LAW SOCIETY
Gazette€3.75 November 2006
COLLISION COURSE: Legal questions loom over Aer Lingus takeover bid
INSIDE: MENTAL HEALTH ACT 2001 • FERGUS FINLAY ON CHILDREN’S RIGHTS • 16 PAGES OF JOBS
LAW SOCIETY GAZETTE NOVEMBER 2006 CONTENTS
On the cover LAW SOCIETY As Ryanair trains its guns on the newly-liberated Irish flag carrier, doubts have been raised about the legality of the invasion in terms of both Irish Gazette and European competition law November 2006 PIC: REX FEATURES/GAZETTE STUDIO
Volume 100, number 9 Subscriptions: €57 REGULARS 4 President’s message 7 News 16 Rights-based child law Children’s rights are not being met by the current criminal justice system Mental health and involuntary 19 admissions 20 Viewpoint Barnardos chief Fergus Finlay makes the case for a 4 referendum on children’s rights 23 Letters 45 Practice doctor 46 People and places 49 Student spotlight Tales of adventure from Achill 50 Briefing 50 Council report 51 Committee report 52 Practice notes 19 54 Legislation update: 20 September – 17 October 2006 56 FirstLaw update 58 Eurlegal: state liability 63 Professional notices 68 Recruitment advertising More than 16 pages of job vacancies
Editor: Mark McDermott. Deputy editor: Garrett O’Boyle. Designer: Nuala Redmond. Editorial secretaries: Catherine Kearney, Valerie Farrell. For professional notice rates (lost land certificates, wills, title deeds, employment, miscellaneous), see page 63. Commercial advertising: Seán Ó hOisín, 10 Arran Road, Dublin 9; tel: 837 5018, fax: 884 4626, mobile: 086 811 7116, email: [email protected]. Printing: Turner’s Printing Company Ltd, Longford. Editorial board: Stuart Gilhooly (chairman), Mark McDermott (secretary), Pamela 49 Cassidy, Tom Courtney, Eamonn Hall, Philip Joyce, Michael Kealey, Mary Keane, Patrick J McGonagle, Ken Murphy, Michael V O’Mahony, William Prentice.
2 www.lawsociety.ie LAW SOCIETY GAZETTE NOVEMBER 2006 PRESIDENT’S MESSAGE
An eventful year in a time
y the time you read this, my year will Relations Committee. have ended and the Law Society The Society believes these measures to be fair and presidency will have passed to my understands the necessity to ensure that the public successor, Philip Joyce. I wish him well should have the utmost confidence in the Society’s B and hope that he enjoys his term in complaints procedures. office. I would like to thank you all for the support The Society has requested certain measures to be that you have given the presidency during my term included in the bill. The foremost of these would in office. It has been very much appreciated. allow a solicitor to limit liability contractually with a The year has gone very quickly – a sure sign of client, subject to the mandatory professional activity and enjoyment. indemnity insurance cover of €2.5 million. As long ago as July 2005, the Society responded Such an amendment would not affect the small or to the preliminary report of the Competition less well-off client, who would still have the benefit of Authority on the legal profession. It now appears the statutory minimum cover of the solicitors’ that the final report of the authority will issue in professional indemnity insurance. It would, however, November 2006. allow the solicitor to compete in certain larger commercial transactions on an equal basis with Legal services ombudsman accountants and other professionals who already have In the meantime, the Minister for Justice introduced such a right. the Civil Law (Miscellaneous Provisions) Bill 2006 , in This and other matters have been requested by the February. The bill proposes to introduce a legal Society to be included in the bill – it is to be hoped services ombudsman and to increase lay membership that such are not overlooked or forgotten about by to a majority on the Complaints and Client government, as the measures suggested are practical
The Law Society recently hosted a lunch for past presidents of the Society, pre-1990, and retired director general James J Ivers. Front (l to r) : Bruce St PIC:LENSMEN John Blake (President, 1977), Walter Beatty (1980), Moya Quinlan (1981), Michael Irvine (2006), William A Osborne (1975), Michael P Houlihan (1983) and Joseph L Dundon (1978). ( Back, l to r) : James J Ivers (Director General, 1973-1990), Philip Joyce (Senior Vice President 2006), Thomas D Shaw (1988), Anthony E Collins (1985), Laurence Cullen (1986), Maurice R Curran (1989) and Director General Ken Murphy
4 www.lawsociety.ie PRESIDENT’S MESSAGE LAW SOCIETY GAZETTE NOVEMBER 2006 of change
and would help the solicitor provide a better service to the client.
Legal Costs Working Group The Legal Costs Working Group, chaired by Mr Paul Haran, reported last January. Extensive submissions were made to the working group and written and oral comment and suggestions have been made to the Implementation Group, chaired by Mr Desmond Miller. There is little doubt that, at the least, the manner of charging in litigation will be altered – however it appears that the notion of scale costs have been rejected, which is welcome news. PIC: LENSMENPIC: The reform of legal costs will take a considerable time, during which the profession must remain vigilant regarding any proposals. During the year, purchase of the Benburb Street site was completed by the Society. I believe that this purchase will allow the Society to develop its facilities for members in an adjoining site. Blackhall Place is a landmark building in Dublin 7 and a headquarters that all solicitors can utilise and enjoy.
Cork education centre It was a great pleasure to announce the Society’s new education centre in Cork. I am certain that the Cork facility will be a major attraction for those socially – the society we live and work in today. “I believe wishing to become solicitors. Usually the efforts of solicitors go unheralded – As president, I have presided over seven maybe that’s as it should be, but it does not devalue that all parchment ceremonies, which underlines the what has been achieved. solicitors can amount of young people entering the solicitors’ The Society serves the profession and does its profession. In the last year, approximately 1,800 very best for its members – it, too, does not get be very proud have received legal education in Blackhall Place. In appropriate recognition for its efforts. I personally of their addition to strong numbers, I believe we have a very would like to pay tribute to the staff in the Society, high calibre of entrants to the profession. who give of their utmost to the profession. efforts to The efforts of young solicitors in charitable I certainly would not wish my final message as enhance – events such as the Calcutta Run emphasises the president to pass without thanking all in the Society, social awareness of such practitioners and augurs from Ken Murphy downwards, for their efforts on both econom- well for the future. This is most heartening. It our behalf. ically and means that the profession will certainly play its role I would also like to thank those who serve on the in the legal, economic and social development of committees of the Society and, in particular, all socially – the our country. Council members – the contribution all have made society we is very much appreciated. ‘Law in the Community’ initiative It has been a great pleasure to meet with many of live and work I was particularly pleased that Council unanimously you during the year – that to me has been the most in today” adopted the ‘Law in the Community’ initiative to satisfying part of my year. I am most grateful to you assist groups who provide legal advice and assistance all for the hospitality and courtesy shown, not alone to those who are disadvantaged and marginalized in to me but also to my wife Anne and our children. the community. I believe that all solicitors can be very proud of Michael Irvine their efforts to enhance – both economically and President
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■ CAVAN mark the retirement of Judge Memorial service O’Donnell as the judge assigned Practitioners throughout the to the Donegal district will be county and beyond were deeply held in Donegal Town later on saddened at the untimely passing in the month, to mark his decade of their local judge – the late or so on the bench in the area. Judge David Maughan, who had Meanwhile, an informative been the permanent judge in the CPD seminar was held recently area for the last four years. A on ‘Risk Management’, as well memorial service was arranged as an excellent review of the by the legal profession in his drink-driving legislation by honour in Ballyconnell, Leitrim solicitor, Kevin Kilrane. Attending the DSBA seminar, ‘Banking – Adding to your Bottom Line’, on coinciding with the court sitting. 28 September were (l to r) : Philip Joyce (Senior Vice-President of the Donegal Bar Association’s The legal fraternity was doubly Law Society), Brian Gallagher (President DSBA), Kieran Finnan and Anne AGM takes place on 22 saddened at the passing of Tom Neary (speakers) and John Elliot (Director of Regulation, Law Society) November and will be preceded FitzPatrick – former TD and by a seminar on work/life government minister, and Cavan However, an inspiring initiative The DSBA was honoured to balance for the legal profession. solicitor. Rich tributes were paid on the part of both the Law be able to meet the High Court to both men at the local sitting of Society and the DSBA has just judiciary in an informal setting ■ CORK the court, presided over by Judge come to fruition and hopes to recently. It was believed to have Mediation skills Sean McBride. Contributions redress this lacuna. As reported been the first occasion at which A week long Mediation Skills were made on behalf of the bar elsewhere in this edition of the a solicitors’ representative body Training Course run by CEDR association by Jacqueline Gazette , a root-and-branch had interacted with the High was hosted by the Southern Law Maloney, and for the Leitrim Bar review of the convention and the Court judiciary in this manner Association in Cork in the last Association by Gabriel Toolan. legislation underpinning it, its and was a highly enjoyable and week of September. In all, 24 application before the courts and purely social occasion. Over 26 practitioners attended. ■ DUBLIN its impact to date has been High Court judges attended and The annual conference of Groundbreaking study undertaken. The academic study were joined by council members the association took place in on ECHR Act 2003 (available at a modest cost of of the DSBA, together with Budapest. Judge James The ECHR Act 2003 is the €10 and downloadable on both many litigation practitioners O’Donoghue delivered a well- legislation underpinning the the lawsociety.ie and dsba.ie drawn from a large number of received keynote address to the European convention. It creates websites) has been jointly practices. conference. new statutory remedies for those commissioned by both the affected by the actions of the DSBA and the Law Society. The ■ DONEGAL ■ MAYO state and it is fair to assess the study was undertaken by the Up here it’s different! Mammoth service operation of the legislation as Dean of the Faculty of Law at Congratulations are due to the Rumours that Pat O’Connor being a ‘slow burner’ to date. UCG, Donncha O’Connell, and revival of the Bar Association had decided to take things a bit Yet, the legislation itself is a team of researchers. Dinner in Donegal, which was easier following the conclusion recognised as being a hugely held on 13 October at Harvey’s of his mammoth 28 years of powerful instrument for the Changing of the guard Point Country Hotel. Secretary service to the profession on the citizen, enabling him or her to The October/November period of the Association, Bernadette Council of the Law Society have draw on a half century of in the representative sense is a Smith, says: “It’s been 12 years been, perhaps, greatly European Court of Human time of change as bar since the last dinner was held exaggerated! We hear that Pat Rights jurisprudence in the associations elect new presidents and, owing to the success of this will now take on the busy mantle advocacy of his case. and officers for the coming year. event, we would hope to repeat of president of the Mayo Bar Whether this reluctance to In Dublin, Brian Gallagher has it in future years”. Association, succeeding Fiona embrace the new order is on just completed a highly A presentation was made to McAllister, who has been a very account of the perceived successful year in office. At a barrister Richard Lyons to mark successful president over the last lukewarm approach to the well-attended DSBA AGM, he the occasion of his taking silk. two years. G convention by the courts or was succeeded by the prominent Special guests included Judge simply on account of a lack of family lawyer David Bergin, John O’Donnell, Judge Derek Nationwide is compiled by Kevin awareness of the convention by with Michael Quinlan as his McVeigh, and Judge Sean O’Higgins, principal of the Dublin practitioners is difficult to gauge. vice-president. McBride. In addition, a dinner to law firm Kevin O’Higgins.
www.lawsociety.ie 7 LAW SOCIETY GAZETTE NOVEMBER 2006 NEWS
■ COMPETITION REPORT DUE The chairman of the ECHR Act 2003: A Preliminary Competition Authority, Bill Prasifka, said at a recent A new study shows that the ECHR can supplement or improve the conference that the authority’s protection of constitutional rights, explains Donncha O’Connell final report on competition in the legal profession would be CHR Act 2003: A PHOTOGRAPHYBRADSHAW/JASONCLARKE NICK PIC: published “by the end of the EPreliminary Assessment of year”. Impact was published on 23 The Competition Authority October in City Hall, Dublin, commenced its study of the and launched by Professor legal profession, together with a Conor Gearty of the LSE. number of other professions, in Authored by Donncha April 2001. In March 2003, the O’Connell, Siobhan Cummiskey authority’s economic and Emer Meeneghan with Paul consultants, Indecon, published O’Connell, it was commissioned the results of their research. by the Law Society’s Human The authority proceeded to Rights Committee and the publish its own ‘preliminary Dublin Solicitors’ Bar report’ in February 2005 and Association. The study considers the Society delivered a 90-page the likely impact of the At the launch of ECHR Act 2003: A Preliminary Assessment of Impact on 23 October, were (l to r) : Brian Gallagher, President of the Dublin response to that (which is incorporation of the European Solicitors’ Bar Association, Alma Clissmann (Law Society of Ireland), available on the Society’s Convention on Human Rights Donncha O’Connell, Dean of Law at the NUI, Galway and Noeline website) in July 2005. (ECHR) into Irish law in the Blackwell, Chairman of the Law Society’s Human Rights Committee Nothing further was heard for first two-and-a-half years of over a year but, in recent times, operation of the ECHR Act • Unequal treatment of birth to a person challenging the the Society has responded to 2003 . fathers in adoption process actions of such bodies on the requests from the authority to The ECHR was ratified by (Keegan v Ireland ), basis of convention- update certain statistics in Ireland in 1953. It protects a • Freedom of abortion incompatibility. relation to complaints against wide range of civil and political information ( Open Door v solicitors and in relation to rights but also entails positive Ireland ), Does this make any numbers entering the obligations on the part of states • The right to silence difference? profession. that can involve making (Quinn /Heaney /McGuinness Yes, because now the Irish Throughout the five-and-a-half provision of a social and cases), courts are obliged to have due years during which the economic nature. • Involuntary psychiatric regard to decisions of the authority’s study of competition The convention was given detention ( Croke v Ireland ), European Court of Human in the legal profession has been “further effect” in Irish law by • Delay before the courts (a Rights (ECtHR) whenever a underway, at some times more the ECHR Act 2003 on foot of number of recent cases). lawyer raises an ECHR-based actively than at others, the an undertaking given in the point in a case. In the past, Irish Society has engaged with it as Belfast Agreement of 1998. Before Now, under the 2003 act, it is courts could ignore such fully and as positively as that, the convention applied to possible to seek a declaration ECHR-based arguments on the possible. It has responded Ireland but not within Ireland. before the Irish courts that some basis that the convention only helpfully to all queries put to it, Some of the more significant aspect of Irish law or practice is applied to Ireland as a matter of as was publicly acknowledged cases taken by Irish people to incompatible with provisions of international law. by the previous chairman of the the European Court of Human the ECHR. This does not have In terms of substantive rights authority. Rights in Strasbourg included the effect of nullifying the law in protection, the ECHR does not Many hundreds of pages of the following issues: question (as the convention add much to the catalogue of written submissions and days of • Internment and emergency applies subject to the Irish rights protected by the Irish oral submissions were made by powers ( Lawless v Ireland ), Constitution), but it does act as Constitution, but it can be used the Society, with the benefit of • Legal aid and access to the a prompt to the Oireachtas to to supplement or improve the expert legal and economic courts ( Airey v Ireland ), change the law to bring it into level of protection of such support, on behalf of the • The absence of divorce and line with the ECHR. rights. profession. The Society was status of illegitimacy ( Johnston The 2003 act also imposes critical of many of the v Ireland ), an obligation on most state ECHR impact recommendations in the • Criminalisation of bodies (‘organs of the state’) to The case currently before the authority’s preliminary report. It homosexual acts ( Norris v discharge their duties and Irish courts involving the post- remains to be seen whether or Ireland ), functions in a manner that is operative transsexual, Lydia Foy, not the Society’s reasoned • Discrimination in relation to compatible with the convention raises a very important point arguments on that occasion planning ( Pine Valley v – and a range of remedies under the convention. The have received a favourable ear. Ireland ), (including damages) are open High Court decided – literally
8 www.lawsociety.ie NEWS LAW SOCIETY GAZETTE NOVEMBER 2006
■ COURTS SERVICE Assessment of Impact APPOINTMENT The Courts Service has days before a landmark decision is awaited as to whether or not the ECHR Act 2003 . appointed Dr Carol Coulter as a of the ECtHR recognising a it is necessary to exhaust the State bodies could be family law reporter to record and right to registration of the new option of challenging the imaginative in using the produce reports on family law sex ( Goodwin v UK ) – to the constitutionality of laws before obligation to behave in a proceedings for distribution to opposite effect. The matter is a declaration of incompatibility manner that is compatible with the media and the public. still before the Irish courts, and with the ECHR can be the ECHR by factoring this The appointment is being it is difficult to see how her considered. If the Supreme requirement into risk assessment made on a one-year pilot basis. treatment can be viewed as Court decides that this is the processes. The project will record and compatible with the convention case, it will render declarations Much work could be done by create reports of family law even if permitted by the of incompatibility quite the Human Rights Commission proceedings for the first time. It Constitution. How the courts marginal in terms of their to promote strong ECHR- will gather, assess and present resolve this apparent conflict significance as a remedy. compatible practices by state meaningful statistics on family- will be a matter of considerable In the vast majority of bodies. A more frequent use of law matters before the courts interest. judicial review cases pending in its role as amicus curiae (or and will assemble and distribute Other areas of likely the High Court in which the intervener) in cases taken by information regarding the family controversy are: the operations 2003 act is being pleaded, the others, as well as taking cases in law process and courts. of the Criminal Assets Bureau, issue involved is asylum and/or its own name, could do much to Following public advertise- same-sex marriage, the deportation. It remains to be promote the ECHR as a viable ments, proposals for provision of independence of and seen whether or not the ECHR instrument of human rights the service went through an institutional arrangements for Act will impact significantly on litigation in the Irish courts. For evaluation process. administrative decision-making the outcomes in these cases. this to be achieved, the Dr Coulter has worked for the bodies, freedom of expression In cases involving delay in commission would require much past 20 years for The Irish Times and information, and services the administration of justice (for better funding from the state. and has worked as its legal for children and families. example, in sexual-abuse cases), Practitioners advising clients affairs correspondent for the last it is clear that the courts are will now have to consider the seven years, writing extensively Incompatibility willing to use the ECHR to ECHR issues raised by a case, on family law matters. In 2001 No declaration of bolster their reasoning on Irish and not just the issues of she was awarded the Law incompatibility has yet been law in this area, although it is domestic law. Although this may Society’s Justice Media Award given by the courts in any case arguable that the courts were, not lead to dramatic results in print journalism for writing on in which the act has been used. in any event, moving in this before the higher courts, it will family law. In 1990 she won the This may be attributable to a direction prior to the passing of impact incrementally on National Media Award for decision of the Supreme Court decision-making in the lower campaigning journalism for her in a housing eviction case courts and provide a rich source coverage of the Birmingham Six (Fennell v Dublin City Council ) The ECHR study is available of inspiration for judges who and Guildford Four miscarriages that the act was not from Esther McCormack, Law wish to demonstrate a of justice. retrospective and did not apply Society of Ireland, price €12 consciousness of the wider She has also written a to cases already proceeding at including p+p (payment in human rights dimensions of number of books and essays on the time of its coming into advance, or as a free download cases. G cultural and social issues, and effect (31/12/2003). from the Law Society’s website edited the Undercurrents series At the time of writing, a www.lawsociety.ie. Donncha O’Connell is Dean of of pamphlets on current issues decision of the Supreme Court Law, NUI Galway. for Cork University Press.
www.lawsociety.ie 9 LAW SOCIETY GAZETTE NOVEMBER 2006 NEWS
■ RETIREMENT TRUST SCHEME Unit prices: 1 October 2006 Bar president goes to the Bar Managed fund: €5.743451 All-equity fund: €1.337744 he president for 2006 of the Law Committee. She will base Cash fund: €2.679803 Tcountry’s second biggest bar her practice as a barrister in her Long-bond fund: €1.40868 association, the Southern Law native Cork. Association, who was also a “Everyone in the Law ■ DIVORCE PROPOSALS member of the Law Society Society will miss Sinéad’s The Government has decided not Council, has resigned both pleasant and positive to participate in the implementa- positions on her admission last contribution in Blackhall Place tion of new EU Commission month as a barrister. Sinéad and wishes her great success in proposals on divorce and legal Behan is almost certainly the this new stage of her career,” separation. The proposal follows a first current holder of either of said director general Ken 2005 EU Green Paper on the these positions to become a Murphy. “Sinéad transferred to subject. In November 2005, the barrister and, as a result, is one the Bar in a matter of months. Taoiseach made clear that the of the most prominent solicitors The barriers to transfer Government “was not in favour of ever to switch from one branch Martin A Harvey & Co, dealing between the two branches of extending to Irish courts jurisdic- of the legal profession to the with a wide range of litigation the profession are not high, but tion to grant a divorce to an EU other. matters with a particular the Society is committed to national based on a substantially Behan had practised for emphasis on family law. She had working with the Bar Council different law of the state from many years – up to last month, been, for a number of years, a and the King’s Inns to reduce where he/she came from”. as a partner in the Cork firm member of the Society’s Family them even further.” ONE TO WATCH: NEW LEGISLATION EC (Eligibility for Protection) representations should also be protection is the prohibition against international or internal armed Regulations 2006 made in respect of clients who torture in article 3 of the ECHR conflict. The EC (Eligibility for Protection) have a leave to remain application and the UN Convention against Regulations 2006 , SI no 518 of pending before the minister. Torture . For example, some These criteria will cover generalised 2006, came into effect on 10 Pending the enactment of the unaccompanied children arriving violence or natural disaster. The October as required by Council proposed Immigration and here do not really know why they applicant will have to show that Directive 2004/83/EC of 29 April Residence Bill , applications must were sent away, or have fled from there are substantial grounds for 2004. According to the Minister for continue to be made to the a situation of general violence or believing that he or she, if returned Justice, Equality and Law Reform, minister, and will be decided by the natural disaster, and so require to the country of origin, would face their content is already provided for Irish Naturalisation and Immigration considerable protection. This type a real risk of suffering serious in the heads of the Immigration Service of the Department of of protection has been long sought harm, as defined above. The threat and Residence Bill , which is Justice. and will give legal status to people of serious harm may originate currently being drafted. In due The regulations are particularly in need of protection who, from: course, the regulations will be welcome because the definition of previously, were reliant on • The state, replaced by the act. refugee in international law, humanitarian leave to remain at • Parties controlling the state or a implemented in the Refugee Act the discretion of the minister, substantial part of the state’s New ground for leave to remain 1996 , does not include all those without any legislative guidelines. territory, and Solicitors acting for asylum seekers who need protection. Ireland has a • Non-state actors, if the state is whose cases are already in the number of international obligations Serious harm unable or unwilling to provide system should consider making to protect those who flee. The regulations provide for a protection. supplementary applications under Subsidiary protection differs from subsidiary (or complementary) these regulations, to provide for refugee protection because it does scheme to give permission to Acts of persecution the event that the asylum not require the applicant to have remain in the state to people who The acts of persecution must be application is not successful. An any connection to the five grounds do not qualify as refugees, but who sufficiently serious to constitute a application for subsidiary contained in the 1951 Refugee are in need of protection because severe violation of human rights, or protection must be made within 15 Convention , and shows that the they would face a real risk of have an accumulative effect that is working days from the receipt of persecution feared is for reasons suffering serious harm, defined as: similar. Acts of persecution can notification of the refusal of the of race, religion, nationality, • Death penalty or execution, take the form of: asylum claim and can be made in membership of a social group or • Torture or inhuman or degrading • Acts of physical or mental addition to section 3 political opinion. The stark reality is treatment or punishment, or violence, including acts of representations (that is, a leave to that major internal and • Serious and individual threat to sexual violence, remain application). While the international armed conflicts put a civilian’s life or person by • Legal, administrative, police, regulations are not retrospective, people in great jeopardy. Another reason of indiscriminate and/or judicial measures which solicitors may consider that reason for having subsidiary violence in situations of are, in themselves,
10 www.lawsociety.ie NEWS LAW SOCIETY GAZETTE NOVEMBER 2006 Law societies share similar issues s the cliché has it, ‘all the level of legal costs are pretty Apolitics are local’. But in the much universal. Other issues view of Law Society Director throughout the globe include: General Ken Murphy, it is at the numbers entering the least equally true that ‘all politics profession, the poor public are global’. image of the profession, the As a recently re-elected consumer agenda, the pressures member of the executive of including the ever-growing time IILACE, the International and financial pressures of Institute of Law Association modern practice, together with Chief Executives, he is in regular the anti-money laundering contact with his counterparts Members of the executive of IILACE (l to r) : Raj Daya (South Africa), requirements on the profession Jan Martin (South Australia), Douglas Mill (Scotland), John Hoyles across the globe. (Canada) and Ken Murphy (Ireland) and, most worrying of all, a “I chaired a session at the belief that many governments most recent IILACE conference Australia each in turn listed the practically identical. Reviews by are consciously using some or all in which national law society biggest issues on the current government and external of the above to erode traditional chief executives from many agenda for their societies and regulators of competition in the core values of the profession and, different parts of Europe, North their members,” says Murphy. profession, the manner in which ultimately, the legal profession’s America, Africa, Asia and “Everyone’s agenda was the profession is regulated and independence.”
discriminatory or which are education, healthcare and social or serious harm. Under the Committee has recommended that implemented in a discriminatory welfare benefits. Refugee Convention , only a provision should be made for the manner, The regulations set out what state can be relied upon for granting of a temporary permission • Prosecution or punishment that must be considered in deciding an protection, as it is accountable to remain in these cases, with is disproportionate or application, and provide that the in international law, and is a provision for periodic review. This discriminatory, fact that the applicant has already party to human rights would take a child out of legal • Denial of judicial redress been subject to persecution or instruments. Rwanda is an limbo while the relevant authorities resulting in a disproportionate serious harm, or threats, is to be example of the failure of an assess what is in the best or discriminatory punishment, regarded as a serious indication of international organisation to interests of the child. An • Prosecution or punishment for a well-founded fear. provide protection. application for temporary leave to refusal to perform military • Certain people are excluded remain should be able to be made service in a conflict, where Role of the ECJ from the effect of these in its own right and not as a performing military service The European Court of Justice regulations, for example, those defence to the threat of would include crimes, war (ECJ) will have competence to guilty of war crimes. The deportation. Rather than the crimes or crimes against consider any questions of the directive and regulations do not exhaustive list as currently set out humanity, and interpretation of the directive, and make clear what can be done if in section 3 of the Immigration Act • Acts of a gender-specific or it is expected that interesting case their removal would expose 1999 , a non-exhaustive list of child-specific nature. law will emerge to guide member them to risk of torture, inhuman ‘leave to remain’ grounds should states. The highest domestic or degrading punishment, a be set out in legislation, with the Applying for subsidiary protection courts must refer a question to the dilemma which has already minister obliged to give reasons for The application for subsidiary ECJ unless it concerns: faced the British authorities. refusing the application. The actual protection may be made at the • An ‘ acte clair ’ – ECJ has already Under these regulations, they procedure for making the same time as an application for passed judgment, are not entitled to a residence application, which is currently by refugee status, or afterwards, but • An ‘ acte eclaire ’ – there can permit. way of written application, should subsidiary protection will not be reasonably be no doubt, or make provision for an interview, granted until the refugee decision • The issue is not relevant for the While most welcome, the with the child having appropriate is made and is negative. A grant of matter at hand. regulations do not deal with legal representation and the input subsidiary protection results in another problem that arises, of an appropriate guardian ( Rights- permission to remain in the state Two interesting points of law that particularly in relation to based child law: The case for generally for three years, and is may be tested are: unaccompanied minors. As the law reform , March 2006). G renewable. Successful applicants • Whether a non-state or currently stands, until an will have the same entitlements as international organisation in application for asylum is made, a Alma Clissmann is the Law citizens to family reunification, control of territory can give child has no legal status in the Society’s parliamentary and law travel, employment, trade and protection against persecution country. The Law Reform reform executive.
