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MAGAZINE OF THE YEAR BUSINESS TO BUSINESS €3.75 aug/Sept 2011 iba comes to town to comes iba Dublin IBA visits The its annual of in advance next year conference Give us this day this us Give must pressures Economic crush to allowed be not protection rights human

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Long-lost son Long-lost a story of emotive The to find quest mother’s son her adopted Law Society GazetteGazette Law

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*Falls outside the 48Hrs promise. Terms & conditions apply, visit www.48hours.ie for details Call us on 1800 48 00 48 [email protected] www.48hours.ie Law Society Gazette www.gazette.ie Aug/Sept 2011 president’s message 1 people’s welfare is paramount law

“Salus populi suprema lex esto” – “Let the welfare of the detail, of the Society’s views people be the paramount law” on these matters. Further submissions are planned for n this theme of Cicero’s, I warmly welcome the early September. appointment of our new Chief Justice, Susan Denham. OShe will preside over our Supreme Court, which is New regulations approved the ultimate guardian of the legal rights of our citizens. She is On 15 July, the Law Society extremely well qualified in every way for the role and, on behalf Council approved new of the solicitors’ profession, I wish her every success in her regulations for the next new office. I also welcome and support her call for a Judicial professional indemnity Council and a Court of Appeal. insurance (PII) renewal on On her appointment, the Chief Justice said that the judiciary 1 December 2011. The had never opposed the holding of a referendum on judges’ pay. improvements include a She also mentioned that “Judges are very aware of the current common proposal form and a crisis as the effects of the financial storm come before our ‘special purpose fund’ to pay courts every day.” for run-off cover for firms Minister for Justice Alan Shatter has published proposals that meet certain criteria. “With these and other aimed at helping people to emerge from bankruptcy with a Insurers would recover changes in the PII Personal Insolvency Bill promised for next year. Hopefully this the costs of providing this can be fast-tracked when published. The Courts Service Annual run-off cover through the renewal process, it is Report 2010 reported a 71% increase in bankruptcies, and an general premia collected hoped that the next 11% increase in orders for possession in the High Court. from firms in practice. It is also intended that proposal renewal will be less Special general meeting forms would issue by the end painful, in every way, In relation to Law Society matters, I would like to thank all of August/early September, colleagues who attended and contributed at a packed special and quotations would remain than last year” general meeting on 30 June. The meeting began by discussing open for a period of at least the giving of undertakings by solicitors to financial institutions five working days. A prohibition would also be placed on in residential conveyancing. This was followed by a debate on qualified insurers asking firms for the premium level paid the the issues arising from solicitors acting on more than one side previous year. With these and other changes in the PII renewal in a conveyancing transaction. There were many contributors process, it is hoped that the next renewal will be less painful, in on both topics expressing a variety of views, which will be every way, than last year. forwarded to the two task forces deliberating on these issues at In relation to seminars, I initiated and helped to organise present. two separate fora for sole practitioners. In total, nearly 300 On 11 June, accompanied by director general Ken Murphy attended. I would, in particular, like to thank Attracta O’Regan and senior vice-president Donald Binchy, I met Minister of the Law School for her assistance in helping to make these Alan Shatter and three of his officials for over an hour to events so successful. discuss the proposed Legal Services Bill to be published at Finally, I am reminded of the words of Benjamin Sells in the end of September. We reiterated the position of the his book Order of the Court, where he says: “Around all the Society in relation to costs and regulation, as set out in the lawyer-bashing directed at the legal profession, perhaps the responses of the Law Society to the Competition Authority most hurtful is the charge that lawyers don’t stand for anything report, the Legal Costs Working Group and the Legal Costs anymore, but are only amoral tools, rudderless ships of Implementation Advisory Group a number of years ago. The advocacy… I want to say it is one thing to know about the law meeting was very useful and constructive and conducted in and another thing to become a lawyer, which I take to be a state an open and friendly atmosphere throughout. The Society of being and not only doing. I want being a lawyer to mean was asked to make further submissions and the director something.” general has, since then, met with officials to inform them, in We should remember these words in our daily practices. G

John Costello President 2 contents Law Society Gazette www.gazette.ie Aug/Sept 2011

Law Society Gazette Volume 105, number 7 Subscriptions: €57

Editor: Mark McDermott FIIC Deputy editor: Dr Garrett O’Boyle Designer: Nuala Redmond Society Law Editorial secretaries: Catherine Kearney, GazetteGazette Valerie Farrell

Commercial advertising: Seán Ó hOisín, tel: 086 811 7116, RegularS email: [email protected] 1 President’s message 55 One to watch: District Court (Civil For professional notice rates (wills, title deeds, Partnership and Cohabitation) Rules 2011 employment, miscellaneous), see page 66. 4 News 56 Regulation: Solicitors Disciplinary Tribunal; order of the High Court Published at Blackhall Place, Dublin 7, tel: 01 672 4828, fax: 01 672 4877. 14 Analysis 60 Justis update Email: [email protected] 14 News feature: The case of a mother’s 62 Eurlegal: Europe’s great save for TV Website: www.gazette.ie quest to find her adopted son football; recent developments in european law Printing: Turner’s Printing Company Ltd, 16 News feature: The Fourth Report to the Longford Oireachtas on Child Protection 18 Human rights watch: National report on 66 Professional notices Editorial board: Michael Kealey (chairman), domestic human rights record Mark McDermott (secretary), Mairéad Cashman, 70 Recruitment advertising Paul Egan, Richard Hammond, Mary Keane, 20 Comment Aisling Kelly, Tracy Lyne, Patrick J McGonagle, 72 Captain’s blawg Ken Murphy, Andrew Sheridan 20 Letters 22 Viewpoint: Economic pressures must not The Law Society of Ireland can accept be allowed to crush human rights protection no responsibility for the accuracy of contributed articles or statements appearing in this magazine, and any views or opinions 45 People and places expressed are not necessarily those of the Law Society’s Council, save where otherwise 49 Obituary indicated. No responsibility for loss or distress James J Ivers occasioned to any person acting or refraining from acting as a result of the material in 50 Books this publication can be accepted by the 50 Book reviews: Equity and the Law of authors, contributors, editor or publishers. The editor reserves the right to make publishing Trusts in Ireland, Criminal Legislation in decisions on any advertisement or editorial Ireland and Corporate Crime article submitted to this magazine, and to 51 Reading room: E-resource packs on refuse publication or to edit any editorial popular legal topics material as seems appropriate to him. Professional legal advice should always be 52 Briefing sought in relation to any specific matter. 52 Practice notes 54 Legislation update: 10 June – 22 July 21 FSC independently certified wood and paper products used by the Law Society Gazette come from ecologically managed forests. Visit: www.fsc.org

PEFC certifies that wood and paper products used by the Law Society Gazette are sourced by suppliers from sustainable, managed forests. Visit: www.pefc.org

The Law Society Gazette is a full participating member of the Press Council of Ireland and M supports the Office of the Press Ombudsman. R e s c ne This scheme, in addition to defending the free- ycl azi e Mag dom of the press, offers readers a quick, fair and free method of dealing with complaints that they may have in relation to articles that appear on our pages. To contact the Office of the Press Ombudsman go to: www.pressom- budsman.ie or www.presscouncil.ie. 46 47 Law Society Gazette www.gazette.ie Aug/Sept 2011 contents 3

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iba comes to town The IBA visits Dublin Give us this day in advance of its annual Economic pressures must conference next year Law Society Gazette • Vol 105 No 7 Long-lost son not be allowed to crush The emotive story of a human rights protection mother’s quest to find her adopted son

€3.75 aug/Sept 2011 Law Society Law GazetteGazette cover story

aUG/SePt 2011 24 Cucumber wars The German STEC 104 outbreak has shown that the possibility of a small, well-managed cUcUmber warS: food-producing unit single-handedly triggering

Law Society of ireland the law on tortious liability

BUSINESS TO BUSINESS for unsafe food MAGAZINE OF THE YEAR 25/08/2011 12:25 a deadly pan-European public health incident is

cover aug try3.indd 1 not confined to the imaginations of Hollywood scriptwriters. John McCarthy tickles his tastebuds features 36 28 Nine tenths of the law? 36 Restoration drama A recent judgment has highlighted a Close to 5,000 companies are being legal lacuna that means that lenders struck off the Register of Companies will not be able to apply for an order each year. Depending on the nature of repossession for the majority of of the strike-off, it is possible for their mortgages that are in default companies to reapply to be restored to until new legislation is introduced. the Register. Brian Moloney assesses Gregory McLucas explains their chances 32 Cause and effect 40 Love me tender It is easy to place the blame for the Legal services of at least €500 million PII crisis solely on the solicitors’ are tendered annually. It’s becoming profession. However, there are increasingly difficult to secure this many complex factors that created business, however, due to the amount an environment that fostered these of competition out there. Sheena claims, says Anne Neary Lowey returns to sender 16

HOW TO REACH US: Law Society Gazette, Blackhall Place, Dublin 7. Get more at lawsociety.ie Tel: 01 672 4828, fax: 01 672 4877, email: [email protected] Gazette readers can access back issues of the magazine as far back as Jan/Feb 1997, right up PROFESSIONAL notices: send small advert details, with payment, to: Gazette to the current issue at lawsociety.ie. Office, Blackhall Place, Dublin 7, tel: 01 672 4828, or email: [email protected]. You can also check out: All cheques should be made payable to: Law Society of Ireland. • Current news • Forthcoming events, including an arbitration COMMERCIAL ADVERTISING: contact Seán Ó hOisín, 10 Arran Road, Dublin 9, award writing and costs seminar at Blackhall tel: 01 837 5018, fax: 884 4626, mobile: 086 811 7116, email: [email protected] Place on 26 September HAVE YOU MOVED? Members of the profession should send change-of-address details to: • Employment opportunities • The latest CPD courses IT Section, Blackhall Place, Dublin 7, or to: [email protected] … as well as lots of other useful information 4 NEWS Law Society Gazette www.gazette.ie Aug/Sept 2011 Nationwide Compiled by Kevin O’Higgins

Kevin O’Higgins is junior vice- Recession-busting October seminar president of the monaghan Law Society and has been a The Monaghan Bar Association is licensing trade. • 11.30am – 12.15pm: Sheena Council member organising a CPD day on Friday • 9.45am – 10.30am: Linda Kirwan Lowey (consultant in since 1998 14 October 2011, to take place at (solicitor and member of the marketing and public and the Glencarn Hotel, Castleblayney, Law Society’s Complaints and private-sector procurement), Co Monaghan. Seven CPD Client Relations Committee), on on tendering for public and points – the maximum allowable updated Solicitors Regulations on private legal services contracts. State-of-the- in one day – will be available. An complaints, and how to deal with • 12.15pm – 1pm: Eileen impressive line-up of speakers has complaints. Creedon (chief prosecution profession been organised, with the cost of • 10.45am – 11.30am: Seamus solicitor, Office of the Director the day being €70. Certificates of McGrath (chief investigating of Public Prosecutions), on survey attendance will be provided at the officer, Law Society), on Law the workings and role of the dublin end of the day. The schedule is as Society perspective on the Office of the Director of Public follows: Solicitors’ Accounts Regulations, Prosecutions. An s i recent years, this year has • 9am – 9.45am: Constance the risk and critical areas, • 1.45pm – 2.30pm: Evan been challenging for the majority Cassidy SC on the impact of interaction between the Law O’Dwyer (solicitor, Crean of our members. the Intoxicating Liquor Act Society and the reporting O’Cleirigh & O’Dwyer As practising solicitors, the 2008 upon practitioners in the accountant. Solicitors), on District Court council of the Dublin Solicitors’ litigation and advocacy – recent Bar Association (DSBA) is fully developments in drink-driving aware of the difficulties facing law. colleagues but is conscious that Waterford Law Society in • 2.30pm – 3.30pm: Mairead the reports it receives may not Ahern (county registrar for Co be fully representative of the shipshape condition Louth) and Joe Smyth (county difficulties being faced by its registrar for Co Cavan), on members. w aTERFORD practical advice on taxing legal

It wants to obtain a more P costs, probate applications and ic

precise picture of where the : G case progression. profession is in 2011, to identify arrett • 3.45pm – 4.30pm: Michael and understand the problems Staines (solicitor, Dublin), F

facing it, and enable the DSBA to it on advising clients in custody zG

help address the problems and erald and recent developments in provide the best service it can to criminal litigation. P

members. hotography • 4.30 – 5.15pm: Stuart Gilhooly To this end, the association (HJ Ward & Co Solicitors and has commissioned a survey, president of the DSBA), on the which has been sent out to many state of the legal profession. members. The response rate has • 5.15pm – 6pm: Mr Justice John been excellent and the results are O’Hagan on family law – what currently being calibrated and will practitioners need to know be disseminated later. when advocating in the Circuit The tennis event held in Court. beautiful sunshine in late July was a resounding success, with over At the Waterford Law Society ‘Tall Ships’ reception on board the Wylde The bar association is 40 participants of all ages and Swan on 30 June 2011 were (l to r): Mairead O’Herlihy, Mary (Wyley) organising a dinner afterwards O’Herlihy, Gerard O’Herlihy (president of the Waterford Law Society), varied ability. Great credit is due, Myles O’Connor and Pearl O’Connor as part of a social evening, with as always, to John O’Malley for complimentary entrance included organising the event. Waterford Law Society held Tall Ships event, which attracted into the country-and-western Another PII forum will take an evening reception aboard 500,000 people to the city. night in the Glencarn Hotel. The place shortly in readiness for the the Wylde Swan tall ship in Guests included Judges Olive price is a recession-busting €40. renewal process – members will Waterford on 30 June 2011. Buttimer and Alice Doyle of the Golf has been organised be notified of this in due course. Members and guests mingled on Circuit Court. Retired District for Saturday morning in the The traditional lunch held to board and later moved quayside Judge Bill Harnett also attended, renowned Concra Wood Golf honour our senior colleagues who to the Granville Hotel for food, and Waterford’s solicitors made Club in Castleblayney, where qualified over 50 years ago will beverages and music. Waterford a presentation to him marking his the contact is Seamus Mallon of take place in early October. We solicitors helped sponsor the long association with the city. Mallon Solicitors. Seamus can be look forward to it! contacted at 042 974 0293. G Law Society Gazette www.gazette.ie Aug/Sept 2011 news 5

Diary date In News this month... Expressions Te Ah ninth nnual Human Rights of interest Conference, organised by the Irish 7 Eu law back on Society’s 9 Major hike in courts fees Human Rights Commission and Law diploma programme 9 Outlaws: Life outside legal practice The Minister for Justice and Society of Ireland, will be held from 7 Conveyancing Conflicts 12 The IBA visits Dublin in advance of Equality, Alan Shatter, is seeking 10am – 2.30pm on Saturday, 22 Task Force its annual conference next year expressions of interest from October 2011 in the Presidents’ suitably qualified members of the Hall, Law Society, Blackhall Place, public to apply to be considered Dublin 7. To register your interest in for appointment as Ireland’s attending, contact Anthea Moore, tel: representatives on two Council of 01 672 4961; or email: a.moore@ New Chief Justice appointed Europe bodies. lawsociety.ie. The organisations in question are the European Commission against Racism and Intolerance (ECRI) and the Council of Europe Committee Sligo officers for the Prevention of Torture and At a recent AGM of Sligo Bar Inhuman or Degrading Treatment or Association, the following were Punishment (CPT). appointed to office: Maurice Further details on eligibility Galvin (president), Deirdre criteria and how to apply are Munnelly (secretary) and Laura available at www.justice.ie/en/ Spellman (public relations officer). JELR/Pages/CPTVacancy (for the CPT vacancy); and www.justice. ie/en/JELR/Pages/ECRIVacancy (for the ECRI vacancy), or at www. John Costello publicjobs.ie. is on Parole Te Ch new hief Justice of Ireland, Mrs the time had now come to develop New partner at Justice Susan Denham, was officially a Judicial Council in Ireland – to appointed by President Mary support the judiciary in their Beauchamps McAleese at a special ceremony on difficult task, while providing 25 July 2011. assurance to the public that all Mrs Justice Susan Denham was judges maintain their traditional educated at Alexandra College, high judicial standards. Dublin; Trinity College Dublin; King’s The Law Society Director Inns; and Columbia University, General, Ken Murphy, has had New York. She was called to the an opportunity to observe Judge Bar in 1971 and became a senior Denham’s vision, judgement and counsel in 1987. As a barrister, she consensus-building skills over the practised on the Midland Circuit and years, having served on two major Law Society President John in Dublin, specialising in judicial working groups which she chaired. Costello has received the very review cases. In a media comment on the day of considerable honour of being She was appointed a judge of the Government’s announcement, he appointed chairperson of the the High Court in 1991. In said: “She is an ideal appointment Parole Board. December 1992, she was the first with all of the personal and Announcing the appointment woman appointed a judge of the professional qualities that will be on 26 July 2011, the Minister for Supreme Court. required of the Chief Justice in the Beauchamps Solicitors has Justice Alan Shatter said that Mr In a statement issued the same difficult times ahead, both for the appointed John White to the Costello would “bring a wealth of day, Mrs Justice Denham said that judiciary and for the country.” role of managing partner. John experience and understanding to succeeds Shaun O’Shea, who what is a challenging role”. returns to the position of a full- “The board currently operates time partner in the corporate and as a non-statutory agency. It is Wheatfield correspondence commercial department. my intention to enact legislation Wheatfield Prison authorities have In order to secure greater John joined the firm in 1997 to place the board on a statutory advised the Society that they believe efficiencies in operating as a trainee and has been the footing,” the minister continued. there is a degree of duplication in procedures, the prison head of Beauchamps corporate The minister also took the the correspondence being received authorities have said that, from and commercial department opportunity to pay tribute to at the prison, due to solicitors first now on, they will only respond since 2007. His practice areas the solicitor who had previously faxing a letter/enquiry and then to faxed correspondence if the include mergers and acquisitions, chaired the board, the late following up by sending the same issue requires an immediate (that corporate finance, insolvency Gordon Holmes. letter/enquiry by post. is, same day) response. and corporate recovery. YOUR IDEAL COMPANION CrImInal proCedure In the dIstrICt Court

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ROUND HALL Law Society Gazette www.gazette.ie Aug/Sept 2011 news 7 Dip into European Union law After an absence of a number substantive rules, the procedural implementation of EU law will of years, the study of European obligations on national courts, also be dealt with. Union law sees a welcome state bodies and administrative This course is offered in return to the Law Society’s authorities to ensure the effective collaboration with the Irish diploma programme. This Centre for European Law diploma has been totally (ICEL). A 10% discount (€2,400 reworked, and areas as diverse full fee) applies to applications as employment law, family received from ICEL members. law, environment, planning, Non-ICEL members attending Practice criminal law, immigration and the course will be provided with asylum, competition, consumer membership of ICEL for the advice protection, intellectual property, duration of the course and can social security and taxation are all avail of the full range of benefits A practice advisory service was covered in this revamped version. that apply (see www.icel.ie). launched in 2009 by the Law Society The diploma will assist The diploma starts on 22 to assist practices in coping with practitioners to identify, October at Blackhall Place, the recession. Open to all firms understand and interpret EU but will be webcast weekly to in Ireland, the service provides a law issues arising in the course accommodate those living and different focus for start-up firms of their practice – both in the working outside Dublin. compared with existing practices. public and the private sector. EU For full details, visit www. Start-up firms are automatically law is a dynamic, fast-evolving lawsociety.ie/diplomas or contact notified of the availability of and continuously expanding a member of the diploma team the service on registration. The area of law. In addition to on [email protected]. service is provided on a single-firm basis, the objective being to make sessions as relevant as possible to individual practices in a confidential Conveyancing conflicts – consultation environment. TeLw h a Society has set up the and regulations, see the news item Responses should be sent to: The practice advisory service for Conveyancing Conflicts Task Force, on this topic in the members’ area ConveyancingConflictsTF@ existing firms takes the format of under an independent chairperson, at www.lawsociety.ie, where links lawsociety.ie and should reach a four-hour confidential meeting, Catherine Treacy, to review the are provided to the following: the task force on or before 30 covering regulatory and compliance existing guidelines and regulations • Paragraphs 3.1 to 3.3 of the September 2011. issues; financial performance and relating to solicitors acting for current Guide to Professional For practitioners who have financial benchmarking; a review both vendor and purchaser in Conduct of Solicitors in Ireland already sent submissions or for potential improvement; cash-flow conveyancing transactions, including regarding conflicts in property observations in response to the management; and strategic direction voluntary transactions. transactions, earlier Law Society e-bulletin in and the options available to the On behalf of the Law Society, • SI no 85/1997 – the statutory June on this topic, please note practice. the task force welcomes any ban on acting for developer and that no further action is required, The service costs €250 all in observations, comments or purchaser of a new dwelling, as these earlier submissions will to existing practices (no VAT or submissions relevant to this issue that • SI no 366/2010 – the statutory be included in the task force’s outlays are payable) and €150 to practitioners would like to make in ban on acting for a borrower and discussion of the issue. firms established within the last order to assist it in its deliberations. a lender in the same commercial The task force looks forward to six months. To check the existing guidelines property transaction. hearing your views. This low-cost service is delivered in strictest confidence between Outsource and the practitioner and 2 0 1 1 · V O L U M E 1 0 is financially supported by the Law HLJ celebrates 10th volume Society. In 1999, long before anyone had with another anthology of L A W J O U R N A L

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ISo27001:2005 1 890 222 587 keepitSafe is ireland’s only certified iSo 27001 backup company. www.keepitsafe.ie Tel: 01-8610700 PDLcourses.ie Law Society Gazette www.gazette.ie Aug/Sept 2011 news 9 Courts Service announces outlaws major hike in courts fees Life outside legal practice SARAH qualified at the Bar she pursued KEANE the in-house counsel route. Swim Little did she realise that, Ireland a decade later, she would be Former heading to the Rugby World Cup international in New Zealand as general counsel swimmer, for the tournament and the water polo International Rugby Board. player and “I never knew it was possible to solicitor, Sarah Keane, is now be a sports lawyer until I actually Chief Executive Officer of Swim became one,” she says. “In those Ireland. ten years, I have been reminded The Courts Service has provided from €11 to €23 (plus 109%), Sarah first swam competitively regularly of how fortunate I am the Law Society with a summary • Power of attorney search – at the age of 11. She enjoyed to be doing a job that I love, and of increases in certain courts fees increased from €6 to €23 (plus great success during her teens which is never, ever dull.” that came into effect on 22 August 283%), and got more and more involved Susan is also a member of 2011. The document details the • Certificate under admiralty in the sport. While in UCD, she the executive committee of the scale of the increases and is bound (order 64, rule 46(9)) – increased spent one year on a swimming Olympic Council of Ireland and a to raise eyebrows among members from €40 to €52 (plus 30%), scholarship in the USA. board member of the Irish Sports of the profession. Increases are • Filing an intention to show cause After college, while training Council. across the board and range from re bankruptcy – increased from in Matheson Ormsby Prentice, anything between plus 8.3% to €40 to €52 (plus 30%), she moved out of competitive MARGARET plus 455.5%. (No, that’s not a • On lodging a notice of motion swimming and took up water polo BYRNE misprint!) or notice of appeal under the and sea swimming. Sunderland In a letter from the Courts Solicitors Acts – increased from In 2004, she was appointed AFC Service, head of the Resource €100 to €130 (plus 30%), the first ever Chief Executive Irish solicitor Management Directorate Sean • On the issue of certification of Officer of Swim Ireland, which is Margaret Quigley stated that the last fees taxation – increased from €55 to the governing body for swimming, Byrne was review came into effect in August €68 (plus 23.6%). water polo, diving and associated appointed 2008. “The Courts Service has aquatic disciplines. The organ- CEO of recently completed a further Circuit Court: isation is led by a voluntary Sunderland AFC in July of this comprehensive review of courts • Copy of any document – flat rate board, supported by a staff of 18, year. She was also shortlisted for fees, the focus of which has been increase from €5 to €15 (plus and has over 12,000 members. Britain’s prestigious ‘Solicitor of the harmonisation of fee amounts 200%), Sarah’s favourite work is the Year’ award late last year. across jurisdictions, and general • Ex parte applications, unless on projects that have a long- Margaret has been fee increases.” The increases are specifically provided for – term and sustainable impact, instrumental in the acquisition summarised below. increased from €60 to €68 (plus benefiting the sport and the Irish and sale of players and in 13%), swimming community. contract negotiations since her Supreme Court: • Summons to tax – increased from appointment as Sunderland’s • Notice of motion – increased €50 to €68 (plus 36%), SUSAN legal director and club secretary from €40 to €62 (plus 55%). • Every judgment by default AHERN in January 2007. She also sits on entered – increased from €85 to International the Premier League’s expert Legal High Court: €120 (plus 41%). Rugby Board Advisory Group. • Notice of motion – increased Having Sunderland chairman Niall from €40 to €60 (plus 50%), District Court: studied law Quinn says: “Margaret has been • Notice of appeal from the • Copy of an information, order, in Trinity a true driving force at the club Master – increased from €40 to signed entry or any other College and since her appointment here more €60 (plus 50%), document – flat rate increase obtaining than four years ago, and the • Notice of appeal for Circuit from €10 to €15 (plus 50%), an LLM from Queen’s University, fact that the club has gone from Court to High Court – • Removal of disqualification order Susan’s first workforce venture strength to strength, on and off increased from €55 to €68 (plus – increased from €20 to €52 was as a corporate banker. the pitch in that period, is no 23.6%), (plus 160%), Simultaneously, she was playing coincidence. • Setting down an action for trial • Application for order under volleyball at an international “She has enormous passion – increased from €120 to €130 section 10 of the Intoxicating level and subsequently took up for our football club and, as its (plus 8.3%), Liquor Act 1962 – increased from the position of president of the CEO, she will continue with the • On entering a judgment – €135 to €750 (plus 455.5%), Volleyball Association of Ireland. fantastic work that has gone increased from €30 to €60 (plus • Small claims application – The draw of the law remained before, and will play a key role as 100%), increased from €15 to €18 strong, however, and when Susan the club continues to grow.” • All memorandums – increased (plus 20%). 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lawyers, going places Tel Email Please return to: Dogs Trust, Canine Care Card, Freepost 4578, Ashbourne Road, Finglas, Dublin 11. Or call us on: 01 879 1004 www.dogstrust.ie Or email us at: [email protected] Reg. Charity No: CHY 16218 Law SG      

            

Law Society Gazette www.gazette.ie Aug/Sept 2011 representation 11 n ewS from the law society’s committees and task forces New SIs on civil partnership and cohabitation family law committee

The Family Law Committee proceedings relating to civil amendments to orders 79 and wishes to draw the attention of partnerships and cohabitation. 80. practitioners to recent statutory The rules also contain a In addition, the new rules instruments relating to civil schedule of forms to be used insert an additional appendix, payments, and the Hague partnership and cohabitation and in connection with any such following appendix HH, to the Convention in relation to the certain international conventions. proceedings, including precedent existing rules as per schedule 2 jurisdiction, applicable law, The Circuit Court Rules and Civil Partnership and Cohabitation of the 2011 rules, which includes enforcement and cooperation in Superior Court Rules have been Civil Bills, affidavit of means and precedent forms to be used in respect of parental responsibility amended to deal with the statement as to earnings. civil partnership or cohabitation and the protection of children. implementation of the recent Similar additions to the proceedings. The relevant District Court civil partnership and cohabitation Superior Court Rules have also The District Court Rules forms are scheduled to be rules, legislation. The Circuit Court been introduced by the Rules (Hague Convention 1996) 2011 which came into operation Rules (Civil Partnership and of the Superior Courts (Civil (SI no 301 of 2011) relate to the on 18 July 2011. New Circuit Cohabitation) 2011 (SI no 385 of Partnership and Cohabitation) 2011 Hague and other conventions in Court Rules in relation to the 2011) came into operation on 13 (SI no 348 of 2011). These came relation to the jurisdiction and Hague Convention also came into August 2011. into operation on 31 July 2011. enforcement of judgments in operation on 18 April 2011, and The new rules insert an The existing Superior Court Rules civil and commercial matters, these are cited as Circuit Court additional order 59A into the are amended by the insertion of various conventions in relation Rules (Hague Convention 1996) Circuit Court Rules to deal with a new order 70A and by certain to the recovery of maintenance 2011 (SI no 121 of 2011).

Health In-house solicitors’Support  panel discussion set for September in-house and public sector committee and Advice  A panel discussion for in- and knowledge required in these outline of the various legal Association of Ireland), and Sarah house solicitors and solicitorsfor roles, and provide an insight issues encountered, Keane (chief executive at Swim considering an in-house role into some of the challenges • Making the transfer from law Ireland). will take place on 8 SeptemberLawyers presented by the transition from to business in a sport setting, Round-table discussions will 2011 from 4pm – 6pm at a traditional legal career to the the application of legal skills to provide an excellent opportunity Blackhall Place, Dublin 7, writes sports sector, focusing on: a commercial situation, and the for in-house solicitors to share Louise Campbell (support services • An outline of the ‘business of challenges of working with a their views and make contacts executive). sport’, key facts relating to voluntary body. among colleagues. Entitled ‘Three lawyers in the sector, and the increased Full details of the panel Irish sport’, the discussion aims interaction between law and Speakers will include Sarah discussion, including the  to provide an insight into three sport, O’Connor (chief executive at the booking form, are available on very interesting legal career paths • The day-to-day practicalities Federation of Irish Sports), Sarah the In-house and Public Sector in the world of Irish sport. It and challenges of an in-house O’Shea (director of legal and Committee’s section of the will outline the skills, experience lawyer in sport, including an disciplinary affairs at the Football website, www.lawsociety.ie.      12 news Law Society Gazette www.gazette.ie Aug/Sept 2011 Taoiseach and minister welcome IBA leaders to Dublin Both Taoiseach Enda Kenny and Justice Minister Alan Shatter gave very generously of their time in separate meetings recently to welcome the President of the International Bar Association, Akira Kawamura, to Dublin. In October 2012, the IBA is bringing to Dublin the biggest annual legal conference in the world. Some 5,000 delegates from all over the globe, with a further 2,500 or so accompanying people, will be participating for a week in a conference whose value to the Irish economy has been estimated at up to €20 million. Irish lawyers will be welcome to participate in the conference. In doing so, they can meet their Minister for Justice Alan Shatter welcomes IBA Vice-President Michael Reynolds and other visitors to his office in counterparts – in general practice Leinster House for a briefing on the 5,000 delegate 2012 IBA Annual Conference and in a great many different specialisms – from all over the Allen & Overy. The meeting was world. The IBA has been described coordinated by Irish solicitor, as the ‘global voice of the legal Michael Greene, who is vice- profession’. It was established in chair of the IBA’s Legal Practice 1947 and represents, directly or Division. Michael is a consultant indirectly, many millions of lawyers with, and former chairman of, in 197 jurisdictions around the A&L Goodbody. world. The only previous year in which it held its annual conference Intense rivalry in Ireland was 1968. Competition is keen when it Akira Kawamura, who is comes to hosting the IBA’s annual Japanese, is in the first year of his meeting. Indeed, many have two-year presidential term. He compared it to the rivalry that was accompanied to Dublin by surrounds the hosting of the the IBA vice-president, Michael Olympic Games. Four years ago, in Reynolds, who is English and a Singapore, a campaign by the Law partner in the global law firm, Taoiseach Enda Kenny greets IBA President Akira Kawamura Society and the Bar Council beat off opposition from many other major cities to secure the 2012 Annual Conference for Dublin. Although 26 July was an exceptionally busy day for the Taoiseach – it was the day of the final Cabinet meeting before the summer break – Enda Kenny responded very supportively to the Law Society’s direct request to him to meet these important international visitors. What was initially promised as a courtesy call and photo opportunity turned into the honour of a meeting in the Taoiseach’s office for the better part of half an hour. Enda Kenny showed great interest in, among many other things, the extremely positive view that the IBA leaders Front (l to r): Geraldine Clarke, Minister for Justice Alan Shatter, IBA President Akira Kawamura, IBA Vice-President Michael had of the facilities in Dublin’s Reynolds and Tim Hughes. Back (l to r): Host committee members Ken Murphy, Michael Greene and John F Buckley new Convention Centre. Law Society Gazette www.gazette.ie Aug/Sept 2011 NEWS 13

The Taoiseach is briefed about the 2012 IBA Annual Conference, which will be worth an estimated €20 million to the Irish economy

The Taoiseach was particularly impressed that President Kawamura was travelling from his home in Tokyo to Dublin and back, in the space of 24 hours, simply to undertake this visit to the site of the 2012 IBA conference. For his part, the Taoiseach readily agreed to deliver an opening address at the conference next year.

