aw s o C iety Gazette • Vol 106 No 9 l aw Cross purposes type Cast Key players The Constitution’s Outsourcing your typing What can landlords do if provisions on religion are requirements can give commercial tenants just actually quite ambiguous you a much-needed edge hand back the keys? Law Society Law GazetteGazette€4.00 November 2012 NOVEMBER 2012
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Dublin London New York Palo Alto www.matheson.com 2 contents Law Society Gazette www.gazette.ie November 2012
Law Society Gazette Volume 106, number 9 Subscriptions: €60/€90
Editor: Mark McDermott FIIC Deputy editor: Dr Garrett O’Boyle Art director: Nuala Redmond Society Law Editorial secretaries: Catherine Kearney, GazetteGazette Valerie Farrell
Commercial advertising: Seán Ó hOisín, tel: 086 811 7116, RegularS email: [email protected] 4 News 55 One to watch: Residential Institutions For professional notice rates (wills, title deeds, Statutory Fund Act 2012 employment, miscellaneous), see page 62. 10 Analysis 57 Regulation 60 Eurlegal: The Common European Sales Published at Blackhall Place, Dublin 7, 10 News feature: Seamus Heaney tel: 01 672 4828, fax: 01 672 4877. addressed visitors to the recent IBA Law represents both a challenge and an Email: [email protected] conference in Dublin opportunity Website: www.gazette.ie 14 Human rights watch: For the first 62 Professional notices Printing: Turner’s Printing Company Ltd, time, the European Court of Human Longford Rights has upheld a complaint related to discrimination based on sexual 63 Recruitment advertising Editorial board: Michael Kealey (chairman), orientation Mark McDermott (secretary), Mairéad Cashman, 64 Captain’s blawg Paul Egan, Richard Hammond, Mary Keane, Aisling Kelly, Tracy Lyne, Patrick J McGonagle, 16 Comment Ken Murphy, Andrew Sheridan 16 Viewpoint: The argument for a ‘no’ in the Children’s Referendum The Law Society of Ireland can accept 18 Viewpoint: There is nothing novel about no responsibility for the accuracy of securing substantial damages in cases contributed articles or statements appearing where there has been significant, proven in this magazine, and any views or opinions expressed are not necessarily those of the criminality Law Society’s Council, save where otherwise 20 Viewpoint: Does Britain’s Sentencing indicated. No responsibility for loss or distress Council give us an example we should occasioned to any person acting or refraining follow? from acting as a result of the material in this publication can be accepted by the authors, contributors, editor or publishers. The 46 People and places editor reserves the right to make publishing decisions on any advertisement or editorial 49 Books article submitted to this magazine, and to Corporate Insolvency and Rescue refuse publication or to edit any editorial material as seems appropriate to him. 50 Briefing Professional legal advice should always be 50 Practice notes sought in relation to any specific matter. 55 Legislation update: 11 September – 5 October 2012 64 FSC independently certified wood and paper products used by the Law Society Gazette come from ecologically managed forests. Visit: www.fsc.org
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The Law Society Gazette is a full participating member of the Press Council of Ireland and M supports the Office of the Press Ombudsman. R e s c ne This scheme, in addition to defending the free- ycl azi e Mag dom of the press, offers readers a quick, fair and free method of dealing with complaints that they may have in relation to articles that appear on our pages. To contact the Office of the Press Ombudsman go to: www.pressom- budsman.ie or www.presscouncil.ie. 10 46
Law Society Gazette www.gazette.ie November 2012 contents 3
• Vol 106 No 9 No 106 Vol • Gazette iety C o s aw l
Cross purposes 20 26 The Constitution’s provisions on religion are type Cast actually quite ambiguous Outsourcing your typing requirements can give Key players you a much-needed edge What can landlords do if commercial tenants just cover story hand back the keys? GazetteLawGazette Society 22 Shaky foundations? €4.00 November 2012
It appears that showing the presence of the classic
2012 NOVEMBER symptoms is not as open-and-shut a case in proving shaken baby syndrome as was originally thought. So, asks Hilary Lennox, is the syndrome science or myth? features shaKe the fo Law Society of Ireland of Society Law uN is shaken baby syndromedatioNs: 26 Stop the presses! science or myth? Roy Greenslade speaks to the Gazette cover nov broken doll.indd 1 38 about phone hacking, the Leveson Inquiry, the media invasion of privacy 22/10/2012 12:19 – and making mistakes. Colin Murphy 38 Papa don’t preach rummages through his bins Contrary to much popular perception, the Constitution’s 30 The price is right provisions on religion are actually In the second of two articles, new taxing rather ideologically ambiguous and master Declan O’Neill outlines some of embrace no single model of Church/ the changes to the taxation of costs that State relations. Eoin Daly gets a belt are likely to be brought about by the of the crozier Legal Services Regulation Bill 42 Departure from type 34 Jingle mail Deciding to outsource or contract Commercial tenants may think that by out typing and other document- handing back the keys to their landlords, production services can give smaller they are ending their tenancies. So what firms the edge over bigger ones – options do landlords have? Conor Feeney but be aware of the potential pitfalls. sticks his foot in the door Peter McKenna takes a letter 42
HOW TO REACH US: Law Society Gazette, Blackhall Place, Dublin 7. Get more at lawsociety.ie Tel: 01 672 4828, fax: 01 672 4877, email: [email protected] Gazette readers can access back issues of the magazine as far back as Jan/Feb 1997, right up PROFESSIONAL notices: send small advert details, with payment, to: Gazette to the current issue at lawsociety.ie. Office, Blackhall Place, Dublin 7, tel: 01 672 4828, or email: [email protected]. You can also check out: All cheques should be made payable to: Law Society of Ireland. • Current news • Forthcoming events, including the 27th Hugh COMMERCIAL ADVERTISING: contact Seán Ó hOisín, 10 Arran Road, Dublin 9, Fitzpatrick Lecture at the Royal Dublin Society tel: 01 837 5018, fax: 884 4626, mobile: 086 811 7116, email: [email protected] Library, Ballsbridge on 14 November HAVE YOU MOVED? Members of the profession should send change-of-address details to: • Employment opportunities • The latest CPD courses IT Section, Blackhall Place, Dublin 7, or to: [email protected] … as well as lots of other useful information
4 news Law Society Gazette www.gazette.ie November 2012 Nationwide Compiled by Kevin O’Higgins Kevin O’Higgins has been a It’s not unusual. Or is it? Council member mayo of the Law Society since Claremorris’s Charlie Gilmartin a two-year term, and this must initiative for Temple Street 1998 is the new president in Mayo, require much stamina. Evan Hospital, involving a climb up where he succeeds Evan represented his association with the Reek, can be said certainly O’Dwyer. Mayo presidents are great dignity and effectiveness to have brought the association unusual in that they serve for and his bar association charity to new heights. Trip to Tipp tipperary This being the AGM season, new officers are sprouting up in bar associations throughout the country and I know that, in Tipperary, colleagues will be especially well served following the election of an old college pal of mine, John Lynch from Clonmel. Ronan Kennedy is stepping down after a mammoth eight years as honorary secretary – I thought I held the record for such longevity in bar association office, but he pips me by a year!
Ar dheis Dé Evan O’Dwyer (then president of the Mayo Solicitors’ Bar Association) presents a cheque of nearly €45,000 to go raibh a Health Dr David Corcoran (consultant paediatrician, Temple St Children’s Hospital) with staff from St Michael’s B Ward. The proceeds came from Mayo solicitors who climbed Croagh Patrick last July anam dílis Support and Advice cork for The legal community in CorkLawyers Sisters are doing it for themselves and elsewhere is hugely saddened dublin by the death of our colleague and Law Society Council member Well over 100 colleagues turned as vice-president, Julie Doyle lunch occasion for our female James O’Sullivan, a partner in up for the DSBA AGM. This as honorary secretary, Aaron colleagues throughout Dublin Ronan Daly Jermyn. Our deepest ensured a lively evening, at which McKenna as treasurer, and and beyond. Stinky men were sympathy is extended to his Geraldine Kelly relinquished her Eamonn Shannon as programmes definitively not welcome, but we family, partners, colleagues and chain in favour of the evergreen director. Before Geraldine left understand they got on just fine friends. John Glynn, with Keith Walsh office, she hosted a unique without us! G Law Society Gazette www.gazette.ie November 2012 news 5
‘Under In News this month... New SCs Pressure’ appointed 5 New moniker for MOPs 7 Passing of Council member, Under Pressure, a new play 5 New SCs appointed James O’Sullivan, RIP A total of 13 barristers were by barrister, Rachel Fehily, 7 Legal Practice Irish Project 8 Children’s Rights Referendum appointed senior counsel in dramatises a senior counsel’s wins European Language Label 9 Finding a mediator – made easy ceremonies conducted by the Chief intense consultation with her Justice in the Supreme Court on client, a doctor, accused of the 3 and 4 October 2012. murder of his wife. Those taking silk included: The play will be performed Edward Patrick Roughan Banim, as a lunchtime reading at the Legal fundamentals aired at John Henry Boyd Connolly, Damien United Arts Club, 3 Upper IBA’s Dublin conference James Colgan, Alan Martin Doherty, Fitzwilliam Street, Dublin 2 at Mark Kevin Harty, Niamh Margaret 1pm on Saturday, 1 December Hyland, Brian Francis Kennedy, 2012. Tickets €15 (lunch Declan McGrath, Patrick Finbarr included). VIP tickets €30 O’Reilly, Martin O’Rourke QC, Seán Ó (includes lunch, glass of wine and hUallachain, Teresa Mary Pilkington mention as a supporter on the and Ciaran Oisín Ramsay. programme). The United Arts Club supports this event. Tickets available at An AGM with www.eventelephant.com/ underpressure. Mob: 087 262 a difference 0482, www.dublinarts.com.
New moniker At the IBA/Law Society Finuas conference were (from l to r): Carol Eagar (YDS), Jane McCluskey (SYS), Attracta O’Regan (head of Law Society Finuas Network), Paul Kennedy (SYS), Rebecca Bedford (speaker), Minister Brian Hayes, Michelle for MOPs Nolan (Law Society Finuas Network), Michael Greene (IBA organising committee), Clifford Healy (YDS), Jon Grouf (conference chairman) and Tracey Donnery (Skillnets Ltd)
‘The Fundamentals of property, commercial contracts, International Legal Business technology law and EU Practice’, organised by the competition law were discussed International Bar Association in by a panel of international Matheson Ormsby Prentice is association with the Law Society speakers. changing its name to Matheson, Finuas Network, the Society of The event was launched with effect from Tuesday 30 October Young Solicitors and the Young by Minister Brian Hayes who The AGM of the Irish Legal 2012. The firm says that many of Dublin Solicitors, took place at commented that the focus of History Society (ILHS) will be its international clients already Blackhall Place on 29 September. the Irish Government over the held in the museum, Glasnevin refer to them as ‘Matheson’ and that A broad range of topics, next four years would be on Cemetery, on Friday 30 November rebranding the firm is therefore “a including dispute resolution, jobs growth in the international 2012 at 5.30pm, following which logical but nonetheless exciting international M&A, intellectual financial services sector. Prof Norma Dawson will deliver milestone for us”. an address entitled: ‘The Ulster Two of Matheson’s ancestor firms Plantation Case 1892-’98 – the end can be traced back to 1825. The of the adventure?’ firm became known as Matheson The meeting will be preceded Ormsby Prentice from the early Hugh M Fitzpatrick Lecture by a guided tour of the graves of former members of the legal 1900s, with the first MOP office Legal practitioners are invited to a RDS Speaker Series. profession, assembling at the opening in 1907 (an anniversary it lecture to be delivered by Charles The Royal Dublin Society is shares with the founding of the Law Lysaght on ‘The Old Munster Circuit offering free parking for the museum building at 3pm. Society Gazette). and other tales of the Irish Bar’. duration of the lecture. Cars should The tour will conclude before The firm’s telephone and fax The lecture will be delivered in enter at the Merrion Road entrance. dusk with a visit to the O’Connell numbers will remain the same. The Library, Royal Dublin Society, Refreshments will be provided mausoleum. It promises to be an However, its email addresses Merrion Road, Ballsbridge, Dublin afterwards. interesting afternoon, as aspects will change to the format 4, at 6pm on Wednesday 14 RSVP: Hugh M Fitzpatrick, of the rich tapestry of Irish legal [email protected]. November. The chairman will Lectures in Legal Bibliography, 9 heritage are uncovered. Any emails sent to its current email be James O’ Reilly SC, while the Upper Mount Street, Dublin 2. Tel: Further details on the award- addresses will be automatically welcoming speech will be made by 01 269 2202; fax: 01 661 9239, winning Glasnevin Cemetery and redirected. The website will become John Holohan, chairperson of the email: [email protected]. museum are available at www. www.matheson.com. glasnevinmuseum.ie.
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ContactContact us us forfor furtherfurther informationinformation Tel: (01) 627 1170 Fax: (01) 627 2345 DX: 138008 Celbridge Email:Tel: [email protected](01) 627 1170 Fax: (01) 627 2345Web: www.castletownpress.com DX: 138008 Celbridge Email: [email protected] Web: www.castletownpress.com Law Society Gazette www.gazette.ie November 2012 news 7 Legal Practice Irish project takes top European language award The Law Society’s Legal Practice Irish project has been awarded the European Language Label 2012. On 5 October, staff from the Society’s Education Centre received the award from the European Commission and Ireland’s Department of Education, through Léargas. In presenting the European Language Label, Léargas sought evidence of new initiatives in the teaching and learning of languages, as well as the use of new techniques. The visiting jury’s award criteria investigated evidence of innovation, creativity, services in our first language. and refer potential clients to who pass the ALPI course are originality, comprehensiveness, Trainees can greet a client as solicitors who practise trí Ghaeilge. entered onto Clár na nGaeilge motivation of learners and how Gaeilge, use legal terminology Trainees and qualified solicitors (An Dlí-Chumann). these could be transferred to other projects. The Society’s Irish project Personal insolvency – the role of practitioners in legal practice began back in 2008 as part of the Law Society’s The Law Society has made a 3) The Law Society should be documents page of the response to the requirements of comprehensive submission on the the licensing and regulatory members’ area. section 40 of the Solicitors Act licensing and regulation of personal authority for solicitor personal Law Society President 1954 (as amended in the Legal insolvency practitioners under the insolvency practitioners, and Donald Binchy said: “It is Practitioners (Irish Language) Personal Insolvency Bill. The Society 4) The Society can design and the view of the Society that Act 2008), which replaced the has argued that: deliver suitable education and solicitors are ideally placed to previous ‘First Irish/Secon]d 1) Solicitors should be entitled to be training for solicitor personal take on the role of personal Irish’ examinations. personal insolvency practitioners, insolvency practitioners. insolvency practitioners, due All trainee solicitors are now 2) Solicitors should be equally to the depth of knowledge and acquiring the skills to deal with preferred to other professions in The submission is available on experience of the profession in clients who wish to avail of legal this area, the Society’s website in the policy this area.”
James O’Sullivan, Council member, RIP The Law Society was saddened to death of James. Ever since he past-president of the Southern learn of the sudden passing of one came onto the Council for the first Law Association (SLA) and served of its Council members, James time in the year 2002, James was on its council for many years. SLA O’Sullivan, on 17 October 2012. a very significant contributor to President Kieran Moran expressed James was a dedicated member the business of the Council and his shock and profound sadness of Council for many years, was any committees with which he at the passing of “our esteemed current vice-chairman of the was involved – most especially friend and colleague”. Complaints and Client Relations the Education Committee, which “James was always a great Committee, a member of the he chaired in the past. James friend to the Southern Law Finuas Network Committee and was also very good company and Association and worked tirelessly the Skillnet Committee, and was very well liked by his colleagues on its behalf at Law Society the Law Society’s nominee on and he will be greatly missed by level,” he said. “He will be the Property Services Regulatory us all, both on a personal and greatly missed by all his friends Authority’s Interim Appeal Board. professional level. On behalf and colleagues in the SLA. We In the past, he served as chairman of the Law Society, I extend my extend our heartfelt sympathies of the Education Committee sincerest condolences to his to his partner, family, friends, and and sat on many other Society Law Society President Donald partner Catherine, his mother and his partners and colleagues at committees, ably and diligently Binchy said: “I and all of the brothers and sisters.” Ronan Daly Jermyn.” representing the interests of Council were shocked and greatly In addition to his Society members. saddened to hear of the untimely responsibilities, James was a Ar dheis Dé go raibh a anam dílis. 8 news Law Society Gazette www.gazette.ie November 2012 Seminar analyses the Children’s Rights Referendum Minister for Children, Frances Article 42A.2.2 allows for Fitzgerald, was the keynote the adoption of any child speaker at a seminar at Blackhall where there has been a failure Place on 24 October 2012. of parental duty for such a Titled ‘Cherishing all children period as prescribed by law, equally – the constitutional and where the best interests referendum on the rights of the of the child so require. Dr child’, the event was organised Geoffrey Shannon, special by the Society’s Family Law rapporteur on child protection, Committee in collaboration said: “This amendment is with Law Society Professional asking the people to give Training. children a ‘second chance’ The aim of the seminar to experience stability and was to provide an objective security within a caring and and informed analysis of the loving family. There are forthcoming referendum on hundreds of children who are At the seminar on the Rights of the Child were (l to r): Muriel Walls (McCann the rights of the child and its FitzGerald), Carol Anne Coolican (chairman, Family Law Committee), the Minister currently caught in a twilight potential impact for children for Children and Youth Affairs, Frances Fitzgerald, Vice-President of the Law zone between a family that into the future. The minister Society James McCourt, Dr Geoffrey Shannon (Special Rapporteur on Child cannot fully care for them and addressed all four provisions of Protection), Sinead Kearney (Family Law Committee) and Michelle Nolan (Law a family that cannot fully adopt the referendum, as follows: Society Professional Training) them.” 1) Recognition of natural and The committee welcomed imprescriptible rights of all 4) That the best interests and it was an historic development the minister’s commitment children, views of children are taken and had the potential to make to deliver the resources 2) State intervention where into account in family law a real and positive difference to necessary to fully implement there is exceptional failure by proceedings. the lives of children in Ireland. the sentiments expressed in the parents and the safety/welfare It represented the chance for a referendum proposal – and to of the children are affected, Speaking at the event, Carol new beginning for the children review the necessary legislation 3) Adoption in exceptional Anne Coolican, chair of the who had been let down by the to encompass the views and circumstances, and Family Law Committee said system in the past, she said. best interests of all children. Law Society announces finance facility 2012/13 for members The Law Society is pleased To apply for a business loan a lending application. As with for his/her own individual to advise that it has selected today, please complete Bank of all borrowing, normal lending circumstances. Any member who Bank of Ireland as the exclusive Ireland’s application form, which criteria, terms and conditions would like to obtain independent provider of the Law Society’s is available on the Bank of Ireland apply. financial guidance on alternatives finance facility for members website (www.bankofireland. Alternatively, to discuss your can contact Liz McGrath, who wish to apply for funding com/business/loans) or in your financial needs in general, call financial adviser, on 087 131 6906. for payment of preliminary local branch. The bank’s website Bank of Ireland’s credit line Terms and conditions apply. tax, pension contributions, also has a wide range of supports on 1890 354 454 to arrange an Bank of Ireland is regulated by the professional indemnity to help you in completing the appointment, or call in to your Central Bank of Ireland. insurance and practising application form, including a branch and meet your local Please note that the Law Society certificate(s). useful cash-flow planning tool business team. of Ireland is not an agent, broker or Bank of Ireland’s short- to help you forecast your cash Bank of Ireland is one option financial institution and cannot accept term business loan will enable position for the next 12 months. available to members. However, any responsibility whatsoever for any members or their firms to Up-to-date financial information each member should shop around financial decisions made on foot of the spread the cost of any large will be required to complete to obtain the best finance available information provided above. annual payment(s) over a term of up to 12 months, thereby Loan amount Interest rate term in months Monthly repaymentS total cost of credit improving business cash flow. €5,000 6.74% 12 €431.95 €183.40 €10,000 6.74% 12 €863.90 €366.80 Rates* €15,000 6.74% 12 €1,295.84 €550.08 Secured lending: 5.74% €20,000 6.74% 12 €1,727.79 €733.48 Unsecured lending: 6.74% Repayments vary depending on * Variable rates quoted are correct as at 1/10/2012 and are subject to change. The rates apply to loans of up amount borrowed, for example**: to €300,000 and 5.74% applies where tangible security has been provided to secure the facility. The level of **Repayment based on unsecured security required and rate applicable will be determined by the amount, purpose and term of facility, in conjunction lending rate of 6.74%. with the nature and value of the security being offered. Lending criteria, terms and conditions apply. Law Society Gazette www.gazette.ie November 2012 news 9 Finding a mediator – made easy representation news from the law society’s committees and task forces
Practical issues for ROS and CAT probate, admINIstration and trusts committee In advance of the 31 October pay-and- file deadline for CAT (15 November for online pay and file), the Probate, Administration and Trusts Committee is At the ‘Find a mediator’ launch were (from l to r): Ken Murphy (director general), senior vice-president James in ongoing discussions with the Revenue McCourt, Mr Justice Peter Kelly and Larry Fenelon (vice-chairman of the Arbitration and Mediation Committee) Commissioners regarding practitioners’ queries to date in relation to ROS The Society’s new online search facility ‘Find More information on the mediator is as it applies to CAT. The committee a mediator’ was launched by Mr Justice Peter available by clicking on ‘show details’. welcomes feedback from practitioners Kelly at Blackhall Place on 8 October 2012. Society members can update their on the CAT ROS process this autumn, Opening the event, senior vice-president member profiles if they wish to add so as to ensure that all practical issues James McCourt said that the Law Society mediation details. Simply go to the arising can be raised with Revenue. welcomed this timely initiative, particularly as homepage at www.lawsociety.ie and log in Practitioners experiencing technical members awaited the imminent publication using your roll number and password. Once issues should continue to refer to of the Mediation Bill. “The Society is logged in, members can click on their name Revenue Technical Services as per continuously promoting all forms of dispute (underlined and in bold text at the top right- the guidelines on www.revenue.ie/en/ resolution,” he said. “We recognise that hand corner of the page). practitioner/index.html. everybody is looking for a speedy and cost- On the page ‘account dashboard’ (in the efficient way to resolve disputes. This search left-hand column), members have the option engine will enable and facilitate a quick of clicking a box to register as a mediator search for quality mediators.” and upload their mediator details. Updated client The search engine has been designed with Members’ email addresses, telephone simplicity in mind. Mediators can be found numbers, addresses and year of qualification information with a few clicks of the mouse, and there’s no are pre-populated. All that’s required is to cost for searching. Once a suitable mediator select the counties in which you practise, leaflet available has been found, he or she can be contacted the areas of mediation, and your mediation probate, admINIstration and directly to discuss availability. In addition, qualifications before clicking the ‘update trusts committee mediators with specialist knowledge and registration button’. Selecting multiple appropriate degrees of expertise are available options is possible from the lists provided The Probate, Administration and for selection. – again, holding down the ‘ctrl’ key while Trusts Committee has reviewed Finding a mediator couldn’t be easier. selecting other items on the list. the administration of estates client On the Law Society’s homepage, visitors Once the entry is completed, click ‘update information leaflet as part of their should click on the ‘find a mediator’ icon, registration’. The message ‘your mediator ongoing review of material of assistance when they will be directed to the ‘search for details were changed successfully’ will to solicitors, and the updated leaflet a mediator’ page. Mediators can be found appear, indicating that you have registered is available for download at from the by surname, first name, the counties they as a mediator. Of course, registration can members’ area at www.lawsociety. practise in, areas of speciality and mediation be cancelled at any time. Once registration ie/Pages/Committees/Probate- qualifications. is completed, this information appears Administration-and-Trusts/Resources- In order to select multiple options from instantly on the mediator search. Probate/. the lists provided, hold down the ‘ctrl’ key For further information on this service, Solicitors can insert their contact while clicking on the selections required. contact Colleen Farrell (secretary to the details and/or firm logo on same, prior to Clicking ‘search’ will bring up a list of Arbitration and Mediation Committee) at printing and providing to clients. mediators within the parameters specified. [email protected]. 10 analysis Law Society Gazette www.gazette.ie November 2012
poetry and the defence of human dignity
The world’s Bar Leaders attending the IBA Annual Conference in Dublin enjoyed a very special audience with Nobel Prize-winning poet Seamus Heaney, followed by a dinner at Blackhall Place. Mark McDermott reports
awyers from across the and described as “the Olympics represent millions of lawyers across globe travelled in their for lawyers”. the world, and they came from Lthousands to Dublin for the The last time this particular Europe, North America, South International Bar Association’s (IBA) IBA event visited these shores was America, Australia and New Zealand, annual conference, held from 30 in 1968. This time around, legal Asia, the Middle East and Africa. September to 5 October practitioners were Special guest on the night was IBA 2012. In all, 5,200 accompanied by 1,500 President Akira Kawamura from Mark McDermott lawyers attended the “What good partners, exhibitors Japan, accompanied by international is editor of the Law IBA event in Ireland, is poetry in and support staff bar and law society presidents from Society Gazette which was launched by – representing the around the world. Taoiseach Enda Kenny a world of largest gathering of bar Welcoming the prestigious suffering and association members guests, Law Society President and international Donald Binchy thanked the IBA injustice? Can lawyers ever. During the for the support it had shown for it come to week, more than 200 Irish lawyers when it, along with sessions, lectures and the CCBE and the American Bar the aid of the other events took place, Association, had despatched their human when in addition to more most senior personnel to Ireland last than 1,500 networking December to speak out about the the human is meetings and receptions need to protect the independence assailed by the hosted by Irish and of the Irish legal profession and inhuman?” overseas law firms. the judiciary from the measures Undoubtedly, the proposed by the Legal Services highlight of the week Regulation Bill 2011. proved to be the Bar Leaders’ The Law Society’s Ken Murphy dinner which followed an audience spoke about the “absolutely unique” with Seamus Heaney. He delivered event that was the IBA’s annual a specially prepared paper for the conference in Ireland and added that event titled ‘The web and the world’ the Law Society was honoured by the on 2 October. The Bar Leaders presence of so many Bar Leaders.
