LAW SOCIETY

Gazette€3.75 Jan/Feb 2007

THETHE GREATGREAT DIVIDE:DIVIDE: Draconian immigration legislation?

INSIDE: WASTED COSTS • INTERVIEWING SKILLS • VAT AND PROPERTY • TEEN BOOT CAMPS • YOUR LETTERS

LAW SOCIETY GAZETTE JAN/FEB 2007 CONTENTS

On the cover LAW SOCIETY Proposed new legislation would make it an offence to marry a foreign national in certain circumstances and restrict the right of foreign nationals to Gazette validly marry in Ireland. But might it be unconstitutional? Jan/Feb 2007

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Volume 101, number 1 Subscriptions: €57 REGULARS 4 President’s message News 7 Third edition of Conveyancing Handbook released on CD-ROM Viewpoint 14 Why ‘boot camps’ for teenage offenders are a bad idea 16 Letters 39 Practice doctor 14 Equity release schemes: things to be aware of 40 Tech trends 42 People and places Obituary 46 Denis J Bergin, solicitor Student spotlight 47 Sporting glory in the offing for Blackhall GAA team? Briefing 48 48 Council report 49 Practice notes 51 Legislation update: 18 November 2006 – 17 January 2007 40 55 Solicitors Disciplinary Tribunal reports 57 FirstLaw update 59 Eurlegal: Competition Authority v BIDS [2006] IEHC 294 64 Professional notices 70 Recruitment advertising

Editor: Mark McDermott. Deputy editor: Garrett O’Boyle. Designer: Nuala Redmond. Editorial secretaries: Catherine Kearney, Valerie Farrell. For professional notice rates (lost land certificates, wills, title deeds, employment, miscellaneous), see page 00. Commercial advertising: Seán Ó hOisín, 10 Arran Road, Dublin 9; tel: 01 837 5018, fax: 01 884 4626, mobile: 086 811 7116, email: [email protected]. Printing: Turner’s Printing Company Ltd, Longford. Editorial board: Stuart Gilhooly (chairman), Mark McDermott (secretary), Pamela Cassidy, Paula Fallon, Michael Kealey, Mary Keane, Aisling Kelly, Patrick J McGonagle, 47 Ken Murphy, Philip Nolan, William Prentice.

2 www.lawsociety.ie CONTENTS LAW SOCIETY GAZETTE JAN/FEB 2007

Get more at lawsociety.ie PROFESSIONAL NOTICES: send your small advert details, with payment, to: Gazette Office, Blackhall Place, Dublin 7, tel: 01 672 4828, or email: [email protected]. Gazette readers can access back issues of the ALL CHEQUES SHOULD BE MADE PAYABLE TO LAW SOCIETY OF IRELAND. magazine as far back as Jan/Feb 1997, right up to the current issue at lawsociety.ie. COMMERCIAL ADVERTISING: contact Seán Ó hOisín, 10 Arran Road, Dublin 9, tel: 01 837 5018, fax: 884 4626, mobile: 086 811 7116, email: [email protected] You can also check out: • Current news HAVE YOU MOVED? Members of the profession should send change-of-address • Forthcoming events, including Acting for the details to: IT Section, Blackhall Place, Dublin 7, or to: [email protected] Vulnerable Client, 7 February Subscribers to the Gazette should send change-of-address details to: • Employment opportunities Gazette Office, Blackhall Place, Dublin 7, or to: [email protected] • The latest CPD courses HOW TO REACH US: Law Society Gazette, Blackhall Place, Dublin 7. … as well as lots of other useful information Tel: 01 672 4828, fax: 01 672 4877, email: [email protected]

FEATURES COVER STORY: 18 The great divide Proposed legislation to restrict the right of foreign nationals to validly marry in Ireland is certainly draconian and possibly unconstitutional and incompatible with the ECHR. Emmet Whelan plans the reception

VATman returns 22 The Caped Crusader’s more sedate cousin is bringing a new order to the Gotham that is property VAT law, and all businesses with property interests need to consider the implications. Frank Mitchell battles the forces of evil

The big interview 26 You now regret agreeing to serve on that interview panel, and are panicked that you’ll ask the wrong questions. But no need to worry: Aoife Coogan 26 provides top tips for getting the most out of your recruitment process

Waste not, want not 30 The recent ‘wasted costs order’ case shows that extreme caution should be exercised in attempting to apply the wasted costs rules more widely. Roddy Bourke explains

Hangin’ on the telephone 34 In-house solicitors represent around 9% of solicitors practising in Ireland. Mark McDermott talks to Aoife Sexton, an in-house solicitor at the top of her game

The Law Society of Ireland can accept no responsibility for the accuracy of contributed articles or statements appearing in this magazine, and any views or opinions expressed are not necessarily those of the Law Society’s Council, save where otherwise indicated. No responsibility for loss or distress occasioned to any person acting or refraining from acting as a result of the material in this publication can be accepted by the authors, contributors, editor or publishers. The editor reserves the right to make publishing decisions on any advertisement or editorial article submitted to this magazine, and to refuse publication or to edit any editorial material as seems appropriate to him. Professional legal advice should always be sought in relation to any specific matter. Published at Blackhall Place, Dublin 7, tel: 01 672 4800, fax: 01 672 4877. Email: [email protected] Law Society website: www.lawsociety.ie 34

www.lawsociety.ie 3 LAW SOCIETY GAZETTE JAN/FEB 2007 PRESIDENT’S MESSAGE

Competition Authority’s has been overtaken by

he Council of the Law Society held a total of 13 are addressed to the Bar Council, and special meeting on 19 January to just four are addressed to the Law Society. consider in detail the contents of the The authority’s view, repeated verbatim from its final report in the Competition preliminary report, is that “the legal profession is T Authority’s study of the legal profession. permeated with serious and disproportionate That report had been published, at last, on 11 restrictions on competition. These restrictions December. emanate primarily from the regulatory rules of the I feel justified in commenting that the report Law Society, the Bar Council and the King’s Inns, was published ‘at last’, as it took the Competition but also from the relevant legislation.” Once again, Authority no less than five-and-a-half years to I wish to place on record that the Law Society produce a report of under 200 pages in length. strongly disputes these statements. Indeed, there is Indeed, when 50 pages of appendices and many no evidence in the report to support such findings more blank pages are stripped away, the actual as far as solicitors are concerned. report itself, including much internal repetition, The Society is critical of the authority’s is less than 140 pages in length. inconsistent use of evidence in two main respects. As director general Ken Murphy commented on First, on the subject of the competitiveness of the the radio on the day of publication, “If anyone else market for solicitors’ services in Ireland, the took that long to produce a report of that size, I authority seems very reluctant to draw the think they would probably be criticised for inevitable conclusion, based on the evidence of its inefficiency – by the Competition Authority.” own report, that the market is highly competitive. Of course, a report that is small in size can be Second, in relation to the system of regulation of heavyweight and compelling in content. the legal profession and on other matters, the Unfortunately, that is not the case with the authority disregards the need to produce real Competition Authority’s final report. evidence rather than simply rely on theory and assertions. Nothing new As the Society has repeatedly pointed out, the The Society’s initial assessment of the report, solicitors’ profession firmly believes that conveyed by email from me to solicitors two days after competition benefits consumers and also the the report was published, was that it contained profession itself. Indeed, intense internal and nothing new. The authority’s opinions and external competition has long been a daily reality recommendations are essentially the same as in its for solicitors. preliminary report published in February 2005. The Most importantly, however, some of the Society delivered a comprehensive 90-page response Competition Authority’s proposals carry a real risk to that in July 2005, and I would urge that this be read to the independence of the legal profession from in conjunction with the report. Because the authority’s unwarranted political intervention. This final report is essentially unchanged, the Society’s independence is crucial in a free, democratic criticisms of the preliminary report still stand. It is society. Access to justice cannot be properly disappointing that the balanced and reasoned response examined only in terms of economics. from the Society to the authority’s preliminary report By taking no less than five-and-a-half years to appears to have fallen on deaf ears. produce its final report, it is hardly surprising that The authority makes a total of 29 recommend- the authority has been overtaken by events. ations. The great majority are addressed to the The government’s decisions in relation to Minister for Justice, Equality and Law Reform. A regulatory reform now exist in the Civil Law

4 www.lawsociety.ie PRESIDENT’S MESSAGE LAW SOCIETY GAZETTE JAN/FEB 2007 report events

(Miscellaneous Provisions) Bill 2006, which has already completed its second stage in the Dáil and is due to be enacted early in 2007. The introduction of a Legal Services Ombudsman and a lay majority on the Law Society Complaints and Client Relations Committee is, in the Society’s view, a proportionate response, which we support. On the issue of legal costs, the Haran Working Group on the costs of civil litigation was established, has reported, and is now at implementation stage, all in the space of approximately a year-and-a-half.

Recommendations based on prejudice Following a thorough analysis, the Council’s overall conclusion, endorsed by the Society’s legal and economic expert advisors, was that the report is disappointing in the quality of its analysis and conclusions. Its main recommendations are based on a priori reasoning, or even prejudice, rather than an informed understanding and accurate assessment of the present situation in the market for legal services in Ireland. In addition, the report fails to meet the standards of evidence-based policy making that are Perhaps surprisingly, given the Council’s generally “If anyone else required for sound regulation, as recently low opinion of the Competition Authority’s report, took that long to endorsed by the government. each of these four recommendations either already As I have indicated, just four of the authority’s represented Council policy or was recognised as a produce a report recommendations are addressed to the Law good proposal and adopted as policy at the recent of that size, I Society. These are that the Society should: Council meeting. a) Publish criteria for a voluntary system whereby At the end of the Council meeting, each of the think they would solicitors who wish to represent their clients in report’s sections and each of the 29 recommend- probably be Irish could be trained and examined to a high ations having been considered in turn, there was, and consistent standard, perhaps surprisingly also, a general consensus that criticised for b) Ensure that all unnecessary barriers are the process of the study, although tediously over- inefficiency – by removed for lawyers wishing to switch from one long, had been on balance a good thing for the branch of the legal profession to the other, Society and for the profession. It had caused us to the Competition c) Amend its regulations to enable the designation critically review everything we do. Much Authority” of solicitors as specialists and to allow such improvement and greater understanding of what solicitors to advertise as specialists, and we do has resulted. d) In consultation with the National Consumer Agency, develop a consumer information page Philip Joyce on its website. President

www.lawsociety.ie 5 ‘Giving your clients peace of mind when investing abroad’

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■ WICKLOW association president David Revamp it up Bergin was thrilled with the Lawyers in the county will soon success of the night, which also have to contemplate how their raised a considerable sum for business is to be conducted when charity. Guests included several Wicklow courthouse closes. The members of the judiciary, our courthouse is scheduled for a friends in neighbouring bar substantial revamp. Bar associations both in Ireland and association president Cathal Britain, as well as Ministers Louth has no hard information McDowell and Cowen. as to when the closure will take Congratulations to Orla Coyne, place, other than the fact that it who organised the night for the is imminent. However, he Men in black first time in succession to Helene believes that the works will The Mayo Solicitors' Bar Association annual dinner dance took place Coffey. involve the closure of the on 8 December (l to r): Michael Bohan, Pat O’Brien, Gerry O’Meara, courthouse for up to two years. Brian Diamond and Shane Tully Achilles’ last stand It is likely, therefore, that court Helene herself, as DSBA business will be transferred to (although no doubt there will be believes that the solution lies in programme director, has been the already very congested Bray the mandatory CPD element!). the permanent appointment of a busy organising a high-powered court, which will be good news No problem there, either – further two judges and calls upon seminar on family law that was for those in the northern part of except it was a women-only the government to make these very well attended. Chaired by the county but less so, perhaps, affair! Would the men ever do appointments without delay and Hilary Coveney, now of MOP, for those from the southern such a thing? Surely this event to provide the Courts Service speakers included Gerry Durcan boundary. was a one-off and would never with the necessary resources to SC, solicitor Muriel Walls, legal be replicated elsewhere – or give the people of Donegal a costs accountant Robert ■ MEATH would it? Morette didn’t see any properly staffed functioning McCann and Dr Carol Coulter. Take a seat problem with the gender system of justice.” The DSBA’s Family Law Paul Brady, president of the exclusion: “On the contrary, men Committee put together the Meath Bar Association, advises are more than welcome – as long ■ LONGFORD seminar in recognition of the that their long-standing county as they observe the dress code, Make yourself comfortable many developments in the ever- registrar, Maire Teehan, will be which on this occasion was just Perhaps to the envy of colleagues changing area of family law. A retiring this year after three that – dress attire!” in other parts of the country, conveyancing seminar on the decades of service – a remarkable Longford solicitors are settling topical subject of management innings. Paul hopes to arrange a ■ DONEGAL down into the new surroundings companies and related suitable function in her honour Judge not in the refurbished Longford conveyancing problems is in the shortly, and a function to mark Donegal Bar Association courthouse. According to bar pipeline for the end of the the pending retirement of Judge President Brendan Twomey is association president Bríd month. Brophy. deeply unhappy with the lack of Mimnagh, colleagues, staff, and a second judge in both the the general public give the new Mr Justice Diarmuid O’Donovan ■ WATERFORD District and Circuit Courts. surroundings the thumbs up. The DSBA was further saddened It would never happen in a With the population of the Brid also advises that the to note the passing of a great golf club county standing at 140,000 and a association is hoping to hold a friend to it over the years – Mr Strange times indeed, it seems, considerable spillover of work number of seminars before Justice Diarmuid O’Donovan. for legal practice in Waterford, from adjoining counties, Easter. Diarmuid was a frequent guest of which has seen a schism of sorts Brendan is concerned that the the association at many of its on gender grounds. Morette Courts Service has not taken ■ DUBLIN social activities, in particular the Kinsella has replaced Neill these factors into account in Four hundred, four seasons annual ball, where his good Breheny as bar association managing Donegal and the Four hundred or so colleagues humour and friendliness to us all president – no problems there. northern circuit. Commenting to and their partners enjoyed a was plain to see. G However, Morette has since Nationwide, he said: “The judges stunning evening in the Four galvanised a large number of of the District Court in Donegal Seasons on the occasion of the Nationwide is compiled by Kevin practitioners and brought them have publicly highlighted these DSBA Ball. Always the social O’Higgins, principal of the Dublin to London for a bit of R and R problems. The bar association highlight in the legal year, law firm Kevin O’Higgins.

www.lawsociety.ie 7 LAW SOCIETY GAZETTE JAN/FEB 2007 NEWS Solicitors appointed to Irish Financial Services Appeals Tribunal wo solicitors have been decision derives, depending on Tnominated by the whether it is a banking, government, along with five insurance or investment matter. other members, for Administrative sanctions appointment to the Irish decisions may be affirmed, Financial Services Appeals varied, substituted or remitted. Tribunal. All nominations have In addition, some decisions by been welcomed by the Minister the Financial Regulator relating for Finance, Brian Cowen, TD. to the Administrative Sanctions The nominations are: Procedure may be set aside by Chairperson – former the tribunal. An appellant Supreme Court Judge Francis dissatisfied with the final D Murphy. Deputy outcome may appeal a decision Chairperson – Inge Clissmann of the tribunal to the High SC. Ms Clissmann is the Court. current chairperson of the “The establishment of the University of Dublin, Trinity Geraldine Clarke John Fish Financial Services Appeals College’s Disciplinary Panel, Tribunal is an important the Civil Service Disciplinary commercial and banking law), Procedure for the Financial further step in ensuring the Appeals Board and a former John Loughrey, Liam Madden Regulator in 2004. integrity of the regulatory member of the Garda and Paulyn Marrinan-Quinn The 2003 act provides that regime for financial service Complaints Appeals Board. SC. appeals against certain providers in this country,” said Lay Members – Geraldine The tribunal will be decisions made by the Minister Cowen. “I wish the Clarke (past-president of the established under the Central Financial Regulator will be new members the very best in Law Society and a solicitor Bank and Financial Services heard and determined by the the important role they are specialising in commercial law), Authority of Ireland Act 2003. Irish Financial Services Appeals about to assume.” John Fish (a former member of The establishment of the Tribunal. Whether the decision The tribunal will be based at: the Council of the Law Society tribunal follows the is appealable to the tribunal is First Floor, Frederick House, and a solicitor with a wealth of introduction of the defined in the relevant piece of 19 South Frederick Street, experience in the fields of Administrative Sanctions legislation from which the Dublin 2. Small Claims Court goes online nationwide he procedure for the Small their local small claims Service will then start TClaims Court has gone office, implementing the system in all online in a total of 16 pilot • Pay the appropriate court fee 45 Small Claims offices District Court (Small Claims) online, nationwide. This will be offices nationwide. • By logging on to the system completed by the end of April The pilot offices are Dublin, through the use of a PIN 2007. At that stage, the public Swords, Dun Laoghaire/Bray, number, monitor the throughout the country will Carlow, Cavan, Clonakilty, progress of an application as have online access to the Cork, Killarney, Limerick, it progresses through the system. Listowel, Mallow, Swords, small claims process. In 2007, additional online Tralee, Trim, Wexford and having to attend a court office, applications will see: Castlebar. Applications can be which may be many miles away The system has been available • The High Court Case lodged online in either Irish or and, in the past, involved a online since November, since Management System go English. Claimants can apply return visit with a completed when 21% of all small claims online and allow access to at: www.smallclaims.ie. form. applications received in the information on High Court From your desktop in areas The online system enables Dublin District Court have cases by lawyers and the as far apart as Donegal, Dublin complainants to: been lodged online. public via www.courts.ie, and or Dingle, claimants can have • Lodge their small claims The system will remain in • The introduction of a system instant access to this small fee, application online without pilot phase until the end of allowing for the payment of hassle-free system – without the need to attend or contact January 2007 and the Courts court fines online.

8 www.lawsociety.ie NEWS LAW SOCIETY GAZETTE JAN/FEB 2007

■ PRE-NUPTIAL STUDY GROUP Conveyancing Handbook ANNOUNCED The membership of the Pre- nuptial Study Group has been goes digital with 3rd edition announced by the Minister for Justice, Equality and Law Reform. he Law Society and its statements of practice. The The group has been established TConveyancing Committee committee also recommends to study the operation of the law have just published the 3rd that practitioners use the very in relation to pre-nuptial edition of the Society’s helpful precedent agreements. Conveyancing Handbook on CD- documentation and other Ms Inge Clissmann, an expert ROM. practice aids, such as practice in family law, will chair the group. This is an updated notes and submissions, in the The other members are: compilation of members’ area of the Law • Ross Aylward LLB recommendations, practice Society’s own website. • Marie Baker SC notes and articles on It is expected that the 3rd • Margaret Bannon advisory conveyancing practice and edition of the Conveyancing counsel, Office of the Attorney procedure issued by the notes have been brought up to Handbook will continue to assist General Conveyancing Committee from date by way of updates printed practitioners in following good • Stephanie Coggans, managing the late 1970s up to July 2006. in bold type at the foot of the conveyancing practice in solicitor, Law Centre, Legal Aid This is the first edition of the practice notes or by way of the particular areas. The Society Board, Monaghan handbook to be published on footnotes in italics in the page would like to thank all current •Louise Crowley, solicitor and CD. The move to the newer margins. and former members of the lecturer, Faculty of Law, UCC medium recognises the Conveyancing Committee for • John Kenny, Department of profession’s increasing use of Website aides their invaluable contributions Justice, Equality and Law information technology in The appendices contain some over the years and for practice Reform. everyday conveyancing practice. of the more frequently- notes produced by them that A free copy of the CD requested precedent have been used in the three The Tánaiste has asked the group handbook was distributed by the documentation, along with editions of the handbook to to report to him and to make Law Society to all practising some Revenue statements of date. recommendations for change in solicitors in January and will, no practice on stamp duty and The Society would also like the law, as it considers necessary, doubt, have received a test run capital taxes. The committee to thank current and former by 31 March 2007. It is the on members’ computers by now. strongly recommends that secretaries to the Conveyancing Tánaiste’s intention to publish the The CD was designed in a practitioners use the websites of Committee who coordinated report and any recommendations straightforward format that bodies such as the Revenue and the publication projects, made. should be familiar to users of the Property Registration together with Law Society staff the previous hard-copy editions Authority (Land Registry) to members who designed and ■ PROFITABLE PRACTICE? of the handbook. This will keep up to date with their typeset this and previous Following on from the success ensure that the conveyancing practice directions and editions of the handbook. of her Mayo seminar ‘Six Steps practice notes continue to be to a Profitable Practice’ last easily accessible to practitioners. October, Helen Burns of Action There is a ‘help’ file on the CD International is planning to hold and some useful instructions on seven group-coaching sessions the CD case that will assist with exclusively for Mayo solicitors in installation and any technical 2007. queries. Her group-coaching sessions In preparing the 3rd edition, will show practitioners how to: some practice notes that are no • Get more done in less time, longer relevant to current • Get more clients more easily, conveyancing practice have been • Learn the six keys to a winning omitted. However, in some time, and other cases it has been decided • Know your figures and what to to retain older practice notes in Law School welcomes New Jersey AG do with them. The Law School welcomed a distinguished guest speaker in order to reflect the historical Peter C Harvey, attorney, on 12 January. Mr Harvey has just position regarding particular completed a four-year term as Attorney General for New Jersey in For further details and bookings, practices and procedures, as it the United States. He is the first African-American to serve in this email Helen at: helenburns@ was felt that this would be of role. Mr Harvey spoke on the ‘Role of the US Attorney General’ action-international.com, phone and proved to be an arresting and charismatic speaker. Mr Harvey assistance, even where current has recently joined the distinguished New York law firm Patterson 087 286 3977, or visit her practice and procedure may be Belknap as a litigation partner website: www.action different. Some other practice coaching.com/helenburns.

www.lawsociety.ie 9 LAW SOCIETY GAZETTE JAN/FEB 2007 NEWS Tribunal judge delivers HLJ lecture

his year’s Hibernian Law concerns only the leaders that T Journal Annual Lecture took were responsible for the place in the Law School on 19 genocide. Those tried have December. The guest speaker included military and political was the President of the leaders, senior media figures International Criminal Tribunal and some high-ranking clergy. for Rwanda, Judge Erik Møse. Since the tribunal hearings The lecture was chaired by began in January 1997, 32 President of the Irish Human judgments have been handed Rights Commission Dr Maurice down. Among the tribunal’s 27 Manning. convictions was the first ever Judge Møse, a native of Oslo, conviction of a prime minister has sat on the tribunal since May At the Hibernian Law Journal Annual Lecture in the Law School on for genocide. Jean Kambanda, 19 December were (back, l to r): Emer O’Connor, TP Kennedy (the 1999. He presented his audience the Rwandan prime minister Law Society’s director of education), Paul Ryan, Judge Erik Møse (guest with some sobering facts, in speaker), Rosemary Wall, John Hugh Colleran, Sinéad Hayes, Maeve who presided over the genocide, particular his estimate that more Regan, (front, l to r): Éadaoin Rock, Julia Emikh and Jennifer Tuite (editor) pleaded guilty before the than 100,000 people may have tribunal and was given a life been involved in carrying out the authoritarian states where one However, Judge Møse’s sentence. Judge Møse Rwandan genocide. group of people was consistently description of the ongoing work emphasised that life sentences He stated his belief that the subjected to propaganda of the tribunal and the handed out by the tribunal do conditions for genocide could asserting that another group was dedication of its staff was literally mean imprisonment arise anywhere, particularly in sub-human. heartening. The tribunal’s remit until death. ONE TO WATCH: NEW LEGISLATION Employment Permits Act 2006 European Economic Area (of which The permit will be initially granted a worker, subject to the existence of This act was signed on 23 June the Irish workforce is two million), for two years, renewable for a job offer. Contractors and related 2006, and was brought into effect and, lastly, sourcing key skills from three years, giving rise to the persons bringing in workers may on 1 January 2007 by SI 682 of outside the EEA. This act applies to possibility of indefinite renewal also apply, but not employment 2006. SI 683 of 2006 prescribes the last category. thereafter. ‘Green card’ holders agencies. Employment permits are fees and certain procedures. will be entitled to bring spouses granted to the employee concerned, Introducing the bill, the Minister Statutory basis and families with them, and not the employer, but the employer for Enterprise, Trade and The act puts existing administrative spouses will be entitled to work gets a copy if he or she has made Employment, Micheál Martin, identi- practice on a statutory basis, and without a work permit. However, the application. Sections 6 and 7 fied two key objectives: does not introduce major changes. the ‘green card’ as described is set out the information to be sup- •To provide a statutory framework It amends and adds to the not equivalent to the US green plied with the application for a per- for the implementation of an Employment Permits Act 2003. The card, which allows free mobility mit, including any previous visit to active, managed economic system continues to be vacancy driv- of employment and does not the state or request for permission migration policy, involving ‘green en and involves either an employer have to be renewed. to land. cards’, an intra-company transfer or the foreign worker applying for the • Re-establishment of an intra- A permit applied for by a worker scheme and a revised work per- permit in relation to a specified job. company transfer scheme for will generally operate to permit the mit system; The act enables the minister to temporary (up to five years) worker to work in a specified eco- •To establish a number of protec- make regulations, and he trans-national management nomic sector, for up to two years. tions for migrant workers; announced the following scheme, to transfers. Information stated on the permit •At the time of writing, the minis- be introduced this year (not included • Salary up to €30,000 (very must include a description of the ter was due to announce details in the provisions of the act): restricted list of occupations) – job, the terms of remuneration and of the new scheme on 24 • Salary range €30,000 – permit not a ‘green card’, initially any deductions, the requirement to January, to come into effect on €60,000 (restricted list of occu- granted for two years, renewable pay the minimum wage (but not reg- 1 February 2007. pations) and over €60,000 for three years, giving rise to the istered employment or statutory (more extensive list of occupa- possibility of indefinite renewal agreements, if applicable), and the In managing the supply of labour for tions) – permit a ‘green card’. thereafter. Nothing was said right to apply for a new permit. the economy, the minister identified Sectors likely to be included are about family reunification. A summary of the main employ- three courses: the upskilling of Irish IT and communications, health- ment rights of an employee are workers through the ‘One Step Up’ care, construction, financial serv- Employment permit also to be included with the permit initiative, maximising the use of the ices, engineering, pharmaceuti- Application for an employment per- (s9). The cost of a permit, set out 200 million workforce in the cals, and sales and marketing. mit may be made by an employer or in SI 683 of 2006, remains at

10 www.lawsociety.ie NEWS LAW SOCIETY GAZETTE JAN/FEB 2007

■ NATIONAL MINIMUM WAGE Apartment law change The national minimum hourly rate has increased from €7.65 he National Consumer many ways” for dealing with per hour to €8.30 per hour from TAgency – the country’s problems arising with apartment 1 January 2007, as announced consumer watchdog – says that accommodation. The by the Minister of State Tony there is more protection for government was determined to Killeen on 20 December 2006, someone buying a €30 kettle address the problem and by the National Minimum Wage than a €300,000 apartment. difficulties that had arisen in Act 2000 (National Minimum National Consumer Agency recent years, he said. The Hourly Rate of Pay) Order 2006 chairwoman, Ann Fitzgerald, has government is preparing draft (SI No 667 of 2006), made recommended that estate agents legislation to establish a Property under the National Minimum should provide potential Services Regulatory Authority to Wage Act 2000. The minister apartment buyers with details of oversee the operation of property also announced that this figure existing and projected service management companies and would be further increased to charges and sinking funds. their agents. €8.65 with effect from 1 July The government says it is to The new legislation is 2007. establish an interdepartmental expected to take account of the committee to develop legislation Tánaiste Michael McDowell fact that apartment owners, as ■ EYBA TO MEET IN NI to govern the operation of members of a property The next European committee property management firms for Commission at Blackhall Place management company, may have meeting of the European Young apartment complexes and other on 25 January, the Tánaiste and little experience of running a Bar Association (EYBA) will be multi-unit developments. Minister for Justice Michael company, as well as having little held in Belfast on 16-17 March Addressing a conference McDowell said that the current awareness about their rights and 2007. Information from organised by the Law Reform legal framework was “ill-suited in responsibilities. www.eyba.org.

€500 per year, that is, €1,000 for are set out. The minister may also been in force for over five years, it any proceedings under this legis- the first two years and €1,500 for make regulations to govern the may be renewed for an indefinite lation. The employer must keep the following three years. It granting and renewal of permits, period. specified records for at least five appears to be payable by ‘the including limiting the number to To give greater protection to years (s27). The time limit for applicant’, whether employer or be granted, the categories of migrant workers, s23 explicitly pro- summary prosecution of an worker (s12, refusal to grant per- employment, qualifications and hibits certain behaviour by employ- offence is extended to 24 mit). skills and the duration of permits. ers: months, but the only penalties are The act also provides that an The minister must take note of • Any charge for the application fines or imprisonment – not a pro- employer must show that no EEA certain considerations in monitor- for or renewal of the permit hibition against the employment national was available for the job ing the working of the system, (where the employer has made of other non-nationals by an and that over 50% of the existing including economic and social the application), exploitative employer. If an employees are EEA nationals. If an development and competitiveness • Any charge for recruitment offence is committed by a body application is refused, the refusal in the state. expenses, corporate, s33 imposes personal may be appealed within 21 days, • Any charge for an amount responsibility on officers of the and the person deciding the appeal Protections for migrant workers already paid to the worker company and management. must be a different and senior offi- The functions of the Minister for towards his or her travelling cer (s13). An application may be Enterprise, Trade and Employment expenses incurred in taking up CPD seminar refused for a number of reasons, (processing of applications, grant, employment in the state, Readers may be interested to including if the foreign worker com- refusal, revocation and renewal) • Retention of any of the worker’s know that a CPD seminar will be menced employment in the state in may be delegated to the officers of personal documents, including held on ‘Employment Rights of the previous 12 months and another minister, which leaves passport. Immigrants and Other Issues’ on 3 already has an employment permit. open the possibility that these March 2007 from 2-6pm in the This seems to imply that workers functions may, in time, be sub- Breach of these prohibitions is an Education Centre, Blackhall Place, will be expected to stay in their sumed into INIS (Irish offence. If the employment ends, and will be addressed by Ciaran original jobs for at least one year, Naturalisation and Immigration the permit must be surrendered O’Mara, Barry Walsh, Noeline and may be problematic in cases Service) (s36). to the minister within four weeks, Blackwell, Elaine Mettler and of exploitation. Different types of abuse of an and failure to do so is an offence. Geraldine Hynes. G The act provides for ministerial employment permit are offences Whistleblower protection is intro- discretion on the number of per- (ss18 and 19). The minister may duced by s26 against penalisation Alma Clissmann is the Law mits to be issued and the criteria renew a permit for a period up to for making a complaint to the Society’s parliamentary and law for the exercise of this discretion three years, or if the permit has authorities or giving evidence in reform executive.

www.lawsociety.ie 11 LAW SOCIETY GAZETTE JAN/FEB 2007 NEWS

SUPPORT SERVICES FOR MEMBERS NEW LOCUM RECRUITMENT REGISTER LAUNCHED Support services executive Louise Campbell explains the Society’s new facility for solicitors seeking, or seeking employment as, a locum

he Society is delighted to How do I join the register? I re-activate my account? T announce the launch, from A solicitor wishing to join the You must start from the February 2007, of its new on- register can apply online. Once beginning and join the register line ‘locum recruitment the application is completed, again, as per the instructions register’. This register is co- the CV will be displayed on the given above. ordinated by Trina Murphy, register immediately. recruitment administrator, 1) Open the Law Society I am a solicitor who wants to who can be contacted at the website, www.lawsociety.ie. employ a locum. How do I Society’s Cork office, 2) Click on ‘employment view the locum CVs? Courthouse Chambers, 27-29 opportunities’ and, in the 1) Log in to the members’ area Washington Street, email: drop-down, click on ‘locum of the Law Society website [email protected], or recruitment’. www.lawsociety.ie. direct dial phone number: 021 3) You will enter the section to 2) Click on ‘locum solicitors’, 422 6203. join the locum recruitment How can I remove my CV and click ‘here’ for details of Until now, Trina accepted register. Click on the word from the register? CVs currently on the curricula vitae (CVs) from ‘here’ to join the register. On receiving the seven-day register. solicitors seeking employment 4) In the next screen, click on warning email above, do not 3) You will be asked to agree to as a locum, which she provided the button ‘not registered’. log in to your account, which the terms and conditions of on request to members seeking 5) You will be asked to agree to will be closed on the seventh the locum recruitment to employ a locum. However, the terms and conditions of day. register. Agree to same and in recognition of the urgency the locum recruitment click on ‘continue’. that often surrounds the need register. Agree to same and I am on the locum 4) You can either choose to to employ a locum, the Society click on ‘continue’. recruitment register. How do view ‘all’ CVs on the register has developed a new user- 6) You will be prompted to I update/replace my CV or or ‘select’ specific friendly, computerised, self- enter your contact details, change my preference of geographical locations. Click service register, based largely email address and a password. geographical location? ‘search’ to view the CVs. on the trainee recruitment 7) To complete the registration 1) Open the Law Society 5) After reviewing the CVs, register, already available on process an email will be sent website, www.lawsociety.ie. you can make direct contact the Society’s website. to your email address. Go 2) Click on ‘employment with the locum of your From February 2007, the to your inbox and click on opportunities’ and, in the choice. new locum recruitment the link provided in the drop-down, click on ‘locum register will be available on email. You will ‘log in’ using recruitment.’ Extended employment the Society’s website. It will your email address and 3) You will be prompted to register allow a solicitor seeking password. enter your email address and Trina also co-ordinates the employment as a locum to 8) You will be prompted to password, and then click employment register, which has load their CV on the website, enter your preferred ‘log in’. recently been extended to allow to be viewed by members geographical location and 4) You will then be in your members advertise for all roles seeking to employ a locum, upload your CV, then click account, re-select your within a legal office, not just who can then make direct the ‘submit’ button. preference of geographical qualified solicitors. This was contact. Once the solicitor has areas and/or click the the subject of an e-zine article secured a locum position, they I am currently on the locum ‘upload’ button to re-attach in January, entitled ‘Situations can remove their CV from the recruitment register, how do I your new CV. Vacant’. Trina is available to website. stay on it? 5) Finally, click on the deal with any queries in Full information and user Post registration, your CV will ‘submit/update’ button. relation to the employment instructions for the new locum remain on the register for 21 register. G recruitment register are days, after which failure to log I was on the locum available on the website. Trina into your account will cause an recruitment register and I Louise Campbell, support services is available to deal with any automatic email to be sent to accidentally did not renew executive, Law Society of Ireland, queries, but here are answers you, warning that your CV will my account. When I log in, it Blackhall Place, Dublin 7, to some of the more obvious be deleted if you fail to log in tells me it is an invalid email tel: 01 881 5712, email: questions: within the following seven days. address or password. How do [email protected].

