Contents GazetteLawSociety

Regulars Cover Story Cut to the quick President’s message 3 14 You think the arguments over divorce in Ireland finished with the Family Law (Divorce) Act, 1996? Wrong. Geoffrey News 4 Shannon reports that a new regulation from the EU means that ‘quicky’ divorces and ‘forum shopping’ are once again Letters 8 on the agenda Viewpoint 11

Tech trends 32 Don’t look back Book reviews 34 20 The European convention on human rights is set to play Briefing 37 a vital role in one of the Council report 37 most sensitive (and politi- cally charged) areas of law SBA report and – refugees and asylum- accounts 39 seekers. Noeline Blackwell Legislation looks at the convention update 40 articles that are likely to Personal injury have the biggest impact judgments 42 on practitioners FirstLaw update 46 Eurlegal 51 Is Ireland out of tune on copyright? People and The Napster case has sent shock waves through the record indus- places 57 24 try, the Internet community and the public at large. Denis Apprentices’ page 59 Kelleher discusses the US decision and analyses Ireland’s attempts to address the issue of copyright infringement without Professional unfairly crippling on-line initiatives information 60

COVER PHOTO: [email protected] Avoiding mistaken settlements 28 Settling out of court may seem like the quickest and most cost-effective way of solving a contentious issue but, as Paul Anthony McDermott explains, dis- agreement about the terms can bring litigants and their lawyers back into conflict

Editor: Conal O’Boyle MA. Assistant Editor: Maria Behan. Designer: Nuala Redmond. Editorial Secretaries: Catherine Kearney, Louise Rose. Advertising: Seán Ó hOisín, 10 Arran Road, Dublin 9, tel/fax: 837 5018, mobile: 086 8117116, e-mail: [email protected]. Printing: Turners Printing Company Ltd, Longford. Editorial Board: Pat Igoe (Chairman), Conal O’Boyle (Secretary), 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 95, number 3 E-mail: [email protected] Law Society website: www.lawsociety.ie Subscriptions: £45

1 EXTRA SEATS

NOW AVAILABLE DUE TO INCREASED DEMAND Annual Conference 2001 CALL NOW ON 01 672 4823 MONACO 26-29 April 2001

If you are thinking of attending the conference, ADVANCE BOOKING FORM avoid disappointment and book now. Advance bookings can be made by forwarding a booking Name: fee of £300 per person travelling to Mary Firm: Kinsella, Law Society, Blackhall Place, Dublin 7. Address: Tel: (01) 672 4823. Fax: (01) 672 4833.

Tel: Fax: Travel options will be available to delegates who Email: DX: would like to travel to Monaco in advance of the Year of admission to the roll: conference or stay on afterwards. Names of persons travelling: I enclose cheque in the sum of £

representing booking fee for persons. Note: THE CONFERENCE WILL BE HELD TWO WEEKS AFTER EASTER (EASTER SUNDAY 2001 IS ON 15 APRIL) President’s message

A confederacy of dunces

sn’t this a great little country all the same? But what do they do While we’re still waiting for any sign from the when the average government that it’s prepared to incorporate citizen decides to take the European convention on human rights into them at their word and IIrish law and while other vital legislation – vital sue for what he is as far as our profession is concerned at any rate – entitled to, as set out in such as the Solicitors (Amendment) Bill languishes in black and white in the the parliamentary process, the government can move various acts of the at lightning speed to announce a new Personal Oireachtas? They say it Injuries Assessment Board. is costing the country – Now, this bolt from the blue took most of us by and for ‘country’, you surprise. You might think that any government can read ‘big business’ worth its salt might actually consult those most – too much. It must be likely to be affected by its latest wheeze. Not in this stopped. It’s a national case. Neither the Law Society nor the Bar Council disgrace. Employers had any inkling that a task force had been set up to can’t afford it. And, of investigate this particular hot political potato. I say course, victims of ‘political’ because it’s quite obvious from the negligence would never composition of the ‘task force’ that the Irish have dreamed of suing Business Employers’ Confederation had more than a for compensation if it passing interest in the deliberations of this body. weren’t for the likes of Pardon the cliché, but isn’t that a little like putting us. So of course it makes sense to cut lawyers out of ‘Before you can the fox in charge of the chicken coop? Before you the equation. Sure everyone knows we’re just in it say “vested can say ‘vested interest’, this task force has come to for the money anyway. the conclusion that the real problem facing Irish So the next time you’re sitting in your office and interest”, this society is not negligent employers but the victims of you’re visited by a client (or their bereaved spouse) task force has their negligence. who’s been seriously injured as a result of someone else’s greed and negligence, you’ll know exactly what come to the Who provoked this‘national crisis’? to say them, won’t you? ‘Sorry, Gungha Din, I can’t conclusion that Apparently, the country is facing bankruptcy because help you there. Why don’t you toddle along to the all those people who suffer serious injury as a result assessment board to find out what your life is the real problem of shoddy work practices are suing for what they are worth?’ facing Irish legitimately entitled to in law. If the government buys And don’t even start me on the recently- into this piece of nonsense, perhaps they should have announced changes to the jurisdictions of the society is not cut out the middleman and banned personal injury District and Circuit courts. negligent litigation altogether. Don’t you think they should take Government by consent? A confederacy of just a smidgen of responsibility for having provoked dunces. What a great little country. employers but this ‘national crisis’? After all, from an employer’s the victims of perspective, they are the ones who keep passing all Ward McEllin, those pesky laws relating to health and safety. President their negligence’

3 News Law Society warns of big delays as result of jurisdiction changes he government’s proposal to in eliminating delays. years ago would have been Tincrease jurisdiction limits ‘In our view, these enormous heard by the High Court, of District and Circuit courts is increases of jurisdiction are would now be dealt with by the ‘simply unworkable’, the Law very unwise’, says McEllin’s District Court. The society Society has said. In a letter to letter. ‘They will have a very seriously questions the Minister for Justice, seriously disruptive effect on a whether the District Court or, Equality and Law Reform, John courts system which is for that matter, the Circuit O’Donoghue, Law Society currently working well and, in Court, will be able to give the President Ward McEllin said particular, through the amounts of time appropriate that the proposals to increase introduction of delay to that and necessary to deal properly jurisdiction in the District system, will diminish the with cases at the upper levels of Court from £5,000 to £16,000 quality of justice available to the new proposed jurisdictions. and in the Circuit Court from the public. This will inevitably result in a £30,000 to £80,000 will undo ‘Under what is now much higher level of appeals the good progress which has McEllin: District courts will not be reportedly proposed, a claim being taken than is currently been made in the last five years able to cope for £16,000, a case which ten the case. ‘It is our belief that the District courts simply will not be able to cope with the huge Copyright and the Law Society library infusion of work on the civil ew rules governing the From 1 April, anyone use it except for research and side which will occur if the Nphotocopying of material requesting articles from will not supply a copy to jurisdiction is more than held in libraries came into periodicals (including law anybody else. trebled. For example, in force on 1 January 2001. reports) or extracts from The regulations apply to a Dublin at present it takes some Copying by librarians is textbooks to be photocopied by permitted number of articles four or five months between permitted subject to the a member of the library staff from a periodical or extract the issuing of a civil process conditions set out in sections must have supplied the from a textbook. They do not and its hearing date. It is 59 to 70 and section 229 of librarian in advance with a apply to bills, acts or statutory anyone’s guess what delay the Copyright and Related Rights personally-signed copyright instruments held under would result from the proposed Act, 2000, and in the Copyright declaration form in relation to Oireachtas copyright, or to increase in jurisdictions. and Related Rights (Librarians each item requested. This unreported judgments. Materials However, it seems not at all and Archivists) (Copying of effectively says that he has not to be copied for judicial unlikely that the five months protected material) Regulations previously been supplied with a proceedings are also exempt could become 18 months or 2000. copy of the material, will not from the regulations. more’. ONE TO WATCH: NEW LEGISLATION Equal Status Act, 2000 similar grounds in the workplace’. discrimination on the ground of • The act applies to sale and (implemented 25 October 2000) That’s how the Minister for Justice, age rental of property, which is of ‘The Equal Status Bill will, for the Equality and Law Reform, John • There is a general duty to ‘do all increasing relevance in the first time, provide protection O’Donoghue, introduced the second that is reasonable’ to context of increased against discrimination outside the stage of the bill in the Dáil in May accommodate the needs of immigration. There are some field of employment. It deals with 1999. disabled people, though only at a exceptions, as for small discrimination on the grounds of In 1997, the previous Equal nominal cost. This gives scope accommodation where the owner gender, marital status, family Status Bill was referred to the for development in the future, as will continue to live in part of it, status, sexual orientation, religion, Supreme Court, which found two decisions have to be made as to and special accommodation age, disability, race and aspects of the bill to be what is reasonable, and what is such as refuges, nursing homes, membership of the traveller unconstitutional: vicarious liability of a nominal cost and retirement homes. Likewise, community and gives those who are employers for criminal acts of • Special allowance is made for housing authorities may discriminated against a statutory employees and use of a certificate services requiring physical discriminate on the usual means of redress. It has a broad in a criminal trial. The bill was contact grounds of family size, family ranging scope covering provision of redrafted in the light of the Supreme • Special allowance is made for status, and so on goods and services, disposal of Court judgments on that bill and the insurance and finance based on • Educational establishments are premises and accommodation, Employment Equality Bill. actuarial or similar data included, with generally accepted education and registered clubs. The following are its key • Sporting facilities and events are exemptions such as for single- This measure complements the elements in brief: exempted, and there are sex schools and schools with a Employment Equality Act, 1998, • Different treatment of people exemptions for other generally certain religious ethos which prohibits discrimination on under 18 does not amount to accepted situations • Positive discrimination for

4 News

LAW CONGRESS COMES Overhaul of courts system TO DUBLIN The International Law Congress will take place in needed, says chief justice Dublin from 14-16 May. The conference will feature more he days of the Circuit than 100 speakers on such TCourt may be numbered, if themes as communications suggestions from Chief Justice and IT law, innovations in Ronan Keane are taken on legal management, board by the government. In a international financial law, speech in Cork last month, the and EU competition law. For chief justice said that the further information, visit replacement of our three-tier www.lawcongress.com or tel: system of courts with a two-tier 0044 (0) 1932 893 852. system ‘should seriously be considered’. NEW MEDICAL EXPERT ‘Instead of two courts at the BODY LAUNCHED local level’, he argued, ‘there A new medical expert could be one court, the District witness organisation has Court, with an increased challenges of a very different justification for a Court of been set up in Dublin to jurisdiction embracing some of Ireland of the 21st century. Criminal Appeal with a provide expert opinions in the present Circuit Court And referring to the ‘patent constantly changing medical negligence and jurisdiction. The jurisdiction of anomalies’ in the current membership, composed as it is personal injury cases. the Circuit Court in serious system, he said: ‘There appears of one Supreme Court judge Medico-Legal Chambers Ltd crime could then be exercised to be no rational basis for the and two High Court judges’. is an offshoot of a similar by the High Court. The High distribution of serious crime He concluded by calling for company based in London. Its Court would then sit outside between the Circuit Court and a ‘wide-ranging enquiry into fee for preparing a medical Dublin regularly in criminal the Central Criminal Court. It how the present system is negligence report will be in cases, as it does already in a has never been explained why, operated, what delays and the range of £1,200–£1,500. great range of civil cases if murder and rape can be tried inefficiencies appear to result The cost for examining involving personal injuries’. only in the Central Criminal from its operation and what clients for the purpose of While accepting that the Court, the same does not apply lessons can be learned from the preparing a report on current system established after the to, for example, kidnapping, experience of other conditions and prognosis is War of Independence ‘had manslaughter, robbery with jurisdictions’. This, he said, £400, and the examination undoubtedly served us well’, violence and massive fraud. would be the first step in giving can take place in Dublin. Its Keane added that its principal The same would apply to Ireland a new court system fee for High Court features must now be reassessed grave sexual offences which fall designed to meet the challenges appearances is £1,500. For to determine whether they are short of rape. At the appeal of the new century. further information, tel: 01 ideally designed to meet the level, there is no rational See also Viewpoint, page 11. 296 2570.

disadvantaged groups is not because they cater for persons of • There is an exemption where transport to promote prohibited a particular religion, age, there would be ‘a substantial risk accessibility by disabled people • The act does not prohibit nationality or ethnic origin. Other of criminal or disorderly conduct •The Equality Authority, discrimination by clubs against common-sense exemptions relate or behaviour or damage to established under the members or applicant members. to sporting facilities or events, property’, and action taken in Employment Equality Act, has its Instead, it discourages such and positive discrimination good faith for the sole purpose of functions extended to deal with behaviour by putting in jeopardy • Harassment or sexual ensuring compliance with the enforcement of the provisions of a club’s registration (which harassment is prohibited, and Licensing Acts is not this act. The procedure involves allows it to hold a liquor licence). the management of premises discrimination. This will permit the complainant, or the authority, A complainant can apply to the must take steps to prevent it publicans, for example, to control sending a notice to the District Court for a determination • Advertising tainted by conduct on their premises respondent within two, or, that a club is a discriminating discrimination is prohibited. • Other exemptions are special exceptionally, four, months of the club, in which case its licence Breach is an offence. It is also fees for families or pensioners, occurrence complained of. cannot be renewed until the an offence to involve another for example, discrimination on Assuming the matter does not position is rectified. However, person in prohibited conduct the basis of clinical judgement end there, it may be referred to the club will not be denied public • There is a general exemption for and treating a person differently the director up to six months of funds or the use of publicly- court orders, EU legislation and who is unable to enter into a the occurrence complained of, owned recreational facilities obligations under international contract or give an informed or, exceptionally, 12 months • There are some exemptions for law. There is also a general consent • The director may refer the case registered clubs, which are not exemption for positive • The minister is empowered to to an equality mediation officer, regarded as discriminating just discrimination make regulations for public with the parties’ agreement CONTINUED ON PAGE 7➜

5 A Technology Fund that makes sense.

Introducing EBS Asset Managers Summit Technology Fund - a specialist fund which actively invests in the telecommunications, software, internet and other technology related sectors and is designed to achieve strong capital growth over the longer term.

Summit Funds are for lump sum investors with £3,000 or more to invest. They are a range of managed funds where your money is put to work from day one. There are no entry charges when you put your money in and no exit charges when you take it out. What’s more, you can check unit prices daily at www.ebs.ie.

Please contact your local EBS office or call EBS Asset Managers on 1850 203636 for further information and a copy of the prospectus.

You’re better off in the long run.

www.ebs.ie Chief Office: P.O. Box 76, 30/34 Westmoreland Street, Dublin 2.

As this is a stock market related investment, values may fluctuate, and returns are therefore variable. All taxes are paid by the fund and investors have no liabilities to personal taxes on returns received. News

NEW LITIGATION PRIMER The Calcutta Run is back PUBLISHED Dublin law firm William Fry has he Calcutta Run, an annual produced a new booklet called Tcharity event organised by Litigating in Ireland. For a free solicitors and supported by the copy of the guide, tel: 01 639 Law Society, will take place on 5000 or e-mail: central.mail@ Sunday 27 May. It comprises a williamfry.ie. It can also be 10k fun run/walk, followed by a downloaded from William Fry barbecue at Blackhall Place. The website at http://www. participants raise money williamfry.ie/litigation.htm. through sponsorship for their participation. TIPPERARY COURT GOES Last year’s event was a great HIGH TECH success with over 750 runners Practitioners should note and walkers taking part, and a that Circuit Court lists for total of £100,000 was raised for cases set down in Co Tipperary the two charities, GOAL’s will be forwarded only by e-mail project for street children in (to offices with e-mail Tennis legend Pat Cash with Law Society Junior Vice-President Michael Irvine Calcutta and Fr Peter McVerry’s addresses). Practitioners who shelters for homeless youths in are looking for participants and information, contact Laura do not have e-mail will still Dublin. It is hoped that this also for reps who will recruit Wyse on tel: 01 649 2000 or receive the lists by post – for year’s event will be even bigger and organise participants within [email protected] or visit the the present. and better, and the organisers their own firms. For further website at www.calcuttarun.com. NEW LRC PUBLICATIONS The Law Reform Commission has issued four new Last chance to book for Monaco publications: The rule against xtra places have been A full range of social activities love going and get a boost from perpetuities and cognate rules, Eprovided for the Law will be on offer as well. it, but it’s a worthwhile outing Homicide: the mental element Society’s annual conference The original closing date has since they have an opportunity in murder, The variation of because of unprecedented been extended to accommodate to mix with colleagues and get trusts, and The statutes of demand. This year the the extra demand, much of information on other limitations: claims in contract conference takes place in which is coming from firms that jurisdictions’. and tort in respect of latent Monaco from 26–29 April and regularly return to the Law To sign up for the conference damage. To obtain copies, the theme is Money and people: Society conferences. ‘We send or to obtain further information, contact the Law Reform getting it right. The business staff as a reward for their efforts contact Mary Kinsella, the Law Commission, IPC House, 35-39 session will explore such issues as during the year’, says Susan Society’s publications and events Shelbourne Road, Ballsbridge, the introduction of the euro and Stapleton of Ivor Fitzpatrick in manager, on tel: 01 672 4823 or Dublin 4, tel: 01 637 7600 or staff recruitment and retention. Dublin. ‘Not only do solicitors e-mail [email protected]. e-mail: [email protected].

• The director conducts his investigation, including entering employers, whether or not they the District Court to both investigation and hears ‘all premises, requiring production knew or approved of what their investigate and make decisions persons appearing to the of documents, inspection of employee did in the course of on individual cases. It is also director to be interested and documents and records, and employment, but they have a interesting in the option to use desiring to be heard’ and makes obtaining a search warrant from defence if they show they took mediation to arrive at a decision. The director may the District Court reasonable steps to prevent the settlements. Mediation may well order compensation (up to the • The director may require prohibited behaviour prove to be particularly suited to amount the District Court could witnesses to appear, and apply •Offences under the act can incur conflicts of this kind. award in contract cases), or the to the Circuit Court for an order a fine of up to £1,500 and/or Background information on the taking of a course of action if there is a lack of co-operation. one year’s imprisonment, or a act can be found in the Oireachtas • Appeals lie to the Circuit Court, Disclosure of information to the fine of up to £25,000 and/or two debates on the government and to the High Court on a point director, authority or authorised years’ imprisonment. On-going website at www.irlgov/oireachtas. of law person will not give rise to offences incur daily penalties Look up Legislative information, • Decisions of the director are liability in contract or tort for •Officers of a company can be Bills initiated in both Houses, published, and have absolute such disclosure, but such found guilty in their personal 1999 and find the dates of the privilege information may only be used capacities, along with the debates at the different stages of • Enforcement of the director’s for the purposes of the company. the bill. Then look up the debates decision, or a mediated investigation. Obstruction of the in the Dáil or Seanad, which are agreement, is by application to investigation is an offence. This is an innovative piece of listed by date. G the Circuit Court which will make Cases not pursued after one legislation which will give rise to a an order as appropriate year can be dismissed at the new area of practice. It is Alma Clissmann is the Law • The director (or his designated discretion of the director interesting in its use of a Society’s parliamentary and law officer) has wide power of •Vicarious liability is imposed on specialised authority rather than reform executive.

7 Letters Letters

Piqued penguin protests picture prank

From: Gerry Doherty, O’Reilly I am now repeating this offer. Doherty & Co, Dublin You probably are not aware or the second time in the that people from Mayo can be Fspace of 12 months I find it extraordinarily vicious and necessary to write to you in vindictive. Moreover, the relation to the content of the further west you go, the more Gazette. vicious and vindictive they My complaint relates to the become. So you may have more photograph published in the reason to watch your back than March Gazette (page 50). I you realise. should not need to remind you I now await your grovelling that last year you published an apology. equally offensive photograph PS. Who is the strange which portrayed me as drunk woman in the photograph? (see Gazette, March 2000, page Presumably from your point of Ward and Ann McEllin admire Mr Doherty’s sartorial elegance, while 6). Fortunately, it was not a suggesting slightly more appropriate attire view she might as well have not Council election year. This is, been there, as no indication is and the recent photograph What is disappointing is that You will recall on the given to her identity. portrays me as an illiterate and you can talk all you like about previous occasion I wrote to holds me up to ridicule. As you editorial independence, but it you that, rather than litigating The Editor replies: are no doubt well aware, this is does appear that Mr McEllin this matter, I would afford you Apology? Absolutely. We deeply a situation that was subverted same. It is a pity you the opportunity of printing a regret omitting the name of Ann orchestrated by the Law did not stand on your editorial full apology, together with a McEllin, wife of the president, Society president who, independence and tell him full-page photograph of my from the caption accompanying the presumably, found this amusing where to put his offensive choosing, to be published in photograph in the March for some bizarre reason. photograph. the next edition of the Gazette. Gazette. Meditations on mediation From: Michael Williams, Experience shows that prior connection with either by numbers’. Any adequately by e-mail ‘empowering’ the parties to party. trained mediator is aware of was interested in the article the mediation process greatly And that the hospital’s the stages described in the Iin the March issue of the increases the prospect of a panel consisted exclusively of article and can bring his or Gazette (page 16) about how settlement. An individual lawyers – either retired judges her clients through them, but the Rush Hospital in Chicago suing a large organisation is or practitioners – seems to a professionally competent uses mediation to explore the likely to feel powerless and limit choice unnecessarily. mediator, like a good possibility of settlement in insecure, and, with this in Moreover, I would expect a advocate, understands the medical malpractice claims. mind, I wonder whether a full-time professional stages in the process, but does The idea seems valuable, and system by which the plaintiff mediator to serve his clients not adhere to them slavishly. one that might be taken up in must choose a mediator from more effectively than a lawyer For these reasons, my Ireland, and I thought a panel selected and trained acting as a part-time sense is that plaintiffs, and, comments from a former (apparently by the defendant mediator. over a period of time, lawyer and mediator might hospital) is ideal. It might get Finally, it seems from the defendants, too, would be interest some of your other the process off to a better start article that the Chicago better served by using members. I will limit myself to if the plaintiff patient and the mediators are trained to take professional mediators than the process of selecting defendant hospital together certain steps in a specific by limiting themselves to a mediators, as described in the chose a suitably trained and order, and that they do so. panel of part-timers from a article. qualified mediator who had no This is what I call ‘mediation legal background.

8 Letters Don’t name ‘abusers’ until after conviction From: Ratio Decidendi, Newry into operation and before elementary fact at the very officer’s notes about the crucial robably unlike the other crucial changes are made to the outset and confront the ‘abuse’ dates. Pmembers of the general province’s criminal justice complainant with this crucial It is undeniable that public who attended the recent system? piece of evidence, thereby hundreds of people have been trial of Father Green in Newry Certain aspects of the pre- potentially obviating the abused by members of the Crown Court, I am neither a trial publicity, the complainant’s considerable expense of a week- Catholic Church, whether that member of the Roman evidence and the prosecution long trial that included the cost be by priests or members of Catholic Church (having left concern me. of a Crown Court judge, two religious orders. A lot of that organisation over 22 years First, the complainant (now leading Queen’s counsel, two unresolved hurt and emotional ago) nor am I an active aged 32) has been allowed to junior counsel, 12 jurors, four damage will emerge in the Republican sympathiser. remain anonymous (purportedly prison officers, the services of a forthcoming years, and the However, after having listened for legal reasons), whereas leading firm of solicitors, several church must deal with genuine very carefully to the Father Green’s impending officials from the DPP, victims sympathetically. complainant’s ‘evidence’, and prosecution had been publicised members of the Newry Court However, there is a danger that assimilated the manner in in the media for years. Even office staff and the RUC? unsubstantiated, untrue which the prosecution case had though there is an acquittal in Third, there was no allegations will be made against been prepared by the RUC’s this case, some ‘mud’ may stick, independent objective evidence members of the church many Child Abuse and Rape Enquiry and there may always be the to confirm the allegations, and years, sometimes decades, after (CARE) Unit and then the lingering suspicion in people’s there were significant abuse supposedly took place. Office of the Director of Public minds that some form of ‘abuse’ discrepancies in the To protect the innocent Prosecutions, I am suspicious occurred, but insufficient proof complainant’s age (when the victims of spurious allegations, that there were other agendas was adduced in court to abuse purportedly took place) I contend that an immediate in operation in relation to this produce a conviction to the that he gave to the RUC. These legislative change is needed to extremely well-publicised criminal standard; that is, ranged from the ages of 15 to prevent publication or prosecution. ‘beyond reasonable doubt’. 17, nine to 11, and 14 to 16. broadcast of any alleged It is common currency in the Second, the complainant There were also elementary abuser’s name until after their Newry area that Father Green claimed to have been sexually mistakes in the investigating conviction. has strong Republican abused by Father Green (a close sympathies and (in relation to family friend) after having been this prosecution) it may not be taken for a meal in the Lauding the librarians without significance that this Aylesforte House restaurant in priest’s brother escaped from Warrenpoint in late 1985, on From: Michael Twomey, Dublin area of law. The assistance is Long Kesh in a clerical outfit his 17th birthday. However, this n recent times, I have had the same whether the query is many years ago. Was this trial a well-known restaurant did not Ireason to spend a raised in person or over the belated ‘settling of scores’ actually open until 1986! Why considerable amount of time in telephone, whether from a before the new Northern did the RUC’s investigating the Law Society’s library. large Dublin firm or a sole Ireland Police Service comes officer not check this While in the library, I have practitioner down the country. found it impossible not to be It struck me that this assistance impressed with the courteous and expertise is a considerable and professional assistance resource to our profession and DUMB AND DUMBER given by the librarians to one which may sometimes be queries on every conceivable taken for granted. From: Martine E Kerr, Tarrant calls into question the powers & Tarrant, Co Wicklow that the Garda now have in am quoting from a letter of view of recent legislation, Iinstruction from a Danish and, in particular, the And more lauding … firm of solicitors to ourselves Criminal Justice (Public Order) From: Thomas J O’Halloran, proceeded to check with the in connection with a debt- Act, 1994: Tralee British Library and the collection matter. It reads as ‘Your client, (name withheld), recently had reason to Institute of Advanced Legal follows: violently assaulted this young Irequest the Law Society Studies and, at the end of the ‘and thereby kindliest ask you lady totally without any library to send me a number of day, she had obtained all of the on my behind to try to collect provocation and indeed the articles from various journals. articles bar one. my client’s account’. matter has now been brought The matter was extremely My request was dealt with in to the attention of the Garda urgent and I asked that they a most courteous and From Declan Molan, John and an execution is pending’. would be faxed to me. It professional manner. I was Molan & Sons, Co Cork Very extreme, I would think. transpired that some of the certainly left under the feel that the following extract articles were from the To r t law impression that no effort would Ifrom a letter that I recently Declan Molan wins the bottle review, which is unavailable in be spared to try and facilitate received from a colleague of champagne this month. Ireland. me. The service rendered was The library staff member most impressive.

9 Letters Time to rethink our conveyancing fees?

From: James Cahill, Cahill & government’s take, you will time of no inflation. He was for conveyancing work cannot Cahill, Castlebar note, has increased by a factor paid £1.50 a week. If the in the long term afford to efore Christmas, I had of 4,887, while the solicitor’s equivalent was as little as £300 recruit and hold on to staff. Boccasion to examine an old fee, assuming that there was a week today, the inflation Solicitors’ offices are doing file of my father, the late John no mortgage in 1930, has factor would be 200. far more work in F Cahill, solicitor. On the file increased by a factor of 97. It is clear that the biggest conveyancing for was a bill prepared by solicitor My late father got his first inflation effect has come from proportionately far smaller Alfred VG Thornton, job in a Dublin office as a government. Solicitors who fees than their grandparents grandfather of our Law Society solicitor in or about 1932, a do not charge a rational sum would have charged and president’s wife, Ann McEllin. received in 1930. I thought the bill for the I do feel that solicitors purchase of a £300 premises 1930 2000 throughout the country was particularly interesting. I % £ % £ Factor by should examine these figures prepared some calculations on Property 100 300.00 100 118,050 394 with a view to charging a spreadsheet which shows Government take rational business-like fees for what the current position Duties 1.50 7,083 work done by their offices. To would be if one were to apply VAT on fees 248 my mind, failure by a solicitor the CPI inflation factor of 394 0.5% 1.50 6.2% 7,331 4,887 to charge a rational fee in (see panel). Legal costs conveyancing matters Note, in particular, that the Approval fee 1.1% 3.15 – represents bad practice premises has increased in value Seller solicitor 3% 9.00 1% 1,181 management. From an by a factor of 394, which 4.1% 12.15 1,181 97 examination of these figures, would be about accurate, or a Other comparatives you will also see that a house little low, for the value of the Junior solicitor per week 1.50 300 200 is less affordable today than it particular premises in Consumer price index 1.50 591 394 was for a solicitor in 1930, at Castlebar today. The a time of much less affluence.

HIT THE GROUND RUNNING

Open your Global Gateway to Living & Working in Australia

TMP Worldwide’s Global Gateway Team has been established to help you hit Our local Candidate Manager can provide information on: the ground running on your arrival in Australia or New Zealand. We have • Visas - where to get them and how. over 280 offices in 30 countries across the globe and a network of International Candidate Managers ready to assist you with your next career •Travel and Relocation - general information to assist both working holiday move. makers and candidates relocating abroad. • Jobs and Careers - including up-to-date market and salary information for If you are in the process of applying for a visa to work in Australia or New all industries. Interviews can be arranged at your destination with our Zealand or have already been granted your visa, why not contact the Australian consultancy, Morgan & Banks prior to your departure. dedicated Candidate Manager in our local Dublin office? In Australia and New Zealand, TMP Worldwide is able to assist candidates To contact our International Candidate Manager in Dublin, please call Jane specialising in the following industries: Banking and Finance, Accounting, IT, Barnes on +353 1 634 4143 or email a CV to [email protected] Sales and Marketing, HR, Legal and Administration and Support.