Dr Hans-Juergen Hellwig (IBA council member), Brendan Twomey (Council member, Law Society of Ireland), Marcella Prunbauer (president, CCBE) and Geraldine Clarke (past-president, Law Society of Ireland)
Nobel Laureate, Seamus Heaney Law Society Gazette www.gazette.ie November 2012 ANALYSIS 11 poetry and the defence of human dignity
“I want to affirm the importance IBA President Akira Kawamura admires Frode Elgesem, Merete Smith (secretary general, Norwegian Bar President Donald Binchy’s chain of office of imaginative Association), Anne Ramberg (secretary general, Swedish Bar Association) work done and Ken Murphy (director general, Law Society of Ireland) In his introductory remarks his subject by individual is it in that cause?” one being one of the articles of about the poet Seamus Heaney a line from creative thinkers. Heaney appeared to the declaration, especially the – one of Ireland’s four Nobel the WH challenge the effectiveness all-encompassing first article: Laureates in Literature, which Auden How influential of poetry in defending the ‘All human beings are born free also include WB Yeats, George poem, In and beneficent dignity of mankind, by and equal in dignity and rights. Bernard Shaw and Samuel Memory of comparing and contrasting They are endowed with reason Beckett – Murphy quoted the WB Yeats. they have been it with the apparent efficacy and conscience and should act words of the Nobel Academy Here, in the formation of the law: “One human towards one another in a spirit of when they awarded the prize to Auden of values utterance that was effective brotherhood.’ Seamus Heaney “for works of states: “For in that cause was the United “On different occasions, I’ve lyrical beauty and ethical depth poetry and human Nation’s Universal Declaration heard Mary Robinson, our which exalt everyday miracles and makes consciousness” of Human Rights, issued over former President and former the living past”. He also cited the nothing 60 years ago. In ratifying the commissioner for human rights BBC as the authority for a report happen.” principles in the declaration, at the UN, say that the important that books by Seamus Heaney Describing the line as “perhaps the governments of the world word here is ‘dignity’ (coming made up two out every three too famous”, Heaney set about gave epoch-making sanction to from dignus – maybe ‘worth’ or sales of books by living poets in sharpening his pen before striking the human need for fairness and ‘worthy’). So, ‘dignity’, which Britain – a phenomenal level of his mark: “Implicit in the whole natural justice and, in doing so, makes the individual worthy of popularity. poem is the question of art’s they strengthened the moral respect. ‘Dignity’, which is the Heaney’s address, ‘The web ability to face, or perhaps, outface standing of international law. basis of his or her self-respect and the world’ proved to be less atrocity. Auden is being haunted “Even if the articles of the and inner freedom at a personal about modern technology and its here by the perennial question: declaration are not legally level; on the basis of his or impact on communications, and ‘What good is poetry in a world binding, and even if they are her right to just treatment and more about the “worldwide web of suffering and injustice?’ Can cruelly forborne every day, there democratic representation at a of principles”, where the role of it come to the aid of the human is an immense potency about public, political level. the poet interweaves with that when the human is assailed by the the cogent, simple language in “And behind the primary of the lawyer when defending inhuman? Or, to put it another which the articles are framed,” he words and sentiments of that first human rights and the cause of way, is human utterance effective stated. “The 30 articles, I would article, you can hear echoes of justice. The 1995 Nobel Laureate in the cause of human rights and say, constitute a worldwide web many of the great foundational in Literature took as the foil for justice, and if so, just how effective made up of 30 measures, each texts of western civilisation.
Marie Heaney and Robert Brun QC (president, Canadian Bar Association) Yvonne Chapman, Peter D Maynard (PPID chairman, IBA) and Patricia Nolan 12 analysis Law Society Gazette www.gazette.ie November 2012
the strong fibre from which a Swedish traditions who had kept worldwide web of principles is alive “conscience and the spirit born. Principles and values woven of freedom, not only within the over the centuries, long before the individual’s psyche but also within electronic web could even have the collective mind of nations and been imagined. people. Writers, too, are weavers “And it is, of course, widely of the web”, he said. acknowledged how vital a part Dr Hans-Juergen Hellwig Mr Justice Michael Catherine Gale the digital revolution has played The spirit of freedom (IBA council member Kirby (retired Justice (president, – the electronic communications. Mr Heaney, suffering occasionally for Germany and past- of the High Court of Law Council of How vital they have been in the from hoarseness, had cause to take president of the CCBE) Australia) Australia) last years in terms of transmitting a lengthy draught from a glass news, transmitting information, of water during his presentation, transmitting protest, transmitting after which, again quoting Auden conviction. from the poem September 1, 1939, “Yet, central to this he joked: “All I have is a voice” – development in the fight against which won laughter and applause tyranny, it is not the web that I from his rapt audience. want to talk about,” he said. “I This poem, the Nobel Laureate want to affirm the importance pointed out, was written after of imaginative work done by the Nazis invaded Poland, on individual the day that Britain creative thinkers. declared war on the How influential “But where the Reich. “Its slight note John F Buckley (former treasurer of the IBA) and Ambrose Lam and beneficent of defensiveness – ‘All (vice-president, Law Society of Hong Kong) they have been private man I have is a voice’ – in the formation is a poet, and betrays anxiety about Sophocles’ paean to the wonders of the New Testament and, in of values the private act the adequacy of poetry of man in Antigone, for example, particular, Christ’s sermon on and human in that dark time. An in the famous line when the the mount; just as there are consciousness.” that he values anxiety that all poets chorus talks about the human resonances throughout also to the In delivering is writing a experience at moments creature. The human creature pronouncements of the American his robust of great national crisis who has mastered thinking, Declaration of Independence, and the defence of the poem, then a or when faced with roofed his house against hail and French Declaration of the Rights of role of the poet, crisis in society the spectacle of great rain, and worked out laws for Man. Heaney quoted a injustice.” living together.” “These documents did, litany of famous becomes a One became mindful undoubtedly, lay the foundation poets and writers crisis and of the present economic The fight against tyranny for the moral consensus,” he from the Irish, hardships being faced “But equally and more said, “and they articulate the Russian, Polish, literary problem in Ireland and around immediately,” he added, “there basic rights which are appealed Hungarian, too. Is the role the world, as well as the is to be heard in the articles to by those who hunger and Czech, of the poet tragedy of wars in Syria of the UN declaration echoes thirst after justice. They provide Romanian and and the ongoing threat a defensible of war in other parts one in such a of the Middle East and across North Africa. Marilyn Rivkin, Mr Justice Nicholas Kearns (President of the High Court), Ken Murphy time?” Heaney spoke about (director general, Law Society of Ireland), Auden’s friend, the David Rivkin (secretary general, IBA) and poet Stephen Spender, who, in Eleanor Kearns the 1930s, wrote: “The pressure of public life upon the private,
Malgorzata Kozuch (vice-president, Bar Council of Poland) and James MacGuill (past-president, Law Society of Ireland) Law Society Gazette www.gazette.ie November 2012 analysis 13
David Nolan SC (chairman, Bar Council of Ireland), Laurel Bellows (president, IBA President Akira Kawamura meets Nobel Laureate Seamus Heaney with American Bar Association) and Mr Justice Garrett Sheehan (High Court, Ireland) Donald Binchy (president, Law Society of Ireland) the sense of immediate history as The Hungarian poet, Miklós iba conference host committee – dublin 2012 an aggressor against private man Radnóti, who died in the becomes evident and prevalent in Holocaust, used the voice of Chair: Michael Greene (A&L Norville Connolly (Law Society times of crisis.” And quoting from the biblical prophet Naum in Goodbody). of NI), Mary Rose Gearty (Law Samuel Hynes’s critical essay on his Eighth Eclogue to talk to his Vice-chairs: John Buckley Library), Geraldine Kelly (DSBA), Spender, he added: “External events, people at the moment of greatest (Beauchamps Solicitors) and Ken Murphy (Law Society), David if they are dire enough – a war or terror. “It’s a majestic voice,” said Geraldine Clarke (Gleeson McGrath O’Donnell (Mason Hayes & Curran), the collapse of a society – challenge Heaney, “and one that displays Baldwin). Paul O’Higgins SC (Bar Council), the value of private acts and put the by its sentiments – but also by its Steering group: Donald Binchy (Law Paul Sreenan SC (Law Library), and personal life to the test.” language and imagery. The staff, Society), Jerry Carroll (Bar Council), Laurence K Shields (LK Shields). Heaney then interjected: “But for example, is an image of being where the private man is a poet, upright and supported physically, and the private act that he values but establishes a refusal to let individual spirit and the dignity of has been a rare privilege.” is writing a poem, then a crisis in human dignity be abased, and the individual human being, they Two members of the enthralled society becomes a crisis and literary it implies the need for human still address themselves to matters audience were in full agreement problem too. Is the role of the poet solidarity to be maintained. of public concern; to the res publica; with his sentiments. Richard a defensible one in such a time?” he “The poem begins a category to the cruelty of regimes and the Keen, chairman of the Faculty of enquired. “And, if so, what sort of of writing that has gained painful oppression of nations and peoples; Advocates of Scotland, remarked poem should he write?” and necessary prominence in the and their authors would agree to to Ken Murphy afterwards: “In any Quoting the poet and Nobel 20th century and which is now a greater or lesser extent with the other country, the guest speaker Laureate Czeslaw Milosz, he generally known as the ‘literature attitude implicit in those words of would have been some clapped-out answered the question as follows: of witness’ – a genre which admits Milosz: ‘What is poetry that does politician, but you have given us a “What is poetry if it does not save those works I mentioned earlier: not save nations or people?’” genius!” nations or people? A connivance The Ballad of Reading Gaol, First Perhaps Dr Hans-Jurgen Hellwig with official lies; the song of World War poetry, Solzhenitsyn’s Rare privilege summed it up best. The head of drunkards whose throats are about One Day in the Life of Ivan Seamus Heaney had much more the German Bar’s delegation and to be cut. Denisovich, Dr Zhivago etc, and to say about poetry, human a former president of the CCBE “The challenge here is delivered everybody can name their own. dignity and the rights of man who has been attending IBA events first and foremost to the poet “All of these were written – all of it inspiring and thought- for decades, commented: “Of all himself and is all the more sombre to protest and protect justice provoking. As director general the events I have attended at IBA because it realises an awareness of and rights. Nevertheless, when Ken Murphy said in his closing conferences, this was the high poetry’s frailty,” Heaney explained. their theme is the survival of the remarks to the audience: “This watermark.” G
Jan Loorbach (president, William T Robinson (past Netherlands Bar) Margery Nicoll (vice-chair, Michael Holcroft Chief Justice Susan president, American Bar and Jonathan Temm Bar Issues Commission) and (president, Law Institute Denham and Charles Association) and Jan (President of New Catherine Gale (president, of Victoria) and his wife Plant (chairman, Solicitors Loorbach (president, Zealand Law Society) Law Council of Australia) Terre Regulatory Authority) Netherlands Bar) 14 human rights watch Law Society Gazette www.gazette.ie November 2012
court’s jurisprudence on sexual orientation evolves
For the first time, the European Court of Human Rights has upheld a complaint related to sexual orientation under article 3 of the ECHR. Sarah McDonald examines the judgment
n 9 October 2012, the breach of article 14 on the grounds of in social activity. He had no physical European Court of Human discriminatory treatment. exercise and was only allowed out of ORights published its Chamber Under articles 43 and 44 of the the cell to see his lawyer or attend judgment in the case of X v Turkey convention, this Chamber judgment hearings. The applicant complained (application no 24626/09). The court is not final. During the three-month that the cell in which he was placed unanimously held that there had been period following the delivery of the was used for violent inmates who a violation of article 3 (prohibition judgment, any party may request needed solitary confinement and Sarah McDonald of inhuman or degrading treatment) that the case be referred to the grand requested that he be moved to a is the Law Society’s of the European Convention on Human Chamber of the court. If such a request standard cell and treated in an equal human rights Rights and, by six votes to one, that is made, a panel of five judges will way to all other prisoners. executive there had been a violation of article consider whether the case deserves After a number of unsuccessful 14 (prohibition of discrimination) further examination. In that event, requests made to the public in conjunction with article 3. This the Grand Chamber will hear the prosecutor’s office and the post- judgment is particularly important, case and deliver the final judgment. sentencing judge, where Mr X because it is the first time in the history If the referral request is refused, the argued that his solitary confinement of the court’s jurisprudence that it Chamber judgment will become final had resulted in a deterioration of has upheld a complaint related to on that day. his mental and physical health, the sexual orientation under applicant was ultimately transferred article 3 of the European Midnight express to a psychiatric hospital for his mental Convention on Human “The applicant The applicant is a state to be assessed. He was there Rights. Commentators had not Turkish national, born diagnosed as being depressive and are viewing the judgment in 1989, and lives in remained for about one month in as a critical development been placed Izmir, Turkey. He is hospital before returning to prison. in the evolvement of the in solitary currently serving prison On returning to prison, another court’s jurisprudence on sentences for a range of homosexual inmate was placed in the sexual orientation. confinement for offences related to fraud. same cell as the applicant for about The case concerned his protection, In 2008, the applicant three months. During that period, a homosexual prisoner was remanded in pre- both the applicant and the fellow who, after complaining but rather on trial detention in the inmate filed a complaint against a about acts of bullying and the basis of Buca remand prison warder for homophobic conduct, intimidation by his fellow his sexual (Izmir). The applicant including insults and physical attacks. inmates, was placed in was originally placed The applicant was subsequently solitary confinement for orientation” in a shared cell with deprived again of any contact with over eight months. heterosexual prisoners. other inmates, and he withdrew his The court found that Following intimidation complaint. these detention conditions had caused and bullying by his fellow inmates, This situation ended in February the applicant both mental and physical he asked the prison administration, 2010, when the applicant was suffering, together with a feeling that for safety reasons, to transfer him to a transferred to the remand prison of he had been stripped of his dignity, shared cell with homosexual prisoners. Eskisehir, where he was placed with and therefore took the view that this He was immediately placed in an three other inmates in a standard cell represented ‘inhuman or degrading individual cell. where he enjoyed the rights usually treatment’ in breach of article 3 of According to the applicant, the granted to convicted prisoners. the convention. The court further cell in which he was placed was seven found that the applicant had not been square metres in size, furnished with Judgment day placed in solitary confinement for his a bed and a toilet but no washbasin, In relation to article 3, the court protection, but rather on the basis of very poorly lit and very dirty. He was observed that the applicant had stayed his sexual orientation. Therefore, the segregated and deprived of any contact in solitary confinement for more court concluded that there had been a with other inmates and of participation than eight months, in a cell that had Law Society Gazette www.gazette.ie November 2012 human rights watch 15 court’s jurisprudence on sexual orientation evolves
“The authorities did not dispute the fact that it a living space not exceeding half found that the applicant had been taken by the prison a complaint of the surface area. The cell had deprived of any domestic remedy authorities indicated was poorly lit, related to sexual been fitted with a bed and toilet in respect of his complaint that they had not very dirty and orientation but had no washbasin. The court concerning the conditions of performed a proper under article 3 further noted that the authorities his detention, and furthermore assessment of the visited by rats” of the European did not dispute the fact that it was that he had not been held in risk to the applicant’s Convention on poorly lit, very dirty and visited conditions that were appropriate safety. Because of the applicant’s Human Rights. It also indicates by rats. It also observed that the or respectful to his dignity. The sexual orientation, the prison that when prison authorities cell was intended for inmates conditions the applicant had to authorities had simply believed try to protect a prisoner who had been placed in solitary endure during his detention in that he risked serious bodily harm. from harassment by fellow confinement for disciplinary solitary confinement had caused The court concluded that the prisoners, measures taken reasons. While in that cell, the him both physical and mental main reason for the applicant’s should be proportionate in the court made reference to the fact suffering. It had also caused a total exclusion from prison aim of protection. As found that the applicant had no contact strong feeling of being stripped life was his homosexuality. by the court, a proper risk with other prisoners, engaged of his dignity. Those conditions, As a result, he had sustained assessment should take place. in no social activity, and had no together with the lack of an discrimination on the grounds The judgment also outlines access to outdoor exercise. The effective remedy, constituted of sexual orientation, and there that there are still prejudicial court observed that certain aspects ‘inhuman or degrading treatment’ had therefore been a violation attitudes existing among some of those conditions were stricter and therefore there was a breach of article 14 in conjunction with state authorities in Turkey – but than those applied to prisoners of the applicant’s rights under article 3. certainly not only in Turkey – serving life sentences in Turkey. article 3. The court also held (under relating to sexual orientation. The court acknowledged that In relation to article 14 taken article 41 – just satisfaction) that As noted by Dr Paul Johnson, the prison authorities had been together with article 3, the court Turkey was to pay the applicant sociologist at the University of concerned about the risk of Mr observed that, although the €18,000 in respect of non- York, in JURIST, “it is hoped X being harmed. However, even prison authorities had legitimate pecuniary damage and €4,000 in that this [judgment] is the first if such safety measures had been concerns about potential threats respect of costs and expenses. step in an evolution of the necessary, it held that it was to the applicant’s integrity, these court’s jurisprudence that will not sufficient to justify a total threats were not sufficient to The verdict progressively recognise how the exclusion from the shared areas of justify or warrant the measure of This judgment is important widespread social discrimination the prison. total exclusion from the prison because it is the first time experienced by homosexuals In noting that his complaints community. On the contrary, in the history of the court’s underpins a range of inhuman had been unsuccessful, the court the court found that the actions jurisprudence that it has upheld and degrading treatment.” G 16 viewpoint Law Society Gazette www.gazette.ie November 2012
proposed amendment is far from child’s play
In response to Geoffrey Shannon’s call for a ‘yes’ vote in the October Gazette, Malachy Steenson argues that the proposal seeks to alter the balance of justice by penalising parents for what they might or might not sometime do
n 10 November, Irish parents while having due regard and others, the HSE was involved citizens will be asked to vote for the natural and imprescriptible and aware of what was going on for Oto change the Constitution, rights of the child. years – yet they failed to act. It was the fundamental law of the State, The various legislative acts not the lack of specific constitutional in order to incorporate the vague protecting children, backed up by protection for children above all notion of the ‘rights of the child’. article 42, are sufficient to ensure other citizens that allowed these Instead of seeing children as equal that those children who are abused cases to continue, but the inaction of Malachy Steenson citizens with the rest of society, or neglected are taken into care a dysfunctional, unaccountable care is a partner in the proposed amendment would on foot of care orders. It should system that is more concerned about Canning Landy set them apart with extra rights. be made clear that, in advocating budgets, careers and protecting itself & Co and a The amendment is a ‘no’ vote to this than it is about children. criminologist living designed to place the amendment, we are Much commentary has revolved and working in the State as the decider “Public law not saying that care around all of these reports, and north inner city of what is in the best childcare orders should not be arguments are made that the reason of Dublin. He is a interest of the child proceedings are made in cases where for this amendment is to prevent this well-known left- – not the parents or they are needed. happening again. This ignores that wing community family. What in reality the only area fact that those primarily responsible activist and a is needed at this time of law in this Surrounding climate for placing our children in these regular contributor is support for families, It is impossible to hellholes were agents of the State to broadcast and not legislation or country where debate or vote on itself – a State that continues to print media in increased pressure rumour, suspicion this amendment permit such abuses in the institutions relation to matters that could lead to the without taking it now controls. of social justice, break-up of the family. and innuendo the surrounding There are currently care crime and the Looking back at are treated as climate into account. applications in district courts all over economy the 90 years since Following the the country, where the HSE seeks to the foundation of fact. Hearsay Ryan Report into take children into care. In some of the State, can we evidence is institutional care, these cases, children are undoubtedly say that we trust this great effort was made being abused – but in many cases, it Government or the permitted, and the by the establishment is questionable whether this is true State in anything same evidence to say that these or not. they have done? We appearing month issues were historical, have seen inquiry yet the recent report Hearsay evidence after inquiry, tribunal after month in into St Patrick’s Public law childcare proceedings are after tribunal – all of reports becomes Institution, to which the only area of law in this country which goes to show some politicians where rumour, suspicion and that the political the truth” expressed surprise, innuendo are treated as fact. Hearsay and establishment followed on from the evidence is permitted, and the same class have betrayed the trust of the Prison Chaplains’ Report of two years evidence appearing month after people. Bearing that in mind, would ago. And numerous other reports month in reports becomes the truth. you trust them to rear your children? over the years, beginning with the Parents are treated as if they are The current Constitutional Whitaker Report in 1985, show quite criminals, and they often don’t know position, as set out in article 42.5, clearly how the State treats the what they are to be accused of until permits the State, in exceptional children it has already taken into they walk into court. Parents are circumstances, to intervene in care on foot of court orders. only allowed to read the reports the family where the parents have Cases like Kilkenny, Roscommon, that are to be submitted to the court failed in their duty towards their and so on, are being used by in the presence of their solicitor. children and, by appropriate means, those on the ‘yes’ side to push this While the HSE pays its own costs endeavour to supply the place of amendment. However, in these cases and those of the guardian ad litem, Law Society Gazette www.gazette.ie November 2012 viewpoint 17
it contests any application for it to destroy more families. costs by the parents. If the Current Supreme Court proposed amendment is parents qualify for legal aid, judge Adrian Hardiman said the Legal Aid Board (LAB) will in the Baby Ann case that the provide them with Constitution far from child’s play a solicitor. The fully “acknow- State provides the “It was not the ledges the parent(s) with a lack of specific natural and State-employed constitutional imprescriptible solicitor to rights of defend their protection for children”. rights against children above Former Supreme another State Court judge organisation. This all other citizens Hugh O’Flaherty is not a reflection, that allowed these has said that however, on there is no the many LAB cases to continue, need for this solicitors who but the inaction of referendum to do Trojan protect children, work in trying a dysfunctional, and Judge Ann circumstances. unaccountable Ryan, sitting in If this State the Children’s was seriously care system Court in Dublin concerned about that is more recently, said that children and what concerned about the passing of is happening in the amendment the care system, budgets, careers would not help then it would and protecting the children abolish the system currently in care of secret courts, itself than it is in the State. with the in camera about children” The proposed rule in care amendment seeks proceedings, and publish what to alter the balance of power is happening (redacting any and of justice by penalising identifying characteristics). The parents for what they might do Irish people would be stunned in the future by the insertion at what would be revealed. of the following at 2.1, where The in camera rule is now used parents “fail in their duty to to protect the State and its their children to such an extent institutions from public scrutiny, that the safety or welfare of any a 23-year-old mother, is court system, these cases will and not to protect the interests of their children is likely to be seeking justice: her daughter not see the light of day. of the child. Justice is required prejudicially affected”. was removed from her care I would urge readers to vote to be done in the open – except Again, this will be the only two years ago at the age of ‘no’ on Saturday 10 November, for children, it seems. body of law in Ireland where six months and placed for and thereafter put pressure opinion of something that adoption. The justification used on the State to reform the Abuse of powers may or may not happen in the was that Sam was in care herself current systems and ensure that It cannot be just or fair to future will be used as fact. It and had lived with around 12 this country is a safe place for grant more powers to a State is incredible that those before different foster families and children. And I believe that this that has continually abused the the criminal courts on murder was, therefore, psychologically can be done within the current powers already granted to it. charges are afforded more damaged and so incapable of legal framework – if we had the Already, we have a system that rights and have the rules of rearing her own child. She political courage and the will to is overloaded and dysfunctional evidence to assist them – yet a has also been told by social do it. and, most of all, unaccountable. system is being created where, workers that any future child It is a sad reality that, if Why would we, in all sanity, I would suggest, parents have she has will be taken off her this amendment is passed, allow the State to intervene more to lose than their mere at birth. There is no reason to the political class will dust off more? The State should fix the liberty: the liberty of their believe that similar cases will their hands – saying ‘job done; current system, which would child is what is at stake. not occur in this jurisdiction if what’s next?’ – and children will then show that it is caring and A British case is before this amendment is passed – but, continue to be ignored in this compassionate, before we allow the ECtHR currently. Sam, because of the secret in camera State. G 18 viewpoint Law Society Gazette www.gazette.ie November 2012
what’s the damage?
While media reports sometimes suggest otherwise, there is nothing especially novel about securing substantial damages in cases where there has been significant proven criminality, says Dara Robinson
e have grown sadly was specifically commented on by conviction, as a consequence of the accustomed to hearing that Ms Justice Irvine in her judgment, lower standard of proof required Wyet another fatal shooting echoing many previous observations in civil proceedings, there is no has taken place on our streets. On 9 by her colleagues in the past. obstacle to a complainant bringing a October 2012, a fresh slant on those civil action: in 2011, Dana Doherty awful stories emerged from the High Nothing novel was awarded €400,000 by Judge Court in Dublin, when Ms Justice While media reports suggested that Sean Ryan against her former dance Dara Robinson Mary Irvine awarded over €700,000 this was the first such case, there is, teacher Michael Quigley. This is a partner in in damages to Margaret Madden, in fact, nothing especially novel about was despite the fact that, in earlier the Dublin law widowed when her husband was securing substantial damages in cases criminal proceedings, juries had firm Sheehan & gunned down in a grudge shooting where there has been significant, failed twice to agree verdicts against Partners and a by a contract killer proven criminality. Quigley. member of the Law engaged by a Only a few months On both sides of the Atlantic, Society’s Criminal neighbour. “In the Madden ago, a Dublin woman, numerous cases, many of which have Law Committee Mrs Madden sued case, two of Ailish Smith, waived settled, have been brought against three men, and the her anonymity to former members of the clergy, estate of a fourth, those convicted bring civil proceedings regardless of whether criminal all of whom had of murder entered for damages for proceedings have been brought or been prosecuted and sexual assault against have succeeded. convicted for offences full defences, but her father, Gerard arising from the were eventually Smith, who had been Criminal and civil wrongs shooting. The three convicted and jailed As a matter of principle, most, if were still serving estopped from in 2006 for offences not all, assaults of a criminal nature life for murder, and continuing with against her, securing a constitute both criminal and civil the convictions had those defences, judgment for €375,000 wrongs. Before the reader sharpens been affirmed by the from Mr Justice de up his or her metaphorical pick and Court of Criminal on the basis that Valera. shovel and sets out to mine this Appeal. The action the weight of the Bearing in mind the potentially rich vein of litigation, the for damages – for, lesser burden of proof questions as to whether any given among other things, evidence had in civil proceedings, case should be the subject of either assault, battery and resulted in their being ‘on the balance or both types of proceedings – and, conspiracy – included of probabilities’ rather more importantly, why – must be claims for loss of convictions to the the higher standard of considered. The obvious issue that future earnings by the required criminal ‘beyond a reasonable emerges at once is that of winning deceased, and nervous doubt’ in criminal more than a Pyrrhic victory in the shock. standard” cases, a criminal trial civil courtroom – actually recovering On finding for the resulting in conviction the award. plaintiff in the conspiracy aspect, opens the door in a big way to success Clearly, in many instances of civil Irvine J noted that it “would be a in a subsequent damages action. litigation, where the defendant, travesty of justice if a person who In fact, in the Madden case, two of or one of them, is an insurance conspired to injure would not be those convicted of murder entered company, corporate entity, or liable in the civil courts”. The award full defences, but were eventually institution, the successful litigant included €150,000 for ‘nervous estopped from continuing with those and his advisers will be confident shock’, believed to one of the highest defences on the basis that the weight that any awards of damages and costs such awards in this jurisdiction. of the evidence had resulted in their respectively will be met by the other It is also notable that the total convictions to the required criminal side. Much court time is also taken award greatly exceeds the statutory standard and that the convictions had up by actions taken on the basis of amount – just over €25,000 – that been upheld on appeal. alleged misbehaviour by citizens, is payable under the Civil Liability But even where the DPP declines where a second, monied defendant Act 1961, a feature of the case that to prosecute or fails to secure a (an employer being the obvious Law Society Gazette www.gazette.ie November 2012 viewpoint 19 what’s the damage?