12 www.lawsociety.ie NEWS LAW SOCIETY GAZETTE JAN/FEB 2007 human rights watch Consitutional and ECHR rights of Irish-born children Alma Clissmann reports on developments in relation to the practical application of the European Convention on Human Rights n a case on the grant of had no entitlement, and, prior to deciding an application under the children enjoyed family lives Iresidence to parents of Irish- any deportation or change to scheme. with their parents, she could not born children born before 1 family circumstances, the rights She then went on to consider find that the decision to refuse January 2005 (Bode and Others v of the family would be how the minister could make a residency under the scheme The Minister for Justice, Equality considered under s3 of the decision consistent with a child’s constituted an interference with and Law Reform, the Human Immigration Act 1999 rights, and referred to Murray J’s the right to respect for family Rights Commission and the AG as (deportation). judgment in AO and DL v The life. Notice Parties, 14 November It was accepted that the Minister for Justice ([2003] 1 IR 1 However, she found that the 2006, High Court), Ms Justice minister was an organ of state at p91), where he said that a children had a private life in the Finlay Geoghegan held that the performing a function within the decision must not be sense of personal and social minister, in taking a decision to meaning of s3(1) of the ECHR disproportionate to the ends relationships that result from refuse a parent’s application Act 2003, and was obliged to do sought to be achieved. She living in the state, referring to under the IBC/05 scheme, acted so in a manner compatible with summarised the position: Sisojeva v Latvia (ECtHR, 16 in breach of the rights of the the European convention. It was • The citizen child of non- June 2005). She recognised that citizen child under article 40.3 of also accepted that he was bound citizen parents prima facie has the effective exercise of the the Constitution and acted to act in accordance with the the right to remain in the children’s right to a private life is incompatibly with the state’s principles of constitutional state; dependent on their parents’ obligations under article 8 of the justice and fair procedures. •While in the state, the child presence and ability to work to ECHR. has rights, including that provide for them and provide a The Constitution relevant decisions must stable environment. The IBC/05 scheme Judge Finlay Geoghegan held consider his or her best She held that the minister The IBC/05 scheme was that the child was central to the interests; must, at a minimum, determine developed by the minister to deal IBC/05 scheme. It was not • These are qualified rights, as whether the child’s right under with the status of parents of Irish suggested that any interest of the the minister, having had due article 8 requires the parent to be citizen children (IBCs) born common good required the regard to these rights and given permission to remain and, before 1 January 2005 in Ireland, minister to take a decision to taking account of all relevant in making that decision, must who obtained Irish nationality refuse an application under the factual circumstances, may seek to strike a fair balance because of the law in place at the scheme without considering the decide for good and sufficient between the rights of the child time. Non-national parents of rights of the citizen child, or that reason, in the interests of the and the community. such children were invited to any interest in the common good common good, that the parent This decision does not finally apply under the scheme, and required a decision to refuse an be refused permission to decide the position of the 566 16,693 were given leave to application by reason of a failure remain in the state, even if this parents of IBCs refused remain; 1,119 cases were refused, to establish continuous residency. is a decision that is not in the permission to remain because of 566 because of insufficient evid- She held that, as the child’s rights best interests of the child; questions over continuous ence of continuous residence, were continuous, when the • In making this decision, he residence. The decision is under including the applicants in these minister established the scheme must ensure that it is not appeal to the Supreme Court, eight judicial review cases. and considered applications disproportionate to the ends and if that court upholds this It was accepted that no under it, he was bound to act in a to be achieved. decision, permission to remain consideration was given by or on manner consistent with the state may still be refused if the behalf of the minister to the guarantee to defend and Obligations under the ECHR minister decides for good and position or rights of the IBCs. vindicate, as far as practicable, Tu rning to the minister’s sufficient reason that this is The minister argued that he was the personal rights of the citizen obligations under the ECHR Act required in the common good, not obliged to consider the rights child. Prima facie, a positive 2003 to have regard to the child’s and that his decision is of the children because a refusal decision on residence for the rights to private and family life, proportionate when weighed would not alter the status in the parent would defend and Finlay Geoghegan J rejected the against the interests of the child state of the refused parent, vindicate the child’s personal argument that these rights were in question. G refusal did not involve rights. The ability to consider not engaged because the scheme deportation or breaking up of a the child’s rights at a later date was not decisive in the Alma Clissmann is the Law family unit, the scheme granted a did not relieve him of his deportation of a family member. Society’s parliamentary and law privilege to which the parents obligation to do so when Although she found that the reform executive.

www.lawsociety.ie 13 LAW SOCIETY GAZETTE JAN/FEB 2007 VIEWPOINT

Teenage boot camps: Boot camps for young offenders have failed in other jurisdictions, most notably in the US. Calls for their introduction in Ireland should be resisted, argues former New York public defender, John Moher

hildren’s rights have boot camp is offered to young Cfeatured prominently in offenders as an alternative to a political debate and public prison term or, in some cases, discourse in Ireland of late. probation. Usually, offenders The idea of a referendum on who fail or refuse to complete children’s rights has been seen their sentence in boot camp as an overdue but welcome must then serve the prison development. The debate on sentence in full. Provision also the age of consent continues. exists, however, for directly Notably in this debate, and sentencing offenders to a perhaps for the first time, the period in boot camp. views of young people were sought by lawmakers on an Beneath the surface issue affecting them. The superficial appeal of boot Drop and give me 30: the number of known deaths of youths in Against this backdrop, the US boot camps since the ’80s camps in the US (and call for boot camps for young elsewhere) was obvious. Boot offenders seems out of step boot camps, failure and scandal and marching. On-the-spot camps represented a tough, no- with progressive thinking on have recently seen the number push-ups and other nonsense response to anti- questions of juvenile justice. of camps fall. In the US, as punishments are meted out for social and criminal behaviour, Moreover, a cursory look at elsewhere, boot camps are minor infractions of strict rules. while ostensibly reducing experiences in other modelled on military training Reportedly, in one camp, prison overcrowding, costs and jurisdictions reveals the idea to camps. This form of heavier punishments included recidivism. Studies in the US be ill-conceived at best. punishment is also referred to dragging around a large log for have consistently shown, Boot camps have been part as ‘shock incarceration’, in days. (Apparently, the log was however, that boot camps do of the penal system in the US which inmates are required to euphemistically christened not reduce rates of re-offending for over 20 years. While two- engage in physically demanding ‘learning experience’.) among former inmates. In fact, thirds of US states now operate military-style exercises, drills In most US states, a place in early comparative studies

14 www.lawsociety.ie VIEWPOINT LAW SOCIETY GAZETTE JAN/FEB 2007 viewpoint a proven failure

showed that recidivism was Her temperature was at least to the most populist of ‘law and of a juvenile liaison officer, higher among former boot- 108 degrees. She was order’ politicians. Sending convening conferences to be camp inmates than former pronounced dead an hour after children, however troublesome, attended by the child, family prisoners. Given that the US she was admitted. with emotional, psychological members and others, mediating has more prisoners as a Florida governor, Jeb Bush, or, in many cases, substance- between the child and the proportion of its population an erstwhile supporter of boot abuse problems to an army victim and then devising than any other country – and camps, signed legislation on 1 barracks to be ‘straightened out’ appropriate action plans seems counting – boot camps can June last banning boot camps in is not the answer. Military likely to produce better results hardly be said to have reduced his adopted state after a 14- training is intended to prepare than square bashing. And, from prison numbers or costs. year-old boy died at the hands willing, healthy adults for a a practitioner’s point of view, The New York Times has of drill instructors at a boot career in the military and, if probation, counselling or reported that there have been camp in Panama city, Florida. necessary, to go to war. It is treatment are better options 30 known deaths of youths in The instructors reportedly beat patently unsuited to the needs than boot camps, as lawyers can boot camps in the US since the child and then inserted of unwilling, troubled maintain contact with their their introduction in the early ammonia tablets into his nose teenagers. A stint in the clients – in military-style boot ’80s. South Dakota’s juvenile in an attempt to revive him, Curragh is not going to undo camps, the clients are shut off boot camp gained particular thereby suffocating him. years of family problems, from the outside world. Of notoriety. In July 1999, Gina In contrast, studies show that addiction, abuse or whatever course, not every young Score, a 14-year-old girl, camps in the US that are staffed the causes of the offending offender qualifies for a collapsed during a forced run. by counsellors and teachers and behaviour may be. diversion programme but, for According to the official that place little or no emphasis those who meet the investigation, she then frothed on militaristic routine have No quick fix requirements, it at least offers a at the mouth, lost control of achieved results. These camps While of course there is no chance to make amends and her bladder and became are more akin to retreats than quick-fix solution, certain turn away from a nascent life of unresponsive. According to the boot camps and do not seem to provisions of the Children Act crime. G report, boot-camp staff would be the type of environment that 2001 represent a more not allow other inmates to help boot-camp proponents here constructive approach to John Moher is a barrister and her and she lay where she fell have in mind. tackling juvenile offending. practised as a public defence for three-and-a-quarter hours The lessons from the United Placing an eligible young attorney in New York for three before being taken to hospital. States should be obvious, even offender under the supervision years.

www.lawsociety.ie 15 LAW SOCIETY GAZETTE JAN/FEB 2007 LETTERS letters

Send your letters to: Law Society Gazette, Blackhall Place, Dublin 7, or email: [email protected] Family law facilities ‘a complete disgrace’ From: Alan Shatter, Gallagher there is concern that people will Shatter, 4 Upper Ely Place, again be trapped in the future. Dublin 2 With regard to court matters, he fourth floor of most Fridays are reserved for TO’Dhalaigh House, what is known as the ‘Family adjacent to the Four Courts, High Court Callover’ and was, to my best recollection, ‘Directions List’. Between 40 to opened approximately 15 years 60 lawyers and litigants can be ago for the hearing of High squashed into Court 19 or into Court family law cases. When it the even smaller Court 21. Both first opened, there were five are now totally inadequate for private consultation rooms and such court sittings. To add to one large waiting room in the chaos, in the early years of which those involved in family High Court family law matters hearings and their lawyers being dealt with in O’Dhalaigh could meet. There was also, Áras Uí Dhálaigh: totally inadequate facilities House, there were regularly two unsurprisingly, separate toilets High Court judges available to for men and women. hearing, proved impossible to notice on it: ‘Court Services – hear family cases. We now have Since this building first settle reasonably between staff only’. It has a number of at least double the number of opened, the number of family parties. Today, most family tables, chairs and couches and is High Court judges and it is a cases being dealt with in the litigants and witnesses have to vacant most of the time, rarity for there to be available courts has multiplied sit along a narrow corridor apparently only utilised by court any more than one judge for the considerably. They include not waiting for cases to be heard or staff in the building for their hearing of High Court family only divorce and judicial to be called to give evidence. lunchtime sandwiches. In the cases. Similar problems apply in separation cases, but also highly Over the years, the facilities last few weeks, the toilets on the many of the locations used for emotive and contentious available to those involved in floor have been closed to the the hearing of Circuit Court adoption proceedings. Due to family conflict in the High general public and cannot be and District Court family law the nature of these proceedings, Court have considerably used by those involved in family matters. individual family members deteriorated. There are now law cases and their witnesses or In short, the facilities are require the privacy of only three consultation rooms. lawyers representing them. The totally inadequate and a consultation rooms in which to For some time, in one of these, toilets are now apparently complete disgrace. It is time the engage with their lawyers, and the heating has not worked and reserved for the judiciary only Law Society did something such privacy of discussion can the window is broken. The and the court staff. The lifts about it. The Court Services occasionally facilitate the larger room that was available to that service the building rattle Executive should also explain resolution of cases that, until provide additional facilities has and shake. People have been why family litigants are so the day scheduled for a court for the last three years had a trapped in them in the past and disgracefully treated. Who will be the stakeholder? From: Gerard McGrath, identity of the estate agent, we advice note confirmed that Eventually they did. McGrath McGrane, The Capel advise that it is safe to go ahead Gunne’s client would hold the It seems that before we can Buildings, Mary’s Abbey, Dublin 7 and that the deposit is deposit as stakeholder. advise as to whether it is in s practitioners, we are refundable. Our client changed his mind order to pay a booking deposit, Aoften asked to advise house We have a case where Gunne about the property and we now must advise the client purchasers as to whether they estate agents in Lucan released requested return of the deposit. to obtain confirmation as to are wise to pay a booking the booking deposit to their Gunne informed him that he who will be the stakeholder in deposit to secure a property. (builder) client before the would have to wait for their order that they can make an Usually after enquiring after the advice note went out. The client to put them in funds. informed decision on the risk.

16 www.lawsociety.ie LETTERS LAW SOCIETY GAZETTE JAN/FEB 2007

‘Outstanding’ result in search for Murdoch successor ‘Division From: Henry Murdoch BL, the applicants was excellent. In College, Dublin for his doctoral of labour’ Glenageary, Co Dublin the final analysis, it was a very thesis on legislation. He has hank you for publishing my difficult decision to select the published widely, including From: Fergus O’Regan, Tletter (Gazette, October successful applicant, but I do articles on legislation and O’Regan Little, 2006), in which I sought a believe that the process, which contributions to legal books. Solicitors, 27 Lower lawyer to undertake the task of commenced in the Gazette, has He recently completed his own Bridge Street, Dublin 8 updating my book Murdoch’s identified an outstanding book on the Irish Statute Book. am writing simply to Dictionary of Irish Law. I was person to take my dictionary While I have written Icompliment the delighted with the response. A forward into the future. individually to all the Gazette and the author total of 23 lawyers, both He is Dr Brian Hunt BL, applicants, I would like to take [Richard Grogan] on the solicitors and barristers, applied who is a consultant to Mason this opportunity to thank them excellent and very for the information pack on the Hayes & Curran, working in collectively for their interest. informative article work involved, and most the public and administrative Many have written back to me referred to above, as subsequently expressed their law unit and heading up the generously wishing the run in your Gazette of continuing interest. firm’s public affairs practice. He successful ‘updater’ every November 2006. The calibre and interest of was awarded a PhD by Trinity success. Recoverable party-and-party costs – addendum n the December 2006 issue, Assessment Board (PIAB). case: “The defendant argued relation to the PIAB aspect. ISeamus Sadlier of McCann Gremlins in the system – that’s that the plaintiff was not I can confirm that the and Associates submitted a what we call her – led to obliged to have legal defendant did not appeal this letter about a recent ruling the last two paragraphs, representation and these costs ruling and that this is the first made in the Dublin Circuit dealing with the county were contrary to the spirit of decision where PIAB costs Court by Ms Susan Ryan, the registrar’s decision, being the PIAB Act. were recovered on taxation. county registrar, concerning omitted. The county registrar held I have no doubt this ruling party-and-party costs of dealing Seamus offers the follow- with my submissions and will be of interest to your with the Personal Injuries ing on the outcome of the allowed the solicitor’s costs in readers.”

www.lawsociety.ie 17 LAW SOCIETY GAZETTE JAN/FEB 2007 COVER STORY greatTHE

Proposed legislation to restrict the right of foreign nationals to validly marry in Ireland and to make it an offence to marry a foreign national in certain circumstances is draconian and possibly unconstitutional and incompatible with the ECHR. Emmet Whelan plans the reception

ith the increase in immigration direct relatives” of either spouse may also gain and globalisation, relationships residence. These rights are detailed in the European between Irish citizens and foreign Communities (Free Movement of Persons) Regulations nationals are on the increase. 2006. There is a limited basis for residency to be W When you fall in love, legal issues refused on the grounds of public policy, public may be the last thing on your mind. However, security or public health, and family members will marriages involving foreign nationals may cause retain rights of residence even after the death of the significant immigration difficulties, and couples EU citizen or after a divorce or annulment. should be worrying about more than just the wedding But the strong statutory rights afforded to EU reception. They must be aware that, while spouses of citizens are in stark contrast to the protections EU citizens have a right to reside in Ireland, marriage afforded to Irish citizens. Article 41 of the to an Irish citizen does not guarantee any similar Constitution acknowledges that ‘the family’ is right. In fact, proposed legislation will significantly deserving of special protection, but there is no restrict the right of a foreign national to validly marry statutory protection afforded to non-EU family in Ireland and make it an offence to marry a foreign members of Irish citizens. An Irish citizen may apply national in certain circumstances. to the Minister for Justice for their non-EU spouse to For immigration purposes, foreign nationals fall live in Ireland, but this is not an automatic right. into two categories: EU citizens and non-EU citizens. Often, the issue of marriage will be canvassed when a In this context, an EU citizen is a national of the non-EU citizen is applying for a visa to enter Ireland. European Union, an EEA member state (Iceland, The minister may refuse the right to reside, or the Liechtenstein, Norway) or Switzerland. A non-EU right to entry, simply on the basis of undefined citizen refers to all other persons. Marriage to an EU immigration policy. This is a matter entirely at the citizen will normally cause very few immigration discretion of the minister and no criteria are set out difficulties. EU citizens have strong rights to remain for making such decisions. MAIN POINTS in Ireland pursuant to the EU treaties and To assess the matters that the minister must take • Marriages independent of any marriage. into account, we must look to the interpretation of involving foreign article 41 in Irish case law. Two recent cases dealt with nationals Tying the knot the family rights of non-EU parents of Irish citizen • Immigration, Interestingly, family members of EU citizens also children: Fajujono v Minister for Justice and AO & DL v Residence and have strong rights to remain in Ireland, irrespective of Minister for Justice. The parents argued that the Protection Bill their nationality. This includes the spouse of an EU constitutional right to ‘family life’ entitled them to • European citizen and even extends to unmarried partners in a remain in Ireland to care for their Irish children. The Convention on “durable relationship”, a member of the household of Supreme Court found that the deportation of parents Human Rights an EU citizen or a person requiring the personal care of Irish citizens was only acceptable where strong of an EU citizen. Direct descendants or “dependent reasons, related to the common good, required such

18 www.lawsociety.ie COVER STORY LAW SOCIETY GAZETTE JAN/FEB 2007 divide

www.lawsociety.ie 19 LAW SOCIETY GAZETTE JAN/FEB 2007 COVER STORY

removal. The minister had to take into account all their functions in a manner compatible with the LOOK IT UP the circumstances of the case, including the convention and to take “due account” of the integration of the family and any time spent in convention and its interpretation by the European Cases: Ireland. However, this would be weighed against the Court of Human Rights. Article 8 of the European • Amrollahi v immigration history of the parents and the necessity convention provides for the right to respect for family Denmark [2002] to uphold “the integrity of the asylum and life. The Minister for Justice and the courts should ECHR 585 immigration systems”. It was valid for the minister appropriately consider the European Court’s approach • AO & DL v Minister to deport, if he considered all the circumstances of to article 8, but to date they have not done so. for Justice [2003] the case. The Supreme Court subsequently According to the European Court, it is up to the 1 IR 1 confirmed this reasoning in Cirpaci & Cirpaci v Minister for Justice to justify any deportation, or • Cirpaci & Cirpaci v Minister for Justice, where the rights of a non-EU refusal of entry, which interferes with family rights. Minister for Justice spouse were in issue. He will need to satisfy the European Court in [2005] 2 ILRM 547 relation to two specific issues. Firstly, any • Fajujono v Minister Honey, I’m home interference with family rights must be in pursuance for Justice [1990] Mr Cirpaci was a Romanian asylum seeker and of one of the legitimate aims specified in article 8(2), ILRM 234 arrived in Ireland with his Romanian wife and three such as preventing crime or protecting the economic • Sen v Netherlands Romanian children. During the course of his asylum well-being of the country. In Cirpaci, the minister’s [2003] 36 EHRR 7 application, he began a relationship and co-habited aim was to uphold “the integrity of the asylum and with an Irish citizen, Ms McCormack. Mr Cirpaci’s immigration systems” and to prevent foreign Legislation: application for asylum was refused and he was nationals entering into marriages to side-step the • European deported. After his deportation, Mr Cirpaci immigration process. However, neither reason is a Communities (Free divorced his Romanian wife and married Ms legitimate aim as specified in article 8(2). Movement of McCormack in Romania. Ms McCormack returned Secondly, the minister must establish that the Persons) to Ireland to care for her children from a previous action was necessary in the interest of pursuing that Regulations 2006 relationship. Mr Cirpaci made an application for a legitimate aim – that is, the action cannot be (SI 226 of 2006), visa to join her in Ireland, which the Minister for disproportionate to the aim being pursued. The transposing Justice refused. refusal of entry to Mr Cirpaci was not necessary to Directive The court found that the minister refused the visa achieve the aim of preventing ‘sham marriages’. 2004/38/EC on the basis of two valid policy reasons. Firstly, the Other reasonable options should have been pursued, • European refusal was required to uphold “the integrity of the such as an assessment of the marital status after a Convention on asylum and immigration systems”. Secondly, the period of time following entry into Ireland. Human Rights minister required that the couple reside as a family When considering the issue of proportionality in • European unit for “an appreciable period of time” between the recent jurisprudence, a fundamental question for the Convention on date of the marriage and the application. While the European Court is whether it would be possible for Human Rights Act minister had to take all circumstances into account, the family involved to locate elsewhere: see 2003 the Cirpaci marriage was particularly short and Mr Amrollahi v Denmark and Sen v Netherlands. The Cirpaci had a chequered immigration history. He Supreme Court did not refer to the most recent Literature: had been refused asylum in two other EU countries European case law and had little regard to the fact • Scheme of and had a deportation order outstanding against him that Mrs Cirpaci and her children would have Immigration, in Ireland. significant difficulties in moving to Romania, a Residence and While the court confirmed the validity of the country whose language they did not speak and Protection Bill minister’s decision, the decision gave a clear whose culture they were unfamiliar with. Would it (September 2006) indication that a constitutional right to reside in even have been legally possible for the family to – www.justice.ie Ireland may exist in certain circumstances. The enter and remain in Romania? duration and stability of the marriage will be Practitioners should advocate the approach of the important criteria. It would seem essential that the European Court in representations to the minister, couple have lived together as husband and wife, but or in any court proceedings. This may be of there is no indication as to what would qualify as an particular importance for situations outside the usual “appreciable period of time”. The marriage should definition of ‘family life’. The protections in the be valid under Irish law, an important consideration Constitution are only available where the family life for marriages in foreign countries. The character of is based on marriage. The convention provides a the spouse, his or her immigration status and any wider meaning to ‘family life’, which may include criminal record will all be factors weighed in the unmarried partners in a stable relationship. balance. Ball and chain Trouble and strife A further difficulty arises in this area. A refusal of a The European Convention on Human Rights Act 2003 visa application may be appealed internally to an confirms the relevance of the European Convention on independent officer of the Department of Justice. Human Rights in Irish domestic law. The 2003 act However, a refusal of an application for residency imposes a duty on all organs of the state to perform may not. Also, unlike Britain, Ireland has no

20 www.lawsociety.ie COVER STORY LAW SOCIETY GAZETTE JAN/FEB 2007

independent immigration appeals body. The only mention of article 8 of the European Convention and route available to challenge the minister’s decision is sets no criteria for deciding on applications involving by way of an application for judicial review to the family rights. High Court. The expense and delay involved in such Instead of helping couples in this situation, the actions is not in the interests of the applicants or the government is actually moving in the opposite state. direction. The proposed legislation will confirm that If an applicant wishes to challenge a decision of the marriage to an Irish citizen gives no right to enter or minister, a simple procedure of appeal to an reside in Ireland and will impose further obstacles to immigration appeals tribunal should be available. Irish citizens marrying foreign nationals. Under the This tribunal could deal with arguments in relation to proposed legislation, asylum-seekers will not be article 8 of the convention and provide an easily allowed to marry in Ireland, unless issued with an accessible, and effective, remedy for applicants. Fewer exemption from the Minister for Justice. All non-EU applicants would choose to go to the High Court if a citizens (irrespective of their legal status) will have to real alternative was available, thereby reducing the inform the Minister for Justice three months in legal costs for the taxpayer in defending such matters. advance of the date of marriage. If they fail to do so, The proposed Immigration, Residence and Protection the marriage will be void. The legislation makes it an Bill does not address any of the difficulties referred to offence to marry a foreign national or to ‘facilitate’ above. While the Refugee Appeals Tribunal will be such a marriage, in breach of the above provisions. reformed to consider protection issues, there will be Such draconian legislation may be no similar tribunal to hear appeals of visa or residency unconstitutional and incompatible with the decisions. Appeals will continue to be dealt with European Convention. It certainly smacks of a internally. particularly distrustful view of immigrants, which is More importantly, the bill does not recognise any far from welcoming. G new rights for family members of Irish citizens, similar to those existing for EU citizens. There is still Emmet Whelan is co-author of A Practitioner’s Guide no right to remain in Ireland for non-EU spouses, to Asylum and Immigration Law in Ireland, due to be family or unmarried partners. The bill contains no published by Clarus Press later this year. Legal Aid Board Training in Collaborative Law/Practice

The Legal Aid Board is delighted to announce that Pauline Tesler is once again coming to Ireland to carry out further training in collaborative practice for lawyers engaged in family law. A significant number of you have already attended a two day basic training course and others have registered your interest in attending this training. Pauline will give two training courses – one aimed at those who have not previously received training and a one day refresher/practice development course for those who have done the basic training. Both courses will take place in Dublin and details are as follows:

Two day basic training course: One day refresher/practice development course: Dates: 26th and 27th March 2007 Date: 29th March 2007 Time: 9.15am to 5.15pm Time: 9.15am to 5.15pm Venue: Gresham Hotel Venue: Gresham Hotel Course fee: €250 Course fee: €125

The fees for the courses are significantly discounted from the actual cost, and will include lunch and light refreshments. The discount is part of the Legal Aid Board's commitment to the collaborative process as a means of resolving family disputes. An application form is available on the Board's website, www.legalaidboard.ie or by contacting Niamh O'Hanlon on 01 6441923 or nmohanlon@ legalaidboard.ie. Applications should be forwarded to Niamh O'Hanlon at Legal Aid Board, 47 Upper Mount Street, Dublin 2 (DX 139) with a cheque payable to “Legal Aid Board”.

For those of you wondering what collaborative law/practice is about, it is a dispute resolution model that involves, inter alia, a commitment on the part of the clients and solicitors to negotiate a settlement that is fair, round table meetings involving both the solicitors and the clients, and a commitment on the part of the solicitors that they will not go to Court on behalf of their clients (other than to rubber stamp a settlement). An information leaflet on the process is available on the Board's website.

www.lawsociety.ie 21 LAW SOCIETY GAZETTE JAN/FEB 2007 TAX LAW VATMANMAN New rules are to radically alter how VAT is accounted for on property transactions. All businesses with property interests – and their professional advisers – need to consider their implications. Frank Mitchell breaks out the calculator

he Revenue Commissioners recently taxable provided certain conditions are met. The published the Report of VAT and Property same is true of the sale of developed property. An Review, a 143-page tome on the entirely different treatment is afforded to leases of operational and legislative structure of less than ten years’ duration (short leases), which are T VAT on property transactions in Ireland. exempt from VAT with the option to waive The report recommends abolishing the existing exemption should the lessor deem it desirable. The method of applying VAT to property and replacing it VAT liability of the lease is, under current rules, with a system where the majority of property independent of the VAT status of the lessee. transactions will be exempt from VAT, but with an option to tax in certain circumstances. It also The new system proposes the introduction of a capital goods scheme The new system will make two fundamental in Ireland for the first time. changes: a large portion of transactions that are Although it refers to “recommendations”, the currently taxable will become exempt, and Revenue report is, in reality, a blueprint of new rules that will are to introduce a capital goods scheme for the first come into effect on 1 January 2008. These new rules time in Ireland. Together, these changes are will radically alter the manner in which VAT is intended to protect the exchequer from VAT accounted for on property transactions. Every avoidance and simplify the system for taxpayers and business with property interests needs to consider the their advisors. impending changes and evaluate not only whether To understand the difficulties the new rules will there is any benefit to be gained through delaying or cause for businesses, it is important to remember expediting the completion of property agreements, that VAT charged to a business can only be but also whether the agreements being signed can recovered by that business to the extent that it is cope with the imminent shift in tax burden. making taxable supplies (supplies on which VAT is chargeable). Hence, the benefit of charging VAT on The big picture the supply of a property is that the VAT on its Due to the complex nature of VAT on property, the acquisition/development will be recoverable. length of the report and the short space available Conversely, when the sale or lease of the property here, this article will assume that readers already have becomes exempt under the new rules, the lessor will a degree of familiarity with the existing VAT rules as be unable to recover VAT that it has incurred on the they relate to property and will provide no more than acquisition/development of the property. an overview of the impending changes. The purpose The new capital goods scheme will permit or MAIN POINTS is to inform the reader, using broad brushstrokes, of prohibit recovery of VAT based on the use of that • Changes to VAT the nature and magnitude of the impending change. property over a ten or 20-year period by requiring rules in property It is in no way a substitute for reading the report an analysis of each year in which the property is transactions itself, which is available online at www.revenue.ie. (All used. It is only if the entire property is used in each • Capital goods quotations in this article are taken from the report as one of these years for a fully taxable business scheme at December 2006.) purpose that the tenant/purchaser will get full • Financial impact recovery. Any exempt use, whenever it might occur on both lessors The current treatment in the VAT life of the property, will be penalised. and lessees Currently, all leases of developed property that are The function of the new capital goods scheme, for a period of ten years or more (long leases) are which is used in almost all other EU member states,

22 www.lawsociety.ie TAX LAW LAW SOCIETY GAZETTE JAN/FEB 2007 returns

is to achieve neutrality: the VAT ideal that those inputs that are used for making taxable supplies are recoverable in full and those that are used for making exempt supplies are not recoverable at all.