10 Viewpoint A courts system for the twenty-first century Just how many types of court should we have in this country? Could we get by with a two-tier system? Probably, argues Chief Justice Ronan Keane, who says that it’s time to take a long hard look at the way we organise our courts

he Irish courts system, distribution of serious crime Tsince it was first established between the Circuit Court and in 1924, has never been the Central Criminal Court. It subjected to any critical has never been explained why, analysis conducted with a view if murder and rape can be tried to ascertaining how far it falls only in the Central Criminal short of achieving the presumed Court, the same does not apply objectives of any such system. It to, for example, kidnapping, would probably be generally manslaughter, robbery with agreed that the objective should violence, and massive fraud. be to provide the citizens with a The same would apply to grave system of civil and criminal sexual offences which fall short justice that is accessible to all of rape. At the appeal level, and which functions in a there is no rational justification manner that is impartial, open for a Court of Criminal Appeal and expeditious. I do not with a constantly changing propose here any detailed membership, composed as it is solutions to such problems as of one Supreme Court judge appear to arise: I content myself and two High Court judges. with indicating possible strategies that might at least be Lengthy court sittings considered. While little research has been The system which was done on the extent to which the established in 1924 was in many present system is producing ways a radical departure from Chief Justice Ronan Keane: ‘there appears to be no rational basis for delays, such delays undoubtedly the distribution of serious crime between the Circuit Court and the that which existed before Central Criminal Court’ exist, although they are worse independence. It has in some areas than in others. undoubtedly served us well, but reviewed. The Supreme Court the system. First, the The Court of Criminal Appeal its principal features must now is the final court of appeal in jurisdiction of the District and is a particularly serious be reassessed to determine civil matters (save where the Circuit courts in civil cases has example, but there are also whether they are ideally law provides otherwise) and in on occasion been increased, significant delays in bringing at designed to meet the objectives all constitutional cases. The sometimes simply to reflect the least some criminal cases to I have suggested in the very Court of Criminal Appeal hears fall in money values, sometimes trial and in the hearing of some different Ireland of the 21st appeals from serious crimes in more extensively. In addition, civil actions. What is beyond century. both the Circuit Court and new legal jurisdictions created doubt is that some courts, in High Court (the Central by statute – such as family law, order to deal with the volume A solid foundation Criminal Court) and the Special planning and employment law – of business which they have, There have, of course, been Criminal Court (the non-jury have been assigned to the have to conduct protracted many changes in the system criminal court established to different court levels. In every sittings sometimes well into the since 1924, but its basic features deal with subversive crimes and other respect, the structure has night. Although the dedication remain untouched. The High other crimes for which the jury remained unchanged. of the judges to their work is Court has unlimited original system is deemed unsuitable). Even if there were no unquestionable, there must be jurisdiction in all civil cases, has Questions of European evidence whatever of any delays, serious anxiety as to the quality exclusive jurisdiction in the Union law in disputed cases inefficiencies or inequities of justice being administered at criminal law in murder and must ultimately be resolved by resulting from the present lengthy sittings of that nature. rape cases, and is the only court the Courts of Justice of the system, one would be struck A remedy sometimes of first instance in which the European Communities in with the patent anomalies. They proposed of increasing the constitutionality of laws can be Luxembourg. are perhaps most striking in the number of judges is frequently considered and the decisions of In only two areas have criminal law: there appears to met with the response from the inferior tribunals and bodies alterations been introduced to be no rational basis for the executive that many courts,

11 Viewpoint particularly in rural areas, are an attack on the defects in the from the experience of other notably under-worked. Far present court system. ‘Instead of two courts jurisdictions. The reports of the from suggesting that the One model which should Denham Working Group and present system is satisfactory, seriously be considered is the at the local level, their speedy implementation by that merely serves to emphasise replacement of the three-tier there could be one, the government has resulted in a how unsatisfactory it is: clearly system of first instance courts major revolution in the manner the inadequate resources now with a two-tier system. Instead District Court, with an in which our courts are available are simply not being of two courts at the local level, increased jurisdiction’ administered, which is already used to the best effect. there could be one court, the bearing fruit in the massive There is, accordingly, need District Court, with an increased court repair and rebuilding for a two-fold strategy: a re- jurisdiction embracing some of programme and the examination of the present the present Circuit Court where a point of law of general introduction of information court structure in existence jurisdiction. The jurisdiction of importance was involved and technology, all going forward since 1924 and a significant the Circuit Court in serious with constitutional cases. under the aegis of the Courts increase in the number of crime could then be exercised by A structure of that nature Service. judges at the three first instance the High Court. The High would more closely resemble The establishment of a levels, the District, Circuit and Court would then sit outside the courts structures of most of working group drawn, as that High courts. Ireland has the Dublin regularly in criminal the other members of the was, from all the interested lowest number of judges per cases, as it does already in a European Union, but would sections of the community and head of population in the great range of civil cases also be similar to the structures equipped, as that was, with the European Union and, while involving personal injuries. in existence in at least some necessary resources to that undoubtedly reflects common-law jurisdictions, such undertake such an enquiry aspects of our system which Courts of appeal as New Zealand and some of should be the first step in giving differentiate us from the civil- Under such a new system, there the states of the United States. Ireland a new courts system law countries of continental would be a two-tier appellate What is required in the first designed to meet the challenges Europe, there is a strong case structure. There would be a instance is a wide-ranging of the new century. G for appointing more judges. permanent court of appeal enquiry into how the present That again, however, is subject sitting in two divisions, civil and system is operated, what delays Mr Justice Ronan Keane is the to the caveat, which cannot be criminal. The Supreme Court, and inefficiencies appear to Chief Justice of Ireland. This is an too strongly emphasised, that in the result, would deal only result from its operation and edited version of a lecture he gave this should be accompanied by with civil and criminal cases what lessons can be learned to the UCC law society last month. leaders… in the quest for excellence…

You’re a pro bl e m-solver.You need answers.You need speed and accuracy. You n eed a back-up service that is efficient and cost-effective. In short, you need the professionals at Rochford Brady, Ireland’s largest legal services organisation.

law searching • summons serving • town agents • company formation • title investigations • enquiry specialists rochford brady legal services limited dollard house 2-5 wellington quay dublin 2 ireland tel: 1850 529 732 fax: 1850 752 436 e-mail: [email protected] website: www.lawsearch.ie/rochford

12 Viewpoint Personal injuries board: neither fair nor sensible Ken Murphy argues that the real objective of a Personal Injuries Assessment Board is to reduce the compensation paid to the victims of negligent employers

he Law Society would innocent victims of negligent would appear from the report Twelcome any fair and sensible employers. Although the stated that practically no-one with any proposals to improve the current objectives are to reduce cost and expertise or experience in system for dealing with personal delay in the current system, it is litigation was consulted by a injury claims. Unfortunately, the ironic that two main effects of working group which appears to recommendations in this deeply the establishment of the board have operated almost by stealth. flawed report (see panel) are would be to increase costs and When news of the report’s neither fair nor sensible. introduce delay where none pending publication was leaked, The recommendations of this exists at present. It seems that I wrote the Tánaiste Mary report are unfair in that: proceedings could not be Harney to complain in the • There could be no confidence determined by a court until the strongest of terms at the for a claimant in having their PIAB had assessed the claim. Ken Murphy: ‘good news for society’s exclusion from claim assessed by a three-member The potential for constitutional negligent employers’ consultation. The Bar Council board, one member of which problems with this are as had also been excluded. would be a senior manager of an obvious as the potential for within the Courts Service’. How I pointed out that no-one insurance company. The file for serious delay. the government proposes to knows more about the claims the board would be prepared by The press release from resolve the obvious contradiction and compensation system in this an insurance company, and the Minister of State Noel Treacy whereby this ‘independent country and the manner in claimant would be neither seen which was issued with the report entity’ is supposed to exist within which it could be improved than nor heard by the board. The emphasised that: ‘The another independent entity, the solicitors and barristers who insurance company representative establishment of the new board namely the Courts Service, has are engaged in it. I asked why a would have an overall interest in will not infringe on the not been explained. The board deliberate decision appeared to reducing the level of awards to individual’s right of access to the of the Courts Service was have been taken to exclude us claimants. No-one on the board courts. Rather, it is intended that unaware of this proposal until from any involvement in this would have a counterbalancing the Personal Injuries Assessment the report was published. review. A month later, my letter interest in favour of the claimant. Board will work as an They were not alone in being has yet to be responded to, or This contrasts with the independent and expert entity excluded from consultation. It even its receipt acknowledged. independent and unbiased In the Law Society we are not approach of the judiciary surprised at the apparent established by the people of THE WORKING GROUP’S KEY antipathy felt in some quarters, Ireland under the constitution. RECOMMENDATIONS IBEC, for example, towards the The recommendations of this ‘It is proposed that, in every case where a person suffering bodily involvement of lawyers in report are not sensible in that: injury in a road traffic accident or in the course of employment anything to do with personal • They would inevitably involve makes a claim for compensation against the alleged defendant or injury claims. However, we the creation of a whole new defendant’s insurer, the alleged defendant or his/her insurer must would have hoped that the notify the PIAB of such claim. After allowing the parties a bureaucracy, to deal with many government would have had the prescribed period of time to reach a settlement, and if agreement thousands of cases every year, vision to see that while the had not been reached, the PIAB would make an independent operating on a national basis. In assessment of compensation. economics of personal injury essence, a sort of parallel courts ‘While the PIAB’s assessment would be expert and authoritative, claims is very important, there is system would be set up it would not preclude the claimant from exercising his/her more at stake than economics. throughout the country to constitutional rights to go to court. In that event, the assessment The maintenance of attempt to ‘first guess’ the by the PIAB would be made available to the courts. constitutionally-acceptable existing courts system. ‘The PIAB would have discretion not to make an assessment in norms of justice and the This report represents good particular cases, for example, in cases of exceptional complexity protection of the rights of news for negligent employers and and/or where the scales of injuries was particularly severe, or citizens are also of fundamental bad news for their victims. The where liability was totally rejected by the defendant. importance. Both the courts ‘It is proposed that the PIAB should be established on a inherent bias against victims in and the legal profession are statutory basis to give it the requisite authority and status’. the composition of the proposed required for this. G – The Second report of the Special Working Group on Personal new board shows that its real Injury Compensation, published by the Department of Enterprise, objective is to reduce the Trade and Employment Ken Murphy is the director general compensation paid to the of the Law Society.

13 Cover story Cut to the

So you thought the arguments over divorce in Ireland finished with the Family Law (Divorce) Act, 1996? Wrong. A new regulation from the EU means that ‘quicky’ divorces and ‘forum shopping’ are back on the agenda. Geoffrey Shannon reports

he European Union Commission’s decision to convert the Brussels II convention1 Tinto a directly applicable regulation will significantly impact on the practice of family law in Ireland. The regulation jurisdiction that determine which member state’s came into force on 1 March 2001 and will have far- court is competent to rule both on status matters • The Brussels reaching effects in determining the forum in which and on related custody matters. It can apply where II regulation the application for separation or divorce must be one of the parties is habitually resident in a member clearly heard and is likely to cause significant upheaval in state or is a national of or domiciled (in the Irish undermines the determination of the appropriate forum for sense) in such a state (article 7). Ireland’s issues of ancillary relief. As a result, there is clearly increased potential for constitutional In summary, the regulation sets out rules for the courts of England and Wales to assume position on determining jurisdiction in family law disputes jurisdiction. This could arise, for example, where divorce within the EU and requires courts of member states the petitioner is habitually resident in England and • ‘Quicky’ to recognise and enforce family law judgments in Wales and has been residing there for at least one divorces other member states. It applies in civil proceedings year. Significantly, the practice adopted by the obtained in relating to divorce, legal separation or marriage English courts of staying ancillary relief England will annulment and parental responsibility for the proceedings in favour of a foreign jurisdiction in have to be children of both spouses. The scope of parental cases where the appropriate forum is the foreign recognised responsibility is broadly confined to custody matters jurisdiction is likely to be departed from. Such an by the Irish linked to the matrimonial proceedings. The approach is not possible given the fact that forum courts regulation covers both biological and adopted non conveniens2 is not available under the regulation. • Residence children of the couple, but not the children of one Alternatively, if one of the parties moved out of the requirements or other of the spouses from a previous union. Irish family home and lived in England and Wales and defences Non-marital children are excluded from its scope, for one year, they could apply for a fault-based explained as are pre-nuptial agreements. divorce. The new regulation requires the Irish

MAIN POINTS The regulation sets down the rules of direct courts to recognise such a divorce. Habitual

14 Cover story e quick

residence will be interpreted in a manner similar to that adopted by the European Court of Justice in relation to other conventions. The second broad ground for jurisdiction is the state of either the domicile or the nationality of both parties, established on a long-term settled basis. States must choose between nationality and domicile. Ireland and the United Kingdom have chosen domicile. It ought to be remembered that the state

15 Cover story

shall stay its proceeding until such time as the RESIDENCE REQUIREMENTS jurisdiction of the first court is established and then Habitual residence of one or other of the parties is the central governing criterion decline jurisdiction in favour of that court. This is for jurisdiction under the regulation. In particular, article 2 allows jurisdiction to known as the lis pendens doctrine. Once a court is the following: validly seised, it has exclusive jurisdiction and there • The state of the habitual residence of both parties at the time of the is no provision for the country first validly seised to application, or stay its proceedings in favour of any other country. • The former habitual residence of both spouses when one spouse still resides There is no choice of law facility in the regulation, there, or whether by agreement or otherwise. So, for example, • The state where the respondent is habitually resident, or an Irish person habitually resident in England or • In a joint application, where either is habitually resident, or Wales for one year would be entitled to bring an • The state where the applicant is habitually resident, once he has resided there application for divorce. Once the English court for a year before the application, or accepts jurisdiction and agrees to deal with the • The state where the applicant is habitually resident, once he resided there for matter, under the new regulation the Irish courts six months before the application and is domiciled in that state. would be obliged to decline jurisdiction if the matter were challenged by the other spouse. The regulation does not adopt the usual requirement that both ‘The referred to must be a member state, and if no actions be identical. Rather, it adopts a much wider constitutional member state has jurisdiction under the regulation, interpretation of lis pendens so that if a party files for states are free to apply their own national rules. divorce in one forum, and the other spouse files for position is annulment in another contracting state, the second Parental responsibility clearly forum must decline jurisdiction. The forum exercising jurisdiction in respect of The regulation leaves it up to national law to undermined by matrimonial proceedings has jurisdiction for custody determine when the court is seised of the matter. the decision to issues where the child is habitually resident in the Generally, in civil-law countries, the court is seised same state. Where the child is habitually resident in when the defendant is served, whereas in common- convert the another member state, the courts of the state law countries, the court is seised when proceedings Brussels II exercising jurisdiction in the proceedings will also are issued. have jurisdiction, subject to one of the spouses convention into having parental responsibility in relation to the child. Recognition of foreign divorces a directly In this regard, that jurisdiction must be accepted by One of the most common problems when dealing the spouses and be in the best interest of the child. with foreign divorce and separation judgments is applicable The jurisdiction of a state over parental how to enforce them. Indeed, the acute nature of the regulation’ responsibility under this regulation is linked to problem of recognition in this jurisdiction can be the substantive application and thus will cease when gleaned from the recent decision of GMcG v DW the judgment allowing or refusing the application for (unreported, High Court, McGuinness J, 14 January divorce, separation or annulment has become final. 1999). In that case, McGuinness J extended the Where those proceedings have finished but where range of circumstances in which a foreign divorce proceedings in relation to parental responsibility are decree could be recognised by an Irish court. still pending, the state retains jurisdiction until they Previously, at least one of the parties to a foreign also end. One notable feature of the new regulation is divorce had to be domiciled in the state granting the the non-availability of the principle of forum non divorce at the time the decree issued. By contrast, an conveniens. This will impact significantly on the Irish court will consider a divorce petition where custody issue and may result in this sensitive issue either party is ordinarily resident in this jurisdiction being considered in a jurisdiction other than that in for at least one year prior to the institution of which the children resided. proceedings. McGuinness J considered it only fair and proper that Irish courts respect and endorse the Jurisdictional conflicts judgments of their foreign contemporaries made on Applying the jurisdictional rules, the courts of more the basis of a jurisdiction similar to that enjoyed by than one state may have jurisdiction. To resolve any the Irish courts and ruled that a foreign divorce conflict, article 11(1) provides that if the same action decree would be recognised where it was based on is brought in two different courts, the second court ordinary residence alone.

CHILDREN’S RIGHT TO BE HEARD A judgment will not be recognised if it was given that the judgment infringes his or her right of without the child having been given the opportunity parental responsibility. Member state rules must to be heard, ‘in violation of fundamental principles set out how the child should be heard. The Borras of procedure of the member state in which report provides that these rules must include the recognition is sought’, or without a similar provisions of the 1989 United Nations convention opportunity being given to any other person claiming on the rights of the child.

16 Cover story

As in the Brussels convention, a judgment given in the courts of one member state must be recognised in all others. Recognition is restricted to the dissolution of the marriage bond (that is, annulment, legal separation or divorce) and does not apply to other matters. Article 14 provides that a judgment given in a member state shall be recognised in another member state without any special procedure. Unlike the Brussels convention, article 14 then goes on to specify the effects of recognition. The existence of a final judgment relating to divorce, legal separation or marriage annulment in another member state is declared to be sufficient for updating the civil status records of a member state. An interested party can contest recognition of the foreign judgment.

Defences and public policy There are a small number of defences to automatic recognition. Article 15(1) details the grounds for non- recognition of judgments for divorce, legal separation or marriage annulment, while article 15(2) contains the grounds of non-recognition of custody judgments in the event of matrimonial proceedings. Four PROCEDURE FOR ENFORCING defences are listed in article 15(1) and six in 15(2). Judgments irreconcilable with public policy. FOREIGN JUDGMENTS The first defence to enforcement of an order Article 22 sets out the procedure for enforcement of a foreign judgment. The granting a divorce, legal separation or marriage documents to be produced in an application for either recognition or enforcement, annulment is the fact that it is in serious conflict or an application contesting such recognition, are specified in articles 31 and 32. with public policy in the state in which recognition is When the required documents are not available to the court, article 33 allows the sought. The significance of this provision is diluted court, before recognition is sought, to specify a time by which they must be by article 17, which prohibits non-recognition of a produced or, alternatively, to vary the documents required. If the court considers foreign judgment on the grounds that divorce, legal it has sufficient information before it, it may dispense with the documentary separation or marriage annulment would not be requirements. Article 21 specifies the courts in the member states to which permitted on identical facts by the law of the application is to be made. Significantly, article 23 says that the court to which member state in which such recognition is sought. It application is made should give its decision without delay. is not surprising to note that this provision caused Under the regulation, the practical measures for enforcement are a matter for considerable difficulty for Ireland. In order to internal law, whereas the procedure whereby the foreign judgment is declared address this, it was agreed, pursuant to article 46(2) enforceable is a matter for the regulation itself. of the former Brussels II convention, that a declaration by Ireland would be annexed to the convention. The APPEALS status of this declaration has been fundamentally Article 25 provides a party against whom enforcement is ordered with a right of undermined by the conversion of the convention appeal and gives a party seeking enforcement a right of appeal from an order into a directly-applicable regulation. refusing enforcement. Refusal of recognition also remains possible on the public policy ground, under article 15, paragraph 2, in custody disputes connected with the that the refusal to recognise a judgment based on matrimonial proceedings. This ground for non- public policy should operate only in exceptional recognition, however, differs from that pertaining to circumstances (see Hoffman v Krieg, case 145/86, the non-recogniton of judgments for a divorce, legal [1988] ECR 645). However, the sensitivities separation and annulment in that it is not possible to inherent in family law cases may result in a wider refuse recognition purely because the judgment is interpretation being taken of this defence. manifestly contrary to public policy. In a provision Natural justice. If there is a default judgment, that broadly mirrors article 23(2)(d) of the 1996 the applicant must show that the respondent was Hague convention, paragraph 2(a) also provides that duly served with the documents in due and sufficient consideration be given to taking the best interests of time to arrange for his defence. In judging the the child into account. questions of whether due service has occurred and Under the Brussels convention, the analogous whether defective service can be remedied, the court defence is restricted to circumstances in which a is to apply the law applicable in the state of origin, fundamental principle of the national law of the including any international conventions. court in which recognition is sought is in question. Irreconcilable judgments. For divorce, legal There is no definition of public policy in the separation or marriage annulment, the regulation regulation. The European Court of Justice has said excludes recognition of a judgment which is

17 IBM Home PC Range

Models may vary from actual picture shown.

For further details contact

Clarity House Belgard Road Tallaght Dublin 24 Tel: 01-404 6000 Fax: 01-404 6001 Cover story irreconcilable with a judgment given in a dispute Ireland had some particular concerns that the between the same parties in the member state in original Brussels II convention might be used to which recognition is sought. Pre-eminence is given circumvent our rigid divorce rules by allowing to the judgment of the recognising court. There is parties resident here to slip through and get no requirement that the judgment of the judgment elsewhere. As a compromise, a declaration recognising state pre-dates the judgment for which was annexed to the original convention whereby recognition is sought. In parental responsibility Irish courts could refuse recognition to a judgment if cases, the regulation takes a somewhat different it was obtained as a result of deliberately misleading approach. It provides that in such cases a court can the foreign court in relation to the jurisdictional refuse recognition of a judgment if it is requirements, and where such recognition would be irreconcilable with a later judgment of the member incompatible with our constitution. However, the state in which recognition is sought. The European status of this declaration has been undermined by the Court of Justice has taken a very narrow approach fact that it was decided to transpose the substance of to this provision of the Brussels convention. the Brussels II convention into a regulation that has ‘The new direct effect in member states. It does not require Enforcement of judgments any implementing provisions, save for some The enforcement provisions are confined to regime will amendments to the Rules of Court. Significantly, there judgments relating to parental responsibility. For undoubtedly is no place for the previously referred to declaration judgments relating to matrimonial matters, in a uniform regulation. While it was agreed that recognition procedures are sufficient. Article 20 encourage Ireland could read the terms of the declaration into provides that an enforceable judgment from one divorce planning the minutes of the Council meeting, this is of little member state can be declared enforceable in or no legal effect. another member state on the application of any and ‘forum The constitutional position is clearly undermined interested party. ‘Interested party’ includes spouses, shopping’, this by the decision to convert the Brussels II convention children and, in some states, a relevant public into a directly applicable regulation. The new regime authority. The applicant does not have to be approach will will undoubtedly encourage divorce planning and resident in the jurisdiction. Enforcement of foreign facilitate the ‘forum shopping’ (which is what private international judgments will be almost automatic. law refers to as choosing a jurisdiction that suits a Legal aid. Article 29 provides that if the ‘quicky divorce’ particular claim). This approach will facilitate the applicant has benefited from complete or partial syndrome’ ‘quicky divorce’ syndrome of finding a country to legal aid or exemption from costs in his state of grant a divorce, when other countries might not, that origin, he will also be entitled to benefit from the must be recognised elsewhere. Further, the non- most favourable legal aid or the most extensive availability of the doctrine of forum non conveniens exemption from costs and expenses provided for by will prompt parties to litigate earlier in an attempt to the law of the state addressed. secure jurisdiction in their home state. This militates Judgments of non-member states. The against the recent statutory provisions encouraging regulation has no application to judgments parties to engage in mediation and other forms of originating from non-member states. alternative dispute resolution. In conclusion, the regulation is unlikely to achieve The regulation and the other conventions its central objective of reducing the incidence of Generally, the regulation will take precedence over ‘limping marriages’ due to a failure on the part of the the other conventions to the extent that they drafters of the convention/regulation to acknowledge address matters governed by both instruments. For and address the real practical problems in achieving example, insofar as its scope includes matters uniformity in family law. G concerning custody of a child of both spouses, the regulation supersedes the 1996 Hague convention in Geoffrey Shannon is the Law Society’s deputy director of circumstances in which protection of the child is education. He wishes to acknowledge the help given by TP connected to the separation or divorce. An Kennedy, the society’s director of education, who read and exception relates to the Hague commented on a draft of this article. convention on the civil aspects of international child abduction Footnotes 1980, which, by virtue of 1 The Convention on jurisdiction and the recognition and article 4 of the regulation, enforcement of judgments in matrimonial matters and maintains precedence. The in matters of parental responsibility for children of both risk of parental abduction is spouses ([1998] OJ C221/1). obviously highest at times of marriage 2 The doctrine of forum non conveniens is a distinctive breakdown. This is, therefore, a welcome feature of the law relating to jurisdiction in provision, ensuring that the lawful habitual common-law systems and affords the court a residence of the child is maintained as the discretionary power to refuse to take jurisdiction if criterion for jurisdiction in cases where, there is some other available forum which prima because of the abduction of the child, there facie is clearly more suitable for the trial of the has been a de facto change in the habitual residence. case.

19 Human rights Don’t look With the incorporation bill promised soon, the European convention on human rights is set to play a vital role in one of the most sensitive (and politically charged) areas of law – refugees and asylum-seekers. Noeline Blackwell looks at some of the articles in the convention that are likely to have the biggest impact on practitioners

he international human rights law which cornerstone of international protection. After all, the gives Ireland its understanding of refugee sole purpose of refugee law is to protect those who protection is articulated in the 1951 would be at risk if sent back to their own country. United Nations convention relating to the This human right of non-expulsion, based on the T status of refugees and its 1967 protocol. Its need for protection, is not confined to the UN refugee major planks of protection are the definition of a convention. Although not directly expressed, it also refugee and the prohibition on expulsion (or arises pursuant to an individual’s right not to be refoulement). Both planks are reflected in the Refugee tortured under the European convention on human rights. Act, 1996, sections 2 and 5 respectively. A refugee The terms of the convention are of particular interest can be described as someone ‘who is outside her at the moment while we await its incorporation into Bosnian refugee and child in country because she reasonably believes that her Irish domestic law. Incorporation was due to take place Dublin civil or political status puts her at risk of serious in autumn 2000 to permit the government to comply harm in that country, and that her own government with its commitments under the Hillsborough agreement. cannot or will not protect her’ (The law of refugee Incorporation would also allow Ireland to move from status, James C Hathaway, Butterworths, 1991). its unenviable position as the only country in the 41 Certain categories of people who either do not need member states of the Council of Europe which does or do not deserve protection are excluded. not have the convention as part of its domestic law. Also excluded are many others who are in need of For several months now, the indications have been that protection from torture, unlawful killing, or publication of the legislation was just around the inhuman or degrading treatment or punishment but corner but either the corner moved, or those expecting who will not qualify as refugees. Some of these may the draft legislation misjudged the distance to it. not qualify as individual refugees because they It is as near a political certainty as political certainty cannot prove, for example, a sufficient level of allows that, sooner or later, the European convention on individual harm for one of the reasons of civil or human rights will be incorporated into Irish law. When political status mentioned in the definition of a that is done – however it is done – the convention is refugee. Some of those excluded will come back likely to impact to some extent on many areas of Irish under the protection umbrella because of the law, not least the procedures and laws dealing with prohibition on expulsion contained in the 1951 UN asylum and refugees. Certainly incorporation will refugee convention, reflected in section 5 of the make more available to Irish law the rich jurisprudence •Protection Refugee Act, 1996. This states that: ‘A person shall not of the European Court of Human Rights sitting at of refugees be expelled from the state or returned in any manner Strasbourg. Areas of particular importance in refugee under the whatsoever to the frontiers of territories where, in the law are likely to be the prohibition on torture (article convention opinion of the minister, the life or freedom of that person 3), the right to private and family life (article 8) and • UK and would be threatened on account of his or her race, the right to fair procedures and effective remedies Irish case religion, nationality, membership of a particular social (articles 6 and 13). law group or political opinion’. • Family While attention tends to focus on the definition of Curbs on expulsion rights and who qualifies as a refugee – indeed, the entire Article 3 of the European convention on human rights, refugee asylum-determination procedure in Ireland is devoted one of the shortest articles in the entire treaty, states: law to an examination of this – the principle of non- ‘No-one shall be subjected to torture or to inhuman or

MAIN POINTS refoulement, of non-expulsion, is, in fact, the degrading treatment or punishment’.