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NEWS LAW SOCIETY GAZETTE NOVEMBER 2006 human rights watch Extraordinary rendition: Ireland’s international human rights obligations Ireland has been implicated as one of the countries involved in facilitating the extra-judicial transport of suspects, writes Suzanne Egan he term ‘extraordinary general of the Council of Trendition’ is not a term of Europe has also concluded that international law but, rather, violations of the ECHR in refers to a US extra-judicial connection with the process of procedure for transporting extraordinary rendition could ‘terrorist’ suspects from one have taken place in virtually all country to another for the Council of Europe member purposes of interrogation or states. On foot of this report, imprisonment in circumstances the secretary general that give rise to a risk of subsequently announced a torture, cruel or inhuman series of proposals for follow- treatment. Welcome to Shannon. Hope you enjoy your stay up action by Council of In June 2006, the Europe member states. In Parliamentary Assembly of the The commission based its believing that the state’s particular, he has recommend- Council of Europe passed a advice to government on the territory is being used to ed the preparation of a Council resolution condemning what it state’s obligations under facilitate the transportation of of Europe legal instrument on termed the “spider’s web” of international human rights law. any person to places where the legislative and administra- CIA transfers and detentions Specifically, the commission there is a real risk of torture or tive framework for the involving either active or cited the UN Convention ill-treatment. The commission functioning of security services passive collusion on the part of Against Torture, which obliges has also rejected the in the territory of the member member states. The report on the state to take effective government’s reliance on states. The opportunity still which the resolution was based measures to prevent torture or diplomatic assurances from the exists for the Irish Government included Ireland as one of the other acts of cruel, inhuman or US that prisoners are not to play a leading role in countries implicated, for degrading treatment or being transported through the bringing this instrument to allowing Shannon Airport to punishment in its territory. territory. In the commission’s fruition and to help eradicate a be used as a stopover point by This positive obligation to view, diplomatic assurances practice which, in the words of CIA planes and military prevent torture is also implicit that cannot be legally enforced the UN High Commissioner aircraft involved in possible in article 3 of the ECHR. are not an adequate guarantee for Human Rights, is a rendition operations. Article 3 includes an obligation against torture. “complete repudiation of the In December 2005, the to ensure that an individual is law and of the justice system. Human Rights Commission not returned to a state where International enquiries No state resting its very called on the Irish there are substantial grounds The views of the commission identity on the rule of law Government to seek agreement for believing that she or he will have been confirmed by should have recourse or even from the US authorities to be subjected to treatment in authoritative international be a passive accomplice to such inspect the aircraft in question violation of article 3. The enquiries. An expert legal body practices”. G on landing at Shannon or at European Court of Human of the Council of Europe any other Irish airport. The Rights has further ruled that concluded in March 2006 that Suzanne Egan is a lecturer in commission’s interest in article 3 contains a procedural the prohibition on transferring international human rights law passing the resolution is based obligation on contracting a person to a country where and a member of the Irish on its statutory function “to states to conduct an effective, there exists a risk of torture or Human Rights Commission. keep under review the official investigation where an ill-treatment “…also applies in adequacy and effectiveness of individual raises an arguable respect of the transit of There is interest in a group of law and practice in the state claim that he or she has been prisoners through the territory lawyers working on the use of relating to the protection of seriously ill-treated in violation of Council of Europe member Irish law to challenge breaches of human rights” and to make of article 3. Drawing on these states: they must therefore international law. If you are recommendations to provisions, the commission refuse to allow transit of interested in being involved, government about measures took the view that the state prisoners in circumstances please contact Alma Clissmann, “to strengthen, protect and must conduct an official where there is such a risk”. secretary to the Human Rights uphold human rights in the investigation where there are In a comprehensive report Committee, at a.clissmann@ state”. substantial grounds for on the subject, the secretary lawsociety.ie or 01 672 4800.
www.lawsociety.ie 13 Do You Need to ATTRACT BETTER BUSINESS? U.S. BUSINESS IMMIGRATION LAWYERS O'BRIEN & ASSOCIATES specializes in advising on U.S. immigration law 4 Sale by Owner issues and drafting U.S. visa applications for: is a property sales service. It can run alongside your existing practise to enhance your business profile and provide clients ■ Professionals with a cost effective way of selling property. ■ Intra-company transferees ■ Investors • promote your business and client base ■ Multi-national managers • generate goodwill and more profitable legal work ■ Outstanding individuals in areas of athletics, business, entertainment, Join the 4 Sale by Owner network. science We supply all documentation, software and website. Excellent track record representing Contact James Cahill, Solicitor. Irish companies and individuals. Personal service and fast Tel:094 902 5500 or email: [email protected] turnaround assured. Our U.S. offices are located in New York City, with staff also in Los Angeles. Our Irish office is located in Kilkenny.
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Please see our website for details www.obrienandassociates.com MEMBER OF American Immigration Lawyers Association (AILA) www.4salebyowner.ie NEWS LAW SOCIETY GAZETTE NOVEMBER 2006 Louise heads up support services ouise Campbell is the new main focus was to carry out a She is also investigating the Lsupport services executive at survey of solicitors in order to establishment of a scheme for Blackhall Place. Originally from clearly identify the needs of the solicitors under stress, the Kilrush in Co Clare, she has average solicitor. As a result, the setting up of a practice advisory lived in Dublin since 1992. In Law Society decided to appoint service, developing a directory 2001, she qualified as a solicitor a solicitor with experience in of services and managing a suite and has work experience in both private practice, dedicated to of existing member services. private practice and in-house. developing and delivering Louise starts a series of She joined the Law Society in support services to solicitors. support services articles in this June 2006. Louise will liaise with local issue of the Gazette , beginning The appointment of the bar associations and will be an with ‘Solicitor Link’ (see below). support services executive important ‘point of contact’ for Anyone interested in followed from a review members seeking assistance – contacting Louise about support conducted by a special task force especially for those unaware of develop additional structured services should phone: under the chairmanship of Ms the appropriate service or information systems between 01 881 5712 or email: Olive Braiden. The task force’s contact person. Her aims are to the Society and its members. [email protected].
SUPPORT SERVICES FOR MEMBERS SOLICITOR LINK A ONE-STOP SHOP WHEN BUYING, SELLING OR MERGING Support services executive Louise Campbell starts a new series on the many useful services provided by the Law Society for its members
olicitor Link’ is a totally you want to buy, sell, merge or • 50% conveyancing, 25% civil support services executive: ‘S confidential service co- share overheads, and your litigation, 15% probate, 10% 1) Law Society guidelines for ordinated by the Law Society’s preferred location. The original family solicitors retiring or ceasing as support services executive. She completed form should be • Sell or merge. sole practitioners or sole maintains a register of firms returned to the support services OR principals, and for solicitors interested in buying, selling, or executive with a cheque for €100. SL/R7 purchasing practices from merging practices or sharing • County Wexford them. overheads. This includes Next steps • Not yet established 2) A list of consultants with solicitors interested in buying for The register is maintained in two • Buy (North Wicklow, South experience of valuing and the first time. The service helps sections – ‘Dublin’ and ‘Rural’. Dublin). negotiating the sales and to introduce solicitors with similar Depending on whether you are purchases of solicitor practice requirements. The interested in buying, selling, When you have decided which practices and who provide identities of those using the merging or sharing overheads with entries on the register you would management consultancy and service remains anonymous until firms inside Dublin, or rurally, you like the support services executive other services to solicitors’ both parties agree otherwise. will be sent a copy of the relevant to contact on your behalf, you firms. Though the Society section of the register, showing should write to her, detailing all cannot recommend any How do I register? the profiles of potentially relevant reference codes. She will individual consultant, this list A registration form can be interested Dublin or rural firms then write to your chosen firm(s) of random names may be of obtained from the support and solicitors. All information at or solicitor(s), sending them your assistance. services executive (see contact this stage is confidential, with profile, similar to the above 3) A practice management details below) or can be each firm or solicitor being examples. information leaflet, written by downloaded from the members’ allocated a code. The following two If your chosen firm or solicitor Charles Russell, on the area of the Law Society’s website examples of standard entries on gives written authority to disclose valuation of practices. (www.lawsociety.ie, under the the register show 1) a South their identity on a reciprocal basis, 4) Copies of Gazette articles on heading ‘Solicitor Link’ in the County Dublin firm interested in then both parties will be informed the valuation of practices. ‘Grow your Business’ section). The selling or merging, and 2) a about each other’s identity. The form asks for contact details and solicitor in Wexford with no current service ceases at this point, with To contact the support services certain information on the firm, seeking to buy a firm in the remaining negotiations executive, Louise Campbell, about applicant’s circumstances, North Wicklow or South Dublin: conducted between you and your this or any of the Law Society’s including: the number of partners SL/D6 chosen firm or solicitor. other member services, please and fee-earners in the firm, the • South County Dublin Copies of the following are also phone: 01 881 5712 or email: type of work carried out, whether • Two partners available upon request from the [email protected].
www.lawsociety.ie 15 LAW SOCIETY GAZETTE NOVEMBER 2006 NEWS FEATURE Child law conference reveals The annual Human Rights Conference has argued that children’s rights are not being met by the criminal justice system and that coordinated services must exist to meet children’s needs chieving rights-based child Geoghegan and MacMenamin in Alaw was the focus of this the Belgian family and Baby Anne year’s Human Rights cases, within the limitations Conference, held at Blackhall imposed by the Constitution on Place on 14 October. All marital children’s interests. He speakers – judges, psychologists, also described two English cases academics and representatives where judges were faced with of government agencies – delicate and difficult choices, and appeared to be in agreement how they approached them from that children’s rights are not a rights perspective: the recent being met by the current conjoined twins case and the criminal justice system, and Gillick case, which resulted in that earlier and better guidelines for doctors in relation coordinated services need to to children’s right to autonomy exist to enable children’s needs in healthcare. and rights to be met. The Child psychologist Dr Pat conference was co-sponsored Dolan spoke of the history of by the Law Society’s Human Speakers and participants at the conference children’s rights campaigning in Rights Committee and the Ireland over the past 100 years, Human Rights Commission, in Children’s Rights Alliance, law in such cases. The ideal in very different times, and the association with the whose wife Anne Rowland BL would be involvement of the heroic work of Dr Kathleen Ombudsman for Children, and teenage children were courts only in exceptional cases, Lynn and others. He proposed a Emily Logan. present. with crises averted by earlier number of principles for Dr Alpha Connelly of the professional intervention. Mr consideration by judges and Human Rights Commission Dilemma Justice MacMenamin referred to other professionals in their and Law Society Vice-President Mr Justice John MacMenamin, recent ECHR case law, dealings with children. Professor Philip Joyce welcomed the 200 who deals with the Minors’ List identifying a duty to vindicate Sheila Greene outlined the people who attended. Dr in the High Court every children’s rights by all measures development of thinking that Connelly described the Thursday, spoke about the that may reasonably be expected now sees the importance of the significant findings of the UN dilemma facing judges and of the state. He noted that this role of children as social actors, Committee on the Rights of others in relation to troubled proposition has not yet been not only influenced by their the Child of 29 September, children. Their right to liberty considered in this jurisdiction. society, but also contributing which provide an action list for conflicts with their protection, Geoffrey Shannon of the Law vitally in those spheres in which remedial action by the raising difficult constitutional Society spoke about the they have real influence – government. The vice- issues. The ECHR permits such contribution of the judiciary to particularly school and home. president paid a particular detention if there is an finding solutions to legal This strand of thinking has tribute to Ray Dooley, the educational purpose (widely problems involving children. He resulted in it being unthinkable outstanding and recently defined), but nonetheless, there discussed recent innovative to undertake any examination of deceased CEO of the is an elision of civil and criminal decisions of Judges Finlay- the conditions of children
JUSTICE MINISTER ANNOUNCES EXPERT GROUP he Minister for Justice, Michael McDowell pre-nuptial agreements following the recent In the McFarlane case, the House of Lords held TTD, recently announced his intention to set Miller and McFarlane judgments. This is not that Julia McFarlane was entitled to £250,000 up an expert group to advise the government on surprising, given the fact that some 30,000 per year from her husband for an indefinite whether legislation should be introduced to allow millionaires currently reside in Ireland. Neither period, rather than a mere five years as was for the recognition of pre-nuptial agreements. A Alan Miller nor Kenneth McFarlane had a pre- held by the Court of Appeal. prenuptial agreement is a pre-wedding contract nuptial agreement. The central purpose of a pre-nuptial by which a couple, intending to marry, set out In the Miller case, the Law Lords held that agreement is that of offering certainty for the how property and finances would be divided in Melissa Miller could keep the £5 million she future. It is primarily about money and property the event of a separation or divorce. was awarded by the Court of Appeal, after a but may also contain confidentiality clauses Irish family lawyers have experienced an childless marriage lasting less than three years about lifestyle during the marriage. There is increase in the level of client enquiries about to Alan Miller, a multi-millionaire fund manager. nothing preventing individuals intending to marry
16 www.lawsociety.ie NEWS FEATURE LAW SOCIETY GAZETTE NOVEMBER 2006 consensus on culture change without including their input in Judge Michael Patwell spoke the process – very relevant in the about his problems on the current debate on under-age sex. District Court bench in relation to representation for children. One-stop family courts Solicitor Catherine Ghent spoke Mr Justice John Gillen, the about her problems in securing senior judge in family law proper care for some of her matters in the North, set out a clients passing through the comprehensive plan for what he Children’s Court, and their sees as the way forward – one- unnecessary criminalisation. Dr stop family courts to deal with Pauline Conroy recounted her children, separation, domestic experience of the lack of out-of- violence and child crime, hours social-worker support for operated by specially trained children, and the breakdown in judges and professionals, with some crucial services. Overall, early intervention by social Dr Pat Dolan, Prof Sheila Greene, and Mr Justice John Gillen there was considerable consensus workers and mediators and among the speakers and those recourse to the court only as a the Convention on the Rights of the talking about her relationship attending about the reality of a last resort. He recounted his Child . The second approach, with horses: “You respect me, failure of children’s rights and experience in one case as the when gaps are identified by an and I’ll respect you.” National corresponding duties, and the 12 th judge involved with one audit and not remedied, is to director of the new Youth Justice need for coordinated, multi- family, most of the others engage in litigation to have the Unit Michelle Shannon outlined disciplinary and re-thought unknown to each other. He gap formally acknowledged and the steps being taken and plans approaches – removed as much advocated one judge/one family, remedied. She echoed Dr Alpha being made to bring all of the as possible from the criminal or at least comprehensive Connelly in stressing the Children Act 2001 into effect, justice system. The challenge sharing of information, and a importance of the recent stressing the need to build was to achieve the necessary collaborative multi-disciplinary findings by the UN Committee cooperation and stable systems culture change and the political approach in partnership with on the Rights of the Child in over time. will to implement it. The the courts. It was refreshing to relation to Ireland, which The conference was attended conference itself, by revealing a hear someone of his experience include 86 specific by a wide range of the people broad consensus, made its own and prestige make the case so recommendations. interested in the question of notable contribution to this cogently and persuasively for children and their rights from essential culture change. what is wished for in this Skinner principles many different perspectives. Papers from the conference are jurisdiction also. Director of the Probation They included judges, senior available at www.lawsociety.ie After lunch, Dr Ursula Service Michael Donnellan civil servants, professionals and under ‘Society Committees’, Kilkelly spoke about a dual spoke about attitudes to children members of NGOs. Two ‘Human Rights’, ‘Conference approach to achieving legal in the recent past, his experience participants who spoke from the Papers’, or through the link on the rights for children. The first with detained children and the floor were fathers who were home page in ‘Current News’. G involves auditing systems (for eight ‘Skinner principles’, which suffering estrangement from example, the District Court, or in his experience, work well, their children, one of whom Alma Clissmann is the Law healthcare in hospitals) against finishing an attractive slide emphasised the bad effect of the Society’s parliamentary and law international standards, such as presentation with a teenager in camera rule. reform executive. TO ADVISE ON PRENUPTIAL AGREEMENTS from signing a pre-nuptial agreement. The part of Irish family law. It is because the court is therefore ripe for the matter to be addressed difficulty is that the Irish courts are not obliged has a wide discretion to determine ancillary in a comprehensive manner by the legislature. to enforce such an agreement should the relief following a judicial separation or divorce The law should be clarified to ensure that pre- parties separate or divorce. that pre-nuptial agreements are believed to be nuptial agreements are valid and enforceable to Irish family law gives judges a wider unenforceable in Ireland. the extent that they support and foster the discretion over the distribution of a separating With the enactment of the Family Law interests of children and spouses. It should be or divorcing couple’s assets than their (Divorce) Act 1996, the path is now clear for noted, however, that even if, following Minister counterparts virtually anywhere else. It is likely giving effect to the enforceability of pre-nuptial McDowell’s review, the legislature steps in to that the unfettered discretion afforded to the agreements in limited circumstances. No longer support pre-nuptial agreements, the judiciary courts, in light of constitutional and statutory does article 41 of the Irish Constitution obstruct should be allowed to retain a wide discretion to obligations, will continue to remain an integral the enforceability of such agreements. The time vary their terms.
www.lawsociety.ie 17
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Ã Ä Å Æ Ç È É Ê É Ë Ì Ì Ë Í Î Í Î Ï Ð Ñ È É Ê É Ë Ì Ë Ë Ò Ó Î Ê NEWS FEATURE LAW SOCIETY GAZETTE NOVEMBER 2006 Major changes to mental health involuntary admissions November 2006 marks an important milestone for Irish mental health services and the associated legal framework for the admission of patients without their consent
he Minister for Health admitted on an involuntary Tand Children announced basis. Once notified, the 1 November as the date for the commission arranges legal remaining parts of the Mental representation by a solicitor, an Health Act 2001 to commence. independent medical This will result in major changes examination and report, and for many aspects of mental review by a mental health health services as the current tribunal. The review takes place provisions of the Mental at the hospital or psychiatric Treatment Act 1945 are replaced unit where the patient is with a modern framework for receiving care. These are now involuntary admission that referred to as approved centres recognises new human rights in the 2001 act and must be standards in this area. There has registered with the commission. been tremendous interest by It is hoped the 2001 act will professionals working in this improve patient confidence in area and many welcome the the involuntary admission changes associated with the Health minister Mary Harney: the new act is more progressive procedures and stimulate than recent British reforms long-awaited 2001 act. increased focus on the needs of Deficiencies in the 1945 act patients at what can be a very have long been recognised and representation is arranged at the consultant psychiatrists, some of stressful time for them and their unsuccessful attempts at reform outset for the patient. whom will sit as tribunal families. have been made in the past. The 2001 act requires the members and others who will Further details are available Scotland started similar Mental Health Commission to provide independent medical from the Mental Health legislative changes in 2005, and appoint mental health tribunal examinations and reports. In Commission website, Northern Ireland is currently members and provide addition, a large number of www.mhcirl.ie. conducting an extensive review administrative support. The solicitors have applied and been (The Law Society intends to of its legislation, as it is broadly changes will be challenging for appointed under the publish a practice note to assist based on that of England and mental health services but will, commission’s Mental Health solicitors on the tribunal panel Wales, where reform is also in turn, lead to more innovative Legal Scheme, and they have shortly.) G being discussed. The 2001 act resources in terms of meeting also received training. will place Ireland’s mental health patients’ needs. The services Following commencement, Gerry Cunningham is Director of legislation far in advance of have been very proactive in the Mental Health Commission Mental Health Tribunals at the current arrangements in terms of preparing for commencement, must be notified of every patient Mental Health Commission. protecting the rights of people and the level of commitment at involuntarily admitted. It all levels towards ensuring Irish introduces mental health mental health services comply SOLICITORS’ tribunals that have the power to with the act’s provisions on best review cases and, where interests and human rights is HELPLINE appropriate, discharge patients. impressive. The commission’s Some parts of Britain have been training officer, Rosemary The Solicitors’ Helpline is available to operating a similar form of Smyth, has led an extensive assist every member of the profession tribunal for some time, but the programme of training with with any problem, whether personal or mental health tribunals to be those selected for the professional introduced in Ireland as a result commission’s panels. These of the 2001 act are more include chairpersons of the progressive, in that they provide mental health tribunals, who 01 284 8484 THE SERVICE IS COMPLETELY CONFIDENTIAL AND an automatic review process in must be practising barristers or TOTALLY INDEPENDENT OF THE LAW SOCIETY each case and legal solicitors, lay members and
www.lawsociety.ie 19 LAW SOCIETY GAZETTE NOVEMBER 2006 VIEWPOINT
Constitutional change is needed
The Constitution should be amended to enshrine the rights that children are entiled to as citizens, argues Fergus Finlay
n Barnardos, we believe that have to give, commuting route to the city’s Ithe time has come for a • That our fundamental law primary employment hub. The referendum on the rights of the should be committed to the city counsellors convened and child. Later this month, we principle that we shall seek tackled with energy this intend to publish a possible to promote the welfare of all growing problem. They built a wording for a new our children equally, but that bridge across it. constitutional provision, and we we should be especially It is, I’m told, a fine feat of hope at the same time to be committed to safeguard with engineering. People no longer able to demonstrate that there special care the interests of have to drive through the is a considerable body of public children who are decay; they can ‘sail’ above it. I opinion in support of such a disadvantaged by economic, can’t but wonder what the change. social or cultural exclusion, outcome might have been if the Earlier this year, we or by disability, same funding and ingenuity welcomed the appointment by • That we should be prepared that it took to build the raised Fergus Finlay: it’s time for a the government of independent referendum to set out a number of highway had been invested in experts to monitor and report specific legal, educational the ghetto. on the law as it affects children, lawyers. These recommendations and material rights, based on Since the start of this but we are convinced that any have also been systematically the fundamental principle century, Ireland’s economic independent oversight of that ignored over the years, an that in any situation where commentators have regaled us law will immediately detect a illustration, perhaps, that the the interests of a child are with tales of the rising tide. glaring gap. And that gap is the rights of children are always involved, those interests will What we don’t hear about is position of children within the regarded as being of secondary be the first and paramount the detritus left beneath the entire legal framework. importance. consideration, swell. As our recent 1916 The most recent changes • That we should recognise the celebrations confirmed, we are affecting the law in relation to Commitment to change family as the natural a mature, self-confident nation sexual abuse of children, for That must end. In the course of environment for the growth who can look back without bile instance, have within them the the campaign we intend to and well-being of children, or rancour. But we’re done with potential to make abused launch, we will be asking each and that we should be looking down. In Ireland we children, once more, the victims of our political parties, in the prepared to support families, build motorways, look straight of an adversarial system. It’s context of their preparations for and all those who are trying ahead and cruise past our interesting to note that at the the next general election, to to provide a family deprivation and disadvantage at heart of recent controversies was include a commitment to environment, accordingly. 120km per hour. Yet what we a report by the Law Reform change in their election can’t get away from is the cost Commission dating from 1990, manifestos. And we will attempt Social engineering! of ignoring our problems. which cast doubt on the to spell out in detail the kind of An American intern working in Every day, Barnardos works constitutionality of statutory changes that we believe are Barnardos this summer told me with children and their families rape provisions. There has been necessary. about a city in the US – she who struggle with poverty, who much comment since about how Until we have completed the couldn’t remember which one – feel alienated and forgotten, that report has been ignored all legal and other research we are that had a problem with a whose expectations are through the intervening years. undertaking, we can’t be sprawling urban ghetto. The neutered through lack of access But that report also proposed definitive about a proposed new ghetto pretty much to the support networks they mandatory reporting in all cases set of words for the encompassed all the social need to lift them out of the of suspected abuse, and it Constitution. We believe, issues of the day: huge poverty trap. proposed a way of dealing with however, that the following unemployment rates, intense The home environment is the victims of abuse in the legal broad principles should apply: poverty, guns, drugs, and early oftentimes chaotic, and parents setting, including the idea of • That humanity owes to its school leaving. Significantly, it battle to make ends meet. Any cross-examination by trained children and to the state of was also crawling outwards and extra, unanticipated costs – children’s guardians instead of childhood, the best that we now intersected the main such as a school trip or a new
20 www.lawsociety.ie VIEWPOINT LAW SOCIETY GAZETTE NOVEMBER 2006 view point to protect children’s rights
pair of shoes – can tilt the night without having had a anguish and feeling of education. It seems ludicrous burden to an unmanageable substantial meal. One in ten helplessness as her child was that the most vulnerable level. children can’t concentrate in kept on a two-year waiting list members of society are Child poverty exists in school because they’re cold and for speech therapy. And this is accorded the least protection. Ireland. Yet it is only in the past under-nourished*. One in ten at a time when Ireland has We have a new motto in 12 months, and following much children is a conservative never been wealthier. Barnardos, and it is that ‘No campaigning on Barnardos’ and estimate. These figures don’t Listening to debates that child gets left behind’. That many others’ part, that this include children who are range from barring children means that we believe that realisation has slipped into the homeless or who are in public wearing hoodies in every child has inalienable political consciousness. This accommodation such as supermarkets to the increasing rights, and that these rights year’s budget was the first in a hospitals, hostels or direct and distressing costs of entitle every child in Ireland to decade that the words ‘children’ provision centres. childcare, I have to question protection, to education, to and ‘poverty’ were banded The impact of poverty on where our children fit into the health services and to freedom together in the same sentence. our children in Ireland is far- frame. It seems increasingly from poverty. I don’t think that It’s heartening to see the reaching. Many of those on low that the weight is shifting from this is an awful lot to ask. The awakening, but it begs the incomes cannot afford to bring our children being our political system agrees with us question how the one in ten their child to the doctor, dentist responsibility to being our in principle, because an children who are living in or optician. School-work nation’s burden. If we are really Oireachtas committee has consistent poverty in Ireland* suffers because the child has serious about protecting, already advanced the could have slipped past nowhere to do their home- cherishing and valuing all proposition that our unnoticed: 100,000 children work in a house that is children in Ireland, we must Constitution should be should make a lot of noise. But oftentimes over-crowded, damp accord our children the rights changed. It’s time to put these children, like every child and without central heating. that they should be entitled to principle into practice. in Ireland, have no political Chest infections are rife and as a citizen of our state. We *(EU SILC study, Central voice and, under the stress levels among families are must ensure that all children Statistics Office, 2005) G Constitution, no rights. spiralling. are provided with the support One in ten children in I spoke to one young mother they need to maximise the Fergus Finlay is Chief Executive today’s Ireland go to bed at recently who talked of the opportunities offered by of Barnardos
www.lawsociety.ie 21
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N O P Q N P R S T U V W X S P Y Y Z [ S P Y W X S T Z R S [ W P R P Y O \ U ] Z [ O R P N S [ \ W Z P Q N LETTERS LAW SOCIETY GAZETTE NOVEMBER 2006 letters
Send your letters to: Law Society Gazette , Blackhall Place, Dublin 7, or email: [email protected] Not so civil review of ‘liability’? From: Anthony Kerr MA, LLM, • To amend and declare the law The fact that it is part of the BL, senior lecturer in Law at concerning concurrent fault, Annotated Legislation series UCD and dictates its format. To criticise refer to the review of the third • To re-enact the statutory the author as to matters such as Iedition of The Civil Liability provisions in regard to font size and spacing betrays an Acts published by Thomson damages for the benefit of ignorance of the author- Round Hall, which was dependants of persons fatally publisher relationship. Unless contained in your October 2006 injured. both are one and the same, no issue at p49. The chairman of responsibility can be laid at the your editorial board was The only section of the 2004 act door of the former as to censorious of both my failure to that applies to any of these areas publishing decisions the latter include “no more than a passing is section 27, which amends takes. reference to the Civil Liability section 50 of the 1961 act and Finally, I would like to and Courts Act 2004 ” and my section 2 of the 1964 act to comment on the reviewer’s disregard of the Civil Liability provide for the deductibility of description of the subject matter (Amendment) Act 1996 . I am also charitable donations made by a extract and on a further two of the 1961 and 1964 acts as accused of failing to grasp how defendant in the assessment of occasions elsewhere. “turgid”, an adjective that is the 1961 and 1964 acts might be damages (see the third edition at The complaint that the third defined in the Concise Oxford seen “in the grand scheme of pp67-68 and pp83-88). Given edition lacks “practical insight” Dictionary as “1. swollen, inflated, things”, whatever that is that the 2004 act does not is not only contradicted both by enlarged; 2. (of language) supposed to mean. The reviewer provide that it shall be Dr Eamonn Hall and Professor pompous, bombastic.” The was also critical of the construed together with the William Binchy when reviewing reviewer is perfectly entitled to “inexplicably small print”, 1961 and 1964 acts as one act the first edition in this Gazette describe my prose style in that responsibility for which is laid at and may be cited together, there and the Dublin University Law manner, which thankfully he my door! was no reason to include it, save Journal respectively, but also does not, but to describe the I would like to take the to that extent. The reviewer ignores the fact that the third issues of concurrent fault, opportunity to respond to these might note that the 2004 act is, edition (as were the first and survival of actions on death and criticisms, which are either in fact, referred to on no less second) is part of Round Hall’s fatal injuries in that way is unfair or misplaced or both. than nine occasions throughout Annotated Legislation series. The astonishing. I accept that the The reviewer is correct in the third edition. book was never intended, and it draftsmanship in the 1961 act saying that the 2004 act is a As regards the 1996 act, the made no claim, to deal with has been criticised judicially (see, piece of legislation that is reviewer’s attention is drawn to “personal injury actions” for instance, McCarthy J in “seminal in its importance to sections 47 (which was amended generally. I would assert, Murphy v J Donohoe Ltd [1992] personal injuries litigation” but by section 1 of the 1996 act); 49 therefore, that the book does ILRM 378, 394), but the act has he is incorrect in saying that it is (which was amended by section 2 exactly what it says on the cover, also been described by a leading “in part” a civil liability act. The of the 1996 act); and 49A (which and it is precisely because the Canadian academic as being a principal purposes of the Civil was inserted by section 3 of the 1961 and 1964 acts are “of statute of “unique detail and Liability Act 1961 (as amended by 1996 act) of the 1961 act, which relevance to the proliferation of complexity” (see Kutner (1985) the 1964 act) are: can be found at pp60-67 of the personal injury actions” that the 63 Can Bar Rev 1, 3). • To amend and consolidate the third edition. He will note that publishers thought it I trust that this letter will be law relating to the survival of the 1996 act is mentioned on no worthwhile to include those acts given as much prominence as the causes of action on death, less than eight occasions in that in its series. review was given. G
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www.lawsociety.ie 23 LAW SOCIETY GAZETTE NOVEMBER 2006 COMPETITION LAW AIR WARS As Ryanair trains its guns on the newly-liberated Irish flag carrier, doubts have been raised about the legality of the invasion in terms of both Irish and European competition law. Imogen McGrath takes aim
he proposed takeover of Aer Lingus by decides not to exercise its right of referral, then the Ryanair represents what could be the first Competition Authority may still play a role in the acquisition of a traditional national airline investigation as part of an advisory committee. by a low-cost carrier in Europe. Until recently, consolidation in the European T According to an ABN Amro report, the airline industry has generally taken the form of combined airline would have 26 overlapping city pairs alliances that do not involve a change in ownership. It at present and a market share of 80% in the top five could be said that Air France/KLM was the first real European markets from Ireland: Britain, France, merger in the European airline industry. Spain, Germany and Italy. But what is the likelihood of regulatory approval by the relevant competition The empire strikes back authority of an acquisition of a controlling stake in Under the ECMR, the commission asks whether the Aer Lingus by Ryanair? proposed concentration would “significantly impede effective competition in the common market or a The phantom menace substantial part of it, in particular as a result of the The proposed takeover meets the turnover thresholds creation or the strengthening of a dominant position” . for examination by the European Commission under On initial investigation of a notification (phase I), the the EC Merger Regulation (ECMR), and is thus a commission assesses whether the proposed transaction transaction with a European dimension. It must be raises “serious doubts” as to its compatibility with the referred to the commission prior to the ECMR. If there are serious doubts, then the implementation of the offer, but following the commission proceeds to a phase II investigation. The announcement of the public bid. Generally, when the commission can prohibit the transaction, approve it European Commission is notified of a large merger, subject to certain conditions, or approve it pursuant to the ECMR, the commission has exclusive unconditionally. In phase II, the commission sends a jurisdiction over the merger. However, the statement of objections to the parties, setting out the commission may decide to remit part of the merger reasons why it believes the proposed transaction may that affects the member state back to the appropriate be incompatible with the ECMR. The parties have national merger control authorities under article 9 of the option of a formal hearing before the commission, the ECMR. A member state may inform the and third parties may be invited to attend and make commission that a merger threatens competition in a written submissions, provided they have sufficient market that presents all the characteristics of a distinct interest. market. In order to be considered distinct, the In order to assess whether a concentration creates geographic market must be national, or narrower than or strengthens a dominant position, the commission national, in its scope. The commission approaches must first define the relevant market (Case 6/72, such referrals with reluctance, on the basis that they Europemballage ). The Air France/KLM decision fragment the system and undermine the objective of a provides the basic framework for a competition MAIN POINTS ‘one-stop shop’ for merger control. assessment of the proposed takeover. To define the • Ryanair and Aer Given that it has been held that an airport, in relevant product market in Air France/KLM , the Lingus itself, constitutes a substantial part of the common commission carried out an analysis of demand-side • EC merger control market (see, for example, Brussels Airport and substitution. Its view was that, in the case of passenger and the air Aeroports de Paris v Commission ), it would appear air transport, the product market should be defined transport industry difficult for the Competition Authority to according to the origin and destination method, • The Antipodean effectively argue that a deal between two European whereby each route between a point of origin and a experience airlines with a pan-European effect constitutes a point of destination is treated as a separate market (see distinct market. If the European Commission also Case 66/86, Ahmed Saeed Flugreisen ).