“The obvious issue that emerges at once is that of John V Kelly of Callan Tansey reads a statement on behalf of his client, Mrs Margaret Madden (left) winning more than a Pyrrhic example) is also being sued on what they could from family, By contrast, the own cases or, the basis of vicarious liability friends and the Credit Union, aforementioned victory in the alternatively, rely for the deeds or misdeeds of its none of whom can be made Ms Doherty, civil courtroom on a legal team employee. vicariously liable in subsequent according to that will take the But radically different civil proceedings. There is then media reports, is – actually case on in the considerations apply when the no realistic prospect of bringing now engaged in recovering the expectation, or defendant is a citizen, without a home a subsequent civil claim, round two of her perhaps hope, large corporation as the second, to the point of recovering the action, seeking to award” that their fees will and realistic, defendant. In such award, against an impecunious, set aside property ultimately be paid cases, advisers will be thinking a perhaps unemployed, defendant. transfers made a number of years on a successful outcome for their long game – in reality, and almost prior to her successful action, client. regardless of the attractiveness Men of property whereby Mr Quigley transferred So, while the Madden case is and merits of the case, what What seems, therefore, to have a house and a site to his wife, in undoubtedly of interest and not are the prospects of actually set Mrs Madden’s case apart from order to secure her award. The without value as a precedent for collecting the winnings? It the rest was the fact that her case is pending. a number of reasons as set out will be well known to criminal husband’s killers were, or seem Another issue that is likely to above, it is unlikely to result in a practitioners that, these days, to have been, men of property operate as a deterrent to similar flood of like actions. More than many persons accused of a wide in various ways. It appears, actions is the almost complete anything, perhaps, it highlights variety of assaults, including furthermore, that her solicitor, unavailability of State-funded the lack of a properly funded sexual assaults, produce as part of John V Kelly of Callan Tansey, assistance for plaintiffs in such State system of compensation for their mitigation in a guilty plea to was sufficiently possessed of cases. Although civil legal aid is persons whose lives are shattered a criminal charge a sum of money foresight to research the lands available as a matter of principle, by criminal misconduct. Mrs described, perfectly properly, owned by the defendants and the combination of a tightly Madden was obliged to engage as “a token of remorse”, and to include in the proceedings controlled and very stringent diligent lawyers to fight her “without prejudice to the injured applications for injunctions to means test, and the fact that the corner for over a decade to party’s rights at civil law”. freeze certain of the assets so system is operated by the Legal secure compensation that many But all the parties understand that they would subsequently be Aid Board, which is effectively people might think was her that, in most cases, that is the available to satisfy a judgment swamped by the tide of family entitlement as of right. As to that full depth of the pocket of the in a case that carried a high law work, means that, in effect, issue, there is little evidence that accused, having scraped together probability of success. plaintiffs must either fund their change is at hand. G 20 viewpoint Law Society Gazette www.gazette.ie November 2012
sentencing council would enhance consistency
While sentencing should not be based on the public’s reaction to any particular case, it is vital that there is public confidence in the justice system. Lessons can be learned from Britain, argues Liam Herrick
oncern is often voiced in the analysis and research on sentencing; sentencing, the impact of sentencing media and in public discourse and work to improve public decisions on victims of offences, the Cabout a perceived problem of confidence in sentencing”. cost of different sentences and their inconsistency in sentencing – and, in relative effectiveness particular, a perceived problem with Setting guidelines in preventing re- unduly lenient sentences for some The main work of the “Low levels of offending, and so on. serious crimes. council is in developing knowledge about A draft guideline and Liam Herrick is While sentencing should not be guidelines for how the criminal consultation paper are executive director founded on public reaction to any sentencing in particular published in a variety of the Irish Penal particular case, as refracted through areas of crime policy. justice system of formats, including Reform Trust the media, it is vital that there is public The council’s aims in works contribute a consultation paper confidence in the justice system. How drafting sentencing aimed at the public and can this be best achieved without guidelines include to public opinion another version aimed resorting to knee-jerk responses such not only promoting a that sentencing is at legal professionals as mandatory sentencing (arguably a consistent approach and interest groups. key factor in the dramatic increase in to sentencing, but also lenient” These are promoted Ireland’s prison population over the improving the wider widely through last decade)? public understanding of the process proactive media work, and the council To address this question, Mr Justice involved in sentencing offenders. In reports high numbers of responses Colman Treacy, of the Sentencing the words of Judge Treacy: “We want from across the board. A resource Council for England and Wales, to demystify sentencing and get the assessment of the likely impact of gave the IPRT’s annual lecture on public to understand what we are the guidelines on provision of prison sentencing guidelines and the work doing in their name and why.” places, probation, and youth justice of the council on 20 September in Initial draft guidelines are produced services is also produced. Kilmainham Gaol. An independent, based on research that can include Following the consultation process, non-departmental public body of interviews with victims and members the council publishes a definitive the British Ministry of Justice, the of the public, along with other guideline with an implementation council’s stated aims are to “promote stakeholders. In its drafting of the period of around 12 weeks. The 2009 a clear, fair and consistent approach guidelines, the council is required by act states that judges “must follow” to sentencing, primarily by issuing the 2009 act to consider factors such the guidelines, except when it is in the sentencing guidelines; produce as the need to promote consistency in interests of justice not to do so. Judges are obliged to give their reasons for departing from the guideline. sentence structure
The Sentencing Council has its origins in concern role on the council. A further four advisers include a Judicial practice about the growth of the British prison population, social scientist, a former chief executive of a crime The Crown Court Sentencing which led to an investigation in June 2007 into reduction and rehabilitation agency, a criminologist Survey, which requires all judges in options for improving the management of penal with expertise in communications and the media, the Crown Court in England and capacity and “greater transparency or predictability” and a senior lecturer in criminology with a special Wales to complete a short form every in the effect of sentencing decisions on penal interest in human judgment and the psychology of time they pass sentence, informs the resources. decision making. council about the effectiveness of Established on 6 April 2010 by the Coroners and A small multidisciplinary team of 16 civil servants the guidelines in terms of achieving Justice Act 2009, the Sentencing Council is made make up the Office of the Sentencing Council and a consistent approach to sentencing. up of eight judicial members from across the judicial includes four policy advisers, two legal advisers, an Aggregated and anonymous spectrum and six non-judicial members drawn from economist, two social researchers, three statisticians information from the survey is the fields of criminology, policing, probation, victims’ and a communications team. The council’s annual published and helps improve public issues and the legal professions, who play an equal budget is Stg£1.54 million. confidence that judges are sentencing rationally. Law Society Gazette www.gazette.ie November 2012 viewpoint 21 sentencing council would enhance consistency
“In Ireland, the Government has often rushed legislation through without Socrates: they really done one over on him It is likely any such than two years These activities include ‘You be However, in the absence of that the process after being signed the Judge’, run by the Ministry of data and information about what of completing examination into law due to the Justice, where, given all the details current sentencing practice is, the survey has a of resource need to upgrade of a particular case, participants policymaking around sentencing positive effect too, implications or the courts’ ICT discovered that the sentences reform in Ireland remains as it leads judges system; meanwhile, they would have handed down hindered. The Irish Sentencing to systematically effectiveness in thousands are were either the same as or more Information System initiative go through a tackling crime” imprisoned every lenient than the sentences judges of the Courts Service was a detailed list of all year at huge social would have passed. Also, in March welcome first step in this regard, the relevant factors and economic 2011, the council hosted its first but investment is necessary to relating to the offence and the cost. Another example is the ever sentencing competition expand the initial pilot projects offender, including age and/or lack presumptive sentencing for for aspiring law professionals. under that system. Only with of maturity where it affects the drugs offences, brought in by the The council also has a strategy such information available can responsibility of the offender, or Criminal Justice Act 1999, which is of proactive engagement with we begin to address any concerns whether the offender is the sole now recognised as having played a the media and works with relating to the consistency, or primary carer for dependent leading role in prison population relevant organisations to increase transparency and predictability of relatives. growth, with questionable understanding of sentencing sentencing practice in Ireland. G Another critical aspect of the effectiveness in terms of reducing among victims and witnesses. work of the Sentencing Council is drugs-related crime. that it can be asked by government Absence of data Look it up to assess the impact of policy and Building public confidence In the most recent Law Reform legislative proposals – for example, The council’s role in improving Commission report on mandatory • Mr Justice Treacy’s lecture can the resource impact of increasing public confidence in sentencing is sentencing, the commission be accessed at www.iprt.ie/ the length of a suspended also crucial. Surveys have found outlined its preference for the contents/2423 sentence order from 12 months that low levels of knowledge about proposed Judicial Council to • The IPRT launched a to two years. It also reports how the criminal justice system assume the role of the setting of comprehensive position paper on the relative effectiveness of works contribute to public opinion guiding principles for members of on reform of parole, temporary various sentences in preventing that sentencing is lenient (fuelled, the judiciary. This aligns with the release and remission on reoffending. of course, by media fighting IPRT’s position that mandatory 22 October (www.iprt.ie/ This is in contrast with for its share in the market). and presumptive sentences should contents/2443 experience in Ireland, where the In response, the Sentencing be removed from the statute • Irish Penal Reform Trust: www. Government has often rushed Council has created a number of book in Ireland and that public iprt.ie legislation through without any initiatives to give members of the confidence in judges and the law • Irish Sentencing Information such examination of resource public an insight into “the multi- – which is, after all, carried out System: www.irishsentencing.ie/ implications or effectiveness in dimensional nature of sentencing, in their name – should instead be • Sentencing Council for tackling crime. Take, for example, rather than the often very one- nurtured through the introduction England and Wales: www. the Fines Act 2010, which still dimensional nature made out in of alternatives such as sentencing sentencingcouncil.org.uk awaits full implementation more the media reporting of crime”. guidelines. 22 cover story Law Society Gazette www.gazette.ie November 2012 shaky foundations? It appears that showing the presence of the classic symptoms is not as open-and-shut a case in proving shaken baby syndrome as was originally thought. So, asks Hilary Lennox, is the syndrome science or myth?
haken baby syndrome (SBS) to show in the SBS medical theory, so much Hilary C Lennox is arises when an infant dies of so that the medical world is becoming a barrister who has sudden brain bleeding and divided, raising the question: is it science or been practising for swelling with no evidence of is it myth? five years in Dublin. external injury. The theory is She was selected by that a caregiver, parent or au Monkey see. monkey do the Bar Council pair shakes an infant so hard that it causes The science of SBS originated from an to spend three S such symptoms, which no other method experiment undertaken in the 1960s. A months with the or accident could cause. The neurosurgeon, Ayub Ommaya, Innocence Project symptoms include subdural decided to determine how much in the University haematoma (bleeding in the “The research acceleration it would take to of Wisconsin Law brain), retinal haemorrhage cause a head injury. Ommaya School. Special (abnormal bleeding of the base for the SBS strapped 50 rhesus monkeys thanks to Keith blood vessels in the retina) hypothesis is onto chairs, leaving their heads A Findley, law and cerebral oedema (brain simply unable unsupported. He then mounted professor and swelling/accumulation of the chairs onto a long track and president of the excessive fluid in the substance to support the crashed the monkeys into a wall Innocence Network, of the brain). Usually there are conclusion that at high speed. The results of for his help with no signs of external trauma. such an experiment revealed 15 this article From this triad of symptoms, the classic triad monkeys developing cerebral doctors infer child abuse of symptoms haemorrhages, with some also caused by intentional shaking. incurring brain stem or cervical Caregivers, parents and au is caused by cord injuries. pairs have been convicted and violent shaking In the 1980s, two incarcerated for child abuse paediatricians used the results with little other evidence of and only violent of the above experiment and abuse save for the triad of shaking” concluded that unexplained symptoms. Sometimes no bleeding in the brain was motive or history of abuse is necessary. possible without directly banging the head The medical evidence alone could prove all area and without neck injury. This evidence elements of the crime: the medical evidence was given a name, and the hypothesis of speaks for itself. Frighteningly, the medical ‘shaken-baby syndrome’ was born. expert testimony alone, to the effect that Because unexplained bleeding was possible nothing besides shaking could have caused without direct impact, they hypothesised, then the infant’s unexplained brain bleeding, has it must be shaking that causes the injuries; been enough. However, cracks are beginning how else would a child receive these types of Law Society Gazette www.gazette.ie November 2012 cover story 23
Fast facts
> ‘Shaken baby syndrome’ arises when an infant dies of sudden brain bleeding and swelling with no evidence of external injury > caregivers, parents and au pairs have been convicted and incarcerated>> for child abuse with little other evidence of abuse save for the triad of symptoms > However, medical experts aren’t in agreement about conflicting data and research, and opinion is growing that numerous natural and accidental causes can cause every element of the classic symptoms 24 cover story Law Society Gazette www.gazette.ie November 2012 injuries and die? A child doesn’t just die, the argument went: there is blood and swelling on the brain, and the blood vessels in the eyes are bleeding, and there are no external symptoms of trauma. They are pretty horrific symptoms for anyone to imagine, particularly on a little child only a few months old. Therefore, it must be the result of abusive shaking – an exhausted, frustrated caregiver or young au pair angrily shaking a baby to stop it crying. Armed with this very plausible hypothesis and a medical expert who will testify that shaking can generate the same force as throwing an infant from a second-story window or being hit by a car at 30mph, prosecutors obtained convictions for shaken baby syndrome all over the world.
Miscarriage of justice Louise Woodward Audrey Edmunds One of the most famous of these cases, on both sides of the Atlantic, was the 1997 legal team filed post-conviction motions Edmunds was sentenced to 18 years in conviction of 19-year-old British au pair and, on 10 November, Judge Hiller B Zobel prison in Wisconsin. Louise Woodward, who had been caring reduced the conviction to involuntary After 11 years, Edmunds had a hearing for two boys in Massachusetts. Woodward manslaughter, stating that “the circumstances to determine whether she should have a was deemed the “most notorious criminal in which the defendant acted were new trial. Dr Robert Huntington III, a convicted in Massachusetts” by Boston law characterised by confusion, inexperience, prosecution witness in her first trial, took magazine Exhibit A ten years after the death frustration, immaturity and some anger, the stand – but this time for the defence. of one of the boys in her care. Matthew but not malice in the legal sense supporting Keith Findley, president of the Innocence Eappen had fallen into a coma, dying on 9 a conviction for second-degree murder”, Network and Edmunds’ lawyer, asked February 1997 from a fractured skull and adding “I am morally certain that allowing whether Huntington was comfortable subdural haematoma (bleeding in the brain). this defendant on this evidence to remain with the testimony he gave in 1996. His Eappen was eight months old. There was convicted of second-degree response was: “No, sir; no I am a month-old injury or fracture to the wrist. murder would be a miscarriage not.” Huntington went on to Doctors at the hospital in Massachusetts of justice”. “If the medical explain that, in the years since observed retinal haemorrhages, Woodward’s sentence was community can’t Edmunds’ first trial, he had characteristic of shaken-baby syndrome. reduced to time served (279 observed a different child with Prosecutors claimed that Woodward days). She was freed and agree about all subdural and retinal bleeding admitted to shaking the infant, dropping returned to England. the conflicting who had been lucid for some him on the floor and tossing him on a bed. time between her brain injury The prosecutors’ theory was that Woodward Last person in time data and and her collapse. This resulted became so frustrated with the infant that The Wisconsin Innocence research, how is in Huntington investigating she began shaking him violently to stop his Project took on a landmark the science of SBS more uncontrollable crying. Medical experts for SBS case. Audrey Edmunds, a jury supposed carefully. the prosecution testified that the infant hit a pillar of society who ran a to reach a Huntington is now of the the floor with force equivalent to a fall from small playschool and had three opinion that a “lucid interval a second-story window. The injuries from children of her own, was found conclusion is a distinct, discomforting the fall and the shaking allegedly caused guilty of first-degree reckless that’s beyond but real possibility”. He said Matthew Eappen’s death. homicide based on SBS. In a reasonable he could no longer precisely The lead defence counsel at Woodward’s October 1995, seven-month-old time the injury that caused the trial, and the architect of her medical and Natalie Beard was dropped off doubt?” child’s death. Findley asked forensic defence, was Barry Scheck, co- at Edmunds’ day-care centre, as Huntington how long the child founder of the Innocence Project. He argued was their routine. Natalie was inconsolable may have appeared relatively normal – fussy, that Woodward’s alleged mishandling of and wouldn’t take her bottle. She became but not obviously in crisis. His response was the infant did not cause his death, and that unresponsive; Edmunds’ first thought was “I’m sorry, I just don’t know.” Huntington a pre-existing medical condition may have that the child was choking on her bottle, and also testified that, while at trial he had been killed the infant. Scheck logically asked for she frantically called 911. certain the child had to have been injured by DNA tests on the child in an attempt to find The doctors found the classic triad of shaking, he was now no longer certain that genetic disorders that could have affected his symptoms, and so determined SBS. Edmunds shaking was involved at all. He noted that bone strength, development or caused brain was the last one with Natalie. The theory was the whole matter of SBS had become much haemorrhages. that, once you shake a baby to that extent, more uncertain, based on new research, than Woodward was found guilty of second- it would collapse, become unresponsive and it had been at the time of Edmunds’ trial. degree murder. She faced 15 years to life in slip into a coma almost immediately. Hence, The cracks in the medical science were prison under Massachusetts law. Woodward’s the last person in time was the perpetrator. beginning to widen and, at Edmunds’ appeal Law Society Gazette www.gazette.ie November 2012 cover story 25 hearing, five doctors joined Huntington shaking and only violent shaking. Based on The Wisconsin Innocence Project’s on the side of the defence. The Wisconsin extensive new study and research, he is now Keith Findley has said that, while we Court of Appeals ruled in January 2008 of the opinion that numerous natural and would all like a ‘gold standard’ that that the disagreement among the physicians accidental causes can cause every element of distinguishes quickly and accurately represented a shift in medical opinion and the triad; indeed, something as mundane as between abuse, accident and natural warranted a new trial: a jury would have to an ear infection can spread to the brain with causes, the medicine is uncertain and hear both sides. Six months later, prosecutors dire consequences. evolving, and the cases are complex. “No dropped the charges against Edmunds. A biomechanical experiment in 2005 one wants child abuse,” says Findley, demonstrated that forceful shaking could “but we should not be prosecuting and Tattered hypothesis severely injure or kill an infant. This is convicting people in shaken-baby cases So, is shaken baby syndrome a myth? It because the neck would be severely injured, right now, based on the triad of symptoms, appears that the presence of the classic triad not because of the subdural haematomas that without other evidence of abuse. If the of symptoms does not indicate an open- would also be caused by violent shaking. A medical community can’t agree about all and-shut case, as was originally thought. broken neck is rarely found in SBS cases. the conflicting data and research, how is a There are a myriad of causes for the triad of Furthermore, ‘shaking cervical spine injury’ jury supposed to reach a conclusion that’s symptoms, like genetic or birth disorders, can occur at much lower levels of head beyond a reasonable doubt?” G cot death, toxins or poisons – the list is velocity and acceleration than those reported long and could include as yet undiscovered for SBS. SBS symptoms, in their most acute causes. The fact of the lucid period, which form, are not usually caused by shaking alone. Look it up can be indeterminate in length, now takes Although shaking may be part of the process, the automatic blame away from the last it is more likely that such infants suffer blunt Cases: person with the child when they collapse. impact. • Commonwealth of Massachusetts v The Edmunds case, specifically, turned that Indeed, the SBS hypothesis has become Woodward 694 NE 2d 1277 (1998) theory into disarray. so tattered that the American Pediatric • State of Wisconsin v Audrey A Edmunds, Patrick Barnes, a paediatric neuro- Association, and most paediatricians Court of Appeals decision no 2007 AP radiologist at Stanford University, says that worldwide, no longer officially refer to it as 933, 31 January 2008 the research base for the SBS hypothesis is SBS; instead, shaken baby syndrome is now simply unable to support the conclusion he called ‘abusive head trauma’ (AHT) by most Literature: had been taught in medical school – that the – a more general term that avoids defining • Bandak, FA (2005), “Shaken baby classic triad of symptoms is caused by violent the precise mechanism of injury. syndrome: a biomechanics analysis of injury mechanisms”, Forensic Science Not even a theory innocence project International, 151(1), pp71–79. See Dr Norman Guthkelch (now 96 years old) www.ncbi.nlm.nih.gov/pubmed/15885948 The Innocence Project is a non-profit legal is one of the two paediatricians who used • Findlay, Keith et al (2012), “Shaken organisation committed to exonerating the results of the rhesus monkey test and is, baby syndrome, abusive head trauma wrongfully convicted people through the perhaps, the father of SBS. Not long ago, and actual innocence: getting it use of DNA evidence and to reforming the he said to an Innocence Project professor: right”, Houston Journal of Health Law criminal justice system to prevent future “It [SBS] is not a theory. It was merely a and Policy, April 2012, available at injustices. The project was founded in 1992 hypothesis, and so you have got to quit http://papers.ssrn.com/sol3/papers. by Barry Scheck and Peter Neufeld. calling it a theory, because it’s not even cfm?abstract_id=2048374 a theory.”