20 Human rights backback

A protest outside the Four Courts in Dublin seeking to halt the deportation of a Nigerian asylum seeker

Unlike other rights expressed in the convention, the Strasbourg Court found that the protection of article 3 admits of no reservations and no exceptions. article 3 accrued in Chahal v UK, though the UK INCORPORATION Ta ken with article 1 of the convention, which obliges reckoned the Sikh separatist applicant to be a threat UPDATE participant states to ‘secure to everyone within their to national security, and also in Ahmed v Austria, The minister has jurisdiction the rights and freedoms ... of this convention’, where the applicant had been convicted of criminal committed himself to the prohibition on torture has been held by the offences. In both cases, the court found that both publishing the bill to European Court of Human Rights to mean not only were entitled to call on article 3, as each could implement the ECHR that torture is forbidden in member states, but also reasonably claim to be subjected to a real risk of into Irish law in this that a member state must not expel anyone to a unlawful killing, torture, inhuman or degrading session of the country where the person would be at risk of torture treatment or punishment. That prohibition on Oireachtas, that is, or to inhuman or degrading treatment or expulsion extends to those who are to be expelled before the summer punishment (Soering v United Kingdom [1989] 11 directly to a country of harm and also to those who recess. There are EHRR 439). Similarly, if expulsion risks a person’s are expelled to a country which itself may not harm indications from the unlawful killing, contrary to article 2 of the them, but which will permit or facilitate their department of justice, convention, the expulsion is also forbidden. This expulsion to harm. equality and law reform prohibition then turns into a positive protection This has consequences for the operation of the that it may come as which may in some cases be more comprehensive EU Dublin convention, which permits the transfer of soon as the Easter than the protection given under the UN refugee asylum claims between EU states. Regulations made break, or shortly convention, which is mirrored in the Irish legislation under the Dublin convention do not specifically afterwards. relating to non-refoulement. require the Irish state to have regard to the The prohibition on expulsion where article 3 provisions of article 3. The very least that may be harm might follow applies to all, not just to those expected following incorporation of the European who can prove all the attributes of a ‘refugee’. convention on human rights is that there will be a Article 3 guarantees are ‘of an absolute character, domestic law obligation on the Irish state to transfer permitting no exception’ (Chahal v UK [1997] 23 only when it is satisfied that article 3 concerns do EHRR 413; Ahmed v Austria [1997] 24 EHRR 278). not arise. It matters not what a person’s character or activity is. On the wider level of expulsions generally, section It matters not how weak the asylum case was. Thus, 3(1) of the Immigration Act, 1999 states that a

21 Human rights ministerial decision to expel or deport a person will ‘There might be interpreted widely by the European Court of be ‘subject to the provisions of section 5 (prohibition of circumstances Human Rights. The court noted in Keegan v Ireland refoulement) of the Refugee Act, 1996’. That the that family was not confined solely to marriage- rights under article 3 of the European convention where the rights based relationships. Family and domestic are not mentioned in no way diminishes their impact developed under circumstances have been held by the European and they must be taken into account. Court of Human Rights to recognise foster children, However, a substantial counter-balance has the Irish adult siblings not dependent on each other, and a emerged in the case law to that right articulated in constitution divorced man with his daughter (Moustaquim v article 3. While article 3 is absolute, permitting of no Belgium [1991] 13 EHRR). exception, its interpretation by the European Court could provide Different cultures and societies have different of Human Rights has been quite narrow. The court better protection family structures. Dependants and intimate family of has held that an expelling state must consider article refugees regularly include aged parents, uncles and 3 prior to the expulsion, and that its examination than is available aunts. Depending on where it is based, a family unit must be rigorous (Villvarajah v UK [1991] 14 in the may consist of one or several generations and EHHR). But it has also held that the obligation not various blood and matrimonial links. Refugee law to expel extends only to someone who has shown convention’ recognises the right of refugees to re-unification ‘substantial grounds’ of ‘real risk’ (Cruz Varas v with their family. In Irish law, the right of a refugee Sweden, 20 March 1991, [1992] 2 EHRR 25). A to be re-united with ‘family’ is confined to re- ‘mere possibility ... of ill-treatment’ is insufficient to unification with a spouse of a subsisting marriage, a give rise to a breach of article 3 (Villvarajah v UK, 20 refugee’s children under 18 or, where the refugee is Oct 1991. In this case, the expulsion of Tamils who under 18, the child’s parents. The minister has a had experienced ill-treatment in Sri Lanka was discretion to permit re-unification with a permitted on the grounds that they were no worse ‘dependent’ member of the family outside that range off than other Tamils and the court accepted the (s18, Refugee Act, 1996). Whether this definition of state’s right to the view that the situation had ‘family’ is sufficient to meet the requirements of improved. When returned, the applicants claimed article 8 of the convention remains to be seen. that they did suffer the ill-treatment feared). The definition will also be relevant to a person In Ireland v the UK ([1978] 2 EHRR), a leading not recognised as a refugee who applies to remain in early case on what constitutes ill-treatment, the court Ireland on other protection grounds or on what are said that it ‘depends on all the circumstances of the commonly called ‘humanitarian grounds’. Among case’. The court considered treatment to be the matters that the minister for justice, equality and degrading which ‘arouse(s) in its victims feelings of law reform must consider is the ‘family and fear, anguish and inferiority capable of humiliating domestic circumstances of the person’ (s3(6)(c), and debasing them and possibly breaking their Immigration Act, 1999). In that examination, physical or moral resistance’. Comprehensive as that compliance with the convention case law will seems, the commission of the court found that the require a wider understanding of family than the expulsion from Finland to the former Soviet Union nuclear family described in the Refugee Act, 1996. of two mentally-healthy applicants who had been A difficulty in assessing the impact of the declared mentally ill and therefore unable to work, STUDY TRIP TO convention is that an examination of the case law marry or create a family was not sufficient to attract STRASBOURG points up inconsistencies. There are a number of the protection of article 3 (Kozlov v Finland [1991], As part of the Law cases from the European court where family rights commission decision no 16832/90; Varfolomejev v Society’s programme of are recognised in circumstances where the Irish Finland [1991], commission decision no 17811/91, training, the Law constitution might not consider a family life exists both unpublished). Society Task Force on but, on the other hand, there are cases where it is So although article 3 will guarantee the right not the implementation of hard to see why the right to family or private life to be tortured to those on a member state’s territory, the ECHR into Irish law was excluded. In his address to a Law Society the high level of proof sought by the court makes it is organising a study Conference on the convention last October, Gerard difficult to prove a case. visit to the European Hogan SC suggested that while the incorporation of Court of Human Rights the convention would be significant, there might be Family rights and the convention in Strasbourg around circumstances where the rights developed under the The family rights and the definition of a family in 15 May. Anyone Irish constitution could provide better protection article 8 of the convention are interesting in the interested should than is available in the convention. He noted that context of refugee law and also in a consideration of contact the society’s the European court had never interpreted article 8 the difference – if any – that the European convention law reform executive, as going as far as the Irish Supreme Court did in on human rights will make to people already Alma Clissmann, as asserting the rights of an Irish child in Fajujono v protected by Irish constitutional rights. Pursuant to soon as possible at the Minister for Justice ([1990] ILRM). Indeed, article 53 article 8 of the convention, ‘everyone has the right to Law Society, Blackhall of the convention recognises that in some cases the respect for his private and family life’. Interference with Place, Dublin 7, tel: 01 rights guaranteed by domestic law may be superior this right is permissible only when it is lawful and 672 4831 or on e-mail: to those of the convention which is, after all, a necessary for stipulated reasons. a.clissmann@law document aimed at producing a base line below As Muriel Walls recently pointed out in the society.ie. which member states of the Council of Europe Gazette (Jan/Feb issue, page 16), ‘family’ has been should not fall.

22 Human rights

Procedures to guarantee rights (section 17), and the absence of an oral appeal where The European Court of Human Rights has regularly a claim is found to be ‘manifestly unfounded’ under stressed the importance of procedures to guarantee section 12 of the Refugee Act, 1996, may prove rights. In his address to the Law Society’s October problematic under article 13 of the convention. Issues conference, solicitor Michael Farrell pointed out that may also arise in relation to judicial review of asylum the Irish legislation is expected to provide a provision decisions. similar to section 6 of the UK’s Human Rights Act, Apart from these three main areas of impact, there making it unlawful for a public authority to act are likely to be new examinations of refugee rights in contrary to a convention right. Article 6 of the other areas, such as detention, as a result of European convention on human rights guarantees the incorporation. Study will continue on convention right to a fair trial and article 13 the right to an rights per se and the connection between them and effective remedy before a national authority in constitutional rights. Doubtless the tension which relation to convention violations. exists between the expression of individual rights, Once an applicant has established an arguable claim and the protection of state privileges in the human under articles 2 and 3 of the convention, article 13 can rights jurisprudence of the European Court of apply. As Anna Austin, solicitor and registrar with the Human Rights will continue. In the case of Soering v European Court, pointed out to the October 2000 UK, the court stated that in its interpretation a ‘fair conference, the application of article 13 will require balance’ has to be found between the individual’s an asylum procedure which is ‘independent of the interest and the general interest of the community. executive and of the parties to the matters at issue; That remains the case and it is to be hoped that, which (has) the power to review the asylum case on its however it does so, Irish legislators, adjudicators and merits, applying criteria similar to those applied under advocates will ensure that the convention is used for article 3 of the convention; and which can render a the protection and promotion of human rights. G binding decision’. She also noted with interest that certain provisions of the Refugee Act, 1996, including Noeline Blackwell is the principal of the Dublin law firm the ability of the minister to set aside a decision of the Blackwell & Co and a member of the Law Society’s Appeal Tribunal in the interest of public order Family Law and Civil Legal Aid Committee.

moving on, moving up!

As an established market leader in legal recruitment, Hays ZMB offers qualified lawyers strategic recruitment advice on the many opportunities in private practice and in-house both in Dublin and overseas - in London, the rest of Europe, the US and Australia.

Dublin London

Tax Specialist 4+ £Top Rates Co/Co 2-5 £Top Rates IT/E-Commerce 1-4 To £70,000 Thriving mid sized Dublin firm seeks tax lawyer, If you have good commercial experience, good This top firm has earmarked IT/e-commerce as a key accountant or tax consultant, to work in new tax academics and aren't afraid of a challenge, this is for area for growth. It is looking for lawyers with division. A self starter with a good background you you. Dream deals and excellent career progression expertise in the communications and/or IT sectors to will provide an add on service for commercial clients. are the order of the day in this small, highly regarded join its dynamic team with access to top of the Excellent, friendly team based environment. (Ref. Dublin firm. Immediate start with a great package. range clients and a broad range of work. (Ref. CSIG14244) (Ref. CSIG14603) CSIG4677)

EU/Competition 4+ £Top Rates Banking 0-3 £Top Rates Corporate 0-4 To £70,000 An excellent and rare opportunity for an Leading Irish firm known for blue chip client base This top 10 firm is looking for corporate lawyers EU/competition/regulatory lawyer with 4+ years’ pqe and good team working environment is looking for with existing transactional experience to join its to join one of Dublin's top EU practices. With an stars to join their thriving practice. Exposure to growing practice. You will have access to excellent active Brussels office, this top 5 firm is well placed to banking, asset finance and conveyancing a plus. quality work and training and a high quality client lead the Dublin pack in EU work. Good prospects for Excellent opportunity to fast forward your career. base. (Ref. CSIG14608) senior candidates. (Ref. CSIG12292) (Ref. CSIG14163)

Construction 3-5 £Top Rates E-Commerce 1-5 £Top Rates Construction 2-4 To £64,000 A top class opportunity for an ambitious construction Boasting a leading reputation for e-commerce work, This reputable medium sized firm is looking for lawyer to join a mid sized thriving Dublin firm. With this top Dublin commercial firm can offer excellent additional non-contentious construction lawyers with excellent experience in construction, you will help work and an exciting opportunity for a corporate e- 2-4 years’ experience to join its respected practice. build this team getting involved in PPP work and commerce lawyer with 1-5 years' experience in this PFI/Projects experience would be an added bonus. large commercial developments. (Ref. CSIG14145) area. (Ref. CSIG12492) (Ref. CSIG10742)

www.zureka.com

For further information in complete confidence please contact Clíona Sherwin on 00 353 1 661 2522. E-mail [email protected] or confi- dential fax 00 353 1 661 2744. Alternatively write to her at Hays ZMB, 62 Baggot Street, Dublin 2, Ireland.

23 Copyright

The recent Napster case has sent shock waves through the record industry, the Internet community and the public at large. Denis Kelleher looks at the US decision and analyses Ireland’s attempts to come to grips with the issue of copyright infringement without unfairly crippling on-line initiatives Is Ireland out on copyrigh

lthough many of the dot.com hopefuls came to a head in the US case of A&M v Napster, of last year are now finding the business which pitted one of the Internet’s most popular environment and stock markets businesses against the American record industry. particularly unwelcoming, Ireland Napster is an Internet-based version of a record Aremains steadfast in its ambitions to club where members can swap music tracks when become a hub for e-commerce. Last year we passed and where they want. The difference is one of scale: the Electronic Commerce Act, 2000, which has become instead of swapping a vinyl LP or cassette tape, both an international model for such legislation, and the of which will deteriorate with repeated copying and country has secured so many web-hosting companies use, Napster allows users to copy an infinite number that they threaten the stability of the national of tracks as often as they like with quality close to electricity grid. While developing the legislative and that of a CD, using the MP3 standard for physical infrastructure is important, ultimately it is compressing music files. Anyone who wants to the provision of product that will determine success use the Napster service can register and in e-commerce. Content in the form of copyright download its MusicShare software free works is a vital product on-line, since these can be of charge at www.napster.com. There digitalised and distributed over the Internet at little are currently some 60 million or no cost. Ireland excels at the production of such users registered, although this works: it is now the second-largest exporter of number may include • Background software in the world. But our indigenous producers individuals who have to the of copyright work are far more significant. registered under different Napster case From Seattle to Singapore, it is impossible to avoid names. • The the songs of the countless Irish performers who have The service relies on Copyright broken through to international success, while UK users to make tracks and Related television is clogged with Irish actors, producers, available for others to Rights Act, directors and writers. The Internet offers a channel copy in the MP3 file 2000 through which all of these works can be distributed format. Users who •Problems worldwide to anyone with an Internet connection; wish to do this will with the Irish the only problem is that nobody has yet worked out a upload a list of the approach to way to make money out of it. As a result of this MP3 files which they regulating fundamental difficulty, while the Internet should offer wish to make e-commerce a huge opportunity to authors and artists, it is now available to the

MAIN POINTS being portrayed as their enemy. These problems Napster servers. The

24 Copyright

of tune ht?

actual files themselves remain on the user’s computer. If a user wishes to download music, he can either This list becomes part of a collective directory of files search the collective directory for the song he wants available for swapping, administered by Napster, and or else Napster will make available a ‘hotlist’ of users the directory will only display the user’s list while from whom he has downloaded music in the past. that user is connected and his MP3 files are Once the user has identified an MP3 file which he immediately accessible. wishes to download, the Napster service will notify his computer of the identity of the computer upon which that file is stored. A connection will then be made between the computer of the user who wishes to download the track and that of the user making the track available, and the file will be transferred over the Internet. The recipient can then play these files on his computer or on another digital device, such as an MP3 player. Although Internet users love this system, record companies hate it in equal measure. There is no question that the Napster system is in serious breach of copyright. The US Ninth District Court of Appeals held that Napster users who upload file names to Napster violate the record companies’ distribution rights and users who download files

25 Copyright

the Napster system and fails to act to prevent distribution of the works. Since this judgment was given on 12 February 2001, the case has returned to a lower court to amend the injunction. The implementation of this has caused problems, for instance, the misspelling of the names of tracks and artists has made excluding them difficult. To give one example, there are some 50 different spellings of the group N’Sync’s name. The extent of Napster’s problems can be gauged by the fact that its offer to settle for a payment of $1 billion was rejected out of hand by the record companies, while new plaintiffs, such as its on-line competitor E-music, are joining the action against it. The continuing publicity seems to be doing Napster some good, though: in the week following the issue of the amended injunction, traffic on Napster’s site increased by 3.5%, according to a report in the Washington Post.

The world’s worst copyright laws? If anything, Napster would be even more illegal in Ireland than in the USA. The Copyright and Related Rights Act, 2000 has amended and reformed Irish copyright law to ensure that it will be impossible for Napster-type services to set up here. Section 40(1) of the act provides that the copyright holder has the exclusive right to control the making available of a work to the public, including ‘making available to the public of copies of the work, by wire or wireless means, in such a way that members of the public may access the work from a place and at a time chosen by them (including the making available of copies of works through the Internet)’. The whole purpose of the Napster system is the ‘making available of copies of works through the Internet’, so it would obviously infringe against this right. There are a variety of other rights that would be infringed. The system itself might infringe against the We’ll use any excuse to run a picture of Madonna, but the pop diva’s copyright was distribution right as defined in section 41 of the act, almost certainly infringed by Napster and users who uploaded music files through the system would be in breach of both these rights. Users containing copyrighted music violate their who ‘ripped’ tracks from CDs and converted them to reproduction rights. Unsurprisingly, Napster failed in PLAINTIFFS the MP3 format used by Napster would infringe the its claim that these users were engaging in ‘fair use’, IN THE adaptation right mentioned in section 43, while users so the court then turned its attention to whether or NAPSTER who downloaded files would infringe against the not Napster itself was liable for contributory CASE reproduction right cited in section 39. Both the copyright infringement. It held that: ‘Napster, by its system and users would also be committing secondary conduct, knowingly encourages and assists the The full list of infringement by making infringing copies available to infringement of (the record company’s) copyrights’. plaintiffs reads: the public and the system might also be providing the Napster was held to be engaged in vicarious • A&M Records means for making infringing copies, which is copyright infringement, and the court rejected its • Geffen Records prohibited by section 46 of the act. As in the USA, it attempts to rely on an exemption for service providers • Interscope Records is unlikely that either the system or users would be contained in the USA’s Digital Millennium Copyright • Sony Music able to avail of any of the fair use exceptions or any Act (17 USC & 1008) and an exemption for users in Entertainment other defences available in law. The only remaining the Audio Home Recording Act (17 USC & 512) and its • MCA Records issue is whether or not the system and its users would defences, based upon waiver, implied licence and •Atlantic Recording be able to avoid criminal charges in addition to civil copyright misuse. The Court of Appeal held that an Corp liability. injunction was ‘not only warranted but required’. • Island Records So both the commercial system and individual user However, it did hold that the injunction would have • Motown Record Co, will commit an offence. Furthermore, the Oireachtas to be limited, so that it would only apply where and is currently debating in committee the Criminal Justice Napster receives reasonable knowledge of specific •Capitol Records (Theft and Fraud Offences) Bill, 2000. In its current infringing files, knows that such files are available on form, section 9 of the bill provides that: ‘A person

26 Copyright who dishonestly, whether within or outside the state, operates or causes to be operated a computer within PENALTIES UNDER THE COPYRIGHT the state with the intention of making a gain for AND RELATED RIGHTS ACT, 2000 himself or herself or another, or of causing loss to Section 140(1) states that an offence punishable by up to five years’ imprisonment another, is guilty of an offence’. and a fine of up to £100,000 will be committed by any person who ‘in the course ‘Dishonest’ is defined by the bill as ‘without a of a business, trade or profession, has in his or her possession, custody or claim of right made in good faith’ (section 2.1). control, or makes available to the public, or … otherwise than in the course of a Since both system and users would be in breach of business, trade or profession makes available to the public to such an extent as to the copyright holders’ rights, they would be acting prejudice the interests of the owner of the copyright, a copy of a work which is, and dishonestly. The significance of these new proposed which he or she knows or has reason to believe is, an infringing copy of the work’. offences is two-fold: first, the penalties are higher than under the Copyright Act, 2000; and, second, the definition of offence is much broader. Offences can services. The problem for the record industry is that only be committed under the Copyright Act, 2000 in there are plenty of other systems that permit the very limited circumstances; the new bill will sharing of Internet music, such as Gnutella. Many of criminalise any breach of copyright or indeed any these dispense with central servers or control, which other intellectual property right. If the bill should makes them harder to use than Napster, but it also become law in its current form, Ireland will have makes them harder to sue. For as long as such free gone from having one of the world’s worst copyright systems remain in operation, the success of any laws to having its most draconian. As such, the bill legitimate system which wants to charge for its goes too far. Although it is important that Ireland services will remain in doubt. But if the record should have effective protections for intellectual companies cannot provide the public with all the property, it would not be helpful or wise to turn advantages of low-cost Internet distribution, then it everybody who infringes copyright in even the most will appear that they are simply trying to preserve minor way into a criminal. their distribution networks in the form of CD Concerns have been raised with regard to the pressing plants, warehouses and record stores. privacy of users in these proceedings. One group, called Aimster, has produced an encoder to frustrate Tough choices to make the process of filtering music files, arguing that the This environment will create tough regulatory contents of individuals’ files is none of the business choices for an Ireland that wants to become a central of Napster or the record companies. Given that hub for e-commerce. Although Ireland produces a users are uploading files voluntarily, it is likely that surfeit of copyright authors and creators, it is not their consent to the filtering can be implied if it was home to anything approaching a major publishing not given explicitly when the users registered, so industry of music, literary or other works. So it is in nullifying such privacy arguments. In an Irish Ireland’s interest to see the development of low-cost context, any attempt to invoke the Data Protection on-line publishing. The benefits to Irish authors Act, 1988 or the Data protection directive would may be substantial: although the publication of probably fail. books on-line is still at an experimental stage, authors get a much higher royalty when their books Winning the battle, losing the war are published electronically than when they are The success of the record companies against Napster published in printed form. The digital signature appears to be unquestionable, but while winning this industry, which Ireland hopes to develop as a result battle, they may be in danger of losing the war. The of the Electronic Commerce Act, 2000, may facilitate motives of the industry have been questioned and the development of such services. But it is possible not just in Internet chat-rooms which cater to the that the privacy protections that are an integral lunatic fringe. The Economist has suggested that ‘the element of that act may also enable a Napster-type Napster case is not just, or even mainly, about piracy. service to defy copyright law. (Under the Electronic It is about business models. The industry wants to Commerce Act, 2000, the privacy of an electronic stick to its old one – selling expensive compact discs signature is pretty much inviolate, so a program – and to protect it. But Napster’s success shows that could be designed which would use this protection there is a lot of appetite for a new model ... Artists’ to hide the identity of users on a Napster-type interests deserve legal protection, within limits; system.) business models do not’. It is important to recognise that the Internet On-line music is hugely popular, and the tens of developed rapidly because it was not restricted by millions who have used the Napster system make up over-regulation or, indeed, any regulation in many a potentially powerful political constituency. So the cases. It must be a concern that in its enthusiasm to record companies are under pressure to provide legislate for e-commerce, Ireland may create a their own alternatives to Napster, and one major regulatory environment that hinders its growth. G publisher, Bertlesmann, has taken the step of acquiring an option over Napster itself. If it fails to Denis Kelleher is a practising barrister and co-author of do so, then the US legislature may come under Information technology law in Ireland and IT law in pressure to change the law to facilitate peer-to-peer the European Union.

27 Litigation

Settling cases out of court may seem like the quickest and most cost-effective way of solving a contentious issue but, as Paul Anthony McDermott explains, misunderstandings about the terms can bring litigants and their lawyers back into conflict

ne area which has given rise to a considerable amount of litigation in this jurisdiction is out-of-court settlements. Sometimes settlements are Oconducted in less than ideal conditions. Lawyers may be under pressure from their clients, the trial judge might be growing impatient in his empty court, the hour may be late and the case complex. So it should come as no surprise that occasionally, when the dust has settled and both Avoiding mist

sides seek to enforce what they think they have Costello J has identified three reasons for the agreed, it becomes apparent that they walked away existence of such a rule in O’Neill v Ryan (No 3) from the negotiations with a very different idea of ([1992] 1 IR 166 at 187): what was agreed. •There is a need for certainty in business Two matters in particular seem open to potential • The rule is required for the proper administration pitfalls in this regard. The first is the issue of who is of justice. One party to a contract cannot defend to pay for the costs incurred up to the settlement. himself against it by setting up a misunderstanding • Unilateral And where there are multiple proceedings, the on his part as to the real meaning and effect of the mistakes and second common bone of contention is whether or contract. To permit such a defence would be to mutual not all of the existing proceedings have been open the door to perjury and to destroy the mistakes disposed of by the settlement. security of contracts • Approach It is apparent from the case law that two • If an offeror intends his offer in one sense but fails taken by the scenarios must be distinguished. The first is an to convey that sense in the words he uses (as courts instance where, on an objective view, there has been objectively determined) and the offeree accepts it • Case law on an offer and acceptance that coincide, and one party in the sense in which the words could reasonably mistaken has merely made a unilateral mistake as to the effect be construed, the offeror is estopped from relying settlements or consequences of the settlement. Such a mistake on his own error if the offeree would suffer as a

MAIN POINTS will not affect the validity of the settlement. result.

28 Litigation

taken settlements

The second scenario is where, on an objective view, ‘The compromise of litigation is a contractual exercise the offer and acceptance did not coincide. In other in which it is the commonest thing for each side to be words, a mutual mistake has occurred. In such aware of facts and matters of which it either knows or circumstances, the alleged settlement is a nullity. at least suspects the other side is ignorant. If each side On its face, this dichotomy seems simple enough. knew all that the other side knew, then either no or only The problem is that one can often fit the facts of a a very different compromise would be reached. In the case into either scenario, depending on the results negotiation of such compromises, the parties must be that one wants. There are an infinite number of ways careful not to make any misrepresentations. But there is in which a mistake can be made and, rather than in my view no general duty imposed upon them in the falling neatly into one of two categories, most nature of a duty of disclosure. The negotiations are in mistakes are somewhere on a spectrum, ranging from the nature of an arm’s length commercial bargain. Each a pure unilateral mistake at one extreme to a case of party has to look after his own interests and neither a pure mutual mistake at the other. Rather than owes a duty of care to the other. It would in my view be focusing on the technicalities of mistakes, it may be astonishing if, in the ordinary case, a defendant could more helpful to consider the nature of settlement later set aside a compromise merely because he had discussions. In the most recent English case to look learnt from some “loose talk at a bar function” that he at the issue, Clarion Ltd v National Provident had materially over-paid a claimant who, unbeknown to Institution ([2000] 2 All ER 265), Rimer J stated: him but well known to the claimant’s advisers, probably

29 Litigation could not have proved his case at all’. ‘If a reasonable the other, or at least in the sense in which a reasonable This statement should be borne in mind when person would construe it. Nevertheless, cases may occur in attempting to analyse the Irish case law. man would have which the terms of the offer and acceptance suffer from understood the such latent ambiguity that it is impossible reasonably to Unilateral mistakes impute any agreement between them; or it may happen A case which fell on the unilateral mistake end of the contract in a that one party knowingly accepts a promise in different spectrum was Reen v Bank of Ireland Finance ([1983] certain sense, terms from those intended by the other. In such ILRM 507). An action for breach of contract was circumstances, the mistake may render the contract void. settled for £3,000 on terms which the plaintiff’s then, despite his ‘In most cases the application of the objective test will solicitor erroneously believed would include all legal mistake, the preclude a party who has entered into a contract under a costs involved. This was incorrect. In fact, the mistake from setting up his mistake as a defence to an solicitor for the defendant was aware that further court will hold action against him for breach of contract. If a reasonable expenses would accrue for the plaintiff. The plaintiff that the man would have understood the contract in a certain claimed that the contract was liable to be set aside sense, then, despite his mistake, the court will hold that for mistake. McMahon J dismissed the action, mistaken party the mistaken party is bound. But where parties are remarking that the offer and acceptance is bound’ genuinely at cross-purposes as to the subject matter of the corresponded and that there was no mistake as to the contract, and the terms of the offer and acceptance are so terms of the agreement. He stated: ambiguous that it is not possible to point to one or other of ‘This is a case of a man entering into an agreement the interpretations as the more probable, the court must which he intended to make but which he would not have necessarily hold that no contract exists’. made but for a misunderstanding as to a matter In objectively construing the words used by the extraneous the agreement, namely, his client’s position vis- defendant’s solicitors in their offer, they would be à-vis other parties in the litigation. [The plaintiff’s reasonably understood as an offer to settle the solicitor] was mistaken in his motive for entering into the section 205 proceedings only, and not as an offer to agreement. He thought that it would get his client out of settle both sets of proceedings. It was in this sense the litigation with a sum of £3,000 to cover the defects in that the offer was accepted. The court could not her car and her liability for costs [to the plaintiff’s take into account the fact that ‘the authors of the solicitor] as her solicitor. The mistake lay not in his consent letter may have intended to make an offer of to the agreement but in his motive for entering into it’. settlement different to that which a reasonable He also concluded that there was no duty on the construction of the words they used disclosed’. defendant’s solicitor to enquire of the plaintiff’s solicitor whether the costs of the plaintiff had all Mutual mistakes been dealt with. McMahon J quoted Smith v Hughes A case which fell on the mutual mistake end of the ([1871] LR 6 QB 597) for the proposition that ‘a spectrum was Mespil v Capaldi ([1986] ILRM 373). mere abstinence from disabusing the purchaser of An action for possession of rented premises was that impression is not fraud or deceit; for whatever initiated by the plaintiff lessor for breaches of may be the case in a court of morals, there is no legal covenant. Prior to these proceedings beginning, the obligation on the vendor to inform the purchaser defendants had settled existing litigation in respect that he is under a mistake not induced by the act of of premises under an agreement which referred to ‘a the vendor’. full and final settlement of all matters’. The A similar conclusion was reached in O’Neill v defendants claimed that on entering this agreement Ryan (No 3). The plaintiff instituted proceedings they had intended to settle all matters outstanding under section 205 of the Companies Act, 1963 against between the parties, including all current disputes the defendants. He then issued proceedings against which were not the subject of the proceedings. a number of parties (including the first defendant) in respect of a series of alleged wrongs, including misrepresentation and conspiracy. The plaintiff RECTIFYING A SETTLEMENT subsequently sought specific performance of an Rather than seeking to have a settlement declared void, a party may attempt to alleged agreement with the defendants to settle the persuade the court to rectify it. In order to do this, it will be necessary to convince first dispute. The defendants claimed that the the court that there was a pre-existing settled agreement between the parties that agreement had been entered into by mistake and was not reflected in the written document. The difficulty of establishing this is that the offer to settle was made on the basis that illustrated by the facts of RMcD v VMcD ([1993] ILRM 717), where the parties to a both sets of proceedings would be terminated. settlement of a matrimonial dispute simply overlooked the question of whether Costello J considered whether it could be said that liability to pay costs formed part of the agreement. Finlay CJ refused to permit an operative mutual mistake had occurred and rectification of the agreement: quoted the following passage from Chitty on contracts ‘Even if there was an agreement made expressly that the husband was to pay the (26th edition, Sweet & Maxwell, 1989) as wife’s costs, it is clear from the drafting of the subsequent documents that there representing the law: was no consensus ad idem as to the matters to be dealt with on taxation. Taking all ‘The intention of the parties is, as a general rule, to be the evidence and these matters into account, it seems to me that the plaintiff has construed objectively. The language used by one party, failed to establish an express agreement entered into … to the effect pleaded’ whatever his real intention may be, is to be construed in ([1993] ILRM 717 at 723). the sense in which it would be reasonably understood by

