Law Society
GazetteGazette€3.75 May 2010 fairy tale of new york Has the Big Apple lost its lustre?
INSIDE: selling your practice • nursing home care reps • affordable housing • your letters Calls Matter IS A CLIENT/CASE CALL MANAGEMENT SYSTEM SPECIFICALLY DESIGNED FOR LAW FIRMS AND BUILT UPON CISCO UC500 & CME SERIES UNIFIED TELEPHONY PLATFORMS
Tracks all incoming and outgoing calls to avoid loss of revenue. Replaces traditional manual and estimated billing methods with indisputable, accurate records for all calls, clients and matters.
Improves customer satisfaction • Enhances business continuity Reduces administration costs • Business process transformation
Irish Legal Practice Wallace Reidy & Co. Leads The Way Limerick-based legal practice Wallace Reidy & Co. has • It maximises Partner and Associate use of time with become the first legal practice in Ireland and Britain to all time now being allocated to Clients implement Eporta’s Calls Matter application. • Repetitive non-productive administrative tasks are now automatically facilitated as part of their normal client Only three months into their usage of the system, their call handling experience has already been greatly enhanced with • The firm now has the option whether to bill this key benefits being delivered at various levels within the allocated client time directly or simply use it as an aid practice. in billing query reconciliation.
Simple to Use! Graphical & Textual Menus through PC or Touch Screen control – Easier to Place Calls, Displays Client Info or Access Client Directory Information
Affordable! Cisco Zero % Financing available (subject to terms and conditions and credit approval). Potential return on investment of three months (figures based on an identified average extra hour and thirty minutes of billable time per Partner/Associate per day)
calls matter is BUILT UPON CISCO technology
Cisco’s UC500 &CME is a platform incorporating voice, data, video, and wireless technologies from the market leader in delivering high performance communications solutions to the SMB Market.
The architecture, while helping people work together more efficiently and effectively is expandable to 350+ users.
Wren Data Ltd, Rosse House, Holland Road, National Technological Park, Limerick, Ireland Tel: +353 61 485700. Fax: +353 61 485714. Email: [email protected] www.wrendata.com president’s message Law Society Gazette may 2010
No shortage of challenges
am painfully aware of the sad fact that a great many supportive of the thrust of the proposed regulations and colleagues in solicitors’ practices of all sizes around contributed a number of helpful thoughts on aspects of the the country are suffering from a shortage of work at detail. As you know, it is expected that decisions in relation present. However, lack of work is not a feature of the to all of this will be made by the Society’s Council at its role of the Law Society. Here is just a flavour of what meeting on 21 May 2010. Iwe have been engaged with, on your behalf, over the course of just one day, 19 April, recently. The Frontline Solicitors’ undertakings in property transactions, and the Presidents’ and secretaries’ meeting problems caused when the agreed system was misapplied by Perhaps the most important event of the last two weeks was the banks, was a central theme of a segment of The Frontline the meeting that I chaired in Blackhall Place on 19 April of programme, hosted by Pat Kenny, on RTÉ television on the presidents, secretaries and public relations officers of all 19 April. The Society was ably represented on the panel bar associations. This was a very well-attended by director general Ken Murphy, with John D and valuable opportunity for me, the director Shaw, James MacGuill and Kevin O’Higgins general and other colleagues in the Society to present, although ignored, in the audience. give detailed briefings on a wide range of issues “Lack of The atmosphere in the studio, presided and work in progress and, most importantly, to over by Pat Kenny, was remarkably hostile hear considered views and feedback from local work is not towards the solicitors’ profession. The attacks representatives of the practising profession a feature on solicitors were based largely on wholly from all over the country. false assertions of what NAMA chief executive The two dominant items on the agenda of the role Brendan McDonagh had said the previous week at the meeting of the leaders of the bar of the Law to a Dáil committee. associations were professional indemnity These false assertions were forcefully insurance and commercial undertakings. The Society” challenged by Ken Murphy and by Graham chair of the Society’s PII Task Force, Eamon Kenny, a solicitor who contributed effectively Harrington, described all of the issues being from the audience. reviewed in depth (with the benefit of expert All in all, a spirited defence of the profession advice from Marsh in London), with a view to making early was given, with strong arguments that would have made decisions designed to ensure, to the greatest extent possible, sense to any reasonable and open-minded viewer. that nothing resembling last autumn’s experience of PII The good news is that The Frontline’s preposterous renewal will be experienced by the profession again. assertion – that solicitors are partly responsible for the The chair of the Society’s Commercial Undertakings collapse of the banks and the beggaring of the taxpayers – Task Force, John D Shaw, went through in detail the draft has, since the programme, received precisely the same level regulations and supporting documentation that were sent of media coverage and credibility it had received before the by email to every solicitor on 1 April 2010. They were programme – precisely the amount it deserves – none. circulated to all solicitors in order to allow the widest possible consultation with the profession about the proposed Gerard Doherty changes. The leaders of bar associations were broadly President
www.lawsocietygazette.ie 1 Law Society Gazette MAY 2010 contents
www.benasso.com Remaining the number one Irish legal recruitment consultancy takes a dogged Law Society Gazette • Vol 104 No 4 determination, thinking creatively, spotting new opportunities and keeping an open mind Law Society On the cover L A W SOCIET Y New Openings Do you come from a land down Gazette€3.75 may 2010 under? Oops, wrong direction! Private Practice Banking – Associate/Senior Associate: Leading practice requires an experienced practitioner to join But if you weren’t born in the USA a dedicated team. Commercial Litigation - Assistant: Our client is a Top Tier law fi rm with an enviable client base searching for exceptional candidates to deal with a broad mix of Commercial Litigation. You will have a fi rst class academic background coupled with excellent communication skills. and don’t want to be an American Commercial Litigation - Associate to Senior Associate level: Strong practice with a client base ranging from SMEs to international companies requires litigators with commercial litigation expertise. Commercial - Senior Associate: A signifi cant Dublin practice is searching for excellent candidates with idiot, you can still be a fortunate commercial nous coupled with the enthusiasm and drive to develop a fi rst rate client base. fairy taLe Corporate Finance – Assistant to Senior Associate level: Leading Dublin practice requires a high calibre lawyer to deal with corporate advisory work including mergers and acquisitions, joint ventures, Gazette management buy outs, reverse takeovers and debt and equity fi nancings as well as advising on fl otations and son. But is it the land of the free fundraisings. may 2 010 of New york EU/Competition - Assistant: Our client is a fi rst class legal practice whose client base includes prestigious public service and private sector organizations operating both in the domestic market and internationally. You and the home of the brave, or just will be a Solicitor or Barrister with excellent exposure to EU and Competition Law, gained either in private practice or in-house. has the big apple Funds - Assistant/Associate: Top ranking law fi rm requires excellent Funds specialists at all levels. You May 2010 will advise investment managers, custodians, administrators and other service providers of investment funds on the fairy tale of New York? establishing operations in Ireland. lost its lustre? Funds - Assistant to Senior Associate level: International law fi rm recently established in Dublin is searching for ambitious commercially-minded practitioners with strong exposure to investment funds. pic: thinkstock In House Senior Legal Advisor: Our client is searching for a senior solicitor or barrister with expertise in equity capital markets, corporate fi nance, mergers and acquisitions or general corporate practice advising Irish or UK listed companies. Telecoms - Junior Solicitors: A major player in the Telecoms industry is looking for bright solicitors with outgoing personalities to work with its international sales team focusing on opening up new markets. This is very much a sales oriented role and fl uency in either Spanish or French is an essential pre-requisite. Partnership Our clients include the leading Irish law fi rms. Signifi cant opportunities exist in the following practice areas and a client following is not essential.
Employment ; Funds ; Insolvency ; Litigation ; Regulatory/Compliance ; Environmental & Planning Law Society of i reland
For more information on these or other vacancies, please visit our website or contact Michael Benson bcl solr. in strict confi dence at: Benson & Associates, Suite 113, Volume 104, number 4 The Capel Building, St. Mary’s Abbey, Dublin 7. T +353 (0) 1 670 3997 E [email protected] iNSiDe: SeLLiNG your practice • NurSiNG home care repS • afforDabLe houSiNG • your LetterS Subscriptions: €57 covers may x4.indd 1 29/04/2010 15:54 Regulars 1 President’s message 4 News Analysis 12 12 News feature: the Law Society’s annual conference 15 News feature: strengthening the rule of law in Kosovo 16 Human rights watch: the right to basic education 16 One to watch: Arbitration Act 2010
12 Comment 18 18 Letters 20 Viewpoint: garda vetting and human rights 41 People and places 45 Student spotlight Briefing 46 46 Council report – 12 March 2010 47 Practice notes 48 Legislation update: 16 March – 16 April 2010 50 Solicitors Disciplinary Tribunal 41 51 Firstlaw update 54 Eurlegal: Remedies Regulations 59 Professional notices 62 Recruitment advertising
Editor: Mark McDermott. Deputy editor: Dr 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 59. Commercial advertising: Seán Ó hOisín, 10 Arran Road, Dublin 9; tel: 01 837 5018, fax: 01 884 4626, mobile: 086 811 7116, email: [email protected]. Printing: Turner’s Printing Company Ltd, Longford. Editorial board: Michael Kealey (chairman), Mark McDermott (secretary), Paul Egan, Richard Hammond, Simon Hannigan, Mary Keane, Aisling Kelly, Patrick J McGonagle, 44 Aaron McKenna, Ken Murphy.
2 www.lawsocietygazette.ie contents Law Society Gazette may 2010
Get more at lawsociety.ie PROFESSIONAL notices: send small advert details, with payment, to: Gazette Office, Blackhall Place, Dublin 7, tel: 01 672 4828, or email: [email protected]. Gazette readers can access back issues of the All cheques should be made payable to: Law Society of Ireland. magazine as far back as Jan/Feb 1997, right up COMMERCIAL ADVERTISING: contact Seán Ó hOisín, 10 Arran Road, Dublin 9, to the current issue at lawsociety.ie. tel: 01 837 5018, fax: 884 4626, mobile: 086 811 7116, email: [email protected] You can also check out: • current news HAVE YOU MOVED? Members of the profession should send change-of-address • Forthcoming events, including the Annual details to: IT Section, Blackhall Place, Dublin 7, or to: [email protected] Human Rights Lecture on 19 May at HOW TO REACH US: Law Society Gazette, Blackhall Place, Dublin 7. Blackhall Place Tel: 01 672 4828, fax: 01 672 4877, email: [email protected] • employment opportunities • the latest CPD courses FSC independently-certified wood and paper products used by the Law Society Gazette come from ecologically-managed forests. Visit: www.fsc.org
… as well as lots of other useful information PEFC certifies that wood and paper products used by the Law Society Gazette are sourced by suppliers from sustainable, managed forests. Visit: www.pefc.org features COVER STORY: 22 Fairy tale of New York It’s no secret that newly qualified solicitors and even law students are looking abroad for brighter opportunities. For those considering America – specifically New York – Patrick Mair asks whether the Big Apple holds out much promise for Irish-qualified solicitors Safe as houses 26 Local authorities are coming under pressure to offload unsold affordable homes, originally built to accommodate those unable to buy during the boom. Mairead Cashman reveals a new strategy by Dublin City Council to move these unsold units off their books Egg on your face 30 The Law Society has established a Pensions Law Sub- committee. Deborah McHugh, Fiona Thornton and Deirdre O’Riordan advise that solicitors should focus on how pensions law could affect their practice and benefit their business 30 Duty of care 34 Section 21 of the Nursing Homes Support Scheme Act 2009 regulates the appointment of care representatives who, when appointed, are empowered to take certain decisions on behalf of nursing home patients. James Mulcahy takes the temperature Hanging up your boots 38 Thinking of ‘hanging up your legal boots’ by selling your practice – or looking to expand your current business? Before you leap, you should fully consider the tax implications of buying and selling a legal practice. Annemieke Clancy ties up your laces
The Law Society of Ireland can accept no responsibility for the accuracy of contributed articles or statements appearing in this magazine, and any views or opinions expressed are not necessarily those of the Law Society’s Council, save where otherwise indicated. No responsibility for loss or distress occasioned to any person acting or refraining from acting as a result of the material in this publication can be accepted by the authors, contributors, editor or publishers. The editor reserves the right to make publishing decisions on any advertisement or editorial article submitted to this magazine, and to refuse publication or to edit any editorial material as seems appropriate to him. Professional legal advice should always be sought in relation to any specific matter. Published at Blackhall Place, Dublin 7, tel: 01 672 4800, fax: 01 672 4877. Email: [email protected] Website: www.lawsocietygazette.ie 38
www.lawsocietygazette.ie 3 Law Society Gazette MAY 2010 news nationwide
Send your news to: Law Society Gazette, Blackhall Place, Dublin 7, or email: [email protected]
donegal solicitor Michael Lanigan spoke Alison Parke has organised a with great humour about how he seminar for Saturday 8 May 2010 crossed over to the ‘merger’ side at the Rosapenna Hotel and Golf of the road and found nirvana! Resort, Rosapenna, Downings, Letterkenny, Co Donegal. limerick From 9am to 12 noon, Bar association president speakers will include Eamonn Elizabeth Walsh informs me Harrington, Michael Quinlan of a forthcoming event in the and Seamus McGrath, covering Strand Hotel in aid of funds recent developments in for Special Olympics Ireland. professional indemnity insurance; All practitioners are cordially appearing before the Regulation invited and should contact either of Practice Committee; and At the WIT Law Society annual ball were (l to r): Deirdre Adams (law Elizabeth or Brian Malone the Solicitors’ Accounts Regulations lecturer, WIT), Colm Murphy (education officer, WIT Law Society), Patrick for details – email: info@ and investigation. From 1pm to McKee (president, WIT Law Society), Bernadette Cahill (president, elizabethwalsh.eu or bmalone@ Waterford Law Society), Elliott Payne (law lecturer, WIT) and Walter 3pm, David Soden and Suzanne O’Leary (law lecturer, WIT) harrisonodowd.ie. Bainton will cover the practical implications of the Land and cricket event with our Leeside recently met representatives of louth Conveyancing Law Reform Act 2009. country cousins, as well as a bar associations throughout the Also attending the Dublin meet- The cost is €160 per solicitor, tennis encounter – details of country, at which the Society’s ing of presidents and secretaries with five CPD hours available, which are to be announced draft regulations seeking to ban were Tim Ahern (County Louth comprising three hours of shortly. The legal offices’ football the giving of undertakings in Solicitors’ Bar Association) and regulation and two hours of competition for the DSBA Cup commercial cases was considered. Fergus Minogue (PRO of the CPD training. might be regarded as our blue- For its part, the DSBA has Drogheda Bar Association). The president of the ribbon event. Matheson Ormsby been very closely monitoring I could not resist asking Fergus Donegal Bar Association, Máirín Prentice are the current holders, this issue, and Julie Doyle’s why the wee county has two McCartney, spoke with great with the event taking place later Conveyancing Committee will bar associations serving local conviction on a number of in the summer. be making its own submission colleagues! If jurisdiction is matters of concern to Donegal We are looking forward to in advance of the response date the right word, it seems that practitioners at the recent the DSBA dinner, which this of 7 May 2010. Any colleagues the Louth association covers presidents and secretaries year will be held in the Radisson wishing to make observations both ‘the town’ and Ardee, with meeting at the Law Society. Hotel, Booterstown, on Saturday should contact or email Maura at Drogheda looking after itself. 15 May (the same evening as the www.dsba.ie. Both bar associations, of course, dublin Calcutta Run). Tables are going enjoy a very cordial and happy Advance bookings for the fast, and all enquiries should be kilkenny co-existence – but it appears DSBA annual conference to made through Maura Smith or Owen O’Mahony, president of that unification is not on the Istanbul, which John O’Malley Geraldine Kelly at dsba.ie. the Kilkenny Bar Association, is agenda. has managed to price very Dublin practitioners, looking forward to the opening competitively, are going very particularly in the smaller of the Marble City’s new waterford well. All appropriate details are offices, were delighted to note courthouse. It has been a long Waterford Law Society president on dsba.ie. the appointment of our great time coming. Owen says that he Bernadette Cahill convened May will be a very active and friend Patricia McNamara to the will be welcoming the return of a meeting with Waterford sporting month in Dublin, what District Court bench. She was High Court and chancery cases colleagues recently, attended by with the DSBA tag rugby event always a most helpful colleague, to Kilkenny. Law Society president Gerard in Terenure College on Saturday particularly among the smaller Owen was particularly pleased Doherty and director general 8 May, the Calcutta Run starting offices. to welcome many colleagues Ken Murphy, to discuss matters from Blackhall Place at 2pm Most property lawyers are from throughout the country of concern. G on 15 May (in which yours at sixes and sevens in relation to the beautiful Lyrath Estate truly hopes to run and is open to the matter of commercial Hotel in recent weeks, on the ‘Nationwide’ is compiled by Kevin to sponsorship from all and undertakings and whether to give occasion of the Law Society’s O’Higgins, principal of the Dublin sundry), and a forthcoming them or not. The Law Society annual conference. Local law firm Kevin O’Higgins.
4 www.lawsocietygazette.ie news Law Society Gazette may 2010 ‘Outstanding Achievement’ award for Society’s CPD Focus Skillnet team
he Law Society’s CPD TFocus Skillnet team has taken the ‘Outstanding Achievement Training Award 2010’ at the annual awards of the Irish Institute of Training and Development (IITD), held on 26 March 2010. The award in the ‘Networks and Groups Category’ acknowledges the Society’s work in designing and delivering excellence in training to members of the legal profession through its CPD networks – CPD Focus, CPD Focus Skillnet and the Law Society Finuas Network. CPD Focus Skillnet is funded by member companies and from the National Training Fund. The Law Society Finuas Network is jointly funded by the government and companies within the financial services sector. Both networks are co-funded and Celebrating the Society’s ‘Outstanding Achievement Training Award 2010’ are (l to r): Michelle Nolan (communications executive, Law School), Ken Murphy (director general), Attracta O’Regan (head of CPD) John managed by Skillnets Ltd on Gorman (president, IITD), Sinead Heneghan (director, IITD), Michelle Ní Longáin (chair, Law Society Education behalf of the Department of Committee), Tracey Donnery (Finuas programme manager, Skillnets), John O’Connor (vice-chair, Law Society Enterprise, Trade and Innovation. Education Committee), and Antoinette Moriarty (Law School) Job-seeking training goes nationwide he Society’s Career Support • Mullingar: Thursday 10 June other attendees. Tservice has developed new, • Dublin: Wednesday 16 June Capacity is limited at most intensive training courses in job- • Galway: Thursday 17 June. venues, however, and anyone seeking matters. These courses who wishes to attend any event are being provided in locations Interviewing and negotiation is asked to book a place by countrywide during May and Training in successful interview emailing [email protected]. June. performance and negotiation More details on these events are is being organised in a separate available on the society’s website Effective CV preparation training course, where people at www.lawsociety.ie/en/pages/ The preparation of an effective will be given the opportunity to careersupport. CV and other aspects of self- role-play and work through all Career Support is a marketing, such as writing the questions and challenges that • Sligo: Tuesday 15 June Law Society initiative set covering letters, will be tend to cause people difficulty. • Dublin: Wednesday 23 June up to assist solicitors faced addressed in workshops at the These workshops will take place with career challenges, following locations on the dates as follows: All these courses are half-day such as unemployment, scheduled: • Limerick: Tuesday 4 May in duration, from 1.30pm to underemployment and • Waterford: Thursday 6 May • Cork: Tuesday 11 May 5.30pm. All qualify for CPD uncertainty about what to • Dublin: Wednesday 12 May • Mullingar: Tuesday 18 May group-study credits. The do next, career-wise. A range • Portlaoise: Thursday 13 May • Dublin: Wednesday 19 May courses are free of charge to of supports can be accessed • Cork: Thursday 20 May • Galway: Tuesday 25 May solicitors registered with the countrywide, including CV • Sligo: Thursday 27 May • Portlaoise: Tuesday 1 June Career Support service – a review, telephone, email support • Limerick: Thursday 3 June • Waterford: Tuesday 8 June charge of €25 applies to all and one-to-one consultations.
www.lawsocietygazette.ie 5 PTSB_LAW_soc_GAZ 12/03/2010 10:09 Page 1
Great deposit rates are really only half the story
The other half of the story is all about you. We created Principal Banking, your personal team dedicated to providing for your specific deposit needs as a professional. We wanted to deliver more options, better service and of course a great financial return. We understand the demands on your time and your money and the need for responsive, intuitive and intelligent banking.
We don’t do things in halves. See for yourself, call our Principal Banking team today at 1890 818 741 or drop us an email at [email protected] (but please do not send any personal or confidential information by email). principalbanking the savings team dedicated to professionals
Terms and conditions apply. The rate advertised above is for illustration purposes. To help improve our service to you calls may be recorded. Irish Life & Permanent plc (trading as permanent tsb) is regulated by the Financial Regulator. news Law Society Gazette may 2010 ITM Law Centre proves popular he Irish Traveller Movement community and an application TLaw Centre opened in June to the Equality Tribunal against 2009 and provides a specialist a management company. legal service to Travellers in Two High Court judicial Ireland. The centre recognises review applications began in the unmet legal need in the September, challenging the Traveller community and the use of the criminal trespass importance of a specialist legal legislation, one of which service for Travellers to the was preceded by a successful advancement of Traveller rights mandatory injunction in Ireland. Its aims are: application for the return to • To advance the ability of the applicant of her caravan members of the Traveller home. Two cases in relation Community to access expert to the standard of Traveller legal advice and representation, Solicitor for the ITM Law Centre, Siobhán Cummiskey accommodation are also at pre- • To advance recognition litigation stage. of Travellers as an ethnic centres in the country. dealt with over 100 legal The law centre is also minority, The new law centre is queries and has 20 strategic involved in applications and • To take a series of test cases pursuing strategic test cases cases at litigation and pre- complaints to European and to challenge laws that attack specifically relating to accom- litigation stage. Among cases UN bodies. Traveller culture. modation, equality and human being taken are two equality Siobhán Cummiskey is the rights, education, access to cases under appeal to the solicitor for the Irish Traveller The law centre operates as an services, and ethnicity. Circuit Court in relation to Movement Law Centre and can independent centre within ITM To date, the Irish Traveller refusal of service by a hotel be contacted at: itmlawcentre@ and is one of six independent law Movement Law Centre has to members of the Traveller gmail.com. Public interest law is an easy PIL to swallow
he Public Interest Law P ic : D erek S peirs rapporteur on child protection) TAlliance (PILA) – a project addressed the issue of child of FLAC – held a conference law, while solicitor Siobhan on 16 April that aimed to find Cummiskey spoke about the practical ways of promoting work of the Irish Traveller the use of law to respond to Movement Law Centre (see challenges such as debt, housing above). and children’s rights. The final session – a public There were presentations interview hosted by broadcaster about international experiences and journalist Vincent Browne – of public interest law (PIL). debated public interest law with Human rights lawyer, academic a panel comprising Prof Gerry and author, Andrea Durbach, Whyte (TCD), Noeline Blackwell related the situation of the (FLAC director general) and ‘stolen generation’ in Australia, Mark O’Brien (director of the where state policy removed Speakers at the Public Interest Law Alliance conference included US-wide, non-profit organisation aboriginal children from their (from l to r): Paul Mageean, Melissa Murray, Jo Kenny, Colin Daly probono.net). families up until the 1970s, and (standing) and Michael Farrell PILA is seeking to bring how public interest law played together community/voluntary its role in helping them. with contributions from welfare, with the focus on Irish organisations and lawyers to Edwin Rekosh, founder and FLAC senior solicitor Michael case studies in these areas. explore ways they can work to director of the Public Interest Farrell, PILA legal officer Jo Solicitor Colin Daly of the mutual advantage – offering Law Institute (PILI), discussed Kenny, Melissa Murray and Northside Community Law opportunities for lawyers to how public interest law has Paul Mageean, both of PILS Centre spoke about the use their legal skills in a new developed in Central and Northern Ireland. McCann case that led to law context and for organisations Eastern Europe. There was an Workshops followed on reform in the debt area, to add a legal strand to their overview, too, of developments the topics of debt, housing, Geoffrey Shannon (Law Society, campaigning, administrative and in Ireland, north and south, children’s rights and social and the government’s special policy work.
www.lawsocietygazette.ie 7 Law Society Gazette MAY 2010 news Property Registration Authority apologises for disruptive action
elays caused by the work order are being processed Dto rule in the Property to pre-completion (that Registration Authority (PRA) is, the final stage of the are having a significant impact registration process). In the on applications for registration case of examiner and section and e-discharges. 49 applications or other The Society has made applications being handled contact with the PRA in by senior staff, they are order to communicate its being completed as normal. dissatisfaction with the current 8) Where applications are adverse effect that the situation being processed to pre- is having on conveyancing. completion, the status of The PRA has replied, saying the application will show that it apologises for the in landdirect.ie as ‘pre- difficulties caused to solicitors. completion’ or ‘finalised’. The authority has assured 9) In the Registry of Deeds, the Society that it is “making applications for registration efforts to minimise the impact are being processed fully to both immediately and in the completion, as are official long term on services for searches and requests for practitioners”. copy memorials and so on. It has summarised the services. This form of work completed. Phones are not answered position as follows: to rule typically happens 4) Solicitors can still on the occasions of action 1) All applications for at very short notice and, obtain official copies of in the same manner and registration, with the to date, has affected public instruments in the normal on the same occasions general exception of counter duties generally way, and such applications as in the Land Registry. examiner and section 49 during the mornings from are being considered. As a result of the work applications, have been 10.30am until 1pm, and 5) The landdirect.ie services to rule, staff tend to be affected by the work to telephone services generally and all other online services more insistent on queries rule by staff. The work to during the afternoon. are working as normal and from customers being in rule also includes the non- During the suspension of are not affected. Where writing. Public offices in completion of e-discharges public counter services, other services such as the Registry of Deeds are and the non-completion senior staff in the offices are counters and telephones are kept open by management of the vast majority of trying to provide cover and affected, notices are posted at all times. Nevertheless, registration applications. are responding to urgent on landdirect.ie as soon on the days of action in the 2) The PRA offices are open enquiries and will take in as the PRA is aware of the public offices, members of during the normal hours of applications for registration. service impact. the public are advised at 10.30am to 4.30pm and is 3) Solicitors can still obtain 6) Ground rents cases are reception to come back later continuing to provide the official copies of folios being completed as normal. when the public offices are same services to customers and maps in the normal However, the non-handling fully staffed for business. at its public counters. way. The processing of of telephone queries action Public law searchers can Similarly, the telephone applications for copy folios also affects ground rents, still gain access and use the services, including the and maps that are lodged and callers may be asked landdirect.ie facility in the handling of queries and manually is not included to submit their queries in public room. other telephone calls, in the work to rule and writing. 10) In the case of applications continue to be provided. is being processed to 7) Applications lodged for where requests are made However, from time to completion. Applications for registration are being to expedite applications or time, the public counter copies that are lodged with examined and are being reference is made to urgent services and telephone applications for registration processed. They will be or hardship cases, senior services have been affected – such as subdivisions, rejected or queried as managers are responding by lightning actions, transfers and so on – are appropriate and, in the case to any hardship or urgent including a refusal to affected by the action, as of subdivision applications, request and will complete answer telephones and the they cannot issue until the are being mapped. In effect, the applications if they are suspension of public counter registration applications are applications that are in in order.