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Contact us at 1800 882 231 and mention “LAWSOC” for a 30-day trial. 26 profile Law Society Gazette www.gazette.ie November 2012 stop the
presses!One of the Britain’s foremost media commentators, Roy Greenslade, speaks to the Gazette about phone hacking, the Leveson Inquiry, the media invasion of privacy – and making mistakes. Colin Murphy rummages through his bins
newspaper journalist I know was once given the job of monitoring the garda radio frequency for possible stories. The newsroom had a radio tuned to the garda frequency; he was responsible for listening out for leads and then going to the scene of the crime. If he picked up the address of a victim, he would call to the house after the gardaí to Colin Murphy is A get some good quotes. a journalist and On one occasion, he arrived at the family home of a man radio documentary who had died in an accident. A woman answered the door. She maker in Dublin, showed no sign of upset. Immediately, he knew what had gone specialising in wrong: he had arrived before the gardaí. She hadn’t yet been social and cultural informed of the death of her husband. He mumbled something affairs. A selection about being at the wrong address and fled. of his work can Phone hacking is the current favourite example of dubious be found at www. journalistic practice, and provoked the Leveson Inquiry in colinmurphy.ie Britain (see panel). But, as Roy Greenslade pointed out in his lecture at the Law Society conference on privacy in September, phone hacking was not an aberration. Rather, it was “part of a pattern”, the culmination of (at least) a half century of practice by reporters of the “dark arts”. Those dark arts included stealing photographs from people’s homes, pretending to be a relative of a patient in order to get into a hospital, bribing police officers and, as Greenslade recalled in an interview with the Gazette, “making expenses up – another bit of illegality which we thought was a bit of fun”. end of the issue. I asked him if there were any Sick transit’s glorious Monday stories he regretted. He replied immediately As media commentator for The Guardian and journalism professor with two – from his time as editor of Robert at City University London, Greenslade has been intrigued – Maxwell’s Daily Mirror in the early 1990s. perhaps obsessed – by questions of journalistic ethics for decades. At the time, Prince Edward was dogged by And as a former Fleet Street editor, he has experience of the sharp rumours that he was gay. Early in Greenslade’s Law Society Gazette www.gazette.ie November 2012 profile 27 ALL PICS: MIRANDA DRISCOLL
Fast facts
> Roy Greenslade (65) is professor of journalism at City University London and media commentator for The Guardian > on the role of journalists: “We journalists are in the disclosure business. Inevitably … we do intrude into >>the privacy of individuals” > on tabloid editors: “Tabloid editors cast themselves as moral arbiters – the secular equivalent of the mutaween, Saudi Arabia’s religious police” > on stories he regrets: two stories based on what proved to be false allegations, while he was editor of the Daily Mirror > on getting it wrong: “You have to be swift to make people understand how you got it tenure, one of his reporters, acting on his “I really regret that one,” says Greenslade wrong” own initiative, approached the prince at a ruefully. The other one that he is repentant > on press regulation: “Thanks to the function in New York and asked him, “Are about is more serious, and he has written internet and social media, we are you gay?” He denied it. The Mirror duly ran about it for The Guardian (see ‘Look it up’ hurtling towards a future of unmediated a story headlined “Prince Edward: ‘I’m not panel). In 1990, the Mirror ran a weeklong media, where the only rules will be those gay’”. exposé on Arthur Scargill, who had led the enshrined in law” 28 profile Law Society Gazette www.gazette.ie November 2012
“Phone hacking was not an aberration. Rather, it was ‘part of a pattern’, the culmination miners’ strike of 1984-85. The Mirror alleged operations against the union and publish. They put written that Scargill had received funds for the strike its leaders.) of (at least) a questions to Scargill but, from Libya and that he had diverted them to Greenslade had inherited half century fearing an injunction, they pay off the mortgage on his house. the story from his predecessor didn’t specify the mortgage as editor, who had overseen a of practice by allegations. “That was an Churchill flies back to front prolonged investigation (during reporters of the ethically suspect decision,” The story was untrue. Scargill denied it, but which the sources were paid Greenslade wrote later, didn’t sue. Years later, the Mirror’s key source thousands of pounds for their ‘dark arts’” “breaking a time-honoured for the story was exposed as being unreliable. revelations) and was uneasy tradition in which people are Greenslade believes he had likely been acting about it, particularly as the Mirror was a given a chance to answer press allegations.” for MI5, the British security service, in a bid traditionally left-leaning newspaper and would He subsequently met Scargill and apologised to discredit Scargill and his National Union have been supportive of the miners. in person. “I regret that story greatly,” he says of Mineworkers. (MI5 was revealed to have But ITV’s Cook Report also had the story now. conducted extensive ‘counter-subversion’ and was going to air it. Greenslade decided to Greenslade’s decision to admit and account for his mistake in public was unusual. “In journalism, we claim the right to get it wrong roy of the rovers occasionally (though that right is not in the Roy Greenslade, a boyish 65-year-old, is His wife is from Falcarragh, Co Donegal, European Convention on Human Rights). It’s in Professor of Journalism at City University and they spend the summer there. He is a the nature of our work. So it’s incumbent on London and one of the Britain’s foremost media republican in both senses of the word, believing us to be completely transparent when we get commentators. that Britain should be a republic and that it wrong. You have to be swift to make people He joined a local newspaper out of school Ireland should be reunited. understand how you got it wrong.” and eventually rose to become managing In 2008, it emerged, in a book by Guardian editor of news at The Sunday Times and editor journalist Nick Davies, with whom Greenslade Freddie Star ate my hamster of the Daily Mirror. Since 1992 (with brief collaborated, that Greenslade had written The Prince Edward story illustrates interruption), he has been The Guardian’s media occasionally for An Phoblacht, under a a different ethical conundrum – what commentator, where he writes an influential pseudonym, while working at The Sunday constitutes ‘public interest’? Newspaper daily blog. Times. owners and editors claim the right to publish material that is in the public interest, even Law Society Gazette www.gazette.ie November 2012 profile 29
gotcha! The outcome, he suggests, will be to “recast the present form of self-regulation, Phone hacking is the process of secretly getting been editor of the News of the World. probably taking some of the advice of John access to someone else’s voicemail messages. Cameron duly established a judicial inquiry, Horgan”. (Horgan, the press ombudsman (This is easy to do if the person hasn’t set a tasking Lord Justice Brian Henry Leveson in Ireland, gave evidence to the Leveson pin number on their voicemail.) In July 2011, with inquiring into “the culture, practices Inquiry on the Irish system of independent after a steady drip of revelations about News and ethics of the press”. (A second part of regulation. See ‘Look it up’ panel.) of the World journalists hacking the phones of the inquiry, examining unlawful conduct at In any case, “Leveson’s recommendations celebrities, The Guardian revealed that the phone news organisations and the police, has been will only last five to ten years,” he judges. of murdered schoolgirl Milly Dowler had been deferred, pending the completion of criminal “Press regulation is moving towards being hacked. investigations.) irrelevant. On my blog, sometimes I’m The public outcry led to the closure by Rupert The inquiry has questioned Cameron and three irrelevant: people are simply talking to each Murdock of the News of the World and put British former prime ministers and provoked the resig- other. I’m just the medium.” Prime Minister David Cameron under pressure; nation of then commissioner of the Metropolitan Thanks to the internet and social media, his former aide, Andy Coulson, had previously Police Service, Sir Paul Stephenson. he says that we are hurtling towards a future of “unmediated media”, where “the only rules will be those enshrined in law”. The big problem then, he suggests, will involve when it is invasive of privacy, and claim that The courts, meanwhile, have not given information crossing legal boundaries, they are best placed to assert what is in the consistent guidance. They are tasked such as someone’s criminal history being public interest. (At its most elementary, they with balancing articles eight and ten of put online in a different jurisdiction. As equate the public interest with whatever the the European Convention on Human Rights I write, a Melbourne court has just ruled public is interested in.) (respectively, the right to that material about the man alleged to In his Law Society lecture, respect for private and have murdered Jill Meagher be removed Prof Greenslade cited a famous “The ‘super family life, and freedom of from the internet, though the judge has definition of “news”, referred to injunctions’ expression). acknowledged that the unregulated nature by broadcaster Jeremy Paxman “The ‘super injunctions’ of the internet may mean that such a ban at the Leveson Inquiry and also appeared to appeared to favour article 8, will prove futile. once posted in giant lettering favour article 8 but more recent decisions That poses a whole other series of in the newsroom of The Sun: of the European have favoured article 10. questions on the future of professional “News is something someone, The fact that members of journalism. Greenslade is not sanguine. somewhere, doesn’t want you Convention on the judiciary have made “The Guardian is losing more than to know – the rest is public Human Rights, contradictory rulings Stg£1 million per week. Print sales are relations.” suggests that there’s no hard- down and the website doesn’t generate “We journalists are in the but more recent and-fast definition of ‘public enough revenue to fund people like me.” disclosure business,” Greenslade decisions have interest’.” The Daily Mail website, meanwhile, is said. “Inevitably … we do Are the privacy invasions commercially successful because “it provides intrude into the privacy of favoured article of the tabloids perhaps the information that the vast majority of people individuals.” 10. The fact that necessary price we have want to read – on celebrity, sex and sport”. Identifying when that to pay for a robust press? “I’m massively concerned about the future intrusion is justified – when the judiciary “That’s a squalid argument,” of serious journalism,” he admits. That, it is in the public interest have made he responds. “It suggests though, is a debate for another day. G – is difficult because of the that the people who are the coincidence of “human contradictory victims of that tittle-tattle fallibility” and “commercial rulings suggests ought to be thrown to the greed”. Ordinary people will wolves in order that we Look it up give out about intrusions on that there’s no might have a serious press privacy and then go and buy hard-and-fast elsewhere.” · Evidence by Roy Greenslade and John the paper that has the sauciest definition of Leveson is due to make Horgan to the Leveson Inquiry: www. story. Newspaper proprietors recommendations as to a levesoninquiry.org.uk (search for will defend a story as being in public interest” new regulatory regime, but ‘Greenslade’ and ‘Horgan’) the public interest because they Greenslade is sceptical. “It’s · Greenslade’s reflections on Leveson in the know the public is interested, which means not Leveson’s decision – it’s a political current issue of the British Journalism they will sell more copies. “Tabloid editors decision. That’s the realpolitik.” Review: www.bjr.org.uk cast themselves as moral arbiters – the secular · Greenslade’s blog: www.guardian.co.uk/ equivalent of the mutaween, Saudi Arabia’s How do you solve a problem like Korea? media/greenslade religious police,” he said. “No politician at this stage of a government · His mea culpa for the Scargill story: http:// is ever going to legislate against the press. tiny.cc/greenslade Super Cally go ballistic, Celtic are atrocious David Cameron is already on the back · For an alternative take on privacy, listen to This mindset, Greenslade believes, led to foot – he’s running a coalition government Brian O’Connell’s radio documentary about the hacking scandal and to a “self-regulatory during a recession. If the government were the political blogger: Guido Fawkes, Our regime” in Britain that has been “noticeably to try to impose statutory control of the Man in Westminster: www.rte.ie/radio1/ light of touch and unable to grapple with the press, the press would turn against them and doconone. most heinous of privacy intrusions”. never come back.” 30 taxation of costs Law Society Gazette www.gazette.ie November 2012 The
priceis right In the second of two articles, new taxing master Declan O’Neill outlines some of the changes to the taxation of costs that are likely to be brought about by the Legal Services Regulation Bill
ractitioners are aware of the general • The amount of costs, provisions of the Legal Services Regulation • VAT thereon or the amount of likely costs, Bill, and I merely deal with some of its • The necessity for engaging witnesses, Declan O’Neill provisions in order to highlight any new • An undertaking not to engage an expert witness is one of the two features or departures from current law or without obtaining the likely cost involved, and the taxing masters practice. specific instructions of the client, appointed by the Firstly, given that the term ‘legal practitioner’, pursuant • The likelihood of increased costs arising, Government P to section 2 of the bill, means “a person who is a practising • Provision of notice thereof, to provide an solicitor or a practising barrister”, the definition of a ‘bill • An explanation of irrecoverable costs, and independent of costs’ under section 80 also appears to include any fee • The circumstances in which the client may be required adjudication of legal note prepared by a barrister. This has implications with to pay costs to another party. costs in dispute regard to the current practice, whereby barristers’ fees constitute part of the disbursements usually incurred Clearly the intention is that the client, in circumstances by solicitors in the course of conducting or defending of litigation, should be kept regularly informed of litigation. Effectively, barristers may be regarded as the costs being incurred and the likelihood of costs conducting litigation in conjunction with solicitors. The increasing. There is also provision for a ‘cooling-off relationship between solicitors and barristers, whereby it period’, which is entirely new and is mandatory, whereby is the responsibility of the solicitor to ensure payment of some period should be specified within which the counsel’s fees, may no longer be appropriate. client may consider whether or not to instruct the legal Section 90 of the bill amounts to a replacement of practitioner to continue with an action. some of the requirements under section 68 of the 1994 This obligation does not extend to the period beyond act. The ‘section 68 letter’ is replaced, whereby certain the date of service of notice of trial. Failure to comply specified and relatively detailed information must be with these obligations will result in the disallowance of provided to the client when the legal practitioner receives relevant costs under the provisions of section 97(5), unless instructions, or as soon as is practicable thereafter. the legal costs adjudicator decides that such disallowance Subsection 2 of section 90 sets out the information that would “create an injustice between the parties”. While it is obligatory on the legal practitioner to provide to the this latter provision is expressed as applying between “a client, including: legal practitioner and his or her client”, it will inevitably Law Society Gazette www.gazette.ie November 2012 taxation of costs 31
Fast facts
> the definition of a ‘bill of costs’ under section 80 also appears to include any fee note prepared by a barrister > In circumstances of litigation, the client should be kept regularly informed of the costs being incurred >>and the likelihood of costs increasing > a bill of costs that has been properly prepared and delivered to a client will not be amenable to adjudication after the expiry of six months from date of issue of the bill or three months from the date of price payment, whichever occurs first
“The relationship between solicitors and barristers, be argued that this provision consequences of such an as respects the provision of legal services in has implications for party and whereby it is the agreement being entered relation to the matter concerned, and no party taxations also. responsibility of into. There appear to be two other amount shall be chargeable in relation the solicitor to principal results: to those legal services, except to the extent Onerous obligations • Adjudication of the otherwise indicated in the agreement”. Accordingly, section 90 of the ensure payment costs between the legal However section 99 of the bill provides bill imposes onerous obligations of counsel’s fees, practitioner and client at subsection 1 thereof that a legal costs on the legal practitioner would not appear to be adjudicator may refer a question of law, on concerned. Legal practitioners may no longer be possible where a specified foot of an application for adjudication, to may consider it appropriate appropriate” figure for professional the High Court. Subsection 2 of section to enter into an agreement fees and other outlays are 99 makes it clear that the court has full with the client, as envisaged agreed. This would appear powers to adjudicate on costs agreements. It under section 91 of the bill, “concerning the to be the combined effect of subsections appears, therefore, that at all times a client amount, and the manner of payment, of all 1 and 3. In such circumstances, it seems will have an entitlement, even in the case of or part of the legal costs that are or may be that the legal costs adjudicator would a sum for costs having been stipulated in an payable by the client to the legal practitioner have no function in assessing the costs. agreement, to apply to the adjudicator and for legal services provided in relation to a Subsection 3 provides that “the agreement ultimately to the court for directions. matter”. shall constitute the entire agreement • Section 91(2) contains an important Subsections 2 and 3 outline the between the legal practitioner and the client provision, whereby the agreement may and Inns Court Legal Costs Accountants A day of CPD In a modern law practice, the ability to be able to communicate effectively with various audiences in a variety of different situations is essential. This suite of modules offers a broad range of the communications skills and approaches that have been honed from over 25 years experience in dealing with clients across all sectors in Ireland and internationally.
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1. All you need to know about legal costs – 1.5 hours 4. Effectively handling communications in a crisis – 1.5 hours Presentation by Sarah Hayes • Understanding the unique dynamic of crises • The current situation with regard to the taxation of legal costs • Staying focused on the key areas of decision making • Recent taxation decisons • Message development and communication skills • Future issues Project2_Layout 1 26/10/2012 09:06 Page 1 5. Competitively pitching the practice – 1.5 hours 2. Making powerful, persuasive presentations – 1.5 hours • Locating your competitive advantage and communicating • Engaging your audience it successfully • Ensuring that your information is accessible and understandable • Highlighting your differentiation and competitiveness • Delivering your key take away points successfully • Matching your service to real client needs
3. Dealing successfully with the media – 1.5 hours All communications courses will be run by Peter Finnegan, • Planning to use the media for your own purposes Managing Director, Communique International • Conducting successful interviews • How to issue effective press releases Project2_Layout 1 Project2_Layout26/10/2012 09:061 26/10/2012Page 1 09:06 Page 1
To book your placeProject2_Layout tel: 01Project2_Layout 1Project2_Layout67626/10/2012 8998,1 26/10/201209:06 or1 26/10/2012email:Page09:061 [email protected]:061 Page 1 Project2_Layout 1 26/10/2012 09:06 Page 1 owe edmond ssociAtes www.communique.ieL R & A
Project2_Layout 1 26/10/2012 09:06 Page 1 LegaL Costs aCCountants Project2_LayoutLow1 26/10/2012Lowe Re09:06RLedPageedowmo1 moendRed&&AmoAssociAssociAnd tes& AtesssociAtes LCaowrmichaele RHoLuseedowmoe Rnded&moATendssociAl: (01)&202A4930tesssociAtes owe edmondLegaL CssociAosts aCCounttesants L R 60 Lower Baggot Street& A egaLFax: (01)osts285 1723 CCountants LegaLLegaLCostsLegaLCostsaLCCountCostsaCCountCaantsCCountantsaants DublinCaLrmichael2. owHoeuseRedmond &TeDX:l: (01)A109031202ssociA4930Fitzwilliamtes Carmichael60 LowHoeruseBaggCaotrmichaelStreet House FaTex: (01)l: (01)285 1723202 4930 Te l: (01) 202 4930 Land Registration (Fees) Order 2012 LegaLCarmichaelCDublinostsHouseCa2.rmichaelaCCountHouse antsTe l: (01)DX:E-mail:2021090314930lowTeFil:eredmond@eirctzwil(01) liam202 4930 om.net 60 60LowLower BaerggBaot60LggStreetowLowot Streeter60eBaLowRggotederStreetBamoggotndFaStreetx: (01)&Fa285Ax:1723ssociA(01)Fax:285(01)1723285tes1723Fax: (01) 285 1723 LegaL Costs aCCountE-mail: loweredmond@eircants om.net On 28th September 2012, the LandCarmichael RegistrationHouse (Fees)DublinDublin 2. 2. Dublin Dublin2. Te l: (01)2. 202 4930DX: 109031DX:Fitzwil109031DX:liam109031FitzwilFiDX:tzwilliam109031liam Fitzwilliam E-mail: loweredmond@eircE-mail: [email protected] Order 2012 was signed by the Minister60 Low forer BaJusticeggot Streetand Carmichael HouseLFaegaLx: (01)C285osts1723aCCountTeE-mail:l: (01) 202antslow4930eredmond@eircE-mail: [email protected] 60‘ProfessionalLower Baggot StreetDrawing ofFaCostsx: (01) 285Na1723tionwide’ Equality. The new Fees Order Dublin 2. Carmichael HouseDX: 109031 FitzwilliamTe l: (01) 202 4930 ‘ProfessionalDublin 2. Drawing ofDX:Costs109031 FiNatzwiltionwide’liam 60 Lower BaggotE-mail:Street lowInCorperedmond@eircoratIngFax: (01) 285om.net1723 • revokes the Land Registration (Fees) Order ‘ProfessionalDublin‘Professional2. Dr‘ProfessionalawingDrofawingCostsDrDX:E-mail:109031NaawingoflowFiCoststionwide’eredmond@eirctzwilliamofNaCoststionwide’om.net Nationwide’ ‘Professional DrawingInCorporaofE-mail:tIngCostsloweredmond@eircNationwide’om.net 1999 InCorporatIngInCorporatIng • introduces new fees for Land‘Professional Registry Dr‘ProfessionalawingLowofe KCostsDriLKeLLIawingnCorpNayorationwide’of&tIngCostsAssociAInCorpNaorationwide’testIng services ‘Professional Drawing of Costs Nationwide’ • introduces new bands for the relevant fees InCorporatIng InCorporatIng relating to the consideration (value) of transfers Lowe KLiLKeLLowLegaLe KCyostsIiLKeLLnCorp&oraaACCounttIngssociAy &antsAtesssociAtes owe iLKeLLGaylway ssociAtes on sale LLowe KKLiLKeLLowe Ky&iLKeLL&AAssociAy & AtesssociAtes • includes details of fees for new services which Member of The Institute of Legal Costs Accountants are now offered by the PRA. LLLowegaLoweeCKKostsLiLKeLLiLKeLLegaLaCCountCyostsy&&AaAantsssociACCountssociAtesantstes Lowe KiLKeLLy & AGassociAlway Gateslway Member Lof TheegaLegaLMeInmberstitutCofeostsofTheLLegalegaLInstitutaCostsCCountCCounte CofAcLegalostscountantsantsCostsantsaCCountAccountants ants LLLegaLegaLCCCostsostsGaaalwayCCountCCountantsantsGalway The Fees Order will come into operation on GaGalwaylway egaL ostsMemberCCountof The MeInstitutmberantsGaeofoflwayTheLegalInCostsstituteAcofcoLegaluntantsCosts Accountants 1st December 2012. Further information canL be C Meamber of The Institute of Legal Costs Accountants MeGaMemberlwaymberofofTheTheInInstitutstituteeofofLegalLegalCostsCosts Accountantsuntants found on our website www.prai.ie. Member of The Institute of Legal Costs Accountants Law Society Gazette www.gazette.ie November 2012 taxation of costs 33 include all of the particulars stipulated under section 90 (the replacement of section 68 provision). In effect, the agreement can contain clauses whereby the legal practitioner sets out the relevant matters referred to in section 90. Any agreement would probably incorporate an undertaking to keep the client advised of ongoing costs and likely increases thereof, as envisaged in section 90.
The obligation of a practitioner to produce a bill of costs to the client as soon as is practicable following the conclusion of the provision of legal services is dealt with at Section 92. There would not seem to be much point in producing a detailed bill of costs to a client in circumstances in which there is already in existence an agreement between legal practitioner and client as to the amount chargeable. In such circumstances production of an invoice may be all that would be required, but this is not yet clear.
Rights and entitlements Section 94 deals with the rights “Section 90 and entitlements of parties to the adjudication process, whether of the bill between legal practitioner imposes and client or as between party onerous and party. The full bill or any as to work carried out (see last The adjudication is also to be guided item thereof may be subject obligations issue). The adjudicator will be by reference to the principles outlined to adjudication. There is an on the legal required to verify that the work was at schedule 1 to the bill and which it is obligation on the parties to actually done and that any claimed mandatory to apply. endeavour to resolve any dispute practitioner disbursements were actually made. These principles include, in addition to without recourse to adjudication concerned” The nature and extent of any work, the requirement that the allowable costs have in the first instance. who carried it out, and the time been reasonably incurred and are reasonable A bill of costs that has been properly taken must also be ascertained. in amount, that: “(c) where a bill of costs prepared and delivered to a client will As matters currently stand, the adjudication relates to the costs as between party and party, not be amenable to adjudication after the process shall, pursuant to section 97, be if, in addition to the principles at paragraphs expiry of six months from date of issue of determined otherwise than in public. (a) and (b), it is reasonable to expect the party the bill or three months from the date of from whom payment is sought to indemnify payment, whichever occurs first. This is a Possibly controversial the party whose costs are the subject of the new departure. Heretofore, a bill between Important and possibly controversial bill of costs on the basis of the matters and solicitor and own client was not amenable provisions arise at section 98, whereby under items in the bill of costs and the amounts under statute law to taxation if the costs subsections 2 and 3 thereof, certain penalties claimed in respect of such matters and items.” had been paid or if 12 months had expired may arise in the event of “the costs of the This is a provision that undoubtedly is from date of delivery. It remains to be seen legal practitioner concerned” being reduced going to be the subject of much debate. The whether the courts’ inherent jurisdiction by less than 15% or more than the same intention would possibly be to introduce a over its officers – which was confirmed percentage. In the former situation, “the party concept of proportionality to the adjudication in Gallagher Shatter v De Valera ([1986] chargeable to those costs shall pay the costs process, but no doubt other interpretations ILRM 3) as entitling the court, in special of the adjudication”. In the latter situation, will be proffered in due course. circumstances, to order taxation as between “the legal practitioner who issued the bill The other principles outlined at subsection solicitor and own client, even where the of costs shall be liable for the costs of the 2 of the schedule are to some extent a costs had been paid or the statutory period adjudication”. reflection of the matters already contained had expired – has survived the enactment of It appears that the costs of the taxation in order 99, rule 37(22)(ii), but also requires these provisions. process, whether as between party and party the adjudicator to take into account whether The matters outlined at subsection 95, or between legal practitioner and own client a limitation of the liability of the legal which stipulate the factors to be taken into are to follow these events. Whether there practitioner might be considered, and account by the legal costs adjudicator in should be a distinction between the two other matters such as whether research or assessing fees, do resonate with my earlier modes of taxation may be a matter for further investigative work was carried out. The level observations relating to the necessity of consideration as to the desirability of linking a of the legal practitioners’ overhead costs keeping proper and accurate records of client’s entitlement to party and party costs to would also appear to be considered a relevant instructions received and attendance notes the property of the legal practitioner. factor. G 34 property law Law Society Gazette www.gazette.ie November 2012 jingle
Commercial tenants unable to afford rent under leases with time left to run may think that, by handing back the keys to their landlords, they are ending their tenancies. So what options do maillandlords have in protecting their interests? Conor Feeney sticks his foot in the door ore and more commercial tenants, of ownership on the part of the landlord are inconsistent Conor Feeney is unable to afford rent under with the continued existence of the tenancy and therefore a Dublin-based leases with time left to run, are imply surrender. barrister simply vacating their premises and Equivocal acts returning the keys “Landlords faced Attempting to re-let: In Oastler v Henderson, toM the landlord. Could this action lead to when the tenant gave back the keys, the the surrender of the tenancy, and what can with a vacant landlords engaged an agent to put up bills in landlords do to protect their interests when property under the house and advertised it to let. The court the keys are returned? found that the surrender was not accepted The main question is whether there has an unexpired until the house was eventually re-let as, up been a surrender of the tenancy by “act tenancy will not until that point, the landlords had done and operation of law” pursuant to section “nothing but what they might reasonably be 7 of Deasy’s Act of 1860. The court will prejudice their expected to do under the circumstances for look at whether the acts of both parties position against the benefit of all parties”. to the tenancy are inconsistent with the This should be of relief to many landlords continuation of the tenancy. abandoning who find themselves torn between not For obvious reasons, it is not enough tenants by wanting to prejudice their claim against a for a tenant to just unilaterally return the attempting to re- tenant who has abandoned the premises keys and vacate the premises. Furthermore, and their desire to minimise their loss, the eventual re-letting of the premises let the property, particularly in circumstances where they obviously operates as an act of surrender maintaining and may never recover any unpaid rent from the on the part of the landlord. It is the period tenant. between these two actions that is of interest securing it, and for present purposes. It is the actions of the carrying out any Inspection, maintenance and repairs: In landlord, viewed objectively, as opposed Smith v Blackmore, the landlord advertised the to his or her subjective intention, that are urgent repairs” property to let but also carried out necessary crucial. repairs at the property. The court followed A distinction is drawn in the case law between Oastler in finding that there was no surrender, as such action ‘equivocal’ and ‘unequivocal’ acts – or between was not inconsistent with the continuation of the tenancy. “gratuitous acts done for the benefit of the tenant” and It would seem that a landlord can even put a caretaker acts “done in the exercise of ownership”. Unequivocal acts into the property to take care of it (see Bird v Defonvielle). Law Society Gazette www.gazette.ie November 2012 property law 35 mailjingle
Fast facts
> Surrender “by act and operation of law” > In the period between the return of the keys and the re-letting of the premises, the objective rather than subjective actions of the landlord are crucial > the distinction drawn>> between equivocal Securing the premises: In Artworld responded that the landlord would consent and unequivocal acts continue to Financial Corporation v Safaryan, in outlining and asked for the original lease to be influence the case law the principles in this area, Dyson LJ returned, together with the keys. The tenant > the mere act of attempting to re-let the put securing the premises into the same returned the keys but could not find the premises will not, of itself, constitute category as repairing and maintaining the original lease. The sureties then contended an act of surrender on the part of the premises and described such actions as “self- that the lease had been surrendered and that landlord help, necessary to preserve the landlord’s they were released from their obligation to > entering to inspect or carry out repairs interest in the value of his property” and “a take a new lease. or maintenance on the premises is reasonable response to the tenant’s evinced The Court of Appeal found that the consistent with the parties’ rights and intention not to perform the obligations lease had not been surrendered, as the obligations under the lease of the tenancy”. The judge referenced, in landlord’s acceptance had been subject to > unequivocal acts by a landlord, prior to this regard, Relvok Properties Ltd v Dixon, in two conditions with which the tenant and the re-letting of the premises, that could which the landlord instructed estate agents sureties had failed to comply: the return of indicate acceptance by the landlord of to change the locks on the premises. the original lease, and the grant of a new the surrender of the tenancy lease to the sureties. Conditional acceptance of surrender: In Proudreed Ltd v Microgen Holdings plc, the Omissions: In Bellcourt Estates Ltd v Adesina, tenant company went out of business, and in seeking to establish surrender, the tenant The key here is that entering to inspect discussions took place between the landlord sought to rely on the landlord’s failure to or carry out repairs or maintenance on and the tenant’s sureties with a view to the seek rent, rent arrears or service charges the premises is consistent with the parties’ latter taking a new lease in accordance with from her during the period of vacancy. rights and obligations under the lease. It is their surety obligations. The court found that there had been no submitted that this would also extend to cover The tenant’s receivers sought the surrender prior to re-letting and questioned the maintenance of a garden and the renewal landlord’s consent to an informal surrender whether “mere inaction” could ever amount of the insurance in respect of the premises. of the lease, and the landlord’s solicitors to “unequivocal conduct by the landlord”. THE TRANSCRIPTION SERVICE OF CHOICE FOR LEGAL PROFESSIONALS