30 Litigation

O’Hanlon J held that the contract was not Time of the mistake capable of having this extended application and In order to attract legal consequences, the mistake held that because both sides were not under the must substantially be shared by both parties and must same misapprehension as to the effect of the relate to facts as they existed at the time the agreement ‘there was an element of mutual settlement was made. If the fact in issue was true at mistake involved in the transaction’ which could the time the settlement was entered into, then it is not, however, operate so as to defeat the plaintiff’s irrelevant to the law of mistake. This simple legitimate expectations. On appeal, the Supreme proposition is clearly illustrated in Fitzsimons v Court held that the agreement was void for O’Hanlon ([1999] 2 ILRM 551). The plaintiffs, who mutual mistake. Henchy J was satisfied that the were cousins of the deceased, sought to extract a grant two counsel for the parties had left court on the of representation in the belief that they were his next day of the agreement each with a genuine but of kin. However, the defendants issued proceedings opposite belief as to what the settlement had seeking a declaration that they were the non-marital achieved. It was not a case where one party was children of the deceased. If successful, this application seeking to rely on a secret intention in order to would have resulted in the plaintiffs being excluded try to walk away from the contract. Rather, there from sharing in the estate of the deceased. In 1995, a was a mutual mistake as to the true nature of the compromise was reached under which the plaintiffs agreement: would receive a sum of £60,500 and costs in full and ‘It is of the essence of an enforceable simple contract final settlement of any claim that they might have that there be a consensus ad idem, expressed in an against the estate of the deceased. At this time, both offer and an acceptance. Such a consensus cannot be said parties were under the apprehension that the net to exist unless there is a correspondence between the value of the estate was approximately £120,000. In offer and the acceptance. If the offer made is accepted by 1997, it emerged that, contrary to earlier the other person in a fundamentally different sense investigations, another sum of almost £60,000 was on from that in which it was tendered by the offeror, and deposit with a building society in the name of the the circumstances are objectively such as to justify such deceased. The plaintiffs issued proceedings seeking a an acceptance, there cannot be said to be the meeting of share of this money and, if necessary, an order setting minds which is essential for an enforceable contract. In aside the settlement. They argued that the such circumstances, the alleged contract is a nullity’. compromise of £60,500 amounted to a 50/50 split of On the facts of the case, Henchy J was satisfied the net estate and that the real basis of the agreement that the negotiations and the wording of the was a 50/50 split. Thus, they claimed that the settlement were capable of justifying the opinion agreement should be set aside on the basis of a shared of counsel for the defendant that the settlement mistake of fact. Budd J was unable to identify any was adequate to cover all outstanding complaints mistake that could be said to have had occurred at the between the parties. It could also be said, on an time of the compromise: objective consideration of the relevant ‘In this case, the parties all bona fide believed that all circumstances, that counsel for the plaintiff was the assets had been located and their approximate value justified in thinking that the settlement was ascertained. There was no mistake as to what assets were limited to the matters in dispute in the two actions included in the estate at the time when the compromise then being settled. He concluded: was reached in consideration of which the plaintiffs ‘In those circumstances of latent ambiguity and withdrew their opposition to the declaration of paternity. mutual misunderstanding, it must be held that there The fact of the further fund in the building society which was no real agreement between the parties. The two came to light subsequently, while an important factor, did counsel who negotiated the settlement were not destroy the identity of the subject matter of the understandably at cross-purposes. The result was that agreement as it then was when the contract was made the seeming agreement expressed in the written consent and accordingly the contract was not void’. was in fact no agreement. There was a fundamental The cases discussed in this article emphasise the misunderstanding as to the basis of the settlement. It is need for care to be taken in settling even the most clear that the defendants would not have agreed to seemingly straightforward cases. Irish courts are make the payments required by the settlement if they extremely slow to overturn what appears to be a knew that the plaintiffs could seek to oust them from concluded settlement. It is only where the parties to a the premises by means of other proceedings. It is equally settlement can be shown to have been genuinely at clear that counsel for the plaintiffs would not have cross-purposes that a court will even consider setting signed the settlement if he knew it would be treated by aside a settlement. In conclusion, it can be said that if the defendants as an absolution of them from all a mistake is made in a settlement, a greater mistake complaints by the plaintiffs’. can often be committed in attempting to overturn the While the Supreme Court upheld the first mistake. G distinction between a mistake as to the impact or effect of the bargain (which is not effective) and a Paul Anthony McDermott is a barrister and the author of mistake as to the true nature of the agreement three books, Res judicata and double jeopardy, Irish (which may be effective), it categorised the mistake prison law and Irish criminal law (with Peter Charleton before it as falling into the second category. SC and Marguerite Bolger BL).

31 Gadgets Tech trends By Maria Behan

Scantastic business tool Get nagged in Latin

pson’s none-too-modestly recognition and automatic skew esigned by and for Enamed Perfection 1240U correction mean this device Dlawyers, photo and text scanner is should have little trouble Amicus Attorney designed for home and small making sense of printed presents you with an business use. Here comes the material either. Available for on-screen interface science bit: with an optical about £310 from CompuStore. that looks like the resolution of 1,200 by 2,400 platonic ideal of a dpi, fast scanning speeds and solicitor’s office, down 42-bit-per-pixel colour depth to the panelled walls, for accurate reproduction of mahogany desk and subtle shades, it should padded leather chair. But do a nice job with this software suite isn’t just photographs. And a pretty (stuffy) face: it matically ring any of the features such as packs functions such as a file contacts listed in the system, document organiser, appointments and a daily report, which starts type manager, time tracker and the morning with an overview contact-management software. of the tasks for the day ahead, Two other features that might and prompts you to tie up come in handy are the auto- yesterday’s loose ends with dialler, which means you can reminders such as ‘some of the click on an icon to auto- items on your to-do list are getting rather stale’. The advanced version lets you network The EZ way to get snap happy together a firm of up to 29 users and costs £399 per user; the he compact Kodak EZ200 heart’s content, then later be printed, e-mailed, or client/server edition adds Tdigital camera aims to delete the snaps that don’t posted to the web – and the additional capabilities, supports up simplify digital photography. make the grade because of EZ200’s video capabilities to 200 users and costs £499 per Its 4 MB internal memory dodgy camera angles, mean that you can even get seat; available from Legal IT on stores up to 128 images as fast inopportune blinks or double things moving. Available for 021 432 1829. For additional as you can click on them, so chins. The digital stills that about £134 from CompuStore information, visit you can shoot away to your you think are up to snuff can outlets. www.amicusattorney.com. Big blue beauty

BM’s NetVista A20i desktop Icomputer system comes with a 700MHz processor, a 15-inch monitor, 64 MB of RAM, a roomy 15 GB hard disk, a 12x DVD drive and a 56 kbps modem. Now that these numbers are out of the way (and solid ones they are, especially given the price), we can point to this PC’s most obviously outstanding feature: its cool blue-and-black colour scheme. Available for about £880 at computer outlets.

32 Gadgets Digital bean-counting

f you’re looking to bring your Windows-based program and a euro currency converter. Ifirm’s book-keeping into the designed for companies of up Available from software outlets 21st century, you might want to 50 employees with a such as ADP Business Solutions to look into Sage Ireland’s turnover of £2 million and on 01 298 0025. Prices start accounting software, which under, may be just the thing at £520 and increase based on comes in different versions to for many firms. It features the particulars of your suit the needs of different ledger tracking, VAT installation and the support companies. Sage Line 50, a management, credit control services required.

Entertainment Ireland (www.entertainmentireland.com). Sites to see Looking to add a little pizzazz into your life? This site offers the latest listings on everything from TV and clubbing to museum exhibitions and restaurants. You can even check up on the weather or the latest Lotto numbers, and the Ticketshop feature lets you make bookings for concerts and other events.

The Paper Boy (www.thepaperboy.com). With links to more than 3,000 periodicals in 129 countries from Angola to Zaire, this site offers enough fodder to satisfy even the most ravenous Matheson Ormsby Prentice (www.mop.ie). This rather slick- news-hounds. There are 28 titles in the Irish section, from An looking site offers the low-down on the firm, as well as a Law Phoblacht to the Westmeath Examiner. There’s even a translation Watch section that features updates on changes in legislation. feature, but be warned: an attempt to translate An Phoblacht into Italian caused the system to crash – but that’s probably not a very common request.

CoWorkerHints (www.coworkerhints.com). Trying to come up with a gentle way to let a colleague know that he’s got the table manners – or the breath – of a mountain yak? Then log on to this site, Health and Safety Authority (www.hsa.ie). Features meaty which lets you pay a fee and have an anonymous letter pointing out information on laws, regulations and codes. It also includes the problem posted from the United States. If you’re bold enough forms that can be printed out and used, a section devoted to to handle matters yourself, you might avail of the site’s tips on statistics, and a What’s new area. addressing delicate matters with the subtlety they deserve.

33 Books Book reviews Equity and the law of trusts in Ireland (second edition) Hilary Delany. Round Hall Sweet & Maxwell (1999), 43 Fitzwilliam Place, Dublin 2. ISBN 1-85800-138-2 (paperback), 1-85800-137-4 (hardback). Price: £49 paperback, £89 hardback.

n the preface to the first interesting detail. The author is the Mareva injunction. She developments both here and Iedition of her book (1995), explores the development of deals with the developments in abroad. the author wrote that her work the so-called ‘new model this jurisdiction concerning the This book should be was designed primarily to fulfil constructive trust’ from its requirement that a plaintiff compulsory reading for anyone the needs of students. There is dramatic emergence per Lord seeking a Mareva injunction interested in the law of equity no doubt that this aim was Denning MR in Hussey v must prove an intention on the and trusts. We are all fortunate triumphantly achieved and Palmer ([1972] 1WLR 1286). part of the defendant to in having amongst us such a surpassed. In the years that He stated that such a trust dissipate his assets so that they prolific author of such have passed, it has also become would be imposed ‘whenever would not be available to meet consistently high standards. an invaluable reference point justice and good conscience a decree. This, as explained by She follows in the footsteps of for even the most experienced require it’. This judgment was the author, is in contrast to the her late father, Vincent Delany, practitioner, whether solicitor not greeted with universal jurisprudence of the English who gave us such an excellent or barrister. approval either from the bench courts, which concentrates work on the law of charities. The second edition is a in England or from academic more on the effects of the It is her clarity which wonderful addition to the commentators, and was defendant’s actions rather than immediately appeals. Even library shelves, bringing up to regarded as going too far in its his intention. when dealing with complex date the many developments efforts to enable courts of Academics, practitioners and concepts, she never loses her which have taken place in the equity to do justice. The author students alike will also welcome ability to engage the reader. case law relating to equitable reviews how the new model the interesting treatment of This clarity is to no small principles and trusts. The constructive trust has been proprietory estoppel, and, in extent assisted by the excellence author is able to set out with greeted in other common-law particular, her discussion of the of the backroom work done by great clarity the often-complex countries, including in this need to establish detriment if her publishers, Round Hall concepts involved in these jurisdiction. This concept is such estoppel is to operate. Sweet and Maxwell. Together areas. closely related to the concept Sections on proprietory they have produced a work of For example, the of unjust enrichment. estoppel and the related topic real worth. G developments which have taken Another topic of increasing of ‘unconscionability’ will place in the area of constructive importance, which the author provide the reader with a real Michael Peart is a partner in the trusts are described in most sets out in most helpful detail, insight into recent Dublin law firm Pearts. Partnership law Michael Twomey. Butterworths (2000), 26 Upper Ormond Quay, Dublin 7. ISBN: 1-85-475-8853. Price: stg£95.

his is a serious scholarly pages of text. It is written in a might be tempted to criticise need of improvement in the Twork by a colleague. careful and logical style. the author for repetition of many ways suggested in this When I undertook to do this Having lectured in this area of certain cases, but this would book. The importance of review last November, I did so the law, I admire the extensive be an injustice, as their section 46 is correctly with enthusiasm, as it is a research that has clearly been repetition was absolutely stressed, in that it preserved subject in which I have great involved in putting this work necessary to illustrate other the rules of equity and interest. I underestimated together. points. The author has also common law. There is also the time in which I would I never realised the used the opportunity to useful discussion of quasi- complete my review. This hundreds of Irish cases that suggest improvements in the partnerships. The author’s was due in part to my exist in this branch of law. The law. The 1890 act, I have comments in relation to the preoccupation with other use of these cases helps the always held, is an cross-fertilisation between matters, but largely because reader to understand many extraordinary lucid and clear company and partnership law, the work is so interesting and aspects of the Partnership Act piece of legislation which has by means of the application of extensive. It consists of 847 1890. At first glance, you stood the test of time, but is in partnership principles to

34 Books

certain closely-held the chapter on limited Act, 1999 in relation to the profession will turn time and companies, demonstrate his partnerships. The author capital duty imposed on limited time again. It is a book which practical understanding of the suggests that it is prudent to partnerships. deserves to be purchased by all law of partnership. I share his provide in the limited This work demonstrates the members of the legal profession view that partnership law is in partnership agreement that the enthusiasm of the author for his and all others who are involved greater need of fertilisation partnership is not to begin to chosen topic. It is evident that in or study this area of law. I from the considerably more trade until the registration of he enjoyed writing the work, earnestly commend this active field of company law, the limited partnership has although I am sure at times he excellent work. G rather than vice versa. taken place. He also points to wondered about his mission. I The practical nature of the the apparent oversight in part 8 say with confidence that this is Laurence K Shields is managing work is also demonstrated in of the Stamp Duties Consolidation a work to which the legal partner of LK Shields, Solicitors. Annual review of Irish law (1999) Raymond Byrne and William Binchy. Round Hall Sweet & Maxwell (2000), 43 Fitzwilliam Place, Dublin 2. ISBN: 1-85800-164-1. Price: £115.

aymond Byrne and separate headings is considered In a previous notice As early as the first volume, RProfessor William Binchy by the authors and some welcoming this book, I wrote I described the achievement of have produced their 13th specialist contributors. These that the Annual review the publication of the Annual volume in the Annual review headings include: administrative represented a monumental review as heralding the series. This is most welcome. law, agriculture, constitutional achievement providing inauguration of a new Irish The authors provide a review law, education, employment practitioners, academics and institution. We have not been of legal developments, judicial and labour law, land law, law students with an analytical and disappointed. An investment in and statutory, that occurred in reform, licensing, limitation of perceptive account of legal the latest Annual review should 1999. actions, planning law, practice developments. That standard has be repaid handsomely. G Apart from a table of cases, and procedure, restitution, been maintained. The Annual table of legislation and an safety and health, social welfare review is a treasury of scholarship Dr Eamonn Hall is company index, the law under 33 and torts. and practical guidance. solicitor of Eircom plc.

OrderEdition Today!New Donegan & Friel: Irish Stamp Duty Law Third edition New to this edition Butterworths ● Updated to take account of the major Irish Tax The New Edition of Ireland’s Library changes introduced in the Stamp Duties Definitive Stamp Duty Text Consolidated Act, 1999 Donegan & Friel: Irish Stamp Duty Law Third edition is ● Fully updated to include the relevant Irish Stamp Judge Irish the most comprehensive and revered work available on provisions of the Finance Act 2000 and Duty Law stamp duty law in Ireland. This long-awaited third edition referenced to the new statutory provisions. Income Tax provides detailed commentary and analysis of the ● Includes the new ad valorem rates of duty principles and practices surrounding stamp duty from chargeable under the conveyance on sale both a legal and tax point of view. Donegan & Friel: Irish head. Stamp Duty Law Third edition will give solicitors, tax prac- ● Explores the exemptions available to first titioners, accountants, and other stamp duty Third Edition purchasers and owner occupiers. specialists an unrivalled source of up-to-date law and ● Third Edition practice, providing a comprehensive and authoritative Examines the rules regarding the electronic body of easily accessible stamp duty work. transfer of shares including CREST. ● The penalties for breaches of legislation. Donegan ● & Friel Keep abreast of the changes Covers in detail the administrative rules Because the law is being constantly changed and regarding the operation of tax. updated by the EU and the Oireachtas, it is imperative that practitioners are aware of any pitfalls and planning To stay one step ahead of the competition and on top opportunities for their business, or clients, in order to of all developments in Irish Stamp Duty order your advise accurately and with total confidence. Donegan & copy of Donegan & Friel: Irish Stamp Duty Law Third Friel: Irish Stamp Duty Law Third edition discusses a edition today. number of key topics including the principles of stamp duty, reliefs and exemptions available to individuals and Price: £75.00 Œ95.23 Product Code: DILS3 companies, mortgage bonds, calculation of the duty ISBN 1 85475 652 4 Format: Hardback under the various heads of charge, adjudication, Published: March 2001 appeals and enforcement.

To order: contact our customer services department on Butterworths Tolley, 35 Chancery Lane, London WC2A 1EL Butterworths is a division of Reed Elsevier (UK) Ltd tel: 020 8662 2000 or fax: 020 7400 2570 A member of the Reed Elsevier plc group Or write to: Matthew Rowe, Butterworths Tolley, FREEP- 25 Victoria Street, London SW1H 0EX OST (6983), London WC2A 1BR. VAT number: 730 8595 20 Registered Office Number: 2746621 For more information on all of our products, please visit our website at www.butterworths.com * Prices subject to change without notification.

35

Briefing Report of Law Society In briefing Council meeting held on this month...

26 January 2001 ■ Council report page 37 Motion: amendment to guide dentiality to the solicitor/client ing and reveal his identity, with no ■ Solicitors’ Benevolent for criminal lawyers relationship and in the adminis- suggestion of a similar require- Association 137th ‘That this Council approves the tration of justice generally. It was ment on a judge to put his case in report and amendment of the Guide to profes- unanimously agreed that the writing. There was also no sug- accounts page 39 sional conduct for criminal law society should continue its gestion of oral hearings or of the practitioners to include an addition- efforts to reinforce the principle giving of reasons for decisions. ■ Legislation al sub-paragraph at recommendation and should participate again as It was agreed that the president update page 40 5 thereof, as follows: an amicus curiae in any appeal should write to the chief justice ■ Personal injury “5.1. A solicitor shall not offer any brought by Stephen Miley to the enquiring as to the reasons for the judgments page 42 inducement to any person in order to Supreme Court. exclusion of lawyers from the encourage referrals to that solicitor process. It was also agreed that ■ FirstLaw Update page 46 or any solicitor in his or her firm”.’ Proposed Judicial Council on the society should continue to Constitutional Proposed: James MacGuill judicial conduct and ethics make strong representations for Courts Seconded: John Fish The director general outlined solicitor membership of the com- Criminal the contents of a report from the mittee. Damages Discovery The Council agreed that it was Committee on Judicial Conduct Education totally unacceptable for any solic- and Ethics, which recommended Judicial case management Employment itor, including a criminal law the establishment of a Judicial discussion document Family practitioner, to offer any form of Council. It was envisaged that The Council considered a discus- Human rights inducement to any person in the council would deal with judi- sion document on judicial case Judicial review order to encourage referrals to cial conduct and ethics, studies management, prepared by the Local government their firm. The motion was unan- and publications, remuneration Litigation Committee. David Negligence Planning imously approved by the Council. and conditions of work. He Martin explained that the docu- Practice and procedure noted that the proposed council ment had been prepared at the Probate Miley v Flood would be comprised solely of invitation of the president of the The Council discussed a summa- judges, but that a committee of High Court and represented the ■ Eurlegal page 51 ry of the judgment of Kelly J, the council, which would deal results of a consultation process The Treaty of Nice delivered on 24 January 2001, in with complaints of judicial mis- with the profession and the local Recent developments in Miley v Flood. The director gener- conduct, would comprise one lay bar associations. It envisaged a European law al reported that the Law Society member and two judges when role for judicial case management submissions in the case had con- conducting an inquiry. Most dis- in large complex commercial and sidered every case involving iden- appointingly, the report con- similar disputes, but felt that it regulations which had been in tity privilege in other jurisdic- cluded that it was preferable not would be expensive, over-elabo- place for over 16 years. The pro- tions. Kelly J had concluded that to involve solicitors and/or bar- rate and unnecessary in other posals reflected developments in the issue of privilege was domi- risters in the complaints process, forms of litigation. He noted that the law and practice over that nated in Ireland by the Smurfit on the basis that lay participation a sub-committee had now been time, together with policy deci- Paribas case and that, as a matter was sufficient to meet the need established, under the chairman- sions taken by the Council. The of law, legal professional privilege for transparency. ship of Mr Justice Nicholas Council approved the proposals in Ireland attached only to legal The Council discussed the Kearns, and involving three repre- and agreed that the draft regula- advice and not to legal assistance. report and concluded that there sentatives of the solicitors’ profes- tions should be circulated for He had found that the only cir- could not be full confidence in sion – Isabel Foley, Roddy Bourke consideration at the next Council cumstances in which identity any such body if it did not and Gordon Holmes – to progress meeting. privilege might arise were (a) include a representative of prac- matters. It appeared that a pilot where a criminal offence was tising lawyers, as is the case in scheme would be introduced, with Law Society representative involved and disclosure of identi- other jurisdictions. Lay members judicial case management being The Council approved the ty might amount to breach of the would not have either the knowl- operated in cases selected by appointment of Michael Boylan, right against self-incrimination, edge or expertise to challenge agreement of the parties. Augustus Cullen & Son, as the and (b) where the name of the the judiciary in relation to sys- society’s representative on a client was so bound up with the tems operating in the courts. New Solicitors’ Accounts group established by the advice given that to reveal one Concerns were also expressed Regulations Department of Health and would reveal the other. about the procedures involved, Gerard Doherty outlined propos- Children to consider the intro- The Council discussed the fun- in that a complainant would be als in relation to new Solicitors’ duction of no-fault compensation damental importance of confi- required to make his case in writ- Accounts Regulations, to replace the for brain damaged babies. G LIBER MEMORIALIS PROFESSOR JAMES C. BRADY

EDITED BY OONAGH BREEN, JAMES CASEY AND ANTHONY KERR

Celebrating a rich legal legacy

Round Hall are privileged to publish a collection of essays written in honour of the late Professor James C. Brady. The essays are written by a team of distinguished scholars and practitioners – friends, contemporaries and colleagues.

In the course of an academic career spanning more than thirty years, the late James C. Brady, professor of Equity and Property Law at University College Dublin, was a seminal figure for generations of law students and practitioners alike through his teaching and writings, particularly in the areas of equity, trusts and succession law.

The collection seeks to reflect the diverse areas of the law that were close to his heart and mind.

All royalties will be paid to the James C. Brady Memorial Trust Fund

To reserve your copy contact Pauline Ward on 01-6024812 or email: [email protected]

Price: £98.00 Publication: April 2001 ISBN: 1-85800-215-X Briefing Solicitors’ Benevolent Association 137th report and accounts Year 1 December 1999 to 30 November 2000 he Solicitors’ Benevolent of any assets which he or she may tising certificates, to those who made Association, founded in 1863, is T have. Applicants are asked to complete individual contributions and to the fol- DIRECTORS AND OTHER the profession’s voluntary charitable documentation in acknowledgement of lowing: the Law Society of Ireland, body. It consists of members of the pro- such loans and, as some of these loans Dublin Solicitors’ Bar Association, INFORMATION fession throughout Ireland who con- have now been repaid, this has Belfast Solicitors’ Association, Faculty tribute to our funds, and its aim is to increased the income of our associa- of Notaries Public in Ireland, Limavady Chairman: Thomas A Menton assist members or former members of tion. Solicitors’ Association, Kilkenny Deputy chairman: John Sexton the profession and their spouses, wid- There are currently 19 directors, Solicitors’ Association, Tipperary and ows, widowers, families and depen- three of whom reside in Northern Offaly Bar Association, County Wexford Trustees (ex officio directors) dants who are in need. The association Ireland, and they meet monthly in the Solicitors’ Association, Ashville Media Brian K Overend also provides advice and financial assis- Law Society’s offices, Blackhall Place. Group Ltd (Law Diary), West Cork Bar John M O’Connor tance on a confidential basis and func- They meet at Law Society House, Association, and the Law Society of Andrew F Smyth tions independently of both law soci- Belfast, every other year. The work of Northern Ireland. eties. the directors, who provide their services To cover the ever-greater demands Directors The amount paid out during the year entirely on a voluntary basis, consists on the association, additional subscrip- Sheena Beale, Dublin in grants was IR£215,170. Currently, in the main of reviewing applications for tions are more than welcome as, of Patrick J Daly, Galway there are 54 beneficiaries in receipt of grants. The directors also make them- course, are legacies. Subscriptions and Desmond Doris, Belfast regular grants. One third of these are selves available to those who may need donations will be received by any of the Robert M Flynn, Cork themselves supporting spouses and personal or professional advice. directors or by the secretary, from whom Felicity M Foley, Cork children. The directors are grateful to both law all information may be obtained at 73 John Gordon, Belfast The association is only in a position societies for their support and, in par- Park Avenue, Dublin 4, and I would urge Colin Haddick, Newtownards to provide beneficiaries and their ticular, wish to express thanks to all members of the association, when dependants with the bare necessities to Anthony H Ensor, Immediate Past- making their own wills, to leave a legacy Carmel Jenkins, Ballina live and the vast majority of applicants President of the Law Society of Ireland, to the association. You will find the Niall D Kennedy, Tipperary would also be in receipt of social wel- and John Meehan, Past-President of the appropriate wording of a bequest on Mary H Morris, Swinford fare assistance from the state. All Law Society of Northern Ireland, page 26 of the Law directory. Etta Nagle, Cork cases are kept under regular review. Director General Ken Murphy, Chief I would like to thank all the directors John M O’Connor, Dublin It has been the policy of the direc- Executive John Bailie, and the person- and the association’s secretary, Sylvia O’Connor, Wexford tors in recent years to provide financial nel of both societies. Geraldine Pearse, for their valued hard Brian K Overend, Dublin assistance in suitable cases by way of I wish to express particular appreci- work, dedication and assistance during Colm Price, Dublin loans repayable by the estate of the ation to all those who contributed to the the year. David Punch, Limerick applicant or out of the proceeds of sale association when applying for their prac- Thomas A Menton, chairman Andrew F Smyth, Dublin

Secretary RECEIPTS AND PAYMENTS ACCOUNT YEAR ENDED 30 NOVEMBER 2000 Geraldine Pearse 2000 1999 Receipts IR£ IR£ IR£ IR£ Subscriptions 187,454 174,267 Bankers Donations 19,664 27,314 AIB plc Investment income 34,799 31,666 37/38 Upper O’Connell Street Bank interest 2,640 2,324 Dublin 1 Tax refund – 5,301 Repayment of grants loaned – 3,301 244,557 244,173 First Trust Payments 31/35 High Street Grants (215,170) (198,614) Belfast BT1 2AL Bank charges (1,322) (910) Administration expenses (15,839) (232,331) (11,543) (211,067) 12,226 33,106 Stockbrokers Bloxham Stockbrokers Surplus for the year before special events proceeds 2-3 Exchange Place Lawyers’ diaries and Christmas cards 16,910 507 IFSC Irish conveyancing precedents publication – 39 Library book sale – 107 Dublin 1 16,910 653 Auditors Surplus for year before legacies 29,136 33,759 PricewaterhouseCoopers Legacies 111,418 5,027 Chartered Accountants and 140,554 38,786 Transfer from/(to) reserve account – (60,000) Registered Auditors Surplus/(deficit) for year 140,554 (21,214) George’s Quay Dublin 2

ACCOUNTING POLICIES d) Sterling. Assets and liabilities denom- ACCOUNTANTS’ REPORT Offices of the association a) Accounting convention. The accounts inated in sterling are converted to Irish We have prepared the accounts set out Law Society of Ireland have been prepared under the historical pounds at the rate of exchange prevail- above for the year ended 30 November Blackhall Place cost convention. The currency used in ing at the balance sheet date. Income 2000 from the accounting records and Dublin 7 these accounts is the Irish pound as and expenditure denominated in sterling information and explanations supplied denoted by the symbol IR£. are converted to Irish pounds at the to us. In our opinion, the accounts are The Law Society of Northern b) Receipts and payments. Receipts and average exchange rate prevailing during in accordance therewith. Ireland payments are recognised in the accounts the year. The rates applicable for the Law Society House as they are received and paid. year ended 30 November 2000 were: PricewaterhouseCoopers 90/106 Victoria Street c) Investments. Investments are stated IR£ Stg£ Chartered Accountants and Belfast BT1 3JZ at cost less provision for any permanent • Year end: 1 0.7782 Registered Auditors diminution in value. •Average: 1 0.7745 Dublin Briefing