8 www.lawsocietygazette.ie news Law Society Gazette MAY 2010
PI BOOKLET – ERRATA Criminal fee cuts condemned In the Guidelines for Solicitors in Personal Injuries Board Cases, under he Law Society has to the reductions in public ‘Statute of Limitations’, practitioners Tcondemned the government expenditure that we accept are asked to note that, in the decision to slash, by a further are necessary. The solicitors’ example given on page 7 of the 8%, the fees paid to solicitors profession is more than willing booklet, the Statute of Limitations and barristers under the to bear its fair share of the pain. expiry date should read 30 Criminal Legal Aid Scheme. “But the reality is that November 2010, not 30 November The cut came into effect on 1 solicitors who practise on the 2009, as is stated in the booklet. April 2010. Criminal Legal Aid panel were Apologies for any inconvenience Society representatives had under severe financial pressure caused. met with representatives of even before this latest cut. The the Department of Justice, area of practice is not lucrative, STUDENT HUMAN RIGHTS Equality and Law Reform when and firms engaged in it have not ESSAY PRIZE Ken Murphy: ‘Society is not free the cuts were first mooted generated reserves on which The Law Society of Ireland, in without access to justice’ earlier this year. However, it they can now draw to subsidise conjunction with the Southern Law quickly became clear that the the day after the new 8% cut their practice. Association, is pleased to announce ‘consultation process’ held out was announced, director general “These cuts will result in a the fourth annual competition for not the slightest possibility of Ken Murphy said: “This cut will further addition to the already the Human Rights Essay Prize. All reversing a government decision further reduce the quality of huge level of unemployment law students, including all trainee already made. service that accused persons, in the solicitors’ profession. solicitors and barristers, are invited This 8% cut comes on top of with rights but without financial The current reality is one of to submit an essay identifying a an 8% cut last year and a 2.5% means, will receive in our courts. too many solicitors, too little particular aspect of human rights increment – applied, but then Access to justice is not free – but work, and too many clients who law that they believe will have rescinded – just six months a society is not free without it.” simply cannot pay even the importance in the application or prior to that. He continued: “Solicitors greatly reduced fees that firms interpretation of Irish law. They Responding in The Irish Times want to contribute positively are now offering to charge.” should briefly explain the current understanding of law in this area and outline their argument for the influence of human rights Revenue e-stamping workshops law. Entries should be typed and hroughout April and May In addition, Revenue staff will system and who are still filing approximately 2,000 to 3,500 T2010, Revenue is presenting be available on the following paper returns. One-to-one words in length. Entries may be workshops to assist practitioners day (from 10am until 1pm) at tuition and guidance will be co-authored. Prize-winning and short- with practical issues on the the venues on the dates listed, to available for those attending on listed essays may be published. electronic filing of stamp-duty assist other practitioners locally the morning after the workshops. Information on marking, prizes and returns. The remaining dates who may not yet be using the Again, attendance is free. eligibility are available at www. in the series are listed below, lawsociety.ie under ‘Human Rights with workshops beginning at Date Venue Committee’. Email your entries 6pm on each day. Attendance is Tuesday 11 May Savoy Hotel, Limerick to: [email protected]; or free. Practitioners, law clerks, Wednesday 12 May Seven Oaks Hotel, Carlow send to: Joyce Mortimer, human legal executives and office staff Tuesday 18 May Silversprings Hotel, Cork rights executive, Human Rights dealing with stamp duty are most Wednesday 19 May Tower Hotel, Waterford Committee, Law Society of Ireland, welcome to attend. Blackhall Place, Dublin 7.
WOMEN LAWYERS’ Ahern grants recognition of Press Council ASSOCIATION AGM inister for Justice Dermot 2009, which comprehensively Council and adherence to the The Irish Women Lawyers’ MAhern signed a ministerial reforms the law on defamation Code of Practice for Newspapers and Association is holding its annual order on 23 April 2010 declaring and replaces the previous legis- Periodicals will strengthen the general meeting on 12 May, followed the formal statutory recognition lation, which dates back to 1961. entitlement to avail of the new by a seminar on the Civil Partnership of the Press Council of Ireland as Formal statutory recognition defence of reasonable publication Bill, in the Green Hall, Law Society, the ‘Press Council’. The order, of the Press Council confers in any court action. Blackhall Place, Dublin 7. The 6pm entitled the Defamation Act 2009 certain benefits on it. For Non-members of the Press seminar will feature contributions (Press Council) Order 2010, has instance, qualified privilege Council will be required to from Brian Barrington BL and immediate effect. will attach to its reports and have in place an equivalent Muriel Walls (partner in McCann This order completes the final decisions, as well as those of the fairness regime, or to operate an FitzGerald). For further information, element outstanding from the Press Ombudsman. equivalent and publicised code of email: [email protected] or phone 01 passage of the Defamation Act Subscription to the Press standards to avail of that defence. 817 5267 or 087 290 6294.
www.lawsocietygazette.ie 9 IRISH LAW SOC GAZ_SUB_Q8 27/04/2010 16:30 Page 1
SOTHEBY’S IRELAND - DUBLIN, CORK, NORTHERN IRELAND
We source locally and sell internationally securing the best prices for your works from our global network of clients
Our offices in Ireland are delighted to offer the following services: • Auction valuations and free confidential advice without obligation on all fine art and antiques including art, furniture, silver, ceramics, jewellery, wine, books • Probate and insurance valuations • Private Sales • Touring exhibition of our annual Irish Art Sale in Ireland
Forthcoming Valuation Day in Dublin 9th June Chinese Ceramics and Works of Art
Sotheby’s Ireland
PLEASE CONTACT US FOR MORE INFORMATION OR TO BE NOTIFIED ABOUT FUTURE EVENTS ARABELLA BISHOP, DIRECTOR, SOTHEBY’S DUBLIN +353 (0)1 671 1431 WILLIAM MONTGOMERY, CONSULTANT, NORTHERN IRELAND +44 (0)28 4278 8668 MARETA DOYLE, CONSULTANT, CORK +353 (21) 4772348 I SOTHEBYS.COM IRISH LAW SOC GAZ_SUB_Q8 27/04/2010 16:30 Page 1
news Law Society Gazette may 2010 SOTHEBY’S IRELAND - DUBLIN, CORK, NORTHERN IRELAND MOP WINS ‘CLIENT CHOICE’ We source locally and sell internationally securing the best prices for your Companies Consolidation Ireland’s largest law firm, Matheson works from our global network of clients Ormsby Prentice (MOP), was awarded the International Law and Reform Bill likely in 2011 Office ‘Client Choice’ award in Our offices in Ireland are delighted to offer the following services: central London on 22 April for the he long-awaited Companies fourth time in five years. Winners • Auction valuations and free confidential advice without obligation on all fine art and TConsolidation and Reform Bill were chosen through extensive antiques including art, furniture, silver, ceramics, jewellery, wine, books is not now expected before the research and polling of senior • Probate and insurance valuations autumn of 2011. corporate counsel at Fortune 500, • Private Sales In 2007, the Company Law FT Global 500, FT Euro 500 and FT Review Group published its Asia-Pacific 100 companies. The • Touring exhibition of our annual Irish Art Sale in Ireland general scheme of Companies awards focus on law firms’ ability Consolidation and Reform Bill, to add real value to their clients’ Forthcoming Valuation Day in Dublin representing the culmination businesses, including quality of 9th June Chinese Ceramics and Works of Art of six years’ work. Following legal advice, value for money, this publication, the Office of commercial awareness, effective the Parliamentary Counsel communication, billing transparency, began the painstaking exercise depth of team, response time, of converting the drafting of the sharing of expertise and use of general scheme into legislative technology. In addition, three MOP language. partners were named as individual Legislative amendments winners for Ireland. Bonnie Costelloe related to the financial crisis (competition), Noreen Howard and a very large company law (litigation) and Robert O’Shea workload generally (including (international business group) were the requirement to transpose honoured by corporate counsel for European directives) have prospectuses, publication on the internet their work. contributed to this delay: 2009 • National Asset Management of the date of the company’s saw the enactment of two Agency Act 2009, part 15, AGM no later than the IRISHMAN ELECTED WORLD Companies Acts, two other acts which amends the Companies financial year end, and giving PRESIDENT OF CIArb that amended the Companies Act 1963, section 216 and shareholders the right to place An Irish alternative dispute resolution Acts, as well as the transposition the Companies (Amendment) resolutions on the agenda, (ADR) practitioner, Joe Behan, has of two significant company law Act 1990, section 2, so that • European Communities been elected world president of the directives: before a court makes an order (Directive 2006/46/EC) 12,000-strong Chartered Institute of • Companies (Amendment) Act winding up a company or Regulations 2009 (SI no 450 Arbitrators (CIArb) for the year 2010. 2009, which clarifies and placing it in examinership, of 2009), which amend the He is a council member of the Irish expands the inspection powers either: fourth and seventh directives Commercial Mediation Association, of the Director of Corporate a) The court must be satisfied to require listed companies a certified mediator with the Enforcement, that the company has no to include a corporate International Mediators Institute and • Companies (Miscellaneous obligations in relation to a governance statement in a practitioner member of Mediators’ Provisions) Act 2009, which ‘bank asset’ that has been the directors’ report on the Institute Ireland. He sits on a number allows NASDAQ and NYSE- transferred to NAMA or a annual accounts. of institutional and industrial panels listed companies migrating NAMA group entity, or of arbitrators, including those for the (or ‘inverting’) into Ireland to b) If the company has any The transposition of the new Law Society, Engineers Ireland and continue to use US GAAP for such obligation, a copy of Audit Directive (2006/43/EC) the CIArb. a period of five years, as well the petition must be served was to have taken place by 29 as facilitating investment funds on NAMA or such entity, June 2008, and following the 21ST CENTURY LAW FIRM to migrate into Ireland, and the court must hear initiation by the European A new report warns law firms that • Financial Measures NAMA or such entity in Commission of proceedings they need to modernise or lose out (Miscellaneous Provisions) relation to the making of against Ireland, is now due to be if they are to take advantage of a Act 2009, part 4, which the order, transposed before the summer. major power shift currently taking amends the transposition • Shareholders’ Rights (Directive The good news should place in favour of the in-house client. of the Prospectus Directive, 2007/36/EC) Regulations 2009 be that the Consolidation Bill, The report – Law Firm of the 21st removing the requirement (SI no 316 of 2009), which when published, will have Century – the Clients’ Revolution of the Minister for Finance make significant changes to all of the above, and legal was commissioned by international as guarantor of certain debt the law regarding the con- practitioners may be spared law firm Eversheds. It canvassed Sotheby’s Ireland securities to accept liability vening and conduct of general the deconsolidation of the the opinions of 130 general counsel PLEASE CONTACT US FOR MORE INFORMATION OR TO BE NOTIFIED ABOUT FUTURE EVENTS in relation to the accuracy meetings of listed companies; law that so frequently follows and 80 law firm partners around the consolidation enactments. world. ARABELLA BISHOP, DIRECTOR, SOTHEBY’S DUBLIN +353 (0)1 671 1431 of information contained in for example, requiring the WILLIAM MONTGOMERY, CONSULTANT, NORTHERN IRELAND +44 (0)28 4278 8668 MARETA DOYLE, CONSULTANT, CORK +353 (21) 4772348 I SOTHEBYS.COM www.lawsocietygazette.ie 11 Law Society Gazette MAY 2010 analysis Everything is possible: gen erating cash from chaos The Law Society’s annual conference in Kilkenny borrowed from the legacy of punk, focusing on how the profession can pull itself out of the recession. Mark McDermott reports
he legacy of punk, and in P ic : ma rk m cder ott management, not proactive Tparticular the Sex Pistols, management. I don’t believe I crashed its way into the Law would be on my own in that, Society’s annual conference at but it was something that was Lyrath Estate, Kilkenny, from becoming increasingly obvious.” 9-10 April – and we had local That’s where Malcolm lawyer Michael Lanigan (Poe McLaren – former manager of Kiely Hogan Lanigan) to thank the Sex Pistols – came in. “For for it. Not that Michael had those of you who don’t know of issued any surreptitious invites him,” said Michael, “he was a to Sid Vicious and Johnny person who, in effect, invented Rotten wannabes in the Marble punk rock. He had a great slogan, City – it’s unlikely they’d have which he used for the Sex Pistols taken up the offer anyway – but – ‘cash from chaos’. And while his unique perspective on his it wasn’t all cash and it wasn’t all decision to take part in a merger chaos, there were times when I with another Kilkenny firm had did have my Malcolm McLaren Speakers Andrew Beck, Tony Cherry, Law Society President Gerard turned him all reminiscent. Doherty, Michael Lanigan and Peter Oakes moments!” “Two years ago, if you’d met It was the invitation to a cup P ic : Mich a el B roph y me on a Friday afternoon, you of coffee with Brian Kiely, a probably would have been in partner in Poe Kiely Hogan, that the lobby of a courthouse and got him thinking about engaging I would have been ready to go in a merger. As the first cup back in to do yet another drunk- progressed into a second, then a driving case. I would have been third, it became clear to Michael hoping that I had remembered that there were enough points of to sign the cheques, but probably common interest for both firms didn’t, and somebody would be to explore it as a realistic idea. texting me saying ‘you have to The process lasted five get back to sign the cheques’. months. Michael spoke about the “I was managing on the process of merging – following basis of crisis. It was reactive Roger Quail, Valerie Peart, Gerard Wade and Gail O’Keeffe a path, comprehensive, decisive and objective. It became quickly obvious that the process was less about negotiation and more about reaching consensus on many issues. A merger would end in tears if the strategy was the wrong one and the implementation was not thought through, he said. “Both sides had to be honest and upfront about the ‘cobweb corners’, as much as the beautiful fields to be ploughed. We concentrated on working out a vision as to what we wanted to end up with, and a culture for the firm, rather than working on the financials at the start. The financials will in some respects Kilkenny practitioners (l to r): Mandy and Tom Walsh, Martin and Colette Crotty, Law Society President Gerry work themselves out, but if you Doherty, Shirley and Michael Lanigan, Eugene and Celine O’Sullivan, and Tim and Trini Kiely don’t get the vision right and the
12 www.lawsocietygazette.ie analysis Law Society Gazette may 2010 Everything is possible: gen erating cash from chaos
culture right and feel that you can P ic : ma rk m cder ott quite onerous on the institutions. actually knit together, there is no These would include various point in going on.” warranties in terms of marketable title and enforceability of the NAMA opportunities security, as well as accuracy of the ‘Cash from chaos’ could easily information provided throughout have been the theme for the two the due-diligence process. NAMA talks – by Mark Barr While the geographical (specialist in commercial property breakdown of the NAMA loans with Arthur Cox) and Peter was concentrated in the South Murray (specialist in banking of Ireland, quite a significant with A&L Goodbody). They portion was overseas. “Obviously, spoke about the significance of the Irish legislation won’t have NAMA for legal practitioners and any extraterritorial effect,” their practices. Mr Murray said. “So all of Both were of the opinion that the statutory protections and many opportunities would flow advantages afforded to NAMA Speakers Peter Murray, Mr Justice Nicholas Kearns, Gerard Doherty for solicitors from the National (Law Society president) and Mark Barr and the statutory transfer Asset Management Agency. mechanic won’t work in the UK, Mr Barr told the conference that a self-evident fact, he said, that NAMA legislation dealt with for example, and it may not be the participating institutions, their performance and ability “all relevant contracts – quite enforced or recognised in foreign borrowers, potential investors and willingness to lend would be a broad definition”, which jurisdictions.” and banks involved in NAMA’s key to the recovery of the Irish included certificates of title, NAMA would be the key refinancing transactions would economy. There were probably solicitors’ undertakings and player in the Irish property require solicitors to represent more than 1,500 borrowers certain ancillary rights – unless market and in many of our lives them. involved, and at least 15,000 the acquisition schedule provided for the foreseeable future in a Already a ‘due diligence’ panel loans to be acquired. otherwise. General terms and professional context, he said. of solicitors had been established, He pointed out that the conditions of acquisition were The director of the Irish and NAMA had advertised for the appointment of a further panel to deal with enforcement. PRESIDENT OF HIGH COURT SPEAKS OF CHANGES It was up to solicitors to showcase “We are acutely conscious of the seismic changes litigation. A working group was examining how to their expertise in NAMA brought about by developments such as NAMA, but improve efficiency and reduce the cost of legal legislation, he said. NAMA- other developments of considerable importance proceedings in medical negligence cases. inspired joint ventures and to practitioners can often slide up on us more He asked whether a separate list should be partnerships would undoubtedly quietly,” said the President of the High Court, created for medical negligence cases. At present, ensue. Mr Justice Nicholas Kearns, addressing the Law such cases were listed as part of the general Peter Murray turned his Society’s annual conference. personal injuries list. However, the scarcity of attention to NAMA and the Paramount among his concerns was to judges meant that, even when dates were fixed for consequences for banks. It was “cooperate in every way possible with efforts hearing, there was no guarantee that a particular to bring the long-awaited Judicial Council into case would get on. “This is a horrendous situation existence this year”. Such a council would have for claimants and individual medical practitioner responsibility for the establishment of a code of defendants alike.” judicial ethics and would set out a process for the On the subject of asylum cases, he said investigation of complaints of breaches of ethics by that there were 650 pre-leave applications members of the judiciary. awaiting disposal last month, and 105 post-leave “Contrary to some media reports, this is a applications. The sheer volume of such cases development which the judiciary fully support, imposed a significant financial burden on the state. not least because it is in their own best interest To help ease the burden, he said he had obtained to have such a body, both to promote the welfare a commitment from the majority of the judges and good standing of the judiciary, and also to of the High Court to provide supplemental and provide a fair and calibrated method of dealing with additional sitting days in September to clear or at complaints against judges.” least reduce this caseload. He hoped and expected Mr Justice Kearns also said that changes were that the bar and solicitors’ profession would Ellen Twomey with her seven-week being examined in the area of personal injuries cooperate in every way they could. old daughter Eimear
www.lawsocietygazette.ie 13 Law Society Gazette MAY 2010 analysis
Diane Miller and Maxine Hunter
much more likely to get there. It’s just like having a map.” Having a map was one of the top priorities of sports psychologist Gerry Hussey. Group from Michael Houlihan and Partners, Ennis Co Clare (l to r): Paul and Catherine Tuohy, Marina Keane, Gerry mentors the Irish boxing Helen Rackard, Kostas Wootis, Joan and Michael Houlihan, Mairead Doyle, Ronan Higgins, Sinead Nunan, Mary Nolan and John P Shaw team, the Irish velo cycling team and the Munster rugby team, Centre for European Law, encouraging them to set personal Andrew Beck, seized the and team goals in order to ‘opportunities baton’ and achieve their very best. gave an upbeat assessment of “In every situation,” he said, business opportunities arising “there are elements you can from EU law. (The Gazette control and elements you cannot hopes to reproduce much of his control. In the middle of this presentation in the June issue.) recession, there is stuff we can Andrew identified three key control and stuff we can’t. Where areas that solicitors’ practices do I apply my energy? Too many might consider prospecting. He people spend too much of their recommended: energy on ‘ifs, coulds, shoulds • Developing EU law and mights’. Too many people opportunities on a case-by- are demotivated in the present case basis, because of what they might think • Encouraging practices to may happen in the future. Too consider developing a strategic many people are stunted in the EU-law direction, and Sinead Kearney and Simon Murphy present because of something • Identifying the skill-sets that happened in the past. required to accomplish these lawyer to advise their clients and opportunity. And if you He challenged his audience objectives. more fully on their options, can capture both risk and to take a very close look at their to recognise opportunities for opportunity in your risk- personal lives. “We talk about EU law is “both critical and developing one’s reputation management programme, then performance indicators all of expanding”, he said. It is critical and one’s practice, and to avoid that is a fantastic support for the time in terms of what we because EU law trumps Irish law negligence,” he said. your business strategy.” do in our jobs, but what are the due to the supremacy of EU law Addressing the question of performance indicators of your over Irish law. It is expanding Road map why law firms should look to life? because some 60-70% of Irish The head of governance and risk achieving a quality standard, “Whether it is personal, legislation annually implements at Beachcroft LLP, Tony Cherry, Tony cited “client recognition, financial, business, relationship, EU directives. He reminded spoke on risk management because I think there’s a great pick a situation, state clearly listeners that 70% of commercial in a legal firm. “There is one deal to be said for doing what you want to achieve. What law emanates from the EU, very compelling reason why something that your clients will lifestyle do I want? What dream though all areas of law were you should be considering risk recognise … Apart from the do I want? Is this it? How do likewise affected. management – and that is the external benefits, we achieved a you know you are on track? “Knowledge of EU law impact of professional indemnity huge range of internal benefits, What is the prime role for you allows the Irish lawyer to add premiums on the profession. including a fantastic business personally this year, this month, value to the service she or he “The whole point about planning environment. A this week? Map where you want provides – and to be more enterprise risk-management planned business that knows to go by saying: ‘everything is competitive. It allows the Irish is that it embraces both risk where it’s going is one that is so possible’.” G
14 www.lawsocietygazette.ie analysis Law Society Gazette may 2010 Building trust in the new Kosovo The International Civilian Representative in Kosovo, Pieter Feith, spoke to the Gazette during a visit to Dublin – saying that he prefers persuasion rather than the threat of sanctions to get results peaking with the His executive authority former President of Ireland Mary SInternational Civilian includes powers to dismiss Robinson: “Without the rule of Representative in Kosovo, Pieter officials, to amend laws and to law, the dignity and equality of Feith, recently, the Gazette was “intervene when government all people is not affirmed and reminded of a quip about the actions run counter to their their ability to seek redress for Balkan conflicts: international obligations”. He grievances and fulfilment of “How many Bosnia war has taken “a soft approach” to societal commitments is limited.” correspondents does it take to this role, he says, preferring “This must not be so in the change a light bulb? to “persuade the government” case of Kosovo,” he said, noting “You don’t know?! Of course rather than relying on the that progress was being made. you don’t know – you weren’t threat of sanctions. “I build my “It is encouraging to see the there!” actions on the principle of local establishment of new judicial (The joke is from the responsibility.” institutions, new entities that former war correspondent Ed have recently handed down The International Civilian Represent- O’Loughlin’s recent debut novel, Will of the people ative in Kosovo, Pieter Feith legally sound, well-reasoned Not Untrue and Not Unkind.) That principle evidently runs opinions in a case involving The Gazette started the deep in his attitude to Kosovo. the situation may be clarified community rights and in interview by asking Feith for a The argument on Kosovan later this year by a judgment addressing elections challenges. brief explanation of his mandate. sovereignty centres on questions from the International Court In the fight against corruption Five minutes and multiple of international law. Kosovan of Justice, which is due to issue and fraud, this judicial acronyms later, and despite independence, which entailed an advisory opinion on the independence becomes even the patience and clarity with its secession from Serbia, was legality of Kosovo’s declaration more of an imperative.” which they were explained, this not explicitly authorised by of independence under inter- The prospect of eventual EU reporter was reeling. Feith is a United Nations’ Security national law. membership for Kosovo and both the International Civilian Council resolution and was In the meantime, Feith takes Serbia was “hugely helpful” in Representative (ICR) in Kosovo arguably in violation of existing a pragmatic approach to his promoting development there, and, under an entirely different resolution 1244. This resolution, mandate in Kosovo, taking the he said, as it provided motivation mandate, the EU Special which established the UN view that it is vital, in any case, for the public and a source of Representative (EUSR). “I wear administration in Kosovo in that the EU facilitate economic discipline for the political system. two hats,” he noted, wryly. 1999, after the Kosovan war, development and the imposition “The attraction of the EU helps The tricky thing is that the guaranteed respect for the of the rule of law in Kosovo. people overcome their ethnic hats do not necessarily match. territorial integrity of the former The rule of law is the “crucial past. It is, indeed, the best way to As ICR, Feith was appointed Yugoslavia – a principle which, area” being focused on by the deal with the past.” by a steering group of a it is argued, was violated by EU in Kosovo, he says, with Concluding on an optimistic selection of those states that Kosovo’s secession. the EU’s rule of law mission, note, he said that the overarching have recognised Kosovo since As Feith points out, however, EULEX, employing some 1,600 theme of the European mission its unilateral declaration of resolution 1244 also guaranteed international police officers, in Kosovo was “to ensure independence in February 2008 respect for the will of the people. judges, prosecutors and other eventual local ownership and (Ireland among them). As EUSR, “It was the very clear wish of the experts to help reform and a solid European identity. A however, he represents the 27 Kosovar Albanian majority to embed the Kosovan legal system. certain dynamism and hope has member states of the European become independent,” he says. descended all over Kosovo”. Union, some of which, such as With the failure to achieve a Challenges facing Kosovo He also referred to the Spain, do not recognise Kosovo’s consensual outcome after years In a lecture at the Institute of withdrawal of the Irish independence. of negotiations with Serbia on International and European contingent with KFOR, the If that two-fold mandate the status of Kosovo, “it became Affairs in Dublin on 13 April, NATO-led international security were not complicated enough, clear that there was simply no Feith outlined the challenges force in Kosovo, last month, by he also has to balance roles as alternative to independence”. facing Kosovo in this area, acknowledging the “enormous both an advisor to EU presences The legal situation was including the fight against contribution made by Irish in Kosovo as EUSR and as complicated by the fact that organised crime and corruption soldiers in Kosovo”. G someone with executive powers international law “has no and the need to revamp the in his own right as ICR. It is rules about declarations of judicial system. Colin Murphy is a freelance fortunate, clearly, that Feith – independence”, he says. “The rule of law is the journalist. (The text of Pieter by temperament as well as by Though the above bedrock on which all democratic Feith’s address is available at www. profession – is a diplomat. interpretation can be contested, states rest,” he said, and quoted eusrinkosovo.eu).
