Gazette€3.75 October 2006 the Abcs of ‘PQE’: Lessons to Be Learned
LAW SOCIETY
Gazette€3.75 October 2006 THE ABCs OF ‘PQE’: Lessons to be learned
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LAW SOCIETY GAZETTE OCTOBER 2006 CONTENTS
On the cover LAW SOCIETY References to years of post- qualification experience (PQE) in recruitment advertisements may indicate an intention to discriminate on the age ground, Gazette according to the Equality Authority October 2006
PIC: [email protected]
Volume 100, number 8 Subscriptions: €57 REGULARS 5 President’s message 7 News Retirement trust scheme 14 Things are looking good, but past performance is not a reliable guide to future performance etc etc etc... National Crime Council report 16 Book of evidence time-limit rules broken more often than not 18 Letters 7 Practice doctor 43 Accountants’ reports and the Solicitors’ Accounts Regulations 45 People and places Tech trends 46 You know the story... Book reviews 49 The Civil Liability Acts, Irish Pensions Law and Practice, and Judgment Digest Briefing 51 51 Practice notes 53 Legislation update: 22 August – 19 September 45 55 FirstLaw update 56 Solicitor complaints 57 Eurlegal: recent developments in European law 63 Professional notices 67 Recruitment advertising
Editor: Mark McDermott. Deputy editor: Garrett O’Boyle. Designer: Nuala Redmond. Editorial secretaries: Catherine Kearney, Valerie Farrell. For professional notice rates (lost land certificates, wills, title deeds, employment, miscellaneous), see page 63. Commercial advertising: Seán Ó hOisín, 10 Arran Road, Dublin 9; tel: 837 5018, fax: 884 4626, mobile: 086 811 7116, email: [email protected]. Printing: Turner’s Printing Company Ltd, Longford. Editorial board: Stuart Gilhooly (chairman), Mark McDermott (secretary), Pamela Cassidy, Tom Courtney, Eamonn Hall, Philip Joyce, Michael Kealey, Mary Keane, 45 Patrick J McGonagle, Ken Murphy, Michael V O’Mahony, William Prentice.
2 www.lawsociety.ie CONTENTS LAW SOCIETY GAZETTE OCTOBER 2006
Get more at lawsociety.ie PROFESSIONAL NOTICES: send your small advert details, with payment, to: Gazette Office, Blackhall Place, Dublin 7, tel: 01 672 4828, or email: [email protected]. Gazette readers can access back issues of the ALL CHEQUES SHOULD BE MADE PAYABLE TO LAW SOCIETY OF IRELAND. magazine as far back as Jan/Feb 1997 right up to the current issue at lawsociety.ie. COMMERCIAL ADVERTISING: contact Seán Ó hOisín, 10 Arran Road, Dublin 9, tel: 01 837 5018, fax: 884 4626, mobile: 086 811 7116, email: [email protected] You can also check out: • Current news HAVE YOU MOVED? Members of the profession should send change-of-address • Forthcoming events, including a Certificate in details to: IT Section, Blackhall Place, Dublin 7, or to: [email protected] Essential Conveyancing for Practitioners (9 Oct) Subscribers to the Gazette should send change-of-address details to: • Employment opportunities Gazette Office, Blackhall Place, Dublin 7, or to: [email protected] • The latest CPD courses HOW TO REACH US: Law Society Gazette, Blackhall Place, Dublin 7. … as well as lots of other useful information Tel: 01 672 4828, fax: 01 672 4877, email: [email protected]
FEATURES COVER STORY: 22 The ABCs of PQE Solicitors might want to consider the Equality Authority’s cautionary words in relation to post- qualification experience in recruitment ads, and a recent decision by the Gazette Editorial Board on the issue. Michelle Ní Longáin pores over the job adverts
Wiping the slate clean 29 Dara Robinson argues that Ireland’s lack of provision for wiping criminal records clean is worrisome, especially for those who had a wild streak in their youth
Expert view 32 An expert witness was struck off the medical register in Britain after his evidence was judged to be “misleading”. William Kennedy wonders if the same thing could happen here 36
Heavy traffic 36 There is little legal status in Ireland for child or adult victims of human trafficking, says Stephen Collins, but the Criminal Law (Trafficking in Persons) Bill 2006 is an opportunity to bring the State into line with Europe
The times they are a changin’ 40 Damn hippies! Get a haircut! Mark McDermott continues his review of the Law Society’s development through the pages of the Gazette in the 1960s
The Law Society of Ireland can accept no responsibility for the accuracy of contributed articles or statements appearing in this magazine, and any views or opinions expressed are not necessarily those of the Law Society’s Council, save where otherwise indicated. No responsibility for loss or distress occasioned to any person acting or refraining from acting as a result of the material in this publication can be accepted by the authors, contributors, editor or publishers. The editor reserves the right to make publishing decisions on any advertisement or editorial article submitted to this magazine, and to refuse publication or to edit any editorial material as seems appropriate to him. Professional legal advice should always be sought in relation to any specific matter. Published at Blackhall Place, Dublin 7, tel: 01 672 4800, fax: 01 672 4877. Email: [email protected] Law Society website: www.lawsociety.ie 40
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PRESIDENT’S MESSAGE LAW SOCIETY GAZETTE OCTOBER 2006
Observing the highest standards
ctober has arrived. The opening of the legal year always gives a new impetus and edge to all, particularly practitioners who have direct contact O with the courts and the administration of justice. During September, the Society was asked to take part in a consultation breakfast seminar on ‘Active Citizenship’, a concept promoted by An Taoiseach. The aim of the meeting was to provide an opportunity for discussion on the views set down in the consultation paper. In particular, the taskforce is anxious to hear the profession’s view on how it could be encouraged and supported to play a more active societal role as Ireland evolves. It was most heartening to see the involvement of most of the In October, the Society is taking part in a forum “We must large firms, headed by Arthur Cox, in this initiative. with some representatives from the All Chinese I, like all other members of the profession, I am Lawyers’ Association, ACLA, who are coming to attempt to sure, and indeed the public at large, have been Ireland for a legal educational visit. The Society, on ensure that outraged at the ‘rateyoursolicitor.com’ website. The behalf of the profession, looks forward to greeting our Council of the Society discussed the situation at its Chinese visitors and hopes their visit will assist in some we act in an September meeting. The content of certain of the way in the advancement of the rule of law in China. honourable entries on this website are extremely unsavoury, The visit is a project that has been promoted by the personal and fictitious. The director general took part Criminal Law Committee. Colette Carey is to be and correct in a radio interview with Pat Kenny, in which he congratulated for her hard work on behalf of the manner at all condemned the website. The Society will continue to committee in organising part of this event. monitor the position and take what action it considers In September, I attended the annual meeting of the times, both necessary and appropriate in the circumstances, at any International Bar Association. An invitation has been with each time. extended to the governing body of the International The Advanced Advocacy Course again took place Bar Association by both the Bar Council and the Law other and our in September – such courses are most worthwhile and Society to hold its annual conference in Dublin in clients” encourage the profession to undertake advocacy 2012. Geraldine Clarke, who is the Law Society’s without any fear or self-doubt. A special word of nominee, is to be congratulated for all her hard work in thanks goes to James MacGuill for the work done in extending the invitation. relation to the course’s inception, and also Rachel During the last year, there have been six parchment D’Alton for the successful running of the course. On ceremonies, at which 484 new practitioners have been this occasion, 17 solicitors undertook the course, added to the Roll. Judge Mary Finlay Geoghegan which now means that over 118 have taken it since its reminded everybody at the parchment ceremony on establishment. 1 September of the importance of observing the highest The Union Internationale Avocats Forum of ethical and moral standards in our professional careers. Mediators conference met in the Law Society on We must attempt to ensure that we act in an 8 September. This event, organised primarily by Petria honourable and correct manner at all times, both with McDonnell, was most successful. The event featured each other and our clients. It is appropriate at the start approximately 50 lawyers, mainly from Europe and of a new legal year to remind ourselves of these matters. North America, who practise in mediation. The success of the forum again illustrates the international Michael Irvine interest that is now being focused in this area. President
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NEWS LAW SOCIETY GAZETTE OCTOBER 2006 nationwide
Send your news to: Law Society Gazette, Blackhall Place, Dublin 7, or email: [email protected]
■ CAVAN solicitors can improve their CPD – it won’t go away, you practices. Her title was ‘How to know Prepare a Bill which your Clients No matter which way we turn, Will Rush to Pay’. continuing professional Council member Kevin development (CPD) is still with O’Higgins spoke about a very us. Now well into the current different world and, in particular, two-year cycle, solicitors’ that affecting black lawyers in associations around the country South Africa and the challenges are cranking-up with full facing them in seeking black programmes of updating and empowerment. revisions. And the Cavan Bar Association is happily to the Back to earth forefront. A continuation of the successful On 9 October, Dublin practice management series of solicitor and taxation expert seminars under the title, Brian Bohan will provide an ‘Continuing to Build a Dynamic update to Cavan solicitors on Profitable Practice’ will take ‘Taxation for Conveyancers’. At Minister Michael McDowell, Randal Doherty and Robert Ryan at the place in Dublin over the coming National Concert Hall on 6 September, for the merger launch reception another seminar, Dublin solicitor of Doherty Ryan & Associates, Solicitors weeks. This will, again, involve Anne Neary and former banker the supplementing of The Kieran Finnan will conduct a Solicitors’ Tool Kit. four-hour session on ‘Practice know each other better as 140 delegates of the Dublin Management’, a subject colleagues, which of course helps Solicitors’ Bar Association, ■ DONEGAL sponsored, appropriately enough, in day-to-day work when we get headed by DSBA President Brian Judicial changes by the Solicitors Mutual Defence home,” she add. Sinead herself is, Gallagher, recently returned to Colleagues in Donegal are Fund. in fact, leaving our serried ranks Dublin, re-energised after a five- pleased to note the permanent Next month, on 15 and leaving for the Bar later this day conference in Rome. appointment of Circuit Court November, Cavan conveyancers month, so there is a vacancy at The business session on the Judge John O’Hagan to the can hear Dublin colleague and the top of the SLA. We wish her topic of ‘The Rule of Law’ Northern Circuit. “He has been planning law expert, John Gore- well. enabled delegates to hear Judge with us on a temporary basis for Grimes, speaking on ‘Planning Maureen Harding Clark of the the past 14 months, but the for Conveyancers’. ■ DUBLIN International Criminal Court permanent appointment gives us The rule of law give interesting insights into the all an element of certainty and ■ CORK This is clearly a seminal topic rule of law worldwide. security and is warmly Budapest that solicitors can never really get Another speaker, colleague welcomed,” says Margaret The annual conference of the away from – even in Rome. Over Anne Neary, addressed how Mulrine of the Donegal Bar Southern Law Association in Association. Budapest (they flew out before They also note the retirement the recent riots) was a great PASSING THE BATON last month of District Court success, by all accounts. The 35 In 2004, our columnist Pat Igoe agreed, in his own words, “to Judge John O’Donnell after ten solicitors who travelled enjoyed temporarily write the ‘Nationwide’ column for a period of two months”! years in Donegal. A function to an interesting tour de force by Two years on, he says, it’s well past time to dump the old golf ball (it’s mark his retirement will be held Circuit Court Judge James a typewriter). “As I do so,” says Pat, “I want to thank the many next month. Margaret Mulrine O’Donoghue on the role of colleagues around the country who kindly informed me of the goings-on, added that solicitors hoped that expert witnesses in court and not all of them printable, in our ancient and still honourable profession.” there would be no delay in the recent developments in family I’d like to thank Pat for his skill and diligence in producing appointment of his successor law. ‘Nationwide’ each month. We’ll miss his pithy insights! because “such delays are not It was, according to Sinead The good news is that the ‘Nationwide’ column will continue, with helpful”. G Behan, President of the Southern Kevin O’Higgins stepping into the breach. Please continue to send your Law Association, a most bar association news to: [email protected]. Nationwide is compiled by Pat interesting and informative The editor Igoe, principal of the Dublin law lecture. “In addition, we got to firm Patrick Igoe & Co.
www.lawsociety.ie 7 LAW SOCIETY GAZETTE OCTOBER 2006 NEWS
■ RETIREMENT TRUST SCHEME Unit prices: 1 September 2006 Waiting times for legal aid Managed fund: €5.653789 All-equity fund: €1.31509 Cash fund: €2.673048 now less than four months Long-bond fund: €1.38877 he Legal Aid Board says compared with 2,200 at the end 3,300 new clients had Tthat waiting times for client of 2004; of the cases in which registered with the Refugee ■ LAW SOCIETY DIPLOMA appointments with solicitors advice only was provided, 70% Legal Service. PROGRAMME have been reduced considerably, related to family law, 10% to Anne Colley added: “The The Diploma Team would like to with no law centre having a conveyancing, and 20% to considerable increases in the take this opportunity to thank waiting time greater than four other civil law matters; of the financial eligibility levels for members of the profession who months. In fact, in half of the cases in which the board’s law- clients of the board … will, lecture and provide an input to our board’s law centres, the waiting centre solicitors provided undoubtedly, have a significant courses. You make a valuable times are two months or less. representation in court, 60% impact on the capacity of quite contribution and we appreciate The findings are published in related to divorce, separation a number of the less well off in your time and effort. the Legal Aid Board’s Annual and nullity, 6% to child care, society to access justice where, Is there a particular diploma Report 2005, published on 28 23% to other family law previously, by way of financial course you would like to see September 2006. matters, and over 10% to other incapacity, they would not do introduced? Do you feel you have a Speaking at the launch, the civil law matters; and more than so.” contribution to make to the chairperson of the board, Anne diploma programme by lecturing or Colley, referred to the increase facilitating workshops? We want in the grant in aid provided for to hear from you! Email: 2005 by the government to New Law School prize [email protected], tel: ensure that the service provided new annual Arthur Cox his outstanding contribution to 01 672 4802, fax: 01 672 4890 would not only be a AFoundation Prize of Ireland and to his profession, professional one, but would also €1,500 will be awarded for the particularly in the area of ■ ARDCHÚRSA GAEILGE DO be timely. first time in 2007, on company law – a trust fund LUCHT CLEACHTAITHE DLÍ She said that, with the benefit completion of the PPCII, for should be established in his Reachtálfar Ardchúrsa Gaeilge do of the increased funding, the the best overall results in PPCI memory that would be used for lucht cleachtaithe dlí in Óstaí an board had committed itself to Business Law combined with educational and charitable Rí (King’s Inns) arís an bhliain ensuring that all applicants for the PPCII Banking and purposes. Since the establish- acadúil seo (2006-07). Reachtálfar legal services would receive an Corporate Law elective. ment of the Arthur Cox Found- léachtaí gach tráthnóna Luain idir appointment with a Legal Aid The Law Society, as the ation, its funds have been used to 6.30pm agus 8.30pm ag tosú an Board solicitor within four continuing trustee of the assist the writing and publication 16ú Deireadh Fómhair 2006. months. “During 2005, we have foundation, is pleased to of Irish legal textbooks and the Tabharfar seacht léacht ar an fulfilled that commitment,” she announce this prize, which is development of electronic gcúrsa. Cuirfear béim ar obair said. very much in the spirit of the databases of Irish legal materials. phraiticiúil agus déanfar mion-phlé By the end of 2005, almost foundation’s purpose. See the Law Society’s website ar stádas dlíthiúil na Gaeilge agus 17,500 persons had been When Arthur Cox retired for more details on the ar obair aistriúcháin. Is é €150 an provided with legal services by from practice as a solicitor in foundation and the projects it táille. Tuilleadh eolais: Dáithí Mac the board; less than 1,000 1961, a number of his clients, has assisted. A list of all Law Cárthaigh BL, 01 817 5251, 087 clients were awaiting an lawyer colleagues and friends School prizes is published in the 236 8364. appointment with a solicitor decided that – in recognition of student handbook.
8 www.lawsociety.ie NEWS LAW SOCIETY GAZETTE OCTOBER 2006
■ CLIENT FOCUS SEMINARS International mediators join “Client expectations are increasing rapidly and it is up to us as a profession to meet them.” forces at Law Society So said Law Society President ixty delegates representing Michael Irvine when he launched Smediation centres in 20 the Client Care Taskforce. “As a countries as far away as China profession, there is a lot we can took part in a conference on do to improve the overall level of the future of international service we offer. We need to focus commercial mediation from 8- strongly on managing and 9 September at Blackhall retaining our existing clients.” Place. Sponsored by the World The Law Society’s Client Care Forum of Mediation Centres Taskforce has organised the client of the Union Internationale focus seminars for November and des Avocats, the conference December, with more in the considered a variety of topics pipeline for 2007. that would assist mediators and Participants will get exclusive mediation centres deliver the access to current ideas and steps highest quality services to the At the mediation conference were (l to r): Thierry Garby (UIA World Forum to improve legal practices – for of Mediation Centres), Michael Irvine (Law Society), Petria McDonnell public. (McCann FitzGerald), Mark Appel (International Centre for Dispute both clients and the firm. So join Ireland’s Attorney General Resolution) and John Madden (Madden Mediation) your colleagues at the Client Rory Brady SC welcomed the Focus Seminar and learn to tackle delegates. Also present were amendment would expand the process will go nowhere. Bruni some of the key issues involved. President of the Law Society confidentiality of mediation suggested that retaining Locations and dates: Michael Irvine and President communications to cover authority and financial • DUBLIN: The Royal College of of the World Forum of statements by the parties’ considerations are a factor in Physicians of Ireland – Tuesday Mediation Centres Thierry counsel and third parties, such Italy, where judges worry that 21 November 2006, 1pm–5pm Garby. as experts attending the mediation means less power • THURLES: Tipperary Institute In the first substantive mediation. Given the number for them and lawyers worry Conference Centre – Tuesday 5 presentation, Katja Lenzing of of outstanding issues, it may be that it means less money in December 2006, 1pm-5pm the European Commission some time before there is EU their pocket. If you have any queries, please reported on the proposed EU legislative support for Giovanni De Berti of De contact Louise Byrne on 01 672 directive on mediation in civil mediation. Berti Jacchia, in Rome, 4802 or at: clientfocus@ and commercial matters. Mary A discussion of ‘Ethical compared the attitude toward lawsociety.ie. Joy, of the Irish Department of Rules for Mediation Service mediation in civil versus Justice, Equality and Law Providers’, was led by F Peter common law jurisdictions. He ■ ECHR STUDY LAUNCH Reform – the shepherd of the Phillips, acting president and noted that in common law The ECHR study, sponsored by the proposed EU directive for CEO of the International countries, the view is that all Law Society and the Dublin Ireland – participated in the Institute for Conflict that is not forbidden is Solicitors’ Bar Association, will be discussion. Prevention and Resolution in allowed, whereas in civil-law launched in City Hall at 6pm on A key objective of the New York. countries, the view is a Monday 23 October by Professor proposed directive is to There was a panel converse one. Conor Gearty, Director of the facilitate ‘access to dispute discussion on ‘Breaking Another topic on the agenda Centre for the Study of Human resolution’ through provisions Barriers to Mediation’. The was the success of mediation Rights at the London School of that: panel members were Jeffry legislation in Ireland. Petria Economics. The study was • Establish ‘minimum’ Abrams of Houston, Bertrand McDonnell reported on how a undertaken by a team led by common procedural rules in Lasserre of CMAP in Paris, group of Irish lawyers trained Donncha O’Connell of NUI Galway. the EU and Petria McDonnell of McCann as mediators, then influenced Titled European Convention on •Provide ‘necessary tools’ for FitzGerald in Dublin, and legislators to pass a law making Human Rights Act 2003 – A courts of member states ‘to Alessandro Bruni of Viterbo, mediation an adjunct to the Preliminary Assessment of actively promote the use of Italy. The barriers to commercial court, and an Impact, it will be published in mediation’. mediation in some countries essential part of the new Irish book form and will be include unfavourable PIAB. accompanied by a database of The EU Council is seeking legislation, unreceptive courts, The meeting concluded cases available on the sponsors’ amendments to the proposed and negative attitudes of with the mediation centres websites. The study will cost €10. draft. A particularly attorneys and business people agreeing to take concrete steps Anyone interested in attending the controversial one would limit in the community. Abrams back home to generate launch should contact Nicola the directive to cross-border posited that if lawyers are the awareness and interest in Crampton, tel 01 672 4961 or disputes. Another proposed ‘gatekeepers’ of mediation, the mediation. email: [email protected].
www.lawsociety.ie 9 LAW SOCIETY GAZETTE OCTOBER 2006 NEWS Law Society slams scurrilous rating he Law Society has repeat- could be, and no doubt in many Tedly slammed the so-called cases have been, posted by the solicitor-rating website rateyour solicitors themselves. However, solicitor.com. In an interview he contended, “This just further with Pat Kenny on RTÉ radio undermines the credibility of and in a letter published in The this website, as does the fact Irish Times, director general Ken that respected senior members Murphy described it as “the of the judiciary are named and technological-age equivalent of defamed by being described as writing insults on the back of a corrupt on the associated toilet door”. website of the so-called ‘victims He continued, “The of the legal profession’.” anonymity of the comments Kenny was sympathetic and Pat Kenny: “Not the way I would Ken Murphy: “Solicitors are entitled robs them of any credibility or go about selecting a solicitor” to their good name and reputation acknowledged: “I am not sure value. There is no evidence that this is the way you would find a the venomous and personally a personal grudge, including the and embittered ‘rater’ is solicitor. It’s not the way I abusive comments made about clients on the other side in concerned.” would go about selecting a solicitors are in fact made by litigation or family law cases Pressed by Pat Kenny, solicitor.” clients or former clients of the where the solicitors being Murphy acknowledged that the The director general solicitors in question. They defamed in fact did too good a top-mark ratings of solicitors by commented: “Solicitors, like could be made by anybody with job as far as the disappointed some deliriously happy clients everyone else, are entitled to ONE TO WATCH: NEW LEGISLATION Health (Repayment Scheme) Act nursing homes because public payable during the period in affected if the refund is made to 2006 beds were not available. The question, plus interest. Once an an eligible person’s estate. This act was introduced in the Dáil position of such persons is being application is determined, payment Provision is made for in mid March 2006, was signed tested in the courts. must be made as soon as compliance with the data into law on 23 June 2006 and was It is estimated that around practicable. In making protection legislation and for commenced on 30 June by SI 338 20,000 potential claimants are still determinations, the scheme storage, retention and of 2006. In February 2005, the alive, and that 40,000 to 50,000 administrator is to give priority to management of all the records Supreme Court had found that estates of deceased persons will living claimants over the estates of involved. The Revenue charges illegally imposed on public have claims. In March 2006, deceased persons. Commissioners may request patients for long-term care could around 10,000 claims had already Applications for repayment must information relevant to tax not be retrospectively regularised, been calculated. be made by 1 January 2008 or a collection. and the Government committed later prescribed cut-off date, if one itself to developing a scheme to General scheme is prescribed by regulation. Patients’ private property make reimbursements. The act The act has 23 sections. It enables accounts sets out the framework for the the HSE to contract out its Tax position Payments may be made by cheque scheme. In some cases, where the functions under this act, to handle Repayments made to living people, to a claimant’s account or paid eligible people are still alive, or claims for repayment, and to or spouses or children of deceased directly to a patient’s private died on or after 9 December 1998, specify the forms to be used (and persons who would have been property account. The HSE is given the entire amount illegally charged therefore the information required entitled, are to be disregarded for certain powers to invest money will be repaid, together with to prove a claim). Repayments are income tax purposes and in held in patients’ private property compensation for inflation. The to include reimbursement of money relation to assessments for health accounts, subject to directions to Statute of Limitations is relied paid (as may be recoverable) plus or social welfare benefits. Any tax the contrary by the account holder upon by the State to exclude interest as provided for in relief already availed of is not to be or a court-appointed next friend. claims prior to that date. The act regulations, to reflect inflation as affected by a repayment, and The HSE may use money for the also seeks to protect patients’ measured by the consumer price probate tax is not payable on benefit of the account holder with interests by establishing a index. There is also provision for repayments. However, repayments permission, or apply annually on statutory framework for patient calculating repayments in the event may be set against payments notice to the Circuit Court for private property accounts, being that certain information is made under the ex gratia scheme directions on the disbursement of accounts managed for people who unavailable, which may be based (up to €2,000 per person) or sums in the account exceeding are in long-term care. on other available information, or charges imposed under 2005 €5,000, or a greater prescribed The scheme does not apply to otherwise 80% of the non- regulations that have not been amount, for the benefit of account people who paid to live in private contributory old age pension paid. Inheritance taxes are not holders. The court may not order
10 www.lawsociety.ie NEWS LAW SOCIETY GAZETTE OCTOBER 2006 website Dublin pips Hong Kong for their good name and reputation, and not to have it taken away by 2008 ICCA Congress untrue and unfair statements. ublin has beaten rival celebrate the 50th anniversary of Congress took place in Montreal, Solicitors are human too, and I Dcontender Hong Kong as the the New York Convention on the from 31 May to 3 June. know that there has been real venue for the 2008 International Recognition and Enforcement of Representing the Law Society hurt caused to people as a result Council for Commercial Arbitration Foreign Arbitral Awards. were Michael Moran and Michael of some of these things.” (ICCA) Congress. Following Dublin’s selection, Carrigan, while there on behalf of Shortly after the interview ICCA was founded in 1969 and the Bar established an internal the Bar were Klaus Reichert, was broadcast, proceedings were is one of the foremost organisational committee. Another Peter Shanley and Jeanne initiated by a barrister claiming organisations for promoting committee, known as the ‘Dublin McDonagh. to be defamed on the international arbitration and other 2008 Committee’, has The Irish delegation manned rateyoursolicitor.com website. forms of dispute resolution. Its subsequently been established a stand at the conference. The Orders were made in the High members include world-renowned involving members of the Bar group took the opportunity to Court by Mr Justice Hanna, arbitrators. Council, the Law Society of promote Dublin as a premier which have had the result that The proposal for the Irish Ireland, Chambers Ireland and the venue for international the website cannot be accessed congress was put forward by International Centre for Dispute arbitration. on www.rateyoursolicitor.com, active ICCA member, Klaus Resolution, with the primary In all, between 800 and 1,000 at least for the present. The case Reichert BL, with the support of purpose of promoting the Dublin participants are expected at the has been returned for the Bar Council. The 19th biennial congress. Dublin congress in two years’ interlocutory stage argument on congress in Dublin will also More recently, the ICCA time. 5 October 2006.
payment of refunded money to a fund has accounting and reporting their work, which the minister must Government has given a spouse or child of a claimant, duties. lay before each House of the commitment to activate the unless the money can be shown to Oireachtas. Appeals may be the scheme as soon as possible. have originally been paid by that Funding subject of investigation by the KPMG have been appointed as the person. Repayments and the costs of ombudsman. scheme administrators. The first making them are to be met from a Provision is made for repayment payments are expected to be made One bite special account to be funded by of any payments obtained through in autumn 2006. A special A person’s claim is not affected by money voted by the Oireachtas. fraud or misrepresentation, procedure is being developed by making an application for The amount repayable is estimated including from a deceased the Probate Office to facilitate repayment, but acceptance of a at €1 billion. The minister has person’s estate. The Comptroller claims made on behalf of estates repayment involves waiving his or power to request reports on the and Auditor General is given a role of people entitled to be refunded, if her right to sue in relation to that general administration of the act in examining the administration of no other property is involved. recoverable health charge. and the management of patients’ the scheme. Conversely, if a court makes an private property accounts. Unresolved issues award, a separate claim for Offences Many legal issues are left repayment cannot be made. Appeals Giving materially false or unresolved by the scheme and are When a decision is made, the misleading information is an likely to be the subject of litigation. Donations claimant is required to be notified offence punishable on summary See Eoin O’Dell's “The Nature and The HSE can establish a donations promptly in writing, with reasons, conviction by a fine of up to Limits of Claims to Recover fund, with the purpose of providing and to be supplied with a copy of €3,000 and/or imprisonment of up Unlawful Health Charges” in Older one-off public health services section 16, which deals with to six months. On conviction on People in Modern Ireland: Essays improvements to older and appeals. The minister may appoint indictment, the penalties are a fine on Law and Policy (First Law 2006). disabled persons, which do not a barrister or solicitor of at least of up to €25,000 and/or Further information on the involve recurring costs and which five years’ standing to hear imprisonment for two years. Similar repayment scheme is available on: would not be met out of appeals and may issue guidelines penalties apply to people who www.dohc.ie/public/ government allocations. Recipients for them. Reasoned decisions are breach privacy under the data information/health_services_for_ of repayments may direct them to to be given in writing, and appeals protection legislation or fail to older_people/refund_of_nursing_ be paid into the fund and the fund lie on points of law to the High provide records under their control. home_charges.html. G may also accept money from other Court. The appointment of an sources. For tax purposes, such appeals officer may be revoked for Timescale Alma Clissmann is the Law donations are treated as stated reasons. Appeals officers Conscious that many of those Society’s parliamentary and law charitable. The management of the are required to provide reports on entitled to refunds are elderly, the reform executive.