Unexpected encounter As the delegation departed the Taoiseach’s office, they met the Taoiseach’s next visitor, the Rever- end Ian Paisley, who was introduced by the Taoiseach to a rather bemused President Kawamura. Michael Greene is introduced to Taoiseach Enda Kenny by Law Society director general Ken Murphy

The entourage then headed on a tour of Leinster House before round to the Leinster House he had to leave to take a stage office of the Minister for Justice of the Civil Law (Miscellaneous and Equality, Alan Shatter, who Provisions) Bill through the Seanad. met them, together with some Following their visits to of the other Irish lawyers on the Government Buildings and IBA host committee. Minister Leinster House, the IBA leaders Shatter was also very interested were guests at a reception hosted in, and warmly supportive of, the by the Bar Council in the King’s conference. Indeed, when he heard Inns. of its potential value to the Irish Later the same evening, Law economy, he invited the IBA to Society President John Costello have their annual conference in hosted a dinner for the group in Ireland every year. Blackhall Place. It was, in so far as The minister also gave anyone could recall, the first time particularly generously of his that a president of the International time and insisted on personally Bar Association had been a visitor A handshake of welcome for Tim Hughes (IBA’s deputy executive director) conducting President Kawamura to Blackhall Place. 14 analysis Law Society Gazette www.gazette.ie Aug/Sept 2011

desperately seeking andré

C Fonall Ó átharta won a Justice Media Award this year for his investigation into how, in 1961, a 21-year-old mother gave up her son for adoption – only later to discover that his birth had been falsely registered, there were question marks over his adoption, and that tracing him might well prove impossible. Lorcan Roche brings us up to date

hey say there are two sides antipathy clear: “My father was Irish, circumstances, however, feelings like to every story. In the eyes my mother English. Both Catholic. mine don’t go away.” Tof the law, in particular as it Having the baby, bringing him or her Is her search for André a constant pertains to the case of Treasa Reeves up with them was not an option – this feature? (née Donnelly), whose son she gave was a small village ... they were both “Yes. But it really started to move up to the Dublin-based, religious-run teachers.” into the foreground when I had my adoption agency of St Patrick’s Guild She continues: “We lived opposite own children. I wanted to know that Lorcan Roche is a in 1961, there are three: her story – of a convent where there was a teaching he was all right. If I was feeding one of writer and award- lifelong struggle to overcome what order, and my mum was friends with the my children, I would wonder – is he winning freelance the Irish Examiner termed decades nuns. They had a contact in St Patrick’s being fed properly? On their birthdays, journalist of “religious secrecy and denial”; Guild and so I was shipped off.” I would wonder – is he happy, is he the adoptive parents’ story – one of Treasa is a widow. She lives in being loved? Same at Christmas, the adamant refusal to inform their adopted Cornwall with one of her three beginning of school term.” son of his true origins; and his – a story remaining children (her middle And the long-term effect? “The with no beginning (and possibly no daughter died of cancer) and several of ‘emotional cost’? Well it is pretty end) because, quite simply, the man has her ten grandchildren (one of whom is shabby, is it not? There has been no idea his biological mother has been named after the son she gave up). She despair, and more.” searching for him for more than half a is unerringly polite in that very English Does it make her angry? “Yes.” century. way. Her voice is measured. But the Legally, all three stories hold longer the interview continues, the less First meeting equal validity. All three parties are contained she becomes. Recently, she undertook the journey seen as having equal rights under the Feelings are resurrected. In particular, from Dublin Airport to the city for her Constitution in terms of rights to she explains that when she returns to first meeting with the Adoption Board. privacy and rights to information. But Ireland, and begins the journey from She had been seeking such a meeting sit with 71-year old Treasa Reeves for the airport to the city centre, she cannot for years. It was not an unqualified an afternoon and legal imperatives give help but feel overwhelmed: “My mind success – either from her perspective way to harsh reality – to the plaintive, automatically goes back to 1961. I start or from that of the adoption-loss almost primitive needs of a mother: to remember all the bus stops, the Natural Parents’ Network of Ireland “I want my son to know I exist … sights, and I always get teary.” representative who accompanied her. surely I have that right?” Has she ever given up the search? But neither was it bereft of hope. Treasa grew up in England. When “No. The only time I even It is possible that a new legal she became pregnant by an older man considered giving up was after my opinion, imminent in early September, (a jazz musician), her parents made their husband died. No matter what the will have implications for her case. But,

relevant cases for reeves

Several legal cases pertain. In G v an Bord court agreed) reached the following conclusion: a natural mother’s constitutional rights were Uchtála, Justice CJ O’Higgins pointed out that an “The right to know the identity of one’s natural placed in temporary abeyance at the time of a unmarried mother did enjoy rights under article mother is a basic right flowing from the natural placement for adoption, but were only finally 41 of the Constitution, but that these rights were and special relationship which exists between a extinguished by the making of an adoption order. neither “inalienable nor imprescriptible – they mother and child … the existence of such right However, in N v HSE and Others, the Supreme can be lost if her conduct towards her child is not dependant on the obligation to protect Court held that the placement for adoption did amounts to an abandonment or an abdication of the child’s right to bodily integrity … it is not, not constitute an abandonment of the child by its her rights and duties.” however, an unqualified right … its exercise may natural parents. The rights of an unmarried mother and child in be restricted by the constitutional rights of others Even cursory examination of these cases the context of tracing first came to consideration and by requirements of the common good.” suggests that only a judge is qualified to before the Supreme Court in the case of IOT v In O’C v Sacred Heart Adoption Society, make the final call on what the rights of André B. Hamilton CJ (with whom the majority of the the Supreme Court, per O’Flaherty J, held that Donnelly might be. Law Society Gazette www.gazette.ie Aug/Sept 2011 analysis 15 PIC: SIOBHAN BYRNE

“All I want is for André to know that I exist. Surely I have that right?” as of the time duty and breach of argue that she relinquished her constitutional implications, needs of writing, the her constitutional constitutional rights as a mother to be made by one person only – a information she seeks (which, she rights. The barrister she hired has (which, in the opinion of the judge? insists, she will continue to seek since relinquished the case, but barrister initially charged with Treasa Reeves wants her son to until her dying day, at which point it is important to understand her the case, it might well do, simply be informed, in the presence of an her eldest daughter will take up motivation: “I don’t care about because she failed to seek to independent witness, that his birth the cudgel) remains ‘off limits’. the money – why would I? – but I formally contact her son while cert was falsely registered and that, She questions the constitutionality do care about him.” he was still a ‘child’), then what although she signed consent forms of this – both for her and for her On 14 October 2009, the State about her son’s rights? and gave him up freely, she always son André. She felt that, by giving recognised the birth of André And, equally importantly, who presumed (as was her right) that him an unusual name, it would Donnelly and the fact that Treasa makes the final decision as to she would one day be permitted to make it easier to trace him later was his natural mother. That whether he is informed? The contact him, even just to see if he on – it didn’t, because his name provided her enormous relief, and CEO of the Adoption Society? was doing okay. had been changed to ‘Paddy’ (see a degree of (short-lived) hope: she The case social worker? The “All I want is for André to know panel). was denied any further knowledge Minister for Children? that I exist. Surely I have that In 2004, Treasa Reeves or information. Surely, as is the case in Britain, right?” began proceedings against the However, it has been such a decision, with its sensitive Surely he does, too? G Adoption Society; the Registrar established, despite intimations General of Births, Marriages and to the contrary (there were what is known about andré/‘paddy’ Deaths; Ireland and the AG. The suggestions that information proceedings seek declaratory relief on André was lost), that all The known facts about André/ adopted. The adoptive father was to the effect that she is entitled to files from St Patrick’s Guild ‘Paddy’ are as follows. In 1961, a builder. It has been established all information pertaining to the were photocopied and that the the couple who adopted him that ‘Paddy’ followed his adoptive registration and placement of her information is now held by the were managing a ‘rural’ sub- father into the trade, though he child, and also an order directing Adoption Society. post-office, though the term may, post-recession, no longer be the defendants to furnish such The cases that pertain to Treasa ‘rural’ may well mean a post- thus employed. information to her. She further Reeves and what she’s trying office on the outskirts of ‘Paddy’ has been married since sought an order directing the to achieve raise all manner of Dublin. in or around 1997 and has three Registrar to re-register the birth, constitutional and legal issues. ‘Paddy’ had a brother – also children. as well as damages for breach of But even if a court were to 16 analysis Law Society Gazette www.gazette.ie Aug/Sept 2011

child protection report pulls no punches

The Fourth Report to the Oireachtas on Child Protection was formally presented to the Cabinet in May of this year. So, what’s happening? The Gazette catches up

he most recent report positively focused on translating mental difficulties to be heard, service to cater for the urgent prepared by the Special child protection guidelines and children and the law. It needs of vulnerable homeless TRapporteur to the onto a statutory footing. The also contains a review of child children. There have been calls Oireachtas on Child Protection, Government’s intentions in trafficking and prostitution. for reform on this issue in the Geoffrey Shannon, has this regard were recently The minister has described the past – hopefully the time has prompted a very necessary level announced by the Minister for document as “stark reading”– now come, not just for review, of both debate and action on Children, Frances Fitzgerald, the report is indeed an but for active reform of this child protection issues affecting who has formally publicised uncomfortable read, detailing particular aspect of the system. children and young people in the Government’s intention the gaps and failures of a child- The report further advocates Ireland. to put the 1999 Children First protection system that exposes the introduction of adequate Sadly, many of the problematic guidelines onto the statute children to risk, abuse and aftercare support systems to issues and books. deprivation of rights. be put in place to assist and concerns raised The scope support children who leave in the report have “One of the most of the fourth Gaps identified State care to make the transition been overlooked troubling aspects report deals The report identifies a number to becoming independent and neglected in with particular of potential areas for reform, members of society. the past. Current is that of child issues of youth most notably the current, It calls for inter-agency Government trafficking and its homelessness, long-standing deficiencies cooperation when dealing with plans, however, the right of of a social-work system that child victims of sexual abuse. now seem association with children with does not provide a 24-hour The current system means sexual exploitation. that these victims are often interviewed separately by the The report proposes HSE and gardaí. Geoffrey that consideration Shannon says: “Repetitive interviewing of this kind is be given to the unnecessary and traumatic for position in Sweden victims and could be avoided and Norway, in by the introduction of a more streamlined system of State which the purchase agency collaboration. In of sexual services addition, separate and repeated victim interviews can lead to has been penalised, situations where prosecutions with a view to become compromised because of variances in interviewee introducing a similar accounts.” system in Ireland” Further difficulties arise in the context of child sexual abuse cases, as a result of poor regulation concerning the disclosure of victims’ medical and counselling records. Current rules – which allow for the disclosure to the defence of these otherwise confidential records in the course of criminal proceedings – may lead to fewer Special Rapporteur to the Oireachtas on Child Protection, Geoffrey Shannon prosecutions in such cases. Law Society Gazette www.gazette.ie Aug/Sept 2011 analysis 17

“The report is an uncomfortable read, detailing the gaps and failures of a child-protection system that exposes children For many victims of child of cases, from very deprived social, criminal to risk, abuse and The report sexual abuse, the prospect socioeconomic backgrounds. behaviour. It also proposes that of such disclosure to the “Such vulnerability means that recommends the deprivation of consideration accused is simply too traumatic these children should not be introduction of bail rights” be given to to contemplate. Criminal excluded from the protections support schemes as the position in proceedings that might offered by the proposed a means of tackling the number Sweden and Norway, in which otherwise have been brought to children’s rights amendments of offences committed by young the purchase of sexual services trial may simply not be pursued to the Constitution – rather, offenders while on bail. has been penalised, with a view for this reason. these are the very children that to introducing a similar system The report recommends must be protected under the Troubling aspects in Ireland. that reform in relation to court Constitution, when the other The scope of the recent The report argues that orders for disclosure, in cases arms of the State have failed to report includes a number of legislation needs to be enacted such as these, be based on a adequately protect and support recommendations in relation to criminalise the grooming more comprehensive test of their welfare,” says Shannon. to children with mental-health of children for the purposes of relevance. The report also recommends difficulties and, in particular, sexual exploitation. In addition, the Scottish juvenile system as a the right of such children to be it highlights the fact that, while Pressing issues possible model for improvement heard. Ireland has signed the optional The report raises pressing issues in this jurisdiction. The Scottish Perhaps one of the most protocol to the Convention on the in relation to the welfare needs system, it says, has managed to troubling aspects dealt with Rights of the Child on the Sale of of young offenders. Research pragmatically address young in the report is that of child Children, Child Prostitution and shows that such offenders are, offenders’ welfare issues in trafficking and its association Child Pornography, that protocol in the overwhelming majority tandem with issues of anti- with sexual exploitation. now needs to be ratified. G 18 human rights watch Law Society Gazette www.gazette.ie Aug/Sept 2011

ireland’s human rights record revealed

The Government published Ireland’s first National Report on its domestic human rights record during the summer. Joyce Mortimer considers its findings

n 4 July 2011, the constitutional reform”, including in Human Beings. To ensure realisation, Government announced consideration of the following specific dedicated units to combat human Othe publication of Ireland’s issues: trafficking have been set up in the National Report on its domestic human • Provision for same-sex marriage, Department of Justice and Equality, rights record as part of the process of • Amendment of the clauses on the HSE, the Legal Aid Board and the the United Nations Human Rights women in the home and insertion gardaí. Moreover, “dedicated personnel Council Universal Periodic Review of a clause to encourage greater have also been assigned in the Office Joyce Mortimer is (UPR). participation of women in public life, of the Director of Public Prosecutions the Law Society’s This report was drawn up after and and in the Asylum Seekers and New human rights a lengthy consultation process that • Removal of the offence of blasphemy Communities Unit of the Department executive involved seven public meetings and from the Constitution. of Social Protection, to strengthen the 120 submissions from a wide range response to trafficking”. of organisations and members of the Gender-based violence The report states that a bill is public. The report states that a national currently before the Oireachtas that The UPR is a unique, state-driven strategy on domestic, sexual and will specifically prohibit female genital process that is administered by the gender-based violence is in place – the mutilation, and will also provide for Human Rights Council. The UPR aim of which is to provide a “strong related offences, including extra- was created through the UN General framework for sustainable intervention territorial jurisdiction. Assembly on 15 March 2006 by to prevent and effectively respond to resolution 60/251, which established domestic, sexual and gender-based Abortion the Human Rights Council itself. violence”. The Government is committed to Under this process, all 192 UN It says that the Government is ensuring that the judgment in the case member states are to be reviewed every committed to reviewing the current of A, B and C v Ireland is implemented four years. law on domestic violence, in particular expeditiously. The report states: “In This is the first time that Ireland examining the removal of the response to the court judgment, the has had to submit a report as part of qualifying period for an application Government will establish an expert the UPR process. This method of for a safety order, protecting victim group, drawing on appropriate continuous review ensures that states anonymity, and pursuing criminal medical and legal expertise, with a remain aware of their human rights prosecution for violent or coercive acts, view to making recommendations responsibilities and ensure effective harassment and stalking. to Government on how this matter implementation. The aim of the review Ireland “hopes to launch its national should be properly addressed.” is to ensure that human rights are plan on the implementation of protected and to address violations Resolution 1325 (women, peace and Institutional care where they are not. security) by 2011”. Ireland embarked Regarding the position on young girls To draw up the report on on an innovative consultation process, and women who were resident in the Ireland, the Government set up an bringing together “participants from Magdalene laundries, the issue has interdepartmental working group, Ireland, Northern Ireland, Liberia been referred to the UN Committee supported by the Department of Justice and Timor-Leste to draw upon the Against Torture. A Government and Equality. A website (www.upr. experiences of those directly affected decision was made on 14 June 2011 ie) was launched to inform the public by conflict on how best to promote to establish an interdepartmental of the process and to facilitate those women’s leadership and protect their committee, with an independent chair, interested in making submissions, interests in conflict resolution and to clarify any State interaction with the where the report can be viewed in full. peace-building”. laundries and “to produce a narrative The report highlights that the detailing such interaction”. current Government, established on Human trafficking 6 March 2011, “intends to convene The report confirms that Ireland Criminal justice a constitutional convention to has ratified the Council of Europe Regarding the prison system, the consider the need for comprehensive Convention on Action against Trafficking Government accepts the problems Law Society Gazette www.gazette.ie Aug/Sept 2011 human rights watch 19

The current Government “intends to convene a constitutional convention to consider the need for comprehensive constitutional reform”, including consideration of the provision for same-sex marriage

“This is the first time that Ireland in relation to has had to submit a Autism in the social-care field, driving Older people accommodation, in The report coordinated actions across a A minister of state has been particular in relation report as part of the states: “A range of sectors, including health, assigned responsibility for older to in-cell sanitation. UPR process” national review education, youth justice, sport, people’s issues. The report states of autism arts and culture.” that a programme is in place to services is currently underway and People with disabilities deal with this issue. will identify the core principles of Children’s rights referendum The report comments that the It says: “By mid-2012, 80% service delivery and standards of The report states that the Government is committed to of the prison’s estate [Mountjoy practice that will guide national Minister for Children and Youth ratification of the Convention Prison] will have in-cell autism services.” Affairs has begun discussions with on the Rights of Persons with sanitation.” the Attorney General in order Disabilities as quickly as possible. The report also confirms: Transgender issues to prepare draft wording for a This will be done as soon as the “In 2011, the UN Committee It is stated that, in 2010, an referendum on children’s rights. required bill to reform mental Against Torture made concluding advisory group was established capacity legislation is enacted. observations regarding a proposal to advise on further legal Right to education The Government intends to construct a major prison on a recognition for transgender The report confirms that, on to introduce this bill in the greenfield site. The Government persons. 8 July 2011, the Minister for Oireachtas before the end of has already appointed an expert Education and Skills is scheduled 2011. group to examine the proposal Mental health to launch the national strategy and will consider the matter when A review of the Mental Health Act to improve the literacy and Concluding comments that group reports.” 2001 is currently underway that numeracy of children and young The report concludes: “Work will include an examination of the people. on the Government’s overall Civil partnership concluding observations of the goal to achieve full respect The report highlights the UN Committee Against Torture Pluralism and patronage for human rights in practice, importance of the passing of the in relation to the definition of a In April 2011, the Government building on the legal framework Civil Partnership and Certain Rights ‘voluntary patient’. launched the Forum on Patronage in our Constitution and and Obligations of Cohabitants and Pluralism in the Primary domestic legislation, as well as Act 2010, which provides for Children and youth Sector. This forum will examine the international treaties and the registration of civil partners In June 2011, a dedicated the role of religious education in conventions to which we are and for the consequences of that Government Department of primary schools. “The advisory party, and our achievements to registration. The report states Children and Youth Affairs was group to the forum will analyse date, will continue. We strongly that “same-sex couples now have established. “The department submissions received from over believe in the need for a shared additional protections and new will lead the development of 200 stakeholders, [and] consult effort to advance the values at rights to succeed to the property harmonised policy and quality and examine relevant data to assist the heart of the charter of the of each other.” It adds: “The tax integrated service delivery for them in preparing their report to United Nations and welcome code is being amended to bring it children and young people, and the Minister for Education and the opportunity to present this, into line with the new provisions.” will carry out specific functions Skills by the end of 2011.” our first UPR report.” G 20 letters Law Society Gazette www.gazette.ie Aug/Sept 2011 CPD seminar could offset cost of ‘SMDF hurdle’ From: Robert E Connolly, 46 Raheny Park, Raheny, Dublin 5 t appears that, as a result of the Ipostal ballot, all solicitors will be required to contribute €200 annually to the SMDF. While I am sure that there are any number of solicitors for whom €200 is pocket change, for many of us the assessment is yet another hurdle in our attempts to keep the doors open. Might I suggest that the Law Society, or the SMDF, present a two or three-hour seminar, for which CPD hours will be Nomination for ‘Most Courteous Colleague’ available, in exchange for the €200 assessment. Since we From: Sonya Morrissy Murphy, he indicated to me that conversations were mere bluster. are all required to participate Connolly Sellors Geraghty, “conveyancing is cooperative and I could not have been more wrong. in professional development, Solicitors, 6 & 7 Glentworth Street, not confrontational.” Clearly, Mr Mr Crowley is as able as he is much to the monetary delight Limerick Crowley’s word is his bond. courteous. His level of courtesy of companies who specialise in oodwill, kindness, Having encountered all sorts and assistance is something I have presenting seminars, a Society- professionalism, skill, decency of intricacies and difficulties, Mr never encountered before and G sponsored event would provide and the incredible courtesy of a Crowley drew on local knowledge something that has largely been value for money to those who colleague compel me to write to and expertise to make the lost from the profession. might choose to avail of the you. impossible possible. Contracts One day, when out of the office opportunity. Having commenced a were signed on 8 July 2011 and and with both of us under pressure conveyancing transaction for the the sale closed on 28 July 2011. to move things along, I was unable purchase of a small cottage in Mr Crowley’s modus operandi is to facilitate him by sending a draft Co Kerry in September 2010, it to telephone you to acknowledge deed and requisitions immediately, seemed as if contracts would never receipt of your letter and to let you and he very kindly offered to draft End to expert be signed, never mind the sale know that he will write to you. He the somewhat complex closing closing. then writes to you and rings you documentation for me and send witness I, however, had the good to see if you got the letter, and to them to me for my perusal, which fortune to encounter Mr Liam discuss it, and so on. he duly did. immunity in Crowley, solicitor, of Killorglin, In my naivety, I mistakenly It is my pleasure to nominate Mr who was instructed by the assumed that these lengthy, Crowley for the award of the ‘Most Britain vendors. In our first conversation, interesting and friendly courteous solicitor in Ireland’. From: Catherine O’Flaherty, secretary to the Conveyancing Committee, Law Society of Ireland, Blackhall Place, Dublin 7 ILAI conference t its last meeting in June, Athe Conveyancing Committee The Institute of Legal Accountants of Ireland (ILAI) will hold a conference on ‘The future of legal noted the news item in the May services’ at the Law Society, Blackhall Place, Dublin 7, on 9 September. 2011 Gazette in relation to the above topic. One of the members Speakers will include: reminded the committee that there • Professor Richard Susskind OBE had been an Irish Supreme Court • Economist Jim Power case (EO’K v DO’K [2001] 3IR 568), • Ivan Gomez (senior director of Microsoft Europe) which held that a court-appointed • Ian O’Flaherty (Saurian Litigation Support – Ireland) expert witness was not liable in negligence to a disappointed For more information, contact: Alice Leddy, tel: 066 712 2900; litigant. or mob: 087 956 2799, or visit www.ilai.ie. The committee thought Gazette readers might wish to be informed. Law Society Gazette www.gazette.ie Aug/Sept 2011 letters 21 September launch for Medical Injuries Alliance

From: Joice Carthy (secretary), To accomplish this objective, earliest possible exchange of avoid or minimise the risk of Michael Boylan (chairperson), MIA intends to hold an annual information and settlement of future reoccurrence of similar and Bruce Antoniotti SC (vice- conference, as well as regular meritorious claims. medical error – creating a safer chairperson), c/o Medical Injuries seminars, at which experts in • To promote and enhance the environment for patients. Alliance, Suite 102, Ormond the medical and legal profession education and expertise of Building, Ormond Quay Upper, will present papers and discuss lawyers representing patients The aforesaid objectives are open Dublin 7 important topics, with a view and families injured by medical to discussion and change, and the ver the past few months, a to ensuring that all those who accidents, so as to ensure that officers and committee of MIA Onumber of lawyers (solicitors take on the responsibility their access to justice and legal welcome suggestions and input and barristers) – all of whom of protecting the interest rights are adequately preserved from all persons and groups/ have extensive experience in of injured patients have an and vindicated. Thus, the associations who have patient representing patients who have understanding of the causes of patients could have ‘equality of safety as their primary objective. been injured as a consequence of a medical accidents, as well as the arms’ and the ‘weaker’, injured MIA is now in its infancy medical accident and preventable legal principles and precedents patient of modest means and hopes to grow in size and error – have been meeting and applicable to medical injury could be permitted to more importance. Its membership discussing the formation of an litigation. effectively pursue their legal is now relatively small and, in association, the primary purpose • To streamline and make less rights against the ‘stronger’, order to achieve its goals, it is of which would be to protect costly the litigation process, well-resourced defendant. imperative that MIA grows and and vindicate the rights of those insofar as medical injury • To liaise with the Minister expands. MIA invites all those patients. Those meetings and claims are concerned. To for Justice with a view to who are interested and serious discussions have now culminated accomplish this objective, advocating the expansion of about patient safety to apply for in the formation of the Medical MIA advocates that the Irish the system of civil legal aid to membership. Applications are Injuries Alliance (MIA). A medical profession should medical negligence litigation available by writing to: Medical committee of ten, including a be encouraged to provide and inquests in certain Injuries Alliance, Suite 102, chairman, vice-chairman and honest objective opinions circumstances. Ormond Building, Ormond Quay secretary have been appointed, for injured patients. Unlike • To work for the establishment Upper, Dublin 7, or by emailing: and it is hoped to formally their British counterparts (as of a protocol, whereby an [email protected]. launch MIA in the last week of well as their counterparts in independent audit should be MIA intends to publicise its September 2011. virtually all other common performed of hospital care and formal launch date in the media, MIA will not replace the groups law jurisdictions), most Irish treatment outcomes in the which date, as stated above, will and associations already in being doctors, consultants, and so on, aftermath of litigation, so that be in the last week in September, who are, and have been, working are unwilling to provide such lessons can be learned, and to and invites all to attend. for the rights of patients, but opinions, and it is therefore hopes and intends to work closely necessary to seek the assistance with them in the future, with the of experts from Britain, the following objectives: USA, Canada and so on, so A titter at Twitter • To establish in Ireland as to investigate the issues of (hopefully on a statutory basis) negligence and causation. The a ‘duty of candour’; that is, a process of obtaining expert duty on the part of hospitals reports from foreign-based and doctors to reveal, at the experts and preparing for trial earliest possible time, the fact has become time-consuming and the cause of a medical and expensive. Meaningful injury. Patients who have consultation often involves suffered an adverse outcome are assembling a number of experts entitled to know that they have from different countries, which been injured, and the cause ultimately increases the cost of of that injury. There must be litigation as well as the length transparency and accountability. of time it takes to finalise that In essence, patients who suffer litigation. There would be preventable or untoward injury significant savings in costs if in the medical or hospital Irish medical professionals system ought to be entitled would be prepared to provide to know and be candidly told opinions for injured patients. precisely what went wrong and Secondly, MIA advocates that From: Keenan Johnson, Johnson & completed, I offered him a copy. In what caused their injury. there be a special set of rules Johnson, Solicitors, Ballymote, Co vigorously refusing to take a copy, he • To promote patient safety established by the courts to Sligo said: “If I brought it home, it would through the study of deal specifically with medical recently had an 82-year-old be the same as putting it on Twitter.” medical accidents and errors negligence claims, and that the I widowed farmer call to my office to Who said the age of electronic and improvement in the overriding objectives of these make his will. In line with my usual communication is not alive and well understanding of their causes. rules would be to promote the practice, after the will had been and living in rural Ireland? G 22 viewpoint Law Society Gazette www.gazette.ie Aug/Sept 2011

giv e us this day our daily bread

In times of restricted resources and economic uncertainty, the Government should remember that the rule of law and respect for the individual does not vanish, argues Noeline Blackwell

Noeline Blackwell is director general of FLAC Law Society Gazette www.gazette.ie July 2011 viewpoint 23

or a government under to ensure that everyone in the clarified that to respect a right towards that goal as quickly severe financial pressure, jurisdiction has a basic level of requires states not to interfere as possible, even using Fit is tempting to say that subsistence to live in dignity; with existing access to, or resources available from the it ‘cannot afford’ human rights. states must take account of enjoyment of, a right and to international community But we would all agree that the impact of cuts on the most take positive steps to maintain through cooperation and even – indeed especially – in vulnerable in society; and cuts existing access. The duty to assistance. times of restricted resources must be effected in a non- fulfil a right requires a state Obligations to monitor the and economic uncertainty, the discriminatory and transparent to provide a way for people extent of the realisation, or rule of law and way in to exercise a right where they more especially of the non- the need for consultation cannot do this independently. realisation, of economic, social respect for the with affected At a minimum, Ireland has and cultural rights, and to devise individual does “Where a state groups. a duty to provide to every strategies and programmes for not vanish. person in the land the basic their promotion, are not in Likewise, human seeks to excuse Not optional level of subsistence necessary any way reduced or removed rights – the poor performance States are to live in dignity, known as a in recessionary times. The UN freedoms and legally bound minimum core obligation, while committee has devised a host of responsibilities on meeting human to implement taking into consideration our criteria to examine this process that accord to rights obligations, these basic resource constraints. Where under each state obligation. us all as human rules; they are a state seeks to excuse poor Further, the way government beings and citing lack of not optional. performance on meeting human formulates and implements its which form resources, it must The absence rights obligations, citing lack policies must fully respect the part of the rule of individual of resources, it must show that principles of accountability, of law – do show that every recourse to the every effort has been made to transparency and the not disappear effort has been made courts because use all resources at its disposal participation of interested in tougher to use all resources a treaty is not in trying to satisfy, as a matter groups. The right of individuals economic times. incorporated of priority, those minimum and groups to participate in In straitened at its disposal in into domestic obligations. decision-making must be part circumstances, trying to satisfy, as law does not The precise minimum core of all policies, programmes states still detract from obligation will vary from state and strategies intended to have an a matter of priority, that treaty’s to state, but typical examples implement state obligations internationally those minimum validity or the within the right to education under international human recognised obligations on would be the right to primary rights instruments. Finally, and legal duty to obligations” the state and its education and importantly, respect, protect bodies arising the right to there is an onus and realise from it. access public on the state to human rights, even if they Inherent throughout educational “The duty to fulfil a have consistency have to find alternatives to international human rights law institutions. and fairness in money and resource-intensive is a state’s obligation to respect, Similarly, right requires a state the application ways of doing so. Before protect and fulfil the rights access to basic to provide a way for of the law, and signing an international human recognised in treaties, as are shelter and in providing rights treaty, Ireland as a provisions obliging states to sanitation, people to exercise public services state will have understood the fully realise these rights, either an adequate a right where they that focus on solemn and legally binding immediately or progressively. supply of individuals’ commitments this entails – and For example, rights recognised water, and cannot do this needs. its accountability in protecting as economic, social and cultural essential drugs independently” FLAC has the formal legal commitments rights, such as the rights to have all been produced a involved. housing, health, food and water, identified as document Ireland is not the first social security or education, minimum core setting out the country ever to be severely will all have to be realised obligations within the right to human rights law and principles constrained by financial pressure, progressively over time. And, in health. relevant to reinforcing the need and nor will it be the last. its 2011 programme, the Irish to maintain and progress rights Human rights law has developed Government has emphasised ‘Progressive realisation’ in a recession. It also examines some basic rules, principles and that it will “require all public The concept of ‘progressive in more detail two particular guidance to assist in respecting, bodies to take due note of realisation’ acknowledges that economic and social rights, protecting and promoting equality and human rights in a state may be unable to ensure identifying core state obligations human rights law in tougher carrying out their functions”. full realisation of all economic, – the right to social security and times. These cover broad But what does this mean? The social and cultural rights in one the right to housing. You can categories: for example, states UN’s Committee on Economic, go. However, the state still has download it from the FLAC must take every possible step Social and Cultural Rights has an immediate duty to move website at www.flac.ie. G 24 cover story Law Society Gazette www.gazette.ie Aug/Sept 2011 cucumber

warsThe German STEC 104 outbreak has shown that the possibility of a small, well-managed food-producing unit single-handedly triggering a deadly pan-European public health incident is not confined to the imaginations of Hollywood scriptwriters. John McCarthy tickles his tastebuds

he recent German-based food- which implements the Product Liability Directive poisoning incident should draw (PLD) (Council Directive 85/374/EEC) and which attention to the laws pertaining applies to all food products, including primary to tortious liability for unsafe agricultural products that have not undergone initial food products. Although Spanish processing. When first introduced, section 1 of cucumbers were initially and the LDPA specifically excluded such unprocessed incorrectly blamed for the outbreak, the source of agricultural products. However, the definition John McCarthy T the contamination was traced ultimately to a German was subsequently amended to include them by the is a partner with organic beansprout crop. European Communities (Liability for Defective Products) McCarthy & In any consideration of the law of tortious liability Regulations 2000 (SI no 401 of 2000) in compliance Co Solicitors, for unsafe food products, it would be remiss not with Council Directive 99/34/EEC. Clonakilty, with to make deferential reference to Section 4 of the LDPA provides a particular interest May Donoghue who, on a Sunday that, to discharge the onus of proof, in the area of food evening in August of 1928, suffered “Spanish one must show “the damage, the law from a bout of gastroenteritis and cucumbers were defect and the causal relationship severe shock after having consumed between the defect and damage”. a quantity of ginger beer poured initially and Of course, attaching liability for from an opaque bottle, which later incorrectly blamed foodborne illness will often be transpired to contain the remnants of for the outbreak” extremely difficult for an injured a semi-decomposed snail. consumer, by virtue of the fact that While even the most dilettante they will have ingested many different student of the law of torts will be aware that the food items from a wide range of sources in any given ensuing case of Donoghue v Stevenson turned out day, each of which could potentially have been the to become the bedrock upon which the modern cause of the illness complained of. But if the injured jurisprudence of negligence has been developed, party can satisfy this causal test, section 2 assigns there has also been considerable enhancement responsibility without fault to the producer of the of consumers’ rights by way of legislation in defective product. This imposition of strict liability the meantime. One of the several consumer is highly significant, as it deviates from the general protection codes introduced as a consequence of law of negligence under which a defendant can escape our membership of the European Union is the liability on the basis that they have not been guilty of Liability for Defective Products Act 1991 (LDPA), any wrongful conduct, notwithstanding the plaintiff’s Law Society Gazette www.gazette.ie Aug/Sept 2011 cover story 25