www.lawsocietygazette.ie 15 Law Society Gazette MAY 2010 analysis
Fundamental education ‘is a right for all age groups’ The right to education for adults with disabilities – denied by the Supreme Court in Sinnott v Minister for Education – is a right for all age groups in international law, writes Joyce Mortimer
n 30 March 2010, the Irish disability, their parents and as against relevant international narrowly interpreted as ending OHuman Rights Commission care workers are their human human rights benchmarks. at an arbitrary age – 18 years (IHRC) published an inquiry rights defenders. Our inquiry With regard to the right to … the ultimate criterion report into the standard of has found that the human rights education, domestic legislation in interpreting the state’s care provided by the John Paul of the individuals in the centre (the Education for Persons with constitutional obligation to Centre in Galway. The centre have not been fully protected. Special Education Needs Act 2004 provide for primary education of is a residential home for adults There are severe gaps in service and the Disability Act 2005) the grievously disabled is ‘need’ with severe to profound learning because the centre has not been does not apply to individuals not ‘age’.” disabilities. A group of parents properly supported. Lack of over the age of 18 years and, While the High Court approached the IHRC regarding speech and language services therefore, has little relevance to focused on the needs of the the care and welfare of their are hampering people’s ability the people resident in the John individual, the Supreme adult children living in the to communicate, while the Paul Centre. Court, on appeal, focused on John Paul Centre. The parents physical conditions at the centre The right to education for chronological age instead. expressed their concerns that are more suitable to children adults (over 18 years of age) Geoghegan J stated: “I am their children’s human rights than adults. All of these issues with disabilities was denied unable to discern in article 42, were not being respected or are having a detrimental impact by the Supreme Court in no matter what contemporary protected. on the dignity and wellbeing the case of Sinnott v Minister interpretation one gives to it, President of the IHRC, of the people affected. Urgent for Education. Barr J in the any justification for the view Dr Maurice Manning, stated: action is needed to increase High Court rejected the age that it continues to apply into “The people at the heart of multidisciplinary services, limitation of 18 years, stating: adulthood.” Murray J held that this inquiry are one of the most including speech and language “There is nothing in article 42.4 article 42 is “child centred”. vulnerable groups in our society. and occupational therapy in which supports the contention Dissenting, Chief Justice They are adults, many of whom particular.” that there is an age limitation Keane said that the state was have been living at the centre on a citizen’s right to ongoing “obliged by article 42.4 of the since they were children. Many Standard of care primary education provided Constitution to provide for of them have never benefited The IHRC measured the by or on behalf of the state. free primary education for from interventions now available standard of care provided in the It is evident that the right the plaintiff appropriate to his to children. As a result of their John Paul Centre in the context to primary education would needs for as long as he was severe to profound intellectual of domestic legislation, as well be fundamentally flawed if capable of benefiting from the one to watch: new legislation Arbitration Act 2010 Domestic/international alignment act will apply the Model Law to all be given a full opportunity to The Arbitration Act 2010 was The Arbitration Act 2010 brings arbitrations in Ireland and hence present his case. passed by the Oireachtas Ireland’s arbitration rules in line streamlines the procedure. on 8 March, and has been with international standards. Costs signed into law by the The new legislation applies Number of arbitrators Under the current framework, any President. The act will apply to the UNICTRAL (United Nations’ The Arbitration Act 2010 agreement on costs can only be all domestic and international Commission on International Trade states that the parties are free made after the dispute has arisen arbitrations that commence Law) Model Law. The 2010 act to determine the number of and not prior to. Under section 21 after the legislation comes repeals and replaces preceding arbitrators. Failing such a decision, of the new legislation, parties have into operation. Irish legislation, that is, the the number of arbitrators should the option to agree allocating cost The 2010 act comes into Arbitration Act 1954, the Arbitration be three. prior to, or post, the dispute. operation on 8 June 2010. It Act 1980 and the Arbitration is noteworthy that arbitration (International Commercial) Act Equal treatment of parties Reasoned awards clauses contained in agreements 1998. Until now, there were Article 18 of the Model Law states According to article 31 of the existing prior to 8 June 2010 will separate rules for domestic and that the parties shall be treated Model Law, the award shall state be subject to the old rules. international arbitrations. The 2010 with equality and each party shall the reasons upon which it is based,
16 www.lawsocietygazette.ie analysis Law Society Gazette may 2010 human rights watch Fundamental education ‘is a right for all age groups’ same”. The Chief Justice stated: delivery systems must be devised “No principled basis exists in which are suitable for students law or in the evidence for the of all ages.” contention … that a person … The most recent relevant ceases to be in need of primary piece of international legislation education at age 18, at age 22, is the United Nations’ or at any stage in the future Convention on the Rights of which can now be identified Persons with Disabilities, article with precision.” 24 of which protects the rights of persons with disabilities to No protection under Irish law education. “This landmark Finding no protection under convention is a powerful tool to Irish law, the IHRC looked achieve the right to education,” to the international legal states Kenneth Eklindh, chief framework for guidance. On of UNESCO’s Section for the specific issue of age, the Kathryn Sinnott outside the Supreme Court in 2001 Inclusion and Quality Learning IHRC highlights the views of Enhancement. the European Committee on conceptual thinking was evident Significantly, regarding the In its analysis, conclusions Social Rights (ECSR). In the in the United Nations’ legal right to education for adults and recommendations, the Irish case of Association International framework on the right to with disabilities, the CESCR Human Rights Commission Autism-Europe (AIAE) v education. The report quotes stated: “It should be emphasised states that, “notwithstanding France, the ECSR held that the from General Comment that enjoyment of the right to the position articulated by right to education under the No 13 of the Committee on fundamental education is not the domestic courts in Sinnott European Social Charter applies Economic, Social and Cultural limited by age … it extends v Minister for Education, as a to all people with disabilities, Rights (CESCR), where it to children, youth and adults, matter of international law, it irrespective of their age. The states: “Education is the primary including older persons. questionable whether the state IHRC also examined state party vehicle by which economically Fundamental education, can justify the non-provision conclusions, finding that the and socially marginalised adults therefore, is an integral of any educational facilities to ECSR believes that there ought and children can lift themselves component of adult education them in their adulthood”. G to be no distinction between out of poverty and obtain the and lifelong learning. Because older and younger adults. means to participate fully in fundamental education is a right Joyce Mortimer is the Law Society’s Much more advanced their communities.” of all age groups, curricula and human rights executive.
unless the parties have agreed award may be set aside by the • The composition of the arbitral involves a claim for an amount otherwise. court if: tribunal or procedure was not in under €5,000, unless (s)he agrees • a party was under some accordance with the agreement to the arbitration after the dispute ‘Case stated’ change incapacity, of the parties, has arisen or the agreement has The new legislation does not make • The agreement was not valid • The subject matter is not been individually negotiated. provision for the ‘case stated’ pro- under law, capable of settlement by cedure. Arbitrators will, therefore, no • The party making the application arbitration under law, Functions of the High Court longer be able to refer questions of was not given proper notice of • The award is in conflict with According to section 9 of the new law to the courts for interpretation. the appointment of an arbitrator, public policy. legislation, the functions of the or of the arbitral proceedings, High Court will be performed by the Recourse against award • The award deals with a dispute Small claims president or such other judge of the The sole method of challenging not falling within the terms of According to section 31 of the High Court as may be nominated by an arbitration award is by way of the submission to arbitration, new act, a party to an arbitration the president. G article 34 of the Model Law. The or contains decisions on agreement who is a consumer grounds specified under this article matters beyond the scope of the shall not be bound by an arbitration Joyce Mortimer is the Law Society’s are limited. It states that an arbitral submission to arbitration, agreement where the dispute human rights executive.
www.lawsocietygazette.ie 17 Law Society Gazette MAY 2010 comment letters
Send your letters to: Law Society Gazette, Blackhall Place, Dublin 7, or email: [email protected] Postcards from the edge From: a solicitor who was recently relevant employee of a possible made redundant impending redundancy as soon am a solicitor and, a short as possible. It is imperative Itime ago, I was made that the employee has time to redundant. I can honestly say prepare financially and, more that it was one of the most importantly, has time to deal harrowing experiences of my psychologically with the impact life. This was not due to the of being made redundant. In my fact that I was made redundant, case and with hindsight, I do but rather the way the whole believe my employer was aware procedure was handled by my for some time that I was to be employer. made redundant. I had absolutely no idea that Finally, as I said at the outset, I was being made redundant. difficult. Files I had been other staff even attempted to as a solicitor, being made I was, like all solicitors, fully working on were slowly but gain entry to the room for the redundant was and is, of course, aware of the decrease in surely taken from me. purpose of dealing with office difficult – but I can deal with business, and therefore I strove The dreaded day eventually administration matters. As you that. I was just disappointed and to work harder and, as a fee arrived, and that meeting can imagine, I just left – head saddened that my employer, earner, I became more vigilant with my former employer was reeling, heart pounding. when faced with a difficult about my fee income. I was, horrendous. My employer’s Times are tough, and I decision, failed abysmally to however, effectively ignored in speech was cold, callous and am sure it is not easy being be kind, honest and respectful my workplace by my employer calculating. As I struggled to an employer. I do believe, towards me. I deserved that. for a significant period prior take in the news, my employer however, that an employer has Good luck to all of you in the to the redundancy – that was took telephone calls, and a moral duty to inform the months ahead. Wanted: judgments on dangerous driving cases From: Gerard O’Keeffe, Park 20s, I believe that an objective Mallow by ambulance. On the “I went to Mr O’Keeffe with House, Kanturk, Co Cork view of a situation is better journey to the hospital, the my parents who acted for me in would appreciate it if the than a subjective one. I am driver of the other vehicle died. my case to deal with my claim IGazette would publish my encouraged also by the maxim “No fault was attributed and then, subsequently, I did request as to the furnishing of ‘It’s not what happens to you to my mother’s driving, or of work experience in his office. details relating to any judgments that is important – it is how you course, indeed to me. “Life took different turns in the District or Circuit Courts deal with it.’ “I was in third year in for me and I am now a legal in relation to dangerous driving “Some ten years ago, in my secondary school at the time, executive working for Mr and other driving cases, or mid teens, I went one night to and my ambition was to join an O’Keeffe, my intention being indeed any other unpublished a film in Kanturk. My mother international Irish step dancing to do, initially, a diploma in law judgments. picked me up after the film and, troupe. I had won a number of in UCC, then do a degree in In explaining my request, on our return, a vehicle came both national and international law and, subsequently, qualify I would draw the attention of across the road, destroying my prizes as to Irish dancing. as a lawyer. Gazette readers to the foreword father’s car and causing injury “The accident was such “My tangential initial of the second edition of to my mother, who was the that whilst I was financially intention is to attempt to Dangerous and Other Driving driver, and I, who was the sole compensated, I could not ascertain as to how many Cases, by O’Keeffe and Hill, passenger. pursue my career as a dancer. drivers over the age of 25 years which foreword was written “The gardaí and ambulance I am given to understand that are those who are convicted of by legal executive Christina arrived and my mother and most Irish dancers have a career excess alcohol. I believe the rule Aspell: I and the driver of the other until they attain the age of of thumb is approximately two- “As someone in their mid- car were taken to hospital in approximately 30 years. thirds are over that age.
18 www.lawsocietygazette.ie comment Law Society Gazette may 2010
“Younger drivers seem to be This applies, of course, more much more careful as to driving so in rural areas where transport with excess alcohol and, indeed, is difficult and, sometimes, very make use of taxis. expensive to obtain…” “It is my intention to I also have a suggestion circulate all judges of the to make, namely that since District Courts of Ireland as there are many thousands to whether they have given of solicitors in practice and written judgments in driving appear before judges who do cases, to include excess alcohol not know them, nor they he cases, in the hope they will give or she, that when they start to me copies of such judgments, address the court, they hand in with their permission to publish to the court registrar a copy of same, or extracts therefrom. their business card so that the “As a matter of practice, Gerard O’Keeffe and Christina Aspell are looking for copies of District judge and they may be more perhaps, the District Court and Circuit Court judgments in relation to dangerous driving cases capable of communicating in Rules should be amended, a less treadmill-like fashion, thus allowing a defendant it appears, in many areas, an it is proven to the court that primarily as to a judge referring once a summons has been initial application has been a defendant relies totally on to them by their full name in served on him, to immediately made to the court for same. being capable of driving for appropriate cases. apply personally or through “It appears to me also, his livelihood, and that his or In relation to my request his solicitor for copies of the and this is indicated in the her disqualification would be above on behalf of Ms Aspell, I appropriate garda, civilian introduction in the first edition, in respect of particular hours would appreciate it if judgments and other documents and that consideration should be of particular days to enable could be sent to the postal statements of relevance given to amend legislation in he or she to continue on as a address above, or by email to concerning a prosecution, as cases of excess alcohol where breadwinner. [email protected]. G
www.lawsocietygazette.ie 19 Law Society Gazette MAY 2010 comment
Innocent until proven guilty – or not? The garda vetting procedure, ostensibly introduced to protect children and the vulnerable, is leading to breaches of people’s human and constitutional rights, argues Fergal Mawe
oday, if one applies for a Tposition as a teacher, social worker or volunteer that in any way involves interaction with children or vulnerable groups, he or she undergoes a garda vetting procedure. This involves the applicant signing a vetting form that states the position for which they are applying, the organisation to which the application applies, and an authorisation to allow the Garda Vetting Unit to release all information to the prospective employer in relation to any conviction or prosecution – successful or not. This type of information is referred to as ‘hard information’. In the ‘declaration of applicant’ section of the garda vetting form, notice is drawn to line three, which refers to “a statement of all convictions and/or prosecutions, successful or not, pending or completed, in the state or elsewhere as the case may be”. Say, for instance, if one were to be charged, the right to earn a living, the prosecuted – but not right to privacy, as well as a convicted – the Garda fair trial and a presumption of Vetting Unit would still innocence. To put it simply, inform the employer winning if we are to live with a just that the applicant had the position legal system based on the been prosecuted, severely presumption of innocence, even if the outcome damaged, if not an individual ought not to be had been a not totally eroded, due to prejudiced by prosecutions guilty verdict. the suspicion of a criminal that did not lead to a criminal To this end, history and an inference of conviction. the applicant guilt. On this point, it is hard would not to see a series of breaches Striking a balance undoubtedly of a person’s human and While we should not forget have his or constitutional rights – namely that the purpose of the vetting her chances of the right to a good name, procedure has an honourable
20 www.lawsocietygazette.ie comment Law Society Gazette may 2010 viewpoint Innocent until proven guilty – or not?
intention of protecting children to the full realisation of is envisaged that vetting will fell within the remits of section and the vulnerable (and they the ambitious plan to make come to consist of releasing 115(7) of the Police Act 1997, undoubtedly deserve the criminal history vetting both ‘hard information’ and as the police must give due highest level of protection), available to all relevant sectors ‘soft information’. weight to the applicant’s right the measures implemented, and organisations.” In reading article 40.1 of to respect for his or her private on the other hand, cannot be the Constitution, one will see life. taken to be absolutes over all National vetting bureau that a citizen is entitled to The main findings from this other human and constitutional Currently, and rather his or her good name, and, as action are that: rights. In essence, a just interestingly, there is no such, is entitled not to have a • It should no longer balance needs to be struck legislation that allows for the job application ruined because be assumed that the between (a) preventing vetting outlined above to take somebody once reported them presumption is for individuals from having their place, or for the Garda Vetting to the gardaí for ‘suspicious disclosure, careers blighted and rights Unit to carry on its business, activity’. This, in turn, could • Child protection procedures infringed and (b) protecting or even for the drafting of the easily determine the future should be proportionate and children and the vulnerable. declaration (reproduced on the employment prospects of an contain adequate safeguards, The current system lacks this left), which, in individual who and balance and proportionality, turn, brings us to did nothing • Soft information may as an individual’s rights can the issue of new illegal or constitute nothing more inappropriate. be damaged by unreliable National Vetting “Currently, than allegations or mere charges, including even minor Bureau Bill, In Britain, a suspicion of matters that are out-of-date prosecutions – for which is due by and rather similar procedure disputed by the applicant. the end of August exists where an example, the person who was interestingly, caught smoking cannabis at the 2010. applicant has to In the future, where age of 16 and given a probation The current there is no get an ‘enhanced doubts exist, the individual Minister of State clearance order. From this, one could legislation shall be allowed to make rightly call into question the for Children, certificate’ if representations before the purpose of having a criminal Barry Andrews, that allows for (s)he wants information is released. It was stated in to work with record system if a charge and vetting to take also rightly pointed out that if prosecution were deemed December 2009 children or proportionality is not achieved, sufficient to warrant third- that preparation place, or for the vulnerable it will not only fall foul of the of legislation was groups. This party consideration. Garda Vetting convention, but will redound However, it is not just under way for the allows every to the disadvantage of the very employer or voluntary establishment of Unit to carry on criminal group they are designed to a national vetting conviction, organisations, clubs and church its business” protect. groups that have taken to bureau, where caution, spent Overall, one can argue that vetting, but also universities. both ‘hard’ and conviction and the current releasing of ‘hard In UCD, for example, there ‘soft’ information any information information’ is a breach of are currently a total of five would be that the chief one’s rights. The soon-to-be- undergraduate courses and collected, stored and officer of police considers to be proposed releasing of ‘soft six postgraduate courses exchanged. ‘Soft information’, relevant, to be included, as set information’ is an extreme that require the applicant to in the words of the Joint down in section 115(7) of the violation of human rights complete the vetting procedure Oireachtas Committee on the Police Act 1997. and has been criticised in outlined above. What’s to Constitutional Amendment on Britain. To this end, and in the stop every other employer, Children, refers to information Legal assessment interest of maintaining a sound university and NGO in every on matters such as allegations In December 2009, the House Constitution, the releasing of other sector from following or criminal investigations that of Lords revisited the legality such information should be suit? And, in the words of do not result in a criminal of this in L, R v Commissioner challenged. G the then Minister of State for conviction. Practically of Police of the Metropolis. While Children, Brian Lenihan, it speaking, this will mean the plaintiff failed in her Fergal Mawe MA is awaiting would seem that this might rumours, gossip and unproven action, the court noted that admission to the Roll of well transpire: “I look forward allegations and, to this end, it article 8 (privacy) of the ECHR Solicitors.
www.lawsocietygazette.ie 21 Law Society Gazette MAY 2010 cover story Fairy tale of New York
It’s no secret that newly qualified solicitors and even law students are looking abroad for brighter opportunities. For those considering America – specifically New York – Patrick Mair asks whether the Big Apple holds out much promise for Irish-qualified solicitors
t a time when solicitors’ firms in Ireland are faced with exceptionally difficult circumstances, newly qualified solicitors and even law students (who would in better times have easily obtained traineeships) are looking abroad for brighter opportunities. America, and NewA York in particular, was traditionally and remains today a favoured destination for the Irish. But in the aftermath of the worst economic crisis in 80 years, does New York hold as much promise for Irish-qualified solicitors and what are the options for those looking to try their hand at the practice of law in the Big Apple? The first wave of Irish lawyers to seek their fortune in New York began to arrive in the mid to late ’80s when, like today, Ireland’s economy was in the doldrums and opportunities were scarce. New York, on the other hand, was booming because of the rapid expansion of the financial services sector (interrupted, of course, by the 1987 crash), and law firms were riding the crest of the wave. These early arrivals blazed a trail that main points many would later • irish lawyers follow, and it was blaze a trail in because of the new the US of the ground broken ’80s and ’90s by this first • getting a foot in wave that later the door arrivals could • no typical route reasonably to follow expect their Irish
22 www.lawsocietygazette.ie cover story Law Society Gazette may 2010 Fairy tale of New York
credentials to be recognised and respected. must be clever, hard working and determined to Over the succeeding decade, all but a handful of succeed. For all that, though, associates are very well that first wave of lawyers eventually returned home, paid. Last year, for instance, the standard starting as Ireland’s economic situation improved and the salary for an associate in the large commercial firms need for solicitors spiked. With their invaluable was $160,000. experience of sophisticated commercial transactions Sinead Carroll, who trained with Arthur Cox in and litigation, many went on to fill the partnership Dublin before moving to McCann FitzGerald for ranks in Ireland’s large commercial firms. Among three years and then to a large Wall Street firm in that number, for example, is John Coman, head of New York, observes that, while she works very long inward investment at A&L Goodbody; Grace Smith, hours in New York, she also worked these hours in head of IP in McCann FitzGerald; and Dublin, and the tasks she performs Pádraig Ó’Ríordáin, managing partner day to day are similar to what she of Arthur Cox. was doing before. There are other “It can be hard big differences between the two New York belongs to me for an Irish work cultures, though, which can While numerous Irish lawyers who diminish the quality of a New York returned to Ireland from New York lawyer to get associate’s life. In particular, says in the early days of the ‘Celtic Tiger’ their foot in Sinead, associates are expected to be achieved great success, many of those available at all times. And at the start who put down roots in New York and the door, but of her time in New York, Sinead found remained there did very well also. Clare once it’s in, the working environment very formal O’Brien, for instance, who in 1985 compared with what she was used to in arrived in New York as a newly minted everything Ireland. solicitor from Eugene F Collins, is is up to you. now a highly regarded mergers and Empire State of mind acquisitions partner in the international Irish lawyers But given the significant number of law firm Shearman & Sterling. Like are well able Irish-qualified lawyers practising in many Irish solicitors who moved to New York, it is clear that Irish-trained New York, Clare’s start in the city was to hold their lawyers can do very well there, despite not smooth. The city’s law firms were own against the more intense and, some might not accustomed to assessing applicants say, cut-throat working environment. with foreign qualifications. So, despite Juris Doctor Ronan Harty, who came to New her impressive credentials, after 30 students” York over 20 years ago and is now a applications around the city, all she had partner in Davis Polk (a prestigious were 30 rejection letters. Eventually, commercial firm), agrees. “It can be Clare was able to get a job in a small hard for an Irish lawyer to get their firm with the help of a friend, and two years later foot in the door, but once it’s in, everything is up to moved to Shearman, where she went from strength to you. Irish lawyers are well able to hold their own strength. against Juris Doctor students.” (Juris Doctor or ‘JD’ Life in the big corporate firms of New York can be students are those studying for their Doctor of Law very pressurised, stressful and demanding. Working or Doctor of Jurisprudence degree, the primary hours are typically very long, and the working professional law degree in the US.) That is the case environment can place great strain on an associate. even though the large commercial firms recruit To keep their head above water, let alone rise to the heavily from the top law schools in America, like top of the ranks and become a partner, an associate Harvard, Yale, Columbia and others, where admission
www.lawsocietygazette.ie 23 Law Society Gazette MAY 2010 cover story
Pádraig Ó Ríordáin (managing Grace Smith (head of IP in John Coman (head of inward partner of Arthur Cox) McCann FitzGerald) investment in A&L Goodbody)
is fiercely competitive and the pressure to succeed law school graduates is predictable, orthodox and among some of the brightest minds in the country is uniform. In contrast, for Irish qualified lawyers who unrelenting. do not have those conventional hiring procedures But just how easy is it for Irish-qualified solicitors available to them, it can be a tedious, uncertain and and law graduates to find work in New York law frustrating process. firms, and how should they go about looking for it? Every Irish lawyer in New York has their own story The key to Gramercy Park about how they got their job, and there is no typical Given those obstacles, Sinead Carroll thought at first route into New York law firms for an Irish-qualified that she had no hope of finding a job as a corporate lawyer to follow. One thing for certain, however, lawyer in New York. Despite her excellent credentials, is that the recruitment procedures differ hugely Sinead looked for two years before landing her between foreign-qualified lawyers and American law current job. In the end, it was her experience and school graduates. Traditionally, New York law firms expertise developed over the years in Ireland that would populate their ranks by hiring students in their got Sinead her offer – but getting to that point was a second year of law school for the following summer, tortuous process and took no small determination. wining and dining them, and paying them a very Having good legal experience may not only generous salary for their summer’s work. An offer increase the chances of being hired, but can also ease of full-time employment would invariably follow. the transition into the new working environment. Accordingly, the recruitment procedure for American Lorna Bowen, for example, a partner in the New York
CITY OF DREAMS? As well as knocking on doors and building up contacts, of obtaining an LLM in the hope of finding a job one route that is increasingly common among Irish afterwards is not without its risks. lawyers wishing to work in New York is to undertake Yet another step that Irish lawyers take in an effort an LLM degree in a US university. Costing upwards to make themselves more attractive to employers is of $40,000 for tuition fees alone, an LLM can be to sit the New York bar exam before even embarking very useful in getting one’s foot in the door of a firm, on the job search. For the commercial firms in New as it demonstrates a candidate’s ability to perform York, however, while it is expected that associates alongside US law students – and it introduces a will become admitted to the bar, being admitted or foreign-qualified lawyer to the US legal system. Indeed, not is largely a peripheral concern when making hiring for some firms in New York, it is mandatory for foreign decisions. Sinead Carroll, who only sat for the exam applicants to have a US LLM degree if they are to be after she started working in her firm in New York, says: seriously considered. “If a firm is going to offer you a job, having passed the When Irish lawyers contact Clare O’Brien, for New York bar exam already will not tip the scale one instance, seeking advice on how to land the big way or another.” job, Clare normally tells them to “be prepared to That, however, has not stopped many people from spend time and money getting a qualification”. But studying in Ireland for the exam, sometimes at a cost giving no guarantee of success, the costly enterprise of almost €4,500.
24 www.lawsocietygazette.ie cover story Law Society Gazette may 2010
Ronan Harty, partner in Sinead Carroll, who works with a Lorna Bowen, partner in the Davis Polk large Wall Street legal firm New York office of Linklaters office of the international firm Linklaters, believes “Securing a position in the New York legal world that “the practical experience gained from being a has always been difficult for foreign-educated and trainee in a solicitor’s firm can better prepare you trained solicitors, but in the last few years, the for day one of being a qualified lawyer than being in challenge has been immense. Networking, pounding law school, where practical experience gained from the pavement – both literally and virtually – has to be summer placements tends to be less meaningful”. broad and deep, and downright dogged. Even then, Lorna says that she was very well prepared by nothing may come for some time, and, in the end, her traineeship and post-qualification experience in it usually takes a lucky break, whether it’s through Matheson Ormsby Prentice for life catching someone on the right day, or as a New York lawyer. While at first happening upon a position that has just there was a huge amount of US law to “You really become open.” get her head around, she found herself While commercial firms in New well prepared for the extra challenge need contacts. York are open to foreign-trained lawyers because of her experience in a busy Sending – and Irish lawyers have a good record and growing practice, with a large, of success – landing a job in a New York international (and demanding) client out CVs firm is fraught with difficulty and the base in Ireland. speculatively life of a lawyer, once hired, is tough. While having strong qualifications For those who persevere, however, and experience is necessary to get the will get you the rewards can make the effort big job, it is not sufficient. Sinead nowhere. worthwhile. G Carroll cautions that “you really need contacts. Sending out CVs speculatively Reaching out Patrick Mair is from Dublin. He qualified will get you nowhere. Reaching out to to a contact as a barrister in Ireland but a contact might get that CV under the currently practises law nose of the person who needs to see it.” might get that in a firm in New Lorna Bowen agrees: “If you are a CV under the York. non-traditional candidate, in that you are not coming up through the US law nose of the school hiring programmes, the only person who way a CV will be looked at is if the person sending it in has some kind of needs to relationship that they can rely on in see it” getting someone to make the effort. Building relationships is essential.” Luckily, there are numerous organisations in New York that help newcomers foster relationships and make contacts. One such organisation, IN-NYC (www.irishnetwork-nyc. com), is chaired by John Murphy, a Wexford native and an associate in Linklaters. John advises Irish lawyers moving to New York that hard work and determination are needed to land a job.
www.lawsocietygazette.ie 25 Law Society Gazette MAY 2010 local authority housing Safe as houses Local authorities are coming under pressure to offload unsold affordable homes, originally built to accommodate those unable to buy during the boom. Mairead Cashman reveals a new strategy by Dublin City Council to move these unsold units off their books
he majority of the population lived in During the property boom of the 1990s, it became appalling conditions in the late 19th increasingly difficult for first-time buyers to afford century. We have all heard of the slum to purchase a house. The legislature recognised tenements in our cities and the crowded that some mechanism was needed to facilitate the botháns scattered around the countryside. purchase of a home at an affordable price. Part V of TThe first legislative milestone tackling the primitive the Planning and Development Act 2000 specified that conditions under which people lived was the Housing a local authority development plan should include of the Working Classes Act 1890, which represented the a housing strategy providing for the housing of the initial major attack on poor living standards. Since the “existing and future population of the area” (section foundation of the state, various Housing Acts conferred 94(1)a). Section 96(1) of the 2000 act indicated that powers on local authorities to provide housing for a certain percentage of land zoned for residential use those who were unable to do so from their own should be reserved for the provision of social and resources. affordable housing. Section 96 also provided that the The foundation stone of housing policy throughout planning authority could enter into agreements with the state is the Housing Act 1966. The primary developers for the provision of social and affordable element of the 1966 act is the duty of local authorities housing. The Planning and Development (Amendment) to provide housing for those who are unable to Act 2002 gave the local authorities greater flexibility provide accommodation for themselves. The 1966 in terms of allowing better value to be achieved for act also introduced provisions allowing social housing the local authority in negotiating ‘part V’ agreements tenants to purchase their own homes by means of with developers. main points a transfer order (tenant purchase). The idea was to • social and condition people to the idea of home ownership and Discounted-price housing affordable to reduce the dependency on social housing. The In addition, section 99 of the 2000 act allowed for housing 1966 act also introduced restrictions on the sale of the provision of housing at a discounted price to • dcc to houses, thus ensuring that there was sufficient social eligible persons. It introduced a provision for controls introduce pilot housing stock for those in need of it. on the resale of ‘part V’ housing by introducing a ‘rent-to-buy’ The Housing Act 1988 broadened the local clawback, based on a formula being the percentage scheme authority housing function to include the provision of difference between the market value and the • at the coalface: loans to enable people to either construct or purchase affordable (discounted) value. Sections 9 and 10 of DCC’s law their own houses and give grants or loans for the the Housing (Miscellaneous Provisions) Act 2002 also department reconstruction or improvement of existing housing. introduced similar clawback provisions for affordable
26 www.lawsocietygazette.ie local authority housing Law Society Gazette may 2010
housing that was developed on lands owned by the as the market value of the properties has now fallen local authority. The local authorities also entered below the affordable value. Another factor affecting into negotiations with certain lending institutions affordable sales is that financial institutions have that introduced loans for the purchase of affordable changed their credit policy and restricted their housing. The Housing (Miscellaneous Provisions) Act lending criteria for affordable housing purchasers. 2004 enabled the clawback to be registered as a They will not now provide a mortgage unless a charge on the property, ranking as subsequent to the minimum of 20% loan-to-market value of the bank’s charge. property is in place. In addition, they will not provide Prior to 2006, national house prices had risen by loans for one-bed apartments. an annual average of 14.9%. Since then, property The Department of the Environment, Heritage prices have returned to 2003/2004 values. Due to the and Local Government (DOE) issued a circular in downturn in the property market, the affordable units April 2009 (circular AHS1 2009) setting out measures are no longer affordable and no longer marketable, to deal with unsold affordable homes. Those
www.lawsocietygazette.ie 27 Law Society Gazette MAY 2010 local authority housing
DCC’S LAW DEPARTMENT The current law agent of Dublin City Council, prosecutions), and personal injury defence litigation. Terence O’Keeffe, heads a department of 55 staff, The department provides legal advice to all comprising 16 solicitors, three trainee solicitors Dublin City Council departments in relation to its and administrative staff. The DCC’s law department local authority functions within the Dublin city area, is subdivided into three sections – conveyancing, for example, planning, waste, housing, roads, chancery litigation (including judicial review and development, culture and recreation.
measures included the immediate implementation of were developed by DCC on its own lands. In recent a marketing and sales strategy to deal with the unsold months, DCC has received approval to transfer 443 units, and the transfer of units to local authority unsold affordable homes to short-term social leasing. housing stock for the purposes of social housing for a DCC will be launching a pilot rent-to-buy scheme five-year period. in relation to three of its affordable housing schemes Dublin City Council (DCC), in conjunction with in May 2010. Within the past few months, DCC has the DOE, is about to launch a pilot ‘rent-to-buy’ been successfully operating the 2009 local authority scheme to deal with the remaining unsold units. loan under the Law Society certificate of title system.