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NEWS LAW SOCIETY GAZETTE OCTOBER 2006 human rights watch Intractable access, abduction and the ECHR Alma Clissmann reports on developments in relation to the practical application of the European Convention on Human Rights n 20 July 2006, in Koudelka psychologist’s conclusion in months, as a result of which In a striking British Ov Czech Republic (1633/05), July 2002 that the child was the domestic court had judgment in F v N ([2004] the European Court of Human not being well brought up deprived him of all parental EWHC 727 (Fam)), Munby J Rights (ECtHR) held that the raised the question of whether rights. said it was “almost impossible” applicant’s rights under article 8 the courts were considering the for a contact case lasting five (right to respect for private and child’s interests in the matter. Other recent ECtHR years to be compatible with the family life) had been violated In effect, the courts had jurisprudence ECHR, regardless of the and that the defendant State allowed the dispute to drift and In Siemianowski v Poland behaviour of the parents that had not done enough to enforce be settled by the passage of (45972/00, 6 September 2005), led to the length of the parental access in the face of time. As the girl was now 15 or the courts allowed the matter of proceedings. He accepted that intransigence by the child’s 16, a child/parent relationship access and its enforcement to the courts had failed Mr F. mother. with her father no longer drift, and found unreasonable Munby J contemplated Mr Koudelka and EP had a seemed possible. Mr Koudelka delay under article 6(1). When suspended committal orders, daughter in 1990 and separated was awarded €13,000 for non- the child turned 13, the which would come into effect if the following year. In 1993, pecuniary damage and €2,000 domestic court had held that contact did not take place. The custody was granted to EP. In for costs and expenses. her views must also be issue was discussed in a Green 1993, Mr Koudelka applied for considered, which the ECtHR Paper – Parental Separation: access and, in an October 1995 Zawadka v Poland accepted. It did not make a Children’s Needs and Parents’ decision (upheld on appeal), This is not the first case in finding under article 8, as Mr Responsibilities – published by the was granted supervised access which the ECtHR has held Siemianowski had managed to Department for Constitutional in a welfare centre, with the that the state must do more to maintain some contact with her Affairs in July 2004. It proposed assistance of a specialised social enforce access in the face of between 1992 (when she was a suite of supports, inducements worker. The little girl was then parental recalcitrance, eight) and 2002. and enforcement, including five years old. alienation and abduction. In HN v Poland (77710/01, 13 earlier listing of cases, cases to Despite Mr Koudelka’s Zawadka v Poland (48542/99, September 2005) and Karadzic v be heard as quickly and efforts to have it enforced, the 23 June 2005), Mr Zawadka’s Croatia (35030/04, 15 effectively as possible, greater access happened only once, in complaint was that he had not December 2005) both judicial continuity and rapid 2002, when experts observed got adequate assistance from concerned abductions to return to court when needed. and reported serious the domestic authorities in another country and the failure In Ireland, there are no shortcomings in the 12-year- having his access rights of authorities there to take services available to the courts old girl’s upbringing by her enforced in relation to his son, sufficient steps to find the to ensure contact between mother. who was three years old at the children and have them parents and children in difficult The ECtHR found that the time. The court agreed and returned. Another interesting cases. The HSE, if asked, domestic court had been aware found that the Polish case is C v Finland (18249/02, 9 replies that all their resources since 1995 of EP’s obstruction authorities had failed to take May 2006), which concerned are committed to the public law of contact, but that its response practical steps that would children of ten and 12 years child cases that are already their had been feeble: in 1996, it encourage cooperation who were living with their responsibility. The courts can addressed a formal warning to between the boy’s parents and mother and her female partner make orders, but thereafter her (without effect); in April secure concrete and when the mother died. The only have crude tools at their 1999 and October 2000 it fined appropriate assistance by ECtHR found that the disposal – committal, assigning her €70 and €7 – measures competent state agents within a domestic court had given an custody to the excluded parent, that could not be considered specific legal framework suited effective veto to the children putting the children in care, sufficient or adequate. to the needs of separated and had not considered factors imposition of a fine, and The court found that the parents and their underage other than their wishes, nor had possibly sequestration. This domestic courts had not taken child. This had resulted in him it investigated those to any does not measure up to the all measures that could permanently losing contact depth. The court found that the standards set in Strasbourg. G reasonably have been expected with his son. In frustration at decision-making process did of them and had not been the lack of access, Mr Zawadka not strike a proper balance Alma Clissmann is the sufficiently prompt and had abducted and gone into between all the interests, and Law Society’s parliamentary systematic. Further, the hiding with his boy for 15 found a violation of article 8. and law reform executive.
www.lawsociety.ie 13 LAW SOCIETY GAZETTE OCTOBER 2006 NEWS FEATURE A year of change for Society’s This year’s strategic review of the Law Society’s retirement trust scheme led to decisions that will positively affect the second half of the scheme year
he main news for Law is in the region of 1%, its TSociety of Ireland retirement MANAGEMENT ARRANGEMENTS weighting within the fund will trust scheme this year is that the be maintained at circa 10% for The management arrangements of the various components of the investment strategy review, the time being (down from a managed fund, from 1 July 2006 are as follows: carried out by the trustee and level of over 20% in the recent Solicitors’ Retirement Fund Fund Investment Appointed Performance past). Committee, is now complete. component style manager benchmark The geographical split of the Review results led to a Irish equities active BIAM ISEQ index all-equity fund will broadly number of strategic decisions Eurozone active AXA MSCI eurozone reflect that of the equity being implemented in June that equities Rosenberg index content of the managed fund. will now positively impact on the World (ex euro) active AXA MSCI world However, no special second half of the scheme year, 1 equities Rosenberg (ex euro) index consideration will be given to July 2006. Bonds passive BIAM Merrill Lynch the Irish equity market outside The scheme continues to >10yr eurozone of its MSCI index weighting. offer members four separate govt index The fund will be managed by funds for investment: the Property active BIAM/KBCAM Mercer pooled AXA Rosenberg. managed fund, the all-equity average The long-bond fund and fund, the long-bond fund, and Cash active BIAM Euribor cash fund will continue to be the cash fund, but the approach managed by Bank of Ireland to the investment management Asset Management (BIAM). arrangements of the underlying total fund level to the bonds, property and cash will Performance will be measured assets of the funds has changed. performance of the average be broadly maintained in line against the indices set out Previously, the assets of each Irish balanced fund. The with the average Irish balanced above, as appropriate. fund were placed with investment managers, therefore, fund. Similarly, the euro- investment managers on the had set the fund’s weightings in designated/non-euro-designated AXA Rosenberg basis that these managers the various asset classes and split of the assets will also AXA Rosenberg has been invested across all asset classes geographic regions accordingly. broadly follow the average. introduced to the scheme as an (for example, equities, bonds, Under the new strategy, Future performance of the investment specialist in regional property and cash, as performance will not be equity component will be and global equities. The appropriate). This has changed benchmarked at a total level to benchmarked to the MSCI company has over €71 billion to a more specialist approach the average Irish balanced fund. Eurobloc and MSCI World ex- in assets under management, where the trustee, under advice Instead, each component part Eurobloc Equity Indices. These over €1 billion of which are from the investment advisor, will be benchmarked against a are broad market indices, which managed on behalf of Irish considers separately the suitable index, with the weight individual countries/ pension funds. As a global requirements of each component appointed manager tasked to markets pro-rata to their value equity investment manager, its asset class and selects a suitable outperform that index. (Having (that is, market capitalisation). goal is to consistently investment approach and a ‘passive’ investment style, the The investment manager will outperform the market while investment manager for each. manager of the bond set the fund’s market weightings carefully managing risk. With the appointment of component is tasked to match accordingly. Special Mercer Investment Consulting rather than outperform the consideration will be given Fees as scheme investment advisor nominated benchmark index). within the managed fund to the The change in investment and the consequent access to the Under the new arrangement Irish equity market. Although strategy and the addition of a global research facilities of the for the managed fund, the the Irish market’s capitalisation new investment manager has Mercer Group, the scheme aims overall split between equities, weighting within the eurozone been achieved with the to retain Mercer-recommended, minimum of additional cost to top-rated managers as members. With a deduction of INVESTMENT PERFORMANCE OF appropriate. 2.5% from members’ THE LAW SOCIETY OF IRELAND RETIREMENT TRUST SCHEME A second change relates to contributions (that is, 97.5% of MANAGED FUND AS AT 31 DECEMBER 2005 the criteria for allocating funds contributions invested) and across the individual asset 1 Year 3 Years 5 Years 10 Years ongoing fees of typically less classes. For example, the 20.1% 14.0% 3.3% 10.9% than 0.75% per annum, the managed fund’s performance Source: Mercer – 3, 5 and 10-year figures are annualised. scheme remains among the had been Past performance is not a reliable guide to future performance. most cost effective in the Irish benchmarked/measured at a market.
14 www.lawsociety.ie NEWS FEATURE LAW SOCIETY GAZETTE OCTOBER 2006 retirement trust scheme General market review ground in the face of period spanning May and early 1.1% at the start of 2004 to a The first six months of 2006 continued inflation pressures June. One of the factors that current rate of 2.3%. This, saw mixed returns in equity, and higher interest rates, caused this increased level of combined with tighter property and bond markets: • The average managed fund volatility was the release of monetary policy conditions • Equity markets started the still managed positive returns some perky US inflation across the globe, particularly in year brightly, reaching a high (typically 0.9%). numbers for April, with higher Japan and the euro area, are the point in May. However, since than expected headline and main culprits behind the recent mid May, concerns about Equities core-inflation numbers. market sell-off. interest-rate increases The old adage of ‘sell in May The annual rate of headline prompted a sell-off as and go away’ seemed entirely inflation in the US is running at Bonds investors reassessed their appropriate for global stock 3.5%, up from 2.5% in the Risk was not rewarded in global appetite for risk, erasing markets. After a very good start middle of last year, but down bonds markets in the first half advances made since January, to the year, with many of the from a high of 4.7% at the end of the year, unlike the returns • Commercial property values major markets up between 5% of 2005. More importantly, that were produced in 2005. continued to be driven ahead and 10% in the first quarter, though, is the rise in the annual The longer the maturity of the by significant capital inflows, most, if not, all of these gains rate of core inflation in the US, government bonds, the greater • Bond markets lost some were eroded during a four-week which has risen from a low of the losses that occurred. European government bonds maturing in ten years or more LAW SOCIETY RETIREMENT TRUST SCHEME fell by a little over 7% so far this year, while shorter-dated The Law Society retirement trust scheme is the members of the bonds suffered more modest group personal pension scheme set up as a retirement trust losses of around 3%. US service to members of the Law Society. scheme are. This government bonds and their information is strictly European counterparts suffered Retirement scheme by the numbers: confidential to the similar losses, while emerging •Current value: in excess of €174,000,000. trustee. market government bonds • Number of solicitors in the retirement trust • No charges of any suffered some of the biggest scheme: approximately 900. kind are charged by declines. • Scheme trustees: the Governor and Company of or paid to the Law Elma Lynch, chair of the the Bank of Ireland. Society. Solicitors’ Retirement Fund Commercial property • Fund choices: managed fund, all-equity fund, Commercial property markets long bond fund and cash fund. Tax relief information: across the globe continued to • Investment managers: Bank of Ireland Asset Full tax-relief may be claimed annually on pension perform quite strongly in first Management Ltd manages the cash, bond and contributions up to the following limits with effect half of 2006. While there are no Irish equity components of the funds. AXA from 1 January 2006: official numbers available as yet, Rosenberg manages the global equity Age % of net relevant earnings* we estimate that most of the component of the funds with BIAM & KBC Asset Under 30 years 15% major commercial property Management jointly managing the property 30-39 years 20% markets have seen returns in the element of the managed fund. 40-49 years 25% order of 5% to 7%. Further •Different fee rates apply to each fund. 50-55 years 30% yield compression in most • Annual charges*: 0.75% (this includes all trust 55-60 years 35% sectors, combined with services and investment fees). 60 + 40% improving rental conditions in • Deduction from contributions: 2.5% (used the office sector, underpinned towards paying the annual charges). *There is a cap on earnings of currently these returns. G €254,000. Based on this income, the maximum a *Based on managed fund estimated costs for client aged 56, for example, could contribute tax- Alan Casey is a pensions specialist current year less estimated subsidy from effectively on an annual basis from 1/1/06 would at Bank of Ireland Private member's contribution deductions. be €88,900 (ie 35% of €254,000). Banking Limited and can be contacted on 01 6378707 or at What you need to know: For more information, log onto www.lawsociety.ie Bank of Ireland Private Banking, • All gains/losses on investments are passed on for a copy of the Law Society retirement trust 40 Mespil Road, Dublin 4 or by directly to scheme members – there is no scheme booklet, or contact Brian King, Bank of email: [email protected]. Bank discretionary element. Ireland Trust Services, 40 Mespil Road, Dublin 4, of Ireland Private Banking is • No member of the Law Society knows who the tel: 01 637 8770. regulated by the Financial The Governor and Company of Bank of Ireland is regulated by the Financial Regulator Regulator. A member of Bank of Ireland Group.
www.lawsociety.ie 15 LAW SOCIETY GAZETTE OCTOBER 2006 NEWS FEATURE Book of evidence on time in The National Crime Council’s report reveals that time-limit rules are more often broken than adhered to and recommends ways to improve the situation
he National Crime Court (Criminal Justice) Rules TCouncil’s latest report has 1997, which deals with the found differences between 42-day rule, should be murder and rape cases in the amended. time taken from the arrest of a • The resources available to suspect to the return for trial. the Forensic Science Differences were apparent in Laboratory should be the time between: reviewed to ensure they are • The arrest and the file being sufficient to meet the sent to the DPP, demand for forensic/DNA •From that date to the receipt reports. by the gardaí of final written • The Department of Health directions from the DPP, and Children should open •From that date to the service additional sexual assault of the book of evidence, and units in major regional •From the service of the book Padraic White, Chairman of the National Crime Council, and Judge hospitals. Any additional of evidence to the return for Michael Reilly, Chairman of the Council subgroup, at the launch of the regional units that may be National Crime Council report trial. opened should have DPP, queries being raised within six months of their adequately trained staff with This means that the rule that by the DPP, the fact that the initial arrest. the necessary forensic and stipulates that the book of file goes through a number of In rape cases, where the medical expertise. evidence shall not be served hands before it gets to the investigation may be more time • There should be ongoing later than 42 days after the Office of the DPP, and the consuming, the council consultation between the first appearance of the accused fact that there is no specific recommended that the time gardaí and the DPP’s office in the District Court (save person whose duty it is to intervals should be: to ensure that all with the leave of the court) ensure that matters are 1) Three months from initial investigation files are was more often broken than progressed as quickly as arrest for the file to be sent completed to the required adhered to. In the research possible. to the DPP, standard prior to their period, the book of evidence 2) One month from the receipt submission to the DPP. was served within the 42 days Main recommendations of this file for final • Use should be made of the in only 5% of murder cases The council recommended that directions to be issued, latest information and 32% of rape cases. the time intervals for murder 3) Two months for the technology and the In a unique piece of cases should be: preparation of the book of transferring of investigation research, the council examined 1) Two-and-a-half months from evidence and sending it to files directly to the DPP’s all murder and rape cases initial arrest for the file to be the gardaí for service, and office. The use of secure disposed of in the Central sent to the DPP by the 4) Two weeks for the service of electronic channels should Criminal Court between 2002 gardaí, the book and the order for be explored. and 2004. Over 320 cases were 2) One month from receipt of the accused to be returned • The senior garda officer in tracked, from the date of the this file for final directions for trial. charge of all murder and initial arrest of the suspect to be issued by the DPP, rape investigations and a until their disposal in the 3) Two months for the This means that, save in nominated officer from the Central Criminal Court. preparation of the book of exceptional circumstances, the DPP’s office should be The council identified areas evidence and sending it to defendants in all rape cases responsible, as far as where, with some changes, the gardaí for service, and should be returned for trial possible, for adherence to time intervals could be 4) Two weeks for the service of within six-and-a-half months of the recommended time shortened, including such the book and the order for their initial arrest. intervals from arrest to matters as the complexity of the accused to be returned service of the book of the case, the limited for trial. Other recommendations evidence. availability of sexual assault In order to ensure compliance units outside Dublin, the need This means that, save in with these recommended time The council also dealt with the for forensic evidence, the exceptional circumstances, the intervals, the council also time taken from the return for possible incompleteness of the defendants in all murder cases recommended that: trial to the ultimate disposal of file when submitted to the should be returned for trial • Rule 7(1) of the District both murder and rape cases in
16 www.lawsociety.ie NEWS FEATURE LAW SOCIETY GAZETTE OCTOBER 2006 only 5% of murder cases the Central Criminal Court. should begin within six • Cases that have to go back In the period under review, months of the return for into the list for whatever the typical murder case was trial, save in exceptional reason to have a further trial fixed for 50 weeks after the circumstances. date set should be given listing date and the typical rape • There should always be priority. case was fixed for 53 weeks sufficient judges, with • The current practice after the listing date. This has registrars and appropriate whereby the Central now improved. The waiting resources, available to hear Criminal Court sits in time in 2002 was 18 months; in all criminal trials that have provincial locations should 2003, this was reduced to 12 been scheduled to continue. months. However, cases listed commence in the Central • Consideration should be in March of this year were Criminal Court in a given given to introducing pre-trial being given trial dates in week. This may have hearings. October and November. resource implications and • The Criminal Legal Aid has invited tenders for an The council endorsed the impinge on the non-criminal Scheme should be reviewed. interpretation service on a view that a realistic time business of the High Court. • While the Courts Service nationwide basis, all other between return for trial and agencies in the criminal arraignment is six months. COURTS SERVICE RESPONDS justice field should consider how best to meet their Greater efficiency The Courts Service has responded to the National Crime Council’s interpretation requirements. The council addressed other report, saying that the waiting time for murder and rape cases •A common case-numbering issues that it says could heard before the Central Criminal Court has fallen dramatically over system should be introduced contribute to the greater the past three years. It argues that the National Crime Council’s across the whole criminal efficiency of the court process report concentrates chiefly on the period prior to the last three justice system. and it identified certain matters years, although the council says that it examined all murder and that could contribute to delays. rape cases disposed of in the Central Criminal Court from 2002 to The council says that, if these These include applications for 2004. recommendations are accepted, separate trials; late change of The Courts Service says that the current average waiting time the time interval in murder counsel/solicitor; trials not from a case being listed before the Central Criminal Court and the cases from arrest to start of reached; judge, registrar or trial going to hearing is now between 16 to 20 weeks. This is down trial should be 52 weeks, courtroom not available; from almost a two-year waiting period some years ago. compared with 90 weeks in the difficulties because of a need It lists the reasons for the time reduction as: the President of research period and, in rape for translation services; and the High Court assigning four judges full time to hear such cases; cases, should be 54 weeks inadequacies of the Criminal a change in some court procedures; the availability and use of compared with 118 weeks. G Legal Aid Scheme. newly refurbished, now suitable, courthouses around the country to The council recommended hear such cases; and judges sitting outside traditional court times Read the full report at: that: to clear backlogs. www.irlgov.ie/crimecouncil/docume • All murder and rape trials nts/Time_Intervals_Research.pdf.
www.lawsociety.ie 17 LAW SOCIETY GAZETTE OCTOBER 2006 LETTERS letters
Send your letters to: Law Society Gazette, Blackhall Place, Dublin 7, or email: [email protected] The Master replies From: The Master of the High opinion, require statutory support.” Court, Edmund W Honohan SC It appears, then, that my would have the effect nce again, the Gazette has reading of the law (sneeringly of bringing to life dormant defendant Opublished comments critical dismissed by Mr Gilhooly as my proceedings which had can plead the statute as and from of my decisions (Dog eat Dog, by “personal” view) is one shared by “commenced” at the date of the the date he became a party, he Stuart Gilhooly, Gazette none other than Ó Dálaigh CJ! summons, even though s12 of also has the right to be PIAB- August/September 2006) without In that case, it was the the PIAB Act provides that no assessed if he so chooses, in all asking for my response. proposed co-defendant who such proceedings could be cases in which he was not a party The net question is, when do submitted that he would be commenced then. Retrospective until after the PIAB opened for proceedings against an added co- deprived of his Statute of validation of a prohibited act business. If added “wrongly” (to defendant ‘commence’. Limitations rights by being achieved via PIAB authorisation? use Mr G’s disingenuous Mr Gilhooly says that, for the treated as having been party to I think not! The only workable expression) on the ex parte purposes of substantive law (eg the proceedings ab initio. The formula is that co-defendant application of the plaintiff, he the PIAB Act) they commence court disagreed (2:1), ruling that proceedings “commence” for all may apply for a strike out, or he when the plenary summons is an order under O15, r13 could purposes when the court makes may choose not to. The PIAB issued at the outset. In support of not have retrospective effect. its order under O15, and not Act is complicated enough as it is his contention, he cites the late The ratio of the decision was before. without introducing new Budd J in O’Reilly v Granville that (a) as an order under O15, I am due an apology. The ‘let’s problems. My advice is: pre- or ([1971] IR 90) to the effect that r13 did not have retrospective have a laugh at the Master’s post-PIAB Act summons, if you the ‘deemed’ commencement effect, it was still open to the expense’ tone is out of place, and want to join a co-defendant, seek date (O15, r13) is only for defendant to plead the statute as the article is defamatory! PIAB authorisation! Better be procedural purposes. of the date he became a party, To sum up, if an added co- safe than sorry. The date of commencement and that (b) it was not also plays a critical role in the appropriate to adjudicate, at the context of the Statute of interlocutory stage, whether or Cad a dúirt sé? Limitations. My view is that, not the defendant could From: RA Thomas Blaser, requirements … to the legal although the rules are not successfully plead the statute. Mühlenstr 5/D-88662 profession”. substantive law, nonetheless The case cited is not authority Überlingen I remember reading last year proceedings ‘commence’ (even for the proposition that hile reading the viewpoint in my weekly newsletter The Irish for substantive law purposes) proceedings against such a co- Wof Henry Murdoch on the Emigrant (issue no 984) that the when the rules say they defendant may be considered to proficiency in Irish as a introduction of Irish as the 21st commence. have been commenced on any prerequisite to qualifying as a official EU language on 1 Why did Mr Gilhooly not day other than the day specified solicitor or barrister, I felt clearly January 2007 “may be quote this passage, in the same in the rule. disadvantaged as I was not able to compromised by a shortage of case, from Ó Dálaigh CJ at p93? The flaw in Mr Gilhooly’s understand the sub-headings. fully qualified interpreters”. “Even if the words of O15, r13 proposition is laid bare when On the other hand, being one There are high costs for the were intended only to regulate he examines the post-PIAB of the EU lawyers admitted as a Irish Government of preparing procedural matters – eg to fix a date summons situation. Mr Gilhooly solicitor in Ireland, I clearly felt official documents in Irish, and as from which an appearance shall (correctly) notes that in post- advantaged, even privileged, by even higher costs for the EU to be entered – in my opinion the PIAB proceedings, a co- not having to sit an additional translate their sometime endless position will be substantially the defendant cannot be added by examination in the Irish legal publications, but who will same as a matter of substantive law. the court (it would be “wrong” of language. ever read these except the An added party cannot be considered the court, he says: interesting But may I add a further fact to interpreters? to have been a party to the choice of word; I am not sure Murdoch’s statement that “the As I totally agree with Prof proceedings earlier than the order what it means) without PIAB reality is that the English Murdoch [about the need] to giving leave to add. It would be authorisation. language dominates in the law” focus on the “demonstrated need contrary to the fact to hold Using his “one and that he thinks it about time for such an (Irish) proficiency”, I otherwise; to operate retrospectively commencement date fits all” “to remove those compulsory wonder if this investment is done the court’s order would, in my theory, the PIAB authorisation Irish language proficiency at the right place.
18 www.lawsociety.ie LETTERS LAW SOCIETY GAZETTE OCTOBER 2006
Irish language is a ‘diverse linguistic feast’ From: Dáithí Mac Cárthaigh BL, published in both languages is courses just when bilingualism century. Irish is absolutely as An Leabharlann Dlí, Baile Átha described as ‘acts’ and texts do is becoming essential to flexible and adaptable as English Cliath 7 not become ‘acts’ without statutory interpretation, not to and embodies the authoritative was very much taken aback by enactment” (AG of Québec v mention the employment versions of the EU treaties and IHenry Murdoch’s comments Blaikie [1979] 2 SCR 1016, at opportunities in Europe for of Bunreacht na hÉireann on the Irish language (Gazette, 1022). lawyers with a command of without breaking its stride. June 2006), where unlawful acts The Canadian Supreme Irish from 1 January 2007. From the haunting beauty of and breaches of duty by the Court also held that this duty Were Irish an optional Urchill an Chreagáin by Art Mac State in relation to Irish are included the issuing, bilingually, extra, the numbers taking it Cumhaigh to the post-modern used to justify his argument that of statutory instruments: would be small. This is human slang of Ros na Rún, Irish is a the language’s status be “Dealing now with the nature in relation to optional diverse linguistic feast. Why downgraded. question whether ‘regulations’ subjects, especially those with a else would Irish be studied and Were Mr Murdoch to use issued under the authority of language element. When taught in universities from the fact that certain provisions acts of the legislature of languages were made optional Moscow to Lublin (Poland), in relation to gender equality or Québec are ‘acts’ within the for the GCSE in England, the from Helsinki to Freiburg? combating racism or advancing purview of s133, it is apparent numbers taking a language Marginalised under colonial workers’ rights were more that it would truncate the dropped from 78% in 2001 to rule, many Irish-speaking honoured in the breach, and requirement of s133 if account 58% in 2005, and the main children had Irish beaten (or should therefore be abolished, were not taken of the growth of reason for the 58% is that most worse, ridiculed) out of them. he would be greeted with a delegated legislation. This is a Times have changed. Only Irish frosty reception – except, of case where the greater must can provide us with a culturally- course, from those opposed to based identity – beyond colour such measures in any event. and creed. On the question of The norm here in northern legislation, section 7 of the Europe is that people speak Official Languages Act 2003 both their national language requires that, from 14 July and the international language 2006, the texts of acts be (English/American). Why printed and published should Ireland lag behind? simultaneously in both Irish Irish may once have been in and English. The wording of retreat, but that is a trend that this section mirrors long- we are now reversing, both established Canadian non-state schools continued to within and without the legal legislation. Section 133 of the make languages compulsory. profession. More litigation than British North America Act 1867 For the record, Welsh has ever is being conducted through provides: never been compulsory in Irish, and not just by lawyers “The acts of the Parliament of Wales, but English has been who were born and educated Canada and of the Legislature include the lesser” (AG of since the inception of State here. Irish, like any language, is of Québec shall be printed and Québec v Blaikie [1979] 2 SCR education and this, coupled a skill to be acquired by published in both [English and 1016, at 1027). with English being the sole practice: it is a tool, not a French].” The Irish High Court language of power in that barrier. However, as Mr The Canadian Supreme reached the same conclusion in country for so long, led to a Murdoch’s article shows, anti- Court held that this mandated Ó Murchú v Cléireach Dháil dramatic decline in the use of Irish prejudice runs deep. the enactment of bills in both Éireann (JR 426/2000) in Welsh over the 20th century. Why Mr Murdoch cannot official languages (which should relation to the constitutional Undoubtedly, English (or praise English without boost the amount of Irish used obligation to issue statutory American as it will surely be denigrating Irish is beyond me. in the Houses of the instruments in both official known by the end of this If he perceives languages in Oireachtas): languages: Irish and English. century) is not only beautiful, general, and Irish in particular, “It was urged before this Given the long-established but useful. It is currently the as unlearnable, he should court that there was no practice of examining both international language, even refrain from flaunting this requirement of enactment in language versions of bilingual more so than French or Latin prejudice. both languages, as contrasted legislation in order to were in their day. Six thousand languages are with printing and publishing. determine the will of Irish, without which there spoken on Earth at present. It is However, if full weight is to be parliament (cf Driedger on the would be no Irish identity, has expected that 90% of these will given to every word of s133 it Construction of Statutes, Toronto, been spoken here for over 2,000 be lost by the year 2100. Irish is becomes apparent that this 1994), now is hardly the time to years and was the home among the 600 expected to requirement is implicit. What is drop Irish from the core language of the vast majority of survive. required to be printed and curriculum of our professional our people until the mid 19th Every language that is lost
www.lawsociety.ie 19
LETTERS LAW SOCIETY GAZETTE OCTOBER 2006
brings to the grave with it a of [St] Bríd) is not the same separate identity/society/nation Had the Poles abandoned unique understanding and thing as Kilbride (murder your subsist after such loss? Polish as their language outlook on life and humanity, a wife?). Consider the phrase What became of the following the partition of their collection of stories, legends, duine le Dia. Cumbrians of northern country between Prussia, Russia jokes, proverbs, songs, It is not a question of England whose P-Celtic and Austria, would Poland have nicknames, etc. whether a separate language was lost in the 10th reappeared on the map of Cluain Meala (meadow of identity/society/nation can century? What became of the Europe? Of course not. For a honey) is not the same thing as survive the loss of its language. eastern European Germanic society, the loss of language is Clonmel. Cill Bhríde (the Church The question is: how long can a Goths? Answer: assimilation. the loss of self. Involuntary admissions From: Mark Felton, Felton such persons at the tribunals. that we, as practitioners, would email. We can then work out McKnight Solicitors, Greystones, The Mental Health also benefit from having our the details of how we can Co Wicklow Commission has run a number own discussion establish such a discussion s readers may be aware, of very informative and group/committee, so that we group/committee, depending on Athe Minister for Health thought-provoking training could exchange relevant the views of the practitioners. I has announced that all courses for the legal information on practice and would be willing to assist in remaining provisions of the representatives. Those of us procedure, for example, compiling a list of all interested Mental Health Act 2001 will who have been appointed to the particularly as this is such a new parties in the first instance. come into force on 1 panel are very grateful for the practice area. If this is of interest to any November next. The provisions time and thought the In the interests of providing other practitioners who have that will become effective on commission put into the a mechanism to enable such a been appointed to the panel, I that date include new training process. group to commence, I would look forward to hearing from procedures in respect of the There was an opinion aired invite any interested you. My email address is: voluntary admittance of at the training course I attended practitioners to contact me by [email protected]. patients and the involuntary admittance of patients to hospitals for treatment, where Legal writing opportunity they are deemed to be suffering from a mental disorder as From: Henry Murdoch BL, following my retirement, to all acts since 1922, statutory defined by section 3 of the act. Glenageary, Co Dublin update my book Murdoch’s instruments and Law Reform The act provides that, in the re you a barrister or Dictionary of Irish Law, the first Commission Reports. case of a person who is Asolicitor who has an ability edition of which appeared in If you consider that you have involuntarily admitted to an to write coherently and 1988. It is now in its 4th edition the energy and the skill ‘approved centre’, as defined by concisely on legal matters? Or (2004) at 1,255 pages and is necessary to keep these section 63 of the act, they must, are you part of a legal team acknowledged as the only publications up to date with my within 21 days of their with these skills? Have you an comprehensive law dictionary editorial assistance (the admittance to the centre, be interest in all areas of law? Are covering all aspects of Irish law. publications currently state the brought before a tribunal of you prepared to make a major In updating the book, you law as of 1 September 2004), enquiry to establish whether or contribution for relatively would also be automatically and if you would like to receive not their detention is lawful. limited monetary reward? updating the sophisticated an information pack on what In order to facilitate this, Would you like to have your electronic product Murdoch’s would be involved in such the Mental Health career possibilities enhanced by Irish Legal Companion, which updating, please contact: Henry Commission, in accordance updating an established legal not only includes the dictionary Murdoch BL, 10 Haddington with its statutory obligations, publication? but also includes the full text of Lawn, Glenageary, Co Dublin. has created a panel of legal If you meet these criteria, most of the referenced sources, Phone 01 280 0460, or email: representatives who will act for you could be the person, for example, the Constitution, [email protected].