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M&K_LSG/LD 91X123 AW.indd 1 24/02/2011 16:40 Law Society Gazette www.gazette.ie November 2012 property law 37 Making occasional use of a part of the entertainment of travellers”. premises: Another factor in Oastler was that The tenant further covenanted not to do the landlords had allowed two workmen to anything that might cause the licence to be temporarily occupy two rooms in the house forfeited. In such circumstances, the actions that was the subject of the proceedings. The of the landlord may be regarded as, in the court did not regard this as an unequivocal words of Dyson LJ in Artworld, “a reasonable act accepting the surrender of the tenancy. response to the tenant’s evinced intention not It is submitted that this finding stretches the to perform the obligations of the tenancy”. category of equivocal acts to breaking point, and that landlords should be slow to allow Unequivocal acts anyone into occupation of any part of the The following unequivocal acts on the part property, other than in a caretaker capacity. of a landlord, prior to the re-letting of the premises, would be regarded as so inconsistent Taking action to dispossess trespassers: with the continued existence of the lease that In McDougalls Catering Foods Ltd v BSE Trading they indicate acceptance by the landlord of the Ltd, the landlord brought court proceedings surrender of the tenancy. to remove trespassers from premises that had been Removing the tenant’s name abandoned by the tenant. The “For obvious from the premises: In Phene Court of Appeal found that this reasons, it is v Popplewell, the tenants left in relation to repair in the lease can be difficult act of the landlord had not been the key with the landlord, and to define. Landlords carrying out repairs on an unequivocal act of surrender. not enough for the landlord put up a board abandoned properties should be careful to only Again, a note of caution a tenant to just to let the premises, used the carry out necessary repairs, consistent with is required: it is highly key to show the premises to the covenants in the lease, and to ensure that questionable whether such unilaterally interested parties, and painted the property is returned to a habitable state an act is in fact consistent return the keys out the tenants’ names from following the repairs (see Smith v Roberts). with the continuation of the front. The court found that Landlords faced with a vacant property the tenancy. It is submitted and vacate the the surrender dated back to the under an unexpired tenancy will not prejudice that the Court of Appeal, in premises” putting up of the board on the their position against abandoning tenants by repeatedly emphasising the premises, because such earlier attempting to re-let the property, maintaining landlord’s intention, as stated “equivocal acts”, which could be and securing it, and carrying out any urgent in correspondence, to continue to rely on regarded as “mere acts done for the benefit of repairs. However, any further actions in the lease, may have strayed into applying a the tenants”, could be rendered unequivocal by relation to the property on the part of the subjective test to the issue. later acts that were clearly “done in exercise of landlord may lead, whether of themselves or Looked at objectively, a landlord cannot ownership”, in this case, the painting out of the in conjunction with other actions, to a finding have standing to bring such proceedings unless tenants’ names. that the tenancy has been surrendered. G the tenancy is at an end and the landlord has the right to possession, a point recognised in Occupying or using the premises: In the similar case of McVicar v Jackson. Artworld, the landlord company allowed the In McDougalls, that case was distinguished beneficiary of the trust of which the company Look it up on the basis that “there were no surrounding was a vehicle to park his car at the property circumstances to suggest that the plaintiff and stay there for a period of six weeks. The Cases: might not have accepted surrender”. Again, court found that these actions meant that • Artworld Financial Corporation v Safaryan this suggests a subjective analysis of the actions “the landlord’s acts, taken as a whole, went [2009] 2 EGLR 27 of the landlord and does not answer the significantly beyond anything consistent with • Bellcourt Estates Ltd v Adesina [2005] question of how a landlord of a subsisting lease a continued existence of the tenancy”. In a EWCA Civ 208, [2005] EGLR 33 could have standing to bring such proceedings. clear demonstration of the objective nature • Bird v Defonvielle (1846) 175 ER 171 of the test, the court found that the surrender • Buchanan v Byrnes (1906) 3 CLR 740 Operating licensed premises: In Buchanan had been accepted shortly after the keys • McDougalls Catering Foods Ltd v BSE v Byrnes, the tenant abandoned a hotel were handed back, despite the fact that the Trading Ltd [1997] 2 EGLR 65 premises and the landlord re-entered and made landlord’s solicitors had at that stage asserted in • McVicar v Jackson 75 WN 46 arrangements to carry on the hotel business so correspondence that the lease was continuing. • Oastler v Henderson [1877] 2 QBD 575 that the hotel’s licence would not be forfeited. • Phene v Popplewell (1862) 142 ER 1171 While the case was not decided on grounds Redecorating or otherwise improving the • Proudreed Ltd v Microgen Holdings plc of surrender, the High Court of Australia was premises: Another factor that weighed on the [1996] 1 EGLR 89 satisfied that the landlord’s actions would not court in Artworld was the fact that redecoration • Relvok Properties Ltd v Dixon (1972) 25 P have constituted acts of surrender. works had been carried out by the landlord. and CR 1 The court emphasised the fact that the Any such works may be regarded as going • Smith v Blackmore (1885) 1 TLR 267 tenant had covenanted “during the currency beyond the “self-help” measures discussed • Smith v Roberts (1892) 9 TLR 77 of the lease … to use, exercise and carry on in above, such as repairs or securing the premises. and upon the premises the trade or business However, the line between repairs consistent Legislation: of a licensed victualler or publican … and with the continued existence of the tenancy (as • Landlord and Tenant Law Amendment keep open and use the said hotel as a public discussed above) and more significant works (Ireland) Act 1860 (Deasy’s Act) house for the reception, accommodation and beyond the scope of the rights and obligations 38 the constitution Law Society Gazette www.gazette.ie November 2012
papa, don’t
Contrary to much popular perception, the Constitution’s provisions preachon religion are actually rather ideologically ambiguous and embrace no single model of Church/State relations. Eoin Daly gets a belt of the crozier
he religious influences on the Irish “under God”, from the Constitution are widely known: more people, while article 44 than any other aspect of our legal affirms, in seemingly system, it reflects the close relationship bellicose terms, that “the between Church and State that homage of public worship developed in the decades following is due to Almighty God”. independence. Yet, in many senses, its provisions on The State must “honour Dr Eoin Daly is T religion are, in fact, rather ideologically ambiguous and and respect” religion. The a lecturer at the are sufficiently flexible to have facilitated the dramatic original text recognised the School of Law, transformation in the Church/State relationship that “special position” of the UCD, and author has occurred in the 75 years since its Catholic of Religion, Law enactment. Church and the Irish State In contrast to other Western systems “The Constitution “as the (Clarus, 2012) – whether staunchly secularist models is far removed guardian of like France, or those providing for an the Faith established church like England – the from the caricature professed by Irish Constitution embraced no single that sometimes the great majority of the citizens” – along model of Church/State relations. It is with recognising other denominations – tentatively poised between different prevails – that of a but this was removed by referendum in models, neither privileging (at least bellicose, arcane 1972. explicitly) any particular denomination, Thus, the eventual product was far nor mandating a strictly secularist assertion of religious more moderate than an initial draft that conception of Church/State separation. triumphalism” had recognised the Catholic Church as To some extent, this reflected a political the “Church of Christ”. Therefore, the compromise between the Catholic final draft was, in fact, relatively liberal nationalism of early independent Ireland – which compared with other European constitutions, as Justice might have constitutionally enshrined the status of the Gerard Hogan has argued in his recent scholarship. dominant Church – and a lingering Republican concern Indeed, the recognition of the “Jewish congregations”, to pay lip-service, at least, to the principle of religious along with the Protestant minorities, was remarkably equality. progressive by the standards of the 1930s. Consequently, the constitutional provisions on religion Therefore, the Constitution is far removed from are somewhat Janus-faced. They include symbolic the caricature that sometimes prevails – that of a affirmations of the centrality of religion in our national bellicose, arcane assertion of religious triumphalism. identity. The powers of Government are said to derive, Its rhetoric on the importance of religion sits uneasily Law Society Gazette www.gazette.ie November 2012 the constitution 39 preach
Fast facts
> The Constitution’s provisions on religion were sufficiently flexible to have facilitated the dramatic transformation in the Church/State relationship > It contains quite detailed rights
protections in the area>> of religion pic : garrett o ’ boyle > The practical implications of the Constitution for religious individuals and communities are unclear: the vague rights it contains have not yet been sufficiently developed in case law
with contemporary, liberal sensibilities but, education. Indeed, the ban on religious interpreted and quite begrudgingly in truth, they are of almost no practical endowment did not prevent the development accommodated in many schools – not only significance – at least to potential litigants. of a notoriously close relationship between because practical arrangements for the Of far more importance are the concrete Church and State following independence. exercise of this right are often lacking, but guarantees in article 44 on freedom of also by virtue of the fact that the religious religion, freedom of conscience, and Denominational schools ‘ethos’ tends to be integrated in the whole religious equality. The State is prohibited Compared with other constitutions, the school environment, not just in formal from discriminating on grounds of religious Bunreacht contains quite detailed rights timetabled classes. “profession, belief or status”, while the “free protections in the area of religion. For Indeed, constitutional questions underlie profession and practice” of religion are example, notwithstanding the heavily the debate of recent years on the ethos subject only to “public order and morality”. denominational character of the education and control of schools. In many areas, The State is also prohibited from endowing system, article 44 explicitly prohibits the predominance of Catholic schools any religion, effectively precluding any discrimination in the funding of different means parents may effectively enjoy little established church. However, this has been denominational schools, and provides that option but to avail of schools committed interpreted narrowly and probably allows for denominational schools in receipt of public to inculcating religious beliefs contrary most instances of State funding for religious funds cannot require children to attend to their own. The Constitution, through bodies, insofar as it is ultimately used for religious instruction classes. However, this article 42, tacitly mandates this “patronage” some secular purpose such as charity or right in particular appears to be minimally model, whereby the State “provides for” free 2012 Outstanding 2012 Outstanding Achievement Award - Achievement Award - Irish Irish Institute of Training Institute of Training & Development (IITD) & Development (IITD) Awards – Most Awards – Work Placement Innovative Use of – Graduate and Non- Technology Category Graduate Category
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DATE EVENT DISCOUNTED FULL FEE CPD HOURS FEE* 15 Nov Tactical Negotiation Skills €105 €140 3 Management & Professional Development Skills (by Group Study) 23 Nov In-house and Public Sector Annual Conference €135 €180 2 Management & Professional Development Skills plus 1 Regulatory Matters (by Group Study) 23 Nov Law Society Skillnet in association with Carlow Bar Association, Visit www.lawsociety.ie/ 5 General Plus 1 Regulatory Matters (by Group Kilkenny Bar Association and Waterford Law Society present: Lspt for details or email Study) Advising the Farmer – a full-day Conference plus optional evening [email protected] dinner in the Hotel Kilkenny, Kilkenny. 27 Nov Presentation Skills and Making Your Presence Felt Workshop – Cork €120 €160 4 Management & Professional Development Skills (by Group Study) 30 Nov Annual Family Law Conference €135 €180 4.5 General plus 1 Regulatory Matters (by Group Study) 6 Dec Presentation Skills and Making Your Presence Felt Workshop – Dublin €120 €160 4 Management & Professional Development Skills (by Group Study) 13 Dec Tactical Negotiation Skills €105 €140 3 Management & Professional Development Skills (by Group Study) ONLINE COURSES: To Register for any of our online programmes OR for further information email: [email protected] Online Legal Costs Seminar: Recent Decisions and Pending Legislation €72 €96 1 hour General (By eLearning)
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For full details on all of these events visit webpage www.lawsociety.ie/Lspt or contact a member of the Law Society Professional Training team on: P: 01 881 5727 E: [email protected] F: 01 672 4890 *Applicable to Law Society Skillnet members Please note three hours on-line learning is the maximum that can be claimed in the 2012 CPD Cycle
LSPT ad Gazette November 2012.indd 1 12/10/2012 16:16 Law Society Gazette www.gazette.ie November 2012 the constitution 41 primary education, indirectly, by recognising controversially held that the free exercise of 2012 Outstanding 2012 Outstanding and funding schools under the ownership and religion guaranteed under the constitution Achievement Award - Achievement Award - Irish Irish Institute of Training Institute of Training control of different denominational bodies. did not entitle religious practitioners to be & Development (IITD) & Development (IITD) Yet this state of affairs – which undermines exempted from statutory requirements that are Awards – Most Awards – Work Placement Innovative Use of – Graduate and Non- the freedom of many parents to educate their neutral and “generally applicable” with respect Technology Category Graduate Category children in accordance with their beliefs to religious and non-religiously motivated – is difficult to square with the seemingly performances of the prohibited extensive provision for freedom of conscience conduct. Thus, the concept of and religion in article 44. religious freedom was thought “Constitutional reducible to the principle of state questions ‘Natural’ and ‘inalienable’ rights neutrality; it did not warrant any This underlies something of a paradox in the special accommodation of religious underlie the constitutional framework for religion and communities and requirements. To debate of education. In article 42, parents are recognised hold otherwise, the court reasoned, as having “natural” and “inalienable” rights in would give the state a problematic recent years exemption – a task to which respect of religious and moral education. Yet role in determining which religious on the ethos secular authorities are arguably ill in the practical model of educational provision doctrines were to be exempted, and suited. that the Constitution envisages and underpins, thus in interpreting the content of and control of In legislation itself, there is a these rights can only ever be secured in a very religious doctrine and belief. schools” fairly ad hoc approach to religious precarious and unequal way. Notionally, the accommodation: some statutes State is constitutionally obliged to provide Religious freedom exempt specific denominations, others, as in To view our full programme visit www.lawsociety.ie/Lspt education in such a manner as respects In Ireland, however, given the exalted the case of the Juries Act 1976, use a more parental ‘choice’. In practice, however, the constitutional status that religion enjoys, it general formulation in exempting “ministers right to secure education in accordance with seems unlikely that religious freedom could of religion” from the relevant obligations. DATE EVENT DISCOUNTED FULL FEE CPD HOURS one’s convictions depends on the availability similarly be interpreted as merely requiring It remains open to question whether the FEE* of appropriate schools and, in the absence State neutrality towards religion: in some Constitution may be used to infer religious 15 Nov Tactical Negotiation Skills €105 €140 3 Management & Professional Development of a non-denominational alternative, this circumstances at least, it is likely to be exemptions in statutes that are silent as to Skills (by Group Study) depends in turn on the vagaries of the school interpreted as obliging the State to positively religion. Given the diversification of Ireland’s 23 Nov In-house and Public Sector Annual Conference €135 €180 2 Management & Professional Development Skills plus 1 Regulatory Matters (by Group Study) recognition process: faith-specific school accommodate and exempt religious groups, religious demographics over recent decades, recognition will simply be impracticable in whether in legislation or administrative it is probably unrealistic to expect that 23 Nov Law Society Skillnet in association with Carlow Bar Association, Visit www.lawsociety.ie/ 5 General Plus 1 Regulatory Matters (by Group Kilkenny Bar Association and Waterford Law Society present: Lspt for details or email Study) many cases, leaving non-Catholic parents in a processes. This was confirmed in one of the legislature can foresee and specifically Advising the Farmer – a full-day Conference plus optional evening [email protected] precarious and unsatisfactory position. the few Irish cases dealing with religious recognise the multitude of religious beliefs dinner in the Hotel Kilkenny, Kilkenny. The practical implications of the freedom, Quinn’s Supermarket v Attorney and rituals that might require accommodation: 27 Nov Presentation Skills and Making Your Presence Felt Workshop – Cork €120 €160 4 Management & Professional Development Constitution for religious individuals and General (1972). The Supreme Court held denomination-specific exemptions are probably Skills (by Group Study) communities are unclear: the vague rights that the Constitution strictly prohibits too piecemeal and ad hoc. 30 Nov Annual Family Law Conference €135 €180 4.5 General plus 1 Regulatory Matters (by it contains have not yet been sufficiently any legislative distinctions using religious Group Study) developed in case law. Compared to criteria – even those benignly intended as Resurgent Church/State controversy 6 Dec Presentation Skills and Making Your Presence Felt Workshop – Dublin €120 €160 4 Management & Professional Development jurisdictions like the United States, it is accommodating religious practices. This While these issues may seem rather abstract, Skills (by Group Study) surprising that there has been a relative dearth appeared to invalidate legislative provisions this is, in some respects, an era of resurgent 13 Dec Tactical Negotiation Skills €105 €140 3 Management & Professional Development Skills (by Group Study) of litigation in Ireland on issues surrounding accommodating the Jewish Sabbath in respect Church/State controversy. For example, the religion. In particular, it is unclear what of butchers’ opening hours. Yet Walsh J held issue of religious freedom has been raised ONLINE COURSES: To Register for any of our online programmes OR for further information email: [email protected] specific rights stem from the protection of that this ostensibly strict prohibition on any in relation to the proposed legislation on Online Legal Costs Seminar: Recent Decisions and Pending Legislation €72 €96 1 hour General (By eLearning) freedom of religion, a notoriously vague and religious distinctions in legislation could be the mandatory reporting of suspected child problematic right. relaxed where necessary to protect religious abuse – which some have feared will override Online The LinkedIn Lawyer N/A €55 Full Management & Professional Development Skills requirement for 2012 (by eLearning) Cases involving religious freedom rarely freedom – in fact, the State was positively the seal of the confessional. 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By way of contrast, Online Powerpoint – All levels N/A €80 Full Management & Professional Development practices, or uniform requirements in public religious practices may be frustrated by religiously motivated medical professionals Skills requirement for 2012 (by eLearning) services. statutory or administrative requirements. were historically successful in their claims to Online Microsoft Word – All Levels N/A €80 Full Management & Professional Development Worldwide, there is debate as to whether In particular, it remains unclear in what be protected from any obligation to provide Skills requirement for 2012 (by eLearning) religious freedom simply requires legislation to circumstances and under what conditions the contraception or abortion information. Online Excel for beginners N/A €80 Full Management & Professional Development remain neutral with respect to religious beliefs Constitution entitles religious communities Thus, the legal principles pertaining to Skills requirement for 2012 (by eLearning) and identities or, alternatively, entitles religious to be exempted from generally applicable religion remain curiously underdeveloped, communities to be exempted from statutory statutory prohibitions – and, in particular, there being little sign of any consistent requirements that, while not targeting religious what limits, based on “public order and principled approach to religious practices as such, may conflict with their morality”, may be placed on the exercise accommodation transcending ad hoc political For full details on all of these events visit webpage www.lawsociety.ie/Lspt rituals and beliefs. A good example is the ritual of this right. Problematically, the Quinn’s choice. Yet, given the diversification of Ireland’s or contact a member of the Law Society Professional Training team on: religious use of prohibited drugs. This arose in Supermarket case may require courts to religious demographics over recent decades, P: 01 881 5727 E: [email protected] F: 01 672 4890 the landmark 1990 American case Employment interpret religious doctrine itself in order and renewed signs of Church/State conflict, *Applicable to Law Society Skillnet members Division v Smith, where the Supreme Court to ascertain the scope of any appropriate this is likely to change. G Please note three hours on-line learning is the maximum that can be claimed in the 2012 CPD Cycle
LSPT ad Gazette November 2012.indd 1 12/10/2012 16:16 42 practice management Law Society Gazette www.gazette.ie November 2012
A departure from
typeDeciding to outsource or contract out typing and other document-production services can give smaller firms the edge over bigger ones – but be aware of the potential pitfalls. Peter McKenna takes a letter
e are a small commercial law firm, typist (for example, former secretary, secretary on study Peter McKenna but I would wager that we have leave, and so on) to play on a compatible machine, type, is a solicitor with nearly the same number of typists print and then post back the finished work to the solicitor McKenna Durcan available to us at any particular – not necessarily the safest, fastest or most secure means of Solicitors, Lower moment in time as any of the outsourcing this administrative element of work. Leeson Street, largest five firms have in-house. With the development of digital voice recorders Dublin, and is We have someone available to type a letter at 6am, 6pm or (DVRs), solicitor can now record and store their voice on a member of the W six minutes past midnight. If one of our secretaries is on digital files, transfer these to their PC, and email them to Society’s Technology holidays or suddenly goes sick, we have a the typist off-site, with the finished work Committee typing replacement immediately available. being emailed back. DVRs are relatively How? We have an agreement in place “The reasonable cost inexpensive and are used in much the with a third party that has a large pool of same way as a tape Dictaphone. Again, independently contracted typists to whom of accessing this however, it’s not necessarily the most we can contract out our typing as required. technology has made secure means of transferring confidential Contracting out document-production data. services involves creating a data file outsourcing typing an The goods news is that recent (comprising an audio file) and sending it attractive proposition developments in the use of digital to another company’s server, from where for the medium and dictation technologies now provide for the typist accesses the file, converts the configuring the system on the solicitor’s dictation into a document, and sends it smaller-sized firm” network so that the dictation file is back to the author. encrypted and sent on a virtual (and Normally the preserve of the larger secure) private network to the server of firms, the reasonable cost of accessing this technology the third-party provider (TPP), where it can be accessed has made outsourcing this administrative element of your by the independently contracted typist. This can be business practice an attractive and realistic proposition for achieved using a dictation device connected by a cable the medium and smaller-sized firm. to your computer and ‘exported’ to the TPP or, indeed, as some providers now offer, via an application on your Recent developments smartphone that turns it for those few moments into a Traditionally, the outsourcing or contracting out was dictation machine. achieved off-site by the solicitor dictating the material The dictation does not leave the TPP’s password- onto a tape and sending it to the independent contractor protected server. The finished work is saved on the same Law Society Gazette www.gazette.ie November 2012 practice management 43
A departure from
Fast facts “It is imperative that your smartphone > outsourcing the typing of dictation has become incredibly convenient, cost- dictation application effective and safe encrypts the > Safety depends, however, on you and server by the typist, from listened to by unwanted your third-party provider (TPP) using file where it can be downloaded dictation so that the ears. It is imperative that encryption. Make sure>> that you invest in by the solicitor, saved by the confidential nature your smartphone dictation the right hardware and software typist back into the solicitor’s of the material application encrypts > Nail down the data-protection and own system, or emailed the dictation so that the privacy-of-data liabilities with your TPP directly to the solicitor. Data and security of the confidential nature of the > agree performance indicators in any is stored and remains securely system employed is material and security of service level agreement (SLA) that you on the TPP’s server and is the system employed is not sign with your service provider deleted within the terms of not compromised” compromised. > carefully consider the scope and nature the agreement with the TPP. of any proposed limitation-of-liability The independently contracted typists sign a Why should we? provisions in the SLA confidentiality agreement with the third-party So why should you do it? It’s a 24/7 service. > ensure that the TPP does not allocate provider. Depending on the terms of your agreement your work to a typist who also types for A word of warning though. Not all digital with the TPP, the normal turnaround time is the other side in a matter dictation applications on smartphones encrypt less than 24 hours and, if urgent, less again. > there may be PII issues if you intend dictation. Therefore, if not encrypted, There is no hourly rate or part thereof. The using this type of service, so make sure should the dictation be sent to the wrong typing is normally charged per recorded that your cover extends to associated addressee, it can be easily opened and minute of dictation as opposed to the time risks Gibney Communications, one of Ireland’s leading independent public relations firms is pleased to announce that Donnchadh O’Neill has been appointed Managing Director while Ita Gibney takes on the role of Chairman.
Donnchadh has been with the company for more than seven years and has been Deputy Managing Director for two. He will also join the Board of the Company. New Managing Director at Gibney Communications
In his new role he will continue to service clients while leading the management of the 15-strong professional team. As a journalist, RTE radio producer and PR consultant he brings over 20 years of experience to the business and clients.
Ita Gibney who has led the firm since its establishment in 1995 will continue to remain fully active in the continued growth of the company and to serving key clients.
Gibney Communications is an independent Irish public relations firm and recently marked its 17th year serving clients in Ireland.
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Christmas Cards In aId of the SolIcItorS’ Benevolent aSSocIatIon
This is an opportunity to support the work of the Solicitors’ Benevolent Association, whose needs are particularly acute at Christmas time
GreetInG prInted InSIde each card: With Best Wishes
Card A for Christmas and madonna and child Card B antonio correggio the New Year the chriStmaS eve ball
Order fOrm
firm: contact: address: dX: tel: fax:
each card sold in packets of 50 costing €125 (including overprinting of your firm’s name). minimum order 50 cards. add €7.00 for postage and packaging for each packet of 50 cards. i wish to order pack(s) of card a @ €125, pack(s) of card b @ €125. text to be overprinted: Sample of overprinted teXt will be faXed for confirmation before printing. i enclose cheque for € payable to Santry printing ltd (€132 per pack). Send order form and cheque to: SBA Christmas Cards, Santry Printing Ltd, Unit 5, Lilmar Industrial Estate, Coolock Lane, Dublin 9. tel: 842 6444. contact: amanda Law Society Gazette www.gazette.ie November 2012 practIce management 45 taken to type. It is also possible to pick and defined as basic pay and, if applicable, shift choose which dictation jobs you wish to export premium, overtime premium, and Sunday to the TPP, so that you can allocate your most premium, among other matters. urgent work in-house and the soul-destroying, Agency workers are entitled to equal more laboursome work to the TPP. This treatment in their basic working and solution also gives you greater control over employment conditions as if they were when the work is typed to help ensure you directly recruited by the hirer to the same or meet your clients’ needs. similar job. Basic working and employment There are a number of reasons why this type conditions are being defined as working time, of service has become attractive to firms: rest periods, night work, · It’s competitive – the legal services market annual leave, overtime, and is experiencing lower profit margins, which “There are specific public holidays. makes the service cheaper for users, risks in relation This means that a · The reduced cost, improved client service practice looking to engage and competitiveness have led to an increased Lemmon zest to contracting out an agency worker will need interest in the profession for outsourcing typing that practices to consider each term and certain business processes to TPPs, from that date, as if they were condition of employment · Recent developments in legal practice- directly recruited by the hirer should thoroughly of its comparable employee, management systems involve the emerging to the same or similar job. assess before identify whether it needs to use of digital dictation, and Agency workers on be matched for temporary · It’s secure, thanks to the advent of encrypted assignment after 5 December making the decision agency workers, and quantify internet and mobile transmission of data and 2011 are entitled to equal to outsource” the potential cost. sound files. treatment in relation to pay from the date of their assignment as if Potential benefits A further consideration is the Protection of they were directly recruited by the hirer to A careful due diligence with the assistance of Employees (Temporary Agency Work) Act 2012, the same or similar job. Equal treatment in your IT provider and a cost/benefit analysis which was enacted on 16 May 2012. Under relation to all other aspects of basic working will need to be carried out by each individual the act, all agency workers who were on and employment conditions outlined in the practice to see if this type of service will meet assignment on 5 December 2011 will be legislation came into effect from the date of its needs, but, if properly implemented, the entitled to equal treatment in relation to pay enactment. For this purpose, pay is being gains to be made can be: · Improved business practices through intelligent allocation of resources, issues to be considered · Refined costs – reduce salary overheads and Much the same issues that relate to cloud sign confidentiality agreements. office space requirements, computing technologies apply here. There are • Breach – how often does the TPP update · Greater flexibility and capability – determine specific risks in relation to contracting out firewall rules/policies? What insurance how, when and the frequency of use of this typing that practices should thoroughly assess coverage does the TPP have in the event of service to suit your practice needs, before making the decision to outsource. These an IT security breach? What is its incident · Improved turnaround times for document include: response plan/process? production, • Quality of work – it will be necessary to • Liability – agreement of protocol and definition · A contingency plan for busy periods, staff monitor and assess the typed work on an of who assumes risk in these situations should holidays or unexpected sick days, ongoing basis. be contained in the SLA. Carefully consider the · Improved quality and efficiency of service, • Data protection and location of data – scope and nature of any proposed limitation-of- with shortened work-in-progress time, and confirm where the data physically resides liability provisions in the SLA. · Enhanced profitability. and ensure there is no breach of the solicitor/ • Conflicts – what protocols are put in place to practice obligations. ensure the TPP does not allocate your work to As previously mentioned, the reasonable • Security – identify security measures being a typist that also types for the other side in a cost of accessing this technology has made employed by the TPP – what compliance and matter? outsourcing typing an attractive proposition security protections are enforced for those • Auditing and the provision of reports by the for the medium and smaller-sized firm. It may locations? Does the data go to any other TPP on use and access to data – do you have require a small capital investment in hardware entity outside of the TPP? Does it ever leave the ability to track progress of work to ensure and software in order to install and implement the country/EU? Is the TPP running intrusion that you are getting value for spend? this system, but it gives a smaller firm the detection or intrusion protection on its • Professional indemnity insurance – it would be opportunity to level the playing field with network? strongly advisable to make your insurer aware bigger players. • Privacy of data – ascertain whether your firm that you intend using this type of service and Outsourcing or contracting out typing and will have dedicated or shared infrastructure. seek confirmation that your cover extends to other document-production services gives the If shared, how does the TPP maintain associated risks. smaller and medium-sized firm access to a isolation and privacy of your data? • Client consent – for the contracting out of work typing resource ‘on tap’ that would normally • Confidentiality – the service level agreement involving a client’s file, the client’s consent only be available to larger firms. How this (SLA) must have adequate confidentiality should be sought. This may be achieved constant access is managed or employed provisions regarding the TPP’s obligations through an appropriately drafted letter of depends on the particular needs of each firm. to keep the data confidential, but also must engagement and an acknowledgment by the It is, however, a useful tool in a market where ensure that all typists allocated to your work client in return. the large do not apologise for competing with the small for work. G 46 people and places Law Society Gazette www.gazette.ie November 2012 Waterford Law Society annual dinner on 12 October A ll pics : G arrett F itz erald P hotography
At the Waterford Law Society annual dinner in Waterford Castle on 12 October were (front, l to r): Kieran Moran (President, Kerrie O’Shea, Nicola Walsh Southern Law Association), Judge Terence Finn, Ger O’Herlihy (President, Waterford Law Society) and Donald Binchy and Sharon Kearns were among (President, Law Society of Ireland). (Back, l to r): Michael Howlett (Waterford Institute of Technology), Niall Rooney (county those attending the Waterford register), James McCourt (senior vice-president, Law Society of Ireland), Ken Murphy (director general), Judge Kevin Law Society annual dinner on Staunton, Jack Purcell (court manager) and Johnny Walshe BL 12 October
Catching up at the Waterford Law Society annual dinner were (l to r): Gillian At Waterford Castle were (l to r): Jo Geary, Jill Walsh, Ellen Hegarty and Kiersey, Rosie O’Flynn and Marie Dennehy Gillian Ormonde
Marie Dennehy (left) and Finola Cronin made a special presentation to Waterford Eoin O’Herlihy, Ger O’Herlihy (President, Waterford Law Society), Tom Murran and Law Society council member, Bernadette Cahill, for her tireless work on behalf of Paul Murran were at Waterford Castle on 12 October Waterford solicitors throughout the year Law Society Gazette www.gazette.ie November 2012 people and places 47
Solicitors, Bar and court staff at the June sitting of the High Court in Waterford. Seated with Gerard O’Herlihy (President, Waterford Law Society) are Mr Justice Eamon de Valera (left) and Mr Justice John Hedigan Big changes in the wee county The County Louth Solicitors’ Bar In welcoming the guests, Association, comprised of solicitors Conor MacGuill, the bar who practise in Dundalk and association’s president, also paid Ardee, hosted a dinner in honour tribute to local colleagues John of Mr Justice Raymond Groarke Woods on being 50 years in on his appointment as President of practice, Don McDonough on the Circuit Court and Mr Justice reaching a significant birthday, Matthew Deery on completion of and Fergus Mullen on his his term of office in that role. appointment as state solicitor Judge Groarke was assigned for Louth. to the Eastern Circuit, which In acknowledging the includes Louth and Meath, before significant role and efficiency of the appointment of the present the Courts Service, a presentation At the Louth Solicitors’ Bar Association (LSBA) dinner in the Ballymascanlon occupant, Judge Michael O’Shea, was made to county registrar Hotel were (l to r): Elaine Connolly (secretary), Mr Justice Raymond Groarke, who was also honoured at the Mairead Ahern to mark the 20th Conor MacGuill (president), Mr Justice Matthew Deery and John McGahon event. anniversary of her appointment. (treasurer)
job-seekers’ legal register vacancies For Law Society members seeking a solicitor position, For Law Society members to advertise for all their full-time, part-time or as a locum legal staff requirements, not just qualified solicitors Log in to the members’ register of the Law Society Visit the employment section on the Law Society website, www.lawsociety.ie, to upload your website, www.lawsociety.ie, to place an ad or CV to the self-maintained job seekers contact employer support by email on register within the employment [email protected] section or contact career or tel: 01 672 4891. You support by email on can also log in to the members’ [email protected] or area to view the job seekers tel: 01 881 5772. register. Do You Have The Right Technical Solution?