Sale of buildings The new legislation is to introduce several novel concepts into Irish VAT law. First among these is the idea of a ‘new building’:

“VAT will apply to the supply of all new buildings and the land on which they stand. A new building is a building that is supplied within five years of completion of the building. Where the building has been occupied following completion, VAT will apply to a subsequent supply where that supply is made by a business within two years of first occupation.” In addition to the concept of a ‘new building’, the new legislation will introduce the VATman: ‘De neh neh neh neh neh neh neh’

www.lawsociety.ie 23 LAW SOCIETY GAZETTE JAN/FEB 2007 TAX LAW

LANDLORD AND TENANT Landlord Ltd bought a property for €2 million and incurred VAT of not be entitled to opt to tax (since Tenant Ltd is in a less than 90% VAT €270,000 on the sale. It is renting the property to Tenant Ltd on a recovery position). Therefore, Landlord Ltd will not be entitled to short-term lease, say eight years. Tenant Ltd is entitled to recover 80% recover the €270,000 VAT it incurred when it purchased the property. of the VAT charged to it and Landlord Ltd waives the exemption in In order to recoup the cost of this irrecoverable VAT, Landlord Ltd will respect of this letting, thus entitling Landlord Ltd to recover the want to increase the rent it charges to Tenant Ltd. Will the terms of the €270,000 VAT it paid on the acquisition of the property. Tenant Ltd lease allow it to do so? If the terms of the lease merely allow the pays an annual rent of €100,000. landlord to charge any applicable VAT but does not allow him to At present, Landlord Ltd invoices Tenant Ltd annually for rent of increase the rent so as to offset the cost of its own irrecoverable VAT, €100,000 plus VAT of €21,000. Tenant Ltd can recover €16,800 then the landlord will suffer the entire brunt of the irrecoverable VAT. (80%) of the VAT charged to it. The real cost of the rent to Tenant Ltd On the other hand, if Landlord Ltd is allowed to increase the rent to is, therefore, €104,200 (€100,000 plus the irrecoverable VAT of €115,000, as none of this €115,000 is VAT, there is no recoverable €4,200). portion. The real cost of the rent to Tenant Ltd is now €115,000 – an Under the new rules, the letting will be exempt and Landlord Ltd will increase of €10,800 per annum.

concept of a ‘transformed building’: a building that clear from the economic impact assessment carried has, in effect, been ‘made new’. The sale of out by Goodbody Economic Consultants at the ‘transformed buildings’ will liable to VAT on the Revenue’s request. Goodbody concludes that there same basis as ‘new buildings’. will be an effective increase in rent of up to 11% Where a building has not been ‘made new’, it will over and above the rent paid by taxable tenants. nonetheless be treated as a transformed building if This effect will be even more pronounced where a the expenditure is at least equal to 25% of the sales lessee is partially exempt, as will be illustrated by an proceeds: a concept not dissimilar to the concept of example (see panel, above). development under the current legislation. A The example shows just one way how the changes building that is neither new, nor transformed, will be in the VAT legislation will have a real financial considered a ‘used building’: “The supply of used impact on both lessors and lessees. Both landlords “There is a buildings will be exempt from VAT, but the vendor and tenants need to consider the implications of the and purchaser will be entitled to opt to apply VAT new system so that agreements currently being real and to that supply, subject to certain conditions.” entered into can be drafted so as to accommodate present need So then, the sale of a freehold or freehold the impending rules. equivalent interest in a new or transformed building As mentioned previously, the cornerstone of the for all those will be liable to VAT and the sale of all similar new system – and the Revenue’s most formidable with a interests in used buildings will be exempt, but with weapon in ensuring neutrality – is the capital goods the option to tax in certain circumstances. scheme. property portfolio to Lettings of buildings Capital goods scheme A clear distinction is drawn in the new regime The CGS is a mechanism, provided for in the EU consider the between the sale of a freehold or ‘freehold Sixth Council Directive, that stipulates that when a extent to equivalent’ (being a very long lease with a change from taxable to exempt or exempt to peppercorn rent) and the ‘letting’ of property. taxable use occurs within a certain time period, an which the new Perhaps more fundamentally, however, the current adjustment is carried out on the original amount rules will distinction between short leases and long leases is to deducted at the time of acquisition. There will be be abolished: in future these will both be considered an adjustment period of 20 years for VAT on the impact upon lettings: acquisition of a new property or on the them” “The letting of property will be regarded as an transformation of an existing property. A ten-year exempt supply of services. However, where the adjustment period will apply to VAT on the tenant’s business is mainly taxable (90% or more), refurbishment of a property. The initial right to the landlord and tenant will be allowed to elect to recovery will be based on the use of the property have the letting regarded as a taxable supply of during the first 12 months of occupation. services.” The CGS is perhaps best illustrated by way of a Where the parties are permitted to opt to tax a simple example. A Ltd acquires a new property in letting and choose to do so, the annual rent will be 2008. VAT of €1million is incurred. If A Ltd uses taxable at the standard rate (currently 21%) for the the building for a fully taxable purpose for the first duration of the letting, irrespective of the term of 12 months of occupation, it will be entitled to the lease. recover all of the €1million VAT incurred. In year The biggest issue arises where the parties are not two, and in every subsequent year, an adjustment allowed to opt to tax. The consequence of the calculation is made, and if the use of the building restriction in the right of the parties to opt to tax is has become exempt, in whole or in part, an

24 www.lawsociety.ie TAX LAW LAW SOCIETY GAZETTE JAN/FEB 2007

adjustment is made. So if in year four, for example, appears as if the right to tax the sale of used A Ltd was to use the building for 30% exempt buildings will be available to all parties, but will be purposes, then there would be a payment due to available in respect of lettings only where the Revenue of 30% of one-twentieth of the €1million property is not residential property and the tenant originally recovered (€15,000). If, in the following has greater than 90% VAT recovery. The use to year, there continued to be an exempt use, then a which the property is put will determine, on an similar payment would be made for that year. In annual basis, the extent to which input tax is theory then, the user will get VAT recovery in recoverable, in accordance with the capital goods direct proportion to the use to which the property scheme. is put. The new system will unquestionably bring Ireland more into line with the Sixth Directive (albeit that a Real and present need number of derogations will still be required) and, to Under the new system, the sale of ‘new’ and the extent that neutrality is achieved, the new system ‘transformed’ buildings will be liable to VAT. The is unobjectionable. However, it is clear that a sale of ‘used’ buildings and all ‘lettings’ will be significant number of transactions will be adversely exempt from VAT, with the right to opt to tax. It affected. There is a real and present need for all those with a property portfolio to consider the extent to which the new rules will impact upon them. Action taken LOOK IT UP before the new rules take effect should enable most Legislation: companies to manage the transition successfully and • EU Sixth Council Directive (77/388/EEC) may help others avert a potential disaster. G

Literature: Frank Mitchell is a Dublin-based barrister specialising in • Report of VAT and Property Review (Revenue taxation. Prior to commencing practise at the bar, he was Commissioners, www.revenue.ie) a senior manager in PricewaterhouseCoopers’ tax litigation team in London.

Department of Defence An Roinn Cosanta

Notice re. Invitation to Tender for Legal Drafting Services

The Department of Defence invites tenders from Barristers/Solicitors/Legal Firms for the provision of legal drafting services in respect of Rules of Procedure and Court Martial Rules as provided for in the Defence (Amendment)(No. 2) Bill 2006.

Full details of this tender competition are available on www.etenders.gov.ie Suppliers who are interested in this competition must register their interest on www.etenders.gov.ie Registration is free of charge and there is no charge for documents.

Please note the deadline for receipt of tenders is 12.00 noon on 12 February, 2007.

www.lawsociety.ie 25 LAW SOCIETY GAZETTE JAN/FEB 2007 HUMAN RESOURCES THE bigINTERVIEW

Many law firms are in the thick of their graduate recruitment drives. You’ve been asked to join the interview panel to help select the most promising applicants. Aoife Coonagh gives her tips for choosing the tops

t’s the New Year again, and the graduate • What are you looking for? recruitment drive is in full swing. You’re on • How will you find it? the interviewing panel to select the most • How will you put a value on what you find? promising applicants to join your firm. I “Yeah, no problem,” you told the HR Whether you are recruiting for your own private manager. And now you’re thinking: “Why on earth practice or have been drafted into the trainee did I agree to that? I know nothing about recruitment process, you need to think about what recruitment. What if I ask the wrong questions? exactly the ideal candidates should possess. Think How will I know if a final-year student will make back to last year’s trainees. Who shone? What was it partner in the future?” about them that made them stand out from the Before you break out in a cold sweat, keep calm! others? Were they highly organised, did they show You can do some preliminary preparation, both they always got the job done well, or had superb mentally and practically. By the time you see the analytical and problem-solving skills? candidates at interview stage, their application The really good trainees are usually driven, forms have been carefully screened. They may also enthusiastic, client and team oriented. And they ‘live’ have been at an open evening or presentation, or a the values of the firm or practice. Agree these group interview where they may have been short- criteria in advance, so that you are extremely clear listed. In all likelihood, they already meet the firm’s on what you are looking for. Get the job description. minimum criteria on paper. Know the main technical, interpersonal skills and Despite the apprehension you might feel right qualifications required. Know the criteria for now, the overall recruitment and selection process assessment. The application form should assess the is very structured. Professional firms and private skills and competencies your firm requires. practices are keenly aware of the legal requirements Once you are clear on the requirements of the surrounding the recruitment and selection process. role and the qualities the ideal candidate should This means that the process is conducted fairly and have, the next step is to plan how you will find and all candidates are treated equally. The process and measure these at the various stages of the process. MAIN POINTS the associated documents, such as job descriptions, • Know what you’re scoring sheets and application forms, must reflect Find out what you’re looking for looking for the criteria you are recruiting against. There are myriad recruitment and selection methods • How to find it Put simply, the whole recruitment process and for assessing candidates against the different skills • Putting a value on everyone involved in the various selection methods and criteria. Some firms stick to the application form the right employee or activities need to focus on answering three key and traditional interview. Other firms use a questions: combination of presentations, group and panel

26 www.lawsociety.ie HUMAN RESOURCES LAW SOCIETY GAZETTE JAN/FEB 2007

www.lawsociety.ie 27 Is your Firm getting the best deal from your Bank? Are you Happy with the Interest you are Earning? Happy with the Interest you are Paying? Getting proper Set-Off Interest? Paying Uncleared Interest / Surcharge Interest?

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www.4salebyowner.ie HUMAN RESOURCES LAW SOCIETY GAZETTE JAN/FEB 2007

INTERVIEW ETIQUETTE AND STYLE Remember when you did the round of interviews as a graduate? From During the interview you should: the moment you arrived, you were making judgments about the firm or • Use active listening skills. This is particularly important when you the practice. These were based on the people you met, how you were are not asking questions. treated and the information you were given. Therefore, at all times, • Minimise distractions, use comfortable eye contact and attentive you should treat the candidate as if they are one of your most posture/body-language. important clients. Show them all the small important courtesies: •Take notes, but make sure these are not distracting. •Offer the candidate a cup of coffee or glass of water, • Be careful not to be subjective or allow prejudices or personal • Do not keep the candidate waiting – stick to the schedule, preferences to cloud your judgment. • Be well prepared in advance. At the end of the interview: If you are the lead interviewer or chair, cover the following with the • Give the candidate the opportunity for questions; candidate at the start of the interview: •Tell them what the next steps are in the process; • Introduce yourself and say what your position is in the organisation; • Answer the candidate’s questions; • Introduce your colleague(s) on the interview panel; •Tell them about the firm, the job role and how the trainee •Always tell the candidate how you will run the interview, in terms of programme works; format and timing. • Use the opportunity to sell your company.

interviews, case studies and psychometric tests to to the interview board can also be quite revealing. select the brightest talent from the pool of Observe their demeanour and body language. Watch applicants. Ideally, the more evidence you get for characteristics you are looking for, such as their through different means, the better. capacity to handle social situations or problem For example, if team working is critical in your solving under pressure. Also take into account any firm, then this should be assessed on the application shifts or changes in body language during the form – look for an example of how and when they interview. Maybe they are nervous. Or maybe they contributed to a team. At the open evening, you are uncomfortable with the line of questioning. should watch how they interact with others. Do they If you keep your questions confined to the areas take the lead in conversation and do others follow? already identified that relate specifically to the job Are their questions closed or open? Again, you role, you will not fall foul of the law. Ensure that the should look for evidence of team working at the same areas are covered with all candidates. Do not interview through examples and behaviours. ask irrelevant or subjective questions. Avoid asking At the interview, this means asking the candidate questions (explicit or implicit) related to domestic for real concrete examples that show when and how circumstances, family background, gender, race, they interacted in a team. sexual orientation, religious opinion, disability or Some candidates talk about their experience in a membership of the travelling community. general way. They don’t explain the situation. They are vague about their role and contribution or any What value? issues they had to handle. Listen carefully when they If you are not clear going into the interview about say things like “I was involved” or “We did X”. what you are looking for, then you are leaving the Often they don’t claim any credit for the outcome, result to chance. If, however, you are clear, then you which is where the evidence lies. will recognise where particular answers are strong Others do the opposite. They claim credit for it and others less so. all. As an interviewer, you have to ask the right Using such a structured approach reduces questions of both types of candidate to get beneath potential inconsistency across different interviewers the surface of their stories. You need to be sure that and assessors. Document the criteria and the first person isn’t just shy, modest or nervous. requirements. Use this as a checklist for Any niggling doubts you may have about the validity inexperienced interviewers and to feed into the of the confident, second interviewee’s story have to scoring or assessment sheet. be dispelled. Remember, you are looking for evidence: examples Ask direct or probing questions to get to the of situations where they demonstrated their capability candidate’s specific role and involvement in the in the relevant areas. At the end of each interview, you example. Use closed questions to elicit ‘yes’ or ‘no’ will assign scores against each area based on the responses to confirm the details and facts. Find out evidence and behaviours presented. Some skills or what, if anything, they learned from the experience. competencies can be weighted if they are more critical Ask them if they would do anything differently if to the job than others. G faced with the same situation again. This can often be quite revealing. Aoife Coonagh is head of career development services at How the candidates present themselves and relate Carr Communications.

www.lawsociety.ie 29 LAW SOCIETY GAZETTE JAN/FEB 2007 LITIGATION WASTE NOT, The recent ‘wasted costs order’ case shows that extreme caution should be exercised in attempting to apply the wasted costs rules more widely. Roddy Bourke explains

he High Court judgment of Finnegan P, He does not discharge his duty in such a case by as he then was, in Kennedy v Killeen requesting the client to make a proper affidavit and Corrugated Products Limited and Another, then filing whatever affidavit the client thinks fit to where the Law Society was joined as swear to. That is improper conduct…” T amicus curiae, illustrates how an order The (mainly) English case law indicates that the under order 99, rule 7 of the Rules of the Superior Courts courts may make wasted costs orders in a wide range (RSC) can cause injustice to a solicitor acting in High of circumstances, such as acting for a plaintiff or a Court litigation. It also points to the acute limitations defendant without authority, acting for a non-existing of the jurisdiction, which can generate costly ‘satellite plaintiff, instituting a fraudulent or collusive action, litigation’ and retard the efficient conduct of instituting a frivolous and vexatious action, or proceedings. This and other cases show that the unreasonably pleading fraud and undue influence. In jurisdiction should only be invoked sparingly, with his judgment in Kennedy (28 November 2006), great care and only in the clearest of circumstances. Finnegan P observed that the jurisdiction has been exercised where there has been improper conduct of Jurisdiction the proceedings. A ‘wasted costs order’ (a term imported from British litigation) colloquially describes a court’s power to Fundamental propositions order a solicitor to pay costs personally because of In Ridehalgh v Horsefield, Bingham MR considered the misconduct or default on the solicitor’s part in the decision in Myers v Elman to be authority for five conduct of litigation. Such orders have been a rarity in fundamental propositions: Ireland. The power is given effect by order 99, rules 6 1) The court’s jurisdiction to make a wasted costs and 7 of the RSC. The court’s power derives from its order against a solicitor is quite distinct from the inherent jurisdiction to control its officers. The disciplinary jurisdiction exercised over solicitors. jurisdiction does not apply to barristers, because, for 2) Whereas a disciplinary order against a solicitor reasons of history, barristers are not officers of the requires a finding that he has been personally guilty court. However, there is no reason in logic or practice of serious professional misconduct, the making of a to confine the jurisdiction to solicitors, given that both wasted costs order does not. solicitors and barristers have responsibilities to the 3) The court’s jurisdiction to make a wasted costs court in the conduct of the litigation. order against a solicitor is founded on breach of the The leading authority on the jurisdiction is the duty owed by the solicitor to the court to perform English case of Myers v Elman, where the House of his duty as an officer of the court in promoting Lords upheld a decision to make a solicitor liable for a within his own sphere the cause of justice. substantial portion of the opposing party’s costs 4) To show a breach of that duty, it is not necessary to because the solicitor had allowed his client to make establish dishonesty, criminal conduct, personal inadequate discovery to the detriment of the other obliquity or behaviour such as would warrant party. It had taken three court orders to obtain striking a solicitor off the roll. While mere mistake adequate discovery, which had delayed the trial and or error of judgment would not justify an order, had diminished or eliminated the prospect of misconduct, default or even negligence is enough if recovering assets on foot of the judgment. Lord the negligence is serious or gross. Wright noted that: 5) The jurisdiction is compensatory and not merely MAIN POINTS “The solicitor cannot simply allow the client to punitive. • Limitations of make whatever affidavit of [discovery] he thinks fit, ‘wasted costs’ nor can he escape the responsibility of careful In 1986, the English jurisdiction was extended to orders investigation or supervision. If the client will not give include failure to conduct proceedings with reasonable • Rules of the him the information he is entitled to require or if he competence and expedition. This was extended further Superior Courts insists on swearing an affidavit that the solicitor knows through section 4 of the Courts and Legal Services Act • English case law or has every reason to think is imperfect, then the 1990, which included in the definition of ‘wasted costs’ solicitor’s proper course is to withdraw from the case. costs incurred by a party as a result of any improper,

30 www.lawsociety.ie LITIGATION LAW SOCIETY GAZETTE JAN/FEB 2007 WANT NOT

unreasonable or negligent act or omission on the part elsewhere have emphasised the need for restraint in of any legal or other representative or employee of such exercising a wasted costs jurisdiction. Wasted costs representative. hearings in those countries have turned into complex However, subsequent case law in England has and expensive hearings that have rendered disputes indicated that, although the aim of the regime is more acrimonious, and dragged out litigation. As a laudable – to encourage efficient and proper conduct of result, appellate judges have urged that the regime proceedings – its application gives rise to very serious should be applied only to clear cases (such as a failure difficulties. Bingham MR in Ridehalgh v Horsefield to appear at a hearing) where the relevant events took identified a clash in public interests as follows: place in court or can easily be verified and where the “One is that lawyers should not be deterred from issue is fit for summary disposal. As was borne out in pursuing their clients’ interests by fear of incurring a Kennedy, caution is also required to avoid injustice to a personal liability to their clients’ opponents; that they solicitor who is faced with an allegation of misconduct should not be penalised by orders to pay costs without in litigation and who may not be able to give an a fair opportunity to defend themselves; that wasted account of his actions because of his client’s legal costs orders should not become a back-door means of privilege. recovering costs not otherwise recoverable against a legally-aided or impoverished litigant; and that the Interrogatories remedy should not grow unchecked to become more In Kennedy, the plaintiff’s senior counsel had advised damaging than the disease. The other public interest … the plaintiff’s solicitor in writing to serve a notice to is that litigants should not be financially prejudiced by admit facts concerning an allegedly defective shutter the unjustifiable conduct of litigation by their or their door that had caused injury to the plaintiff. Senior opponents’ lawyers.” counsel advised that if admissions were not secured, It has proved very difficult to reconcile these public the solicitor should arrange to have interrogatories interests, and appellate courts in England, Australia and delivered to elicit the evidence.

www.lawsociety.ie 31 FRIARYLAW & ADR GROUP FAMILY MEDIATION TRAINING & Family Mediation in Ireland PROFESSIONAL ACCREDITATION MARCH 2007 PROGRAMME Venue: The Friary, Bow Street, Dublin 7 Date: Module I: 1st - 3rd March (Three Days Intensive Training Hybrid Model Skills) Module II: 8th - 10th March (Three Days Intensive Training Culminating in Formal Accreditation Process)

• Friarylaw is a recognized leader in providing innovative and Friarylaw together with leading UK and Irish lawyer and non-lawyer experts, interactive mediation and conflict resolution training including the foremost family lawyer in this jurisdiction, in consultation with programmes and has been approved by the Department of Mr. Alan Shatter, present our 2007 Family Mediation Training and Justice as a nominating body under section 15 of the Civil Professional Accreditation Programme. Liability and Courts Act, 2004. Our unique and innovative model of Family Mediation is a formal and struc- • Friarylaw MCM is the leading independent mediation case tured process in which an impartial third person, trained and experienced, management service in Ireland with a dedicated Family Mediation Division. lawyer or non-lawyer, assists those involved in matrimonial dispute, and in particular, separating or divorcing couples, to communicate better with one • ADR Group was the first mediation trainer and service provider in the EU to receive ISO9002 accreditation. another and to reach their own agreed and informed decisions concerning some, or all, of the issues relating to separation, divorce, children, finance • The training course satisfies 35 hours of the Law Society or property. of Ireland's CPD requirements. • Leading UK and Irish lawyer and non-lawyer experts will Our Family Mediation programme imbues our candidate mediators with deliver a Family Mediation Training and Professional effective competencies in family mediation where they can both skilfully Accreditation programme regarding, inter alia: Mediation in present the client's case in mediation and to also act as mediator. the context of civil and commercial disputes, Mediation in the family dispute context, Mediation and Irish Family Law, A candidate who successfully completes the programme will be trained with Working with separation and divorce, Problem solving in the a unique and versatile skill set and can attain full professional accreditation family context; Managing anger and conflict; Keeping child as an Accredited Family Mediator with Friarylaw and Friarylaw MCM. focus; Managing strategies and techniques; Mediation documentation; Options and agreement. For the lawyer or non-lawyer training as a family mediator with Friarylaw & • The training course results in full Professional ADR Group will: Accreditation with Friarylaw and the opportunity of • Extend your expertise & skill sets Mediation Pupilages with Ireland's leading mediation case • Raise your professional profile management service, Friarylaw MCM. • Obtain Mediator Accreditation (MA) •On accreditation to join Friarylaw MCM’s Panel of Family Mediators. If you require any further information please contact • Continuing Professional Development through Friarylaw Family Mediation Friary Law, Friary Chambers, The Friary, Bow St., Dublin 7. Division. Tel: 01 872 8405. Fax: 01 872 8409 Email: [email protected]. Web: www.friarylaw.ie LITIGATION LAW SOCIETY GAZETTE JAN/FEB 2007

In a subsequent application, the Master of the High Court refused the application for interrogatories ORDER IN THE COURT and called on the plaintiff’s solicitor to show cause Under order 99, rule 6, a solicitor may be ordered to personally pay costs to the why orders should not be made under order 99, rule opposing party where: 7. At the show-cause hearing, the plaintiff’s counsel “Upon the trial of any cause or matter or upon any other proceeding it appears to argued (correctly, as it turned out) that the master did the court that the same cannot conveniently proceed by reason of the neglect of not have jurisdiction to make such orders. However, the solicitor for any party to attend personally or by some proper person on his the master made a costs order against the plaintiff’s behalf, or of the failure of such solicitor to be properly prepared for such trial or solicitor, as he had concluded that the interrogatories proceeding, or of his omission to deliver any paper necessary for the use of the application had been pointless and misconceived, and court which according to the practice ought to be delivered.” thus that costs had been incurred without any Order 99 rule 7, in contrast, provides that the court may order payment by the reasonable cause. At the same time, the master solicitor personally of his own client’s costs or may order disallowance of the appointed an independent solicitor to represent the solicitor’s costs: plaintiff should the master’s order be appealed. The “If in any case it shall appear to the court that costs had been improperly or decision refusing interrogatories was not appealed without any reasonable cause incurred, or that by reason of any undue delay in but, in an appeal against the orders made under order proceeding under any judgment or order, or of any misconduct or default of the 99, rule 7, the Law Society was granted leave to solicitor, any costs properly incurred have nevertheless proved fruitless to the appear as amicus curiae. person incurring the same.” The plaintiff’s personal injuries case had settled by the time of the hearing of the appeal before Finnegan P, and so the plaintiff’s team was able to reveal to the rule 7, and he set aside the master’s orders as to costs court the plaintiff’s counsel’s written advice on proofs, and the appointment of a second solicitor to represent which had advised interrogatories in light of reasoned the plaintiff. concerns that one or possibly two relevant witnesses might be hostile at trial. The plaintiff’s solicitor had Extreme cases considered and had acted on that advice. The Law Society in Kennedy referred the court to case Donal O’Donnell, senior counsel on behalf of the law from Britain and elsewhere, which emphasises Law Society, submitted that the plaintiff’s solicitor’s that orders of this kind should be confined to extreme actions were “perfectly proper” and “beyond cases where clearly a legal representative acting in reproach” and that the plaintiff’s solicitor had been litigation had been in serious default. Furthermore, “unfairly stigmatised” by the order, which had the jurisdiction should even more rarely be invoked at resulted in substantial media publicity. an interlocutory stage, and then only in the clearest of Finnegan P concluded, on the review of the cases, as it is difficult for a court in an adversarial authorities, that an order under order 99, rule 7 could system to assess a legal representative’s actions or be made where the solicitor was guilty of misconduct alleged defaults before the conclusion of a case. in the sense of breach of his duty to the court, or at Kennedy is a telling example of this. When the master least of gross negligence in relation to his duty to the invited the plaintiff’s solicitor to explain why such an court. The president noted that the solicitor had order should not be imposed, the plaintiff’s legal team acted on the advice of senior counsel and held that was constrained from explaining their actions while the facts of the case fell “far short” of the exceptional the litigation was not concluded, as it would have circumstances that might justify a wasted costs order disadvantaged their client, the plaintiff, to explain in under order 99, rule 7. He also held that the master court, in the presence of the defendant’s team, the had no jurisdiction to make orders under order 99, tactical reasons for seeking interrogatories. The Report of the Legal Costs Working Group (the Haran Group) in December 2005 recommended that LOOK IT UP order 99, rule 6 should be extended to all steps in the Cases: litigation process and not just to the trial. (In fact, the • Kennedy v Killeen Corrugated Products Limited present rule refers to “any proceeding” and thus, even and Another [2006] IEHC 385; unreported in its present form, the rule probably applies to other • Myers v Elman [1940] AC 282 (England) steps in litigation as well as trial.) The • Ridehalgh v Horsefield [1994] Ch 205 (England) recommendation appears to suggest that costs orders (described in the report as penalties) against solicitors Legislation: responsible for delay should be made more often. In • Courts and Legal Services Act 1990 (Britain) light of the lessons of the Kennedy case and from the • Rules of the Superior Courts, order 99 experience of other jurisdictions, any recommendation to make more use of such costs Literature: orders should be viewed with caution. G • Report of the Legal Costs Working Group (the Haran Group), December 2005 Roddy Bourke is a litigation partner in McCann FitzGerald.

www.lawsociety.ie 33 LAW SOCIETY GAZETTE JAN/FEB 2007 INTERVIEW HANGIN’ on the tele Aoife Sexton is a oife Sexton comes from a creative counsel, she manages the legal affairs of GSM solicitor who background, but nobody could have Association (GSMA). The association is a global told her when she started out on her trade organisation representing more than 700 GSM manages the legal career that, one day, she would mobile phone operators across 217 countries and legal affairs of Aend up meeting screen idol Robert territories of the world. More than 180 Redford – not just once, but on several occasions – manufacturers and suppliers are associate members. GSM Association while working for the world’s biggest mobile phone These operators and associates serve more than 2.25 – the global trade association. It’s not everyday that you get to billion customers – over 82% of the world’s mobile meet one of the world’s most famous cowboys (‘The phone market. trade association Sundance Kid’), investigative journalist (‘Bob In her role, Aoife provides guidance across the that represents Woodward’), baseball prodigy (‘Roy Hobbs’) and US organisation to the board, chief executive officer, the senator (‘Bill McKay’) – all rolled into one. For a executive management committee and various more than 700 woman who describes herself as the ‘black sheep of working groups. She is based in the company’s GSM mobile the family’, it’s all very hard to believe too. Dublin office in Deansgrange, but her work takes “My father Denis is a retired school inspector; my her around the world. phone operators mother Bredha, a drama teacher in Portlaoise Prison. across 217 Dad retired at 50 to pursue his writing career and Rapture has written a lot of plays and other material, as well “It was the very practical nature of wanting to be a countries. Mark as having branched out into complementary part of something, from its very inception to seeing McDermott goes medicine; so it’s quite a creative, diverse background. it through to its conclusion, that attracted me to There was a huge emphasis at home, as with most becoming an in-house lawyer,” she says. “From very mobile and talks Irish families, on education and on studying, but I early on, I realised I wanted an international flavour to her in their think I decided to do law – like a lot of lawyers – to my work. As soon as I graduated from UCD [with because I enjoyed English and history at school. I a BCL] in 1988, I left straight away and did a ‘stages’ Deansgrange thought that law would be an interesting profession. in Brussels. I was one of 12 students from Ireland on office I realised early enough that if you focus on what you a European Commission traineeship, which lasted enjoy doing, then you’re likely to be more successful for six months. I just loved my time there and at it and to enjoy your work. enjoyed working in the international melting pot “I’m probably the black sheep in the family, in that that is Brussels. MAIN POINTS I’m the one who’s the real practical person. I’m the “In 1989 I came home, and immediately started •Creative one who, when asked something at work, my first my apprenticeship in Blackhall Place. I did my background question will be: ‘Well, how will this apply in training with Eugene F Collins. It was a wonderful • International practice?’ Having said that, I think lawyers do have place, because it had a very flat structure, it was very appeal many areas where they can be creative, particularly in collegiate, very supportive, and it operated an ‘open • Business problem solving and in trying to find solutions by door’ policy with all the partners. Really, that’s where environment coming at things more laterally.” I got my grounding in the basic legal skills, as well as rewards Aoife is a solicitor with over 15 years’ experience good drafting and technical skills. It was a very in the telecommunications industry. As general supportive environment to work in.”

34 www.lawsociety.ie INTERVIEW LAW SOCIETY GAZETTE JAN/FEB 2007 phone She then spent a year studying in Bruges, “I used to spend Belgium, in the College of Europe – a specially time in La Défense created, government-supported organisation. “I in Paris and also in obviously pursued the legal stream there and was Stockholm – they exposed to competition law – an area I really were my two cities enjoyed. After I completed that postgraduate course, – negotiating with I came back to Ireland in ’92 to complete Blackhall’s the authorities to advanced course. I had already secured a job in allow us to Brussels with a French law firm, Siméon et Associés, literally dig up and worked with them for two-and-a-half years, the streets and mainly in competition law. One of our biggest clients build the was a mobile telecommunications operator, so that’s infrastructure. So where I was first exposed to telecoms.” that was hugely This was her stepping stone to being recruited by hands on, with a an American telecoms company, MFS serious amount Communications, and was her first move in-house. of responsibility. “It was a small European headquarters start-up and I It was an was the legal counsel. I suppose this was really where American I came into my own. I realised I had found my niche. corporation, Because it was a start-up environment, it was slightly and they were chaotic, very flat in structure and it was ‘all hands on very willing to deck’. You were exposed to every part of the business give and could be asked to do anything, either in the legal responsibility or business environments. to anybody who wished to Picture this take it on. “One of the jobs I had was to negotiate MFS was an telecommunications infrastructure licences in various incredibly fast- cities in Europe where they wanted to build ‘dark- moving fibre rings’. This would allow big companies who entrepreneurial company, so the required a huge amount of telecommunications environment that you worked in was to take risks, to resource – like the banks – to have their own keep pushing the regulatory envelope and keep dedicated lines, so that they could send vast amounts moving forward. That was my exposure to the in- of information securely. What we were trying to do house sector and I’ve never looked back since.” was to create telecommunications rings in these big Living on the edge might have been exciting, but financial cities so that we could then provide ‘Rolls what about the risks? “I’m sure there were examples Royce’ telecommunications services to big where, in hindsight, we probably might have done institutions.” things differently, but we were literally writing the

www.lawsociety.ie 35 LAW SOCIETY GAZETTE JAN/FEB 2007 INTERVIEW

interesting and these don’t come along that often, so CALL ME I decided – this was in the mid-’90s – to come back In-house solicitors work in diverse roles, in organisations ranging from small to Ireland to explore the possibility. That was GSM private companies in the manufacturing or service sectors, to state, local Association in 1996. I joined as legal counsel with government and semi-state organisations. The number of solicitors working in- responsibility for all legal matters. Predominantly, house continues to grow and currently stands at 750 members, representing the focus was on matters of competition law. They approximately 9% of the total number of Law Society members. didn’t have an in-house competition advisor, and The Corporate and Public Sector Committee of the Law Society represents there was a US chairwoman at the time who felt the and promotes the views and interests of in-house solicitors. The committee need for a full-time competition-law advisor. I was strives to build upon and strengthen the relationship between the Law Society the sole member of the legal team then, though we and its in-house members. had external legal advisors. There are seven of us During the coming year, the committee will organise a seminar for in-house now in the legal team. These are diversely located in solicitors, in conjunction with the Society’s CPD Department. It also provides Dublin, London, Spain and the United States. information and assistance to in-house solicitors through the committee’s booklet Solicitors Commencing Employment in the Corporate and Public sector. Will anything happen? For further information on the committee, visit the ‘Committee’ section in the “The reason GSMA came into being was to focus on members’ area of the Law Society’s website. To contact the committee roaming, so that users could take their phones secretary, Louise Campbell, please phone: 01 881 5712 or email: anywhere in the world and they would work. Over [email protected]. time, the scope of the work of the association has obviously broadened to look at new services that are coming on-stream. So we’re dealing with everything agreements for the first time. There weren’t any from video telephony, to instant messaging, to precedents. I was working with an extremely talented cutting edge uses of the SIM card.’ person, Jo van Gorp, who was the head of the “The association has also developed in recent regulatory section at the time. He was an incredibly years a commercial arm and we run several revenue dynamic person with brilliant communication skills. generating businesses, including conferences. This He mentored me really, really well. I learned the art month, we are expecting close to 60,000 visitors for of keeping good communications internally, having our event in Barcelona, the 3GSM World Congress.” people know what you were doing at all times. At As an in-house lawyer, Aoife maintains that there the same time, you had to be willing to take some are major differences in the structures, goals and risks and strive to push things ahead for the involvement of her colleagues compared with those company. If that’s where they wanted you to go, then working in private practice. that was the direction you would take. I was with them for just under two years and was not looking to move. I was extremely happy there and enjoying the work I was doing. “But then I was made aware of the fact that there was an opening for a legal counsel in Dublin for a global organisation and I thought, well that sounds

36 www.lawsociety.ie INTERVIEW LAW SOCIETY GAZETTE JAN/FEB 2007

“To me, in-house is all about the practical application of law in a business environment, and that’s hugely rewarding. I think also that lawyers, because of their good training, have so much to offer in the business environment. I think employers are realising this now, that it’s not just the legal brain. It’s all of the training you’ve had, the professionalism, the attention to detail, the communications skills, the ability to analyse, the ability to cut to the chase and see what’s important, to do risk analysis and to problem-solve as well. These skill sets are hugely important in any business environment and this is what lawyers have to offer in a business environment. “What’s exciting about working in this association is that the legal team is involved at the very beginning – from the very first brainstorming session. My role is really to work with the business owners on this, to figure out how we do it from the very beginning. Will we need to find a partner? Will we need to create a joint venture? Will we need to do a pilot programme? Who’s going to own the intellectual property that will develop? What happens if the deal doesn’t come off, with all of the associated legal aspects? But it’s much broader than that. It’s also the business aspects and what it will The Sundance Kid: at take for us to make it successful. In other words, the forefront of mobile we’re not brought in at the end when somebody particularly dynamic industry. My role has continued movies says, ‘Oh, we need a contract’. We’re brought in at to evolve to match the growth of the organisation – the very beginning as part of the deal team. It’s all it’s a mixture of hands-on legal advice but a lot of very integrated, and that’s the fun of working in- management as well. I have been very fortunate that house. It’s not just you as a lawyer – it’s you I’ve has a great boss for the last five years who has contributing your experience and skills. It’s about fostered my career development, particularly in being a good head around the table.” ensuring I’ve received very broad managerial experience. He is a CEO with a legal background, so The tide is high he is a natural advocate of the broad business- “To me, in- “Working in-house is a fantastic career choice. If I oriented role of an in-house lawyer.” house is all were advising somebody starting off, I would say to And what about Robert Redford – where does he them, first get a good apprenticeship and get a good fit into this picture? Aoife says: “GSMA has about the grounding in all aspects of law. Work with the best partnered up with the film star’s Sundance company practical professionals you can, learn as much as you can and to produce five short films especially for mobile spend a number of years in private practice so that phones. This is really cutting edge, in order to show application of you really have the confidence to operate at the that mobile phones can be used to view movies. So law in a highest level as a lawyer. Robert Redford has commissioned five directors to “Anybody I know who works in-house is hugely produce these movies, including the husband/wife business satisfied with what they do. They’re probably more team of Jonathan Dayton and Valerie Faris, who environment, in control of their work as well. Private practice can directed Little Miss Sunshine. All of that will be be very reactive to the big deal and to the client showcased in Barcelona next month at our world and that’s picking up the phone and calling you. Clearly, in- congress. To see Robert Redford trooping in and out hugely house, this can be the case too, but you can see of the London office is quite fun sometimes, and I what’s coming down the path a bit more clearly like to work on those deals!” rewarding” because you’re there at the inception and you’re Does Aoife feel that she’s reached the pinnacle of there as part of the team. her career or is there more to come? “I remain open “I have been here now for ten years. I never to all possibilities. I don’t have a game plan in terms thought I would be in any job for ten years. I have a of what’s next. I’m enjoying what I’m doing at the low boredom threshold and I like constant change moment. I suppose, long-term, it may be that at and I like things to keep evolving. I enjoy juggling some point I may take the decision to move more 20 things at one time. That’s what makes me tick. into general management. That’s often what happens I’ve found these elements in this role over the ten when you work in-house. Who knows, I might like years and it continues to be like that. It’s a to be a CEO one day!” G

www.lawsociety.ie 37 information notice

Request for tenders by the National Council for Special Education for the provision of Legal Services

The National Council for Special Education (NCSE) is a recently established State agency, based in Trim, County Meath, which deals with the provision throughout the State of appropriate educational services for children with special educational needs.