LAW SOCIETY OF IRELAND DIPLOMA PROGRAMME Diploma in Property Tax 2006/07 CORK This diploma deals with the various tax stamp duty in relation to property trans- Timetable and venue: The course will 15 November 2006. implications of property transactions actions. The course also deals with cor- be provided in Court House Chambers Fee: The fee for the course is 1,850 and will give practitioners a greater poration tax and tax management. in Cork on Wednesday evenings from which includes all materials, course sense of confidence and security, as Course participants: The diploma is 5.30pm to 9.30pm over 16 weeks. attendance and examination fees. they will be less likely to fall victim to open to solicitors, trainees who have The course is divided into three mod- For further information email: m.sin- the many tax pitfalls that result from completed their PPC I course, and ules: 1) VAT and Income Tax; 2) CAT & [email protected] or access the the maze of existing tax legislation. The those having a good working knowl- CGT and 3) Tax Management – with an Diploma section on the homepage of course deals with the individual taxes edge of tax who wish to further devel- exam at the end of each module. The the Law Society’s website: www.law- including CAT, CGT, income tax, VAT and op their expertise in this area. course will commence on Wednesday society.ie
www.lawsociety.ie 21 LAW SOCIETY GAZETTE OCTOBER 2006 COVER STORY the ABCof PQE Practising solicitors and legal firms might wish to carefully consider the cautionary words of the Equality Authority in relation to post-qualification experience (PQE) in recruitment advertisements, and a recent decision by the Gazette Editorial Board on the matter. Michelle Ní Longáin pores over the job adverts
areful readers of the Law Society sought indicates an Gazette will have seen the notice in the intention to last edition (Aug/Sept 2006, p67) – discriminate on the and in the Society’s latest eZine – age ground, or might C pointing out that the magazine will no reasonably be understood as longer accept recruitment advertisements that indicating such an intention, contain references to post-qualification experience contrary to section 10 of the [Employment MAIN POINTS (PQE). The reason? The possibility of Equality Acts 1998 and 2004] act.” • PQE and discrimination. The decision was taken by the At last July’s meeting, the Gazette Editorial discrimination Gazette Editorial Board, based on previous case law, Board met to consider the views expressed in the •Indirect on advice received from the Equality Authority. Equality Authority letter, and sought legal advice discrimination on Last June, the editor of the Gazette received a about the publication of PQEs in recruitment age and other letter from the Equality Authority, which stated: advertisements. The board, on legal advice, reviewed grounds “In our view … references [in recruitment the letter from the authority and considered the •A strong defence advertisements] … to maximum limits regarding the decisions of the Equality Tribunal in the following number of years of post-qualification experience cases: Equality Authority v Ryanair; McGarr v
22 www.lawsociety.ie COVER STORY LAW SOCIETY GAZETTE OCTOBER 2006 PIC: [email protected]
having published advertisements after that date which also used the word “young”. It was the use of this word that led the Equality Authority to refer this matter to the Equality Tribunal. The McGarr case considered a claim brought by an employee against his employer, rather than an advertising claim brought by the Equality Authority. In that case, the imposition of a five- year service requirement for a promotional post was found to be indirectly discriminatory on the age ground. The Noonan case concerned an application for
PIC: GETTY IMAGES employment where the recruitment process for an accountancy post advertised with an upper level of PQE was found to be indirectly discriminatory, and the respondent failed to justify such indirect discrimination.
High definition At the time of all of these three cases, the Employment Equality Act 1998 applied. It provided that the defence to indirect discrimination was that it was reasonable in all the circumstances. The Labour Court held that this concept of Department of reasonableness had to be the ordinary, objective Finance; Noonan v standard of reasonableness. Accountancy Connections. The law has now changed. The Equality Act 2004, The Ryanair case dealt with the amending the Employment Equality Act 1998 (now publication of an advertisement for a the Employment Equality Acts 1998 and 2004), has “young dynamic professional”. In that changed the definition of indirect discrimination case, the Equality Authority brought and the provision for its justification. Indirect proceedings against Ryanair only; as the Irish discrimination on age (and other grounds Times, the publisher of the advertisement, had provided for in the 1998 and 2004 acts) now apologised for carrying the advertisement, despite arises where an apparently neutral rule or
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that there are grounds for believing that the publication or display of the advertisement may be in contravention of this section. Such an injunction may be granted until the decision of the director on a reference to the Equality Tribunal of the publication or display of the advertisement, or until the court otherwise orders. In the Ryanair case, the equality officer commented that the Equality Authority should have considered invoking its powers to seek an injunction from the High Court to prevent the filling of the post, pending the hearing of their referral to the Equality Tribunal.
Justified and ancient The definition of indirect discrimination and the test provision puts people of a particular age (or other for its justification is more onerous for recruiters, such ground) at a particular disadvantage in respect advertisers, publishers and employers than it was at of any matter, compared with fellow employees. The the time of the decisions in both McGarr and Noonan. provision also applies to candidates for employment It is now more difficult to justify indirect and promotion. The act provides that the employer discrimination than it was prior to the 2004 act shall be treated for the purpose of the act as amendments. The Ryanair case was also heard prior to discriminating against the people referred to, unless the 2004 act amendments. The focus of the equality the provision is objectively justified by a legitimate officer in the Ryanair case was whether or not the aim, and that the means of achieving that aim are advertisement might be reasonably understood as appropriate and necessary. The Labour Court has “A person shall indicating an intention to discriminate. The Equality held in NBK Designs v Marie Inoue that, in order to Authority need not show that the advertiser, publisher satisfy the ‘objective justification test’, it must be not publish or or employer, in fact, intended to or did discriminate. shown that the provision corresponds to a real need display, or In the Brendan Noonan case, the equality officer on the part of the undertaking, is appropriate with a stated that the question to be considered was whether view to achieving the objective being pursued, and is cause to be or not the requirement of a maximum of two to three necessary to that end. published or years’ post-qualification experience to achieve the The court further elaborated by stating that it is employer’s aim of obtaining the appropriate skill-base not enough to conclude that the requirement is displayed, an of the role was unrelated to any discrimination based reasonable – the accepted test is that it must be advertisement on age. The equality officer stated that a mere essential. A High Court judgment was relied on in generalisation of years with skill level was insufficient that regard. In determining whether or not the means that ... to justify indirect age discrimination. This statement chosen is appropriate, the court held that this requires indicates an is as directly applicable to requirements for maximum that the means be proportionate to the objective that PQE for solicitor posts as it is to accountancy posts. they are intended to achieve. The court held that, to intention to The McGarr case did not involve the term ‘PQE’; satisfy the requirement of proportionality, it must discriminate, however, the issue at stake there was whether or not balance the value of the benefit accruing to the the requirement to have five years’ experience at a employer against the discriminatory effect of the or might be particular grade was indirectly discriminatory. In that method by which it was achieved. The court further reasonably case, the complainant said that he had been provided held that it is for the employer to demonstrate that with figures that confirmed that the bar to promotion there were no alternative means, having a less understood as to higher executive officer until five years’ service had discriminatory effect, by which the objective in view indicating such been achieved was going to result in age could have been achieved. discrimination. The figures that he had been given Section 10 of the act, which was considered in the an intention” showed that the five years’ service requirement Ryanair case, was not amended in 2004 in respect of resulted in a significant under-representation of the age ground. Section 10 provides that a person candidates under the age of 30 years and, shall not publish or display, or cause to be published consequently, an under-representation of higher or displayed, an advertisement that relates to executive officers under that age. He contended that employment and that indicates an intention to the five-year service requirement had a more negative discriminate, or might be reasonably understood as impact on people under the age of 30 years than on indicating such an intention. those over that age. In that case, the department Section 10 further provides that the High Court or accepted that the five-year service requirement could Circuit Court may grant an application for an give rise to indirect discrimination on the age ground injunction brought by the Equality Authority against persons aged less than 30. The equality officer preventing the appointment of any person to any post found that the five-year service requirement could not to which an advertisement relates, where it appears be justified as being reasonable in all the
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circumstances of the case and, therefore, the employer Recruitment exercises conducted with a competency- failed to justify indirect discrimination. based interview and selection process, focused on the One of the contentions made by the employer in skills needed to do the job, are the most resistant to the McGarr case was that increased costs would result such claims. For example, in the case of Olive if the five-year threshold were not in place, and that Flanagan v Dublin City Council, when finding in favour this was an objective justification. The Equality of the council in an alleged age-discrimination claim, Tribunal reviewed a European Court of Justice the Labour Court commented that the competition decision in Hill and Stapleton v The Revenue was conducted fairly and in accordance with accepted Commissioners and Department of Finance. In that case, good practice. The court noted a number of matters, the European Court of Justice had commented that, including that marking had been carried out on so far as justification on economic grounds is objective, pre-determined criteria. concerned, it should be noted that an employer If recruiters and employers amend their cannot justify discrimination solely on the ground that advertisements to focus on the skills required for the avoidance of such discrimination would involve jobs to be filled – rather than on the years of PQE increased costs. The equality officer noted that an required – they will provide themselves with much increase in costs cannot in itself provide objective better defences than they would otherwise have, to justification for a discriminatory practice. claims that might be brought by the Equality Authority in respect of discriminatory advertising, and Discriminate Me by internal and external candidates for advertised Arising from the McGarr case, the imposition of a positions. At present, if an employer advertises for minimum level of PQE is likely to be held to PQE as its main criterion, or one of its criteria, the constitute indirect discrimination, unless it can be employer risks an Equality Tribunal claim under objectively justified on the basis set out above. section 10 by the Equality Authority, a High Court The comment made by the equality officer in the injunction, and claims by unsuccessful candidates who Noonan case that mere generalisation of years with contend that they did not get the job because they experience is insufficient to justify indirect were too old or too young for the employer, despite discrimination is likely to apply to both upper and having suitable skills for the position. lower limits of PQE. As a result of the Gazette Editorial Board’s in-depth Recruiters may have concerns that they will be review of the matter, the board has decided that the unable to place informative advertisements in the Law Society Gazette will no longer publish any absence of PQE. Where a claim is brought by an recruitment advertisement that includes either lower unsuccessful candidate, and the candidate succeeds in or upper limits of PQE. In other words, references to establishing facts in which discrimination can be PQE will no longer be permitted in recruitment presumed, the employer must prove the absence of advertisements published in the Law Society Gazette. discrimination. This is the requirement in our Advertisers should also be warned that advertising legislation. To do this, the employer must have cogent for ‘newly-qualified solicitors’ could also be taken to evidence. indicate an intention to discriminate on the age The Equality Tribunal and Labour Court have ground, or might reasonably be understood as repeatedly stated that employers should set non- indicating such an intention, contrary to section 10 of discriminatory selection criteria before interview. the 1998 and 2004 acts. These issues also have ramifications for all practising solicitors or firms who place recruitment LOOK IT UP advertisements in newspapers, magazines, on radio, Cases: the web, or on their firms’ websites – and who might • Equality Authority v Ryanair (Equality Tribunal; be tempted to make references to PQE. Best and 29/12/2000 DEC-E/2000/14) safest practice is – don’t! G • Hill and Stapleton v The Revenue Commissioners and Department of Finance (ECJ; Case C-243/95) Michelle Ní Longáin is an employment and equality • McGarr v Department of Finance (Equality lawyer at BCM Hanby Wallace Tribunal; 3/9/2003 DEC-E/2003/036) • NBK Designs v Marie Inoue (Labour Court; Editor’s note ED/02/34 determination no 0212) The Law Society is not mandating solicitors to • Noonan v Accountancy Connections (Equality follow the decision taken by the Gazette Editorial Tribunal; DEC-E 2005/012) Board. However, solicitors might wish to carefully • Olive Flanagan v Dublin City Council (Labour consider the cautionary words of the Equality Court; ADE/04/31 determination no 059) Authority, and the decision reached by the Editorial Board on foot of legal advice. To do otherwise Legislation: might involve you in litigation with unsuccessful • Employment Equality Acts 1998 and 2004 recruitment candidates, or lead to an appearance before the Equality Tribunal.
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5 Dartmouth Road T 01 202 6700 Dublin 6 F 01 660 6920 E [email protected] W www.tomkins.com CRIMINAL LAW LAW SOCIETY GAZETTE OCTOBER 2006 PIC: REX FEATURES Wiping the slate CLEAN Getting a criminal record at a young age can have many adverse consequences in later life. It is worrying that there is no provision in Ireland for wiping the records of adult offenders clean, argues Dara Robinson
very day, young people in Ireland – however minor, can have adverse consequences in mostly male – appear before the District respect of, among other things, visas, employment, Courts, are convicted of (usually) minor insurance, entry to professions, and licences, such as offences, and receive fines and, more PSV or firearms. E importantly, criminal records. The Because of this, it is surely opportune to consider offences in question are frequently of a public-order the institution of a system whereby the slate, as it nature or the most minor type of theft or drugs were, can be wiped clean. MAIN POINTS allegation – hardly those that suggest either a threat In fact, such a mechanism already exists within the • Rehabilitation of to the social fabric or a hardened offender. Often terms of section 258 of the Children Act 2001, young offenders unrepresented, they leave court apparently unaware whereby young persons convicted of an offence • Practice in other that they now have that criminal record for life. The committed before their 18th birthday, other than the jurisdictions consequences of that record may not become obvious most serious offences triable only by the Central • Deleting criminal for some years, and it is a little worrying that there is Criminal Court, will – provided they observe good records after a no legal provision in Ireland for the wiping clean of behaviour for a period of three years – be treated as period of time the records of adult offenders. A criminal record, being of good character in almost all circumstances.
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Laudable though this clearly is, it is ironic that a them and re-establish themselves as law abiding and youth who commits the offence of, say, manslaughter productive members of the community”. Pardons can one week before they turn 18 can thus avail of the be revoked if there is a subsequent conviction of a scheme of rehabilitation, whereas a youth who federal offence prosecuted on indictment. Misleading commits a breach of the peace at age 18 plus one the parole board in an application can also lead to the week cannot. This appears both arbitrary and pardon being revoked. undesirable, and bucks the international trend. In Australia, most states (with the exceptions of South Australia and Victoria) and the federal Tabula rasa government have a similar spent convictions scheme Britain legislated for this situation over 30 years ago that applies, across the board, to offences – provided a with the Rehabilitation of Offenders Act 1974. Section 4 prison sentence in excess of 30 months was not “Pardons are of this provides for a system of ‘spent convictions’, imposed, that ten years have passed since the intended to whereby an individual is “treatable for all purposes in commission of an offence, and there has been no re- law” as never having committed the relevant offence, offending in the intervening period. contribute to the or having been prosecuted or convicted. (The wording Interestingly, the debate in the former British rehabilitation of of our s258 referred to above is almost a direct lift colonies has moved on considerably – from the from s4.) Periods after which an offence is spent range principle of whether or not such schemes are justified offenders by from three to ten years for offences that have attracted to fine-tuning exceptions (in particular, to deal with “enabling them prison sentences, depending on the age of the people who might have access to children in the offender and length of sentence, through five years for course of employment), and to providing a statutory to put their past fines, to six months for ‘an absolute discharge’ (in scheme of punishment and penalties for persons who misdeeds behind respect of which there is no direct equivalent in Irish make unauthorised disclosure of the spent convictions law). Where a probation order has been directed, the of an individual. them and re- rehabilitation period is the length of the order. Go west establish This act is no soft touch. Prison sentences of over two-and-a-half years can never be spent, and many By contrast, the USA has no corresponding themselves as offences can be retained on the Police National nationwide system. There is, however, growing law abiding and Computer in Britain even after they become spent, recognition of the importance of this issue, and six such as offences of indecency, violence, or supply of states, including New York and California, have productive drugs. introduced a system of certificates of rehabilitation to members of the With typical Antipodean bluntness, the New assist individuals to demonstrate their commitment to Zealand equivalent, the Criminal Records (Clean Slate) reintegration into productive society. Despite virtual community” Act 2004 takes a similar approach. This act is more unanimity among penal experts that employment is restrictive in scope. The conviction must be over critical to reducing recidivism and thus promoting seven years old and, the eligibility criteria being public safety, many federal and state laws and policies satisfied, the person is entitled to put their past behind militate against successful re-entry. Sadly, with close to them. The criteria are strict: custodial sentences are one million individuals being discharged from state, entirely excluded, as are many offences such as sexual federal and local prisons annually, nearly two-thirds crimes against children or young people, and all other are rearrested within three years of their release, a penalties, such as fines, must have been paid. The situation that cries out for steps to assist rehabilitation, clean slate scheme does not apply, however, when rather than the obstacles often currently put between applying for visas or for certain types of employment, an offender and a productive future. such as the police force, or prison or probation Early this year, the City of Chicago announced a services. reform of the city’s hiring policies in relation to job seekers with criminal records, requiring the city to North and south “balance the nature and severity of the crime with LOOK IT UP The Canadian Criminal Records Act 1985 enables other factors, with the passage of time and evidence of Legislation: people who have been convicted of a criminal offence rehabilitation”. This was overt recognition of the fact • Children Act 2001, to obtain a pardon after a minimum conviction-free that many people from low-income areas were section 258 period of good behaviour (three years where the “disproportionately impacted by the criminal justice • Criminal Records person was convicted summarily and five years where system and therefore barred from a number of jobs (Clean Slate) Act the person was convicted on indictment) following based solely on their criminal records”. The city 2004 (New completion of sentence. The National Parole Board further expressed the view that it hoped this initiative Zealand) hears applications for pardons that are, in effect, would be adopted by private employers. • Criminal Records automatically issued in summary cases and dealt with Act 1985 (Canada) after enquiries for cases tried on indictment. Needless Off with a caution • Rehabilitation of to say, a further conviction will disbar the applicant As if to underline the importance of the essential Offenders Act 1974 from obtaining a pardon. Pardons are intended to proposition, schemes whereby minor offenders are (Britain) contribute to the rehabilitation of offenders by cautioned, rather than prosecuted, are now widespread “enabling them to put their past misdeeds behind in Europe. Long established in this jurisdiction has
30 www.lawsociety.ie CRIMINAL LAW LAW SOCIETY GAZETTE OCTOBER 2006
been the Juvenile Liaison Office scheme, a formal from drug use. These commissions, consisting of admonishment by the gardaí that avoids the stigma of health, legal and social-work professionals, treat drug court appearances and a potential criminal record. In abuse as predominantly a health issue and act to February 2006, the DPP introduced a formal system dissuade further offending without necessarily of adult cautioning for minor offences, including excluding punitive sanctions. To date, fewer than 10% public order, criminal damage to a value of €1,000, of such offenders receive such sanctions after their theft to a value of €1,000, and even certain assaults. cases have been examined by the commission. The The DPP expressly acknowledges “the public fears expressed by the local tabloid media in respect interest” in not prosecuting in certain instances, of Portugal being swamped with European drug depending on the circumstances of the offence and of users and abusers have not come to pass, and recent the offender. There appears still to be a significant research suggests no significant increase in drug use body of cases appearing before the courts, in Dublin and significant resource-savings in the court and at any rate, that one would have thought could have prison systems. been appropriately dealt with under this diversionary Many readers will be aware, often from personal programme, and statistics are not yet available as to experience, that the line between being arrested and the numbers of such offenders who are dealt with not being arrested is a very fine one. Permanent outside the formal criminal justice system. stigmatisation, with a criminal record, of a young Interestingly, and after some debate, drugs offences, person can be damaging, costly, and counter including simple possession of any type of drug, are productive. International best practice, current excluded from the diversionary programme. This is an trends and academic thinking would appear to approach away from the European mainstream, suggest that the absence of a system of deleting including England and Wales, where cautions for criminal records after the passage of a period of time minor drugs offences are now the norm. In Portugal, is something that needs to be addressed. G since July 2001, people found in possession of any illegal drug for personal use are, rather than Dara Robinson is a partner in the Dublin law firm prosecuted, referred to a commission for dissuasion Garrett Sheehan & Partners.
www.lawsociety.ie 31 LAW SOCIETY GAZETTE OCTOBER 2006 LITIGATION EXPERT The Sally Clark murder case in Britain put expert witnesses in the firing line when the evidence of an eminent paediatrician was found to be “misleading”. The expert was subsequently struck off the register by the General Medical Council. William Kennedy asks whether the same could happen in Ireland
here can be no doubt that the alleged that the evidence that Professor Meadow had administration of justice has been given to the criminal courts had been badly flawed, seriously damaged by the decision particularly in the misuse of statistics, and therefore he of the FPP [Fitness to Practise deserved to be found guilty of serious professional “T Panel] in this case and the misconduct and prevented from acting as an expert in damage will continue unless it is made clear that such child protection cases. The professional misconduct proceedings need not be feared by the expert witness.” hearing proceeded before the Fitness to Practise These were the remarks of Mr Justice Collins in Panel. Professor Meadow was found guilty of serious his judgment, delivered on 17 February 2006 in the professional misconduct and it was ordered that his High Court, London, as a result of an action taken by name be erased from the register. Professor Meadow the eminent paediatrician, Professor Roy Meadow, appealed the finding of serious professional against the General Medical Council (GMC) in misconduct and the sanction of erasure. Britain. Professor Meadow had previously been struck off the medical register by the council, following what Concern was described as his “misleading” evidence in the Naturally, this finding caused some concern among famous Sally Clark case in Britain. The GMC had medical practitioners, particularly those who were found Professor Meadow guilty of serious asked to prepare reports and give evidence in court. professional misconduct. The doctor stood by his Mr Justice Collins considered in some detail the evidence, however, but admitted that his use of immunity from suit of a witness in respect of evidence statistics at Mrs Clark’s 1999 trial had been they might give in a court of law. This immunity “insensitive”. applies as much to an expert as to any other witness. Prior to his retirement from clinical practice in The immunity had not been extended to prevent the 1998, Professor Roy Meadow was the head of the bringing of disciplinary proceedings. That seemed to Department of Paediatrics and Child Health at St be because the argument had not hitherto been James’s Hospital in Leeds. Professor Meadow gave deployed that the rationale that lies behind the grant evidence in Chester Crown Court in 1999, following of immunity from suit should apply equally to such which Sally Clark was convicted of the murder of disciplinary proceedings. MAIN POINTS both of her children. He therefore allowed the appeal against the finding • Immunity from Subsequently Sally Clark’s appeal to the Court of of serious professional misconduct as, in his view, the suit of a witness Appeal was allowed when it was discovered that Fitness to Practise Panel of the GMC should not have or expert results of relevant microbiological tests had not been considered the complaint. • Bringing disclosed by the pathologist, Alan Williams. Her The GMC has appealed the decision. disciplinary appeal was allowed on 29 January 2003 and no retrial Would this reasoning be followed in this proceedings was ordered. jurisdiction? In the unreported Supreme Court against experts judgment of O’Keeffe v Kilcullen & Ors, delivered on 23 • Changes to in Badly flawed October 2001, the court had similar issues to consider. camera rule in Separately, Sally Clark’s father made a complaint This action arose out of nullity proceedings between this area against Professor Meadow to the Fitness to Practise Denis O’Keeffe, petitioner, and Eileen O’Keeffe, Committee of the GMC. The complaint broadly respondent.