24 www.lawsociety.ie COMPETITION LAW LAW SOCIETY GAZETTE NOVEMBER 2006
www.lawsociety.ie 25 LAW SOCIETY GAZETTE NOVEMBER 2006 COMPETITION LAW
MERGER AUTHORISATIONS IN OTHER JURISDICTIONS Given the global nature of the airline industry, merger authorisations Pacific Blue and Emirates, holding only relatively small but increasing outside the EU can also be useful in gauging competitive effects. In market shares, would act as a constraining influence upon the parties, particular, the Qantas/Air New Zealand decisions are relevant, in that as they had available capacity and cost advantages that would enable they show the potential effect of airline mergers in countries greatly them to attract travellers. The tribunal emphasised that competition in dependent on air transport. In December 2002, Qantas and Air New the relevant markets had changed significantly since the ACCC’s refusal Zealand applied to the Australian Competition and Consumer to authorise due to the increased presence of Emirates and Pacific Commission (ACCC) for authorisation of Qantas’ proposed acquisition of Blue. a 22.5% voting interest in Air New Zealand, and for Qantas and Air New At the same time as Qantas and Air New Zealand applied to the Zealand to enter into agreements to coordinate their activities with ACCC for authorisation, they also made similar applications to the respect to all passenger and freight services on Air New Zealand flights, NZCC. The NZCC had to determine whether the share purchase and all Qantas flights to, within and from New Zealand. In order to agreement would be likely to have the effect of substantially lessening proceed, the parties needed regulatory approval from both the competition. The NZCC’s approach was similar to that of the ACCC, in Australian and New Zealand authorities. Ultimately, the transaction was that it assessed the factual (the future with) and the counterfactual (the approved, with conditions, in Australia but prohibited by the New future without). The NZCC held that, in most of the markets, the main Zealand Commerce Commission (NZCC), and a subsequent appeal to anti-competitive effect stemmed from the reduction in the number of the High Court of New Zealand was unsuccessful. competitors from three to two or from two to one. The NZCC conducted In September 2003, the ACCC refused the request for authorisation quantitative economic modelling of individual markets that showed that and the parties applied to the Australian Competition Tribunal for a the travelling public could face airfares that were up to 19% higher, as review of the decision. The tribunal used a ‘future with or without test’ well as reduced quality of service and fewer flights. The NZCC found to consider the public benefits and anti-competitive detriments that that an increase in the price of airfares would result in a net decrease would be likely to flow from authorisation. In relation to the trans- in foreign tourists. In terms of inefficiencies, the NZCC determined that: Tasman air passenger services market, the tribunal found that, • The value of travellers who would no longer take a flight because of notwithstanding the substantial combined market share of the fare rise would be lost to the economy (allocative inefficiency), approximately 80%, there would be little anti-competitive detriment. The • The joint airline would be less efficient in reducing costs without a tribunal considered that, with the exception of the time-sensitive real competitive restraint (productive inefficiency), and passenger, any attempt by Qantas and Air New Zealand to act jointly in • The combined airline would less likely to be innovative in purchasing an anti-competitive way would be constrained by two airlines in new products or finding lower-cost ways of producing existing particular – Pacific Blue and Emirates. The tribunal was satisfied that products (dynamic inefficiency).
It is interesting to note that the commission did not networks were largely complementary: Air France was find that the possibility of dividing the product market present in Southern Europe and Africa, whereas KLM further between time-sensitive and non-time-sensitive was prominent in Northern Europe and the Far East. travellers affected the overall finding of However, despite the merger being largely substitutability. Time-sensitive travellers require complementary, the commission found that the convenient time schedules and greater ticketing transaction would eliminate or significantly reduce flexibility, such as business customers. Non-time- competition on 14 routes on which the parties sensitive travellers tend to travel for leisure purposes, competed actively or potentially. Accordingly, the are flexible and attracted to lower fares rather than parties offered undertakings to remedy the anti- convenient schedules, making them more amenable to competitive effects of the merger. travel with low-cost carriers. The commission’s experience in the field of airline In terms of the geographic market, the commission alliances shows that the main barrier to market entry observed in Air France/KLM that what determines the lies in the scarcity of take-off and landing rights at the geographical substitutability is not the distance of two highly congested European airports. In Air airports from a particular city, but rather the time France/KLM , the parties surrendered 47 pairs of slots taken to reach the city centre. The commission found (that is, 94 single take-off and landing slots) per day to that Charles De Gaulle (CDG) and Orly were overcome the commission’s concerns. The substitutable destinations, despite the applicant’s undertaking on slots was also accompanied by arguments that CDG is used mainly for long-haul measures requiring the airline partners to refrain from flights whereas Orly concentrates on short-haul flights. increasing their offer of flights (‘frequency freeze’) on The commission considered that the Air the affected routes to give new entrants a fair chance France/KLM merger affected potentially all city pairs to establish themselves as credible competitors. The between the Netherlands and France. One of the Court of First Instance upheld the commission’s central city pairs that fell to be analysed was the approval of Air France/KLM in Easy Jet v Commission . Paris/Amsterdam route, which has the Thalys train as a form of inter-modal substitute. The commission A new hope ultimately found that, although the deal would create At this stage, it is not possible to definitively predict the largest airline group in Europe, the companies’ the outcome of a notification of the proposed takeover
26 www.lawsociety.ie COMPETITION LAW LAW SOCIETY GAZETTE NOVEMBER 2006
to the commission. It is understood that Ryanair intends to retain the separate corporate identities of LOOK IT UP the airlines and does not envisage partaking in the Cases: management of Aer Lingus. Nonetheless, the • Case 6/72, Europemballage and Continental Can v Commission [1973] ECR commission is likely to rigorously examine the 215 proposed transaction during the course of a lengthy • Case 66/86, Ahmed Saeed Flugreisen and Others [1989] ECR 803, phase II investigation, due to the high market shares • Case T-30/89, Hilti v Commission [1991] ECR II-1439 in certain markets. • Case T-128/98, Aeroports de Paris v Commission [2000] ECR II 3929 In terms of market definition, the commission may • Case T-177/04, Easy Jet v Commission , judgment of CFI of 4 July 2006 find that, considering destinations from a demand • Case No COMP/M 3280, Air France/KLM side, Ryanair and Aer Lingus are competitors on the • Qantas Airways Limited [2004] ACompT9, judgment of 16 May 2005 London routes. Accordingly, competition on those markets could suffer in the absence of behavioural and Legislation: structural remedies if both airlines were owned by the • Council Regulation (EC) No 139/2004 on the control of concentrations same entity. Similar considerations apply to other between undertakings (the Merger Regulation ) overlapping routes. The major hurdle that Ryanair would face is Literature: convincing the commission that market entry was • Brussels Airport, OJ 1999 L216/8 possible post-acquisition. The shortage of slots and • Commission notice on case referral in respect of concentrations, OJ C 506 p airport infrastructure in Dublin would undoubtedly 02-23 be a significant problem for new entrants. Even in the present market structure, it is difficult to obtain terminal capacity at Dublin Airport on appropriate cost carrier increases the anti-competitive effects. commercial terms as well as gaining access to gates, Low-cost carriers are particularly effective in exerting check-in counters, maintenance facilities, baggage- price constraints on national carriers with legacy costs, handling facilities and slots. If Ryanair were the and the loss of this constraint could be taken into dominant carrier at Dublin, it could rearrange take- account by the commission. Equally, the commission off and landing schedules to its own convenience. might decide that the effect on the time-sensitive This would increase Ryanair’s hub dominance in passenger is more influential when the proposed Dublin Airport and strengthen its position for the takeover is of a national carrier by a low-cost carrier. purchase of airport services (for example, catering and It would be open to the Competition Authority and ground handling). interested third parties to adopt arguments before the In terms of any pro-competitive effects of the commission similar to those offered by the NZCC in proposed takeover, Ryanair may argue that it would Qantas/Air New Zealand regarding the potential anti- combine purchasing of aircraft with Aer Lingus to competitive effects of the proposed takeover (see drive down costs, which would be passed on to panel). On the proposal at present, it seems that the consumers. However, it is suggested that it may be commission would either prohibit the transaction or difficult to obtain reliable economic evidence of these require both airlines to enter into a package of trickle-down benefits to consumers. remedies, divesting slots and reducing frequencies to As distinct from the Air France/KLM decision, the encourage effective new entrants. G commission may consider that the fact that the proposed takeover is of a national carrier by a low- Imogen McGrath is a Dublin-based barrister.
www.lawsociety.ie 27 LAW SOCIETY GAZETTE NOVEMBER 2006 LITIGATION Justice DENIED? The courts have he consequences of delays in litigation The rules also provide that a defendant may apply have greatly exercised the judiciary in to dismiss proceedings for want of prosecution for become less recent years. While the decision of the failure to serve a notice of trial within six weeks of the tolerant of delays Supreme Court in Primor plc v Stokes close of pleadings (order 36, rule 12) or if there is no effectively settled the law proceeding for two years (order 122, rule 11). The in litigation, and T Kennedy Crowley in this jurisdiction a decade ago, the passing of the Master of the High Court has jurisdiction to entertain all those involved European Convention on Human Rights Act 2003 has led any of the above motions to dismiss for want of to established precedents being reopened and prosecution by virtue of order 63, rule 1(8). need to be aware previously accepted norms challenged. that delays in The modern test Applications to dismiss Notwithstanding the above time limits, the courts progressing The Rules of the Superior Courts 1986 set out the basic have always retained for themselves the ultimate cases may prove time limits for progressing civil claims in the High power to decide on whether a case should be Court. After a plenary summons is issued and served dismissed for want of prosecution. In Primor , the to have fatal and an appearance entered, order 20, rule 3 of the Supreme Court held that for proceedings to be consequences for Rules of the Superior Courts 1986 stipulates that a dismissed on this ground, the applicant must show statement of claim must be delivered within 21 days, that there had been “inordinate and inexcusable” delay the proceedings. upon the defendant’s request. Thereafter, the plaintiff in progressing the case, and that the “balance of Martin Canny must seek the consent of the defendant for late justice” lay in favour of dismissing the proceedings. delivery of his statement of claim or apply for an The factors relevant to the “balance of justice” gave starts his extension of time pursuant to either order 63, rule 1(5) the court a wide discretion to decide on the stopwatch or order 122, rule 7. application before it; however, they have also made the Running in parallel with these, order 27(1) provides result of such a balancing act hard to predict. that if a statement of claim is not delivered within the Ultimately, unless the delays imperilled a fair trial, the time allowed, a defendant may apply to dismiss the starting point was always that the dismissal of a action for want of prosecution. This rule (as amended plaintiff’s case was prima facie unjust. A defendant who by the Rules of the Superior Courts (Order 27 had a good defence would not lose the case no matter Amendment) Rules 2004 [SI no 63 of 2004]) provides when the trial occurred: taken together, it was often that, on the hearing of the first motion to dismiss, the the case that more injustice would occur if a culpable court may make such order as it sees fit, but that if a defendant was let escape from the consequences of his second motion to dismiss is necessitated, then the acts. But times move on, and the courts have a new court may only grant a further extension of time if it is rigour in dealing with delays in litigation. satisfied that “special circumstances (to be recited in In assessing whether proceedings should be the order) exist which explain and justify the failure”. dismissed, many factors have been relied on by the This new rule has been interpreted as requiring that courts. Several of the factors found to be relevant are: such circumstances be contained in a replying • The nature of the claim and the probable issues affidavit. While the Civil Liability and Courts Act 2004 to be determined by the court. It is perhaps a now requires a single personal injury summons in truism to say that in considering an application to personal injuries cases, all other cases will still require dismiss, the particular facts of the case must be both a plenary summons and statement of claim. examined. Two elements are particularly important:
32 www.lawsociety.ie LITIGATION LAW SOCIETY GAZETTE NOVEMBER 2006
on an interpretation of documents that were still in existence was allowed to proceed. • The importance of the case to the plaintiff and the relative financial strength of the parties. The “dire consequences” of dismissing his claim was perhaps the crucial factor relied upon by Finlay P in Rainsford v Limerick Corporation when he allowed the plaintiff’s claim to proceed. This factor has somewhat fallen out of favour in recent years, with the Supreme Court, in Keogh v Wyeth Laboratories Inc, saying that “the fact that the defendants may be large multinational pharmaceutical companies does not mean that they are not entitled to a consideration of fairness by the court”. • Whether a plaintiff should be held vicariously liable for delays caused by his legal advisers. This is another factor that was relied upon in first, whether factual issues will have to be several of the earlier cases as weighing against the determined or only legal issues and, second, dismissal of proceedings. In Rainsford , a five-year whether the hearing of the case will focus primarily delay in delivering a statement of claim was found on documentary evidence or oral evidence. The fact not to be so excessive to justify dismissing that liability had been admitted, and that the case proceedings, as the plaintiff’s solicitor was in very would proceed as an assessment only, was perhaps poor health for most of that period. However, the crucial to the Supreme Court not dismissing the effectiveness of this excuse may be waning and, in plaintiff’s claim in Gilroy v Flynn . Rogers , Clarke J said: “In a case where the entire • Prejudice to the defendant. If a defendant can responsibility for delay rests upon a professional establish that delays since the commencement of advisor, the court can and should take into account proceedings have prejudiced him, he stands a strong the fact that the plaintiff may have an alternative chance of having the proceedings dismissed. Such means of enforcing his or her rights.” delays can, in particular, relate to witnesses who • The conduct of the defendant in ‘letting have died and documents that are lost. A general sleeping dogs lie’. While some cases have held MAIN POINTS prejudice in respect of fading memories is also that the failure to apply to have proceedings • Delay recognised. Thus, in Rogers v Michelin Tyre plc , dismissed at an earlier stage is a factor that weighs • New approach of Clarke J dismissed such part of the plaintiff’s claim against acceding to the application, in Rogers a the courts as would depend on the court having to decide on distinction was drawn between “active delay”, for • Applications to competing versions of conversations that had example, delays by a defendant in replying to dismiss for want of occurred ten years previously (including more than particulars and so on, and “inactive delay”. As prosecution six years of total inactivity from late 1997). regards the latter, Clarke J said that this “is a factor However, the part of the claim that would be based to which much less weight attaches”.
www.lawsociety.ie 33 LAW SOCIETY GAZETTE NOVEMBER 2006 LITIGATION
THE CHANGING LANDSCAPE The European Convention on Human Rights Act 2003 has already discussed the effect of the convention in some detail, and several started to make a difference to how delays in litigation are dealt with. decisions of the European Court of Human Rights were discussed. It The right to a fair trial is guaranteed by article 6 of the convention, may come as something of a surprise to the ears of Irish lawyers to which states: “In the determination of his civil rights and obligations … hear that in Zimmerman v Switzerland , proceedings that took from April everyone is entitled to a fair and public hearing within a reasonable 1977 to October 1980 were held to have violated article 6(1). time by an independent and impartial tribunal.” Similarly, in Guincho v Portugal , the length of proceedings up to In some ways Gilroy v Flynn may be seen as the last of the ‘old’ judgment of three years and ten months was held to have been prima cases that were sympathetic to dilatory plaintiffs. Despite extending facie unreasonable. time for the delivery of a statement of claim in the case before him, The crucial question of ‘how long is too long’ is not easy to answer. Hardiman J said that “comfortable assumptions on the part of a Each case depends on its own facts, its own difficulties and minority of litigants of almost endless indulgence must end. [The older complexities. However, an examination of the decided cases is still of cases] will fall to be interpreted and applied in light of the some use. In Gilroy v Flynn , a delay in delivering a statement of claim countervailing considerations … and may not prove as easy an escape of four-and-a-half years after the accident and one-and-a-half years after from the consequences of dilatoriness as the dilatory may hope. The the plenary summons was issued (during which time a motion to principles they enunciate may themselves be revisited in an dismiss was brought and time extended on consent) was accepted as appropriate case”. being inordinate and inexcusable. More recently, Clarke J in Stephens v Paul Flynn Ltd said: “The Some guidance as to what may in future be regarded as weight to be attached to various factors in the assessment of the unacceptable delay was offered in Crowley , where Master Honohan balance of justice may need to be significantly re-assessed and said the following: “It would be difficult to argue that ‘delay’ for the adjusted in the light of the conditions now prevailing. Delay which purposes of article 6 of the convention ought to be measured by would have been tolerated may now be regarded as inordinate. some entirely different yardstick. In short, updating Rainsford /Primor Excuses which sufficed may no longer be accepted. The balance of to 21 st century litigation conditions, I propose to regard a delay of justice may be tilted in favour of imposing a greater obligation of three years from the accrual of the cause of action as a prima facie expedition and against requiring the same level of prejudice as before.” breach of the defendant’s rights under the convention, no matter In Crowley v Roche Products (Ireland) Ltd , Master Honohan what the excuse is.”
• Whether the conduct of the defendant has LOOK IT UP caused the plaintiff to incur further expense. Cases: While this factor was expressly referred to in • Biss v Lambeth, Southwark and Lewisham Primor , it has provided little succour to plaintiffs Health Authority [1978] 1 WLR 382 either in that case, where extensive and costly • Crowley v Roche Products (Ireland) Ltd [2006] discovery had been made, or in other cases such as IEHC 6 (unreported, Master Honohan, 20 Rogers , where expenses incurred in re-activating a January 2006) dormant case were excluded from the consideration • Gilroy v Flynn [2004] IESC 98, [2005] 1 ILRM of the balance of justice. 290 • Prejudice to a defendant by reason of • Guincho v Portugal (1984) 7 EHRR 223 proceedings being ongoing. This kind of • Keogh v Wyeth Laboratories Inc [2005] IESC prejudice recognises that the mere fact that 46, [2005] 2 ILRM 508 litigation is ongoing can amount to prejudice, and • Primor plc v Stokes Kennedy Crowley [1996] has been found to apply with particular force to 2 IR 459 professional defendants against whom litigation is • Rainsford v Limerick Corporation [1995] 2 ILRM outstanding for a long period (see Biss v Lambeth, 560 (31 July 1979) Southwark and Lewisham Health Authority ). • Rogers v Michelin Tyre pl. [2005] IEHC 294 (unreported, High Court, Clarke J, 28 June Fatal consequences 2005) In recent years, the courts have become less tolerant • Stephens v Paul Flynn Ltd [2005] IEHC 148 of delays in litigation, a trend that has been (unreported, High Court, Clarke J 28 April accelerated by the passing of the European Convention 2005) on Human Rights Act 2003 . Even if a defendant cannot • Zimmerman v Switzerland (1983) 6 EHRR 17 point to any prejudice, the recent case law shows progressively less tolerance to delays in litigation, and Legislation: convention case law may require the courts, after a • Civil Liability and Courts Act 2004 certain cut-off period, to accede to the application • European Convention on Human Rights Act unless a plaintiff can show good reason to the 2003 contrary. G • Rules of the Superior Courts 1986 Martin Canny is a Dublin-based barrister.