NCSE is requesting tenders for the provision of a range of legal services

This request for tender is published on the Government procurement website www.e-tenders.gov.ie. The closing date for tenders is 28th February 2007.

COURTS AND COURT OFFICERS ACTS 1995 - 2002 JUDICIAL APPOINTMENTS ADVISORY BOARD APPOINTMENT OF ORDINARY JUDGES OF THE: HIGH COURT (2) CIRCUIT COURT (1) Notice is hereby given that applications are invited from practising bar- risters and solicitors who are eligible for appointment to the Office of Ordinary Judge of the High Court and to the Office of Ordinary Judge of the Circuit Court for two judicial vacancies which have arisen in the High Court and one vacancy which has arisen in the Circuit Court. The K Club Those eligible for appointment and who wish to be considered should apply in writing to the Secretary, Judicial Appointments Advisory Exclusive promotion to Board, Phoenix House, 15/24 Phoenix Street North, Smithfield, Solicitors and Barristers Dublin 7, for a copy of the relevant application form.

Offer: For the months of, March and October the K Club, home to the The closing date for receipt of completed application forms, in Ryder Cup 2006 is pleased to offer the Irish Law Society the following rates relation to this advertisement, is 5pm on Thursday 15th February 2007. PALMER COURSE €115 PER ROUND OF 18 HOLES OF CHAMPIONSHIP GOLF It should be noted that The Standards in Public Office Act, 2001 prohibits the Bookings of 20 or more on the Palmer Course will qualify for a Board from recommending a person for judicial office unless the person has fur- maximum €200 voucher for the Palmer ProShop nished to the Board a relevant tax clearance certificate (TC4) that was issued SMURFIT COURSE to the person not more than 18 months before the date of a recommendation. €70 PER ROUND OF 18 HOLES OF CHAMPIONSHIP GOLF Bookings of 20 or more on the Palmer Course will qualify for a maximum Applicants may, at the discretion of the Board, be required to attend for €100 voucher for the Smurfit ProShop interview.

Minimum booking for each course is four golfers per tee time Canvassing is prohibited.

OPTIONAL EXTRA Dated the 18th January 2007 €25 for three-course meal in the Snack Bar – Palmer Clubhouse BRENDAN RYAN BL To reserve your tee time please book through the Sales office and SECRETARY quote your exclusive reference number, which is ILS001. JUDICIAL APPOINTMENTS ADVISORY BOARD PRACTICE MANAGEMENT LAW SOCIETY GAZETTE JAN/FEB 2007 practice doctor

Got an issue you would like addressed by our panel of practice doctors? Email: [email protected] CASHING IN verybody has seen and heard the TV and that the firms who sell these plans are not regulated. radio adverts directed at the over 60s, The equity release loan is, as it says, a loan where advising them about how they can go on the client retains full ownership of their home. The the world cruise, get that extension, buy loan is secured on the client’s home, however, unlike that car – simply by using the value of a normal loan. Repayments do not need to be made Denise McNulty: ensure E their home to get a cash sum. over the life of the loan. Interest is typically 1.5-2% that both you and your client understand the How does a financial advisor or solicitor advise above the standard variable mortgage rate. The loan different options clients about the products available? In Ireland, over balance, plus interest, grows over time. 15% of the population is now over 60. Financial and When advising your clients about each option, legal advisors should be specifically aware of the ensure that you both understand the difference and issues surrounding equity release schemes. While ensure all questions have been considered, such as: there are undoubtedly benefits to some of them, • Does your client wish to continue to own their there can be downsides to others. All options to property? funds must be considered. •Has your client sought independent financial Solicitors should be aware that there are two advice, and have they discussed their intentions types of equity release: with family members? a) The reversion scheme, and •Are they absolutely sure that their circumstances b) The equity release loan. will not change and that they will never want to repay early, or indeed borrow more later? The reversion scheme is essentially a property transaction in which your client sells part of their It must be noted that it’s important for your client house at a discount. This means that the client gets not to borrow more than they actually need at the much less than the market value of the share they sell. time, as they will end up paying interest on the They are, however, still allowed to live in their home. money drawn down. At least one company allows a The reversion scheme is not a loan and your client phased draw-down facility called an ‘express top up’, does not retain full ownership of their home. The which allows periodic draw-downs, up to the client’s home reversion scheme is not regulated, which means approved limit.

How much can be borrowed? The amount borrowed typically depends on the WHAT IS EQUITY RELEASE? client’s age and the value of the house. There is, A booklet published recently by the Financial Regulator: Equity release – using generally, a ‘loan shortfall promise’, which means your home to get a cash sum, explains: that, whatever happens, the estate can never owe “If you are a homeowner and are over 60, you may find yourself living on a tight more than the value of the property. The loan, budget, even if your home is worth a lot of money. including interest, is not due for repayment until “Up to now, the only way you could benefit from the value of your home was to your client permanently leaves their home or dies, sell it and move to a cheaper property. Now, a number of companies are offering though there is no obligation to sell the house if ‘equity release’ schemes. These allow you to release some of the value of your another source of repayment is available. Your client home without having to move out or sell it in the open market. is also free to reverse their decision without penalty “Equity release schemes are not suitable for everyone, but they may help to if they have a variable rate loan, which can add to relieve financial stress if you: their peace of mind, in the event their personal • Don’t want to sell your home and live elsewhere; and circumstances change. G •Are not concerned about passing on the full value of your home to your family or other beneficiaries after your death” (source: www.itsyourmoney.ie). Denise McNulty is principal of Denise McNulty Solicitors, Dublin.

www.lawsociety.ie 39 LAW SOCIETY GAZETTE JAN/FEB 2007 GADGETS tech trends

Read all the technology news here first, in your glorious Gazette. Or not, as the case may be Going straight to hell in a hand basket ven after they eventually pathologically lazy among you, Ebulldoze the pesky seat of there is the E-Glide Dewey Ireland’s High Kings that is Weber Twin Dual 400W holding this great little Electric Longboard, a country back, you’ll probably motorised skateboard (see still be sitting in traffic. www.e-glide.com). Pull a half- What’s the alternative, after pipe with a backside and all – public transport? You tailgrab on the steps of the some kinda communist, boy? Four Courts: that’d be pure Well, if your daily commute is random, er, dude. getting you down, you might But the clear winner in our want to consider one of these eyes has to be the PoweriZers tasty options to enliven your Jumping Stilts, enabling you journey. to hop, skip, jump, leap and First up, and particularly bound with all the dexterous handy if you live along the virtuosity of fabled and canal, is the Sea-Doo Sea infamous super-villain Batroc Scooter (see www.sea the Leaper. Check out the scooter.net), which will convey gallery and video links at you – albeit soaking wet and www.powerizer.org.uk if you unable to breathe – at the don’t believe that these things stately pace of 21/2 mph to a beat the M50 by a mile. depth of 100ft, enabling you to take down some beavers from below. Assuming you already have a harpoon. Then, for the young, hip, rebellious, but A nightmare in elm tree icture the nightmare: Titanium Atomic Solar Triple daylight Pyou’re all alone in Sensor Watch. This amazing, savings time Farthing Wood at night, and but pretty damn ugly, watch is setting. But the wind is putting the willows apparently solar-powered and the compass, up you. You’re being stalked comes with a built-in digital altimeter and by badger, ratty and mole and compass, barometer, barometer are pursued by a business of thermometer and altimeter alone mean weasels and stoats. (What’s the and its own busty PA. Well, we that you’ll difference, I hear you ask? made that last bit up, but it never get stuck Well a weasel is weasily does come with ‘multi-band up the Khyber Pass recognised, while a stoat is atomic time-keeping’ again. stotally different.) But which capabilities, which we gather way to run? Lucky for you, means it can tune into multiple The PAW1200 costs around you have read your Gazette and atomic clocks around the $300. See the details at are prepared with the Casio world, and it has 30 world www.casio.com/products/ PAW1200T Pathfinder time settings and a one-touch Timepiece/ Pathfinder/PAW1200.

40 www.lawsociety.ie GADGETS LAW SOCIETY GAZETTE JAN/FEB 2007 Walk the walk ... straight to the competition ar be it from us to suggest the Norwegian Winter Olympic hour charge will provide 40 Fways for you and an team, no less) private mobile hours of standby power and two accomplice to eavesdrop on a radio communicators. hours of continuous talk time. private meeting, but this They have a three-kilometre Certainly enough time to product is a hell of a lot less range and have eight channels broadcast most complicated than any manner of and 38 sub-codes per channel, Council meetings James Bond-a-like super giving you over 300 channel to your ‘friend’ in technology. Quite simply, it’s a combinations for private Montrose. voice-activated walkie-talkie conversation. To top that all off, system built into a pair of there are no mobile bills to pay. Walkie-talkie watches. They have the full It requires a rechargeable watches are functionality of a sophisticated lithium battery (included) and a about €90 per pair digital watch, with the bonus of mains adaptor, but after the from www.iwantone being pro-quality (as used by initial 24-hour charge, a full six- ofthose.com. Websites for cheapskates oo cheap to spring a few own unique access code and it comes with 150MB of Tthousand squids on a pro- provided, all you need is a web space. designed website for your firm? computer with internet access. The price includes web Well this should be right up There are hundreds of site hosting (meaning they keep your street, you tightwad. This designs to choose from, and you everything up on the net for company offers what they claim can set up on-line photo albums, you) for a year, after which you is a bona fide DIY website music libraries and diary pages, pay only £2.50 a month, and you construction package that can be alongside a shopping cart. can update it as much as you up and running in short order You choose your own domain like. Quick! www.monkey- for a mere £30. With a booklet name (for example, magic.com might still be free! of apparently “blisteringly www.rateyourbestsolicitor.com) simple” instructions and your and up to 20 email addresses, See www.mrsite.co.uk.

SITES FOR SORE EYES

Quantum materiae materietur marmota monax How much wood would a woodchuck chuck si marmota monax materiam possit materiari? if a woodchuck could chuck wood?

Rockin’ all over the world (www.harmony-central.com). If Equo ne credite, Teucris! (www.bbc.co.uk/dna/h2g2/A218882). you’ve ever fancied taking up an instrument, or re-forming that After dinner speech? Daughter getting engaged? Or just want to Beach Boys cover band you used to be in, then this is a most confuse your clients and appear erudite to your colleagues? If so, useful site. It contains thousands of user reviews of guitars, there’s nothing like a bit of the oul’ Latin. Essential to the busy keyboards, amplifiers and effects, drums and sound-processing solicitor are the phrases: Canis meus id comedit, and Recidite, plebes! equipment. It is also an invaluable research resource for when Gero rem imperialem! And just try muttering Unitam logica falsa little Ultan or Saoirse get sick of the violin and decide that they tuam philosophiam totam suffodiant to the judge the next time you’re want a guitar for Christmas. in court. Quidquid latine dictum sit, altum sonatur, as we always say.

www.lawsociety.ie 41 LAW SOCIETY GAZETTE JAN/FEB 2007 PEOPLE AND PLACES

Mayo’s magic! The Mayo Solicitors’ Bar Association celebrated its 100th anniversary in 2006. The first meeting of Mayo solicitors took place on 18 April 1906. The association held its annual dinner dance at the Downhill Hotel, Ballina, on 8 December. In all, 170 guests attended. Guest of honour on the night was the Honourable Ms Justice Mary Laffoy. (Front, l to r): Samantha Geraghty (solicitor), Gillian O’Connor, Nollaig Browne, Judge Mary Laffoy (guest of honour), Mrs Joan Groarke, Mrs Margaret Cooper, Catherine Bourke (solicitor). (Back, l to r): John Bourke (solicitor), Judge Raymond Groarke, Kevin O’Higgins (secretary, DSBA), President of the Law Society Philip Joyce, Marc Loftus (solicitor), President of the Mayo Solicitors’ Bar Association Patrick O’Connor, Judge Geoffrey Browne, President of the Law Society of Northern Ireland James Cooper, Dermot Hewson (solicitor), Director General of the Law Society Ken Murphy and Judge John Garavan CALCUTTA RUN 2007 IT’S A DATE Saturday 26th May Fun run/walk at Blackhall Place Be one of the 1,500 solicitors, staff and their friends to help raise €250k for Goal’s Orphanage in Calcutta and Fr Peter McVerry’s projects for homeless boys in Dublin.

IT’S NEVER TOO EARLY Here is the first four weeks’ brisk walk/jog programme to enjoying the Calcutta Run (target 80 min) WEEK 1, 12 FEBRUARY 1. Walk 30 min 2. Walk 30 min, jog 3-5 min 3. Walk 30 min, jog 3-5 min WEEK 2, 19 FEBRUARY 1. Walk 20 min, jog 5-7 min, walk 10 min 2. Walk 20 min, jog 5-7 min, walk 15 min 3. Walk 25 min, jog 7 min, walk 10 min WEEK 3, 26 FEBRUARY 1. Jog 5 min, walk 25 min, jog 5 min 2. Jog 5 min, walk 25 min, jog 7 min 3. Walk 20 min, jog 7-10 min, walk 10 min WEEK 4, 5 MARCH 1. Walk 30 min, jog 7-10 min 2. Jog 7-10 min, walk 30 min, jog 5-7 min 3. Jog 7-10 min, walk 30 min, jog 5-7 min Always make sure you are warmed up before you jog! For more information, contact your firm’s Calcutta Run representative or visit www.calcuttarun.com

42 www.lawsociety.ie PEOPLE AND PLACES LAW SOCIETY GAZETTE JAN/FEB 2007

Joint chiefs of staff At the meeting of the Joint Consultative Committee of the Law Society and Bar Council were (front, l to r): Bar Council director Jerry Carroll, vice-chairman Paul O’Higgins, Bar Council chairman Turlough O’Donnell, President of the Law Society Philip Joyce, senior vice-president James MacGuill and director general Ken Murphy. (Back, l to r): Bar Council members David Nolan, Paul McGarry, Sasha Gayer, Lisa Dempsey, Deputy Director General of the Law Society Mary Keane, and Council members Gerard Doherty and Gerard Griffin

Honour your honour At a dinner held in honour of Ms Justice Harding-Clark and Judge Thomas Teehan were (front, l to r): Noeleen Redmond, Geraldine Clarke, Ms Justice Harding-Clark, President of the Law Society Philip Joyce, Judge Thomas Teehan and Rosario Boyle SC. (Back, l to r): director general Ken Murphy, deputy director general Mary Keane, Barry Donoghue, junior vice-president John Costello, Richard J McDonnell SC, past-president Michael Irvine, Paddy McCarthy SC, Nicholas Butler SC, Deirdre Murphy SC and Cathy Maguire BL

Back to school! PPC I students are participating in a rewarding venture and volunteering their time each week to assist children from Stanhope Street primary school with their reading. Pictured are some of the Law School students and pupils from Stanhope primary school who are participating in this year’s ‘Shared Reading Programme’. PPC I students are also volunteering in a number of homework/after-school clubs in conjunction with other primary and secondary schools in the local community

www.lawsociety.ie 43 LAW SOCIETY GAZETTE JAN/FEB 2007 PEOPLE AND PLACES

HIGHWAY STAR he general assembly of the foremost experts in competition current chairman of the Solicitors TFederation Internationale de and sports law. It also further Disciplinary Tribunal – is a counsel l’Automobile (FIA) has elected EU demonstrates the independence in the Brussels office of Sidley competition law expert Ken Daly and the unique expertise of the Austin LLP, where he focuses on as the new secretary general of ICA as a world-leading arbitration EU competition, regulatory and the FIA International Court of authority. sports law and specialises in Appeal (ICA), the final appeal Daly commented: “I’m merger-control proceedings, cartel tribunal for international motor delighted to have been elected investigations and abuse of sport. Established under the FIA and I’m looking forward to the dominance cases, as well as the statutes and the FIA’s challenges that this role will bring. law relating to the regulation of international sporting code, it The ICA has become a international sports. resolves disputes brought before professional, modern, flexible and Daly adds to a wealth of it by any of motor sport’s national highly specialised dispute Ken Daly, new secretary knowledge and experience at the general of the FIA International sporting authorities worldwide or resolution forum. Continuing along Court of Appeal ICA, which includes among its by the president of the FIA. It can this path is essential if the titular judges senior lawyers such also settle non-sporting disputes changing demands of international tary general, as he is particularly as Anthony Scrivener QC, one of brought by national motoring motor sport are to be met.” well qualified to fulfil this role. It is the top barristers in Britain, and organisations affiliated to the FIA. He takes over from previous good to know that I am leaving the John J Cassidy, a senior partner Ken’s appointment is a incumbent David Ward, who said: ICA in his capable hands.” at Baker Botts LLP, the law firm of significant development for the “I’m delighted that Ken Daly has Daly – son of past-president of James Baker II, the former US ICA, as he is one of Europe’s been elected to be the new secre- the Law Society Frank Daly, who is secretary of state.

SYS Autumn 2006 Conference The winner of the annual ezhome golf prize, Mark O’Sullivan of At a dinner in honour of Finance Minister Brian Cowen were (back, l to r): deputy director general Mary Keane, Matheson Ormsby Prentice, past-president Gerard Griffin, junior vice-president John Costello and director general Ken Murphy; (front, l to r): receives his prize from Shane past-president Michel Irvine, Minister Cowen, Law Society president Philip Joyce, and Peter Power TD Robinson of ezhome SOLICITORS’ HELPLINE The Solicitors’ Helpline is available to assist every member of the profession with any problem, whether personal or professional

Commercial break At the CPD seminar on recent developments in the commercial court 01 284 8484 were (l to r): Barbara Joyce (Law Society), Mr Justice Peter Kelly (head of THE SERVICE IS COMPLETELY CONFIDENTIAL AND the Commercial Division of the High Court) and Rosaleen Byrne TOTALLY INDEPENDENT OF THE LAW SOCIETY (McCann FitzGerald Solicitors, Dublin)

44 www.lawsociety.ie PARCHMENT CEREMONY LAW SOCIETY GAZETTE JAN/FEB 2007 nnell, Ciara O’Gorman, Ruth O’Malley, Noeleen Ruddy, Noeleen Ruddy, nnell, Ciara O’Gorman, Ruth O’Malley, l of the Law Society Ken Murphy were guests of honour at the , Katherine Cussen, Patrick Daly, Melanie Dodds, Shane Donnelly, , Katherine Cussen, Patrick Daly, nham, Darina Hannan, Enda Hurley, Barbara Jordan, Sinead Keavey, nham, Darina Hannan, Enda Hurley, Anita Sothern, Donal Twomey and Joanna Walsh of their parchments on 6 October 2006 Newly-qualified solicitors at the presentation Caroline Lynch, Nicola Lynch, Tomas Lynch, Gerard Mooney, Ruth Nic Aoidh, Gillian O’Callaghan, Mary Lynch,Caroline Gerard Lynch, Mooney, Nicola Lynch, Lucy O’Connell, Carmel Tomas O’Do President of the High Court Mr Justice Joseph Finnegan, then-president of the Law Society Michael G Irvine, and Director Genera 6 October Parchment Ceremony for newly-qualified solicitors: Jon Bayle, Niamh Baxter, Eamonn Burke, Elizabeth Cox, Nicola Curry6 October Parchment Ceremony for newly-qualified solicitors: Jon Bayle, Niamh Baxter, Sinead Dunne, Sandra Egan, Lynne English, Denise Fanning, Brian Foley, John Fuller, Nessa Gardiner, Caroline Garland, Karen Gre Nessa Gardiner, John Fuller, Sinead Dunne, Sandra Egan, Lynne English, Denise Fanning, Brian Foley,

www.lawsociety.ie 45 LAW SOCIETY GAZETTE JAN/FEB 2007 PEOPLE AND PLACES

OBITUARY

Denis J Bergin 16 March 1928 – 17 November 2006

enis Bergin died on 17 courteous to everyone who DNovember. At his funeral, worked with him and showed a an enormous gathering of genuine interest in what was family, friends and colleagues, going on in their lives. The along with business and social ultimate team player, he sought contacts, paid their respects to no glory for himself and was a devoted husband, a loving always willing to roll up his father, a loyal friend, a sleeves and get involved. He distinguished lawyer, a was an enthusiastic and popular wonderful colleague and a true participant in virtually every gentleman. social activity organised by the Denis was proud of his office, events he attended not Dublin roots – he was the out of a sense of duty, but fourth generation Denis Bergin because he enjoyed people’s to be born and raised in the company. capital. Educated at the Sacred Denis was a moderate man – Heart School in Leeson St and a lifelong pioneer and non- at Belvedere College, he smoker, whose one indulgence studied law at UCD and qualified as a solicitor, following in the was a sweet tooth. He liked sailing, was a prominent member of footsteps of his father (Denis) and his older brother (Paddy). Milltown Golf Club, and enjoyed opera and travel. A private While at UCD, he met Gretta Sheedy from Ballylanders, Co man, he played a public role as deputy returning officer in no Limerick, whom he married in 1955. He was devoted to her, less than 14 general elections: something of a record. always happiest in her company, and that is how he spent the day He was a true Christian with a strong social conscience, as before he died, celebrating their 51st wedding anniversary. evidenced by his involvement with the Vincent de Paul Society Having worked with his friend Michael Hayes for a number and St Vincent’s Hospital and his many generous acts of private of years, Denis joined the firm of Arthur Cox as a partner in charity. 1965. In the early years, he practised mainly in the areas of Denis had an extraordinary capacity to get on with people probate and conveyancing, but later he became one of the across generations. Friends of his children would frequently seek leading commercial lawyers in the city. He was widely regarded him out for advice and help. There was nothing you could not as one of the foremost authorities on the law relating to co- discuss with Denis. You were always assured of a hearing, operative societies and advised many of the country’s largest co- without judgement or disapproval, and were guaranteed no- operatives. He was particularly proud of his role as lead advisor nonsense advice and absolute confidentiality. He had a wicked to both Kerry Group and IAWS when they went down the sense of humour and a curiosity about what was going on that public-company route. His clients included many of Ireland’s ensured that being in his company was always fun. most prominent businesses as well as smaller businesses and Denis was intensely proud of his five children. He was a individuals, all of whom he looked after with equal concern and loving and generous father, always there for them but always courtesy. His broad knowledge of commercial law, and the at the proper distance. Anne, Denis, Maurice, Caroline and common sense approach he brought to even the most obtuse Marian, and their partners, share, with Gretta, a deep sense legal problem, guaranteed that he was in great demand of loss. throughout his career. He advised on a number of major George Bernard Shaw defined a gentleman as “one who puts insolvencies, including the administration of PMPA Insurance more into the world than he takes out”. Denis Bergin was such a and the liquidation of Ranks. He served on the boards of high- gentleman – and much more. He will be fondly remembered profile companies, including Fyffes, Adare Printing and the and greatly missed. G Bank of Nova Scotia. Denis was a wonderful colleague. He was unfailingly EMcC

46 www.lawsociety.ie STUDENT PAGE LAW SOCIETY GAZETTE JAN/FEB 2007 student spotlight

Blackhall team makes history

he Blackhall men’s gaelic Tteam have qualified for the final of the Higher Education League for the first time in the Society’s history, where they will seek to overcome the strong challenge of Mater Dei Institute of Education. After coming through the group stages unbeaten, Blackhall faced St Pat’s, Drumcondra, in the semi- final. In a bruising encounter played in terrible conditions, the greater physical strength of the Blackhall men told in the end. The platform for victory was Members of Blackhall’s GAA team proudly sport polo shirts sponsored by Hugh Hourican, proprietor of the Boar’s Head Bar on Capel Street (back, l to r): Paddy Walsh, Declan Murphy, Steve Walsh, Mike Commons and established early on as the James O’Mahony. (Third row, l to r): Steve Mahon, Tadgh Boyle, Michael Mulvey (captain), Andrew O’Connell midfield pairing of Micheál and Peter Feeney. (Second row, l to r): Padraic Roche, Airy Cleere, Liam Dunne, Cian Duffy, Karol Murphy, ‘Cavan Man’ Mulvey and Paddy Fergal O’Sullivan, Colm Mullen and Niall Rooney. (Front, l to r): Ronan O’Brien, Gavin Hinchy, Kevin Smith and ‘Guns’ Walsh provided a Martin Travers (manager) continuous supply of possession to the forwards. The team raced St Pat’s came back strongly at the miserable weather forward to the challenge of into a 0-6 to 0-0 lead, with the resumption, but a goal from conditions to cheer them on. competing in the Trench Cup, scores from Fergal O’Sullivan, prolific full-forward ‘Pistol’ Hopefully, even greater where we will meet Limerick Gerald Byrne and Tadgh Boyle. Pete Feeney mid-way through numbers of supporters will IT in the first round. With A peach of a goal from the the second half put the game attend the final on what will be home advantage, the Blackhall ‘Longford Flyer’ Kevin Smyth, beyond doubt, as Blackhall a momentous occasion as the boys are confident of upsetting who chipped the ’keeper on the eventually ran out winners 2-09 team endeavours to create a the odds by beating one of the stroke of half time, meant to 1-06. little bit of history by winning pre-tournament favourites in Blackhall were deservedly ahead The team appreciated the the league and returning to what will, no doubt, be a very at the break on a scoreline of dedication of their fellow Blackhall with the cup. challenging match. 1-06 to 0-03. Blackhall students who braved Blackhall can also look Colm Mullen

www.lawsociety.ie 47 G In addition, the committee m Murran reported that 150 had provided some advice to the had provided some advice its e-com- Society in relation to and the munication strategy manner in which information was provided to the members. Force Client Care Task To practitioners had attended a client care seminar on 21 November 2006 and a further 95 practitioners were booked to attend the client care seminar to be held in Thurles during the following week. Further semi- nars would be provided throughout the country during Consideration the coming year. would also be given to the pub- lication of a standard precedent letter of engagement. Force E-Conveyancing Task Dan O’Connor noted that the report on e-conveyancing, spon- sored by the Department of Justice, Equality and Law Reform, had been approved by the government and a Law Reform Commission group was being formed to recommend the appropriate model for e-con- veyancing in Ireland. The expected design period was 12- 15 months, and it was intended to hold a series of seminars with various stakeholders. Gabriel Brennan, a member of the task force, had been Society’s invited to become a member of the Law Reform Commission group. The Council noted that what was being proposed was not e-registration, which had failed in other jurisdictions, but e-conveyancing in the real sense, in that every step of the process would be completed electronically. to produce leaflets in relation to to produce leaflets in relation the remainder. Civil Law Bain Report . The president had on legal services , arising as a conse- . cus curiae make a held that the power to vested ‘wasted costs’ order was the mas- only in a court and, as did not ter was not a court, he such have the authority to make orders. The director general con- It was noted that the echnology Committee had echnology Committee follow- Bain Report in Northern Ireland The president noted that the Bain Report quence of a review in Northern Ireland of legal services, had It had been published recently. concluded that the differences in size, nature, structure and regu- latory history between England and Northern Ireland was such that a Legal Services Commission, such as that pro- posed by the Competition was not only unnec- Authority, but would not add value essary, to the consumer and would be anti-competitive. firmed that the endorsed the existing regulatory system in Northern Ireland, which was broadly similar to that contained in the (Miscellaneous Provisions) Bill 2006 final Competition Authority’s report would be published on 11 December 2006. IT survey of the profession Andrew Cody briefed the Council on a series of recom- mendations from the T ing the IT survey of the profes- sion. The recommendations addressed a number of weak- nesses that had been identified The as a result of the survey. T produced leaflets in respect of four of these areas and intended ami- eport . In addition, the Defence (Amendment) 1,996 for the full rate and at 1,656 for those practising less solicitor in his practice, and it solicitor in his practice, would was agreed that the issue with the be explored further It was also noted that solicitor. that other there was a real risk not to colleagues would decide and there take on similar cases of copy- could also be a situation cat threats. Appointments to other bodies The Council approved the re- appointment of Gerard Doherty to the Circuit Court Rules Committee and the re-appoint- to the ment of Fiona Twomey District Court Rules Committee. The Council approved a request for the inclu- sion of the Society as a nominat- ing body to the Courts-Martial Rules Committee in the forth- coming (No 2) Bill Council approved the nomina- tion of Simon Murphy as the independent chairman of the Fitness to Practice Committee Council. of the Veterinary Practising certificate form and fee for 2007 The Council approved the prac- tising certificate form and fee for 2007. The fee for 2007 was set at € € than three years, which repre- sented an increase of 5.1% on the 2006 fee. Judicial review proceedings against decision of the Master of the High Court The Council noted the favourable decision handed down by the President of the High Court in the proceedings against the decision of the Master of the High Court in relation to costs, in which the Society had been joined as Report Council Society of Law 2006 held on 1 December meeting council r council JAN/FEB 2007 JAN/FEB The director general noted The Council noted that the The Council discussed the Death threats to a solicitor the The Council discussed to the media coverage in relation against a recent death threats pro- solicitor and the assistance The vided to him by the Society. Council recorded its admiration courage for the extraordinary given displayed by the solicitor, the outrageous circumstances in which he had been placed. While the media reports had described the matter as a threat to his life, it was understood that garda intelligence had revealed that preparations were being made to commit his murder. that the Garda Commissioner had been very responsive to the approaches made by the Society and had been in contact by tele- phone, as well as meeting with It appeared that, at the Society. client was the time the solicitor’s murdered, the threat level against the solicitor had been assessed as having actually following reduced. Obviously, that tragic event, the position had changed and, on garda advice, the solicitor was still out- side the jurisdiction. It was clear that such garda protection as was necessary would have to be provided to the solicitor on a 24- hour basis. profession had also been very supportive and sympathetic to the solicitors’ firm involved and recognised that this was an issue of principle that went beyond If threats the individual solicitor. to solicitors were to become were in fact, commonplace or, carried out, the rule of law would be fundamentally under- mined within the state. practical steps that might be taken by the Society to assist the www.lawsociety.ie LAW SOCIETY GAZETTE