32 www.lawsociety.ie LITIGATION LAW SOCIETY GAZETTE OCTOBER 2006 view
Mrs O’Keeffe instituted proceedings by way of plenary summons in November 1992 against her solicitor, barrister and her expert witness, a consultant psychiatrist. Mrs O’Keeffe alleged negligence against all defendants and against the psychiatrist in her capacity as an expert witness. Mr Justice O’Sullivan dismissed Mrs O’Keeffe’s claim following an application by the psychiatrist and others that Mrs O’Keeffe’s case disclosed no reasonable cause of action. Mrs O’Keeffe appealed Mr Justice O’Sullivan’s order to the Supreme Court. The judges (Murphy, Murray and Fennelly JJ), dismissing the appeal, stated that the Constitution expressly recognised the need for finality in the judicial process. Justice was more likely to proceed if persons participating in litigation, whether as parties, witnesses, judges, jurors or lawyers, could discharge their function without the fear of being held to account, at the suit of perhaps a disgruntled litigant, for the manner in which the expert performs his or her role. The judges cited the judgment of Salmon J in Marrinan v Vibart (1992 All ER) (a case that was also relied on by Mr Justice Collins). The court also referred to Evans v London Hospital Medical College (1981 All ER), where the immunity of an expert witness was extended to work done by the expert in the preparation of the evidence to be given in court. The court also noted that, in Hall v Simons ([2000] 3 All ER), the House of Lords had determined that it was no longer appropriate that barristers or solicitors should enjoy immunity from proceedings for negligence against them in respect of the manner in which they conducted proceedings in court. In relation to witnesses, the court also cited In Re Haughey (1971 IR), where Ó Dálaigh CJ recognised that witnesses in court did enjoy immunity: “… the immunity of witnesses in the High Court
PIC: GETTY IMAGES does not exist for the benefit of witnesses, but for
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that of the public and for the advancement of the proposition advanced by counsel for the applicant administration of justice and to prevent witnesses that a witness is protected from civil proceedings, from being deterred by fear of having actions not merely an action for defamation, in respect of brought against them, from coming forward and his evidence in the witness box and statements testifying for the truth. The interests of the made in preparing evidence (Watson v M’Ewan, individual is subordinated by the law to the higher Watson v Jones [1905] AC; Marrinan v Vibart [1962] interest, viz, that of public justice, for the 1 All ER). While no authority has been cited that administration of which it is necessary that supports the proposition that an expert witness is witnesses should be free to give their evidence immune from disciplinary proceedings or without fear of consequences.” investigation by a voluntary professional Section 34 of the Judicial Separation and Family organisation to which he is affiliated, in respect of Law Reform Act 1989 requires family law cases to evidence he has given or statements he has made be heard in camera. The effect of this section was with a view to their contents being adduced in that any information in relation to cases pursuant evidence, having regard to the public policy to section 34 of that act could not be the subject of considerations that underlie the immunity from an inquiry by a professional body that had a duty civil proceedings – that witnesses should give their “It would now to investigate complaints, such as the Law Society evidence fearlessly and that a multiplicity of actions appear possible or the Medical Council. in which the value or truth of their evidence would In MP v AP; John Connolly Applicant (Practice: In be tried over again should be avoided – in my view that litigants in Camera) (1996 IR), one of the parties complained a such a witness or potential witness must be matrimonial consultant psychologist to the Psychological immune from such disciplinary proceedings or Society of Ireland. The psychologist applied to the investigation. However, I consider that it is not proceedings High Court for directions as to whether he was necessary to make a declaration that the society would be able obliged to respond to the complaint and whether cannot conduct any inquiry in relation to evidence the defendant was entitled to maintain his given by the applicant or any statements made by to pursue complaint, having regard to the in camera rule of the applicant in preparation for oral testimony or complaints the court in matrimonial proceedings. evidence on affidavit in these proceedings because Laffoy J held that section 34 of the 1989 act was such inquiry is precluded by section 34 of the act of against legal mandatory. In making the complaint to the society, 1989.” practitioners, the defendant divulged to the public confidential matters arising out of the proceedings taken under Changes to the in camera rule either to the that act and, accordingly, contravened that section. With the introduction of section 40 of the Civil Law Society On the question of witness immunity, Laffoy J Liability and Courts Act 2004, the operation of the said: in camera rule will no longer prohibit complaints or the Bar “There is ample authority to support the being made to a professional’s regulatory body. Council” Section 40 concerned provisions in a number of statutes concerning proceedings heard otherwise LOOK IT UP than in public. Section 40(7) of that act provides Cases: that the in camera rule will not operate to prevent • Eastern Health Board v The Fitness to Practise the giving of information to another body for the Committee of the Medical Council & Ors, [1998] purposes of, among other things, conducting an 3 IR investigation. It will be a matter for judicial • Evans v London Hospital Medical College, 1981 interpretation to what extent that regulatory All ER authority could pursue such a complaint. • Hall v Simons, [2000] 3 All ER In O’Keeffe v Kilcullen & Ors, the Supreme Court • In Re Haughey, 1971 IR appeared to approve the decision of the House of • Marrinan v Vibart, [1962] 1 All ER Lords in Hall v Simons when Murphy J said: • MP v AP; John Connolly Applicant (Practice: In “It seems clear that lawyers will not be immune Camera), 1996 IR from suit if it is established they acted negligently • O’Keeffe v Kilcullen & Ors, 1992 No 7133 p on behalf of their client whether in preparation for, • Penney v New Brunswick Association of Social or in the conduct of, legal proceedings.” Workers (Canada) It would now appear possible that litigants in • Watson v M’Ewan, Watson v Jones, [1905] AC matrimonial proceedings would be able to pursue complaints against legal practitioners, either to the Legislation: Law Society or the Bar Council. • Civil Liability and Courts Act 2004 In Penney v New Brunswick Association of Social • Judicial Separation and Family Law Reform Act Workers,4 April 2002, the Court of Appeal of New 1989 Brunswick decided differently. This case involved a complaint to the association concerning affidavit evidence sworn by one of its members, Mr Penney,
34 www.lawsociety.ie LITIGATION LAW SOCIETY GAZETTE OCTOBER 2006
in matrimonial proceedings. While the court claimant’s treating medical practitioner. What recognised witness immunity in general, it was not would be the position, therefore, if the convinced that such a rule extended to professional claimant/patient wished to make a complaint to the disciplinary proceedings: Medical Council arising out of the preparation or “In my opinion, the policy considerations content of such a medical report? underlying the immunity rule were developed to It would appear that complaints could still be prevent legal action for damages in defamation, entertained by the Fitness to Practise Committee negligence or other damages, however framed. The of the Medical Council in relation to a failure by a rule, however, was not intended to make it medical practitioner to provide a report but, if the impossible for professional disciplinary bodies to Justice Collins judgment were followed, no regulate the conduct of their members (by complaint would lie in relation to the contents of statements or otherwise) in the course of judicial such a report. proceedings.” Whatever the status of PIAB reports, it would In Eastern Health Board v The Fitness to Practise appear clear that for any report written by a Committee of the Medical Council & Ors ([1998] 3 registered medical practitioner for the purposes of IR), the primary question for determination was court proceedings, he or she ought not to fear being whether there was an absolute embargo on the complained to the Medical Council. This would production in subsequent proceedings of follow for all professionals who are asked to act and information that derived from, or was introduced give evidence as experts in litigation. in proceedings protected by, the in camera rule. The Meadow judgment has caused such concern Barr J held, among other things: in Britain that it has prompted the Attorney “In the matter under review, complaints of a General to write to the Court of Appeal in support serious nature which, prima facie, appear to have a of the appeal by the GMC. That appeal was heard significant basis, have been made in five cases at the end of July 2006, and the Court of Appeal is involving children alleging professional negligence expected to deliver its judgment towards the end of and/or incompetence by Dr Woods in the course October. of her practice as a medical specialist in the area of Whatever the outcome, any judicial debate in diagnosis and treatment of child abuse. In these this jurisdiction ought to differentiate between the circumstances, there is an imperative public application of the witness immunity rule – having interest that such complaints should be fully regard to the administration of justice – and investigated by the committee as the body having extending that rule to professional disciplinary statutory authority to carry out such inquiries.” proceedings, so that professional disciplinary authorities can regulate the conduct of their Medical reports and PIAB members in the public interest. G In 2005, 90% of claims received by the Personal Injuries Assessment Board (PIAB) were William P Kennedy is head of professional standards and accompanied by medical reports prepared by the legal adviser to the Medical Council in Ireland.
www.lawsociety.ie 35 LAW SOCIETY GAZETTE OCTOBER 2006 HUMAN RIGHTS HEAVY
trafficOutside of the Refugee Act 1996, there appears to be no legal status in Ireland for child or adult victims of human trafficking, even on humanitarian grounds. Stephen Collins argues that the Criminal Law (Trafficking in Persons) Bill 2006 is an opportunity to bring the State into line with Europe
rade in human beings is the world’s third requiring concerted and vigorous action by countries most lucrative illegal transaction behind of origin, transit or destination, and by international narcotics and arms. It generates eight organisations” (section 102(b)(1) 21). These words are billion dollars a year. To date, Ireland has appropriate to Ireland in 2006 – particularly the stark T signed, but not ratified the Palermo warning that this is “a trans-national crime with Protocol (see panel). The Criminal Law (Trafficking in national implications”. Persons) Bill 2006 is an opportunity to bring the State The EU AGIS conference (Dublin, 17-18 into line with Europe. Victims of trafficking may be November 2005) found that “trafficking of human able to avail of subsidiary protection once Council beings into Ireland does not currently appear to be a Directive 2004/83/EC is transposed into domestic law significant problem”. by 10 October 2006, though it does not relate However, when a number of raids were made on specifically to them. Refugee status will remain the lap-dancing clubs in Dublin as part of ‘Operation strongest protection available to victims. Quest’, “over 150 female non-EEA (European Economic Agreement Area) nationals were questioned A modern form of slavery to establish their identity and immigration status. The definition of a refugee contained in the Refugee Only a small minority of those questioned claimed Act 1996 is based on the 1951 Geneva Convention. The they had been sexually exploited. Most had travelled to convention’s post-war language certainly did not Ireland of their own free will” (emphasis added). anticipate the modern problem of trafficking. The In fact, consent – free will – is irrelevant in Palermo Protocol, in contrast, is acutely aware of the exploitation and trafficking situations (UN Trafficking advances made by trans-national crime. Palermo Protocol, article 3b). Extreme cases illustrate the declares that ‘exploitation’ shall mean “at a minimum, impossibility of meaningful consent. MAIN POINTS the exploitation of the prostitution of others or other In forced prostitution, the victim is usually taken • The ‘modern’ forms of sexual exploitation, forced labour or services, directly to an apartment or house upon arrival in the problem of slavery or practices similar to slavery, servitude or the destination country (she may have been sold to a local trafficking removal of organs” (article 3a). gang). She will be locked in a room and raped there • Palermo Protocol The US Victims of Trafficking and Violence Protection several times a day. Severe beatings, starvation and •Trans-national Act 2000 is one of the earliest and most explicit STD infection are extremely common. The victim crime with national legislative descriptions of trafficking. “Trafficking in rarely receives medical attention. There does not implications persons is a modern form of slavery, and it is the appear to be a typical timeframe for imprisonment, largest manifestation of slavery today … an evil which can range from weeks to months with
36 www.lawsociety.ie HUMAN RIGHTS LAW SOCIETY GAZETTE OCTOBER 2006 PIC: GETTY IMAGES unpredictable outcomes. particular, where applicable, the 1951 convention and Children are most likely to be discovered and the 1967 protocol relating to the status of refugees and THE placed in care by authorities at arrival stage. However, the principle of non-refoulement as contained therein”. they are susceptible to coaching and threats, and it The UN Trafficking Protocol, therefore, complements PALERMO appears that traffickers pre-arrange signals and/or a refugee status determination. Whether or not PROTOCOL later meeting place, often using mobile phones, to subsidiary/other protection is implemented, the State’s extract them from care. asylum system should process claims in an appropriate 2000 Victims are sometimes obliged to claim asylum way. The Palermo Protocol using a fictitious history given to them by their Victims of trafficking have experienced harm that (or UN Trafficking traffickers. It is in the traffickers’ interests to have equates with persecution (medical evidence in these Protocol) defines their victims in the State on a legal footing, if possible. cases tends to be strong). Professor Hathaway in the ‘trafficking in persons’ Practitioners should be aware that consultation might Law of Refugee Status, says it is “unnecessary to as “the recruitment, be the only opportunity the victim has to speak freely. establish past persecution in order to succeed on a transportation, transfer, Unaccompanied minors or young single women from claim to refugee status. Where evidence of harbouring or receipt of particular countries of origin recounting an obviously maltreatment exists, however, it is unquestionably an persons, by means of rehearsed story should prompt the legal representative excellent indicator of the fate that may await an the threat or use of to make further enquiries. Certain countries of origin applicant upon return to her home” (3.2.3, p88). force or other forms of are notorious for trafficking, and practitioners should The well-founded fear is of repeat abduction and coercion, of abduction, research these. Failure to do so may result in the consequent trafficking, possibly to a State where the of fraud, of deception, asylum process being used as a tool for trafficking. victim will not be detected. The UNHCR explains of the abuse of power “women and children can be particularly susceptible to or of a position of Repeat abduction serious reprisals by traffickers after their escape and/or vulnerability or of the The UNHCR guidelines state that “some victims or upon their return, as well as to a real possibility of giving or receiving of potential victims of trafficking may fall within the being re-trafficked or of being subjected to severe payments of benefits to definition of a refugee contained in article 1A(2) of the family or community ostracism and/or severe achieve the consent of 1951 convention and may therefore be entitled to discrimination”. a person having control international refugee protection”. Private individuals may inflict persecution if “the over another person, Article 14 of the Trafficking Protocol states that authorities refuse, or prove unable to offer effective for the purpose of “nothing in this protocol shall affect the rights, protection”. However, the “mere existence of a law exploitation” (article obligations and responsibilities of states and prohibiting trafficking in persons will not of itself be 3a). individuals under international law including … in sufficient to exclude the possibility of persecution”.
www.lawsociety.ie 37 Tom McGrath and David O’Donnell General Overseas Legal Services
37 Upper Mount Street, Dublin 2, Ireland Phone: 353 1 661 0707 Fax: 353 1 611 4975 www.tmsolicitors.ie [email protected] HUMAN RIGHTS LAW SOCIETY GAZETTE OCTOBER 2006
Country-of-origin information will establish whether State authorities have practical mechanisms in place LOOK IT UP to protect against the harm complained of. Legislation: Practitioners should discover how and why the • End Demand For Sex Trafficking Act 2005 (USA) person fell victim to trafficking. Trauma often hinders • European Council Directive 2004/83/EC of 29 April 2004 clear instructions, especially at first consultation. • Geneva Convention 1951 The International Organisation for Migration • Palermo Protocol (UN Protocol to Prevent, Suppress and Punish Trafficking in notes that “outside the Refugee Act 1996, there appears Persons, Especially Women and Children, supplementing the Convention Against to be no legal status in Ireland for child victims of Transnational Organised Crime, also referred to as the Trafficking Protocol, trafficking. The provisions of leave to remain in adopted in 2000) Ireland for humanitarian reasons do not appear to be • Refugee Act 1996 granted for such children”. The same is true for adult • Victims of Trafficking and Violence Protection Act 2000 (USA) victims. Illegal immigrants, failed asylum seekers and failed Literature: applicants for humanitarian leave to remain are liable • Draft Information Note on Human Trafficking, 5 May 2006, Irish Refugee Council to deportation from Ireland. It is imperative that the • The Law of Refugee Status, by James C Hathaway, Markham, Butterworths system should be alive to the problem. (Canada), 1991 Refugee status is a stronger and better protection • Trafficking in Unaccompanied Minors in Ireland, by Dr Pauline Conroy, August than either subsidiary protection or humanitarian 2003, for the International Organisation for Migration (IOM) leave to remain. A grant of status, therefore, reflects • UNHCR Guidelines on International Protection: The Application of Article 1A(2) of the seriousness of trafficking. the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees to In arguing that victims of trafficking be given victims of trafficking and persons at risk of being trafficked, 7 April 2006. access to the asylum process, one should bear in mind the reported benefits of giving evidence, which can aid the alleviation of many post-traumatic symptoms. The State may also amplify harm done to victims by deporting them and exposing them to the same risk Consequences of failure again, leading to a clear breach of the principle of non- For the victim, ongoing persecution, the extinction of refoulement. Quite apart from legal principles, it is hope, and physical and psychological harm becomes morally indefensible to aid traffickers in this way. irrevocable – leading to final abandonment and the Many countries of origin cannot protect victims risk of death. For the State, there is concern over the from the initial abduction and trafficking that lead to spread of sexually-transmitted diseases, violence, and situations of forced prostitution. the growth of a criminal ‘industry’ that rivals illegal Victims of trafficking seek asylum in Ireland trade in arms and drugs. following exploitation, either in or out of the State. “The ‘nudge- These applications are complex and demanding. nudge, wink- CASE STUDIES Clients find it difficult to communicate their experiences for a variety of reasons. Practitioners wink’ image of Case Study 1 should be aware of the problems clients are likely to Non-EEA woman trafficked into Ireland, imprisoned face in the determination of refugee status. prostitution is and forced into prostitution. Escapes after three The area demands innovation in policy and to trafficking months but does not recognise ‘An Garda Síochána’ practice. The US’s End Demand For Sex Trafficking Act as the police station. Application for asylum of 2005 is an example. It targets male clients rather what the declared manifestly unfounded. Written appeal than victims of trafficking. However, there is minstrels were refused on credibility grounds. Humanitarian leave to controversy that it distracts from the protection of remain refused. Report finds that if it were true she victims. to racism. It was forced into prostitution in Ireland, she would be The growth of trafficking is a modern suggests levity safer in her country of origin. Client deported phenomenon. A modern conception of what it means without warning. to be a refugee is necessary to help victims. Subsidiary where there is protection will add to, but cannot replace, the none” Case Study 2 protection currently available. Non-EEA girl sold to trafficking ring as a minor. The ‘nudge-nudge, wink-wink’ image of Trafficked throughout Europe for ten years. Escapes prostitution is to trafficking what the minstrels were to and comes to Ireland as an asylum seeker. Refused racism. It suggests levity where there is none. We at first instance, but granted right to oral appeal. should not be naïve about the sophistication of Refugee status granted. Refugee Appeals Tribunal modern traffickers, the profits involved and the finds that women from her particular background are lengths they are willing to go to for them. G a social group. Decision-maker notes that, when very young, appellant “lacked a psychological arch” Stephen D Collins is head of immigration at Terence Lyons necessary to help herself. & Co. With thanks to Jacki Kelly of the Refugee Legal Services.
www.lawsociety.ie 39 LAW SOCIETY GAZETTE OCTOBER 2006 LOOKING BACK The times they The 1960s was a time of significant change for the world, in terms of music, culture, politics and war. Ireland, too, was beginning to feel the influence of external forces. Mark McDermott continues his review of the Society’s development through the pages of the Gazette
t the ordinary general meeting on 28 did not face the original Six, and changes in the April 1960, the president, John J Nash, Tr eaty of Rome may ensue. The treaty is a complex commented on the complexity of organisation and I think I can say without fear of modern life, as it was then. His words contradiction that the effect of some of its provisions A ring strangely true for the profession are far from clear … today, which, no less than then, is facing huge change “The general tenor of the whole treaty is to create in terms of public expectations. one large community within which there should be a “During the past decade or so the pattern of life in free inter-change of population, of labour and of Ireland has undergone a fundamental change among services and it would seem from this that professional the farmers, the wage-earners and the business men, which would include lawyers, may likewise have community. What is known as ‘out-put’ in the the right of ‘freedom of establishment’ to a greater or business world has become a matter of primary lesser degree” (Gazette, May 1962, p3). What would importance with all sections of the Community. Even Mr Overend have made of the influx of ‘professional our rural community who are so conservative feel that women’ to the Society in the new millennium, not to one can no longer kill time without injuring Eternity. mention the influx of member states to the European Efficiency – whether real or simulated – has become Union! so common-place that even the man who does The Gazette underwent an aesthetic change in May nothing in particular does it very well. Life has 1965, with its masthead running vertically down the become more complex and the outlook of the Society left-hand side of the front page. In 1965, its paper has substantially changed. Our profession comes into quality dramatically improved with the move to full close contact with all sections of the community. We art paper. In January 1968, the typeface changed, must serve the public as they want to be served. With making the journal easier to read. The outgoing the changing outlook of the community we have had president of the Society, John Maher, in his to change our outlook also. No profession which does valedictory speech to the Council, spoke glowingly of not continually test its ideals, techniques and measure the Gazette: of accomplishment can claim real vitality. Ours has “As you know, every member of the Council re- always been virile and vital. It is the ambition of your ceives a copy of the Gazette … I would appeal to all of Council to keep it so…” (Gazette, May 1960, p3). you to make a special effort to read the Gazette every time you receive it … Every solicitor should read it” ‘Common Market’ (Gazette, December 1965, p52). And so say all of us! The ‘Common Market’ was discussed at length by the In January 1969, the Gazette reported on “the Society’s Council on several occasions throughout the outstanding event of the year” – the 12th biennial decade. In May 1962, the president, George G meeting of the International Bar Association in Overend, made the following remarks about the Dublin. The Society’s president, Eunan McCarron, impending change facing the country: said: “May I say straight away that this was an MAIN POINTS “The future of the legal profession in this country unqualified success. It was the biggest conference ever • The prospect of is more uncertain today than it has ever been before. held by the association. Indeed, the numbers joining the It seems now very possible that Ireland will, before attending – over 1,500 – exceeded by about 25% the European long, become a member of the European Economic estimated attendance thereby placing an extraordinary Community Community, more generally known as the Common increased strain on the committees’ arrangements • Society Market. Very few of us profess fully to understand the both for the business sessions and the social activities, Memorandum on implications of such membership but they will be far- transport and hotel accommodation … This success Reformatory and reaching and will affect us politically, in trade and was not fortuitous … As you will see from the report Industrial Schools commerce, and indeed in the profession. the Committee was chaired by Mr John Carrigan who • Purchase of “It is by no means certain as to what will be the devoted at least half of his working year to the work Blackhall Place exact form which membership will take. The of the conference … The ladies sub-committee was premises admission of [Britain], Ireland and possibly some of similarly organised under the chairmanship of Mrs the Scandinavian countries will pose problems that Shirley Carrigan and the whole was served by a
40 www.lawsociety.ie LOOKING BACK LAW SOCIETY GAZETTE OCTOBER 2006 are a changin’ COURTESY: JO NOONAN Denis Hicks, chair of superb executive provided by Mr Plunkett and his arrangement. It is of no consequence whether one the IBA, addresses the Dublin conference, staff … I must also express our gratitude to the subscribes to the earlier period or the modern period. July 1968 President, to the Taoiseach and his Government and Any system of child welfare or reform must be in particular to the Minister for Justice for the adjusted to the society which we find around us now. encouragement and active co-operation which they For these reasons it seems to us that the whole system gave us throughout and which contributed in such a must be rebuilt from the ground up” (Gazette, May large measure to the success of the whole” (Gazette, 1969, p8). January 1969, p74). In 1969, the Gazette referred on several occasions “Our profession A sub-committee of the Society’s Council produced to the purchase of the King’s Hospital (the Society’s comes into a Memorandum on Reformatory and Industrial Schools in current headquarters): Ireland, which was submitted to the Committee on “The King’s Hospital, which the Society has close contact Reformatory and Industrial Schools. In light of what purchased, was formerly the Blue Coat Hospital and with all we know now, its report makes for fascinating was incorporated by Charles II in 1670. The present reading. It begins: building was erected in 1773 and is a noble edifice of sections of the “The existing system of dealing with destitute Portland Stone consisting of a Centre and Wings community. We children and juvenile delinquents finds its origin in extending three hundred feet. Our plans embodying another century almost. The philosophical and minimum essential interior alterations and the must serve the economic theory of the time of its birth would not erection of a new administrative block to the rere [sic] public as they find acceptance today. There was no free Secondary have met with general approval, and we all look education, there was even no free primary education. forward to next Summer when we will obtain want to be Attendance at primary schools did not become possession and the work can be commenced … Our served” compulsory until the 1920s. Economic theories were future headquarters will be a worthy showplace for based on the minimum interference with private visitors to our capital city and the citizens may, enterprise, and the free play of the interaction of therefore, soon have something of which to be supply and demand was regarded as fundamentals. particularly proud. The King’s Hospital is situate in a None of these theories find any place, or at least very part of the City which has known better days, but it is little place in the society in which we live today. quite central and perhaps we may start a new era of “Therefore, institutions which were created in such improvement for the locality” (Gazette, December an atmosphere cannot fit into our present civic 1969, p69). G
www.lawsociety.ie 41 netWork risk health & safety ltd. PRACTICE MANAGEMENT LAW SOCIETY GAZETTE OCTOBER 2006 practice doctor
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As part of the firm’s annual audit, my Regulations. It is the responsibility of the reporting accountant has asked me to sign an accountant to form an opinion based on his Q acknowledgement as part of the examination, conducted in accordance with regulation accountant’s report. This seems to be new, as I 22 of the Solicitors’ Accounts Regulations 2001, and haven’t signed this particular acknowledgement report this opinion to the Law Society within six before. What am I acknowledging by signing this? months of the year-end. The reporting accountant is required to express an On 1 December 2005, the Solicitors’ Accounts opinion that, during the accounting period, the (Amendments) Regulations 2005 (SI 719 of solicitor has complied with the relevant provisions of A 2005) came into operation. These regulations the Solicitors’ Accounts Regulations. require that the reporting accountant’s report, The reporting accountant is also required to furnished to the Law Society of Ireland, should report: include a signed acknowledgement by solicitors of • Whether the half-yearly balancing statements, as their obligations under the Solicitors’ Accounts provided for by the relevant regulation, have been Regulations. carried out by the solicitor, The effective date for the inclusion of this • The results of comparisons under regulations acknowledgement relates to accounting periods on or 22(2), step 6 and regulation 22(3), step ct2 of the after 1 January 2006. In addition, in the case of firms Solicitors’ Accounts Regulations 2001 at the of solicitors where there are two or more partners, accounting date, each firm is obliged to appoint a compliance partner • Whether the office balancing statement as at the to sign the form of acknowledgement. This addition accounting date has been prepared. to the regulations by the Law Society is to emphasise the fact that the responsibility to be compliant with In summary, this addition to the Solicitors’ Accounts the Solicitors’ Accounts Regulations – and confirmation Regulations requires a solicitor (or compliance of that compliance – rests with the solicitor firm and partner) to confirm that: not with the reporting accountant. • The solicitor recognises his (or the firm’s) There are some transitional arrangements with the obligations under the Solicitors’ Accounts Regulations new regulations, for the accounting period ending to secure compliance by the practice with the said between 1 January 2006 and 28 February 2006. The regulations, and same report as submitted in previous years is used, • The solicitor is aware of the format and contents together with the form of acknowledgement signed of the reporting accountant’s report, and has by the compliance partner. discussed them with the reporting accountant to For reporting accountants’ reports submitted in the extent necessary to understand its effect upon respect of accounting periods ending on or after 1 the solicitor’s (or the firm’s) obligations under the March 2006, an amended accountant’s report, which Solicitors’ Accounts Regulations. G includes the form of acknowledgement, should be submitted. This article provides only a summary of each area addressed It is worth noting that it is the solicitor’s and specific advice should be sought before any action is responsibility to comply with the Solicitors’ Accounts taken. Jimmy Dolan is a partner with OSK Audit.
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ON THE MOVE PIC: LENSMEN CONSTITUTIONAL CHANGE Anna-Marie Curran has been Eamonn Hall has retired after a remarkable 25 years as internal examiner for FE1 Constitutional Law. appointed by A&L Goodbody A dinner was held in his honour, attended by members of the Education Committee (front, l to r): Tom Murran, as a partner to the EU and Eamonn Hall, Law Society President Michael Irvine, and Stuart Gilhooly (Chairman of the Education competition law group at the Committee). (Back, l to r): TP Kennedy (Director of Education), Dominic Dowling, Orla Coyne, Director General firm. Anna-Marie specialises Ken Murphy, Michael Quinlan, Geoffrey Shannon (Deputy Director of Education) and James O’Sullivan in EU law and has extensive experience in procurement, competition, regulatory law SOLICITORS’ and merger control HELPLINE
GROUND ZERO At the launch of Ground Rents – A Practitioner’s Guide, by the Paul Kelly has recently Law Society’s own Gabriel Brennan were (l to r): Paul Good (chartered joined Augustus Cullen Law surveyor), Gabriel Brennan, Catherine Dolan (Thomson Round Hall from the international law The Solicitors’ Publishing), and Barry Magee (Office of the Chief State Solicitor) firm Wilmer Hale (Brussels). Helpline is available He will work with the medical negligence group to assist every member of the profession with any problem, whether personal or professional 01 284 8484 THE SERVICE IS SUMO WARRIOR PHOTOGRAPHY PIC: STEVE RYAN Soon-to-be qualified solicitor and international sumo wrestler, Colin Caroll, Clare Vance, the winner of COMPLETELY celebrated the launch of his first book, Mission Improbable, on Saturday the 2005 Findlater CONFIDENTIAL AND 30 September in St John’s Theatre, Listowel, Co Kerry. The book was Scholarship, has also joined TOTALLY INDEPENDENT launched by former tánaiste Dick Spring. Also attending was Colin’s boss, the property department of OF THE LAW SOCIETY Patrick FitzGibbon of Pierse & FitzGibbon, Listowel. Colin will fight as Augustus Cullen Law Ireland’s first ever international sumo wrestler at the Sumo World Championships on 15 October in Osaka, Japan
www.lawsociety.ie 45 LAW SOCIETY GAZETTE OCTOBER 2006 GADGETS tech trends
Read all the technology news here first, in your glorious Gazette. Or not, as the case may be Knock, knock, knock on wood agpies are famously think other woodpeckers nearby Mknown as thieves of are in trouble, so they flee. bright, shiny things that they But our favourite has to be cannot produce for themselves. the Birds-Away Attack Spider woodpeckers But few people are aware of Woodpecker Deterrent, a of the giant the equally insidious threat of battery-operated device that will spider that the lesser dickied woodpecker chase away woodpeckers. nearly got him – an avian threat of no Activated by sound, the spider the other day.” insignificant proportions. drops down on an 18-inch Indeed, so But – as always in your string while making a loud impressed were we glorious Gazette – help is at noise. Woodpeckers apparently with the deterrents, hand. There is, believe it or can’t stand them, and it can that the Gazette has not, a market for dedicated even drive a woodpecker out recently installed both woodpecker deterrents. First of its hole. products in order to up, we have the BirdXPeller- The product testimonials guard against any further Pro (woodpecker model), a say it all about this real and woodpecker-related incursions programmable electronic present threat: “I installed the into our office. repellent that uses a variety of Attack Spider the day it The BirdXPeller-Pro costs Woody woodpecker-specific distress arrived, and the woodpecker $239 from www.birdbusters.com Woodpecker: “ha-ha-ha- signals and predator calls to has been scared away within a and the Attack Spider is ha-ha!” send a danger alert to other couple of seconds. I’m sure he’s $15 from www.birds- woodpeckers in the area: they now off telling all the other away.com. Let me through, I’m a stenographer wen Malone Stenography TV times GServices has launched a speech-to-text dictation and ou know how it is. transcription service. It allows YYou’ve settled down to users to upload digitally- watch some PrimeTime recorded dictation files from exposé and the phone rings. their computer to the service’s Is it your sick mother, an secure website. Once urgent work message, or transcribed, the file is returned just Twink having a rant? to the user as a Word Well now you can decide document. whether or not to haul GMSS also offers secure, yourself off your lazy real-time videoconferencing backside with the TV facilities to remote locations Messenger, which flashes and full secretarial on-site the incoming name and services, including typing, number onto the corner of photocopying, scanning, your TV screen by printing and document interfacing with your service binding. According to the provider’s caller display company, these services would system. be invaluable to lawyers on the we’re blocked from cutting should have asked them to Available for stg£34.99 from hoof. and pasting from their pdf transcribe it for us. www.gadgetgizmo.co.uk. We’d tell you more, but press release. Maybe we Find out more at www.gmss.ie.