For the collection, manipulation and review of evidential data in simple and complex cases.
Talk to Hacketts about: Contact: Joe Hackett Managing Director • Data Capture and Data Collection 17 Lower Baggot Street • Computer Forensics Dublin 2 • eDiscovery t: 01 676 0301 • Email Investigation and Search www.jdh.ie • Scanning and Coding • Reprographics
Diploma Programme New Year and Spring 2013
New Year 2013 Start date FeeS *
Diploma in Insolvency and Corporate Restructuring (incl iPad2 16 GB) Saturday 12 January €2,490
Certificate in Healthcare Law and Practice (new) Thursday 17 January €1,160
Certificate in Public Procurement Law and Practice Tuesday 26 February €1,160
SpriNg 2013 Start date FeeS *
Diploma in Technology Law (new) Tuesday 16 April €2,150
Diploma in Commercial Litigation Wednesday 17 April €2,150
Diploma in Employment Law (incl iPad2 16 GB) Saturday 27 April €2,490
Certificate in District Court Advocacy Saturday 13 April €1,160
Certificate in Human Rights Saturday 20 April €1,160
(*) Fees quoted are for solicitors. Non-legal personnel are subject to an application process and supplemental fee. please note discounts are available for trainees, out-of-work solicitors and multiple applications.
For further information: w: www.lawsociety.ie/diplomas Law Society of Ireland Diploma Programme e: [email protected] winner of Law School of the Year award p: 01 672 4802 (Irish Law Awards 2012)
Diploma ad Gazette November 2012 half page.indd 1 11/10/2012 11:04 Law Society Gazette www.gazette.ie November 2012 books 49 Corporate Insolvency and Rescue (2nd ed) THOMSON REUTERS TM Irene Lynch-Fannon and Gerard Murphy. Bloomsbury ROUND HALL Professional (2012), www.bloomsburyprofessional.com. ISBN: 978-1-84766-379-5. Price: €185.
The economic crisis into which Ireland was plunged in 2008 has led to significant changes in the legal and financial landscape affecting corporate insolvency and rescue, and this timely publication successfully provides a practical and useful guide on all aspects of this area. This book is comprehensive, current, practical and relevant for any ONLINE LEGAL individual advising in the ever-developing RESEARCH area of corporate insolvency and rescue. A detailed and comprehensive analysis TRANSFORMED is provided in a number of areas, including liquidations, receiverships, examinerships, schemes of arrangements, priority of 2009 and the growing emergence of pre-pack A NEW, IMPROVED creditors’ claims, fraudulent and reckless receiverships. trading, and restriction and disqualification The law relating to corporate restructuring AND MORE of directors. The book contains succinct and insolvency has grown and developed at summaries of the relevant case law for each an unprecedented rate in recent years, with POWERFUL applicable area and, importantly, it includes many new developments that are of direct an analysis of recent decisions of the High implication, and this book is an indispensable ONLINE LEGAL Court such as DR Developments (sale of tool for all insolvency practitioners of all levels fixed charged asset by an official liquidator), of experience. G RESEARCH JD Brian Motors (crystallisation of floating charges) and Kavanagh and Lowe (ability to Andrea Brennan is an associate in A&L EXPERIENCE appoint a receiver). Goodbody’s restructuring and insolvency team. The book contains practical guides and IS HERE information, such as the procedure and library services practical considerations of compulsory WESTLAW IE liquidations. All insolvency practitioners will • Online catalogue and app, find the ‘Guide to Preferential Creditors’ • Book loans, contained at the end of chapter 8 particularly • Enquiry service, useful. It has helpfully reproduced the new • Precedents service, Rules of the Superior Courts introduced by SI • Document delivery, 121/2012 as an appendix to the book. Of • Weekly judgments alerter. assistance and included also as appendices are practice directions HC28 and HC55 and Further details on any of the above services a precedent draft winding-up petition and are available by contacting the library on advertisement. This book also includes an tel: 01 672 4843/4, email: library@ SEE IT. BELIEVE IT. analysis of the statutory receiver introduced lawsociety.ie. by the National Asset Management Agency Act 1800 50 90 34 [email protected] JusT PUBLISHED westlaw.ie New library books available to borrow • Anderman, Steven et al, EU Competition • McIntyre, T et al, Criminal Law (Round Hall, Law and Intellectual Property Rights: the 2012) Regulation of Innovation (2nd ed; OUP, 2011) • Weatherill, Stephen, Cases and Materials on • Kelly, Emma and Farhat Bokhari, EU Law (10th ed; OUP, 2012) Safeguarding Children from Abroad: Refugee, • Whish, Richard and David Bailey, Competition Asylum Seeking and Trafficked Children in the Law (7th ed; OUP, 2012) UK (JKP, 2012) • Willems, Marcel (ed), Cash Pooling and • Lenaerts, Koen et al, European Union Law Insolvency: a Practical Global Handbook (3rd ed; Sweet & Maxwell, 2011) (Global Law & Business, 2012) CAN WE TALK?
There is nothing quite like talking to someone who has been there. LawCare has over CAN WE TALK? Health Support and 100 volunteers who, collectively, have dealt with a broad variety of personal problems Advice for Lawyers including alcoholism, addiction, stress and depression. If you or someoneThere you is nothing know quite like talking to someone who has been there. LawCare has over 1800 991801 Health Support and needs help then 50callpract iusce notes in complete confidence. Law Society Gazette www.gazette.ie November 2012 100 volunteers who, collectively, have dealt with a broad variety of personal problems www.lawcare.ie Advice for Lawyers including alcoholism, addiction, stress and depression. If you or someone you know briefing 1800 991801 needs help then call us in complete confidence. Practice notes www.lawcare.ie Professional indemnity insurance common proposal form Following on the successful not seek to have a requirement to such information in order to information on how the claim introduction of the common provide this certificate included decide whether to insure the arose and what procedures are proposal form in the current in the common proposal form. firm. In this case, the insurer now in place to ensure that indemnity period, the Society Please note that the fee for must make a statement to that henceforth, as far as possible, has released the common obtaining a certificate of good effect and request that the firm such claims will not arise. Failure proposal form for the 2012/2013 standing from the Society within provide such supplemental to provide a claims history or indemnity period. This form ten working days is €100, to be information within a reasonable provision of an incomplete is available to download from paid in advance of the certificate timescale. claims history may indicate to the Society’s website at www. issuing. Certificates of good CANIt is proper practice WE for firms TALK? insurers that something is being CAN WE TALK?
lawsociety.ie/Pages/PII/ under standing issued later than ten to notify insurers of claims or hidden. Claims information is the 2012/2013 renewal resourcesThere working is days nothing are free of quitecharge. likecircumstances talking arisingto someone during the whoused hasby insurers been tothere. compare LawCare There is has nothing over quite like talking to someone who has been there. LawCare has over section.Health The Support form will and also be100 Answervolunteers all questions who, – if you collectively,are year as they arise, have not atdealt the end ofwith your a Healthbroapreviousd Support variety loss experience and of personal 100 volunteers problems who, collectively, have dealt with a broad variety of personal problems circulated by insurers, directly or unsure of any question, answer the indemnity period. Notifying against improvements to risk Advice for Lawyers including alcoholism, addiction, stress and depression.Advice If for you Lawyers or someoneincluding you alcoholism, know addiction, stress and depression. If you or someone you know through1800 brokers. 991801 what you think the insurer is all claims and circumstances at management1800 991801you may have This common proposal formneeds looking help for and then provide call additional us in completethe end of the confidence.indemnity period implemented or changes you needs help then call us in complete confidence. will ensurewww.lawcare.ie that each firm will have information to clarify. Check and is referred to as ‘laundry listing’ may havewww.lawcare.ie made to your work- LIVING ON YOUR KNEES? LIVING ON YOUR KNEES?type activities. to complete only one proposal recheck the form to ensure that by insurers and is not looked on form at the next renewal, thereby all questions have been answered favourably. Firms should ensure to simplifying the renewal process correctly. Firms must notify their redact any information in any for the profession and making it Check that all additional current insurer of all claims and Healthdocumentation Support provided and to Alcoholism, chemical dependence, stress and emotional problems are progressive Health Support and Alcoholism, chemicaleasier for firms to obtain dependence, multiple documentation has stressbeen attached circumstances and emotional before the end of insurers pro that mayblems breach legal are progressive quotes. to the form and is correctly cross- the indemnity period. Adviceprivilege or for client Lawyers confidentiality. illnesses. The earlier they are detected and treated the easier the road to recovery. If Advice for Lawyers Guidelines for the common referenced. The common proposal form is The risk-management section illnesses. The earlierproposal form,they including are detectedMake sure that the figures and add antreated application for normal th PII,e noteasier 1800of the common 991801the proposal road form to recovery. If guidance for specific areas of up. For example, ensure that for run-off cover. Firms should has been greatly expanded, you or someone you know needs help then call us in complete confidence. the form, can be found on the gross fee income figuresCAN add WE up TALK?contact the special purpose fund compared with forms previous to 1800 991801 you or someone you know needs help then call us in complwww.lawcare.ieete confidence. Society’s website. Thereto is 100%. nothing quite like talking to someonemanager, who has beenCapita there. LawCareCommercial has over the introduction of the common www.lawcare.ie Health Support and 100 volunteersThe insurer who, collectively,must accept have a fully dealt withInsurance a broad varietyServices, of personal with regardproblems proposal form. Insurers are Points to note Advice for Lawyers includingcompleted alcoholism, proposal addiction, form as stress a duly and depression.to obtaining If you or run-off someone youcover know focusing on risk management, 1800 991801 needs help then call us in completeLIVING confidence. ON YOUR KNEES? LIVING ON YOUR KNEES? Ultimately, you arewww.lawcare.ie responsible completed application for a policy through the Run-off Fund. The and it would be to the benefit for obtaining PII before the and must not require the firm to special purpose fund manager of firms to demonstrate to renewal date. complete or submit any other can be contacted by phone on insurers that they have robust Health Support and Alcoholism, chemical dependence, stress and emotionalHealth Support pro andblems areAlcoholism, progressive chemical dependence, stress and emotional problems are progressive Your proposal form should be proposal form or application for 0044 207 397 4539 or email spf@ risk-management procedures in Advice for Lawyers Advice for Lawyers submitted early, be completed illnesses.a policy. The earlier theycapita.co.uk. are detected More information and treated place. th e easier the roadillnesses. to recovery. The Ifearlier they are detected and treated the easier the road to recovery. 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handwritten proposal forms. form fully completed by that firm. be provided by your current answer is some variation of ‘yes’ Health Support and Alcoholism, chemical dependence, stress and emotional problems are progressive Firms are notAdvice requiredfor Lawyers toillnesses. The The insurer earlier theycan areonly detected request and treatedinsurer the easierand be the attachedroad to recovery. to the If or ‘no’, expanded answers should provide certificates1800 991801of good you ora someonefirm toyou knowprovide needs ithelp with then call commonus in compl proposalete confidence. form. If you be provided on such questions standing with www.lawcare.iethe common supplemental information where have a poor claims history, in the covering letter submitted proposal form, and insurers did the insurer reasonably requires provide the insurer with further with the form. STRESSED?
STRESSED?Health Support and Are you balancingSTRESSED? family and career? Struggling to reach unattainable targets? STRESSED?STRESSED? Advice for Lawyers Working until late at night just to keep abreast of everything? LawCare can help you AreAre you youbalancing balancing family and career? family Struggling and to reach career? unattainable Struggling targets? to reach unattainableAre you targets? balancing family and career? Struggling to reach unattainable targets? Health SupportHealth Support and and Health Support and Advice for LawyersAdvice for Lawyers WorkingWorking until late until at night latejust to keepat nightabreast of justeverything? to LawCarekeep canabreast help you of1800 everAdviceything? for991801 Lawyers LawCare Working canhelp help until youyourself. late at night We just offerto keep aabreast free, of independent everything? LawCare and can completel help you y confidential service. 1800 991801 help yourself. We offer a free, independent and completely confidential service. Are you balancing1800 family991801www.lawcare.ie help and yourself. career? We offer Strugglinga free, independent and to completel reachwww.lawcare.ie1800y 991801 confidential unat tainablehelp service. yourself. targets?We offer a free, independent and completely confidential service. Health Support and www.lawcare.ie www.lawcare.ie Advice for Lawyers Working until late at night just to keep abreast of everything? LawCare can help you 1800 991801 help yourself. We offer a free, independent and completely confidential service. NEED A DRINK? www.lawcare.ie If the stress is getting to you, it’s understandable that y ou want to unwind. But alcohol Health Support and can create many more problems than it solves. If you feel you need to cut down, or if Advice for Lawyers 1800 991801 people are annoying you by complaining that you drink too much, why not call our free confidential helpline? www.lawcare.ie NEED A DRINK? NEED A DRINK?
If the stress is getting to you, it’s understandable that y ou want to unwind.If the But stress alcohol is getting to you, it’s understandable that y ou want to unwind. But alcohol Health Support and can create many more problems than it solves. If youHealth feel Support you and need tocan cut create down, many or if more problems than it solves.NEED If you feel you A need DRINK?to cut down, or if Advice for Lawyers Advice for Lawyers 1800 991801 people are annoying you by complaining that you drink1800 too 991801 much, whypeople not call are our annoying free you by complaining that you drink too much, why not call our free www.lawcare.ie confidential helpline? www.lawcare.ie confidentialIf the helpline? stress is getting to you, it’s understandable that y ou want to unwind. But alcohol Health Support and can create many more problems than it solves. If you feel you need to cut down, or if Advice for Lawyers NEED A DRINK?1800 991801 people are annoying you by complaining that you drink too much, why not call our free www.lawcare.ie confidential helpline?
If the stress is getting to you, it’s understandable that y ou want to unwind. But alcohol Health Support and can create many more problems than it solves. If you feel you need to cut down, or if Advice for Lawyers 1800 991801 people are annoying you by complaining that you drink too much, why not call our free www.lawcare.ie confidential helpline? Law Society Gazette www.gazette.ie November 2012 practice notes 51 briefing Professional indemnity insurance renewal The mandatory professional in- ing is an indication of the financial Notification of claims by quotes to firms open for a period of demnity insurance (PII) renewal strength of an insurer, it does not 30 November 2012 not less than ten working days, an date is 1 December 2012. This guarantee an insurer’s financial All claims made against solicitors’ increase from five working days for date is not negotiable. All cover solvency. firms and circumstances that may the 2011/2012 indemnity period. under the current indemnity pe- Qualified insurers are required give rise to such a claim should riod will expire on 30 November to disclose their financial rat- be notified to the firm’s insurer Run-off Fund 2012. ing, or absence thereof, to firms as soon as possible. In particular, The Run-off Fund provides run-off when issuing quotations. This re- claims made between 1 December cover for firms ceasing practice: Confirmation of cover quirement was introduced in the 2011 and 30 November 2012 (both 1) Who have renewed their PII for The PII regulations for the 2011/2012 indemnity period and dates inclusive) should be notified the current indemnity period, 2012/2013 renewal period have remains in place for the 2012/2013 by the firm to their insurer by 30 and been amended to reduce the peri- indemnity period in order to: November 2012. 2) Subject to meeting eligibility cri- od for confirmation to the Society 1) Allow firms to make a more The minimum terms and condi- teria, including that there is no of PII cover from ten working days fully informed decision on their tions for PII were amended in the succeeding practice in respect of to three working days. Therefore, choice of insurer, Solicitors Acts 1954 to 2008 (Profes- the firm. confirmation of cover in the des- 2) Ensure full transparency for the sional Indemnity Insurance) Regula- ignated form must be provided to profession in relation to quali- tions 2011 (SI no 409 of 2011) to Any firm intending to cease practice the Society on or before 6 Decem- fied insurers meeting, or not permit firms to report claims or after 30 November 2012 is required ber 2012. meeting, generally accepted circumstances of which they are to renew cover for the 2012/2013 standards of financial strength, aware prior to expiry of cover to indemnity period. Further informa- Guide to renewal and their insurer within three work- tion on run-off cover can be found The guide to renewal for the 3) Do so in a way that will not re- ing days immediately following the on the Society’s website at www. 2012/2013 indemnity period is strict firms’ choice of insurer. end of the coverage period. There- lawsociety.ie/Pages/PII/Run-off- being published on the Society’s fore, a three-working day grace pe- Cover/. website to assist the profession It should be noted that all quali- riod from 30 November 2012 is in with renewal. The guide includes fied insurers in the market are per- place with regard to notification of PII helpline information such as tips for renew- mitted to write insurance in this claims and circumstances to your The Society continues to operate al, important points to note, and a jurisdiction under the supervision insurer. the PII Helpline to assist firms in guide to insurers and brokers. This of the Central Bank. The Society dealing with PII queries. The PII guide will be updated frequently is not responsible for policing the Improvements to the renewal Helpline is open Monday to Friday with new information received financial stability of any insurer. process from 10am to 4pm and can be con- by the Society, in particular with The Society does not vet, approve For the 2012/2013 indemnity pe- tacted by phoning 01 879 8790 or regard to what insurers will be in or regulate insurers. riod, insurers are required to leave emailing [email protected]. the market in the next indemnity period. NOTICE 2012/2013 renewal resources Renewal resources for the Criminal Legal Aid Panel 2012-2013: 2012/2013 indemnity period are available to download from the tax clearance certificates Society website at //www.lawso- Members who wish to retain their piry date later than 30 November Online Service (www.revenue.ie). ciety.ie/Pages/PII/ and currently name on the Criminal Legal Aid 2012. Note: fees will not be paid to a includes: Panel for the legal aid year 1 Applications for tax clearance solicitor who accepts an assign- 1) Common proposal form, December 2012 to 30 November certificates can be made in writ- ment to a case if his/her name is 2) List of brokers, 2013 are required to hold a tax ing (Form TC1) to Revenue Local not, at the time of assignment, on 3) List of insurers, and the clearance certificate with an ex- District offices or via Revenue’s the relevant solicitors’ panel. 4) Qualified Insurers Agreement.
