague, always marvelled at the pride he held in his profession was duly admitted as a solicitor in Easter Term 1948. and how highly he regarded the importance of high standards of He practised with the family firm, dealing particularly with integrity, not only between solicitors and their clients, but litigation and commercial matters. He was a splendid advocate between solicitors and their colleagues in their day-to-day and a tough opponent, especially in his younger days, when he dealings with each other. While he was the most compassionate enjoyed the cut and thrust of District Court practice in civil of men, he expected of his colleagues the same high standards he matters. In 1973, the firm of Hickey & O’Reilly amalgamated himself held in practice. with Beauchamp Kirwan and O’Reilly, and Gerry became its As Oliver Goldsmith said of one of his ancestors in the poem chairman. In retaliation: In 1966, he was elected to the Council of the Incorporated ‘Here Hickey reclines, a most blunt, pleasant creature, Law Society of Ireland and he continued to serve on that body And slander itself must allow him good nature; as chairman of different committees until his election as He cherish’d his friend, and he relish’d a bumper; president of the society in 1979. Yet one fault he had, and that was a thumper. In the 1970s and 80s he became very much involved in the Perhaps you may ask if the man was a miser? commercial life of Dublin, serving with distinction as chairman I answer, no, no, for he always was wiser; of ICC Bank, director of New Ireland Assurance and director Too courteous perhaps, or obligingly flat? of Cement Roadstone Holdings, now CRH plc. His very worst foe can’t accuse him of that; During this period, he was also involved with many Perhaps he confided in men as they go, significant property developments, including the award-winning And so was too foolishly honest? Ah no! redevelopment of the old Dolphin Hotel, which now houses a Then what was his failing? Come, tell it, and burn ye – number of District and Circuit Court facilities. He continued He was, could he help it? A special attorney’. in active practice until 1988, when he joined Amory’s Solicitors as a consultant. He retired from active practice entirely in 1995. Despite his busy professional and public persona, Gerry was Although – as will be appreciated – Gerry was heavily essentially a very private person who shunned publicity of any engaged with his professional and commercial activities, he was kind. His happiest times were with his wife Dorinda, his children a man who thoroughly enjoyed golf and horse racing. From his – James, who follows him into the legal profession, David, student days representing Dublin University Golf Club through Gerald (deceased), Greta, Maurice, Dorinda Anne, and Paul – to his membership of Portmarnock Golf Club and Milltown and his adored grandchildren, who also will miss him greatly. Golf Club, of which he was captain in 1961/1962, he was a The profession he served so loyally will be the poorer for his serious golfer, playing off a single figure handicap during most passing as we who have been his colleagues will be the richer for of his career. In addition to this, he had a great knowledge and knowing this man, of whom it may truly be said: ‘he was a man love of nature and was something of an ornithologist, spending for all seasons’. G many holidays in West Cork, where he maintained a holiday home for some years. There he had ample opportunity to Moya Quinlan is a former president of the Law Society and a partner indulge his other hobby, that of reading. He was a well-read with the Dublin law firm Dixon Quinlan.

57 Law Society Gazette April 2002 People and places

OBITUARY

James P Sweeney 1912 – 2002 ames Patrick Sweeney, solicitor, practice. He retained a keen interest in Jformerly of Falcarragh, Co Donegal, sport, particularly rugby and cricket. Jim’s died on 27 January, in his 90th year. Jim life was long, successful and happy. He was born in Burtonport in 1912 and was bore his personal tragedies with the eldest of 12 children. He moved to equanimity, particularly the untimely Dublin with his family in 1922. One of death of his wife Billie in 1957 and their his first memories of Dublin was being son Paddy in 1996. He remarried in 1961 brought by his father to the funeral of and enjoyed 40 happy years with Joan, Michael Collins. He was educated at who survives him. Their devotion to each Blackrock College, for which he held a other was evident to everyone who knew lifelong affection. While a pupil, he them. excelled on the rugby pitch and was a He is also survived by his daughters member of the Leinster Schools Senior Eithne and Siobhan, son and colleague Cup winning team in 1930. He was James, daughter-in-law Irene, sons-in-law admitted as a solicitor in 1935 and Alistair and Peter and grandchildren commenced practice in Falcarragh, Evanna, Davida, Andrew and Sarah. where he worked until retirement in 1981. After his retirement, he moved to Dublin, and he A long sort o’ sigh seemed to come from us all assisted his successor in the firm as an advisor and consultant. As the waves hid the last bit of auld Donegal Jim was for many years a familiar figure in the Four Courts, (Percy French). G where he made his reputation as a skilful negotiator with a disarming charm and gentle sense of humour. He was a wise Brendan J Twomey is a solicitor with the Falcarragh, Co Donegal, and practical advisor and established a successful legal law firm James P Sweeney & Co.