BRIEFING 48 BRIEFING 49 will to PIAB, who are not not cheque to the solicitor, should cheque to the solicitor, be furnishedthe in good time to insurance company/respondent ( of set- involved in the payment tlement monies). JAN/FEB 2007 JAN/FEB www.lawsociety.ie Litigation Committee notes tor should act in accordance with the patient’s instructions. in taking those However, instructions, the solicitor must determine the whether or not patient is capable or not capa- ble of giving clear instructions. It is recognised that some patients detained under the Mental Health Act 2001 The person’s known past and present wishes and feelings and the facts that he or she would consider 2) egard should be had to the fol- not have the mental capacity to give clear instructions to their solicitor. duty to act “in the best inter- ests of the client” at all times. This includes a requirement to give the clients their best advice. In Mental Health Commission cases, this might include a realistic assessment of the likelihood of the patient being discharged or advice about possible steps towards discharge, but the client patient has the right not to accept that advice. In deciding what is in the patient’s best interests, r lowing: • 3) All solicitors have a general 4) or has LAW SOCIETY GAZETTE ’. This is for solici- based on a not practice individual repre- mererequesting letters that the sent to settlement cheque be It is suggested that, the solicitor. authority in all cases, a signed to receive cheque, together the with a clear direction from the client to the payer to forward the new role to the patient. best interests patient’s instructions Mental Health Act 2001 New role The wishes that should be repre- sented to the tribunal. A solici- now created a tors, which role is contract for legal services between a solicitor and a client The with full mental capacity. main issue that solicitors must be aware of is that solicitors’ con- tracts for legal services will be with the Mental Health Commis- sion and that payment for the services provided will be made by the commission in accordance with the scale approved by the commission and the Department of Finance. The solicitor’s duty is, to give however, sentation ‘Client’s instructions’ or ‘best interests’? Questions will be raised as to whether solicitors representing patients should act in accordance with the whether their role is to act in the patient’s ‘ a matter for the professional judg- taking into ment of the solicitor, consideration the following points: 1) It is the patient’s views or , an , solici- The committee would point The committee would The right to liberty is a con- eceive the settlement monies. GUIDELINES FOR SOLICITORS Practitioners are reminded of the importance of obtaining an authority from the client to r out that insurance companies have in the past disregarded about the performance of their legal representatives, solicitors have an obligation to ensure that proper standards are main- tained. stitutional imperative. Under the Mental Health Act 2001 Mental Health Act 2001 tors are in a new and evolving situation. In the past, solicitors were advised that, before they could accept instructions from a client, they had to be satisfied that that client had the neces- sary mental capacity to enter into a contract for legal services and also to understand the nature and implications of the transaction in which they were involved. If, during the course of it became clear such a retainer, that the client no longer had the mental capacity to continue to instruct the solicitor or to under- stand what was being done on his/her behalf, the solicitor had an obligation to terminate his/her services. involuntary admission will now automatically trigger a referral to a tribunal. Retainer and representation Since the enactment of the REPRESENTATION AT MENTAL HEALTH TRIBUNALS: HEALTH MENTAL AT REPRESENTATION guidelines are INSURANCE COMPANY SETTLEMENT CHEQUES/PIAB CHEQUES/PIAB SETTLEMENT COMPANY INSURANCE assist solicitors

he following intended to he Litigation Committee is he Litigation Committee awarein a growing that, Most of those involved in this The guidelines have been pre- epresentatives maintain the eviewing all involuntary admis-

T T who are involved in the repre- sentation of patients before the Mental Health Commission tri- bunals. The tribunals will be r sions of patients to hospital or psychiatric units. If the detention is not lawful, the patient will be discharged. area of work will be members of the Mental Health Commission panel and would therefore have fulfilled the selection criteria for membership of the panel (see below). Since representation of patients before the tribunals is not exclusive to panel members, these guidelines will also be of assistance to other solicitors. pared by a subcommittee com- prising members of both the Guidance and Ethics and the Family Law and Civil Legal Aid committees. The Law Society is keen to ensure that patients’ r highest possible standards in the preparation, presentation and conduct of clients’ cases before the tribunals. Since the patients may not raise concerns number of instances, insurance companies are forwarding settle- ment cheques directly to clients who rather than to the solicitors are on record for them. 1.3m; and € o hold a current practising o have professional indemnity o be a practising solicitor or o be a practising solicitor certificate from the Law Society of Ireland in the case of a solicitor or be currently subscribing to the Law Library, Ireland, case of a barris- in the ter; insurance to cover an individ- ual claim of up to barrister who has had no less than three years’ experience as a practising solicitor or barr- ister ending immediately before application. Legal Aid Committee) epresentative who proposed to (Guidance and Ethics •T •T •T At the time of application and at all times throughout their tenure, the legal representative be must practising. Any law firm who wished to participate in the scheme was requested to provide the above details for each legal r provide legal services on behalf of the firm All under the scheme. solicitors had to undergo quali- a fying interview. Mental Health Subcommittee Committee; Family Law and Civil site at www.mhcirl.ie. Mental Health Commission web- ative Panel is available from the Mental Health Legal Represent- Further information about the Solicitors who are concerned raining for solicitors equirement for solicitors to keep elevant and appropriate training, the information, then the solicitor should inform the client that he with intends to do so and discuss the the client whether he/she, to act. should cease solicitor, own posi- at any time about their conduct tion on any matter of and should contact the Guidance The Ethics Committee helpline. so that solicitor will be assisted informedhe/she can make an professional judgment on the par- ticular matter. T The Mental Health Commission provides training for solicitors on the panel and there is also a r their skills updated by undergoing r as required, in order to keep abreast of developments in the area. Solicitors who are on not the panel should themselves vol- untarily undertake similar training. Professional indemnity insurance It would be essential for all solici- tors who act as representatives for patients before the tribunals to ensure that they are appropriately covered. Selection criteria The selection criteria for member- ship of the Legal Representatives Panel were: It is for law ball ’07 law ball ’07 duty of confi- when acting for people >> >> Where the solicitor feels it is patient’s best interests. on the the tribunal to decide, beforebasis of the evidence it, from the patient and from all the professionals purporting to act in the patient’s best interests, whether the statutory criteria set out in the 2001 act are met. Confidentiality One particular matter that raises con- ethical and conduct issues cerns the solicitor’s dentiality whose capacity is impaired. The starting point must be that all solicitors are under a duty to keep the client’s affairs confidential. there are certainHowever, excep- which are main- tions to this duty, ly statutory exceptions or cases where the client has consented that informationbe dis- may closed. There are also extremely rare cases where nec- it may be essary to disclose information without the client’s consent when a client discloses to the solicitor that they intend to do serious harmto some- to themselves or body else. essential, and it is in the client’s best interest to disclose informa- tion confided in him/her by the client, the solicitor should first try to obtain the client’s agreement to disclosure. If the client does not agree but the solicitor still feels it is necessary to disclose JAN/FEB 2007 JAN/FEB in general, Mental Health . However, . However, important; of other peo- The views ple/professionals whom decides it is the solicitor appropriate or practicable to consult in the prepara- tion of the case; for Whether the purpose which any action or deci- sion with regard to the detention and treatment of can the patient was made be achieved in a manner less restrictive of that per- son’s liberty. • • The solicitor should avoid an It is acknowledged that there epresenting patients who are estrictive setting. ect answers to some of the ethi- The solicitor should prepare the patient evidence on behalf of the as in any other case, defending primarily the patient’s liberty and right to treatment in the least r overly collaborative approach with the tribunal, leading to too easy an agreement to detention in the ‘best interests’ of the patient. are no hard and fast rules or cor- r cal and other questions raised in r detained under the the solicitor’s role is to act on the patient’s instructions, advo- cating the patient’s views and wishes, even if these may be considered by the solicitor to be bizarre or contrary to the www.lawsociety.ie Act 2001 LAW SOCIETY GAZETTE

BRIEFING 50 BRIEFING 51 1/1/ , the , the , the 18/12/ Amends and Amends and ; provides for 23/12/2006 18/12/2006 JAN/FEB 2007 JAN/FEB to provide legisla- Industrial Develop- www.lawsociety.ie Companies Acts 41/2006 34/2006 Netting of Financial update 2006 the commission) of the 2003 act the commission) of the of to specify the provision the acts translation services for one of the Oireachtas from the other official language into commis- as a function of the sion, and provides for related matters. Date enacted: Commencement date: 2007 (per s13(3) of the act) akeover Panel, designated as Miscellaneous Provisions Act Companies and 2006 Irish Takeover Panel Act 1997 Irish Takeover Central Bank Act 1942 Consumer Information Act 1978 and the Contracts Act 1995 the implementation by regula- tions of directive 2004/109 on the harmonisation of require- ments to disclose information about issuers whose securities are admitted to trading on a reg- ulated market (EC transparency directive); gives the Irish T 2006 Investment Funds, Number: Contents note: extends the Industrial Development Act Number: Contents note: extends the ment Act 1993 tive authority for the transfer of staff from Shannon Free Airport Development Company Ltd to Forfás and to provide a statutory guarantee to the staff that their conditions of service and pay, pension arrangements shall not be diminished by virtue of the transfer. Date enacted: Commencement date: Com- 23/12/ LAW SOCIETY GAZETTE Amends and 24/12/2006 Gives the force Houses of the 23/12/2006 Europol Act 1997 39/2006 37/2006 , and provides for related Planning and Development the statutory borrowing limit the statutory borrowing Provides of Bord na Móna plc. of lands for the treatment former affected by mines and of such mines by rehabilitation lands and for the compulsory the pur- acquisition of lands for poses of such rehabilitation. Provides for the continued validity of planning or other gas and consents for electricity, other infrastructure develop- ments upon commencement of the (Strategic Infrastructure) Act 2006 matters. Date enacted: Commencement date: mencement order(s) to be made for ss4, 6, 8, 11 to 14 and 19 (per s1(2) of the act); 24/12/2006 for all other sections legislation legislation Act 2006 2006 Commission (Amendment) Number: Contents note: Europol (Amendment) Act Number: Contents note: of law to the protocols of 30/11/2000, 28/11/2002 and 27/11/2003 to the convention of 26/7/1995 on the establish- ment of a European Police Office and, for that purpose, amends the and provides for related mat- ters. Date enacted: Commencement date: 2006 Houses of the Oireachtas extends the Commission Act 2003 Oireachtas to provide, among other things, funding for the commission’s for the period 2007-2009. Amends section 4 (functions of , 11/12/ and the European 17 January 2007 by extend- Amends the Provides for 11/12/2006 Presidential Elections Presidential , the 40/2006 33/2006 . Provides for the 18 November 2006 – 2006 18 November Gas Act 1976 Electoral Act 1992 Provisions) Act 2006 Act 2006 Energy (Miscellaneous Number: Contents note: Electricity Regulation Act 1999 Electricity (Supply) (Amendment) Act 2001 functions of the Commission for Energy Regulation in rela- tion to an all-island energy market and in relation to elec- trical safety and the regulation of electrical contractors. Makes provision in relation to com- bined heat and power and elec- tricity interconnectors. Provides for the functions of the Commission for Energy Regulation regarding natural Provides for the full gas safety. opening of the natural gas mar- ket. Provides for the issue of capital stock in Bord Gáis Éire- ann. Provides for an increase in the Electoral (Amendment) Number: Contents note: at postal voting by prisoners elections and referenda. Amends the Act 1993 Act 1997 Parliament Elections and certain other enactments and provides for related mat- ters. Amends the table to rule 1(4) of the second schedule to the ing, solely in relation to the preparation of the register of electors that comes into force immediately following the reg- ister in force at the date of com- ing into operation of this act, certain time periods in connec- tion with the preparation of the register of electors. Date enacted: Commencement date: 2006 Com- 19/12/ ; makes and makes Appropriates Gives effect in 11/12/2006 19/12/2006 (the implementation 32/2006 35/2006 British-Irish Agreement Central Fund (Permanent (Amendment) Act 2006 Irish law to the supplementary agreement between the Irish and British governments consti- tuted by an exchange of letters dated 25/7/2006 and provides that the Act 1999 bodies agreement), as amended, shall be construed in accordance with that supplementary agree- ment. Date enacted: Commencement date: British-Irish Agreement Number: Contents note: mencement order to be made (per s4(3) of the act) provision in relation to deferred surrender to the Central Fund of certain undis- charged appropriations by ref- erence to the capital supply services and purposes as pro- vided for by section 91 of the Finance Act 2004 provision in relation to the financial resolutions passed by Dáil Éireann on 6/12/2006. Date enacted: Commencement date: 2006 Provisions) Act 1965 Contents note: to the proper supply services and purposes sums granted by the Appropriation ActNumber: 2006 ACTS PASSED Details of all bills, acts and Details of all bills, since statutory instruments cata- 1997 are on the library logue – www.lawsociety.ie area) (members’ and students’ – with updated information a bill has on the current stage reached and the commence- act. ment date(s) of each . (SI 3/9/ Children Criminal Appoints . to provide a . Appoints 1/12/ Set out the var- Set out the . These amend- Children Act 2001 Children SI 590/2006 SI 586/2006 SI 604/2006 by sections 156, 157 Child Care (Pre-School Child Care Criminal Justice Act 2006 2006 Order 2006 (Commencement) Order (Commencement) (No 3) (Amendments to Part 11) Justice Act 2006 ments relate to the functions and composition of the board membership of the Special Residential Services Board established under part 11 of the Act 2001 Children Act 2001 and paragraph 30 of schedule 4, of the respectively, Number: Contents note: 2006 as the commencement date for the amendments made to sections 227(1), 230 and 225(2) in part 11 of the Criminal Justice Act 2006 Number: Contents note: Number: Contents note: be com- ious requirements to carrying plied with by persons for the on pre-school services safety, purposes of securing the promot- health and welfare and of pre- ing the development all pre- school children. Revoke vious Services) Regulations Children Act 2001 29/11/2006 as the commence- ment date for section 121(d) of the statutory authority for the mak- ing of the (Amendments to Part 11) 2006 (Commencement) Order Commencement date: Section 121(d) makes a techni- cal amendment to section 2 (commencement section) of the Act 2001 Children 590/2006) listed above. 2007 for all regulations other 2007 for all regulations than regulation 3(2); 19/12/ 2006 for regulation 3(2), which revokes an earlier SI made in 2006 Var- Health ’, to pro- . Social Mental 2006 (SI 643/2006) (Amendment) Regulations 19/12/2006 (Pre-School Services) (No 2) as amended by the Child Care . Industrial Relations Circuit Court Rules 2001 Circuit Court Rules 2001 Mental Health Act 2001 ious – see act SELECTED STATUTORY INSTRUMENTS the family income supplement, the family adoptive benefit, maternity and funeral expenses death benefit, grant, wid- grant, bereavement pen- owed parent grant, state and dis- sion (non-contributory) schemes. ability allowance in the Provides for an increase below weekly earnings limit an which PRSI is not payable, ceiling increase in the income contribu- above which PRSI by tions are not payable contribu- employed or optional the budg- tors, as announced in et, and amends the Contributions Act 1979 vide for an increase in the amount of contributions payable for earnings over a cer- tain threshold. Also provides for an increase in the weekly and annual exemption thresholds for the health contribution levy. Date enacted: Commencement date: Industrial Relations Acts ices) (No 2) Regulations 2006 Child Care (Pre-School Serv- (SI 510/2001) to prescribe pro- ’, into the Industrial Relations (Miscellaneous ; 11/12/ 13/2/ 2007 European Insert a new rule 11, ‘ ’, in order 57 of the Insert a new order 72, ‘Appeals under the . Insert a new order 47A, ‘ Provides for 13/2/ 2007 rade Marks Act . Amends the Gives effect to Gives effect 13/2/007 . T , as amended by 11/12/2006 SI 10/2007 SI 12/2007 SI 11/2007 Social Welfare Consolidation Act 2005 36/2006 31/2006 Circuit Court Rules 2001 and sections 4 and 5 of the and sections 4 and 5 of orld Trade Organisation; gives orld Trade Circuit Court RulesNumber: (Social WelfareContents note: Appeals) 2007 (SI 510/2001) to prescribe Circuit Court procedures for appeals under the Circuit Court RulesNumber: (Industrial RelationsContents note: Acts) 2007 (SI 510/2001) to prescribe procedures in respect of enforcement of a decision of a rights commissioner and enforcement of a determi- nation of the Labour Court under the Circuit Court RulesNumber: (Mental Health)Contents note: 2007 Act 2006 Social Welfare ActNumber: 2006 increases in the rates of social insurance and social assistance payments and improvements in Contents note: Patents (Amendment) Number: Contents note: of the agree- certain provisions aspects of ment on trade-related rights intellectual property to (TRIPs agreement) annexed the the agreement establishing W further effect to the Patent Convention Intellectual Property (Miscellaneous Provisions) Act 1998 Date enacted: Commencement date: 2006 for ss1, 2(a), (f) and (g), 7, 10, 12, 15, 16, 18 to 25, 29(c)(ii), 31(c), 32, 34, 36 to 40 and 42 to 51; commencement order(s) to be made for all other sections (per s51(2) and (3) of the act) Patents Act 1992 section 75 of the 1996 Commencement date: Provisions) Act 2004 cedures for Circuit Court applications and appeals under the (Amendment) Act 2001 Commencement date: , or Health Act 2001 Welfare Consolidation Act 2005 Commencement date: JAN/FEB 2007 JAN/FEB into the 23/12/ 24/12/ 24/12/ and the Provides for Increases the , and provides 23/12/2006 24/12/2006 24/12/2006 Local Government 38/2006 42/2006 aluation Act 2001 2006 Improvement Districts) Act (Amendment) Act 2006 aggregate amount of any invest- ments, loans, grants or monies provided by the Irish Film Board under ss6 and 8 of the Act 1980 Irish Film Board repayments on foot of any guar- antee under s7 of that act. Date enacted: 2006 Local Government (Business Number: Contents note: V Contents note: Commencement date: the establishment of business improvement districts within the functional areas of rating authorities; enables business improvement district schemes, under which projects, services and works are carried out for the benefit of those districts, to finance the schemes by provid- ing for the imposition and col- lection of a levy on rateable properties situated in those dis- tricts; makes provision in rela- tion to local authority funding; amends the Acts 1925-2003 Number: Irish Film Board 2006 for ss1 to 6, 9, 10, 13, 14, 2006 for ss1 to 6, 9, 10, shall be 15 and 35; ss7 and 8 into oper- deemed to have come ation on 1/7/2005; commence- for all ment order(s) to be made the act) other sections (per s2 of the competent authority for the the competent the takeover bids purposes of 2004/25) under SI directive (dir the power to make 255/2006, effect to acts of the rules to give Communities, and European provides for related matters. Date enacted: Commencement date: 2006 for ss1, 7, 8 and 9; com- mencement order(s) to be made for remaining ss2 to 6 (per s9(4) of the act) for related matters. Date enacted: Commencement date: www.lawsociety.ie LAW SOCIETY GAZETTE

BRIEFING 52 BRIEFING 53 , . 1/1/ , as Sixth 1/1/ Appoints alue-Added Tax Made under V Appoints 1/1/ . Health Act 2004 Health Act 2004 JAN/FEB 2007 JAN/FEB www.lawsociety.ie Finance Act 1999 in the SI 651/2006 SI 652/2006 SI 581/2006 . Directive 2006/98/EC T directive. These regula- T measures to goods in tran- T measures to goods in Order 2006 Act 1972 in the adapts certain directives of the field of taxation by reason Rom- accession of Bulgaria and amend ania. These regulations the application of transnational VA sit between the two new acces- sion countries and Ireland. Commencement date: 2007 directive 2006/112/EC and directive Directive directive 2006/98/EC. replaces the sixth 2006/112/EC VA of tions provide for the updating the references to the Directive 2006 2006 Substituted Section 98A) (Commencement) Order (Complaints) Regulations (Commencement of 2007 Health Act 2004 Number: Contents note: 2007 as the commencement date for part 9 (ss45 to 55 com- plaints) of the Health Act 2004 Number: Contents note: part 9 of the provide for complaints by per- sons to the Health Service Executive and service providers and require the establishment and operation of procedures and arrangements intended to achieve a fair and reasonable resolution of such complaints. Commencement date: Finance Act 1999 Number: Contents note: 23/11/2006 as the commence- ment date for section 98A (con- ditions that the Revenue Commissioners may impose for relief from mineral-oil tax on biofuel used in approved proj- ects) of the substituted by section 81 of the Finance Act 2006 19/12/ 14/12/ LAW SOCIETY GAZETTE 1/1/2007 Give effect to Give effect Give effect to Give effect to Give effect to SI 663/2006 SI 656/2006 SI 623/2006 (SI 226/2006) consequent 2006 Involvement) Regulations Contents note: Contents directive 2003/35/ provisions of the environmen- EC amending (EIA) tal impact assessment regard- directive 85/337/EEC in the ing public participation of proj- assessment of the effects envi- ects having transboundary ronmental impact. Commencement date: 2006 Regulations 2006 Regulations 2006 Liability Company) (Employee (Value-Added Tax) Movement of Persons) (No 2) (European Public Limited- European Communities Number: Contents note: European Communities (Free Number: Contents note: directive 2004/38/EC on the rights of citizens of the European Union and their fam- ily members to move and reside freely within the territory of the member states. Replace the European Communities (Free Movement of Persons) Regulations 2006 to the accession of Bulgaria and Romania to the EU on 1/1/2007. Commencement: European Communities Number: Contents note: directive 2001/86/EC supple- menting the statute for a European company with regard to the involvement of employ- ees. Provide that a new European company (known as a Societas Europea) cannot be registered without first negoti- ating with employees on their involvement in the company, whether through information in cer- and consultation and/or, tain circumstances, participa- tion at board level. Commencement date: 2006 1/1/ 1/1/ 14/12/ Provides for Give effect to Give effect Give effect to ) to consider, dur- ) to consider, 2 SI 659/2006 SI 646/2006 SI 666/2006 SI 660/2006 2006 Regulations 2006 and Designs) Regulations Regulations 2006 Assessment) (Amendment) Judgments on Trade Marks Buildings) Regulations 2006 Investment Firms) (Environmental Impact (Enforcement of Community (Energy Performance of (Capital Adequacy of Number: European Communities European Communities Number: Contents note: the enforcement by the High Court of community judgments on trademarks and designs made by the community trade- mark and industrial design reg- istration office (OHIM). Commencement date: 2006 European Communities Number: Contents note: articles 5 and 7 of the EC ener- gy performance of buildings directive (2002/91/EC). Require the designers of large buildings (total useful floor area of more than 1,000 m European Communities Number: Contents note: Contents on the directive 2006/49/EC capital adequacy of investment firms and credit institutions (recast). Commencement date: 2007 ing the design stage, the instal- lation of alternative/renewable energy systems. This require- ment will apply to large build- ings for which planning permis- sion is applied for on or after 1/1/2007. Also require the building energy rating of new dwellings, new non-domestic buildings and existing buildings by certain dates. Commencement date: 2007, save where otherwise specified in the regulations ). 1/1/ 1/1/ Appoints Appoints 1/1/ Appoints 1/1/ Give effect to Permit certain to be employed SI 661/2006 SI 622/2006 SI 683/2006 SI 682/2006 SI 689/2006 Criminal Justice Act 1984 Employment Permits Acts 2006 Regulations 2006 Institutions) Regulations Miscellaneous Procedures) Order 2006 Order 2006 Order 2006 (Capital Adequacy of Credit 2006 (Prescribed Fees and 2006 (Commencement) (Commencement) (No 5) (Commencement) (No 4) directive 2006/48/EC relating to the taking up and pursuit of the business of credit institu- tions (recast). Commencement date: 2007, subject to transitional provisions, for all regulations other than regulations 32 and 51; 1/1/2008 for regulations 32 and 51 Number: Contents note: European Communities 2007 Number: Contents note: foreign nationals, as defined in the 2003 and 2006, in the state and set out the pro- cedures for making an applica- tion for such a permit. Commencement date: Employment Permits Act Number: Employment Permits Act Contents note: 2007 as the commencement date for all sections of the act. Number: Contents note: 2007 as the commencement date for part 11 (ss113-119, civil proceedings in relation to anti-social behaviour) of the act. Criminal Justice Act 2006 Number: note: Contents Criminal Justice Act 2006 as the commence- 14/12/2006 9(c) and ment date for section to (d) of the act (amendments arrest) section 4 (detention after of the G Appoints Appoints 1/2/ Prepared by the Prepared 45 per hour) € Law Society Library SI 647/2006 SI 605/2006 for a strategic consent process for a strategic types of strategic for certain development. infrastructure 60 for one hour € 2006 (Commencement) Order mencement Order) 2006 ransfer of Execution of Provisions) Act 2006 Sentences Act 2005 (Com- Sea Pollution (Miscellaneous Number: Contents note: 8/12/2006 as the commence- 1, part 3 ment date for part 20 to 33, (other than sections fourth the second, third and 34(c), and definitions in section appoints section 35) and part 4; 14/6/2007 as the commence- ment date for sections 20 to 33, the second, third and fourth definitions in section 34(c) and section 35. T Number: Contents note: 2007 as the commencement date for all sections of the act. 45 for one hour if payment on the 60 for 2 hours 200 per day (SI ’, in € spot and used before 4pm If invoiced (if greater than 1 hour, (if greater than 1 hour, € € Mental The Law Society’s partners in this initiative The Law Society’s are GlobalAirNet International Ltd. ■ ■ ■ ■ From 1 January 2007, the Four Courts consultation room will be a broadband ‘hotspot’ for wireless enabled laptops. No laptop? Simply use the internet kiosks in the Four Courts consultation room office. (With effect from 1 January 2007) (With effect HIRE RATES Mental Health Act 2001 the establishment of a strategic infrastructure division within An Bord Pleanála and the provision (SI 15/1986) to provide(SI 15/1986) for the (SI 15/1986) to prescribe proce- Rules of the Superior Courts 1986 3/1/2007 13/2/2007 Amend the Insert a new order 137, ‘ Substitute, for ruleSubstitute, for 5, new rules in order 5 and 5A 39 . 13/2/2007 SI 14/2007 SI 597/2006 SI 13/2007 Rules of the Superior Courts Rules of the Superior Courts 2007 Number: Contents note: Rules of the SuperiorNumber: Courts (MentalContents note: Health Act 2001) 2006 Rules of the Superior Courts (Statutory Applications and Appeals) Rules of the SuperiorNumber: Courts (Evidence)Contents note: 2007 of the (d), 12, 17 to 20, 22, 23, 25, 27, 29, 30, 32, 33 to 42, 47, 49, 50 and 51. These sections relate to Commencement date: dures and appeals under section 73 of the for applications operation of council regulationoperation of on co-operation (EC) 1206/2001 between the courts in the taking of evidence of the member states in civil or commercial matters. Commencement date: 8.30, Health Act 2001 JAN/FEB 2007 JAN/FEB the 21/12/ € 15/1986) as follows: by the insertion of a new rule 2A in order 12; by the insertion of a new rule 2A in order 13; and by the insertion of a new order ‘Procedure 84B, in statutory applications’, and a new order 84C, ‘Procedure in statutory appeals’, in order to prescribe pro- cedures for statutory and appeals. applications Commencement date: 8.65. . € Sets the Amend the (SI 600/2001) Planning and TEL: 01 668 1806 Appoints 31/1/ SI 684/2006 SI 685/2006 SI 667/2006 CONSULTATION ROOM CONSULTATION 3) Order 2006 2006 2006 (Commencement) (No Hourly Rate of Pay) Order (Strategic Infrastructure) Act Regulations 2006 2000 (National Minimum 2006, 31/1/2007 and 31/3/2007 for various regulations – see SI 2007 as the commencement date for ss3, 4, 5, 6(b), (c) and Commencement date: Planning and Development Number: Contents note: Development (Strategic Infrastructure) Act 2006 Planning and Development Number: Contents note: Planning and Development Regulations 2001 and provide for the implemen- tation of the Number: note: Contents rate national minimum hourly at of pay from 1/1/2007 National Minimum Wage Act and from 1/7/2007 at www.lawsociety.ie LAW SOCIETY GAZETTE

BRIEFING 54 BRIEFING 55 2,000 to the € Solicitors Acts [4012/DT63/05] JAN/FEB 2007 JAN/FEB www.lawsociety.ie The tribunal ordered that compensation fund, the Law Society of Ireland, as taxed by a taxing master of the High Court in default of agreement. ood, Straffan Road, ood, Straffan and agreed that he had deduct- settle- ed charges from a client’s ment (for personal injuries aris- ing out of a road traffic acci- dent) on the basis of a 10% solicitor/client fee. the respondent solicitor: a) Do stand censured, b)of Pay a sum c) Pay the whole of the costs of In the matter of Anthony M a solicitor practising Murphy, solic- as Anthony M Murphy, Straffan 2 The Green, itor, W Maynooth, Co Kildare, previ- ously at 10 Old Quarry, Co Dublin, and in the Dalkey, matter of the 1954-2002 Law Society of Ireland (applicant) Anthony M Murphy solicitor) (respondent On 17 October 2006, the Solicitors Disciplinary Tribunal found the respondent solicitor guilty of misconduct in his prac- , Society any files, papers or documents in his papers or documents Society any files, with this matter; possession in conjunction by the Society at meeting to be convened the named individ- which the complaint of ual will be considered. 2) That the respondent solicitor do attend a And the court awarded the applicant, the Law Society of Ireland, their costs of the motion and order herein the respondent as against ascertained.solicitor when taxed and Solicitors (Amendment) Act LAW SOCIETY GAZETTE Solicitors Solicitors Acts 1954-2002 , as amend- The tribunal ordered that 2005 in accordance with the requirements of those regula- tions. the respondent solicitor do stand censured. In the matter of John W Synnott, a solicitor carrying on practice under the style and title of John Synnott & Solicitors, at Dame Company, House, 24 Dame Street, Dublin 2, and in the matter of the [3035/DT40/06] Law Society of Ireland (applicant) John W Synnott solicitor) (respondent On 3 October 2006, the Solicitors Disciplinary Tribunal found the respondent solicitor guilty of misconduct in his prac- tice as a solicitor in that he was in breach of the provisions of section 68(2) of the 1994 Solicitors (Amendment) Act which states that a solicitor shall not act for a client in connection with any contentious business on the basis of calculating charges on a percentage basis. In the circumstances of this case, the solicitor acknowledged : Solicitors Professional 500 to the € [2586/DT79/ espondence from the Society in relation to On Friday 31 MarchOn Friday 31 by consent, it was 2006, ordered of the to section 10A(1) pursuant Solicitors (Amendment) Act 1994 appropriately cor- in a timely manner to the r the subject the complaint of an individual, the Society dated matter of a complaint to 18 March and to furnish 2005, to the 1) That the respondent solicitor do respond (Amendment) Act 2002 ed by section 13 of the ed by section 13 compensation fund, the Law Society of Ireland, as taxed by a taxing master of the High Court in default of agreement. The tribunal ordered that the respondent solicitor: a) Do stand censured, b)of Pay a sum Acts 1954-2002 05] Law Society of Ireland (applicant) James P O’Neill solicitor) (respondent On 3 October 2006, the Solicitors Disciplinary Tribunal found the respondent solicitor guilty of misconduct as a solici- tor in that he is in breach of the provisions of the Indemnity Insurance Regulations the provision and, in particular, of statutory instrument number 312 of 1995, as amended by statutory instrument number 362 of 1999, having failed to obtain run-off cover for the year c) Pay the whole of the costs of In the matter of James P O’Neill, a solicitor of Lindos, Road, Rath- Mount Venus farnham, Dublin 14, and in the matter of the Solicitors Acts 1954- The High Court High The 2006 Solicitors Acts Solicitors (Amendment) Act 1994 Solicitors’ Accounts for the protection , SI no 421 of Solicitors’ Accounts [3381/DT18/06]

. and showed disregard for Solicitors’ Accounts Regula- ) of the

(respondent solicitor) John Martin Carr (applicant) of clients and the public. Failed to ensure there was furnished to the Society an report for the accountant’s year ended 31 January 2005 within six months of that date, in breach of regulation 21(1) of the Regulations Through his conduct, show- ed disregard for his statutory obligations to comply with the tions statutory obliga- the Society’s tion to monitor compliance with the Regulations 2001; Law Society of Ireland In the matter of John Martin Carr, solicitor. In the matter of John Martin Carr, In the matter of the No 15 SA Friday 31 March 2006 Before the President