46 www.lawsociety.ie GADGETS LAW SOCIETY GAZETTE OCTOBER 2006
Personal breathalyser is one for the road t’s an odd phrase, ‘The hair of So it might well be worth equivalent in 0.01% increments Ithe dog’. I mean, have you investing in a portable with a range of 0.00% to 0.40% smelled a dog recently? You breathalyser, to be sure you’re blood alcohol content. With a don’t want that near your gob. legally fit to drive the morning visual and audio alarm that Be that as it may, many people after the night before. The clearly notifies the user when will know the feeling of waking Safer Drive Breathalyser claims they have reached 0.05% and up dog rough after doing the to offer the latest in cutting- up to the legal limit of 0.08%, dog on it. And with the edge breath-alcohol sensing this product might well be the introduction of random breath technology and to be the most dog’s, er, dangly bits. testing, it’s as well to consider accurate personal breathalyser The SaferDrive Breathalyser costs whether your morning dog- available. Certified to rigorous €99 and is available from breath will get you into trouble Australian and US standards, it www.saferdrive.ie or by calling on the drive to work. measures blood alcohol breath 1890 252 207. SITES FOR SORE EYES
What time is it? (www.timeanddate.com/worldclock). It’s 4pm in Impress your boss (www.saidwhat.co.uk/bizphrases.php). Why Dublin now, but what about Addis Ababa, Mumbai, San Francisco not be a proactive team player going forward and upskill your and Shanghai? The answers: 6pm, 8.30pm, 8am and 11pm core competencies by engaging in some joined-up blue-sky respectively. So if you’re an international jet setter with a partner thinking outside the box in order to re-evaluate the big picture in every port (or even if it’s just a complex international and take ownership of your mission-critical solutions? Don’t just conveyance), find out the best time to phone. As the saying goes, settle for low-hanging fruit. Touch base with this site to find out it’s 5 o’clock somewhere. what the hell we’re talking about.
Voice of experience (www.research.att.com/~ttsweb/tts/ I’ve got your number (http://159.134.203.172/search.asp?source demo.php). We’ve had loads of fun with this online vocaliser =Eircom). In the ‘dull, but worthy’ corner, we’ve got Eircom’s demo – strictly, of course, in the interests of conducting research online phone directory. So if you’re not sure what the area code for this page. Type in pretty much any text you want, select your for Ennis is, and you don’t want to go the 11890 or 11811 route, preferred speaking voice (we like ‘Charles’), and listen as your you’re sorted. Handily, you can also search names and numbers chosen voice intones your words of wisdom. Of course, you’ll only under both the business and residential sections, and there’s a link ever use it to leave abusive messages on your advertising manager’s to the Golden Pages online. Not the most user-friendly url in the voicemail, but still... world, but http://mmm.eircom.ie/phonebook/ redirects you.
www.lawsociety.ie 47
BOOK REVIEWS LAW SOCIETY GAZETTE OCTOBER 2006 books
Civil Liability Acts – 3rd edition
Anthony Kerr. Thomson Round Hall (2005), 42 Fitzwilliam Place, Dublin 2. ISBN: 1-85800-430-6. Price: €65 (paperback). know it’s traditional when expected such an important ‘civil liability act’, the 2003 act is Iwriting these types of reviews statute to have received similar of great practical relevance to to be generally glowing in praise treatment to other Civil Liability many parts of the 1961 act. In or, at the very least, find some Acts but, instead, it has been particular, it is remarkable that nice words to say about a largely ignored. Equal disregard the reference to section 48 of the publication. Well, I tried but it’s is meted out to the less 1961 act, which enables a claim just not going to happen. important Civil Liability for fatal injuries, fails to inform There are so many flaws with (Amendment) Act 1996. us that the 2003 act first requires this book that I don’t where to The layout of the book is, to an application to PIAB before start, though the title on the say the least, unappealing. It is, any such action can be brought. cover is as good a place to begin essentially, a section by section This is just one example of as any. It just doesn’t do what it regurgitation of the 1961 and lack of practical insight. The says on the tin. One would 1964 acts (with the 2004 act 1961 and 1964 acts, while not imagine that a book which, it doing a statutory impression of specifically concerned with seems from the preface, went to the invisible man!). In addition, personal injury actions, have print on 31 August 2005, would there is a commentary author knows the 1961 and 1964 nonetheless, over the years, contain more than a passing underneath each section which, acts very well indeed. His largely been of relevance to the reference to the Civil Liability while learned and generally well expertise on these subjects and proliferation of personal injury and Courts Act 2004. This is a researched, is in inexplicably the related case law is clear. actions we have seen. With all piece of legislation that is small print. This makes an However, he fails to grasp how the changes in personal injuries seminal in its importance to already turgid subject – which is they might be seen in the grand litigation in the last three years, personal injuries litigation and, not the fault of the author – very scheme of things. His omission this was a golden opportunity to clearly, at least in part, is a ‘civil difficult to read and even less of the 2004 act is extraordinary, update this area of legislation. liability act’. Yet, it is referred to accessible to anyone, other than but it is also notable that I could Sadly, it wasn’t taken. only in the preface and on just a the most dedicated – which is the find no reference to the Personal G number of other occasions that I fault of the author. Injuries Assessment Board Act Stuart Gilhooly is a solicitor with could note. I would have It would be fair to say that the 2003. Although clearly not a HJ Ward & Co, Solicitors. Irish Pensions Law and Practice Kevin Finucane, Brian Buggy and Una Tighe. Thomson Round Hall (2005), 43 Fitzwilliam Place, Dublin 2. ISBN: 1-85800-409-8. Price: €265. his is a very welcome second law, and their pension scheme retirement income, have created to many through the pensions Tedition on Irish pension documents, for guidance. The their own talking points. The maze, regardless of which aspect matters. It states the law at 23 Pensions Act 1990 and its major pensions awareness drive of the book holds their particular September 2005. This date is regulations first created a by the Pensions Board has interest. A comprehensive index significant because it is also the framework for occupational brought the importance of will assist the reader in dipping date on which the EU IORPs pension schemes. Later this was pension provision home. into the interest of the moment. Pensions Directive (EU Council extended to personal retirement This second edition The layout and content will Directive 2003/41/EC) was savings accounts. Both the act encompasses that framework encourage the reader to return implemented in Ireland. and regulations have been across the entire pensions for further guidance. This To give a sense of the book, it amended extensively over the spectrum, including: the edition is to be highly is worth noting that, prior to years with a multitude of Pensions Board, trustee issues, recommended, both for its 1990, the regulatory framework regulations, even before the funding requirements, disclosure timing and coverage. G focused on taxation IORPs Directive in 2005. The obligations, family law requirements and reliefs property market implications for provisions, equal treatment, the Maureen Dolan is a partner with surrounding pension provision. pension-fund investments, and Pensions Ombudsman, PRSAs, McCann FitzGerald, where she Trustees of pension schemes the introduction of approved wind-ups, investment rules, and heads up the Pensions and Employee were referred to general trust retirement funds for securing ARFs. It will be a welcome guide Share Plans Group.
www.lawsociety.ie 49 LAW SOCIETY GAZETTE OCTOBER 2006 BOOK REVIEWS Judgment Digest Bart D Daly (ed). First Law (2006) Merchant’s Court, Merchant’s Quay, Dublin 8. ISBN 1-904480-37-3. Price: €175 (hardback). art D Daly, barrister (the independently of their roles as judgments from the superior B editor of this present work), ex-officio members of council, courts decided during the year is a living legal ‘institution’ of were concerned to ensure that under review and published on some renown. He founded the the public presentation of the the FirstLaw online service. Irish Law Reports Monthly in judgments of the judges of all Additionally, there are headnotes 1981, at a time when The Irish courts attained a satisfactory of more than 80 Employment Reports, the so-called ‘official’ or standard of accuracy and Appeal Tribunal determinations. ‘semi-official’ series of law comprehensiveness. Daly assured The Digest is arranged by subject reports, were in considerable the President and the Chief category and has a useful one- arrears and reporting too few Justice that his company would line index to the cases. In cases of significance. do all in its power to satisfy the addition, there is an alphabetical The Law Reporting Council concerns of the judges. table of judgments, a table of of Ireland was officially informed After Daly left the meeting, cases cited and a table of in June 1981 by the Department the council discussed the issue in legislation considered in these of Justice of the proposed new law reports similar in form to the some detail, but eventually judgments. series of reports – to be edited by All England Reports: and there decided to give approval in This is a most comprehensive Daly and published by Irish would be a preference for shorter principle to the new series. A digest of decisional law that Academic Press. The council judgments. The arguments of new ‘institution’ was born. It was affects (directly and indirectly) sought time to consider the counsel would not be reported. a brave and bold move on the every man, woman and child in matter and, in an unprecedented Mr Justice Thomas Finlay, part of Bart Daly, and he the land. Many practitioners will move, invited Bart Daly, the then President of the High succeeded and has developed regard it as a ‘tailor-made’ editor of the new series, to the Court, was present at the other law-related ventures. This reference for their queries in the meeting of the council in the meeting in his official capacity as introduction gives the reader an context of the up-to-date status Benchers’ Room at the Four an ex-officio member of the example of the editor’s initiatives of judicial law. G Courts on 6 July 1981. Daly council and informed Bart Daly – a background to this book. informed the council that the that he and the Chief Justice, by The Judgment Digest 2005 Dr Eamonn G Hall is chief new publication would consist of virtue of their offices and contains headnotes of over 450 solicitor of Eircom Group Plc.
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50 www.lawsociety.ie BRIEFING 51 An online verification facility is On receipt of your certificate, on-line for a tax clearance certifi- cate. This facility is to be found at Revenue’s website address at www.revenue.ie. also available on Revenue’s web- site. Using this online verification procedure, it is possible to con- firm electronically that a person holds a TCC. it should be forwarded to the rel- evant County Registrar(s). OCTOBER 2006 OCTOBER www.lawsociety.ie notes Criminal Law Committee Business Law Committee For further information efer to the Competition For Application Form please contact the Branch For at Merchants House, 27-30 Merchant’s office Dublin 8, tel. 7079739, fax 7079751, Quay, [email protected], www.arbitration.ie where a merger or acquisition could give rise to competition concerns, practitioners should consider whether a voluntary notification of the transaction should be made to ensure that it is not prohibited by section 4 or section 5 of the act. concerning the review of non- notifiable mergersand acquisitions, practitioners should r Authority’s notice in respect of the review of non-notifiable mergers and acquisitions (decision no N/03/001 of 30 September 2003). Further information in relation to mergers generally is available on the authority’swebsite: www.tca.ie. ) this LAW SOCIETY GAZETTE It is important, therefore, that practice evenue.ie. You should contact evenue.ie. You applications for TCCs. The con- tact names, addresses and tele- phone numbers of the relevant Revenue districts are available on the Revenue’s website, www. r your local Revenue District Office for an application form (TC1). Applying for a TCC through Revenue’s online application facility Arrangements intro- have been duced to allow taxpayers to apply involved, they may face involved, they may negligence claims. in such practitioners involved transactions should be aware of the criteria for their notification to the Competition Authority. Practitioners should also be aware that if they are in involved a ‘media merger’ in (as defined the Competition Act 2002 While the Competition 250,000 egardlessof whether the € must be notified to the authority r financial and other criteria set out in section 18(1) of the act are met. Authority’s article did not refer to the voluntary notification of a merger or acquisition where the criteria for a mandatory notification are not met, in cases Members €950 The Assessment will be based on The Arbitration practice and International Acts Arbitration procedure under the 1954-1998, the UNCITRAL Model Law and the UNCITRAL Arbitration Rules. It is NOT a teaching course. • • Fees: Non Members €1,050 300) on summary € A solicitor whose TCC has an If a breach of the obligation to Obviously, if the failure to Obviously, 25,000) on conviction on 3,000 (plus a daily default fine November 2006. expiry date on or before 30 November 2006, and wishes to have their name retained on the Criminal Legal Aid Panel(s) for the panel year beginning on 1 December 2006, must apply to the Revenue Commissioners for a new TCC. Applying for a TCC in writing Local Revenue districts now deal with the processing of written consequence of title to an consequence of title acquired or entity not business acquirer, having passed to the there are many other possible adverse consequences arising from a merger or acquisition being rendered void. notify was wilful, then any person who knowingly and wilfully authorised or permitted the breach is liable to a fine of up to € of up to conviction, and up to (plus a daily default fine of up to € indictment. notify the transaction was due to negligent advice on the part of any of the legal advisers CRIMINAL LEGAL AID SCHEME orkshop allows for Member Attendance at the workshop allows Associate membership to apply for of the Institute. Successful completion of the W grade. Faculty: Prof. Nael Bunni (Course Abrahamson, Director), Prof. Max Bernard Gogarty, Mr. James Bridgeman Mr. • • Gazette CRIMINAL JUSTICE (LEGAL AID) (TAX CLEARANCE CERTIFICATE) REGULATIONS 1999 who , or Competi- . void. ADVERSE CONSEQUENCES OF FAILURE TO NOTIFY MERGERS TO OF FAILURE ADVERSE CONSEQUENCES
uly edition of the J
he (p26ff) carried an article writ- Apart from the obvious practising lawyers with at least 10 years litigation experience arbitrators who have been in active practice for at least 10 years and who have passed an approved Module in contract, tort and evidence at degree level, wish to become Fellows of the Arbitrators. Chartered Institute of AST TRACK TO FELLOWSHIP (FCIARB) ASSESSMENT WORKSHOP (FCIARB) ASSESSMENT FELLOWSHIP TO AST TRACK A transaction that must be Practitioners are encouraged NOTICE TO PRACTITIONERS Retention of name on Criminal Legal Aid Panel for the panel year commencing 1 December 2006 The Department of Justice, Equality and Law Reform has advised that a solicitor who wish- es to have his/her name retained on the legal aid panel(s) beyond 30 November 2006 must submit to the relevant County Registrar(s) a tax clearance certificate (TCC) with an expiry date later than 30 The workshop will be of interest to: •
• T 13 and 14 October 2006. The Grand Hotel, Malahide, County Dublin. F ten by Rosemary of O’Loughlin the mergers division of the warning of Competition Authority, failurethe consequences of the a mergerto notify the authority of or acquisition, which is required to be notified under the provi- sions of part 3 of the to read the article in full, but it is worth reiterating its salient points. notified to and cleared by the authority may not be imple- mented until cleared and, if implemented without prior clearance, is tion Act 2002 FRIARYLAW MCM MEDIATION CASE MANAGEMENT IN IRELAND • All Friarylaw MCM mediations are conducted pursuant to Mediation is fast becoming an increasingly successful alternative mecha- the Friarylaw Referral and Appointment Process, the nism for the resolution of civil, commercial, and family disputes in Ireland. Friarylaw Case Management Procedures and Rules, the The key reasons for this rapid success include time and cost efficiencies, Friarylaw Code of Conduct and the Friarylaw Agreement to enhanced flexibility in the outcomes obtained and the adaptability of the Mediate. mediation process itself in the resolution of disputes. • Friarylaw were appointed by the Minister and Department of Justice as a mediator nominating body under Section 15 Friarylaw MCM (Mediation Case Management) is an independent organisa- of the Civil Liability & Courts Act, 2004. tion which is dedicated to providing advice and case management services • Our panel of Friarylaw & ADR Group Accredited Mediators to insure that your mediation is run professionally and efficiently. numbers over 70 professionally accredited Mediators based throughout Ireland with a broad variety of subject Friarylaw MCM administer the mediation process in a manner which matter expertise and experience. addresses the particular circumstances of each case and reflects the spe- • Friarylaw MCM offers a full suite of case management cific needs of the parties to that particular dispute. services which includes; - Advising on the most appropriate dispute resolution Friarylaw MCM provide a full team of experienced case managers and process, administrators available to provide advice and support to a case managed -Provision of neutral advice on the process to potential mediation. parties and liaising with them as a neutral third party, Friarylaw MCM provide dedicated Arbitration and Mediation Suites at The - Assisting parties in the selection of an appropriate medi- Friary's premises on Bow Street, in the heart of Dublin's Legal Quarter. ator or other neutral with subject matter expertise and These suites are available to our clients as a neutral venue and Friarylaw can with the appropriate level of experience, also provide a network of suitable mediation suites throughout the country. - Administering all details of the dispute resolution process from commencement through to finality.
For more information on the services provided by Friarylaw MCM including details of our Mediation Training & Professional Accreditation Programme taking place on November 15 -18th, please contact Dee Khuwais, Head of Friarylaw Administration, at [email protected] or at +353 1 872 8405.
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Please see our website for details www.donworth.ie www.obrienandassociates.com MEMBER OF American Immigration Lawyers Association (AILA) BRIEFING 53 Mental on the not already in Confers the (SI 834/2005) Appoints 1/8/ Amend regula- Private Security Private Security OCTOBER 2006 OCTOBER www.lawsociety.ie (SI 834/2005). Road Traffic Act 2002 Road Traffic SI 436/2006 SI 477/2006 SI 435/2006 update Road Traffic Act 1961 Road Traffic Order 2006 2006 as the commencement date 2006 as the commencement for all sections of the Health Act 2001 operation (that is, sections 6, 8 to operation (that is, sections 30 and 56 to 75 inclusive). ransport under ss2, 3, 4, 5, 7 (Commencement) (No 2) Order 2006 Regulations 2006 2004 (Section 37 (Part)) 2006 (Conferral of Functions) and Standards) (Amendment) Private Security Services Act Number: Contents note: 2006 as the commencement date for section 37 of the act for the purposes of its application in relation to an installer (intruder alarm) or a security guard (mon- itoring centre), within the mean- ing of the (Licensing and Regu- Standards) lations 2005 Road Safety Authority Act Number: Contents note: functions of the Minister for T and 9 of the and under s36(6), (7) and (8) of the Transfers Road Safety Authority. to the Road Safety Authority the functions currently carried out by the minister in the areas of driver testing and licensing, Private Security (Licensing Number: Contents note: tion 5(b) of the (Licensing and Standards) Regulations 2005 by the substitution of ‘1/8/2007’ for ‘1/4/2006’, providing that the standards referred to in that regulation will not be required to be observed until 1/8/2007. Criminal (inserted Finance Act LAW SOCIETY GAZETTE . , as insert- Provides, in Appoints 27/7/ (SI 15/1986) Appoints 28/7/ Appoints 1/11/ ), for an amnesty Garda SíochánaGarda Act SI 401/2006 SI 411/200 SI 451/2006 . Section 32 provides for an . Section 32 provides for – establishment and func- Firearms Act 1925 eapons) Order 2006 Contents note: date 2006 as the commencement for section 32 of the 2005 until extension from 1/1/2005 31/12/2006 of the 100% scheme of stock relief for certain young trained farmers. legislation 2006 W Competition Act 2002 (Establishment Day) Order (Commencement) Order 2006 of Firearms and Offensive Garda Síochána Inspectorate Number: Contents note: 2006 as the establishment day for the purposes of part 5 (ss113 to 120) of the 2005 tions of Garda Síochána Inspectorate. Mental Health Act 2001 Number: Contents note: Firearms Act 1925 (Surrender Number: Contents note: accordance with section 25A of the by section 46 of the Justice Act 2006 period commencing on 1/9/ 2006 and ending on 31/10/2006, during which firearms, flick knives and weapons of offence may be surrendered to the Garda Síochána. 1/9/ 25/8/ Rules of the Superior Courts Competition (Amendment) Act 2006 Aer Lingus Amend the Amend the 26/9/2006 Appoints 27/9/ Provides for the SI 461/2006 SI 399/2006 SI 460/2006 SI 456/2006 SI 476/2006 orker Participation (State W (SI 8/2002), to give effect Civil Legal Aid Regulations Rules of the SuperiorNumber: Courts (Competition)Contents note: 2006 the Enterprises) Acts 1977-2001. 32) Order 2006 6(2)) Order 2006 (Commencement of Section (Section 6(4)) Order 2006 2006 (Commencement of Section to revised financial criteria for eligibility to obtain legal aid or advice. Commencement date: 2006 Finance Act 2005 Number: 2006 Number: Contents note: Civil Legal Aid Regulations 1996 (SI 273/1996), as amended by the 2002 Aer Lingus Act 2004 Number: Contents note: reduction in the number of worker directors on the board of Aer Lingus Group plc from four to one. Commencement date: Civil Legal Aid Regulations Aer Lingus Act 2004 Number: Contents note: 2006 as the commencement date for section 6(2) of the Act 2004. Aer by the extension of the definition of ‘competition proceedings’ in order 63B (inserted 130/2005) to include the categories of proceed- by SI ings referred to in section 15C of the ed by section 1 of the Commencement date: comes . Appoints Air Companies Aer Lingus Act Appoints 11/9/ Appoints 24/8/ Appoints 27/9/ Air Companies SI 455/2006 SI 475/2006 SI 474/2006 ; and (b) sections 1, 3 Aer Lingus Act 2004.