LEGISLATION UPDATE: 12 JANUARY – 16 MARCH 2001 ACTS PASSED Contents note: Gives the force of sons who provide telecommunica- the purposes of part IV of the law to the EU convention of tions services and Internet servic- Health Insurance Act, 1994 relat- Aviation Regulation Act, 2001 26/7/1995 on the use of informa- es, and who keep personal data ing to the establishment of the Number: 1/2001 tion technology for customs pur- relating to users of those services Health Insurance Authority Contents note: Establishes the poses; to the agreement on provi- Commencement date: 10/1/ Commission for Aviation Regula- sional application of that conven- 2001 ICC Bank Act, 2000 (Sections 5 tion, which will be responsible for tion; to the protocol of and 7) (Commencement) Order the independent regulation of air- 19/11/1996 on the interpretation Diseases of Animals (Restriction 2001 port charges, including charges for of that convention by the Court of of Movement of Animals) Order Number: SI 46/2001 terminal services provided by the Justice of the European 2001 Contents note: Appoints 12/2/ Irish Aviation Authority, and also for Communities; to the protocol of Number: SI 56/2001 2001 as the commencement date a number of other aviation func- 12/3/1999 which corrects two for sections 5 and 7 of the act tions currently under the responsi- deficiencies in that convention; and Diseases of Animals (Restriction bility of the minister for public to the EU convention of of Movement of Animals) Order Life Assurance (Provision of enterprise; amends the Irish 18/12/1997 on mutual assis- 2001 (Amendment) Order 2001 Information) Regulations 2001 Aviation Authority Act, 1993, the tance and co-operation between Number: SI 61/2001 Number: SI 15/2001 Freedom of Information Act, 1997, customs administrations Contents note: Require suppliers the Air Navigation and Transport Date enacted: 9/3/2001 European Communities (Import of life assurance to provide infor- (Amendment) Act, 1998, and the Commencement date: commence- Restrictions (Foot and Mouth mation to clients resident in Ireland Air Navigation and Transport Act, ment order/s to be made (per s12 Disease)) Regulations 2001 before they sign a proposal or an 1973 of the act) Number: SI 55/2001 application form in respect of life Date enacted: 21/2/2001 assurance, and also throughout the Commencement date: 21/2/ Diseases of Animals Foot and Mouth (Controlled Area) term of the policy. The information 2001. 27/2/2001 appointed as (Amendment) Act, 2001 (No 1) Order 2001 is to include details of the policy, its the establishment day for the pur- Number: 3/2001 Number: SI 59/2001 appropriateness to the needs of poses of the act (per SI 47/2001) Contents note: Amends and the client, early encashment conse- extends the Diseases of Animals Foot and Mouth (Restriction on quences, projected benefits and Broadcasting Act, 2001 Acts, 1966 to 2000 to enable sig- Movement) (No 2) Order 2001 charges, intermediary/sales remu- Number: 4/2001 nificant powers to be exercised in Number: SI 60/2001 neration, review of premium, can- Contents note: Makes further pro- circumstances where there is a cellation rights, together with other vision in relation to broadcasting. risk of an outbreak of serious ani- Foot and Mouth (Restriction on general and additional information, Provides for the introduction of dig- mal disease or during an outbreak. Movement) (No 3) Order 2001 some of which is already subject to ital terrestrial television (DTT) in Confirms the Foot-and-Mouth Number: SI 62/2001 disclosure pursuant to the Third life the state; provides that the minis- Disease Order 1956 (SI 324 of assurance framework directive ter for arts, heritage, gaeltacht and 1956), as amended, and confirms Foot and Mouth (Restriction on (92/96/EEC) as implemented by SI the islands may designate a com- a number of newly-made orders Movement) (No 4) Order 2001 360/1994 pany which will be licensed by the and regulations: SI 49/2001; SI Number: SI 63/2001 Commencement date: 1/2/2001 director of telecommunications reg- 50/2001; SI 51/2001, SI 52/ ulation to construct and operate 2001; SI 55/2001; SI 56/2001; Foot and Mouth Disease (Hay, Local Government (Planning and the DTT infrastructure. Provides for SI 59/2001; SI 60/2001; SI Straw and Peat Moss Litter) Development) General Policy the name of the Independent Radio 61/2001; SI 62/2001 and SI Order 2001 Directive (Shopping) 1998 and Television Commission (IRTC) 63/2001 Number: SI 49/2001 (Revocation Order) 2001 to be changed to the Broadcasting Date enacted: 9/3/2001 Number: SI 1/2001 Commission of Ireland and gives Commencement date: 9/3/2001 Foot and Mouth Disease Contents note: Revokes, with this body expanded powers and (Prohibition of Exhibition and Sale effect from 2/1/2001, the Local functions. Repeals and restates SELECTED STATUTORY of Animals) Order 2001 Government (Planning and Dev- the provisions of the Broadcasting INSTRUMENTS Number: SI 50/2001 elopment) General Policy Directive Authority Act, 1960 and the Radio (Shopping) 1998 (SI 193/1998). and Television Act, 1988 in relation Adoptive Leave Act, 1995 Foot and Mouth Disease However, SI 193/1998 will contin- to the Broadcasting Complaints (Extensions of Periods of Leave) (Restriction of Import of Horses ue to apply to any planning applica- Commission and extends the pow- Order 2001 and Greyhounds) Order 2001 tion which is before a planning ers of investigation of the Number: SI 30/2001 Number: SI 52/2001 authority before the date of coming Commission. Establishes Teilifís na Contents note: Amends the into force of this order (2/1/2001) Gaeilge as a statutory corporate Adoptive Leave Act, 1995 to Foot and Mouth Disease and to any appeal against a deci- body and defines its functions, and extend the periods of leave under (Restriction of Import of Vehicles, sion on such application provides for related matters the act Machinery and other Equipment) Date enacted: 13/3/2001 Commencement date: 8/2/2001 Order 2001 Maternity Protection Act, 1994 Commencement date: commence- Number: SI 51/2001 (Extension of Periods of Leave) ment order/s to be made (per Data Protection (Registration) Order 2001 s1(4) of the act) Regulations 2001 Health Insurance Act, 1994 Number: SI 29/2001 Number: SI 2/2001 (Establishment Day) Order 2001 Contents note: Amends the Customs and Excise (Mutual Contents note: Provide for the reg- Number: SI 40/2001 Maternity Protection Act, 1994 to Assistance) Act, 2001 istration, under section 16 of the Contents note: Appoints 1/2/ extend the periods of leave under Number: 2/2001 Data Protection Act, 1988, of per- 2001 as the establishment day for the act

40 Briefing

Commencement date: 8/2/ Taxes Consolidation Act, 1997 2001 (Amendment of Schedule 4) Order 2001 Protection of Employees (Em- Number: SI 43/2001 ployers’ Insolvency) (Variation Contents note: Section 227 of of Limit) Regulations 2001 the Taxes Consolidation Act, Number: SI 42/2001 1997 provides that certain What’s the Contents note: Increase the limit income of specified non-commer- of an employee’s weekly remu- cial state-sponsored bodies is neration from £300 to £400 for exempt from certain tax provi- the purposes of calculating bene- sions. This order amends the list difference... fits under the Protection of of specified bodies – set out in Employees (Employers’ Insolven- schedule 4 of the Taxes cy) Acts, 1984 to 1991. The Consolidation Act, 1997 – to increased ceiling applies to debts include county enterprise boards arising under the acts where the (within the meaning of the between buying an date of termination of employ- Industrial Development Act, ment or the date of insolvency is 1995) and the National Milk Accounts or Case Management on or after 1/4/2001 Agency system and having a long term Qualifications (Education and Wildlife (Amendment) Act, I.T. strategy ? Training) Act, 1999 2000 (Commencement) Order (Commencement) Order 2001 2001 Number: SI 57/2001 Number: SI 71/2001 Contents note: Appoints Contents note: Appoints 12/3/ 26/2/2001 as the commence- 2001 as the commencement ment date for parts I and II, and date for sections 3 and 46 of the ...the difference part VIII and the first, second Wildlife (Amendment) Act, 2000 and third schedules insofar as is KEYHOUSE those provisions apply to part ii Prepared by the Law Society of the act Library

The only all Irish solicitors’ software EURO ready – NOW! • Over 400 registered users • The most experienced team in Ireland Specialists in Legal Recruitment • The best service, support & training Solicitors Required: •Widest range of integrated • General Solicitor - Wexford Town Practice Management soft- • General Assistant Solicitor - Cavan ware including SAM3 • Litigation - Dublin accounts and Lawsoft3 • Litigation - Kildare • Litigation - Waterford Case Management • Conveyancing / Probate - Waterford • Suppliers of Hardware and • Locum Conveyancing/Probate - Carlow Networks • Commercial / Commercial Conveyancing - Dun Laoghaire • Company / Commercial - Kerry • Commercial Law Manager - Dublin

Other Positions Available are • Legal Executive • Legal Secretaries •

Contact : Louisa Vincent 3A Market Court, The Achievers Group Main Street, 19-22 Dame St. D2 Tel 01 6620752, Fax 01 6623191 Bray, Co. Wicklow. Email : [email protected] Tel: (01) 2040020 www.achieversgroup.ie email: [email protected] Briefing Personal injury judgments

Tort – personal injury – employer’s liability – employee falling on footpath – relatively minor accident – depression and post-traumatic stress – damages in High Court – appeal to Supreme Court – whether damages excessive CASE

Sheila Brennan v Lissadell Towels Limited, Supreme Court (Mrs Justice Denham, Mr Justice Fennelly and Mr Justice Hardiman), judgment of Mr Justice Hardiman (for the court) of 15 November 2000. THE FACTS heila Brennan, born on 12 Brennan suffered a neck injury on a stool in front of a computer ation at the C5/6 and C6/7 levels SMay 1955, fell over a tim- and a fracture of the right elbow. and move her neck. She was with annular bulges and small ber plant or flower container Normally, this would take six unable to continue her hobby of central disc prolapses. These which had been placed on the weeks to heal. She recovered painting. conditions gave rise to pain and footpath leading from the prem- from the arm fracture but devel- Because her condition failed insomnia and affected her ises of her employer, Lissadell oped persistent pain in her neck to improve, she began to feel depressive condition. A consult- To wels Ltd, to their car park. aggravated by any movement. useless and depressed. Her gen- ant maxilo-facial surgeon stated The accident occurred on the She also developed paraesthesiae eral practitioner recommended that Mrs Brennan had a condi- evening of 11 December 1995. of her hands and headaches. She that she see a psychiatrist. tion of the jaws involving click- Mrs Brennan was 40 years old at complained of clumsiness and Despite regular visits to the psy- ing and full extension which were the time of the accident. Her loss of grip in her hand. The chiatrist, there was evidence that of a soft-tissue nature and were husband was a mechanic. At the elbow injury healed, subject to a she had become depressed to a contributed to in large part by date of the accident, Mrs slight limitation of movement. disabling degree. on-going stress and depression. Brennan had been employed at Mrs Brennan was unable to A consultant orthopaedic sur- Mrs Brennan’s gross weekly Lissadell Towels for some 22 work in the immediate aftermath geon, a consultant neurosurgeon wage of at the time of the acci- years, first as an assistant design- of the accident. As time went by, and a consultant neuro-physiol- dent was £191. She alleged that er and subsequently as a design- she appeared to worsen; she had ogist had investigated the cause she had been made redundant by er. Her work related to comput- difficulty in holding a pen and of her neck pain, loss of grip and Lissadell in March 1996, er-assisted designing of towels. gave evidence in the High Court clumsiness. A scan had estab- although this was denied in evi- As a result of the fall, Mrs that she would not be able to sit lished that she had disc degener- dence by the company. THE HIGH COURT HEARING he case came for hearing that these had been lost. The general lack of ordinary opti- in the case in the context of a Tbefore McGuinness J of the judge noted that there was a mism by all the medical doctors physical or psychological prog- High Court. McGuinness J held nosis. that that Mrs Brennan appeared McGuinness J noted that by to be significantly disabled in a THE AWARD IN THE HIGH COURT the end of the ten years, Mrs rather complex way with the Agreed special damages: ...... £2,306 Brennan would probably have interaction between pain in her Special damages: ...... £1,907 been disabled in any case neck and shoulders and the Loss of earnings to date of trial: ...... £14,163 despite the accident. depression from which she was Loss of earnings for the future: ...... £43,554 Accordingly, she took this fact suffering. The judge considered General damages: into account. Mrs Justice that the key problem was that (a) pain and suffering to date of trial: ...... £70,000 McGuinness awarded Mrs she had a career and a job which (b) pain and suffering in the future: ...... £60,000 Brennan, in total, the sum of were very important to her and £191,881. APPEAL TO THE SUPREME COURT issadell appealed the award Lissadell that £70,000 was exces- mitted that the prospect of High Court in concluding with- Lto the Supreme Court, sub- sive for three years’ pain and suf- recovery had been understated out evidence that some form of mitting that the sums awarded fering and that it was illogical for by the High Court, particularly other employment would have for general damages and for the High Court to award a in relation to the depression. It yielded £120 a week. It was also future loss of earnings were greater sum for the past than was further argued that argued that the High Court excessive. It was argued by future suffering. It was also sub- McGuinness J had erred in the failed to adequately take into

42 Briefing consideration the possibilities Hardiman J delivered the judg- uniquely suited to her talents. the evidence of the surgeons that that Mrs Brennan might not have ment of the court. He stated it The judge noted that there in any event the symptoms pro- returned to work at all, might was common case that Mrs was no serious challenge in the voked by her accident could rep- have recovered or might have Brennan was good at her work High Court to the evidence that resent a premature onset by become disabled in any event, and, apart from her wages, she Mrs Brennan was now a chronic approximately five to ten years. independent of the accident. derived considerable satisfaction pain-sufferer. In the context of He noted that that was the most The Supreme Court delivered from that work. He also stated any pre-existing degenerative favourable statement of the posi- judgment on 15 November 2000. that her work appeared to be condition on her part, he noted tion from Lissadell’s point of view. APPROACH ADOPTED BY THE SUPREME COURT ardiman J stated the suffer and continued to suffer Hardiman J stated that seemed impossible to criticise Happroach of the court to the from a depressive illness and McGuinness J’s award for gen- these in light of the evidence. hearing of appeals, such as Mrs post-traumatic stress disorder eral damages was by no means The consequences of a rela- Brennan’s case, had been author- and severe and persistent pain, excessive. Mrs Brennan had a tively simple accident for Mrs itatively considered in the case of all of which had arisen or were condition of constant pain, sig- Brennan were indeed severe. Hay v O’Grady ([1992] 1 IR 210). directly attributable to the acci- nificant loss of function and Since the overall figure for He noted that the matters were dent on 11 December 1995. insomnia, all of which con- damages seemed proportionate usefully dealt with in the judg- The psychiatrist had stated that tributed to the depression and to the complaints, he would not ment of McCarthy J, beginning Mrs Brennan’s capacity to work made it impossible for her to disturb the findings of at page 217. and enjoy life had been enor- work. She had suffered the loss McGuinness J who had seen Hardiman J considered that mously reduced and she was of her previous lifestyle, of her Mrs Brennan and her advisers. the findings of fact of the High considerably incapacitated as a independence and her physical Hardiman J emphasised that, Court were perfectly reasonable result. The psychiatrist had also integrity. He noted that, with in this case, the substantial sum and indeed moderate. He stated stated that Mrs Brennan’s expe- the aid of counselling and med- awarded to Mrs Brennan was that there was, of necessity, an rience with the physical and inti- ication, she had come to terms justified by the exceptional and element of speculation as to mate side of her marriage had with them to some extent but on the whole uncontested evi- when degenerative changes been considerably impaired. was still suffering considerable dence of the comprehensive would have become seriously The court referred to anoth- pain. The loss of her work destruction of her quality of life, symptomatic. He noted that er psychiatrist who stated that meant more to Mrs Brennan, which was quite out of propor- McGuinness J in the High Court Mrs Brennan would need con- according to Hardiman J, than tion to the original compara- had rejected Mrs Brennan’s con- stant monitoring and support the loss of the associated tively minor injury to her right tention that she was entitled to on an indefinite basis and would income. Considering the sum radial bone. As a consequence of damages for loss of earnings for certainly need home help. awarded for general damages as the combination of depression her full working life and instead In those circumstances, a whole, he considered that it and post-traumatic stress disor- opted for the longer of the peri- der and associated pain, she had ods envisaged by the surgeons suffered the loss of her satisfy- before, as a matter of probability, GENERAL APPROACH OF ing and personally rewarding serious symptoms would have employment and disruption of arisen. The Supreme Court con- APPELLATE COURT IN her family and marital life. The sidered that the High Court was PERSONAL INJURIES judge concluded that, even if quite entitled to do this on the ‘An appellate court does not enjoy the opportunity of seeing and the onset of her physical symp- evidence. hearing the witnesses as does the trial judge who hears the sub- toms was to be regarded as an In relation to the significant stance of the evidence but, also, observes the manner in which it is acceleration of the effects of an general damages awarded, given and the demeanour of those giving it. The arid pages of a tran- underlying condition, her Hardiman J held that there was script seldom reflect the atmosphere of a trial. depression was considered by strong medical evidence to justify ‘If the findings of fact made by the trial judge are supported by her medical advisers as likely to such an award. He referred to the credible evidence, [the Supreme] court is bound by those findings, be permanent. however voluminous and apparently weighty the testimony against surgeon who stated that Mrs The Supreme Court dis- them. Brennan had consistent pain in missed the appeal of Lissadell An appellate court should be slow to substitute its own inference her neck and shoulders and a tin- of fact where such depends upon oral evidence or recollection of fact To wels and affirmed the order gling sensation in both hands. and a different inference has been drawn by the trial judge.’ of McGuinness J, who had There had been evidence from a – McCarthy J in Hay v O’Grady awarded £191,881 to Mrs psychiatrist that Mrs Brennan did Brennan. EXPERTS COMPANYCOMPANY FORMATIONFORMATION FAST • FRIENDLY • EFFICIENT • COMPETITIVE PRICES • MEMBERS OF EXPRESS SERVICE PHONE CARMEL OR RITA ON 01 672 4914/6 (FAX: 672 4915) or e-mail: [email protected]

THE LAW SOCIETY’S COMPANY SERVICE, • Private limited company – ten days, £180 • Single member company – ten days, £180 BLACKHALL PLACE, DUBLIN 7 • Guarantee company – ten days, from £130 • New companies, using complete nominees – five days, £220 Briefing

Tort – personal injuries – employer’s liability – negligence – extent of corporate and individual liability – whether sufficient control by individual of business to render him liable in negligence CASE Samuel Shinkwin v Quin-Con Limited and Nicholas Quinlan, Supreme Court (Chief Justice Ronan Keane, Mr Justice Geoghegan and Mr Justice Fennelly), judgment of Mr Justice Fennelly (for the court) of 21 November 2000. THE FACTS n 3 August 1993, Samuel work eight months before the The jig shifted suddenly, as it virtually the sole owner of the OShinkwin, then 20 years of accident. The machine was an was stiff. Mr Shinkwin’s right business. Quin-Con Ltd was age, was involved in an accident electric circular saw with a jig hand slipped and came into uninsured, had no assets and in a small factory near which had to be moved or contact with the saw. He lost did not defend the claim. Mr Clogheen, Co Cork where adjusted from time to time. the index, middle and ring fin- Shinkwin was anxious to suc- Quin-Con Ltd made trophies. Mr Shinkwin moved the jig gers and part of his thumb. Mr ceed against the second defen- Mr Shinkwin was requested to when the saw was in motion Shinkwin issued proceedings in dant, Nicholas Quinlan, work on a woodworking and while it was inadequately the High Court against Quin- described as the effective sole machine which caused him an guarded. He had never been Con Ltd and Nicholas shareholder and controller of injury. He was asked to do this instructed to do otherwise. Quinlan, who was described as Quin-Con Ltd. THE JUDGMENT OF THE HIGH COURT n the High Court, the trial care to Mr Shinkwin. The judge gers inherent in the work that was switched off at all times Ijudge held that Mr Shinkwin was satisfied that Mr Quinlan he was obliged to do. Mr when the jig was being moved. regarded Mr Quinlan as his failed in that duty and that he Quinlan failed to ensure that The High Court awarded Mr boss. The judge stated that Mr failed to provide proper training the guard was at all times prop- Shinkwin £304,000. Mr Quinlan, as manager of the fac- for Mr Shinkwin. He failed to erly adjusted over the saw and Quinlan appealed to the tory premises, did owe a duty of warn Mr Shinkwin of the dan- he failed to ensure that the saw Supreme Court. THE SUPREME COURT he case was argued before ous injuries sustained in the allowed to stand, it would open Donoghue v Stevenson ([1932] AC Tthe Supreme Court, consist- accident at the factory premises the door too wide in establish- 562) that everybody owes a duty ing of Chief Justice Keane, Mr where he was employed by ing a new category of basis of to exercise reasonable care not Justice Geoghegan and Mr Quin-Con Ltd. liability for factory managers. It to cause injury to a person who Justice Fennelly. Mr Justice It was argued in the Supreme was argued that Mr Quinlan should be regarded as his neigh- Fennelly delivered the judg- Court by counsel for Mr must be regarded merely in the bour, that is, anybody to whom ment of the court on 21 Quinlan that the duty to pro- guise of a manager. It was he was in such a relationship of November 2000. Fennelly J vide a safe system and a safe argued that people in such proximity that it was reasonably stated that the appeal concerned place of work was an obligation positions do not attract person- foreseeable that that other per- one principal issue, whether Mr imposed directly in law on al liability. son may suffer injury as a result Quinlan was correctly held Quin-Con Ltd as the employer. Counsel for Mr Shinkwin of his negligent acts. liable to Mr Shinkwin for seri- If the High Court decision were relied on the principle stated in Fennelly J considered that a

Thinking of changing Accounting or Practice Management System? Which system will give you best value for money? For practice hands-on experience and independent advice on the strengths and weaknesses of the packages available, contact David Rowe at: out•source 140-142 Pembroke Road, Dublin 4. T: 01 664 3402 F: 01 664 3403 E: [email protected] W: www.outsource-finance.com

44 Briefing person might be the sole effec- ever, that Mr Quinlan fell ball for the same reason. These to stop the circular saw from tive and controlling shareholder between the two scenarios. He factors, according to Fennelly J, revolving while adjusting the jig of the business run by a compa- was the effective sole sharehold- demonstrated the intimate or to ensure that it was guarded. ny but may have no involve- er and effective day-to-day man- involvement of Mr Quinlan in In his supervision and ment in its day-to-day opera- ager. The question arose: did he the management of the factory instruction of Mr Shinkwin, Mr tions. Such a person would have involve himself so closely in the and supervision of Mr Shinkwin. Quinlan was negligent. The control over the company but operation of the factory and, in The Supreme Court consid- court concluded by stating that not of the manner in which it particular, in the supervision of ered the issue of ‘control’ and Mr Shinkwin made his claim conducted its operations. He Mr Shinkwin, as to make him- reference was made to dicta of Ó directly in negligence against considered that such a person self personally liable for any of Dálaigh CJ in Purtill v Athlone Mr Quinlan and not as his would not be responsible to the acts of negligence which UDC ([1968] IR 205 at 213). employer or shareholder, but as employees injured by the negli- injured Mr Shinkwin? Fennelly J concluded that Mr a person who had placed himself gent acts of the company and, in The evidence had disclosed Quinlan, on the particular facts by his own actions in such a particular, the failure of the that Mr Shinkwin dealt person- of the case, placed himself in a relationship to Mr Shinkwin as company to ensure that there ally with Mr Quinlan from the relationship of proximity to Mr to call upon himself the obliga- was a safe system of work in beginning. Mr Quinlan was Shinkwin. Mr Quinlan had per- tion to exercise care. Fennelly J operation in its factories. always in and out of the machine sonally taken on a young and considered it was not necessary On the other hand, the judge area when the shop was busy, untrained person to work in a on the facts to express an opin- submitted that any employee and saw Mr Shinkwin using the factory managed by him and ion on the issue raised in the owes to his fellow employees a machine and the difficulties he personally put him to work on a argument as to the potential duty to exercise at least such had in moving the jig. Mr potentially dangerous machine exposure generally of factory care in the performance of his Quinlan repeatedly warned the over which he exercised control managers to personal liability. work that he does not cause employees that there was no to the extent of giving some, Accordingly, the Supreme direct injury to his fellow work- insurance and was aware of a though completely inadequate, Court dismissed Mr Quinlan’s ers. An example was given of a history of accidents that made it instructions to the workers. He appeal. G careless dropping of a hammer impossible to get insurance. Mr was bound to take appropriate by one worker on the foot of Quinlan gave instructions, for steps to warn Mr Shinkwin of These cases have been summarised another. Fennelly J noted, how- example, about not playing foot- such obvious dangers as failing by solicitor Dr Eamonn Hall.