Fast facts

> The law of tortious liability for unsafe food products has been considerably enhanced by European Union legislation > To discharge the onus of proof, one must show “the damage, the defect and the causal relationship between>> the defect and damage” > If the injured party can satisfy this causal test, section 2 of the Liability for Defective Products Act 1991 (LDPA) assigns responsibility without fault to the producer of the defective product > Showing a causative link can be very difficult in many cases of foodborne illness > Despite such an unyielding regime of liability – where an absence of fault will not free a food producer from blame – there are measures that can be taken to limit one’s exposure > Section 6 of the LDPA does provide some solace for a food producer, however, by allowing for a number of defences > As for the potential criminal sanctions, there is a raft of regulations under which the Food Safety Authority of Ireland can seek to prosecute producers who supply contaminated foodstuffs 26 cover story Law Society Gazette www.gazette.ie Aug/Sept 2011

Beans means tortious liability

crossing of the causation hurdle. Saxony that was ultimately identified as the had ingested poultry foodstuffs from more Section 6 does provide some solace for source was well run and had very high hygiene than one source in the period during which a food producer, however, by allowing for standards. While this will mean that it will consumption of the suspected product was a number of defences, two of the most probably avoid criminal prosecution (due believed to have occurred, as the incubation significant of which are (i) that if the producer to the regime of strict liability imposed by period before symptoms are observed can can show that they did not put the product Germany’s implementation of the PLD), it be anywhere between one and ten days from into circulation; or (ii) that the defect did not will not be in a position to insulate itself from infection. exist at the time when the product was put claims for compensation on the basis that it In the case of the STEC O104 outbreak, into circulation or that it came into being was not negligent in the manner in which it however, it would appear that this version afterwards, they will avoid liability. generated its produce. of the pathogen is so rare that the causative Showing a causative link can be very link is without controversy, notwithstanding A STEC too far difficult in many cases of foodborne illness. the fact that a compensation package of The recent eruption of the particularly For example, a report on campylobacter eye-watering proportions is currently being aggressive strain of Shiga toxin-producing E infection that was recently issued by the hammered out between the European coli O104:H4 (STEC O104) in Germany has Food Safety Authority of Ireland (FSAI) Commission and Spanish vegetable brought the cumulative number of probable revealed that some 83% of Irish poultry flocks producers by reason of a series of unverifiable and confirmed STEC cases in the EU to presented for slaughter, and 98% of whole attributions along the way. (The impugned 3,867 at the time of writing. In 762 of these birds at the end of the slaughter process, are cucumbers did contain serious VTEC cases, the infection gave rise to the onset of contaminated with campylobacter. With these pathogens, but the DNA profiles of these haemolytic uraemic syndrome (HUS), a rare pandemic rates of infection, even if a plaintiff pathogens turned out to be different from the and severe kidney complication that destroys could prove that they had suffered personal outbreak strain.) red blood cells and can affect the central injury as a consequence of being exposed to If the American experience is anything to go nervous system. campylobacter infection, they could well find by, it is probably only a matter of time before According to media reports, the organic themselves running into serious evidentiary this country experiences a significant outbreak farm in the village of Bienenbüttel in Lower difficulties if it could be shown that they of verocytotoxigenic E coli O157:H7 (VTEC Law Society Gazette www.gazette.ie Aug/Sept 2011 cover story 27 O157), or other serotypes such as O26, O111 certainly be commercially fatal and could the perspective of the potential penalties and O145. In a surveillance project involving well result in criminal prosecution. that may be imposed. Regulation 5 provides raw milk suppliers throughout Ireland, At the very least, food producers should be that a food business operator is guilty of carried out by the FSAI in 2005, numerous in a position to demonstrate due diligence in an offence if they place unsafe food on the E coli O157 isolates were detected, some of the context of hygiene practices, particularly market. Regulation 9 further provides that a which contained the VTEC toxin. As with in relation to all applicable HACCP systems. food business operator is guilty of an offence the STEC strain observed in the German For their part, the regulatory authorities if they fail to initiate procedures to withdraw outbreak, VTEC strains produce a powerful overseeing the food industry in question a food where they have reason to believe that toxin and can cause severe illness, with HUS should be in a position to provide evidence it is not in compliance with all relevant food- having been observed to cause fatality or of the proper application of Regulation (EC) safety requirements. Regulation 25 stipulates permanent kidney damage in up to 30% of no 882/2004 on official controls to verify that a person who is guilty of an offence those contaminated in some outbreaks. compliance with feed and food law, animal under the said regulations is liable: With such an unyielding health and animal welfare a) On summary conviction, to a fine not regime of liability – where an rules. exceeding €5,000, or imprisonment for a absence of fault will not free “Food producers For a food producer’s term not exceeding three months, or both, a food producer from blame quality management or, – what measures can then be should be in a position systems to be truly b) On conviction on indictment, to a fine not taken with a view to limiting to demonstrate due effective, they should have exceeding €500,000, or imprisonment for one’s exposure? diligence in the the capacity to identify a term not exceeding three years, or both. Section 2 of the LDPA and trace the distribution provides that a producer to context of hygiene route of every single The 2010 regulations go on to provide which liability may attach practices” unit of produce that has that, where a person is convicted of such can be any of: been identified as unsafe, an offence, the trial court shall, unless it is • The manufacturer or virtually instantaneously. If satisfied that there are special and substantial producer of the finished product, or a producer were to detect a risk sufficiently reasons for not so doing, order the convicted • The manufacturer or producer of any raw early on, and they had robust procedures in party to pay to the FSAI the costs and material of the product, or place, it is conceivable that they could stop expenses in relation to the investigation, • Any person who carried out initial the rot by issuing a wholesale-level recall, detection and prosecution of the offence. processing on the product, or rather than a retail-level or user-level one, The German STEC 104 outbreak has • Any person who, by putting his name or thereby minimising the reputational damage shown us that the possibility of a small, mark on the product, has held himself out done to the product. How achievable this well-run and well-managed food-producing to be the producer of the product, or is in reality in the case of some methods unit single-handedly triggering a deadly • Any person who has imported the product of food production is, of course, highly pan-European public health incident from outside of the EU, or questionable. is not confined to the imaginations of • Where the producer cannot be identified, Hollywood scriptwriters. While the risk the supplier of the product. Criminal sanctions of being implicated in an outbreak of this As for the potential criminal sanctions, there scale may be relatively remote, the potential Section 8 goes on to provide that, where is a raft of regulations under which the FSAI consequences are so stark that they behove two or more persons are liable for the can seek to prosecute producers who supply the prudent food producer to ensure that same damage, they will be treated as being contaminated foodstuffs. The European all relevant preventative mechanisms and liable jointly and severally as concurrent Communities (General Food Law) Regulations contingency plans have been properly wrongdoers within the meaning of part III of 2007 and 2010 are the most significant from considered and implemented. G the Civil Liability Act 1961. Therefore, if, for example, a producer is relying on ingredients from a variety of sources to prepare their products, they should ensure that they Look it up have secured legally solid warranties and indemnities (buttressed by appropriate Cases: • European Communities (General Food Law) policies of insurance) from the suppliers of • Donoghue v Stevenson [1932] AC Regulations 2007 (SI no 747 of 2007) these ingredients, so that they do not find 562 • European Communities (General Food Law) themselves becoming an unwitting mark (Amendment) Regulations 2010 (SI no 498 in circumstances where they were a mere Legislation: of 2010) conduit for the spread of infection, rather • Council Directive 85/374/EEC (OJ L than the actual source of it. 210, 7.8.1985, p29) Literature: As long as the producer is adequately • Liability for Defective Products Act • Surveillance of Dairy Production Holdings insured, they may well be in a position to 1991 (1991, No 28) Supplying Raw Milk to Farmhouse Cheese withstand the barrage of litigation that will • Council Directive 99/34/EC (OJ L 141, Makers for Verocytotoxin Producing E coli inevitably ensue if their produce is shown 4.6.1999, p20) O157 and Other VTEC (FSAI, November to be responsible for a bout of foodborne • European Communities (Liability for 2005) illness. But if they are perceived to have been Defective Products) Regulations 2000 • Recommendations for a Practical Control in any way lax or cavalier in their attitude (SI no 401 of 2000) Programme for Campylobacter in the towards the health and safety of their • Regulation (EC) No 882/2004 (OJ L Poultry Production and Slaughter Chain consumers, the reputational damage and 191, 28.5.2004, p1) (FSAI, July 2011) destruction of the brand name will almost 28 litigation Law Society Gazette www.gazette.ie Aug/Sept 2011 Ni ne tenths ofh t e lAW?

A recent judgment has highlighted a legal lacuna that means that lenders will not be able to apply for an order of repossession for the majority of their mortgages that are in default until new legislation is introduced. Gregory McLucas explains

epossessions of properties are now at a legal standstill as a result of Ms Justice Dunne’s High Court judgment on 25 July 2011. In this judgment, Judge Dunne identified that the implementation of section 8 of the Land and Conveyancing Law Reform Act 2009, which came into operation on 1 December 2009, has had the effect of repealing section 62(7) of the Registration of Title Act Gregory McLucas is R 1964, without introducing any saving provision for cases in which this a solicitor in Blake provision applied. & Kenny Solicitors, Section 62(7) was the legal provision relied upon by lenders in Galway, specialising order to apply to court for an order of possession once a borrower in local government had defaulted on its mortgage. Although chapter 3 of the 2009 act law, commercial introduces similar provisions for lenders to rely on in this event, arbitrations and these provisions only apply to mortgages after 1 December 2009 (the the cases litigation commencement date for the 2009 act, save section 132). Accordingly, it was held by Judge Dunne that section 62(7) only Judgment of Ms Justice Dunne on 25 July continues to apply in a limited number of cases and there is now a 2011 ([2011] IEHC 275) in: lacuna in the law as it now stands. • Start Mortgages Limited v Robert Gunn and At present, the implications of this judgment are that there is no Maura Gunn right to apply for an order of possession for lenders whose borrowers • Secured Property Loans Limited v Tom Clair have entered into a mortgage prior to 1 December 2009 but have fallen and Mary Clair into arrears after that date. • GE Capital Woodchester Homeloans Limited These cases (see panel, right) were heard by Judge Dunne at the same v Colm Mulkerrins time because the issue arising for consideration in each case related to • GE Capital Woodchester Homeloans Limited the effect of the repeal of section 62(7) on the various lenders’ right to v Michael & Sinead Grogan apply for an order of possession as a result of a default by the borrowers. Law Society Gazette www.gazette.ie Aug/Sept 2011 litigation 29 Nine tenths

Fast facts > Repossessions of properties are now at a legal standstill as a result of a High Court judgment on 25 July 2011 > The implementation of section 8 of the Land and Conveyancing Law Reform The facts of the cases were similar, in that but the proceedings were issued on 18 August Act 2009, which came>> into operation they all related to mortgages drawn down and 2010. In Grogan, although default occurred on 1 December 2009, has had the registered before 1 December 2009. There in November 2008, the actual demand for effect of repealing section 62(7) of the were distinguishing aspects to each case. In payment was only made by letter dated Registration of Title Act 1964, without Gunn, the proceedings were issued prior to the 19 January 2010. introducing any saving provision for repeal of section 62(7) on 1 December 2009. In Gunn, the bank argued that, because cases in which this provision applied In Clair, although the entire loan became due the proceedings were initiated prior to > The implications are that there is no right and owing prior to 1 December 2009, the letter 1 December 2009, the bank was entitled to to apply for an order of possession for of demand for vacant possession and payment relief pursuant to section 62(7) on the basis lenders whose borrowers have entered of the amount due (hereafter referred to as the that the section had survived the repeal in this into a mortgage prior to 1 December ‘letter of demand’) and the proceedings were case as a result of section 27(1)(e) and section 2009 but have fallen into arrears after issued after that date. In Mulkerrins, two letters 2 of the Interpretation Act 2005, which provide that date of demand were sent prior to 1 December 2009, that a repeal does not prejudice or affect christmas events

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Terms and Conditions: Minimum numbers of 100 pax for this special rate. Black out dates will apply. Additional function space available for smaller parties. Law Society Gazette www.gazette.ie Aug/Sept 2011 litigation 31 any legal proceedings pending or any rights order of possession of lands pursuant to section • In Clair and Grogan, as the letters of demand acquired or accrued at the time of the repeal. It 62(7) is a right saved in limited circumstances were made after 1 December 2009, the was also argued that the right to possession of pursuant to the provisions of section 27(1) right to apply for an order of possession had the premises pursuant to section 62(7) was not and (2) of the 2005 act, notwithstanding its neither been acquired or accrued prior to the only acquired by the bank prior to 1 December repeal. However, the right to apply for an repeal and, therefore, the proceedings were 2009, but also accrued. order of possession is not accrued by merely struck out, It was submitted on behalf of the defendants the registration of the charge. The lender does • In Mulkerrins, as the necessary events had in Gunn and Clair that, as section 62(7) has now not acquire a right to apply for an order under occurred prior to 1 December 2009 (the been repealed, it could no longer be relied upon section 62(7) unless and until the principal borrower had defaulted and the demand had by the bank. Moreover, in Gunn it was argued monies have become due, and that only occurs been made), the proceedings could continue. that section 62(7) was discretionary in nature after the letter of demand has been made. because it states that “the court may, if it so Accordingly, if the principal monies had Implications thinks proper, order possession”. Consequently, become due by 1 December 2009 following The implications of this judgment for it was argued that the bank had no more than a letter of demand issued before that date, mortgages entered into prior to 1 December a hope or expectation to an order of possession then there was no bar to the lender bringing 2009, but which go into default after that date, and that this was neither an acquired nor proceedings or continuing proceedings already or mortgages that went into default prior to 1 accrued right of possession. initiated to recover possession of the secured December 2009 but no letter of demand issued Section 62(6) of the Registration of Title Act lands because, in that instance, section 62(7) is before then, is that the lender has no right as 1964 (before its amendment by virtue of the saved by section 27 of the 2005 act. the law currently stands to apply for an order 2009 act) was relied upon in However, where the letter of possession. Gunn by the bank to argue of demand is made after 1 As mortgage lending has come to a virtual that the discretion of the court “This development December 2009, then the standstill since the property crash in 2007, it was severely limited because provides borrowers lender has neither acquired nor would seem that the vast majority of mortgages the wording of section 62(6) accrued a right to apply for an on the various lenders’ loan books predate the indicated that the bank had with extra time to order of possession pursuant to repeal of section 62(7) on 1 December 2009. a right accrued once the try and negotiate section 62(7), and consequently Consequently, lenders will not be able to mortgage was registered. the provisions of section 27 of apply for an order of repossession for the Accordingly, once the plaintiff with their lender the 2005 act cannot assist such majority of their mortgages that are in default had issued the demand for to determine if any a lender. Moreover, the similar until new legislation remedying this lacuna is possession, it had a right to reliefs for lenders provided introduced. issue proceedings and come compromise can for in the 2009 act only apply The further implication of this for the banks to court and obtain the order be made” to mortgages created after 1 is that this restriction will be a factor to be of possession. The right was December 2009. Therefore, considered for any prospective investors in acquired prior to the repeal there is a lacuna created by determining as to whether they will provide and, therefore, the plaintiff had the right to the repeal of section 62(7), in that any lender private investment into the banks. take the proceedings. In Mulkerrins and Clair, who did not have an entitlement to apply for an The implications for the borrowers would the banks went a step further and said that the order of possession pursuant to section 62(7) by appear to be twofold. This development right under the mortgage, including the right 1 December 2009 can no longer rely on section provides borrowers with extra time to try and to possession or the right to sell the property, 62(7) and are not in a position to rely on the negotiate with their lender to determine if any was ‘acquired’ upon the registration of the provisions of the 2009 act. compromise can be made in order for them to mortgage. Regarding the cases before the court, Justice begin repaying their loans. In Mulkerrins, counsel for the bank also Dunne held: It will also give borrowers breathing space submitted that, in cases where the new • The facts of Gunn came within section to try and sell the property in the open market. remedies under the 2009 act did not apply, it 27(1)(e) and (2) of the 2005 act, in that the If they can, the bank may see any prospective was necessarily the intention of the Oireachtas legal proceedings had been initiated prior purchaser as ‘a bird in the hand being better to rely on the provisions of the 2005 act, to 1 December 2009 and, therefore, could than two in the bush’ and accept the purchase and, therefore, on that basis, the repeal of continue as if section 62(7) had not been price obtained in full and final settlement of section 62(7) did not create a lacuna. It was repealed, the borrower’s liability to the bank. G submitted that section 27(1)(c) provides for the preservation of rights, even though proceedings had not issued. Look it up

Judgment Cases: [1961] AC 901 Ms Justice Dunne, having considered the • Anglo Irish Bank v Fanning [2009] • Northern Banking Company Limited v submissions and authorities relied upon by the IEHC 141 Devlin [1924] 1 IR 90 parties, held that section 62(7) conferred on a • Bank of Ireland v Smyth [1993] 2 IR • O’Sullivan v Superintendent in Charge of registered owner of a charge the right to obtain 102. Togher Garda Station [2008] 4 IR 212 an order for possession for the purposes of sale • Birmingham Citizens Permanent prior to its repeal. Building Society v Caunt [1962] CH Legislation: Once all the proofs of the lender are in order 883 • Interpretation Act 2005, section 27 in relation to its application for an order of • Chief Adjudication Officer v Maguire • Land and Conveyancing Law Reform Act possession under section 62(7), the discretion [1999] 1 WLR 1778 2009, section 8 and chapter 3 of the court to refuse such an application is • Director of Public Works v Ho Po Sang • Registration of Title Act 1964, section 62 severely limited. The right to apply for an 32 professional indemnity insurance Law Society Gazette www.gazette.ie Aug/Sept 2011

Anne Neary is a solicitor and a risk and management consultant to the legal profession

It is easy to place the blame for the PII crisis solely on the solicitors’ profession. However, there are many complex factors that created an environment that fostered these claims, says Anne Neary

cause and effe ct Law Society Gazette www.gazette.ie Aug/Sept 2011 professional indemnity insurance 33

e are all very familiar with the extent of the crisis with regard to professional indemnity. Insurer lossW ratios for solicitors in Ireland are very high – for some insurers, the losses are up to 11 times income (for every €100 received in premium income, some insurers are paying out €1,100 in claims). Last year, four leading insurers left the solicitors’ PI market, and this year the Solicitors Mutual Defence Fund became insolvent, directly as a result of the number and value of claims made against solicitors. It is important to understand the context of the times that gave rise to these claims. There was a lethal cocktail of events in Ireland that lead to unsustainable levels of claims and the virtual collapse of many law firms. It is the combination of these events – some of which are not immediately obvious – together with the property downturn that had unprecedented adverse consequences on the Irish legal profession. These events included the adoption of the certificate of title system, the role of the banks, the nature Fast facts of solicitors’ undertakings, the volume of commercial property transactions, the > Insurer loss ratios for solicitors in departure of lenders from traditional lending Ireland are very high criteria, the effect of NAMA, the under > There was a lethal cocktail of events in pricing of conveyancing, the pressure from Ireland that lead to unsustainable levels clients, the economic downturn and poor of claims and the virtual collapse of practice management and business skills. many law firms >> Some of these factors are unique to > Many solicitors inadvertently assumed Ireland, and others are symptomatic of the entire risk of property transactions problems being experienced by lawyers all by entering into unqualified undertakings over the world. But no other legal profession to lending institutions without assessing has experienced the same extraordinary the overall extent of what they were number and value of claims, 70% of which doing relate to property transactions. It is easy to place the blame solely on the solicitors’ profession. However, there are many complex factors that created an environment that fostered these claims. It is important to look at each of these factors to understand what happened.

Certificate of title The certificate of title system was introduced in the 1980s. This system replaced the traditional three-solicitor closing with a two-solicitor closing for residential property transactions. Prior to the introduction of this system, one solicitor acted for a vendor, a second solicitor acted for a purchaser and the third effe ct solicitor acted for the financial institution. 34 professional indemnity insurance Law Society Gazette www.gazette.ie Aug/Sept 2011 The vendor’s solicitor sold the property, mortgages were registered – and often their Acting on behalf of lending institutions the purchaser’s solicitor ensured that the records were poorly kept and out of date. in commercial transactions is even client’s interests were protected by obtaining The certificate of title system was more complex than acting in residential good title, and the financial institution’s made possible by the nature of solicitors’ transactions and requires specialist solicitor ensured that the lender received undertakings, which were knowledge of both commercial good title and that its security was registered. universally accepted by and property law. However, The purchaser was responsible for his own lending institutions and which “Any defect in the where lenders used the solicitor’s fee and also that of the financial contributed to the lethal lender’s security certificate of title system for institution. cocktail. The undertaking commercial transactions, they Over time, a strong feeling developed required of a solicitor in compromised accepted undertakings from that clients were paying two sets of costs a property transaction is its chances of any solicitor, regardless of unnecessarily. The solution reached was particularly onerous and, recovering the their expertise or experience, to permit one solicitor to act for both the in some instances, required once they carried professional lending institution and the purchaser. Under a complex set of actions to loan, and, in indemnity insurance. This the certificate of title system, the lending secure the lender’s interests. these cases, the permitted some solicitors to institution accepted an undertaking from the Solicitors were, and still are, engage in work for which they purchaser’s solicitor to register its security required to carry high levels lenders looked were not adequately qualified. and certify that the title to the property was of professional indemnity to solicitors for good. The financial institution then released insurance. Consequently, Lending criteria the loan cheque to the purchaser’s solicitor, financial institutions felt secure compensation” The gradual departure of the and relied on his undertaking to complete the in relying on undertakings and, lending institutions from their transaction. to some extent, absolved themselves from traditional lending criteria over a number The net effect was that, in the main, responsibility to ensure that their interests of years had significant, but unanticipated, lending institutions did not pay the were protected, because they had recourse to consequences for solicitors. In the past, the purchaser’s solicitor to safeguard their this insurance in the event of a breach of the financial institutions lent funds according to interests – the purchaser was expected to pay undertaking. the ability of the borrower to repay the loan. those costs directly. They carried out due diligence in relation to Commercial property their borrowers and ensured, in so far as was The banks As the major banks started lending at ever- possible, that they extended loans to people Once the lending institutions had a signed increasing rates, the certificate of title system who could afford to repay them. undertaking from a solicitor, they relied on was extended for use in many commercial Over time, the banks changed their that undertaking to safeguard their interests. property transactions. The problem with criteria and began lending not on the basis There was little due diligence of their loan commercial property transactions is that of borrowers’ ability to repay the loan, but portfolios, poor follow-up they range from a low-value buy-to-let on the basis of the value of the property on the undertakings they purchase of an apartment to multi-million- securing the loan. In the event of a borrower received from solicitors, euro complex developments. Sometimes the defaulting, the bank relied on its security no spot checks to banks used the certificate of title system and over the property. Now that the banks were ensure that their sometimes they appointed their own solicitor. relying on the security rather than on the Law Society Gazette www.gazette.ie Aug/Sept 2011 professional indemnity insurance 35 creditworthiness of the borrower to protect certificate of title system. However, because business skills to cope. their interests, the whole emphasis shifted they gave undertakings to carry out security Up to 2006, there was very little and the securitisation of loans became work, they are responsible for the banks’ understanding of practice or risk paramount. losses where the security is defective. management in firms throughout the However, this shift in emphasis had serious At the same time that solicitors were not country. Many in the profession were repercussions for the legal profession – but paid by the banks or their clients for the unprepared for the scale of the property there was very little awareness of what security work, they were subjected to intense collapse and were unaware of the direct those repercussions might be. In the past, pressure from clients to keep conveyancing consequences for them. Few firms had security documentation was a secondary fees low. They also competed with each other registers of undertakings to record issue, as there were very few defaults, and to such a degree that a €999 conveyancing outstanding undertakings and, with the best was considered to be more of a back-up fee became standard throughout the country. will in the world, without these systems, than a primary part of the transaction. These low fees meant that solicitors were undertakings were difficult to track and Where lenders now relied primarily on the not in a position to apply discharge. The boom caused property, any defect in the lender’s security sufficient resources to finalising delays and difficulties for compromised its chances of recovering the conveyances. “Financial the Property Registration loan, and, in these cases, the lenders looked Additional pressure came institutions on the Authority (formerly the Land to solicitors for compensation. from clients, who were afraid Registry), where registrations of losing deals, to close brink of collapse, were taking up to four years to The NAMA effect transactions at all costs and to desperate to complete in certain parts of the When NAMA was set up to take loans off the ignore title defects or other find scapegoats, country. books of financial institutions, the effect was problems that could delay The effect of this delay was to crystallise losses, and financial institutions closing. have started to postpone the resolution were forced to face up to the problems the process of any security or title issues, in their property portfolios. Financial Economic downturn exacerbating any problems in institutions on the brink of collapse, The suddenness and severity of of pursuing the meantime. desperate to find scapegoats, have started the the economic downturn, with solicitors, who In conclusion, many process of pursuing solicitors, who in effect the consequent fall in property solicitors inadvertently have become the ‘last man standing’. values, exposed both systemic in effect have assumed the entire risk of The lending institutions have now and operational weaknesses become the ‘last property transactions by commenced a due diligence examination in conveyancing procedures, entering into unqualified of their non-NAMA loan portfolios to practice management and risk- man standing’. undertakings to lending ascertain whether their loans are adequately management systems. institutions without assessing secured. There is evidence that some of the During the boom, many solicitors had to the overall extent of what they were doing. security documentation is defective but, as deal with increasing volumes of transactions, In effect, they underpinned the property the due diligence process of assessing the pressures from clients, the demands for market and have become the last resort title and security work is still ongoing, it ever-lower fees, and the onerous obligations for lenders unable to recover from their is not possible to quantify the number of imposed on them by the certificate of title borrowers. claims that may arise when this process is system. At the same time, transactions There is a profound shift in understanding completed. generally became more complex due and in culture in the solicitors’ profession. to additional statutory and regulatory There is a general acceptance that we need to Cut-price conveyancing obligations. adopt business systems and risk-management Solicitors now find themselves in the difficult The practice of law became a business procedures and a determination to move situation where they are being sued for work and imposed new demands on solicitors. forward and learn from the lessons of the for which they were not paid under the Many didn’t have the business systems or the past. G 36 company law Law Society Gazette www.gazette.ie Aug/Sept 2011

r esTORATIOn

Close to 5,000 companies are being struck off the Register of Companies each year. dramaDepending on the nature of the strike-off, it is possible for companies to reapply to be restored to the Register. Brian Moloney assesses their chances – and shows that restoration is no comedy

Brian Moloney is a solicitor and eing struck off the Register of Companies company that continues to trade, as, on its dissolution, trademark attorney. is an all too frequent occurrence, having the company’s assets become the property of the State. He would like to serious and potentially costly consequences The company ceases to exist at the date of the dissolution thank Ray Ryan for a company, of which the directors, and strike-off, and the owners lose the protection of BL for his assistance shareholders and their professional advisers limited liability status if they continue to trade. Such with this article should be made aware. The Revenue directors would face personal liability, and it is open CommissionersB estimate that approximately 5,000 to the Director of Corporate Enforcement to make an companies are being struck off each year. application to the High Court to seek a disqualification There are two types of strike-off – voluntary and order. involuntary. Where the company ceases to trade and has Where a company has been struck off for a period not no outstanding creditors, it can request exceeding 12 months, it can make to be struck off the register, referred to an application for an administrative as a voluntary strike-off. Section 311 “Assuming that one restoration directly to the Registrar of the Companies Act 1963, as amended, is successful in their of Companies. This is a relatively deals with this scenario. straightforward process. The main An involuntary strike-off can application, one must focus of this article, however, is on a happen in a variety of scenarios. For take up the order within situation where a company has been example, the Registrar of Companies struck off involuntarily for a period is empowered under section 311 to three months of it being exceeding 12 months. Restoration to strike off a company for a variety of made – otherwise a fresh the Register of Companies is governed reasons, including a company not by the Companies (Amendment) carrying on business or, for instance, restoration application Act 1982 and section 311A of the where the liquidator of a company will be necessary” Companies Act 1963. being wound up has failed to file returns within six months. Section 12 of the Companies Back on track (Amendment) Act 1982 empowers the registrar to strike off Where the company has been struck-off involuntarily a company where it has failed to file an annual return; or for a period exceeding 12 months – but not exceeding 20 where the company has received a notice in writing from years – section 12B(3) of the Companies (Amendment) Act the Revenue Commissioners that it has failed to deliver 1982 allows the company, a member or, indeed, a creditor a statement that is required of it under section 882 of the (including the Revenue Commissioners) to apply to the Taxes Consolidation Act 1997 – otherwise referred to as a High Court for restoration. Revenue strike-off. Order 75 rule 4(o) of the Rules of the Superior Courts Once a company is dissolved, it ceases to exist as a provides that such an application must be made to the ‘legal person’. The consequences are very serious for a High Court by way of petition. The company restoration Law Society Gazette www.gazette.ie Aug/Sept 2011 company law 37

Fast facts

> Being struck off the Register of Companies has serious and potentially costly consequences for a company > Approximately 5,000 companies are struck off each year > There are two types of>> strike-off – application is made by way of motion and that the company or its accountant file all voluntary and involuntary petition, and is grounded on affidavit. outstanding returns and accounts, and pay > Once a company is dissolved, it Company restoration applications are the late filing fee – currently €100. A further ceases to exist as a ‘legal person’. The currently listed in the Chancery List in the €3 accrues for every day that the returns and consequences are very serious for a High Court on Monday mornings. accounts are not filed, although this is capped company that continues to trade, as, on The legislation requires that the at a maximum of €1,200 per return. Late its dissolution, the company’s assets following State authorities be on notice filing fees can, therefore, be quite high. On become the property of the State of the application: the Registrar of receipt of same, and assuming the outstanding > Applying for restoration to the Register of Companies, the Minister for Finance, the accounts and filings are in order, a director Companies following involuntary strike-off Chief State Solicitor’s Office, the Revenue of the company, or either its solicitor or > The importance of taking up the order Commissioners, and the Revenue solicitors. accountant, should write to the Companies without delay The first thing to attend to, however, is Registration Office and request that it provide 38 company law Law Society Gazette www.gazette.ie Aug/Sept 2011

ensure that the striking-off mechanism, as a deterrent against a breach of company law, is not devalued. Laffoy J stated that it would be devalued if a company could be restored to the register without the breach that gave rise to its striking-off being required to be remedied.