2002 Solicitors DisciplinarySolicitors Tribunal On 28 September 2006, the Solicitors Disciplinary Tribunal found the respondent solicitor guilty of misconduct in his prac- tice as a solicitor in that he had: a) 1954-2002 Law Society of Ireland (applicant) Sean Grennan solicitor) (respondent b) In the matter of Sean Grennan, a solicitor of Sean Solic- Grennan & Company, itors, 32 North Main Street, Naas, Co Kildare, and in the matter of the These reports of the outcome of Solicitors Disciplinary inquiries are Law Society published by the Tribunal of Ireland as provided for in section 23 (as amended by section 17 of the 2002 , and Solicitors’ Solicitors’ 2,500 to the € for the protection Solicitors’ Accounts G of clients and the public. compensation fund, the Law Society of Ireland, as taxed by a taxing master of the High Court in default of agreement. 2004 within six months of 2004 within breach of regula- that date, in of the tion 21(1) no 421 statutory instrument of 2001; Through his conduct, his showed disregard for com- statutory obligations to ply with the Accounts Regulations the showed disregard for statutory obligation Society’s with to monitor compliance the Regulations Accounts Regulations 2001 Accounts Regulations The tribunal ordered that the respondent solicitor: a) Do stand censured, b) Pay a sum of c) Pay the whole of the costs of b) Solicitors Acts 1954- 600. € [2472/DT41/06] win room:______Double room:______be confirmed by email. cheque(s). March 2007. Cancellations after that date will not qualify for a refund. the following options for your preferred accommodation (the SYS cannot guarantee that delegates will be allocated their preferred choice). If nothing below is indicated, discretion. rooms will be allocated at the committee’s T The tribunal ordered that The tribunal made no order The tribunal was furnished to the Society report for the an accountant’s year ended 31 December a timely manner or at all. a timely manner solicitor do the respondent and advised. stand admonished as to costs. Francis In the matter of practis- McArdle, a solicitor ing as McArdle & Associates Dundalk, at 10 Roden Place, matter Co Louth, and in the of the 2002 Law Society of Ireland (applicant) Francis McArdle solicitor) (respondent On 24 October 2006, the Solicitors Disciplinary Tribunal found the respondent solicitor guilty of misconduct in his prac- tice as a solicitor in that he: a) Failed to ensure that there Saturday 24 March 10.00-12.00:14:00:19.00-20.00: Lectures* 20.00-late: Pre-dinner drinks reception Sunday 25 March 12.00: Check out Golf, health centre, spa treatments** band Black-tie gala dinner, 5. the back of the Names of delegates to whom the cheque(s) apply must be written on 6. on or before Friday 9 Cancellations must be notified to [email protected] 7. Please tick one of There are a limited number of twin rooms and/or double rooms. APPLICATION FORM APPLICATION Solicitors Acts 1954- **Remember to book your spa treatments well in advance [5022/DT10/06] them, as taxed by a taxing them, as taxed High Court in master of the default of agreement. SOCIETY IRELAND SOLICITORS YOUNG OF Law Society of Ireland (applicant) Michael Crawford solicitor) (respondent the On 24 October 2006, Solicitors Disciplinary Tribunal found the respondent solicitor guilty of misconduct in his prac- tice as a solicitor in that he failed to respond to the corre- and in spondence of the Society, particular the letters dated 4 May 2005, 19 May 2005, 1 June 2005, 22 June 2005, 6 July 2005, 19 July 2005, 29 July 2005, 15 August 2005, in In the matter of Michael In the matter a solicitor practis- Crawford, & ing as Michael Crawford Company at Manorhamilton, matter Co Leitrim, and in the of the 2002 I enclose cheque(s) payable to the Society of Young Solicitors in the sum of Young I enclose cheque(s) payable to the Society of (SI PLEASE USE BLOCK CAPITALS.PLEASE USE BLOCK PER ENVELOPE. PER ROOM ONE FORM JAN/FEB 2007 JAN/FEB for the *www.sys.ie Solicitors’ Solicitors’ *Time spent attending the above lectures may be counted when assessing the completion of your CPD requirements spent attending the above lectures may be counted when assessing the completion of your CPD *Time 2,000 to the Application to be sent to: Elizabeth Bradley, Society of Young Solicitors, A Solicitors, Young Society of Application to be sent to: Elizabeth Bradley, & L IFSC, Dublin 1. Quay, North Wall Goodbody, € Name 1:Firm 1:Email:One contact address: Phone (office): Name 2: Firm 2: Email: Phone (mobile): 23, 24, 25 MARCH 2007 AT23, 24, 25 MARCH 2007 HOTEL, NEWCASTLE, COUNTY THE SLIEVE DONARD DOWN accordance with the procedure set out below. tion, gala dinner and conference materials. All applications must be sent by ordinary prepaid post and for the conference fee. only applications exhibiting a postmark dated FRIDAY 16 FEBRUARY 2007 or after will be considered. Rejected applications will be returned. Successful applications will COVERED WILL BE AVAILABLE ON THE SYS WEBSITE ON THE SYS WILL BE AVAILABLE COVERED FULL DETAILS OF THE SPEAKERS AND TOPICS TO BE TO OF THE SPEAKERS AND TOPICS FULL DETAILS SPRING 2007 CONFERENCE Friday 23 March 18.00-21.30:21.00-late: Registration drinks in the bar Welcome NOTES 1.2. Persons wishing to attend must apply through the SYS. basis, in Accommodation is limited and will be allocated on first-come, first-served 3. breakfast), recep- Conference fee is €300 pps for two nights accommodation (with 4. with cheque(s) One application must be submitted per room per envelope together report for the year ended 30 report for the a timely manner June 2004 in breach of regula- or at all, in of the tion 21(1) Accounts Regulations 2001 number 421 of 2001); through his The solicitor, conduct, showed disregard for his statutory obligations regula- to comply with the tions and showed disregard statutory for the Society’s com- obligation to monitor pliance with the Accounts Regulations protection of the clients and the public. compensation fund, the Law Society of Ireland or any person appearing before tice as a solicitor in that he: tice as a solicitor a) accountant’s Failed to file his b) The tribunal ordered that the respondent solicitor: a) Do stand censured, b) Pay a sum of c) Pay the whole of the costs of www.lawsociety.ie LAW SOCIETY GAZETTE

BRIEFING 56 57 , BRIEFING , Petty Child Courts [FL13024] . , High Court, Courts (No 3) Act JAN/FEB 2007 JAN/FEB www.lawsociety.ie and s1(7)(a) of the , s1(7)(a). Petty Sessions (Ireland) Act Petty Sessions (Ireland) plained of and the obtaining of evidence, the defendant had not been prejudiced thereby; of fact there was a finding that the garda had formed it the necessary opinion, sub- could not be vitiated by sequent events. Quirke J answered the ques- ime limited update 3) circumstances where In the DPP v Penny Judge Dunne, 27/7/2006 [FL13013] T Case stated – whether summonses issued outside time limited – Sessions (Ireland) Act 1851 s10(4) – 1986 This was a case stated on the seeking application of the DPP, the opinion of the High Court as to whether the district judge was correct in law in striking out certain summonses on the ground that they had been issued outside the time limited by the provisions of s10(4) of the 1851 (No 3) Act 1986 tion asked by the district judge in the negative, holding that the summonses were lawfully issued pursuant to the provi- sions of the 1986 act and the district judge had jurisdiction to deal with them. DPP (prosecutor/appellant) v Thomas (accused/respondent) High Court, Mr Justice Quirke, 2/10/2006 Custody – application for recog- Children nition and enforcement of resi- – dence and contact order Abduction and Enforcement of AMILY LAW AMILY F LAW SOCIETY GAZETTE firstlaw Ms Justice Dunne answered requested one to do an ille- gal act did not, of itself, amount to authority to an individual to do that illegal act; link between the act com- whence he was arrested. At the whence he was arrested. in conclusion of the evidence accused the District Court, the that he applied for a direction grounds be acquitted on the unlaw- that his arrest had been that the ful by reason of the fact pur- arresting garda, having opinion portedly formed the that the accused had commit- ted an offence contrary to s49 of the 1961 act, as amended, then required him to drive his car in circumstances that deprived him of his liberty and that the requirement was one to commit a criminal offence. It was also contended that the illegality associated with the arrest tainted the evidence The dis- obtained thereafter. trict judge refused the applica- tion, but agreed to state a case to the High Court as to (a) whether the arrest of the accused was lawful in circum- stances where the arresting garda, having stated that he had formed the opinion that the accused had committed an offence contrary to s49 of the 1961 act, then required the accused to continue driving; and (b), in the alternative, whether the requirement that the accused continue driving sufficed to vitiate the garda’s opinion that the defendant had committed an offence contrary to s49. the first question in the affir- mative and the second in the negative, holding that: 1) The fact that a garda has 2) As there was no causative Compiled by Flore Bouhey for FirstLaw High , . Statute of Road Traffic News fromIreland’s online legal awareness service [FL12980] , as amended. The and had not appropriately The second, third, fourth The second, third, Quirke J dismissed the and fifth-named defendants plaintiff’s sought to dismiss the claim for personal injuries for, among other things, sexual on the abuse against the state and grounds of inordinate The defen- inexcusable delay. the plain- dants contended that tiff did not benefit from the provisions of the Limitations (Amendment) Act 2000 explained the delay in prosecu- tion. case, holding that the plaintiff’s death of many relevant wit- nesses and the absence of docu- mentation entailed that the capacity of the state to defend itself had been seriously preju- diced. A real and substantial risk of an unfair trial would result otherwise. O’Dwyer v McDonnell Court, Mr Justice Quirke, 2/10/2006 Drink driving Evidence – validity of opinion of – whether direc- garda arresting to commit illegal act tion by gardaí affects validity of evidence or pros- formingecution – garda opinion that accused intoxicated to such extent that incapable of driving – subsequently directing garda defendant to drive car to side of road – whether amounting to to commit illegal act – direction whether vitiating arrest The accused was stopped by a member of the gardaí and informed that he had formed the opinion that the accused had committed an offence con- trary to s49 of the Act 1961 arresting garda then directed the accused to drive his car to the side of the road and stop, , habeas Statute of . – return – Supreme Court – return – Supreme (plaintiff) v Governor of [FL13088]

rd MacMenamin J held that the CRIMINAL LAW Portlaoise Prison (defendant) High Court, Mr Justice MacMenamin, 31/7/2006 2006 Delay – sexual Practice and procedure abuse – civil proceedings – test to of proof on be applied – burden – whether applicant – prejudice delay excusable – Limitations (Amendment) Act 2000. warrant had merely been sub- ject to technical rectification. The governor of a prison was not required to attend in court. There had been no major departure from the rules of natural justice here. Wa Appeal – Criminal procedure The applicant successfully applied for relief pursuant to article 40.4.2 of the Constitution and the decision was appealed to the Supreme Court and was dismissed. the Supreme Court However, remitted to the High Court matters relating to the return on behalf of the governor and the time since the applicant was last The applicant placed in custody. contended that he had been deprived of sight of the return and the opportunity to make meaningful observations. A newly authenticated copy of the warrant for the detention of the applicant was also challenged. The applicant had been placed in custody in 2003. corpus neces- appeal – warrant – whether sary for governor of prison to be in of the court – article 40.4.2 Constitution , High Court, Ms 250,500 together with 250,500 together € G Laffoy J dismissed the plain- Laffoy J dismissed tiff’s claim, holding that the claim, tiff’s for compensa- claim plaintiff’s of repayment of the tion by way sum of means of enforcing interest as a miscon- the undertaking was to ceived. It was reasonable that the infer from the evidence with defendant did not comply it the undertaking. However, defen- was still possible for the purpose dant to fulfil the overall his ulti- of the undertaking and that obli- mate obligation, and if there gation was carried out, the court would be no relief that could give to the plaintiff in the exercise of its inherent jurisdic- tion. Furthermore, the relief sought by the plaintiff was not commensurate with compensat- ing the plaintiff for the loss it suffered as a result of the defen- failure to implement his dan’s obligation pursuant to the undertaking. Mortgage Bank of Ireland Bank (plaintiff) v Coleman (defendant) 6/11/2006 Justice Laffoy, [FL13130] The information contained here Legal is taken from FirstLaw’s Service, Awareness Current published every day on the internet at www.firstlaw.ie. For more information, contact bartdaly@ Merchant’s or FirstLaw, firstlaw.ie Dublin 8, Quay, Court, Merchant’s tel: 01 679 0370, fax: 01 679 0057. 250,500 in contravention of esidential mortgage. Solicitor’s undertakingSolicitor’s – mortgages – Compensation plaintiff was entitled to whether the defendant be compensated for the to fulfil an under- failure solicitor’s to a taking made by him in relation r as the The defendant acted in the solicitor for a borrower property purchase of a certain to and in the mortgage thereof a loan the bank as security for borrower. from the bank to the as solic- In pursuance of his role the defen- itor for the borrower, dant gave an undertaking to the bank, essentially promising to furnish the bank with good secu- rity on the mortgaged property in accordance with the terms of which was the offer letter, The accepted by the borrower. defendant accepted that he was in breach of the undertaking, in that he failed to perfect the bor- securi- title or the bank’s rower’s By virtue of the borrower’s ty. default in meeting the install- ment repayments to the bank, the bank instituted proceedings by way of special summons seek- ing, amongst other reliefs, com- pensation for loss suffered as a actions result of the defendant’s in releasing the sum of € the undertaking and without the authority of the bank. The plaintiff did not seek to recover the debt from the borrower. PRACTICE AND PRACTICE PROCEDURE , . were repug- Family Law High Court, Mr Judicial Separation , quashing all the . Judicial Separation and Constitution of Ireland Constitution Family Law (Maintenance [FL13038] and sought a declaration – McMenamin J declined the s3(1) of the s3(1) of the and Family Law Reform Act and Family 1989 article 43 sought to impugn The plaintiff of s5(1)(a) the constitutionality of the Act of Spouses and Children) 1976 (inclu- that s5 and ss12 to 21 sive) of the (Divorce) Act 1996 The nant to the Constitution. order of plaintiff also sought an certiorari orders made in the matrimoni- himself al proceedings between and his wife, insofar as they impinged on his constitutional property rights. In a second set of proceedings, the plaintiff sought similar declarations with regard to s2(1)(f) and s3(1) of the Family Law Reform Act 1989 The proceedings were consoli- dated. relief sought, holding that, not only were the provisions of the 1996 act of not unconstitution- al, but they were in fact man- dated by the Constitution itself. The provisions of the 1996 act with regard to finan- cial relief were in harmony with the terms of the relief that might be granted by the court under the 1989 act. B(L) (plaintiff) v Ireland (defendant) Justice MacMenamin, 7/7/ 2006 – (the , arti- ), as JAN/FEB 2007 JAN/FEB , hold- . – order of – order and s5 and Family Law [FL13050] Family Law High Court, . , Child Abduction and quashing all the orders , for the recognition European Convention on European Finlay Geoghegan J made The applicant sought an The applicant Judicial separation Challenge to constitutionality of s5(1)(a) of (Maintenance of Spouses and Children) Act 1976 ss12 to 21 inclusive of R(RGH) (applicant) v G(LM) (respondent) (Divorce) Act 1996 Custody Orders Act 1991 Custody Orders Convention Luxembourg 11 cles 7, 10 and of Recognition and Enforcement Decisions Concerning Custody of of and on Restoration Children Custody of Children Luxembourg Convention the resi- and enforcement of made dence and contact order in the Oxford County Court on 22 July 2004. an order under article 7 of the Luxembourg Convention ing that the respondent had failed to establish a ground for refusal under article 10 of the Luxembourg Convention Miss Justice Finlay Geogh- egan, 19/7/2006 certiorari made in matrimonial proceedings insofar as they impinge on constitu- tional property rights – challenge to constitutionality of s2(1)(f) and order pursuant to article 7 of order pursuant the jurisdic- implemented in this tion by the Orders Enforcement of Custody Act 1991 www.lawsociety.ie LAW SOCIETY GAZETTE

BRIEFING 58 BRIEFING 59 EC Competition Act JAN/FEB 2007 JAN/FEB www.lawsociety.ie . No injunction was , McKechnie J stated prohibits agreements and article 81(1) of the legal The authority subsequently Article 81(1) of the eaty Tr between undertakings, deci- sions by associations of under- takings and concerted practices that may affect trade between member states and that are anti-competitive by object or effect. Any agreement or deci- sion prohibited by article 81(1) is automatically void. by way of certification (no by way of certification rules) breach of competition condi- or licence (efficiency tions satisfied). However this was abolished under the 2002 act, which came into force on 1 July 2002.) investigated the proposals and issued proceedings against BIDS in June 2003. The authority sought a declaration that the proposals were pro- hibited and void by virtue of section 4 of the 2002 EC Treaty sought because the parties gave undertakings to the authority to suspend imple- mentation of the proposals pending the outcome of the action. The court’s approach Although the authority alleged that BIDS had acted in breach of both section 4 of the 2002 act and article 81 of the EC Treaty early in his judgment that, in “this case is truly an his view, article 81 case and not one requiring independent consid- eration under s4 of the 2002 act”. eur LAW SOCIETY GAZETTE Competition Act , the authority could It was further agreed that From the outset, the mem- once-off basis and would be once-off basis and would implemented over a 12-month of reduc- period with the aim ing processing capacity by 420,000 cattle per year (approximately 25% of total capacity). Processors that left the industry would sign an exit agreement requiring them to decommission their plants for the purposes of beef process- ing for a period of five years and would agree not to re- enter the industry for a period of two years. those remaining in the indus- try would compensate the goers by way of levies. The proposed levy scheme would require a payment by stayers of £2 per head of cattle up to the level of the individual traditional kill and processor’s £11 per head for cattle killed in excess of the traditional kill. bers of BIDS were aware that the rationalisation scheme could raise competition con- cerns. They met with the authority shortly after BIDS’ establishment to ascertain its views on the rationalisation scheme and to seek the approval for the authority’s of in view proposals. However, impending legislative changes, the authority took the view that economic operators, such as BIDS, would have to self- assess such agreements. (Under the 1991 engage with parties in relation to proposed agreements and decisions and give clearance Report of expressly and found Report of the . It recom- McKinsey Report News fromthe EU and International Affairs Committee , published in 1999, Under the scheme, ‘goers’ The subsequent the Food Industry Development Group referred to the findings of overcapacity in the In beef-processing industry. addition, the 1999 Force Beef Task accepted the findings of the McKinsey Report that “there is at present under- used slaughtering capacity in the beef industry and that there are considerable benefits to be gained from a rationali- sation process”. The BIDS proposals BIDS was established in May 2002 for the specific purpose of implementing the recom- mendations of these reports. Following a series of meet- ings, the members arrived at a set of proposals for a rational- isation scheme. and ‘stayers’ would be identi- fied. ‘Goers’ were defined as BIDS members who would voluntarily agree to exit the beef industry under the pro- gramme and ‘stayers’ were defined as BIDS members who would not exit the beef industry under the pro- gramme. It was agreed that the scheme would be on a 1998 and became know as the 1998 and became know McKinsey Report mended a radical rationalisa- tion of the beef-processing noting that proces- industry, sors faced catastrophic out- comes over the medium term as a result of huge overcapaci- ty in the industry. Edited by TP Kennedy, Director Law Society of Ireland of Education, Edited by TP Kennedy, st Preparing the Preparing , was published in

n 27 July 2006, the High a Court rejected

As this judgment was hand- Century Background In 1997, Enterprise Ireland commissioned a report into final The the Irish beef sector. report, entitled Irish Beef Sector for the 21 Competition Authority chal- Competition Authority lenge against proposals to rationalise the beef-processing The action was taken industry. against the Beef Industry Development Society (BIDS), an industry grouping estab- lished for the specific purpose of rationalising the industry, and Barry Brothers Meats Limited, which had entered into an agreement with BIDS. The second-named defen- dant, a member of BIDS, took no active part in the proceed- case was ings. The authority’s based on its belief that the rationalisation scheme would result in anti-competitive effects, including increased beef prices to consumers. ed down by McKechnie J, the judge in charge of the High Court Competition List, it is instructive as to the level of economic analysis required by the High Court to prove a breach of competition rules. In this case, McKechnie J was scathing in his opinion of much of the economic evi- dence advanced by the expert economists on both sides, referring to outdated evi- dence, mistaken beliefs and insufficient analysis. O

[2006] IEHC 294 [2006] Competition Authority v BIDS It was in this regard that It was in this regard The authority claimed that 1994 L131/15), the court con- 1994 L131/15), the proposals did cluded that competition by not restrict object. by effectRestriction to a The court turned then the sub- detailed analysis of of the missions in support objec- proposition that the restric- tionable features were effect. tive of competition by critical McKechnie J was most put of the economic evidence this is before him. Perhaps best summed up at paragraph 103 of the judgment, where he states, as a general comment in relation to the evidence on that “it would not be capacity, unfair to point out that in this particular regard the evidence of both economists lacked solid foundation”. He went on to note that “both sides relied a good deal on theoretical and qualitative arguments without being in a position to advance quantitative evidence in sup- port of their respective posi- tions”. McKechnie J suggest- ed that this could be explained by the fact that “a great deal of the evidence given on this point, and indeed on the entirety of the case, was based on data which largely ended in 1997”. the planned reduction in capacity would cause capacity shortage in the peak demand by as noted months. However, the court, the evidence pre- sented by the authority was partially based on the mistak- en belief that a particular pay- ment to farmers (the desea- sonalisation premium) was still in existence, when in fact it had been discontinued. In contrast, the BIDS economist submitted that 75% of the existing capacity should be sufficient to serve peak the court demand. However, noted that this allegation was not supported by updated quantitative evidence. The in (OJ per se (OJ 1984 Dutch Bricks Rules of the Superior – and, accordingly, was – and, accordingly, The reduction in process- ing capacity, The imposition of levies, and The restrictive covenants in exit agreements. capacity constituted a limita- into tion of output. Taking account relevant findings of the commission, including Synthetic Fibres L207/17) and al market for processed beef, al market the wide varia- the judge cited price throughout tion in the domestic pref- Europe and home-produced erence for noted that the beef. He also traded fact that beef can be was not quite easily in the EU of national counter-indicative to markets. It is interesting relied in note that the court evi- part on the “credible non-eco- dence” adduced by had been nomic witnesses who industry involved in the beef for many years. Competition Authority allegations case rested on The authority’s three features of the rationali- sation scheme that it found to be objectionable: • • • The court had to consider whether these features were restrictive of competition by either object or effect. It is worth noting that the court appointed its own expert economist in this case – as per- mitted by order 63A, rule 23(1), Courts in a strong position to assess the economic evidence pre- sented by the parties. Restriction by object As regards restriction by assessment object, the court’s was brief. McKechnie J noted that there was no question in the BIDS minutes, or indeed the proposals, of price fixing or market sharing. He further noted that he could not find that a reduction In his judgment, Although not criticising the The court was critical of authority, while the onus of while the onus authority, respect of article proof in the party seeking to 81(3) is on in this instance avail of it, principle was of BIDS. This importance here, as particular case the outcome of the of the turned on the failure its bur- authority to discharge den of proof. it clear McKechnie J made activi- that he considered the be “the ties of BIDS to usual- antithesis of how cartels he ly operate”. In particular, said that, from the beginning, BIDS had behaved with open- ness and transparency in the disclosure of the rationalisa- tion scheme and noted that the rules of BIDS specifically stated that it would be neces- sary to comply with competi- tion legislation. authority for taking the view that BIDS should self-assess the rationalisation agreement, McKechnie J did question whether the action would have come before the court if “a more fulfilling engagement was possible” between the par- ties, particularly in light of the conduct of BIDS. Relevant market The court found that the rele- vant product market was divided into the upstream market for the procurement of cattle for slaughter and de- boning and the downstream market for the sale of processed beef. The relevant geographic market was found to be national in both cases. the BIDS economist, who, on day six of the hearing, intro- duced a new argument that the downstream market ought to be considered pan- European. The court rejected this contention on the basis that it was “advanced without any sustainable support from any reliable source”. In sup- port of his finding of a nation- JAN/FEB 2007 JAN/FEB Certain provisions, known Certain provisions, many coopera- However, Article 81(3) provides an The onus of proof in as ‘hardcore restrictions’, as ‘hardcore price fixing, which include or sharing of output limitation customers, clearly market or object the restric- have as their tion of competition. such Agreements containing to provisions are presumed on the have negative effects it is not market and therefore actual necessary analyse their in the effects on competition order to relevant market in establish a breach. tion agreements between undertakings do not have as their object the restriction of competition. Therefore, it is necessary to conduct a detailed economic analysis to establish whether the agree- ment has a restrictive effect on discharge the competition. To burden of proof under article 81(1), the effects analysis must show that the agreement is likely to produce negative market effects as to prices, output, innovation or the vari- ety or quality of goods and services. escape clause for agreements that would otherwise be pro- hibited by article 81(1). If an agreement meets the four cri- teria set out in article 81(3), then article 81(1) will be deemed inapplicable to it. the economic Specifically, benefits of the agreement must outweigh its restrictive effects on competition; the economic benefits or cost savings must favour the consumer; the agreement must not contain any dispensable restrictions; and it must not substantially eliminate competition. The final criterion requires an analysis of the sources of com- petition in the market and the impact of the agreement on any competitive constraint. respect of a breach of article 81(1) is on the party alleging such a breach, in this case the www.lawsociety.ie LAW SOCIETY GAZETTE

BRIEFING 60 BRIEFING 61 G JAN/FEB 2007 JAN/FEB www.lawsociety.ie accepted that there was accepted and that nat- market failure would not ural competition to eliminate be sufficient – therefore excess capacity of the test was this element satisfied; Elimination of competi- tion: it was also accepted would that the proposals short- not result in capacity suffi- age and therefore a cient level of competition mar- would remain in the ket. This judgment is essential Sinéad Hayes is a solicitor with Eugene F Collins. • Current position The authority announced in October 2006 that it intends to appeal the findings of McKechnie J to the Supreme any appeal is Court. However, unlikely to be heard until at least late 2007. In the mean- time, the rationalisation scheme has not been imple- mented. reading for any practitioner preparing for competition proceedings in the High a doubt, up- Court. Without to-date qualitative and quanti- tative economic evidence is required in order to discharge the burden of proof in respect of both article 81(1) and arti- cle 81(3). This must be sup- ported by a credible economic analysis of the likely anti-com- petitive effects on the relevant it seems clear market. Finally, that the court requires each party to focus not just on dis- charging its own burden of proof, but also on presenting strong rebuttal evidence. LAW SOCIETY GAZETTE of cost savings that The following is a summary Economic benefit: the economist made no serious attempt to identify the quantum would be generated by the rationalisation scheme; Consumer welfare: without knowing the size of effi- ciency gains it is impossible to evaluate whether the consumer will receive a ‘fair’ share of the benefit; Indispensability: it was rationalisation scheme would rationalisation number of com- reduce the the question was petitors, would reduce com- whether it considering this petition. In court noted sev- question, the believed eral reasons why it not be competition would that the reduced, including that market is fragmented, for there are other avenues a entry beyond developing that the green field, and cred- ‘goers’ were not the only As a ible market entrants. that the result, the court held authority had failed to demon- strate by credible evidence that the objectionable features of the arrangements were like- to as a matter of probability, ly, have appreciable anti-compet- itive effects. Therefore its action failed. Article 81(3) Although a moot point, as the authority had failed to estab- lish a breach of article 81(1), McKechnie J briefly reviewed the arguments advanced by BIDS in respect of article 81(3). Here too he found the economic evidence deficient. of the findings in respect of each element of the test: • • • lawsociety.ie The final feature to fall for Again, the court rejected authority claimed that the authority of levies would imposition negative exert a significant prices, leading to pressure on in Ireland and price rises the court Britain. However, noted that the authority’s to offer economist was unable way of any evidence, even by price estimate, of the likely did not impact of the levy and the like- give his opinion as to would ly output reduction that The be caused as a result. of court pointed to a number an reasons why it considered increase in the marginal costs of processors remaining in the industry might not lead to sig- nificant price increases in the relevant markets. The judge concluded that the authority had failed to establish that the levy would have a restrictive effect on competition in the relevant markets. consideration by the court was the restrictive covenants in the exit agreements. The authori- ty claimed that these would result in the removal of a ‘safety valve’ that would have prevented the rationalisation scheme from resulting in price the author- rises. In particular, economist claimed that ity’s the increased concentration in the market would facilitate tacit collusion and that those remaining in the industry would not be constrained by the fear of re-entry by ‘goers’. the economic evidence advanced by the authority, finding it insufficient to dis- charge to the burden of proof. The court noted that, while there was no doubt that the ou can also check out: current news; forthcoming events; employment opportunities; the latest CPD

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In analysing the issue, the In analysing the issue, the court found Ultimately, The court then turned to Get more at Gazette lawsociety.ie. courses, as well as lots of other useful information. judge’s frustration with the frustration judge’s analysis presented economic this point was to him on his terse comment reflected in the obvious limi- that “despite by outdated tations” caused evidence, it was nevertheless necessary that he determine the issue. capacity court noted that, for of to matter in the context by restriction of competition to have a effect, it would need prices. moderating effect on a shortage of In particular, capacity would need to have a negative impact on prices. The court relied in particular on the evidence of a witness who appeared on behalf of BIDS, who was not an econo- mist but had been involved in the industry for 30 years. This individual supported the view that the remaining capacity would be sufficient to meet existing and future demand. He pointed to the fact that, unlike normal practice in many other member states, not one factory operates a five-day week 52 weeks per the typical working week year, being three to four days per week, with no shift work being used. that the evidence presented by economist was the authority’s not sufficiently conclusive to demonstrate with a reasonable degree of probability that the rationalisation scheme would result in a capacity shortage and did not satisfy the court that market prices would be appreciably affected. an analysis of the levies. The is European Charter of also recog- and the EU’s ception capacity. The ception capacity. spect for family life within the eunification and the issue of a eunification and the issue esidence permit to the family espect for family life, to the threesubmis- years between for family sion of the application r r members, whereits legislation of the on the date of adoption directiveinto account its takes re European Parliament argued that these provisions werecon- trary rights – in to fundamental particular, the right to respect right to for family life and the non-discrimination. It brought an action for annulment before the ECJ. The court held that the possibility for member states to verify whether a child aged 12, who arrives independently from meets the rest of his/her family, an integration condition cannot be regarded as running counter to the fundamental right to r obligation to have regard to the best interests of children or the principle of non-discrimination on grounds of age. The right to re meaning of the Child Convention on the Rights of the est of his/her family, meets an est of his/her family, Fundamental Rights Convention on Human Rights nise the principle of respect for family life. These instruments stress the importance to a child of family life and recommend that states have regard to they child’s interests. However, do not create for the members of a family an individual right to be allowed to enter the territory of a state and cannot be inter- preted as denying member states a certainmargin of appreciation when they examine applications for family reunifica- tion. The effect of the possibili- ty for member states to verify whether a child aged 12, who arrives independently from the r integration condition is to pre- among the fundamental rights The protected in EC law. European , 27 June 2006. FREE MOVEMENT OF FREE MOVEMENT PERSONS tion of provision of EC law. There tion of provision of EC law. the juris- is a manifest risk that dictional order laid down in the treaties, consequently the and sys- autonomy of the EC legal affected.tem, may be adversely Thus, Ireland failed to comply with its duty of cooperation under the EC and EA treaties. Case C-540/03, esidence, verify whether equire the sponsor to have equire applications for family eunification in respect of minor European Union Directive 2003/86/EC on the right of family reunification was adopted by the council in September 2003. The directive provides that a non-member state national lawfully living in the EC is in principle entitled to the grant of authorisation by the host member state allowing his/her children to join him/her by way of family reunification. Member states are allowed in certain circumstances to apply national legislation derogating from the rules that apply in prin- ciple. Where a child is aged over 12 years and arrives independ- ently from the rest of his/her the member state may, family, before authorising entry and r he/she meets an integration condition provided for by its existing legislation on the date of implementation of the direc- tive. Member states may r r children to be submitted before the age of 15, as provided for by their existing legislation on the date of implementation of the directive. A member state may r stayed lawfully in its territory for a period not exceeding two years before having his/her A family members join him/her. member state may provide for a waiting period of no more than Parliament v Council of the obliga- EC Treaty onment in the Irish Sea. The onment in the Irish Sea. elating to the provision of the r European Council had approved of the the convention on behalf The EC by decision in 1998. council declared that the EC enjoys exclusive competence with regard to the convention provisions on the prevention of to the marine pollution only extent to which those provisions affect existing EC rules. The commission asked Ireland to suspend its proceedings on the basis that the dispute came within the exclusive competence of the ECJ. Ireland did not accede to that request and the commission brought this action. The court held that the provi- sions of the convention that Britain was accused of having breached relate to the “protec- tion and preservation of the marine environment”, an area in which the EC’s external compe- tence is not exclusive, but in principle, shared between it and the member states. The matters covered by the convention provi- sions that Ireland invoked are to a very large extent regulated by EC measures. There are direc- tives relating to the obligation to carry out a proper assessment of the environmental impact on the marine environment, trans- fer of radioactive substances and the freedom of access to information on the environment. Thus, the court that it had found jurisdiction to deal with disputes r convention relied on by Ireland. Ireland had also submitted instruments of EC law to the arbitral tribunal for purposes of their interpretation and applica- tion seeking a declaration that Britain had breached provisions of these instruments. This is at variance with tions imposed on member states to respect the exclusive nature of the court’s jurisdiction to resolve disputes concerning the interpretation and applica- . JAN/FEB 2007 JAN/FEB Commission of , 30 May 2006. A nuclear Law of the Sea Convention EUROPEAN COURT OF JUSTICE CRIMINAL LAW CRIMINAL eports that and decisions Case C-459/03, The commission has adopted a The commission framework decision proposing a European supervision order in pre-trial procedures. This is a fol- low up to a Green Paper from the 2004. In the Green Paper, the prob-commission identified lems relating to pre-trial supervi- sion measures in Europe. Owing fleeing to the risk of suspects the jurisdiction, non-resident suspects are often remanded in custody while residents benefit from alternative measures, such as reporting to the police or a prohibition on travel. This pro- posal aims to remedy this and sets up a procedure to allow an individual to be subject to bail conditions in a member state other than the member state of the criminal proceedings. A transfer mechanism is to be put in place where the individual fails to adhere to the conditions. Recent Developments in European in Developments Recent law Ireland plant (the MOX plant) is located at Sellafield in England, on the coast of the Irish Sea. It recy- cles material from nuclear reac- tors and converts into a new it fuel – mixed oxide fuel (MOX), which can be used as an energy source in a nuclear power sta- tion. Ireland raised the issue of the plant with Britain, question- ing the soundness of the r formed the basis for justification of the plant’s construction. Ireland brought proceedings against Britain before the arbi- tral tribunal provided for under the the European Communities v www.lawsociety.ie LAW SOCIETY GAZETTE Ireland claimed that radioactive substances had entered its ter- ritory and argued harm that had been done to the marine envi-