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58 Law Society Gazette April 2002 Apprentices’ page SADSI

Solicitors Apprentices Debating Society of Ireland Trainee solicitors’ ball A DATE he annual PPC1 trainee Tsolicitors’ ball took place FOR YOUR in February at the Davenport Hotel, Merrion Square. The SUMMER event was a huge success and was attended by over 340 DIARY trainees from the course – he SADSI careers day, reputed to be the largest ever Twhich will focus on attendance at such an event. alternative careers in law, The evening began early and the annual summer with a pre-ball wine reception, barbecue will be taking place and musicians from the Royal on Friday 5 July. The Irish Academy of Music – speakers will provide an whom we must heartily thank insight into how you can put – provided a superb ambience your professional throughout dinner. After qualification to use in a dinner, there was music from variety of environments both the band Junk, who, despite Line dancing at home and internationally. Pictured at the ball are (from left) Elaine Campbell, Roberta Grealish, their rather inauspicious Dawn Carney, Caoimhe Heery and Claire Campbell-Murphy Benson & Associates Legal name, ensured a packed dance Recruitment Agency have floor all through the night. say any more! Suffice to say, Ulster Bank and BCM Hanby generously agreed to But there’s more. As has the night was a great success Wallace. Our thanks also to sponsor the event. Please become de rigueur with this and was thoroughly enjoyed Frank Ellis of Ellis & Ellis let us know if there is a year’s PPC1, the night would by all. Law Searchers, The Royal specific topic you wish to be not have been complete It is with grateful Irish Academy of Music, Alan addressed by the speakers without a trip to an infamous appreciation that we thank the Greene of the Law Club, and on the day by e-mailing wine bar on Leeson Street. sponsors who helped ensure the management and staff of [email protected]. We have been warned not to such a memorable occasion: the Davenport Hotel. Partying in the city of the tribes estern representative plan involved convening in the remained until embarking to Thanks must be given to WDawn Carney and sports bowling alley. This had the dual experience talents of a different Ulster Bank, kind sponsors of liaison officer Noel Devins put benefit of being indoors as well sort in Salthill. this event. With the standard together a weekend in Galway in as being a licensed premises. Sunday saw the return to now set for such events, March to allow those of us in the Talents exhausted, we met up Dublin for those based there, trainees around the country Pale a chance to socialise with again in the city and proceeded with stories from a successful can look forward to meeting our colleagues in the West. The at a respectable hour to the weekend and expectations of colleagues in different venues weekend was a great success, and fantastic Quays Bar, where we more to come. later in the year. provided an opportunity to catch up with trainee solicitors preparing to come back on the SNOW JOB PPC2 course this April. nfortunately, or fortunately and the match having been the SADSI website, and those Quite a crowd gathered on Ufor our aching heads, all called off, we retired to with suggestions as to content, the Friday in the Skeffington efforts to engage in a healthy participate in some bowling. queries, or information on Arms, Eyre Square, to socialise, lifestyle on the Saturday in Despite the fact that we did contact numbers or names for imbibe and avail of the Galway were in vain as a blanket not get the chance to unveil our sports clubs in their area may excellent food. of snow covered the city. Upon new soccer kit at the Galway contact us at [email protected]. As The group also experienced checking the football pitch in event, we would like to take this we are hoping to create an Galway City’s night spots and case it was playable, we opportunity to thank our sponsor, extensive database on a wide left in the early hours with the discovered that half of it was Frank Ryan & Son, for their range of sports, any information promise of meeting the next day under snow while the other half assistance in securing the kit. is much appreciated. for some outdoor activities. was under water. Swimming and • We are currently in the process Noel Devins, However, when dealing with skiing being out of the question, of compiling a sports page for sports liason officer the western climate, a better