This area will be updated fre- quently as more documentation eStamping: Revenue rulings on circumstances becomes available. conveyancing COMMITTEE Disclosure of financial rating The committee confirms that stances) in the same manner as used when making an e-filing, by qualified insurers Revenue has indicated, through the it did before the introduction of and this is a form of comfort also. Financial ratings are obtained by Tax Advisers Liaison Committee self-assessment and e-filing for However, it should be noted that insurers following assessment of (of which the Law Society is a stamp duty. it can only be made for filings their financial strength through member), that it will continue Solicitors are also reminded made within 30 days of the date an independent process by a rat- to give prior clarifications/ that the ‘expression of doubt’ box of the instrument – it cannot be ing agency. While a financial rat- confirmations (rulings on circum- on the stamp duty return can be made after that date. 52 practice notes Law Society Gazette www.gazette.ie November 2012 briefing Practising certificate 2013: notice to all practising solicitors It is professional misconduct and delivered, to the Registrar of So- of the committee will be held on form with their practising certifi- a criminal offence for a solicitor licitors, on or before 1 February a date after 1 February 2013, to be cate application form. Failure to (other than a solicitor in the full- 2013, an application in the pre- decided at a later date, to consider do so will result in the applica- time service of the State) to prac- scribed form correctly completed any late or unresolved applica- tion form being returned as in- tise without a practising certifi- and signed by the applicant solici- tions for practising certificates. complete. cate. A solicitor shall be deemed tor personally, together with the At this meeting, any practising Each EFT payment must have to practise as a solicitor if he or appropriate fee. The onus is on solicitors who have not applied an easily identifiable specific ref- she engages in the provision of each solicitor to ensure that his by that date for a practising cer- erence, such as the firm or com- legal services. ‘Legal services’ are or her application form and fee is tificate will be considered for re- pany name, the solicitor’s name services of a legal or financial na- delivered on or before 1 February ferral forthwith to the Solicitors or the solicitor’s number. General ture provided by a solicitor arising 2013. Applications should be de- Disciplinary Tribunal and will be references such as ‘Law Society’ from that solicitor’s practice as a livered to the Regulation Depart- informed that the Society reserves or ‘practising certificate’ will not solicitor. ment of the Society at George’s the right to take proceedings for be accepted and may result in a It should be noted that, as set out Court, George’s Lane, Dublin 7; an order under section 18 of the significant delay in the issuing in the practice note ‘Prohibition DX 1025. Solicitors (Amendment) Act 2002 to of the practising certificate. The on practising as a solicitor without Please note that any incorrectly prevent them from practising il- payment reference used must be a practising certificate: solicitors completed application forms or legally. included in the EFT form. Fail- cannot be “legal executives” or applications without full payment ure to include this information “paralegals”’, as published in the cannot be processed and will be If you are an employed solicitor will result in the application Gazette in July 2009 and again in returned. Therefore, solicitors Solicitors who are employed form being returned as incom- February 2012, it is not permissi- are strongly advised to read and should note that it is the statutory plete. ble for a firm to classify a solicitor take full account of the practis- obligation of every solicitor who employed by a firm as a ‘legal ex- ing certificate application form requires a practising certificate to Law Directory 2013 ecutive’ or ‘paralegal’ with a view guidelines when completing the ensure that he or she has a prac- It is intended that the Law Direc- to avoiding the requirement to form. tising certificate in force from the tory 2013 will note all solicitors hold a practising certificate if the commencement of the year. Em- who have been issued with a prac- solicitor is engaged in the provi- What happens if you apply late? ployed solicitors cannot absolve tising certificate by 22 February sion of legal services. Any applications for practising themselves from this responsibil- 2013. Practising certificates can The actions that can be taken certificates that are received af- ity by relying on their employers only be issued following receipt against a solicitor found to be ter 1 February 2013 will result to procure their practising certifi- of a properly completed applica- practising without a practising in the practising certificate being cates. However, it is the Society’s tion form together with full pay- certificate include a referral to dated the date of actual receipt by recommendation that all employ- ment, with no outstanding que- the Solicitors Disciplinary Tri- the Registrar of Solicitors, rather ers should pay for the practising ries raised thereon. It should be bunal, an application to the High than 1 January 2013. There is no certificate of solicitors employed noted that only those solicitors Court, and a report to An Garda legal power to allow any period by them. with practising certificates issued Síochána. of grace under any circumstances by 22 February 2013 will be in- whatsoever. Some of your details are already cluded in the Law Directory, not Practising certificate application Please note that, as mentioned on the application form every solicitor who has submitted forms above, you cannot provide legal The practising certificate appli- an application form by 22 Febru- Application forms for solicitors in services as a solicitor without a cation forms will be issued with ary 2013. private practice will be forwarded practising certificate in force. certain information relating to Therefore, in order to ensure to the principal or the managing Therefore, solicitors whose prac- each solicitor’s practice already that your practising certificate partner in each practice, rather tising certificate application forms completed. Such information will issues by 22 February 2013 to than each solicitor. Please note are received after 1 February 2013 include the relevant fees due by enable you to be included in the that practising certificate applica- and whose practising certificates each solicitor, including allowance Law Directory, you should ensure tion forms will not be available are therefore dated after 1 Feb- for solicitors of 70 years or over, that the application form you re- until after 19 December 2012. ruary 2013, who have provided as they will not be covered under turn to the Society is completed legal services before that date, are the provisions of the Solicitors’ correctly and includes full pay- When you must apply advised to make an application to Group Life Scheme. ment of fees due. If the form is A practising certificate must be the President of the High Court not completed correctly or fees applied for on or before 1 Feb- to have their practising certifi- Payment by electronic funds have not been paid in full, it will ruary in each year in order to be cates backdated to 1 January 2013. transfer (EFT) be necessary for the Society to dated 1 January of that year and The Regulation of Practice All practising certificate applica- return the form, which may re- thereby operate as a qualification Committee is the regulatory com- tion forms sent out will include an sult in delaying the issue of your to practise from the commence- mittee of the Society that has re- EFT payment form. Any solicitor practising certificate, despite the ment of the year. It is therefore a sponsibility for supervising com- wishing to pay the practising cer- fact that you had applied for the legal requirement for a practising pliance with practising certificate tificate fee by EFT must complete practising certificate prior to 22 solicitor to deliver, or cause to be requirements. A special meeting and return the EFT payment February 2013. Law Society Gazette www.gazette.ie November 2012 practice notes 53 briefing The details of any solicitor area of the Law Society’s website If you are ceasing practice will arrive on time, or at all, send whose practising certificate issues after 19 December 2012, which If you have recently ceased by recorded post, tracked DX or after 22 February 2012 will not can be completed online prior to practice or are intending to cease courier. be included in the Law Directory, printing a copy for signing and practice in the coming year, but will be included in a supple- returning to the Society with please notify the Society accord- Duplicate practising certificate mentary list of solicitors that will the appropriate fee. This area is ingly. Please note that there is a fee of be published at a later date on the accessible using your username €50 in respect of each duplicate Society’s website. and password. If you require Acknowledgment of practising certificate issued for assistance, please visit www. application forms any purpose. What can you access on the lawsociety.ie/help. In addition, Please note that it is not the So- website (www.lawsociety.ie)? you may request a form to be ciety’s policy to acknowledge re- John Elliot, A blank, editable application form emailed to you by emailing pc@ ceipt of application forms. If in Registrar of Solicitors and Director of will be available in the members’ lawsociety.ie. doubt that your application form Regulation
Registration of easement Practising certificate on a leasehold folio fee waiver for solicitors conveyancing COMMITTEE participating in Skillnet, Prior to the Registration of Deeds and in particular when acting JobBridge or WPP schemes and Title Act 2006 (the 2006 act), for a vendor, to read through a lease of registered land was the section 72 burdens very Solicitors providing legal • They are receiving no salary, deemed to be a first registration of carefully (and especially where services through work- wage or other remuneration an unregistered leasehold interest it appears that the land was only experience initiatives, such from the firm or organisation and, as stated in sections 69 and newly registered on foot of a first as Skillnet, JobBridge or providing the work experience, 72 of the Registration of Titles registration application) to make WPP schemes, are required other than that prescribed Act 1964, an easement has to be sure that there were no easements to hold a current practising by the Department of Social created by express grant after the created by express grant before the certificate, just as required for Protection, and first registration of land for it to be first registration of the land, and any solicitor employed on a • They have no contract of a section 69 burden; otherwise it is which are not shown on the folio paid basis. However, the Law employment with the firm or a section 72 burden. as a burden or as a section 72(3) Society has put in place an organisation providing the If an easement contained in a note, but which would be a burden arrangement whereby solicitors work experience. lease was not created by express under section 72(h) and would on formalised work experience grant after the first registration need to be disclosed in the section schemes will be provided with The waiver, if granted, shall of the leasehold folio, it cannot 72 declaration. a practising certificate free of apply only so long as all of the be registered as a burden on the One would hope that, if the charge for the duration of the above provisions continue to freehold folio. However, a note easement is in writing, it would placement. apply to the solicitor. If any of under section 72(3) can be made be with the title deeds as a Solicitors applying for such these provisions cease to apply, on the folio, on request. warning when drafting a section waiver must complete and the solicitor is required to notify After the 2006 act, a lease of 72 declaration that this easement return the relevant application the Regulation Department registered land was deemed to exists, even though there is no note for waiver to the Society and the Career Support Section be a registered land transaction, of it on the folio. and must meet the following of the Society in writing with and easements created after 2006 If your client informs you that criteria: immediate effect, and is liable in relation to a leasehold folio to there is an easement in writing • They must be registered to pay the due amounts pro rata be opened for registered land are affecting his/her land, but it does with the Law Society’s for the practising certificate for registerable as a burden under not show up on the folio, you Career Support Service as the remainder of the practice section 69. should seek a copy of the deed participating in the Skillnet, year. Any practising certificate In respect of the first registration relating to same from your client JobBridge or WPP scheme, granted under the scheme must of unregistered land, in general and disclose it as a section 72 • They are providing legal be returned at the end of the terms, an easement affecting the burden. services by participating in placement. land at the time of first registration Practitioners are reminded to the Skillnet, JobBridge or Solicitors seeking to avail of is not registerable as it has not been advise clients of what a section WPP scheme, such a waiver under one of the created after the first registration 72 declaration entails. It is • They are providing legal approved schemes listed above of the land. The only thing to do recommended that the full form services to and for the firm should contact the Society’s in this case would be to register a of section 72 declaration be used or organisation providing the Regulation Department at pc@ section 72(3) note on the new folio rather than the short form: a work experience through the lawsociety.ie. The application for to be opened. precedent of the long form is Skillnet, JobBridge or WPP waiver is available for download It is therefore important when available in the members’ area of scheme only, and not to any from the members’ area of the dealing with registered land, the Law Society website. other third party, Society’s website. 54 practice notes Law Society Gazette www.gazette.ie November 2012 briefing Land Registration (Fees) New Circuit Court Rules: Order 2012 actions for possession and conveyancing COMMITTEE well-charging relief The above fees order comes in respect of applications for conveyancing COMMITTEE into operation on 1 December registration to be lodged on or 2012. It introduces substantially after 1 December 2012, and Practitioners’ attention is drawn to Circuit Court to modify the pro- increased fees for Land Registry • That applications are lodged the Circuit Court Rules (Actions for cedure in respect of proceedings applications. The schedule to the before 1 December 2012 where Possession and Well-Charging Relief) for recovery of possession of fees order sets out the new rates fees were collected from clients 2012 (SI 358 of 2012), which land and proceedings to declare a that apply and is available on the at the rates set out in previous amends the existing rules of the mortgage well-charged on land. PRA website. Practitioners are fees orders. urged to immediately familiarise themselves with the new rates in The PRA has confirmed that a order to facilitate collection of the copy folio and filed plan now comes Prohibition on acting for correct fees from clients, especially under the fee heading at no 28 in its during the period between now and Summary Schedule and its new fee both vendor and purchaser 1 December 2012. for this item is €40. Practitioners should note the A number of new fee headings, in conveyancing transactions introduction of new bands for the for example, under various Housing relevant fees for transfers on sale Acts, affordable home purchase from 2013 and, in the context of undertakings schemes, and so on, have arisen conveyancing COMMITTEE given by solicitors to lending since the last fees order in 1999, and institutions regarding stamping new fees have been introduced in Practitioners’ attention is drawn conveyancing transaction (as and registration of clients’ titles and respect of these applications. to SI 375 of 2012, whereby a defined in the SI and including lenders’ charges, should ensure: A fee of €130 has been introduced solicitor, from 1 January 2013 a voluntary transfer), except in a • That the correct registration for registration of easements and onward, may not act for both few limited circumstances as set fees are collected from clients profits a prendre. vendor and purchaser in a out in the statutory instrument.
notice to all practising solicitors Solicitors (Advertising) Regulations 2002 All practising solicitors are the words ‘personal injuries’. If factual information on the legal under section 18 of the Solicitors reminded that the Solicitors a solicitor decides to refer in an services provided, no one category (Amendment) Act 2002 by way of an (Advertising) Regulations 2002 (SI advertisement to personal injuries may be given prominence. The application by the Law Society to the no 518 of 2002) particularly restrict or other contentious business, the practice of listing different types of High Court for an order prohibiting personal injuries advertising. advertisement must clearly refer personal injury actions in a list of a solicitor from contravening the The definition of advertisement to the prohibition on percentage services provided has been deemed regulations, and an application by is wide and includes any charging in connection with by the Law Society to be a prima the Law Society to the Solicitors communication that “is intended to contentious business. facie breach of the regulations. Disciplinary Tribunal for an inquiry publicise or otherwise promote a Any words or phrases that Section 5 of the Solicitors into the conduct of a solicitor on the solicitor in relation to the solicitor’s suggest that legal services relating (Amendment) Act 2002 prohibits grounds of alleged misconduct. practice”. Websites are covered by to contentious business will be a person who is not a solicitor This notice relates to aspects of the definition. provided at no cost or at a reduced publishing advertisements, which, the regulations that are particularly The regulations prohibit advert- cost are not permitted – for example if published by a solicitor, would relevant to personal injuries isements that refer to claims or ‘no foal, no fee’, ‘most cases settle be in breach of the legislation. advertising and is not intended possible claims for damages for out of court’ or ‘insurance cover The act extends the definition of as a comprehensive guide to the personal injuries, the outcome of arranged to cover legal costs’. misconduct to include a solicitor regulations. This notice is intended such claims, or the provision of Advertisements cannot contain having any direct or indirect as general guidance in relation to services by solicitors in conjunction cartoons, dramatic or emotive association with a person who the subject matter and does not with such claims and advertisements words or pictures, nor can they refer is acting in contravention of constitute a definitive statement of that solicit, encourage or offer any to calamitous events, such as train section 5. the law. inducement to make such claims. or bus crashes. Solicitors cannot Appropriate action will be taken Any advertisement that contains advertise their willingness to make against solicitors committing a John Elliot, factual information on legal home or hospital visits. breach of the regulations. Such Registrar of Solicitors services provided may include Where an advertisement contains action may include proceedings and Director of Regulation Law Society Gazette www.gazette.ie November 2012 legislation update 55 briefing Legislation update 11 September – 5 October 2012
Details of all bills, acts and statutory instruments since 1997 would otherwise be triable where tial amendments to the forms of are on the library catalogue – www.lawsociety.ie (members’ the effective disposal of business notice of trial. generally of the court requires; and students’ area) – with updated information on the current Commencement: 15/10/2012 for an application to the court for stage a bill has reached and the commencement date(s) of a change of venue in certain cir- Prepared by the each act. All recent bills and acts (full text in PDF) are on cumstances; and for consequen- Law Society Library www.oireachtas.ie, and recent statutory instruments are available in PDF at www.attorneygeneral.ie/esi/esi_index.html One to watch
selected statutOry Effects amendments to order 75 One to watch: new legislation instruments consequential on the European Residential Institutions Statutory • Education services, and Circuit Court Rules (Actions for Communities (Mergers and Divi- Fund Act 2012 • Housing and support services. Possession and Well-Charging sions of Companies) (Amendment) The primary purpose of this act is Relief) 2012 Regulations 2011, which dispense to provide for the establishment of In determining criteria to make a Number: SI 358/2012 with certain requirements in the the Residential Institutions Statu- decision in respect of an application Amends rules 5 and 7 of order 5B case of (a) a merger to which the tory Fund Board, a statutory body for provision of approved services to modify the procedure in re- European Communities (Merg- to use the cash contributions of- and associated grants, the board spect of proceedings for recovery ers and Divisions of Companies) fered by religious congregations to will need to take account of: of possession of land on foot of a Regulations 1987 (SI 137/1987) support the needs of some 15,000 • The individual circumstances, legal mortgage or charge and pro- and European Communities (Cross- survivors of residential institu- including personal and financial ceedings to declare a mortgage Border Mergers) Regulations (SI tional child abuse who received circumstances, of former resi- well-charged on land. 157/2008) respectively apply, and awards from the Residential Insti- dents, Commencement: 15/10/2012 (b) a division by acquisition or by tutions Redress Board or equiva- • Assess the likely effect of the pro- formation of new companies to lent court awards. vision of a service on the health Rules of the Superior Courts which the 1987 regulations apply, The principal functions of the and general well-being, personal (European Communities in the circumstances specified in board are to “utilise resources avail- and social development, educa- (Mediation) Regulations 2011) the 2011 regulations. able to it in a manner that promotes tional development or living con- 2012 Commencement: 15/10/2012 the principles of equity, consistency ditions of the former residents, Number: SI 357/2012 and transparency” to make arrange- • Apply limits to the moneys that Inserts a new rule 5 in order 56A Rules of the Superior Courts ments for the provision of an ‘ap- may be made available for an ar- facilitating an application to the (Trial) 2012 proved service’ to support the needs rangement or grant, master by a party or parties to an Number: SI 355/2012 of individual former residents, and • Specify minimum standards to agreement, following the use of Amends order 36, rules 2 and 15 to pay grants to former residents to be met by a provider of an ap- mediation referred to in European to provide for the setting down enable them avail of an approved proved service, Communities (Mediation) Regula- for trial of proceedings in per- service. • Specify any supporting evidence tions 2011 (SI 209/2011) for an sonal injuries actions in the city In the act, ‘approved service’ that may be required to be fur- order making the agreement a or town prescribed as a venue for means a service belonging to one of nished by former residents, and rule of court. the county in which the plaintiff the following class of services: • Take into account any other mat- Commencement: 15/10/2012 resides or the wrong is alleged • Mental health, counselling or ter that the board considers, hav- to have been committed or to psychological support services, ing regard to the functions of the Rules of the Superior Courts have happened; for the holding • Health and personal support ser- board, is a proper matter to be (Order 75) 2012 of trials at a venue other than vices, taken into account. G Number: SI 356/2012 the provincial venue at which it consult a colleague 01 284 8484 The Consult a Colleague helpline is available to assist every member of the profession with any problem, whether personal or professional
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HoteL europe Killarney Law Society Gazette www.gazette.ie November 2012 regulation 57 briefing
Solicitors Disciplinary Tribunal NoticeS: the high court Record no 2012 no 55 SA Record no 2012 no 74 SA Reports of the outcomes of Solicitors Disciplinary Tribunal In the matter of Liam M O’Brien, In the matter of John R Fether- inquiries are published by the Law Society of Ireland as provided practising as Liam M O’Brien, stonhaugh, solicitor, practising for in section 23 (as amended by section 17 of the Solicitors solicitor, 21 Quinsboro Road, Bray, as Fetherstonhaugh’s Solicitors, (Amendment) Act 2002) of the Solicitors (Amendment) Act 1994 Co Wicklow, and in the matter of 34 Patrick Street, Mountmellick, the Solicitors Acts 1954-2011 Co Laois, and in the matter of the In the matter of Thomas J Myl- b) Failed to adequately respond Take notice that, by order of the Solicitors Acts 1954-2011 es, a solicitor practising as Myl- to the complainant’s corre- High Court made in camera on Take notice that, by order of the es & Co, Solicitors, 21 Hillside, spondence and, in particular, Monday 2 July 2012, it was ordered High Court made on Wednesday 19 Monaghan, Co Monaghan and letters dated 8 January 2008, that the respondent solicitor shall September 2012, it was ordered in the matter of the Solicitors 16 June 2008, 12 January 2009, be suspended from practising as that the respondent solicitor shall Acts 1954-2008 [4961/DT48/10 26 January 2009, 27 January a solicitor until further order of be suspended from practising as a and 2011 no 76 SA] 2009, 30 January 2009, 11 Feb- the court. Publication of this matter solicitor until further order of the Law Society of Ireland (applicant) ruary 2009 and 23 February was permitted by order of the High court. Thomas J Myles (respondent 2009 respectively, Court on Wednesday 19 September John Elliot, Registrar of Solicitors, solicitor) c) Failed to register the com- 2012. 24 September 2012 On 25 November 2010, the Solic- plainant’s charge on the prop- John Elliot, Registrar of Solicitors, itors Disciplinary Tribunal found erty and instead allowing the 24 September 2012 Record no 2012 no 28 SA the respondent solicitor guilty of subject property to be sold and In the matter of James M Swee- misconduct in his practice as a so- the sale proceeds released to a Record no 2012 no 56 SA ney, a solicitor formerly practising licitor in that he: third party, In the matter of Aiden Barry, practis- as James M Sweeney at 14 Cabra a) Failed to honour an undertak- d) Failed to adequately comply ing as Aiden Barry, solicitor, Roche Road, Phibsborough, Dublin 7, and ing given by him in letter dated with the service of a notice House, 8 Bank Place, Limerick, Co in the matter of the Solicitors Acts 14 January 2000 to the com- pursuant to section 10 of the Limerick, and in the matter of the 1954-2008 plainant in respect of a property Solicitors (Amendment) Act 1994 Solicitors Acts 1954-2011 Take notice that, by order of the in Co Monaghan, in which he served on him by the Society, Take notice that, by order of the High Court made on Monday 21 undertook to do the following: dated 22 April 2009, High Court made on Wednesday 19 May 2012, it was ordered that the 1) To ensure that all the docu- e) Represented in a letter dated September 2012, it was ordered name of James M Sweeney, formerly mentation required to give 6 May 2009 that he had noti- that the respondent solicitor shall practising as James M Sweeney the complainant a valid first fied his professional indemnity be suspended from practising as a at 14 Cabra Road, Phibsborough, legal mortgage on all of the insurers when in fact he had solicitor until further order of the Dublin 7, be struck off the Roll of borrower’s estate and in- not, court. Solicitors. terests in the property was f) Failed to adequately respond John Elliot, Registrar of Solicitors, John Elliot, Registrar of Solicitors, completed by all appropri- to the Society’s correspon- 24 September 2012 2 October 2012 ate persons and all necessary dence and, in particular, letters consents obtained and inde- dated 9 March 2009, 23 March pendent legal advice obtained 2009, 23 April 2009, and 1 May Society the costs of the High bank, set out in a letter of where required, 2009. Court proceedings when taxed undertaking dated 5 June 2) To ensure that the borrower or ascertained. 2001, whereby he undertook required good marketable The tribunal ordered that the to register a first legal mort- title to the property, or if the matter go forward to the High In the matter of Thomas J gage over a property in Co property was already owned Court, and the President of the Myles, a solicitor practising Monaghan belonging to a by the borrower, that the title High Court, on 19 December as Myles & Co, Solicitors, named client, be so investigated and that 2011, made the following orders: 21 Hillside, Monaghan, Co b) Failed to honour an undertak- if requisitions were raised, a) That the respondent be per- Monaghan and in the matter ing given in a letter dated 5 satisfactory replies would be mitted only to practise as an of the Solicitors Acts 1954-2008 June 2001 to the same bank, obtained, assistant solicitor in the em- [4961/DT49/10 and 2011 no whereby he undertook to re- 3) To ensure that all deeds and ployment of and under the di- 77 SA] turn title deeds to the same documents to the property rect control and supervision of Law Society of Ireland (applicant) property belonging to the were stamped and registered another solicitor of at least ten Thomas J Myles (respondent named client to the bank, in- as appropriate, including the years’ standing, to be approved solicitor) cluding a registered deed of mortgage and counterpart in advance by the Society, On 25 November 2010, the So- charge and certificate of title, mortgage, land certificate (if b) That the respondent pay the licitors Disciplinary Tribunal as soon as practicable, application) and certificate of Society the costs of the So- found the respondent solicitor c) Breached the undertaking title, licitors Disciplinary Tribunal guilty of misconduct in his prac- given by him to the bank, 4) To deliver all of the title doc- proceedings when taxed or as- tice as a solicitor in that he: contained in the letter dated 5 uments to the complainant certained, a) Failed to honour an undertak- June 2001, in selling the prop- upon demand, c) That the respondent pay the ing given by him to a named erty to a third party, Working Smarter, Not Longer! Using Technology for a More Efficient Practice
Law Society Technology Committee Seminar Castletroy Park Hotel, Limerick, Friday 30 Nov 2012, 2pm – 5.30pm. Fee €95 CPD hours: 3¼ hours management and professional development skills
1.45 – 2.00 Registration
2.00 – 2.15 Opening remarks The fast pace of technological innovation – particularly that of social media Frank Nowlan, chair, Technology Committee applications – impacts on the working environment. Mobile devices can mean that there is no longer any office downtime. This seminar will look at 2.15 – 3.00 Where we are now and where we are going? Adrian Weckler (Sunday Business Post) the use of various devices and emerging technologies – in particular, cloud A review of the current situation with use of technology in legal computing – and how they can make for more efficient use of your working practice. Adrian will consider current business uses of emerging time. It will examine the practical use of various mobile devices and will technologies, cloud computing and the development of mobile provide a practitioner’s own story of technology use. The seminar will also technologies as we move towards Web 4.0. As well as being a address security issues in using mobile devices and innovative applications, journalist and editor on digital affairs, Adrian is also well known as a broadcaster and commentator on technology issues. and will provide practical guidance on data protection and other issues.
3.15 – 3.45 Emerging technologies – what I did Joe Kane (Joseph Kane and Co, Solicitors) This session will look at practical uses and efficiencies made with the emerging technologies. Joe will explain how he came to make use of cloud computing and other easily available applications to make his working environment more efficient.
3.45 – 4.00 Coffee
4.00 – 4.45 Is mobile technology secure? Colm Fagan (Espion Intelligence) The session will review some of the key practice issues that need to be considered when using mobile technologies. Colm will give an overview of general security, reliability, legacy issues and data protection. The session will also include a summary of Technology Committee advice in this area.
4.45 – 5.30 Online marketing and the legal sector Martin Molony, Dublin City University The session will look at ways in which you can better communicate with clients and promote your practice online. It will include an overview on how to successfully and quickly build a web presence using traditional web tools and blogs or wikis. The session will also consider the potential for use of social networking tools such as Facebook, Twitter and Linked In by the legal profession.