34 www.lawsociety.ie EMPLOYMENT LAW LAW SOCIETY GAZETTE NOVEMBER 2006
Division of LABOUR An increasing number of employment malpractice claims have been brought by foreign workers. So what should solicitors who are not specialised employment or tax lawyers look out for? Richard Grogan has the answers
hen acting for an employer in a and the employment malpractices that result. (For claim by a foreign worker, it is obvious reasons, the more sophisticated schemes are worth asking three simple not set out here.) It is evident that some of the more questions. First, does the foreign ‘bargain basement’ schemes are being widely used W worker have a legitimate claim? and are being missed by some practitioners. Failing This may appear self-evident, but an understanding to recognise these can result in significant extra of the relevant employment legislation and the sums in compensation when acting for what is appropriate registered employment agreements simply an ‘incompetent’ employer. If you are (REA) and Joint Labour Council orders (JLCs) are unlucky enough to act for a serial discriminator, you required to answer this. If the answer is ‘yes’, a could be entering into the murky area of tax evasion second question arises: are you acting for an and social welfare fraud. MAIN POINTS employer who is simply incompetent and did not • Employment know his/her obligations? Before answering that Wages of labour malpractice claims question, it is worth considering the third question: When dealing with a claim by a foreign worker, a • Exploitation of namely, are you acting for a serial discriminator and starting point is to assume the employee has a good foreign workers possibly a tax evader/social welfare fraudster? claim. Foreign workers who do not come from an • The employer’s When acting for an ‘incompetent’ employer, the English-speaking background are paid, on average, defence practitioner should be aware of the more common 19% less than a comparable Irish worker. Where the tax evasion/social welfare frauds being perpetrated, foreign worker has poor English, they are generally
www.lawsociety.ie 35 LAW SOCIETY GAZETTE NOVEMBER 2006 EMPLOYMENT LAW
paid 29% less than an Irish worker with similar is a novel excuse. The new method of underpaying skills. These are the facts. There is also a general foreign workers, used extensively in the construction misconception by employers that, because a foreign industry, is to claim that the individual was not an worker may have poor English, they do not employee but rather was a self-employed contractor. understand their rights. A recent article in the LRC Running this particular defence is not one for the Review highlighted the fact that foreign workers in faint of heart. I like to term this the new ‘bargain Ireland are twice as likely to have a third-level basement evasion scheme’ for both employment law qualification than Irish workers. Even where the rights and tax and social welfare legislation. foreign worker has poor English, they will have If you are asked to run this defence, look at the access to the internet. The Department of case of Henry Denny & Sons Limited and the Revenue Enterprise, Trade and Employment website has a publication IT63, Guide for Principal Contractors , number of publications in different languages along with the case of BATU v The Labour Court , explaining basic employment-law rights. The before you jump into the abyss. Run the ‘self- workers themselves, because they are part of a employed contractor defence’ without being tightly-knit group, easily find out which lawyers and absolutely clear you can prove the case, and a other advisors have acted for friends. The industries competent solicitor on the other side will probably where abuse is most rampant are in the areas of get enough to get a reclaim of the relevant contracts construction, security, hospitality and transport. tax deducted, along with landing your client in an This article looks at the issues from the point of investigation for tax evasion and social welfare fraud, view of a solicitor who is not a specialised on top of an award for lost pay. employment or tax lawyer acting in the defence of an employer, but a solicitor bringing a claim for a Profit of capital “It is always foreign worker should generally be looking for similar Messing about in boats may have become popular better to be information. The starting point of any case is to ask due to the prosperity of the Celtic Tiger. Messing to see a copy of the employee’s contract. The fact that about with payslips is also a common occurrence, the ex-solicitor there might be no employment contract is never particularly where certain payments can be made of a tax evader conclusive. Irish employers are notoriously bad at tax-free. This form of abuse has a financial benefit issuing contracts. Saying that, if the employment is to the employer. It involves describing part of the to whom you covered by an REA or a JLC, ask where this is wage as a non-taxable expense. In certain industries, showed the exhibited in the workplace. Go through section 3 of and, in particular, the construction industry, there the Terms of Employment (Information) Act . The are certain expenses that can be paid tax-free. The door, than answers to these questions should identify to you employer can thereby reduce the hourly rate of pay opening your whether you are dealing with simply an incompetent so as to give the foreign employee the same ‘net’ as employer or a serial discriminator. The longer an if the person had been paid the proper rate of pay door to a individual has been in business, the more likely they and, in addition, can save the PRSI at 10.5% on the Revenue are to have contracts of employment and the more it amount that is falsely classified as a non-taxable should worry you if these are not readily available. payment. In, for example, the REA for the investigation” Next, look for the payroll records. By this, I mean construction industry, there is a requirement to pay copies of P60s, P45s and the P35 returns. You an amount at various rates for a minimum of 39 should also be looking for all the payslips of the hours per week. Non-taxable amounts are not employee in question and checking the figures off included in calculating this gross figure. If you are against the tax and PRSI returns. If acting for the asked to claim on behalf of a client that this should employee, check with the Revenue and the social be included, then you effectively have to admit tax welfare department. If the employee is covered by and social welfare fraud. If the employer is not any of the provisions of an REA or JLC, you should inclined to admit tax and social welfare fraud, then be checking what the hourly rate of pay is and you are left in a situation of having an whether they are, at a minimum, receiving the underpayment of wages. The lesser evil for the minimum payment for the standard minimum employer is clearly to admit an underpayment. This number of hours. If they are not covered by any of particular fraud is endemic. these, you need to check whether the employee has Another area of abuse is the issue of employees received at least the national minimum wage of working in excess of 48 hours per week. The ‘48- €7.65 per hour. hour per week’ week is not just start-to-finishing Where an employer is covered by an REA or times: break times are excluded. For an employee JLC, a common excuse or justification for paying working five days a week, 50 hours a week (for the less is that the employee agreed a lesser rate with the purposes of the Organisation of Working Time Act ) employer. This ‘excuse’ is regularly trotted out by they will be at work for in excess of 11 hours a day. those representing employers. It is important to If you see a claim under the Organisation of Working understand that this is not a defence. A JLC or REA Time Act for having worked excessive hours, or not rate of pay is legally enforceable. Ignorance of the having received appropriate breaks, it is important law is no defence. Some continue to believe that this to look for the working-time records. There is a
36 www.lawsociety.ie EMPLOYMENT LAW LAW SOCIETY GAZETTE NOVEMBER 2006
legal obligation to maintain these records, but Irish employers are very bad at keeping them. Saying this, most employers have some record. A check of the payslips may be useful. Checking the hourly rate of pay as against the gross may indicate excessive working hours. Employers who underpay statutory rates of pay will normally pay the hours worked. They may believe that the foreign worker will not know what the proper rate of pay is, but rarely will they believe that the employee will not know how many hours they worked. A usual defence that is put forward is that the worker “requested extra hours”. This is not a defence. There is no opt-out provision unless covered specifically in the legislation, or by way of a collective agreement registered with the Labour Court. The evidence to date is that a lot of foreign Abuse is rampant in the workers will bring a claim against the employer after possible date, recalculating the employee’s hospitality industry the job has finished. An employer is more likely to entitlement, and communicating this in open face a discriminatory dismissal claim than an unfair correspondence to the other side and to the Rights dismissal claim. There are two reasons for this: first, Commissioner Service. in many cases, the foreign worker may not have the The Rights Commissioner Service is part of the requisite length of service. Second, the foreign industrial relations process. They are there to worker may obtain a new job relatively quickly after resolve disputes. Defending the indefensible or leaving their original employer. There is, however, a putting forward some form of ‘novel’ defence is worrying trend: when a foreign worker who is still probably not going to do the employer any good at in employment brings a claim, a number of them all. Most of the defences are tried, tested and have will be immediately dismissed. For this reason, a already failed. If you are involved with an employer number of solicitors acting for foreign nationals will, who is involved in serial discrimination of foreign nearly as a matter of course, issue an equality claim. workers, then, before you act or decide to continue If the employer then reacts by firing the worker, a to act, it might be worthwhile asking what remedial victimisatory dismissal claim will issue. action the employer wishes to take to ensure that LOOK IT UP issues such as this do not happen again. Depending Cases: Estranged labour on the answer you receive, it may determine • Building and Allied There are a huge number of foreign nationals whether this is a client that you really want in your Trades Union and working in this country. Some 200 are coming every office. If you are dealing with an employer who is Scott, Valentine v day. In 2005, some 5,000 cases were submitted to involved in tax evasion and social welfare fraud, then Labour Court the Rights Commissioner Services. I understand you need to consider the guidelines on money- [2005] IEHC 109; that, as of September 2006, more than 5,000 cases laundering legislation and how they affect you. If unreported have been submitted this year alone. An increasing they are involved in tax evasion involving • Henry Denny & number of these claims have been brought by employees, you can be assured that this is not the Sons (Ireland) Ltd foreign workers. This reveals an epidemic of abuse, only evasion they are involved in. You can never be v Minister for fuelled by greed, incompetence or both. sure with an evader just how they will try to draw Social Welfare As solicitors, we may come across employers who you into their evasion scheme. [1998] 1 IR 34 are involved in tax evasion and social welfare fraud My advice is to give the employer two choices. by virtue of their incompetence in structuring The first is to rectify the abuse, compensate the Legislation: matters properly. More often than not, tax evasion employee and disclose the practises to the relevant • Organisation of and social welfare fraud is premeditated by its very tax authorities, discharge the underpayments and Working Time Act nature. For solicitors defending against claims by regularise issues for the future. The second is to 1997 foreign workers, it may be an area that the solicitor change solicitors. There is legislation as to what • Terms of does not specialise in. The employer may be a big your obligations are. It is not as draconian as my Employment client of the firm. The solicitor may be more used advice, but we – as a profession – really only have (Information) Act to dealing with licensing issues for a hotel or our good names to trade on. No client is worth your 1994 and 2001 conveyancing issues for a builder. Failing to identify good name. It is always better to be the ex-solicitor whether you are dealing with a simple incompetent of a tax evader to whom you showed the door, than Literature: or a serial discriminator, and possibly a tax evader be the solicitor that opens the door to a Revenue • Revenue and social welfare fraudster, is often a fine dividing investigation that you may get sucked into. G publication IT63, line. If you are dealing with an incompetent, you Guide for Principal should be educating your client as quickly as Richard Grogan is a partner in PC Moore & Co Contractors possible, admitting the default at the earliest Solicitors, Dublin.
www.lawsociety.ie 37 LAW SOCIETY GAZETTE NOVEMBER 2006 CONVEYANCING ELECTRIC picnic
The idea of secure, paperless, electronic conveyancing transactions is surely the stuff of science fiction? Gabriel Brennan defies the sceptics and argues that e-conveyancing transactions are in the offing
iven the amount of paperwork inherent financed entirely through the Land Registry. The in any conveyance, the idea of secure, Land Registry and the Law Society of England and paperless, electronic end-to-end Wales have entered into a memorandum of conveyancing transactions seems like a agreement, agreeing to co-operate and work Gfairytale. However, electronic together on the project and to run joint education conveyancing – or e-conveyancing – is now a reality and training programmes. Key to their system is the in some countries. creation of a ‘notional register’. This enables the Ontario has successfully implemented a system of stakeholders to preview what the land register will electronic conveyancing called e-reg. The system look like if registration proceeds. Thus errors in the deals with 42 million transactions a year, and 98% of documentation or unresolved issues can be documents are now submitted electronically to identified and remedied prior to closing. Teranet – the private partner in the public/private New Zealand and Australia have taken the view partnership in operation in Ontario. As that the development of an end-to-end e- BearingPoint (consultants to the Law Reform conveyancing process may not be possible and, Commission) have pointed out, Ontario’s system is instead, have developed only some elements of an recognised as the most progressive electronic electronic system. In South Africa, e-conveyancing conveyancing solution currently in operation. It is has been driven by the private sector. A company widely acknowledged as a reference source for new called L@W is the leading firm with the largest e-conveyancing solutions in other jurisdictions. It is number of subscribers in its sphere. It provides an the closest ‘end-to-end’ e-conveyancing operation in electronic platform for communication and existence and incorporates all the essential elements interaction between solicitors, lenders and other required for such a system. These include online stakeholders. This firm is currently in negotiations searching and mapping, online interaction with with some Irish lenders about the possibility of MAIN POINTS lenders and other solicitors, and online payment of introducing electronic mortgage packs and making • Electronic tax and purchase money. All documents in the it easier for solicitors to communicate with lenders. conveyancing process are created, modified, submitted, registered • Ireland’s e- and maintained in electronic form. Simple minds conveyancing Other jurisdictions are attempting to emulate this Some jurisdictions have carried out a fundamental strategy system. A system of electronic conveyancing is review and simplification of the whole conveyancing • Current progress currently being developed in England and Wales – process as the essential prerequisite for an electronic though, unlike Ontario, this project is being led and conveyancing system to work effectively. Others
38 www.lawsociety.ie CONVEYANCING LAW SOCIETY GAZETTE NOVEMBER 2006
e-conveyancing e-registration
e-lodgement
have merely put existing processes into electronic The genesis of this report lies in a review by the form. Many have converted parts of their Law Reform Commission of its work on the reform conveyancing process to electronic means while of land law and conveyancing law carried out in others have electronified their entire conveyancing 2001. At that time, the LRC decided to build on its process. As a result, how electronic conveyancing previous work by developing a comprehensive operates varies from place to place. Some allow the project of reform and modernisation of land and lodgement of documents online (e-lodgement), conveyancing law that would ultimately lead to a others apply computer technology to the system of electronic conveyancing. In 2002, the registration of title (e-registration). Some systems, LRC established a working group to look at the such as Ontario’s, have a broader scope and are true feasibility of introducing such a system in Ireland systems of e-conveyancing: applying technology to and launched its e-conveyancing project in 2003. all aspects of the conveyancing process. This project involves three strands: substantive law, Despite the varying forms of e-conveyancing administrative issues, and procedural matters. being adopted around the globe, many jurisdictions have encountered similar issues when developing an Promised you a miracle e-conveyancing strategy. These include: In late 2003, the LRC established a joint project with • How to ensure stakeholder involvement and the Department of Justice, Equality and Law Reform confidence in the process, to review substantive land law and conveyancing law • How to balance the public and private interests, with a view to its reform and modernisation. This • Whether to carry out a fundamental review and project identified over 150 pre-1922 statutes simplification of the whole conveyancing process requiring reform. The proposed changes were set and, if so, how to do this, out in a consultation paper entitled Reform and • How to finance the process, Modernisation of Land Law and Conveyancing Law • How and when to roll out the project, (LRC CP 34-2004). This paper suggested that many • When to make the process compulsory. statutes be repealed and others re-drafted to reflect current practice. The consultation process resulted in These issues and many other factors are examined the publication of the LRC report of the same title, in some detail in the BearingPoint report, appended published in July 2005 (LRC 74-2005). This report to the Law Reform Commission Report included a draft Land and Conveyancing Bill 2005 . eConveyancing: Modelling of the Irish Conveyancing This bill, when enacted, will repeal or replace, in a System (LRC 79-2006). single piece of legislation, the law contained in over
www.lawsociety.ie 39 LAW SOCIETY GAZETTE NOVEMBER 2006 CONVEYANCING
PROPOSED ‘VISION STATEMENT’ FOR E-CONVEYANCING IN IRELAND
150 pre-1922 statutes, the earliest of which is the result, published in April this year, is eConveyancing: Statute of Westminster II 1285 (De Donis Modelling of the Irish Conveyancing System . The report Conditionalibus) . This draft bill is now the Land and contains three main elements: Conveyancing Law Reform Bill 2006 (no 31 of 2006), • A process module of the entire conveyancing which is currently before the Seanad. transaction, The administrative strand involves an examination • An analysis of the role of the various stakeholders “BearingPoint of the administrative aspects of the conveyancing and their state of readiness for e-conveyancing, and process. It examines how information technology is • A vision and strategy for e-conveyancing, together has identified used in current conveyancing transactions and how with a roadmap of how to achieve it. that the Law information is transmitted between the various stakeholders. The procedural strand is examining the While the LRC report only runs to 48 pages, the Society will procedural aspects of the conveyancing process – it BearingPoint report (appended) contains 180 pages of have a vital overlaps considerably with the administrative strand. detailed information and multi-level process maps. It means looking at each step in the conveyancing These maps represent the current conveyancing role to play in process to see how that step could be carried out process, roadmaps for change and process models for improving and electronically. developing an Irish system of electronic In order to progress these strands of the e- conveyancing. BearingPoint proposes both a vision endorsing conveyancing project, the LRC decided to carry out a and a model of e-conveyancing for Ireland. changes to thorough analysis of current conveyancing practice At the centre of this model is an e-conveyancing and examine the state of readiness of stakeholders for hub. This would act as a central operator, with the current electronic conveyancing. In 2005, BearingPoint were individual stakeholders providing services to it, in conveyancing appointed consultants to carry out this study. The order to support the operation of the complete processes” OVERVIEW OF THE FUTURE E-CONVEYANCING MODEL
Note: Not all stakeholders have been shown in this figure due to space constraints
40 www.lawsociety.ie CONVEYANCING LAW SOCIETY GAZETTE NOVEMBER 2006
transaction by electronic means. In other jurisdictions, and to build on the momentum of the work done to this role is filled by the Land Registry, a commercial date. BearingPoint has recommended that LOOK IT UP entity or a combination of these, with some membership of the project board should include the Legislation: stakeholder or state participation. key stakeholders, including the legal profession. In • Land and addition, BearingPoint has identified that the Law Conveyancing Law Glittering prize Society will have a vital role to play in improving and Reform Bill 2006 From the experience in other jurisdictions with e- endorsing changes to the current conveyancing • Registration of conveyancing projects, BearingPoint states that it is processes and in communicating these changes to Deeds and Title imperative the existing conveyancing process be practitioners. Act 2006 enhanced through improvements in processes as part The LRC has generally supported the content and • Statute of of the overall programme. Thus, BearingPoint is not analysis of BearingPoint’s report and has Westminster II proposing to make the existing conveyancing process recommended also the early start of the next phase of 1285 (De Donis electronic. Instead, it proposes identifying, organising the process, with incremental developments occurring Conditionalibus) and implementing improvements to the current continually on the road to e-conveyancing. It points process, based on the findings set out in the report. out that international experience shows that e- Literature: The roadmap refers to this as the ‘process improve- conveyancing is successful where there is clear • Law Reform ments workstream’. There are also two additional government commitment and involvement. Despite Commission, workstreams: the ‘legislative changes workstream’, welcoming the LRC report and initiating the Land Reform and which involves initiating the legislative changes and Conveyancing Law Reform Bill 2006 , the Modernisation of required, and the ‘e-conveyancing development government has yet to appoint this project board. Land Law and workstream’. This will lead to the design of the actual However, other key stakeholders are already Conveyancing Law e-conveyancing model to be implemented, reporting focused on making improvements in the current (LRC CP 34-2004) on the investment, benefits, risks and organisation conveyancing process. Revenue is currently looking at • Law Reform required and, ultimately, if the project is approved, the the implementation of a system of e-stamping while Commission, design, development and implementation of the new the Land Registry is continuing to utilise technology Report on the e-conveyancing system. This would occur in parallel with a view to ultimately facilitating e-conveyancing. Reform and with process improvements and legislative changes. Its new service, landdirect.ie, replaces the previous Modernisation of BearingPoint is proposing e-conveyancing then, ‘Electronic Access Service’ and extends the range of Land Law and rather than e-lodgement or e-registration. online services available to solicitors. New facilities Conveyancing Law Some of the required legislative changes are already allow for searching and locating a property anywhere (LRC 74-2005) in hand. Much of the Registration of Deeds and Title Act in the country, using digital mapping and the property • Law Reform 2006 has now been enacted (SI 271 of 2006 and SI index to find an address and locate a folio. As the Commission, 511 of 2006) and 4 November was the establishment Land Registry website points out, this is the first eConveyancing: day for the new Property Registration Authority (SI national database of land-related information available Modelling of the 512 of 2006). This authority will manage and control online in Ireland. Irish Conveyancing the Registry of Deeds and the Land Registry. It also A complete system of electronic conveyancing may System (LRC 79- has a specific mandate in section 10 of the act to not be in place for five to seven, or even ten years. 2006) promote and extend the registration of ownership of However, due to the multitude of changes required to land. The act also includes substantive changes to the facilitate e-conveyancing, all of this time will be law relating to the registration of title and registration needed. As BearingPoint states in its report, of deeds. It brings the two systems closer and thus technology alone will not improve efficiency: facilitates the closing of the Registry of Deeds and the traditional roles and practices will need to change to extension of the Land Registry system to the rest of make a success of e-conveyancing. Ireland. The first extension of this system since 1969 There is no doubt that the traditional role and has already taken place. On 1 April last, compulsory practice of solicitors in the conveyancing process will first registration was extended to Longford, change with the advent of e-conveyancing, but Roscommon and Westmeath (SI 605 of 2005). experience from other jurisdictions shows that e- Internationally, it is recognised that a complete system conveyancing can be successfully implemented for the of electronic conveyancing can only occur in a benefit of all stakeholders, including solicitors. It is jurisdiction where all ownership of land is registered. likely to be the solicitor that provides the electronic So this is a vital element in moving towards e- signature on behalf of purchasers and vendors, and it conveyancing. is likely to be the solicitor who authenticates the transaction. The Law Society embraces the move Don’t you forget about me towards a system of electronic conveyancing, while In advance of a permanent organisation being acknowledging that the vital role of solicitors in the identified to lead this programme, BearingPoint has process must be reflected in any e-conveyancing recommended that the government establishes an e- solution. G conveyancing project board to manage the project for a period of 12-18 months. It has recommended that Gabriel Brennan is secretary of the Law Society’s this should occur without delay to ensure continuity eConveyancing Task Force .
www.lawsociety.ie 41 LAW SOCIETY GAZETTE NOVEMBER 2006 LOOKING BACK Breaking
AWAYIreland in the 1970s was on the verge of joining the EEC and an air of optimism was evident, despite the fact that the Troubles were moving from the wings to centre stage. Mark McDermott continues this celebration of 100 issues of the Gazette
surprising air of optimism pervades the receive legal [aid] and the protection of solicitors and pages of the Gazette from the early counsel are deprived of that assistance. If legal aid in 1970s. Ireland’s impending membership criminal matters is a desired social objective it is of the European Economic Community difficult to defend the present system as satisfying the A (EEC) was probably most responsible need” ( Gazette , March 1970, p125). for the upsurge in national confidence. In hindsight, The number of new solicitors joining the this seems somewhat misplaced, given the fact that profession continued to be a matter of concern for the Troubles had started and were about to get a the Society at its AGM in May 1970. The concern of whole lot worse, a world oil crisis was looming, strikes then president, James RC Green, was that there would become endemic and employment would hit simply wouldn’t be enough work to go around: rock bottom. But then, imperial pounds, shillings and “It is occasionally suggested that we operate a pence were about to get dumped in favour of closed shop. This is simply not true particularly now decimalisation – so there were some positives – that everyone has the opportunity to obtain a especially for children of school-going age! secondary education. We have certainly had to raise One issue that received significant coverage during the standard of our preliminary examinations. One the early ’70s was legal aid: reason for this is that the number of prospective “In our criminal courts the accused, who is of course entrants to the profession has been steadily increasing innocent until proved guilty, is seated in court near and without some restriction we would be faced with his professional representatives and can confer with serious overcrowding. It should always be them in the same way as any civil litigant. remembered that the Solicitors’ profession is one that Nevertheless the persistent question remains, are the does not train young men and women for export and courts, like the Savoy Hotel open to everyone (who even in an expanding economy it may be difficult to can pay) or is legal protection of the Courts available absorb about 100 new Solicitors every year when the to all citizens alike on reasonable terms?…” average number [of] deaths and retirements does not “A comparison of the figures in the published exceed about 35 per annum. I do believe however report on legal aid in Northern Ireland and in the that there will arise more and more opportunities for Republic suggests the following alternative qualified Solicitors in commerce and industry …” MAIN POINTS conclusions. The amount of crime in Northern (Gazette , May 1970, p2). • Legal aid in the Ireland may be very much higher than in the Republic Republic. It is however difficult to understand how it Gazette revamp • Gazette revamp could be six times as high. Alternatively, persons The Gazette received a mention in the same issue. • Trouble across entitled to avail of the legal aid service prefer to retain The president wrote: the Border solicitors outside the scheme. The only remaining “I hope that that [sic] members will appreciate the inference is that a number of persons who should changes being made in the Gazette . Soon you will
42 www.lawsociety.ie LOOKING BACK LAW SOCIETY GAZETTE NOVEMBER 2006 PIC: AFP/GETTY IMAGESAFP/GETTY PIC:
Ireland signs the Treaties of Accession find that it will have a new cover and we hope that practical legal problems. The Gazette in its new to the European this is symbolic of a fresh approach under the format deserves to be carefully read by all, because it Communities on 22 January 1972 editorship of Mr Colm Gavan Duffy who has been tries to present the driest legal problems in an in Brussels, at a to London to discuss the whole project with the interesting and readable way. Long may it flourish!” ceremony it shared Editor of the English Law Society Gazette. Mr (Gazette , May 1971, p2). with Denmark, Gavan Duffy has been provided with an Assistant in The journal’s format was now bigger in size and in Norway and Britain the Library which relieves him of certain routine pagination. It featured a comprehensive list of administrative duties which I hope improves the contents and dealt with proceedings of the Council, service of members” ( Gazette , May 1970, p4). case law, reports from the Solicitors’ Apprentices Colm Gavan Duffy’s name first appears as editor Debating Society of Ireland (SADSI), practice tips, on the cover of the Gazette in November 1969. The reports on addresses by legal luminaries, new cover referred to by James RC Green didn’t ‘miscellaneous legal news’, book reviews and a look- appear until May 1971 (vol 65, no 1), when, in a back at what was in The Solicitors’ Journal one hundred bold leap of faith, the journal featured a purple- years ago. The more things change…! The Gazette’s coloured image of the Four Courts on its cover. first photograph appeared in an advertisement for a This remained a characteristic for many years, with 3M 254 Dry Copier in the June 1971 issue (p57). The the colour changing for each issue. The following first president whose photo appeared in the Gazette president, Brendan A McGrath, in a special message was TV O’Connor in 1973, while the first photo to announcing the new-look publication, said: appear on the front cover was in August 1976, when a “I am very glad to welcome this new volume of the group of members involved in planning the Society’s Gazette with its pristine new cover, which I feel new education programme, along with Australian sure will receive general approval. Law is ever consultant Kevin O’Leary, were featured. becoming a more complex subject. The Gazette is to be commended in so far as it tries to foster ideas The Troubles based on jurisprudence and also encourages The outbreak of hostilities in Northern Ireland members and other lawyers to express them, while were covered in the July/August issue in 1970 in a at the same time giving full expression to more case extract from the Law Digest . Headlined
www.lawsociety.ie 43 LAW SOCIETY GAZETTE NOVEMBER 2006 LOOKING BACK
‘Alleged Riotous Behaviour in the Bogside’, the scepticism … ( Gazette , July/August 1970, p63). piece ran as follows: The “possible entry of Ireland, Britain and others “Miss Bernadette Devlin, M.P., was summoned into the Common Market” ( Gazette , despite the presence of hundreds of rioters apparently September/October 1970, p88) inspired several on a selective basis by District Inspector Armstrong in interesting articles on the issue, among them a Dublin the Bogside in Derry on 13 th August, 1969. She was conference on ‘Legislation of European ultimately convicted by Resident Magistrate Shearer Communities’. The then taoiseach, Jack Lynch, on four counts and was sentenced to the maximum “spelled out to the conference some points in the Irish term of six months imprisonment without the option Constitution which would need amendment, and of a possible maximum fine of £100 on 22 nd added there were other provisions which a December, 1969. On the application of her Counsel, constitutional lawyer would ponder carefully. He then Sir Dingle Foot, the Resident Magistrate stated a case commented: to the Northern Ireland Court of Appeal, but all the “… it would be surprising if the position were arguments of the appellant, Miss Devlin, were otherwise, in view of the fact that our Constitution dismissed by that Court (Lord MacDermott C.C.J., has been in force since before the Second World War, Curran and McVeigh L.J.J.) on 22 nd June 1970. and was drafted at a time when the developments Furthermore, on 26 th June, 1970, on apparent which have led to the international situation as it grounds of bias, the Court of Appeal refused leave to exists today could not have been foreseen. Indeed, this appeal to the House of Lords to determine questions is a classic demonstration that, in a progressive society, of Law which had never been considered by it before. law must evolve to adapt to changing circumstances. The judgment of the Court was delivered by Lord Earlier Mr Lynch had said: “Ireland is like Britain MacDermott, and can be criticised by its omissions and unlike the other applicant countries and the rather than its arguments. As these omissions had existing member states of the Communities in having been made [the] subject of official reports, such as the a common law system. Conversely, she is unlike Cameron Report and the Bailey Report, into the Britain and like the others in having a written conduct of the police in respect of incidents in the Constitution. We are, therefore, in a unique position Derry Bogside in August 1969, in which no less than among the ten. Indeed it is from the combination of 12 policemen were suspended from duty for these factors that the more obvious legal implications deliberately attacking people and damaging property, peculiar to Ireland arise” ( Gazette , September/ this judgment can only be approached with cynical October 1970, p89/89). G Comfort Inn Smithfield Only a five-minute walk from the Four Courts A two-minute walk from the Smithfield Luas stop Hotel facilities include 85 rooms plus seven junior suites. All bedrooms have FREE broadband, power showers, dvd players, iron and trouser press. 30 rooms have their own balconies STIR CAFÉ has an all-day menu. Breakfast starts from as little as €2.50, lunch main course starts from €9, evening menu from €20. Plus daily specials Draught beer, bottle beers and wine available, plus SKY Sports showing all the big games.
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44 www.lawsociety.ie PRACTICE MANAGEMENT LAW SOCIETY GAZETTE NOVEMBER 2006 practice doctor
Got an issue you would like addressed by our panel of practice doctors? Email: [email protected] Marketing your
Adrienne Regan: “there is no substitute for a good reputation” X FACTOR olicitors tend to find it difficult to about your expectations, is essential in attracting the achieve a proper balance between their most suitable candidates. Will they have the right professional and home lives. This is experience and personality to fit in with your firm’s made harder by differing demands of ethos and client base? Sclients on the one hand, and the For example, take the following line from a sometimes unpredictable demands of home life on leading international law firm recruitment advert: the other. The aim is to ensure that the hours “Successful candidates will have a practical and worked give you time to satisfy the other flexible approach, high levels of initiative and a requirements of your life. desire to enjoy the camaraderie of a stimulating and The same applies to the time invested in team-working environment.” recruiting new talent. After all, striving to achieve Clearly communicating your firm’s values and your business goals does not always go hand in glove ethos (as this ad does) is imperative in influencing with the work/life balance sought after by today’s candidates, irrespective of the size of the firm. generation. When embarking on recruitment advertising, you So how do you convince potential employees that need to make sure that the firm’s brand is visible – your firm is a modern, progressive and innovative firm sometimes recruitment adverts are placed without that offers them the work/life balance they desire? On any brand identity and very bland language. This the flip side of this argument, how do you ensure that does the firms in question – and their reputations – you’re getting the quality of personnel you seek? no favours at all.