Local authority loans At the coalface Local authorities are also lenders, The law department of DCC (see giving loans to tenants to facilitate panel) has been at the coalface the purchase of their dwellings and “During the of housing legislation since the loans to first-time buyers who wish introduction of the 1966 act. This to get on the property ladder. The housing boom, department has been responsible for tenant-purchase scheme introduced the workload drafting documents and implementing by the 1966 act allowed social housing new processes to deal with all tenants the opportunity to purchase for DCC’s law changes and new schemes effected their homes on favourable terms. The department by legislation. For example, the law Housing (Miscellaneous Provisions) Act department was closely involved with 1992 introduced the ‘shared ownership was substantial the DOE in drafting the clawback loan’. Under that scheme, the borrower and it was documentation for affordable housing. owns a portion of the property (usually Processes were set up to deal with under a 99-year lease) and the local necessary to the acquisition of ‘part V’ units, and authority retains ownership of the outsource some documents were developed (similar to remainder – a charge is registered over those used by developers’ solicitors) the leasehold interest in the ownership files to private to ensure the efficient turnaround of the borrower. Shared ownership solicitors, and sale of those units to affordable loans have had their day, however, purchasers within a few months of proving to be quite cumbersome as DCC did acquisition. Within the past year, the in their application, particularly in not have the department has been instrumental relation to apartment leasehold titles. in introducing the certificate of title One of the measures included in resources to system to the 2009 local authority loan. the DOE circular AHS 1 2009 was to deal with large This necessitated drafting all relevant increase the limit for local authority documents required to administer the loans to €220,000. This coincided volumes of loan, obtaining the relevant approvals with regulations in 2009, introducing cases” from the Law Society, and providing a new form of local authority loan that training to administrative staff in the authorised loans of up to 97% of the housing department. value of the property to those with During the housing boom, the income limits of up to €50,000 for single borrowers, workload for the law department was substantial and and €75,000 for joint applicants. With interest rates it was necessary to outsource some files to private lower than that offered by banks (at time of going to solicitors, as DCC did not have the resources to deal press), the local authority loan is now the best value- with large volumes of cases. for-money loan product in the market for first-time DCC was the first local authority to introduce a buyers. trainee solicitor scheme. Trainee solicitors were first DCC provided 3,269 units for the purposes appointed to DCC in 2006. This coincided with the of social and affordable housing between 2004 start of the busiest period of ‘part V’ acquisitions by and 2009. While most units were acquired under DCC (the number of affordable housing transactions part V of the 2000 act, over one-third of those units in DCC peaked to 724 units in 2008).
28 www.lawsocietygazette.ie local authority housing Law Society Gazette may 2010
look it up Legislation: • Housing Acts 1966, 1988 • Housing (Miscellaneous Provisions) Acts 1992, 2002, 2004 • Housing of the Working Classes Act 1890 • Planning and Development Act 2000 • Planning and Development (Amendment) Act 2002
Literature: • Circular AHS1 2009 (April 2009), Department of Environment, Heritage and Local Government
The downturn in the economy has resulted in the retention of the majority of legal work in-house in DCC. While there has been a decrease in housing transactions, there has been an increase in regulatory enforcement and personal injury claims. Luckily, Investigation of apartment booklets of title was the some of the newly qualified solicitors (trained by ideal training tool for trainee solicitors. Each trainee DCC) have been retained on contract, working in the was also charged with the sale of the individual units different sections of the law department. in that particular development and, thus, was very Although the number of affordable housing familiar with the title of the properties being sold. transactions has dwindled in the past few months, During the period of their traineeship, each trainee the law department continues to deal with the sale has been rotated between the three sections of the of affordable units and gives ongoing advice to the law department – chancery litigation, personal injury housing department in relation to its statutory social litigation and conveyancing – covering all aspects of housing and housing loan functions. This is, of the local authority’s statutory functions (including course, in addition to providing legal advice to DCC planning, waste management, housing and roads, for in connection with the multiplicity of operations example). Nine trainees have been tutored by DCC carried out by the local authority in Dublin city. G to date. Unfortunately, further trainees cannot be employed by DCC in the short term due to the recent Mairead Cashman is senior solicitorTHE NEXT in theTIME conveyancing YOU ARE IN TOWN WHY NOT AVAIL OF THE public service recruitment embargo. section of Dublin City Council.LAW SOCIETY’S B&B FACILITY
SINGLE THEROOMS NEXT, OF WHICH TIME THERE AREYOU THREE, ARE ARE CHARGED IN TOWN WHY NOT AVAIL OF THE AT A RATE OF 45 PER NIGHT, WHILE TWIN AND € � ALL ROOMS HAVE BEEN FULLY RENOVATED TO THE HIGHEST STANDARD DOUBLELAW ROOMS, OF WHICHSOCIETY’S THERE ARE ALSO THREE IN B&B� ALL ARE EN-SUITE FACILITY TOTAL, ARE CHARGED AT A RATE OF €65 PER NIGHT � TV IN EVERY ROOM SINGLE ROOMS, OF WHICH THERE ARE THREE, ARE CHARGED � ALL ROOMS� TEA HAVE AND BEEN COFFEE FULLY MAKING RENOVATED FACILITY TO THE HIGHEST STANDARD � ALL ARE EN-SUITE AT A RATE OF €45 PER NIGHT, WHILE TWIN AND � FREE CAR PARKING � TV IN EVERY ROOM DOUBLE ROOMS, OF WHICH THERE ARE ALSO THREE IN � TEA AND COFFEE MAKING FACILITY TOTAL, ARE CHARGED AT A RATE OF 65 PER NIGHT € � FREE CAR PARKING
Tel: 01 672 4800
www.lawsocietygazette.ie 29 BUS AND LUAS SERVICES WITHIN WALKING DISTANCE TO TAKE YOU � CHECK-IN TIME IS FROM 2PM ONWARDS AND CHECK OUT TIME IS 10.30AM TO THE CITY CENTRE ON THE MORNING OF DEPARTURE THE NEXT TIME YOU ARE IN TOWN WHY NOT AVAIL OF THE WITHIN WALKING DISTANCE OF HEUSTON STATION � BREAKFAST SERVED FROM **AM TO **AM LAW SOCIETY’S B&B FACILITY BUS AND LUAS SERVICES WITHIN WALKING DISTANCE TO TAKE YOU TAXIS MAY BE BOOKED AT RECEPTION � CHECK-IN� TIMETO MAKE IS FROM A BOOKING 2PM ONWARDS CALL DEIRDRE, AND CHECK KAY OR OUT CAROL TIME ON IS 01 10.30AM - 672 4800 TO THE CITY CENTRE (PRICES ARE SUBJECT TO CHANGE - OCT 05) CLOSE TO THE FOUR COURTS ON THE MORNING OF DEPARTURE WITHIN WALKING DISTANCE OF HEUSTON STATION � BREAKFAST SERVED FROM **AM TO **AM MAY BE BOOKED AT RECEPTION THETAXIS NEXT TIME YOU ARE IN TOWN� WHYTO MAKE A BOOKINGNOT CALL AVAIL DEIRDRE, KAY OROF CAROL THE ON 01 - 672 4800 LAWCLOSE TO THE FOURSOCIETY’S COURTS B&B(PRICES ARE SUBJECT TO CHANGE FACILITY - OCT 05) Law Society Gazette MAY 2010 pensions law EGG ON YOUR FACE The Law Society has established a Pensions Law Sub-committee. Deborah McHugh, Fiona Thornton and Deirdre O’Riordan advise solicitors to focus on how pensions law could affect their practice and benefit their business
he Law Society’s Employment and Equality Law Committee has established a new sub-committee to deal specifically with the issue Tof pensions. The remit of the sub- committee is to monitor legislative and case law developments and to advise the profession on relevant pension-related matters. The sub-committee is chaired by the vice-chairperson of the main points Employment and Equality Law • society Committee, Michael Kennedy, establishes while Rory O’Boyle acts as Pensions Law secretary. The sub-committee Sub-committee also comprises Deborah • pension McHugh (Mason Hayes & entitlements – Curran), Declan Drislane (Arthur formal as well as Cox), Deirdre O’Riordan (Comyn side promises Kelleher Tobin), Fiona Thornton • pension benefits (LK Shields), James Campbell and marital (Matheson Ormsby Prentice), John breakdown Cuddigan (Ronan Daly Jermyn) and • occupational Maura Connolly (Eugene F Collins). pension Given the diverse range of areas in litigation which pensions law plays a part, the expertise of the constituent members
30 www.lawsocietygazette.ie pensions law Law Society Gazette may 2010 EGG ON YOUR of the sub-committee spans the practice areas of corporate transactions involving the purchase, sale pensions law, employment law, family law and tax law. and restructuring of businesses. For those solicitors, On 8 March 2010, the sub-committee convened for the conducting of due-diligence exercises on a target the first time in Blackhall Place and agreed among its company’s pension documentation, as well as the aims: drafting of indemnity and warranty cover, will be • The provision of a forum to which solicitors can second nature. However, for those solicitors who have recourse when seeking direction in matters of have never had reason to consider how pensions law difficulty concerning pension law practice, might affect their practice, they should consider the • To make representations, where appropriate, following areas where it will be encountered, and in to third parties insofar as the interests of the which specialist knowledge might be required. membership of the Law Society are concerned, • To feed into the professional practice course Severance agreements FACE modules, in the interests of effective training of Sometimes practitioners may be so wary of pension solicitors in the basics of pensions law, issues that they are not expressly included in the • To review and comment upon developments in terms of a severance agreement – or, worse still, are case law and legislation, and disseminate that accidentally included without either party realising commentary to the membership. that the ‘full and final settlement’ language covers pension benefits, and neither side actually knows Pension law specialists what the departing employee’s benefits are. The last in larger law firms thing that both sides will want is a dispute about will have been pension benefits after the settlement agreement exposed to has been signed. This can, and does, happen pension-related where the pension benefits are not dealt matters in the with when the severance terms are context of being negotiated. Whether you are acting for the employer or employee, you should always ask your client what the position is regarding pensions. You’ll need to enquire what formal pension entitlements there may be, as well as possible side promises, which might be dormant and not have been formally dealt with in the pension scheme. Under the disclosure regime of the Pensions Act 1990, a departing employee has to receive a leaving se/ rvice options statement (related to the pension scheme), which contains information about his/ her pension benefits. This must be given to the employee as soon as Make sure your pension nest egg practicable and, in any doesn’t end up event, within two months on your face of leaving service.
www.lawsocietygazette.ie 31 Law Society Gazette MAY 2010 pensions law
Depending on the facts and the nature of the separation or a divorce. pension rights (defined benefit, defined contribution To advise clients effectively, a solicitor needs to be or otherwise), it may be possible to include this fully conversant with common pension terms such statement into the terms of the agreement. Since the as ‘defined benefit scheme’, ‘defined contribution agreement will have been circulated in scheme’, ‘retirement benefit’, draft form, both parties then have the ‘contingent benefit’ and ‘reckonable opportunity to review and agree the “The service’, as well as understanding the terms of the benefits being provided. mechanisms for ensuring that their If there is any difference of opinion at establishment client’s interests are best served in the that stage, it can be aired during the of the context of any rights they may have in settlement discussions and all issues their spouse’s pension. addressed. Pensions Law If you are not familiar with pension Sub-committee practice, then you would be well Pension adjustment orders advised to engage the services of a All family law solicitors will, at some is a long- pension expert in order to advise the stage, have to advise a client in relation awaited step client in a focused and effective way to their and their spouse’s pensions in in those circumstances. The reality the context of a separation or divorce. forward for of getting it wrong and allowing a In circumstances of marital solicitors client to walk away from a settlement, breakdown, pension benefits are dealt oblivious to the value of the sizeable with under section 12 of the Family across the benefit, is asking for trouble. Law Act 1995 and section 17 of the country” Family Law (Divorce) Act 1996. These Pensions litigation acts introduced the concept of making In recent years, the value of orders over a person’s pension in separation and accumulated pensions has dropped considerably divorce proceedings. The orders that can be made are in some cases and, as a result, has given rise to an diverse and wide ranging and, in some circumstances, increase in challenges by scheme members against the pension can be the most valuable asset in a acts or omissions of either or all of the trustees, the
BASIC PRINCIPLES with regard to separation/divorce
There are some basic principles that should be and the date of the decree of separation or decree adhered to when dealing with pensions in the context of of divorce. A pension adjustment order over separation and divorce proceedings: retirement benefits can only be made for the period 1) Identify the correct trustees of the scheme, as of reckonable service up to the date of the decree. these must be notified of the proceedings pursuant 9) Enquire as to whether there are any additional to section 12(18) of the 1995 act and section voluntary contributions being paid by the scheme 17(18) of the 1996 act. member, as these will, more than likely, be paid 2) Obtain a copy of the trust deed and rules that into a different scheme that will require separate govern the scheme. pension adjustment orders. 3) Obtain the up-to-date member benefit statements 10) Be aware that an order over a contingent benefit pertaining to the pension scheme. can only be made within 12 months of the date of 4) Identify the benefits involved – retirement, the decree of divorce or separation. contingent, spouses and children’s pension. 11) Provide correct information and addresses for the 5) If necessary, engage an actuary to carry out a scheme member and the person in whose favour valuation and comparison of the values of the the order is made to the trustees. relevant pension. 12) Ensure to serve a notice to trustees in order that 6) Identify whether the schemes are defined benefit, the trustees may approve the draft order before defined contribution or other type of scheme, such lodging it in court. as a career average revaluation scheme or hybrid scheme, for example. The issue of pensions is not limited to separation or 7) Identify whether the schemes are state schemes or divorce cases in favour of husbands or wives. The Civil private schemes. Partnership Bill (originally published in June 2008) 8) Know the relevant dates when drafting pension proposes to make provision for various ancillary reliefs adjustment orders. These include the date of to be made by a court on the granting of a decree of marriage, the date of joining the scheme, the date dissolution of a civil partnership, including the making of entering the spouses’ and children’s scheme, of pension adjustment orders.
32 www.lawsocietygazette.ie pensions law Law Society Gazette may 2010
scheme is capable of delivering. In those cases, the look it up employer is potentially leaving themselves wide open to a breach of contract claim where the employee will Legislation: be seeking the value of that pension’s promise, or as • Civil Partnership Bill 2009 close as is actuarially possible to calculate. • Family Law Act 1995 It is crucial, therefore, when advising an employer, • Family Law (Divorce) Act 1996 that advice is given to ensure that procedures are • Pensions Act 1990 in place within an organisation to deal effectively with grievances as and when they arise. In that way, expensive, complicated pension litigation may be employer, the fund manager, the scheme actuary or avoided. the scheme administrator. All occupational pension schemes must now Long-awaited step possess a written internal dispute-resolution These are only some of the circumstances in which procedure that must be exhausted, in most cases, practitioners may come across pensions law in before the member may take his or her challenge to everyday practice. The establishment of the Pensions either the Pensions Board, the Pensions Ombudsman Law Sub-committee is a long-awaited step forward or to the High Court on appeal or in the first for solicitors across the country. The sub-committee instance. has a lot of work ahead and, in the first instance, So much of this expense can be avoided through welcomes observations from the membership on any effective communication with the scheme members aspect of the practice or provision of pensions law and by managing what information they are in receipt expertise in which it can be of assistance. G of. In particular, great care ought to be taken when drafting pension clauses in contracts of employment. Deborah McHugh, Fiona Thornton and Deirdre Oftentimes, what is stated in the contract regarding O’Riordan are members of the Law Society’s Pensions Law A6 advert:Layoutthe pension 1 promise24/02/2010 is contrary 18:03 to Page what 1 the pension Law Sub-committee.
SPECIAL OFFER FOR YOUR PRINTED STATIONERY PRINTING FOR THE MONTHS OF FEBRUARY, MARCH & APRIL PRINTING SINCE 1836
Same price for single, two or full colour letterheads on guaranteed laser paper FREE Memo Pads LETTERHEADS Customised with your PRICE (A4: 210x297mm) Company Details (A5 - 100 sheets per pad) 5,000 + 10 Pads FREE € 242.00 10,000 + 20 Pads FREE € 320.00 20,000 + 40 Pads FREE € 480.00 30,000 + 60 Pads FREE € 649.00 Price includes nationwide delivery to your door Prices for additional quantities or letterheads on watermark paper* are available on request. (*Free memo pads not available if order is on watermark paper) Print 10,000 Letterheads on 100gsm Guaranteed Laser Paper
and SAVE €460 Samples on Request
CONTACT OUR SUPPORT TEAM TODAY ON 043 33 50500 OR EMAIL [email protected]
Visit our company website www.turnersprinting.com And our template based commercial website for business cards & compliment slips www.swift2print.ie www.turnersprinting.com | www.swift2print.ie Turners Printing, Earl Street, Longford, Co. Longford Telephone: + 353 (0)43 3350500 Email: [email protected]
www.lawsocietygazette.ie 33 Law Society Gazette MAY 2010 nursing homes
Section 21 of the Nursing Homes Support Scheme Act 2009 regulates the appointment of care representatives who, when appointed, are empowered to take certain decisions on behalf of nursing home patients. James Mulcahy takes the temperature Duty of care
main points • Nursing Homes Support Scheme Act 2009 • Applying for ancillary state support • Role of care representatives in such applications
34 www.lawsocietygazette.ie nursing homes Law Society Gazette may 2010 Duty of care he Nursing Homes Support Scheme Act Additionally, in relation to every other matter 2009, which has been in operation in its under the act, section 47 provides that a “specified entirety since 27 October 2009, provides person” may act on behalf of the person requiring the legislative basis for the financial support care where the person is not of full mental capacity. scheme for those requiring long-term Care representatives are ‘specified persons’ for the Tresidential nursing care. There are three stages in the purpose in this regard. While they must be appointed process: the first involves an application for a care- for the purposes of applications for ancillary state needs assessment; the second is the application for support, once appointed they may act on the state support (involving a financial assessment that respondent’s behalf for other matters, including determines the patient’s contribution to care and the applications for care needs and financial assessment, corresponding state financial aid); while the third is appeals and reviews. When acting in this capacity, a optional, being an application for ancillary state support care representative takes priority over others. (referred to informally as the ‘Nursing Home Loan’). This article focuses on section 21 of the act, which Priority of claims regulates the appointment of care representatives As section 21(4) makes clear, a care representative who, when appointed, are empowered to take certain may only be appointed where the respondent does not decisions under the act on behalf of the person have the capacity (for the time being) in relation to requiring care in a nursing home. one of the above-mentioned matters. The act lists the categories of person who may apply to the court for an Appointing care representatives order appointing that person to be a care representative Appointing a care representative is not permissible for a matter that is to be specified in the order. in cases where the respondent is a ward of court, has The order in which these classes are listed in the appointed an attorney under an enduring power of section is important, as they are listed in order of attorney, or where another person is permitted by descending priority. A person with greater priority has law to act on his/her behalf. Care representatives are a better claim to have a care representative appointed. required in cases where the person requiring care A person with a greater or equal priority may consent does not have full capacity to make a decision about in writing to an application by, and appointment of, a the application for ancillary state support. person with a lesser priority. The order of priority is Before receiving state support, the financial as follows: assessment will determine the amount that a person a) Partner (including married couples and cohabiting will have to contribute to their care, that is, 80% of heterosexual and same-sex couples), their assessable income and 5% of the value of their b) Parent, assets per annum. Where the assets include land and c) Child, property, this latter contribution can be deferred and d) Brother or sister, collected from the person’s estate, or if the property e) Niece or nephew, is sold or transferred. This deferral is what is known f) Grandchild, as ‘ancillary state support’ and consists of a loan g) Grandparent, advanced by the state. If an application for ancillary h) Aunt or uncle, and state support is made, consent must be given to i) A person who appears to the court to have a good having a charging order registered against the asset. and sufficient interest in the welfare of the person. The application for ancillary state support, the giving of consent to the charging order and related actions The court must be further satisfied that the applicant must be carried out by the care representative, where is of full age and capacity and is a fit and proper appointed. person. Certain categories of persons are excluded
www.lawsocietygazette.ie 35 Law Society Gazette MAY 2010 nursing homes
“The right of a person to Practice and procedure whom a care A Circuit Court practice direction (CC10), dated 5 October 2009, provides for the procedure in section 21 applications. This practice direction governs the procedure until the coming into operation of relevant Circuit representative Court Rules. Therefore, practitioners should keep abreast of developments in this regard. The county registrar is has been empowered to appoint care representatives in uncontested cases. All applications and proceedings under section 21 are heard in camera. appointed The application is to be commenced on the issue of an originating notice of motion grounded on affidavit. to deal with Applications must be accompanied by reports from two registered medical practitioners who have examined the person and have concluded that (s)he does not have the capacity to make the decision, along with the reasons for other matters such conclusion. relating to his/ The reports must be in the form prescribed, as set out in the Nursing Homes Support Scheme (Assessment of Capacity Report) Regulations 2009 (SI no 409/2009), and must be exhibited. Any letters of consent to the her property application by notice parties must also be exhibited. The application must be initiated in either the circuit in which and affairs the respondent is residing at the time of the making of the application, or where (s)he has resided at any time during the period of three years prior to the making of the application. is expressly The respondent and all persons with equal and greater priority must be given notice of an application under protected” section 21, unless the court directs that notice be dispensed with. An application under section 21(17) seeking directions regarding the manner of giving notice or dispensing with the requirement to give notice is, according to the practice direction, to be made on an ex parte basis grounded upon an affidavit. The notice of motion is assigned a return date before the county registrar by the Circuit Court office. The notice of motion and affidavit, including exhibits, are to be served personally on the respondent and on each person with equal or greater priority who has not given consent in writing in the manner permitted for service of a civil bill (see order 11, rule 5, RSC in this regard). The form for reply is also to be served on the respondent at this point. On the reply, the respondent may consent or object to the application, and where (s)he does not consent, the county registrar serves a copy of the reply on the respondent who, in turn, sends a copy to persons with equal or greater priority. In all cases, these documents are to be served not later than 14 days before the return date of the originating notice of motion, unless notice has been dispensed with by the court. Where a person with equal or greater priority does not consent to the appointment of the applicant, (s)he may file an affidavit replying to the application. This should be delivered to the applicant and respondent at least seven days prior to the return date. If an objection to the application is raised at the hearing before the county registrar of the notice of motion by any notice party, the county registrar is obliged under the practice direction to transfer the matter when in order to the judge’s list.
has died, lost full capacity, wishes to resign, or has had their application revoked. Section 21(31) allows a person with sufficient interest in from acting, such as undischarged bankrupts or the respondent’s welfare to apply to the court for an order those convicted of offences involving fraud or directing a care representative to furnish the court with dishonesty. The court is empowered to appoint a report regarding his actions as care representative or to more than one person to be a care representative attend before court with specified records. The court may, of the same respondent. Where it does so, there on hearing an application under section 21(30) or section is a presumption that they will act jointly unless 21(31), revoke the appointment of a person appointed as care ordered otherwise. representative and appoint another person in their place. Under section 21(30), an application may be made to the court by any person “appearing to the Significant consequences court to have a good and sufficient interest in the The consequences of an application for ancillary state welfare” of the respondent. The court may appoint support regarding the respondent’s assets (which will a person to be a care representative in the place of normally be their home) are significant. Thus, safeguards an appointed care representative where the latter are needed where another person is given power to make
36 www.lawsocietygazette.ie nursing homes Law Society Gazette may 2010
decisions in this regard (several of which have been set out above). look it up Section 21 is, on the whole, a positive development Legislation: and the regime created by it contains a number of • Nursing Homes Support Scheme Act 2009 praiseworthy aspects. • Nursing Homes Support Scheme (Assessment Notable among these is the utilisation of what is of Capacity Report) Regulations 2009 (SI No referred to as the ‘functional’ approach to capacity. 409/2009) This, in essence, focuses on the ability of a person to make a given decision when it needs to be made. The Literature: primary motivation behind the functional approach is • Circuit Court practice direction CC10 (5 October the preservation, to the greatest extent possible, of an 2009) – applications under section 21 of the individual’s decision-making autonomy. This contrasts Nursing Homes Support Act 2009, available at with a ‘status’ approach to capacity (for example, www.courts.ie wardship). The latter has drawn adverse criticism • Nursing Homes Support Scheme Information from the Law Reform Commission, and involves a Booklet, published by the Health Service general determination of a person’s capacity without Executive, available as a PDF at www.hse.ie. (For regard to whether their capacity fluctuates. further Information on the scheme, contact your The test, set out at section 21(43), focuses, local HSE Nursing Homes Support Office; call the among other things, on the cognitive abilities of the HSE info line (1850 24 1850) or visit www.dohc.ie person – do they understand,Still or can they weigh upcelebrating? or www.hse.ie) the information relevant to a particular decision? – • Report on Vulnerable Adults and the Law (LRC 83- rather than making a blanket assessment If you of a person’sare concerned 2006), publishedabout byhow the Law much Reform you Commission are drinking, general capacity. The right of a person to whom a carecall LawCare for free and confidential advice. representative has been appointed to deal with other the niece in this scenario would be made aware of the matters relating to his/her property and affairs is application. The aunt may object to the application expressly protected. While Freephonesection 47 permits the 1800in her 991801reply, giving details • ofwww.lawcare.ie the niece’s role in her care representative to act in circumstances outside care. Furthermore, the court is obliged under section the scope of section 21, this is a pragmatic step that 21(5)(a) to have regard to the expressed wishes of the avoids an over-reliance on court procedures for more respondent when appointing a care representative. routine substitute decision making under the act. The system allows substituted decision making Section 47 provides that the HSE may refuse to deal without recourse to wardship procedures and the with a ‘specified person’ where it believes they are not significant loss of personal decision-making power acting in the best interests of the respondent. resulting from 86%being of made lawyers a ward say of court. long However,hours are damaging without greater reform oftheir the lawrelationship on wardship with and their children. WilOlther y opositiveu b featurese substituted decision making generally, the Arepositive you one of them? Other positive features include the strict notice and aspects of section 21 may not be fully realised. For service requirements (that is, personal service on the instance, a person who lacks Freecapacity and Confidentialin relation Healthto Support homerespondent to unlesstuc otherwisek ordered by the court) other matters touching uponand their Advice property for Lawyers or person
and the requirement that the applicant provide the may have already been admitted to wardship, rendering respondent with the reply form. recourse to section 21 Freephone impossible. Nonetheless, 1800 section 991801 us in Difficultiestonig mayh ariset? from the rigid categorisation 21 reflects legislative recognition of the functional of family relationships in terms of priority. For approach to capacity and maywww.lawcare.ie represent a new trend example, a niece providing care to her elderly aunt towards widespread use of this approach in relation to is not required to be given notice of an application all significant decisions. G by an estranged son. However, as notice must be personally served on the respondent, it is likely that James Mulcahy is a practising barrister based in Dublin. Could You Help? LawCare needs more volunteers. People who could care for a lawyer in need based on their own experience. If this is you please call 00 44 1268 771333 www.lawcare.ie/volunteers
www.lawsocietygazette.ie 37
Health Support LAWYERS HELPING LAWYERS
and Advice for Free confidential help and support seven days a week. Lawyers Keep our number handy. You never know when you’ll need us. Stress • Depression Alcohol • Drugs Freephone 1800 991801 • www.lawcare.ie Law Society Gazette MAY 2010 sale of practice Hanging up your boots?