59 Law Society Gazette April 2002 Recruitment

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60 Law Society Gazette April 2002 Professional information LOST LAND Keenan; folio: DN23052L; lands: a CERTIFICATES plot of ground known as 32 LawSociety Walnut Avenue in the parish of Gazette Registration of Title Act, 1964 Clonturk and in the district of An application has been received Drumcondra and in the county from the registered owners men- borough of Dublin; Co Dublin ADVERTISING RATES tioned in the schedule hereto for the Regd owner: William McGuirk; folio: Advertising rates in the Professional information section are as follows: issue of a land certificate as stated to DN9299; lands: property situate in have been lost or inadvertently the townland of Stillorgan Grove • Lost land certificates – €46 (incl VAT at 20%) destroyed. A new certificate will be and barony of Rathdown; Co • Wills – €77 (incl VAT at 20%) issued unless notification is received Dublin • Lost title deeds – €77 (incl VAT at 20%) in the registry within 28 days from Regd owner: Patrick Finn and • Employment miscellaneous – €46 (incl VAT at 20%) the date of publication of this notice Kathleen Finn; folio: DN7210L; that the original certificate is in exis- lands: property situate to the west HIGHLIGHT YOUR ADVERTISEMENT BY PUTTING A BOX AROUND IT – €30 EXTRA of Grange Road in the parish and tence and in the custody of some per- All advertisements must be paid for prior to publication. Deadline for May district of Kilbarrack; Co Dublin son other than the registered owner. Gazette: 19 April 2002. For further information, contact Nicola Crampton on Regd owner: Paschal Vincent Doyle; Any such notification should state the 01 672 4828 (fax 01 672 4877) grounds on which the certificate is folio: DN4588; lands: property sit- being held. uate in the townland of Whitehall (Register of Titles), Central Office, Land and barony of Rathdown area; Co Registry, Chancery Street, Dublin 7 Dublin DN12395F; lands: property situ- Tipperary (Published 5 April 2002) Regd owner: the County Council of ate in the townland of Portlaoise; Regd owner: Norma Caples; folio: the County of Dublin; folio: Co Laois 13497F; lands: a plot of ground Regd owner: Colm and Brenda DN9088; lands: property situate in Regd owner: Greg Petrie; folio: 1259; situate in the townland of Crooke O’Connor; folio: 18412F; lands: the townland of Yellowmeadows lands: Curraun; area: 27.625 acres; and situate in the barony of Morterstown upper and barony of and barony of Uppercross; Co Co Leitrim Gaultier; Co Waterford Carlow; Co Carlow Dublin Regd owner: Thomas McNamara; Regd owner: Eileen Fortune, Bridget Regd owner: William Murphy; folio: Regd owner: the Right Honourable folio: 6003F; lands: Castleroberts O’Neill (deceased), Mary O’Neill 9167F; lands: townland of the Lord Mayor Aldermen and and barony of Coshma; Co and Anne Maher (sisters of Our Kilcolgan and barony of Burgesses of Dublin; folio: Limerick Lady of Mercy); folio: 6538; lands: Dunkellin; area: 0.0254 hectares; DN4161; lands: property situate Regd owner: Michael F Doyle; folio: Castlemoyle and barony of Bantry; Co Clare on the west side of Le Fanu Road 2158, 2159; lands: Drumanure; Co Wexford Regd owner: Denis Coveney and in the parish of Ballyfermot, dis- area: F2158 38.9062 acres and Regd owner: James Synnott; folio: Susan Curtis Coveney; folio: trict of Ballyfermot and city of F2159 28.2312 acres; Co 11265; lands: townland of 6821F; lands: known as the town- Dublin; Co Dublin Longford Ballynerrin Lower and barony of land of Kilpatrick (ED Brinny) sit- Regd owner: John and Maureen Regd owner: Peter Walsh; folio: Arklow; Co Wicklow uate in the barony of Kinalmeaky O’Toole; folio: 21548; lands: town- 3839F; lands: Drumderg, Regd owner: Michael and Phyllis and the county of Cork; Co