. Section 6 deals with the Aer Lingus Act 2004
6) Order 2006 Provisions) (No 2) Order 2006 Provisions) Order 2006 (Commencement of Section (Commencement of Certain (Commencement of Certain number of directors of Aer Lingus Group plc and the num- ber of worker directors under Number: Contents note: 2006 as the commencement date for section 6 (other than subsec- tion (2)) of the 2004 Aer Lingus Act 2004 Number: Contents note: 2006 as the commencement date for sections 4 and 12 of the Aer Lingus Act 2004 Lingus Act 2004 27/9/2006 as the day on which the schedule to, and section 2 of, the into operation, other than in respect to: (a) sections 1, 7, 8, 9 and 23(1) of the Act 1966 Contents note: 2006 as the commencement date for sections 1, 5, 8, 10, 11 and 13 of the and 8 of the (Amendment) Act 1969. Number: Aer Lingus Act 2004 SELECTED STATUTORY INSTRUMENTS Details of all bills, acts and Details of all bills, since statutory instruments cata- 1997 are on the library logue – www.lawsociety.ie students’ (members’ and informa- areas) – with updated a bill tion on the current stage com- has reached and the mencement date(s) of each act. 22 August – 19 September 2006 – 19 September 22 August G Prepared by the Prepared Appoints 30/6/ . Law Society Library SI 357/2006 2006 (Commencement) Order (Item 6 of Schedule 8) and Pensions Act 2006 Number: Contents note: date 2006 as the commencement 8 of the for item 6 of schedule Law Reform and Social Welfare Pensions Act 2006 Social Welfare Law Reform Road in the first Road Traffic Road Traffic Act Road Traffic ). of the matter at reference of the matter – sentencing – admissibility raffic Act 2006 2002 (inclusion of the number 18 a mobile offence of holding a phone while driving vehicle mechanically propelled the under section 3(3) of T point schedule (listing penalty offences) to the Act 2002 act insofar as it relates to the act insofar part 1 of the first insertion into the schedule to – new forms of appeal 80 trainee solicitors) € GEAROID GERAGHTY, SOLICITOR GEAROID GERAGHTY, Insanity Act 2006 Registration: 9.30am Seminar: 10am – 4pm Road Traffic Act 2006 Appoints 1/9/ Appoints 1/9/ BOOKING FORM CPD hours: five (group study) Speaker: Alan Gannon, solicitor Speaker: Padraig Quinn, solicitor Speaker: Dara Robinson, solicitor Speaker: Pat McGonagle, solicitor Speaker: James MacGuill, solicitor SI 457/2006 SI 462/2006 150 per person ( Criminal Justice Act 2006 € Criminal Justice Act 2006 (includes materials, morning coffee and lunch) Criminal Justice Act 2006 Section 16(2)(c)) Order 2006 2006 (Part Commencement CRIMINAL LAW COMMITTEE SEMINAR COMMITTEE CRIMINAL LAW 2006 as the commencement of the date for section 16(2)(c) Number: Contents note: Number: note: Contents establishment day 2006 as the Safety Authority. for the Road Road Safety Authority Act 10am – 4pm, Saturday 2006 21 October SEMINAR CHAIRMAN: Order 2006 Creggan CourtHotel, Athlone, Co Westmeath 13/9/ OCTOBER 2006 OCTOBER Name(s): Firm: Please reserve place(s). Cheque in the sum of attached. Please forward booking form and payment (to be received no later than 18 October 2006) to: Criminal Law Committee, Law Society of Ireland, Blackhall Place, Dublin 7. Solicitor, Colette Carey, 2006 (Establishment Day) Road Safety Authority Act vehicle testing and standards and vehicle testing enforcement. Also road haulage Road Safety Auth- requires the public aware- ority to promote safety and measures, ness of road advancement of including the the pro- education, relating to of roads. motion of the safe use Commencement date: 2006 www.lawsociety.ie LAW SOCIETY GAZETTE
BRIEFING 54 BRIEFING LAW SOCIETY GAZETTE OCTOBER 2006 firstlaw update
News from Ireland’s online legal awareness service Compiled by Flore Bouhey for FirstLaw
qualification should contain review, and therefore the appli- was a ‘mass media’ one where COMPANY LAW deterrent elements; (4) a period cant was not entitled to an publication was not to a limited Disqualification order of disqualification in excess of extension of time within which class of persons, the plaintiff was Criteria by which court should ten years should be reserved for to bring that application. In any entitled to rely on the natural exercise discretion conferred on it – particularly serious cases; and event, the applicant failed to and ordinary meaning of the whether conduct of person such as to (5) the court should firstly assess establish a serious risk of an matters complained of as sup- make him unfit to be concerned in the correct period in accordance unfair trial in the absence of the porting an innuendo. It was not management of company – appro- with the foregoing and then CCTV footage. open to the defendants to con- priate length of disqualification take into account mitigating fac- Fagan v The Judges of the tend that the plaintiff had to order – Companies Act 1990 tors prior to fixing the actual Circuit Criminal Court & elect between the general effect (No 33), section 160. period of disqualification. DPP, High Court, Judge of imputations and the effect The applicant applied to the Director of Corporate Enforce- Dunne, 28/4/2006 [FL12723] upon a particular class of person High Court, pursuant to section ment v Collery, High Court, where there was a prima facie 160 of the Companies Act 1990, Miss Justice Finlay Geogh- mass media case and publication LIBEL for an order disqualifying the egan, 9/3/2006 [FL12697] took place to the general public respondent from being con- Practice and procedure on matters within the general cerned in the management of Particulars – popular innuendo knowledge of the community. CRIMINAL LAW any company on the basis of alleged – application by defendant Byrne v RTÉ, High Court, Mr conclusions contained in a Delay for particulars of publishees – Justice MacMenamin, 3/3/ report of inspectors appointed Judicial review – preservation of whether disclosure of identity of 2006 [FL12646] to inquire into the affairs of evidence – prohibition – whether persons to whom matters published Ansbacher (Caymen) Ltd. The the applicant was precluded from necessary for fair trial – whether PLANNING AND respondent did not contest the seeking judicial review as a result of defendant entitled to be furnished DEVELOPMENT application. the delay in applying for such relief. with identity of persons to whom Ms Justice Finlay Geoghegan The applicant sought an order of matter in issue published. Judicial review made a disqualification order in prohibition by way of an applica- The defendant broadcast a tele- Appeal to Supreme Court – whether respect of the respondent for a tion for judicial review restrain- vision documentary about decision involved point of law of ex- period of nine years, holding ing the respondents from pro- fraudulent litigation and, in the ceptional public importance and des- that, notwithstanding the fact ceeding with his trial on certain course of that show, allowed the irable in public interest that appeal that an application under sec- charges, on the grounds that plaintiffs’ letterhead to be shown be taken – Planning and Devel- tion 160 of the 1990 act was there was a real risk he would on the screen. The plaintiffs opment Act 2000, s50(4)(f). uncontested, the onus was still not receive a fair trial, having contended that this amounted to The applicant applied for leave on the applicant to satisfy the regard to the fact that certain a popular innuendo that they to apply for judicial review of a court that the conduct in ques- CCTV footage of the alleged were dishonest, guilty of filing decision made by the board tion was such as to make the incident forming the subject fraudulent claims and were not granting permission for a waste person concerned unfit to be matter of the charges, which was fit to be solicitors. They con- water plant under the provisions concerned in the management viewed by the gardaí, was no tended that the innuendo was of s50 of the Planning and of a company. The principles longer available. The respon- broadcast to a general class of Development Act 2000. In respect applicable to determining the dents opposed the application on persons and to particular indi- of certain aspects of the refusal appropriate period of disqualifi- the basis that the applicant viduals. The defendants sought of leave, the applicant applied cation were: (1) the primary delayed in seeking leave to apply that the particular persons to for a certificate that the decision purpose of a disqualification for judicial review until five days whom publication was made be involved a point of law of excep- order was not to punish the prior to the trial date. identified by the plaintiffs. tional public importance and it individual but to protect the Dunne J refused the applica- Mr Justice MacMenamin dis- was desirable in the public inter- public; (2) the period of disqual- tion, holding that inadvertence missed the application, holding est that an appeal should be ification should reflect the grav- was not sufficient to excuse a that in cases of limited publica- taken to the Supreme Court. ity of conduct as found by the delay of almost seven months tion, the plaintiff was obliged to Clarke J refused the certifi- inspectors, which made the from the date the applicant disclose the names of the per- cate sought, holding that the respondent unfit to be con- became aware of the problem sons to whom the publication point raised by the applicant was cerned in the management of a with the CCTV footage until was alleged to have been made. a point of law of exceptional company; (3) the period of dis- the date he applied for judicial However, as the present case public importance. However,
www.lawsociety.ie 55 BRIEFING LAW SOCIETY GAZETTE OCTOBER 2006
the public interest needed to take gagee had previously given the deeds were held by her subject PROPERTY into account the nature of the title deeds on accountable to the trust created by the development proposed and the Costs receipt to the plaintiff in her accountable receipt and not as potential consequences of signif- Lien – solicitor obtaining title capacity as a partner of the prac- agent of the defendant. As no icant further delay. Having deeds from mortgagee on account- tice, to be held by the practice in such lien existed over the title regard, on the one hand, to the able receipt – deeds retained by trust for the mortgagee as secu- deeds, the purchase money was importance of the issue raised by solicitor on behalf of mortgagee – rity for a loan advanced to the not affected by the agreement. the applicant, and, on the other insolvency of mortgagor – whether defendant. The defendant’s fam- Martin v Colfer, High Court, hand, to the importance of the solicitor entitled to lien over title ily home was sold and the plain- Mr Justice Finnegan, 27/4/ project and the consequences of deeds for costs. tiff also claimed a lien over the 2006 [FL12653] G the likely delay that would be The plaintiff was a partner of proceeds of that sale. incurred, it would not be in the the defendant’s in a solicitor’s Mr Justice Finnegan found The information contained here public interest to grant the cer- practice that was dissolved. She that the plaintiff had no lien over is taken from FirstLaw’s Legal tificate, notwithstanding the had undertaken work on behalf the title deeds, holding that the Current Awareness Service, finding that the point of law was of the defendant for which she capacity in which a solicitor published every day on the internet of exceptional public impor- had not been paid. She claimed a holds title deeds was of the at www.firstlaw.ie. For more infor- tance. lien over the title deeds to the essence, and agency for a mort- mation, contact bartdaly@ first- Arklow Holidays Ltd v An Bord defendant’s family home in gagee was incompatible with law.ie or FirstLaw, Merchant’s Pleanála, High Court, Mr respect of the amounts that she agency at the same time for the Court, Merchant’s Quay, Dublin 8, Justice Clarke, 29/3/2006 claimed for costs and expenses mortgagor. At the time the tel: 01 679 0370, fax: 01 679 [FL12636] therefor. The defendant’s mort- plaintiff claimed the lien, the 0057. SOLICITOR COMPLAINTS Information on complaints about solicitors, published in accordance with section 22 of the Solicitors (Amendment) Act 1994
Number of complaints received by the Society from Number of complaints referred to the Solicitors 1 September 2005 to 31 August 2006. Disciplinary Tribunal • Delay, failure to communicate, failure to Allegations of misconduct respond to Society’s correspondence 10 Delay 38 • Undertakings 12 Failure to communicate 105 • Failure to hand over file 2 Failure to hand over 174 •Breaches of section 68 of the Solicitors Failure to account 112 (Amendment) Act, deductions from Undertaking 219 settlements 25 Conflict of interest 25 • Dishonesty/deception 3 Dishonesty or deception 16 • Failure to notify insurance company Witnesses expenses 6 of potential claim 1 Advertising 4 • Failure to account 3 Other 119 • Failure to supervise practice 1 Total 818 • Conflict of interest, dishonesty 1 • Failure to handover file, failure to carry Allegations of inadequate professional services out instruction 1 Delay 225 Total 59 Failure to communicate 145 Shoddy work 119 Outcome of the investigation of above complaints by Other 56 the Solicitors Disciplinary Tribunal Total 546 Finding of no misconduct 2 Finding of misconduct 1 Allegations of overcharging Awaiting outcome of judicial review 2 Conveyancing 48 Decision to refer rescinded 4 Probate 25 Application deferred pending outcome of Litigation 148 private application 1 Matrimonial 40 Pending 49 Other 339 Total 59 Total 600 Grand total 1,964 As of 8 September 2006
56 www.lawsociety.ie BRIEFING 57 affect Lugano Convention OCTOBER 2006 OCTOBER www.lawsociety.ie legal decided to submit a request to decided to submit a request as to the ECJ for an opinion to con- whether competence was clude the new convention or shared exclusive to the EC with the member states. The court referred to the principle that where common rules have been adopted, the member states no longer have the right to undertake obligations with non- member countries that affect those rules. A comprehensive and detailed analysis must be carried out to determine whether the EC has the compe- tence to conclude an interna- tional agreement and whether that competence is exclusive. Account must be taken of the area covered by the EC rules and by the provisions of the agreement envisaged. Account must also be taken of the nature and content of those rules and provisions to ensure that the agreement is not capable of undermining the uniform and consistent application of the EC rules and the proper functioning of the system that they establish. The court observed that the rules on conflict of jurisdiction in international agreements concluded by member states or by the EC with non-member states necessarily establish crite- ria of jurisdiction not only in non-member states but also in member states and consequently cover matters governed by the regulation. The provisions of the new the uniform and consistent application of the regulation and the proper functioning of the system it establishes. The new convention enlarges the scope of recognition of judicial decisions was eur . The suc- had intro- LAW SOCIETY GAZETTE provides that the Brussels Convention EC Treaty Lugano Convention cessor convention would con- tain similar rules to Regulation council the 44/2001. However, appear manifestly inappropriate as to the objective pursued, upon there is an exemption rely and which carriers may there are conditions restricting the application of this obligation on carriers. The amount of the compensation was held not to be excessive. It amounts to an update of the level of compensa- tion laid down by a previous reg- ulation, taking account of infla- tion since its entry into force. Opinion 1/03 of the ECJ, 7 February 2006. Article 300 of the European Parliament, the coun- cil, the commission or a member state may obtain the opinion of the ECJ as to whether an agree- ment envisaged between the EC and one or more non-member states or international organisa- tions is compatible with the pro- The visions of that treaty. Brussels Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters replaced by Regulation 44/2001. This regulation made a number of changes to the rules on juris- diction and judgments. The Lugano Convention duced a parallel system of rules to the between the member states of (with the EC and those of EFTA the exception of Liechtenstein). The council authorised the commission to begin negotia- tions for the purpose of adopt- ing a successor convention to the CIVIL LITIGATION Montreal . The court held that News fromthe EU and International Affairs Committee regulation, in particular the pro- regulation, in particular visions relating to cancellations, The delay and compensation. ques- High Court referred those ECJ first tions to the ECJ. The considered the compatibility of the regulation with the Convention this convention, which regulates the liability of air carriers in the binds the EC. It event of delay, went on to hold that the con- vention merely governs the con- ditions under which, after a flight has been delayed, passen- gers may bring actions for dam- ages by way of redress on an individual basis against the carri- er liable for damage resulting On the other from that delay. hand, the assistance and care for passengers, prescribed by the regulation in the event of a long delay to a flight, constitute stan- dardised and immediate com- pensatory measures. They are not among the measures whose institution are regulated by the convention and cannot there- fore be considered inconsistent with it. The applicants argued that the regulation was a dispro- portionate measure. The objec- tive of the regulation was to strengthen protection for pas- sengers who suffer cancellation of, or long delay to, flights. The measures in the regulation are capable of immediately redress- ing some of the damage suffered by those passengers and there- fore enable the objective to be attained. Their extent varies according to the significance of the damage suffered by the pas- sengers. The compensation that passengers may claim when they have been informed of a flight cancellation too late does not Edited by TP Kennedy, Director Law Society of Ireland of Education, Edited by TP Kennedy, International Air , 10 January 2006. In
AIR TRAVEL ransport Association and ransport Association ransport February 2004, the parliament and council adopted Regulation 261/2004 concerning compen- sation and assistance to passen- gers from air carriers in the event of denial of boarding and of cancellation of, or long delay to, flights. In the event of a can- cellation, the air carrier is to offer passengers a choice between reimbursement of the cost of the ticket and re-routing to their final destination. Passengers are also entitled to free care (meals and refresh- ments, telephone calls and, in some circumstances, hotel accommodation) and to com- pensation, the amount of which varies according to flight dis- tance. Compensation need not be paid if the air carrier informs the passenger of the cancellation at least two weeks before the time of departure, offers the pas- senger satisfactory re-routing or can prove that the cancellation is due to extraordinary circum- stances. In the event of delay to a flight beyond a length of time (varies according to distance), passengers are to be provided with “care”. They are to be offered reimbursement in all cases where the delay is five hours or more. The applicants represent airlines. They contest- implementation of ed Britain’s the regulation before the English High Court. Questions were raised before the court concerning the validity of the T Airline European Low Fares Association v Department for T Case C-344/04, Recent developments in European developments Recent law EC . A difference in treatment eaty ny, signed a merger contract in signed a merger contract ny, Security Vision 2002 with a Luxembourg Concept SA, provid- The contract company. dissolution without ed for the Vision liquidation of Security whole of and the transfer of the any its assets to SEVIC, without name of change in the company The German authori- the latter. the merg- ties refused to register on er in the commercial register, law pro- the basis that German between vides only for mergers in legal entities established brought an SEVIC Germany. action against that decision in a German court, which referred the matter to the ECJ. The ECJ observed that freedom of estab- lishment for companies the estab- includes, in particular, lishment and management of those companies under condi- tions laid down by the legisla- tion of the state of establishment for its own companies. Cross- border mergers meet needs for co-operation and consolidation between companies established in the various member states. They constitute particular forms of exercise of the freedom of establishment that is important for the proper functioning of the internal market. Cross-border mergers, therefore, fall within those economic activities in respect of which member states are required to comply with the freedom of establishment laid down by article 43 of the Tr between companies according to the internal or cross-border nature of the merger constitutes a restriction on the right of establishment. Such a restriction can only be allowed if it pursues a legitimate objective compati- ble with the treaty and is justi- fied by imperative reasons in the public interest – such as protec- tion of the interests of creditors, minority shareholders and employees, preservation of the effectiveness of fiscal supervision and the fairness of commercial transactions. Such a restrictive measure must be appropriate for SEVIC Systems birthday. The applica- birthday. th force in the UK on 4 April 2005. force in the for the issuing of This allows certificates gender recognition under certain to transsexuals The issuing of a conditions. certificate gender recognition person changes the sex of the pur- concerned for most official poses but has no retroactive are enti- effect. In the UK, men at the age tled to a state pension age of of 65 and women at the 2015, the 60. Between 2010 and is to pensionable age for women to 65. be gradually increased male in Sarah Richards was born with 1942. She was diagnosed gender dysphoria and under- went gender reassignment sur- gery in May 2001. In February 2002, she applied for a retire- ment pension to be paid from her 60 , 13 December 2005. SEVIC ESTABLISHMENT ork and Pensions. Ms tion was refused as, officially, Ms tion was refused as, officially, Richards was considered to be male by the Department for W Richards appealed against that decision and the Social Security Commissioner made a reference to the ECJ. The commissioner asked the ECJ whether such a refusal is contrary to an EC directive on equal treatment in The the field of social security. Advocate General held that the directive applied to a situation where a person suffers discrimi- nation concerning the duration of entitlement to a statutory old- age pension as a result of under- going gender reassignment sur- He said that the correct gery. comparator for the applicant is a female person whose identity is not the result of gender reas- In this case, signment surgery. Ms Richards is denied her pen- sion in circumstances where, had she been born female, she would have been entitled to it. The Advocate General found that this refusal was discrimina- tory and contrary to EC law. Case C-411/03, AG Systems GA, a German compa- Rome Gender came into , 15 December Sarah Margaret on choice of law in ork and Pensions DISCRIMINATION CONTRACT 2005 (opinion of Advocate General Jacobs). Prior to April 2005, UK law provided that the sex of a person for social securi- ty purposes is that stated on his/her birth certificate. A birth certificate can only be changed to rectify clerical or factual who under- errors. Transsexuals surgery go gender-reassignment cannot change their sex on their birth certificates. The Recognition Act 2004 finding that the creation of a finding that in respect of the monopoly these aircraft engines powering harmful effects on would have as it would deprive competition, of the benefits of customers court price competition. The of the held that certain aspects were viti- commission decision this, ated by illegalities. Despite findings the court held that the effect relating to the horizontal above of the merger on the three to estab- markets were sufficient prohibit- lish that the decisions found- ing the merger were well ed. A proposal to replace the Convention contract with a regulation has been published by the European Commission. The ECJ has cur- rently no jurisdiction to inter- pret the convention. The pro- posal is in the form a of draft regulation and thus will give the ECJ such jurisdiction. The con- tent of the proposed regulation largely reflects the convention. Parties will continue to be free to choose the governing law of their contract. The rules that apply in the absence of such a choice have been changed. Specific rules are to be applied to contracts for the sale of goods, supply of services, distri- bution or intellectual property. Case C-423/04, v Secretary of State for Richards W and , 14 , the OCTOBER 2006 OCTOBER would . GE v Commission Lugano Convention Lugano Convention COMPETITION Cases T-209/01 and T-210/01, Cases T-209/01 Honeywell v Commission affect the uniform and consis- affect the uniform and EC rules. tent application of the the ECJ In those circumstances, exclusive held that the EC has the competence to conclude new General Electric v Commission and increases the number of and increases judgments deliv- cases in which of countries not ered by courts of the EC, where members does not arise from jurisdiction of the regulation, the application the will be recognised. Thus, new December 2005. On 5 February 2001, the commission was noti- fied of a merger between two US companies – Honeywell International and General Electric (GE). On 3 July 2001, the commission declared the merger incompatible with the common market. The parties were thus prohibited from put- ting the merger into effect in the EU. GE and Honeywell brought actions before the CFI seeking to annul that decision. The CFI approved the commis- findings that a merger sion’s would create or strengthen dominant positions, as a result of which effective competition would be significantly impeded in three markets. These are the market for jet engines for large regional aircraft, the market for engines for corporate jet aircraft and the market for small marine gas turbines. The court did not annul the decision, even though the commission made errors in relation to other aspects of the case. In court upheld the commission’s argument that the merger would have created a monopoly on the worldwide market for jet engines for large regional air- craft. This is an important mar- ket for the EU, as large regional aircraft accounted for 33% of the European fleet in 1998. The court upheld the commission’s www.lawsociety.ie LAW SOCIETY GAZETTE
BRIEFING 58 BRIEFING 59 , the appeal court , the Tribunale di , the Tribunale OCTOBER 2006 OCTOBER Cipolla www.lawsociety.ie Macrino tions to the ECJ asking whether tions to the of the legislation other aspects with the com- were compatible and the principle petition rules to provide services. of freedom In the fixing Roma asked whether services of fees for out of court Mr law. complied with EC are Macrino and Ms Capodarte are in clients of Mr Meloni and the fees dispute with him about serv- he claimed for out of court ices. In asked whether the pro- of Turin and their hibition on lawyers clients making agreements derogating from the fees laid down by legislation fixing the scale of lawyers’ fees complies Advocate General with EC law. Miguel Poiares Maduoro was of the opinion that a measure fix- ing a scale of lawyers’ fees for out-of-court services is compat- ible with EC competition law, provided that it has been subject to effective supervision by the state and the power of the court to derogate from that scale, where it rules on a dispute relat- ing to the amount of fees, is interpreted in accordance with EC law in a way that limits its anti-competitive effect. The Advocate General was of the same opinion on the prohibition on derogating from the scale of fees. He then looked at the compatibility of the scale of fees with the principle of freedom to provide services. Although the scale of fees applies without dis- tinction to all lawyers wishing to it is provide services in Italy, established taking into account only the situation and the expenses incurred by Italian lawyers. The minimum fees fixed by the scale prevent lawyers established outside Italy from providing legal services in Italy at rates below those mini- mum levels, even if they have the opportunity to do so. Italian citizens wishing to instruct a foreign lawyer cannot benefit fully from the advantages of the common market, as access to legal services at a cost below that and , opinion of LAW SOCIETY GAZETTE , the ECJ had consid- action can be sued in the courts action can be where any one of of the place A US patent them is domiciled. the provision to owner invoked to a multi- sue all the defendants patent infringe- jurisdictional court ment dispute in the home in the of one of them. He sued of the Netherlands, the domicile Roche defendant company, effec- Nederland, whose policy other tively controls all the hold- infringements. The patent piece of er held a patent for a diagnostic medical equipment. Roche He argued that other Nederland and eight companies within the Roche Group, situated in seven other member states and the USA had infringed his patent. Advocate General Léger found that article Article 6(1) 6(1) did not apply. should be interpreted to mean that it was not intended to apply in cross-border patent infringe- ment cases, even when the defendants belong to one group or when there is one central pol- icy of one of the defendants that applies to all defendants. Cases C-94/04 and C-202/04, Cipolla v Portolese Macrino Capodarte v Meloni Advocate General Maduro, 1 mini- February 2006. In Italy, mum and maximum rates for legal fees are fixed by legislation. The scales are established every two years by the National Council of the Bar and then approved by the Minister for Justice. In Case C-35/99, Arduino ered the manner of fixing the scale and held it to be compati- It ble with EC competition law. had held that Italy had not dele- gated responsibility for regulat- ing an activity to private eco- nomic operators, since the Bar Council submitted only a draft who had scale to the minister, the power to have the draft amended or defer its applica- tion. Following on from this, two Italian courts referred ques- LEGAL FEES Brussels . It pro- Roche Nederland , 8 December 2005, JURISDICTION more difficult, or even impossi- more difficult, the freedom to ble, to exercise through posted provide services are nationals of workers who states. It consid- non-member such a check can ered whether interest be justified by a public that objective. Germany argued on the prior check was justified preven- grounds relating to the to tion of abuse of the freedom provide services, the protection certainty. of workers and legal German The ECJ held that the is neces- practice exceeds what require- sary to prevent abuse. A provider ment that the service furnish a simple prior declara- tion certifying that the situation of the workers concerned is law- ful is a legitimate measure. This would give the national authori- ties a guarantee that those work- ers’ situation is lawful and that they are carrying on their main activity in the member state where the service provider is established. A prior declaration would enable the authorities to monitor compliance with German social welfare legisla- tion during the deployment while taking account of the obli- gations by which that undertak- ing is already bound under the social welfare legislation appli- cable in the member state of ori- gin. A prior declaration is more proportionate than the German measure, as it is less restrictive. The check in advance cannot be justified by the necessity of ensuring that such posting is The court effected lawfully. found the requirement of at prior employment least a year’s by the undertaking making the posting to be disproportionate. Case C-539/03, and Others opinion of Advocate General arti- The case concerned Léger. cle 6(1) of the Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters vides that co-defendants in an deals Commission of Law on Aliens , 19 January 2006. The FREE MOVEMENT OF PERSONS Case C-244/04, the European Communities v Germany German ensuring the attainment of the ensuring the and must not objectives pursued what is necessary to go beyond refuse generally To attain them. a merger between a to register established in that company state and a company established in the in another member state prevents commercial register the realisation of cross-border inter- mergers even if the public court, are ests, outlined by the rule goes not threatened. Such a to beyond what is necessary to attain the objectives designed protect those interests. with the posting of employed persons who are nationals of a non-member state in Germany. Foreigners intending to reside for more than three months on German territory and to pursue paid employment there must be in possession of a specific resi- dence visa. Companies wishing to provide services in Germany have to ensure that their work- ers from non-member states obtained a visa from the German diplomatic representa- tion in the member state where the company is established. German rules also provide that the German diplomatic repre- sentation is to satisfy itself, in advance, that the worker has been employed for at least a year by the company that intends to effect the posting. The commis- sion viewed the German prac- tice of checking certain criteria prior to the posting, and restricting the posting to work- ers employed for at least a year by the provider established in another member state, as amounting to obstacles to the freedom to provide services. On that basis, it brought this action against Germany to the ECJ. The ECJ found that this system of prior checking may make it provi- EC Treaty atts had received a medical Her daughter requested autho- Her daughter her to receive treat- risation for Her examining ment abroad. stated that her case consultant and that she would was routine for approximately have to wait The one year for treatment. abroad request for treatment Primary was refused by Bedford as the treatment Care Trust, NHS could be provided within without targets and therefore a request ‘undue delay’. After this deci- for judicial review of was re-exam- sion, Mrs Watts in ined by the consultant that January 2003. He reported her condition had worsened and that she should be operated on within three to four months. the trust again However, refused authorisation for treat- ment abroad, as