Thinking of ‘hanging up your legal boots’ by selling your practice – or looking to expand your current business? Before you leap, you should fully consider the tax implications of buying and selling a legal practice. Annemieke Clancy ties up loose laces
he downturn in the economic climate has of accounting periods and the cessation date, it may be affected the profitability of legal practices at possible to minimise the vendor’s income-tax exposure. every level and may result in an increase in the As with cessation rules for a vendor, there are specific number of sole practitioners seeking to ‘hang (and complex) commencement rules for income tax that up their boots’. From a purchaser’s perspective, would apply for a purchaser and should be borne in mind Tthe downturn could prove an opportune time to either for the first three years after commencement. This is expand their existing practice or to go it alone by taking something on which specific tax advice should be sought. over another practice. In addition, you can reduce your tax liability by It is worthwhile reminding ourselves that the purchase ensuring that you maximise your pension contributions. and sale of a solicitor’s practice is essentially a commercial Once you are over 60 years of age, you can annually transaction and, as such, the objectives of the vendor and contribute up to 40% of your earnings (limited to purchaser will be very different from the outset. From €150,000) – that is, €60,000. a vendor’s perspective, the objective will be to obtain The timing of the transaction is also of great the best price possible, while the purchaser will want to importance to the vendor where capital gains tax (CGT) is minimise the costs involved. Both parties should obtain payable (see below, however, for comments on retirement specialist tax advice at the earliest opportunity to ensure relief from CGT). Since the Finance Act 2009, CGT is that the deal is structured to secure the most tax-efficient payable on 15 December in respect of disposals in the outcome for all. period 1 January to 30 November and, for disposals Matters that should be considered include the timing of in December, the CGT will be due on 31 January the the deal, the various taxes involved, the dates for payment following year. of these taxes, and the general pitfalls that exist in these Poor timing of a sale can result in the CGT being transactions. payable almost immediately; however, with careful timing of the sale, a vendor can defer payment of his CGT Timing issues to be considered liability to Revenue considerably. For example, CGT for a As with the sale of any business, the significance of sale at the end of December 2009 would be payable by the the timing of the sale of a legal practice normally gets end of January 2010, whereas CGT on a sale in January overlooked as the parties strive to get the sale over the 2010 would not be payable until the following December. line. The date of completion of the sale is, however, of You will appreciate from the above that there are a huge significance from a tax perspective for the vendor. number of tax considerations that are relevant in timing As a sole practitioner, the vendor will have been a sale. As always, the commercialities of a deal should operating a trade and paying income tax on a self- properly take precedence over timing, but if there is any employed basis. On selling the business, the vendor flexibility, a vendor should be aware of the cash-flow will be ceasing his profession and would be subject to saving that can be achieved by optimising the date of sale the cessation rules for income tax. These rules are quite of the business. complex, but suffice to say that the cessation of the trade would result in the reassessment of the vendor’s income Issues for the vendor tax position for his last and penultimate tax year. In certain In addition to the timing consideration, there are other tax circumstances, where profits have been reducing in the issues that should be borne in mind by the parties when years before sale, with careful planning around the length preparing for sale or negotiating the transaction. It’s only
38 www.lawsocietygazette.ie sale of practice Law Society Gazette may 2010 Hanging up your boots?
noteworthy aspects of the recent budgets has been the increase in the CGT rate from 20% to 25%. Retirement relief from CGT may be available, provided the vendor complies with the conditions set out in the provisions under sections 598 and 599 of the Taxes Consolidation Act 1997 (TCA 1997). For the relief to apply, the vendor must be over 55 years of age. However, despite the title commonly given to the relief, there is no obligation to actually retire. Therefore, for example, the vendor can claim the relief from CGT, yet can continue to act as a consultant for the purchaser, as would commonly be required by a purchaser in such circumstances to ensure a smooth handover of the business and client relationships. The relief is only available on the disposal of qualifying assets. Qualifying assets include chargeable business assets, which are assets (including goodwill) owned for a period of at least ten years ending with the disposal, and which have been used throughout that period for the purpose of the profession carried on by the vendor, and on which a gain accruing would be a chargeable gain. Full relief is available if the consideration does not exceed the limit of €750,000 (which is an aggregate lifetime limit). Marginal relief is available if the consideration exceeds €750,000, which limits the CGT liability to half the excess of the consideration over €750,000. However, once the consideration exceeds a certain level, marginal relief is not worth main points claiming. Where the vendor sells the practice to his • Buying and child, no limit applies. However, in this instance, be selling a legal aware of a possible clawback if the business asset is practice possible to give an overview of tax issues and ideas in disposed off within six years by the child. • Timing issues for this article. Specific advice should be sought at the income tax and earliest opportunity. Work in progress CGT The valuation of work in progress, often a matter • CGT and Capital gains tax of some discussion in negotiations for the sale retirement relief Capital gains tax will be payable by the vendor on any of a practice, will have potentially significant tax gain arising on the sale of the practice. One of the most implications for the vendor, who will have to pay
www.lawsocietygazette.ie 39 Law Society Gazette MAY 2010 sale of practice
sale that the title to these assets will be transferred by look it up way of delivery. The contract should provide how and Legislation: when the delivery will take place in order to avoid any • European Communities (Protection of Employees suggestion that the contract, in effect, transfers the on Transfer of Undertakings) Regulations 2003, SI ownership of these assets. 131 of 2003 The contract should be stamped ad valorem only • Finance Act 2009 on the value attaching to the assets liable to stamp • Taxes Consolidation Act 1997, sections 65, 66 duty at contract stage, and therefore it is important to and 67 apportion the consideration accordingly. However, it • Taxes Consolidation Act 1997, sections 598 and should be noted that the stamp-duty rate is based on 599 the total consideration passing.
Value-added tax income tax on the amount he receives. For the Generally, the transfer of assets from one accountable purchaser, the consideration paid may qualify as a tax person to another will come within the charge to value- deduction. The fact that this could lead to tax liabilities added tax (VAT). However, if what is being transferred for the vendor and tax savings for the purchaser should is an amalgam of assets capable of being operated as be taken into account when negotiating the value of an independent undertaking or business, then the the work in progress. transfer may be relieved from VAT. The parties will have to be careful that the Issues for the purchaser “Poor timing conditions for the relief are met before Interest relief of a sale can deciding not to charge VAT on the sale. If the purchaser borrows money for the Even where the conditions for the relief acquisition of the business, the interest result in the are met, there are additional burdens payable on an element of the monies capital gains around the transfer of real property that borrowed may be a deductible expense form part of the business assets. in calculating his profits for income-tax tax being purposes, provided certain conditions payable almost Due diligence are met. Before a purchaser enters into the immediately; transfer agreement, he should, apart Stamp duty however, from the legal due diligence, also carry While the rate of stamp duty for non- out a tax due diligence. The purchaser, residential property has been reduced with careful having done a due diligence, should from 9% to 6%, this would still be timing of the insist on getting appropriate warranties a major cost for the purchaser of and/or indemnities. As this is a business any business. With careful planning, sale, a vendor rather than a shareholding that is to however, this stamp-duty liability can defer be acquired, the tax indemnities and can be substantially reduced, or even warranties need not be as extensive, but, eliminated. Some ideas are set out payment of his nevertheless, they should be carefully below, which may assist in reducing CGT liability considered and negotiated. For example, stamp duty for a purchaser. if the purchaser takes over employment The transfer of debtors would be to Revenue contracts (which, given the European stampable at contract stage. If practical, considerably” Communities (Protection of Employees on a method of reducing the stamp duty Transfer of Undertakings) Regulations is to leave title to the debtors with the 2003, will be most likely), he must vendor, and to appoint the purchaser as agent for the ensure that all the PRSI and PAYE tax obligations have vendor to collect these debts. Again, the practicalities been complied with and, if necessary, get warranties of the transaction would determine if this is possible. and/or indemnities to that effect. An instrument transferring the goodwill of a The issues to be considered when buying or selling business would attract stamp duty. Parties could a legal practice are numerous. This article merely consider effecting the transaction in a manner attempts to highlight some of the more pertinent that would ensure that stamp duty does not arise. issues. Before negotiations commence, it is vital that However, many of the methods that would reduce the both parties seek specialist legal and tax advice and stamp-duty exposure on the transfer of goodwill may continue to liaise with their advisers as the negotiations not be acceptable from a commercial perspective. It is progress. Failure to plan in this regard can result in an a matter of balancing the practicalities with the desire increased tax cost, which, ultimately, will reduce the to effect the transfer efficiently from a tax perspective. net funds available to both parties. G It is possible to transfer goods and moveable plant, such as furniture, desks and computers, without Annemieke Clancy TEP is a solicitor and registered tax incurring stamp duty by providing in the contract for consultant.
40 www.lawsocietygazette.ie people and places Law Society Gazette may 2010 Fine Gael leader visits Law Society All pics : L ens m en
At the Law Society dinner attended by members of the Fine Gael party on 27 April were (back, l to r): Senator Paul Coghlan, Senator Eugene Regan, Jim O’Keeffe TD, John O’Connor (Council member), Kevin O’Higgins (Council member), Ken Murphy (director general), John Costello (senior vice- president of the Law Society), John P Shaw (junior vice-president) and Alan Shatter TD. (Front, l to r): Jennifer Carroll (legal policy and research officer in the Fine Gael leader’s office), leader of Fine Gael Enda Kenny TD, President of the Law Society Gerard Doherty, Lucinda Creighton TD and Mary Keane (deputy director general)
he Law Society was very barristers of the Fine Gael Paul Coghlan and Jennifer was to ensure that all the guests Tpleased to host a dinner parliamentary party. Carroll, a qualified solicitor thoroughly enjoyed themselves, in honour of the Fine Gael Unfortunately, Charlie Flana- who works as legal policy and it was also an opportunity to leader, Mr Enda Kenny TD, gan TD and Olwyn Enright TD research officer in the Fine make the profession’s position on at Blackhall Place on 27 April. were unable to attend, but their Gael leader’s office. While the important issues understood by Guests included solicitors and able replacements were Senator main purpose of the evening key members of the Oireachtas.
Attending dinner at Blackhall Place on 27 April 2010 were (l to r): director John O’Connor and Senator Eugene Regan general Ken Murphy, Fine Gael leader Enda Kenny TD, and Gerard Doherty
www.lawsocietygazette.ie 41 Law Society Gazette MAY 2010 people and places P ic : L ens m en
Bar association executives meet at Blackhall The presidents and secretaries of the country’s bar associations met at Blackhall Place on 19 April. The meeting, convened by President of the Law Society Gerard Doherty, discussed matters of concern to the profession, including commercial undertakings, professional indemnity insurance and e-stamping
Longford leaders At the meeting of Longford Bar Association on 4 March 2010 in the Longford Arms were (front, l to r): Andrea Reynolds, Seamus Quinn, Ken Murphy (director general), Brid Mimnagh (president, Longford Bar Association), Gerard Doherty (president, Law Society), Cliadhna Sheridan, Sandra Carroll and Mark Connellan. (Back, l to r): Padraic Gearty, Tina Dolan, Carol Daly, Jenny Devereux, Emer Kilroy, Karen Clabby (honorary secretary, Longford Bar Association), Thomas Queally, Lorna Groarke, Leo Branigan and Deirdre Gearty
42 www.lawsocietygazette.ie people and places Law Society Gazette may 2010 WIT fosters links with legal practitioners A LL P ic S: Ga rrett F it zG er a ld hotogr ph y aterford Institute Wof Technology (WIT) hosted a dinner for representatives of the South Eastern Circuit bar associations (including the Carlow, Kilkenny, Tipperary, Waterford and Wexford bar associations) on 23 March 2010. Hosted by Dr Michael Howlett (head of the Department of Applied Arts at WIT), its purpose was to foster links between WIT and legal practitioners in the south-east. It is hoped that, in the future, this will lead to initiatives that will give law students in the institute a greater insight into the practical day-to-day aspects of the profession. Those attending included (back, l to r): Liz Dowling (secretary, Waterford Law Society), Marian O’Neill (head of the The meal was prepared and Department of Creative and Performing Arts, and programme leader BA (Hons) Legal Studies, WIT), David Clery (social secretary, Carlow BA), Grainne Callanan (lecturer, WIT), Owen O’Mahoney (president, Kilkenny BA), James served by the award-winning Meagher (president, Tipperary BA), Dr Sinead Conneely (law lecturer, WIT), Walter O’Leary (law lecturer, WIT). student chefs of the tourism and (Front l to r): Sonya Lanigan (secretary, Kilkenny BA), Bernadette Cahill (president, Waterford Law Society), leisure department of WIT. Dr Michael Howlett (head of Department of Applied Arts, WIT) and Helen Doyle (president, Wexford BA) ‘Head shops should be banned, not regulated’
At the 2010 Waterford Law Society-sponsored debate in WIT were (back, l to r): Walter O’Leary Bernadette Cahill (president of Waterford Law Society) (law lecturer, WIT), Jane Rockett, Tommie Ryan, Erin O’Hagan, Vanita Viron, Brendan O’Connor, and Helen O’Brien (Waterford Law Society) present Dermot O’Bernie, Patrick McKee. (Front, l to r): Jennifer Kavanagh (law lecturer, WIT), Fiona Tommie Ryan with the Waterford Law Society medal, FitzGerald (Waterford Law Society), Helen O’Brien (Waterford Law Society), Bernadette Cahill certificate and cash prize at the 2010 Waterford Law (president of Waterford Law Society), Deirdre Adams (law lecturer, WIT) and Colette Haycock Society-sponsored debate in WIT on 24 March 2010
aterford Law Society Rockett, Vanita Vyron, Patrick Walter O’Leary (law lecturer, with the Waterford Law Wsponsored a debate McKee and Tommie Ryan. WIT). Society medal, certificate and in Waterford Institute of Opposing the motion were A large attendance from the cash prize by the president of Technology (WIT) on 24 their student peers Dermot student body contributed to the Waterford Law Society, March 2010. The very topical O’Byrne, Erin O’Hagan, a lively discussion following Bernadette M Cahill. motion was ‘Head shops should Colette Haycock and Brendan the debate. Following The event was organised be banned, not regulated’. O’Connor. The adjudicators deliberations, Tommie Ryan by Helen O’Brien (solicitor), Proposing the motion were Helen O’Brien and Fiona was declared the winning Deirdre Adams and Jennifer were WIT law students Jane Fitzgerald (solicitors) and debator. He was presented Kavanagh (law lecturers, WIT).
www.lawsocietygazette.ie 43 Law Society Gazette MAY 2010 people and places Brendan McCann Trophy stays south n a beautiful day in north societies, but I think it is a ODublin, the solicitors of wonderful sign of how far we the Law Society of Ireland beat have come in the last decade or their Northern counterparts so. Long may it last. on a comprehensive scoreline “Similarly, we are delighted of 4-15 to 1-7 in the Brendan that we can do something to McCann Trophy – the second celebrate both the legal and ever 15-a-side match played the sporting life of Brendan between both sides. McCann, a dear friend and The first game in the series colleague to many of us. It is (named in memory of the late brilliant that Margaret and Belfast-based solicitor, Brendan Séamus are here today to McCann, who passed away in present the trophy to Odhran. December 2007) was played Hopefully, the trophy will stay in December 2008 in Belfast in our possession for a few years in wintry conditions. It was Gary Rocks, Odhran Lloyd (Law Society of Ireland captain), Seamus to come!” McCann, Margaret McCann, Conor Minogue, Norville Connolly (President fitting, then, that blue skies and of the Law Society of Northern Ireland) and James MacGuill (past- Manager of the Law Society a dry sod welcomed both teams president of the Law Society of Ireland) of Northern Ireland, Gary onto the civil service pitch in Rocks, added: “I would like Islandbridge. with five points for the Law activities and commented: to thank all those who made Both sets of players and Society of Northern Ireland, “We are delighted to welcome today possible – the McCann supporters were delighted that managed to break more than a the lads down here today. It’s family, the managers, players, Margaret McCann and her sweat and certainly stood out. incredible to think that this supporters, referee, Civil son Séamus were on hand to Manager of the Law Society is only the second time that a Service GAA Club, Hayes present the Brendan McCann of Ireland, Conor Minogue, Gaelic football match has ever Solicitors for their kind Trophy for the first time to the was delighted with the day’s been played between the two contribution, past-president Law Society of Ireland team of the Law Society James and its captain, Tipperary native MacGuill and the President of Odhran Lloyd. the Law Society of Northern As for the game itself, under Ireland for attending and for the watchful eye of local referee taking time out of their busy Phillip Brady, it passed without schedules.” much incident, as both sets of Following the game, the Law players were content to ease Society of Ireland, represented themselves into the first proper by James MacGuill, hosted game of the summer! the Northern lads and their However, Odhran Lloyd with president Norville Connolly seven points for the Law Society in the Blue Room back at of Ireland, and Michael Sweeney Sporting losers – the Law Society of Northern Ireland team Blackhall Place. G
The Law Society of Ireland team with past-president James MacGuill
44 www.lawsocietygazette.ie students’ page Law Society Gazette may 2010 student spotlight
Cork pipped at Stetson showdown eaked (not beached) whales The penultimate round saw Band marine seismic surveys an all-Ireland clash, with Dublin were among the issues debated and Cork facing off. While at the 14th Stetson University Dublin won the round, the International Environmental Cork team advanced on points. Law Moot Court competition The other semi-final was won on 10 March. by the respondent, also on a Two teams from the Law higher points score. The third- Society – one from Cork, the place finish for Dublin was some other from Dublin – travelled compensation for narrowly to Gulfport, Florida, USA, failing to make it to the final. to compete in the event. Participants’ knowledge of Packed courtroom international environmental Cork faced into the final against law was tested with rigour, and the University of Maryland. there was plenty of opportunity After relaying the good news to show off their debating skills. to their friends and families The Cork team, comprising back home (who were able to Lyndsey Clarke (Martin watch the live streaming of Sheehan & Co) and Amanda the final on the internet), the Moore (FahyLaw), argued ‘Rebels’ were whisked off to a for the applicants, while the packed courtroom. They faced respondents were represented a tough but very knowledgeable by a Dublin team comprising bench of three expert judges, Gavin Doyle (McDowell who tested their knowledge Purcell Solicitors) and Ryan of the facts of the case and Gibbons (Eversheds O’Donnell international law. Following a Sweeney). split decision, the University In all, 75 teams competed Flying the Cork team’s colours were (l to r): Lyndsey Clarke (Martin of Maryland was ultimately Sheehan & Co) and Amanda Moore (FahyLaw) from around the world. At declared the winner. the end of the first round of while Cork had won three. On advanced to the quarter finals, It was a signal achievement mooting, the Dublin team the basis of their impressive with both making it through to for Cork to finish second at had won all four of its rounds, performances, both teams the semi-final stage. its first appearance in the competition. Other good news followed, with Lyndsey Clarke being named ‘best overall speaker’, while Amanda Moore was ranked tenth. The Cork and Dublin teams learned much from their Stetson visit and made new friends from all over the world. They would like to thank the Law Society for the opportunity of representing their schools, and extend their warm thanks to coaches TP Kennedy and Eva Massa. Gratitude, too, goes to the teams’ sponsors, including the students and staff of both schools for their encouragement Dublin took on Ghana at the environmental law moot court competition in Stetson University, USA and financial support. G
www.lawsocietygazette.ie 45 ------G
w Society y confidential and cent Crowley, formally thank ing him and the posers otherof the motion pro for their initiative in general convening meeting the and ing engag in the discussion that had ensued. Liam Kennedy urged that the Society would exam ine its communication proc esses to determine it whether could communicate regularly and more more effectively with its members. Professional indemnity insurance Eamon Harrington reported that, as of that morning, three firms had indicated that they had secured insurance cover, although they had provided evidence of this not fact; yet three other firms had not re- sponded in any respect to the Society and it was believed that these firms had, in fact, ceased had firms seven and practise; to notified the Society that they did not have insurance cover. Mr Harrington that those firms without confirmed pro- fessional indemnity insurance for on put been each had cover mal notice of an application to the High Court to close their practice unless insurance was obtained or the practice closed voluntarily. was ------y independent of the La all colleague The service is completel tot 01 284 8484 284 01 John John Shaw confirmed that it It was agreed that the presi institutions institutions that the would not entertain complaints Society made by the institutions in re spect of undertakings accepted by those institutions in face of rules. new the was intended to seek the views of the bar associations and the membership generally in meet Council May ad the of vance hoped was it stage which at ing, regulations. final approve to Special general meeting The Council noted the come out- of the meeting special that general had on been the previous held evening. The president said that, in his view, the meeting had provided valuable a opportunity for Council the to engage profession with and the to explain decisions in a its coherent and ar ticulate manner. The director general said that it had an been excellent meeting that was of benefit both to the Council and to the Society’s members. All relevant questions had been every- and answered, and asked one had left the meeting with a greater understanding of the reasons and consequences decisions. of the Council’s dent would write to Mr Vin ------Liam Liam Kennedy said that any The Consult a Colleague helpline is available to assist every member of the profession with any problem, whether personal or professional consult a a consult they were effectively clients urging to move to with solicitors commercial undertaking insurance. He also that the Society should believedorgan ise a ‘roadshow’ in highlight order to all to colleagues the various complex aspects of the matter. Niall Farrell suggested that the president should write to all solicitors, recommend ing that they should not give commercial notwithstanding the existence undertakings, of insurance cover, and solici torscouldshow lettersuch a to their clients. regulation had to be propor tionate, and it was important consider would that the Society whether there were any other means of solving the problems the in that, noted He presented. past, the financial institutions had had the luxury of using the Law Society as their ‘enforcer’. He suggested that, on a practi cal level, the Society should (a) move the risk from the profes institutions sion to the financial by ensuring that such institu claims valid no have would tions against the compensation fund commer accept to chose they if notwithstand cial undertakings ing the new and rules, (b) com financial the to clearly municate ------Law Society Council meeting, meeting, Council Society Law 12 March 2010 .’ report Professional Indemnity Insur Brendan expressedTwomey That That this Council approves the council www.lawsocietygazette.ie some concerns about the com hibition on Commercial Under Commercial on hibition 2010 Regulations takings) Proposed: John Shaw Seconded: Michael Quinlan John Shaw outlined the con- tents of the draft regulations. He noted that they reflected the relevant definitions from the a with together Regulations, ance definition of “accountable trust receipt”. One outcome from the regulations would be the reintroduction of a third licitor so- in commercial property transactions. He noted because that, of their implications for professional indemnity in- surance cover, it was the view of the working group that the regulations could not be intro- duced in the course of the year and would have to take effect from 1 December 2010. mencement date of 1 Decem ber 2010. He urged that Societywould also make stren the uous representations highest at level the to the institutions financial about their duct con in circumstances where Motion: regulations prohibit- ing commercial undertakings ‘ Practice, (Professional Solicitors Conduct and Discipline – Pro 2010 MAY Gazette Society Law briefing 46 briefing 47
G
Act 1965 has been notes
Conveyancing Committee www.lawsocietygazette.ie Land In In addition, a new General attendance at the office of the vendor’s solicitor. 45 , section 1965 10) Land Act General Condition 28 previous of the edition omitted, as has the section been 45 repealed. In order of to the maintain numbering elsewhere in the General Conditions, Condition 29(a) and (b) General of previous the edition Registration) (Compulsory renumbered as has Conditions 28 and 29. new General been 11) Forfeiture of deposit and resale General Condition 41 has been amended at (a) and (b) to stakeholder” other “or words add the after “Solicitor” to address the fact that part paid of by the a monies held purchaser by a may party other be than vendor’s the solicitor, for example, an auctioneer. 12) Arbitration The Condition reference 51(a) amended in by has of the General substitution been “Condition “Condition 10(c)”. 10(b)(iii)” for Condition 51(d) inserted relating has under to General disputes been (Disclosure Condition of (formerly 51(e) 35 Condition General Notices), expands 51(d)) and Condition General the remit provision in of respect of General the (Development). 36 Condition arbitration ct ct A A 2010 MAY Gazette Society Law Land and onveyancing C practice ssurance will not will Assurance for the . This provision relates Where the parties envisage onveyancing Law Reform expanded to requiredonly deliver is to clarify vendor that the within seven Working Days after Sale copies of those the Date of documents which already been have furnished to purchaser. the not 7) Requisitions The amended, first been two have 17 lines Condition of General reflecting the amendments General at Condition to 7 referred above. intended to The bring greater clarity changes to are the timeframe within Objections and which Requisitions on made. be may Title 8) Deed of assurance been has 20(a) Condition General amended and a Condition new 20(b) General inserted. new The provision clarifies purchaser that is required to a accept delivery of the an property assurance on completion favour of of in the purchaser or nominee. purchaser’s the of Deed a that be delivered on completion, the matter should be addressed by way of Special Condition. 9) Completion and interest General Condition 24(c)(iii) has been amended reference to substitute to C the 2009 and Law 1881 of to Property the undertakings vendor’s completion is given being solicitor effected by where post, by or other means than by T A M Y MEMORANDU TOR Local Government EXPLANA AT New paragraph 4 deals with Vouching Vouching the tax number might be by way of of production correspondence a Revenue, or the certificate copy of an with accountant. extract the from 2) V Special Condition 3 is by way of reminder to insert the recommended current form Special Condition, and amend it of as appropriate. V 3) Non-title information sheet New paragraph 3(c) deals with the new charge for non principal private residences, introduced under the (Charges) Act 2009. Building Energy certificates. Rating (BER) 4) Definitions The definition of ‘Working Day’ has been reworded for greater clarity but without changing the import of the phrase. 5) Auction General Condition 4(c)(i) of the permitted which edition, previous a vendor to bid himself or by an agent up to the reserve has been deleted in anticipation price, of the coming into Property law of Services the (Regulation) Bill 2009, section 57 of which will prohibit this practice. 6) Delivery of title General Condition 7 has been The purchaser should therefore obtain not only the vendor’s tax number, but the description of that tax number. General General E number. AY Conveyancing Assurance, and Act 2009, and Memorandum to insert EDITION OF SALE 2009 SOCIETY GENERAL CONDITIONS NEW LAW Land and ax numbers of the parties In addition, new General The Revenue eStamping As practitioners are familiar are:changes substantive The The 2009 edition reflects their tax numbers. the that requires 20(d) Condition vendor furnish the tax number of the vendor, properly vouched, to the purchaser prior to or on completion of the sale. procedure has menu to select a the type of tax number drop-down for the parties assurance, to the and income an example, for between, distinguishes tax number and a P without under provided been have Boxes incurring partiesthe of each of names the penalties. in the e-stamping which came into effect December 2009. on 30 requirements, with the Conditions of Sale, efforts have existing retainto made existing been the numbering and format. 1) T Obtaining accurate tax numbers of the importance parties to is a enable purchaser of the purchaser to to critical stamp the Deed of Law Reform Conditions of Sale, with compared the 2001 (revised) edition (last revised in November 2008) (hereinafter referred to as ‘previous edition’). the all legislative changes 31 December up 2009, to including the The following are the that changes have been 2009 made edition to the of the
------(SI 1/4/ 1/4/ Crimi , s2). Give effect Provide for Provide for a , s6 (inserteds6 by , EnforcementCourtof SI 137/2010 SI 122/2010 SI 136/2010 Enforcement of Court Orders 2010 Enforcement of Court Orders (Legal Aid) (Amendment) Regulations 2010 Number: Contents note: decrease of 8% from 1/4/2010 in the fees payable in proceed ingsunder 1940OrdersAct the (Amendment) Act 2009 Commencement date: 2010 European Communities (Assessment and Manage ment of Flood Risks) Regulations 2010 Number: Contents note: to Directive 2007/60, lishing estab a framework for com munity action in the field assessment of and management of flood risks; the appointment providesof the Com for missioner of Public Works in Ireland as competent authority 15/2009). Commencement date: Criminal Justice (Legal Aid) Aid) (Legal Justice Criminal Regulations (Amendment) 2010 Number: Contents note: a decrease of 8%, with effect from 1/4/2010, in payable the under fees the Legal Aid Scheme to solicitors Criminal for attendance in the District Court and for appeals to Circuit the Court, and in the fees paid to solicitors and counsel in respect of to essentialprisons and other visits custodial centres (other than garda sta tions) and for certain bail ap plications. Revoke the nal Justice (Legal Aid) (Amend ment) Regulations 2009 ------(SI (SI 5/4/ 5/4/
10/3/ 10/3/ Y Amend Amend the .