Cork land of Killeany and barony of Carrowlinan, Castlebaun; area: Davis; folio: 643; lands: townland Regd owner: Patrick J Hickey Aran; Area: 11.06070 hectares; Co 2.806 hectares, 0.829 hectares, of Merginstown and barony of (deceased); folio: 13142; lands: a Galway 21.125 hectares; Co Longford Talbotstown Lower; Co Wicklow plot of ground being part of the Regd owner: Kathleen Mitchell (née Regd owner: Thomas Morris; folio: townland of Gurteenard and Skehill); folio: 41897; lands: town- 2558; lands: townland of Kilbarriff barony of Duhallow and the coun- land of Castlebin East and barony and barony of Costello; area: WILLS ty of Cork; Co Cork of Kilconnell; Area: 0.2730 9.6492 hectares; Co Mayo Regd owner: Patrick J Doherty; folio: hectares; Co Galway Regd owner: John Conmy; folio: Bacon, Frederick (deceased), late of 20355F; lands: Meenderry- Regd owner: William McDonagh; 38319; lands: townland of 25 Rutland Cottages, Lower Rutland gramph; area: 45.450 hectares; Co folio: 8158; lands: townland of Bellanumera and barony of Erris; Street, Dublin 1. Would any person Donegal Rooaun and barony of Longford; area: 3.6927 hectares; Co Mayo having knowledge of a will made by Regd owner: Connie Nixon (former- Area: 19 acres, 1 rood, 30 perches Regd owner: Colm O’Donoghue; the above named deceased who died ly McGealy); folio: DN39664F; or thereabouts; Co Galway folio: 26946; lands: Teltown; area: on 30 October 1993, please contact lands: property known as 47 Regd owner: Ellen Rowan; folio: 0.35 acres; Co Meath Ken J Byrne & Co, Solicitors, 17 Walnut Court, Courtlands estate, 28050; lands: Lohercannon and Regd owner: Thomas Quinlan; folio: Rock Hill, Main Street, Blackrock, situate to the north of Griffith barony of Trughanacmy; Co 4590F; lands: Clonlee and barony Co Dublin, tel: 01 283 2715 or fax: 01 Avenue in the parish of Clonturk Kerry of Ballybritt; Co Offaly 283 3453 and district of Drumcondra; Co Regd owner: Helen O’Sullivan; folio: Regd owner: Dermot Foley; folio: Dublin 710; lands: townlands of 29696 & 14844; lands: townland Clifford, Patrick (Joseph) Regd owner: Michael John Early; Ballygreany and barony of Offaly of Cleaheen and barony of Boyle; (deceased), late of Faha West, folio: DN4807L; lands: property West; Co Kildare area: 15.0671 hectares; Co Killarney, Co Kerry and 57 Gandon situate in the townland of Regd owner: Thomas Flynn; folio: Roscommon Close, Harolds Cross, Dublin, 6W. Kilmacud West and barony of 5962 (now folio 18748); lands: Regd owner: Owen McGreevy; folio: Would any person having knowledge Rathdown; Co Dublin townland of Kilmurray and barony townland of Dorrary and barony of a will being made by the above Regd owner: Carl Keenan; folio: of Carbury; Co Kildare of Boyle; area: 12.077 hectares; Co named deceased who died on 10 May DN127916F; lands: property Regd owner: Agilux Limited; folio: Roscommon 2001, please contact Padraig J known as 2 Warrenstown Court, 16692; lands: townland of Regd owner: Francis Kelly; folio: O’Connell, Solicitors, Glebe Lane, Blanchardstownheath; Co Dublin Allenwood North and barony of 7417; lands: townlands of Killarney, Co Kerry, tel: 064 33278 or Regd owner: Leslie and Bernadette Connell; Co Kildare Garrynagran and barony of fax: 064 34286 Stone; folio: DN64408F; lands: Regd owner: Carmel O’Neill; folio: Athlone north; area: 12.8563 property situate in the townland of 15377; lands: Ballyverneen and hectares; Co Roscommon Connor, William (deceased), late of Whitehall and barony of barony of Ida; Co Kilkenny Regd owner: Mary O’Loughnan; 6 Cromlech Court, Ballymun, Dublin Rathdown; Co Dublin Regd owner: the County Council of folio: 38602; lands: Lisgibbon and 11. Would any person having knowl- Regd owner: Patrick J and Eileen the County of Laois; folio: barony of Clanwilliam; Co edge of a will made by the above