the operation could still be carried out by the NHS within an appropriate travelled to time. Ms Watts France and the operation was carried out in March 2003. On her return she continued with her application for judicial the High Later that year, review. Court rejected her application. The case was appealed to the Court of Appeal, which referred a number of questions to the ECJ. The Advocate General found that the sions on the free movement of services apply to this case. Mrs W service in return for remunera- tion. The fact that the NHS is a funded by the state, public body, and providing health care free at is irrele- the point of delivery, vant for determining whether the situation falls within the The role of scope of the treaty. the NHS is merely instrumental in relation to the main transac- and the tion between Mrs Watts hospital in France. The absence of a clearly defined procedure within the NHS for considering applications for treatment abroad restricts the possibilities for patients to seek treatment outside the system. It therefore is a restriction of their freedom to receive services. The authori- , 15 The Queen, on applicants’ products. There is applicants’ causal nexus also a direct damage sustained between the of the EC’s and the conduct It was the conduct institutions. and the commis- of the council the EC sion (the adoption of import of regime governing the US to bananas) that led the measures. adopt its retaliatory banana The introduction of the cause regime is the immediate suffered. of the damage the court found that However, suffered the applicants had not present unusual damage. In the under- instance, the applicant takings cannot have suffered damage of that kind. Damage that businesses may suffer is only unusual when it exceeds the limits of the economic risks inherent in operating in the sec- tor concerned. The applicants did not establish that the com- mercial damage suffered by them because of the conduct of the council and the commission was in excess of the limits of the risks inherent in their export operations. Case C-371/04, v Watts the application of Yvonne & Primary Trust Bedford Care Secretary of State for Health December 2005, opinion of Advocate General Geelhoed. a person is enti- Under EC law, tled to receive services through- out the EC. These include cer- tain medical services. The E- 112 scheme allows people to apply for authorisation to travel abroad for treatment. Authorisation may not be refused if the treatment is one that is normally provided and cannot be granted without undue delay in the home mem- ber state. The sickness insur- ance fund is then obliged to reimburse the person for the costs incurred. In September was told Watts 2002, Yvonne that she had osteoarthritis in both hips and would need a total hip replacement on each side. SERVICES EC Treaty drawn up by the US authorities. drawn up by brought pro- Six EU companies the CFI claim- ceedings before from the ing compensation and council for commission to have been damage alleged the US suffered by them, as to retaliatory measures applied The their exports to the USA. non-con- CFI found that, for EC for tractual liability of the institu- unlawful conduct of its con- tions to be incurred, three The ditions must all be met. be conduct must institution’s must unlawful, actual damage there have been suffered, and must be a causal link between the conduct of which the insti- tutions are accused and the damage. The WTO agreements are not among the rules in the light of which the EC courts review the legality of action by the EC institutions. Therefore, it is not possible to establish that the conduct of which the coun- cil and the commission are accused is unlawful. the applicant’s Accordingly, actions for damages must be dis- missed insofar as they require that conduct to be unlawful. The court then looked at rules governing liability that the EC may incur even in the absence of unlawful action by its institu- tions. In such a case, undertak- ings that bear a disproportionate part of the burden resulting from the EC institutions’ con- under certain condi- duct may, tions, obtain compensation for damage to them. The requires the EC to pay compen- sation for certain damage caused by conduct of its institutions, not shown to be unlawful. For this purpose, actual damage must be sustained, there must be a causal link between the dam- age and the conduct of the EC institutions, and the damage sustained must be unusual and special in nature. The condition relating to the sustaining of actual damage is met in this case, as the commission statistics show an appreciable reduction in exports to the USA of the OCTOBER 2006 OCTOBER Fabricca Italiana Beamglow Ltd v , 14 December , orld Trade Organisation orld Trade LIABILITY FOR ACTIONS OF EC INSTITUTIONS European Parliament, Council of the European Union and Commission of the European Communities 2005. In 1993, the council adopted a regulation introduc- ing common rules for the import of bananas in the EU. The regulation contained pref- erential provisions for bananas from certain African, Caribbean and Pacific states. The Dispute Settlement Body (DSB) of the W (WTO) held that the EC regime governing the importa- tion of bananas was incompati- ble with WTO agreements. This finding was made in the context of complaints made by several states, including the USA. In 1998, the council adopted a regulation amending the EU banana regime. The USA regarded the new regime as still incompatible with the WTO agreements. It requested and obtained authorisation from the DSB to impose increased customs duties on imports of EC products appearing on a list Cases T-69/00, T-151/00, T- T-151/00, Cases T-69/00, T-383/00 301/00, T-320/00, and T-135/01, fixed by the Italian scale is fixed by the even though those denied them, available in another services are The minimum member state. are a restriction fees, therefore, to provide serv- on the freedom the com- ices, as they neutralise lawyers petitive advantage of Italy. established outside of ensur- Although the objective of the ing the proper operation legal profession is legitimate, how Italy has not demonstrated fees is the fixing of minimum it. appropriate for attaining accumulatori motorcarri Montecchio SpA (FIAMM) and Others and FIAMM Technologies v Council of the European Union and Commission of the European Communities www.lawsociety.ie LAW SOCIETY GAZETTE
BRIEFING 60 BRIEFING 61 Commercial OCTOBER 2006 OCTOBER www.lawsociety.ie provides that those provides radioactive waste and to cover radioactive closure of the the permanent German plants. The Code be counted among reserves can of the undertaking the liabilities a reduc- concerned and lead to is tax- tion of the amount that German able. In 1999, three electricity utilities complained the to the commission about for these tax-exemption scheme claimed financial reserves. They amount- that the tax exemption power ed to state aid to nuclear the commis- stations. However, tax meas- sion decided that the ure did not amount to aid of such a nature. The utilities con- tested this decision before the CFI. The court noted that the tax exemption did amount to an economic advantage granted through state resources. Nevertheless, the court consid- ered that neither the tax-exemp- tion scheme for the reserves nor the detailed rules for its imple- mentation by the tax authorities granted the nuclear power sta- tions a specific advantage. In the context of the obligation to dis- pose of radioactive waste and to decommission nuclear power plants, the amount of the reserves was not disproportion- ate. G Stadwerke LAW SOCIETY GAZETTE , 26 January 2006. reimbursed had the treatment reimbursed out in the home been carried If such tariffs do member state. the home member not exist in example, because state, for provided free at the treatment is reimburse- point of delivery, the level ment must be made at the treat- of the actual cost of ment, as the only remaining The point of reference. that Advocate General noted exist in such tariffs should the costs Britain to determine vis- that must be paid by foreign from itors receiving treatment and the NHS. The travel accommodation costs incurred by the patient must be refunded where national law provides for the reimbursement of such expenses when treatment is pro- vided within the country con- cerned. Case T-92/02, Schwäbisch Hall GmbH, Stadtwerke Tübingen GmbH, Stadtwerke Uelzen GmbH v Commission of the European Communities German nuclear power stations are required to set up financial reserves to cover the cost of dis- posing of the irradiated fuel and STATE AID STATE aiting times and clinical pri- treatment abroad must be offset treatment abroad costs saved in the against the of treatment that longer term have been pro- would otherwise the NHS. The vided by then exam- Advocate General ‘undue ined the concept of delay’. This must be determined cir- with regard to the specific taking cumstances of each case, only the into account not but medical condition patient’s The also his medical history. whether prime consideration is patient the condition of the would make any postponement of treatment unacceptable. W orities may be taken into account where they are deter- mined on the basis of individual for providing needs. Targets treatment do not, in view of comply their abstract character, with this criterion. The man- agement of hospital care in a sit- uation of limited resources and the fact that health care is pro- vided free at the point of deliv- both of which related to the ery, economic organisation of the NHS, cannot be taken into account. The Advocate General then considered the appropriate level of reimbursement. He stated that this should be at the level that would have been . The sole criteri- . The sole EC Treaty sation procedure for foreign sation procedure incompatible with treatment is the on of whether the treatment can on of whether within the NHS be provided does not take the plan targets suf- individual needs of patients In order ficiently into account. EC law, to be compatible with be man- the waiting list must flexible aged in a dynamic and way with regular reassessment times set, and maximum waiting of the so as to balance the needs allocate patient with the need to on limited resources. A decision must denial of treatment abroad be taken with regard to the indi- vidual condition of the patient involved, particularly the degree of pain, the nature of the dis- ability and the medical history of the patient. The fact that the authorisation may require addi- tional funding cannot be a con- sideration when assessing the needs of the individual. Budgetary considerations are only valid within the context of requests for treatment on a larg- er scale that put at risk the financial stability of the system. The function of the prior authorisation procedure is to allow member states to control the outflow of patients, and the financial burden incurred by Legal Costs … Fast MAXIMIZE YOUR PROFITS 01 840 7069
11 North Street Business Park, Swords, Co. Dublin. [email protected] DX 91010 Swords PROFESSIONAL NOTICES LAW SOCIETY GAZETTE OCTOBER 2006
LOST LAND LAW SOCIETY CERTIFICATES Registration of Title Act 1964 Gazette An application has been received from the registered owners mentioned in the schedule hereto for the issue of a land PROFESSIONAL NOTICE RATES certificate in substitution for the original RATES IN THE PROFESSIONAL NOTICE SECTION ARE AS FOLLOWS: land certificate issued in respect of the lands specified in the schedule, which • Lost land certificates – €126 (incl VAT at 21%) original land certificate is stated to have been lost or inadvertently destroyed. A • Wills – €126 (incl VAT at 21%) new certificate will be issued unless noti- • Title deeds – €126 per deed (incl VAT at 21%) fication is received in the registry within 28 days from the date of publication of • Employment/miscellaneous – €126 (incl VAT at 21%) this notice that the original certificate is in existence and in the custody of some HIGHLIGHT YOUR NOTICE BY PUTTING A BOX AROUND IT – €30 EXTRA person other than the registered owner. Any such notification should state the All notices must be paid for prior to publication. CHEQUES SHOULD BE MADE PAYABLE grounds on which the certificate is being held. TO LAW SOCIETY OF IRELAND. Deadline for November Gazette: 18 October 2006. (Register of Titles), Central Office, Land For further information, contact Catherine Kearney or Valerie Farrell on tel: Registry, Chancery Street, Dublin 01 672 4828 (fax: 01 672 4877) (Published 6 October 2006)
Regd owner: Shay White; folio: 19451F; the parish of St Finbar’s, known as the county of Cork; Co Cork Regd owner: Catherine Furlong; folio: lands: Carlow and barony of Carlow; San Antonio, 11 Boston Park, The Regd owner: Daniel Gallagher and DN119993F; lands: property known Co Carlow Lough, in the city of Cork; Co Cork Annie Gallagher, Ballyloughan, as site no 12 Griffeen Glen Grove, Regd owner: Philomena Lynch, Kilcully, Regd owner: David Murphy; folio: Bruckless, Co Donegal; folio: 44F; Griffeen Valley, Lucan, situate in the Ballyjamesduff, Co Cavan; folio: 34627F; lands; plot of ground being lands; Ballyloughan; Co Donegal townland of Esker South and barony 24655; lands: Kilquilly; area: 5.8958 part of the townland of Lackareagh Regd owner Joseph Grant, Lower Illies, of Newcastle; Co Dublin hectares and 16.5136 hectares; Co in the barony of Muskerry West and Buncrana, Co Donegal; folio: 16022; Regd owner: Mary Coyne; folio: 1910L; Cavan county of Cork; Co Cork lands: Illies; area: 8.7969 hectares and lands: townland of Townparks and Regd owner: James F Barry and Mary Regd owner: Dermot O’Mahony and 2.6557 hectares; Co Donegal barony of Galway; Co Galway Barry; folio: 1627L; lands: townland Marie O’Mahony; folio: 60638F; Regd owner: Ann Wilde, Cloghan, Regd owner: Patrick Culkin; folio: of Drumgeely and barony of Bunratty lands: plot of ground being part of Ballybofey, Co Donegal; folio: 39794; 1474F; lands: townland of Lower; Co Clare the townland of Kilmoney in the lands: Ballybogan; area: 0.2023 Cregcarragh and Islandmore Regd owner: Michael Foley; folio: 2195; barony of Kerrycurrihy and county hectares; Co Donegal (Clareby) and barony of Clare; Co lands: townland of Glendree and of Cork; Co Cork Regd owner: Zoe Stephenson, 92 Galway barony of Tulla Upper; area: 9.7782 Regd owner: Robert Power; folio: Meadowhill, Kiltoy, Letterkenny, Co Regd owner: Peter Flaherty and Peter hectares; Co Clare 13929F; lands: plot of ground being Donegal and Michael McGinty, O’Neill; folio: 35185F; lands: town- Regd owner: Ann McMahon; folio: part of the townland of Ballyglavin in Meadow Hill, Kiltoy, Letterkenny, land of Townparks and barony of 15132; lands: townland of Summerhill the barony of Imokilly and county of Co Donegal; folio: 46780F; lands: Galway; Co Galway and barony of Tulla Lower; Co Clare Cork; Co Cork Ardarawer; Co Donegal Regd owner: Padraig Joyce; folio: Regd owner: Brendan Marrinan and Ann Regd owner: Bernard Leach and Brenda Regd owner: Dawn Elizabeth Marshall, 57215; lands: townland of (1), (2), (3) Marrinan; folio: 1529; lands: town- Leach; folio: 29678F; lands: plot of Ballyhaskey, Newtowncunningham, and (4) Tonlegee (Ross By), (5) land of Cloughan Beg (East) and ground situate at Woodlawn in the Co Donegal; folio: 2097; lands: Coolin and barony of (1), (2), (3), (4) Cloughan More (West) and barony of parish of St Finbar’s in the county Portlough; area: 30.3260 hectares; Co and (5) Ross; area: (1) 10.3650 Moyarta; Co Clare borough of Cork and city of Cork; Donegal hectares, (2) 50.7020 hectares, (four Regd owner: Michael McInerney; folio: Co Cork Regd owner: Reverend Patrick undivided 20th parts), (3) 4.1632 29012; lands: townland of Ieverstown Regd owner: Erich Schiller; folio: Muldoon, Doonan, Donegal; folio: hectares, (4) 50.7020 hectares (one and barony of Bunratty Lower; area: 1745F; lands: plot of ground being 38198; lands: Drumcliff; area: 0.1012 undivided 20th part), (5) 154.4786 0.0177 hectares; Co Clare part of the townland of (1) hectares; Co Donegal hectares (one undivided 20th part); Regd owner: Jim Purcell and Deirdre Ballyrussell and (2) Barnabrow in the Regd owner: Andrew Hegarty, Co Galway Purcell; folio: 38763F; lands: town- barony of Imokilly and county of Letterkenny, Co Donegal; folio: Regd owner: Kieran Joyce and land of Kiltanon and barony of Tulla Cork; Co Cork 42537; lands: Glencar Irish; area: Josephine Joyce; folio: 40299F; lands: Upper; area: 0.3560 hectares; Co Regd owner: Anne Dunlea; folio: 0.1163 hectares; Co Donegal townland of Ballybritt and barony of Clare 73812F; lands: plot of ground being Regd owner: Berkel (Ireland) Ltd; folio: Galway; Co Galway Regd owner: Sean O’Leary; folio: 32348; part of the townland of Doonavanig DN104428F; lands: property situate Regd owner: Joseph McLoughlin; lands: plot of ground being part of the in the barony of Kinalea and county in the townland of Fox and Geese folios: 601 and 664; lands: townland townland of Deeshart in the barony of of Cork; Co Cork Common and barony of Uppercross; of folio 601: (1) Bleannagloos and (2) Muskerry East and county of Cork; Regd owner: John Kevin Murphy; folio: Co Dublin St Brendan’s or Cregganagrogy; folio Co Cork 3396F; lands: plot of ground being Regd owner: Denis O’Reilly; folio: 664: Bleannagloos and barony of Regd owner: David Corkery and Mary part of the townland of DN5186; lands: property situate in folios (601) and (664) Killian; area: Lucey; folio: 90316F; lands: plot of Fahanalooscane in the barony of the townland of Rush and barony of folio 601, (1) 9.0396 hectares, (2) ground known as no 47 Ballea Kinalea and county of Cork; Co Balrothery East; Co Dublin 1.8084 hectares and folio 664, 2.1448 Woods, being part of the townland of Cork Regd owner: Ivan Wilders; folio: hectares; Co Galway Carrigaline West in the barony of Regd owner: Finbarr Milner and DN148300F; lands: a plot of ground Regd owner: Tony Mitchell and Agatha Kerrycurrihy and county of Cork; Co Cherilyn Milner; folio: 118647F; known as 18 Ashton Lawns, Ashton Mitchell; folio: 54692F; lands: town- Cork lands: plot of ground known as 23 Broc, Swords, and situate in the land of Carrowroe South and barony Regd owner: Mary Angela Horgan; The Rise, Dun Coran, in the parish townland of Broadmeadow and of Moycullen; area: 0.854 hectares; folio: 38399F; lands: plot of ground in and urban district of Youghal and in barony of Nethercross; Co Dublin Co Galway
www.lawsociety.ie 63 late late of late of 25 late of 131 late of 18 late of 78 Heytesbury ould any person having knowledge of ould any person having knowledge of ould any person with any knowledge of ould any person having knowledge of Graham, Sheila (née Lynch) Graham, Sheila (née (deceased), Street, South Circular Road, Dublin any person having knowl- 8. Would edge of any will which may ever have been made by the above-named deceased, who died on 24 August Hospital, please 2006 at Tallaght of solicitor, contact David Larney, Gleeson McGrath Baldwin, Solicitors, 29 Anglesea Street, Dublin 2; tel: 01 474 4300, fax: 01 474 4343, email: [email protected] Humphreys, Marion (deceased), knowledge of a will executed by the executed by of a will knowledge deceased, who died on 8 above-named Hospital, Dublin June 2005 at Beaumont Aisling Fair of Bowman 9, please contact 5/6 The Mall, Lucan, McCabe Solicitors, 01 628 0734, fax: 01 628 Co Dublin; tel: 0832 Flanagan, Joan (deceased), and Hillside, Greystones, Co Wicklow, Terrace, formerly of 12 Pembroke any Would Booterstown, Co Dublin. of a will exe- person with any knowledge deceased, cuted by the above-mentioned contact who died on 18 July 2004, please Company, Rosemary Scallan & Church Solicitors, Burnaby Buildings, tel: 01 Road, Greystones, Co Wicklow; or email: 287 2905, fax: 01 287 7271 [email protected] of 61 Finglas Park, Finglas, Dublin 11. W the whereabouts of any will made by the above-named deceased, who died on 20 May 1999, please contact Patrick F O’Reilly & Co, Solicitors, 9/10 South Street, Dublin 2; tel: 01 679 George’s 3565, fax: 01 679 3421, email: info@pfor- eilly.ie John (deceased), Kenneally, Dublin 3. Fairview Strand, Fairview, W the whereabouts of any will made by the above-named deceased, who died on 5 March 2006, please contact Michael Houlihan & Partners, Solicitors, 9-11 Bindon Street, Ennis, Co Clare; tel: 065 684 6000, fax: 065 682 1870, email: [email protected] John (deceased), Lally, Dublin 9. Santry, Shanowen Avenue, W a will made by the above-named deceased, who died on 16 August 2006, 18 Highfield please contact Gerry Lally, Crescent, Swords, Co Dublin; email: [email protected] Michael (deceased), Lalor, Abbeyleix, Co Laois and for- Sweetview, merly of New Rath Road, Waterford. W the whereabouts of any will made by the Co Co late of late of late of Co Wicklow Co Tipperary Co Tipperary Co Wicklow Co Westmeath Co Waterford Co Waterford Co Tipperary ood and Knockaunavogga and ood and Knockaunavogga aterford; aterford; ipperary ipperary Elizabeth Bargery; folio: 34616; lands: Elizabeth Bargery; folio: 34616; barony of townland of Cooleen and Owney and Arra; Carrigeen 36381; lands: townland of West; and barony of Iffa and Offa T Longford 28946F; lands: townland of W barony of Ikerrin; plot of 2633 and (2) 6792; lands: of ground being part of the townland (1) Benvoy and (2) Kilsteague in the barony of Middlethird and county of W 634L; lands: plot of ground being of the townland of Carrickbeg in the barony of Upperthird and county of W Co Westmeath; Irishtown, Mullingar, folio: 19619; lands: Irishtown; area: 0.0885 hectares; and lands: townland of Tiknock barony of Arklow; 8580F; lands: townlands of Ballydonnell and Blindwood and bar- onies of Arklow; 7494; lands: townland of Boolahallagh 7494; lands: townland Iffa and Offa West; and barony of T lands: townland Keays; folio: 5626F; and barony of Lower of Dromineer Ormond; ould anyone with any knowledge of ighe. MM Halley & Son, Solicitors, 5 Regd owner: Matthew Mulcahy and Regd owner: Matthew Mulcahy folio: Regd owner: Patrick O’Brien; folio: Regd owner: Edward Stapleton; folio: (1) Regd owner: Robin Mooney; Regd owner: Michael Norris; folio: Regd owner: Brendan Nolan, Keadeen, Regd owner: John Annesley; folio: 2192; Regd owner: Daniela Frorman; folio: Catherine (deceased), Brophy, Cadamstown, in the county Kilmacuddy, any person having Would of Offaly. knowledge of a will made by the above- named deceased, who died on 25 November 1995, please contact Thomas Place, W Enright, Solicitors, of John’s Co Offaly; tel: 057 912 0293, fax: Birr, 057 912 0802 Thomas (deceased), Delahunty, Main Street, Mullinavat, Co Kilkenny. W the present solicitors acting for the Tighe estate, who have interests in property in and in particular the vil- Co Kilkenny, lages of Mullinavat and Inistioge, please solicitors in contact the under-mentioned writing. One of the previous owners of Geoffrey Stuart the estate was a Wilfred T Georges Street, Waterford Doyle, Thomas (deceased), Lough Road, Lucan, Co Mountain View, any person having any Dublin. Would Regd owner: Catherine Hynd; folio: Hynd; owner: Catherine Regd Regd owner: James Keays and Gladys Regd owner: Co Co Co Co WILLS Co Laois Co Mayo Co Limerick Co Kildare Co Louth Co Sligo Co Mayo Co Meath Co Kilkenny Co Offaly Co Limerick Co Roscommon Co Roscommon Co Meath Sweeney; folio: 5984; lands: townland of Ballaghadereen and barony of Costello; lands: townland of Turrock and lands: townland of Turrock barony of Athlone North; Roscommon Loftus; folio: 1112F; lands: townland of Arnasbrack and barony of Tirerrill; area: 2.2630 hectares; Brookville, Ashbourne, Co Meath; folio: 25488F; lands: Killegland, Ashbourne; Clones, Co Racaufield, Ture, Monaghan; folio: 3798; lands: Racaufield; area: 6.5053 hectares; Monaghan 5728F; lands: Clara and barony of Kilcoursey; 6790F; lands: townland of Currinah and barony of Costello; area: 0.2687 hectares; 39402; lands: townland of Hazelhill and barony of Costello; folio: 48003; lands: Doolough and barony of Erris; O’Donoghue, 92 Gandon Close, Harolds Cross, Dublin 6; folio: 26339; lands: Ballymurphy; area: 0.1644 hectares; Laois Co Bungalow’, Cloncoose, Longford, lands: Longford; folio: 3038; hectares; Derrintonny; area: 9.4999 Co Leitrim and lands: townland of Cloghkeating barony of Pubblebrien; folio: 1719F; lands; Maryborough and folio: 1719F; lands; Maryborough East; barony of Maryborough 2242F; lands: townland of Rathjordan and parish of Clanwilliam; Limerick 21012 and 4277F; lands: Ballynagarde and barony of Clanwilliam, Co Limerick; Marcella Uí Chonluain, 8 Golf Links Road, Blackrock Cove, Blackrock, Dundalk, Co Louth; folio: 21088F; lands: Haggardstown; 11839; lands: townlands of Bawn, lands: townlands 11839; Boherbaun and Eskerhill, Pullagh, West; barony of Offaly and barony lands: Graiguenamanagh of Gowran; lands: Rush Hall 12990 and 12996; and barony of Upperwoods; Regd owner: Winifred Joseph Feely Regd owner: Winifred Regd owner: Joseph Kelly; folio: 612; Regd owner: Edward Loftus and Sandra Regd owner: Ciaran McSorley, 58 Regd owner: Ciaran McSorley, Regd owner: Peter McQuillan, Regd owner: Daniel Sheeran; folio: Regd owner: Kevin Caulfield; folio: Regd owner: William Campbell; folio: Campbell; Regd owner: William Regd owner: John Desmond O’Toole; Regd owner: Francis Hendy and Mary Regd owner: Monica E Carroll, ‘The Regd owner: Monica E Carroll, 46229F; Regd owner: Alan Hayes; folio: Regd owner: Kate McEvoy (deceased); Regd owner: Kate McEvoy folio: Regd owner: Elizabeth Leahy; folio: McDonagh; Regd owner: William Regd owner: Gearoid O’Chonluain and Regd owner: Liam Walsh; folio: 14728; Liam Walsh; Regd owner: Andrew Delaney; folios: Regd owner: OCTOBER 2006 OCTOBER Co Galway Co Kildare Co Kildare Co Kerry Co Kildare Co Kerry Co Kerry Co Galway Co Kerry ENGLISH ralee; SOLICITORS 3935; lands: Donode Big and barony of Naas South, county Kildare; area: 54.4706 hectares; 17945; lands; townland of Moortown and barony of Ikeathy and Oughterany; 11052F; lands: townland of 37 barony of and Villas O’Rahilly’s T and West lands; townland of Timahoe barony of Clane; 24355; lands: townland of Ardea and 24355; lands: townland of Ardea Derrylough; of 16112F; lands: townland Ballintemple and barony of Corkaguiny; lands: townland of Canfee and barony lands: townland of Canfee and of Glanarought; lands: townland of (1) Angliham or lands: townland of (1) Angliham (2) Coarsefield and Gortacallow, area: (1) barony of (1) and (2) Galway; 4.3758 13.4582 hectares and (2) hectares; lands: townland of (1) Lissavruggy, (2) of (1) Lissavruggy, lands: townland Cregganagrogy and or St Brendan’s and (2) Killian; area: (1) barony of (1) (2) 3.5738 hectares; 3.7838 hectares, Co Galway townland of Townparks 3490F; lands: and barony of Clare; Regd owner: William Halpin; folio; Halpin; Regd owner: William Regd owner: Thomas McIntyre; folio: Regd owner: Joseph Prendergast; folio: Regd owner: Richard Walsh; folio: Regd owner: Richard Walsh; Regd owner: Anne Byrne; folio: 8698; Regd owner: Daniel O’Shea; folio: Regd owner: Daniel O’Shea; folio: Regd owner: Pamela Doyle; Regd owner: John Hartnett; folio: 27740; Regd owner: John Hartnett; Regd owner: Luke Small; folio: 12323F; Regd owner: Luke Small; folio: Regd owner: Mark Murray; folio: 556; Murray; folio: Mark Regd owner: Pauline Meehan; folio: Regd owner: www.lawsociety.ie LAW SOCIETY GAZETTE
PROFESSIONAL NOTICES 64 PROFESSIONAL NOTICES LAW SOCIETY GAZETTE OCTOBER 2006
above-named deceased, who died on 26 071 9620 882, email: collinssolicitors@ Earl of Meath of the one part and In default of any such notice being August 2006, please contact Ms Murphy eircom.net George Pilkington and William Parsons received, the applicants intend to pro- & Co, Solicitors, The Old Courthouse, Hoey of the other part from 10 February ceed with the application before the Abbeyleix, Co Laois; tel: 057 873 High-profile office premises to let, 1852, being subject to the yearly rent of county registrar for the county of the 1211/31592, fax: 057 873 1223, email: Main Street, Rathfarnham, Dublin 14; 75 eight pounds, 15 shillings and one half- city of Dublin for directions as may be [email protected] sq metres, superb location, tel: Quinn penny and the covenants on the one part appropriate on the basis that the person Agnew, 01 662 3113 of the lessee to be performed and condi- or persons beneficially entitled to the Lawlor, Matthew (deceased), late of 28 tions therein contained. superior interest including the freehold St John’s Villas, Arklow, Co Wicklow. Seven-day publican’s on-licence for Ta ke notice that Anthony Brazil, premises are unknown or unascertained. Would any person having knowledge of a sale. Contact: Galvin Broderick Solici- Thomas Brazil, Anthony (otherwise Date: 6 October 2006 will made by the above-named deceased, tors, 16 Ashe Street, Tralee, Co Kerry; Tony) Brazil Junior, Eoin Brazil and Signed: Kent Carty Solicitors, 47/48 who died on 6 February 2005, please tel: 066 7122 764/712 2344, fax: 066 712 Peter Brazil intend to submit an applica- Parnell Square, Dublin 1 contact the Office of the General 6756 tion to the county registrar for the coun- Solicitor for Minors and Wards of Court, ty of the city of Dublin for the acquisi- In the matter of the Landlord and Courts Service, 15/24 Phoenix Street Offices to let, city-centre location, own tion of the freehold interest in the afore- Tenant (Ground Rents) Acts 1967- North, Smithfield, Dublin 7; reference: entrance, may suit sole-practitioner or said properties, and any party asserting 1994 and in the matter of the PH/1770; tel: 01 888 6231, fax: 01 872 newly qualified solicitor, rent reasonable; that they hold a superior interest in the Landlord and Tenant (Ground Rents) 2681 tel: 01 677 2080, fax: 01 677 2109, email: aforesaid premises (or any of them) are (No 2) Act 1978: an application by [email protected] called upon to furnish evidence of title to Anthony Brazil, Thomas Brazil, Moloney, Anne (deceased), late of the aforementioned property to the Anthony (otherwise Tony) Brazil Athgarvan, Newbridge, Co Kildare. Ashford Temple & Co: law agents and below named within 21 days from the Junior, Eoin Brazil and Peter Brazil Would any person with any knowledge of law researchers, 29 Buckingham Village, date of this notice. Take notice that any person having any a will executed by the above-named Dublin 1; tel/fax: 01 855 4844, mobile: In default of any such notice being interest in the freehold estate in the fol- deceased, who died on 17 May 2006, 087 278 0467, email: thomaspphelan@ received, the applicant intends to pro- lowing property: all that and those the please contact Stephen Maher, Solicitors, eircom.net. All assignments undertaken ceed with the application before the premises known as 64 Meath Street, sit- Main Street, Newbridge, Co Kildare; tel: or validated by legal personnel county registrar for the county of the uate in the parish of St Catherine’s, for- 045 432 20, fax: 045 434 203 city of Dublin for directions as may be merly in the county but now in the city appropriate on the basis that the person of Dublin, held under a fee farm (con- O’Shaughnessy, Mary (deceased), late TITLE DEEDS or persons beneficially entitled to the version) grant, dated the 26 January of 50 Longstone Park, Portrane, Co superior interest including the freehold 1926, between Guy Brabazon Dublin. Would any person with any premises are unknown or unascertained. Pilkington and Lydia Mary McMahon knowledge of a will executed by the Cullen Helen (deceased), late of Date: 6 October 2006 of the one part and John L’Estrange above-named deceased, who died on 9 Gardiner Street, Dublin 2 and Market Signed: Kent Carty Solicitors, 47/48 Swift of the other part and the covenants August 2006, please contact Patrick W House, Ballitore, Co Kildare. Would any Parnell Square, Dublin 1 on the one part of the lessee to be per- McGonagle & Co, Solicitors, North solicitors holding any deeds to any prop- formed and conditions therein con- Street, Swords, Co Dublin; tel: 01 840 erty in Ireland, and in particular to a In the matter of the Landlord and tained. 4697, fax: 01 840 1616 property at Market House, Ballitore, Co Tenant (Ground Rents) Acts 1967- Take notice that Anthony Brazil, Kildare, in the name of the above-named 1994 and in the matter of the Thomas Brazil, Anthony (otherwise deceased, please contact: Messrs Sheila Landlord and Tenant (Ground Rents) Tony) Brazil Junior, Eoin Brazil and MISCELLANEOUS McConnell & Co, Solicitors, of Wheeler (No 2) Act 1978: an application by Peter Brazil intend to submit an applica- House, Newbridge, Co Kildare; DX Anthony Brazil, Thomas Brazil, tion to the county registrar for the coun- 49023 Naas; tel: 045 888 826, fax: 045 Anthony (otherwise Tony) Brazil ty of the city of Dublin for the acquisi- Irish co-author sought. International 897 808 Junior, Eoin Brazil and Peter Brazil tion of the freehold interest in the afore- tax book already written (US side) by US Take notice that any person having any said properties, and any party asserting attorney (former law professor, editor Any solicitor with knowledge of the interest in the freehold estate in the fol- that they hold a superior interest in the European Taxation, PWC alumni). Seeks whereabouts of a deed of conveyance lowing property: all that and those the aforesaid premises (or any of them) are Irish co-author for Irish side/individual dated 10 February 1992 and made premises known as 1 Crostick Alley called upon to furnish evidence of title to income/estate tax. Email: thomasj between Barrie Cooke of the one part and Street, situate in the parish of St the aforementioned property to the [email protected] Seamus and Bernadette Caulfield of the Catherine’s, formerly in the county but below named within 21 days from the other part, relating to property at The now in the city of Dublin, held under a date of this notice. Northern Ireland agents for all con- Quay, Thomastown, in the county of lease for lives renewable forever dated 21 In default of any such notice being tentious and non-contentious matters. Kilkenny, please contact O’Shea Russell June 1699, made between Bernard received, the applicants intend to pro- Consultation in Dublin if required. Fee Solicitors, Main St, Graignamanagh, Co Brown (hereinafter called the ‘original ceed with the application before the sharing envisaged. Contact Norville Kilkenny; tel: 059 972 4106, fax: 059 972 lessor’) of the one part and Thomas Bell county registrar for the county of the Connolly, D&E Fisher, Solicitors, 8 4687, email: [email protected] (hereinafter called the ‘original lessee’) city of Dublin for directions as may be Tr evor Hill, Newry; tel: 048 3026 1616, of the other part and the covenants on appropriate on the basis that the person fax: 048 3026 7712, email: norville@dan- In the matter of the Landlord and the one part of the lessee to be per- or persons beneficially entitled to the defisher.com Tenant (Ground Rents) Acts 1967-1994 formed and conditions therein con- superior interest including the freehold and in the matter of the Landlord and tained. premises are unknown or unascertained. London solicitors will be pleased to Tenant (Ground Rents) (No 2) Act 1978: Ta ke notice that Anthony Brazil, Date: 6 October 2006 advise on UK matters and undertake an application by Anthony Brazil, Thomas Brazil, Anthony (otherwise Signed: Kent Carty Solicitors, 47/48 agency work. We handle probate, litiga- Thomas Brazil, Anthony (otherwise Tony) Brazil Junior, Eoin Brazil and Parnell Square, Dublin 1 tion, property and company/commercial. Tony) Brazil Junior, Eoin Brazil and Peter Brazil intend to submit an applica- Parfitt Cresswell, 567/569 Fulham Road, Peter Brazil tion to the county registrar for the coun- In the matter of the Landlord and London SW6 1EU; DX 83800 Fulham Take notice that any person having any ty of the city of Dublin for the acquisi- Tenant Acts 1967-1994 and in the Broadway; tel: 0044 2073 818311, fax: interest in the freehold estate in the fol- tion of the freehold interest in the afore- matter of the Landlord and Tenant 0044 2073 814044, email: arobbins@ lowing property: all that and those the said properties, and any party asserting (Ground Rents) (No 2) Act 1978: an parfitts.co.uk premises known as 65 Meath Street, situ- that they hold a superior interest in the application by Brian Murphy, Garrett ate in the parish of St Catherine’s, for- aforesaid premises (or any of them) are Peers and Raymond Peers For sale: ordinary seven-day publi- merly in the county but now in the city of called upon to furnish evidence of title to Take notice that any person having can’s on-licence. Enquiries to Peter Dublin, held under a perpetual fee farm the aforementioned property to the interest in the freehold estate of the fol- Collins, Collins Solicitors, Main Street, grant dated 10 February 1852 and made below named within 21 days from the lowing property: 8 Botanic Road, Carrick-on-Shannon, Co Leitrim; tel: between the Right Honourable William date of this notice. Glasnevin, Dublin 9, more particularly