The right fit Marketing your reputation Defining the career employee package to a Ultimately, however, the best recruitment ad in the prospective new recruit, as well as informing them world is no substitute for a good reputation. Fortunately, there are many ways to build one. It just takes time – time spent writing and submitting articles to relevant publications; time spent SO, WHAT’S YOUR X FACTOR? conducting independent proprietary research among When it comes to recruiting, you’ll find that candidates are looking for something students, clients and other advisors to identify the that sets your firm apart. That something is not necessarily very obvious – external perception of the firm and how it might be offering an excellent salary package can also denote a requirement to work enhanced; and time spent developing positive ‘word around the clock, for instance. This is not always the key attraction for of mouth’. employees. However, establishing yourself as a dynamic, forward-thinking firm Remember, each dealing you have with every that provides a progressive career path, one that demonstrates a willingness to client is at the core of your marketing. At the end of invest in personal development, could be the vital factors that set you apart. Or the day, they are your most important ambassadors, you could embrace a niche within the market. You know your firm best, so it’s up so if you do nothing else, make sure that they’re to you to decide your key differentiator. Whatever it is, you’ll find that, when the saying good things about you! G time comes to recruit – at any level – these key messages will have a significant role to play in attracting the right people to your firm. Adrienne Regan is a partner in Regan Lowey, which offers practical marketing advice to professional advisors.
www.lawsociety.ie 45 LAW SOCIETY GAZETTE NOVEMBER 2006 PEOPLE AND PLACES
‘Independent Day’ Attending a dinner in honour of Sir Anthony O’Reilly and his wife Lady Chryss O’Reilly at Blackhall Place were President of the Law Society Michael Irvine, and some of their colleagues from Matheson Ormsby Prentice PIC:ROBERT ALLEN PHOTOGRAPHY HEALTHY DEVELOPMENT new organisation, the issues arising from the AHealth and Safety Lawyers’ legislation. “It will assist them Association of Ireland (HSLAI), in finding practical solutions for has been launched. HSLAI their clients in order to help brings together specialist them comply with their duties solicitors and barristers to help and responsibilities under them tackle the complexities of health and safety law.” the Safety, Health and Welfare At the launch, special guest at Work Act 2005 . Mr Justice Peter Kelly said: “It The chairperson of HSLAI is is vital that we continue to Aisling Butler, who is an expert address the number of in health and safety law at accidents and breaches of this Turn on the wireless! William Fry Solicitors. She says legislation by ensuring that the Signing the contract to supply wireless internet access to the Law Society that the organisation will legislation is properly in our Four Courts consultation rooms are (l to r) : Achim Möhrlein provide a forum at which understood and applied in the (Chairman, GlobalAirNet), Tom Blennerhassett (IT Manager, Law Society), Paddy Caulfield (Manager, Law Society Consultation Rooms) and Galen experts can discuss complex workplace.” Bales (Managing Director, GlobalAirNet). The service is expected to go live on 1 January 2007
Celebrating the launch of the Health and Safety Lawyers’ Association Hallmarks of excellence of Ireland were (l to r) : Siobhra Rush, MOPs (secretary), Mr Justice A Professional Marketing Forum event was held in the offices of Mason Peter Kelly, Aisling Butler (chair), Michael O’Neill, HSA in-house legal Hayes & Curran on 5 October. Brody Sweeney spoke on the hallmarks of advisor (vice-chair) and Alison Fanagan, A&L Goodbody (treasurer) service excellence for professional service firms and is seen here with the firm’s managing partner, Declan Moylan and Adrienne Regan of Regan Lowey
46 www.lawsociety.ie PEOPLE AND PLACES LAW SOCIETY GAZETTE NOVEMBER 2006 Law Society committees’ end-of-year dinner ALL PICS: LENSMENPICS: ALL
Enjoying the Law Society committees’ end-of-year dinner were (l to r) : Fascinating! (L to r) : former president Michael V O’Mahony, retired judge Geraldine Clarke, President Michael Irvine and Frank Daly John F Buckley and Judge Brian Sheridan
At the end-of-year dinner were (l to r) : former and current family law That’s a good one! (Lto r) : Patrick Groarke, Carol Plunkett and committee chairs, Joan O’Mahony and Sinead Kearney Ian Moore
Attending the Law Society committees’ end-of-year dinner were (l to r) : The Captain Birdseye look is Michael Quinlan and Mary Mary Fenelon, Therese Clarke and Fiona Ní Cheallaigh catching on – John P O’Malley Cantrell were at the committees’ (back) and Justin McKenna end-of-year dinner
John Glynn, Michael Greene and Michele O’Boyle of the Enjoying the genial atmosphere at the dinner on 5 October were Client Care Task Force Boyce Shubotham and Orla Coyne
www.lawsociety.ie 47
STUDENT PAGE LAW SOCIETY GAZETTE NOVEMBER 2006 student spot light
Rosemary takes the laurels he Legal Work Experience RUSSELL-HILLMARK PIC: weekend for two to a European TProject for trainees is now destination – was won by in its second year. Its aim is to Rosemary Wall, whose project encourage student solicitors at work was carried out with Frank Blackhall Place to get involved Murphy at the Ballymun with local voluntary agencies. Community Law Centre. This This helps raise awareness of centre offers a unique service to the significant contribution Ballymun – it’s the only source such organisations make to local of legal advice or assistance communities. It also allows law available in the entire district, school trainees to witness, which has a population of over firsthand, the difference pro bono 15,000 people. work (or work carried out for The winner of the Legal Work Experience Project for law students is The level of interest Rosemary Wall, trainee solicitor with Malcomson Law. Rosemary is congrat- the public good) can make. generated among trainees at the ulated by prize sponsor Lisa Weston, of Osborne Recruitment Consultants, The year’s project was and Evelyn Hanlon, chairperson of the Ballymun Community Law Centre project launch was launched by the Law School on overwhelming, and all 28 September, in conjunction Law Centre, Irish Commission Consultants, who generously organisations taking part were with leading voluntary agencies. for Prisoners Overseas and the offered a prize to the trainee pleased that so many trainees Those taking part included the Legal Aid Board. who made the biggest were willing to give so Ballymun Community Law The project is sponsored by difference to the organisation generously of their time and Centre, Northside Community Osborne Recruitment they supported. The prize – a expertise. Dukes of Hazzard head ‘Wesht’! n Friday 13 October 2006, cloudless sky as we ventured O50 trainee solicitors from into the waves at Keel Beach. the PPC1 course, under the It was fabulous – think guise of the Outdoor Pursuits ‘Summer Bay’. We even Society (organisers Edel managed to get a photo of Kennedy and Gavin Hinchy), someone actually standing on a leapt into their vehicles in a surfboard (unsure if it was, in Dukes of Hazzard-style manner fact, an instructor). The rest of and headed ‘Wesht’! The the group went kayaking, rock- resulting convoy, which was climbing and ‘diving’ into clearly visible from space, snaked bogs. towards our refuge for A disco-nap was urgently intellectual and spiritual required on the Saturday reflection for the weekend: Achill Penguin-like, trainees in the wild huddle together for warmth evening before yet another Island. The ideally-located Keel Chinese take-away. We Holiday Cottages are nestled in on offer ... a great Chinese take- at the ‘hot-spot venue’, Cottage descended on Main Street, the heart of the island, with the away. The evening should Number 6. The singing and Keel, that evening for the trad beach a mere jig away. The perhaps have been one of dancing continued until the session. Enquiries about the rolling hills provided the perfect relaxation in advance of dawn chorus. nearest night club elicited the backdrop to this idyllic haven. Saturday’s planned sports At 8.30 on Saturday response: “Night club? There’s The itinerary included surfing, activities. Well we did stay in morning, the only real no such thing here ... you mean kayaking, rock-climbing and hill- that night – in an attempt to be motivation for surfacing was the ‘the dishco’!” Some ’80s tunes walking, followed by an evening fresh-faced for an action-packed promise of a fry-up, which and the national anthem went of traditional ‘diddley-idle’ tunes Saturday. However, what worked wonders! Before long, down well, followed by “olé, and a few tanoras in the local. followed was a night of we were struggling into wetsuits olé, olé” while waving an Irish On Friday evening, we entertainment by the talented at the activity centre. flag. A superb weekend, sampled some of the local cuisine Fullam Morgan and his guitar Miraculously, the sun shone in a definitely to be repeated. G
www.lawsociety.ie 49 Pat Pat Kenny G on on RTÉ Radio 1 on the James MacGuill said that The The director general con- Show following Tuesday to discuss the In matter. his the view, site was the technological equiva- lent of writing on the back of a door. toilet there was a possibility that the incitement to harassment provisions of hatred Irish would legislation be applicable. and that the Anne suggested Colley Society might also opportunity take the to indicate anyone that with a genuine com- plaint had a number of means of having it dealt with, rather than to having to resort sites of nature. this Bar Association International The Council considered, and approved, a Geraldine proposal from Clarke Society that and the Bar the should Council invite the International Bar Association to hosting its 2012 consider conference in Ireland. the the site contained defamatory members named about remarks of the judiciary. invited been he had that firmed to participate in the fixed fixed scales of de de facto that that the Society had also high- lighted the internal inconsis- tencies and objec- key the of some between contradictions tives and recommendations of the Haran Working Group, in particular the objective of cre- ating prescribed guidelines for recovery of costs that not would be costs. Study Authority Competition The Council noted correspon- dence from the Competition Authority requesting further to com- in relation information plaints and in relation to fees for attendance at School. the Law rateyoursolicitor.com con- the discussed Council The tent of the website rateyourso- regarded was which licitor.com, as insulting, in defamatory relation to many baseless throughout practising solicitors and the country. It was noted that an individual, who had conducting a been campaign against lawyers for some appeared and site the on named time, was to be connected with its estab- It lishment. was also noted that appointment appointment of the project board and the appointment of members of the profes- to sion board.” that The director general noted Circuit CourtCircuit Rules Committee The Council approved the re- appointment of Joseph Deane represen- Society’s the of one as tatives on the Circuit Committee. Rules Court group working Government review of costs legal Gerard Griffin Council briefed on the Society’s the sub- mission to the Implementation Government Group Legal Costs, which on had been circulated. Mr Griffin noted that the Society had mended that there recom- should be a regulatory impact assessment prior to any decision to estab- lish a and legal costs regulatory assessment structure. In addi- tion, had the drawn submission attention to the likely costs of the replacing existing functions of the taxing masters and the country registrars, which had a of basis the on calculated been for need 25 assessors. , Report of Law Society Council meeting held on 1 September 2006 report NOVEMBER NOVEMBER 2006 The The Council approved the Report Commission Reform eConveyancing: Modelling of System Conveyancing Irish the the various impact the about Lawcommittees Society of an electronic conveyanc- ing system, solicitors about electronic conveyancing by seminars to way be held at local of and national level through CPD, bar associations and and means, other at a political level the early Report from the Force Task eConveyancing Dan O’Connor briefedCouncil the in empha- force, task the relation of report to the sising that the introduction of e-conveyancing inevitability and was that important it that was the an solicitors’ profession was fully engaged with the process and played a key role in the delivery of services. conveyancing e- recommendations of the task force: the Law “That Society: • Formally welcome the Law • Encourage discussion with • Promote discussion among • Be proactive by promoting www.lawsociety.ie LAW SOCIETY GAZETTE council
BRIEFING 50 BRIEFING 51 11,500 € G 50 plus a quarter a plus 50 4,000 may have to have may 4,000 www.lawsociety.ie € € NOVEMBER NOVEMBER 2006 18,000 18,000 may pay up to report € 1,675 1,675 for legal aid. The 11,500, 11,500, the new minimum 10 and for legal aid will be disposable a with Those 50. 150 150 for legal advice and, 11,500 and the applicant’s 320,000 320,000 will be excluded and and fee fee for legal advice will be income between € € € disposable disposable income. In addi- tion, those with capital of excess in formula is is formula of the difference between based based on a formula, up to € € € € from from legal aid. It is that the family remembering worth cap- constitute not will home ital the in contri- calculating can board the that and bution be asked to waive the fee in hardship. of cases pay an additional fee called a fee called pay an additional Anyone capital contribution. with capital in excess of 1,100 1,100 to € LAW SOCIETY GAZETTE 4,900 4,900 to a maximum of € 3,500 3,500 and for each child 1,600. The allowance for 8,000. € € dependant dependant from actual accommodation costs payments rent or mortgage – – has gone from a maximum of family family home is to be disre- garded both for the purpos- es of qualifying for the serv- ice and in terms of calculat- ing the contribution that a person must pay for aid. legal Applicants’ contributions – or fees – are linked to their to income, capital disposable other than the family home, cash any to occasionally, and, award made in the course of a case. For those on social welfare only, or with a dis- posable income of less than € committee committee • The value of the applicant’s • Civil legal aid is never free. 1,900 to 6,000 per € € 13,000 to € 1,100 1,100 to € 18,000. Disposable income Disposable 18,000. € is income net of tax and PRSI and tax of net income is and net allowances. also of certain tions from actual income, in order to calculate disposable income, have also increased. The allowance for childcare expenses has actual risen from to to qualify for the service has risen from child. spouse’s The allowanceincreased dependent from has • The allowances or deduc- waiting waiting time of two months or less. The Law Family and Civil Legal Aid Committee would like to draw the attention solicitors of to changes means in test for the civil legal from 1 September 2006, aid as set out in SI no 460 of 2006. The are: changes principal • The income limit disposable Civil . These While While there used to be long LEGAL AID LEGAL Civil Civil legal aid – revision of the means test Civil legal aid is Legal available Aid at Board Law Centres throughout the country to all those who satisfy the board’s means test and Successful applicants merits are enti- test. tled to civil legal aid for a wide apart cases, law civil of category from nine specific action, types detailed of in the delays in accessing legal aid, this aid, legal accessing in delays is no longer the case. no Now, more of list waiting a has centre the of half and months four than 30 centres nationwide have a Legal Aid Act include some defamation, cases 1995 and land, in interests to relating actual representation at most tribunals or the small court. claims rsity rsity provides provides suc- Nuala Casey Nuala Trusts Committee ISCHARGE Probate, Administration and taken taken on or after 2 February 2006. If a personal representa- 3) has been The gift/inheritance The form is Revenue available website or on as the a above. outlined as copy hard tive/practitioner should submitsbut 11, CA Form standard the have used the (Develop), Revenue Form will CA return the 11 relevant representa- papers personal the request and will tive/practitioner to submit the land development version of the certificate. Wills, Wills, Probate & Estates (BL, probate officer), and Anne Stephenson Anne and officer), probate (BL, cinct cinct and practical advice, tackling ques- are of that and procedure of practice tions on students to only not importance, central course, practice professional the Society’s any with deal who to practitioners also but probate. or trusts wills, of area n wills, trusts, probate and administration, and to and administration, and probate trusts, wills, n or phone: 01 672 4942 if you wish to order a copy. a order ifto 4942 wish phone: 672 or you 01 d) is both the editor and an author. Other authors: Other author. an and editor the both is d) as run by the Law Society of Ireland. of Society Law the by run as The new certificate Form in whole or in part of “devel- and land”, opment relief has been and property, that of respect claimed in where where a gift or inheritance con- sists of as section the in “developmentdefined is which land”, land in the state, of at value which the of date the the market gift or inheritance exceeds the current use value of the land at that date and includes in or whole in value their shares deriving partland. such from CA11 (Develop) should only be where: used 1) The gift/inheritance consists 2) relief Agricultural or business published by the Law Society of Society Law Unive the by published Ireland/Oxford nna (solicitor, FJ Irvine & Co), Annette O'Connell O'Connell Annette Co), & Irvine FJ (solicitor, nna This This practical and user-friendly book ing to act; grant of administration intestate, administration of grant act; to ing where the deceased has left no will; and grant of with administration will there annexed, but will a left has deceased the where is no executor able or willing to act. The frequent less those on goes to text outline where a type occasions of further grant is necessary, whether a second or subse- quent grant, or a grant limited as to pur- duration. or pose also covers in full how to advise the responsibilities per- their of representative sonal and duties to beneficiaries, family mem- bers, and creditors, the State in terms of any taxation liability either outstanding or arising. and lecture on the Law Society, PPC I and PPC II i II PPC and I PPC Society, Law the on lecture and FROM CAT) FORMS FROM AVAILABLE CAT) Wills, Probate & Estates, Section, Shanowen Road, Santry, Road, Shanowen Section, Dublin 9; lo-call telephone num- 706. 306 1890 ber: This form should be used in all development involving not cases, land, where agricultural or busi- ness relief has February21 since 2006. been claimed development seven: Condition and/or agricultural and land relief business In addition,Commissioners would like advise the practitioners that to a new Form Revenue CA11, Discharge available now Certificateis Tax, Acquisitions of from and is required to be submitted Capital Padraic Courtney, (solicitor, Law Society of Irelan of Society Law (solicitor, Courtney, Padraic – is – the profession in CPD, STEP, and the various diplom various the and STEP, CPD, in profession the NOVEMBER NOVEMBER 2006 notes 70. Contact Julianne Ward: email:70.Julianne [email protected] Contact € Finance Act 2006 WILLS, PROBATE & WILLS, ESTATES PROBATE (solicitor, Daly, Lynch, Crowe & Morris), Anne McKe Anne Morris), & Crowe Lynch, Daly, (solicitor, The form is available for down- for available is form The NEW CAPITAL ACQUISITIONS TAX CA11 (CERTIFICATE OF CA11 D ACQUISITIONS (CERTIFICATE NEW TAX CAPITAL The The manual deals fully with how to Volume editor and authors: and editor Volume The Law Society is now selling now is Society Law The (solicitor, Stephenson & Co). All the authors tutor authors the All Co). & Stephenson (solicitor, Press. Price: load load from the Revenue website, copies hard and www.revenue.ie, are available from the Revenue Warehouse, Forms and Leaflets now available. now Condition six: potential claw- potential six: Condition credit gains capital of back The and Probate, Administration Trusts Committee would like to advise practitioners that a Acquisitions new Capital the of version Tax Form CA11 account takes which – (Certificate Discharge) of of of clawback for credit allowed capital gains against gift tax two on within property the of sale the years, as introduced by section the of 119 A NEW ADDITION to the Law Society of Ireland series, this manual has been writ- practition- and solicitors trainee give to ten of understanding ers a and thorough clear in area the procedure and practice current administra- the and probate, trusts, wills, of tion of estates. It outlines the basic ele- ments of a will and familiarises trainees with the common law and back- statutory docu- draft to able are they that so ground, with their in accordance exactly mentation clients’ and statutory instructions informed requirements. representa- of grant appropriate an extract the deceased where of grant probate tion; has left a who will and is an will- executor www.lawsociety.ie LAW SOCIETY GAZETTE practice
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> > = K 5 @ < ■ ■ ■ ■ ; 8 - (With effect from 1 January 2007) LAW SOCIETY GAZETTE HIRE HIRE RATES Solicitors who into enter such Solicitors Such arrangements undoubt- take the necessary achieve a proper steps conveyance of to advise, to secondly, property; the as necessary, as to course of action in particular cir- the best difficul- if especially cumstances, ties arise in the course of and transaction; that thirdly, the the solicitor has no conflict of inter- is It instructions. accepting in est in the context of advice that the lies. conflict potential arrangements say that they will have no difficulty in carrying out their clients’ instructions. They must be independent sufficiently to pursue their clients’ interests as necessary. They must stand their ground against the builder and delay the of completion any necessary. be this should sale edly appeal in saving to possible the of because the consumer legal fees. However, purchasers require the arguably, the employment of an protection independent that, solicitor ofchoice would give. There should their be some recognition of the fact CONFLICT CONFLICT OF INTEREST? Such Such an arrangement does However, the view of the When a a instructs purchaser chasers’ chasers’ solicitor all purchases. individual the the for fees legal not any contravene It regulation. 85 SI from distinguished be to is of 1997, which places a restric- in acting a tion on con- solicitors veyancing transaction on behalf purchaser and builder the both of of residential arrangement under units. discussion, solicitor. own his has In builder the the Guidance and Ethics Committee is that solicitors who enter into may such be arrangements plac- ing in themselves an impossible position. In the event that their dissat- become purchaser-clients may isfied, solicitors not be in a they that demonstrate to position have been to difficult professionally be may it and inde- pendent, a that conclusion a against argue of to existed conflict interest the extent that the interests of the compromised. were clients solicitor, it is instructions that implied the in purchaser is, the firstly, asking the solicitor to TEL: 01 668 1806
PURCHASERS’ PURCHASERS’ SOLICITOR’S OR FEE SUBSIDISED PAID BY B
his his is an issue that has aris- en in the context of certain
A typical arrangement involves arrangement typical A CONSULTATION ROOM CONSULTATION
arrangements that builders are making individual with solici- tors. a builder who is housing estate. He developing has his a own solicitor. He approaches a sec- ond solicitor in the sug- locality, gesting that the second solicitor makes himself/herself available to act on behalf of all the chasers pur- of the have to wants builder houses The estate. in the this arrangement in avoid, place as the to builder unnecessary Undoubtedly, delay. sees it, when each purchaser has a may dif- solicitor each solicitor, ferent raise at and title the least to relation in queries some different other matters, so that, in be total, to queries numerous are there dealt with by the builder’s own could everyIf purchaser solicitor. be encouraged to go to the one it solicitor, would mean that the number of queries is minimised. arrangement the partof Crucially, pur- the pay will builder the that is T 1/9/ 1/9/ Appoints Prescribe Prescribe the Prescribe Prescribe the Appoints 4/11/ Appoints SI 504/2006 SI SI 511/2006 SI 512/2006 SI SI 469/2006 SI 2006 Commencement date: ment) (No 2) Order 2006 plications) Regulations 2006 Title Act 2006 (Commence- 2006 Number: Contents note: for main the requirements pro- of tection health and the safety, welfare of persons working on sites construction and give fur- form form of for application licences issued to individuals under the Private Security (Licensing and Qualifications) Regulations 2006 468/2006). (SI Commencement date: Number: Contents note: Registration of Deeds and Number: note: Contents for day establishment the as 2006 the act. the of 2 part under Property Authority Registration Safety, Health and Welfare at Private Security (Licensing Ap- Number: Contents note: Registration of Deeds and 4/11/2006 as the pro- following commence- the for date ment visions of the act: (a) section 4 (except insofar as it applies to act; the to schedule the of 1 part (b) part 2 7 (sections to 31); (c) sections 46 to 48; (d) sections 53 to 52(d), 57, 51, 52(b), 50(e), sec- (e) 72; and 71 67, 64, 62, 61, 2 part 75 (f) of 74, 78; and tions 1/1/2007 Appoints schedule. the as the date commencement for act. the of 73 section Regulations 2006 Work (Construction) ment Day) Order 2006 Title Act 2006 (Establish- 1/9/ 22/9/ 9/10/ Provide for Prescribe Prescribe the Appoints 27/9/ Appoints Provide for the for Provide (SI 468/2006). (SI Set out the pro- the out Set Private Security SI 470/2006 SI SI 468/2006 SI SI 499/2006 SI SI 509/2006 SI 485/2006 SI . Day) Order 2006 Regulations 2006 Fees) Regulations 2006 Regulations 2006 Number: note: Contents issue of licences to individuals as services security perform who door supervisors at premises or as licensed security guards, and for the to qualifications be them. by obtained Mental Health (Criminal Law) Number: note: Contents 2006 as the establishment day (Criminal Health Mental the for Law) Review Board under the Criminal Law 2006 (Insanity) Act Private Security (Licence Number: Contents note: fees payable for licences issued under the (Licensing and 2006 Regulations Qualifications) Commencement date: 2006 Private Security (Licensing Number: Contents note: Garda Síochána (Promotion) Number: note: Contents cedures to be followed in rela- tion to the of promotion mem- Síochána. Garda An of bers Commencement date: future garda recruitment boards recruitment garda future to take satisfactory into account service by candidates who have Reserve. Garda the in served Commencement date: 2006 2006 Review Board (Establishment and Qualifications) (SI 29/9/ 3/10/ 27/9/ 10/10/ Implement Amend the Give Give effect in SI 507/2006 SI SI 508/2006 SI SI 518/2006 SI Quota) (Amendment) (No 3) Regulations 2006 Time) (Mobile Staff in Civil 2006 and Appointments) (Organisation of Working (Eligibility for Protection) (Amendment) Regulations Regulations 2006 Aviation) Regulations 2006 Number: Contents note: 2006 Garda Síochána (Admissions Number: Contents note: European Communities Quota) (Milk Regulations 2000 European Communities directive 2000/79/EC on the time of of working organisation crew members on board a civil aircraft. Commencement date: European Communities (Milk to 94/2000) provide for a milk- scheme. trading quota Commencement date: 2006 European Communities Number: Contents note: Irish Irish law to the 2004/83/EC directive directive’, ‘qualification on minimum standards for the and qualification status of third country nationals or persons as or refugees stateless as persons who otherwise need interna- tional protection and the con- granted. protection the of tent Commencement date: 2006 Registrar Registrar of Companies of new a annual return date for company). a Commencement date: 2006 (SI 2/1/ 20 20 September – 17 October 2006 Road NOVEMBER NOVEMBER 2006 4/10/ tion tion update Child Child Care Amends Amends and Introduces Introduces a in in relation to Set out the vari- the out Set 4/10/2006 Child Care (Pre-School Child SI 502/2006 SI 28/2006 SI 505/2006 SI (SI 268/1997). (SI legisla www.lawsociety.ie 2006 STATUTORY SELECTED INSTRUMENTS drink drink driving and makes provi- sion for Transport to the grant licences to passenger Ministerroad and haulage road for provides and operators transport matters. connected for enacted: Date Commencement date: Services) Regulations 2006 Companies (Fees) Number: Order 2006 Contents note: ‘nil’ fee for the electronic filing the to (nomination B73 form of Child Care (Pre-School Number: complied be to requirements ous pre- on carrying persons by with for school services the purposes and safety health, the securing of devel- the promoting and welfare opment of pre-school children. the Revoke Contents note: Contents Services) Regulations 1996 (Pre-School Services) Regulations 1997 Commencement date: 398/1996) 398/1996) and the 2007 extends extends part III of the Details Details of all bills, acts and statutory instruments since 1997 are on the library cata- logue – area) students’ and (members’ www.lawsociety.ie – with updated information has a bill stage current the on reached and the commence- act. each of date(s) ment PASSED ACT Act Transport and Traffic Road 2006 Number: Contents note: Traffic Act 1994 LAW SOCIETY GAZETTE
BRIEFING 54 BRIEFING 55 G ¢ ¡ ú ù û ú ù ã ¦ ø Î © Prepared by the the by Prepared ò Ì ¤  ¦ ô É ¨ ø Ê õ www.lawsociety.ie Law Society Library Society Law u ö Ú NOVEMBER NOVEMBER 2006 { ¥ ô § Ù ÿ ¦ ¥  ¤ ú Í £ õ Ì ù v  û ¢ Æ ð ñ à ø ¡ ù Þ provide that the minister may, in may, minister the that provide consultation with the Minister for Finance, indemnifyPensions Board members the and lia- against board the of staff the bility for damages where or they faith. costs good in have functions their discharged ö
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Í Á Ö Ö Þ Â Â Â Ì Í £ Ò Í Æ Í ß Ø (SI (SI 481/2001) Æ Ì Õ Â Æ Î Ú Ê Æ Í ~ Ù Ì Ä ã Ä Í Â î } Æ Î È Safety, Safety, Health and Î È Ù É | Î Ê Æ Æ Ê Safety, Health and Ä Í € È Ò Õ É Â È Î Ê Ä Õ È Á Ì Ì Ã Ç Ç Ê Ó Â Ì Ì Ð Æ É Í ê Á Í é Ë é À Ë Ï Ô Å Ñ ther 92/57/EEC effect on the minimum safety to and health requirements at directive temporary or mobile con- struction sites. Replace revoke the and Welfare Welfare at Work (Construction) Regulations 2001 Welfare at Work (Construction) and the BRIEFING LAW SOCIETY GAZETTE NOVEMBER 2006 firstlaw update
News from Ireland’s online legal awareness service Compiled by Flore Bouhey for FirstLaw