61 Law Society Gazette April 2002 Professional information

of a will being made by the above Busy Dublin 7 practice seeks named deceased who died on 13 newly-qualified solicitor for litiga- February 2002, please contact Cahill tion and conveyancing work; attrac- and Co, Solicitors, Abbeyleix, Co tive salary for suitable candidate. Laois, tel: 0502 31220 or fax: 0502 Please reply to Box no 40 31480 Solicitor required for busy litiga- W ILLS EARCH M ISSING Trehy-Butler, Jean Alice, late of 1 tion department of practice in the Bishops Dale Court, Ridgeway north east. Must have experience. Heights, Sheffield, S20 5PD, Attractive remuneration package for H EIRS T RACED England, and also of 18 Glenvale suitable candidate. Apply with full Court, Clybaun Road, Salthill, Co details of experience to KMR Galway, and formerly of 97 Clyborne Accountants, Crowe Street, Heights, Galway. Would any person Dundalk; reference JMK having knowledge of a will made by +44 (0)20 7549 0900 the above named deceased who died Solicitor required: experience in on 16 February 2002, please contact conveyancing and probate essential Fax: +44 (0)20 7549 0949 • DX: 53347 Clerkenwell

Email: [email protected] • www.title-research.com Arthur O’Hagan, Solicitors, 9 (min three years’ PQE). Court expe- Harcourt Street, Dublin 2, tel: 475 rience desirable. Busy practice – half 8701 or fax: 478 1583 hour’s drive from Galway City. Apply to A Gerard Moylan & Co, Twomey, Fr Timothy (deceased), Solicitors, Loughrea, Co Galway, tel: named deceased after 17 January of a will being made by the above late of Sandyford Road, Dundrum, 091 841356 or fax: 091 842120 1992, please contact Stephen Connor named who died on 26 November Dublin 16. Would any person have at 28 Knowth Court, Poppintree, 2001, please contact Cahill and knowledge of a will made by the above Legal secretaries wanted: avoid the Dublin 11, tel: 01 842 6096 or fax: 01 Company, Solicitors, Abbeyleix, Co named who died at the Pallotine commute, enjoy flexible hours and 847 1714. The deceased passed away Laois, tel: 0502 31220 or fax: 0502 College in Thurles on 4 September work in Dalkey. Apply in writing on 29 January 2002. 31480 2001, please contact Moriarty & Co, with CV to Dominic Dowling, Solicitors, 11 Anglesea Street, Dublin Solicitors, 37 Castle Street, Dalkey, Foley, Ellen (deceased), late of 21 St O’Connell, Annie (deceased), late of 2, tel: 01 677 7306 and fax: 01 677 Co Dublin, or e-mail: dominicdowl- Patrick’s Cottages, Rathfarnham, 99 Errigal Road, Drimnagh in the 0277 [email protected] Dublin 14. Would any person having city of Dublin. Would any person knowledge or possession of the origi- having knowledge of a will made by nal will dated 11 June 1987 in relation the above named deceased who died EMPLOYMENT MISCELLANEOUS to the estate of the said Ellen Foley on 16 December 2000, please contact who died on 4 July 2000, please con- Bourke & Co, Solicitors, 167-171 Newly-qualified solicitor required Northern Ireland solicitors pro- tact John Synnott & Co, Solicitors, Drimnagh Road, Walkinstown, for busy Galway practice. Apply in viding an efficient and comprehen- 24 Dame Street, Dublin 2, tel: 679 Dublin, tel: 01 456 1155 or fax: 01 writing to Tom O’Regan & Co, sive legal service in all 3630 or fax: 679 3449, ref: JS/BOB 456 1176 (reference FOD/LS) Solicitors, 60 Lower Salthill, Co contentious/non-contentious mat- Galway ters. Dublin-based consultations and Jackson, Patrick (deceased), late of 1 O’Connell, Frank (deceased). If any- elsewhere. Fee apportionment. ML O’Neill Crowley