www.lawsociety.ie 65 ake noticed that Joseph Davy T In default of such notice being ake notice having an that any person T freehold estate of the fol- interest in the all that and those the lowing property: now known as, lands and hereditaments at, number 148 Upper and situate in the parish of St Peter Leeson Street which said premises and city of Dublin, described and are more particularly to an delineated on a map annexed dated 15 indenture of assignment Agnes October 1926 and made between part, the Augusta Chambers of the first Ridgeway right Reverend Charles John the second and Henry George Baily of Catherine part, Arthur Cecil Baily and and Eugene Mary Baily of the third part, comprise a Davy of the fourth part, and by an portion of the lands demised December indenture of lease dated 14 Read of 1840 and made between Henry of the one part and Robert Chambers lands the other part, whereby certain and those therein described as all that that lot, piece or angle or ground situate, lying and being on the north side of the new road leading to Donnybrook, being part of the lands of St Sepulchre, parish of St Peter and barony of New Castle and county of Dublin, containing in front to Donnybrook Road aforesaid on the west 163 feet, on the east side, 152 feet by Mespil Road on the south, 59 feet leading to the toll house on the north by said Robert Chambers holding under said Henry Reid be the same more or less as laid down in a map or sketch thereof on these presents togeth- er with all and singular the rights mem- bers and appurtenances thereunto belonging or in any wise appertaining excepting and always reserving out of this demise all mines, minerals, quarries of slate freestone and marble and all roy- alties whatsoever as excepted and reserved by the Lord Archbishop of Dublin were demised by the said Henry Reid to the said Robert Chambers for a term of 200 years from 14 December 1840, subject to the yearly rent of £200 thereby reserved. intends to submit an application to the county registrar for the city of Dublin for the acquisition of the freehold inter- and any est in the aforesaid property, party asserting that they hold a superior interest in the aforesaid property is called to furnish evidence of title to the aforementioned property to the below- named solicitors within 21 days of this notice. received, the applicant, Joseph Davy, intends to proceed with the application before the county registrar at the end of the 21 days from the date of this notice and will apply to the county registrar for the city of Dublin for directions as may be appropriate on the basis that the per- son or persons beneficially entitled to the superior interest including the free- hold reversion of the aforesaid premises are unknown or unascertained. : : Landlord and Landlord and Landlord Landlord and Landlord and Landlord ake notice that John C Gavin and T In default of any such notice being ake notice that any person having an ake notice that any person enant (Ground Rents) Acts 1967-1994 enant (Ground Rents) Acts Act 1978 enant (Ground Rents) (No 2) enant (Ground Rents) Acts 1967-1994 enant (Ground Rents) (No 2) Act 1978 from the date of this notice and will apply and will date of this notice from the registrar for the county of to the county for directions as may the city of Dublin on the basis that the per- be appropriate entitled to the superior sons beneficially the freehold reversion interest including aforesaid premises are in each of the unknown or unascertained. Date: 6 October 2006 & Company (solic- Signed: Seamus Maguire Main Street, itors for the applicant), 10 Dublin 15 Blanchardstown, In the matter of the T and in the matter of the T Gavin and an application by John C Anne G Gavin T of or any interest in the freehold estate proper- superior interest in the following being ty: all that and those the property the subject matter of folio 1479L of the to the being situate Co Carlow, register, in the town of west of Bachelors Walk Muine Bheag, being part of the townland of Moneybeg and barony of Idrone East, being the property held under an inden- ture of lease dated 7 March 1858 from Philip Jocelyn Newtown to Bagenalstown Gas Company Limited for the term of 999 years from 1 May 1858 at the yearly rent of £5 and under an inden- ture of lease dated 20 February 1880 from Philip Jocelyn Newtown to Bagenalstown Gas Company Limited for the term of 999 years from 1 November 1877 at the yearly rent of £5. Anne G Gavin of Bagenalstown, Co intend to submit an application Carlow, to the county registrar for the county of Carlow for the acquisition of the freehold and any interest in the aforesaid property, party or parties asserting that they hold a superior interest in the aforesaid proper- ty are called upon to furnish evidence of title to the aforementioned property to the below named within 21 days from the date of this notice. received, John C Gavin and Anne G Gavin intend to proceed with the appli- cation before the county registrar at the end of 21 days from the date of this notice and will apply to the county registrar for the county of Carlow for directions as may be appropriate on the basis that the person or persons beneficially entitled to the superior interest including the free- hold reversion in the aforementioned property are unknown or unascertained. Date: 6 October 2006 & Co (solicitors for the Signed: PD Gardiner applicants), 15/17 South Leinster Street, Dublin 2 In the matter of the T and in the matter of the T an application by Joseph Davy 13 St ; and in the Landlord and Landlord Landlord and Tenant Landlord ake notice that Sean Dunleavy (the ake notice that Charles and Gregory T In default of any such notice being T In default of any such notice being ake notice person having any that any ake notice that any person having an ake notice that enant Acts 1967-1994 matter of the (Ground Rents) (No 2) Act 1978 Road, Phibsborough, Dublin: Peter’s an application made by Sean Dunleavy T interest in the freehold estate of the fol- Road, lowing property: 13 St Peter’s Phibsborough, Dublin 7, being the premises comprised in and demised by an indenture of lease dated 1 April 1878 and made between Hugh O’Rorke of the one part and Peter Larkin of the other part for the term of 150 years. applicant) intends to submit an applica- tion to the county registrar for the coun- ty of the city of Dublin for acquisition of the freehold interest in the aforesaid premises, and any party asserting that they hold a superior interest in the afore- said premises (or any of them) are called upon to furnish evidence of the title to the aforementioned premises to the below named within 21 days from the date of this notice. received, the applicant intends to pro- ceed with the application before the county registrar at the end of 21 days Charles and Gregory Gallagher and Gregory Charles T freehold estate or any interest in the in the property known superior interest those the hereditaments as: all that and formerly known as 1, 2, 3, and premises Road, Dalkey, St Patrick’s 4 The Mews, of the hereditaments and being portion demised by premises comprised in and 8 May 1912 an indenture of lease dated Porter made between Edward Alexandra James Proby of the one part and Douglas dated 6 of the other part and by lease to May 1940, the Earl of Carysfort part. Francis Byrne, of the other an applica- Gallagher intend to submit of the coun- tion to the county registrar of the free- ty of Dublin for acquisition inter- hold interest and any intermediate and any est in the aforesaid property, they hold a party or parties asserting that proper- superior interest in the aforesaid ty are called upon to furnish evidence of title in the aforementioned property to the below named within 21 days from the date of this notice. received, the applicants intend to pro- ceed with the application before the county registrar for the county of Dublin for directions as may be appropriate on the basis that the person or persons ben- eficially entitled to the superior interest including the freehold reversion to the property are unknown or unascertained. Date: 6 October 2006 Signed: Donal T McAuliffe, Solicitors, 57 Dublin 2 (Ref DTMcA/ Merrion Square, GMcG) In the matter of the T , and in OCTOBER 2006 OCTOBER and in the Landlord and Landlord Landlord and Tenant Landlord UDITORS Dublin 6W. A 7 Argus 7 Argus House, Harold’s Cross, Harold’s REGISTERED Bookkeeping and Bookkeeping CCOUNTANTS & CCOUNTANTS Phone: 01 4737455 please contact us at: Accountants Reports ake notice that Brian Murphy and ake notice that Brian Murphy or Enquiries regarding Email: [email protected] A our Solicitor services, Specialists in Solicitor In default of any such notice being T F CERTIFIED PUBLIC CERTIFIED Greenmount Office Park, Greenmount Office TD Fitzpatrick enant Acts 1967-1994 the matter of an application by matter of the (Ground Rents) (No 2) Act 1978 Garrett Peers and Raymond Peers Garrett Peers and Raymond to the intend to submit an application of county registrar for the county/city of the free- Dublin for the acquisition property, hold interest in the aforesaid they hold a and any party asserting that proper- superior interest in the aforesaid 21 days of ty to the below named within the date of this notice. received, Brian Murphy and Garrett Peers and Raymond Peers intend to pro- ceed with the application before the county registrar at the end of 21 days from the date of this notice and will apply to the county registrar for the county/city of Dublin for directions as may be appropriate on the basis that the person or persons beneficially entitled to the superior interest including the free- hold reversion in the property aforesaid are unknown or unascertained. Date: 6 October 2006 Solicitors, 8 Signed: Partners at Law, Co Dublin Dun Laoghaire, Adelaide Street, In the matter of the T described in an indenture of lease dated of lease in an indenture described 1939 and made between 30 November Harte of the one part and James Joseph and James McNamara of Nellie Noonan that portion of the prem- the other part, in the schedule hereto ises described ‘the premises’) were (hereinafter called the said James McNamara demised unto from 1 for a term of 200 years a yearly rent November 1924 subject to to the of 15 pounds thereby reserved lessee and covenants from the part of the the conditions therein contained. www.lawsociety.ie LAW SOCIETY GAZETTE
PROFESSIONAL NOTICES 66 PROFESSIONAL NOTICES LAW SOCIETY GAZETTE OCTOBER 2006
Date: 6 October 2006 ises, and any party or parties asserting Signed: Eugene Davy (solicitors for the appli- that they hold the superior interest in the NOTICE TO THOSE PLACING cant), 16-18 Harcourt Road, Dublin 2 aforesaid property are called upon to fur- nish evidence of title in the aforemen- RECRUITMENT ADVERTISEMENTS IN THE In the matter of the Landlord and tioned property to the below named LAW SOCIETY GAZETTE Tenant Acts 1967-1994 and in the mat- within 21 days from the date of this ter of the Landlord and Tenant notice. Please note that, as and from the August/September 2006 issue (Ground Rents) (No 2) Act 1978, and in In default of any such notice being of the Law Society Gazette, NO recruitment advertisements will the matter of 48 Ballinclea Heights, received, the applicant, Rosalinde Killiney, Co Dublin, and an applica- Lavelle, intends to proceed with the be published that include references to years of Post- tion by Rosalinde Lavelle application before the county registrar at Qualification Experience (PQE). Take notice that any person having an the end of 21 days from the date of this interest in the freehold estate or any notice and will apply to the county regis- The Gazette Editorial Board has taken this decision based on superior interest in the property known trar for the county of the city of Dublin legal advice, which indicates that such references may be in as all that and those the hereditaments for directions as may be appropriate on breach of the Employment Equality Acts 1998 and 2004. and premises 48 Ballinclea Heights, the basis that the person or persons ben- Killiney, Co Dublin, being the premises eficially entitled to the superior interest comprised in folio 10226L of the register including the freehold in the aforesaid of leaseholders, county Dublin, and held premises are unknown or unascertained. Computer literate; tel: 01 668 6901 or housing projects, waste matters, etc. under an indenture of lease dated 8 April Date: 6 October 2006 email: [email protected] Midlands area. Please reply to box no 1969 and made between Healy Ballinclea Signed: James D Aitken & Co (solicitors for 82/06 Limited of the one part and Dermot the applicant), 107 Trees Road, Mount Experienced solicitor required for Chadwick of the other part, whereby the Merrion, Co Dublin busy Galway city practice. Apply with Solicitor required to join general prac- premises the subject of this application CV to box no 80/06 tice. Self-motivated solicitor with gener- were demised for a term of 500 years al experience and also District Court from 25 March 1967 and subject to an RECRUITMENT Solicitor available for part-time posi- experience required. Immediate start. annual ground rent of 20 pounds thereby tion. Experienced in general practice: lit- Apply in writing to Peter Doyle, Doyle reserved, including any successor in title igation, conveyancing and probate. Fox & Associates, Solicitors, Main Street, to Healy Ballinclea Limited. Employment-law position required by Dublin area. Reply to box no 81/06 Blessington, Co Wicklow Take notice that the applicant, solicitor with some clientele in Dublin Rosalinde Lavelle, intends to submit an area. I have enrolled for the Law Society Solicitor required with an interest in Small, busy rural practice in south mid- application to the county registrar for the Diploma Course in Employment Law and possibly (but not necessarily) experi- lands region has vacancy for assistant county/city of Dublin for the acquisition (evening course) October 2006. Also ence in local authority work, in particu- solicitor (or possibly suitable apprentice). of the freehold interest in the said prem- interested in general practice vacancies. lar planning enforcement, contract, Replies to box no 83/06
Publication of advertisements in this section is on a fee basis and does not represent an endorsement by the Law Society of Ireland.
SPANISH LAWYERS RAFAEL BERDAGUER ABOGADOS TWENTY YEARS ADVISING CLIENTS IN REAL ESTATE TRANSACTIONS IN SPAIN
PROFILE: FIELD OF PRACTICES: panish Lawyers Firm focused eneral Practice, Administra- Son serving the need of the Gtive Law, Civil and Commer- foreign investors, whether in cial Law, Company Law, Banking company or property transac- and Foreign Investments in tions and all attendant legalities Spain, Arbitration, Taxation, such as questions of inheritance, Family Law, International Law, taxation, accounting and book- Litigation in all Courts. keeping, planning, land use and litigation in all Courts.
Avda. Ricardo Soriano, 29, Edificio Azahara Oficinas, 4 Planta, 29601 Marbella, Malaga, Spain
Tel: 00-34-952823085 Fax: 00-34-952824246 e-mail: [email protected] Web site: www.berdaguerabogados.com
www.lawsociety.ie 67 LAW SOCIETY GAZETTE OCTOBER 2006 RECRUITMENT
68 www.lawsociety.ie RECRUITMENT LAW SOCIETY GAZETTE OCTOBER 2006 LAW SOCIETY GAZETTE OCTOBER 2006 RECRUITMENT
70 www.lawsociety.ie
LAW SOCIETY GAZETTE OCTOBER 2006 RECRUITMENT
AT STELFOX LEGAL WE PRIDE OURSELVES IN THE FACT THAT CURRENT OPPORTUNITIES INCLUDE: WE ARE A LEGAL RECRUITMENT AGENCY RUN BY LEGAL PEOPLE ■ ■ FOR LEGAL PEOPLE. A DIVISION In House Litigation Solicitor General Practice and Litigation Solicitors RUN BY SOMEONE WITH FIVE South Dublin – € Negotiable Wexford – € Variable YEARS LEGAL EXPERIENCE WE Life Assurance provider located in Dublin's Two highly regarded firms in Wexford have KNOW THE DEMANDS OF BOTH Southside has a vacancy for a solicitor with vacancies for solicitors with experience in THE INDUSTRY AND THE PEOPLE solid and varied legal experience to deal with General Practice (strong emphasis in residential WHO WORK IN IT. WE CANNOT the company's portfolio of litigation as well conveyancing) and Litigation. Both positions offer STRESS ENOUGH HOW as offer support to company's business. This excellent salaries as well as an enjoyable working SERIOUSLY WE RESPECT BOTH CANDIDATES AND CLIENTS role offers an excellent opportunity for an environment. Candidates must be determined CONFIDENTIALITY. WITH experienced solicitor to change from private with excellent interpersonal skills as well as STELFOX LEGAL, YOU'RE IN THE practice to In House. strong I.T. skills. Salary commensurate with DRIVING SEAT. experience.
If you are interested in finding the right position in the right firm with an agency who genuinely respects your need for confidentiality contact Stephen Kelly B.A., LL.B. at Stelfox Legal on (01) 679 3182 or email your CV to [email protected] Log on to our new website for a list of more opportunities www.stelfox.ie
RESIDENTIAL SOLICITOR - DUBLIN SOUTH €50K+ Our client, a boutique firm is now looking for a residential conveyancing solicitor for transactions on behalf of resi- dential property developers and clients to include: Site Purchase, Scheme set up, Planning issues, Way leave issues, Tax issues, Local Authority Matters and Banking issues.
SENIOR COMMERCIAL CONVEYANCING SOLICITOR – DUBLIN CITY CENTRE €90K + A leading Commercial Law firm in Dublin are now seeking a Commercial Conveyancing Solicitor with experience in commercial conveyancing. The successful candidate will have experience in large deal commercial transactions advising investors, developers and financial institutions and investigating title as well as a good working knowledge of Landlord and Tenant issues.
SENIOR CORPORATE LAWYER – DUBLIN 2 €85K + Top law firm requires a corporate lawyer for transactional work in its Dublin office. You will have experience in some of the following areas: Mergers and Acquisitions both public and private, securities, private equity, PLC and capital markets experience. This firm offers great opportunities for career development to Partnership level.
FUNDS LAWYER – DUBLIN CITY CENTRE €50K + For information Opportunity exists to join this Dublin firm's Investment Funds team. Applications from candidates from both in-house on these vacancies and private practice are invited. Ideally, you will be experienced in advising institutional clients and in Irish Investment or to discuss Fund law as well as ideally having multi-jurisdictional experience. However, newly-qualified solicitors with a strong other career interest in learning Investment Funds are invited to apply. opportunities, please contact John Cronin PENSIONS SOLICITOR – DUBLIN CITY CENTRE €60K + Solicitor. This is an opportunity to join the pensions team in a leading practice. The successful candidate will be advising a broad range of international and domestic companies, scheme trustees and individuals on all pension PRC Recruitment scheme aspects and related matters. Applicants should have preferably gained experience in a large or medium size Limited, 11 Hume practice. Street, Dublin 2. Tel: 01-6381020 COMMERCIAL SOLICITOR – CORK €60K + or e-mail Our client, based in Cork has experienced exceptional growth in its commercial department in the last year. Due to [email protected] this growth it is now seeking a good company/corporate solicitor to join its team.
72 www.lawsociety.ie AMERICAN POWER CONVERSION Job Title: Associate Legal Counsel EMEA Location: Galway, Ireland Reports to: Director of Legal Affairs EMEA
POSITION SUMMARY ■ Respond to general queries from Contracts department on all Europe Middle East and Africa (EMEA) Associate Legal Counsel for sales and service deals in EMEA. a US based multi-national corporation. The corporation has in- ■ Research projects - EU Data Protection, Employment Law in region manufacturing and engineering facilities located in Ireland, EMEA, WEEE legislation, Sweepstakes Promotions etc. Denmark and Switzerland and sales and service offices throughout ■ Develop processes and maintain a knowledge base in the EMEA (25+ countries). This position will provide second line legal company databases. support to all company operations in the region including HR, Finance, Contracts (sales and service), logistics/OM, QUALIFICATIONS / EXPERIENCE / SKILLS Manufacturing, marketing etc. The position reports to the Director ■ Law Degree from accredited university. Additional of Legal Affairs EMEA located in the EMEA headquarters in Galway, qualifications in Commercial Law, European law or Ireland. The successful candidate will be afforded a valuable Employment law would be advantageous. opportunity to work in an in-house legal department that deals ■ Qualified lawyer in Ireland or other EU jurisdiction. with legal issues across EMEA on a daily basis. ■ Previous exposure to an international environment is preferred. FUNCTIONS ■ Excellent organizational and interpersonal skills ■ Draft and negotiate standard company template agreements, ■ Strong work ethic and commitment to customer service to purchasing/vendor contracts, HR litigation, Facilities/Lease internal clients. agreements, logistic agreements, commercial agreements, ■ Proven record of ability to learn quickly and work under including POA's, NDA', services/consultancy agreements, pressure while managing multiple tasks. settlement agreements etc. ■ Travel in region may be required. ■ General legal work on corporate files, general commercial ■ Fluency in both written and spoken English is required and litigation, employment litigation debt collection. additional language skills would be advantageous.
If you are interested in applying for this position, please email your CV to [email protected] or call me direct at 091 702694.
LAW SOCIETY GAZETTE OCTOBER 2006 RECRUITMENT
ANAGRAM: TAKE STOUT ... SOB! PRACTICE IN HOUSE COMMERCIAL PROPERTY LAWYERS Dublin ASSOCIATE LEGAL COUNSEL Galway •Our client a leading firm with offices in Dublin City centre is seeking to recruit • Our Client, an international company, is seeking to appoint an Associate Legal a strong commercial property lawyer. The successful candidate will have a Counsel to support the Senior Legal Counsel of its EMEA operations. You will number of years experience in all areas of property law including develop- deal with all legal matters for all departments, including litigation, purchasing ments, leasing and investment. Excellent drafting and negotiation skills are for all departments, Employment Law matters, Corporate matters, contract mandatory as are excellent presentation and communication skills. Fantastic queries, facilities/leases, logistics and debt collection. You will also be respon- prospects for the successful candidate. €65,000 - 80,000 sible for developing legal know-how. Excellent drafting and research skills are a prerequisite as are good communication and presentation skills. An excellent CORPORATE LAWYERS Dublin and rare opportunity for a strong commercial lawyer to move in house. •This leading law firm is seeking an exceptional corporate lawyer to join its €50,000 - €65,000 highly regarded team. You will have an in depth understanding of company law and proven experience of dealing with transactional work, including INTERNATIONAL M&A, venture capital and private equity. Managing an extensive portfolio, Magic Circle - London/New York/Hong Kong/Dubai you will be expected to work autonomously dealing with clients on a Corporate/Banking/Structured Finance daily basis. An excellent opportunity for the successful candidate. • If you are a lawyer interested in working with one of the world's leading firms Up to €100,000. and have any level of experience in any of these practice areas we would be delighted to hear from you. First class academics along with the drive to accel- Legal Executives, Company Secretaries Nationwide erate your career are mandatory requirements. Salary to €150,000! •We have numerous exciting opportunities available for experienced Legal Executives and Company Secretaries in firms throughout the country. Our Considering a change of direction? We are looking for driven individuals with excel- clients include firms of all sizes from small practices to top tier firms, many of lent commercial awareness to join our successful team. No experience required. which are paying above market rates with benefits and excellent prospects for We offer an exceptional package plus equity for the right individual. progression! €Excellent!
ANAGRAM SOLUTION: STATUTE BOOKS
Lisa Weston BL MA(Oxon), Osborne Recruitment, 104 Lower Baggot Street, Dublin 2 Tel: 01-6384400; Fax 01-6384444; www.osborne.ie; [email protected] www.osborne.ie LEGAL • FINANCIAL • OFFICE • IT • CALL CENTRE • TEMPS RECRUITMENT LAW SOCIETY GAZETTE OCTOBER 2006
LAW SOCIETY GAZETTE OCTOBER 2006 RECRUITMENT
80 www.lawsociety.ie Revision 9 210 x 297mm Join the right team... Partner ARTHUR P. McLEAN AND COMPANY SOLICITORS Opportunity
Arthur P McLean & Co. is a well established Dublin 2 practice Ambitious committed to providing a quality service to its continuously expanding client base. Due to a company restructure the firm requires an additional team player: an ambitious, focused and Team Player experienced commercial solicitor with commercial conveyancing experience. Excellent career prospects and a possible equity linked Focused partnership await the successful candidate. For more information on this exceptional opportunity, please contact Michelle Nolan at Meghen Group, who has been exclusively retained to recruit for this position.
Commercial Property Solicitor - MN0609-155 General Practice Solicitor (Litigation/Conveyancing) €80 -100K + Bonus & Benefits MN0608 -133 €Neg + Bonus Exciting opportunity for a commercially-minded solicitor to assist This long-established general practice in Dublin 2 prides itself in expanding the Commercial Property/Banking department of on its superior service to clients throughout Ireland. With a this respected practice in Dublin 2. There is already an existing growing demand for its Litigation, Residential Conveyancing, client base. Candidates must have gained relevant experience Commercial and Private Clients services, this an excellent from a recognised city or leading provincial practice in all opportunity for a solicitor with extensive experience in Commercial Property and Banking matters. Litigation and Conveyancing/Probate to join. Exposure to Commercial Property Solicitor - MN0609-34 cross-border transactions is highly advantageous. €70 - 80K + Bonus Don't miss this opportunity to join a well respected Dublin 7 In-House Commercial Property Lawyer practice, renowned for its high quality services and depth of MN0609 -136 €Neg + Bonus legal expertise. The post will ideally suit a solicitor with broad Our client, a specialist legal advisory organisation, has a knowledge and experience of Commercial Property matters. broad client base, ranging from private individual investors to international developers. Due to growth in the Commercial Banking/Financial Services Lawyer - MN0608-27 side of its business, an additional solicitor is required for the €60 - 70K + Bonus & Benefits Dublin office. Multi-jurisdictional experience in Share Opportunity to join a leading team and work on a wide variety Purchase Agreements, Agency agreements and Joint Ventures of Banking and Financial issues. Advising both domestic and will be a distinct advantage. international corporations, you must have a background in Securitisation, Structured Finance and Cross Border/Domestic LEINSTER/MUNSTER ROLES leasing to be considered for the role. Meghen Group is currently enjoying several successful placements with firms in Co. Waterford, Co. Cork, Co. Meath Pension Solicitor - MN0609-26 and Co. Galway. We are presently working on several roles in € Neg + Bonus & Benefits Leinster and Munster counties. If you are seeking to relocate Good all round pension experience is required for this role. or wish to learn of current market salaries relating to your Duties will include drafting, corporate support in transactions level of qualification and area of expertise, please do not and possibly some litigation. Tax experience is not essential hesitate to contact us. but the successful candidate must be able to advise on all aspects of Pensions issues. This is an excellent firm to develop a career with.
Your details will not be forwarded to any third party without your prior consent Contact Michelle Nolan on T: (01) 4339016 - F: (01) 4339090 E: [email protected] 97 Lower Baggot Street, Dublin 2.
www.meghengroup.com
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It’s all about Laurence Simons Legal Manager In-house Legal Advisor Dublin €120K plus Dublin €70k plus This international financial services organisation seeks a legal Leading financial services organisation, requires an associate manager for their institutional and investments division. You solicitor to join its legal and compliance team. You will be will manage an existing team of financial services lawyers and responsible for all legal matters affecting the bank and act as take responsibility for all legal issues. International experience a solicitor to the bank and its subsidiaries. The role will include of legal and regulatory issues affecting asset managers drafting and reviewing contracts of all kinds between the operating cross border is required. Exposure to the legal bank and other parties, dealing with high-profile litigation cases issues associated with international investing an advantage. and ensuring regulatory and compliance of new and existing Ref: 14065. Contact Portia White. products and procedures. Ref: 15068. Contact Portia White. Professional Support Lawyer Commercial Property lawyer Dublin €60k plus Cork €65k plus An excellent opportunity for a lawyer to provide professional Leading firm in Cork require an associate solicitor to join an services to fee earners in a leading law firm. This will suit expanding and progressive team. You will have an in depth either an existing professional support lawyer or an associate knowledge of all areas of property law, including development, banking lawyer seeking a change from transactional work. investments and leasing. You will have strong drafting and You will provide the full range of precedent update and negotiating skills. The successful candidate will have a internal training. Knowledge management is a key aspect in commercial approach and the ability to work to tight this role. Ref: 14668. Contact Portia White. deadlines. Ref: 13454. Contact Portia White. Newly Qualified Corp / Commercial Solicitor Property Dublin €Excellent terms on offer Dublin €Negotiable Our client a top 10 firm with a strong domestic & A leading niche practice wishes to appoint a commercial international focus is looking to recruit a commercial lawyer property partner to grow and develop this unit. You will have for this team based role. You will have experience in one experience in residential and commercial development, or more of the following; mergers and acquisitions, venture leases, tax, lending & landlord and tenant. Excellent capital, joint ventures, privatisations and flotations. remuneration packages on offer with genuine opportunities Ref: 14840. Contact Sharon Swan. for career development. Ref: 99984. Contact Sharon Swan. Litigation - Insolvency Pharmaceutical Dublin €Excellent Dublin €Excellent terms & benefits Due to the continued growth of this global international law firm Our client is a leading pharmaceutical company with a global an exciting opportunity exists for a junior litigation lawyer. Previous presence headquartered in London. The Dublin office is well exposure to insolvency and restructuring would be an advantage. established and are now seeking an in-house lawyer to join the Outstanding opportunity to join a firm renowned for its team. You will have corporate experience from a leading firm understanding of cross border and multi jurisdictional work and or in-house entity. Prior exposure to Life Sciences work would for its commercial focus. Ref: 14498. Contact Sharon Swan. be a distinct advantage. Ref: 15379. Contact Sharon Swan. Employment Lawyer NQ Banking/financial services lawyer Dublin €Negotiable Dublin €50k plus Our client a leading firm based in the city centre is looking Leading medium size firm, requires a newly qualified lawyer to recruit an employment lawyer. You will work with national to join its banking/financial services department. The firm act & multinational clients on both contentious and non in many of Ireland’s leading domestic banks and financial contentious matters. Experience before tribunals and the services firms. If you have strong academics and want to EAT would be highly beneficial. pursue your career with a leading practice this is an Ref: 11313.Contact Sharon Swan. exceptional opportunity. Ref: 13764. Contact Portia White.
Sharon Swan Tel: +353 (0) 1 477 3066 email: [email protected] Portia White Tel: +353 (0) 1 477 3063 email: [email protected]
Harcourt Centre, Harcourt Road, Dublin. 2 Tel: +353 (0) 1 402 9400 Fax: +353 (0) 1 402 9590 Search for positions online at www.laurencesimons.com
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