Amends and Prescribe the , , ss8, 12 and 17; Companies Companies Act 1990 STATUTOR 94/2010 SI ENTS D D
SI 100/2010 SI 101/2010 SI M Criminal Criminal Justice (Mutual pril 2010 pril A VAT Act VAT 1972 3/4/2010 for other sections ex cept where otherwise expressly provided or where commence ment order(s) are to be made. details for act See SELECTE INSTRU Court(Criminal District Assistance) (Mutual Justice 2010 Rules 2008 Act Number: Contents note: District Court Rules 1997 93/1997) the 93/1997) by the of amendment prescribing 34 31A, 21, orders and procedure forms in respect of the 2008 Act Assistance) Commencement date: 2010 (Recognised Companies Exchanges) Stock 2010 Regulations Number: Contents note: main market of the Stock Exchange, the New York London market the and Exchange, Stock known as NASDAQ, operated by Nasdaq Stock Market In corporated, for the purposes of s212 of the to permit Irish public compa nies to make overseas market stock a on recognised purchases exchange. Commencement date: 2010 Companies (Forms) Regula 2010 tions Number: Contents note: updates various scribed forms for filing pre information in the Companies Registration Office. Commencement date: 2010 ------8/4/ Com Com Amends the Provides for Confersstatu 30/3/2010 3/4/2010 3/4/2010 3/2010 4/2010 5/2010 to provide for an in arch – 16 16 – arch Electricity Regulation Act and provides for related M George Mitchell Scholarship Scholarship Mitchell George 2010 Act (Amendment) Fund Number: Contents note: George Fund Mitchell Scholarship Act 1998 crease crease in contribution to the the fund, con government’s ditional on matching funding other from sources raised being than public funds in Ireland or Northern Ireland, and provides matters. related for enacted: Date Commencement date: made be to order(s) mencement act) the of s6(3) (per and (Exploration Petroleum 2010 Act Safety Extraction) Number: Contentsnote: tory responsibility for the safe ty, both onshore and offshore, of petroleum exploration and extraction activities, ing includ drilling, transmission and processing of untreated Commissiontheoil,onand for gas Energy Regulation. the Amends 1999 matters. enacted: Date Commencement date: made be to order(s) mencement act) the of s1(2) (per 2010 Act Finance Number: Contents note: the imposition, repeal, remis sion, alteration and regulation of taxation, stamp duties and duties relating to excise, otherwise makes and further provi finance, with connection in sion of the cus regulation including toms. enacted: Date Commencement date: 2010 for s133(1) amending the ------legislation update legislation 16 16
16/3/ . The re Provides for Communications 3/3/2010 D 2/2010 ASSE P and provides for related matters. Date enacted: Details of all bills, acts and statutory instruments since 1997 are on the library cat Communications Regulation (Premium Rate Services and Electronic Communica tions Infrastructure) Act 2010 Number: Contents note: theregulation of premium rate services (broadcasting service is excluded from the definition premiumof rateservice)the by Commission for Communica tions Regulation. Substitutes a new section 53, ‘Opening of public road for establishment of underground communications electronic ture’, infrastruc of the Regulation Act 2002 vised section designates National Roads the Authority as the consent-giving and charg ing authority for the opening of national roads, motorways. including Local authorities remain the authority for opening the of local and regional roads. Amends Communications further Regulation Act the 2002 Commencement date: 2010 alogue – ie (members’ www.lawsociety. and students’ area) – with updated infor mation on the current stage a bill has reached commencement and the date(s) each act. of All recent bills and acts (full text in PDF) are on www.oireachtas.ie, and re cent statutory instruments are on a link to statutory electronic instruments from www.irishstatutebook.ie. ACTS www.lawsocietygazette.ie 2010 MAY Gazette Society Law briefing 48 briefing 49 - - G Prepared by the the by Prepared Appoints 1/4/ Law Society Library Society Law SI 118/2010 SI Criminal Law Committee www.lawsocietygazette.ie another taxable person who car who person taxable another state. the in business a on ries (Miscellaneous Health 2009 Act Provisions) 2010 Order (Commencement) Number: Contents note: 2010 as the date for part 4 commencement of the act. Part of dissolution the for 4 provides the National Cancer Screening trans the for and Board Service fer of the agency’s employees, liabilities, property, etc, to the Executive. Service Health - -
District Court 2010 MAY Gazette Society Law
25/3/
Courts of Justice
VAT Act VAT
sittings in Criminal
Practitioners may wish to note that the President the that note to wish may Practitioners of the District Court has announced that there will be no special court criminal business in the CCJ in August 2010. sittings dealing with Appoints SI 147/2010 SI , , ss8, 12 and 17. Provides 2010, not
fringed fringed in the award of public contracts. Commencement date: 2010 (Section 2010 Act Finance (Commence 133(1)) 2010 Order ment) Number: Contents note: 8/4/2010 8/4/2010 as the ment date for section 133(1) of commence the act, amending the 1972 for the reverse charge mecha nism to apply where a business taxable a on carries who person greenhouse in the receives state gas emission allowances from
Injuries Board
- - -
- 25/3/ Give effect to committee notes A SI 130/2010 SI T Regulated by the Solicitors Regulation Authority of England and Wales
ERRA
derers who feel their rights have have rights their feel who derers been infringed in the award of contracts. Commencement date: 2010 Communities European Con Authorities’ (Public Procedures) (Review tracts) 2010 Regulations Number: Contents note: Directive 89/665, as amended by Directive 2007/66 ing procurement cover procedures of public sector bodies. Strength ens the remedies available to candidates and tenderers who feel their rights have been in
- - -
15/3/ Injuries Board Cases Give effect to Statute of Limitations expiry date should read 30 November SI 131/2010 131/2010 SI ublication of advertisements in this section is on a fee basis and does not represent an endorsement by the Law Society of Ireland. Publication of advertisements in this section is on Apologies for any inconvenience caused. in Personal Guidelines for Solicitors 30 November 2009 as is stated in the booklet. Statute of Limitations – page 7: practitioners are asked to note that, in the example given on page 7 of the booklet (Guidelines for Solicitors in Personal Cases), the Contents Contents note: Procedures) Regulations Regulations Procedures) 2010 Number: Directive 2007/66 insofar as it amends Directive 92/13 cover ing procurement procedures of entities operating in the water, sec postal and transport energy, tors. Strengthens the remedies to available and candidates ten European Communities Communities European Utility by Contracts of (Award (Review Undertakings) under the directive and related matters. Commencement date: 2010 G The tribunal ordered that Do stand advised and monished, ad- Pay the whole of the costs of the Law Society of Ireland, of master taxing a by taxed as of default in Court, High the agreement. ribunal the respondent solicitor: the respondent solicitor: a) b) 2 General 3.5 General 3 Management and professional development skills* skills* + 1 regulatory matters** 5.5 Management and professional development development skills/regulatory matters 2.5 Practice management and professional 3.5 General 3 Management and professional development skills* 2 General 3.5 Management and professional development skills* + 1 regulatory matters 3 Management and professional development skills* 3.5 General 2 General ribunal inquiries areribunal by the published Solicitors’ Accounts Regula- €112 €168 €112
€175
€140 €168 €168 €112 €168
€224 €196 Full hours cpd €112 he failed to ensure there furnished was to the Society an ac- countant’s report for the year ended 31 within six months of December that date, 2008 in breach of regulation 21(1) of the in 2001, of 421 no SI 2001, tions a timely manner. ALSO €84 €126 €84
€131 €105 €126 €126 €84 €126
€168 €147 Skillnet/ €84 public sector fee ee F T in T in ** This fulfils your full regulatory matters requirement for 2010 ** (applicant) Michael Browne (respondent solicitor) On 23 February 2010, the So- licitors Disciplinary Tribunal found the respondent tor - solici guilty of misconduct in his practice as a solicitor in that - - - W: www.lawsociety.ie/cpdfocus P: 01 8815727 F: 01 672 4890 E: cpd focus @lawsociety.ie une 2010 may/j ogramme *This fulfils your full management and professional development skills requirement for 2010 the Finance Act 2010 and will drafting for the new decade Current trends in examinership Microsoft Outlook Radical changes to CA How to work smartwith a practical guide needs to know Setting up in practice: what every practitioner the Finance Act 2010 and will drafting for the new decade Law Society regulation: Radical changes to CA will benefit under the new act smartWorking with Outlook the most of your day Timemaking management: professionals Finance for non-finance Probate litigation
(2072/DT pr For full details on all of these events, visit www.lawsociety.ie/cpdfocus or contact a member of the CPD FOCUS team on: For full details on all of these events, visit www.lawsociety.ie/cpdfocus Solicitors Acts Land and Conveyancing Law Reform Act 2009 – DVD and materials available for purchase: €55 The Land and Conveyancing Law Reform CPD FOCUS Skillnet Training CPD FOCUS Skillnet 14 June 2010 14 June 2010 14 June 2010
12 June 2010
9 June 2010 4 June 2010 31 May 2010 25 May 2010 rbitration: how your clients a 25 May 2010
19 May 2010 13 May 2010 Date 11 May 2010 eVent advising the client in custody
olicitors DisciplinarySolicitors T Reportsisciplinaryof Solicitors D the outcomes of T IrelandLaw Society of as provided the section 17 of (as amended by in section 23 for Act 1994 Act 2002) of the Solicitors (Amendment) Solicitors (Amendment) 116/09) Law Society of Ireland ing as Michael Browne, So licitors, James Street, West port, Co Mayo, and in matter the of the 1954 to 2008 In the matter Browne, of a solicitor Michael practis www.lawsocietygazette.ie 2010 MAY Gazette Society Law briefing 50 briefing 51 - - - - Child Child Child Child , , High for the re Convention on – – wrongful removal ) ) – law y update www.lawsocietygazette.ie
amil f hild abduction hild Brussels Brussels II the Rights of the Child. the of Rights the pursu made was An application the of provisions the to ant Cus of Enforcement and Abduction tody Orders Act 1991 turn of children. The applicant chil the of two of father the was dren and claimed to be father to the third. The were children C on the Civil Convention Hague Aspects of International Child Abduction – habitual residence – England – – – proofs defence risk grave Abduction and of Enforcement Custody Orders Act 1991 – Council Regulation 2201/2003 ( plaintiffs by way of explanation for their extraordinary failure to progress the case since pro- ceedings issued. The dants had waited 11 years since defen- proceedings commenced as to events occurring 33 years ago. The pre-commencement delay ranged from six years and three months to 17 years and months nine from the last alleged incident of abuse. A heavy re- liance would be placed on oral testimony. No particulars had been furnished, defendants despite demands. The first- the and dead, was defendant named none of the delay was attribut- trial Any defendants. the to able that would take place could not be said to have occurred within a reasonable period of The time. relief sought granted would and be the dismissed. proceedings No order for costs was sought. D(J) & Others (plaintiffs) O’K v (DJL) and Brothers Charity of (defendants) 6/10/2009 Court, ------2010 MAY Gazette Society Law proof of guilt. guilt. of proof Compiled by Bart Daly firstlaw , , High Court, prima facie prima Hedigan J held that very elay elay level of of level It was readily conceivable that, where a garda encountered an after a vehicle driving individual and night, a Friday on midnight where gave that off individual a and failed of an smell intoxicant garda the that test, alcometer an in question might reasonably suspect that the individual was under as the influence to be in control proper having of capable of their vehicle. The accused was at times all in material law custody. ful Director of Public Prosecutions (prosecutor) v Shay O’Rourke (respondent) 2/7/2009 D of Want prosecution – dismissal of assault sexual – alleged proceedings – pre-commencement and commencement post- delay – whether real and serious risk of an unfair established prejudice whether – trial by death of first-named defendant testimony. oral of importance and proceed brought The plaintiffs ings against the defendants in sex alleged of series a of respect to tak have alleged ual assaults, en place in the course of medi cal treatment on dates between first-named The 1991. and 1976 defendant was now deceased, and the second-named defen dant was a The order. religious the dismiss to sought defendants claim of the plaintiffs for want of prosecution on the grounds of The delay. inordinate defen dants contended that there was culpable pre-commencement and post-commencement delay in respect of the proceedings. alleged was time of passage The to have given rise prejudice. to serious little had been offered by the - - - - - Road Traffic Road Traffic Road Traffic Act Road Traffic , , as amended, on the rish case law informationNews of Irish case available and legislation is from FirstLaw’s current awareness service on www.justis.com . . The accused returned a Hedigan Hedigan J answered the case he he accused had been stopped T at a garda checkpoint and had given a breath sample 4 section of the under 2006 fail result and was pur arrested suant suant to s49 of the sequently in the garda station was therefore inadmissible in evidence. It was submitted that the offence the garda had pur ported to arrest the accused for was one not known to the law (as the wording in the relevant section was in fact it In different). was addition, that, claimed the used had garda the although there control’, ‘improper phrase the in unusual nothing been had of driving the as accused he ap case A checkpoint. the proached was then stated for the opinion whether to as Court High the of the arrest of the accused lawful. been had stated as follows. The slightly incorrect description provided by the garda while giving his evidence at trial was an error of the utmost of triviality. There mind the in doubt no be could or the judge, district the indeed parties to these proceedings, as to which offence was suspected by the arresting garda. It was also clear that a garda was not obliged to be satisfied beyond doubt of the commission of an offence before effecting an ar rest. The burden was the to rise even not a did and one, light Act Act 1961 opinion of the arresting garda that the accused had consumed an intoxicant to such an extent of control he that had improper place. public a in vehicle motor a It was by submitted counsel for the accused that the arrest of the accused had been unlawful and that all that occurred sub ------– – in Road Copy , as amended. No No amended. as , Copyright Copyright and Re y , , High Court, Charleton Charleton J granted the in criminal law criminal intellectual intellectual propert oad traffic offences offences traffic oad opyright R Case stated – powers of arrest – detention – evidence – of wording relevant statutory provision – whether accused lawfully detained – whether arresting garda properly had formed opinion – Traffic Acts 1961-2006 – Courts Courts – 1961-2006 Acts Traffic Supplemental Provisions Act 1961. right right and Amendment Act Related 2007 fringement of copyright – whether Rights infring of transmitter innocent an of subject made be can material ing damages. – order injunctive an for an applied in The plaintiffs requiring injunction terlocutory the defendants to block access the to subscribers internet its by which website thepiratebay.org, permits the infringement copyright owned by of the plain works. musical their in tiffs junctive relief (on the basis of affidavit evidence), that an innocent holding party whose facilities are being used (pub over licly channels available the internet) for the transmission of copyright materials, thereby infringing copyrighted works, can be made the subject of in junctive relief under Directive in as implemented EC, 2001/29 s40(4) of the Act Rights lated to relation in made was decision damages. EMI Records (Ireland) (plaintiff) Ltd v (defendant) Eircom PLC 24/7/2009 C Interlocutory injunction – ------certio ultra ultra vi , which prohibited prohibited which , Fisheries (Consolidation) Fisheries (Consolidation) or any provision other quashing the 2008 bye-law Mr Mr Justice Hedigan refused in purporting to introduce Bye-Law 2008 Bye-Law them from fishing the harbour, notwithstanding the grant of licences. The applicants were granted leave to seek, among other things, an order of rari and an order of re prohibition straining the respondent from harbour. the close to purporting related various sought also They declarations. They contended, among other things, that the respondent had acted res the 2008 bye-law, in that nei ther the provisions of section 9 of the Act 1959 were broad enough to permit a blanket ban on fishing. They also submitted that it had been to fair regard due without made not had they that in procedures, been time sufficient afforded to in make respect representations of it, and that it discriminated in respect of different types of fishermen operating within the area. same the relief sought, holding that granted act 1959 the of 9 section a the broad array respondent of powers to make bye-laws relat ing to the of fisheries the state. The default rule of was interpretation statutory that a literal approach had to be taken the to provision under examina tion, and it was only in limited circumstances that the ciple prin could be departed from. In section interpreting 9 of the 1959 act, therefore, it was not read to court the of function the any or limitations qualifications into the powers conferred on the respondent, in the absence of some patent ambiguity absurdity. Affording or the terms of section 9 their plain mean 2008 the upholding thus and ing bye-law as lawful did not result in As any a degree of absurdity. general rule, decision-making bodies whose determinations were likely to impact upon heavily the livelihood of citizens were to obliged afford a certain ------– dis – – whether Habitats Di Habitats South Western Western South Habitats Habitats Direc (no (no 844 of 2008) , , High Court, (SI (SI no 94 of 1997) – ultra ultra vires – bye-law – ministerial – ministerial – bye-law European Communi eries audi alteram partem alteram audi ). ). They had been granted h (no 14), sections 9, 67 – stat – 67 9, sections 14), (no and of the fish preservation is f Fisheries Act (Consolidation) applicants applicants afforded sufficient on op submissions make be to portunity introduction of bye-law – whether made in bye-law of breach right to it by affected those of procedures fair – discriminated applicants whether against – ties (Natural Habitats) Regula tions 1997 Region Fisheries Western South No 7 Kerry District Conserva tion of Salmon and Sea Trout Bye-Law 2008 – 1959 peal, but which has not been the the been not has which but peal, subject of an investigation by the or commissioner been cov ered by a section 13 report and recommendation, nor included in a notice of appeal, raised a ground of weight and sufficient to arguability that warrant it be examined fully on a substantive relief. for application I & Ors (applicants) v Refu gee Appeals Tribunal & Ors (respondent) 31/7/2009 powers – extent thereof – fair proce fair – thereof extent – powers – dures introduction whether – crimination of bye-law rule primary – interpretation utory of – – approach construction literal section – whether words used clear unambiguous. and The appellants were drift-net fishermen who depended upon fishing in Castlemaine harbour harbour The livelihood. their for of as area a special is designated by Direc Council conservation tive (the 92/43/EC rective the by licences the party, notice Fisher Regional Western South of number a to subject Board, ies conditions. Shortly afterwards, the to respondent, ensure com pliance with the tive the passed stocks, Con District Kerry 7 No Fisheries Trout Sea and Salmon of servation Judicial review review Judicial Certiorari
------. , it is competent competent is it , to quash the deporta Immigration Act 1999 Act Immigration Cooke Cooke J leave to granted ap onclude onclude her claim in its deci ply ply for judicial review, holding that the issue of whether, a on correct construction of 1996 Act Refugee the by to adjudicate for the tribunal way of appeal on an individual asylum application, which has been joined with one or more existing applications under ap of the the of section section 13 report and recommen dation, nor included in a notice of appeal. H applicant, The fourth-named (suing by her mother and next friend PI), sought an order of certiorari H. of respect in made order tion moth her 2005, October 18 On er, the first-named applicant, completed an asylum applica tion on initially her own behalf newly of her on behalf later and born son. The commissioner recommended that refugee sta tus be refused; the first-named applicant’s subsequent appeal, held on 29 July 2008, covering mother and son, was quently unsuccessful; and, by a subse of decision 23 2008, September 13 section the and rejected was it recommen and report negative deci This affirmed. were dation the determine to purported sion appeals of both her dependant O and children, H. H was born in the state in 2007, was never included in the asylum applica after included only was and tion, sub was It report. 13 section the directed issue net the that mitted that, because the fourth-named applicant was never included in the asylum or, application at after until included not rate, any the section 13 report had been stage investigation the and given the concluded, procedure of the tribunal had no jurisdiction to c determine to purport to and sion in respect application an asylum of her. She could therefore not be considered a failed not is she asylum result, a as and, seeker the whom of respect in a person a make to power the had minister s3(2)(f) under order deportation ------High High Court, Refugee Act lum y , it is competent for the tribu the for , competent is it Finlay Finlay Geoghegan J held immigration and and immigration as Judicial review review Judicial Leave application – deportation – whether, under the 1996 nal to adjudicate by way of appeal on an individual asylum applica tion that has been joined with one under applications existing or more appeal, but which has not been the subject of an investigation by the or commissioner been covered by a 21/10/2009 that the court would exercise its its exercise would court the that discretion to make an order for the return of all three children. A stay would be put on the or McC (otherwise (C) A v plicant) (C) (respondent), habitually habitually resident in England Ireland, to removal their to prior as wrongfully, was accepted by the parties. The father sought an order pursuant to article 12 return the for convention the of The England. to children the of mother alleged that the father and past in the violent been had that a risk grave to the of safety event the in existed children the had mother The return. their of commenced proceedings in an English county court and had obtained a or non-molestation der in 2008, restraining the fa certain from children the of ther behaviour. or actions der for return. The move made by the mother was in breach of which of order court English an she was aware. Having regard to the nature of the children’s objections, the ages and degrees thereof of maturity, court the would not depart from the policy of the convention. The mother had to give dertakings un to promptly pursue her application to the English courts for permission to relo Ireland to children the with cate and that she would attend any court hearings of meetings as directed. In the matter of A(C), and A(C) A(C) (Minors); A(C) (ap www.lawsocietygazette.ie 2010 MAY Gazette Society Law briefing 52 briefing 53 ------, , be per se , , High Court G www.lawsocietygazette.ie such, such, was an activity that could 261 section under be controlled rights, Property act. 2000 the of as protected by the Constitu said to to rights property injure an extent sufficient to warrant compensation. Neither could the imposition of necessary conditions for proper planning and sustainable compensa to right a to rise give development tion, were not absolute, and the were not tion, absolute, power of the state to regulate a recognised was land of use the nev could It right. that on fetter er be said that was there an un restricted right to use property for quar including any activity, rying, regardless of the effects that activity had on the enjoy ment of other persons of their Not properties. and health lives, all interferences with property compensa require would rights consti ensure to paid be to tion tutional Compensa legitimacy. tion would be required in cir where was property cumstances wholly expropriated or where the bundle of rights that con was substan ownership stituted tially taken away, but lesser in pri to right the with terferences require not would property vate a of absence The compensation. sec in compensation for proviso tion 261(6) of the 2000 act was not a material consideration in arriving at the construction of section 261(6), as the mere re quirement to obtain planning could permission not, descrip a of absence the In tion. to conditions of types the of tion be in imposed 261(6) of section the and act, 2000 in of light the condi which under criteria wide con the imposed, be could tions on imposed be could that ditions the operation of quarries could encompass the wide spectrum of the various normal planning to likely were these as concerns, carried by works the be affected out at a given quarry in its par location. ticular M & F v Quirke An (applicants) Bord Pleanála & Oth ers (respondents) 6/10/2009 ------2010 MAY Gazette Society Law intro Planning Planning , section 261. section , quashing the deci Planning and Devel and Planning in relation of the op Planning and Development and Development Planning certiorari Mr Mr Justice O’Neill refused Section Section 261 of the eration eration of quarries in sub They state. the in various locations the of imposition the that mitted conditions, principally the pro make would blasting, of hibition the of operation the so quarries onerous as to lead to the cessa They thereon. quarrying of tion also contended that the under deci conditions impose to sion subsection 6 rather than 7 was unlawful, unfair and irrational, as it meant that they were not to entitled apply for compensa therefor. tion the relief sought, holding that, method a merely was blasting as of extraction, it could not considered be to be synonymous with or an integral part of an existing right to quarry and, as sions sions of the respondent to im pose various conditions upon 261(6) to section pursuant them of the Act 2000 and Development Act 2000 and Development for registration of system a duced there 6 subsection and quarries, of authorised the imposition of a of operation the on conditions op commenced had that quarry erations prior to 1964 and that had been previously planning granted permission. Section 261(7) requires the making of a fresh for application planning permission for certain extant quarries that are over a thresh old size or are located within a nature conservation area, and compensation is provided for 8 in such where per subsection is mission or refused conditions are attached under subsection were 7. all own The applicants ers of that quarries had been in operation prior to 1964. They apply, to leave granted been had among other things, for orders of sons for planning decision – whether whether – decision planning for sons – reasons inadequate whether con ambi or uncertainty for void dition breach respondent whether – guity ing requirement to abide by fair – procedures opment Act 2000 Act opment ------, , High – whether deci whether – ultra vires vires ultra elopment v Clark Clark J refused the applica planning and and planning de uarrying two-year time limit provided for for provided limit time two-year in the legislation required that be for the forfeiture application made while the money in ques tion tion was being detained, that and the phrase ‘application is made’ required the respondent and court in up stand actually to not was which order, the request application the case, this in done adjourned. been having tion, holding that ss38, 39 and 42 did not create any offences provi not were and penalties or sions of a penal nature. Section en an was act 1994 the of 39(1) abling provision. The applicant at was any entitled, time during the into process investigative the origins of the money, to apply The money. the of return the for narrow and strict interpretation of the wording ‘where an ap is plication made’, sought to be not was applicant, the by applied The term appropriate. ‘applica tion is made’ was court familiar language with a specific mean ing, and not a phrase that being for re construed be to quired or or obscure where ambiguous be would interpretation a literal or absurd it where fail would to the of intention plain the reflect Oireachtas. Application by way of notice originating of motion was a well-recognised method for initiating proceedings with sup generally and pleadings out ported by affidavit. The mean ing of the phrase ‘application is made’ included the issue of a re not did and motion of notice demand oral actual an that quire judge. the to made be R(JG) (applicant) v DPP Others & (respondents) 31/7/2009 Court, Q Extent to which existing land use rights may be encroached upon – imposition of planning conditions on of operation existing quarries – whether sion sion – irrational duty to give rea ------Criminal Criminal iew v , , as by amended , , High Court, Proceeds Proceeds of Crime Act 100,604.66 100,604.66 seized by € , , and an order returning a udicial re udicial j procedure and ractice P Interpretation of Criminal legislation Justice – Act 1994 Proceeds of – Crime Act of a the – of issuing notice whether 2005 to motion was sufficient amount to an to application court or whether to actu was required the applicant ally ally address the judge in order for made. be to application an injunc an sought applicant The first-named the prohibiting tion respondent from making any application in purported reli ance of s39 of Act Justice 1994 the s20 of the 2005 sum of the second-named respondent. seized been had money of sum A from the applicant and was de tained from time to time fol lowing applications to the Dis trict Court. At no stage did the seek applicant the return of the money. Subsequently, the re of mo a notice issued spondent 1994 the of s39 to pursuant tion the of forfeiture the seeking act, due However, seized to money. court, the in work of volume the the matter did not proceed on the return date. The applicant aforementioned the sought then review, of judicial by way orders respondents the that basis the on were out of time for an seeking order of forfeiture. Essentially, the that submitted applicant the degree degree of consultation and to provide certain items of infor mation to those affected. The consultation process engaged in by the respondent with the applicants met that ment. require The 2008 bye-law not did amount to an act of invidi ous as discrimination, its intro duction was by necessitated the state’s obligations under Euro law. pean v (applicants) Others & Teahan Minister for Communications, Energy and Natural Resources (respondent) 18/8/2009 ------’), ’), also (the Evropa ’) ’) (together, European Com European European European Communities Remedies Regulations Remedies Procurement Procurement Regulations be provided by setting out The The Utilities Utilities Regulations applicable applicable to the contract (as this is not the same in unsuc all each For EU states). member must notice the tenderer, cessful also include a summary of the reasons for rejection of its ten der, which must comprise the name and the “characteristics and relative advantages” of the winning tenderer. The phrase practi to familiar be will quoted from the tioners munities (Award of Public Author Public of (Award munities ities’ Contracts) Regulations 2006 and the Un Utility by Contracts of (Award 2007 Regulations dertakings) ‘ the ‘ wherein wherein a similar requirement to provide this information is imposed on public authorities that receive a request from an Note the tenderer. unsuccessful difference, however, that this information must now be pro vided in the initial unsuccessful tenderer letter. Having regard to the above requirements, it will not be for possible a public notice generic issue to authority letters to unsuccessful partici to have will letter as each pants, be amended to reflect the rela tive advantages of the winning the with compared when tender recipient. the of submission provide provide that the summary rea sons sons for rejection of a tender may the scores obtained by the un of and those tenderer successful the On successful tenderer. the basis of EU case law (see Cases and T-59/05, T-272/06 ------Remedies Remedies Remedies Reg Remedies , , the award decision Remedies Remedies Regulations is not issued, it is pos The The According to the the decision to award a contract a contract to award decision the competi a of tender subject the tion. It is essential to note that sending due and proper notice of the contract award decision triggers the commencement of the standstill period. If notice that complies with all the re in the quirements ulations sible that a court will consider not did period standstill the that commence and, consequently, that the contract was awarded in to of breach the requirement observe a standstill period; this would potentially have drastic implications. of the de notification that state cision of the to authority award the contract must be sent to all “concerned” candidates tenderers. and This will naturally include the successful and the tenderers, but unsuccessful also includes candidates that not did pre-qualify to whom tender the to contracting author ity did not, at the time of their exclusion from the information available make tion, competi about their rejection. It might au public for be expedient thus issu of habit a make to thorities with candidates unsuccessful ing about information the rejection no further that so immediately, tification requirements do not arise at the award stage of the competition. Regulations notice letters must inform the of made, the decision recipients and the exact standstill period ------are: are: Remedies Remedies Regulations Remedies Regulations Remedies tion tion obligations are imposed on public authori procuring ties, pre (which still requirement viously existed at EU level law), case in only petition, Automatic suspension of the contract award when court commenced, are proceedings and ineffec of remedy ‘new’ The tiveness. Additional Additional up-front notifica Formalisation of the stand Introduction of important changes to the time for limits applications to court for review of decisions made in the context of a tender com The The key changes contained