Success In the event that the statutory proofs are in order, the judge will exercise his or her discretion as to whether the order should be granted. On hearing the application, the court may, “Practitioners should if satisfied that it is just, also be aware, when restore the company to the register. advising a company, Assuming that one of the high costs and is successful in their application, one must take outlays that will be up the order without delay. incurred in making a An office copy must be “I say, Hugh! The cards say we can get back on the Register” served on the Companies company restoration Registration Office within a ‘letter of no objection’ – the first step in returns be delivered to the application in the three months of the making any successful restoration application. Registrar of Companies in High Court” of the order, together In Re New Ad Advertising Company Limited, accordance with an order with the €15 filing fee. If Laffoy J expressed the view that the court made pursuant to section the order is not delivered had a very limited discretion to dispense 12B(5). Laffoy J stated that the legislative within this timeframe, a fresh restoration with the requirement that outstanding intent in enacting that requirement was to application will be necessary. Practitioners

filing documents with the high court

Once the ‘letter of no objection’ from the 7) Whether or not the company has continued together with the exhibits, on the Revenue Companies Registration Office is at hand, the to trade, Commissioners, the Revenue solicitors, the next step is to draft the grounding affidavit, 8) An averment that neither the Minister for Minister for Finance, the Chief State Solicitor’s notice of motion and the petition. These Finance nor the State has, either directly or Office and the Companies Registration Office. documents then have to be stamped and filed in indirectly, intermeddled in any of the assets Assuming the documents are in order, the the Central Office of the High Court, and a date of the company, and that the company makes Revenue solicitors will communicate with for the hearing will be assigned. (Practitioners no claim against the minister arising from the the Revenue Commissioners, who will then should ask for a date of hearing of at least one provisions of the State Property Act 1954, ordinarily issue a ‘letter of no objection’. month to six weeks from the time of application, and Practitioners should note that, in practice, for reasons outlined below.) Documents to be 9) An undertaking both on the petitioner’s this can take a number of weeks. The office filed in the Central Office of the High Court behalf, and on behalf of the company, to pay of the Minister for Finance, if satisfied with must, of course, be filed in person, which may any and all outstanding taxes within one the paperwork, will instruct the Chief State entail the use of town agents for practitioners month of any order to restore the company Solicitor’s Office to issue a ‘letter of no based outside Dublin. being made by the court. objection’ on its behalf. Again, this can take Stamp duty totalling €182 will be incurred a number of weeks. Practitioners should note on these three documents, together with The grounding affidavit will also generally that the Revenue solicitors currently charge commissioner for oaths costs associated with exhibit the following: €530 to cover their legal expenses, while the the grounding affidavit and its exhibits, and also 1) Copy certificate of incorporation, Chief State Solicitor’s Office charges €350 to town agent fees for those practitioners based 2) Copy memorandum and articles of cover its expenses in providing the ‘letter of no outside Dublin. association, objection’. The grounding affidavit should contain, 3) Print-off from the CRO website, showing the A second affidavit exhibiting these two among other things, paragraphs averring to: company as being struck-off, additional ‘letters of no objection’ must be 1) The date of incorporation of the company, 4) Copy up-to-date filed annual returns, and sworn, stamped and filed prior to the hearing 2) The objects of the company, 5) Copy ‘letter of no objection’ from the of the application. This is why it is prudent to 3) The share capital of the company, Companies Registration Office. allow at least a month, if not slightly longer, 4) A list of the directors, so that these two letters can be obtained. 5) The reasons for the strike-off, Once the filed copies have been received back, Otherwise, you could be faced with seeking an 6) The reasons why the company wishes to be a certified copy of the petition, notice of motion adjournment while you wait for this paperwork restored to the Companies Register, and the grounding affidavit must be served, to arrive, which will obviously add to costs. Law Society Gazette www.gazette.ie Aug/Sept 2011 company law 39 should be aware of this requirement. All A good example of this can be seen in Re were not worthless, as had originally been outstanding returns, if not already filed, Eden Quay Investments Limited, where the thought. The Supreme Court held that should be submitted to directors of a company the shareholders were entitled to share in the registrar within one struck off some 18 years a surplus of some IR£2.5 million arising month of the making of “A company previously successfully from the liquidation of Hibernian Transport the order. An office copy applied to have the company Companies Limited. G of the order should also restoration application restored. The company be sent to the Revenue can make sound held some 514,256 shares This article should be read in conjunction with solicitors and the Chief in Hibernian Transport ‘The art of restoration’ by Elaine Grier BL that State Solicitor’s Office, so financial sense” Companies Limited, which appeared in the Aug/Sept 2006 issue (p22). that they can close their respective files. This is a procedural, and not statutory, requirement. The effect of restoration to the Companies Look it up Register is that the company shall be deemed to have continued in existence as if its name Cases: • Companies (Amendment) Act 1982, section had not been struck off. • Hibernian Transport Companies Ltd 12B(3) Practitioners should also be aware, when (1994) 1 ILRM 48 • State Property Act 1954 advising a company, of the high costs and • Re Eden Quay Investments Limited, The • Taxes Consolidation Act 1997, section 882 outlays that will be incurred in making a Irish Times, 12 April 1994 company restoration application in the High • Re New Ad Advertising Company Limited Literature: Court, as outlined in the panel. [2006] IEHC 19 • Companies Registration Office, ‘Court order The company will likely have good reason restoration’, at www.cro.ie/ena/court_order_ for wishing to be restored. For instance, Legislation: restoration.aspx the company may own property that the • Companies Act 1963, as amended, • Grier, Elaine, ‘The art of restoration’, Law directors and shareholders may wish to section 311 Society Gazette, vol 100, no 7, August/ sell. Therefore, a company restoration • Companies Act 1963, section 311(8) September 2006 application can make sound financial sense.

Sheehan & Partners Solicitors, in association with Keith Borer Consultants, Forensic Scientists present FORENSIC SCIENCE IN CRIMINAL TRIALS

Date: Thursday 20 October 2011, 5.30-7.30 pm Venue: The Ashling Hotel, Parkgate Street, Dublin 8 Presenters: Sheehan & Partners Solicitors Chairperson: Peter Mullan, Managing Partner, Sheehan & Partners Solicitors Speakers: Ann Kiernan, Keith Borer Consultants: Firearms Evidence: A Shot in the Dark Simon Bunter, Keith Borer Consultants: Fingerprint Evidence: Not as Black & White as it Seems

CPD Hours: 2. Fee: No admission fee. Contact: [email protected] 40 tendering Law Society Gazette www.gazette.ie Aug/Sept 2011

Legal services of at least €500 million are tendered annually. It’s becoming increasingly difficult to secure this business, however, due to the amount of competition out there. Sheena Lowey returns to sender Law Society Gazette www.gazette.ie Aug/Sept 2011 tendering 41

endering is fast becoming a very Having a clear understanding of your prospect, important part of business development, establishing a rapport and getting on their radar is far where firms of all sizes are vying for more important than rushing headlong into the process market share in what has become an and prematurely answering a tender for the purpose of increasingly competitive market place. ‘going through the motions’. Tendering is a competitive process It is essential not to underestimate the work involved in Twhere services are required by one party (the buyer) and tendering. Whether responding to an RFT or making a Sheena Lowey is a are sought from another (the supplier). Public authorities strategic approach, three key elements should be assessed: bid and marketing are trained to select the best supplier, who will not only • Potential financial reward – measure against the specialist. She is an meet, but exceed, their needs – and at a reasonable cost. estimated time/cost to prepare the bid, accredited member Legal services to a value of at least €500 million are • Synergy of your business objectives and culture with of the Association tendered annually – many contracts fall below the €25,000 theirs – this can be the make-or-break of a successful of Proposal threshold that requires the tender to be advertised on the working partnership, Management e-tenders website. As those of you who tender know only • Why the bid is being tendered – tenders can be used Professionals too well, it is becoming more and more difficult to secure to gather your ideas for free, so research at this stage is this business. time prudently invested. When considering tendering, think about it as part of your sales and marketing strategy, and not merely filling in Each tender comprises a unique blend of ingredients to a questionnaire or writing a document. People too often be deciphered. To reach the presentation stage, which focus on ‘answering the questions’ before (i) building provides an opportunity to establish a natural rapport knowledge and relationships, (ii) identifying what the between you and the awarding authority, and vice versa, buyer wants, (iii) understanding the subtle nuances behind your tender document must comply with every protocol the process, or (iv) considering ways to in the RFT document. Remember that stand out from your competitors. buyers want business partners, not just Each section a tenderer submits creates “At the risk of lawyers. an impression of how the bidder might generalisation, the perform as a supplier. Researching the Write in a compelling manner precise needs of a public-sector buyer language solicitors It is important to use clear and vivid before embarking on the tender process use tends to assume English and to answer the questions can only be done through meeting a the reader is a legal fully. prospective client in advance of a tender Poorly written, incomplete and being submitted. practitioner with badly formatted bids will create the Law firms should organise – either equal familiarity wrong impression, in particular if individually or as a consortium – and your competitors put their documents agree a list of potential public-sector with the associated together with far more attention to prospects to whom they would like to jargon” detail. supply legal services. Who buys legal A punchy executive summary of services in Munster, for example? What the bid at the beginning of the tender types of legal services are commonly required? document is key to gaining a competitive edge. It sets the The next step is to learn everything there is to know scene before the evaluators launch into the turgid task about the prospect, the current supplier, the challenges of reviewing many submissions. The executive summary they face, where your services might add value, and how should include: they like to conduct business, including everything from • A brief outline of your firm’s understanding of the frequency of communication to billing. Having gathered client’s requirements and your proposed solution, this information, it is easier to respond to ‘requests for having regard to the RFT, tenders’ (RFTs), being in a better position to target your • Citations of work of a similar nature to that required responses based on a greater knowledge of your client. by the awarding authority (to demonstrate your track This will increase your chances of success. record), • A brief synopsis of your key team players, their roles and their relevant experience, Fast facts • Your fee proposal, and, finally, > Think about tendering as part of your sales and marketing strategy • Your unique selling propositions – why are you better > Build knowledge and relationships, identify what the buyer wants, understand than your competitors? the subtle nuances behind the process, and consider ways to stand out from your competitors However good the writers are within your firm, you will > Your submission must comply with every protocol in the ‘request for tenders’ need a lead writer to pull together all the efforts, including document >> standard requirements and the specially written sections. > It is important to be selective about the tenders to which you respond This person should make the document read as though it was the product of one writer. 42 tendering Law Society Gazette www.gazette.ie Aug/Sept 2011 At the risk of generalisation, the language • If a decision is taken to bid, a team is executive summary, CVs, policy documents solicitors use tends to assume the reader is a formed, made up of those with the greatest – for example, quality, environmental, health legal practitioner with equal familiarity with knowledge of the client/sector and and safety – do not change that often, but the associated jargon. When it comes to other experience of the work-type specified in the simply require tailoring for each tender professions, an engineer is technical and RFT. submission. However, you should be vigilant esoteric, while accountants prefer the comfort • Contact is made with the supplier for when lifting sections from previous tenders. of numbers. Bid writers have none of these more information and to clarify any points. hang-ups and have been trained in the art of With gentle probing, you can unearth any A winning team persuasive writing. number of issues not in the tender – but be The team’s composition should be flexible. Vital components for tendering success careful not to expose too much about your What is important is that everyone in the are your firm’s ability to communicate your firm. bid has a defined role and that responsibility passion for the target client and their work, an • Writing tasks are assigned and coordinated for doing the work is allocated to the most empathy with the client and, finally, writing in by the appointed bid manager. appropriate level. Therefore, there’s no need a compelling way about your firm’s business • Reproduction of standard items (project to include three partners when you really only proposition. understanding, project need one. execution, quality Cascade the work to A methodical response systems, project team, “Vital components senior associates and Prepare a bid plan template and and so on) is assembled. for tendering success solicitors, not just because documentation production schedule and • Production of a draft this is the best cost solution implement it ruthlessly for all tender for distribution and are your firm’s ability for the buyer, but it reflects competitions. Appoint your best writer to be comment. to communicate your what will often happen trained as a bid manager. Responding to an • Final edit and sign-off passion for the target in practice. The bottom invitation to tender (ITT) or a RFT at the at partner level. line is that your bid team last minute is a recipe for disaster and often • Design and client and their work, should not be carrying any a waste of scarce resources. Use external bid customisation of bid an empathy with the passengers. management consultants where appropriate. documentation agreed. These people bring a new skill-set and • Despatch and delivery client and, finally, Looking good discipline to the process. before deadline. writing in a compelling We live in a visual age. So, There are many approaches that work, but no matter how good and those with the greatest success rate tend to While every tender way about your persuasive the written word, follow a pattern: response should be firm’s business your document will lose • RFT documentation is sent to the in-house tailored to the specific impact without colour and or external bid specialists immediately on prospect, there are proposition” design input. receipt. some parts that do not When planning your • An assessment of the opportunity is made need to be written from scratch. It is wise, tender, make sure that there is sufficient by the partner(s) responsible for the area(s) therefore, to invest in the creation of a bid time for the bid submission document to be of expertise sought. library that will contain ‘boilerplate’ sections, designed in an eye-catching and attractive • A bid or no-bid decision is recommended often requested in tenders, that can be used way, making graphics and photos relevant to for consideration by the managing partner. time and time again. Templates such as an the buyer and your offering. Many firms have this design facility in-house, but if you do not, allow additional time for this work to be bid or no bid? outsourced. Good design makes it easy for the Its i important to be selective about the Challenge yourself as to whether to bid or evaluators to read and navigate their way tenders to which you respond. Therefore, not by asking the following questions: through your bid (and to award those thought should be given to how much the • Have we ever had any previous relationship all-important marks), so enhancing the tender will cost you in terms of the cost with this organisation? presentation of the bid document creates a of submitting a bid, whether you have the • Have we expressed an interest in working positive impression that you care about how necessary resources available, and whether with them through meeting them recently? the awarding authority perceives you and the work is right for your firm. Many firms are • Do we know how much business is there to that you have gone the extra mile in terms of reluctant to turn down invitations to tender, explore? professional presentation. although an invitation can be turned down • Can we get to talk to the key people in the As well as being visual, we are also tactile positively, allowing you to gain credibility, prospect’s organisation? beings. Make sure that the covers of your while leaving the door open for possible • Would they put us in conflict with existing document are a thick board and the pages are future relationships. clients of the firm? of high-quality vellum, so that your document For example, if a tender is valued at • Can we provide the services they need? feels right and looks weighty. €40,000 and it costs you €10,000 to compile • Do we need to secure the services via a the bid document, is it a commercially viable joint venture with another firm? Get feedback and use it proposition to bid? • What is an acceptable profit margin for this Always know why you won and find out why So, just because you have been ‘invited’ to business? you lost. Feedback is vital for refining your bid or had a ‘request’, or simply because you • Who, if any, are the incumbents? bid strategy, so make time for the debrief, feel you ought to appear interested, does not • What are the service delivery gaps where to which you are entitled. In a changing mean that you are compelled to respond. you could add value? and ever-more competitive market, it is the committed, innovative and unequivocally Law Society Gazette www.gazette.ie Aug/Sept 2011 tendering 43

analyse this determined law firms that will reap the rewards, because they have acted on the Before tendering, consider the following: • Do you have a comprehensive understanding feedback they receive. It is also important • What percentage of your business has been of the elements of a typical tender to share the feedback with your colleagues. won via public tendering? process and the ‘role’ of each stage, for One area of importance is pricing. If a • Has your firm registered on all online tender example, expression of interest (EOI), pre- succession of debriefings suggests that your websites relevant to your services/sector? qualification questionnaire (PQQ), invitation fee structure continues to be uncompetitive, • Is there someone in the firm responsible to tender (ITT), presentation/interview? do something about it before you submit for identifying (proactively) and monitoring • Equally, do you have a complete grasp of the your next bid. (daily) tenders and other new business selection and evaluation award criteria used The Government has signalled that opportunities? and their importance? it intends to introduce what is called a • What percentage of tenders does your firm • Does your firm have tried-and-tested ‘framework agreement’ for legal services from currently win? It should be at least one out processes in place for each step of the 2012. So, instead of public buyers issuing of every three tendered. Is it in line with tender process? separate tenders for discrete elements of legal competitors or the sector? • Are there personnel resources within your services, all buyers will be required to use • Is the cost of preparing tenders firm who are skilled in, and responsible for, only those solicitors and barristers who have proportionate to the value of the tender? tendering? pre-qualified to be a part of the framework • Is your firm fully familiar with national and • Does your firm always ask for a debrief? agreement. Your challenge is to ensure that EU procurement rules and guidance, and Is it led by someone independent of the your practice – perhaps in a consortium – is with the new RFT template documents and tender team? What facts and feedback have in the framework. If you are not, you will be contracts for service? emerged from any debriefs? debarred from getting any public sector work for at least five years. G

        WINNER of the 2011 Irish Institute of Training & Development (IITD) Awards - Networks & Groups Category

This is awarded to the best submission from Networks or Groups who display excellence in training and development.

DATE EVENT DISCOUNTED FULL CPD HOURS FEE* FEE 4.5 Management & Professional Development 13 Sept Law Society Skillnet: Impressive Presenting for Solicitors €202 €270 Skills (by Group Study) Law Society Skillnet: Growing and Marketing a Solicitor’s 4 Management & Professional Development 21 Sept €180 €240 practice Skills (by Group Study) Law Society Professional Training in partnership with the Em- 23 Sept ployment and Equality Law Committee present: Employment €158 €210 3.5 General (by Group Study) Law Update 2011 – Essential Know-How for all Practitioners Law Society Skillnet in partnership with the Society of Trust 29 Sept and Estate Practitioners (STEP) present: Legislation and €180 €240 4 General (by Group Study) Practice Update 2011 Law Society Professional Training in partnership with the 3 General (by Group Study) plus 1 Regulatory 13 Oct Conveyancing Committee present the Annual Property Law €180 €240 matters (by Group study) Conference 2011 Law Society Professional Training in partnership with the Busi- 3 Nov €112 €150 2.5 General (by Group Study) ness Law Committee present: Annual Contract Law Update 2011 Law Society Finuas Network in partnership with the Irish Tax 24 Nov Institute present International Financial Services – Ireland’s €112 €150 2.5 General (by Group Study) Role, the challenges and the future Law Society Professional Training in partnership with the In- 2 Management and Professional Development 25 Nov house and Public Sector Solicitors Committee present their €135 €180 Skills plus 1 Regulatory matters (by Group Annual Conference 2011 study) Law Society Professional Training in partnership with Solici- 29 Nov tors for the Elderly Ireland present the A to Z of Enduring €135 €180 3 General (by Group Study) Powers of Attorney Law Society Professional Training: Governance Risk and 3 Management and Professional Development 2 Dec €180 €240 Compliance Seminar Skills plus 1 Regulatory matters (by group study)

Law Society Skillnet in partnership with CIMA present an Full Management & Professional Development Ongoing €670 €895 online Certifi cate in Business Accounting Skills requirement for 2011 (by eLearning)

Ongoing Suite of eLearning courses To register or for further Full Management & Professional Development • How to create an eNewsletter - €90 (reduced from €150) information email: Skills requirement for 2011 (by eLearning) • Touch typing - €40 [email protected] • PowerPoint – all levels – €80 • Microsoft Word – all levels - €80 • Excel for beginners - €80

For full details on all of these events visit webpage www.lawsociety.ie/Lspt or contact a member of the Law Society Professional Training team on: P: 01 881 5727 E: [email protected] F: 01 672 4890 *Applicable to Skillnet members/Public sector subscribers

LSPT ad Gazette Sept 2011.indd 1 02/08/2011 12:52 Law Society Gazette www.gazette.ie Aug/Sept 2011 people and places 45 WINNER of the 2011 Irish Institute of Training & Development (IITD) Awards - Networks & Groups Category

This is awarded to the best submission from Networks or Groups who display excellence in training and development.

DATE EVENT DISCOUNTED FULL CPD HOURS FEE* FEE At the recent Irish Women Lawyers’ Association gala dinner were (l to r): Tracey Donnery (programme manager, Skillnets Ltd), Anne Harnett O’Connor BL, Ms Justice 4.5 Management & Professional Development Maureen Clark (president), Attracta O’Regan (head of Law Society Skillnet), Máire Whelan SC (attorney general), Michelle Ní Longáin (solicitor and chair of the Law 13 Sept Law Society Skillnet: Impressive Presenting for Solicitors €202 €270 Skills (by Group Study) Society Skillnet Steering Committee) and Maura Butler (vice-chairperson, IWLA). This collaboration marked a historical first for Law Society Skillnet and the Bar Council Law Society Skillnet: Growing and Marketing a Solicitor’s 4 Management & Professional Development 21 Sept €180 €240 practice Skills (by Group Study) Law Society Professional Training in partnership with the Em- 23 Sept ployment and Equality Law Committee present: Employment €158 €210 3.5 General (by Group Study) Law Update 2011 – Essential Know-How for all Practitioners Law Society Skillnet in partnership with the Society of Trust 29 Sept and Estate Practitioners (STEP) present: Legislation and €180 €240 4 General (by Group Study) Practice Update 2011 Law Society Professional Training in partnership with the 3 General (by Group Study) plus 1 Regulatory 13 Oct Conveyancing Committee present the Annual Property Law €180 €240 matters (by Group study) Conference 2011 Law Society Professional Training in partnership with the Busi- 3 Nov €112 €150 2.5 General (by Group Study) ness Law Committee present: Annual Contract Law Update 2011 Law Society Finuas Network in partnership with the Irish Tax 24 Nov Institute present International Financial Services – Ireland’s €112 €150 2.5 General (by Group Study) Role, the challenges and the future Law Society Professional Training in partnership with the In- 2 Management and Professional Development 25 Nov house and Public Sector Solicitors Committee present their €135 €180 Skills plus 1 Regulatory matters (by Group Annual Conference 2011 study) Law Society Professional Training in partnership with Solici- 29 Nov tors for the Elderly Ireland present the A to Z of Enduring €135 €180 3 General (by Group Study) Powers of Attorney Law Society Professional Training: Governance Risk and 3 Management and Professional Development 2 Dec €180 €240 Compliance Seminar Skills plus 1 Regulatory matters (by group study) The Barrister Transfer Process concluded its Essentials of Legal Practice Course 2011 at Blackhall Place from 4–2 July, with 12 barristers taking part. The course was Law Society Skillnet in partnership with CIMA present an Full Management & Professional Development Ongoing €670 €895 coordinated by the CPD Scheme Unit, comprising Anthea Coll (scheme executive), Sharon Boggans (scheme administrator) and Seana Kevany (assistant administrator) online Certifi cate in Business Accounting Skills requirement for 2011 (by eLearning)

Ongoing Suite of eLearning courses To register or for further Full Management & Professional Development • How to create an eNewsletter - €90 (reduced from €150) information email: Skills requirement for 2011 (by eLearning) • Touch typing - €40 [email protected] Self assessment is compulsory and it not just for the self employed. • PowerPoint – all levels – €80 Income Tax 2010 • Microsoft Word – all levels - €80 Making your income tax return can be difficult and mistakes are easy to make, • Excel for beginners - €80 Duffyt Taxa ion Services mistakes are seen as evasion – and evasion is a serious offence and can result 70 Northumberland Road, Ballsbridge, in fines and imprisonment. Therefore solve your income tax assessment Dublin 4. Tel: 086 079 1476 For full details on all of these events visit webpage www.lawsociety.ie/Lspt or contact a member of the Law Society Email: [email protected] problems by placing them in the hands of an expert who can help – contact Professional Training team on: www.duffytaxation.com Duffy Taxation Services – now – and don’t leave it until the October Deadline. P: 01 881 5727 E: [email protected] F: 01 672 4890 *Applicable to Skillnet members/Public sector subscribers

LSPT ad Gazette Sept 2011.indd 1 02/08/2011 12:52 46 people and places Law Society Gazette www.gazette.ie Aug/Sept 2011 Waterford solicitors welcome Tall Ships A ll

pics : G arrett F it zG erald P hotography

On board the Wylde Swan were Leona McDonald (left) and Rosa Eivers

Enjoying the arrival of the tall ships to Waterford on 30 June 2011 were Morette Kinsella and At a presentation to Judge Bill Harnett (retired) by Waterford’s solicitors were (l to r): Tom Treanor David Smyth (retired District Court clerk), Donal O’Connell, Derry O’Carroll, Gerard O’Herlihy (president, Waterford Law Society), Judge William Harnett (retired), John Purcell and Jack Purcell (District Court clerk)

Sarah Power, Gerard O’Herlihy (president, Waterford Law Society) and Kieran Moran (vice-president, Southern Bernadette Law Association) prepare to board the Wylde Swan at the Tall Ships reception in Waterford Cahill and Niall King

David Burke, Geraldine Kelly (vice-president, Dublin Solicitors’ Bar Association), and Emmet Halley, at the Waterford Law Society ‘Tall Ships’ reception Tom Murran (Waterford), Judge Alice Doyle and Michael Lanigan (Kilkenny) attended the Waterford Law Society ‘Tall Ships’ reception Law Society Gazette www.gazette.ie Aug/Sept 2011 people and places 47 Society hosts dinner for IBA leaders in Blackhall Place

Front (l to r): Law Society President John Costello, IBA President Akira Kawamura, IBA Vice-President Michael Reynolds and Law Society Senior Vice-President Donald Binchy. Back (l to r): IBA Legal Practice Vice-Chair Michael Greene, IBA Deputy Executive Director Tim Hughes, DSBA Vice-President Geraldine Kelly, Council member James McCourt, Geraldine Clarke, David O’Donnell, Deputy Director General Mary Keane, John F Buckley and Director General Ken Murphy Augustus Cullen Law expands into Dublin’s legal quarter Augustus Cullen Law continues the expansion of its practice, with the opening of the firm’s new Dublin office. Located in the Ormond Building, 31-36 Ormond Quay, Dublin 7, the modern premises are just 50 steps from the Four Courts. Augustus Cullen Law now employs 17 solicitors and almost 40 staff. The firm’s head offices are located in Wicklow town, with sub-offices in Rathdrum and Carnew. The firm was established in 1887 in Church Street, Wicklow, by the late Frank Kennedy. The late Augustus Cullen Staff of Augustus Cullen Law celebrate the expansion of the Wicklow acquired that practice in 1924, firm into new offices on Ormond Quay, Dublin practising as Augustus Cullen & Son from 1958. In 1981, the firm acquired the practice of EJH Hopkins, which had (Lto r): Geraldine Keehan, Michael Boylan, served Wicklow town and the Gus Cullen, David Lavelle and Joice Carthy Carnew and Tinahely areas. Managing partner David Lavelle says: “This is a vote of confidence in the future of the firm in these difficult economic times. The new premises will enable us to continue Attending our expansion and continue the official opening of Augustus Cullen Law’s new to provide the best possible Dublin office were (l to r): Andrea legal service to our clients, Liston, Laurence Cullen (past- particularly our expanding president of the Law Society) and Dublin client base.” Rachael Liston 48 people and places Law Society Gazette www.gazette.ie Aug/Sept 2011 McNulty Boylan & Partners on the move Judith Mason Hayes celebrate move Riordan & Curran has

pic has been appointed

: M appointed as Michael ike a partner in Hanley as a M

c Mason Hayes partner in Sw & Curran’s its financial eeney insolvency services /

provision department. group. He She joined has over ten the firm in 2004 from another years’ experience and joined the Dublin practice. In addition, she is firm in 2008 following the merger licensed as an attorney in New York. with Arthur O’Hagan.

Jane Mason Hayes Pilkington & Curran has has been appointed appointed as Rachel a partner at Kavanagh as At the opening of the McNulty Boylan and Partners offices in Hanover Street, Mason Hayes a partner in Cork, were (l to r): John Boylan, David Browne, Niall Daly and Brendan & Curran. its insurance Cunningham (partners), with Deputy Lord Mayor Terry Shannon and Ger She is an defence O’Mahony (President Cork Chamber of Commerce) experienced litigation litigator, team. She focusing on professional liability has worked for over 15 years in Cork firm McNulty Boylan & Says David Browne: “With claims and business disputes. insurance defence litigation and Partners celebrated their move morale within the profession She is an expert in the area of has advised leading international to new premises on 1 July 2011. at an all-time low for a number corporate immigration and joined and Irish-based insurance The firm’s new offices are located of reasons, we have been the firm in 2008. companies. in Hanover Street – just a gavel’s proactive in changing to meet throw from the courthouse on the needs of modern society, William Brian Washington Street (if we had gavels and the challenges of being Fry has McElligott appointed has been in a recession for three years in Irish courts). Over 300 high- Gráinne Ní appointed profile legal and business figures now. The partners here have Dhubhghaill to the gathered to help them celebrate. planned for the challenges ahead to the position of The firm comprises four and, in particular, have embraced position of associate in partners, Niall Daly, John Boylan, technology. In a short number of associate in William Fry’s Brendan Cunningham and David years, all clients will have remote its banking technology Browne, who are supported by a access to their files on line – this is and financial department. services department. She joined He joined the firm in June 2011 dedicated staff of 12. the future of the legal profession.” the firm in May 2011, having and holds a degree in Theoretical previously worked in London with Physics from Trinity College Allen & Overy and SNR Denton. Dublin.

Josepha’s Negligent Behaviour

Irish family law practitioner, Josepha Madigan, has just published her first novel Negligent Behaviour, which is 

now available to purchase on www.

amazon.co.uk.