– consent form – vague in respect rule of law. To imply a term, the order for discovery of all corre- CONSTITUTIONAL LAW of material terms – whether con- contractual provisions alleged spondence between the office Legal representation sent given to implantation of had to be necessary, capable of of the DPP and the gardaí in Judicial review – whether the con- frozen embryos. being formulated with preci- respect of the progress of the tent of the notice published by the The plaintiff and first defen- sion, and be terms that both criminal investigation of the respondents infringed the right to dant decided to undergo in vitro parties would have agreed if applicant, alleging that it would a fair trial – Competition Act fertilisation treatment and suggested at the time of the be impossible to effectively 2002 – article 40.3 of the signed a consent form to conclusion of the contract. In cross-examine certain depo- Constitution. embryo freezing further there- light of the evidence, it was not nents without sight of the cor- The applicant sought an order to, whereby they agreed to the the presumed intention of the respondence. of certiorari quashing a notice, cyropreservation of three of the parties that the frozen embryos The Supreme Court allowed published by the respondents, six embryos that were pro- would be implanted in the the appeal, holding that the that contained a general prohi- duced. The first three embryos plaintiff following the success applicant must have the oppor- bition on the same lawyer repre- were implanted in the plaintiff, of the first implantation and the tunity of satisfying herself that senting more than one client in which produced a child for the legal separation of the parties. what the opposite party has any matter under investigation couple. The parties subse- It was not established that, to chosen to refer to represents by the respondents. The appli- quently legally separated. The give effect to the agreement material and relevant matters. cant submitted that the notice plaintiff then decided that she between the parties, it was nec- The DPP had to list all relevant was ultra vires the powers and wished to have the remaining essary to imply a term that the documents. functions of the respondents frozen embryos implanted so frozen embryos would be Cunningham v President of and infringed the right to that she could have one or more implanted in the plaintiff. the Circuit Court , Supreme choose a lawyer and to basic further children. The first Rather, the agreement to par- Court, 26/7/2006 [FL12758] fairness and procedures guaran- defendant submitted that he ticipate in the treatment indi- teed by article 40.3 of the had only given consent to the cated that the frozen embryos PLANNING AND Constitution. implantation of the first three would be used if the first DEVELOPMENT O’Neill J granted an order of embryos and not the frozen implantation failed. certiorari , holding that, embryos, particularly in cir- R(M) v R (T) , High Court, Judicial review notwithstanding the fact that cumstances where he had sepa- Mr Justice McGovern, Planning and Development the respondents had a power rated from the plaintiff and did 18/7/2006 [FL12774] Acts 2000 to 2004 – Roads Act that was incidental to or conse- not want further children with 1993 – whether the applicant quential upon the functions and her. The plaintiff brought pro- established substantial grounds for CRIMINAL LAW powers conferred upon them ceedings alleging that she had a contending that the decisions of the under ss30 and 31 of the 2002 right to have the embryos Discovery respondent were invalid. act to publish notices of the implanted in her. Criminal procedure – evidence – The applicant sought leave to kind impugned in these pro- McGovern J held that there whether applicant entitled to dis- apply for judicial review of a ceedings, the notice in question was no agreement, express or covery of all correspondence determination by the respon- impermissibly infringed the implied, as to what was to be between the DPP and gardaí as to dent refusing to approve an right of a person appearing done with the frozen embryos progress of investigation – application for an Athy inner before the respondents to in the circumstances that arose, Offences Against the Person relief road made pursuant to choose their own legal repre- holding that the consent forms Act 1861. section 57 of the 1993 act, and sentation, and therefore signed by the plaintiff and first The applicant biochemist, an ancillary decision to annul a breached fair procedures. defendant were vague in impor- charged with offences pursuant compulsory purchase order Law Society of Ireland v tant aspects and did not cover to the Offences Against the Person made by the applicant for the Competition Authority , High contingencies that arose. There Act 1861 , had obtained discov- purpose of the road. The Court, Mr Justice O’Neill, was no evidence that the first ery of all communications applicant submitted that the 21/12/2005 [FL12765] defendant gave his express con- between the prosecuting respondent’s determination sent to the implantation of the authorities and the Blood was unreasonable and irra- three frozen embryos in the Transfusion Service Board as to tional and that the respondent CONTRACT LAW plaintiff’s uterus. A term could the criminal investigation erred in law in determining Interpretation be implied into a contract resulting in the prosecution of that the project would have an Circumstances in which terms because of the presumed intent the applicant. The applicant adverse effect on the environ- should be implied into agreement of the parties or because of a sought to appeal a refusal of an ment. The applicant also con-
56 www.lawsociety.ie BRIEFING 57 , ) [FL G , High 40,000 to ex-tempore € . The defen- , ss14 and 26. www.lawsociety.ie Civil Liability and Civil Liability and [FL12753] NOVEMBER NOVEMBER 2006 Feeney J ( The The information contained here is taken from FirstLaw’s Legal Current on day internet the Awareness every published Service, at www.firstlaw.ie.information, For contact more Merchant’s FirstLaw, or bartdaly@ firstlaw.ie Court, Merchant’s Quay, Dublin 8, tel: 01 679 0370, fax: 01 679 0057. the plaintiff, holding that the onus of proof of proving the applicability of s26 on the bal- ance of probability rested on the defendant. The had plaintiff not knowingly given false or misleading evidencethe and contention increased as need to forminding had care her not or been gerated. exag- The affidavit of veri- fication as provided pursuant to s14 had not lished to been be false estab- or mislead- ing. Ahern v Bus Eireann Court, Mr Justice Feeney, 16/5/2006 plaintiff as to how serious the said injuries were. Corbett v Quinn Hotels Ltd High Court, Finnegan, Mr 25/7/2006 Justice 12784] Personal injuries Fraudulent claim – assessment of damageaffidavit– ofverification – PIAB – damages whether claim for for fraudulent – continuing care Courts Act 2004 Thedefendant alleged thatthe plaintiff’s claim for damages for personal injury as to necessity the for continuing care was fraudulent, pursuant s26 of to the Courts Act 2004 dant alleged that the plaintiff elderly did not require assistance of the a carer, had pro- vided false and misleading evi- dence, and that the affidavit of verification provided pursuant tos14 of the 2004 act was false and misleading. awarded a sum of 58,500 for LAW SOCIETY GAZETTE € , High Court, Mr Feeney J refused the appli- MrJustice Finnegan award- TORT was manifestly unfounded on the basis of an assessment of the applicant’s credibility. He contendedthat the respondent failed to properlycountry of origin consider information and apply a forward-looking test in determining he whether had a well-founded fear of persecution. cant leave, holding that there was material available to respondent the to allow determine him that to the applicant had made statements or pro- vided information in support of his application of false contradictory, misleading such a or incomplete nature allow the as conclusion that to the application was unfounded. manifestly The lack applicant’s of credibility in turn fun- damentally infected the sub- jective element of an alleged well-founded fear of persecu- tion. Botan v Tribunal Refugee Appeals Justice Feeney, 30/6/2006 [FL12792] Damages Injuries sustained in fall – assess- ment of complaints resulted from accidentmatteras probability of – appropriatelevel of damages to be awarded. The plaintiff sought damages in respect alleged she ofsuffered as a result injuries of she a fall on premises. the defendant’s included Thoseones alleged to have occurred injuries to her shoulder. knees and admitted The liability. defendant ed the plaintiff pain and suffering to date and into the future for the injuries sustained in holding the that damages should accident, be awarded on the basis of the injuries actuallyrather than on the basis of the sustained subjective impression of the , lis Rules of the , holding that Refugee Act 1996 betweenthebenefi- , High Court, Mr Herbert J applied order 99, REFUGEE AND REFUGEE LAW ASYLUM section 13(6). The applicant sought leave to bring judicial review proceed- ings challenging a decision of the Refugee Appeals Tribunal that refused his appeal against a recommendation Commis- Applications Refugee of a declared be not he the that sioner refugee. alleged, among The other things, that the tribunal erred in applicant law and acted in procedures breach of fair in that the application for asylum determining all the parties to the applica- tion should be paid out of the assets of the estate. The sec- ond-nameddefendantclaimed, among other things, that her costs and those of the special administrator should be paid out of the estate with an order over against the defendant first-named or that named the defendant was first- obliged to personally indemnify estate against the debts. the rule 1(5) of the Superior Courts the costs of the special admin- istrator were to be paid out of the administration estate. This of was a hostile interpartes the ciaries under a will special administrator and was only the a nominal plaintiff. The sec- ond-named defendant entitled to an order for was costs, against the first-named defen- dant personally, of all previous applications and the application, present excluding submissions. legal O’Connor v Markey Markey Justice Herbert, & 14/7/2006 [FL12751] Fair procedures Credibility – finding that asylum application manifestly unfounded – whether error of law on face of decision – whether decision should be quashed – , , High Court, [FL12730] MacMenamin J refused the PROBATE Costs of application Succession law – whether costs to be paid by special administrator – Rules of the Superior Courts order 99, rules 1(1), 1(4), 1(5). The special administrator of an estate applied to court resolve a dispute to arising in the course of the administration of an estate. Thedefendant had been ordered to first-named indemnify the estatedebts that as were to matter of the the application. The subject first-named defendant claimed that the entire costs of now tended that the breached respondent fair procedures failing by to request information additional in with the environmental impact connection assessment and, consequently, the applicant was deprived of the opportunity additional to submit informationorder to remedy the purported in deficiency in the environmen- tal impact statementFurthermore, it was submitted (EIS). that the respondent’s decision that the EIS was deficient was irrational. application for leave, holding that the applicant establish failed a legal or to evidential basiscontentionitsfor thatthe respondent’s determination was unreasonable or erred in thatlaw. The respondent’s it decision that the EIS was defi- cient was not irrational: there was material respondent to before enablecome it to the to the arrived at. The respondent did conclusion it not breach fair The applicant procedures. was aware that the adequacy or inadequacy of the EIS was in question therefore and it was not necessary fortherespondent raiseto that issue. Kildare County Council v An Board Pleanála Mr Justice MacMenamin, 10/3/2006 BRIEFING LAW SOCIETY GAZETTE NOVEMBER 2006 eur legal
News from the EU and International Affairs Committee Edited by TP Kennedy, Director of Education, Law Society of Ireland Member state liability for infringements of community law by a supreme court he decision of the European Verwaltungsgerichtshof, the res judicata , the principle of legal law owing to a fault attributable T Court of Justice in Case C- administrative court of last certainty, the independence of to a court. However, those gov- 224/01, Gerhard Köbler v instance in Austria. The the judiciary, the judiciary’s ernments and the commission Republik Österreich , 30 Verwaltungsgerichtshof decided place in the EC legal order and considered that that liability September, and its more recent first to refer to the European the comparison with procedures should be limited and subject to decisions in Case C-173/03, Court of Justice a request for a available before the court to different restrictive conditions Traghetti del Mediterraneo SpA v preliminary ruling but subse- render the EC liable under arti- additional to those already laid Repubblica Italiana , 13 June quently withdrew its request, cle 288 EC. down in Brasserie du Pêcheur and 2006, and Case C-234/04, having been notified of a previ- Austria claimed, in particular, Factortame . Germany and the Rosemarie Kapferer v Schlank & ous decision of the court in Case that a re-examination of the Netherlands submitted that Schick GmbH , 16 March 2006, C-15/96, Schöning – Kougebeto- legal appraisal by a court adjudi- there is a sufficiently serious offer an instructive guide as to poulou ([1998] ECR I – 47). The cating at last instance would be breach for the purposes of the status of the principle of res Verwaltungsgerichtshof then incompatible with the function Factortame only if a judicial deci- judicata in the context of state dismissed Mr Köbler’s applica- of such a court, since the pur- sion disregarded the applicable liability for breaches of commu- tion on the ground that the spe- pose of its decisions is to bring a law in a particularly serious and nity law. cial length-of-service increment dispute to a definitive conclu- manifest way. According to the In Köbler , the court was asked was a loyalty bonus that objec- sion. Moreover, Austria main- German government, breach of whether the principle, accord- tively justified a derogation tained that, since the a rule of law by a court was par- ing to which member states are from the EC law provisions on Verwaltungsgerichtshof had ticularly serious and manifest obliged to make good the dam- freedom of movement for work- conducted a detailed examina- only where the interpretation or age caused to individuals by ers. Mr Köbler brought an tion of EC law in its judgment, non-application of EC law is, infringements of community action for damages before the it would be consonant with EC first, objectively indefensible law for which they are responsi- regional civil court in Vienna for law to preclude another possi- and, second, must be subjective- ble, is also applicable where the reparation for the loss he suf- bility of bringing proceedings ly regarded as intentional. Such alleged infringement stems fered as a result of the non-pay- before an Austrian court. restrictive criteria are justified in from a decision of a supreme ment to him of a special length Moreover, it maintained that order to safeguard the principle court. Mr Köbler, a professor at of service increment. He con- the conditions for rendering a of res judicata and the independ- the University of Innsbruck in tended that the judgment of the member state liable could not ence of the judiciary. Moreover, Austria, applied for the award of Verwaltungsgerichtshof infring- differ from those applicable to a restrictive regime of state lia- a special length of service incre- ed directly applicable provisions the liability of the EC in compa- bility for damage caused by mis- ment, which professors are enti- of community law, as interpret- rable circumstances. Since the taken judicial decisions is in tled to receive if they have ed by the court in judgments in second paragraph of article 288 keeping, in the German govern- worked at Austrian universities which it held that a special EC cannot be applied to an ment’s view, with a general prin- for 15 years. Mr Köbler had length of service increment does infringement of EC law by the ciple common to the laws of the worked in the higher education not constitute a loyalty bonus. ECJ, because in such case it member states as laid down in sector for 15 years, but part of The regional civil court in would be required to determine article 288 EC. this time had been in other EC Vienna referred to the court for a question concerning damage Austria submitted that article member states. He had claimed a preliminary ruling under arti- that it itself had caused , so as to 234 EC is not intended to con- that account must be taken of cle 234 of the EC Treaty . render it judge and party at the fer rights on individuals. In the the time that he had spent in the same time, neither can the lia- context of a preliminary refer- public service of other member Submissions bility of member states be ence procedure pending before states and that, were no such France, Britain and the incurred in respect of damage the court, the parties to the account to be made, this would Republic of Austria argued that caused by a court adjudicating at main proceedings can neither amount to indirect discrimina- liability of a member state could last instance. amend the questions referred tion unjustified under EC law. not be incurred in the case of a Germany, the Netherlands for a preliminary ruling nor Following the refusal of his breach of EC law attributable to and the commission considered have them declared irrelevant – application, Mr Köbler brought a court. They submitted argu- that a member state could be Case 44/65, Singer ([1965] ECR an action before the ments based on the principle of rendered liable for breach of EC 965). Moreover, only the
58 www.lawsociety.ie BRIEFING 59 res of of the judicial could could not be dis- . . The in applicant www.lawsociety.ie NOVEMBER NOVEMBER 2006 have the consequence of consequence the have , the court observed that , observed the court res res judicata res res judicata res res judicata Further, Further, it is in order – to of principle the Regarding which individuals may assert the assert may individuals which EC by them on conferred rights law. Since an infringement of those rights by a final decision thereafter cannot court a such of individu- corrected, be normally als cannot be deprived of state the rendering the of possibility liable in order, in that way, to obtain legal protection of their rights. prevent rights conferred individuals on by the under EC that, – infringed law being from a 234, of article paragraph third court against whose decisions there is to required is no law national under judicial remedy to make a the ECJ. It reference requirements the from followed the of protection the in inherent rights of individuals relying on the have must they EC that law possibility of obtaining redress in the national courts for the damage caused by the infringe- to owing ment of a rights those of decision a court adjudicating instance. last at judicata the of importance the principle of decision that was responsible for responsible was that decision puted puted and that to ensure both legal and law of the stability the and relations the sound admin- istration of justice, it is impor- tant that judicialwhich have become decisions, definitive after all rights of expiry of after or exhausted appeal been had time limits, could no longer be called into question. However, be should it that stated court the borne in mind that recognition of of the state principle liability for of a a decision adjudi- court cating at last instance does not in itself decision that in question calling as liabili- the establish to action an ty of if will, the successful, state secure an order against it for reparation of incurred, but not necessarily the a the sta- invalidating declaration damage tus of and a a for- LAW SOCIETY GAZETTE , paragraph 34). 34). paragraph , ). in the EC legal order, since order, legal EC the in The court noted that, in In In light of the essential role Brasserie du Pêcheur Factortame tions tions for the of liability the EC for mistakes by the EC judica- apply. to have would ture liability state of Principle The court stated that, princi- the as held, had repeatedly been ple of liability on the part of a member state caused as to a individuals result for which for law EC of damage breaches of is inher- the is state responsible ent in the system of the treaty. also had it that noted court The held that that principle applies to any case in which a member whichev- law, EC breaches state er is the of authority the mem- ber state whose act or omission was responsible for the breach ( Factortame international international law, a state that incurs for liability breach of an international commitment is viewed as a single entity, irre- spective of whether the breach that gave rise to the damage is attributable to the legislature, the judiciary or the executive. apply must principle That tiori all state authorities, including the legislature, are bound performing their tasks in to com- ply with the rules laid down by the govern EC directly law that situation ( of individuals played played by the judiciary in the of protection the rights derived by individuals from EC rules, the full effectiveness of question in called be those would rules and the protection rights of would those be from precluded weakened were individuals if condi- certain under able, being when reparation obtain to tions, their rights were by affected an of infringement EC law attrib- of court a of decision a to utable a member state adjudicating at last instance. The court stated that it must be in stressed, that context, that a court adjudicat- ing at last is instance by defini- before body judicial last the tion . . Sixth, it stare decisis Second, Britain submitted maintained that, if liability that, state maintained for a mistake by condi- same the the judiciary incurred, be can Acknowledgment of state liabil- of state Acknowledgment judiciary the by mistake a for ity confu- into law the throw would litigat- the leave would and sion uncertain perpetually parties ing stood. they where to as that the authority and reputa- tion of the judiciary would be diminished if a judicial mistake in an result future, in the could, action for damages. Third, it maintained that the independ- ence of the within the judiciary national constitutional order was a fundamental principle in all the member states, but one that could never be taken lia- state of for Acceptance granted. bility for judicial acts would be that risk the to rise give to likely that independence might called be in to given freedom the in inherent question. Fourth, natters decide to courts national of community law for selves them- is the acceptance these that courts will make sometimes errors that appealed cannot or otherwise correct- be dis- a was submitted, it This, ed. that advantage had always been considered acceptable. In that regard, it pointed out that, in be could state the that event the rendered liable for mistake by that result the with judiciary, the the court could be called upon to give a ruling preliminary on that point, the court would be empowered not only to of upon nounce the pro- correctness judgments of national supreme but courts to the assess serious- ness and excusability fallen. had they which into oferror any The consequences of this for the vital relationship courts between national the and court the would clearly not be beneficial. Fifth, it pointed to the difficul- ties in determining such the on adjudicate to court competent a case of particu- state liability, is a there where in Britain, larly strict a and system court unitary of doctrine , Eco . . The law , no action no , res res judicata res res judicata ([1999] ([1999] ECR I – 3055, Britain Britain stated that, as a mat- In this regard, Britain cited, infringement of a intended to provision confer rights in is a capable prop- individuals on the er mem- of sense rendering ber state liable. Accordingly, that liability incurred could in not the 234 by a of article infringement be case of court an adjudicating instance. at last ter and, of save where principle a act a judicial infringed funda- mental right protected by the European Convention Protection for of Human Rights and the Freedoms Fundamental of the first, legal cer- principles tainty and in in damages could be brought against the crown in respect of judicial It decisions. added that lia- state on which principle the bility is based, rights namely conferred by that EC rules must be effectively protected, was far from and absolute cited of application the regard in that fixed limitation periods. That principle would be capable of founding a remedy in damages against the state only in cases rare and in respect of certain judicial defined national strictly decisions. The advantage to be obtained in respect of judicial decisions would be, therefore, correspondingly small. Britain considered that that advantage certain against weighed be must concerns. policy powerful discourages re-litigation of judi- of re-litigation discourages of means by except decisions cial an appeal. This is both to pro- of the success- the interests tect pub- the further to and party ful lic interest in It legal certainty. in had, court the that submitted the past, shown itself to willing limit the principle of effective protection in order to uphold the basic such as system, principlesjudicial national of the the principle of legal certainty and acceptance of which which is an expression of that principle – Case C-126/97, Swiss paragraphs 43 to 48). , of limitation the (now articles 81, 82, 81, articles (now Traghetti Traghetti Traghetti del Mediterraneo In In state state liability under Italian law conse- a as sustained damage for quence of judicial conduct was by considered the court. While the Italian legislation provided for as compensation a result of a of part the on measures or acts judge who was guilty of inten- tional fault or serious miscon- of duct in his the func- exercise tions, this was qualified by the of exercise the in that, condition judicial functions, the interpre- the or law of provisions of tation evidence and facts of assessment liability. to rise give not would SpA (TDM) was a transport maritime undertaking along that, Navigazione, another with maritime ran transport undertaking, Tirrenia reg- ular di ferry services in the 1970s between mainland Italy Sardinia and and Sicily. In when 1981, it had entered into arrangement with its creditors, an TDM brought against proceedings Tirrenia before Naples district the court, seeking compensation for the damage that it claimed to have suffered policy low-fare the of a result as operated by Tirrenia. its that competi- submitted TDM also tor had failed to civil comply Italian the with of 2598(3) article code relating to acts of unfair competition and had infringed 85, 86, 90 and 92 of the articles Treaty EEC 86 and, after amendment, 87 EC respectively), since, in the its infringed had Tirrenia view, basic rules of the treaty and, in abused particular, its dominant on in the ques- market position well fares with operating by tion below cost, owing to its having obtained public subsidies, the law law was excusable or inexcus- – where taken position the able, applicable – by a non-compliance and community institution, its with question in court the by obligation to make a reference for a preliminary ruling under the third paragraph of article 234. European Dulaurans v , European Court of The The court ruled accordingly tions. tions. Further, it could also be noted that Convention on 41 article the Human particularly, more and, Rights thereof, enables the European Court of a infringed had Human that state a order Rights to fundamental right to result- provide damage the of reparation ing from that conduct for the injured party. The case law of that court showed granted be also could that reparation such when stemmed from a the decision of a national court adjudicating at infringement last instance France ( Human Rights, 2000). 21 March that the principle according to which the member states are liable to afford reparation as to caused individuals of damage of a EC of result infringements responsi- are they which for law ble is also where applicable the alleged infringement stemmed of a a from adju- court decision for is It instance. last at dicating member each of system legal the state to designate on dis- to adjudicate competent the court putes relating to such repara- tion. liability for Conditions the However, court noted that, having regard to the nature specific of the judicial function and to the legitimate require- ments of legal certainty, state liability in such a case was not incurred be could and unlimited only in the adjudi- court national exceptionalthe where case mani- had instance last at cating festly infringed the applicable law. In order whether that condition is satis- to a determine hearing court national the fied, claim for reparation must take account all of the factors that characterise the situation put in par- include, which it, before and of clarity degree the ticular, precision of the rule infringed, whether the infringement was of error the whether intentional, Rewe , , para- [1986] [1986] ECR or or the independ- Comet [1995] ECR I – [1980] ECR 501, paragraph 501, ECR [1980] Francovich Francovich and others res res judicata The court stated that accord- that stated court The The court added that, ence of the judiciary had caused had judiciary the of ence impose to systems legal national restrictions, which may some- possi- the on stringent, be times bility of mis- renderingby caused damage for the liable state taken judicial decisions, such considerations had not such been as absolutely noted to court The possibility. exclude that of the principle that application deci- to judicial of liability state sions had been in accepted one form or by another most of the to subject if even states, member restrictive and varying condi- on the principle of state liability state of principle the on by them affording an appropri- ate right of action. Application of of the state liability principle for protection secure to order in individuals of the rights con- ferred on them by could EC not rules be compromised by the absence of court. a competent ing to settled case law, in the absence of EC legislation, it is for the internal legal order of each state to member designate the competent courts and lay down the detailed procedural rules for intended legal fully to safeguard the proceedings rights that individuals derive 33/76, (Case EC law from 68/79, Case 13; paragraph 2043, Just 25; although considerations to do principle the of observance with of [1976] ECR 1989, paragraph 5; ECR paragraph [1976] 1989, Case 45/76, graph 42; Peterbroeck Case to 12). Subject 4599, paragraph 312/93, the reservation that it was for the member states to ensure in each case that those rights are effectively protected, the court stated that it was not for it to become involved in resolving questions of jurisdictionwhich classification of to certain law EC on based situations legal may give rise in the system. judicial national res NOVEMBER NOVEMBER 2006 does not preclude In In relation to the arguments In relation to the argument that argument the regards As the the damage. In any event, the court stated, the EC the in principle inherent liability of state repara- such requires order legal tion, but not revision of judicial the decision responsible for the damage. that It of principle the that followed was judicata recognition of the principle of of for the decision liability state a court adjudicating instance. at last and based on the independence authority of the judiciary, of the principle the that stated court liability in question concerned not the of liability personal the but judge that of the The state. possibility that, under certain conditions, the state could be deci- judicial for liable rendered not did law EC to contrary sions appear to entail any particular risk that the of independence a court adjudicating instance would be at called into question. last on based the risk of diminution adju- of a court authority of the dicating at last instance, owing decisions final its that fact the to in called be implication by could question in which proceedings the state could be in ren- dered liable for such decisions, the court stated that the exis- tence of a right of action that afforded, under certain condi- injurious the of reparation tions, effect of an erroneous judicial could also decision be regarded as enhancing the quality of a legal system and thus, in long the run, the authority of the judiciary. application of the principle of state liability to decisions of a national court adjudicating at last instance was precluded by the difficulty of designating a court competent to determine the repara- concerning disputes tion of damage resulting from such the decisions, court stated states member the for was it that to enable those affected to rely www.lawsociety.ie LAW SOCIETY GAZETTE