otification requirements otification N have changes important Several been made to the notification requirements imposed on public authority when it makes a 4) 5) 1) 2) 3) datory, datory, while others leave EU member states with an element of choice. The pol transitional icy of the is that they apply to decisions taken by public authorities af operation, into coming their ter regardless of when the relevant tender competition Contrast this with the position started. in Britain, where the national legislation transposing the di rective applies only to procure or on beginning processes ment implementation of date the after De 20 is, (that legislation the of 2009). cember the in tion; tion; some provisions are man ------News from EU and International the Affairs Committee Director Law Society of Ireland of Education, Edited by TP Kennedy, and Direc European European (amending European European Com Remedies Remedies Regula legal eur and the ) ) with to regard im Remedies Remedies Regulations n n important milestone in the field of public procure ’) were signed by the Minis the by signed were ’) The The directive gives some Providing Providing national correc stronger with unified courts The The and procedures, review tual tive mechanisms in the field law. procurement public of Clarifying and improving the the improving and Clarifying effectiveness of pre-contrac Introducing a Introducing higher level of govern rules of coordination ing procurement procedures and challenges across EU, the
A ment ment law was reached on March 2010: it was the 25 date on which the new munities (Public Authorities’ Con Authorities’ (Public munities tracts) (Review Procedures) Regu lations 2010 of (Award Contracts Communities by Utility Undertakings) (Review Procedures) Regulations the (together, ‘ 2010 scope scope regarding implementa tive tive appears to be to encourage increased cross-border tender the EU by ing within providing greater certainty of rights and procedures review strengthened tenderers. for transpose transpose into Irish law • The ultimate goal of the direc tions Finance. for ter tive 2007/66/EC Directives 89/665/EEC 92/13/EEC • proving proving the of effectiveness re the concerning procedures view Gen of contracts. award public ef principal the speaking, erally are: directive the of fects • Buyers bewareBuyers procurement – public Regulations new Remedies and the www.lawsocietygazette.ie 2010 MAY Gazette Society Law briefing 54 briefing 55
------state state contract contract Uniplex Uniplex UK Ltd Remedies Regulations Remedies www.lawsocietygazette.ie The The While While the 30-day time limit for limit time six-month The An award notice in respect of the concluded contract is or published, The and tenderer each procuring notifies ity author candidate concerned of the “outcome of his tender or application” and such notice for reasons summary contains or ap tender of the rejection not be This should plication. confused with the (pre-con tract) award decision notifi cation requirement. In both the directive and the British transposing legislation, it is the “conclusion of the con tract” that is the subject of this notification, rather than the outcome of the tender/ application (which could be interpreted as simply being the rejection decision). This appears to make more sense, as the intention is a award post- notification for purposes the of shortening the limitation period, in which the that fact the case had had been concluded would be relevant information for
and and C-406/08, Authority Services Business NHS v wording. such affecting of may the that pro rules court vide for the court to grant leave leave to for grant the court vide the after to an make application latest permitted time if it con reason “good is there that siders mirrors wording This so”. do to the equivalent provision previ 84A. order in included ously applies to most period limitation the challenges, procurement date the from months six be will of conclusion of the contract where the remedy sought is a declaration of ineffectiveness. where an anomaly creates This may periods review by different apply to the same alleged in fringement, depending on the sought. remedy claims is not ineffectiveness ab re intentionally be can it solute; duced by a procuring authority where: days calendar 30 to a) b) ------2010 MAY Gazette Society Law Rem having Rules of the Su the of Rules , , the limitation Remedies Regula Remedies , , which stated that Commission Commission v Ireland is that the limitation period period limitation the that is ime limits for applications for limits ime procuring authority is bound to authority procuring to relation in standstill a observe a contract not governed by the Procurement Regulations, pro the itself bound voluntarily therein. out set cedures T Prior to of enactment the edies Regulations period applicable to procure ment challenges was set out in the of 84A order perior perior Courts had to applications be made “at the earliest opportunity and in any event within three months grounds the when date the from for the application first arose”. One of the changes in the most important tions calendar “30 to amended now is noti was applicant the after days fied of the or decision, knew or ought to have known of the in in alleged the appli fringement version earlier an While cation”. regulations remedies draft the of had repeated the requirement that challenges be the taken earliest “at opportunity”, this was hastily removed following a recent ECJ decision in cases C-456/08, ------Goujons or tenders: you decide Public Sector Regu Sector Public Regulations Remedies , or , ([2009] NIQB 15), in lations No concerned tenderers or ten the in remain candidates der competition except the or entity, winning For call-offs under frame work agreements namic or purchasing dy systems (although, in such case, public authority may protect a itself from the possibility of a mandatory declaration of by voluntarily ineffectiveness observing a standstill; on). later discussed be this will prior prior publication of a con such of respect in notice tract a contract, for example, for sub contracts service B’ ‘Part ject to the
Federal Federal Security Services Lim b) c) to advised are authorities Public with disposing about cautious be a standstill period in relation to the award of any contract, however, even where one the specified permitted deroga of tions in the apply, on the basis of a recent judgment in Northern Ireland ( Court Ireland Northern The v ited Service which the court held that there are circumstances in which a ------, , but of the the of ). ). The day of th Procurement Procurement Procurement Procurement Remedies Remedies Regula do not require ), however, ), it however, is un Alcatel Alcatel Austria and . Remedies Remedies Regulations Remedies Regulations Remedies state that the standstill Procurement Regulations Procurement The The The The relevant Regulations
tandstill period tandstill mum mum required standstill period differs from country to country ten is it Britain, in example, for – notification where days calendar fax. or email by sent is the standstill period. The period. the mini standstill ïki ïki Dynamik outcome of its tender or appli S standstill legislative a Ireland, In period was already enacted in the likely that simply setting out the the out setting simply that likely of and recipi scores the winner ent will satisfy the information authorities Public requirements. some include to advised well are form of explanatory narrative as to why the winning tender achieved higher scores. Infor mation to required be provided be may letters notification the in authority public the by withheld in certain which circumstances, are equivalent to the deroga tions set out in the Regulations cation. Moreover, the contract that is the subject of the com should not petition be executed until after the final 14 state state that a standstill period is not prior required to the award where: contract a of a) Others Others v Bundesministerium für Wissenschaft und Verkehr period for a contract begins on the day after the day on which each tenderer and ac in notice a sent is concerned candidate this this situation was not reflected num a in Rather, EU. the across ber of EU member states, the a stand to observe requirement the from derived simply was still case law of the ECJ (per Case C-81/98, period of the duration standstill will it change: not will Ireland in still be 14 calendar days (pro vided the tenderer unsuccessful notice letters are sent by email or fax). The tions the requirements with cordance the of ------Remedies Remedies Regulations set A A penalty fine of up to 10% of the value of the contract, and Termination, or shortening of the duration, of the con tract. It is specified that an award of damages alone is not an appropriate alterna penalty. tive As mentioned previously,
declare declare a contract ineffective if it finds (having considered con all it that matter the of aspects Regulations specify that a court may make any order necessary in the interests of justice to en- sure proper payment is made siders relevant) that “overriding that “overriding relevant) siders to a relating in reasons general terest” require that the effects of be should the main contract a In tained. such circumstances, court must impose alternative penalties in the form of either of: both or a) b) The out detailed guidance on interpretation the of the “overriding reasons relating phrase to a general interest”. They state that economic reasons can only be a permitted justification in exceptional circumstances ineffectiveness if would lead to disproportionate consequenc- es. Moreover, it that is economic reasons directly specified linked to the contract in ques- tion can never be reasons; overriding this would include all costs from delay in out the remainder carrying of the con- tract, launching a new tender competition, as well as and costs expenses resulting the from change of contractor and the procuring authority’s legal obligations resulting from the ineffectiveness. the consequence of ineffective- cancellation, prospective is ness such that contractual obliga- tions not already are performed cancelled but obligations performed are not Although this affected. appears drastic, private sector contracting par ties may get additional comfort from the fact that the , ------OJEU a a new ) ) apply OJEU give the the give a voluntary voluntary a OJEU transparency notice”, is Remedies Regulations Remedies The The implications of a public Firstly, where no Secondly, when granting require if a mandatory Even Azienda Azienda Gas-Acqua Consorziale (AGAC) di Reggio Emilia when they do not. In addition, and perhaps most worryingly, variations that held has ECJ the to the provisions of will currency its during a contract public actually be considered amend the if contract a of award ed contract is materially different different materially is contract ed in from character the originally Such contract. a tendered ‘new’ sepa been have should contract rately advertised in the requirement above the so, if and, by ineffective it be declared that applies. court a ineffec being declared contract tive may be considered drastic, but there are a number of mea sures that a authority procuring can take to protect itself from the possibility of a mandatory ineffectiveness. of declaration notice has been published respect in of a contract, but the procuring authority fears inad of breach the obligation vertent to advertise, the public author ity can protect itself from decla the mandatory a of possibility pub by ineffectiveness of ration the in lishing prior transparency notice, stat ing that it intends to conclude a contract and by observing a thereafter 14-day period. This standard form standstill no tice, referred to as a “voluntary ex ante now available on the tenders’ electronic daily website (http:// ted.europa.eu). high-value call-off contracts, a contracting avoid authority the possibility of manda can tory ineffectiveness by issuing notice of the call-off contract award decision (including sum mary reasons for rejection) to the unsuccessful tenderers and respecting a voluntary 14-day period. standstill ment of ineffectiveness applies, the court discretion to decline to ------Teck Remedies Remedies Regulations The The value of the call-off contract exceeds the rel and threshold, EU evant No standstill period respect of the in call-off was by procuring the observed authority. The The conclusion of contract has deprived the the claimant of the possibility pre-contractu pursuing of This This was coupled with a separate infringement of the claimant’s the affected that chances of obtaining the and contract, and remedies, al
• • • • cluded cluded during the standstill period or automatic suspen that: provided sion, The The first of these three situ Where Where the procedural rules for awarding call-off tracts con under a framework or dynamic purchasing system are not followed, provided that:
These These are all circumstances in which a court is compelled to make a declaration of ineffec tiveness (subject to certain ex Note below). discussed ceptions that, otherwise, the court has a general power to declare the awarded contract so. do to obliged not ineffective, is but ations ((i) above) is create likely the most to headaches for contracting authorities, since there are many diverse circum the which in conceivable stances contract advertising obligation could be breached. Not illegal deliberate cover this does only direct award of contracts, but also tainted are diverse situa au a as such where public tions thority in good faith considers that an to exemption the adver tising requirement applies, for by the example, nego adopting tiated procedure without prior publication of contract notice, not are preconditions the where actually satisfied or by presum ing that the ‘Teckal in-house C-107/98, Case (per rules’ al Srl v Commune di Viano and iii) ------in Official Official prevent the prevent Remedies Remedies Regula advertising obliga Remedies Remedies Regulations state that a court must de OJEU) unsuccessful entities, and per and entities, unsuccessful haps the will Irish provisions the with line in interpreted be directive. the of wording Where Where the contract is con Where Where the public ity author has breached the of Journal Union the European ( tion, Ineffectiveness is reserved for for reserved is Ineffectiveness
eclaration of ineffectiveness of eclaration utomatic suspension utomatic
A The ii) clare clare a inef contract concluded situations: three in fective i) tions the most serious of procurement procurement of serious most the breaches. The clude clude new automatic suspen sion whereby a provisions, pro curing authority is prohibited from concluding a contract if court proceedings are initiated to challenge any decision it has made in the context of the ten der competition for the award of such contract. An applicant is not required to apply for an injunction to prevent the con clusion of the contract, and the Regulations Remedies public authority from doing so the of matter subject the (i) until proceedings is determined by sus the lifts court the (ii) court; or the proceedings (iii) pension; of. or disposed are discontinued pro review commencing Before cedures, the claimant must no tify the procuring authority in writing of the alleged infringe ment and its intention to make court. to application an D of ‘ineffectiveness’, remedy The not is terminology, in new while a novel concept for the courts, as Irish they already had the power (though seldom used) to set aside concluded contracts, unlike some of their European consequences The counterparts. of a declaration of ineffective ness are that, from the date of the declaration, all future con con both of obligations tractual tracting parties are completely cancelled. www.lawsocietygazette.ie 2010 MAY Gazette Society Law briefing 56 briefing 57
------2 yin yin A thers, on juris O which ap , G
onvention C bdulla bdulla and convention A ugee law ugee www.lawsocietygazette.ie f Lugano Lugano The The French scheme at issue In 2005, circumstances in Iraq Iraq in circumstances 2005, In litigation re arch arch 2010. The applicants are ners ners as a area discrete specialist be instead must – but law the of for a consideration present real, public- advising professionals all purchasers. sector Alina Alina Prendergast is a solicitor in the construction department FitzGerald. McCann in a scheme. scheme. a required payment to the training club, not of training compensation but for of damages amount – of which the was unrelated incurred costs to real training the by the training club but in rela tion to the total loss suffered by it. Therefore, the French scheme to necessary is what beyond went encourage recruitment and train ing of young players and to fund activities. those plies plies jurisdictional and enforce ment of judgment rules (broadly similar to those entered 44/2001), into force be in Regulation and states member EU the tween January Norway1 2010. on Salahadin Salahadin M Iraqi nationals who were granted refugee status in 2001 and Germany 2002. They relied in on a number of reasons that made them fear being persecuted Iraq by the Saddam gov Hussein in diction diction and enforcement of judg effectwith ments from 1 January 2011. The ernment. had changed and their recogni tion as refugees was The higher revoked. administrative courts Switzerland Switzerland has decided to ratify the C-27/08, C-175/08, cases Joined C-178/08 and C-179/08, ------2010 MAY Gazette Society Law Bosman scheme providing providing scheme A The The court took the view that However, the court had accept had court the However, The The new remedies regime, ed ed in Case C-415/93, that, in view of the considerable importance of sporting activities, and, in particular football in the EU, the objective of encouraging the recruitment and training young of players must be accepted as legitimate. whether a In system that such of restricts movement of considering freedom the players is to suitable ensure this not does and attained is objective go beyond what it necessary, ac count must be taken of the spe cific characteristics of sportparticular, in football and general, in education and social of their and function. al the prospect of receiving training football encourage to likely is fees train and talent new seek to clubs players. young for the of payment compensation for where training a young player, a signs at of end the training, his professional contract with a club other than the one that trained him can, in principle, be justified by the objective of encouraging the recruitment and training young of players. However, such a of actu be capable must scheme ally attaining that objective and be proportionate to due it, taking account of the costs the borne clubs in by training both future professional players and professionally. those play never will who Thus, freedom of movement for workers does not preclude such trainee player from player his trainee exercising the Thus, movement. free of right freedom on restriction a are rules workers. for movement of declaration of ineffectiveness. ineffectiveness. of declaration together with the lower procurement EU thresholds plicable from ap 1 January 2010, are an indication of the ever- increasing prevalence of public should which – law procurement not be considered by practitio ------r - - - - M arch arch M t t the end A 16 , C livier livier Bernard and O SP SP v A In In 1997, Olivier Bernard The ECJ held that the employ ment ment of the trainee was an eco to subject thus and activity nomic EU law. The charter has the sta tus agree of a collective national employ at regulating aimed ment ment and, thus, also falls within The rules at of EU the scope law. issue are likely to discourage a Newcastle Newcastle United F ee players are aged between 16 train as employed are and 22 and ees by a club professional under a fixed-term contract. charterobliges the training, his of the trainee to sign his first pro fessional contract with the club that has trained him, if the club so. do to him requires signed a sea trainee three for Lyonnais Olympique contract with sons. Before that contract was due to expire, the club him a offeredcontract professional for a con that to sign He refused year. tract and signed a professional contract with Newcastle United FC. Olympique Lyonnais sued Bernard, seeking an damages award against him of and New castle United. The Court de Cas sation asked the of of free movement the ECJ principle whether workers permitted training clubs from preventing or discouraging trainees from signing club a football a with profes contract sional in another member state, as do ing so give rise might to an order damages. pay to 2010. 2010. The charter of the French football association rules relating to the employment Train France. contains in players football of nais nais S applicable applicable to infringements of Practi law. procurement public par in note, take should tioners change significant of the ticular, for period to tak the limitation the challenges, procurement ing mandatory suspension require implications dire the and ments, on a concluded contract of a ------intro lympique Lyon lympique O ement ement v law y ecent developments in European in Recent developments law ustria, ustria, Bulgaria, France, arch, the European Com European the arch, A M persons f ree mo ree amil Remedies Remedies Regulations The The partners’ choice of law law the that, applicable Failing This proposal would be ad f o f Greece, Greece, Hungary, Italy, Luxem opted opted under the enhanced co-op of treaties. the provisions eration It would apply in ten EU member states: bourg, Romania, Slovenia Spain. and Case C-325/08, Case C-325/08, On 24 24 On mission announced that it was re was it that announced mission regulation a for proposal a leasing setting out choice-of-law rules in in allow will proposal The divorce. ternational couples (couples with different nationality) to law the if applicable choose they were to close a have must They separate. to connection the law, applicable such as long-term residence or nationality. must be in writing and signed by can spouses the If spouses. both not agree on the applicable law, it is determined on the basis of a number of connecting factors. Divorce and legal separation are to the law of the subject primarily state where the residence. habitual spouses common their have had they where state the of that is habitual common recent last their residence if one of them still re sides there. Failing that, the law applied is that of the spouses’ common nationality and, failing it that, is the law of the be state brought. is matter the which fore ignificant changes ignificant duce duce a number of changes significant to the review regime S The for any obligation performed in performed obligation any for good faith, prior to the - decla ration of ineffectiveness being made. - - - - - the the G simply simply the simply or or streets streets help help or runners runners streets help alk alk Run Run runners to to alk Run the the all all to pack pack the all f f pack f eland, eland, the the eland, the of of of Ir Ir 2010 2010 Ir 2010 , , , after hoping after after hoping hoping possible of possible possible of of y y y 2010 people 2010 2010 2010 .ie/charity/calcuttarun people people as are 2010 2010 .ie/charity/calcuttarun .ie/charity/calcuttarun as as are are sponsorship e Place sponsorship sponsorship Ma e e Place Place W Ma Ma young W W un/W The The actors of protection with The court acknowledged that your money young young un/W un/W Place Society Calcutta. your your 15 money money vere violations of human rights”. rights”. human of violations vere respect to which the reality of a change of circumstances in the of state is origin to be assessed are either the state itself or par ties or organisations, including international organisations that control the state or itself, a part territory. its of the directive does not preclude the protection guaranteed by in ternational organisations from being ensured through the pres ence of a multinational force in the territory of the third In state. prob of standard the context, this used to the risk ability assess is the same as that applied when granted. was status refugee fears fears of being exposed to acts to “se amounting of persecution get .mycharity Place Place Society Society keep R Calcutta. Calcutta. Blackhall 15 15 y and to much 170,000. get get .mycharity .mycharity keep keep R R in ------Law € Blackhall Blackhall www khall y y as and and to to much much 170,000. 170,000. 4846 da in in GOAL at Law Law € € www www khall khall Dublin as as the music 4846 4846 raise raised da da Blac of and GOAL GOAL at at Run tur to Dublin Dublin 672 and the the by music music om raise raise forts raised raised Blac Blac rust of of and and fr Sa Run Run aim tur tur ef T to to BBQ 01 672 672 and and Supported by by om om .calcuttarun.com Calcutta will forts forts rust rust your erry fr fr ting Sa Sa aim aim , ef ef T T the www BBQ BBQ 01 01 Supported Supported McV to .calcuttarun.com .calcuttarun.com Calcutta Calcutta 2pm, year at Monster will will RUN RUN Star walkers your your erry erry ting ting up , , the the Last Peter www www and donate McV McV to to Calcutta 2pm, 2pm, year year In In order to reach the conclu They must operate an effec at at Sign Monster Monster RUN RUN RUN RUN Star Star walkers walkers un.com sion that the refugee’s fear of be of fear refugee’s the that sion ing prosecuted is no longer well founded, the competent authori ties must verify that the actor or actors of protection of the third state have persecution. the prevent to steps taken reasonable tive legal system for the detec punishment and prosecution tion, of acts constituting persecution con national the that ensure and cerned will have access to such protection if he ceases to have cir in change The status. refugee cumstances will be of a “signifi cant and non-temporary” nature the formed that factors the when per of fear refugee’s the of basis hav as regarded be may secution eradicated. permanently been ing There must be no well-founded up up Last Last Peter Peter and and donate donate ------Calcutta Calcutta Sign Sign un.com un.com .calcuttar www .calcuttar .calcuttar The The court held that a person in his state of origin, have a well- a have origin, of state his in persecuted being of fear founded on the basis of nationality, race, political religion, opinion membership or of a particular so cial group. These circumstances form the reason why the person concerned cannot, or justifiably refuses to avail himself of, the protection of his state of origin in terms of that to ability state’s prevent or punish acts of perse cution. loses refugee status when, fol lowing a change of circumstanc es of a significant and non-tem porary nature in the third state concerned, the that circumstances had justified the person’s fear of no persecution longer ex to reason other no has he and ist persecuted. being fear www www - - - - dministrative dministrative on minimum A CALCUTTA CALCUTTA
calcutta flyer.qxd 18/03/2010 10:28 Page 2 Page 10:28 18/03/2010 flyer.qxd calcutta
The The Federal The The directive provides that a in in Germany ruled that they were now safe from any persecution suffered under the previous re any under not were they and gime significantly likely new threat of further on persecution any other grounds. Court the asked Court of Justice for its assistance on the inter pretation of some provisions in Directive 2004/83 of for standards the qualification third country nationals as refu gees. person ceases to be a refugee that led when the circumstances him to be stat CJ The recognised exist. to as ceased have such ed that, in order to be classified by must, person the refugee, a as existing circumstances of reason You don’t have to run fun!! to have You Come along and join the party, friends and bring your family, colleagues for a great day out in Blackhall Place.