The story revolves around sassy solicitor Helene, who has spent

the last few years getting what she

wants. Rising through the ranks of  Josepha Madigan: It’s not autobio- a high-profile Dublin law firm (Irish  graphical, despite what anyone might solicitors should have some fun think!’  with this!), she goes on a voyage  of self-discovery of both her own only a bit more about the choices    motivations, and those of the we all make, but also how life  members of her profession. can compound or confront these  Many people love being a lawyer, and that’s sweet. However, for some it can be a struggle due to an impossible workload, bullying superiors, long hours or Madigan maintains that this is mistakes.”  just uncertainty that this is how they want to spend their years. LawCare offers free and completely confidential support for those who are finding that life as a a “no-holds-barred, insider and At time of going to press, Amazon  lawyer is not a bowl of cherries.  explosive view of the Dublin legal was quoting a price of Stg£14.63  scene”. (plus £2.80 delivery) for Negligent   She adds: “On this voyage of Behaviour, with one customer review    discovery with Helene, we learn not giving it five stars.                                                                                                                     Law Society Gazette www.gazette.ie Aug/Sept 2011 obituary 49

james j ivers 1927-2011 An appreciation pic

Jim Ivers’ passing on 28 June : knowledge of how government lensmen 2011 serves as occasion to worked at all levels – which was reflect on the extent to which invaluable to those who worked his period in office as director with him in the Society. His pro- general of the Law Society, from active approach was a welcome 1973 to 1990, transformed the antidote to a profession that solicitors’ profession and laid was naturally conservative and the foundations for the way in suspicious of change. He was also which it has been administered skilled in implanting ideas in the in the intervening years. minds of others, which they later In the decade before his came to believe were their own appointment, the profession – in and, as a diplomat, he allowed parallel with the economy – had them to go on thinking so. grown at a very fast pace and Jim was a good-humoured faced many challenges in the sociable person, widely read and way it responded to its new informed, who enjoyed lively circumstances. company and exploring new It had outgrown its horizons. accommodation in the Four His wife Nanette, who gave Courts and, while it had him 14 children and also found acquired Blackhall Place time to act as his chauffeur, (inspired by Peter Prentice), since he did not drive, was the there was a reluctance to take love of his life and she, her on the task of reconstruction children, grandchildren, great and removal. Jim was largely grandchildren, his sisters and responsible for overcoming extended family filled more than that reluctance and for the half of the pews in the little implementation of the decision church at Tullaghan, Co Leitrim, once it was committed to by the for his requiem Mass. His Council. daughter Mary, who spoke for The other great challenge his family with touching humour, was to modernise our system described a man for whom of education. The Council had family bonds were of utmost been grappling with this for importance and for whom love many years but were stymied and mutual respect were the key by the perceived requirement to happiness. for amending legislation. Jim, To Nanette and their with his wide experience of Monastery CBS, he won a officer, then to the Department children Noel, Mary, Jim, government gained in his scholarship to UCC , which of Health in 1950, from there to Gerard, Ann, Bernadette, Clare, previous incarnations, came to family financial circumstances the Irish Dental Association as Fionnuala, Carmel, Angela, the conclusion that virtually all prevented him from taking up. general secretary from 1958-70, Gilbert, Muireann, Maeve and of our aims could be achieved by However, he later completed his followed by a brief stint with Clodagh, grandchildren, great- using existing powers to make third-level education by night Waterford Co-Op, and thence to grandchildren, sisters, extended statutory instruments, and the acquiring a B Comm, M Econ Donegal as CEO of the North family and his many friends, we task was completed without and MBA successively. Western Health Board from extend our deepest sympathy. having to await legislation. He began his working career 1970-73. May his gentle soul rest in Jim was born in Cork, the with Great Southern Railways, This varied experience peace. G eldest of eight and the only moving to the Department of gave him a deep insight into boy. Educated at the North Post and Telegraphs as a clerical every aspect of Irish life, and JD 50 book reviews Law Society Gazette www.gazette.ie Aug/Sept 2011 Equity and the Law of Trusts in Ireland (5th edition)

Hilary Delany. Round Hall (2011), www.roundhall.ie. ISBN: 978-1-8580-062-15. Price: €125 (incl VAT).

legal practice. The development Chapter 7 on resulting The contrasting case law of interlocutory injunctions and trusts is particularly useful between Ireland and Britain and the explosion of case law on concerning joint deposit other common law jurisdictions injunctions concerning whether accounts, family property trusts is one of the many gems of this damages are an alternative and the presumption of (or lack book. adequate remedy is just an of) advancement. Rebutting It would be a mistake to think example. the presumption of resulting that this book is solely designed This book deals with all the trusts where illegality exists for students and academics. It is traditional areas of trust law, but and settlements by bankrupts is an essential textbook that every also takes into account the recent certainly topical. Chapter 12 on legal practitioner should have in Land and Conveyancing Law Reform the administration of trusts is their office. E quity – the ‘court of conscience’ Act 2009 and the Charities Act invaluable, not least because it is – was traditionally regarded 2009. The latter act introduces rare now for non-professionals John O’Connor is a consultant to the as ‘lawyers’ law’, which rarely a new regulatory framework to take on the onerous obligation Law Society’s changed. However, it has under the Charities Regulation of trustees. There are also Probate, evolved from being a law for Authority and provides a interesting chapters concerning Administration ‘families’ to being part-and- legislative definition of ‘charitable proprietary and promissory and Trusts parcel of modern, commercial purpose’. estoppel. Committee.

Criminal Legislation in Ireland Lynn O’Sullivan. Bloomsbury Professional (2011), www.bloomsbury Corporate Crime professional.com. ISBN: 978-1-84766-7182. Price: €140. Shelley Horan. Bloomsbury Professional (2011), www.bloomsburyprofessional.com. ISBN: The statutes are presented 978-1-8476-655-22. Price: €180 (incl VAT). chronologically and, on even a casual perusal, one can’t help In dealing with the subject but be struck by the relentless of crimes committable by knowledge for any lawyer seeking publication of criminal corporations and people involved to advise a business or business justice legislation since the in corporate life, it comes as no person who is caught up, usually introduction of detention for surprise that the very ambitious for the first time, in the alien questioning in ‘ordinary crime’ Corporate Crime spans well over world of criminal law – either as a provided by the Criminal Justice 1,700 pages. potential witness, victim or alleged Act 1984, with fully two-thirds Shelley Horan’s work will wrongdoer. of the collected legislation greatly help to fill the deficits in Part 2 addresses specific post-dating that act. knowledge and understanding on offences, ranging from corporate The result of this legislative the part of both corporate lawyers fraud, bribery and the like, right enthusiasm is that Ireland and criminal lawyers in relation through to revenue offences, now has a great many more to those areas of the law and breaches of competition criminal offences than it did procedure that, traditionally, have law and of health and safety even in the recent past. Many been the exclusive domain of the regulations. Part 3 deals in a most of these new incriminations other. comprehensive way with offences are both complex and little As a corporate and business under the Companies Acts and the used, and so the solicitor who lawyer, I found Part 1 of this book appropriate enforcement regime, attends to garda station calls particularly informative. It deals including disqualification and Criminal Legislation in would be well advised to have extensively with the principles of restriction orders. Part 4 tackles Ireland collects primary and a copy of this work to hand, criminal liability – including direct, the somewhat more exotic areas of secondary criminal legislation not only in the office, but also absolute, strict and vicarious money laundering and the powers and consolidates their later on visits for those occasions liability of companies, their of the Criminal Assets Bureau. amendments from the Petty when the gardaí may seek to officers and employees – and also Commendably, the entire work Sessions (Ireland) Act 1851 to the invoke some of the less familiar with criminal procedures as they is well written in a clear and Criminal Procedure Act 2010 – and provisions of the growing corpus affect businesses and business straightforward style. G it runs to some 1,500 pages, even of criminal statute law. people and the evidential use of at the expense of the omission of business records. There is, in this Alvin Price is a partner in William the most obscure of the extant Andrew Sheridan is a practising part alone, a wealth of essential Fry. legislation. criminal defence solicitor. Law Society Gazette www.gazette.ie Aug/Sept 2011 reading room 51 E-resource packs The library is launching a series of e-resource packs on popular legal topics over the coming months to assist solicitors in their research, writes Mary Gaynor

Mary Gaynor The first e-resource pack on (eISB), available is head of media law was published in the at www. library and July 2011 e-zine and includes irishstatutebook. information materials relating to defamation, ie, is now optimised services at the libel, privacy and broadcasting. for web browser Law Society of Recent e-zines can be located in access from all mobile Ireland the members’ area under ‘e-zine electronic devices: notebooks, and e-bulletins’, with back issues smartphones, iPads, Kindles and located in the archive. The other electronic readers. Android iPhone and iPad. Members esearching a legal topic next pack will focus on liquor and iPhone/iPad apps are now can borrow up to five books from scratch is both licensing and will be available in available, free of charge, from the at a time and renew online Rdaunting and time early September. Packs on other Android Market and the iTunes (restricted to one renewal per consuming, particularly if it relates popular topics will follow in the store, respectively. Search the item). Further renewals may be to an area of law that is unfamiliar. months to come. relevant store for ‘eISB’. permitted if other members have The library staff receive regular not reserved the books. Library requests to provide up-to-date Electronic Irish Statute Book Book renewals PINs are required to access information on specific topics by The Office of the Attorney It is possible to renew books these functions and are available way of ‘a good article on’ or ‘a General advises that the on the online catalogue or via on request from library@ recently published textbook on.’ electronic Irish Statute Book BookMyne, the library app for lawsociety.ie G Often what members want is something that will bring them to Just published key materials as a starting point in their research. Such requests New books available to borrow require consideration of a host • Ashton, David and Paul Reid, Clubs and Associations • Kotsonouris, Mary, ‘’Tis All Lies, Your Worship’: Tales of different published formats: (2nd ed) (Bristol: Jordans, 2011) from the District Court (Dublin: Liffey Press, 2011) textbooks, articles, legislation, • Astleford, Peter, Hedge Funds and the Law (London: • McLoughlin, Patrick, Commercial Leases and case law and so on. With this in Thomson Reuters Sweet & Maxwell, 2010) Insolvency (Haywards Heath: Bloomsbury mind, the library has decided to • Beale, Simon, Insolvency and Restructuring Manual Professional, 2011) launch a series of e-resource packs (Haywards Heath: Bloomsbury Professional, 2009) • Mills, Simon et al, Disciplinary Procedures in the on specific topics that will be • Carew, Sarah and Sonya Donnelly, The Devil’s Statutory Professions (Haywards Heath: Bloomsbury published on the library page in Handbook (Dublin: Round Hall, 2011) Professional, 2011) the members’ area of the website • Collins, Matthew, The Law of Defamation and the • Moffatt, Jane (ed), Employment Law (3rd ed) (Law over the coming months. Internet (3rd ed) (Oxford: OUP, 2010) Society of Ireland manual) (Oxford: OUP, 2011) Each e-resource pack will • Cousins, Mel, Social Security Law in Ireland • Philips, Fred, The Modern Judiciary: Challenges, contain a list of selected recent (London: Kluwer, 2010) Stresses and Strains (London: Wildy Simmonds & materials, with links to full • Dashwood, Alan, Wyatt and Dashwood’s European Hill, 2011) text electronic material where Union Law (6th ed) (Oxford: Hart, 2011) • Piris, Jean-Claude, The Lisbon Treaty (Cambridge: available. Due to copyright • Davis, Glen et al, Butterworths Insolvency Law Cambridge University Press, 2010) restrictions, it is not always Handbook (13th ed) (London: LexisNexis, 2011) • Purdy, Alastair, Termination of Employment: A possible to provide links to • Denny, Neil, The Collaborative Law Companion Practical Guide for Employers (2nd ed) (Haywards electronic full-text documents, (Bristol: Jordans, 2011) Heath: Bloomsbury Professional, 2011) but material not available • Goode, Roy, Principles of Corporate Insolvency Law • Shannon, Geoffrey (ed), Family Law (4th ed) (Law electronically can be requested (London: Sweet & Maxwell, 2011) Society of Ireland manual) (Oxford: OUP, 2011) from the library. The resource • Gore-Grimes, John, Planning and Environmental Law • Soeharno, Jonathan, The Integrity of the Judge packs will be updated on a regular (Haywards Heath: Bloomsbury Professional, 2011) (London: Ashgate, 2009) basis as new material on the • Heffernan, Liz, Legal Professional Privilege • Titchen, Ken and Susan Singleton, Buying and particular topic becomes available. (Haywards Heath: Bloomsbury Professional, 2011) Selling Insolvent Companies (Haywards Heath: wifi in the library • Houston, Eugenie, Transfers of Undertakings in Bloomsbury Professional, 2011) Ireland: Employment Rights (Haywards Heath, • Wallington, Peter, Butterworths Employment Law Wifi is now available in the Bloomsbury Professional, 2011) Handbook (19th ed) (London: LexisNexis, 2011) library. Ask at the desk for • Kenna, Kevin, The Lives and Times of the Presidents • Woods, James V, Liquor Licensing Laws of Ireland log-in details. of Ireland (Dublin: Liffey Press, 2010) (4th ed) (Limerick: Woods, 2011) 52 practice notes Law Society Gazette www.gazette.ie Aug/Sept 2011 briefing Practice notes Beware undertakings to lodge ‘net proceeds of sale’

conveyancing Committee

The use of a nebulous phrase such • Has the full (and irrevocable) and does the solicitor have ac- er than the ‘net proceeds of sale’. as ‘net proceeds of sale’ is inher- written authority of the client tual and unfettered control of • Do not give the undertaking ently dangerous, and the Convey- been obtained? the deeds? Check the wording where a sale has not already ancing Committee is of the view • In a probate/administration of any ATR under which the been agreed. that undertakings to discharge case, what is to happen if the in- deeds have been taken up from a • Carry out searches against the net proceeds of sale should rarely structing executor/administra- lending institution – if the ATR client and the property before be given. Solicitors should always tor dies? requires ‘net proceeds of sale’ to giving the undertaking. first consider whether or not there • Is the undertaking worded so as be lodged, this should be negoti- is some alternative way of dealing to apply only ‘if and when the ated with the lending institution The committee would strongly with the issue besides the solicitor property is sold’? to specify the exact agreed figure suggest that, if giving an under- giving the undertaking. For ex- • Is the undertaking stated to be that the lender requires in order taking to a lending institution to ample, can a charge, or perhaps a subject to the solicitor having to release the deeds and to give a lodge monies out of the proceeds second charge, over the property carriage of sale? discharge/release of any charge/ of sale, a solicitor should establish be put in place, even if on a tem- • Is the undertaking stated to mortgage on the property. exactly what and how much mon- porary basis? be subject to the sale proceeds • ‘Net proceeds’ should be clearly ies are to be retained by the ven- If, however, a solicitor decides coming through the solicitor’s defined and quantified, that is, a dor from the gross sale proceeds, to give such an undertaking, the office? specific figure should be agreed and that these amounts should be following, while not comprising an • If the undertaking relates to the in advance. agreed with both the client and the exhaustive list, are some of the is- sale of property, does the solici- • Any undertaking should be to lender at the pre-contract stage, sues that require to be addressed: tor have possession of the deeds pay the exact agreed figure rath- before the undertaking is given.

Now is the time to sign up for a diploma course and the choice and Law Society of Ireland range of courses on offer has never been wider. After the success of the Spring programme we are now taking bookings for our Autumn Diploma Programme programme. As well as longstanding popular courses, including Finance Law and Commercial Litigation - there are also two new Autumn 2011 courses that may be of interest to practitioners namely a Diploma in In-House Practice and a Diploma in European Union Law. To ensure Legal Education for the Real World greater accessibility and choice all diploma courses are now webcast.

The full Autumn 2011 Programme is as follows: The diploma fee is €2,400/€2,150 and the fee for certifi cates is €1,160. Diploma Courses Start Date * €1,480 - Fee includes free iPad 2. Diploma in Commercial Litigation Wednesday 05 October 2011 A 20% discount applies to applications received from unemployed Diploma in Finance Law Thursday 06 October 2011 solicitors. Diploma in Corporate Law & Governance Monday 10 October 2011 Diploma in In-House Practice (New) Tuesday 11 October 2011 Early booking is advised as places on some courses are limited. Diploma in Family Law Wednesday 19 October 2011 Diploma in European Union Law (New) Saturday 22 October 2011 Diploma in Trust & Estate Planning (STEP) Saturday 12 November 2011 CONTACT US Full details of the above courses are available on the web Certif icate Courses Start Date www.lawsociety.ie/diplomas Certifi cate in Trust & Estate Planning (STEP) (New) Saturday 10 September 2011 or by contacting a member of the Diploma Team at Certifi cate in Employment Law Advocacy & Skills Saturday 24 September 2011 [email protected] or (New) Tel. 01 672 4802. Certifi cate in Capacity, Mental Health & the Law Tuesday 27 September 2011 Certifi cate in Commercial Contracts – iPad Mobile Saturday 05 November 2011 Learning Pilot Project* QR code link Certifi cate in Criminal Litigation Saturday 19 November 2011 to website

Legal Language Courses Start Date Certifi cate in Legal German Tuesday 20 September 2011 Diploma in Legal French Wednesday 12 October 2011

Diploma ad Gazette Sept 2011 half page.indd 1 04/08/2011 17:08    Law Society Gazette www.gazette.ie Aug/Sept 2011practice noteS 53  briefing Revised VAT Special Condition 3 and Pre-Contract VAT Enquiries conveyancing Committee, taxation committee The current VAT on property sys- Condition 3 and the new Pre- Condition 3 that are appropriate a result of the lack of activity in the tem came into operation on 1 July Contract VAT Enquiries have been in each transaction. The guide commercial property market, there 2008 (see ‘VAT on property guide’ reviewed by the Revenue Commis- also contains a helpful note in has been limited opportunity to test on the Revenue website, www.rev- sioners on a ‘without prejudice’ ba- respect of the joint option to tax, the effectiveness of the documents enue.ie). Since the introduction of sis, and the Revenue Commission- and illustrates the operation of in that context. It is therefore rec- this system, the Law Society has ers did not have any comments in the joint option to tax with two ommended that the documents be issued two revisions of the VAT respect of the documents. examples. used with caution in commercial Special Condition 3 to be used in transactions, particularly those in- contracts dealing with property. In Pre-Contract VAT Enquiries VAT Special Condition 3 volving a combination of varying  addition, the Law Society has is- (PCVE) (August 2011 edition) (August 2011 edition) VAT situations. sued Pre-Contract VAT Enquiries. • The first page of the PCVE lists Practitioners are reminded that, The Society’s Conveyancing and circumstances in which it is not unlike the version of VAT Spe-  Taxation Committees continuously necessary to raise the PCVE, cial Condition 3 that existed prior Undertakings monitor the effect of the VAT sys- either because VAT does not to the introduction of the cur- tem on conveyancing practice and, arise on the transaction, or be- rent VAT on property system, the to discharge on foot of this, have now issued a cause the Vendor is not charg- VAT Special Condition 3 that has revised version (August 2011 edi- ing VAT, notwithstanding the been drafted to address the vari- Land Registry tion) of the VAT Special Condition fact that the transaction is oth- ous permutations arising out the 3, together with a revised version erwise subject to VAT. In these of the current VAT on property queries: (August 2011 edition) of the Pre- circumstances, it is not appropri- system contains sub-clauses that Contract VAT Enquiries. ate for the Purchaser to raise the are, in some cases, mutually exclu- compulsory These new documents can be PCVE. sive. Great care must therefore be downloaded from the Law Soci- • The first and second pages of the taken to select the appropriate sub- registration ety’s website, www.lawsociety.ie, by PCVE set out instructions and clauses and to delete those that do conveyancing Committee logging into the members’ area and guidelines as to the completion not apply. The latest version of the following links to either the prec- of the PCVE. A new process to VAT Special Condition 3 has been The Conveyancing Committee edents section or to the two com- be followed in the case of a sale further subdivided in order to give has recently received several en- mittees’ pages. at auction has now been intro- greater clarity to the application of quiries as to whether vendors’ so- In addition to making amend- duced. each sub-clause. licitors are obliged to give under- ments necessitated by the VAT • The enquiries raised in the Practitioners should bear in takings to discharge Land Registry Consolidation Act 2010, the follow- PCVE are now divided into sev- mind that it is possible that further queries in the context of compul- ing major amendments have been en sections, at the end of which a alterations may require to be made sory registration, and the view of made to the documents. Previous ‘Guide to Completing VAT Spe- to the VAT Special Condition 3 the committee is that they are not. versions of the VAT Special Condi- cial Condition 3 (August 2011 and the PCVE. While the VAT Any undertaking should be giv- tion 3 and the Pre-Contract VAT edition)’ has been added. This Special Condition 3 and PCVE en by the vendor pursuant to the Enquiries should no longer be guide is intended to assist prac- are intended to cover most VAT provisions of general conditions 28 used. titioners in correctly selecting situations, they do not necessarily and 29 of the Law Society’s stan- Both the revised VAT Special the sub-clauses of VAT Special cover all situations. In particular, as dard contract for sale. G

Health Support 

and Advice  for  Lawyers    

     54 legislation update Law Society Gazette www.gazette.ie Aug/Sept 2011 briefing Legislation update 10 June – 22 July 2011

Details of all bills, acts and statutory instruments since 1997 Act 2007, all medical practitioners SELECTED STATUTORY are on the library catalogue – www.lawsociety.ie (members’ and registered in the Supervised Divi- INSTRUMENTS students’ area) – with updated information on the current stage a sion will be subject to the Medical District Court (Hague bill has reached and the commencement date(s) of each act. All Council’s disciplinary procedures. Convention 1996) Rules 2011 Enacted: 8/7/2011 Number: SI 301/2011 recent bills and acts (full text in pdf) are on www.oireachtas.ie Commencement: 8/7/2011 for Content: Amends order 62 to pre- and recent statutory instruments are on a link to electronic sections 1, 2, 5, and 20, com- scribe the procedure in respect of statutory instruments from www.irishstatutebook.ie mencement order(s) to be made proceedings under the Protection for the remaining sections (per of Children (Hague Convention) Act acts pASSED ment order(s) required for various s20(2) of the act) 2000. Biological Weapons Act 2011 sections of the act Commencement date: 18/7/2011 Number: 13/2011 Ministers and Secretaries Content: Gives further effect to Foreshore (Amendment) Act 2011 (Amendment) Act 2011 European Communities the Protocol for the Prohibition of the Number: 11/2011 Number: 10/2011 (Maintenance) Regulations 2011 Use in War of Asphyxiating, Poison- Content: Transfers the functions Content: Provides for the estab- Number: SI 274/2011 ous or Other Gases, and of Bacterio- under the Foreshore Acts 1933 to lishment of the Department of Content: Sets out the effect on do- logical Methods of Warfare, done at 2009 to the Minister for the En- Public Expenditure and Reform mestic legislation of Council Reg Geneva on 17 June 1925; to give vironment, Community and Local and for the transfer of certain func- 4/2009 (EC) on jurisdiction, appli- further effect to the Convention on Government, other than foreshore tions from the Minister of Finance cable law, recognition and enforce- the Prohibition of the Development, functions in relation to designated to the Minister for Public Expendi- ment of decisions and cooperation Production and Stockpiling of Bacteri- fishery harbour centres, foreshore ture and Reform. These functions in matters relating to maintenance ological (Biological) and Toxin Weap- functions in respect of activities comprise: (a) the entirety of func- obligations and makes the neces- ons and on their Destruction, done at that are wholly or primarily for tions relating to the public service; sary provisions for the good ad- Washington, London and Moscow the use, development or support (b) public service reform functions ministration of the regulation. on 10 April 1972; and to provide of aquaculture, and foreshore func- that will, for the first time, be Commencement: 18/6/2011 for related matters. tions that are wholly or primarily placed on a statutory footing; (c) Enacted: 10/7/2011 for the use, development or sup- responsibility for managing public European Communities Commencement: 10/7/2011 port of sea fishing, including the expenditure within the overall plan (Mergers and Divisions of processing and sale of sea fish, and set by the Government, while the Companies) (Amendment) Finance (No 2) Act 2011 manufacture of products derived Minister for Finance will retain re- Regulations 2011 Number: 8/2011 from sea fish. sponsibility for overall budgetary Number: SI 306/2011 Content: Provides for the impo- Enacted: 7/7/2011 parameters. Content: Gives effect to Dir sition, repeal, remission, altera- Commencement: 7/7/2011 Enacted: 4/7/2011 2009/109 and Dir 2005/56 as re- tion and regulation of taxation, of Commencement: 4/7/2011 for gards reporting and documenta- stamp duties and of duties relating Medical Practitioners sections 1-6, 10-15(2), 15(4) and tion requirements in the case of to excise and otherwise to make (Amendment) Act 2011 99-100 (part 5). Commencement mergers and divisions. further provision in connection Number: 12/2011 order to be made for section 7, 8, Commencement: 20/6/2011 with finance. Amends the research Content: Amends and extends the 9, 15(3), 16-23 (part 3) and 24-98 and development tax credit provi- Medical Practitioners Act 2007 to as- (part 4) High Court Circuits sions in section 766B of the Taxes sist in addressing the current dif- (Amendment) Order 2011 Consolidation Act 1997, repeals ficulty relating to non-consultant Social Welfare and Pensions Act Number: SI 236/2011 section 55 (air travel tax) of the hospital doctor vacancies. It pro- 2011 Content: Transfers the county of Finance (No 2) Act 2008 (to be vides for the establishment of a new Number: 9/2011 Donegal from the Northern Cir- brought into force on such date division of the register, which will Content: Gives legislative effect cuit to the Western Circuit of the as the minister may appoint by or- be known as the Supervised Divi- to miscellaneous amendments to High Court, with effect from the der), amends the Value Added Tax sion. Those applying to be regis- the Social Welfare Consolidation Act 1/1/2012. Consolidation Act 2010 to provide tered in the division will undergo 2005, to the National Minimum Commencement: 1/1/2012 for a second reduced VAT rate of a two-part assessment specific to Wage Act 2000 (restoration of the 9% for goods and services relating their medical speciality and to this national minimum wage to its Irish Nationality and Citizenship to tourism for the period 1/7/2011 division. If successful, an applicant previous level), the Comhairle Act (Amendment) Regulations 2011 to 21/12/2013, after which it will will be registered in the Supervised 2000, and the Pensions Act 1990. Number: SI 284/2011 revert to 13.5%, and provides Division for a period totalling not Enacted: 29/6/2011 Content: Amends Irish National- for the levy on private pension more than two years in an identi- Commencement: Commence- ity and Citizenship Regulations 2002 schemes for a period of four years fied post approved by the Medical ment order(s) required for ss10 (SI 567/2002) in relation to dec- (2011 to 2014) to fund the jobs ini- Council, and subject to supervision (supplementary welfare allowance larations of fidelity to the nation tiative. by the employer in line with crite- amendment) and 16(6) (national and applications for certificates of Enacted: 22/6/2011 ria set down by the Medical Coun- internship scheme) as per s1(3) of naturalisation. Provides precedent Commencement: Commence- cil. As per the Medical Practitioners the act forms under the act. Law Society Gazette www.gazette.ie Aug/Sept 2011 legislation update 55 briefing

Commencement: 24/6/2011 One to watch

National Minimum Wage Act 2000 (Section 11) (No. 2) Order One to watch: new legislation 2011 District Court (Civil Partnership one year from when it is made under Where the court makes a main- Number: SI 331/2011 and Cohabitation) Rules 2011 (SI section 46(1) of the act, the issue tenance order, variation order or Content: Sets the national mini- no 414 of 2011) and service upon the maintenance interim order pursuant to the act mum hourly rate of pay at €8.65. These rules came into operation creditor of a summons shall precede and directs that payments under Commencement: 1/7/2011 on 31 August 2011 and are to be it (see form 54.9, schedule C). such order shall be made to the construed together with the Dis- Where the court makes a main- clerk, such clerk shall send a no- Presidential Elections (Forms) trict Court Rules 1997 (SI no 93 of tenance, variation or interim order tice (form 54.18, schedule C) by Regulations 2011 1997) and all other District Court under the act, the clerk shall give prepaid ordinary post to the main- Number: SI 258/2011 Rules. to or send by registered prepaid tenance debtor, stating the place Content: Prescribes certain forms For the purposes of these rules, post to the maintenance debtor a at which, and the days and hours for use at a presidential election, ‘the act’ means the Civil Partner- copy of the order so made. during which, payments under the including the requirements for the ship and Certain Rights and Obli- A copy of such an order shall, order should be made. provision of photographs to the gations of Cohabitants Act 2010 where maintenance payments con- Where payments to the clerk un- presidential returning officer by (no 24 of 2010). tinue to be due by the maintenance der a maintenance, variation or in- candidates at the presidential elec- Proceedings under the act may debtor, contain the following state- terim order are in arrears, and such tion. be heard at any sitting of the court ment: “The within order is made clerk receives a request in writing Commencement: 16/5/2011 for the court area in which either by the District Court. If you, the (form 54.21, schedule C) from the party to the proceedings is ordinar- maintenance debtor, fail to make maintenance creditor to take such Road Traffic Act 2010 (Certain ily resident or carries on any pro- a payment due under this order, steps as he or she considers rea- Provisions) (Commencement) fession, business or occupation. a further summons may be issued sonable to recover such arrears, Order 2011 Proceedings held under the act against you to attend before the such clerk may make an applica- Number: SI 255/2011 shall be heard otherwise than in District Court, or a warrant issued tion for an attachment of earnings Content: Appoints 1/6/2011 as the public. Only officers of the court, for you to be arrested and brought order. commencement date for ss55-59, the parties and their legal represen- before the District Court, which An application to the court to 62, 67, 71-74, 76, 77,79-81, 83, 84, tatives, witnesses (subject to the may lead to your being imprisoned order a statement of earnings, 85(a) and (b), 88-92 of the act. provisions of order 8, rule 2) and for a period of up to three months. pursuant to the act, may be made any other persons as the judge al- The District Court can vary the without notice on any occasion on Road Traffic Act 2011 lows shall be permitted to be pres- terms of this order. If you are con- which the proceedings are before (Commencement) Order 2011 ent. cerned that you may not be able to the court. Number: SI 253/2011 An application by (a) a civil part- comply with the terms of this order Where the court makes an order Content: Appoints 1/6/2011 as the ner for a maintenance order under and would like to apply for a varia- providing for periodic payments by commencement date for the act. section 45(1) of the act, or (b) a tion, you should consult a solicitor way of support or maintenance by qualified cohabitant for an order un- or contact the District Court clerk a maintenance debtor to a mainte- Rules of the Superior Courts der section 175 of the act shall be at…” nance creditor, an application may (Civil Partnership and preceded by the issue and service Any applications by mainte- be made to the court on any date Cohabitation) 2011 upon the respondent of a summons nance creditors for a direction that subsequent to the date the order Number: SI 348/2011 (see form 54.1, schedule C). payments under a maintenance was made, by any person having Content: Inserts a new order Where a maintenance debtor order, a variation order or interim an interest in the proceedings, to 70B to prescribe the procedure makes an application for the dis- order be made to the clerk shall be secure the payments to the main- in respect of civil partnership law charge of a maintenance order after ex parte. tenance creditor. G proceedings, as defined in the Civil Partnership and Certain Rights and Obligations Act 2010 s139 and proceedings under part 15 of that act (‘cohabitation proceedings’) consult a colleague and makes amendments to the rules concerning priorities of en- titlement to a grant of letters of administration intestate in con- 01 284 8484 sequence of amendments to the The Consult a Colleague helpline is available to assist every member Succession Act 1965 effected by the of the profession with any problem, whether personal or professional 2010 act. G

The service is completely confidential and totally independent of the Law Society Prepared by the Law Society Library 56 regulation Law Society Gazette www.gazette.ie Aug/Sept 2011 briefing Solicitors Disciplinary Tribunal Notices: the high court