APPLICATIONS ARE INVITED FOR THE POSITION OF SENIOR EXECUTIVE MARY B CREMIN SOLICITOR RECRUITMENT LTD. DUBLIN CORPORATION QUALITY SERVICE ■ Essential: Admission and enrolment as a Solicitor in the State, seven years FOR QUALITY PEOPLE experience including experience of court work. SPECIALISTS IN LEGAL RECRUITMENT ■ Salary: £33,913 – £43,057 • Solicitors • Legal Executives ■ Closing date: 19th April 2001 • Legal Advisers • Company Secretaries For application forms and further details please contact: • Receptionists • Law Clerks • In House Donna McGuirk, direct line: 01 669 2238 Applications must be made on the official application Mary B Cremin Recruitment Ltd. form. No application forms will issue by post on foot of requests received on the closing date. 39 Fitzwilliam Place, Dublin 2 Tel: (01)6635901 Fax: (01) 6628662 Cuirfear fáilte roimh chomhfhreagras i nGaeilge. Email: [email protected] THE OFFICE OF THE CIVIL SERVICE & LOCAL APPOINTMENTS COMMISSIONERS 1 Lower Grand Canal Street, Dublin 2. ESTABLISHED 21 YEARS Telephone Number: (01) 6615611 LoCall 1890 449999 Details and application forms are also available on our website www.marybcremin.ie www.irlgov.ie/csclac The Commissioners are committed to a policy of equal opportunity. Briefing Update

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

CONSTITUTIONAL consolidate and, if it had, The appeal would be dismissed. judge that proposed evidence inad- whether in the circumstances it DPP v Corbally, Supreme missible because irrelevant – res Immigration and nationality was fairly exercised. The court Court, 15/12/2000 [FL3428] gestae – judge at retrial not Service of documents – deportation considered the provisions of the informed of ruling at first trial – order – notification of change of Criminal Justice (Administration) Bail whether proposed evidence res judi- address – proof of service – habeas Act, 1924. The central issue was Criminal law – prisoner on bail cata – whether conviction should be corpus application – whether docu- whether the Circuit Court had pending determination of judicial set aside – Criminal Procedure ments properly served – Bunreacht power to consolidate two inde- review proceedings – penal servi- Act, 1967 – Criminal Damage na hÉireann 1937, article 40 – pendent indictments containing tude – whether Criminal Law Act, 1991 Immigration Act, 1999, section 6 counts based on separate Act abolished penal servitude – During the trial of the appellant The application concerned the returns for trial. The court Criminal Law Act, 1997, section on a charge of causing damage service of documents by the found there was no statutory 11 – Interpretation Act, 1937 by fire to a house, the judge department of justice, equality authority or otherwise for the The respondent was out on bail ruled that evidence proposed to and law reform on the applicant consolidation of two indict- pending the outcome of a judi- be given by a witness for the concerning a deportation order. ments of the sort under review, cial review hearing and, subse- prosecution was inadmissible The department had served allowed the appeal and granted quent to his unsuccessful judicial because irrelevant. There was a papers on the applicant by way an order of certiorari. review application, the DPP jury disagreement and at the of service on the Refugee Legal Conlon v Judge Cyril Kelly & sought his return to prison to retrial of the appellant the judge Service. As part of habeas corpus Ors, Supreme Court, complete the balance of a three- was not informed as to the rul- proceedings under article 40 of 21/02/2001 [FL3427] year penal servitude sentence. ing on the same issue by the Bunreacht na hÉireann, the The respondent contested the judge at the first trial. The applicant challenged the service application by motion on a appellant was convicted and of the documents. The Supreme CRIMINAL number of grounds, including a appealed. At the appeal hearing, Court held that there was no declaration that section 11 of the central issue was whether power in the Immigration Act, Practice and procedure, bail the Criminal Law Act 1997 did the finding by the judge on the 1999 for deeming such service Principles for granting bail – bail not have the effect of retrospec- issue at the first trial precluded good. Accordingly, the enquiry sought pending hearing of appeal tively altering the nature and admission of that evidence at under article 40 would be remit- against conviction – point of law of condition of a sentence of incar- the retrial. The appeal court ted to the High Court where the exceptional public importance – ceration imposed by a court of held that it was not necessary to issue of whether the department Courts of Justice Act, 1924, sec- competent jurisdiction before decide whether the proposed was notified of the change of tions 29, 32 – Criminal the coming into operation of the evidence was or was not rele- address by the applicant would Procedure Act, 1993, section 3 1997 act from penal servitude to vant or was or was not more be determined. The appellant had sought bail one of imprisonment. The court prejudicial than probative. Gabrel v Governor of Mountjoy while awaiting an appeal against considered a number of author- Where issue estoppel arose, it Prison, Supreme Court, conviction and was refused. The ities open to it and also consid- was not because the first deci- 08/02/2001 [FL3415] appellant appealed the decision ered the Interpretation Act, 1937 sion was necessarily right but to the Supreme Court. The cen- and found that the respondent because it must be taken as cor- tral issue before the court was: had a legitimate expectation that rect. The question of the admis- COURTS what were the appropriate prin- on the passing of the Criminal sibility of the proposed evi- ciples that should apply in the Law Act, 1997 his three-year dence was res judicata. The con- Practice and procedure granting of bail in such an penal servitude sentence would viction would be set aside and a Judicial review – certiorari – con- instance? Geoghegan J, deliver- come to an end. The applicant’s new trial ordered. solidation of two indictments in the ing judgment, held that to grant case was dismissed. People (DPP) v O’Callaghan, Circuit Court – whether Circuit bail in such a case there should DPP v Murphy,High Court, Court of Criminal Appeal, Court had jurisdiction be a strong chance of success in Mr Justice O’Donovan, 18/12/2000 [FL3450] The High Court refused judicial the appeal. The possibility that 20/11/2000 [FL3420] review of an order of the Circuit the sentence of imprisonment Maritime and shipping law Court permitting the prosecu- would expire before the hearing Evidence Detention of accused – interna- tion to consolidate two indict- of the appeal was also a factor. Estoppel – res judicata – trial – tional law – fair procedures – drug ments. The court was asked to Applying these factors, the jury disagreement – retrial – fire smuggling charges – whether con- consider whether the Circuit appellant’s situation was not an damage – admissibility of proposed tinued detention in breach of Court had any such power to appropriate case to grant bail. evidence – ruling by first trial applicant’s constitutional rights –

46 Briefing whether accused detained under District Court judge hearing Medicine, negligence them to make discovery of cer- false pretences – Maritime the case. The judge had been of Adequacy of damages – personal tain classes of documents, Jurisdiction Act, 1959, section the view that an inordinate injuries – assessment of damages – including the accident report 11 – Criminal Justice (Drug delay had arisen in the prosecu- quantum – practice and procedure – book/record details. When the Trafficking) Act, 1996, section 2 tion of the offence. The DPP causation – whether trauma of acci- defendant failed to furnish the The applicant had been arrest- stated a case on the matter for dent exacerbated plaintiff’s multiple documents, the plaintiff applied ed on board a ship in conjunc- the opinion of the High Court. sclerosis successfully to the master of the tion with the alleged smug- Ó Caoimh J held that while the The plaintiff had suffered a fall in High Court for an order of dis- gling of a quantity of cannabis overall delay was somewhat the defendant’s shop premises. covery. The defendant appealed. resin. Proceedings were then inordinate, the District Court O’Donovan J found the defendant Morris P held that the plaintiff’s instituted against the applicant. judge had not been entitled to entirely responsible for the fall solicitor had failed to specify the Some time later, it transpired infer prejudice on the facts of and damages were assessed at precise categories of documents that a certificate under section the case. The respondent’s con- £100,000. A year before the acci- sought in discovery and to fur- 11 of the Maritime Jurisdiction stitutional right to a fair trial dent, the plaintiff had developed nish reasons why each of the cat- Act, 1959 had not been issued. had not been interfered with multiple sclerosis. In calculating egories was required to be dis- Such a certificate was necessary and the matter would be remit- the appropriate damages, covered. The master derived his in order to ground proceedings ted for hearing to the District O’Donovan J held that the trauma jurisdiction to determine the against the applicant. The Court. of the accident had not progressed issues arising between the parties respondent entered a nolle pros- DPP v Ferguson, High Court, the plaintiff’s multiple sclerosis. from the identification of the equi against the applicant. The Mr Justice Ó Caoimh, The plaintiff appealed this aspect issues in the plaintiff’s originat- appropriate certificate was then 21/12/2000 [FL3385] of the decision and sought dam- ing letter or letters. The plaintiff obtained and fresh proceedings ages on the basis that the accident failed to comply with order 34, were initiated against the appli- had progressed her multiple scle- rule 12(4)(1) of the Rules of the cant. The applicant sought an DAMAGES rosis. The Supreme Court in a Superior Courts and the court order of certiorari in respect of majority decision allowed the accordingly did not have juris- the certificate and sought an Garda compensation appeal and remitted the case to diction to make the order order of prohibition against Personal injuries – damages – the High Court for an assessment sought. any further proceedings. Ó assessment of compensation – loss of damages. O’Neill J held that, as Sword v Western Proteins Ltd, Caoimh J held that the respon- other than financial loss – method a matter of probability, the fall High Court, Mr Justice dent had correctly sought the of calculation – psychological evi- had caused an aggravation of the Morris, 29/11/2000 [FL3447] further detention of the dence – whether appropriate to plaintiff’s multiple sclerosis condi- accused while the correct posi- award damages under ‘mental dis- tion. The plaintiff would be tion regarding the certificate tress’ – Garda Compensation awarded a total of £329,158 in EDUCATION necessary to ground proceed- Act, 1941 – Garda Compensa- damages. ings was researched. The sub- tion Act, 1945 Curran v Finn, High Court, Mr Pensions sequent decision by the minis- The applicant brought these Justice O’Neill, 29/01/2001 Teacher – not in receipt of full pen- ter in question to issue a cer- proceedings under the Garda [FL3390] sion – whether non-teaching experi- tificate pursuant to section 11 Compensation Acts. She was the ence should be considered in calculat- of the Maritime Jurisdiction Act, widow of a garda who had suf- ing pension entitlement – whether 1959 was not invalid. Further fered fatal injuries in an arson DISCOVERY error made in calculation of pension proceedings against the appli- attack. In this application, the The plaintiff was a secondary cant would not be prohibited. court had to assess the amount Tort and negligence school teacher who previously The application would be dis- of compensation payable in Personal injuries claim against had worked in the civil service. missed. regard to the loss (other than employer – order granted by master – She received her teacher’s pen- Preece v DPP, High Court, financial loss) sustained by the appeal – documents required to prove sion but, as she was short of her Mr Justice Ó Caoimh, applicant. Counsel disagreed on defendant’s state of knowledge and full service as a teacher, she did 07/12/2000 [FL3436] the basis on which such a sum negligence – whether failure to speci- not qualify for a full pension. should be calculated. fy precise category of documents The plaintiff sought a declara- Practice and procedure O’Sullivan was satisfied that sought in discovery – whether failure tion that there was a miscalcula- Dismissal of case by reason of delay there was no jurisdiction to to furnish reasons why each category tion in determining her entitle- – assault – delay in service of sum- grant an award of general dam- was required to be discovered – juris- ment. She claimed her time mons – garda responsible for serv- ages. There was, however, juris- diction of master – whether rules spent as a civil servant should ice of summons taken ill – whether diction to award an amount complied with Rules of the Superior have being taken into considera- delay in prosecution of offence which was reasonable in all the Courts (No 2) (Discovery) 1999, tion. In determining her non- inordinate and inexcusable – circumstances. O’Sullivan J order 31, rule 12(4)(1) teaching experience, Mr Justice whether risk of unfair trial should therefore made a number of The plaintiff claimed damages for Morris considered a scheme for prosecution continue – Non-Fatal awards in respect of the appli- negligence arising out of an acci- allowing incremental credit for Offences Against the Person cant and her children. dent in the course of his employ- relevant non-teaching experi- Act, 1997, section 2 Callanan v Minister for ment at the defendant’s meat-pro- ence and found that she was The case concerned the dis- Finance, High Court, Mr cessing plant, and for the purpos- excluded from this scheme. missal of a charge of assault Justice O’Sullivan, 06/12/ es of his claim his solicitor wrote While the court ruled against against the respondent by the 2000 [FL3422] to the defendant’s solicitors asking the plaintiff on her other claims, Briefing it was sympathetic to her plight with full pay where urgent fami- FAMILY issued an application for nulli- and recommended that the min- ly matters arise which can be cat- ty. In the course of the hearing ister make an ex gratia payment egorised as ‘urgent, immediate Judicial separation in October 1999, the respon- to the plaintiff without an and indispensable’. The child Ancillary orders – discovery – dent withdrew the petition. He admission of liability. had a temperature and the plain- attitude of respondent husband – was now in a new relationship. Clare v Minister for Education, tiff was concerned. It subse- no prospect of reconciliation – The applicant sought a decree High Court, Mr Justice quently transpired to be nothing findings on blame for marriage of judicial separation and ancil- Morris, 09/11/2000 [FL3414] serious. The plant manager of breakdown – adultery – assets and lary orders. O’Donovan J held the defendant company told the income of respondent – nullity that on the evidence there was Employment Appeals Tribunal petition – respondent’s liabilities – no prospect of a reconciliation EMPLOYMENT that he not believe a rash could respondent’s new relationship – between the parties. Both par- be termed ‘immediate and indis- welfare of children – applicant’s ties were to blame: the appli- EAT appeal pensable’, stating that it was nor- right of occupancy in family home cant because of her inappropri- Parental leave – meaning of mal in bringing up children. The – mortgage – whether to direct ate behaviour towards the lat- ‘urgent, immediate and indispen- EAT determined that the relief sale of company – application of ter end of their life together sable’ – force majeure – whether fell short of the act and dis- proceeds of sale – plan to ratio- and the respondent because of plaintiff entitled to leave with pay missed the claim. The High nalise respondent’s finances – costs his inability to appreciate that, on taking day off to care for sick Court found that the tribunal’s sanction because of wasted court to a limited extent, the appli- child – Parental Leave Act, 1998, approach to the case was wrong. time – Judicial Separation and cant’s behaviour was attributa- sections 13, 20 – Parental Leave It had taken the view that the Family Law Reform Act, 1989 ble to illness involving post- (Notice of Force Majeure Leave) reason the force majeure leave was – Family Law Act, 1995 natal depression. The respon- Regulations 1998 – Council refused was that the rash turned The applicant and the respon- dent apparently did not under- directive 96/34/EC out to be harmless. This was dent were married in 1993 and stand this and he was unable to The plaintiff, who was employed judging with hindsight. It should they had two children. The make allowances for it. A by the defendant, had noticed a have looked at the plaintiff’s rea- marriage broke down and they decree of separation and ancil- rash on her child’s legs and took sons at the time the decision was had not lived together as hus- lary orders would be granted. her to the doctor and chemist. made not to go to work, and the band and wife since February There was no justification for She remained off work to court allowed the appeal. 1997. Initially, the respondent the amount of time that was observe the child. Section 13 of Carey v Penn Racquet Sports husband maintained that the spent on certain issues pressed the Parental Leave Act, 1998 Ltd,High Court, Ms Justice ceremony of marriage did not by the applicant. As a result, allows employees to take leave Carroll, 24/01/2001 [FL3391] constitute a valid marriage and while the hearing lasted for

48 Briefing nine days, the costs allowed to HUMAN RIGHTS JUDICIAL REVIEW ment plan – Local Government the applicant would be on the (Planning and Development) basis of a six-day hearing. Judicial review Licensing Regulations 1994, articles 18(1), CO’R v MO’R, High Court, Asylum – refugee status – leave to Certiorari – prohibition – licens- 33(3) – Local Government Mr Justice O’Donovan, apply for judicial review already ing – objections – conditions – (Planning and Development) 19/09/2000 [FL3449] granted – application by respon- renewal – matters to be taken into Act, 1963, sections 7(1), 27(3) dent to discharge original order – consideration The applicant had applied to Practice and procedure refugee status granted to some The applicant was a holder of a the respondent for planning Medical health – costs of proceed- applicants – inherent jurisdiction of seven-day licensed premises, permission to build a dwelling ings in moot issue – policy of court – whether order granting dance hall and a full restaurant house. The respondent request- health board – births and mater- leave to apply for judicial review licence and sought orders for cer- ed additional information con- nity – practice and procedure – should be discharged – whether tiorari and prohibition against cerning the application pur- mandamus – declaratory relief – original application premature – the respondent District Court suant to article 33 of the Local whether appropriate to grant Rules of the Superior Courts judge and DPP. The licenses had Government (Planning and relief in moot case – Health Act, 1986, order 19, rule 28 – been objected to from residents Development) Regulations 1994. 1970, section 62 – Chancery European convention on from time to time and the The respondent had great diffi- (Ireland) Act 1867, section 155 – human rights 1951 – Refugee District Court judge dealt with culty in the delivery of the Rules of the Superior Courts Act, 1996 – Bunreacht na these problems by attaching con- request to the applicant. The 1986, order 19, rule 29 hÉireann 1937, articles 29.3, ditions to the licenses. One of request for further information The applicants sought to have 29.4 and 40.3 the conditions was that an ex- was not issued within the two- the birth of their sixth child at The applicants, a group of garda would prepare a report on month period as required by home. The respondents had a Romanian nationals, had been the conduct of the premises for section 27(3) of the Local policy that all births take place granted leave to apply for judi- the judge’s consideration. At the Government (Planning and in properly-equipped materni- cial review in respect of their September licensing renewal, the Development) Act, 1963. The ty units, but would facilitate applications for refugee status. applicant had four applications applicant sought a declaration home births. The policy The minister for justice now before the court. Additionally, that he was entitled to a default regarded as unsuitable for sought to have the order grant- there were six prosecutions planning permission pursuant home delivery the sixth and ing leave discharged. On behalf against him for breaches of the to section 27(3)(a) of the Local subsequent deliveries and of the minister, it was claimed liquor licensing laws which were Government (Planning and refused the applicants’ request. that some of the applicants had adjourned to November. Of the Development) Act, 1963. The respondent did offer a already been granted refugee six charges, the solicitor for the Finnegan J held that had the grant towards the cost of home status. In addition it was con- applicant entered a plea for three applicant given complete details delivery by way of ex gratia tended that there was no evi- of them. On one of them, the of his address, then the respon- payment. The applicants dence that the applications for applicant was convicted. The dent would have been able to sought to challenge the policy asylum had been dealt with applicant sought an order of pro- effect personal service of the of the respondents and in this unfairly. O’Donovan J held that hibition to prevent the first correspondence as intended. regard obtained leave to apply due to the differing nature of respondent from dealing with Accordingly, the application for for an order of mandamus com- the cases of the applicants it them and certiorari against the planning permission was bad. In pelling them to provide birth had been inappropriate to orders made. The court found addition, had the planning per- services as set out in section 62 include them in one set of pro- the decisions reached were mission been granted, it would of the Health Act, 1970. ceedings. The respondent was flawed and set them aside on the have involved a material breach However, as the child was sub- not obliged to take account of basis that the judge took into of the county development plan. sequently born, the issue the European convention of consideration matters extraneous The relief sought would be before the court was whether it human rights in assessing appli- to the actual prosecution. refused. was appropriate to grant the cations for asylum but was O’Donnell v O’Connell & Walsh v Kildare County relief originally sought. bound to comply with the prin- DPP,High Court, Mr Justice Council, High Court, Mr Finnegan J held that as events ciples of natural and constitu- Morris, 29/11/2000 [FL3412] Justice Finnegan, 29/07/2000 had overtaken the relief tional justice and the relevant [FL3403] sought, an order of mandamus provisions of the Refugee Act, should not now issue. Such 1996. There was no evidence LOCAL GOVERNMENT relief should not be granted before the court which would NEGLIGENCE where the declaration relates to warrant interfering with the Planning and future rights or depends on a decision-making process in environmental law Road traffic contingency or where a mere question. Pursuant to the Application for planning permis- Personal injuries – application to academic question of no practi- inherent jurisdiction of the sion – county development plan – strike out – inherent jurisdiction of cal value was involved. The court, the original order grant- original site notice deemed insuffi- court – occupier’s liability – application for declaratory ing the applicants’ leave would cient – request for additional infor- whether plaintiff’s claim disclosed relief was refused. be discharged. mation by local authority – address reasonable cause of action – Maguire v South Eastern Adam & Others v Minister for of applicant inadequate – whether Occupiers Liability Act, 1995, Health Board, High Court, Justice, High Court, Mr applicant entitled to default plan- section 4 – Rules of the Superior Mr Justice Finnegan, Justice O’Donovan, 16/11/ ning permission – whether develop- Courts 1986, order 19, rule 28 25/01/2001 [FL3395] 2000 [FL3448] ment contravened county develop- The plaintiff boarded the lug- Briefing gage compartment at the rear of held that the deceased’s car was PRACTICE AND fer – whether court gives effect to the a bus and sustained an injury being driven at an excessive PROCEDURE intention of the testator in seeking to when falling out onto the road. speed and this was a major con- change his will – whether construc- It emerged in evidence that it tributing factor to the accident. Personal injuries tive trust arises was a common custom of youths The essential liability for the Rules of disclosure – litigation – The deceased, a farmer, died in the area to get a free ride and accident must rest with the expert witness – whether engineer without issue. In his will, he left this was known to the defen- deceased. The defendant was employed by local authority regarded all his property to his wife and dants. It emerged that the com- 20% negligent for failing to as expert witness – whether reports brother as joint tenants for life partment door could be opened have his vehicle in the correct of in-house experts subject to rules of with the remainder to trustees in from the outside. The plaintiff position on the road at the time disclosure – Rules of the Superior trust for his nephew, the second sued the defendants who oper- of the impact. Courts (No 6) (Disclosure of defendant. The deceased’s broth- ated the bus. The defendants Furey v Suckau,High Court, Reports and Statements) 1998 – er predeceased him. Several years sought to strike out the claim on Mr Justice Ó Caoimh, Rules of the Superior Courts prior to his death, he instructed the grounds that the claim dis- 14/07/2000 [FL3417] 1986, order 39, rules 45, 46 and 50 his solicitor to change the will to closed no reasonable cause of – Courts and Court Officers Act, leave everything to his wife and action. Ó Caoimh J held that 1995, section 45 drop his nephew. His solicitor there was an issue as to whether PLANNING The application concerned the believed there would be tax issues the defendants knowingly per- applicability of the rules relating and advised transferring his land mitted persons to use the lug- Maritime and shipping law to disclosure of reports compiled into the joint names of himself gage compartment on the bus to Challenge to planning permission – by in-house experts. The High and his wife so the property hitch a lift. The application of nature of judicial review – mar- Court (Johnson J) had deemed would then pass to her as sole the defendants would be refused itime and shipping law – construc- that an engineer in the employ- owner if she survived him. The and the case would be allowed tion of shipping quay – whether ment of a local authority who testator agreed and the solicitor to proceed. decision to grant planning permis- compiled a report for his drew up a deed of transfer. Weldon v Fingal Coaches,High sion ultra vires – whether respon- employer could not be consid- Unfortunately, in so doing some Court, Mr Justice Ó Caoimh, dent complied with statutory obli- ered an expert. The matter was property was inadvertently omit- 25/01/2001 [FL3440] gations – whether failure to notify then referred to the Supreme ted. The issue before the court applicant that environmental Court. Murphy J, delivering was whether in light of the error Personal injuries impact statement would be included judgment, held that engineers regarding the property did a con- Traffic accident – fatal injuries – in decision-making process – Local were undoubtedly ‘experts’ and structive trust arise in regard to claim by widow of deceased driver – Government (Planning and the fact they were employed by the land not transferred into the circumstantial evidence – whether Development) Act, 1963 – one of the parties did not deprive joint ownership. In reviewing the defendant’s left-hand drive vehicle European Communities them of this status. However, the law and adopting Lord Denning’s stationary in middle of road when (Natural Habitats) Regulations requirement of disclosure only ‘justice and good conscience’ struck by deceased driver – whether 1997, article 27 arose if the employer intended approach, the court held that the impact occurred solely on deceased’s The applicant in these proceed- on calling the authors of the testator had changed his mind side of road – only witnesses to acci- ings sought, by way of judicial reports to give evidence. The regarding the disposal of his dent were defendant and his wife – review, to challenge the decision disclosure rules represented a estate after death and took steps plaintiff’s case dependent on extrin- of the respondent to grant plan- radical change in the processing to give effect to his revised inten- sic evidence and theories – whether ning permission for a 60-metre of personal injury claims. The tion. Accordingly, it ruled that speed of deceased’s vehicle major riverside quay. The applicant order of the High Court would the nephew did not benefit from contributing factor to accident claimed that the decision to be reversed but the matter would the lands excluded in the deed of The plaintiff claimed damages grant planning permission was be remitted to the High Court to transfer and that he was a con- arising out of the death of her ultra vires and made in excess of allow the respondents the oppor- structive trustee of the remainder husband, whose car was in colli- jurisdiction. The applicant con- tunity to argue that certain parts interest for the benefit of the sion with a left-hand driver tended that the respondent’s of the reports of the engineers widow. camper van driven by the defen- determination that there would should be deleted before being Kelly v Cahill,High Court, Mr dant near Athlone. The be no increase in shipping ton- disclosed to the plaintiff pur- Justice Barr, 18/01/2001 deceased was accompanied by nage due to development was suant to order 39, rule 50 of the [FL3396] G two colleagues from the irrational. Butler J rejected the Rules of the Superior Courts. Defence Forces who were seri- arguments advanced by the Galvin v Murray & Anor, ously injured and had no recol- applicant. Attention had been Supreme Court, 21/12/2000 lection of the accident. The drawn to the existence of an [FL3425] LAW SOCIETY defendant’s van had been environmental impact state- OF IRELAND stopped at an angle in the centre ment in condition one of the ON E-MAIL of the road preparing to turn planning permission and the PROBATE into a road leading to a hotel same was considered in the Contactable at when it was struck at speed by planning process. Administration of estate [email protected] the deceased’s car. Damages had Waddington v An Bord Deed of transfer of deceased’s lands Individual mail been agreed at £247,000 and the Pleanála, High Court, Mr before death – error on transfer – addresses take the form: court was asked to decide the Justice Butler, 21/12/2000 whether court follows provisions of [email protected] question of liability. O Caoimh J [FL3384] will on part of will not in the trans-

50 Briefing Eurlegal

News from the EU and International Law Committee Edited by TP Kennedy, director of education, Law Society of Ireland

The Treaty of Nice

he intergovernmental con- ascribed to the poor conduct of represent the common EU the European Parliament and Tference of the member the presidency by the French interest, its nominal objective. the president of the European states of the European Union, government and, more reason- However, the threat that a larg- Commission. Nice provides that which was convened in ably, to the nature of the agen- er Commission would be the members of the Commission February 2000 and concluded at da. With all the issues on the unable to function as a colle- are to be nominated by the the Nice Summit on 9 table of an institutional nature, giate entity demanded that the member states. However, the December (referred to as ‘IGC there was little stock to horse de facto nationality representa- college of commissioners and 2000’), was initially convened to trade. Instead, it took hard tion be relinquished. the president of the Commis- deal with the so-called negotiation and several dubious From January 2005, the sion are then to be appointed by ‘Amsterdam leftovers’. These compromises, together with the Commission is to have the same the Council acting by qualified were those issues of institution- familiar EU-style of postponing number of members as there majority, subject to the approval al reform which the 1996 IGC agreed changes, to achieve the are member states. Thus, at that of the European Parliament had so spectactularly failed to necessary compromise. point, the larger states will (article 214 EC[N]). The address. As set out in the rele- The conduct of the IGC has forgo the practice of nominat- change to appointment by the vant protocol to the Amsterdam led to several calls to reform or ing a second commissioner. Council by qualified majority treaty, a link was established redesign the treaty amendment Following the accession of the voting (QMV) appears to have between two key institutional process itself. One suggestion, 27th member state, the number been a last-minute one. Neither issues, the composition of the which has gained some support, of commissioners will be the Commission nor parliament Commission and the re-weight- is to carry out future treaty reduced below that of the num- sought such a reform, which is ing of votes in the Council. The reform by means of a conven- ber of member states. The final extraordinary in light of the rel- protocol referred to the need to tion, along the lines of that used number of commissioners has atively recent political conflicts ‘compensate those member to draft the EU Charter on fun- not been set down. Instead, the that have arisen around the states which gave up the possi- damental rights. The next IGC Treaty of Nice provides that the appointment of the president of bility of nominating a second in 2004 looks likely to depart Council is to lay down the num- the European Commission. commissioner’. The IGC 2000 from the familiar intergovern- The president of the agenda was broadened to deal mental model, at least for a European Commission. The with other issues of instituti- preparatory consultative stage. NOTE ON CITATION: treaty Treaty of Nice also enhanced the tional reform, including the articles are given their powers of the president (article reform of the judicial organs of The European Commission post-Amsterdam number- 217 EC[N]). The president is the European Union, the issue The practice has always been ing only. Where the article currently primus inter pares, but of flexibilty and closer co-oper- that the European Commission referred to is contained in the Nice reforms go further and ation, and article 7 TEU, which comprised at least one commis- the Treaty of Nice, the suf- give legal status to several prac- allows sanctions to be imposed sioner per member state. The fix [N] is applied. tices which have recently on member states guilty of a current composition of the evolved in the Commission and persistent and serious breach of Commission is such that each which formalise the hierarchy fundamental rights. Some limit- member state ‘has’ one com- ber of commissioners by una- between the president and the ed reforms were also undertak- missioner and each of the larger nimity, and establish a rotation other members of the en in relation to the TEU pro- member states (France, system, based on ‘the principle Commission. The most note- visions on common foreign and Germany, Italy, Spain, UK) of equality’. Each composition worthy of these is the power to security policy. ‘has’ an additional second com- is to reflect ‘the demographic require the resignation of indi- missioner. Although commis- and geographical range of all vidual commissioners, albeit IGC 2000: the process sioners are legally independent, the member states of the with the approval of other The process which led to the and in no sense are to represent Union’. members of the Commission, a Treaty of Nice has been described national interests, national The procedure for appoint- codification of the so-called lex as the most fractious IGC to interest clearly permeates the ing the Commission has also Prodi, the informal agreements date. Despite being the longest Commission. On one view, such been revised. The procedure between the current incumbent IGC, many issues remained to national representation is nec- was already amended by and members of the be resolved at the final summit essary in order to ensure that Maastricht and Amsterdam, Commission. In addition, Nice in Nice. This has been variously the Commission can adequately gradually increasing the role of speaks of the president devolv- Briefing ing duties on individual com- votes was the single most must also comprise ‘at least a almost precluded the conclusion missioners, which gives legal intractable issue in the Nice majority of the members of the of the negotiations at Nice. The recognition to the distinct insti- negotiations, as heads of gov- Council’. In addition, there is a political concessions to Belgium tution that is the Commission ernment were required to con- demographic break in that ‘any included the holding of presidency. cede on issues concerning the member of the Council may European Council summit relative power of their states. request verification that the meetings in Brussels, after the Re-weighting of votes Underlying the apparently tech- qualified majority comprises at accession of the 18th member The arcane detail of the weight- nical issue of choosing a model least 62% of the total popula- state. Spain, which sought pari- ing of votes in the Council was for determining the weight of tion of the Union’. This clause ty with the other four large not the most accessible aspect of member state votes was the was seen as a concession to member states, was rewarded the Nice agenda.1 In addition, on threat to the historic equality of Germany, which is the most with a significant increase in its one view it is of little practical votes between France and populous state. relative voting strength. significance. According to a sur- Germany and Belgium and the In addition, a declaration on Seats in the European vey of Council decisions in the Netherlands respectively. In enlargement appended to the Parliament were allocated as mid-1990s, neither re-weight- addition to resolving these diffi- treaty indicates the number of concessions in the negotiations. ing nor a double-majority culties between current member votes which each of the current Thus, the ceiling of 700, estab- requirement would have altered states, the negotiators also had candidate states is to have, in a lished as recently as the Treaty of the outcome of any Council to address the future weight of Union of 27 member states. Amsterdam, was shattered. With decision during that period. acceding member states. This provides as follows: Poland 27 member states, there will now However, the issue is of consti- The results in this area are – 27; Romania – 14; Czech be 732 MEPs. Seats in the parlia- tutional significance. Despite particularly complex, arcane Republic and Hungary – 12; ment are reallocated as follows: successive treaties’ empower- and, in some respects, contra- Bulgaria – 10; Slovakia and Germany – 99; UK, France and ment of the European dictory. What follows is of Lithuania – 7; Latvia, Slovenia, Italy – 72; Spain – 50; Nether- Parliament, the Council repre- necessity a simplified overview. Estonia and Cyprus – 4; and lands – 25; Greece, Belgium and sents the powerhouse of the The re-weighting of votes is to Malta – 3.2 Portugal – 22; Sweden – 18; Union and Community. begin on 1 January 2005. At that Several criticisms have been Austria – 17; Denmark and Although many decisions are time, the weighting will be as levelled against these changes, Finland – 13; Ireland – 12; and taken on the basis of consensus, follows: Germany, UK, France not least of which is the fact that Luxembourg – 6. that consensus is shaped by the and Italy – 29; Spain – 27; they appear to make the adop- The number of seats for the knowledge of the possibility of Netherlands – 13; Greece, tion of Community measures accession states will be as fol- the weighted vote, which deter- Belgium and Portugal – 12; more difficult. lows: Poland – 50; Romania – mines the relative power of the Sweden and Austria – 10; 33; Czech Republic and member state governments. Denmark, Finland and Ireland – The bargains Hungary – 20; Bulgaria – 17; The need to recalibrate these 7; and Luxembourg – 4. The historic parity between Slovakia – 13; Lithuania – 12; relative weights was based on The threshold for a qualified Germany and the other three Latvia – 8; Slovenia – 7; Estonia two features of the current sys- majority on a Commission pro- large member states was and Cyprus – 6; and Malta – 5. tem. First, with each successive posal will be 169 votes out of the retained, with the concession of The allocation of MEPs on enlargement, the blocking total 237, with a blocking the requirement of a 62% pop- this unprincipled basis means minority became a smaller pro- minority requiring 69 votes. In ulation requirement. In addi- that representation in the par- portion of the EU’s population. essence, while the relative tion, Germany’s number of liament is not even approxi- Second, a feature of particular power of more populous states MEPs was increased to 99. The mately proportionate to popula- concern to larger member states is increased, the system of final political concession to tion. For example, the Czech was the relative over-represen- digressive proportionality is Germany was a further IGC in Republic will have fewer seats tation of small member states, retained. However, Nice intro- 2004 to deal with issues of con- than Portugal and Belgium, which would be aggravated in duces two additional require- stitutional significance. Belgian despite being more populous. In an enlarged EU. ments. First, there is a require- lost its historic parity with the its initial appraisal of Nice, the Renegotiating the weights of ment that any qualified majority Netherlands, the issue which European Parliament bemoans Doyle Court Reporters EXCELLENCE IN REPORTING SINCE 1954 • Daily transcripts • Conferences • Real-time • Arbitrations • Search & Retrieval Software • Inquiries USA REGISTERED COURT REPORTING QUALIFICATIONS Principal: Áine O’Farrell 2 Arran Quay, Dublin 7. Tel: 872 2833 or 286 2097 (After Hours). Fax: 872 4486. E-mail: [email protected] Website: www.doylecourtreporters.com