Terrace, one knows the whereabouts of the Solicitor with savvy, experience, and White, Solicitors, 43-45 Monaghan Mitchelstown. Would any person will of Frank O’Connell, otherwise the constitution available for employ- Street, Newry, Co Down, tel: 080 having knowledge of a will made by known as Francis O’Connell, ment. Divorce and conveyancing pre- 1693 68144, fax: 080 1693 60966 the above named deceased who died Ballygibbon, Blarney, Co Cork, who ferred. North West. Tel: 074 58274 on the 31 January 2001, please con- formerly worked in Swissco, Little Northern Ireland agents for all tact Messrs John Molan & Sons, Island, Co Cork, who died on 29 Mullingar firm need qualified solic- contentious and non-contentious Solicitors, 57 Lower Cork Street, January 2002, could they please con- itor for full-time position; general matters. Consultation in Dublin if Mitchelstown, Co Cork, ref: tact Katherine Kelleher, Conway practice. Experience preferable. required. Fee sharing envisaged. KM/J.5955, tel: 025 24543 or fax: 025 Kelleher Tobin, Solicitors, 29 South Contact Sally-Ann O’Donnell or Offices in Belfast, Newry and 84343 Mall, Cork, tel: 021 427 3192 or fax: Paddy Crowley at 044 40887/8 or Carrickfergus. Contact Norville 021 427 0390 send CV to JJ Macken, Bishopsgate, Connolly, D&E Fisher, Solicitors, 8 Lambe, Katherine (otherwise Mullingar, Co Westmeath Tr evor Hill, Newry, tel: 080 1693 Kathleen) (deceased), late of St. Roche, Barry (otherwise Daniel 61616, fax: 080 1693 67712 Bridgid’s Home, Crooksling, Brittas, Finbar), late of 46 College Road, Locum solicitor needed for general Co Dublin, formerly of 67 Galtymore Cork (formerly Rathfadden, practice in Mullingar, 4/5 months; London solicitors will advise on Drive, Drimnagh, Dublin 12. Would Endsleigh, Douglas Road, Cork). May to September; experience need- UK matters and undertake agency any person having knowledge of the Would any person having knowledge ed. Contact Sally-Ann O’Donnell or work. All areas. Corporate/private whereabouts of the original will exe- of a will made by the above named Paddy Crowley at 044 40887/8 or clients. Ellis & Fairbairn, 26 Old cuted by the above named deceased deceased who died on 10 March send CV to JJ Macken, Bishopsgate, Brompton Road, South Kensington, on the 15 April 1998, the said 2002, please contact Farrell and Mullingar, Co Westmeath London SW7 3DL, England, tel: deceased having died on 5 August Partners, Solicitors, O’Connor 0044 171 589 0141, fax: 0044 171 2001, please contact Taylor & Square, Tullamore, Co Offaly, tel: Corporate lawyer to €55k + bens 225 3935 Buchalter, Solicitors, Greenside 0506 21477 and 0506 21805, fax: required for top class multinational in House, 45/47 Cuffe Street, Dublin 2, 0506 51532, e-mail: farrellandpart- the midwest region. Candidates will Northern Ireland solicitors. Will tel: 01 478 2966 or fax: 01 478 2776, [email protected] be fully qualified lawyer/barrister with advise and undertake NI-related quoting reference RMcL commercial experience. Drafting skills matters. All areas corporate/private. Shanahan, Frances (otherwise and knowledge of EU law essential. Agency or full referral of cases as McCoy, Felix (deceased), late of Frances Brown) (deceased), late of Contact Jackie Kelly, IRC Limerick, preferred. Consultations in Dublin Ballyroan Road, Abbeyleix, Co Laois. Vesey Hill, Abbeyleix, Co Laois. tel: 061 313744, fax: 061 417553 or or elsewhere if required. Fee sharing Would any person having knowledge Would any person having knowledge e-mail: [email protected] envisaged. Donnelly Neary &