Reports of the outcomes of Solicitors Disciplinary Tribunal The High Court inquiries are published by the Law Society of Ireland as provided High Court 2011 no 5SA High Court 2011 no 58SA for in section 23 (as amended by section 17 of the Solicitors In the matter of Ambrose Steen, a In the matter of Michael Small, (Amendment) Act 2002) of the Solicitors (Amendment) Act 1994 locum solicitor, and in the matter of a solicitor previously practising the Solicitors Acts 1954-2008 as Michael Small, Solicitor, In the matter of James In the matter of Gerard Corco- Law Society of Ireland (applicant) Carrick House, 10 Newenham O’Mahony, a solicitor previ- ran, a solicitor formerly practis- Ambrose Steen (respondent) Street, limerick, and in the ously practising under the style ing as JH Powell & Sons, Solici- Take notice that, by order of the matter of the Solicitors Acts 1954- and title of James O’Mahony, tors, East Green, Dunmanway, High Court made on 28 March 2008 Solicitor, at 16 Stoneybatter, Co Cork, and in the matter of 2011, it was ordered that Ambrose Take notice that, by order of the Dublin 7, and in the matter of the Solicitors Acts 1954-2008 Steen be suspended from practis- High Court made on Monday 11 the Solicitors Acts 1954-2008 [DT5559/DT23/10] ing as a solicitor until such time July 2011, it was ordered that the [4831/DT47/10 and High Law Society of Ireland (applicant) as all orders of the Solicitors Disci- name of Michael Small, solicitor, Court no 105SA] Gerard Corcoran (respondent plinary Tribunal and the High Court formerly practising as Michael Law Society of Ireland (applicant) solicitor) made against him and arising from Small, solicitor, Carrick House, James O’Mahony (respondent On 17 February 2011, the Solici- disciplinary proceedings have been Newenham Street, Limerick, be solicitor) tors Disciplinary Tribunal found complied with in full. struck off the Roll of Solicitors. On 21 October 2010, the Solici- the respondent solicitor guilty of John Elliot, John Elliot, tors Disciplinary Tribunal found misconduct in his practice as a so- Registrar of Solicitors, Registrar of Solicitors, the respondent solicitor guilty of licitor in that he: 26 July 2011 2 August 2011 misconduct in his practice as a so- a) Failed to ensure there was fur- licitor in that he: nished to the Society an accoun- a) Failed to comply with an un- tant’s report for the year ended Eamon P Comiskey (respondent solicitor) dertaking given to Allied Irish 31 December 2008 within six solicitor) On 17 September 2009, the Solici- Bank on 8 November 2000 in a months of that date, in breach of On 17 September 2009, the Solici- tors Disciplinary Tribunal found timely manner or at all, regulation 21(1) of the Solicitors’ tors Disciplinary Tribunal found the respondent solicitor guilty b) Failed to correspond with AIB Accounts Regulations 2001 (SI 421 the respondent solicitor guilty of of misconduct in his practice as a Bank to explain the problems of 2001), misconduct in his practice as a so- solicitor in that he failed to com- encountered in dealing with the b) Failed to ensure there was fur- licitor in that he failed to comply ply with an undertaking given to undertaking, nished to the Society a closing with an undertaking furnished to IIB Homeloans (now KBC Hom- c) Failed to respond to the So- accountant’s report in respect of IIB Homeloans (now KBC Hom- eloans) on 8 February 2001 in re- ciety’s letter of 30 November the accounting period ending eloans) on 28 April 2000 in respect spect of a named client and two 2009 within ten days as re- on the accounting date on which of a named client and a named properties in Co Offaly in a timely quested. the solicitor ceased to receive, property in Co Tipperary in a manner or at all. hold, control or pay client mon- timely manner or at all. The tribunal ordered that the The tribunal ordered that the ies, in breach of regulation 26(2) The tribunal ordered that the matter be brought before the High matter be brought before the of the Solicitors’ Accounts Regula- matter be brought before the High Court and, on 1 March 2010, President of the High Court tions 2001 (SI 421 of 2001) in a Court and, on 1 March 2010, the the President of the High Court and, on 7 February 2011, the timely manner or at all. President of the High Court or- ordered that the name of the re- President of the High Court or- dered that the name of the re- spondent solicitor be struck from dered that: The tribunal ordered that the re- spondent solicitor be struck from the Roll of Solicitors and that the a) The respondent solicitor spondent solicitor: the Roll of Solicitors and that the Society recover the costs of the should not be permitted to a) Do stand censured, Society recover the costs of the proceedings in the High Court practise as a sole practitioner b) Pay a sum of €500 to the com- proceedings in the High Court and the costs of the proceedings or in partnership, that he be pensation fund, and the costs of the proceedings before the disciplinary tribunal as permitted only to practise as c) Pay the whole of the costs of the before the disciplinary tribunal as against the respondent solicitor an assistant solicitor in the em- Society as taxed by a taxing mas- against the respondent solicitor when taxed and ascertained. ployment and under the direct ter of the High Court, in default when taxed and ascertained. control and supervision of an- of agreement. In the matter of Eamon P other solicitor of at least ten In the matter of Eamon P Comiskey, a solicitor previously years’ standing, to be approved In the matter of Eamon P Comiskey, a solicitor previously practising at Ballycarnan, Port- in advance by the Society, Comiskey, a solicitor previously practising at Ballycarnan, Port- laoise, Co Laois, and in the mat- b) The Society recover the costs practising at Ballycarnan, Port- laoise, Co Laois, and in the mat- ter of the Solicitors Acts 1954- of the proceedings in the High laoise, Co Laois, and in the mat- ter of the Solicitors Acts 1954- 2008 [7337/DT85/09 and High Court and the costs of the pro- ter of the Solicitors Acts 1954- 2008 [7337/DT24/09 and High Court 2010 no 13SA] ceedings before the disciplinary 2008 [7337/DT23/09 and High Court 2009 no 102SA] Law Society of Ireland (applicant) tribunal when taxed and ascer- Court 2009 no 102SA] Law Society of Ireland (applicant) Eamon P Comiskey (respondent tained. Law Society of Ireland (applicant) Eamon P Comiskey (respondent solicitor) Law Society Gazette www.gazette.ie Aug/Sept 2011 regulation 57 briefing On 24 November 2009, the Solici- an accountant’s report for the year 31 December 2009, in breach of nished with an undertaking tors Disciplinary Tribunal found ended 31 May 2009 within six regulation 7(1) and 7(2) of the from O’Sullivan and Associ- the respondent solicitor guilty of months of that date, in breach of Solicitors’ Accounts Regulations ates, Solicitors, for the sum of misconduct in his practice as a so- regulation 21(1) of the Solicitors’ 2001, £300,000; licitor in that he: Accounts Regulations 2001 (SI 421 b) Between November 2008 and 2) The applicant says that, in con- a) Failed to comply with an under- of 2001). November 2009, transferred sideration of his receipt of the taking dated 22 February 2007 The tribunal ordered that the funds totalling €25,380 in vari- undertaking, he loaned the sum to discharge an Investec mort- respondent solicitors: ous tranches to his office ac- of £300,000 to two named cli- gage on a premises and to fur- a) Do stand admonished and ad- count without raising invoices ents of O’Sullivan and Associ- nish partial discharge in a timely vised, or bills of costs to support these ates, Solicitors, manner or at all, b) Pay the whole of the costs of the transfers, in breach of the Solici- 3) The applicant says that the only b) Failed to reply to the Society’s Society to be taxed by a taxing tors’ Accounts Regulations 2001, condition precedent to the re- correspondence and, in par- master of the High Court in de- c) Issued a cheque for €10,000 in turn of monies lent was that ticular, the Society’s letters of 12 fault of agreement. favour of a builder in circum- apartments, as referred to in the February 2009, 18 March 2009 stances where there was only undertaking, be sold, and 31 March 2009 in a timely In the matter of Jeremy Paul €4,000 in the client ledger ac- 4) The applicant says that the manner or at all, O’Reilly, a solicitor previously count, thereby causing a debit apartments have now been c) Failed to attend at the meetings practising as JP O’Reilly & balance of €6,000, in breach of sold, as evidenced in the of the Complaints and Client Company, Solicitors, at Church the Solicitors’ Accounts Regula- Land Registry instrument Relations Committee on 13 Street, Ballyconnell, Co Ca- tions. D2005DN053258K, May 2009 and 24 June 2009, van, and in the matter of the 5) The applicant says that none of despite being required to do so, Solicitors Acts 1954-2008 [10298/ The tribunal ordered the matter the said monies have since been d) Failed to attend at the meeting DT22/10, 10298/DT125/10 be brought before the High Court returned to him, of the Complaints and Client and the High Court 2011 no 36 and, on 11 March 2011, the Presi- 6) The applicant says that he is of Relations Committee on 30 July SA] dent of the High Court ordered: the belief that O’Sullivan and 2009, despite being directed to Law Society of Ireland (applicant) 1) That the respondent solicitor Associates, Solicitors, are in so attend by order of the High Jeremy Paul O’Reilly (respondent should not be permitted to prac- breach of their undertaking to Court made on 13 July 2009. solicitor) tise as a sole practitioner or in him. On 8 February 2011, in record no partnership, that he be permit- The tribunal ordered that the mat- 10298/DT22/10, the Solicitors ted only to practise as an assis- The tribunal ordered that the re- ter be brought before the High Disciplinary Tribunal found the tant solicitor in the employment spondent solicitor: Court and, on 1 March 2010, respondent solicitor guilty of mis- and under the direct control and a) Do stand censured, the President of the High Court conduct in his practice as a solici- supervision of another solicitor b) Pay a sum of €2,000 to the ordered that the name of the re- tor in that he: of at least ten years’ standing, to compensation fund, spondent solicitor be struck from a) Failed to ensure that there was be approved in advance by the c) Pay the whole of the costs of the the Roll of Solicitors and that the furnished to the Society an ac- Society, applicant, to be taxed by a tax- Society recover the costs of the countant’s report for the year 2) That the Society do recover ing master of the High Court in proceedings in the High Court ended 31 March 2009 within six the costs of the High Court default of agreement. and the costs of the proceedings months of that date, in breach of proceedings and the costs of before the disciplinary tribunal as regulation 21(1) of the Solicitors’ the proceedings before the So- In the matter of Desmond P against the respondent solicitor Accounts Regulations 2001 (SI licitors Disciplinary Tribunal, Flynn, a solicitor practising as when taxed and ascertained. 421 of 2001), to include witnesses’ expenses Desmond P Flynn & Co, So- b) Through his conduct, showed when taxed and ascertained. licitors, 111 Tritonville Road, In the matter of John JA Rynne, disregard for his statutory ob- Sandymount, Dublin 4, and in solicitor, and Oliver JA Han- ligation to comply with the In the matter of Cathal the matter of the Solicitors Acts rahan, solicitor, practising as Solicitors’ Accounts Regulations O’Sullivan, solicitor, of 1954-2008 [3413/DT/151/10] Rynne Hanrahan & Associ- and showed disregard for the O’Sullivan & Associates, 10 Law Society of Ireland (applicant) ates, Solicitors, at Abingdon Society’s statutory obligation Herbert Street, Dublin 2, and in Desmond P Flynn (respondent House, 4 Limerick Road, En- to monitor compliance with the the matter of the Solicitors Acts solicitor) nis, Co Clare, and in the matter Solicitors’ Accounts Regulations for 1954-2008 [5346/DT56/10] On 5 May 2011, the Solicitors of the Solicitors Acts 1954-2008 the protection of clients and the Lay applicant Disciplinary Tribunal found the [7318/9381/DT100/10] public. Cathal O’Sullivan (respondent respondent solicitor guilty of mis- Law Society of Ireland (applicant) solicitor) conduct in his practice as a solici- John JA Rynne and Oliver JA On 8 February 2011, in record no On 11 April 2011, the Solici- tor in that he failed to ensure that Hanrahan (respondent solicitors) 10298/DT98/125/10, the Solici- tors Disciplinary Tribunal found there was furnished to the Society On 8 March 2011, the Solicitors tors Disciplinary Tribunal found the respondent solicitor guilty of an accountant’s report for the year Disciplinary Tribunal found the the respondent solicitor guilty of misconduct in his practice as a so- ended 31 December 2009 within respondent solicitors guilty of misconduct in his practice as a so- licitor in respect of the following six months of that date, in breach misconduct in their practice as so- licitor in that he: complaint: of regulation 21(1) of the Solicitors’ licitors in that they failed to ensure a) Allowed a deficit of €35,423 to 1) The applicant says that, on 26 Accounts Regulations 2001 (SI 421 there was furnished to the Society arise in the client account as of September 2000, he was fur- of 2001). ARBITRATION & MEDIATION COMMITTEE in conjunction with the Chartered Institute Of Arbitrators – Irish Branch AARBITRATIONRBITRATION AAWARDWARD WRI WRITINGTING AN ANDD COSTS COSTS SE SEMINARMINAR

Venue: President’s Hall, Blackhall Place, Dublin 7 Date: Monday 26th September, 2011, 10.00am to 5.00pm Fee: €200 5.5 CPD Hours: This one day seminar is aimed at practising arbitrators and will focus on the changes brought about by the Arbitration Act, 2010, and in particular, how these will effect arbitrators in the conduct of arbitrations.

PROgRAMME

9.30am Registration

10.00am Chairman’s Introduction Eamon Harrington, Comyn Kelleher Tobin Introduction to the Arbitration Act, 2010 10.30am Issues arising in the course of the reference Ciaran Fahy, Consulting Engineer, Dublin arbitration clause | arbitrator’s jurisdiction | arbitrator’s appointment | remuneration of arbitrator

11.15am Coffee 11.30am Powers and obligations of arbitrators Bernard Gogarty, Smyth & Son, Solicitors, Drogheda procedure | preliminary issues | security for costs | discovery | preservation measures | attendances of witnesses assistance of the Court | seeking expert advice

12.15am Ancillary issues Michael W. Carrigan, Eugene F. Collins Solicitors, Dublin issues of law | privacy and confidentiality | staying Court proceedings | expedition and how to achieve it

1.00pm Lunch

2.00pm Chairman Pat Brady The award Brian Hutchinson, Senior Lecturer, School of Law, UCD, Dublin requirements for enforceable award | content | format/layout/style | reasons | determinations challenge and enforcement | attitude of the Courts

2.45pm Workshops on drafting awards 4.00pm Coffee 4.15pm Costs Anthony Hussey, Hussey Fraser, Solicitors, Dublin arbitrators obligations | submissions | taxation

4.45pm General discussion 5.00pm Finish

Arbitration & Mediation Committee in conjunction with the Chartered Institute Of Arbitrators – Irish Branch Arbitration Award Writing And Costs Seminar

Venue: President’s Hall, Blackhall Place, Dublin 7 Time: 10.00am to 5.00pm Date: Monday 26th September, 2011 Fee: €200

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Please return to Colleen Farrell, Law Society of Ireland, Blackhall Place, Dublin 7. Email: [email protected] Law Society Gazette www.gazette.ie Aug/Sept 2011 regulation 59 briefing The tribunal ordered that the re- The tribunal ordered that the re- gation report of 22 March 2010, to stamp and register the deed spondent solicitor: spondent solicitor: c) Failed to comply with an under- prior to negotiating the loan, a) Do stand admonished, a) Do stand censured, taking, dated 28 July 2008, to i) Was in breach of his undertak- b) Pay the whole of the costs of the b) Pay a sum of €2,000 to the furnish a vacate in respect of the ing of 11 October 2006 to Bank Society, to be taxed by a taxing compensation fund in respect of loan and charge of AIB on the of Ireland in respect of an in- master of the High Court in de- the finding at (i) above, above-named Galway property vestment property purchased fault of agreement. c) Pay the whole of the costs of to a named firm of solicitors in for €230,000 in 2006, where the the Society, as taxed by a taxing a timely manner or at all, as set solicitor failed to comply with In the matter of Patrick M Ke- master of the High Court in de- out in the report, an undertaking to ensure that he ane, a solicitor practising as fault of agreement. d) Gave an undertaking to Ulster was in funds to stamp and regis- Keane Solicitors, Hardiman Bank to ensure that he was in ter the deed prior to negotiating House, Eyre Square, Galway, The reasons for the tribunal’s funds to discharge all stamp the loan cheque, as detailed in and in the matter of the So- opinion that it was appropriate to duty and registration fees prior the investigation report, licitors Acts 1954-2008 [4096/ make such an order are by reason to the release of loan proceeds, j) Contrary to his undertaking to DT156/10] of the submissions made by the when the solicitor was not in Bank of Ireland in May 2008, Law Society of Ireland (applicant) parties and the tribunal recognis- fact in funds to stamp and reg- the solicitor failed to hold a Patrick M Keane (respondent so- ing that, while the respondent so- ister the deeds prior to or after transfer deed in trust for the licitor) licitor has the privilege of taking the release of loan proceeds, as bank and paid the loan proceeds On 5 May 2011, the Solicitors care and custody of clients’ funds, set out in the investigation re- out before he was in funds to Disciplinary Tribunal found the which consequently carries a heavy port of 22 March 2010, complete the stamping and reg- respondent solicitor guilty of mis- onus, liability and responsibility to e) In the course of acting for ven- istration of the documentation, conduct in his practice as a solici- care and mind such funds, he was, dor and purchaser, did not dis- as set out in the report, tor in that he had: to a certain extent, an innocent charge his undertaking given to k) Failed to stamp a deed for a) Allowed a deficit of in or about victim of the fraudulent conduct Permanent TSB in 2007 in re- €445,000 in 2005, in breach of €386,000 in client funds as at 30 of a third party. The tribunal also lation to stamping and register- the undertaking of 9 June 2005 November 2009, noted that the respondent solicitor ing the documentation for the given to Permanent TSB, as set b) Allowed debit balances to occur had promptly cleared the deficit purchase of a named property out in the investigation report. on the client ledger amounting on his client account when it came and paid the vendor the full pro- to €298,994 as of 30 Novem- to his attention. ceeds, and did not discharge or The tribunal ordered that the re- ber 2009, including a net debit ascertain the status of the mort- spondent solicitor: balance of €62,417 on his own In the matter of Daniel Downes, gage held by Bank of Scotland 1) Pay a sum of €15,000 to the ledger accounts, a solicitor practising as O’Dea on the property, as set out in the compensation fund, c) Failed to maintain proper books & Company, Solicitors, at 1st investigation report, 2) Pay the whole of the costs of of account since at least 1 No- Floor, Hardiman House, Eyre f) Was in breach of an undertak- the Society, as taxed by a taxing vember 2008, Square, Galway, and in the mat- ing of 18 December 2007 to use master of the High Court in de- d) Failed to conduct monthly client ter of the Solicitors Acts 1954- a loan solely for the purpose of fault of agreement. bank reconciliations, 2008 [4298/DT04/11] acquiring good marketable title e) Allowed round sum transfers Law Society of Ireland (applicant) and paying any necessary legal The reasons for the tribunal’s opin- totalling €451,000 to be made Daniel Downes (respondent solici- costs and outlays in connection ion that it was appropriate to make from the client account to the tor) with the purchase of a property such an order are by reason of the office account when the office On 21 June 2011, the Solicitors and, having failed to stamp the cooperation of the respondent so- overdraft was approaching or Disciplinary Tribunal found the deed, instead paid the money to licitor in stepping up to the mark above the overdraft limit, and respondent solicitor guilty of mis- an auctioneer, apparently on the immediately, correcting all the is- some of the transfers were not conduct in his practice as a solici- client’s instructions, as set out sues that required to be addressed, recorded in the books of ac- tor in that he: in the investigation report of 22 and his previous good record. G count, a) Allowed liabilities of in or about March 2010, f) Allowed funds paid from the €606,000 to arise in respect of g) Was in breach of an unquali- client account to be incorrectly client monies due for stamp fied undertaking, dated 28 July debited to the client ledger ac- duty and to banks as of 31 Janu- 2006, to stamp and register a counts of other clients, ary 2010, deed with a stamp duty liability g) Allowed incorrect entries to be b) Paid the balance of sale pro- of €35,100 and failed to stamp made in the books of account, ceeds of a named Galway prop- the deed, as set out in the inves- thereby concealing the existence erty, in the sum of €214,000, tigation report. of debit balances, as highlighted to his clients without clearing a h) Provided an undertaking dated in the Society’s investigation re- liability to Allied Irish Bank of 9 July 2008 to AIB, who had port of 20 January 2010, €160,000 and notwithstanding provided mortgage loan finance h) Allowed wages to be paid from the fact that an undertaking had for the purchase of a new house the client account, been given to Allied Irish Bank for €560,000, as set out in the i) Failed to exercise any or ade- on 20 June 2008 to discharge investigation report, but failed quate supervision over the prac- this liability out of the proceeds to comply with the undertaking tice bookkeeper. of sale, as set out in the investi- or to ensure that he was in funds 60 justis update Law Society Gazette www.gazette.ie Aug/Sept 2011 briefing Justis update News of Irish case law information and legislation is available from FirstLaw’s current awareness service on www.justis.com Compiled by Bart Daly

COMPANY interim team of NAMA prior to the 14 December 2009 and, at those evidence that the decision made Petition to wind up establishment of NAMA could be meetings, it made a decision to by the interim team was not given Liabilities – creditor – contingent deemed a valid decision of NAMA – exercise the discretion of the legal effect by any subsequent act or prospective creditor – standing – Whether the European Commission respondent to acquire the loans of or series of acts by the respondent. whether company would be wound up decision satisfied the requirements for the respondent. The respondents Consequently, the respondent – Companies Acts 1963-2003. direct effect. submitted that this decision was made no decision to acquire the The proceedings were initiated by a The appellants appealed against an duly ratified by the respondent appellant’s loans and the appellants petition presented by a shareholder order of the High Court refusing at board meetings. However, the were entitled to a declaration to of a company, Mr Fraher, for an their application for certain reliefs minutes of those meetings did that effect. order that the company be wound by way of judicial review against not record any decision. It was Per Fennelly J in respect of the up pursuant to the provisions of the respondents. That application later submitted by counsel on European law issue: the appellants’ the Companies Acts 1963-2003. concerned a purported decision behalf of the respondents that the case in respect of this issue was The petition was resisted by the of the first-named respondent decision of the interim team was fundamentally based on the other 50% shareholder. The basis to acquire from particular banks adopted, albeit not expressly, by a commission decision having direct invoked for the winding up was certain ‘eligible bank assets’ within series of actions of the respondent effect. The European Commission that the company was insolvent the meaning of section 69 of the subsequent to its establishment. made a decision not to raise and unable to meet its liabilities. It National Asset Management Agency Murray CJ allowed the appeal, objections, which meant that the was contended that the petitioner Act 2009. Those assets consisted holding that it was considered aid provided for under the scheme did not have standing to seek of substantial loans made by the proper to first decide on the could be implemented. It followed the compulsory winding up as a banks to the appellants. The issue of whether the respondent, that the commission had no power contingent or prospective creditor appellants raised five grounds as a matter of law, made any to impose conditions on the State or as a contributory of the company of appeal concerning breach decision to acquire the appellants’ as part of its decision and it did not and that, in any event, the company of fair procedures, invalidity, assets. That particular issue was purport to do so. Consequently, was not insolvent. A loan to AIB unconstitutionality of the act not a question of form, but was there was no condition attached was due for an amount in excess and whether the decision of the fundamental to the exercise of to the commission decision whose of €2,117,413. The three retail European Commission dated 26 the respondent’s statutory powers direct effect could be invoked by subsidiaries of the company were February 2010, on the respondent’s in respect of the eligible assets the appellants. In conclusion, there trading. scheme as state aid, required that in question. There were several was no term of the commission Laffoy J held that there would the respondent be precluded stages in the acquisition process, decision invoked by the appellants be an order dismissing the petition. from acquiring loans from culminating in the service of an that met the requirements for the It would be unjust to allow Mr borrowers that were not impaired acquisition schedule (which had decision to have direct effect by Fraher to ‘pull the plug’ on the loans. However, those first three not occurred in this case), and an conferring rights on the appellants basis of an alleged insolvency of the grounds were contingent on the essential precondition was that capable of being relied upon company, which he had contrived fifth ground, namely, whether the respondent form an intention before the court. The decision contrary to an agreement. There the decision of the respondent to to acquire. Thus, the respondent did not purport to lay down any was an alternative remedy that he acquire the loans of the appellants must exercise its discretion requirement and certainly not one could pursue that gave the court was a nullity because the actual pursuant to section 84 of the 2009 that was unconditional, clear and a lot more options than making decision was made prior to the act and must form an opinion that it precise. a compulsory winding-up order. establishment of the respondent is necessary or desirable to acquire Dellway Investments & Others Mr Fraher did not have sufficient and was one that could not a particular asset. The respondent (applicants/appellants) v NAMA interest to maintain the petition as a have been, or alternatively, was had no power to make a decision and Others (respondents), contingent creditor. The court had not ratified or adopted by the before it came into existence. As a Supreme Court, 3/2/2011 [2011] residual doubts as to whether Mr respondent after it was established matter of fundamental principle, 2 JIC 0301 Fraher had standing as the owner pursuant to statute. In respect of the respondent, as a statutory of full paid-up shares to maintain a that final ground, it was claimed body, could only perform its Constitutional petition solely on the grounds that that the decision to acquire the functions as authorised by its Bank asset – powers – discretion – the company was unable to pay its appellants’ loans was made on 11 founding statute. Consequently, National Asset Management Agency debts. and 14 December 2009, but that the decision of the interim team – whether definition of eligible bank In the matter of La Plagne the respondent was not established was, in law, at the time when it was asset overboard and unconstitutional. Limited, High Court, 17/1/2011 until 21 December 2009 and the made, a nullity and had no legal The Supreme Court delivered [2011] 1 JIC 1704 2009 act was brought into force effect. The respondent could have judgment separately on the on that same day. It was common made a valid decision following its constitutional challenge to the FINANCE case that an ‘interim NAMA team’ establishment, but it was accepted compatibility of section 69 of the Banking was set up prior to the coming by the respondents that no explicit National Management Asset Agency European law – National Asset into force of the 2009 act in order decision was made, but rather it Act 2009, by a property developer Management Agency Act 2009 to carry out preparatory work. was argued there was an implied who disputed the acquisitions of – whether the decision made by the That interim team met on 11 and decision. It was clear from the his assets by the respondent, with Law Society Gazette www.gazette.ie Aug/Sept 2011 justis update 61 briefing

the provision of the Constitution back asset was not acquired by by the absence of an oral hearing past persecution, if the respondent having regard to the impact of the NAMA by reason of the fact alone and further argued that the accepted from personal documents section on the property rights of of its eligibility, but only if NAMA respondent based his decisions submitted that the applicants the appellants. concluded that its acquisition was uniquely on credibility grounds were indeed members of the The Supreme Court was necessary, and the provisions of and failed to assess the kernel of opposition family, the respondent asked to consider the question section 69 could not be considered their claim, which was, essentially, ought to have accepted that they of mootness in light of its earlier to be an unjust attack on the that the husband was the brother demonstrated a well-founded fear decisions in the same proceedings. property rights of the appellants. of a former opposition MP who of persecution for a convention The appellants contended that the The issue of the principle of was forced to flee persecution in reason. meaning given to an ‘eligible bank proportionality did not arise. Zimbabwe and was granted refugee Clark J refused to grant leave. asset’ provided for in section 69 There was nothing unusual in the status in Britain. Essentially, the The submission that a breach was so broad and the discretion manner in which the purposes and applicants claimed that they fled of fair procedures affected the of NAMA so untrammelled as to policies, in accordance with which Zimbabwe in 2007, and they findings relating to the husband constitute an unjust attack on the NAMA had to act, were defined. submitted numerous documents was rejected. The husband property rights of the appellants. Dellway Investments & Others in support of their claim. was given every opportunity to The minister had enacted the (applicants/appellants) v NAMA However, the respondent obtained explain why he had lied and, as his National Asset Management Agency and Others (respondents), information from the British interview was conducted before (Designation of Eligible Bank Assets) Supreme Court, 3/2/2011 [2011] authorities that revealed that that of his wife, it was not possible Regulations 2009 (SI 568 of 2009) 2 JIC 0301 persons with the same biographical to put to him the admissions she pursuant to section 69, which details as the applicants had been made. The applicants failed to prescribed seven main classes of IMMIGRATION AND ASYLUM in Britain on valid visas during establish any inadequacy in the bank assets. False information the entire period they claimed form of the appeal available to The Supreme Court held (per Judicial review – whether the decision to be suffering persecution in them, and no averments were made Murray CJ; Denham, Hardiman, of the respondent ought to be quashed, Zimbabwe. This information was outlining any injustice or prejudice Fennelly, Macken, Finnegan, notwithstanding the provision of false put to the applicants during the occasioned to them by the absence McKechnie JJ concurring) that and misleading information by the course of their separate interviews of an oral hearing on appeal. no question of mootness arose. applicants. and, while the husband, who was Furthermore, the applicants The appellants currently faced a The applicants, who were husband interviewed first, denied that he ignored the fact that they had a real and immediate risk of being and wife, sought leave to challenge, had given false information, the duty when engaging in the asylum adversely affected by the operation by way of judicial review, the wife admitted that she had been system to cooperate by presenting of the act. The court held that decisions of the respondent that in Britain since 2002 and married their account in a truthful manner. the Oireachtas was entitled as recommended that they should the second-named applicant there Their gross misconduct in abusing a matter of policy to include in not be granted declarations of in 2006. It was now submitted the integrity of the asylum process the act a very broad definition of refugee status. In both cases, on behalf of the applicants that would entitle the court to refuse ‘eligible bank asset’, including a the respondent made findings the respondent breached fair certiorari. Furthermore, there was delegation to the relevant minister pursuant to section 13(6) of the procedures by failing to put to the also no merit to the application for of the power to make regulations Refugee Act 1996, which meant husband the wife’s admissions that leave. prescribing classes of eligible bank that any appeal pursued by the she had told lies. It was further C(R) & Anor (applicants) v Refugee assets. The relevant bank had to applicants would be a documentary submitted that, notwithstanding Applications Commissioner & decide to opt to participate in the appeal. The applicants argued that the blatant untruth of the narrative Anor (respondents), High Court, statutory scheme, and an eligible they would be severely prejudiced given by the applicants regarding 15/7/2010 [2010] 7 JIC 1501 G Are you getting your e-zine?

The Law Society’s e-zine is the legal newsletter of the solicitors’ profession. The e-zine issues once every two months and brings news and information directly to your computer screen in a brief and easily digestible manner. If you’re not receiving the e-zine, or have opted out previously and would like to start receiving it again, you can sign up by visiting the members’ section on the Law Society’s website at www.lawsociety.ie. Click on the ‘e-zine and e-bulletins’ section in the left-hand menu bar and follow the instructions. You will need your solicitor’s number, which is on your practising certificate and can also be obtained by emailing the records department at: [email protected]. 62 eurlegal Law Society Gazette www.gazette.ie Aug/Sept 2011 briefing Eurlegal Edited by TP Kennedy, Director of Education Europe pulls off great save for TV football E arlier this year, the European General Court (formerly the European Court of First Instance) rejected appeals brought by both FIFA and UEFA against decisions of the European Commission approving the inclusion of the two major international football tournaments on national lists of events that must be broadcast on ‘free-to-air’ television. As the governing body for world football, FIFA organises the World Cup finals every four years. Similarly, the European Championship finals are held by UEFA every leap year. Both organisations earn a significant portion of their revenue from the sale of the TV broadcasting rights of the relevant tournament. In its judgments, the court considered certain issues arising from the EU’s ‘Television without Frontiers’ Directive as well as addressing key freedom to provide services and competition law issues.