52 Briefing the fact that there is ‘no demo- challenge the legality of apparent for some time, but ity required for appointment to graphic logic whatsoever in the Community acts under article previous IGCs failed to address judicial office’. list of MEPs for a 15-member 230 EC. the issue. In contrast, IGC The Court of First EU and even less so in the fig- Despite the extension of 2000 established a parallel Instance. Several provisions of ures for a 27-member EU’.3 QMV to over 30 new areas, sev- process wherein government the Treaty of Nice reflect the The new arrangements are sup- eral key areas remain subject to legal advisors undertook the enhanced role of the Court of posed to come into force in time unanimity in the Council. revision of the treaty provi- First Instance. The member- for the next elections in June Article 93 EC on indirect taxa- sions and other rules governing ship criterion now refers to the 2004. New member states will tion remains subject to unanim- the Community courts. The ‘ability required for appoint- have had to sign their accession ity, as do most aspects of social two most significant reforms in ment to high judicial office’ treaties by 1 January that year in policy. It was proposed that this area are the creation of (emphasis added). Nice makes order to participate in the elec- article 13 EC, which deals with new judicial boards of appeal the CFI the court of first tions. combating discrimination on and the greater empowerment instance for many issues, various grounds, should be sub- of the Court of First Instance. including all actions for annul- The Council: extension of ject to QMV. However, the A general result of that ment, actions for failure to act qualified majority voting and damages, except those It had long been acknowledged brought by the Community that in a Union of over 15 mem- institutions, the European bers, requiring unanimity in the ‘The allocation of MEPs on this Central Bank and the member Council effectively precluded unprincipled basis means that states.6 the adoption of all but the Most notably, Nice envisages least contentious measures. representation in the parliament is that the CFI may be granted Accordingly, one of the first not even approximately proportionate preliminary ruling jurisdiction, items on the agenda was a albeit in limited fields. The review of existing treaty provi- to population’ Council is to decide in which sions in order to apply QMV in areas this will apply, on the basis more areas. The results were of unanimity. There was origi- significant, if modest. In rela- nally much opposition to this tion to 22 legal bases, QMV will adoption of measures remains process is that in future the change. First, it was viewed as a apply for the first time. These subject to unanimity, with the courts’ rules of procedure are burden-shifting rather than include judicial co-operation in exception of incentive measures to be adopted by qualified burden-relieving measure. civil matters (with the exception to support action taken by the majority vote (article 223 Second, it was argued that it of family law – article 65 member states. Most areas of EC[N]). Regrettably, there was would be difficult to reconcile EC[N]) and trade in services justice and home affairs remain no alternation in the method of with the one-stop nature of the and commercial aspects of intel- subject to unanimity, with the appointment or the short term preliminary ruling. Nice adopts lectual property (article 133(5) exceptions noted above. Overall, of office for the judges and a rather awkward review mech- EC[N]). the increased complexity of the advocate generals of the ECJ anism, whereby the CFI may In a number of areas, the legal bases has certainly not lent and CFI, which remains six refer the matter to the ECJ if it move to QMV is conditional. itself to the elegance or accessi- years. considers that ‘the case requires For example, in the area of the bility of the treaty provisions. Judicial panels. Article a decision of principle likely to establishment of a common asy- 220(2) EC[N] provides that the affect the unity or consistency lum policy, it was foreseen that Court of Justice and Court panels are to exercise ‘in specif- of Community law’. In addition QMV will not apply until effec- of First Instance ic limited areas, the judicial to this preview mechanism, tive border controls have been The issue of the reform of the competence laid down in this there is provision for exception- put in place, which itself court was subject to much com- treaty’. Their establishment is al review by the ECJ, where requires unanimity in the ment, both official and academ- for the Council, acting by una- ‘there is a serious risk of the Council (article 62 EC[N]). An ic. The members of the nimity. The role of judicial unity or consistency of interesting feature is that in sev- European Court of Justice panels is ‘to hear, at first Community law being affected’. eral of these areas, the (ECJ) and Court of First instance, certain classes of The conditions for such review European Parliament is only Instance (CFI) themselves drew action of proceeding brought are to be set out in the courts’ marginally involved. After attention to the serious over- in specific cases’. It is likely that statute. The draft statute pro- Maastricht and Amsterdam, a burdening of the Community the first two such panels will be vides that the first advocate certain symmetry was emerging courts, which leads to delays established to deal with staff general is to assess whether in that, generally speaking, which threaten the functioning cases, and to formalise the there is a ‘serious risk of the where the Council acted by of the Community legal system. Board of Appeal of the unity or consistency of QMV, the European Parliament The ECJ and CFI’s May 1999 Community Trade Mark Community law being affected’. was involved as co-legislator via paper, The future of the judicial Office, currently in Alicante, Within one month of receiving the co-decision procedure. This system of the European Union: Spain. The panels are to be the proposal made by the first is no longer the case. However, proposals and reflections4 and the attached to the CFI, and their advocate-general, the Court of parliament can take some con- Due report5 contained an array members must be ‘persons Justice shall decide whether or solation in the fact that it has of reform proposals. The prob- whose independence is beyond not the decision should be been granted full locus standi to lem of overburdening has been doubt and who possess the abil- reviewed. Briefing

It appears that only the or adapt to that integration at a In relation to common for- ‘will have completed the institu- Council, Commission and different pace. This practice is eign and security policy, tional changes necessary for the member states may lodge an evident today in various treaty enhanced co-operation can be accession of new member application for review by the provisions, most notably those used to implement a joint action states’. Not satisfied with having Court of Justice. The CCBE on European monetary union or common position, for exam- ‘opened the way for enlarge- has argued that parties to the and the protocols of the various ple, in the field of arms procure- ment’, however, the heads of national court proceedings member states, such as that of ment. However, there is also a government call ‘for a deeper should also be able to lodge Ireland and the UK opting out somewhat contradictory stipula- and wider debate about the such proceedings.7 In addition, of the provisions of Title IV EC tion that enhanced co-operation future development of the a declaration has been included in this area ‘shall not relate to European Union’. to the effect that the review matters having military or It is envisaged that the mechanism should only be used defence implications’ (Title V, Laeken European Council next in exceptional circumstances, ‘The crisis article J TEU [N]). December will adopt a declara- using an accelerated procedure. provoked by the tion on how to pursue this Several outstanding issues are Article 7 TEU process. The four issues explic- set out in a declaration to the inclusion of a far- Article 7 TEU provides that itly set out in the declaration treaty, namely the role of the right party in the where there is deemed to be a include the questions of: 1) how parties in the proceedings, the ‘serious and persistent breach’ to ‘establish and monitor a more effect of the review procedure Austrian of the principles of liberty, precise delimitation of compe- on the enforceability of the government gave democracy, respect for human tencies between the European decision of the CFI and the rights and fundamental free- Union and the member states, effect of the ECJ decision on impetus to the doms and the rules of law, cer- reflecting the principle of sub- the dispute between the parties. reform of article tain treaty rights of the offend- sidiarity’; 2) the status of the Further difficulty relates to the ing member state may be sus- Charter of fundamental rights; 3) criteria of unity and consistency. 7 TEU’ pended. Currently, the finding ‘a simplification of the treaties These are not familiar terms, of serious and persistent breach with a view to making them and the determination of this requires unanimity in the clearer and better understood issue could well pose problems. Council and the assent of the without changing their mean- The European Court of on visas, asylum and immigra- European Parliament. The crisis ing’; and 4) ‘the role of national Justice. Nice purports to cop- tion. The Treaty of Amsterdam provoked by the inclusion of a parliaments in the European per-fasten the current practice, included a general provision on far-right party in the Austrian architecture’. whereby each member state closer co-operation, which government gave impetus to the It has been suggested that nominates one member to the aimed to allow groups of mem- reform of article 7 TEU. The Nice’s place in the history of the European Court of Justice.8 ber states to undertake further main reform is the inclusion of a European Union will turn on Arguably in response to the policy integration without the preliminary stage, during which the effectiveness of the post- increased size of the court, Nice need to wait for the required a group of experts may be con- Nice process. G creates a new formation, the consensus among the other EU vened to investigate. In addition, Grand Chamber, which is to member states. However, these a finding of breach is now to be Cathryn Costello is lecturer in comprise the president of the provisions were subject to such based on a decision of a four- European law at Trinity College, ECJ, together with the presi- restrictions as to render them fifths majority of the member Dublin, and director of the Irish dents of the chambers of the five virtually inoperable. states, rather than unanimity. Centre for European Law. judges, and other judges to be appointed in accordance with Nice changes The post-Nice agenda Footnotes conditions laid down in the Nice introduces a number of The Treaty of Nice will ultimate- 1 For a detailed analysis of the court’s rules of procedure.9 A changes in relation to these pro- ly be judged on its ability to reform proposals, see Brigid further compositional change is visions, aiming to clarify their accommodate enlargement. In Laffan, ‘The Council’ in IGC that the role of the advocate scope and render them usable. that respect, certain shortcom- 2000: issues, options, implica- general may be dispensed with. There is now an overarching ings are evident. Decision-mak- tions, IEA November 2000. Article 223 EC[N] provides that requirement that closer co- ing has been made more com- 2 The enlargement scenario the advocate general shall pro- operation must reinforce the plex, and more cumbersome. envisages only the 12 states vide an opinion ‘on cases which, integration process. At least In addition, there are several with which accession negoti- in accordance with the statute of eight member states must take representational anomalies. ations are in train. No calcu- the Court of Justice, require his part, but all must be encouraged However, the treaty does con- lations were made for the involvement’. to do so. The provisions are still tain a political commitment to inclusion of Turkey, which is to be employed only as a matter future deeper reform. The already a candidate country, Enhanced co-operation of last resort, and only after a Declaration on the future of the or of Iceland, Norway or Since the inception of the EEC, reasonable period of trying to European Union provides that a Switzerland, which may the treaties have entailed aspects reach agreement between all further IGC will be convened in become candidates. of differentiated integration, member states. Under the EC 2004 in order to deal with fur- 3 European Parliament, Draft that is, instances where certain treaty, the requirement that all ther deeper reform. It states analysis of the Treaty of Nice, member states opt out of certain member states be in agreement that ‘important reforms have Directorate-General for aspects of European integration is abolished. been decided in Nice’ which Committees and Delega-

54 Briefing

tions, Brussels, 10 January enten der richterlichen Group comprised Ole Due, 8 Article 221 EC[N] provides: 2001, 15. Gewalt der Europaischen Yves Galmont, Jose Luis da ‘The Court of Justice shall 4 Court of Justice of the Union’ (2000) Neue Juristische Cruz Vilaca, Ulrich Everling, consist of one judge from European Communities, The Wochenschrift, 1889-1896; Aurelio Pappalardo, Rosario each member state. The future of the judicial system of Rodriguez Iglesias, ‘Het Hof Silva de Lapurta, Lord Slynn Court of Justice shall sit in the European Union: proposals van Justitie en de institutionele of Hadley. For an analysis of chambers in a Grand and reflections, (May 1999), hervorming van de Europese the reform proposals, see Chamber, in accordance with http://europa.eu.int/cj/pres/ave Unie’ 18 April 2000, Costello, Cathryn, ‘The pre- the rules laid down for that ng.pdf. The court also made a www.nrc.nl/Doc/hof.html; liminary reference procedure purpose in the statute of the Contribution to the intergov- Cooke, John, Judge of the and the 2000 intergovern- Court of Justice. When pro- ernmental conference, and sev- European Court of First mental conference’ (1999) 21 vided in the statute, the court eral members of the court Instance, ‘European judicial DULJ 40-65. may also sit in plenary ses- wrote scholarly pieces on the architecture: back to the 6 Draft statute, article 51. It was sion’. reform issues: Hirsch, ‘Dez- drawing board’ (1999) Bar proposed to remove this 9 Draft statute, article 16. For a entralisierung des Gerichts- review, vol 5:1, pp14-19. exclusion from the CFI’s discussion of these provisions, systems der Europaischen 5 Report by the Working Party jurisdiction, and it may be see Fennelly, Reform of the Union’ Zeitschrift fur on the Future of the reviewed in the future. Community courts, paper pre- Rechtspolitik 2000, 57-60; European Communities’ 7 CCBE, Submission of the sented at the Irish Centre for Rodriguez Iglesias, ‘Der Court System, January 2000, CCBE for the intergovernmen- European Law/Dialogue on EuGH and die Gerichte der http://europa.eu.int/en/comm/sj tal conference 2000 (November European Event on the Treaty Mitgliedstaaten – Kompon- /rapdue.pdf. The Reflection 2000). of Nice, 3 February 2001. Recent developments in European law EMPLOYMENT ters which must be brought to the work on short-term contract which and improvement of the working employee’s notice in writing. are often less then 13 weeks. environment. It provides for mini- Overtime Such information can take the Thus, they did not become enti- mum requirements. Member Case C-350/99 Wolfgang Lange v form of a reference to the rele- tled to annual leave under UK law. states can only go beyond these Georg Schünemann GmbH, 8 vant laws, regulations and admin- BECTU brought a legal action standards in a way that is February 2001. Lange was istrative or statutory provisions or seeking to have the UK legislation favourable to workers. The mini- employed as a lathe operator by collective agreements. The ECJ annulled. The English High Court mum standards cannot be subor- the respondent. His contract of held that the directive does not made a reference to the ECJ ask- dinated to purely economic cir- employment gave no details con- require an essential element of ing whether the Working time cumstances. The directive does cerning overtime. He refused to the employment contract that has directive allowed a member state provide that the right to leave is in work overtime and as a result his not been brought to the attention to prescribe that a worker’s enti- accordance with the conditions employer terminated his contract. of the employee to be regarded tlement to paid annual leave does for entitlement to and the granting The German Labour Court asked as inapplicable. not begin to accrue until the of such leave under national leg- the ECJ for clarification on the worker has completed a qualifying islation. However, this only application of EU law in relation Working time directive period. The advocate general said relates to the organisational and to the obligation of employers to Case C-173/99 Broadcasting, that the right to paid annual leave procedural aspects. It cannot pre- inform employees of the condi- Entertainment, Cinematographic is a fundamental social right. He clude the existence of the right tions applicable to the employ- and Theatre Union (BECTU) v sec- pointed out that this is stated in itself. The national legislation ment relationship. The ECJ retary of state for trade and indus- various international instruments here is prejudicial to workers who looked at Directive 91/533/EEC try, Opinion of Advocate General and is enshrined in the Charter of have contracts of less than 13 on an employer’s obligation to Tizzano, 8 February 2001. BECTU fundamental rights of the EU. He weeks. As they do not have any inform employees of the condi- is a union representing workers in emphasised that the purpose of leave entitlement, they will not be tions applicable to the employ- the broadcasting, film and related the charter, where its provisions able to claim payment of the ment relationship. It held that sectors. It has approximately allow, is a substantive point of ref- allowance which must be paid in this directive laid down a general 30,000 members. Legislation in erence for all those involved in lieu of leave to a worker who is obligation on the employer to the UK implementing the Working the EU context. He said that the entitled to leave in the event of inform employees of all the time directive provides that enti- right to annual leave corresponds premature termination of the essential elements of the con- tlement to leave is conditional to a general social interest for the employment relationship. A work- tract. The list of such elements in upon the person concerned hav- health and safety of workers. er who ended the working rela- the directive is not exhaustive. ing been continuously employed Therefore, this is an automatic tionship before the period of 13 Thus, a term of an employment for 13 weeks by the same employ- and unconditional right, which weeks would get neither the peri- contract under which an employ- er. It may not be replaced by a does not fall within the derogation od of leave nor the allowance in ee is required to work overtime payment in lieu except where the allowed for in the directive in lieu. Thus, the advocate general whenever requested to do so by employment is terminated. The other circumstances. The aim of considered the UK law to be his employer is one of the mat- workers represented by BECTU the directive is the harmonisation unlawful. G PUT A SMILE

ON THE FACE OF THE TIGER

New Tax Law helps you do it better

The Celtic Tiger still has a harsh Companies or individuals on face for too many people: the self-assessment can also make a 500,000 adults still dependent on donation – and treat it as Social Welfare; families and a tax deductible expense. individuals struggling on very low Call us now to make a credit card pay; the homeless; the old; donation or for more information. the handicapped; the ill. Or send a cheque (with your name We’re doing all we can to help – and address so we can claim back but we need your help to do it. the tax). Now - from 6 April 2001 - any And help us put a smile on the face amount you give (from £200 up) of the Tiger. to help our vital work will be worth even more to us. Because the Taxman will give us back the tax you pay at your marginal rate. So £200 from you is worth £345 to us – or £250 at the standard rate – if you’re in PAYE.

Society of Saint Vincent De Paul, 8 New Cabra Road, Dublin 7 Tel: 01 8384164 Fax: 01 8387355 www.svp.ie. Charity No. CHY 6892 People and places

Medical indemnity conference

Pictured at a recent conference on medical indemnity for the 21st century were (left to right) Andrew O’Rorke, managing partner of Stressed out? Hayes & Sons, Solicitors, which hosted the event; Denis Cusack of Professor Anthony Clare (third from right) exerts a calming influence on UCD’s Department of Forensic Medicine; Mary Irvine SC; Minister for (from left to right) Deirdre Crowley, Law Society Deputy Director General Health and Children Michael Martin; US attorney John Hoff; and Mary Keane, Director of Education TP Kennedy, Law School Finbarr Fitzpatrick of the Irish Hospital Consultants’ Association. The Adminstration Manager Deirdre Healy and Deputy Director of Education event, which was attended by nearly 600 delegates, explored the Geoffrey Shannon after his Blackhall Place lecture on stress proposals from the Department of Health and Children to change the present system of medical indemnity to one of ‘enterprise liability’, which in essence means that the defence of all claims against hospitals and health boards in Ireland would be handled, and funded by, a state agency

Southern men Pictured at the recent Southern Law Association dinner were (left to right) District Court Judge Con O’Leary, Circuit Court Judge John Clifford, Judging judicial review SLA President Patrick Casey and Circuit Court Judge AG Murphy At the recent CLE seminar on judicial review were (left to right) Gerard Hogan SC, CLE’s Barbara Joyce, solicitor James MacGuill and Mr Justice Geoghegan

Up, up and olé Tánaiste and Minister for Enterprise, Trade and Employment, Mary Arthur Cox invades Britain Harney, joins Osborne Recruitment Director Brendan Murphy and Gathered for the announcement that Arthur Cox has established a Managing Director Lesley Osborne (and a couple of dodgy-looking London office to advise on matters involving UK and Irish business are tango dancers) to mark the opening of the recruiting firm’s new office (from left to right) Chairman James O’Dwyer, Ronan Walsh, who will in Madrid head the London office, and Managing Partner Eugene McCague

57 LAW AGENCY SERVICES ENGLAND & WALES

logo here SOLICITORS Established 1825

SPANISH LAWYERS

• Fearon & Co specialise in acting for Irish residents in the fields of probate, property and litigation RAFAEL BERDAGUER ABOGADOS • Each solicitor is available by direct line, fax or e-mail. Conferences can be easily arranged PROFILE: FIELD OF PRACTICES: • Fearon & Co is committed to the use of information panish Lawyers Firm focussed eneral Practice, Administra- technology to help improve both the quality and Son serving the need of the for- Gtive Law, Civil and Commercial speed of service for the benefits of all clients both at eign investors, whether in compa- Law, Company Law, Banking and home and abroad ny or property transactions and all Foreign Investments in Spain, • The firm’s offices are within half an hour of London attendant legalities such as ques- Arbitration, Taxation, Family Law, Waterloo station and within a short travel from both tions of immigration-naturalisa- International Law, Immigration Gatwick and Heathrow airports, with easy access from tion, inheritance, taxation, and Naturalisation, Litigation in all the London orbital M25 motorway accounting and bookkeeping, Courts. • No win, no fee arrangements and Legal Aid are planning, land use and litigation in available in appropriate cases all Courts.

PHONE NOW FOR A BROCHURE Westminster House Avda. Ricardo Soriano, 29, 12 The Broadway, Woking, Surrey GU21 5AU England Edificio Azahara Oficinas, 4 Planta, 29600 Marbella, Malaga, Spain Fax: +44 (0)1483 725807 Email: [email protected] www.fearonlaw.demon.co.uk Tel: 00-34-952823085 Fax: 00-34-952824246 LITIGATION PROPERTY PROBATE Sarah Butler John Phillips Francesca Nash e-mail: [email protected] Tel: +44 (0)1483 776539 Tel: +44 (0)1483 747250 Tel: +44 (0)1483 765634

WHERE THERE’S A WILL Irish THIS IS THE WAY… Stenographers

When a client makes a will in favour of the Society, it would Ltd be appreciated if the bequest were stated in the following words: “I give, devise and bequeath the sum of X pounds to the Irish Director: Sheila Kavanagh Cancer Society Limited to be applied by it for any of its Experts in charitable objects, as it, at its absolute discretion, may decide.” Overnight Transcripts All monies received by the Society are expended within the Republic of Ireland. Specialists in Court Reporting “Conquer Cancer Campaign” is a Registered Business Name Medical Cases / Arbitrations and is used by the Society for some fund-raising purposes. The “Cancer Research Conferences / Board Meetings Advancement Board” Contact: allocates all Research Hillcrest House, Grants on behalf of the Dargle Valley, Bray, Co. Wicklow. Society. Telephone/Fax: (01) 286 2184 or 4b Arran Square, Dublin 7 5 Northumberland Road, Dublin 4. Tel: (01) 668 1855 15 Bridge Street, Cork. Tel: (021) 4509 918 Telephone: (01) 873 2378 Apprentices’ page SADSI

Solicitors Apprentices Debating Society of Ireland Regional events kick off in style

ork turned into an from nearby places will make generally. This kind of please contact someone from Capprentices’ haven on 20 similar efforts in pursuit of dialogue helps us to focus on the committee. We might just February, with ultra-cheap the honourable ideals of what will work best for the be able to help! drink, good chats and great alcohol and craic! coming year. Last month’s Gazette lists music. Thanks to our sponsor, It was an occasion with a Suggestions and queries who we are and where to find Ulster Bank, SADSI serious side, too. It was a are welcome at all times to us. Alternatively, you can e- organised the first of the chance for apprentices to talk help SADSI work as best as it mail us at SADSI2001@ regional events at the Quad in to some committee members can for you. So if you have yahoo.com. Cork. If this evening was about issues arising in their any ideas on what we should Hope to see you again at anything to go by, the coming own offices and in the course do, or if any aspect of your the next event. year is set to be a good one of their apprenticeships apprenticeship concerns you, Clare O’Shea-O’Neill for the south. There was a great turn out. Many of the usual faces were there, together with a few 2000-2001 brave souls who are new on the scene. It was a great law ball chance to let your hair down and put names to the faces he PPC 2000-2001 ball that you might recognise Ttook place at the from the courts. Even though Davenport Hotel in Dublin. the event was held in Cork, it An eventful evening was was open to all apprentices. A provided. It included an few Dublin faces were awards ceremony with scattered among the crowd. It categories ranging from was really great to see the ‘The Barbie and Ken Award’ enthusiasm that some of us to ‘The King and Queen of had for the event. Brian the Ball’, along with a O’Regan came in from Kerry specially-commissioned for the night and we hope Real Corkers? ‘Eminem’ rap in honour of that wherever the regional Leone Cahill and Emmett McCann put their heads together at the SADSI our director of education. events are held, apprentices regional event which took place in Cork in February The social reps would like to thank everyone who attended and also our Equestrian intervarsities 2001 sponsors, Balloon Events, Chief O’Neill’s, Ellis and he Apprentices’ Equestrian Ellis Law Searchers, TClub colours appeared for Leonidas, Murphys and the first time at an inter- Ulster Bank. university sporting event at the annual equestrian intervarsities in Galway in February. SOLICITORS’ The newly-established HELPLINE Apprentices’ Equestrian Club The Solicitors’ Helpline is fielded three teams in all. available to assist every Teams of three riders member of the profession participated in the show- with any problem, whether jumping, dressage, and prix personal or professional. The service is completely caprilli competitions. The Horsing around confidential and totally club, as newcomers to this The Apprentices’ Equestrian Club committee shares a laugh with independent of the Law event, received great representatives of the Irish Universities’ Riding Club Association. Pictured (left to right) are Shane Kingston, chair of IURCA; Equestrian Club chair Society. If you require encouragement, and the Mona Costelloe; Gary Hassett, president of IURCA; Kelly Breen, Equestrian advice for any reason, weekend was a resounding phone: 01 284 8484

Club secretary; Darragh Feeney, SADSI Galway rep; Conor Delaney, 01 284 8484 success. Equestrian Club Treasurer; and Alma Kelly, the Equestrian Club’s PRO