BRIEFING 60 BRIEFING 61 de www.lawsociety.ie NOVEMBER NOVEMBER 2006 exclusion of all state liabili- state all of exclusion Italy, Italy, supported by Ireland the judiciary. Further, regard to the of limitation that with to solely of cases inten- liability tional fault or serious miscon- duct on the part of the court, that would also lead likely to facto the ty court called since, firstly, upon to rule on an action for compensation for caused by a judicial decision is damage not left free to actual construe concept of the ‘serious mis- conduct’ itself but is bound by by down laid definition strict the the national legislature, which sets out in exhaustively – what constitutes advance – misconduct. serious and and Britain, submittedsuch as legislation national that that compatible perfectly was issue at com- of principles very the with fair a created it since law, munity balance between the need to preserve the independence of the judiciary and the essential of requirements legal certainty, provi- the and hand, one the on protec- sion judicial of effective tion of individuals in the most of infringement of cases flagrant to the judi- EC law attributable other. the on ciary, provisions of Interpretation law of Regarding the of compatibility limitation legislation’s Italian the inter- the of respect in liability of pretation of provisions of law, the court stated that it was not inconceivable that a manifest law of community infringement in precisely committed be might the exercise of such work interpretation if, of for example, the court gave a or substantive procedural rule of EC law manifestly a incorrect meaning, particularly in the light of the on law subject, the case relevant or national where it interpreted practice in that way a such in law led to an infringement of the applicable EC had General observed law. Advocate state As all exclude to opinion, the his in on circumstances such in liability ([1991] Brasserie precluded LAW SOCIETY GAZETTE Köbler The The court noted, first, that The commission and TDM excessively difficult, indeed difficult, excessively vir- tually impossible, for state the from to compensation obtain by caused damage deci- judicial that sions. legis- Consequently, lation disregards the principles joined in court the by down laid cases C-6/90 Francovich and and Others C-9/90, ECR I-5357) and joined cases C-46/93 and C-48/93, du Pêcheur ([1996] and ECR to decided di Genova Factortame Tribunale I-1029). refer The to and proceedings the stay a pre- for court the to questions ruling. liminary the aim of pending the before proceedings the referring was to court held the have state of of a in respect liable decision a supreme court that was not to subject The appeal. question referred must understood therefore as concerning, be whether of in question the essence, law and, in community particu- lar, the laid principles down by the court in excludes that legislation national all state liability for caused damage to individuals law of community infringement by an committed by a national court adjudicating at last where instance, that infringement is the result of an assess- an of or interpretation law of of provisions ment of the facts and evidence by that court, and also limits such liability solely to cases of intentional fault and misconduct on serious the part of the court. ques- that that of view the were tion called clearly for an affir- assessment Since answer. mative of and facts and inter- evidence pretation of provisions of func- law judicial the in inherent are tion, the exclusion, cases, of state for liability dam- in such rea- by individuals to caused age of func- that son of the exercise tion amounted, in practice, to exonerating the state from all liability for infringements of community law attributable to , could no res judicata Italy disputed even the In reply to those arguments, admissibility admissibility of that action for damages, basing its arguments partic- legislation, Italian the on ularly an article pro- of pursuant interpretation the which to visions of law in the context of functions judicial of exercise the liabil- state to rise give not could the in submitted it However, ity. alternative that if the by be could the held admissible action referring court, that the action must be dismissed, since references governing conditions the for a preliminary the ruling of judgment were the and met not Corte Suprema di Cassazione, being challenged. be longer the of question the raised TDM of the compatibility Italian leg- islation with the requirements particular, In law. community of that the it conditions submitted governing the admissibility of law laid down by Italian actions and the practice of the Italian courts (including so were the Cassazione) di Suprema Corte restrictive that they made it sion sion 2001/851/EC of 21 to June awarded aid state the on 2001 Tirrenia by Italy (a relating decision to subsidies after granted the period at issue in the main proceedings, but adopted instituted procedure a following by the commission before the hearing before Suprema di Cassazione the in the case that Corte gave rise to the judg- ment of TDM sub- that court), made court that had that, mitted a reference to the Justice, Court the of outcome entirely been have would appeal of the have, would court The different. in TDM’s submission,emphasis on laid the cab- of the community maritime dimension inher- otage and the difficulties compatibili- the assessing in ent ty of public bodies treaty rules with on state aid, which the would have Suprema led the di Corte declare that the Cassazione aid granted to to unlawful. was Tirrenia (now (now arti- Parliament v EC EC Treaty ([1985] ECR 1513). ECR ([1985] TDM, TDM, taking the view that deci- commission on Relying The action for compensation for action The TDM lodged an appeal on Council the supreme court inter- incorrect an on judgment based was and rules of treaty the pretation on the erroneous premise that the of law case settled was there Court of Justice on the matter, instituted proceedings against Italy before the Genoa district court for for compensation the damage suffered as a result of the errors of committed interpretation by Suprema di Cassazione and of the the breach of Corte its obligation to make a for reference a prelimi- third the to pursuant ruling nary 234. article of paragraph cle cle 234). However, the Corte Suprema di Cassazione refused on the to request that to accede ground that adopted by the court ruling on the rele- the approach followed substance the and treaty the of provisions vant the with consistent perfectly was its in particular case law, court’s judgment in legality legality of which was doubtful law. community under was dismissed at first instance by the Naples and subsequently court of appeal, on the ground the by granted subsidies the that authorities of that state public reflected they since were legal, connection in objectives interest with the development of Mezzogiorno the and of operation the affect adversely did not sea links other than, and com- peting with, those objected to it by could TDM. Accordingly, not be held that Tirrenia was responsible for acts of unfair competition. were decisions the that basis the vitiated by errors of law, since incorrect an on based were they rules treaty the of interpretation on state to aid, Cassazione di Suprema Corte requesting the of questions relevant the submit of EC interpretation law to the Court of Justice under article 117 of the res judi- res G Kapferer, was was confirmed in James James Kinch is a senior executive of Department in Law the solicitor Council. City Dublin from from excluding liability, in general a manner, for caused damage to individuals of infringement EC law by attrib- an at adjudicating to a court utable last instance, by reason of the fact that of interpretation an from results the infringement provisions of law or an assess- carried evidence or facts of ment out by that impor- the court. recognise does court That the of principle the of tance cata as it that, a where ruled general EC rule, a law does not require national court to disapply its internal rules of procedure in order to review and reopen a final judicial decision if decision should be that contrary to EC law. It is where there of has infringement manifest a been the applicable law, the rule con- of to intended is infringed law fer rights on individuals and it has been established that there is a direct causal link between the breach of the on incumbent the state and the obligation by the sustained or loss damage injured parties, that there is a redress. obtain to right both , and , Traghetti Köbler and res judicata res can can justify general Köbler Both Regarding Regarding the limitation of stated that, remained possible for national although law to define the criteria relat- it ing to the nature or degree of the infringement that must be met before state liability could an infringement for be incurred of community law adjudicating at last instance, under no cir- cumstances could such criteria impose requirements disregard stricter manifest a of that than law. applicable the of show that, while recognises the the importance court of of principle the of the operations of legal classi- of legal of the operations facts. of fication state liability to cases of inten- fault and tional miscon- serious the court, the of part the on duct under criteria the recalled court which a manifest infringement of the law applicable was to be in out set as assessed, for the EC legal national legal order systems, neither and the principle of the independ- of that nor of judiciary the ence res judicata an for liability of state exclusion of infringement EC law attrib- at adjudicating to a court utable last instance. Further, EC law precludes national legislation of all practi- all of Köbler Were Were state liability to be that would require a char- require legal that would acterisation of the exclude, in facts. such circumstances, To liability state that possibility any might be incurred where commit- the allegedly infringement related court national the by ted to the assessment it made facts of or evidence would princi- the to depriving amount also in out set ple cal effect. As General the had observed Advocate in that opinion, was the especially his case in the state-aid sector. To exclude, in that all sector, state liability on the ground that an law of community infringement committed by a national court was the result of an assessment of the facts would be likely to lead to of a the weakening pro- cedural guarantees available to individuals, in that the protec- tion of the rights derive from the relevant provi- that they extent, a to great depends, sions legal of operations successive on facts. the of classification wholly excluded by reason of the of assessments facts carried individuals those court, a by out would have no judicial protec- tion if a national court adjudi- cating at last instance commit- review its in error manifest a ted . NOVEMBER NOVEMBER 2006 Köbler . An assess- An . Köbler the the ground that the infringe- ment of community law arose of provi- an from interpretation sions of law made by render- to a tantamount be would court ing meaningless the principle laid own by the in court ment ment of the facts and evidence, require would sometimes which a to lead could analysis, complex manifest infringement of the applicable law, whether assessment that would be made in of application the of context the specific provisions relating to the burden of proofweight or or admissibility of the the evidence, or in the context of the application of provisions The The court all in remark the more apposite considered at that adjudicating courts of case the respon- were which instance, last ensur- for level, national at sible, of ing rules that law a are given interpretation. uniform evidence and Facts Similarly, legislation that, in a general manner, excluded all state liability infringement attributable to a an wherefrom arose state that of court the of assessment the facts and evi- dence could also render mean- ingless the principle laid down in court the by www.lawsociety.ie LAW SOCIETY GAZETTE
BRIEFING 62 PROFESSIONAL NOTICESPROFESSIONAL LAW SOCIETY GAZETTE NOVEMBER 2006
LOST LAND LAW SOCIETY CERTIFICATES
Registration of Title Act 1964 Gazette An application has been received from the registered owners mentioned in the PROFESSIONAL NOTICE RATES schedule hereto for the issue of a land RATES IN THE PROFESSIONAL NOTICE SECTION ARE AS FOLLOWS: certificate in substitution for the original € land certificate issued in respect of the • Lost land certificates – 126 (incl VAT at 21%) lands specified in the schedule, which • Wills – €126 (incl VAT at 21%) original land certificate is stated to have • Title deeds – €126 per deed (incl VAT at 21%) been lost or inadvertently destroyed. A • Employment/miscellaneous – €126 (incl VAT at 21%) new certificate will be issued unless noti- fication is received in the registry within HIGHLIGHT YOUR NOTICE BY PUTTING A BOX AROUND IT – €30 EXTRA 28 days from the date of publication of this notice that the original certificate is All notices must be paid for prior to publication. CHEQUES SHOULD BE MADE PAYABLE in existence and in the custody of some TO LAW SOCIETY OF IRELAND. Deadline for December Gazette: 23 November 2006. person other than the registered owner. For further information, contact Catherine Kearney or Valerie Farrell on tel: Any such notification should state the 01 672 4828 (fax: 01 672 4877) grounds on which the certificate is being held. (Register of Titles), Central Office, Land Regd owner: Liam O’Regan; folio: and county of Cork; Co Cork Kilmainham; Co Dublin Registry, Chancery Street, Dublin 34282F; lands: plot of ground situate Regd owner: Patrick O’Donoghue and Regd owner: Peter Cunningham; folio: (Published 3 November 2006) in the townland of Kilmoon, known Deirdre O’Donoghue; folio: 15787F; DN97865L; lands: (1) the leasehold as Kilmoon, Sherkin Island, lands: plot of ground being part of interest in the property being part of Regd owner: Urban District Council of Skibbereen, in the barony of Carbery the townland of Ballinaspig Beg, apartment no 57 Second Floor, Ennis; folio: 19753; lands: townland West (east division) and the county known as 29 Laburnum Park, situate Davis Court, Inchicore, and situate of Drumbiggil and barony of Islands; of Cork; Co Cork in the parish of St Finbar’s and the to the south of Thomas Davis Street Co Clare Regd owner: William Casey (deceased); county of Cork; Co Cork West in the parish of St Jude’s and in Regd owner: Catherine Garde; folio: folio: 35776; lands: plot of ground Regd owner: Bernard Collins, Castle the district of Kilmainham; (2) the 3128F; lands: townland of Nooan being part of the townland of Street, Ramelton, Co Donegal; folio: leasehold interest in the property (ED Rath) and barony of Inchiquinn; Carrigyknaveen in the barony of 7719; lands: Ballylin; area: 4.2441 being part of apartment no 57 area: 0.2453 hectares; Co Clare Muskerry East and the county of hectares; Co Donegal Second Floor, together with car Regd owner: Michael Keane; folio: Cork; Co Cork Regd owner: Hugh McDevitt, James parking space, no 57 Davis Court, 2259F; lands: (1) Trough, (2) Regd owner: Michael J Cronin; folio: McDevitt, Dominic McGlynn, Inchicore and situate to the south of Coolycasey, (3) Cloonsheerea and 21962; lands: plot of ground being Michael McGeehan and Seamus Thomas Davis Street West in the barony of (1) and (3) Tulla Lower and part of the townland of O’Cnaimhsi, Bellanamore, Lifford, parish of St Jude’s and in the district (2) Bunratty Lower; area: (1) 31 acres, Ballydesmond in the barony of Co Donegal; folio: 43277; lands: of Kilmainham; Co Dublin 2 roods, 13 perches, (2) 20.313 acres, Duhallow and the county of Cork; Bellanamore; area: 0.2276 hectares; Regd owner: Eamonn Murphy and (3) 29 acres, 2 roods; Co Clare Co Cork Co Donegal Teresa Murphy; folio: DN133733F; Regd owner: Michael Scanlan and Mary Regd owner: Nora Cronin (deceased); Regd owner: Michael Connolly and lands: a plot of ground known as 9 Scanlan; folio: 4744; lands: townland folio: 3384L; lands: plot of ground Bernadette Veronica Connolly; folio: Villa Park, Navan Road, in the parish of Clooncolman and barony of situate to the south side of the Cork DN9823; lands: property situate in of Castleknock and in the district of Islands; area: 21.3640 hectares; Co Road in the parish and Urban the townland of Rathcoole and Cabra and in the county borough of Clare District of Mallow and the county of barony of Newcastle; Co Dublin Dublin; Co Dublin Regd owner: James John Collins Cork; Co Cork Regd owner: Michael Foley; folio: Regd owner: Anne Theresa Tynan; (deceased); folio: 849F; lands: plot of Regd owner: Patrick Hurley (deceased); DN74258L; lands: property known folio: DN31292L; lands: property ground situate in the townland of folio: 18222; lands: plot of ground as no 20 Norfold Road, situate in the situate in the townland of Lisnacunna in the barony of Carbery being part of the townland of parish of Grangegorman and North Haroldsgrange and barony of East (east division) and county of Newtown in the barony of Bantry Central; Co Dublin Rathdown; Co Dublin Cork; Co Cork and the county of Cork; Co Cork Regd owner: Patrick J Gilsenan, 5 Regd owner: Walter McCormack and Regd owner: Patrick J Hurley Regd owner: Donnacha Keane; folio: Carpenterstown Road, Castleknock, Elizabeth McCormack; folio: (deceased); folio: 23995; lands: plot of 49990; lands: plot of ground being Dublin 15; folio: 67437F; lands: DN96081F; lands: property known ground being part of the townland of part of the townland of property situate in the townland of as 69 Donaghmede Road, situate in Reenrour West in the barony of Dromdaleague in the barony of Castleknock and barony of the parish of Baldoyle and district of Bantry and county of Cork; Co Cork Carbery West (east division) and the Castleknock; Co Dublin Kilbarrack; Co Dublin Regd owner: Florence Ainscough county of Cork; Co Cork Regd owner: Caroline Hurley; folio: Regd owner: Malachy Fahy; folio: (deceased), Peter Ainscough and Regd owner: John O’Brien; folio: DN78301F; lands: property situate in 10456F; lands: townland of (1) and Rosemary Sosted; folio: 55283; lands: 24951F; lands: plot of ground being the townland of Balcarrick and (3) Corrofin, (2) Cloonkeen and plot of ground situate in the town- part of the townland of Pillmore in barony of Nethercross; Co Dublin barony of (1), (2), (3) Clare; area: (1) land of Coolflugh, known as the barony of Imokilly and county of Regd owner: William Browne and Shournagh View, Kerry Road, Tower, Cork; Co Cork Margaret Browne; folio: DN18358L; in the barony of Muskerry East and Regd owner: Joanne Willis and Pat lands: property situate on the east FOR SALE county of Cork; Co Cork O’Brien; folio: 67130F; lands: plot of side of Tymon Crescent in the town Completely renovated 2 bed Regd owner: Geraldine Harrington and ground situate in the townland of of Tallaght; Co Dublin home in Stoneybatter. Martin Buckley; folio: 7575L; lands: Ballyellis (Fermoy By) in the barony Regd owner: Barry Smith; folio: Large living room ideal for enter- plot of ground being part of the of Fermoy and the county of Cork; DN100267L; lands: the leasehold taining plus large dining/kitchen. townland of Carrignafoy, known as Co Cork interest in the property being an Underfloor basement storage/ 38 Belmont Place, situate in the Regd owner: Denis Madden; folio: apartment known as no 218 First wine cellar. Walk-in condition. 10 minute walk to Four Courts. parish of Templerobin and Urban 41137; lands: plot of ground being Floor and car park space, the Phone Michelle 087 411 2506 District of Cobh and the county of part of the townland of Ballindillanig Tramyard, Spa Road, Inchicore, in €495K Cork; Co Cork in the barony of Orrery and Kilmore the parish of St Jude and district of
www.lawsociety.ie 63 cur- late of late of late of 52 of late late late of 77B late of 38 Charleville 38 of late late of 1 Knockrea Gardens, Knockrea 1 of late rently Dublin, at Co Glenageary, Road, Carysfort Arkendale Nursing Home, at residing previously Moyle, Sandyford hav- person any Would 16. Dublin Road, ing knowledge of the whereabouts of a will executed by the ward above-named Feeley, Martin (deceased), Feeley, Templeglantine East, Templeglantine, Co Limerick, driving per- any instructor, Would 2005. March 29 on died who son having knowledge of abouts of the will original of the the above- where- Dennison contact please deceased named Co Abbeyfeale, Street, Main of Solicitors Limerick Higgins, John (deceased), Chapel Street, Eyrecourt, in the county of Galway. Would any person knowledge having of a will dated 11 July 1980, executed by the above-named deceased, who died on Chapel 12 Street, Eyrecourt, December Co Galway, 1985 please at contact Michael Collins & Co, Solicitors, Main Street, Co Tipperary; tel: Borrisokane, 067 27470, fax: 067 27504, email: [email protected] McCarthy, James (otherwise (deceased), Jim) 3 on died who Cork, Road, Balklinlough hav- person any Would 2006. September ing of knowledge a will by executed the above-named person Daniel please Murphy contact & Moorefield Co, Terrace, Solicitor, SouthCork Road, 3 Douglas (deceased), Mary McMahon, Ennis, Co Fergus Manor, Clare. Would any person having knowledge of a will executed by the above-named deceased please contact Thornton Solicitors, 88 315 061 tel: Limerick; Street, O’Connell 503 315 061 fax: 543, O’Connnell, (deceased), Paddy) Patrick Road, (otherwise Dublin. 7, also Arbour Staff Quarters, 23 death: of date Limerick; Hill Farranshone, hav- person any Would 2006. Prison, September the by executed will any of Dublin knowledge ing or who deceased, died above-named on 23 2006 September at the Mater Hospital, Dublin, please Thornton, 061 tel: City; Thornton Limerick contact Street, O’Connell Solicitors, gthorn- email: Geraldine 503, 315 061 88 fax: 543, 315 [email protected] court), of ward (a Phyllis O’Neill, Upper a of Dominickknowledge having person any Would Street, Dublin deceased, above-named the by made will 7. who died on 3 May would 2005, have or any deceased, the if of knowledge relations about they blood surviving any Solicitors, Tracey, W Paul contact please 01 tel: 1; Dublin Street, Marlborough 24 5550 874 01 fax: 5656, 874 Flynn, Eugene (deceased), Co late late late of late late of Co Tipperary Co Co Sligo Co Co Wexford Co Co Roscommon Co Co Wexford Co Co Waterford Co Co Westmeath Co 7158; lands: Ballybreen and barony of barony and Ballybreen lands: 7158; Scarawalsh; 6281F; Ballydonnell lands: Slievardagh; and of barony Lismalin townland and of lands: townland of Loughourna and barony of Tipperary Lower Ormond; 18191F; lands: plot of ground being in Cheekpoint of townland the of part of county and Gaultiere of barony the Waterford; Co Mullingar, Monilea, Parsonstown, Westmeath; folio: Parsonstown; area: 25.315 hectares; 6865; Westmeath Co lands: Dalystown, Co Westmeath; 8522; lands: folio: Clonfad; area: 10.7014 hectares; folio: 336; lands: Bantry; of barony Arnestown and Roddy; Roddy; folio: 8424F; lands: townland of and Gortersluin barony of Leyny; hectares; 0.318 area: 22469; 22469; lands: townland of Corbally and Ardkeenagh barony (Plunkett) Roscommon; and of Frenchpark 11056 and of 11194; lands: townland and Farnbeg and barony of Roscommon; Roscommon Co WILLS Carrigfadda, Skibbereen, Would any solicitor Co holding or having Cork. of knowledge a will made by the above- named deceased, who died September 2006, please contact Daniel Brooks & Solicitors, Collins, Associates, Sheehan, Cork Co Clonakilty, Street, Rossa 6/7 (deceased), Noel Nicholas Doyle, of 74 Estate, Finglas, Tolka Dublin a 11. of knowledge having person any Would will being made by who deceased, died the on 15 August 2006, above-named Solicitors, Maher O’Leary contact please tel: 3; Dublin Killester, Road, Howth 191 4991 833 01 fax: 1900, 833 01 Duignan, Thomas (deceased), Hanstown, Ballinea, Westmeath. Would any Mullingar, person any of having whereabouts the of Co knowledge any deceased, above-named the by made will con- please 2006, August 11 on died who tact Larkin Mullingar; tel: & 044 934 [email protected] 8318, Tynan, email: Solicitors, Regd Regd owner: Frederick Gethings; folio: Croston, Richard (deceased), Regd owner: Michael Cahill; folio: 24322; folio: Hayes; Bridie owner: Regd Regd owner: Bernard Power; folio: Regd owner: Raymond Daly, Regd owner: Eugene Martin, Clonfad, Regd owner: Daniel Carroll (deceased); Regd Regd owner: Nicholas Roddy and Una Regd owner: Patrick Conry; folio: Regd owner: Michael McGovern; folio: Co Co Co Co Co Meath Co Co Limerick Co Co Meath Co Co Monaghan Co Roscommon Co Co Kilkenny Co Longford Co Co Meath Co Co Offaly Co Emyvale, Monaghan, Co Monaghan, Monaghan; Emyvale, folio: 10722; lands: Stramore; area: hectares; 5.4430 Swaine; of Philipstown barony and Backwood folio: Upper; 10152; lands: 18422; lands: townland (Brabazon) and barony of of Moycarn; Beagh area: Roscommon 3.4709 hectares; folio: 32517; lands: townland of (1) (2) Ballyfeeny, Clooneen (Hartland), (3) Ballyfeeny and Ballintober North, (2) barony Roscommon, of (3) (1) Ballintober; area: hectares, (1) (2) 12.8538 6.2018 hectares; 0.2706 hectares, (3) 3940; 3940; lands: townland of Raheenagh and barony Limerick of Glenquin; Lanesboro, Co 3998F; lands: Longford; lands of Derrygowna folio: containing Derrygowna 3.8826 hectares, containing 8.1771 Derrygeel hectares, 0.1267 Derrygeel contain- hectares, ing 4.8259 hectares, containing Derrygeel con- taining 1.5605 hectares, Derryglash containing 15.4007 Derrygowna hectares and hectares; containing 0.9834 Smarmore, Drogheda, Co folio: Louth; 1534; land: Louth Corstown; Navan, Kildalkey, Skelly, Co Meath; folio: 4068; lands: hectares; 0.1644 Moyrath; area: 20954; lands: Pubblebrien; of barony and Demesne townland of Limerick Co Faha Larkin; folio: 26328; lands: townland of Glenquin barony and of Knockane Limerick; of county and Co Duleek, Commons, Meath; folio: 3417; lands: Commons; area: 5.7971 hectares; Ferris, The Enfield, Co Villa, Meath; Kill Beg lands: Rathmoylan, and Kill folio: Rathmoylan, 24628; More; area: 1.5175 14.6825 hectares, hectares and 7.6055 hectares; Meath Land, Navan, Dillonsland; lands: 1919L; Co Meath; folio: Earley); folio: 1906F; lands: situate at situate lands: 1906F; folio: Earley); Kildare; Co Naas, Middle, Allenwood Kildare Co folio: 4158F; lands: Rathpatrick and Ida; of barony Regd owner: Mary McKenna, Emy, Regd owner: John Swaine and Bridget Regd owner: Michael Carroll; folio: Regd owner: Constantine McGuire; Regd Regd owner: Denis folio: O’Donoghue; Regd owner: Patrick Farrell, Derrygeel, Belpatrick, Regd Brian McCabe, owner: Regd owner: Stephen Skelly and Helen Regd owner: Thomas Curtin; folio: Theresa and Larkin Joseph owner: Regd Regd owner: Anthony Cromwell, Regd owner: David William Courtney Regd Regd owner: 30 Peter Kearney, Dillons Regd Regd owner: Eirfab Products Limited; Co Co Co NOVEMBER NOVEMBER 2006 Co Kerry Co Co Galway Co Co Kerry Co Co Galway Co Co Galway Co Co Kildare Co Co Kerry Co Co Galway Co ENGLISH SOLICITORS 13988; 13988; lands: townland of Killeenlea and barony of Kildare Salt North; folio: 5981; Townparks and lands: barony of Narragh townland West; Reban and of Kerry folio: 34930F; lands: Ballymorereagh townland of and Corkaguiny; barony of lands: townland of and Parknamulloge barony of Trughanacmy; lands: lands: townland of Muingvautia and Trughanacmy; of barony 28286 28286 and of 30744; lands: townland Fahy (Longford By) (Longford and Grange By) Longford; and barony of and 10842F townland lands: 30714F; Clanmaurice of barony and Ardfert of Kerry; of county and Galway 63670F; 63670F; lands: townland of Lavally (Dunkellin By) area: Dunkellin; 1.3660 hectares; and barony of 9.6140 9.6140 hectares, (2) 0.2700 hectares, hectares; 4.5720 (3) folio: 7585; Shoodaun lands: and barony townlandhectares; of 7.2514 area: Tiaquin; of Townparks of townland lands: 3490F; Clare; of barony and Regd Regd owner: Michael Clooney; folio: Regd owner: Robert O’Keeffe and Ors; John (otherwise Early Sean owner: Regd Regd Regd owner: O’Cathain Iasc Teoranta; Regd owner: John Fleming; folio: 11209; folio: Fleming; John owner: Regd Regd owner: Simon Beatty; folio: 22239; folio: Beatty; Simon owner: Regd Regd Regd owner: Martin Glennon; folio: Regd owner: Bridget Horgan; folio: Regd owner: John A Keane; folio: Regd Regd owner: Michael Joseph Mahon; Regd owner: Pauline Meehan; folio: www.lawsociety.ie LAW SOCIETY GAZETTE
PROFESSIONAL NOTICES 64 PROFESSIONAL NOTICESPROFESSIONAL LAW SOCIETY GAZETTE NOVEMBER 2006