BRIEFING 62 BRIEFING 63 JAN/FEB 2007 JAN/FEB G www.lawsociety.ie elationship must not be influ- ‘put into circulation’. The provi- its sion is of a neutral character, require-aim being to satisfy the ments of legal certainty and must therefore be interpreted criteria. on the basis of objective A product must be considered circula-as having been put into produc-tion when it leaves the tion process operated by the producer and enters a market- ing process in the firm in which it is offeredto the public in order or consumed. to be used where one of the enti- However, ties in the distribution chain is closely connected to the produc- such as where it is a wholly er, owned subsidiary, it is neces- sary to establish whether it is a consequence of that link that the entity is in reality involved in the manufacturing process of the product concerned. The examination of such a close r enced by the question of whether or not distinct legal per- sons are involved. The facts that the products were invoiced to a subsidiary company and that it pays a purchase price for it is not conclusive. The same applies to the question of know- ing which entity is to be consid- ered as owner of the products. It is for the national court to establish, having regard to the circumstances of each case, whether the links between the producer and another entity are so close that the concept of pro- ducer also includes that latter entity and that the transfer of the product from one to the other of those entities does not amount to putting it into circula- tion. It is also for national law to determine the conditions in accordance with which the pro- ducer can be substituted as defendant to the act, for the subsidiary initially proceeded against. The national court must ensure that due regard is had to the scope of the term ‘producer’ within the meaning of the directive. LAW SOCIETY GAZETTE entis, claiming that the dam- entis, claiming that the February 2006. In 1992, the child plaintiff was vaccinated Britain, with a vaccine dose in sufferedfollowing which he severe injury.In 2000, he brought an action against Av caused age inflicted on him was producedby a defective vaccine Aventis by that company. com- Pasteur MSD is an English pany and a wholly owned sub- sidiary Pasteur SA, a of Aventis Ltd Aventis French company. acts as a distributor of Aventis products In in Britain. SA’s 2002, the plaintiff brought a second action against Aventis SA. He argued not that it was until 2002 that he became aware that the producer of the product was the French parent rather than the English sub- sidiary. SA argued Aventis that the action against it was statute barred,commenced as it was more than ten years after the injury was suffered. Article 11 of directive 85/374 on liability for defective products provides that, after ten years from the dates on which the producer put into circulation the actual prod- uct that caused the damage, the rights conferred on the injured person are extinguished. The English High Court referred the case to the ECJ. It asked where a product is whether, transferred by a producer to a distribution subsidiary and sold by that subsidiary to a third per- son, the putting into circulation of the product occurs at the time of the transfer of the prod- uct from the producer to the when that subsidiary, or later, product is transferred by the subsidiary to the third person. It also asked whether it is possi- ble to view such an action as being brought against the pro- ducer and to substitute the lat- as defendant to the action, ter, for the company against which proceedings were initially taken. The ECJ noted that the directive does not define the concept of , 9 Declan lating to a child over 15 or as lating to a child over 15 un counter to the right of espect for family life. In this egard to the particular circum- counter to the right to respectcounter to to the obligation for family life, to have regardto the best inter- ests of children or to the princi- on ple of non-discrimination grounds of age. This provision cannot be interpreted as pro- fromhibiting the member states taking account of an application re do so. authorising them not to The provision has the effect of state not authorising a member to apply the general conditions of the directive to applications childrensubmitted by minor However, over the age of 15. the member state is still obliged to examine the application in the interests of the child and with a view to promoting family life. The court held that the power of the member states to defer family reunification for two or three years permits them to ensure that family reunification will take place in favourable con- ditions, after the sponsor has been residing in the host state for a sufficiently long period for it to be assumed that the family members will settle down well and display a certain level of integration. The power does not r r context, the reception capacity of the member state may be one of the factors taken into account when considering an application. This cannot be treated as authorising any quota system of a three-year waiting period imposed without r stances of specific cases. When considering applications, the member states must also have due regard to the best interests of minor children. Case C-127/04, TORT formerly Aventis Pasteur SA MSD Ltd & Sanofi Pasteur SA, Ltd, formerly Aventis Pasteur O’Byrne v Sanofi Pasteur MSD elationships of the person in elationships of the person eunification that are prescribed servea limited margin of dis- cretion This is for those states. no different to the margin accorded the to them by European Court Human of relatingRights (in its case law to the right to respect for family factu- life) for weighing, in each inter- al situation, the competing ests. Under the directive, the when member state must, weighing those interests, have due regard to the best interests of minor children and to the nature of the family and solidity r of question, the duration his/her residence in the mem- ber state and the existence of cultural and social ties family, with his/her country of origin. A child’s age and the fact that a child arrives independently from his/her family are also factors taken into consideration by the European Court of Human Rights. The choice of the age of 12 did not amount to a criterion that would infringe the principle of non-discrimination on grounds of age. This criterion correspondsstage in the to a life of a minor child when the lat- ter has already lived for a rela- tively long period in a non-mem- ber state without the members so that inte- of his/her family, gration in another environment is liable to give rise to more dif- ficulties. The fact that a spouse and a child over 12 are not treated in the same way cannot be regarded as unjustified dis- crimination against the minor child. The objective of marriage is long lasting married life whereas a child over together, the age of 12 will not necessar- ily remain for a long time with the pos- their parents. Similarly, sibility for member states to apply the conditions for family r by the directive to applications in respect of children only if they are submitted before the child have reached the age of 15 can- not be regarded as running Co Co Co Co Galway Co Galway Co Kerry Co Kerry Co Dublin Co Dublin Co Dublin Co Galway Co Dublin Co Dublin Co Galway Co Galway Co Dublin O’Neill; folio: 10359 and 10361; lands: townland of Bealdarrig and barony of Dunkerron North; Kerry (deceased); folio: 7367F; lands: town- land of Bawnluskaha and barony of Bridget McGowan; folio: 21106F; lands: townland of Murrough and barony of St Nicholas; 6968F; lands: townland of Cullenagh Beg and barony of Dunkellin; Galway folio: 20103; lands: townland of Cosmona and barony of Loughrea; area: 2.3825 hectares; Co Limerick; lands: townland of Ballyshane (ED Monagay) and barony of Glenquin; 4583; lands: Gortnaskeha Commons and barony of Iraghticonnor and county of Kerry; 4586F; lands: townland of Kilcaimin and barony of Dunkellin; area: 0.1520 hectares; vided half share); folio: DN16130F; to the lands: a plot of ground situate in the south of Kilbarrack Crescent of parish of Kilbarrack and district Howth; Coogan; folio: DN6178; lands: a plot of ground being part of the townland of Ballynakelly and barony of Newcastle; Caroline Cassidy; folio; 64073F; lands: townland of Cornamucka (Clonmacknowen By) and barony of Clonmacknowen; area: 0.2810 hectares; 8942F; lands: townland of By) and barony Knockbrack (Tiaquin area: 1.7190 hectares; of Tiaquin; Galway Donnellan; folio: 23079F; lands: townland of Crinnage and barony of Dunkellin; DN15813; lands: property situate in DN15813; lands: property the townlands of Rathartan, and Rogerstown, Whitestown of Ballealy East, all in the barony Balrothery East; DN15813; lands: property situate in DN15813; lands: the townlands of Rathartan, and Rogerstown, Whitestown of Ballealy East, all in the barony Balrothery East; Limited; folio: DN18728; lands: Limited; folio: in the townland of property situate and barony of Fox and Geese Uppercross; Balrothery East; Balrothery Regd owner: Michael Raymond Regd owner: Patrick O’Sullivan Regd owner: Hugo McGowan and folio: Regd owner: Joseph Toher; Tuohy; Regd owner: Mary Winifred Regd owner: Denis Kelly; folio: 36383F Regd owner: Thomas O’Carroll; folio: Regd owner: Donall Dooley; folio: Regd owner: Susan McGrath (one undi- Regd owner: Susan McGrath Regd owner: George and Frances Regd owner: Frank Cassidy and Regd owner: Thomas Collins; folio: Regd owner: Billy Donnellan and Breda Regd owner: Thomas Weldon; folio: Regd owner: Thomas Weldon; Regd owner: Aidan Weldon; folio: Aidan Weldon; Regd owner: Regd owner: Chevron (Ireland) Regd owner: Co Co Co Co Co Co Dublin Co Dublin Co Donegal Co Cork Co Donegal Co Dublin Co Dublin Co Cork Co Cork Co Cork venue, Orlynn Park; Donegal Creeslough, Co Drumnacarry, Donegal; folio: 9784F; lands; Cashel; Co Donegal Co Donegal; folio: Dunfanaghy, 24856; lands: Dunfanaghy; Donegal DN6596; lands: property situate in the townland of Kinsaley and barony of Coolock; Frances Courtney; folio: DN117474F; lands: property situate in the townland of Lusk and barony of Balrothery East, known as 4 The A Marian, Milford, Co Donegal; folio: 9281F; lands: Camblestown; DN105987F; lands: property known as 37 Drumcliffe Drive, Cabra, in the parish of Grangegorman and district of north central; 41493L; lands: property situate in the townland of Priorswood and barony of Coolock; DN3674L; lands: property known as no 59 Belton Park Road, situate on the east side of the road in the parish of Artane, district of Clonturk; Dublin 4624L; lands: property known as 35 Shenick Drive, situate in the town- and barony of land of Townparks Donegal Mary Callaghan, Bredagh Glen, Moville, Co Donegal; folio: 43125F; lands: Clare; Donegal Hillcrest, Burnfoot, Co Donegal; area: folio: 6487; lands: Tievebane; 2.9483 hectares; Greencastle, Co Donegal; folio: Greencastle, Co Donegal; 34876; lands: Drumaweer; Kinscasslagh, Co Donegal; folio: 6394F; lands: Dunmore, to the east of Church Road, in the east of Church to the and in the city of parish of St Finbar’s Cork; 26017F; folio: Susan Ann Walsh; ground situate in the lands: plot of Carrigrohane in the townland of and in the county of barony of Cork Cork; situate in 44042; lands: plot of ground North in the townland of Poulacarry county the barony of Cork and in the of Cork; 9186; lands: plot of ground situate in 9186; lands: plot of ground in the the townland of Corbally in the barony of Muskerry East and county of Cork; Regd owner: Daniel Ward, Regd owner: Ada Arnold, St Patrick’s, Regd owner: Joan Clarke; folio: Regd owner: Ultan Courtney and Regd owner: James Duggan, Mount Regd owner: Brigid Glennan; folio: Regd owner: Joseph Keogh; folio: DN Regd owner: Thomas J O’Brien; folio: folio: DN Regd owner: Elizabeth Ward; Regd owner: Patrick Callaghan and Regd owner: Patrick Callaghan Regd owner: Thomas Doherty, Regd owner: Patrick Bonner, The Row, Regd owner: Patrick Bonner, Regd owner: John Davidson, Dunmore, Regd owner: Michael John Walsh and Michael John Walsh Regd owner: folio: Regd owner: Michael Foley; Regd owner: Jeremiah Forde; folio: Regd owner: Jeremiah Forde; Co Co Cork Co Cork Co Cork Co Cork Co Clare Co Cork Co Cork Co Cork Co Cork Co Cork Co Cork Co Cork Co Cork reacy; folio: 38749F; lands: plot of (deceased) and Breda Gosnell; folio: 52419; lands: plots of ground situate lands: plot of ground situate in the in the barony townland of Licknavar, (east division) and of Carbery West in the county of Cork; 28937; lands: plots of ground situate in the townland of Killinardrish, in the barony of Muskerry East and county of Cork; lands: plots of ground situate in the townland of Gearhameen in the (west divi- barony of Carbery West sion) and in the county of Cork; Cork Andrew Daly; folio: 6755; lands: plots of ground situate in the town- in the land of Ballyogaha West barony of Barrymore and in the county of Cork; 4323F; lands: plot of ground situate in the townland of Leighmoney Beg in the barony of Kinalea and in the county of Cork; 3757; lands: plot of ground situate in the townland of Glannoge, in the and in the barony of Duhallow, county of Cork; Daniel Walsh; folio: 6264F; lands: Daniel Walsh; plots of ground situate in the town- land of Parkmountain (ED Youghal Rural) in the barony of Imokilly and in the county of Cork; 50059F; lands: plot of ground situate in the townland of Carrigrohane in the barony of Cork and in the coun- ty of Cork; T ground situate in the townland of Corbally in the barony of Imokilly and in the county of Cork; Desmond (deceased); folio: 21623, Desmond (deceased); folio: ground 21624, 21658; lands: plots of of situate in the townland of Garranereagh in the barony and in Carbery East (east division) the county of Cork; lands: plot of ground situate in the lands: plot of ground situate in the townland of Carrigacunna county barony of Fermoy and in the of Cork; 81483F; lands: plot of ground situate 81483F; lands: plot of ground West in the townland of Broomfield in the in the barony of Imokilly and county of Cork; 70686F; lands: plot of ground being 70686F; lands: of Crosshaven part of the townland of Kerrycurrihy and in the barony county of Cork; lands: townland of Ballaghboy and lands: townland Upper; area: barony of Bunratty 0.2250 hectares; Regd owner: Edward Gosnell Regd owner: Carol Lynch; folio: 34185; Regd owner: Carol Lynch; Regd owner: Jeremiah O’Herlihy; folio: Regd owner: Kevin Nolan; folio: 5515F; Regd owner: Michael John Daly and Regd owner: Maurice Harte; folio: Regd owner: Michael O’Hanlon; folio: Regd owner: Margaret Ann Walsh and Regd owner: Margaret Ann Walsh Regd owner: Eunice O’Regan; folio: and Mary Regd owner: Carmel Treacy Regd owner: Jeremiah Gerard Regd owner: Jeremiah Regd owner: Mary Luddy; folio: 35784; Regd owner: Mary Luddy; folio: Regd owner: David O’Driscoll; folio: Regd owner: David O’Driscoll; Regd owner: Jeremiah Cummins; folio: Regd owner: Jeremiah Co Co Clare Co Clare JAN/FEB 2007 JAN/FEB Co Carlow Co Clare Co Cavan Co Cavan Co Cavan Co Clare Co Cavan Co Clare illiam O’Connor (deceased); folio: 23975; lands: townland of Ardanacraa and barony of Corcomroe; area: 39 acres, 3 roods, 39 perches; lands: townland of Clenagh and barony of Bunratty Lower; 14182; lands: townland of (1) Cloonteen, (2) Ballyhee, and barony of (1) and (2) Bunratty Upper; area: (1) 4.6538 hectares, (2) 10.4967 hectares; lands: townland of Knockmael West and barony of Bunratty Upper; area: 50.9474 hectares; Curtis; folio: 13402F; lands: townland of Parkroe and barony of Bunratty Lower; Cartronfree, Kilcogy, Longford, Co Cartronfree, Kilcogy, Longford; folio: 97F; lands: Cartronfree; Drumnagran, Tullyvine, Cootehill, Drumnagran, Tullyvine, Co Cavan; folio: 12659; lands: Nutfield; area: 10.1520 hectares; Cavan Redhills, Co Cavan; folio: 13741; lands: Killyfana; area: 3.7686 hectares; Paul) Smith and Marie Smith, Muff, Kingscourt, Co Cavan; folio: 597F; lands: Mull (Clankee By); area: 1.0092 hectares; 4782F; lands: Kildavin and barony of St Mullins Upper; Street, Belturbet, Co Cavan; folio: 11149; lands: Putiaghan Upper; area: 7.9824 hectares; Redmond, Luke Hickey (deceased), W LOST LAND LOST LAND CERTIFICATES Regd owner: John Horan; folio: 2296F; Regd owner: Thomas Rynne; folio: Regd owner: Thomas Rynne; Regd owner: John Duggan; folio: 18737; Regd owner: Daniel Malone; folio: Regd owner: Kevin Dillon; folio: 8898; Regd owner: Anthony Curtis and Mary Regd owner: John D Fitzsimons, Regd owner: Alphonsus Smith, Kilibandrick, Regd owner: Henry Tully, Regd owner: Peter (otherwise Peter Regd owner: Kieran McGovern, Bridge Registration of Deeds and Title Acts Deeds and Title Registration of 1964 and 2006 has been received from An application owners mentioned in the the registered dispensing schedule hereto for an order issued in with the land certificate in the respect of the lands specified certificate schedule, which original land or inadver- is stated to have been lost certificate tently destroyed. The land notifica- will be dispensed with unless within 28 tion is received in the registry of this days from the date of publication is in notice that the original certificate of some existence and in the custody owner. person other than the registered state the Any such notification should is grounds on which the certificate being held. Property Registration Authority, Chancery Dublin 7 Street, (Published 2 February 2007) Andrew Regd owner: Sean Fennelly, www.lawsociety.ie LAW SOCIETY GAZETTE

PROFESSIONAL NOTICES 64 PROFESSIONAL NOTICES LAW SOCIETY GAZETTE JAN/FEB 2007

Trughanacmy; area: 0.081 acres; Co Kerry LAW SOCIETY Regd owner: Laurence O’Brien (other- wise Larry); folio: 9374; lands: situate in the townland of Ballymount and Gazette barony of Narragh and Reban East in the county of Kildare; Co Kildare PROFESSIONAL NOTICE RATES Regd owner: Catherine O’Rourke; RATES IN THE PROFESSIONAL NOTICE SECTION ARE AS FOLLOWS: folio: 4230L; lands: townland of Ballymany and barony of Offaly • Lost land certificates – €132 (incl VAT at 21%) East; Co Kildare • Wills – €132 (incl VAT at 21%) Regd owner: John Stone; folio: 578F; lands: Ballysaxhills, Offaly East; area: • Title deeds – €132 per deed (incl VAT at 21%) 2 roods and 14 perches; Co Kildare • Employment/miscellaneous – €132 (incl VAT at 21%) Regd owner: Patrick Sheehy; folio: 4366; lands: townlands of Carrick HIGHLIGHT YOUR NOTICE BY PUTTING A BOX AROUND IT – €31.50 EXTRA and Rathernan and baronies of Connell; Co Kildare All notices must be paid for prior to publication. CHEQUES SHOULD BE MADE PAYABLE Regd owner: James Coyle; folio: 14201; TO LAW SOCIETY OF IRELAND. Deadline for March Gazette: 15 February 2007. lands: Rathduff and barony of For further information, contact Catherine Kearney or Valerie Farrell on tel: Fassadinin; Co Kilkenny 01 672 4828 (fax: 01 672 4877) Regd owner: Kilkenny Envelopes; folio: 678L; lands: Cloghabrody and barony of Gauran; Co Kilkenny Clogherhead, Co Louth; folio: Lynch, Rathdrinagh, Beauparc, Regd owner: Sean Donohue and Mary B Regd owner: Johanna Morris (deceas- 11644; lands: Callystown; Co Louth Navan, Co Meath; folio: 5789; lands: Donohue; folio: 28947; lands: town- ed); folio: 3190; lands: Screhan and Regd owner: Mohammad Iqbal and Rathdrinagh, Knockcommon, Co land of Rocgarraun and barony of barony of Kells; Co Kilkenny Javid Iqbal, Punjab House, 61 Park Meath Ormond Lower and county of Regd owner: Seamus Kinsella; folio: Street, Dundalk, Co Louth; folio: Regd owner: Meath County Council, Tipperary; Co Tipperary 5151F; lands: Ballytarsna and barony 19037F; lands: Marshes Upper; Co County Hall, Navan, Co Meath; Regd owner: Patrick Ryan; folio: 15320F; of Knocktopher; Co Kilkenny Louth folio: 1818F; lands: Donacarney; Co lands: townland of Moandoherdagh Regd owner: Stafford Shipping Limit- Regd owner: Desmond McGee and Meath and barony of Clanwilliam; Co ed; folio: 18020; lands: townland of Bridget McGee, Ballybailie, Ardee, Regd owner: Michael Whelan, Tipperary Raheen; area: (1) 2.04 acres, (2) 3.310 Co Louth; folio: 1458F; lands: Loughsallagh Lodge, Dunboyne, Co Regd owner: Donal Heffernan; folio: acres, (3) 100 acres, (4) 4.3.34 acres, Ballybailie; Co Louth Meath; folio: 10568; lands: 7130; lands: townland of Monks- (5) 4.1.31 acres; Co Kilkenny Regd owner: George Saxton, 20 Legion Loughsallagh; Co Meath grange and barony of Iffa and Offa Regd owner: Stafford Shipping Avenue, Dundalk, Co Louth; folio: Regd owner: Francis Shortt, c/o Seamus East; Co Tipperary Limited; folio: 2903F; lands: town- 12420; lands: Demesne; Co Louth Mallon & Co, Solicitors, The Red Regd owner: Wayne Rees; folio: 28269F; land of Raheen; area: 2.163 acres; Co Regd owner: Panelek Limited, House, Castleblayney, Co lands: plot of ground situate in the Kilkenny Mountain Park, Carlingford, Co Monaghan; folio: 6747 and 11667; townland of Gortnalaght in the barony Regd owner: JJ Stafford and Sons Louth; folio: 3752F; lands: Liberties lands: Drumquill and Mullaghduff; of Decies without Drum and in the (Wexford) Limited; folio: 17037; of Carlingford; area: 1.200 hectares; area: 4.459 hectares and 2.9946 county of Waterford; Co Waterford lands: townland (1), (2), (4), (5) Co Louth hectares; Co Monaghan Regd owner: Matthew Dunlea; folio: Raheen, (3) Annaghs and barony of Regd owner: Richard Kelly, Morgans- Regd owner: Dr AG Monsoor; folio: 6433; lands: plot of ground situate in Ida; area: (1) 0.1230 hectares, (2) town House, Grangebellew, 6011; lands: Wood of O and barony the townland of Ballynatray Demesne 0.1920 hectares, (3) 0.8950 hectares, Drogheda, Co Louth; folio: 12460F; of Philipstown Lower; Co Offaly in the barony of Coshmore and (4) 0.2080 hectares, (5) 0.5080 lands: Morganstown; Co Louth Regd owner: John and Shirley Kelly; Coshbride and in the county of hectares; Co Kilkenny Regd owner: James V Cannon and folio: 9163F; lands: Ballycollin and Waterford; Co Waterford Regd owner: Noel Behan; folio: 6119F; Bridget M Cannon; folio: 27175F; barony of Geashill; Co Offaly Regd owner: John and Breda Redmond; lands: Lea and barony of lands: townland of Pollaniska and Regd owner: John Toohey; folio: 6966F; folio: 11094; lands: Ballylucas and Portnahinch; Co Laois barony of Clanmorris; Co Mayo lands: Cullenwaine, Ballingorraun, Killisk and barony of Ballaghkeen Regd owner: Mary Ita Murphy, Regd owner: Thomas McWalter; folio: Clynoe and barony of Scarawalsh; Co South; Co Wexford Killaneen, Ballinamore, Co Leitrim; 23259; lands: townland of Balla and Offaly Regd owner: Wexford Borough Council; folio: 1207F; lands: Killaneen; Co barony of Clanmorris; area: 0.1201 Regd owner: Patrick J Walls (deceased); folio: 294F; lands: Carricklawn and Leitrim hectares; Co Mayo folio: 6795; lands: Cushaling and barony of Shelmaliere West; Co Regd owner: Seamus Heeran, Regd owner: James Golding; folio: barony of Coolestown; Co Offaly Wexford Corrabarrick, Keshcarrigan, Co 12060, 28478, 28479, lands: town- Regd owner: Redstone Properties Regd owner: Patrick Kiely; folio: 3849; Leitrim; folio: 6802; lands: lands of Lagaturrin, Pollavaddy and Limited; folio: 19511F; lands: town- lands: Ballyshannon and barony of Corrabarrack; area: 7.5069 hectares; Ardboley North and barony of land of Srah and barony of Athlone Shelmaliere West; Co Wexford Co Leitrim Clanmorris; Co Mayo North; area: 1.7360 hectares; Co Regd owner: JJ Stafford and Sons Regd owner: William Lynch/Geraldine Regd owner: Jerome Tarpey; folio: Roscommon (Wexford) Limited; folio: 21293; O’Sullivan; folio: 13955F; lands: 1461; lands: townland of Kincon and Regd owner: Thomas Flanagan; folio: lands: townland of Marshmeadows townland of Effin and barony of barony of Costello; area: 6.1689 12792; lands: Knockadyran; area: and barony of Bantry; area: 5.0710 Coshma; Co Limerick hectares; Co Mayo 2.4300 hectares; Co Roscommon hectares; Co Wexford Regd owner: Thomas Fox; folio: 22923; Regd owner: Daniel Roche; folio: Regd owner: Patrick Callery; folio: 5608; Regd owner: Richard Fitzpatrick; folio: lands: townland of Kilgarriff and 11855; lands: townland of Balla and lands: townland of Kilkilloge and 3368; lands: situate in the townland of barony of Coshlea; Co Limerick barony of Clanmorris; Co Mayo barony of Carbury; area: 3 roods, 25 Ballinalea, barony of Newcastle in the Regd owner: Liam McNamara; folio: Regd owner: Joseph Duignan and perches; Co Sligo county of Wicklow 24164; lands: townland of Doreen Duignan, Pagestown, Regd owner: Joyce Greer; folio: SL6022 Regd owner: John Henderson and Garraunboy and barony of Connello Kilcloone, Co Meath; folio: 20017F; and SL14143; lands: townland of Catherine Henderson; folio: 894; Lower; Co Limerick lands: Pagestown; area: 1.945 Skreen Beg and barony of Tireragh; lands: townland of Cronyhorn Lower Regd owner: McMullan Bros Limited, 1 hectares; Co Meath Co Sligo and barony of Shillelagh; Co and 2 Upper O’Connell Street, Regd owner: James McCaul and Regd owner: Brian Murphy and Martina Wicklow Dublin; folio: 11805; lands: Glack; Pauline McCaul, Rinn Na Mara, Murphy; folio: 3347; lands: townland Regd owner: Patrick Forde; folio: 6966; area: 0.3288 hectares; Co Longford Clontarf, Dublin 3; folio: 19158; of Finned (Carbury By) and barony of lands: townlands of Glencap Com- Regd owner: John Kirwan and Teresa lands: Calliaghstown; Co Meath Carbury; area: 4.9958 hectares; Co mons North and Glencormick South Kirwan, 12 McCooey Terrace, Regd owner: Gerard Christopher Sligo and barony of Rathdown; Co Wicklow

www.lawsociety.ie 65 : appli- k and in the Landlord and Landlord and Landlord : an application by Landlord and Tenant Landlord el: 6477900 SMITHFIELD T

and in the matter of the nine month leases. nine month Unit 1: 37.25 Sq.m. Unit 1: 37.25 Sq.m. Unit 2: 44.95 Sq.m. Bannon Commercial late ake notice that the applicant, AT T In default of such notice being new short term year four TITLE DEEDS Two office to let on units late of ake notice that the applicant intends to ake notice that any person having an enant (Ground Rents) Acts 1967- enant (Ground Rents) Acts enant Acts 1967-1994 In the matter of the matter of the (Ground Rents) (No 2) Act 1978 cation by Inver Inns Limited T submit an application to the county reg- istrar for the city of Dublin for the acquisition of the freehold interest and intermediate interest in the all, if any, premises described in the schedule here- to, and any person having an interest in T 1994 (Ground Rents) and Tenant Landlord (No 2) Act 1978 Richael Connolly T interest in the freehold estate of or any superior interest in the following prop- erty: all that and those the property known as 12a Ballinlough Road in the city of Cork, being the premises com- prised and demised by an indenture of lease dated 17 May 1906 and made between Edith Hackett of the one part and John Harrington of the other part, for a term of 150 years. intends to submit an Richael Connolly, application to the county registrar for the county of Cork for the acquisition of the freehold interest in the aforesaid premises, and any party asserting that they hold a superior interest in the aforesaid premises are called upon to furnish evidence of title to the afore- mentioned premises to the below named within 21 days from the date of this notice. received, the applicant, Richael intends to proceed with the Connolly, application before the county registrar at the end of 21 days from the date of this notice and will apply to the county reg- istrar for the county of Cork for direc- tions an may be appropriate on the basis that the persons beneficially entitled to the superior interest including the free- hold reversion in the property aforesaid are unknown ascertained. Date: 2 February 2007 the Desmond (solicitors for Signed: McGuire Cor applicant), 5 Lapps Quay, In the matter of the T late of 30 late of 15 Fireproof safes – will be pleased to 1,100 each. Contact box no 12/07 € A well-managed young solici- 2,500/3,000 each – will sell € ould any person having knowledge of ould any person having knowledge ould any solicitor holding or having Articles for sale: four fireproof Chubb-type safes for sale – three and four drawer – in good condition. No longer needed due to refurbishment. Usual price circa for circa either Mary or John during office hours at 052 21123/21966 of Kilkishen House, Kilkishen, Co Clare. of Kilkishen House, Kilkishen, W made by the the whereabouts of any will died on 27 above-named deceased, who Legal September 1987, please contact Main Street, Support Services, Solicitors, 061 713 Sixmilebridge, Co Clare; tel: email: 767, fax: 061 713 642, [email protected] Matthew (deceased), Reilly, Co Meath. Would Coolronan, Ballivor, knowl- any solicitor holding or having edge of a will or grant of administration by the above-named deceased, who died in 1945, please contact Conlon Co Solicitors, Main Street, Virginia, Cavan, tel: 049 854 7006 Richmond Kevin (deceased), Glasnevin, Dublin 9. Crescent Villas, W knowledge of a will made by the above- named deceased, who died on 26 December 2006, please contact Joe Solicitors, Main Street, Clancy, Rathfarnham, Dublin 14; tel: 01 492 0464 London solicitors advise on UK matters and undertake handle probate, litiga- agency work. We tion, property and company/commer- cial. Parfitt Cresswell, 567/569 Fulham Road, London SW6 1EU; DX 83800 Fulham Broadway; tel: 0044 2073 818311, fax: 0044 2073 814044, email: [email protected] practice for sale – Limerick Solicitor’s suburbs. practice for sale in a well-populated tor’s Limerick suburb. General practice spe- cialising in residential conveyancing and Great oppor- Good turnover. family law. tunity for expansion for sole practitioner, partnership, or as a branch office. Existing support staff happy to remain. Principal moving for personal reasons. Please reply to O’Brien, Bridget (deceased), O’Brien, Bridget Dillons Cross, Cork Harrington Square, or hav- any person holding Would City. of the whereabouts of a ing knowledge above-named deceased, will made by the 2006, please contact who died December ‘Sun Hill’, Askeaton, Co Paula Ruttle, [email protected] Limerick; email: O’Halloran, Maureen (deceased), MISCELLANEOUS late of late of late of 1 late of 23 late of Nurses’ late of Kingston late of 5 Walworth ould any person having knowledge of a Quarters, Loughlinstown General Hospital, Loughlinstown, Co Dublin Would Ferns, Co Wexford. and Ballyboy, any person having knowledge of a will made by the above-named deceased, who died 8 June 2006, please contact John A Sinnott & Co, Market Square, tel: 053 923 Co Wexford; Enniscorthy, 3111, fax: 053 923 3042 Duff, Thomas (deceased), Duff, any person 7. Would Ross Street, Dublin of the whereabouts of having knowledge by the above-named a will made died on 2deceased, who 2006, October Solicitor, Charles Foley, please contact Gort, Co Galway; tel: Market Square, fax: 091 631 223, email: 091 631 472, charles [email protected] (deceased), Margaret Hanley, Cork, born College, Mitchelstown, Co Co 26 October 1928 in Newtowngore, Leitrim and formerly of Co Cavan and Co Sligo, who died on 21 September 2006. Any solicitor holding or having knowledge of a will made by the above- named deceased please contact William Messrs Shinnick Fitzgibbon, solicitor, Fitzgibbon & Co, Baldwin Street, Mitchelstown, Co Cork; tel: 025 84081, email: [email protected] Lehane, Mary (deceased), any Ballynoe, Cobh, Co Cork. Would person having knowledge of a will made by the above-named deceased, who died on 14 January 1966, please contact Francis C of solicitor, Francis Kelleher, Kelleher & Co, Solicitors, 1 Pearse Square, Cobh, Co Cork; tel: 021 481 2300, fax: 021 481 6601 Imelda (deceased), McEvoy, Road, South Circular Road, Dublin 8. W will executed by the above-named deceased, who died on 27 November 2006, please contact Malone and Potter, Solicitors, 7 Cope Street, Dublin 2; tel: 01 671 2644, fax: 01 671 2735 Nolan, Mary (deceased), Lisava, Cahir, Co Tipperary. Would any Would Tipperary. Co Lisava, Cahir, of solicitor holding or having knowledge a will made by the above-named November deceased, who died on 7 M Halley, 2006, please contact: Gerard 5 Georges MM Halley & Son, Solicitors, tel: 051 874 073, or Street, Waterford; email: [email protected] William Henderson, Reverend Desmond (deceased), Greenpark, Lawn, Park View Clondalkin, Dublin 22. Any person hav- ing knowledge of the whereabouts of any will made by the above-named deceased, who died on 27 November 2006, please contact John Sherlock & Company, Solicitors, 9-10 Main Street, Clondalkin, Dublin 22; tel: 01 457 0846, fax: 01 457 1156, email: aoife.sheehan@sherlockso- licitors.com Merrigan, Mary Ellen (otherwise Edna) (deceased), Co late late of (retired JAN/FEB 2007 JAN/FEB Co Wicklow Dublin 6W. AUDITORS 7 Argus 7 Argus House, Harold’s Cross, Harold’s REGISTERED Bookkeeping and Phone: 01 4737455 please contact us at: Accountants Reports Email: [email protected] ACCOUNTANTS & ACCOUNTANTS our Solicitor services, Specialists in Solicitor Cassandra Sheridan; folio: 22971F; Cassandra Sheridan; of Kilmacanoge lands: townland of Rathdown; South and barony Wicklow in the townlands of lands: situate barony of Ballinacor Ballard in the of South, in the electoral division Wicklow; Ballinaclash and county of Co Wicklow lands: Josephine Egan; folio: 3389; barony townland of Mountusher and of Newscastle; CERTIFIED PUBLIC CERTIFIED For Enquiries regarding ould any solicitor holding or having WILLS Greenmount Office Park, Greenmount Office TD Fitzpatrick ipperary. Would any person having Would ipperary. www.lawsociety.ie Barlow, John (deceased) John Barlow, East, Co farmer), late of Lattin T the above- knowledge of a will made by named deceased, who died on 4 November 2005, please contact L O’Connor & Co, Solicitors, 196 Upper Salthill, Galway; tel: 091 525 346 Thomas (deceased), Delahunty, Main Street, Mullinavat, Co Kilkenny. W knowledge of a will made by the above- named deceased, who died on 14 March 2006, please contact Gerard M Halley, MM Halley & Son, Solicitors, 5 Georges tel: 051 874 073, Street, Waterford; email: [email protected] Mary Ellen (deceased), Downey, any of Cahil, Goleen, Co Cork. Would person having knowledge of a will made by the above-named deceased, who died on 19 January 2006, please contact Co Hennessy & Co, Solicitors, Bantry, Cork; tel: 027 50317, email: info@hen- nessy-co.ie Regd owner: Gerard Nolan and Regd owner: Clune; folio: 4822; Regd owner: Patrick Bridget Regd owner: Thomas and LAW SOCIETY GAZETTE

PROFESSIONAL NOTICES 66 PROFESSIONAL NOTICES LAW SOCIETY GAZETTE JAN/FEB 2007

Publication of advertisements in this section is on a fee basis and does not represent an endorsement by the Law Society of Ireland.