59 Professional information

Gooig and Barony of Clanwilliam; Co Archerstown; Area: 58.869 acres; Co

LawSociety Limerick Westmeath Regd owner: Patrick Evers, c/o TW Regd owner: Michael Harte, Arden Gazette Delany & Company, Solicitors; Folio: Heights, Tullamore, Co Offaly; Folio: 1649; Lands: Treel; Area: 6.3312 (1) 4424F, (2) 4425F; Lands: acres; Co Longford Ballycahan; Co Westmeath ADVERTISING RATES Regd owner: Ina Heneghan and Patrick Regd owner: Liam Meehan; Folio: Advertising rates in the Professional information section are as follows: Heneghan; Folio: 15371F; Lands: 19847F; Lands: Ballymacar and Townland of Elly and Barony of Erris; Barony of Bantry; Co Wexford • Lost land certificates – £30 plus 20% VAT (£36.00) Area: 0.5670 hectares; Co Mayo Regd owner: Fintan Carroll and Susan • Wills – £50 plus 20% VAT (£60.00) Regd owner: Katherine V and Marjorie Doyle; Folio: 16527F; Lands: Lost title deeds – £50 plus 20% VAT (£60.00) LR Moore; Folio: (1) 26097, (2) Poulmari and Barony of Taghmon; Co • 12962F; Lands: Roberstown; Area: Wexford • Employment miscellaneous – £30 plus 20% VAT (£36.00) 0.53125 acres; Co Meath Regd owner: Timothy Bolger; Folio: Regd owner: Laurence Wilson, 1363F; Lands: Clohamon (ED HIGHLIGHT YOUR ADVERTISEMENT BY PUTTING A BOX AROUND IT – £25 EXTRA Carrickspringan, Moynalty, Kells; Newtownbarry) and Barony of All advertisements must be paid for prior to publication. Deadline for May Folio: 10878; Lands: Carrickspringan; Scarawalsh; Co Wexford Gazette: 20 April 2001. For further information, contact Catherine Kearney Area: 0.48125; Co Meath Regd owner: Margaret Vanex; Folio: Regd owner: John McArdle, Bath Lodge, 11295; Lands: property nos 1 and 2 – or Louise Rose on 01 672 4828 (fax 01 672 4877) Corrinshigagh, Broomfield; Folio: townland of Ballinderry Lower in the 331; Lands: Corrinshigagh; Area: Barony of Ballinacor North; property 11.125; Co Monaghan nos 3 and 4 – townland of LOST LAND Donegal owner of property nos 2 and Regd owner: Patrick McEneaney, Ballydowling in the Barony of CERTIFICATES 3; Folio: 36153F; Lands: Tullydush Shankill, Shercock, Co Cavan; Folio: Ballinacor North; Co Wicklow Lower and Meenkeeragh; Area: (1) 7225; Lands: Shankill; Area: 13.843 Regd owner: Margaret Vanex; Folio: Registration of Title Act, 1964 76.397 acres, (2) Meenkeeragh 35.560 acres; Co Monaghan 3546; Lands: Townland of Ballinderry An application has been received from acres; Co Donegal Regd owner: Kevin Conlon, Dooraa, (part) in the Barony of Ballinacor the registered owners mentioned in the Regd owner: Martin Gallagher, Laragh, Castleblayney; Folio: (1) North; Co Wicklow schedule hereto for the issue of a land Meenderryowan, Annagry; Folio: 17530, (2) 17620; Lands: Dooraa; Regd owner: Margaret Vanex; Folio: certificate as stated to have been lost or 15814F; Lands: Meenderryowan; Area: 27.775 acres; Co Monaghan 5055; Lands: Townland of inadvertently destroyed. A new certifi- Area: 0.888 acres; Co Donegal Regd owner: Peter Nolan; Folio: 8070; Ballydowling in the Barony of cate will be issued unless notification is Regd owner: Michael Linnane, Lands: Raheen and Barony of Ballinacor North; Co Wicklow received in the registry within 28 days Crannagh, Gort, Galway; Folio: Kilcoursey; Co Offaly Regd owner: John Merrigan; Folio: 6413; from the date of publication of this 8113F; Lands: Townland of (1) Regd owner: Michael Shine, Lands: Townland of Laragh East in notice that the original certificate is in Crannagh, (2) Polldonoghoe, (3) Crannaghmore, Summerhill, Athlone, the Barony of Ballinacor North; Co existence and in the custody of some per- Crannagh and Barony of Kiltartan; Co Roscommon; Folio: 8551F; Lands: Wicklow son other than the registered owner. Any Area: (1) 9.3450 hectares, (2) 4.2490 To wnland of Crannaghmore and Regd owner: Robert Casey and Jackie such notification should state the hectares, (3) 0.1460 hectares; Co Barony of Athlone South; Area: Dixon; Folio: 14821F; Lands: grounds on which the certificate is being Galway 0.6010 hectares and 0.6070 hectares; Townland of Mount Kennedy held. Regd owner: James Desmond Hurley; Co Roscommon Demesne, situate in the Barony of (Register of Titles), Central Office, Land Folio: (1) 18119F, (2) 18171F; Lands: Regd owner: Teresa Veronica Forde, Newcastle; Co Wicklow Registry, Chancery Street, Dublin Townland of Balloonagh and Barony Church Street, Strokestown, Regd owner: John Byrne; Folio: 138L; (Published 6 April 2001) of the Urban District of Tralee; Co Roscommon; Folio: 11204; Lands: Lands: situate on the north side of Kerry To wnland of Lisroyne and Barony of Harbour Road in the town of Arklow; Regd owner: Michael Kelly; Folio: Regd owner: Thomas Crean and William Roscommon; Area: 3.7812 hectares; Co Wicklow 5026F; Lands: Heath and Barony of Crean; Folio: 30551; Lands: Townland Co Roscommon Idrone East; Co Carlow of Ballynasare and Barony of Regd owner: John Kelly, Ballaghderreen, Regd owner: James Dillon; Folio: Tr ughanacmy; Co Kerry Roscommon; Folio: 9673; Lands: WILLS 10385F; Lands: Currane, St Mullin’s Regd owner: John Keane; Folio: 22564; Townland of Ballaghderreen and Lower; Co Carlow Lands: Kiltomy and Barony of Barony of Costello; Area: 0.0252 Coady, Michael, late of Kiloughter, Regd owner: Bernadette Swords; Folio: Clanmaurice; Co Kerry hectares; Co Roscommon Castlegar in the County of Galway. 17286F; Lands: Situate on the east side Regd owner: Elizabeth Murphy; Folio: Regd owner: Noel and Philomena Would any person having knowledge of of Link Road and Barony of Parish and 12150; Lands: townland of (1) Bugler; Folio: 5420F; Lands: the whereabouts of the original will Urban District of Carlow; Co Carlow Redbog, (2) Wolfestown, (3) Redbog Inchadrinagh, Ballina, Co Tipperary dated 26 November 1996 of the above Regd owner: Thomas McGovern, The and Barony of Naas North; Co and Barony of Owny and Arragh; Co named deceased who died on 16 Bawn, Killeshandra, Cavan; Folio: Kildare Tipperary February 2000, please contact Blake & 492F; Lands: Yewer Glebe; Area: Regd owner: Liam Dowd, John Ferrick, Regd owner: John Tormey, Drumcree, Kenny, Solicitors, 2 St Francis Street, 0.5125 acres; Co Cavan James Creighton, Brendan Mullins, Mullingar; Folio: 9368; Lands: Galway Regd owner: Ken Downey and Rachel Laurence Keenaghan and Michael Spillane; Folio: 6231F; Lands: Known Divilly; Folio: 16217F; Lands: as a plot of ground situate in the town- To wnland of Newtown (Ed Leixlip) lands of Commons, situate to the west and Barony of North Salt; Co Kildare side of road leading from Mallow to Regd owner: Kathleen Dunne; Folio: Cork in the Parish of St Anne’s 11223; Lands: Townland of Shandon, and the County of Cork; Co Ballysaxplain and Barony of Offaly TITLE RESEARCH Cork East; Co Kildare OUR PARTNER IN TRACING Regd owner: Michael O’Leary; Folio: Regd owner: Thomas Kent; Folio: Y 10885; Lands: Known as a plot of 17896; Lands: Smartscastle West and MISSING BENEFICIARIES ground situate in the townland of Barony of Knocktopher; Co Kilkenny PROBATE & Teerbeg, the electoral division of Regd owner: John Oliver O’Gorman; SUCCESSION • Free professional assessments Macloneigh, the Barony of Muskerry Folio: 368; Lands: Bonilla and Barony • Range of cost structures West and the County of Cork; Co of Gowran; Co Kilkenny GENEALOGY – Cork Regd owner: James Flanagan; Folio: WORLDWIDE • Excellent success rate worldwide Regd owner: Frank Gildea, Drumma 3285F; Lands: Ballinlough and Barony • A complete service to the profession Cross, Glenties, County Donegal; of Maryborough East; Co Laois For more information or our detailed brochure please call Folio: 13335; Lands: Drumma Cross; Regd owner: John Cronin (deceased); Area: 35a 3r 10p; Co Donegal Folio: 233F; Lands: Townland of +44 020 7549 0900 Regd owner: Patrick McCarron, Earne, Kilmallock and Barony of Kilmallock; Charter House, 2 Farringdon Road, London EC1M 3HN Buncrana, Co Donegal, owner of Co Limerick Fax: +44 020 7549 0949 DX: 53347 Clerkenwell property no 1 and Patrick McCarron, Regd owner: Roadstone Dublin Ltd; Email: [email protected] www.title-research.com Tullydush Lower, Buncrana, County Folio: 26208; Lands: Townland of

60 Professional information

Cooper, Victor Hubert (deceased), late Gay, Kevin (deceased), would any person Clonakilty, Co Cork. Would any person of 2 Chapel Lane, New Ross, Co having knowledge of a will made by the having knowledge of a will made by the Wexford, and formerly of Blackstick above named deceased who died on 2 above named deceased who died who Farm, Courteencurragh, Gorey, Co November 2000, please contact Good & died on 30 January 2001, please contact Wexford. Would any person having Murray Smith & Co, Nassau House, Collins Brooks & Associates, Solicitors, 7 knowledge of the whereabouts of a will 40/43 Nassau Street, Dublin 2, tel: 01 Rossa Street, Clonakilty, Co Cork, tel: The Irish Legal Recruitment Specialists made by the above named deceased who 6791201 023 33332, fax: 023 34204 www.benasso.com died on 27 September 2000, please con- tact O’Doherty Warren & Associates, Ging, Sr Patricia (deceased), late of St Sheridan, Mary, late of 8 Summerville Solicitors, Charlotte Row, Gorey, Co John of God’s Convent, Rosslare, Co Park, Rathmines, Dublin 6. Would any Benson & Associates Wexford, tel: 055 21587, fax: 055 21313 Wexford. Would any person having any person having knowledge of a will made knowledge of a will made by the above by the above named deceased who died is a niche consultancy, Craig, Mona Lillian (deceased), late of named deceased who died on 6 May 1999, on 24 September 1999, please contact specialising in the 683 Howth Road, Raheny, Dublin 5. please contact Rollestons, Solicitors, Sean E McDonnell & Co, Solicitors, 24 Would any person having knowledge of Church Street, Portlaoise in the County Upper Rathmines Road, Rathmines, recruitment of high a will made by the above named of Laois, tel: 0502 21329, fax: 0502 20737, Dublin 6, tel: 01 4961833 calibre lawyers for deceased who died on 22 March 2000, DX 47002 Portlaoise please contact Carvill Rickard & Co, Quin (Quinn), Thomas (deceased), late private practice, Solicitors, Watermill House, 1 Main Gleeson, Geraldine, late of 2 St George’s of 16 Fortmary Park, North Circular commerce and Street, Raheny, Dublin 5, tel: 01 Villas, Inchicore, Dublin 8 and 107 St Road, Limerick. Would any person hav- 8312163, fax: 01 8312452 Mary’s Road, East Wall, Dublin 3. Would ing knowledge of the whereabouts of a industry. any person having knowledge of a will will made by the above named deceased Exshaw, Eldon Young (deceased), late made by the above named deceased who who died on 3 February 2001, please of Dunamase, Ulverton Road, Dalkey, died on 21 January 2001, please contact contact Tynan Murphy Yelverton, For information on the Co Dublin. Would any person having James A Connolly & Co, Solicitors, 13 St Solicitors, 16 William Street, Limerick, services we provide as well knowledge of a will executed by the Andrew Street, Dublin 2, tel: 01 6714966 tel: 061 415888, fax: 061 415253, Ref: LT as current vacancies, please above named deceased who died on 22 visit our website or contact February 2001, please contact Vincent & Kennedy, Maurice (deceased), late of St Beatty, Solicitors, 67/68 Fitzwilliam John’s, Clifton Road, Montenotte Park, EMPLOYMENT Michael Benson (BCL) or Square, Dublin 2, tel: 01 6763721, ref: Cork. Would any person having knowl- Annaleen Sharkey (LLB) in WBS/SMcL edge of a will made by the above named strictest confidence, at: deceased who died on 29 March 1982, Solicitor required for busy practice in Foyle, Liam (deceased), would any per- please contact Jerry Desmond, Solicitor, Co Mayo. Reply to Box No 30 Carmichael House, son having knowledge of a will made by Pearse Street, Bandon, Co Cork, tel: 023 60 Lower Baggot Street, the above named deceased who died on 43072, fax: 023 43092, e-mail: Solicitor with own conveyancing clien- Dublin 2, Ireland 3 January 2001, please contact Michael A [email protected] tele required to share sole practitioner’s T +353 (0) 1 670 3997 O’Brien & Co, Solicitors, Castle Street, offices on employment/merger/associa- F +353 (0) 1 670 3998 Carrick-on-Suir, Co Tipperary, tel: 051 O’Brien, Patricia (otherwise Hannah tion basis, in Dublin 2. Reply in confi- E [email protected] 641244, fax: 051 641377 Patricia) (deceased), late of Patrick Street, dence to Box No 31

SOLICITOR

Applicants are invited for the post of solicitor in the Professional Practice (Complaints) Section.

The duties of the successful candidate will include: • The investigation and resolution of complaints • The preparation of material for consideration by the Registrar’s Committee • Where appropriate, pursuing disciplinary proceedings • Handling a wide range of queries from members of the public and profession • Acting as an Executive Committee Secretary

The appointee will be a solicitor with several years’ experience. Computer literacy is an advantage.

If you wish to apply for this position, please forward a Curriculum Vitae, to be received no later than Friday 20 April 2001, to:

Maureen Seabrook, Human Resources Manager, Law Society of Ireland, Blackhall Place, Dublin 7

61 Professional information

Newly-qualified solicitor seeks posi- MISCELLANEOUS Personal injury claims, employment, tion in Cork or surrounding area, strong Legal Council £50K+ family, criminal and property law spe- background in litigation and also experi- International telecommunications Northern Ireland solicitors providing cialists in England and Wales. Offices ence in conveyancing, employment and company are seeking a qualified an efficient and comprehensive legal in London (Wood Green, Camden family law. Please send all enquiries to solicitor with three to four years’ exp service in all contentious/non-con- Town and Stratford), Birmingham and Box No 32 in commercial/corporate law. Fluency tentious matters. Dublin-based consulta- Cardiff. ‘No win, no fee’ available for in a European language adv. tions and elsewhere. Fee apportionment. accident and employment claims, legal Solicitor with excellent PQE avail- Excellent benefits ML White, Solicitors, 43-45 Monaghan aid for family and criminal cases. able from May for locums, Dublin area. Street, Newry, County Down, tel: 080 Contact Levenes Solicitors at Ashley Further details, tel: 074 58274 Solicitor (Litigation) £30K+ 1693 68144, fax: 080 1693 60966 House, 235-239 High Road, Wood Small well-established practice Green, London N22 8HF, tel: 0044 20 Locum solicitor required for Dublin 2 in Dublin 7 are seeking an experienced Northern Ireland agents for all con- 8881 7777. Alternatively, e-mail us on office from mid-May to early October solicitor with two to three years’ PQE tentious and non-contentious matters. [email protected] or visit our website 2001. Experience in conveyancing and in litigation Consultation in Dublin if required. Fee at www.levenes.co.uk probate required. Contact Timothy R sharing envisaged. Offices in Belfast, O’Sullivan & Co, Solicitors, 37 Call Roisin now for an appt. Newry and Carrickfergus. Contact Molesworth Street, Dublin 2, tel: 01 662 Tel: 01 663 5901, fax: 01 662 8662 Norville Connolly, D&E Fisher, EYE INJURIES AND 2800 or e-mail: [email protected] [email protected] Solicitors, 8 Trevor Hill, Newry, tel: 080 OPHTHALMOLOGIAL WWW.MARYBCREMIN.IE 1693 61616, fax: 080 1693 67712 Solicitor required for busy general NEGLIGENCE practice. Apply in writing to John V London solicitors will advise on UK Kelly & Co, Solicitors, 27 Church matters and undertake agency work. All Mr Louis Clearkin ChM, FRCS, Street, Cavan Solicitor (Litigation) £30K+ areas. Corporate/private clients. Ellis & FRCOphth, DO, MAI, MEWI Small practice in Dublin 4 seek a Fairbairn, 26 Old Brompton Road, Consultant Ophthalmic Surgeon Locum solicitor required from late professional experienced litigator South Kensington, London SW7 3DL, May/early June for three to four months to join their team tel: 0044 171 589 0141, fax: 0044 171 Experienced expert witness in to cover maternity leave. May suit part- 225 3935 ophthalmological personal time, conveyancing. Apply in writing to Solicitor (Dublin 2) £30K+ injury, medical negligence and Ferry’s Solicitors, 15 Upper Ormond Newly-qualified solicitor required Northern Ireland solicitors. Will civil litigation Quay, Dublin 7 for city centre practice. Exposure advise and undertake NI-related matters. to conveyancing, probate and All areas corporate/private. Agency or Renuntiabo, 8 Rose Mount, Commercial/commercial conveyanc- litigation full referral of cases as preferred. Oxton, Wirral, Merseyside, ing solicitor required for southside Consultations in Dublin or elsewhere if L43 5SW practice to develop client base. PQE Call Roisin now for an appt. required. Fee sharing envisaged. three to five years. Salary negotiable Tel: 01 663 5901, fax: 01 662 8662 Donnelly Neary & Donnelly, 1 secretary: +44 (0) 151 6047047 with view to partnership and benefits. [email protected] Downshire Road, Newry, Co Down, tel: fax: +44 (0) 151 6047152 Phone Lee at Recruitment Dynamix on WWW.MARYBCREMIN.IE 080 1693 64611, fax: 080 1693 67000. e-mail: [email protected] 01 2866525 Contact KJ Neary

62 Professional information

The legal practices of Patrick J Take notice that Wexford County interest in the freehold estate of the in the matter of the Landlord and Groarke & Son, 33 Main Street, Council has lodged an application for reg- following property, Park Road, Tenant (Ground Rent) Acts, 1967- Longford, and John J Carlos & Co, istration on the freehold register free Dunmanway, in the county of Cork. 1984: an application by the trustees Strokestown, Co Roscommon from encumbrances in respect of the Take notice that John Dennehy of the Rathgar Congregation of amalgamated on 3 January 2001 and above property. The original title docu- and Helen Dennehy of Keelovenogue, Jehovah’s Witnesses are now trading under the new title of ments specified in the schedule hereto are Dunmanway in the county of Cork Take notice that any person having any Groarke & Partners. Offices in stated to have been lost or mislaid. The intend to submit an application to the interest in the freehold estate of the fol- Longford and Strokestown are open application may be inspected at this reg- county registrar for the county of lowing property: the premises known as usual, daily Mon - Fri, 9.30am to istry. Cork for the acquisition of the free- as Kingdom Hall, 24A Wesley Road, 5.30pm, tel: Longford 043 The application will be proceeded hold interest in the aforesaid property Rathgar in the Barony of Newcastle 46439/41393, Strokestown: 078 with unless notice is received in the reg- and any party asserting that they hold and County of Dublin. 33154/33338, e-mail: pgroarke istry within one calendar month from the a superior interest in the aforesaid Ta ke notice that the trustees of the @iol.ie and [email protected] date of publication of this notice that the premises are called upon to furnish Rathgar Congregation of Jehovah’s original documents of title are in exis- evidence of title to the aforemen- Witnesses intend to submit an applica- Small, busy, Dublin central prac- tence. Any such notice should state the tioned premises to the below named tion to the county registrar for the tice wishing to amalgamate with grounds on which the documents are held within 21 days from the date of this county of Dublin for the acquisition of existing small practice or solicitor and quote the dealing reference above. notice. the freehold interest in the aforesaid with own clientele. Excellent modern Signed: Sean MacMahon, Examiner of Titles In default of any such notice being property and any party asserting that offices. Reply to Box No 33 Schedule received, John Dennehy and Helen they hold a superior interest in the 1 Conveyance dated 23 September Dennehy of Keelovenogue, aforesaid premises (or any of them) are Solicitor’s practice located in South 1920: Beatrice, Countess of Dunmanway in the county of Cork, called upon to furnish evidence of title West: for sale. Enquiries from prin- Portsmouth to Enniscorthy Co- intend to proceed with the application to the aforementioned premises to the cipals only to Donovan Caulfield Operative Agricultural Society before the county registrar at the end below named within 21 days from the Lavan, Chartered Accountants, 1 2Conveyance dated 19 August 1922: of 21 days from the date of this notice date of this notice. Mount Kennett Place, Henry Street, Beatrice, Countess of Portsmouth to and will apply to the county registrar In default of any such notice being Limerick, tel: 061 411000 Enniscorthy Co-Operative Agricul- for the county of Cork for direction as received, the trustees of the Rathgar tural Society may be appropriate on the basis that Congregation of Jehovah’s Witnesses For sale/to let – modern ground 3 Lease dated 10 October 1938: the person or persons beneficially enti- intends to proceed with the application floor offices, suit legal practice, Enniscorthy Co-Operative Agricul- tled to the superior interest including before the county registrar at the end of 11,000 sq ft. Ushers Island, Dublin 8. tural Society to Wexford County the freehold reversion in the premises 21 days from the date of this notice and Five mins walk to Four Courts, tel: Council. are unknown or unascertained. will apply to the county registrar for Peter 01 679 0031, 087 266 9022 Dated: 20 March 2001 the county of Dublin for directions as In the matter of the Landlord and Signed: PJ O’Driscoll & Sons, 41 South may be appropriate on the basis that Te nant Acts, 1967-1994 and in the Main Street, Bandon, Co Cork (solicitor the person or persons beneficially enti- TITLE DEEDS matter of the Landlord and Tenant for the applicant) tled to the superior interest including (Ground Rents) (No 2) Act, 1978: an the freehold reversion in the premises In the matter of the Landlord and application by John Dennehy and In the matter of the Landlord and are unknown or unascertained. Te nant (Ground Rents) Acts, 1967- Helen Dennehy of Keelovenogue, Tenant Acts, 1967-1994 and in the Dated: 1 March 2001 84: notice of intention to acquire a Dunmanway, Co Cork matter of the Landlord and Tenant Signed: Lewis E Citron & Company, fee simple (section 4) Take notice that any person having any (Ground Rents) (No 2) Act, 1978 and Solicitors, 4 Waldemar Terrace, Main

To t h e person or persons for the time being entitled to the interest of William Brudenell Murphy in the premises hereinafter described under the leases hereinafter described. Description of land: all that and those the premises known as number 46 Smithfield in the parish of Saint Peter Websites for Legal Firms in the city of Dublin. Particulars of applicants’ lease or We provide websites that are: tenancy: lease dated 4 August 1897 •simple between William Brudenell Murphy •effective OFFICE SUPPORT (lessor) and Michael Kelly (lessee) for • low-cost a term of 99 years from 1 November • easy to update 1897 at an annual rent of stg£6 and Specialise in: subject to the covenants and condi- We design the site, and train tions therein contained. ■ you, the customer, to update Legal Secretaries Take notice that the applicant or change content thereafter. ■ Fusano Properties Limited, having its Legal PA’s registered office at 125-126 Lower ■ Total year 1 cost: £750 + VAT Company Secretaries Baggot Street, Dublin 2, being a per- ■ son entitled under the provisions of for up to 10 pages, including Administrators sections 9 and 10 of the Landlord and hosting charges. ■ Receptionists Te nant (Ground Rents) (No 2) Act, Subsequent years: 1978, proposes to purchase the fee £350 + VAT pa. simple interest in the lands described There are NO hidden charges! at paragraph 1 above. Exit when you wish. WE PROVIDE THESE PEOPLE Dated: 27 January 2000 ON BOTH A PERMANENT Signed: Beauchamps, Solicitors, Dollard Visit the “Customers” page House, Wellington Quay, Dublin 2 (solic- at www.go2.ie and see how AND CONTRACT BASIS itors for the applicant) we have helped other firms to get on to the Internet. In the matter of the Registration of For further information Title Act, 1964 and of the applica- Contact: Ian Jackson tion of Wexford County Council in Tel: 01-2500560 respect of property in the county of Fax: 2500562 Please Contact Gillian Moran on 6146088 Wexford Mobile: 086-8326541 County: Wexford or email [email protected] Lands at: The Machinery Yard Dealing no: D2001JS000396M

63 Professional information

the basis that the person or persons registrar at the end of 21 days from the beneficially entitled to the superior date of this notice and will apply to the interest including the freehold rever- county registrar for the county of sion in the premises are unknown or Dublin for directions as may be appro- unascertained. priate on the basis that the person or Dated: 27 February 2001 persons beneficially entitled to the Signed: Cornelius Sheehan & Co, superior interest including the free- Solicitors, 2 Alma Place, Monkstown, Co hold reversion in the premises are Dublin (solicitor for the applicant) unknown or unascertained. Be Sure. Engage a Forensic Accountant. Dated: 8 March 2001 In the matter of the Landlord and Signed: Daly Lynch Crowe & Morris, 26/28 South Terrace, Cork Tel:021 431 9200 Fax:021 431 9300 Tenant Acts, 1967-1994 and in the Solicitors, The Corn Exchange, Burgh 60 Lower Baggot Street, Dublin 2 Tel:01 475 4640 Fax:01 475 4643 matter of the Landlord and Tenant Quay, Dublin 2 (solicitor for the appli- e-mail: [email protected] Web: www.jhyland.com (Ground Rents) (No 2) Act, 1978: an cant) application by Michael Wade and Noel Wade Thomas Joyce (deceased), late of 12 Take notice that any person having Mayfield Road, Kilmainham, Dublin Street, Dundrum, Dublin 14 (solicitor for Take notice that any person having any interest in the freehold estate of 8. Would any person having knowl- the applicant) any interest in the freehold estate of the following property: the lands with edge of the whereabouts of title docu- the following property: all that and the buildings thereon the subject mat- ments of the above named deceased’s In the matter of the Landlord and those the lands, dwellinghouse and ter of indenture of lease dated 7 premises at 12 Mayfield Road, Dublin Tenant Acts, 1967-1994 and in the hereditaments at Montpelier, Tallaght, October 1971 and made between 8, please contact James D Aitken & matter of the Landlord and Tenant Dublin 24 (hereinafter called ‘the Edward Waters of the one part and Co, Solicitors, 107 Trees Road, (Ground Rents) (No 2) Act, 1978: an property’) held under lease subject to Maureen Wade of the other part, con- Mount Merrion, Co Dublin, tel: 01 application by Siobhan Kenny the covenants and conditions therein sisting of a triangular plot of ground 288 2772, fax: 01 288 8204, ref: (applicant) and the Riall Estate and set out. adjoining the south-western boundary AM/HL Robert Briscoe, landlords (respon- Take notice that the Patrick Collins of premises known as the lodge situate dents) and Catherine Mary Collins intend to at Ballycorus, Kilternan, in the county Vincent Landy SC (deceased), late Take notice that any person having any submit an application to the county of Dublin as more particularly delin- of Annefield, 47 Butterfield Park, interest in the freehold estate or any registrar for the county and city of eated and described on the map Rathfarnham, Dublin 14. Would any superior leasehold estate in the follow- Dublin for the acquisition of the free- annexed to the said lease and thereon person having knowledge of the ing property: part of the lands com- hold interest in the aforesaid property coloured red. whereabouts of the title documents of prised in indenture of lease dated 3 and any party asserting that they hold Take notice that Michael Wade the above mentioned property, please April 1934 made between Robert a superior interest in the aforesaid and Noel Wade intend to submit an contact Orpen Franks, Solicitors, Briscoe of the first part, Mary Woods premises are called upon to furnish application to the county registrar for 28/30 Burlington Road, Dublin 4. Ref: of the second part and Andrew Woods evidence of title to the aforemen- the county of Dublin for the acquisi- RMW, tel: 01 668 9622, fax: 01 668 of the third part, and more particularly tioned premises to the below named tion of the freehold interest in the 9004 known as 1 Belmont Avenue, situate in within 21 days from the date of this aforesaid property and any party the parish of St Mary’s, Donnybrook, notice. asserting that they hold a superior Mary Sheridan (deceased) and in the Barony and County of Dublin In default of any such notice being interest in the aforesaid premises are Edward Sheridan (deceased). (now situate in the city of Dublin), received, the aforesaid Patrick Collins called upon to furnish evidence of title Premises: 8 Summerville Park, being a sub-lease held inter alia under a and Catherine Mary Collins intend to to the aforementioned premises to the Rathmines, Dublin 6. Would any per- superior indenture of lease dated 20 proceed with the application before below named within 21 days from the son having knowledge of the where- November 1884 made between Lewis the county registrar at the end of 21 date of this notice. abouts of the title deeds of the above Riall of the one part and John Newport days from the date of this notice and In default of any such notice being premises, please contact Sean E of the other part. will apply to the county registrar for received, Michael Wade and McDonnell & Co, Solicitors, 24 Take notice that Siobhan Kenny the county and city of Dublin for Catherine Wade intend to proceed Upper Rathmines Road, Dublin 6, tel: intend to submit an application to the directions as may be appropriate on with the application before the county 01 496 1833 county registrar for the county and city of Dublin for the acquisition of the freehold interest in the aforesaid prop- erty and any party asserting that they hold a superior interest in the aforesaid NORTHERN DUBLIN SOLICITORS’ premises are called upon to furnish evi- J. DAVID O’BRIEN IRELAND PRACTICE OFFERS dence of title to the aforementioned SOLICITORS AGENCY WORK premises to the below named within 21 ATTORNEY AT LAW IN NORTHERN days from the date of this notice. 20 Vesey St, Suite 700 In default of any such notice being We will engage in, New York, NY, 10007 IRELAND received, Siobhan Kenny intends to and advise on, proceed with the said application Tel: 001212-571-6111 all Northern Ireland- * All legal work undertaken before the county registrar at the end related matters, on an agency basis of 21 days from the date of this notice Fax: 001212-571-6166 Email: [email protected] particularly personal * All communications to clients and will apply to the county registrar through instructing solicitors for the county and city of Dublin for injury litigation. PERSONAL INJURY ACCIDENT * Consultations in Dublin if required directions as may be appropriate on the Consultations where CASES Contact: Séamus Connolly basis that the person or persons benefi- convenient. Moran & Ryan, Solicitors, cially entitled to the superior interest CONSTRUCTION Fee sharing Arran House, including the freehold reversion in the RAILROAD envisaged. 35/36 Arran Quay, Dublin 7. premises are unknown or unascer- MARITIME tained. AVIATION OLIVER M LOUGHRAN Tel: (01) 872 5622 Dated: 23 March 2001 CAR/BUS/TRUCK Signed: Lockhart & Company, 99 Vernon & COMPANY Fax: (01) 872 5404 Avenue, Clontarf, Dublin 3 (solicitor for MEMBER AMERICAN AND NEW the applicant) YORK STATE TRIAL LAWYERS 9 HOLMVIEW TERRACE, e-mail: [email protected] ASSOCIATIONS OMAGH, CO TYRONE or Bank Building, Hill Street In the matter of the Landlord and Phone (004428) 8224 1530 Newry, County Down. Tenant Acts, 1967-1994 and in the Enrolled as Solicitor Fax: (004428) 8224 9865 Tel: (0801693) 65311 matter of the Landlord and Tenant in Rep of Ireland, England e-mail: Fax: (0801693) 62096 (Ground Rents) (No 2) Act, 1978: an & Wales [email protected] E-mail: [email protected] application by Patrick Collins and Catherine Mary Collins

64