5.30 Questions and answers
Working Smarter, Not Longer! Using Technology for a More Efficient Practice Venue: Castletroy Park Hotel, Limerick. Time: 2pm to 5.30pm. Date: Friday 30 November 2012. Fee: €95
Name: Firm:
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Please reserve place(s) for me on the above course. I enclose cheque for €
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Please return to: Veronica Donnelly, Law Society of Ireland, Blackhall Place, Dublin 7. Law Society Gazette www.gazette.ie November 2012 regulation 59 briefing d) Remitted the sale proceeds named property in Castlebar, In the matter of John F Con- The tribunal ordered that the of the sale of the property to Co Mayo, in favour of ACC don, a solicitor practising as respondent solicitor: another named third party, in Bank Plc in respect of a named McMahon & Tweedy Solici- a) Do stand censured, error, without attending to the client, tors, Merchant’s House, 27- b) Pay a sum of €2,500 to the redemption of the outstanding b) Failed to reply adequately 30 Merchant’s Quay, Dublin compensation fund, liabilities to the bank, or at all to the complainant’s 8, and in the matter of the c) Pay the whole of the costs of e) Failed to adequately respond correspondence, in particu- Solicitors Acts 1954-2008 the Society, to be taxed by to the complainant’s corre- lar, letters dated 11 February [3127/DT/171/10] a taxing master of the High spondence or at all in respect 2008, 6 June 2008, 29 Septem- Law Society of Ireland (applicant) Court in default of agreement. of letters dated 17 February ber 2009, 10 February 2010 John Condon (respondent 2002, 14 October 2003, 22 and 12 March 2010 respec- solicitor) In the matter of Greg (other- June 2006 and 20 March 2008 tively, On 21 June 2012, the Solicitors wise John G) Casey, a solici- respectively. c) Failed to comply with her un- Disciplinary Tribunal found the tor formerly practising in the dertaking given to the Com- respondent solicitor guilty of firm of Casey & Co, Solicitors, The tribunal ordered that the plaints and Client Relations misconduct in his practice as a North Main Street, Bandon, matter go forward to the High Committee at its meeting solicitor in that he: Co Cork, and in the matter of Court, and the President of the on 1 October 2010, whereby 1) Allowed a deficit of €33,540.06 the Solicitors Acts 1954-2008 High Court, on 19 December she undertook to lodge the as of 31 January 2009, [5355/DT65/09] 2011, made the following orders: stamped deed of mortgage 2) Was in breach of the Solicitors’ Law Society of Ireland (applicant) a) That the respondent be and deed of conveyance with Accounts Regulations, including Greg (otherwise John G) Casey permitted only to practise as the Registry of Deeds within the following breaches: (respondent solicitor) an assistant solicitor in the 14 days and, within the same a) Regulation 12 for failure On 25 July 2012, the Solicitors employment of and under the time, to furnish the Society to maintain books of ac- Disciplinary Tribunal found the direct control and supervi- with a copy of her letter to the count that showed the true respondent solicitor guilty of sion of another solicitor of at Registry of Deeds and a copy financial position in rela- misconduct in his practice as a least ten years’ standing, to be of the deeds submitted for reg- tion to clients’ matters at all solicitor in that he: approved in advance by the istration, times, a) Up to the date of the swear- Society, d) Failed to reply adequately b) Regulation 12(3)(b) for ing of the applicant’s affidavit b) That the respondent pay the or at all to the Society’s cor- failure to maintain sup- on 2 July 2009, failed to com- Society the costs of the So- respondence dated 16 April porting evidence of outlays ply with the direction of the licitors Disciplinary Tribunal 2010, 11 May 2010, 28 June disbursed on behalf of cli- Complaints and Client Rela- proceedings when taxed or as- 2010, 19 July 2010, 4 October ents, tions Committee in April 2008 certained, 2010, 20 October 2010 and 22 c) Regulation 12(7) for fail- that he make a contribution c) That the respondent pay the November 2010. ure to prepare balancing of €3,000 towards the costs Society the costs of the High statements within two of the Society following his Court proceedings when taxed The tribunal was of the opinion months after the balanc- failure to answer the Society’s or ascertained. that: ing date and to keep copies correspondence in a timely a) The respondent solicitor is not of such balancing state- manner and his failure to In the matter of Jacqueline a fit person to be a member of ments, arrange for compliance with M Durcan, solicitor, formerly the solicitors’ profession, d) Regulation 12(8) for failure a notice pursuant to section practising as Durcans Solici- b) The name of the respondent to prepare office balancing 10 of the Solicitors (Amend- tors, no 1 Hazel Grove, Spen- solicitor be struck off the Roll statements, ment) Act 1994, dated 3 March cer Park, Castlebar, Co Mayo, of Solicitors, e) Regulation 7(2) for creation 2008, and in the matter of the So- c) The respondent solicitor make of debit balances, b) Failed to attend or to arrange licitors Acts 1954-2011 [7083/ a contribution of €5,000 to- f) Regulation 9 for failure to to be represented at the meet- DT46/11 and 2012 no 8 SA] wards the costs of the Law So- maintain records of trans- ing of the Complaints and Cli- Law Society of Ireland (applicant) ciety of Ireland. fers between client ledger ent Relations Committee on Jacqueline M Durcan accounts, 25 June 2008, despite having (respondent solicitor) On foot of an application to the g) Regulation 20(1)(e) for fail- been notified by letter dated 17 On 15 November 2011, the So- President of the High Court, the ure to maintain a bank reg- June 2008 that he was required licitors Disciplinary Tribunal following orders were made on ister, to attend the said meeting. found the respondent solicitor 13 February 2012: h) Regulation 20(1)(f) for fail- guilty of misconduct in her prac- 1) That the name of the respon- ure to keep the returned cli- The tribunal ordered that the re- tice as a solicitor in that she: dent solicitor be struck from ent paid cheques in numeri- spondent solicitor: a) Failed to comply within a rea- the Roll of Solicitors, cal order, a) Do stand censured, sonable time or at all with her 2) That the Society do recover i) Regulation 20(1)(b) for fail- b) Pay a sum of €5,000 to the undertaking given to the com- the costs of the proceed- ure to keep/have copies of compensation fund, plainant dated 3 May 2005, in ings against the respondent fee notes issued in a bills de- c) Pay €5,000 to the Society as which she undertook to put a solicitor when taxed or ascer- livered book or file of such a contribution towards their first legal charge in place on a tained. invoices. costs. G 60 eurlegal Law Society Gazette www.gazette.ie November 2012 briefing Eurlegal Edited by TP Kennedy, Director of Education CESL represents both a challenge and an opportunity reland assumes the presidency sult is that substantial differences the basis of CESL. The commis- reduced the options available to a of the EU Council on 1 Janu- remain in the laws of the various sion argues that this will encour- consumer in some member states. Iary 2013. One of the issues member states. age cross-border trade because a For example, in Ireland and Brit- to be addressed by Minister Alan Maximum harmonisation, on business in one member state will ain, a consumer has a right to ter- Shatter in his role as president of the other hand, allows only the be able to contract with consum- minate a contract and seek a re- the justice ministers will be what provisions in the directive within ers and businesses in several dif- fund of the price paid in the event priority to give to the ambitious the scope of the directive, and ferent member states on the basis of non-conformity of the goods proposal for a Common Euro- nothing more. of a common set of rules, without with the contract. The consumer pean Sales Law (CESL). CESL The commission’s proposals on the need to learn about the differ- is not required to accept repair was put forward by the EU Com- the Consumer Rights Directive hit ent contract and consumer laws of or replacement. Under the draft mission on 11 November 2011 as heavy opposition. This was par- each member state. Consumer Rights Directive, the a draft regulation. ticularly because of the require- The regulation applies to sales consumer could have been re- The commission has been ar- ment for maximum harmonisa- of goods and to contracts conclud- quired to accept repair or replace- guing for an initiative in the area tion, which would have impacted ed at the same time for services ment. CESL gives consumers a of contract law since 2001. It sees on the established laws of the directly related to those goods. free choice of remedies, including the divergence between the con- member states. As a result of that Other contracts for the supply of the right of refund, repair or re- tract laws of the various member experience, the commission has services are not covered. As many placement. Some business organ- states as a barrier to trade, partic- recognised that the heavy-handed transactions are now of digital in- isations argue that this goes too ularly for consumers and SMEs. route of maximum harmonisation formation, such as music, enter- far and will serve as a disincentive Of course, significant European has no future in this area. tainment or software supplied on- for business to use CESL. legislation exists in the area of line, digital content contracts are consumer protection, but it is un- Soft law: voluntary and optional embraced by the regulations. Set of contractual rules coordinated and lacks coherence. CESL adopts a radically different The commission has identified CESL is an impressive body of The commission funded a large ‘soft law’ approach. It provides a that the need for sales law arises work, comprising 186 articles di- research project on the contract sales law that would be common from the additional costs and le- vided into eight parts. These deal laws of the member states and, throughout the EU and that the gal problems that arise on trans- with introductory provisions, the arising from that research, has parties would be free to adopt. national or cross-border transac- formation of contract, the con- considered a number of sugges- It contains an extensive (but not tions. Accordingly, the regulation tent of the contract, the obliga- tions to deal with the twin prob- comprehensive) statement of the applies to transnational contracts tions and remedies of the parties, lems of differences between the main principles, definitions and only. However, member states are the passing of risk, the obliga- contract laws of the 27 member rules that would be required for a given the power to extend the ap- tions and remedies of parties to a states and the lack of coherence in contract for the sale of goods and plication of CESL to transactions related service contract, and rules European consumer protection. related services and for the supply between parties in the same mem- dealing with damages, interest, These suggestions range from the of digital content. ber state. restitution and limitations of ac- replacement of the contract laws CESL would form part of the tion. Although not a code in the of member states with a single law of every member state. How- Strong consumer protection Napoleonic sense, it is an attempt European code of contract law, ever, CESL does not replace or CESL sets out mandatory rules to set out the relevant rules in a through to a voluntary instrument amend the existing laws. Rather, it that cannot be varied to the detri- systematic and structured fash- setting out specimen provisions exists as a parallel and alternative ment of a consumer in business- ion. Undoubtedly, there is scope that parties could adopt for their set of rules, which will be the same to-consumer transactions. One for improving the drafting of the contracts. in all member states. Parties would of the criticisms of the draft Con- text. At the same time, the commis- be free to choose to contract on sumer Rights Directive was that it It is the commission’s view that sion was preparing a major con- CESL will cover the issues of solidation and restatement of four contract law that are of practical major directives into one coher- B2C or B2B where one party’s an sme relevance during the life cycle of ently drafted directive, the Con- CESL can only be used for: a member state has decided to a cross-border contract. How- sumer Rights Directive. This direc- • A business-to-consumer cont- make CESL available for that ever, there is much that is omit- tive was to be based on maximum ract, purpose. ted, such as rules on legal capacity, harmonisation, unlike the existing • A business-to-business contract The limitation to SMEs is rules in relation to joint liability, directives, which are based on where at least one party is an required for legal and political and of course the whole area of minimum harmonisation. The SME reasons, but there appears to non-contractual liability, such as latter requires only that the stan- be no logical justification why a torts. In many cases, breach of the dards set out in the directive are However, CESL can be used where business of any size should not obligations of a seller will give rise achieved as a minimum, but with all the parties are traders, but have the option to offer CESL as not only to liability in contract, member states free to impose none of them is an SME, where a basis for contracting. but also to liability in tort. more rigorous standards. The re- Those areas that are not cov- Law Society Gazette www.gazette.ie November 2012 eurlegal 61 briefing
ered by CESL will continue to be with good faith and fair dealing. Opponents argue that the legal the initial stages at least, suppliers governed by the relevant national This presents something of a obstacle posed by differing con- who are active in existing markets law. That national law will be challenge to the common law tra- tract laws is one of many, includ- are unlikely to change their terms chosen by the application of the dition. From a practical point of ing tax, language and culture, in and conditions. However, for new rules of private international law, view, the introduction of such an relation to the enforcement of markets with which they are unfa- as they have been modified by over-arching obligation will give remedies. They argue that the miliar and for those who wish to Rome I (regulation 593/2008 on rise to uncertainty, at least until costs and uncertainties involved trade throughout the European the law applicable to contractual a body of jurisprudence has been in introducing a new regime will Union, CESL may be an attrac- obligations). amassed defining its limits. outweigh the marginal benefits. tive basis for seeking to attract Opponents argue that traders The proposal set out in the reg- new business. Opposition to the proposal dealing with consumers through- ulation is a clever example of soft If the regulation becomes law, The commission’s proposal is out the EU would still need to be law. The instrument is voluntary. Irish lawyers will be in a position an ingenious and innovative ap- concerned with health and safety It will not affect the existing laws to advise their Irish clients and proach. It has, however, been crit- and other regulatory require- of member states directly. Un- clients from abroad in relation to icised heavily. There are concerns ments and to take advice in rela- doubtedly, however, if it does be- their terms and conditions of sup- as to whether such a proposal may tion to aspects of contract law that come established for contracting ply to a much greater extent than be passed by qualified majority are not governed by CESL and in throughout the union, there will is possible at the moment. rather than unanimity (which is relation to non-contractual liabil- be a tendency to gravitate towards It will be a major intellectual politically improbable). There are ities such as tort law. it as a basis for legislation. and diplomatic challenge to rec- arguments about its compatibility Under CESL, the principle The test of its quality will be oncile the differing views in re- with existing laws, such as Rome I. of freedom of contract applies the extent of its use in practice. lation to CESL. The Irish presi- There are also strong objec- to business-to-business transac- Clearly, the hope of the com- dency affords Minister Shatter tions from consumer organisa- tions, save in respect of limited mission is that, over time, it will and his department the opportu- tions that the consumer protec- mandatory rules. Some of these become well recognised and es- nity to mould the proposal to suit tion elements do not give protec- mandatory rules that apply to tablished. The commission hopes Irish interests before it passes to tions that are currently available business-to-business contracts are that traders will adopt CESL and other hands. in certain member states and that, significant and represent a major offer it to their consumers as part in practice, consumers will be change for Irish law. The com- of their marketing strategy and Paul Keane is the managing part- given no choice but to contract mission would respond that no- that consumers will regard it as an ner of Reddy Charlton Solicitors, the on the basis of CESL. On the one is obliged to contract on the indication of quality. vice-chair of the Business Law Com- other hand, business argues that basis of CESL, and if you do not For Irish lawyers and for Irish mittee, and the Society’s representa- the consumer protection provi- like it, do not use it. business, CESL is a challenge, but tive on the CCBE committee respon- sions go too far and will serve as a also an opportunity. If the com- sible for European contract law. Dr disincentive to business to choose Solution in search of a problem? mission is correct that the initia- Cliona Kelly, Cardiff Law School, CESL. There is widespread concern that tive will encourage cross-border has assisted the Business Law Com- CESL sets out an obligation on CESL is a response to a political trade, an export-led economy mittee in preparing its response to the each party to act in accordance rather than a legal imperative. such as ours should embrace it. In commission’s proposal. 62 Professional notices Law Society Gazette www.gazette.ie November 2012 notices
wills Rates Flynn, Cyril (also known as Cyril O’Floinn) (deceased), late of Newtown Street, Castlebar, Professional notice rates Co Mayo (also Northbrook Ave, rates in the Professional notices section are as follows: Ranelagh, Dublin 6). Would any • Wills – €147 (incl VAT at 23%) person having knowledge of a • Title deeds – €294 per deed (incl VAT at 23%) will (or documents relating to a • Employment/miscellaneous – €147 (incl VAT at 23%) will) made by the above-named deceased, who died on 4 Septem- Highlight your notice by putting a box around it – €33 extra ber 2012, please contact box no: 11/12/01 All notices must be paid for prior to publication. Cheques should be made payable to Law Society of Ireland. Deadline for December Gazette: 21 Nov 2012. For Flynn, John (deceased), late of further information, contact the Gazette office on tel: 01 672 4828 (fax: 01 672 4877) St Patrick’s Community Hos- pital, Carrick-on-Shannon, Co Leitrim, and formerly of 11 Riv- erview, Straduff, Geevagh, Co Sli- Dermot & Allen, Solicitors, 10 Lynch, Teresa (deceased), late of 25 Clifton Road, Tranmere, go, and prior to that, Knockroe, Francis Street, Galway; tel: 091 of 92 Huband Road, Bluebell, Birkenhead, Wirral, Merseyside Geevagh, Co Sligo, who died 567 071, email: marymylotte@ Dublin 12, formerly of Male Pri- L41 2SF. Would any person hav- on 19 September 2012. Would macdallen.ie vate, St Michael’s Hospital, Dun ing knowledge of a will made by any person having knowledge of Laoghaire, Co Dublin, who died the above-named deceased, who any will executed by the above- Lynch, John (deceased), late of on 21 September 2012. Would died on 11 July 2012, please con- named deceased please contact 1 The Terrace, Glencollins, Bal- any person having knowledge tact Stone Solicitors, 14 North Brendan Looby of McCarthy lydesmond, Mallow, Co Cork, of the whereabouts of any will Main Street, Wexford; tel: 00 Looby & Co, Solicitors, Church and formerly of Glen North, made by the above-named de- 353 5391 46144, fax: 00 353 5391 Street, Cahir, Co Tipperary; tel: Banteer, Co Cork, and Louismill, ceased please contact Mary Cul- 46099, email: [email protected] 052 744 1899, fax: 052 744 1000, Merrill, Oregon, USA, and RT1, len of Cullen & Company, So- email: [email protected] Box 103, Tulelake, CA96134- licitors, 86/88 Tyrconnell Road, 9720, who died on 7 July 2012. Inchicore, Dublin 8; tel: 01 453 King, Eleanor (deceased), late Would any person having knowl- 6114, email: enquiries@cullen- of 13 Rahylin Glebe, Ballybane, edge of the whereabouts of any cosolicitors.com ENT MEDICO Galway, who died on 25 June will made by the above-named 2012. Would any person having deceased please contact James McCool, otherwise Boland, LEGAL REPORTS knowledge of a will made by the Lucey & Sons, Solicitors, Kan- Mary Theresa (deceased), late above-named deceased please turk, Co Cork; tel: 029 50300, of Ballycogley Castle, Ballyco- I am an Ear, Nose and contact Mary Mylotte, Mac- email: [email protected] gley, Co Wexford, and also late Throat Consultant. I am readily available to give prompt attention, Matt Barnes if you should so wish, LAND REGISTRY Successful south Dublin MAPPING SERVICE to any report you may firm with turnover of from €149 + VAT require regarding claims Contact Matt Barnes c €1 million seeking concerning injuries to the [email protected] equity partner/merger. Ear, Nose and Throat 087 2544443 Principal planning area from whatever to retire in next cause.
Is your client interested A Caring Legacy: 3 – 5 years. THOMAS CYRIL KENEFICK, bequests to The Carers in selling or buying a F.R.C.S. Association (CHY10962) help Contact Anne Neary of CONSULTANT ENT SURGEON 7-day liquor licence? to support home-based family Anne Neary Consultants Medical Council No. 05729 care in Ireland. at [email protected] or If so, contact Liquor For information: at 086 1955919 ROOM 16, CORK CLINIC, Licence Transfers Emma at 057 9370210. for details. WESTERN ROAD, CORK [email protected] TEL: 021 4545000 Contact or www.carersireland.com. Principals only. EMAIL: [email protected] 0404 42832 Law Society Gazette www.gazette.ie November 2012 Professional notices 63 notices
McCrohan, Patrick Joe (de- McHugh, Gavin (deceased), ceased), late of Flat 27 Moor- late of 55 Kennelsfort Road, Have your clients invested in property in Germany? lea, 9 Wellington Road, Bour- Palmerstown, Dublin 20, and Do they need help with refinancing / tenants / selling / buying? nemouth, United Kingdom, previously 66 The Coppice, and formally of 29 Elm Mount Woodfarm Acres, Palmerstown, German Business Solutions can help Road, Beaumont, Dublin 9, and Dublin 20. Any person having formerly of Custom Gap Hill, knowledge of a will made by the Long experience in Germany Tullow, Newport, Co Tipperary. above-named deceased, who died Excellent access to local professionals Would any person having knowl- on 1 June 2012, please contact edge of a will executed by the Sherrys Solicitors, Palmerstown Contact Brian Cooney FCA at [email protected] above-named deceased, who died Avenue, Dublin 20; tel: 01 623 www.germanbusiness.ie on 14 August 2012, please con- 2182, fax: 01 623 2183 tact Melvyn Hanley Solicitors, 16 Patrick Street, Limerick, tel: Shortt, Brian, otherwise Brian 061 400 533, fax: 061 400 633, Shorte, otherwise Brian Short, email: [email protected] and otherwise Michael Ber- nard Shortt (deceased), late McGrath, Aine Maeve (de- of Riverstown House, Monas- ceased), late of 10 Covesbrook, terevin, Co Kildare. Would any
Carnew, Co Wicklow, and for- person having any knowledge of merly of 12 Dunmore Park, the whereabouts of a will execut-
Ballymount, Dublin 24. Would ed by the above-named deceased, any person having knowledge who died on 19 July 2012, please LAW REFORMLAW REFORM COMMISSION COMMISSION INVITES INVITES SUBMISSIONS SUBMISSIONS ON ON of a will executed by the above- contact Helena Boylan & Co, NEW PROGRAMME OF LAW REFORM NEW PROGRAMME OF LAW REFORM named deceased, who died on Solicitors, High Street, West- The Law Reform Commission is preparing a new Fourth Programme of Law Reform under The Lawthe Reform Law Reform Commission Commission is preparing Act 1975. Thea Fourth new Programme Programme will ofform Law the Reform principal under basis onthe Law Reform 19 November 2010, please con- port, Co Mayo; tel 098 29835,The Law ReformCommission Commissionwhich Act we 1975carry out. The our is newstatutory preparing Programme mandate willtoa keepnew form the the lawFourth principalunder review Programme basis with on a viewwhich to weitsof carry Law out Reform our under tact Cooke and Kinsella, So- statutoryreform mandate and modernisation.to keep the law under review with a view to its reform and modernisation. fax: 098 29855, email haboylan@the Law Reform Commission Act 1975. The new Programme will form the principal basis on licitors, Wexford Road, Arklow, eircom.net We are Weinviting are inviting all interested all interested parties parties toto makemake submissions submissions on possible on possible areas of theareas law toof be the law to be which we carrconsideredy outconsidered forour reform. .statutory Submissions Submissions can mandate be can sent be tosent [email protected] toto [email protected] keep the law under or Law Reform reviewor Law Reform with Com a- view to its Co Wicklow; tel: 0402 32928, reform and modernisation.mission, Commission,Fourth Programme Fourth Programme of Law Reform, of Law Reform, 35-39 35 Shelbourne-39 Shelbourne Road, Road, Ballsbridge, Ballsbridge, DublinDublin 4. 4. fax: 0402 32272, email: fergus@ Somerville (otherwise Som - The Fourth Programme of Law Reform will be the subject of the Commission’s Annual Conference The Fourth Programme of Law Reform will be the subject of the Commission’s Annual cookekinsella.ie merville) Eileen (deceased),We are inviting2012, all onConference interestedTuesday 201211th, onDecember. parties Tuesday 11 See thto December. www.lawreform.iemake See submissions www.lawreform.ie for details. foron details. possible areas of the law to be late of Warrenstown, Dunboyne,considered . Submissions can be sent to [email protected] or Law Reform Co Meath, who died on 24 Commission,Sep- Fourth Programme of Law Reform, 35-39 Shelbourne Road, Ballsbridge, Dublin tember 2012. Would any person4. miscellaneous RETIREMENT having knowledge of a will made by the above-named deceasedThe Fourth Programme of Law Reform will be the subject of the Commission’s Annual At 24 Upper Mountth Street, Are you thinking please contact Brian A Rennick,Conference Dublin2012, on Tuesday2. Very 11 accessible December. See www.lawreform.ie for details. of retiring? Solicitors, Main Street, Dun - elegant hall-floor office suite, Are you thinking of boyne, Co Meath; tel: 01 825 three rooms and large re- closing down your 1030, fax: 01 825 1031, email: ception area with two car practice? [email protected] park spaces included. Rent €25,000 per annum plus
There is no additional premium rates. Please contact Robert for Run Off Cover for firms on tel: 087 251 8856 ceasing to practice LONDON SOLICITORS (As per Law Society Guidelines on Run Off Cover, Oct 2012) will be pleased to advise on UK recruitment We are actively taking over matters and undertake agency work. practices with live and on-going files every week. We handle probate, litigation, NOTICE TO THOSE PLACING Due diligence will be matrimonial and property. RECRUITMENT ADVERTISEMENTS IN independently carried out on Cubism Law (ref Angela Robbins), THE LAW SOCIETY GAZETTE all practices. 116-118 Chancery Lane, London WC2A 1PP. Please note that, as and from the August/September 2006 issue Keen agreements negotiated of the Law Society Gazette, NO recruitment advertisements will to ensure you are rewarded for DX 477 London/Chancery Lane. be published that include references to years of post-qualification your hard work. Tel: 44 207 831 0101. experience (PQE). Contact Sweeney Solicitors Fax: 44 207 831 0001. on 021 494 9650 or email The Gazette Editorial Board has taken this decision based on legal [email protected] Email: angela.robbins@ advice, which indicates that such references may be in breach of the to discuss your options. cubismlaw.com. Employment Equality Acts 1998 and 2004. 64 captain’s blawg Law Society Gazette www.gazette.ie November 2012
wild, weird and wacky stories from legal ‘blawgs’ and media around the world
Ball of smoke! The Gazette recently came across this urban legend gem. The story goes that a lawyer purchased a box of very rare and expensive cigars, then insured them against, among other things, fire. Within a month, having smoked his entire stockpile, and without yet having made even his first premium payment on the policy, the lawyer filed a claim against the insurance company. In his claim, the lawyer stated that the cigars had been lost “in a series of small fires”. The insurance company refused to pay, citing the Pot shot at prosecutors over ‘pot shop’ obvious reason – that the man One of the world’s largest to get Harborside Health Centre 100,000 medical marijuana users had consumed the cigars in medical marijuana dispensaries, evicted, reports The Huffington a year, sells about $20 million the normal fashion. The lawyer based in Oakland, California, Post. worth of pot and marijuana sued … and won. has gained an unusual ally in its The suit is thought to be the products, and pays $3 million Delivering the ruling, fight to stop federal prosecutors first that a local government has in federal, state and local the judge agreed with the from shutting it down. The brought on behalf of a ‘pot shop’. taxes annually, of which about insurance company that Oakland city council filed a It alleges the Justice Department $1.2 million goes to Oakland. the claim was frivolous. federal lawsuit in San Francisco knew about Harborside for years The executive director of the Nevertheless, he stated that recently, seeking to prevent the and exceeded the legal deadline dispensary called the city’s the lawyer held a policy with US Department of Justice from for taking action against it. intervention “heartening and the company, in which it had using its property-seizure powers Harborside serves about encouraging”. warranted that the cigars were insurable. It had guaranteed, also, that it would insure them against fire – without No stogie for smuggled cigars Prisoner defining what it considered to Bar authorities in Illinois are be ‘unacceptable fire’. Thus, it seeking the disbarment of a lawyer sends minister was obliged to pay the claim. convicted of smuggling Cuban severed finger Rather than endure a lengthy cigars into the country back in the and costly appeal process, the 1990s. An inmate in a French jail mailed insurance company accepted The recommendation filed by part of his own severed finger to the ruling and paid $15,000 to the Illinois Attorney Registration that country’s minister for justice the lawyer for the loss of his and Disciplinary Commission recently. An envelope containing cigars as a result of ‘fires’. seeks to disbar the lawyer, the finger part was delivered to After the lawyer cashed the who was convicted in 2002 of the offices of Justice Minister cheque, the insurance company violating the Trading with the Christiane Taubira, according had him arrested on 24 Enemy Act, falsifying his passport to www.telegraph.co.uk. It was counts of arson! With his own and conspiracy, according to the ruling, the lawyer made 31 trips accompanied by a letter arguing insurance claim and testimony National Law Journal. to and from Cuba between 1996 for a transfer to a jail nearer to from the previous case being The lawyer, who has long denied and 1999. The opinion recounts the prisoner’s family, a police used against him, the lawyer the charges, said he made frequent how, after a tip from his ex-wife official said. was convicted of intentionally trips because he was engaged to a alerting authorities to his trips, he There is no news as to whether burning his insured property and Cuban woman. He was sentenced was stopped at the Canadian border the inmate’s ploy was successful. was sentenced to 24 months in to 37 months in prison and fined with a “trunkload of Cuban cigars”. French jails are plagued by jail and a $24,000 fine. $60,000. His conviction was upheld There were 46 boxes of cigars in overcrowding, with the prison Sadly, however, the whole by the 7th Circuit in 2006. four suitcases, which could be sold population hitting a record story is a ball of smoke! According to the circuit court’s for $350 per box. 67,000 this year. In-House Lawyer
Dexia manages a large proprietary bond portfolio from Dublin. This portfolio of approximately €100 billion makes a critical contribution to the overall liquidity of the bank and is coordinated and managed on behalf of Dexia by its Portfolio Management Group in Dublin’s IFSC, in conjunction with other PMG desks located in New York and Berlin.
We are looking to recruit an In-House Lawyer to join our legal department in Dublin
The Role The main responsibilities will centre on providing legal support to various business lines within Dexia, with a particular focus on fixed income products and derivatives. This includes, but is not limited to, the following: • Provision of legal support to front office and management in relation to a wide range of general legal issues arising from the business to include providing advice in relation to bond and loan documentation, credit derivatives, swaps, total return swaps and structuring and documenting transactions. • Assist management in drafting, reviewing and amending legal documents to include contracts, service level agreements, engagement letters, mandates, etc. • Negotiate and draft legal transactional documentation with counterparties in compliance with the Bank’s global standards to include individual deal confirmations under ISDA, GMSLA and GMRA documentation. • Building and proactively maintaining relationships with our business partners around the Group. • Contact with the legal teams based in Paris and New York.
The Candidate • Solicitor with 2-4 years experience in a financial environment, ideally within international banking / capital markets. • The successful candidate will have exceptional analytical and communication skills together with the ability to work effectively as part of a multi-disciplinary team. • Strong technical expertise combined with an ability to deliver clear, precise and practical advice is a must. • Ambitious and independent self-starter with the ability to multitask. • Team player who works well in a small and busy team environment, reporting to Head of Legal in Dublin.
Experience The ideal candidate will be able to demonstrate: • Sound knowledge in the technical aspects of ISDA documentation, including CSAs and the application of ISDA Credit Derivative definitions in the context of structured products and derivative transactions execution procedures. • Good knowledge of Financial Services Law to include bonds, derivatives, securitization and structured finance. • Experience in the financial services field and compliance will be a distinct advantage, as will previous experience of working in an in-house banking environment.
Competitive terms and benefits are on offer with this position. To apply, please send your CV in strictest confidence to: Una Kilduff, Human Resources, Dexia, 6, George’s Dock, IFSC, Dublin 1 or by email to [email protected] Closing date for applications is Friday 23rd November, 2012. No recruitment agency solicitations please. Fostering successful partnerships www.benasso.com
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Benson & Associates have an unparalleled network of quality clients, over a decade of experience and above all, trusted instincts to find that perfect partnership.
For the latest opportunities, please visit our website: www.benasso.com Talk to the Irish Legal Recruitment Specialists or contact Michael Benson BCL Solicitor in strict confidence at Benson & Associates, Legal Recruitment Specialists, Suite 113, The Capel Building, St Mary’s Abbey, Dublin 7, tel: +353 1 670 3997
Legal Recruitment Specialists
For more information please visit our website or contact Michael Benson bcl. solr. in strict confidence at: Benson & Associates, Suite 113, The Capel Building, St. Mary’s Abbey, Dublin 7. T +353 (0) 1 670 3997 E [email protected]