of court please contact Avril Gallagher of TITLE DEEDS date of this notice. to submit an application to the county Gallagher & Co Solicitors, 58 Ranelagh In default of any such notice being registrar for the county of the city of Village, Dublin 6; tel: 497 1520 received, Newtonheath Company Dublin for the acquisition of the free- Estate of the late John Charles Limited intends to proceed with the hold interest and any superior interests Russell, Aileen (deceased), late of Robinson (deceased), property at 1 application before the county registrar in the aforesaid premises, and any party Apartment 7, 65 Strand Road, Churchtown Close, Milltown, Dublin at the end of 21 days from the date of asserting that they hold a superior inter- Sandymount Road, Sandymount, Dublin 14. Would any person having knowledge this notice and will apply to the county est in the aforesaid premises are called 4. Would any person with knowledge of of the original title documents relating to registrar for the county of the city of upon to furnish evidence of title to the any will made by the above-named the above property please contact Hayes Dublin for directions as may be appro- aforesaid premises to the below named deceased, who died on 27 August 2006, Solicitors, Lavery House, Earlsfort priate on the basis that the persons ben- within 21 days from the date of this please contact Matheson Ormsby Terrace, Dublin 2 (Ref: TM); tel: 01 662 eficially entitled to the superior interest notice. Prentice (Graham Richards), 30 Herbert 4747, fax: 01 661 2163, email: including the freehold reversion in each In default of any such notice being Street, Dublin 2; tel: 01 619 9000 [email protected] of the aforesaid premises are unknown received, the applicants intend to pro- or unascertained. ceed with the application before the Ryan, Kathleen (deceased), late of In the matter of the Landlord and Date: 3 November 2006 county registrar for the county of the Bilboa, Cappamore, in the county of Tenant Acts 1967-1994 and in the mat- Signed: Richard Black Solicitors (solicitors city of Dublin for directions as may be Limerick. Would any person having ter of the Landlord and Tenant for the applicant), Beechfield House, Clonee, appropriate on the basis that the person knowledge of a will executed by the (Ground Rents) (No 2) Act 1978 , and in Dublin 15 or persons beneficially entitled to the above-named deceased, who died on 1 the matter of a strip of land with stand superior interest including the freehold February 1983, please contact: John erected thereon at Richmond Park, In the matter of the Landlord and reversion in the premises aforesaid are Cooke, Solicitors, Main Street, Inchicore, Dublin 8: an application by Tenant Acts 1967-1994 and in the unknown or unascertained. Hospital, Co Limerick; tel: 061 383 388, Newtonheath Company Limited, hav- matter of the Landlord and Tenant Date: 3 November 2006 fax: 061 383 330, email: jcookesolr@ ing its registered office at 125 Emmet (Ground Rents) (No 2) Act 1978 : an Signed: Gerard O’Shea (solicitors for the eircom.net Road, Inchicore, Dublin 8 (trading as application by Michael and Dolores applicants), Meridian House, 13 St Patrick’s Athletic FC) Crowe Warrington Place, Dublin 2 Smith, Helen (deceased), late of 35 Take notice that any person having any Take notice that any person having any Glasnevin Avenue, Dublin 11. Would interest in the freehold estate of the fol- interest in the freehold estate of or any In the matter of the Landlord and any person having knowledge of a will lowing property: all that and those the superior interest in the following prop- Tenant Acts 1967-1994 and in the made by the above-named deceased, who premises demised by indenture of lease, erty: all that and those the premises matter of the Landlord and Tenant died on 6 September 2006, please contact 28February 1958, made between Sarah A known as 77 Larchfield Road, (Ground Rents) (No 2) Act 1978 : an Margetson & Greene Solicitors, 35 O’Reilly of 117 Emmet Road, Dublin 8, Goatstown, in the county of Dublin, application by Brian Murphy and Lower Baggot Street, Dublin 2; tel: 01 John O’Reilly of 117 Emmet Road, held under an indenture of sub-lease Garret Peers 676 1916, fax: 01 676 6549 Dublin 8, Michael O’Reilly of 117 dated 1 October 1958 (‘the sub-lease’) Take notice that any person having Emmet Road, Dublin 8, and Mary Teresa and made between Robbins White and interest in the freehold estate of the fol- Magaharn of 6 Old Kilmainham, Dublin Company Limited of the first part, lowing property: 11 Saint David’s MISCELLANEOUS 8, lessors of the one part, and Martin Thomas O’Neill and Edward Terrace, Blackhorse Avenue, Dublin 7, Dunne of 142 Cooley Road, Drimnagh, McMahon of the second part, and James more particularly described in an inden- Dublin 12, Joseph Cronin of 102 Bradford of the third part, and as to the ture of lease dated 28 November 1910 London solicitors will be pleased to Mourne Road, Drimnagh, Dublin 12, portion shown coloured in red on the between John Joseph Beatty of the first advise on UK matters and undertake Bartholomew B Cummins of 33 map annexed thereto for the residue part and Richard Crookes of the second agency work. We handle probate, litiga- Walkinstown Drive, Walkinstown, unexpired of a term of 998 years from part for the term of 238 years from 1 tion, property and company/commercial. Dublin 12, and Denis Ward of 6 New 29 September 1950, and as to the por- September 1910, subject to the yearly Parfitt Cresswell, 567/569 Fulham Road, Vale, Shankill, Co Dublin, lessees, and tion shown coloured in blue on the map rent of £5 and to the covenants on the London SW6 1EU; DX 83800 Fulham therein described as all that and those annexed thereto (‘the blue portion’) for lessees par and conditions therein con- Broadway; tel: 0044 2073 818311, fax: that piece or plot of ground situate on the the residue unexpired of a term of 99 tained. 0044 2073 814044, email: east side of certain land now in the occu- years from 15 June 1955, subject to the Take notice that Brian Murphy and [email protected] pation of the lessees and known as yearly rent of £15 thereby reserved and Garret Peers intend to submit an appli- Richmond Park, Kilmainham, in the the covenants on the part of the lessee cation to the county registrar for the Seven-day publican’s on-licence for parish of St James, formerly in the and the conditions in the sub-lease con- county/city of Dublin for the acquisi- sale. Contact MacBride Conaghan, barony of Coolock and county of Dublin, tained, and further as to the blue por- tion of the freehold interest in the afore- Solicitors, Malin Road, Moville, Co but now in the city of Dublin, which said tion forever with other property under said property, and any party asserting Donegal. Tel: 074 938 2184/9382 269, piece or plot of ground containing on the an indenture of fee farm grant dated 23 that they hold a superior interest in the fax: 074 938 2088, email: info@done- western side 292 feet, on the eastern side July 1889 and made between Thomas aforesaid property is called upon to fur- gallaw.com 267 feet, on the northern side 30 feet, Joseph Walker of the one part and the nish evidence of title to the aforemen- and on the southern side 30 feet, be the Commissioners of Public Works in tioned property to the below named said admeasurement more or less, more Ireland of the other part, subject to the within 21 days of the date of this notice. Effective courtroom communica- particularly shown on the map drawn on yearly rent of £46.18s.8d thereby In default of any such notice being tion training. Discover how to com- these presents and therein edged red, reserved (but indemnified against pay- received, Brian Murphy and Garret municate with greater confidence and being a strip of land with stand erected ment of any part thereof in the manner Peers intend to proceed with the appli- clarity. Specialised training available thereon at Richmond Park, Inchicore, provided in an indenture of conveyance cation before the county registrar at the to legal professionals from a commu- Dublin 8. dated 22 May 2006 and made between end of 21 days from the date of this nications and voice consultant. Take notice that Newtonheath the Commissioners of Public Works in notice and will apply to the county reg- Private/small groups; tel: 01 838 9152 Company Limited (trading as St Patrick’s Ireland of the one part and the appli- istrar for the county/city of Dublin for Athletic FC) intends to submit an appli- cants of the other part) and the directions as may be appropriate on the cation to the county registrar for the covenants on the part of the grantee basis that the person or persons benefi- county of the city of Dublin for the (other than the covenant for payment of cially entitled to the superior interest Thriving legal practice for sale in acquisition of the freehold interest of the rent) and the conditions in said fee farm including the freehold reversion in the Killarney, Co Kerry. Would suit aforesaid properties, and any party assert- grant contained, insofar as same relate property aforesaid are unknown or either one or two partners. Contact: ing that they hold a superior interest in to or affect the blue portion and further unascertained. David Rowe at Outsource; tel: 01 the aforesaid premises (or any of them) subject to and with the benefit of the Date: 3 November 2006 678 8490, email: dr@outsource- are called upon to furnish evidence of the sub-lease insofar as same relates to or Signed: Partners at Law (solicitors for the finance.com title to the aforementioned premises to affects the blue portion. applicants), 8 Adelaide Street, Dun the below named within 21 days from the Take notice that the applicants intend Laoghaire, Co Dublin
www.lawsociety.ie 65 : : an : : an and and in the and and in the Landlord Landlord and Landlord Landlord and Landlord Landlord and Tenant Landlord Landlord and Tenant Take notice that Crofton Bray Head Bray Crofton that notice Take In default of any such notice being In In default of any such notice being application by Marcus Fogarty Marcus by application Take notice Andrew Thompson Martha Thompson and or any person hav- property following the in interest an ing matter matter of the (Ground Rents) (No 2) Act 1978 application application by Crofton Bray Limited Hotel Head notice Take that any person having an interest in the freehold estate known in the property interest or superior any as: all that and those the hereditaments indenture an by comprised premises and of lease dated 9 August 1860 and made part one the of Putland George between and James Lacey of the other part and as of now of part known the New lands Court containing one rood and seven- part form lands said which perches, teen of the lands of the Bray Wicklow. Co Head Bray, Hotel, Hotel Ltd intend to submit an applica- coun- the of registrar county the to tion ty of Wicklow for acquisition freehold interest of and any the intermediate interest in the aforesaid property and any party or parties asserting that they in hold a interest the aforesaid superior evi- upon to are called furnish property dence of title in to 21 the property within named below the aforementioned notice. this of date the from days received the applicant intends to pro- ceed with the application county before the registrar for Wicklow the for county person the that directions basis the on appropriate of as may or persons be beneficially entitled to the the including interest freehold superior reversion to the property are unknown unascertained. or 2006 3 November Date: Signed: Donal T McAuliffe (solicitors for Dublin Square, 57 Merrion applicant), the DTMcA/GMcG) 2 (ref In the matter of the Tenant Acts 1967-1994 matter matter of the (Ground Rents) (No 2) Act 1978 to to the below-named notice. this of within date the from 21 days received, Gerard McErlean, Maguire and Michael Morris intend Gabriel to the before with the proceed application county registrar at the end of 21 days from the date of this notice apply and to will the county registrar county of Dublin for for as directions may the per- the that basis the on appropriate be son or persons beneficially free- entitled the to including interests superior the hold reversion in each of the aforesaid unascertained. or unknown are premises 2006 3 November Date: Signed: Maguire McErlean, 78/80 Upper 9 Dublin Road, Drumcondra In the matter of the Tenant Acts 1967-1994 : : an Landlord Landlord and and in the mat- the in and Landlord and Tenant All that and those that plot or piece of piece or plot that those and that All Take notice that Gerard McErlean, county county registrar at apply the will and notice end this of date of the from 21 days to the for county registrar the county of appropri- be may as directions for Dublin ate on the basis that the person or per- sons entitled to beneficially the superior interest including the freehold reversion or unknown are premises aforesaid the in unascertained. 2006 3 November Date: the for (solicitors Co & McVeagh TG Signed: 2 Dublin Street, Kildare 32 applicant), In the matter of 1967-2005 Acts the Tenant ter of the(Ground Rents) (No 2) Act 1978 application by Morris Michael and Maguire Gabriel Gerard McErlean, Any person having a freehold estate or any interest intermediate in all that and those that plot or piece of of ground subject an of indenture lease dated 24 the of Mary Tyrell 1943 between September Boyland Malachy Frank and part one the of the other part for a term of 90 rent years yearly a at 1941, September 29 from sin- and all as described therein and £3 of situate of or ground plot piece that gular in the parish of Dublin, bounded St on the south-east side Peter and city Pembroke Upper 23 no of garden the by of rear the by side south-west the on Street, on and Street, Pembroke Upper 22 no of and Lane, Quinn’s by side north-west the by premises partly side on north-east the forming part of Pembroke Street and partly by premises the rear together Purser, SH of occupation the in of no 24 with the erected and messuage buildings thereon. indenture of a further subject the ground Tyrell Mary between date even of lease of of 90 of the term a for part, other one the of Boyland part and yearly a at 1941 Frank September 29 from years Malachy and all as described therein and £3, of rent situ- ground of piece or plot that singular ate in the parish of St Peter and city of Dublin, bounded on the south-east side Pembroke of no 22 Upper garden by the rear the by side south-west the on Street, on the south- Street, of no 21 Pembroke west side by the rear side on Street, of the north-west Pembroke no 22 Upper by Quinn’s Lane aforesaid and on part side forming by premises north-east the of the rear of no 23 Street, Upper together with Pembroke the messuage and thereon. erected building Gabriel Maguire and Michael being Morris, the persons leases, currently said the entitled under to interests lessees’ the for registrar county the to apply to intend acquisi- the for Dublin of county/city the inter- all and interest freehold the of tion proper- aforesaid the in interests mediate ties, and any party asserting hold that a superior interest they in the aforesaid properties (or any of them) of to title evidence upon same to furnish are called : : an and and in the Landlord Landlord and Landlord Landlord and Tenant : notice of intention to intention of notice : Take Take notice that Declan Shelly, of Take notice that Dermot Daly, being Daly, Dermot that notice Take In default of any such notice being Landlord Landlord and (Ground Tenant Rents) 1967-1989 Acts Tenant Acts 1967-2005 acquire fee simple (section 4) (section simple fee acquire concern: may it whom To land of Description Shop, dwelling house together and with premises, appurtenances thereto, situate at in Main Street, Templemore, the barony of Eliogarty of and books rate county the in of described Tipperary, Templemore no and Town/Urban shop and house 72 no as Council District yard. and offices house, licensed 73 tenancy or lease applicant’s of Particulars ten- yearly a under held is property The ancy at a rent of £20 per which annum, inference by or law of operation by arose April 18 on made lease a of expiry the on 1908 of betweenterm a for Nesbitt Patrick and WilliamDudley Edmondson 14 years from 1 November unex- the £20, of 1907 rent a yearly reserving and pired portion assigned by the of said Patrick Nesbitt to which Patrick Hennessy lease on 31 was March to the is the successor and the applicant 1912 Hennessy. Patrick said the of interest 72/73 Main Street, Templemore, Co Tipperary, being a person whom believe entitled we under the above acts, proposes to purchase the fee simple in 1. paragraph in described land the 2006 3 November Date: Signed: Butler Cunningham & (solicitors for Molony the applicant), Main Street, Tipperary Co Templemore, In the matter of the matter matter of the (Ground Rents) (No 2) Act 1978 Daly Dermot by application Any person having a freehold estate or in interest all that any and intermediate those 3 Arbourfield, the of part being Dublin, Co Dundrum, Windy Arbour, premises described in an indenture of between 1950 March 27 dated sub-lease the Irish Civil Building Society Service of the (Permanent) first part, Commercial the Limited Banking of of Dowling the thethird part, and Thomas second Company Noone of the fourth part, for part, a term of John at a 1949 rent 25 March from years 400 annum. per £72 of sub- the to entitled currently person the lessees’ interests in the said premises, intends to apply to the county registrar acquisi- the for Dublin of county the for tion of and the all sub-lessor’s superior and properties, aforesaid the in interests any party proper- asserting aforesaid the in that interest superior they hold a ties (or any of them) is called upon to furnish evidence of title to same to the below-named within 21 days form the notice. this of date received, Dermot Daly intends to pro- ceed with the application before the / : : an % & # / § # NOVEMBER NOVEMBER 2006 ! 0 "
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" " § 1 2 , ! © ? © # $ § 4 # ) 7 ¨ ( " , # " Take Take notice that the applicants, In default of any such notice being § + 1.27). 3 € In In the matter of the Tenant Acts 1967-1994 matter of the (Ground Rents) (No 2) Act 1978 James by Whelan, Conor application Dunne Paul and Boucher notice Take that any person having an interest in the freehold estate in known the interest property superior or any as Pragueprop- the being 15, Dublin Castleknock, Haus, 3 dated lease of indenture by demised Collegeerty Road, 17 October Gallagher Group Limited 1967 of the part one and madeJohn Cruise of the other part between for a term of 900 years from 25 March 1965, subject to a ( yearly rent of £1 Conor Whelan, James to Paul intend Dunne, an submit appli- Boucher and cation to the registrar of acquisition titles the for for Dublin of the county/city of the freehold interest in the aforesaid property, and any party asserting that they hold a to upon fur- is called property superior aforesaid interest in the nish evidence of title to the to property the below named 21 within aforesaid notice. this of date the from days received, the applicants intend to reg- pro- the before application the with ceed istrar of titles for Dublin at the the end of county/city the 21 days of from the date of this notice and will apply to for the county/city of titles the registrar of Dublin for vesting on arbitration as the that basis the on appropriate be may to entitled beneficially persons or person the free- including interest the superior property in the aforesaid hold reversion unascertained. and unknown are 2006 3 November Date: Signed: P Delaney & Co for (solicitors the applicants), Parkside House, Main Street, 15 Dublin Castleknock, www.lawsociety.ie LAW SOCIETY GAZETTE
PROFESSIONAL NOTICES 66 PROFESSIONAL NOTICESPROFESSIONAL LAW SOCIETY GAZETTE NOVEMBER 2006
Publication of advertisements in this section is on a fee basis and does not represent an endorsement by the Law Society of Ireland.
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as detailed at 1 hereof: of the residue of the term of 143 1) Description of land to which this notice years from 1 November 1945, sub- refers: all that property known as ject to the yearly rent £10 thereby ROSSO ALDONADO a) No 9 (otherwise 9e and 9f) reserved and to the covenants on G & M Solicitors Abogados Avvocati Cumberland Street, Dun the part of the lessee and condi- Laoghaire, barony of Rathdown, tions therein contained; county of Dublin; c) Lease dated 26 June 1950 of the b) No 10 Cumberland Street, Dun property at (c) above, made Laoghaire, barony of Rathdown, between Andrew Malcolm Thom- ITALIAN LAWYERS county of Dublin; pson and Martha Thompson of the c) No 10B Cumberland Street, Dun one part and Cyril Newmark of the SPANISH LAWYERS Laoghaire, barony of Rathdown, other part of the residue of the county of Dublin; term of 138 years from 3 March d) No 11 Cumberland Street, Dun 1950, subject to the yearly rent of ENGLISH LAWYERS
Laoghaire, barony of Rathdown, one shilling thereby reserved and
l m n n l o p q r s t r u v w x r u t y z v p o t y z r u { | u } s t y z s r ~ r { t l t u
county of Dublin. to the covenants on the part of the k
m l o t r s v m o x m o r q l v x o m x l o q v s t q t } r q t m u v x o m r q l r u { n r t s 2) Particulars of applicant’s lease or ten- lessee and conditions therein con-
ancy: tained;
s r ~ r q q l o y a) Lease dated 23 June 1941 of the d) Lease dated 29 December 1948 of
property at (a) above, made the property at (d) above, made
l m x l o r q l n o m m o m n n t l y t u s t u v m u { m u v m l v t s r u
between Andrew Thompson and between Andrew Malcolm Thom- k
u { r { o t { y r t u } m q z l q t l v l x l u y l r u { u l o q r t u q m n
Martha Thompson of the one part pson and Martha Thompson of the r
u y q o q t u } s r ~ l o y r o m r { and Francis Martin and Rosaleen one part and Nora Fogarty of the t
Martin of the other part of the other part of the residue of the
s m o s r ~ l o y r o l r { t q q l { t u m o l q z r u m u l o t y { t q t m u r u { residue of the term of 150 years term of 140 years from 1 s
(less the last day thereof) from 1 November 1947, subject to the
r o l n s l u q t u | u } s t y z v p q r s t r u r u { w x r u t y z November 1938, subject to the yearly rent of one shilling thereby yearly rent £5 thereby reserved and reserved and to the covenants on to the covenants on the part of the the part of the lessee and condi- lessee and conditions therein con- tions therein contained. FOR FURTHER INFORMATION VISIT OUR WEBSITE tained; b) Lease dated 23 January 1946 of the Take notice that Marcus Fogarty of
property at (b) above, made
H I J K L M N N K O P Q R J S T T P T U V H T P W X V J P S Y Z [ P P Z W G H I J K L \ W Errislannen, Castlepark Road, Dalkey, G
between Andrew Thompson and Co Dublin, intends to submit an applica-
Z P J ] ^ _ ` _ a b c \ d \ e f e g h W N i j ] ^ _ ` _ a b c \ d \ e f e g _ Martha Thompson of the one part tion to the county registrar for the coun- and Nora Fogarty of the other part ty of Dublin for the acquisition of the
www.lawsociety.ie 67 PROFESSIONAL NOTICESPROFESSIONAL LAW SOCIETY GAZETTE NOVEMBER 2006
and Tenant (Ground Rents) (No 2) Act Midlands, full-time position. We NOTICE TO THOSE PLACING 1978 , intends to submit an application are seeking to recruit an experienced RECRUITMENT ADVERTISEMENTS IN THE to the county registrar for the county of solicitor to fill a full-time position the city of Dublin for the acquisition of on a permanent basis. The position LAW SOCIETY GAZETTE the freehold interest (and any interme- involves mainly conveyancing and diate interest in the aforesaid property), litigation, but with requirements Please note that, as and from the August/September 2006 issue and any persons asserting that they hold to deal in other areas of general of the Law Society Gazette , NO recruitment advertisements will a superior interest in the aforesaid practice. Pleasant working atmos- be published that include references to years of Post- premises are called upon to furnish evi- phere with support staff and col- Qualification Experience (PQE) . dence of title to the aforesaid premises leagues. Salary negotiable with expe- to the under named within 21 days from rience. Apply in strictest confidence The Gazette Editorial Board has taken this decision based on the date of this notice. with CV to Hughes, Kehoe & Co, legal advice, which indicates that such references may be in In default of any such notice being Solicitors, Patrick Street, Tullamore, received, Hilda Gleeson intends to pro- Co Offaly; email: hugheskehoe@eir- breach of the Employment Equality Acts 1998 and 2004 . ceed with the application to the county com.net registrar after 21 days hereof and will freehold interest and of any intermediate In the matter of the Landlord and apply to the county registrar for the Solicitor available for part-time interests in the aforesaid property, and Tenant Acts 1967-1994 and in the county of the city of Dublin for such position. Experienced in general any party or parties asserting that they matter of the Landlord and Tenant directions as may be appropriate on the practice, litigation, conveyancing and hold a superior interest in the aforesaid (Ground Rents) (No 2) Act 1978 : an basis that the person or persons legally probate. Dublin area. Reply to box properties are called upon to furnish evi- application by Hilda Gleeson or beneficially entitled to the superior no 81/06 dence of title in the aforementioned Take notice any person having an inter- interest including the freehold rever- property to the below named within 21 est in the freehold estate or a superior sion in the aforesaid premises are Solicitor required for busy general days from the date of this notice. interest in the dwelling-house and unknown or unascertained. practice. Good general experience In default of any such notice being premises known as 9 Harcourt Street in Date: 3 November 2006 required. Reply to Brian D Hughes received, the applicant intends to pro- the city of Dublin, held under indenture Signed: Arthur O’Hagan (solicitors for the & Co, Solicitors, ‘Longmall’, ceed with the application before the of lease dated 4 June 1799 between applicant), Charlemont Exchange, Slievenamon Road, Thurles, Co county registrar for the county of Dublin Francis Synge and Elizabeth Synge, Charlemont Street, Dublin 2 Tipperary; email: info@hughessolici- for directions as may be appropriate on otherwise Hatch, his wife, and Dorothy tors.com the basis that the person or persons ben- Hatch for a term of 285 years from 25 eficially entitled to the superior interest March 1799, subject to the yearly rent RECRUITMENT Solicitor required for general prac- in the aforesaid properties are unknown of £130 sterling thereby reserved and to tice in Athlone, principally con- or unascertained. the covenants and conditions therein veyancing with some litigation and Date: 3 November 2006 contained. Assistant solicitor required for gener- probate. Please forward CV to Signed: Whitney Moore (solicitors for the Take notice that the applicant, Hilda al practice in Galway city. Experience in Anthony Barry and Co, Northgate applicant), Wilton Park House, Wilton Gleeson, being the person entitled conveyancing essential. Please reply to Street, Athlone, Co Westmeath;
Place, Dublin 2 under sections 9 and 10 of the Landlord box no 90/06 email: [email protected]
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68 www.lawsociety.ie RECRUITMENT LAW SOCIETY GAZETTE NOVEMBER 2006
www.lawsociety.ie 69 LAW SOCIETY GAZETTE NOVEMBER 2006 RECRUITMENT
70 www.lawsociety.ie
LAW SOCIETY GAZETTE NOVEMBER 2006 RECRUITMENT
ANAGRAM: STRUCTURE HOOF PRACTICE IN HOUSE GENERAL PRACTICE Dublin ASSOCIATE LEGAL COUNSEL Galway • This busy general practice in South Dublin has an immediate vacancy for a strong • Our Client, a leading international company, is seeking to appoint an Associate general practice lawyer with excellent conveyancing experience. The ideal Legal Counsel to Support the Senior Legal Counsel of its EMEA operations. You candidate will have experience handling files independently from instruction to will deal with all legal matters for all departments, including litigation, pur- completion. The successful candidate will be required to deal with clients at all chasing for all departments, Employment Law matters, Corporate matters, con- levels on a daily basis. This is a truly exceptional opportunity to join a busy and tract queries, facilities/leases, logistics and debt collection. Excellent drafting dynamic firm with excellent prospects for progression. €Excellent, with generous and research skills are a prerequisite as are good communication and presen- bonus tation skills. You will also be responsible for developing legal know how and the management of corporate and litigation matters. An excellent and rare FUNDS LAWYER Dublin City Centre opportunity for a strong commercial lawyer to move in house. €50,000 – • A fantastic opportunity exists to join the Investment Funds Team of this leading €55,000+ firm. Applications from lawyers in both private practice and industry are invit- ed. You will have experience in irish funds practice, advising institutional COMPANY SECRETARY Dublin clients and have knowledge of compliance and regulatory issues. Newly qual- •We have a very exciting opportunity for an experienced Company Secretary in ified solicitors with an interest in developing a career in Investment funds are this financial services company based in Dublin 2. Our client is looking for a also encouraged to apply. €Excellent company secretary who is ICSA qualified with a number of years experience. Whilst experience in the funds and financial services industry is not mandato- SENIOR COMMERCIAL PROPERTY LAWYER Dublin ry, it would be a huge advantage. A highly competitive salary is on offer to the • Our client a leading boutique firm in Dublin City centre is seeking to recruit a successful candidate. €45,000+ strong commercial property lawyer. The successful candidate will have a num- ber of years in depth experience in all areas of commercial property law RECRUITMENT CONSULTANTS including developments, leasing and investment. You will have first class draft- Considering a change of direction? We are looking for driven individuals with excel- ing and negotiation skills as well as excellent presentation and communication lent commercial awareness to join our successful team. We offer an exceptional skills. Excellent prospects for the successful candidate. €80,000 + package plus equity for the right individuals.
ANAGRAM SOLUTION: THE FOUR COURTS
Lisa Weston BL MA(Oxon), Osborne Recruitment, 104 Lower Baggot Street, Dublin 2 Tel: 01-6384400; Fax 01-6384444; www.osborne.ie; [email protected] www.osborne.ie LEGAL • FINANCIAL • OFFICE • IT • CALL CENTRE • TEMPS
AT STELFOX LEGAL WE PRIDE OURSELVES IN THE FACT THAT CURRENT OPPORTUNITIES INCLUDE: WE ARE A LEGAL RECRUITMENT AGENCY RUN BY LEGAL PEOPLE ■ ■ FOR LEGAL PEOPLE. A DIVISION Commercial Lawyer - Leading Business Law In House Solicitor - Financial Institution RUN BY SOMEONE WITH SIX Firm. Dublin City Centre - €Negotiable Southside Dublin - €Negotiable YEARS LEGAL EXPERIENCE WE Mid Tier Commercial firm has an exciting new A leading Irish financial institution has an KNOW THE DEMANDS OF BOTH vacancy for an experienced solicitor to join opening for an experienced solicitor in their legal THE INDUSTRY AND THE PEOPLE WHO WORK IN IT. WE CANNOT them at Associate level working with a wide department. This role will encompass dealing STRESS ENOUGH HOW range of clients from financial institutions to mainly with conveyancing matters as well as SERIOUSLY WE RESPECT BOTH multinational corporations. Challenging general litigation duties. Excellent benefits CANDIDATES AND CLIENTS workload for the right candidate with an package as well as market leading salary for the CONFIDENTIALITY. AS ALWAYS, WITH STELFOX LEGAL, YOU’RE IN excellent remuneration and benefits package. successful applicant. THE DRIVING SEAT.
If you are interested in finding the right position in the right firm with an agency who genuinely respects your need for confidentiality contact Stephen Kelly B.A., LL.B. at Stelfox Legal on (01) 679 3182 or email your CV to [email protected] Log on to our new website for a list of more opportunities www.stelfox.ie
LAW SOCIETY GAZETTE NOVEMBER 2006 RECRUITMENT
E-COMMERCE & IT COMMERCIAL LAWYER – DUBLIN CITY CENTRE €60K+ Our client, a leading commercial law firm, are now recruiting a lawyer who needs to be focused, energetic, enthusi- astic and interested in all areas of IT and e-Commerce. The successful candidate will work with some leading brands, a wide range of financial institutions and both public and private sector entities.
SENIOR PROPERTY SOLICITOR – DUBLIN CITY CENTRE €90K + A leading commercial law firm in Dublin are now seeking a solicitor with experience in commercial conveyancing. The successful candidate will have experience in large deal commercial transactions advising investors, developers and financial institutions and investigating title as well as good working knowledge of landlord and tenant issues.
AVIATION FINANCE LAWYER – DUBLIN 2 €60-90K+ Top 5 law firm requires a solicitor for its aviation finance department. Its clients include both foreign and domestic aircraft owners, lessors and a range of financial institutions. You will regularly advise on all aspects of the financing, securitisation, acquisition and leasing of aircraft. Ideally you will have aviation finance experience but our client will also consider candidates with general banking experience. € For information PROBATE SOLICITOR – DUBLIN 2 70K+ on these vacancies Our client based in Dublin City Centre is a small to medium size practice that are now looking for a solicitor with pro- or to discuss bate work experience as well as some conveyancing knowledge. Ability to work on own initiative. Long-term other career prospects for suitable candidate. Excellent organizational, time management and PC skills needed. opportunities, please contact TAX CONSULTANT – DUBLIN CITY CENTRE €60 – 90K John Cronin This is an opportunity to join the tax team in one of Dublin's leading firms. Its team comprises a team of tax lawyers, Solicitor. accountants and consultants serving a broad range of international and domestic clients in all major business sec- tors including finance, technology, communications, construction, leisure and entertainment. You will be a Qualified PRC Recruitment Limited, 11 Hume Accountant, Tax Consultant or Solicitor with AITI qualifications. Street, Dublin 2. € Tel: 01-6381020 COMMERCIAL SOLICITOR – CORK CITY 70K + or e-mail Our client, based in Cork has experienced exceptional growth in its commercial department in the last year. Due to [email protected] this growth it is now seeking a good company/corporate solicitor to join its team.
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