Gazette€3.75 Jan/Feb 2007
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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 PIC: GETTY IMAGES 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.