Major importance EU Directive 89/52 (OJ 1989 L 298), as amended by EU Directive 97/36 (OJ 1997 L 202) is commonly referred to as the ‘Television without to the ‘Television without Frontiers’ resonance to British/Belgian not distorting competition in the Frontiers’ Directive. Article 3(a) of Directive specifically mentions both society (not just to football fans). downstream pay-TV or terrestrial this directive allows EU member the World Cup and the European Secondly, the relevant event, television markets. On the basis states to designate events of major Championships as being events considered as a whole rather than of the above, the commission importance for society that must be of major importance for society. as a series of individual matches, approved both the British and shown on ‘free-to-air’ or terrestrial Britain’s original application was has traditionally been shown Belgian applications. television. This provision also delayed because, in 2005, the on terrestrial television and has stipulates that a member state must General Court overturned the attracted a large TV audience. Grounds of appeal compile its list of such events in commission’s initial ‘green light’ Therefore, the commission Both FIFA and UEFA sought a clear and transparent manner due to a procedural defect. concluded that both the British and the annulment of the relevant before submitting it for approval to the Belgian lists should be granted commission decisions on the European Commission. Commission decisions derogations from the fundamental various grounds. Firstly, both Britain (in 1998) and Belgium In two separate 2007 decisions, the EU law principle of the freedom governing bodies claimed that (in 2003) notified their respective commission found that Britain’s and to provide services, on the basis the commission had incorrectly lists of events of major national Belgium’s measures had each been of overriding public interest found that the procedure that led importance to the commission. taken in a clear and transparent reasons, namely the protection to the adoption of both measures Britain sought to ensure that manner. The commission also held of the right to information and was clear and transparent within both the World Cup and the that the World Cup/European ensuring wide public access to TV the meaning of article 3(a) of European Championship are Championship met two criteria broadcasts of key sporting events. the ‘Television without Frontiers’ shown on ‘free-to-air’ TV, whereas considered to be reliable indicators The commission also found that Directive. Secondly, they also Belgium sought to ensure that of the importance of events both measures allow competition argued that the commission should the former is shown on terrestrial for society. First, the relevant for the acquisition of the TV not have supported the British and television. Indeed, the preamble tournament has a special general rights to these tournaments while Belgian findings that the relevant Law Society Gazette www.gazette.ie Aug/Sept 2011 eurlegal 63 briefing

tournament in its entirety is an matches at both tournaments have the freedom to provide services pay-TV providers. The national event of major importance. Thirdly, traditionally been broadcast on since they limit the number of measure merely prevents the Europe pulls off great save for TV football the applicants claimed that the ‘free-to-air’ television, attracting broadcasters interested in acquiring broadcast of the World Cup/ commission’s conclusions breached large television audiences. the rights to broadcast World Cup/ European Championship on an the Treaty on the Functioning of the The General Court held that European Championship matches exclusive basis. Both terrestrial EU (TFEU) provisions regarding member states have considerable in their respective countries. and non-terrestrial providers the freedom to provide services. discretion in deciding which The court noted that limits to may seek to acquire the relevant Finally, FIFA and UEFA argued events are of major importance that freedom may be justified by TV rights on a non-exclusive that the commission’s findings for their public. The specific overriding reasons in the public basis. If the latter do not wish to infringed the TFEU competition reference to the World Cup interest, such as the protection broadcast either tournament on a rules applicable to state measures. and European Championship in of the right to information or non-exclusive basis, this does not the ‘Television without Frontiers’ ensuring public access to major mean that BBC and ITV have been Clear and transparent process Directive means that a member sporting events, provided that the granted special or exclusive rights. FIFA and UEFA both challenged state is not obliged to give specific national measures taken to achieve Rejecting the claims of FIFA and the validity of how the British and reasons for including matches these goals are proportionate. The UEFA, the General Court found Belgian authorities compiled their from these tournaments in its list applicants argued that, since each that the British measure does respective lists of designated events. of ‘protected events’. However, match of a World Cup/European not prevent pay-TV companies The General Court found that the inclusion of the event as a Championship is not an event of from competing for the right article 3(a) gives member states a whole must be examined. major importance for society, the to broadcast the World Cup or margin of discretion in terms of the The court found that, in both national rules designating the entire European Championships. adoption of procedures for drawing the World Cup and European event were disproportionate. The up these lists, while emphasising Championship, the participation of court found that this challenge was Implications that the process must be clear and a particular team in the knockout based on an incorrect assumption. From an Irish perspective, the transparent as a whole. Therefore, stages of the tournament may It thus upheld the commission’s General Court views provide the relevant procedure must be depend on the results of matches view that the inclusion of all World useful guidance for the Minister based on objective criteria set out in which the relevant side is Cup/European Championship for Communications when he in advance by the relevant national not playing. (These fixtures are matches on a list of events to be compiles the list of events of implementing measures. The sometimes referred to as ‘non- shown on ‘free-to-air’ television major importance for Irish society. court found that an EU member prime’ matches.) Moreover, was proportionate. (Interestingly, Minister Rabbitte state should also indicate both the such matches often decide the chose to ignore the wishes of his body responsible for compiling the opposition that a relevant national State measures predecessor when he decided, last list of ‘protected events’ and how side will face in the last 16 or Both governing bodies criticised May, not to add events such as the interested parties may submit their quarter-finals. Accordingly, both the lack of analysis of the Heineken Cup to the State’s list of comments. However, article 3(a) tournaments may reasonably be restriction of competition caused designated events.) does not oblige a member state to regarded as a single event rather by Britain’s decision that the World The court’s judgments represent take such submissions into account than a series of individual matches Cup and European Championships good news for those in both and/or to explain why it chose to divided up into ‘prime’ and ‘non- must be shown on ‘free-to-air’ Britain and Belgium who wish ignore any recommendations of prime’ fixtures. The court specified television. Specifically, FIFA and to follow the major international third parties. The court held that that not all ‘non-prime’ matches UEFA claimed that the British football tournaments on terrestrial both Britain and Belgium had need be of major importance for list facilitated BBC and ITV’s television. These decisions are, followed these procedural rules and the tournament as a whole to be abuse of a dominant position. however, bad news for FIFA and thus rejected the FIFA/UEFA view ‘protected’. Of course, when the EU competition rules on state UEFA, who wish to maximise that the process lacked clarity and/ broadcast rights are being sold, measures are contained in article revenue from their respective or was not transparent. the identities of the teams that will 106 of the TFEU (formerly article showpiece events by selling be participating in the relevant 86 of the EC Treaty). This provision broadcasting rights for certain Unitary nature tournament are unlikely to be prohibits an EU member state from matches to the highest bidder. FIFA and UEFA argued that the known. The General Court found putting undertakings, to which they The issue of whether the entirety totality of matches in the World that it is sufficient that some of grant special or exclusive rights, in of a World Cup or European Cup/European Championships was these ‘non-prime’ matches are of a position that these undertakings Championship may be protected not an event of major importance sufficient interest in a particular could not themselves attain will ultimately be decided by the for society. More particularly, they member state for the tournament without infringing various TFEU European Court of Justice, as both did not accept that certain matches as a whole to be designated as rules, including those prohibiting FIFA and UEFA have appealed. not involving England, Scotland, an event of major importance to the abuse of a dominant position. Wales or Northern Ireland or society. The court, however, found that Cormac Little is a partner in the Belgium have a special resonance the British legislation in question Competition and Regulation Unit of for British or Belgian societies, Freedom to provide services does not grant special or exclusive William Fry, Solicitors. He wishes to respectively. In addition, neither FIFA and UEFA claimed that the rights to relevant British terrestrial thank Diego Hernando for his help governing body accepted that all British/Belgian lists restricted broadcasters at the expense of with this article. 64 Eurlegal Law Society Gazette www.gazette.ie Aug/Sept 2011 briefing

Recent developments in European law

CONSUMER the new one, or bear the costs of his victim. The injunction is or, therefore, the framework Joined cases C-65/09 and this being done. The German mandatory and must be issued in all decision. Thus, the appropriateness C-87/09, Gebr Weber GmhH v courts asked the CJ whether EU cases of domestic violence, even the of a penalty such as the automatic Jürgen Wittmer, Ingrid Putz v law requires the seller to bear the least serious cases, such as verbal injunction cannot be examined in Medianess Electronics GmbH, 16 cost of removing the defective threats. The order to stay away the light of the framework decision. June 2011 goods and installing the new ones. is for a minimum of six months, The framework decision also Directive 1999/44 on the sale of German law does not require this. and failure to comply is itself a recognises the victim’s right to be consumer goods provides that the The CJ noted that EU law intended criminal offence. The applicants heard. The advocate general stated seller is to be liable to the consumer to make the ‘free-of-charge’ were convicted of mistreating their that this requires the member for any lack of conformity of the aspect of the seller’s obligation to partners. They were then subject to state to give her the opportunity goods at the time when they are bring goods into conformity an injunctions restraining them from to express her opinion as to the delivered. If the goods are not essential element of the protection approaching their partners for 16 imposition of an order to stay in conformity, the consumer is afforded to consumers. The ‘free- and 17 months. Some days after away where the victim maintains entitled to have them brought of-charge’ requirement aims to their convictions, they resumed a close personal relationship with into conformity, free of charge, by protect consumers against the risk cohabitation with their partners. the perpetrator and where such an repair or replacement, unless this of financial burdens that might Due to their failure to comply order produces indirect effects on is impossible or disproportionate. dissuade them from asserting with the injunction, they were her private and family life. It must Any repair or replacement must their rights in the absence of both arrested and convicted. They be possible for the court to take be done without significant such protection. If the consumer appealed against their convictions. account of the victim’s statement inconvenience to the consumer. could not require the seller to In the appeals, the partners of the in order to determine the sanction, If he is unable to have the goods remove the goods and reinstall two accused considered themselves while respecting the minimum brought into conformity, he can the replacement, he would have indirect victims of the Spanish and maximum thresholds for the claim a reduction of the price an additional financial burden that legislation. They argued that they penalty laid down by national law. or rescission of the contract would not have been there had the had voluntarily pursued their That requirement does not mean of sale. In the first case, Mr contract been performed correctly. relationship with their partner, that the determination of the Wittmer concluded a contract Requiring the seller to bear the without compulsion, in the absence penalty should be subject to the for the sale of polished tiles at a cost of removal and replacement of any economic necessity, and that victim’s discretion or that the court price of €1,382.27. After having does not lead to an inequitable they had initiated the resumption with jurisdiction should be bound approximately two-thirds of the outcome. By not delivering goods of cohabitation. The Spanish by the latter’s assessment. tiles laid, he noticed shading in conformity with the contract, he court asked the CJ whether on them. In the proceedings he fails to perform the obligation that Framework Decision 2001/220 on INTELLECTUAL PROPERTY brought, the court-appointed he accepted under the contract the standing of victims in criminal Case C-263/09P, Edwin Co Ltd v expert concluded that the shadings and must bear the consequences proceedings precluded legislation OHIM, 5 July 2011 were fine micro-brush marks that of defective performance. On the imposing a mandatory injunction Regulation 40/94 on the community could not be removed and that other hand, the consumer has paid in such circumstances. Advocate trademark provides that a the only possible remedy was the selling price and thus correctly General Kokott recognised that trademark may be declared invalid complete replacement of the tiles. performed his contractual a mandatory injunction of this where its use may be prohibited He estimated the cost of this at obligation. The rights conferred nature is at the crossroads of the by an earlier right. Fiorucci SpA is €5,830.57. In the second case, on consumers by the directive requirement of effective public an Italian company that was set up Ms Putz had concluded over the seek merely to re-establish the action against domestic violence by fashion designer Elio Fiorucci internet a contract of sale for a new situation that would have prevailed and the victim’s right to respect in the 1970s. In 1990, it sold all dishwasher for €367. The parties in the seller had delivered goods in for her private and family life. its ‘creative assets’, including all agreed that the goods would be conformity at the outset. Nonetheless, the difficult question the trademarks it owned, to the delivered to the door of her house of balancing the various interests Japanese company Edwin Co Ltd. in return for a delivery charge. CRIMINAL does not fall within the scope of In 1999, Edwin registered the word The delivery and payment took Joined cases C-483/09 and decision 2001/220. It does not mark ‘Elio Fiorucci’ for a series of place as agreed. After the machine C-1/10, Magatte Gueye & govern in a general manner all goods. Mr Fiorucci challenged was installed, Ms Putz discovered Valentin Salmeró Sánchez, the aspects of the protection of that registration, relying on the that it was faulty and could not be opinion of Advocate General victims, but those relating to regulation in conjunction with repaired. They both agreed on the Kokott, 12 May 2011 procedural guarantees in criminal Italian law. He argued that, in replacement of the dishwasher. In Spain, the courts are obliged proceedings. The form and Italy, his name enjoyed special However, Ms Putz demanded to issue, as one of a number of duration of the penalties that the protection, under which a well- that Medianess not only deliver criminal sanctions, an injunction member states may provide for known personal name can be a new machine but also remove restraining the perpetrator of acts in domestic violence cases is not registered as a trademark only the defective machine and install of violence from approaching covered by procedural guarantees by, or with the consent of, that Law Society Gazette www.gazette.ie Aug/Sept 2011 eurlegal 65 briefing

person, and that he had given no structure of the regulation does the ‘right to a name’. The General even where the name of the well- Recent developments in European law such consent. OHIM decided that not permit the concept of the ‘right Court was fully entitled not to known person has already been Italian law did not apply in this to a name’ to be restricted to an restrict the protection provided registered or used as a trademark, case, as the name ‘Elio Fiorucci’ has aspect of an attribute of personality. by the regulation merely to the proprietor of a well-known acquired renown in the context of The concept may also cover the situations where the registration of name is entitled to prevent the use his commercial activity. It allowed commercial exploitation of the a community trademark conflicts of that name as a trademark where the application for registration. name. The regulation provides with a right intended to protect a he has not given his consent to its The General Court annulled that for a community trademark to be name exclusively as an attribute registration as a trademark. decision in 2009, as it contained an declared invalid where an interested of the personality of the person error of law. OHIM had incorrectly party claims another earlier right. concerned. The right to a name LITIGATION ruled out the application of It gives a non-exhaustive list of may be relied on not only in order On 25 February, Iceland ratified national law in the case of Mr four examples – in addition to the to protect a name as an attribute the 2007 Lugano Convention on Fiorucci. Edwin appealed to the right to a name, it cites the right of personality, but also to protect Jurisdiction and Enforcement of CJ. It claimed that the regulation of personal portrayal, copyright, its economic aspects. The CJ Judgments. The convention entered refers to the ‘right to a name’ solely and industrial property rights. The also confirmedCorporate the jurisdiction of Lawyerinto force for Iceland on 1 May as an attribute of personality. On economic aspects of some of those the General Court to review the 2011. It now takes effect between that ground, it argued that the rights are Dublin protected both under legality of OHIM’s assessment of the EU, Norway, SwitzerlandUp toand 100,000 General Court had not applied the national lawsOur and Client under is a E leadingU law. lawthe firm national in Dublin. law The relied firm on. has The a reputationIceland and for extends excellence the E inU the regime corporate sector, both regulation correctly. The Court of There is nodomestically reason, therefore, and internationally. not General This Court is truly was an fully exceptional entitled opportunityon jurisdiction for a and Corporate judgments Lawyer to looking for more Justice held that the wording and to afford theautonomy, same protection responsibility to andto recognition infer from in national their job. law that, those states. G

The Role: The Person • Manage a portfolio of corporate and commercial clients. • Qualified Lawyer with experience in corporate law. • Supported by and reporting to the department partner, • In-depth understanding of company law and corporate you will work autonomously, advising and assisting transactional legislation. clients on the transactions they are responsible for. • Be a team player with an approachable and friendly AUTUMN• Advise, draft and negotiate CONFERENCE commercial agreements. personality. 2011 • Deal with transactions involving, inter alia, mergers and • Ability to influence with exceptional negotiation skills. acquisitions; securitisations; MBOs; insolvency issues; • Experience in conducting due diligence and drafting re-organisations; and regulatory matters. legal opinions. Friday 18 November 18-20 NOVEMBER 8pm – late: Registration for conference, meet and greet drinks in the Radisson Blu Hotel, Athlone There are excellent career prospects and the successful candidate will shine in an environment where they are encouraged to readily understand the client's commercial objectives in any particular transaction and apply their skills HOTEL, ATHLONE Saturday 19 November and professionalism to those transactions. 12 noon – 2.30pm: Conference with brunch, speakers to be confirmed.Attendance qualifies for CPD Kindly sponsored by 2.30pm – 7pm: Leisure Centre FacilitiesInterested available / candidatesfree time should contact John Macklin in the strictest confidence on 01 662 1000 or alternatively send your 10.30am – 4pm: Golf Competition, Glasson Golf Club CV to [email protected]. All applications will be treated in strict confidence. 7pm – 8pm: Pre-Dinner Drinks Reception 8pm – late: Gala Black Tie Dinner with music and dancing until late

Sunday 20 November 12 noon Checkout 36 Merrion Square, Dublin 2. Email: [email protected] Tel: 01 662 1000 Web: www.brightwater.ie

APPLICATION FORM SYS Autumn Conference 2011 Please use block capitals. Photocopies accepted. One form per room per envelope please.

Name 1: Name 2: Twin Room

Firm 1: Firm 2: Double Room (Please tick one box only) Email: Email:

Please tick here if you are interested in participating in the Golf Competition: Please tick here if you are interested in participating in the Golf Competition: We will be in touch with you separately by email as regards details of the Golf Competition if you are interested in participating.

1. Persons wishing to attend must apply through SYS. Accom- single occupancy available, subject to a single occupancy to The Society of Young Solicitors. Applications may be sent tions thereafter will not qualify for a refund. modation is limited and allocated on first-come, first-served supplement, per night. by post or DX ONLY (no email). Successful applications will 8. There are a limited number of twin rooms and/or double basis. 4. Golf Competition participants will be responsible for dis- be confirmed by email. rooms. Please select your preferred accommodation above 2. Delegates must submit their application forms to reach SYS charging their own green fee and if there are insufficient 6. Names of delegates to whom the cheque(s)/bank draft(s) (the SYS cannot guarantee that delegates will be allocated on or before Friday 21 October 2011. members to participate in the Golf Competition, it will be apply must be written on the back of the cheque(s)/bank their preferred choice). 3. Fee is €160 p.p.s. for two nights’ accommodation (with cancelled. Location of Golf Competition is subject to change. draft(s). 9. The SYS reserves the right to make changes to the event (in- breakfast), gala black tie dinner and conference materials. 5. One application only per room per envelope together with 7. Cancellations must be notified to [email protected] cluding the identity of the speakers) or cancel the conference For those who do not wish to share a room, there is limited cheque(s)/bank draft(s) for the conference fee made payable on or before 5pm Wednesday 2 November 2011. Cancella- and/or any part thereof at its discretion. I enclose cheque(s)/bank draft(s) payable to The Society of Young Solicitors, in the sum of €160 (per person sharing). Applications to be sent to: Claire McLoughlin, Matheson Ormsby Prentice, 70 Sir John Rogerson’s Quay, Dublin 2 (DX 2)

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wills Rates Brennan, Teresa (deceased), late of 10 McDonagh Court, Cashel, Co Tipper- ary, and formerly of Kilcruise, Wolfhill, Professional notice rates Athy, Co Laois (orse Kildare). Would any solicitor holding or having knowl- rates in the Professional notices section are as follows: edge of a will made by the above-named deceased, who died on 9 July 2010, • Wills – €144 (incl VAT at 21%) please contact Ross Phillips, solicitor, • Title deeds – €288 per deed (incl VAT at 21%) HG Donnelly & Son, Solicitors, 5 Duke Street, Athy, Co Kildare; reference: RP/ • Employment/miscellaneous – €144 (incl VAT at 21%) BRE033-01 Highlight your notice by putting a box around it – €33 extra Burke, Marion (deceased), late of Roemore, Breaffy, Castlebar, Co Mayo, Al l nOTICES must be paid for prior to publication. Cheques should be made who died on 23 March 2011. Would any person having knowledge of any will payable to Law Society of Ireland. Deadline for October Gazette: 21 September 2011. executed by the above-named deceased For further information, contact the Gazette office on tel: 01 672 4828 (fax: 01 672 4877) please contact James Cahill, solici- tor, Cahill & Cahill, Solicitors, Ellison Street, Castlebar, Co Mayo; tel: 094 902 1999, please contact Lees Solicitors, 45 Timmins & Co, Solicitors, The Harbour, any will executed by the above-named 5500, fax: 094 902 5511, email: info@ Church Street, Listowel, Co Kerry; tel: Kilcock, Co Kildare; tel: 01 628 7697/01 deceased, who died on 25 May 2011, jamescahill.com 068 21279, fax: 068 22261, email: enqui- 628 7703; fax: 01 628 7045, email: please contact George Lynch & Son, [email protected] [email protected] Solicitors, Bridge Street, Carrick-on- Carroll, Christine (deceased), late of Shannon, Co Leitrim; tel: 071 962 0017 St Oliver Plunkett Hospital, Dundalk, Ferguson, Brian (deceased), late of 8 McCabe, Patrick (deceased), late of 14 or 962 1127, fax: 071 962 0600, email: Co Louth, and formerly of Coopers St John’s Court, Malahide Road, Dub- Charleville, Lower Churchtown Road, [email protected] Cross, Castlebellingham, Co Louth. lin 3 (formerly of 44 Clancarthy Road, Dublin 14, and formerly of 18 Manor Would any person having knowledge of Donnycarney, Dublin 5), who died on Close, Rathfarnham, Dublin 16, who the whereabouts of any will made by the 11 September 2010. Would any person died on 19 January 2011. Would any above-named deceased, who died on 17 having knowledge of a will made by the person having knowledge of the where- Is your client interested February 2011, please contact McKeev- above-named deceased please contact abouts of a will made by the above- in selling or buying a er Taylor, Solicitors, 31 Laurence Street, Gartlan Winters, Solicitors, 56 Lower named deceased, after 31 January 1978, Drogheda, Co Louth; tel: 041 983 8639, Dorset Street, Dublin 1; tel: 01 855 please contact Vincent & Beatty, Solici- 7-day liquor licence? fax: 041 983 9762, email: info@mc 7434, fax: 01 855 1075, email: info@ tors, 67/68 Fitzwilliam Square, Dublin keevertaylor.ie gartlanwinters.ie 2; tel: 01 634 0000, email: postmaster@ If so, contact Liquor vblaw.ie. Cashin, John (deceased), late of 32 Hudson, Patrick Joseph Richard Licence Transfers North Road (formerly 4 Somers Villas), (deceased), late of 27 Malachi Road, Phillips, William (deceased), late of Finglas, Dublin 11. Would any person Dublin 7, who died on 24 June 2011. 25 St Laurence’s Park, Wicklow, in the Contact having knowledge of a will executed Would any person having knowledge county of Wicklow, who died on 8 May by the above named, who died on 26 of the whereabouts of any will made by 1994. Would any person having knowl- 0404 42832 July 2011, or the title deeds relating to the above-named deceased please con- edge of a will made by the above-named 32 North Road aforesaid, please con- tact Aidan T Stapleton & Co, Solicitors, deceased, or if any firm is holding same, tact Sheehan & Company, Solicitors, Parliament Buildings, 38 Parliament St, please contact Haughton McCarroll, 1 Clare Street, Dublin 2, tel: 01 661 6922, Dublin 2; tel: 01 679 7939, fax: 01 679 Solicitors, 2 Church Street, Wicklow, fax: 01 661 0013, email: fergusonm@ 2494, email: [email protected] Co Wicklow; tel: 0404 68344, fax: 0404 sheehanandco.ie 68131 Kearns, Patrick (deceased), late of 20 Dwane, Judith (deceased), late of Abbey Park, Baldoyle, Dublin 13. Would Reynolds, Patrick, orse Paddy (de- Renvyle, Iona Drive, North Circular any person having knowledge of a will ceased), late of Stonepark, Roscommon, Road, Limerick. Would any person hav- executed by the above-named deceased, Co Roscommon. Would any person hav- ing knowledge of a will executed by the who died on 31 May 2011, please con- ing knowledge of the whereabouts of above-named deceased, who died on 20 tact Doyle Fox & Associates, Solicitors, March 2011, please contact Adrian Gre- The Farmhouse, Main Street, Blessing- A Caring Legacy: bequests to The Carers aney & Co, Solicitors, Lisadell House, 8 ton, Co Wicklow; tel: 045 851 980, fax: WPG DocStore’s professional Catherine Place, Limerick; tel: 061 314 045 851 982, email: reception@doylefox Association (CHY10962) help e-discovery support service 468, fax: 061 314469. solrs.ie to support home-based family from €500 per GB. care in Ireland. Enright, James (deceased), late of Kelly, Ann (deceased), late of Killick, ISO 27001 certified; Dromrahnee, Ardagh, Co Limerick, Kilcock, Co Kildare, who died on 18 tel: (01) 2454800, For information: who died on 23 February 2000. Would January 2011. Would any person having email: [email protected] Emma at 057 9370210. any person having any knowledge of the knowledge of any will executed by the or website: [email protected] whereabouts of the original will of the above-named deceased please contact www.wpg.ie/docstore.htm or www.carersireland.com. deceased, executed on 10 November Edward Timmins, solicitor, LC O’Reilly Law Society Gazette www.gazette.ie Aug/Sept 2011 Professional notices 67 notices

Ryan, Daniel (deceased), late of 11 So- Wicklow, and formerly of Cherrybrook, ulary barracks with the garden attached bia Foods Ireland Limited nas, Drombana, Co Limerick, formerly Old Connaught Avenue, Bray, Co Wick- thereto, all of which are now in the pos- Any person having a freehold estate or of 21 Ivy Court, Killucan, Co Westmeath; low, who died on 9 March 2011. Would session of the said Humphrey Smith, any intermediate interest in “all that and 5 Mantua Park, Swords, Co Dublin; and any person having knowledge of any will containing 38 perches Irish plantation those that plot of ground with the dwell- 17 Oldtown Road, Santry, Dublin 9, who executed by the above-named deceased measure be the same more or less”, the inghouse and offices thereon in Market died on 3 June 2011. Would any person please contact Harrison, Solicitors, 3 subject of a fee farm grant dated 4 De- Street in the town of Mountmellick, with having knowledge of any will executed by Terenure Road West, Terenure, Dublin cember 1867 between Samuel Higgins the appurtenance thereonto belong- the above-named deceased please con- 6W; tel: 01 492 7062, fax: 01 492 7063, Borrowes of the one part and Humphrey ing in the occupation of Edward Scully, tact Lees Solicitors, Lord Edward Street, email: [email protected] Smith of the other part, at a fee farm rent bounded on the northwest by John Han- Kilmallock, Co Limerick; DX 84001; tel: of £35 sterling per annum. ley’s holding, on the southeast by Hum- 063 98003, email: [email protected] miscellaneous Take notice that Glanbia Coopera- phrey Smith’s holding, on the northeast tive Society Limited and Glanbia Foods by Thomas and Samuel Pimms holding, Ryan, Seamus (deceased), late of Practice for sale – South Done- Ireland Limited intend to apply to the and on the southwest by the Main Street, Glynnside, Portlaoise, in the county of gal area. Sole practitioner interest- county registrar of the county of Laois to containing 15 perches Irish plantation Laois. Would any person having knowl- ed in sale or amalgamation of prac- vest in it the fee simple and any interme- measure or thereabouts, situate in the edge of the whereabouts of any will tice. Established a long number of diate interests in the said property, and parish of Rosenallis, barony of Tin- made by the above-named deceased, who years. General practice. Contact any party asserting that they hold a supe- nehinch and Queen’s county, more par- died on 1 February 2011, please contact box no 08/11/01 rior interest in the aforesaid property is ticularly delineated and described by the

Rollestons, Solicitors, Church Street, called upon to furnish evidence of title to map on the margin thereof ”, the subject Portlaoise, Co Laois; tel: 057 8621329, same to the below named within 21 days of an indenture of lease dated 26 N ovem- fax: 057 8620737, email: dholland@ Solicitor’s office, Dublin 2, with ex- from the date of this notice. ber 1873 between Robert W Kenny and rollestons.ie cess office space, to let. Will suit sole In default of any such notice being others of the one part and Humphrey practitioner. Excellent secretarial, com- received, the said Glanbia Cooperative Smith of the other part for a term of 200 Shanahan, Ella (Eleanor) (deceased), puter and bookkeeping services available Society Limited and Glanbia Foods Ire- years from 29 September 1873 at a rent late of ‘Hilltop’, Killoteran, Butlerstown, if required. Please contact tel: 01 662 land Limited intend to proceed with the of £11, 1s and 6d sterling, subsequently Waterford. Would any person hav- 8505 or 087 765 3543 application before the county registrar at adjusted to £10.15s. ing knowledge of a will executed by the the end of 21 days from the date of this Take notice that Glanbia Coopera- above-named deceased, who died on 28 Seven-day ordinary publican’s licence notice and will apply to the county regis- tive Society Limited and Glanbia Foods July 2011, please contact Michael Quirk, sought. Contact Shane O’Neill of Swee- trar for such directions as may be appro- Ireland Limited intend to apply to the Micheal J O’N Quirk & Company, So- ney McGann, Solicitors, 67 O’Connell priate on the basis that the person or per- county registrar of the county of Laois to licitors, Main Street, Carrick-on-Suir, Street, Limerick; tel: 061 317 533, fax: sons beneficially entitled to the superior vest in it the fee simple and any interme- Co Tipperary; tel: 051 640 019, fax: 051 061 319 496, email: soneill@sweeneymc- interests including the freehold reversion diate interests in the said property, and 641 376 gann.com in the aforesaid property are unknown or any party asserting that they hold supe- unascertained. rior interest in the aforesaid property is Stephens, Patrick (deceased), late of 2 title dEEDS Date : 2 September 2011 called upon to furnish evidence of title to Ballygall Place, Finglas East, Dublin 11. I n the matter of the Landlord and Ten- Signed: Kearney Roche and McGuinn (so- same to the below named within 21 days Would any person having knowledge of ant Acts 1967-2005 and in the matter licitors for the applicant), 9 The Parade, from the date of this notice. the whereabouts of any will, and in par- of the Landlord and Tenant (Ground Kilkenny In default of any such notice being ticular the original will dated 13 Septem- Rents) (No 2) Act 1978 and in the mat- received, the said Glanbia Cooperative ber 1995, executed by the above-named ter of an application by Glanbia Co- In the matter of the Landlord and Ten- Society Limited and Glanbia Foods Ire- deceased, who died 23 August 1996, operative Society Limited and Glan- ant Acts 1967-2005 and in the matter land Limited intend to proceed with the please contact Joyce & Martin, Solici- bia Foods Ireland Limited of the Landlord and Tenant (Ground application before the county registrar at tors, 14 Sydney Parade Avenue, Sandy- Any person having a freehold estate or Rents) (No 2) Act 1978 and in the mat- the end of 21 days from the date of this mount, Dublin 4, tel: 01 260 7061, email: any intermediate interest in “all that and ter of an application by Glanbia Co- notice and will apply to the county regis- [email protected] those the dwellinghouse and premises operative Society Limited and Glan- trar for such directions as may be appro- situate in the town of Mountmellick, in Wolfe, Joyce (deceased), late of Kinvara the barony of Fenchurch and in the Nursing Home, Strand Road, Bray, Co Queen’s County, lately used as a constab- Ar mhaith leat seirbhísí dlí a thairiscint as Gaeilge do do chuid cliant? Ard-dioplóma sa Dlí-chleachtadh trí Ghaeilge (Óstaí an Rí) Reáchtálfaidh Óstaí an Rí (King’s Inns) cúrsa Ard-dioplóma sa Dlí-chleachtadh trí Ghaeilge (Deireadh Fómhair 2011 – Bealtaine 2012) a chumasóidh cleach- SAVE THE DATE tóirí dlí le feidhmiú trí Ghaeilge. Cuimseofar cúrsaí sibhialta agus coiriúla, dréachtú, abhcóideacht, comh- chomhairle agus idirbheartaíocht. Tá an cúrsa seo ar oscailt d’aturnaetha agus d’abhcóidí a bhfuil líofacht Ghaeilge acu agus reáchtálfar é tráthnóna Dé hAoine agus Dé Sathairn uair sa mhí thar 8 mí. Aon cheist? Glaoigh ar Dháithí Mac Cárthaigh BL 087 2368364; nó rphost FOR MORE INFORMATION, PLEASE VISIT: ag [email protected] WWW.AMERICANBAR.ORG/GROUPS/INTERNATIONAL_LAW Tuilleadh eolais & foirmeacha iarratais ag www.kingsinns.ie