SPANISH LAWYERS RAFAEL BERDAGUER ABOGADOS TWENTY YEARS ADVISING CLIENTS IN REAL ESTATE TRANSACTIONS IN SPAIN

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the freehold estate or any intermediate annual rent of £60 thereby reserved and the conditions therein contained. May 1938 between James Brady of the interest or estate between the freehold to the covenants on the part of the lessee Take notice that Timothy Martin one part and Peter Cassidy of the other and the leasehold interest held by the to be observed and the conditions there- intends to submit an application to the part for a term of 99 years from 1 applicant in the property are hereby in contained. county registrar for the county of the January 1938 at a yearly rent of £6 ster- called upon to furnish evidence of their Take notice that Inver Inns Limited, city of Dublin for the acquisition of the ling, and therein described as all and sin- title to the solicitors for the applicant being a person entitled under sections 8, freehold interest in the aforesaid prop- gular all that and those that plot of within 21 days form this notice. 9 and 10 of the Landlord and Tenant erties, and any party asserting that they ground in the townland of Drumalt, In default of any such notice being (Ground Rents) (No 2) Act1978, proposes hold a superior interest in the aforesaid town of Arva, parish of Killeshandra, received, the applicant intends to pro- to purchase the fee simple and any and premises (or any of them) are called barony of Tullyuncho and county of ceed with the application before the all intermediate interests in the lands upon to furnish evidence of title to the Cavan, containing by estimation 29 county registrar at the end of 21 days above described. aforementioned property to the below perches statute measure or thereabouts, from the date of this notice and will Date: 2 February 2006 named within 21 days from the date of being the same more or less bounded on apply to the county registrar for direc- Signed: McAlinden & Gallagher (solicitors this notice. the east by the public road or street – tions that might be appropriate on the for the applicant), Unit 2, Ashbourne Town In default of any such notice being Arva to Cavan – containing by estima- basis that the person or persons benefi- Centre, Main Street, Ashbourne, Co received, the applicant intends to pro- tion 29 perches statute measure or cially entitled to the superior interest, Meath ceed with the application before the thereabouts, as more particularly delin- including the freehold reversion of the county registrar for the county of the eated on the map endorsed to said lease property, are unknown or unascer- In the matter of the Landlord and city of Dublin for directions as may be of 16 May 1938. tained. Te nant (Ground Rents) Acts 1967- appropriate on the basis that the person Take notice that Philip Brady, being Schedule: all that and those the 1994 and in the matter of the or persons beneficially entitled to the the person currently entitled to the licensed house and premises no 159 Landlord and Tenant (Ground Rents) superior interest including the freehold lessee’s interest under the said lease, Phibsborough Road, in the parish of St (No2) Act 1978: an application by premises are unknown or unascer- intends to apply to the county registrar George, in the city of Dublin, contain- Timothy Martin tained. for the county of Cavan for the acquisi- ing in front to Phibsborough Road Take notice that any person having any Date: 2 February 2007 tion of the freehold and intermediate aforesaid 26 feet, six inches and in depth interest in the freehold estate in the fol- Signed: Peter Morrissey & Co, Solicitors interest in the aforesaid properties, and from front to rear on the north side 67 lowing property: all that and those the (solicitors for the applicant), Merrion any party asserting that they hold a feet, with the appurtenances as the same premises known as 198 Harold’s Cross Building, Lower Merrion St, Dublin 2 superior interest in the aforesaid prop- are more particularly delineated on the Road, Harold’s Cross, situate in the erties (or any of them) are called upon to map endorsed on these presents and parish of St Peter, formerly in the coun- In the matter of the Landlord and furnish evidence of title to same to the thereon coloured green, commonly ty but now in the city of Dublin, held Tenants Acts 1967-2005 and in the below named within 21 days from the know as ‘Mohans’ (formerly ‘The Hut’). under an indenture of lease dated 1 matter of the Landlord and Tenant date of this notice. Particulars of lease: lease dated 14 October 1867 and made between John (Ground Rents) (No 2) Act 1978: an In default of any such notice being February 1896 and made between Stewart of the one part and Michael application by Philip Brady received, Philip Brady intends to pro- Thomas Dunphy of the one part and Condon of the other part, from 1 Any person having a freehold estate or ceed with the application before the Anne Farnworth of the other part, held October 1867, subject to the yearly rent any intermediate interest in all that and county registrar at the end of 21 days thereunder for a term of 150 years from of £3 thereby reserved and to the those that plot or piece of ground, the from the date of this notice and will 29 September 1895 and subject to an covenants on the part of the lessee and subject of an indenture of lease dated 16 apply to the county registrar for the

www.lawsociety.ie 67 and in the and in the Landlord and Landlord and Landlord Landlord and Tenant Landlord ake notice that Ellen Rogan intends In default of any such notice being In default of any In default of any such notice being T imothy Alexander Kavanagh of the illage Square, Tallaght, Dublin 24 Tallaght, illage Square, ake notice that any person having an enant Acts 1967-1987 enant Acts 1967-1994 furnish evidence of title to the below furnish evidence 21 days from the date of named within this notice. Limited intends to received, Arkmoon before the proceed with the application end of 21 said county registrar at the notice and days from the date of this registrar will apply to the said county such direc- for the city of Dublin for on the basis tions as may be appropriate beneficially that the person or persons includ- entitled to the superior interest prop- ing the fee simple in the aforesaid erty are unknown and unascertained. Date: 2 February 2007 Fry (solicitors for the Signed: William Place, applicant), Fitzwilton House, Wilton Dublin 2 In the matter of the T to submit an application to the county registrar for the county of Dublin for the acquisition of the freehold interest and any intermediate interest in the and any party assert- aforesaid property, ing that they hold a superior interest in the aforesaid property is called upon to furnish evidence of title to the aforesaid property to the below named within 21 days of this notice. received, Ellen Rogan intends to pro- ceed with the application before the county registrar for the county of Dublin at the end of the 21 days from the date of this notice and will apply to the county registrar for the county of Dublin for such orders or directions as may be appropriate on the basis that the person or persons beneficially entitled to the superior interest including the freehold reversion in the aforesaid property are unknown or unascertained. Date: 2 February 2007 Signed: John Glynn & Company (solicitors for the applicant), Law Chambers, The V In the matter of the T matter of an application by Ellen Rogan T interest in the freehold estate or any intermediate interest in the property known as 211 North Circular Road, Dublin 7, in the county of Dublin, being the property demised by an indenture of lease dated 10 July 1935 Jessie and made between Mary Mooney, the Reverend Mary Doyle, Julia Gray, Joseph John Mooney, John Cassidy, Joseph John Mooney, James O’Connor, Edward Joseph Doyle, the Reverend Francis Gray and William John Cassidy, T one part and Constantine Peter Curran of the other part, whereby the premises were demised unto the said Constantine Peter Curran for a term of 99 years from 1 July 1935, subject to a yearly rent of £10. matter of the :an : an and in the and in the Landlord and Landlord and Landlord Landlord and Tenant and Landlord and Tenant Landlord 35.16 (£27.13.10 late currency) € ake notice that the applicant, ake notice that McHugh T T In default of any such notice being ake notice that any person having an ake notice that any person ake notice that any person having an enant Acts 1967-2005 enant Acts 1967-2005 Arkmoon Limited, intends to submit an application to the county registrar for the city of Dublin at Áras Uí Dhálaigh, Dublin 7 for the acquisition Inns Quay, of the fee simple interest in the aforesaid property and that any party asserting that they hold a superior interest in the aforesaid property are called upon to comprised in folio DN 171478F. Date: 2 February 2007 Thomas (solicitors for the Signed: O’Reilly Co Drogheda, Quay, applicant), 8 North Louth In the matter of the T matter of the 1978 (Ground Rents) (No 2) Act Supermar- application by McHugh Limited kets (Three Tops) T or superi- interest in the freehold estate known as or interest in the property Road, in number 17 Maypark, Malahide 5, held the parish of Coolock, Dublin 12 March under indenture of lease dated Murray of 1951 made between Patrick Brien the one part and Francis Joseph part for and Bridget Brien of the other 1 March the term of 499 years from 1951, subject to the annual rent of £35. Limited Supermarkets (Three Tops) intends to submit an application to the county registrar for the city of Dublin for the acquisition of the freehold inter- and any est in the aforesaid property, party or parties asserting that they hold a superior interest in the aforesaid proper- ty are called upon to furnish evidence of title to the aforementioned premises, to the party below-named, within 21 days of the date of this notice. received, the applicant, McHugh Limited, Supermarkets (Three Tops) intends to proceed with the application before the county registrar at the end of 21 days from the date of this notice and will apply to the county registrar for the city of Dublin for directions as may be appropriate on the basis that the person or persons beneficially entitled to the superior interest including the freehold reversion in the aforesaid premises are unknown or unascertained. Date: 2 February 2007 (solicitors for the appli- Signed: Rutherfords Dublin 2 cant), 41 Fitzwilliam Square, In the matter of the T matter of the (Ground Rents) (No 2) Act 1978 application by Arkmoon Limited T interest in the ultimate fee simple estate or in any superior interest in the proper- ty known as 41/41A Henry Street in the city of Dublin, being the property com- prised in fee farm grant dated 12 December 1889 from Evan Lake and others to Emily Mary Margaret Clarke, subject to the perpetual yearly fee farm rent of : an and in the Landlord and Landlord Landlord and Tenant and Landlord ake notice that Donal Grennan and T In default of any such notice being enant Acts 1967-2005 application by Donal Grennan and Roseanne Grennan Any person having a freehold estate or any intermediate interest in all that and those the yard to the rear of the house and premises known as number 10 Laurence Street, Drogheda, Co Louth (hereinafter referred to as the first prop- erty), being portion of the lands com- prised in a certain indenture of lease dated 23 April 1918 between the Osbert Clinton of the Reverend William one part and Mary Dolan of the other part, for a term of 300 years from 1 November 1917 at a yearly rent of £12; or all that and those the yard to the rear of the house and premises known as number 11 Laurence Street, Drogheda, Co Louth (hereinafter referred to as the being portion of the lands first property, comprised in a certain indenture of lease (hereinafter referred to the first lease) dated 23 April 1918 between the Osbert Clinton of Reverend William the one part and Mary Nolan of the other part for a term of 300 years from 1 November 1917 at a yearly rent of £12. Roseanne Grennan, being the persons currently entitled to the lessees’ interest in the said premises, intend to apply to the county registrar for the county of Louth for the acquisition of the freehold interest and all intermediate interests in the aforesaid properties, and any party asserting that they hold a superior inter- est in the aforesaid properties (or any of them) are called upon to furnish evi- dence of title to same to the below named within 21 days from the date of this notice. received, Donal Grennan and Roseanne Grennan intend to proceed with the application before the county registrar at the end of 21 days from the date of this notice and will apply to the county regis- trar for the county of Louth for direc- tions as may be appropriate on the basis that the person or persons beneficially entitled to the superior interests includ- ing the freehold reversion in each of the aforesaid premises are unknown or unascertained. (Ground Rents) (No 2) Act 1978 T matter of the In the matter of the : an JAN/FEB 2007 JAN/FEB and in the Landlord and Landlord THLEAGUE, ROSCOMMON THLEAGUE, A Phone: 09066 63538 Phone: 09066 Landlord and Tenant Landlord LARKIN LEGAL SUPPORT SERVICES SUPPORT LEGAL & VALUERS LICENSED AUCTIONEERS

PERSONAL ATTENTION ASSURED ATTENTION PERSONAL ● ● ake notice that Brian M Durkan & In default of any such notice being T ENVIRONMENTAL & AGRICULTURAL CONSULTANTS P. ake notice that any person having an enant Acts 1967-1994 Co Limited intends to submit an appli- cation to the county registrar for the county of Dublin for the acquisition of the freehold interest and any intermedi- ary interest in the aforesaid property, and any party asserting that they hold a superior interest in the aforesaid prop- erty is called upon to furnish evidence of title to the aforesaid property to the below named within 21 days of the date of this notice. received, Brian M Durkan & Company Limited intends to proceed with the application before the county registrar for the county of Dublin at the end of 21 days from the date of this notice and will apply to the county registrar for the county of Dublin for such orders or directions as may be appropriate on the basis that the person or persons benefi- cially entitled to the superior interest including the freehold reversion in the aforesaid property are unknown and unascertained. Date: 2 February 2007 Signed: Cunningham McCormack (solici- tors for the applicant), 89 Upper Leeson Dublin 4 Street, county of Cavan for directions as may county of Cavan for directions the per- be appropriate on the basis that entitled to son or persons beneficially the superior interest including the free- hold reversion are unknown or unascer- tained. Date: 2 February 2007 (solicitors for the Signed: Michael J Ryan applicant), Athbara House, Cavan In the matter of the application by Brian M Durkan & Co Limited T interest in the freehold estate or any intermediary interest in the property known as the Bridge House, The Forge, Loughlinstown, in the county of Dublin, being the property demised by an indenture of lease dated 11 November 1876 and made between of the one part and James Henry West Lawless of the other part for the term of 900 years from 29 September 1876, subject to a yearly rent of £5. T matter of the (Ground Rents) (No 2) Act 1978 www.lawsociety.ie LAW SOCIETY GAZETTE

PROFESSIONAL NOTICES 68 PROFESSIONAL NOTICES LAW SOCIETY GAZETTE JAN/FEB 2007

(Ground Rents) (No 2) Act 1978: an hers in the aforesaid property, and any 34B Blackpitts, Dublin 8: an applica- application taken by Daniel Francis party asserting that they hold a superior Established medium tion by Ascon Property Develop- Maguire and Maria Maguire interest in the aforesaid property is sized firm ments Limited Take notice that any person having inter- called upon to furnish evidence of title to Dublin city centre Take notice that any person having an est in the freehold estate or any superior the aforesaid property to the below interest in the freehold interest and any firm looking to interest in the property known as the two named within 21 days from the date of intermediate leasehold interests in the dwellinghouses and premises known as this notice. acquire/amalgamate property situate and known as 34B Fort Garry, The Terrace, Leap, situate in In default of any such notice being with firms with an Blackpitts, Dublin 8, being part of the the townland of Kilmacabea, barony of received, the applicant, Elizabeth annual turnover lands and premises demised by an inden- Carbery West (east division) and county O’Flynn, intends to proceed with the between ture of lease dated 31 December 1924 of Cork, held under an indenture of lease application before the county registrar at €250K and €1M and made between George James Edkins dated 15 November 1890 and made the end of 21 days from the date of this and others of the one part and Mary between Annie Buttimore of the one notice and will apply to the county regis- CONTACT: Corcoran and others for a term of 99 part and Hannah Donovan of the other trar for the county of Cork for directions David Rowe at Outsource years from 1 January 1925, subject to the part for a term of 99 years from 15 as may be appropriate on the basis that 01 6788 490 yearly rent of £12 and the covenants and November 1890, subject to the payment the person or persons beneficially enti- conditions therein contained. of £1, being an apportioned part of the tled to the superior interest including the [email protected] Take notice that Ascon Property early rent of £4, and subject to the freehold reversion in the aforesaid prop- Developments Limited intends to sub- covenants and conditions therein con- erty are unknown and unascertained. mit an application to the county registrar tained. Date: 2 February 2007 and under a yearly tenancy subject to the for the city of Dublin at Áras Uí Take notice that the applicants, Signed: O’Donnell Breen-Walsh O’Don- yearly rent of £9.28. Dhálaigh, Inns Quay, Dublin 7 for the Daniel Francis Maguire and Maria oghue (solicitors for the applicant), Trinity Take notice that Ascon Property acquisition of the freehold interest and Maguire, intend to submit an application House, 8 Georges Quay, Cork Developments Limited intends to sub- any intermediate leasehold interests in to the county registrar for the county of mit an application to the county registrar the aforesaid properties, and that any Cork for the acquisition of the freehold In the matter of the Landlord and for the city of Dublin at Áras Uí party asserting that they hold a superior and all interests superior to theirs in the Tenant Acts 1967-1994 and in the Dhálaigh, Inns Quay, Dublin 7 for the interest in the aforesaid premises are aforesaid property, and any party assert- matter of the Landlord and Tenant acquisition of the intermediate leasehold called upon to furnish evidence of the ing that they hold a superior interest in (Ground Rents) (No 2) Act 1978: an interest or interests in the aforesaid title to the below named within 21 days the aforesaid property is called upon to application by Elizabeth Bennett properties, and that any party asserting from the date of this notice. furnish evidence of title to the aforesaid Take notice any person having an inter- that they hold any intermediate lease- In default of any such notice being property to the below named within 21 est in the freehold estate or any superior hold interest or interests in the aforesaid received, Ascon Property Developments days from the date of this notice. or intermediate interest in the heredita- premises are called upon to furnish evi- Limited intends to proceed with the In default of any such notice being ments and premises situate at 7 Emerald dence of the title to the below named application before the county registrar at received, the applicants, Daniel Francis Place in the city of Dublin. within 21 days from the date of this the end of 21 days from the date of this Maguire and Maria Maguire, intend to Take notice that Elizabeth Bennett notice. notice and will apply to the county regis- proceed with the application before the intends submitting an application to the In default of any such notice being trar for the city of Dublin for directions county registrar at the end of 21 days county registrar for the county of the received, Ascon Property Developments as may be appropriate on the basis that from the date of this notice and will city of Dublin for the acquisition of the Limited intends to proceed with the the person or persons beneficially enti- apply to the county registrar for the freehold interest in the aforementioned application before the county registrar at tled to the freehold reversion and any county of Cork for directions as may be property, and any party asserting that the end of 21 days from the date of this intermediate leasehold interests in the appropriate on the basis that the person they hold a superior interest in the afore- notice and will apply to the county regis- aforesaid premises are unknown or or persons beneficially entitled to the said premises are called upon to furnish trar for the city of Dublin for directions unascertained. superior interest including the freehold evidence of title to the aforementioned as may be appropriate on the basis that Date: 2 February 2007 reversion in the aforesaid property are premises to the below named with 21 the person or persons beneficially enti- Signed: Whitney Moore (solicitors for the unknown and unascertained. days of the date of this notice. tled to the intermediate leasehold inter- applicant), Wilton Park House, Wilton Date: 2 February 2007 In default of any such notice being est or interests in the aforesaid premises Place, Dublin 2 Signed: O’Donnell Breen-Walsh O’Don- received, the applicant, Elizabeth are unknown or unascertained. oghue (solicitors for the applicant), Trinity Bennett, intends to proceed with the Date: 2 February 2007 In the matter of the Landlord and House, 8 Georges Quay, Cork application before the county registrar at Signed: Whitney Moore (solicitors for the Tenant Acts 1967-1994 and in the the end of 21 days from the date of this applicant), Wilton Park House, Wilton matter of the Landlord and Tenant In the matter of the Landlord and notice and will apply to the county regis- Place, Dublin 2 (Ground Rents) Act 1967 and the Tenant Acts 1967-1994 and in the trar for the county of the city of Dublin Landlord and Tenant (Ground Rents) matter of the Landlord and Tenant for directions as maybe appropriate on In the matter of the Landlord and (No 2) Act 1978, and in the matter of (Ground Rents) (No 2) Act 1978: an the basis that the person or persons ben- Tenant Acts 1967-1994 and in the the premises situate at no 25 Main application taken by Elizabeth eficially entitled to the superior interest matter of the Landlord and Tenant Street, Cashel, in the county of O’Flynn including the freehold reversion in the (Ground Rents) (No 2) Act 1978 and in Tipperary: an application by Michael Take notice that any person having inter- aforesaid premises are unknown or the matter of the property known as Cantwell est in the freehold estate or any superior unascertained. interest in the property known as the two Date: 2 February 2007 dwellinghouses and premises known as Signed: HC Browne (solicitors for the appli- number 2 Dublin Street, situate in the cant), Malahide Road/Kilmore Road (cor- SOLICITOR’S PRACTICE parish of Saint Anne Shandon and city of ner), Artane, Dublin 5 Cork, held under an indenture of lease LONG ESTABLISHED SOLE PRACTICE IN dated 20 January 1944 and made In the matter of the Landlord and SOUTH EAST TOWN FOR SALE. between Cornelius Tobin of the one part Tenant Acts 1967-1994 and in the THE PRACTITIONER IS RETIRING. and James J Murphy and Company matter of the Landlord and Tenant Limited of the other part for a term of 99 (Ground Rents) (No 2) Act 1978 and in ALL REQUESTS FOR FURTHER DETAILS IN years from 29 September 1942, subject the matter of the property known as 3 WRITING ONLY TO: to the yearly rent of £10.15.06d and sub- Mill Street, Dublin 8: an application ject to the covenants and conditions by Ascon Property Developments Pembroke & Pembroke therein contained. Limited Chartered Accountants Take notice that the applicant, Take notice that any person having the 15, Ormonde Road Elizabeth O’Flynn, intends to submit an intermediate leasehold interest or inter- application to the county registrar for ests in the property situate and known as Kilkenny the county of Cork for the acquisition of 3 Mill Street, Dublin 8, being the prop- e-mail: [email protected] the freehold and all interests superior to erty held by the applicant in fee simple

www.lawsociety.ie 69 box Lavery 50 Fitzwilliam for law firm box no 12/07 box no 11/07 or email: info@practice with an emphasis on personal in the Northwest region. Willing nted: general position, assistant . Solicitor required based in Dublin 1. The position involves mainly immigration law and civil litigation but with require- ments to deal with other areas of general practice. Salary negotiable. Immediate start. Please forward CV to [email protected] Attention: overworked practi- tioners/concerned principals. Put your mind at rest. When you need assistance temporarily justify a locum: experi- that doesn’t enced independent solicitor (in DX) available to clear backlog, complete registrations/undertake specific projects. Discreet, efficient service. Own insurance and prac- tising certificate. All areas. References available. Reply to no 10/07 assistance.ie Daniel Spring & Co, the con- Sq, D2, seek a solicitor for salary nego- veyancing department – firm tiable. Apply in writing to the Due to continued expansion, Solicitor with solid residential con- veyancing experience seeks a posi- tion to consider a locum or part-time posi- tion. Reply to Wa solicitor, Kirby Gilmartin are seeking suitable candidates for the following positions: junior solicitor with commercial and banking experience; legal executive. These roles offer high-calibre work with great quality of life in a family- friendly firm; attractive remuneration packages commensurate with experi- ence. Reply in confidence to James or tel: 01 Flynn at [email protected] 231 1430 general litigation and family law injury, town. Full-time position in Wexford required. CV available on request. Please reply to 2004 and . for specialist construc- NO recruitment advertisements will , LAW SOCIETY GAZETTE eoranta (New Ireland Assurance Employment Equality Acts 1998 NOTICE TO THOSE PLACING THOSE PLACING NOTICE TO Editorial Board based on has taken this decision 1940 and made between Granville 1940 and made between Andrew Proby Esq of the one part and other part Joseph Jennings Esq of the to the for a term of 150 years, subject and the yearly rent of £52.10s shillings con- covenants and conditions therein tained; 1942 and made between AJ Jenning & Company Limited of the first part, Comhluct na hÉireann um Aracas T Company Limited) of the second part and Richard B Heffernan of the third part for a term of 145 years, subject to the yearly rent of £9 thereby reserved and the covenants and conditions therein contained. In default of any such notice being ake notice that Grace Binchy and Robin 2) An indenture of sub-lease dated 9 July T Potter Coogan intend to submit an appli- cation to the county registrar for the city of Dublin at Áras Uí Dhálaigh, Inns Dublin 7 for the acquisition of the Quay, freehold interest in the aforesaid property and that any party asserting that they hold a superior interest in the aforesaid prop- erty are called upon to furnish evidence of title to the below named within 21 days from the date of this notice. received, Grace Binchy and Robin Potter Coogan intend to proceed with the appli- cation before the county registrar at the end of 21 days from the date of this notice and will apply to the county registrar for the city of Dublin for directions as may be appropriate on the basis that the person or persons beneficially entitled to the superior interest including the freehold reversion in the aforesaid property are unknown or unascertained. Date: 2 February 2007 Signed: Binchy (solicitors for the applicant), Quay House, Clonmel, Co Tipperary Solicitor required tion practice. Dublin office of reputable London firm. Initial three-month training period will be based in London. Litigation experience required. Email covering letter or and CV to: [email protected] Dolmen post to Beale & Company, Dublin 2 House, 4 Earlsfort Terrace, Law Society Gazette , Gazette RECRUITMENT ADVERTISEMENTSRECRUITMENT THE IN Please note that, as and fromPlease note 2006 issue the August/September of the RECRUITMENT legal advice, which indicates that such referenceslegal advice, which indicates in may be breach of the be published that include referencesbe published that include years of post- to (PQE) qualification experience The Landlord and Landlord Landlord and Landlord and Landlord and in the mat- and in the mat- and in the mat- and the Landlord and Tenant (Ground and Tenant Landlord (Ground and Tenant Landlord , intends to submit an application ake notice that the applicant, In default of such notice being T pperary for the acquisition of the free- pperary for such direction as may be ake notice that any person having an ake notice that any person having any ake notice that any person enant Acts 1967-1994 enant 2) Act 1978 (Ground Rents) (No enant Acts 1967-1994 Date: 2 February 2007 the appli- (solicitors for Ryan Signed: Donal T St, Cashel, Co Tipperary cant), 89/90 Main of the In the matter T ter of the Rents) Act 1967 T T ter of the Rents) (No 2) Act 1978 ter of the purchase of the freehold estate of property situate at 6 Albert Park, Sandycove, Co Dublin, and now Maria, 6 Albert Park, known as Villa Co Dublin: an application Glenageary, by Grace Binchy and Robin Potter Coogan T interest in the freehold estate of the prop- Maria, 6 Albert Park, erty known as Villa Co Dublin, more particular- Glenageary, ly described in: 1) An indenture of lease dated 27 June Thomas Joseph O’Malley, being the per- Thomas Joseph O’Malley, son entitled under section 15 of the (Ground Rents) (No 2) and Tenant Landlord Act 1978 to the county registrar for the county of Ti hold interest and the intermediate inter- and any est in the aforesaid property, party adverting that they hold a superior interest in the aforesaid premises or any of them are called upon to furnish evi- dence of title to the aforementioned premises to the below named within 21 days of the date of this notice. received, the applicant intends to proceed with the application before the county registrar at the end of 21 days from the date of this notice and will apply to the county registrar for the county of Ti appropriate on the basis that the person or persons beneficially entitled to such superior interest including the freehold reversion in the aforementioned property are unknown or unascertained. Date: 2 February 2007 (solicitors for the appli- Signed: Donal T Ryan cant), 89/90 Main St, Cashel, Co Tipperary In the matter of the and in the matter of the premises situ- and in the matter of the premises in the ate at no 25 Main Street, Cashel, an application by county of Tipperary: Thomas Joseph O’Malley T of or any interest in the freehold estate in all that superior intermediate interest and premis- and those the dwellinghouse Gladstone es known as number 41 Upper of Clonmel, Street, situate in the town of Iffa and barony parish of Saint Mary’s, Tipperary, Offa East and county of those the together with all that and known as dwellinghouse and premises Street, situ- number 42 Upper Gladstone ate in the town of Clonmel, parish of barony of Iffa and Offa East Saint Mary’s, should give and county of Tipperary, notice to the undersigned solicitors. , JAN/FEB 2007 JAN/FEB Landlord and Landlord this area. harassment. offer a specialist

The Directors of the tel: 021 496 6322, workplace mediation We Monahan Road, Cork, & INVESTIGATION training programmes in Round Table Mediation Round Table and Training, Mainport,and Training, services, comprehensive conflict management and independent investigative services into bullying and ake notice that the applicant, e-mail: [email protected] company are all accredited with 25 years experience in practitioner members of the In default of such notice being T Mediators Institute of Ireland pperary for the acquisition of the free- pperary for such directions as may be yan’s holding and on the west by holding and on the yan’s ake notice that any person having any ake notice that WORKPLACE MEDIATION enant (Ground Rents) (No 2) Act 1978 T Michael Cantwell, being the person enti- tled under section 15 of the intends to submit an application to the county registrar for the county of Ti hold interest and the intermediate inter- and any est in the aforesaid property, party adverting that they hold a superior interest in the aforesaid premises or any of them are called upon to furnish evi- dence of title to the aforementioned premises to the below named within 21 days of the date of this notice. received, the applicant intends to proceed with the application before the county registrar at the end of 21 days from the date of this notice and will apply to the county registrar for the county of Ti appropriate on the basis that the person or persons beneficially entitled to such superior interest including the freehold reversion in the aforementioned property are unknown or unascertained. T freehold estate of or any interest in the interest in the superior intermediate licensed premises and dwellinghouse, at 25 Main Street, out-offices situate held county of Tipperary, Cashel, in the tenancy arising on the under a yearly lease dated 26 July 1889 expiration of the Briscoe and made between Emily Matilda of the of the one part and Andrew Hanley from 26 other part, for a term of 99 years of £12, and July 1889, at a yearly rent house therein described as the dwelling possession of and premises lately in the the Main Matthew Doyle, situate in barony of Street in the city of Cashel, and Middlethird and county of Tipperary, said Main bounded on the north by the the east by Street of the city of Cashel, on by Margaret John Street, on the south R holding, should give Thomas Wood’s notice to the undersigned solicitors. www.lawsociety.ie LAW SOCIETY GAZETTE

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