62 Law Society Gazette April 2002 Professional information

Donnelly, 1 Downshire Road, Established solicitor’s practice for In default of any such notice being Newry, Co Down, tel: 080 1693 sale in Co Louth. Excellent opportu- received, the applicant intends to OFFICES TO LET 64611, fax: 080 1693 67000. Contact nity. Principals only. Please reply to proceed with the application before Offices available opposite KJ Neary Box no 43 the county registrar for the county of Four Courts. Approximately 1,400 square feet. the city of Dublin for directions as Available by way of lease Publican’s ordinary seven-day may be appropriate on the basis that Personal injury claims, employ- assignment. ment, family, criminal and property licence for sale. Please contact the person or persons beneficially For more details, law specialists in England and Wales. Messrs John Casey & Co, Solicitors, entitled to the superior interest, please call 677 9877 Offices in London (Wood Green, Bindon House, Bindon Street, Ennis, including the freehold reversion in Camden Town and Stratford), Co Clare, tel: 065 682 8159, refer- each of the aforesaid premises, are Birmingham and Cardiff. ‘No win, ence: OA/MK unknown and ascertained. of the freehold interest in the afore- no fee’ available for accident and Date: 26 February 2002 said properties, and any party assert- employment claims, legal aid for Signed: Kent Carty, Solicitors, 47-48 ing that they hold a superior interest family and criminal cases. Contact TITLE DEEDS Parnell Square, Dublin 1 in the aforesaid premises (or any of Levenes Solicitors at Ashley House, them) are called upon to furnish evi- 235-239 High Road, Wood Green, In the matter of the Landlord and In the matter of the Landlord and dence of title to the aforementioned London N22 8HF, tel: 0044 20 8881 Tenant Acts, 1967-1994 and in the Tenant Acts, 1967-1994 and in the premises to the below named within 7777. Alternatively, e-mail us on matter of the Landlord and Tenant matter of the Landlord and Tenant 21 days from the date of this notice. [email protected] or visit our web- (Ground Rents) (No 2) Act, 1978: an (Ground Rents) No 2 Act, 1978: an In default of any such notice being site at www. levenes.co.uk application by Bernard Richardson application by Bernard Richardson received, the applicant intends to Take notice that any person having Take notice that any person having proceed with the application before any interest in the freehold estate of any interest in the freehold estate of the county registrar for the county of EYE INJURIES AND the following properties: the premises the following properties: all that and the city of Dublin for directions as OPHTHALMOLOGICAL at the rear of 28 Gardiner Place, those the hereditaments and premises may be appropriate on the basis that NEGLIGENCE Dublin, more particularly known as being the stable at the rear of the the person or persons beneficially 27A Gardiner Place (Grenville Lane) house premises no 29 Gardiner Place entitled to the superior interest, Mr Louis Clearkin ChM, FRCS, in the city of Dublin held under a situate in the parish of St George and including the freehold reversion in FRCOphth, DO, MAI, MEWI periodic tenancy subject to the yearly county of the city of Dublin and held each of the aforesaid premises, are Consultant Ophthalmic Surgeon rent of £85 per annum. under an indenture of lease dated 26 unknown and unascertained. Take notice that Bernard July 1946 made between Linda Date: 26 February 2002 Experienced expert witness in Richardson intends to submit an appli- McWhinney of the one part and Signed: Kent Carty , Solicitors, 47-48 ophthalmological personal cation to the county registrar for the Bernard Richardson of the other part Parnell Square, Dublin 1 injury, medical negligence and county of the city of Dublin for the for the term of 500 years from 1 July civil litigation acquisition of the freehold interest in 1946 subject to the yearly rent of £1, In the matter of the Landlord and the aforesaid properties, and any party 10s and the covenants on the part of Tenant (Ground Rents) Acts, 1967- Renuntiabo, 8 Rose Mount, asserting that they hold a superior the lessee to be performed and the 1978: an application by Gerard Oxton, Wirral, Merseyside, interest in the aforesaid premises (or conditions therein contained. Kinahan L43 5SW any of them) are called upon to furnish Take notice that Bernard Richardson Ta ke notice that any person having evidence of title to the aforementioned intends to submit an application to any interest in the freehold estate of secretary: +44 (0) 151 6047047 premises to the below named within the county registrar for the county of the following property: all that and fax: +44 (0) 151 6047152 21 days from the date of this notice. the city of Dublin for the acquisition those dwelling house and premises e-mail: [email protected]