Untitled-1.indd 1 4/13/2011 3:24:45 PM 68 Professional notices Law Society Gazette www.gazette.ie Aug/Sept 2011 notices

priate on the basis that the person or per- ate lying and being in the parish of Saint ter of an application by Brendan Foley “All that and those the plot or strip sons beneficially entitled to the superior George, county of the city of Dublin (hereinafter called the ‘applicant’) of of ground lying at the rere of houses interests including the freehold reversion aforesaid together with the shop fixtures 119 and 119a Emmet Road, Inch- and premises numbers 119, 121 and 123 in the aforesaid property are unknown or and fittings and the furniture and other icore, Dublin 8 Emmet Road, Inchicore in the parish of unascertained. chattels therein as it now stands”. Take notice that any person having any Saint Jude county of city of Dublin mea- Date: 2 September 2011 Take notice that Mary O’Rourke, Eu- interest in the freehold or leasehold es- suring in length from east to west 77 feet Signed: Kearney Roche and McGuinn (so- gene O’Rourke and Brendan Maguire, tate of the following property: all that and in breadth from north to south 16 licitors for the applicant), 9 The Parade, being the persons currently entitled to and those the premises demised by an in- feet six inches be the said admeasurement Kilkenny the lessees’ interests in the said premises denture of assignment dated 25 July 1976 more or less bounded on the north by a under the lease, intend to apply to the and made between Ernest Joseph Foley field or building ground the property of In the matter of the Landlord and county registrar for the county of Dublin of the one part and the applicant and the the representatives of the late Michael Tenant Acts 1967-2005 and in the for the acquisition of the lessor’s and all said Ernest Joseph Foley of the other O’Meara, on the south by the said houses matter of the Landlord and Tenant superior interests in the aforesaid prop- part, and therein described and known as and premises numbers 119, 121 and 123 (Ground Rents) (No 2) Act 1978 and in erties, and any party asserting that they 119 and 119a Emmet Road, Inchicore, in Emmet Road on the east by a line or pas- the matter of an application by Mary hold a superior interest in the aforesaid the city of Dublin, comprising: sage between 117 and 119 Emmet Road O’Rourke, Eugene O’Rourke and properties (or any of them) is called upon “All that and those that plot or piece and on the west by 125 Emmet Road Brendan Maguire to furnish evidence of title to same to the of ground situate on the north side of the which said plot of ground is more par- Any person having a freehold estate or below-named within 21 days from the road leading from Inchicore to Kilmain- ticularly described on the map annexed any intermediate interest in all that and date of this notice. ham, containing in front the said road 30 to these presents and thereon edged red those the Metro Bar, being the premises In default of any such notice be- feet from front to rere, on the east side together with stables and buildings now once known as number 155 Great Brit- ing received, Mary O’Rourke, Eugene thereof 53 feet 6 inches and from front to standing thereon; which said lands were ain Street, but now known as number O’Rourke and Brendan Maguire intend rere on the west side the like number of demised by Agnes Julia Kelly, Belinda 155 Parnell Street, in the city of Dub- to proceed with the application before feet be the said several admeasurements Jane Muldoon, Anna Maria Craughwell, lin, being the subject of an indenture of the county registrar at the end of 21 days or any of them; more or less bounded on Elisabeth Woodley and Henry Clifton to lease dated 10 November 1858 between from the date of this notice and will ap- the north by premises of John Cuddihy Joseph Quinn by indenture of lease dated Edward Kidby of the one part and John ply to the county registrar for the county Esq on the south by the said road lead- 25 November 1921 for the term of 264 Purcell of the other part, and therein de- of Dublin for such directions as may be ing from Inchicore to Kilmainham, on years at the yearly rent of 2 pounds and scribed as “all that and those the house appropriate on the basis that the person the east by a lane or passage and on the 10 shillings, together with the buildings number one hundred and fifty five Great or persons beneficially entitled to the West by other premises in the possession erected thereon”; the entirety of which Britain Street in the city of Dublin as superior interests including the freehold of the said Thomas Murray which said lands, known as 119 and 119a Emmet lately held in the possession and occupa- reversion in the aforesaid premises are plot of ground is situate, lying and being Road, Inchicore, now in the city of Dub- tion of Mr James Mc Manus, Grocer and unknown or unascertained. at Golden Bridge in the parish of Saint lin held by the applicant as surviving Spirit Dealer and meared and bounded Date: 2 September 2011 Jude barony of Upper Cross county of joint tenant under and by virtue of the on the south by Great Britain Street Signed: KMB Solicitors (solicitors for the Dublin together with a right of passage hereinbefore three recited leases, dated aforesaid on the north by the stable or applicants), 127 Lower Baggot Street, Dub- at the eastern side of the premises hereby 28 January 1885, 4 March 1885, and 25 at present a coach factory in the rear of lin 2 demised in common with the other ten- November 1921.” said house on the east by the house or ants of the said premises from the rere of Take notice that the applicant intends premises now in the occupation of Mr In the matter of the Landlord and Ten- said demised premises to the public road to submit an application to the county Kinsella and on the west by the house ant Acts 1967-2005 and in the matter in front which said lands were demised registrar for the county of the city of and premises now in the occupation of of the Landlord and Tenant (Ground by indenture of lease dated 28 January Dublin for the acquisition of the fee sim- Mrs Russell, Provision Dealer and situ- Rents) (No 2) Act 1978 and in the mat- 1885 from 25 March 1885 for 300 years ple interest in the aforesaid property, and at the yearly rent of 3 pounds, together any party asserting that they hold a supe- with buildings erected thereon. rior interest in the aforesaid property is “All that plot or piece of ground situ- called upon to give notice of such supe- ate on the north side of the road leading rior interest and furnish evidence of the from Inchicore to Kilmainham contain- title to the solicitor named below within ing in front to said road 5 feet in the rere 21 days of the date of this notice. Get more at gazette.ie the like number of feet and from front In default of any such notice being to rere 53 feet 6 inches the said several received, the applicant, Brendan Foley, admeasurements or any of them; more or intends to proceed with the application Gazette readers can access back issues of the magazine as less bounded on the north by premises before the county registrar at the end of of John Cuddihy Esq, on the south by 21 days from the date of this notice and far back as Jan/Feb 1997 right up to the current issue at the said road leading from Inchicore to will apply at the end of 21 days from the Kilmainham, on the east by other prem- date of this notice to the county registrar gazette.ie. ises demised to the said John O’Neill and for the county of the city of Dublin for on the west by premises in possession of directions as may be appropriate on the the said Thomas Murray which said plot basis that the person or persons ben- of ground is situate lying and being at eficially entitled to the superior interest You can also check out current news, forthcoming events, Golden Bridge in the parish of St Jude including the freehold reversion in the barony of upper cross county of Dublin aforesaid premises are unknown or un- employment opportunities and the latest CPD courses, as well which said lands were demised by inden- ascertained. as lots of other useful information at lawsociety.ie. ture of lease dated 4 March 1885 from 25 Date: 2 September 2011 March 1885 for 300 years at the yearly Signed: Declan Foley (solicitor for the ap- rent of 10 shillings together with the plicant), Glenroyal Centre, Maynooth, Co buildings erected thereon. Kildare Law Society Gazette www.gazette.ie Aug/Sept 2011 Professional notices 69 notices

I n the matter of the Landlord and ply to the registrar for such directions as 1) Indenture of lease dated 2 July 1811 registrar for directions as may be appro- Tenants Acts 1967 to 2005 and in the may be appropriate on the basis that the and made between the Right Honour- priate on the basis that the person or per- matter of the Landlord and Tenant person or persons beneficially entitled to able Charles John Viscount Mountjoy sons beneficially entitled to all superior (Ground Rents) (No 2) Act 1978 and in all the superior interest up to and includ- of the one part and Samuel Scott of interests up to and including the freehold the matter of an application by Kieran ing the fee simple in the said property the other part for a term of 997 years reversion in the aforesaid property are O’Beirne are unknown and unascertained. and six months from 1 May 1811, unknown and/or unascertained. Take notice that any person having an Date: 2 September 2011 subject to the yearly rent of £150 and Date: 2 September 2011 interest in the fee simple or any supe- Signed: Kevin P Kilrane & Co (solicitors for £300 as set out therein, and Signed: Reddy Charlton McKnight (solici- rior interest in the part of the property the applicant), Mohill, Co Leitrim 2) Indenture of lease dated 20 March tors for the applicant), 12 Fitzwilliam Place, known as ‘Kieran’s Pharmacy’, Main 1860 and made between Benjamin Dublin 2 Street, town, parish and barony of Mo- In the matter of the Landlord and Ten- Lee Guinness of the one part and hill in the county of Leitrim, being the ant Acts 1967-1994 and in the matter Arthur Irwin Mahon of the other In the matter of the Landlord and Ten- property comprised in a lease dated 6 of the Landlord and Tenant (Ground part for a term of 949 years from 1 ant Acts 1967-1994 and in the matter October 1921 and made between Max- Rents) (No 2) Act 1978: in the matter November 1859, subject to the yearly of the Landlord and Tenant (Ground millian Townley & Ors of the one part of an application by Mercury Invest- rent of £46.8.8. Rents) (No 2) Act 1978: an application and John Dunleavy of the other part for ments Limited by Páirc an Chrócaigh Teoranta the term of 99 years from 29 September Take notice that any person having an Take notice that Mercury Investments Take notice that any person having an 1920, subject to a yearly rent of £17.10s. interest in the freehold estate or any Limited, being the person entitled to the interest in the freehold estate or any Take notice that the applicant, Ki- intermediate interest in the following lessee’s interest in the said lease, intends intermediate interest in the following eran O’Beirne, intends to submit an property: Richmond Industrial Estate, to submit an application to the county property: all that and those the her- application to the county registrar for North Richmond Street in the city of registrar for the city of Dublin for the editaments and premises known as Unit Co Leitrim for the acquisition of the Dublin, held under an indenture of sub- acquisition of the fee simple interest and 6A, Richmond Industrial Estate, North fee simple and any immediate superior lease (‘the sub-lease’) dated 19 Novem- all intermediate interests (if any) in the Richmond Street in the city of Dublin, interest or interest in the aforesaid prop- ber 1931 made between Robert Cecil aforesaid property, and any party assert- held under an indenture of sub-lease erty, and that any party asserting that Booth of the one part and Thomas Pear- ing that they hold a superior interest in (‘the sub-lease’) dated 19 November they hold the said fee simple or any su- son Company Limited of the other part the aforesaid property is called upon to 1931, made between Robert Cecil Booth perior interest in the aforesaid property for a term of 870 years from 1 September furnish evidence of title to the below of the one part and Thomas Pearson is called upon to furnish evidence of title 1931, subject to the adjusted yearly rents named within 21 days from the date of Company Limited of the other part for to the under mentioned within 21 days of £100, £25, £35, £10, therein referred this notice. a term of 870 years from 1 September from the date of this notice. but since indemnified against the pay- In default of any such notice being 1931, subject to the adjusted yearly rent In default of any such notice being re- ment of the entirety thereof by the re- received, the applicant, Mercury Invest- of £112 reserved by the sub-lease and ceived, the said applicant intends to pro- mainder of the premises demised by the ments Limited, intends to proceed with indemnified against the payment of £87 ceed with the application before the said sub-lease, which is a sub-lease derived the application before the county regis- portion of the said rent of £112 in the county registrar at the end of the 21 days from the demise effected by the follow- trar at the end of 21 days from the date sub-lease reserved and contained, and by from the date of this notice and will ap- ing leases: of this notice and will apply to the county the remainder of the premises demised

job-seekers’ legal register vacancies F or Law Society members seeking For Law Society members to advertise a solicitor position, full-time, part-time for all their legal staff requirements, or as a locum not just qualified solicitors

L og in to the members’ register of the Law Society V isit the employment section on the Law Society website, www.lawsociety.ie, to upload your website, www.lawsociety.ie, to place an ad or CV to the self-maintained job seekers contact employer support by email on register within the employment [email protected] section or contact career or tel: 01 672 4891. You support by email on can also log in to the members’ [email protected] or area to view the job seekers tel: 01 881 5772. register. 70 Professional notices Law Society Gazette www.gazette.ie Aug/Sept 2011 notices

by the sub-lease, which is a sub-lease de- for the county of the city of Dublin for received, the said Ann Marie (otherwise or persons beneficially entitled to all su- rived of the demise effected by an inden- the acquisition of the fee simple inter- Sheila) O’Brien intends to proceed with perior interests up to and including the ture of lease dated 2 July 1811 and made est and all intermediate interests (if any) the application before the said county fee simple on the said property unknown between the Right Honourable Charles in the aforesaid property, and any party registrar at the end of 21 days from the and unascertained. John Viscount Mountjoy of the one part asserting that they hold a superior in- date of this notice and will apply to the Date: 2 September 2011 and Samuel Scott of the other part for a terest in the aforesaid property is called said registrar of such directions as may be Signed: Fagan Bergin (solicitors for the ap- term of 997 years and six months from 1 upon to furnish evidence of title to the appropriate on the basis that the person plicant), 57 Parnell Square West, Dublin 1 May 1811, subject to the yearly rent as aforementioned property to the below reserved under the sub-lease. named within 21 days from the date of Take notice that Páirc an Chrócaigh this notice. Teoranta intends to submit an appli- In default of any such notice being re- recruitment cation to the county registrar for the ceived, the applicant, Páirc an Chrócaigh county of the city of Dublin for the ac- Teoranta, intends to proceed with the quisition of the fee simple interest and application before the county registrar at NOTICEO T THOSE PLACING all intermediate interests (if any) in the the end of the 21 days from the date of RECRUITMENT ADVERTISEMENTS IN aforesaid property, and any party assert- this notice and will apply to the county THE LAW SOCIETY GAZETTE ing that they hold a superior interest in registrar for the city of Dublin for direc- the aforesaid property is called upon to tions as may be appropriate on the basis Please note that, as and from the August/September 2006 issue furnish evidence of title to the afore- that the person or persons beneficially of the Law Society Gazette, NO recruitment advertisements mentioned property to the below named entitled to the superior interests includ- will be published that include references to years of post- within 21 days from the date of this no- ing the freehold interest in the aforesaid qualification experience P( QE). tice. property are unknown and/or unascer- In default of any such notice being re- tained. The Gazette Editorial Board has taken this decision based on ceived, the applicant, Páirc an Chrócaigh Date: 2 September 2011 legal advice, which indicates that such references may be in Teoranta, intends to proceed with the Signed: Reddy Charlton McKnight (solici- breach of the Employment Equality Acts 1998 and 2004. application before the county registrar tors for the applicant),12 Fitzwilliam Place, at the end of 21 days from the date of Dublin 2 this notice and will apply to the county registrar for the city of Dublin for direc- In the matter of the Landlord and Ten- Partner Designate for Sole Practitioner tions as may be appropriate on the basis ant Acts 1967-2005 and in the matter that the person or persons beneficially of the Landlord and Tenant (Ground Ambitious solicitor required by long established practice in Dublin 8. The successful entitled to the superior interests includ- Rents) (No 2) 1978 and in the matter candidate will be a committed self-starter with a wide range of practical experience ing the freehold interest in the aforesaid of an application by Ann Marie (oth- in litigation together with some experience in probate and conveyancing. Strong property are unknown and/or unascer- erwise Sheila) O’Brien interpersonal skills and the ability to build trust and credibility with clients would be tained. Any person having any interest in the fee essential qualities. The successful candidate will be expected to take on a considerable Date: 2 September 2011 simple estate or any intermediate interest caseload and to get involved in the professional, administrative and financial Signed: Reddy Charlton McKnight (solici- in all that and those the hereditaments management of the firm. It is anticipated that the person chosen to fill this vacancy tors for the applicant),12 Fitzwilliam Place, and premises known as no 62 North will, after a short probationary period, be fast tracked to an equity partnership and Dublin 2 Strand Road in the county of the city will ultimately take over the firm on the retirement of the sole practitioner. of Dublin, being the premises demised In the matter of the Landlord and Ten- in the indenture of assignment dated 27 Replies in the strictest confidence to: ant Acts 1967-1994 and in the matter March 1979 between Mary Stavely of the Charles Russell, Russell & Company, of the Landlord and Tenant (Ground one part and Elizabeth Farrell and Ann Management & Software Consultants to the Legal Profession Rents) (No 2) Act 1978: an application Marie O’Brien of the other part, being 6 Hyde Park, Dalkey, Co. Dublin by Páirc an Chrócaigh Teoranta a portion of premises comprised and Or by email to [email protected] Take notice that any person having an described in an indenture of lease made interest in the freehold estate or any on 17 November 1891 between Richard intermediate interest in the following Woolcombe, Robert Loveband Fulfort property: all that and those the heredita- and Franny Emily Walker of the one part ments and premises situate off St Jo- and Mark Quinn of the other part for a seph’s Avenue, Drumcondra, Dublin 3, period of 150 years. held under an indenture of lease dated 10 Take notice that Ann Marie (other- December 1829 and made between John wise Sheila) O’Brien, being the person Linda Evans, Solicitor and Recruitment Consultant with Careers Torrens and Henry Brownrigg of the one entitled to the lessee’s interest in the said Register (part of the CPL Group) would like to speak with solicitors part to John Bradley of the other part for lease, intends to apply to the Dublin who are interested in making a move in the right direction. the term of 500 years from 29 September county registrar at Áras Uí Dhálaigh, 1829, subject to an annual rent of £75 per Inns Quay, Dublin 7, for the acquisition With vacancies across Banking & Finance, Funds, Commercial annum and under an indenture of lease of the fee simple interest and all interme- Contracts, IP & Technology, Employment Law, Litigation and many dated 16 April 1864 made between Rob- diate interest (if any) in the said property, more sectors, Linda has excellent working relationships with high ert Fowler of the one part and Maurice and any party asserting that they hold the calibre market-leading clients in both practice and industry. It makes Butterly of the other part for a term of fee simple or any intermediate interest in sense to call Linda for a confidential discussion about the current 500 years from 1 May 1863, subject to an the aforesaid property is called upon to Legal Market and what is the right move for you. annual rent of £175 per annum. furnish evidence of their title thereto to Take notice that the applicant, Páirc the under-mentioned solicitors within 21 Direct Dial 01 500 5907 or mobile outside office hours 087-7674873 an Chrócaigh Teoranta, intends to sub- days from the date of this notice. Email [email protected] mit an application to the county registrar In default of any such notice being taylorroot.com Sending lawyers all over the world

We are able to place strong lawyers based in Ireland in to leading international law firms. Australia, the Caribbean, the Channel Islands and the Middle East are common locations to which we relocate. We would be really interested in speaking with lawyers who are considering a move overseas. To discuss current opportunities or for more information, please contact Emma Mahoney or Emily Rae on +44 (0)20 7415 2828 or alternatively email [email protected] or [email protected] Visit taylorroot.com 72 captain’s blawg Law Society Gazette www.gazette.ie Aug/Sept 2011

wiw ld, eiRD and wacky stories from legal ‘blawgs’ and media around the world Bam! Pow! Shazam! Southern District Judge Colleen McMahon ruled on 28 July that Marvel Worldwide Inc owns the copyrights to more than a dozen superheroes, including Spider- Man, X-Men and Iron Man, over the claims of the estate of a legendary artist, according to The Associated Press. Marvel Worldwide had sought to invalidate 45 notices sent by the heirs of artist Jack Kirby to try to terminate its copyrights, effective on dates ranging from 2014 through 2019. The famous artist died in 1994. The comics were first published between Bearly-credible ways the Tudors died 1958 and 1963. O Uxford niversity historian Dr Steven custody – perhaps because it was a depth of six inches. In her ruling on Marvel Gunn has scoured 16th century worth 26 shillings and 8 pence, the The first time a coroner’s court Worldwide Inc v Kirby (10 Civ coroners’ reports on accidental equivalent of six months’ wages for came up against the new-fangled 141), Judge McMahon found deaths in Tudor England, the BBC a labourer. problem of a fatal shooting accident that, in 1972, Marvel had Mr reports. Performing bears, archery Coroners’ reports reveal 56 was in 1519, when a woman in Kirby “execute an assignment” accidents – and guns – feature among accidental deaths due to archery – Welton, near Hull, was accidentally to the comic-book giant “of any some of the stranger deaths recorded. from people standing too close to the killed by a handgun. The perpetrator and all right, title and interest … Bears played a significant role targets or those who decided on just was a bookbinder from France, that Kirby ‘may have or control’ in the Tudor entertainment scene, the wrong time to go and collect the with the unlikely name of ‘Peter in any of the works Kirby created and sometimes escaped. One victim, fired arrows. Coroners even noted Frenchman’. The victim, not for Marvel”. She added that Agnes Owen from Herefordshire, the depth of wounds. The unwanted understanding this noisy gadget, had the assignment “contained an was killed in her bed by a runaway record is held by a Nicholas walked in front of the gun as it had acknowledgement that Kirby bear. When a bear bit a man to death Wyborne, who was lying down been fired. By the 1560s, guns were had created the works ‘as an in Oxford in 1565, the bear wasn’t near a target when he was hit by a causing more accidental deaths than employee for hire’.” As such, the punished but was taken into royal falling arrow, which pierced him to longbows. heirs’ claims were ruled invalid.

Taco blade gets guard jail time Jail guard Alfred Casas (31) Tobacco firms to sue was convicted on 26 July of smuggling a saw blade to a over health warnings double murder suspect in the F our tobacco companies are Washington, DC. Bexar County Jail, Texas, by suing the US Food and Drug The new warnings will be hiding it in a folded soft taco Administration over a new law required on cigarette packs from shell, says Reuters. Casas admitted that would force them to place September 2012. Dead bodies, to sneaking a taco into the jail in graphic health warnings on their diseased lungs and rotting teeth December 2009, but denied that cigarette packets. are among the images expected a hacksaw blade was inside its The lawsuit said the warnings to appear, in the first change shell. A jury convicted Casas of would force cigarette makers to US cigarette warnings in 25 bribery and providing an inmate to “engage in anti-smoking years. with ‘escape implements’ after Bexar County district attorney) advocacy” on the government’s The lawsuit is being taken ten hours of deliberation. said that Casas was convicted of behalf. by Reynolds American Inc’s The hacksaw blade, along with two felony counts of bribery, each They claim that this violates RJ Reynolds unit, Lorillard a length of rope and an inmate punishable by two to 20 years in their free speech rights under Inc, Liggett Group LLC and jumpsuit dyed to resemble street prison. The third count was for the First Amendment, according Commonwealth Brands Inc, clothes, was found in the inmate’s providing an inmate with ‘escape to a complaint filed with the owned by Britain’s Imperial cell during a surprise inspection. implements’, punishable by two US District Court in Tobacco Group Plc. James Ishimoto (assistant to ten years. Brightest High Flyers dublin london

Banking Solicitor Top 5 Financing Associate Magic Circle In joining the stand-out banking team in Ireland you will be exposed to the full In joining this outstanding international finance practice you will advise gambit of banking law including acquisition finance, property finance, structured corporates, banks and financial institutions on cutting edge legal matters. A true products, capital markets and aviation finance. You will deal directly with top lockstep partnership, the Firm is renowned for its multi-disciplinary approach. As drawer Irish and international clients, participate in business development and an associate you are not expected to master all types of financing work but gain will be given clear goals for career progression. The true lockstep structure of the familiarity with four to five areas of the practice and if you feel you are ready to partnership ensures a transparent collegiate culture, a client first mentality and run a negotiation or meeting alone, the Partners will be keen to encourage you. merit only based promotions. 2+ years relevant experience in a Top 10 firm. 2-4 years relevant experience with a Top 5 or international corporate firm.

Corporate Solicitor Top 5 Corporate Associate Magic Circle This top flight corporate practice advises on a broad range of public and private This Firm has a cutting edge international corporate practice advising a broad deals across all industry sectors with transaction values ranging from tens of range of industries on a wide range of transactions. The Firm promotes a culture millions to multi billion Euro deals. With 3 years corporate experience, you would of inclusivity, transparency and responsibility; with 4 years corporate experience be leading a €300M deal with the partner in the background supporting you as you would take the lead on a large cross-border merger. With a 7 year track from required. You will deal directly with clients, have substantial lead lawyer NQ to Equity, this Firm has the shortest track of any Magic Circle firm and equally, exposure, participate in business development and work in a collegiate, friendly the Firm has lost less partners to its rivals than other City firms. 2-5 years relevant and future focussed team. 2-5 years relevant experience in a Top 10 firm. experience with a Top 5 or international corporate firm.

In-House Corporate Advisor Financial Institution Competition Associate Magic Circle Reporting directly to the group head of legal, you will advise the business on As one of the leading “go to” competition law practices in Europe, associates in corporate and restructuring issues across all bank divisions. You will have a high the group soon find themselves involved in decision making for some of the degree of visibility within the bank and as such you must be confident in your biggest household names and largest commercial organisations in the world on approach, possess the ability to work collaboratively, be an effective decision matters of strategic importance to those businesses. Dealing with a broad range maker and be capable of working autonomously. As this is a newly created of advisory and litigious matters, with 4 years relevant experience you could take position, you will have a unique opportunity to put your own stamp on the role. the lead on defending a statement of objections alleging cartel activity. 1-5 years 4-7 years relevant experience in a Top 10 firm. relevant experience with a Top 5 or international corporate firm.

Funds Solicitor Top 5 Dispute Resolution Associate Magic Circle Consistently ranked as a tier one adviser to the asset management industry, the This dispute resolution practice deals with complex litigation, domestic and team advises on UCITS, ETFs, money market funds, structured funds and international arbitrations (40-60% of the work), formal inquiries and inter- alternative funds invested in royalties, insurance products, currencies, real estate, jurisdictional disputes. As an associate you will gain experience across a range of private equity, commodities and bank loans. The Firm’s strong servicing ability commercial and financial disputes including defamation, insurance litigation, and multiple partner per client approach has seen it grow consistently over the banking litigation, professional negligence, administrative law and JR. Due to the last 5 years with a number of major new client wins. Personable, client focused international nature of the work and clients, there are also many opportunities and ambitious will be the hallmarks of the appointee. 2-5 years relevant for travel or secondment overseas. 2-4 years relevant experience with a Top 5 or experience in a Top 10 firm. international corporate firm.

For a confidential discussion on any of these opportunities, or other non-advertised positions in Dublin and London please contact: Bryan Durkan | t: +353 1 632 1852 | e: [email protected] | w: www.hrm.ie/legal www.benasso.com Remaining the number one Irish legal recruitment consultancy takes a dogged determination, thinking creatively, spotting new opportunities and keeping an open mind

www.benasso.com Remaining the number one Irish legal recruitment consultancy takes a dogged New Openingsdetermination, thinking creatively, spotting new opportunities and keeping an open mind NewPrivate Practice Openings Banking - Associate to Senior Associate: First rate law fi rm seeking a strong Banking lawyer with exposure to SPVs. You will be involved in a range of transactions acting on behalf of both domestic and international clients. CommercialPrivate Practice Litigation – Associate: Central Dublin practice is looking for a strong practitioner with an excellentAsset Financelitigation background. – Associate to Senior Associate: Our client is a leading law firm with a strong asset finance Bankingdepartment - specialising Associate in in to leasing, Senior structured Associate: and cross-border First rate financing law fi rmand seekingsecuritisations. a strong Candidates Banking will lawyerbe working with Commercialexposurein private topractice SPVs. Litigation with You prior will experience - beAssociate involved in the in tobanking a Senior range and of Associate:financial transactions services. Strong acting You practicewill on be behalf advising with of aleading bothclient domestic basedomestic ranging and and frominternationalinternational SMEs to clients.financial international institutions, companies lessors, requiresairlines, financiallitigators andwith investments commercial advisers. litigation expertise. CommercialAsset Management -Litigation Senior and Associate: Investment – Associate: AFunds signifi Central –cant Associate DublinDublin practicetopractice Senior isis Associate: lookingsearching for forOura strong excellent client ispractitioner a topcandidates tier firm with with an commercialexcellentan excellent litigation nous Funds coupled background. practice. with The thesuccessful enthusiasm candidate and will drive be advisingto develop investment a fi rst ratemanagers, client custodians,base. administrators and other service providers of investment funds on establishing operations in Ireland. You will have experience of advising Strong practice with a client base ranging CorporateCommercialclients on the Finance legal Litigation and regulatory – Assistant - Associate issues involvedto Senior to in Senior the Associate: structuring, Associate: establishment Leading Dublin and listing practice of investment requires funds. a high calibre lawyerfrom SMEs to deal to internationalwith corporate companies advisory requireswork including litigators mergers with commercial and acquisitions, litigation joint expertise. ventures, management buyCommercialBanking outs, reverse – Associate - takeoversSenior to Associate:Senior and debt Associate: and A equitysignifi Our cantfi nancingsclient Dublin acts foras practice allwell the as major is advising searching banks onoperating forfl otations excellent in the and Irish candidates fundraisings. market. The with commercialgroup has grown nous significantlycoupled with in recentthe enthusiasm years and is and now drive one toof thedevelop largest a bankingfi rst rate practices client base.in Ireland. The successful EU/Competitioncandidate will be experienced - Assistant: in structured Our client finance, is a fiproject rst class finance legal practiceand securitisation whose transactionsclient base includesand be comfortable prestigious in publicCorporateproviding service regulatory Finance and privateadvice – to Assistantsector banks organizationsand otherto Senior financial operating Associate: services both institutions. in Leading the domestic Dublin marketpractice and requires internationally. a high calibre You willlawyer be to a Solicitordeal with or corporate Barrister advisory with excellent work including exposure mergers to EU and and Competitionacquisitions, Law, joint gainedventures, either management in private practicebuyInsurance outs, or reverse in-house. – Associate takeovers to and Senior debt andAssociate: equity fi Workingnancings within as well a dedicated as advising team on in fla otations first class and law fundraisings. firm you will have previous experience of corporate insurance work either in private practice or in-house. You will be dealing with global FundsEU/Competitioninsurance - Assistant/Associate:and reinsurance - Assistant: companies Our advisingTop client ranking on is M&A, a lawfi rst regulation fi class rm requires legal and practice corporate excellent whose governance Funds client specialists in base the insurance includes at all sector.prestigiouslevels. You willpublic advise service investment and private managers, sector custodians,organizations administrators operating both and in other the domestic service providers market and of investment internationally. funds You on establishingwillEmployment, be a Solicitor operations Pensions or Barrister in Ireland. and with Benefits excellent – exposure Associate: to Working EU and with Competition one of the leading Law, gained teams in either this field, in private the practicesuccessful or in-house.candidate will have experience of pensions regulatory compliance, pensions trusteeship issues and the drafting Fundsof trust -documentation. Assistant to You Senior will be workingAssociate with a :range International of domestic law and fi rm international recently established employer companies, in Dublin state is searching bodies forFundsand ambitious trustees - Assistant/Associate: ofcommercially-minded pension schemes. practitionersTop ranking lawwith fi strongrm requires exposure excellent to investment Funds specialists funds. at all levels. You will advise investment managers, custodians, administrators and other service providers of investment funds on establishingIT/Technology operations – Senior in Ireland.Associate – Contract: A top Dublin practice is searching for an experienced IT practitioner Inwith Housestrong exposure to commercial contracts to include agency, franchise and distribution agreements. Anticipated duration Fundsof the contract - Assistant will be 12 to months. Senior Associate : International law fi rm recently established in Dublin is searching Seniorfor ambitious Legal commercially-minded Advisor: Our client practitioners is searching with for strong a senior exposure solicitor to investment or barrister funds. with expertise in equity capitalIT – markets,Associate corporate to Senior fi nance, Associate: mergers Our and client acquisitions advises on orcommercial general corporate contracts includingpractice agency,advising distribution, Irish or UK listedfranchise companies. and procurement agreements as well as the IT aspects of M&A and other corporate transactions. Clients include major technology and R&D businesses and software companies. We are searching for experienced IT/Outsourcing TelecomsInpractitioners House -seeking Junior a fresh Solicitor challenge. or Barrister: Our client is searching for a junior solicitor or barrister to workSenior with Legal a growing Advisor: team. You Our will client be dealingis searching with afor variety a senior of Telecoms solicitor orrelated barrister matters. with expertiseThis is a newin equity role whichcapitalRegulatory requiresmarkets, and strong corporate Compliance people fi nance, skills – Associate mergersand business andto Senior acquisitions acumen. Associate: Fluencyor general Working in corporateSpanish with one is ofpractice anIreland’s essential advising top flight pre-requisite. Irish practices, or UK listedyou willcompanies. have prior experience in regulatory/compliance matters working either in a law firm or in-house. You will have advised directors, senior management, in-house counsel and compliance officers on their obligations under new and PartnershipTelecomsexisting regulation - Junior and assisted Solicitor in implementing or Barrister: risk management Our client and is compliance searching systems. for a junior solicitor or barrister to Ourwork clients with ainclude growing the team. leading You Irish will law be fi dealingrms. Signifi with cant a variety opportunities of Telecoms exist inrelated the following matters. practice This is areas a new and role a clientwhichTax following –requires Senior is strongAssociate: not essential. people Our skills client and is a highbusiness calibre acumen. law firm Fluencywith an enviable in Spanish domestic is anand essentialinternational pre-requisite. client base Employmentcovering all ;major Funds business ; Insolvency sectors. ; LitigationApplicants ;will Regulatory/Compliance have the appropriate professional ; Environmental qualifications. & Planning We are particularly Partnershipinterested in candidates with significant exposure to the Financial Services sector. Our clients include the leading Irish law fi rms. Signifi cant opportunities exist in the following practice areas and a client following is not essential. For more information on these or other vacancies, please Employment ; Funds ; Insolvency ; Litigation ; Regulatory/Compliance ; Environmental & Planning visit our website or contact Michael Benson bcl solr. in strict confi dence at: Benson & Associates, Suite 113, The Capel Building, St. Mary’s Abbey, Dublin 7. TFor +353 more (0) information 1 670 3997 on these E [email protected] or other vacancies, please visit our website or contact Michael Benson bcl solr. in strict confi dence at: Benson & Associates, Suite 113, The Capel Building, St. Mary’s Abbey, Dublin 7. T +353 (0) 1 670 3997 E [email protected]