Mortgage brokers have office to NORTHERN DUBLIN SOLICITORS’ rent, own access, fax and photocopy- J. DAVID O’BRIEN PRACTICE OFFERS ing facilities available. €130 per IRELAND week, Phibsboro area, tel: 087 256 SOLICITORS AGENCY WORK 9858 ATTORNEY AT LAW IN NORTHERN 20 Vesey St, Suite 700 We will engage in, IRELAND Clonmel – well-established small New York, NY, 10007 and advise on, general practice for sale. Reply in all Northern Ireland- Tel: 001212-571-6111 * All legal work undertaken strictest confidence to Box no 41 related matters, on an agency basis Fax: 001212-571-6166 particularly personal * All communications to clients Office to let: Arran Quay, D7, Email: [email protected] injury litigation. through instructing solicitors * Consultations in Dublin if required c30sqm, adjacent Four Courts. Fully PERSONAL INJURY ACCIDENT Consultations where refurbished. Superb condition in Contact: Séamus Connolly CASES convenient. Moran & Ryan, Solicitors, period building. Attractive and flexi- CONSTRUCTION Fee sharing Arran House, ble lease terms. Available immediate- RAILROAD envisaged. 35/36 Arran Quay, Dublin 7. ly. Contact Douglas Newman Good MARITIME Commercial at 01 673 1400 AVIATION OLIVER M LOUGHRAN Tel: (01) 872 5622 CAR/BUS/TRUCK Fax: (01) 872 5404 Ordinary seven-day publican’s & COMPANY MEMBER AMERICAN AND NEW licence for sale. Contact PJ e-mail: [email protected] YORK STATE TRIAL LAWYERS 9 HOLMVIEW TERRACE, O’Driscoll & Sons, Solicitors, 73 or Bank Building, Hill Street ASSOCIATIONS OMAGH, CO TYRONE South Mall, Cork, reference DK, tel: Phone (004428) 8224 1530 Newry, County Down. 021 2300 800 or fax: 427 4709 Enrolled as Solicitor Fax: (004428) 8224 9865 Tel: (0801693) 65311 in Rep of Ireland, England e-mail: Fax: (0801693) 62096 South West – busy sole practition- & Wales [email protected] E-mail: [email protected] er’s practice for sale, inquiries in con- fidence to Box no 42

63 Law Society Gazette April 2002 Professional information situate at Church Street, Clara, in the In the matter of the Landlord and Take notice that the executors of county of Offaly. Tenant (Ground Rents) Act, 1967- the estate of John A O’Connor, Take notice that Gerard Kinahan 1994 and in the matter of the deceased, being the person entitled to LAW SOCIETY intends to submit an application to Landlord and Tenant (Ground the fee simple, intend to submit an OF IRELAND the county registrar for the county of Rents) (No 2) Act, 1978 and in the application to the county registrar for Offaly for the acquisition of the free- matter of the Landlord and Tenant the county of Cork for the acquisition ON E-MAIL hold interest in the aforesaid proper- (Ground Rents) Acts, 1967-1984: of the freehold interest in the aforesaid ty, and any party asserting that they notice of intention to acquire the property, and any party asserting that hold superior interest in the aforesaid fee simple they hold a superior interest in the premises are called upon to furnish To any such person or persons for the aforesaid are called upon to furnish evidence of title to the aforemen- time being entitled to the interest in evidence of title to the aforementioned tioned premises to the below named the freehold estate of the following premises to the below named within within 21 days from the date of this property: all that piece or plot of 21 days from the date of this notice. notice. ground situate at Sidney Place of In default of any such notice being In default of any such notice being Saint Anne Shandon and the city of received, the executors of the estate of received, Gerard Kinahan intends to Cork, more commonly known as John A O’Connor, deceased, intend to proceed with the application before Glenvera Hotel car park and more proceed with the application before the county registrar at the end of 21 particularly delineated and described the county registrar at the end of 21 days from the date of this notice and in the map thereof thereunto annexed days from the date of this notice and will apply to the county registrar for and thereon coloured orange and held will apply to the county registrar for the county of Offaly for directions as under indenture of lease dated 24 the county of Cork for such directions may be appropriate on the basis that April 1906 and made between John as may be appropriate on the basis that Contactable at the person or persons beneficially Cotter Wood and George Augustus the person or persons beneficially enti- [email protected] entitled to the superior interests, Wood of the first part, Richard Wood tled to the superior interest, including including the freehold reversion, are of the second part and PH Thompson the freehold reversion in the property, Individual mail unknown and unascertained. & Son Limited of the third part for a are unknown and unascertained. addresses take Date: 1 April 2002 term of 848 years for a yearly rent of Date: 20 March 2002 the form: Signed: O’Donovan & Cowen, solicitors thirty pounds and subject to the con- Signed: Timothy J Hegarty & Son, solic- [email protected] for the applicant, William Street, venants and conditions on the part of itors for the applicants, 58 South Mall, Tullamore, Co Offaly the lessee therein contained. Cork

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64 Law Society Gazette April 2002