CALCUTTA CALCUTTA
CALCUTTA CALCUTTA www.lawsocietygazette.ie 2010 MAY Gazette Society Law calcutta flyer.qxd 18/03/2010 10:28 Page 2 Page 10:28 18/03/2010 flyer.qxd calcutta calcutta flyer.qxd 18/03/2010 10:28 Page 2 Page 10:28 18/03/2010 flyer.qxd calcutta
briefing 58 briefingprofessional notices 59
- - - : ould ould h Gazette Law Society Gazette Society Law 33 extra follows: € eques eques s Ch www.lawsocietygazette.ie
. town, town, Mayglass, Killinick, Co Wex ford; and formerly Court, of 38 Georges Melrose 56 Street, Cois Mara, Wexford; Rosetown, Strand, Co (also Rosslare Wexford previously and Leitrim Antrim, Derry, in resided Scotland), who died on 13 ary 2009. Would Febru any person having or having knowledge of a will made by the above-named deceased, who died on 26 June 2009, please contact Frances O’Sullivan, 69 Brooklands, Nutley Lane, Dublin 4; tel: 01 283 9339 Reynolds, late Joseph of The Bungalow, (deceased), Haggards office on tel: 01 672 4828 4828 672 01 tel: on office Deadline for June . lication 2010 MAY Gazette Society Law b late of Gazette box around it – The section applies to a person holding a lien. This The application shall be on notice by the applicant The last date for lodgement of applications was Where the certificate is claimed to be lost or de- must authority the as lengthy, be can procedure This reland I €144 (incl VAT at 21%)
otice Notice rates Registration of lien created through deposit or pos- session of land certificate or certificate of charge of holder a that provides act 2006 the of 73(3)(b) Section a lien may apply to the authority for registration of the lien in such manner as the authority may determine. a lodge to undertaking of letter solicitor’s a include may land certificate or certificate of charge. to the registered owner and must be accompanied the original certificate (see section 73(3)(c)). by 31 December 2009. Applications lodged after that date will not be accepted. Applicants must therefore ensure that the prescribed notices are served time, in as good the application may only be expiration of 26 days from such service. lodged after the stroyed, the applicant for a lien must first 170(2) apply rule for to pursuant its with, dispensed be to production Land Registration Rules 1972. satisfy itself that than (other the security as pledged been not has certificate and stroyed has been lost in- or would Proofs it). before application the of respect in de- owner registered and applicant the from affidavits clude the in directed be would notices and and a local or national newspaper. f o - - y or or prior to pu ociet f by putting a S who also resided in Donegal; Buncrana, Henry Co Street, and Limerick; last known ity of of Pallini, Polichrono, the Halkidiki, municipal- Greece. Would any person knowledge of having a will executed by the above-named deceased, on who 5 May 2009, please contact - Wil died Solicitors, Tansey Callan Henry, liam Crescent House, Boyle, Co - Roscom mon; tel: 071 966 2019, fax: 071 966 2869 O’Sullivan, O’Suilleabhain) (deceased), Donal 3 Road, St Glasnevin, Canice’s Dub- (Domnhail lin 11. Would any person holding aw aw €288 per deed (incl VAT at 21%) L mportant Notice: Important - - e e paid b essional Professional notice section are as €144 (incl VAT at 21%) le le to b your notice a Registration of Title Act 2006 - pro y Registration of Title Act 1964. The sec- Registration of Title Employment/miscellaneous – Lost land certificates – €144 (incl VAT at 21%) Wills – Title deeds –
• • • • ay 2010. For further information, contact the the contact information, further For 2010. ay Highlight rates in the M late of 12 Connaught Street, Street, of 12 Connaught late e e made pa ll ll notices must The subsection also provides that section 105 of the Section 73(2) of the 2006 act provides that land cer From 1 January 2010, both land and charge Abolition of land certificates and certificates of charge b 19 (fax: 01 672 4877) 01 672 (fax: A essional fessional pro Section 73(1) of the vides that the Property Registration Authority shall (PRA) cease to issue land certificates and certificates charge under the of tion commenced on 1 January 2007. Registration of Title Act 1964 (requirement apply only will charge) of to certificates or certificates land produce to certificates issued before commencement, and then only for a three-year period after the commencement of the section. tificates and certificates of charge issued before mencement of section 73 that are not com- already cancelled will cease to have force or effect three commencement years after of the the section, that is on ber 31 Decem- 2009. Until that furnished with all applications date, by the registered owner. land certificates must Certificates of charge, where issued, must be be produced on all releases of charge except where such release is by discharge. certificates will cease to have any force and and effect should not be lodged with applications. In cer the land the without lodged is application an if interim, tificate, where one issued, it will be rejected. If the land be should application the forthcoming, not is certificate held over and relodged after 31 December 2009. Limerick; DX 58001; tel: 068 31106, fax: 068 31394, email: [email protected] woulfemur McKenna, Sarah ceased), Frances anybody (de 7. Would Dublin Phibsboro, whereabouts of the knowledge having of any will made by the above-named 2010, March 26 on died who deceased, please contact McEnroe, Solicitors, tel: Sligo; 071 11-12 John Street, 915 info@ email: 1764, 917 071 fax: 0555, mcenroesolicitors.ie O’Malley, Joseph (deceased), late of Rossclave, Newport, Co Mayo; late late of 81 St Mobhi St 81 of late wills McGuire, late Fergus of Clondalkin, Dublin, 26 and (deceased), of previously Tallaght Cherrywood (address unknown) 57 Castlekevin and Grove, Road, Kilmore West, Dublin 5. Would any person having knowledge of a will executed by the above-named deceased, who died on 30 March 2010, please contact Fiona O’Sullivan, Woulfe licitors, The Square, Murphy, Abbeyfeale, Co So- McGrath, Mary (also known as Mai as known (also Mary McGrath, Cloon- of late (deceased), McGrath) dahara, Castlerea, Co any Roscommon. Would person having knowledge above-named the by executed will a of deceased, who died 2010, on please 19 contact January Padraig Solicitors, Strokestown, Co Kelly, - Roscom mon; DX 130002 Strokestown; 071 tel: 963 3666, quoting ref B/7/10 fax: 071 963 3182, McGrath, James (deceased), of Cloondahara, late Castlerea, Co Ros- common. Would any person having knowledge of a will executed by the above-named deceased, who died on Pa- contact please 2008, December 17 draig Kelly, Solicitors, Strokestown, Strokes- 130002 DX Roscommon; Co town; tel: 071 963 3666, fax: 071 963 3182, quoting ref: B/10/10 Gaynor, Gaynor, Mary (deceased), May) Ellen (otherwise Landy, Margaret (deceased), of Greystone Suir, Co Tipperary, who Street, died on 18 August Carrick-on- 2006. any Would person hav- ing knowledge of a will made by the above-named deceased please contact Paul Foskin of Foskin, Kinsella Solicitors, Heffernan khf@ email: Waterford; Otteran Parade, South House, khfsolicitors.com, tel: 051 877 766 Dennehy, Dennehy, Anne (deceased), late of 72 Palmerstown Avenue, town, Dublin 20. - Palmers Would any person having knowledge of a will executed by the above-named deceased, died who on 10 December contact Bowman 2009, McCabe, Solicitors, please 5/6 The Mall, Lucan, Co Dublin; tel: 01 628 0734, fax: 01 628 0832, email: [email protected] Road, Glasnevin, Dublin 9. any person Would having knowledge of the whereabouts of any will made by the above-named deceased, who died on 1 October 2007, please contact Daly Lynch Crowe & Morris, The Solicitors, Corn Exchange, Dublin Burgh 2; tel: 01 671 5618 Quay, (Mr Ken- neth Morris, solicitor) and in the Landlord Landlord and Landlord Landlord and - Ten Take Take notice that Dublin City ant (Ground Rents) (No 2) Act 1978 Act 2) (No Rents) (Ground ant and in the matter of certain lands and premises situate on the west and West Street Vincent St of side forming part of Emmet Crescent, situate in the parish Dublin by application an 8: Dublin of St Jude, City Council Take notice that any person having an interest in the freehold estate in the following property: all that land the demised by a lease dated 7 July 1828 made between Thomas Coul- ton (1) and William Haughton and therein (2) described as “that of plot ground situate on the Richmond Road next adjoining the Richmond Barracks containing in to breadth in depth and feet 78 rear to front from - there or feet 46 Road Richmond the admeasure- several said the be abouts ments or either of them more or less bounded on the north and south by ground in possession of said Thomas Richmond the by east the on Coulton and Canal Grand the to leading Road on the west by the lawn of Mr - Wil being ground of plot said Smith, liam situate lying and being on the Rich- mond Road next adjoining the Rich- Dublin of county and Barracks mond aforesaid” and now comprising part of Emmet Crescent, off St Vincent Street West, Goldenbridge, Dublin from years 270 of term the for held 8, the date of the lease, subject to yearly the rent of £2.10s.0d (€3.17) and the covenants and conditions therein their of notice give should contained, interest to the undersigned solicitor. the to successor statutory (as Council Right Honourable the Lord Mayor, Aldermen and Burgesses of Dublin) intends to submit an application of county to the for registrar county the the city of Dublin for the acquisition of the freehold interest and termediate interests all in in- the aforesaid that asserting party any and property, they hold a superior interest therein is called upon to furnish evidence of title to the aforementioned property to the below named within 21 days from the date of this notice. end of 21 days from the date of this notice and will apply to the registrar county for the county of the city of Dublin for directions as may be - ap person the that basis the on propriate the to entitled beneficially persons or superior interest including the - free hold reversion in the above property unascertained. or unknown are May 2010 Date: 7 Signed: Terence O’Keeffe (solicitor for the applicant), Dublin 8 Quay, Civic Offices, Wood In the matter of the matter of the Tenant Acts Tenant 1967-2005 - - Take Take notice that Dublin City In default of any such notice be- an interest in the freehold estate in the following property: all that, that part of the town and mainham lands of conveyed - Kil by grant a dated 21 June 1860, fee made be- farm tween William Stewart (1) and Hen- rietta O’Callaghan (2) and described as the “house or therein tenement wherein William dwelt Smith together with a piece formerly of commonly land called the all Seven the Quarry Banks Acres which Samuel posses- Hill formerly kept in his own sion the Furry Field adjoining to the Mr of possession the in formerly land Halpin the Great Field adjoining to the land of Crumlin with the Quarry Field the slip of to the ground said Mr orchard Halpin’s and adjoining meadow and all three fields formerly by containing Barton Edward by held estimation fourteen acres two roods the said premises containing in the whole forty eight acres and two three roods perches and less or more same the be measure Irish plantation by the said lease described as meared and bounded on the west to the said land on the Mr south Halpin’s to the lands of Crumlin on the east partly to the lands of Domvile William Esq and partly to the Petty Cannon Land and on the north partly to the lands of Mullinagrove and Sir land Cannon Petty the land George bert’s Her other part of the lands of ham Kilmain- held by with the Christopher rights members and appur Browne tenances thereunto belonging except the house and meadow said Edward where Barton the formerly dwelt the in situate are premises said which of county and Cross Upper of barony Dublin” and which said part of lands the held under the fee farm grant are now known as Emmet Crescent, off St Vincent Street Golden- West, other the with held 8, Dublin bridge, lands subject to the perpetual yearly (€144.98) £114.3s.8d of rent farm fee and the covenants contained in the and said fee farm grant, conditions should give notice of their interest to the undersigned solicitor. the to successor statutory (as Council Right Honourable the Lord Mayor, Aldermen and Burgesses of Dublin) intends to submit an application of county to the for registrar county the the city of Dublin for the acquisition of the freehold interest in the afore- said property, and any party assert- ing that they hold a superior interest therein is called upon to furnish evi- dence of title to the aforementioned property to the below named within 21 days from the date of this notice. ing received, Dublin City intends to proceed Council with the applica- the at registrar county the before tion Busy box no Landlord Landlord and Contact: Patrick J Landlord Landlord and - Ten licence Lake Road will deal with old, un- Robin Hill Clinic el: 021-4812222 Robin Hill has two T packages available. relax and rejuvenate? self-catering and B&B. Hydrotherapy & retreat medicine, NLP, Colonic medicine, NLP, www.robinhillclinic.com Set in tranquil beautiful Selling or Buying therapies, acupuncture, stressed? accommodation options, a seven-day liquor Harbour. Huge selection of Harbour. o you want to hide away, Do you want to hide away, massage, holistic & beauty Rushbrooke, Cobh, Co Cork Contact 0404 42832 homeopathy, Chinese herbal homeopathy, Experienced solicitor conveyancing registered or difficult titles; tel: 01 295 6849 (mornings) surroundings overlooking Cork title deeds title miscellaneous In the matter of the 0510/01 Acts Tenant 1967-2005 and in the matter of the 1978 Act 2) (No Rents) (Ground ant and in the matter of certain lands and premises situate on the west and West Street Vincent St of side forming part of Emmet Crescent, situate in the parish Dublin by application an 8: Dublin of St Jude, City Council. Take notice that any person having Wanted Wanted – ordinary licence. seven-day publican’s Neilan & Sons, Solicitors, Roscom- mon; tel: 090 662 6245, fax: 090 662 6990, email: [email protected] Practice for sale in Dublin 2. established local practice retirement planning practitioner Sole for sale. end of year. starting Might off. Principal suit would someone duce the intro- purchaser for some months if required. Premises also on leasehold. Please available reply to - late of Floor, nd late of 55 of late or website: care in Ireland. For information: A Caring Legacy: tel: (01) 2454800, from €500 per GB. ISO 27001 certified; email: [email protected] www.wpg.ie/docstore.htm bequests to The Carers Emma at 057 9370210. e-discovery support service or www.carersireland.com. WPG DocStore’s professional Association (CHY10962) help to support family home-based [email protected] www.lawsocietygazette.ie ford; ford; tel: 053 912 2555, fax: 053 912 [email protected] email: 4365, Ryan, Martin (deceased), Chapel Street, Borrisoleigh; or - Bal lyroan, Borrisoleigh; or Flat 6, 8 No Rutland Street, died on 11 November Limerick, 2009. Would who any person having knowledge of the whereabouts of a will made above-named by the deceased please con- tact James O’Brien & Co, Solicitors, 30 Castle Street, Nenagh, Co - Tip perary; tel: 067 31218 Rynne, Patrick Francis Rynne) (deceased), late (Francis of Boghill, Kilfenora, Co person Clare. having knowledge Would of any executed a will by the ceased, above-named who de- died 2010, on please 19 contact February Co, Chambers & Solicitors, Ennistymon, Co Clare Parliament Street, (deceased), Mary Waters, Ross Road, Enniscorthy, Co ford, - who Wex died on 12 March 1997 at St John’s Hospital, Enniscorthy, Co Wexford. Would any person having knowledge of the whereabouts of a will made by the above-named ceased de- please contact Sheena Lally, Office of the General Solicitors for Minor and Wards of Court, Courts Service, Phoenix House, 2 knowledge knowledge of a will for named the deceased above- please contact Wex Drinagh, Solicitors, O’Connor, MJ 15-24 Phoenix Street North, Smith- field, Dublin 7; tel: 01 888 6231, fax: 01 872 2681 2010 MAY Gazette Society Law
briefingprofessional notices 60 briefingprofessional notices 61 www.lawsocietygazette.ie In default of any such notice being being notice such any of default In intermediate intermediate interest in the aforesaid property is called upon evidence of their to title thereto to furnish the solicitors within 21 under-mentioned of this notice. the date days from received, the said Joseph O’Reilly in- tends to proceed with the application the at registrar county said the before end of 21 days from the date of regis- said the this to apply will and notice trar for such directions as may be ap- person the that basis the on propriate or persons beneficially entitled to all including and to up interests superior are property said the in simple fee the unknown and unascertained. - 2010 MAY Gazette Society Law hold the fee simple or any Take Take notice that Joseph O’Reilly, mediate interests (if any) in the said property, and any that they party asserting Wood, Wood, Henry Exley William Russell Edwards of the one part, and and Derby the Perma - Everton and West nent Benefit Building Society of the other part, subject to two perpetual (£73.85) €93.77 totalling rents yearly thereby reserved. being the person grantee’s interest in entitled the county Dublin the said to apply to to intends grant, the registrar at Áras Uí Dhálaigh, Quay, Inns Dublin 7 for the of the fee acquisition simple estate and all inter
y Committee (Report of the National Advisor on Palliative Care, 2001) “As a society, perhaps the most sensitive “As a society, perhaps the most is the manner measurement of our maturity are facing in which we care for those who of life.” the ultimate challenge – the loss and Over 6,000 people use hospice care each year. Over 6,000 people use hospice care each patients and their Hospice care involves the total care of where the focus families at the stage in a serious illness cure, to ensuring has switched from treatment aimed at quality of life. It seeks to relieve the symptoms of illness and cater for a person’s entire needs – physical, emotional, psychosocial and spiritual. The demand for hospice care is growing. While the service has expanded in recent years, much more needs to be done to ensure quality end-of-life care for all. Please remember the Irish Hospice Foundation when drafting a will. Irish Hospice Foundation, Morrison Chambers, 332 Nassau Street, Dublin 2 Tel: 01 679 3188; Fax: 01 673 0040 www.hospice-foundation.ie No-one should have to face death without appropriate care and support. Landlord Landlord and
Landlord and Tenant Landlord and Tenant in the matter of an application by Joseph O’Reilly the in interest any having person Any fee simple estate or any ate intermedi- interest in all that and those the hereditaments and premises known as 3 Moore Street in the parish of St Mary and city of Dublin, held grant farm fee a under property other with dated 25 April 1900 made Evan between Lake, the William Reverend Charles Henry ily Frances Daniel Reynolds, George Reynolds, Em- In the matter of the Acts Tenant 1967-2005 and in the matter of the 1978 Act 2) (No Rents) (Ground
ALL CARE FOR HOSPICE QUALITY In default of any such notice be- ing received, Dublin intends City to proceed with Council the - applica the at registrar county the before tion end of 21 days from the date of this notice and will apply to the registrar for the county county of the city of Dublin for directions as may be ap- person the that basis the on propriate or persons beneficially entitled to the superior interest including the free- hold reversion in the above property are unknown or unascertained. Date: 7 May 2010 Signed: Terence O’Keeffe Quay, (solicitor Wood Offices, Civic applicant), the for Dublin 8
ETTE Z GA Y Y for all their legal RECRUITMENT SOCIET
. ugust/September ugust/September 2006 issue In default of any such notice being being notice such any of default In recruitment A LAW 2004 for the acquisition of the freehold in- freehold the of acquisition the for terest in the aforesaid property, and any party asserting that they hold a superior or any intermediary interest in the aforesaid property are called upon to furnish evidence of title to the said property to named the hereunder solicitors within notice. date of this from the 21 days received, Robert Power and Marion - ap the with proceed to intend Power plication before the county registrar at the expiry of the period of 21 days from the date of this notice and will apply to the county registrar for the such for Waterford of county and city directions as may be appropriate on the basis that the person or beneficially person entitled to the superior or any intermediary interest includ- ing the freehold aforesaid reversion property are in unknown or unascertained. the Date: 7 May 2010 Signed: Smyth & Son (solicitors for the Drogheda, Walk, Rope 56/57 applicant), Co Louth MBA grad, MBA wanted: Apprenticeship eight FE1s. All parts of country con- Please re- sidered. Ex banker/broker. ply to 087 2462230.
recruitment advertisements will E H and and - NO PLACING T
, , IN
OSE H cts 1998 cts urphy, recruitment recruitment urphy, Gazette A T M
Landlord Landlord and . ) TO
quality quality E PQE Editorial Board has taken this decision based on legal Landlord and Tenant Landlord and Tenant Society members to advertise Law Law Society ERTISEMENTS Law NOTICE V Gazette mployment mployment Log in to the new expanded employment recruitment register in the the in register recruitment employment expanded new the to in Log employment opportunities section on the members’ area Law of Society the website, www.lawsociety. Trina contact or ie, For administrator, at the Cork Law office, tel: Society’s [email protected] email: 021 422 6203 or staff requirements, not just qualified solicitors. AD FREE EMPLOYMENT Take Take notice that Robert Power RECRUITMENT REGISTER advice, which indicates that such references may be that such references in indicates of breach which the advice, E be be published that include references to years of post-qualification ( experience The Please Please note that, as and from the of the der dated December 1996 and made between Waterford Corporation of the one part and Gerry O’Sullivan of ‘the called (hereinafter part other the fee simple. second transfer order’) in and Marion Power intend to submit registrar county the to application an for the city and county of Waterford unknown or unascertained. May 2010 Date: 7 Signed: Brian Morton & Company (so- licitors for the applicant), Firhouse Inns 24 Dublin Firhouse, Chambers, In the matter of the Acts Tenant 1967-2005 and in the matter of the (Ground Rents) (No 2) Premises: Act . 1978 29 Morrisson’s Waterford, Road, in the county of - Wa terford Take notice that any person having an interest in or the any intermediate freehold interest in Morrisson’s 29 no as estate known property the Road, Waterford, in the county Waterford, held of partly under - trans fer order dated 31 March 1977 and made between Waterford ration of Corpo- the one part Forristal and Bridget Forristal of the and Patrick other part (hereinafter first transfer order’) for called a term of 99 ‘the years from 1 April 1977, subject the to yearly rent of 0.05 pence (if de- manded) and subject to transfer or
- - - - - and in the Landlord Landlord and - Ten ) ) for the residue of a
a a solicitor position, inter inter alia Take Take notice that Brendan - Lyn In default of any such notice term of 150 years from 25 March 1908 1908 March 25 from years 150 of term Honour Right the between made and able the Lord Mayor, Aldermen and of Burgesses Dublin of the first part, Ire for Board Government Local the land of the second part, and Michael part. third the of Gallagher ham and Miriam Lynham intend to submit an application to the county registrar for the city of acquisition Dublin of for the freehold in interest the aforesaid property, party asserting that they hold a supe- and any premises aforesaid the in interest rior (or any of them) are called upon to furnish evidence of title to the afore- mentioned premises to named within 21 the days from the date below of this notice. being received, the tend to applicantsproceed with the application in before the county end registrar of 21 days from at the date of this the notice and will apply to the countyregistrar for the city of Dublin directions for as may be appropriate on the basis that the cially entitled persons to the benefi superior inter est including the freehold reversion in each of the aforesaid premises are Signed: Signed: Mason Hayes & licitors Curran for (so - the applicant), South House, Bank Barrow Street, Dublin CO’S/3748.1 4; ref: In the matter of the Landlord and Acts Tenant 1967-2005 matter of the 1978 Act 2) (No Rents) (Ground ant and in the matter of the property 10 Wexford Street, Dublin 2: an application by Brendan Lynham and Miriam any Lynham having person any that notice Take interest in the freehold estate of the all that property: and following those 10 no as known dwelling and shop the in Street the city of Wexford Dublin, held ( - and in the FREE Murphy, recruitment
ociety ociety members seeking Landlord Landlord and - Ten S
aw aw L full-time, part-time or as a locum. a as or part-time full-time, administrator, at the Law Society’s Cork Society’s Law the at administrator, office, tel: 021 422 [email protected] 6203 or email: For For Log in to the employment opportunities new section self-maintained on the job-seekers’ members’ area Law register of Society the in website, the www.lawsociety. ie, or contact Trina In default of any such notice be- Take notice that Brian O’Gorman Take
job-seekers’ REGISTER www.lawsocietygazette.ie ing received, Brian O’Gorman and Monica Kennedy ceed intend with the application before the to days 21 of end the at registrar county pro- from the date of this notice and will apply to the county registrar for the county of Dublin for may be directions appropriate on the basis that as the persons beneficially entitled the to superior interest are property the in including reversion freehold the unknown and unascertained. Date: 7 May 2010 and Monica Kennedy, and being Monica the Kennedy, per sons entitled to the lessee’s interest submit to intend lease, said the under an application to the county registrar for the county of Dublin for acqui- sition of the freehold interest in the aforesaid property, and asserting that any they party hold interest a in the aforesaid property are superior the of evidence furnish to upon called title to the aforementioned property to the below-named solicitors within 21 days from the date of this notice. Date: 7 May 2010 Date: 7 Signed: William Fry (solicitors for the applicant), Fitzwilton House, 2 Place, Dublin Wilton In the matter of the Landlord and Acts Tenant 1967-2005 matter of the 1978 Act 2) (No Rents) (Ground ant application an of matter the in and made by Brian Monica Kennedy O’Gorman and Take notice that any ing any person interest in hav- the freehold tate - es of the following 32 Silchester property: Park, no Glenageary, Co Dublin, held under lease April dated 1955 12 between AJ Jennings Company & Limited of the and one Robert O’Riordan part of the other part for a term of 150 years from May 1 1945, subject to the yearly rent of £15. 2010 MAY Gazette Society Law
briefingprofessional notices 62 Partner Roles, Dublin
Our Client is a highly regarded Irish law firm renowned for high calibre work. The firm has an impressive client portfolio and is particularly recognised for its professional and proactive approach to business. Due to a growth in business two high calibre Solicitors are required to join the firm at Partner level.
Commercial Litigation Partner The successful applicant will be a proven expert in the field of defence litigation and more specifically in professional negligence with a recognised litigation department of an Irish law firm. Alternative Dispute Resolution experience is preferred. You will ideally have represented a wide range of professional clients to include Insurers, Accountants, Solicitors, Architects, Financial Advisors and/or Brokers. You will have worked successfully on numerous high value disputes but also ideally have had exposure to small scale matters. Corporate Partner This role will suit a proven expert in the field of corporate law who will have managed multi million euro deals to include mergers and acquisitions, cross border deals, equity offerings and joint ventures. You will have represented a wide range of high calibre clients. Applicants must have worked with a top tier Irish or international law firm and be admitted to practice in a common law jurisdiction.
These roles will suit lawyers who are seeking an opportunity to stand out from the crowd with a highly respected and profitable firm. Business development skills are essential for each role as is the ability to manage a growing team. These are key appointments offering exceptional remuneration packages Fitzwilliam Business Centre 77 Sir John Rogerson’s Quay and terms to the successful applicants. Dublin 2 Interested applicants should contact Yvonne Kelly Tel: +353 18415614 in strict confidence on 01 8415614 or 087 6824591. Fax: +353 16401899 Alternatively email your CV to Web: www.keanemcdonald.com [email protected]. Email: [email protected] Absolute discretion assured. business opportunity recruitment
Experienced CHARLTONS HONG KONG Commercial Solicitor SOLICITORS Wanted – Midlands Two medium sized and long standing family run CORPORATE FINANCE businesses are seeking to retain the services of an HONG KONG SHANGHAI BEIJING energetic and expert solicitor to deal with all legal aspects of their businesses. The successful individual/ firm will be able to demonstrate a deep knowledge Charltons invites applications from common law qualified and understanding of the following key areas, in lawyers with junior to intermediate post-qualification particular: experience for a corporate finance practice Hong Kong solicitors firm based in Hong Kong. Chinese language skills i ) Company Law preferred but not required. ii ) Commercial & Employment Law iii) Inheritance and succession planning Charltons’ practice covers a range of corporate transactions including corporate finance, restructurings, Looking for a long-term business relationship. capital markets, securities, funds and M&A, Fee per issue basis. frequently with an international cross-border focus..
Interested persons/firms should provide a brief Please apply with full CV to : summary of their credentials, experience and fee CHARLTONS structure to the following email address – lgldvc@ 10/F Hutchison House gmail.com – on or before close of business on 10 Harcourt Road 25 May 2010. Hong Kong Telephone : (852) 2905 7888 Fax : (852) 2854 9596 All submissions will be treated in the Email: [email protected] strictest confidence. www.charltonslaw.com
Vacancy for Legal Collections Solicitor – Full Time Permanent Start Mortgages is the leading specialist lender in the Irish mortgage market. We have provided mortgages to more than 11,000 customers.
We have a vacancy for a Legal Collections Solicitor to join our litigation team. The successful candidate will be responsible for the management of residential and commercial property litigation repossession proceedings, debt collection and conveyancing transactions. Working to demanding targets, your case load will involve: • Management of all associated activities regarding repossession proceedings in the Circuit Court and High Court. • Undertaking all associated activities regarding judgement proceedings in the District Court, Circuit Court and High Court. • Calling and meeting customers to negotiate arrangements to recover arrears or re-negotiate mortgage terms. • Supporting the deeds registration and chase process. • Handling the sales of repossessed properties. • Interacting with third parties such as Law Society, solicitors, title insurers, property registration authority, professional indemnity insurers, customers and debt mediators involving both telephone and letter contact. • Analysing and reporting on litigation cases.
Criteria: • Qualified solicitor with some years PQE involving debt collection experience in a solicitor firm or financial institution. Financial services background an advantage. • Excellent knowledge of Irish residential and commercial mortgage process and associated Irish legal processes. • Excellent knowledge and understanding of all relevant legislation, regulations, policies and codes. Good commercial awareness. • Excellent PC Skills (use of Word, Excel, Outlook). Experience of business systems.
Please forward an up-to-date CV to Linda Burns, Human Resources Manager, Start Mortgages, Trimleston House, Beech Hill Office Campus, Clonskeagh, Dublin 4. Email: [email protected], phone 01 2096353 (d). A more detailed role profile is also available. For information about our company, visit www.start.ie
www.benasso.com Remaining the number one Irish legal recruitment consultancy takes a dogged determination, thinking creatively, spotting new opportunities and keeping an open mind New Openings
Private Practice Banking – Associate/Senior Associate: Leading practice requires an experienced practitioner to join a dedicated team. Commercial Litigation - Assistant: Our client is a Top Tier law fi rm with an enviable client base searching for exceptional candidates to deal with a broad mix of Commercial Litigation. You will have a fi rst class academic background coupled with excellent communication skills. Commercial Litigation - Associate to Senior Associate level: Strong practice with a client base ranging from SMEs to international companies requires litigators with commercial litigation expertise. Commercial - Senior Associate: A signifi cant Dublin practice is searching for excellent candidates with commercial nous coupled with the enthusiasm and drive to develop a fi rst rate client base. Corporate Finance – Assistant to Senior Associate level: Leading Dublin practice requires a high calibre lawyer to deal with corporate advisory work including mergers and acquisitions, joint ventures, management buy outs, reverse takeovers and debt and equity fi nancings as well as advising on fl otations and fundraisings. EU/Competition - Assistant: Our client is a fi rst class legal practice whose client base includes prestigious public service and private sector organizations operating both in the domestic market and internationally. You will be a Solicitor or Barrister with excellent exposure to EU and Competition Law, gained either in private practice or in-house. Funds - Assistant/Associate: Top ranking law fi rm requires excellent Funds specialists at all levels. You will advise investment managers, custodians, administrators and other service providers of investment funds on establishing operations in Ireland. Funds - Assistant to Senior Associate level: International law fi rm recently established in Dublin is searching for ambitious commercially-minded practitioners with strong exposure to investment funds. In House Senior Legal Advisor: Our client is searching for a senior solicitor or barrister with expertise in equity capital markets, corporate fi nance, mergers and acquisitions or general corporate practice advising Irish or UK listed companies. Telecoms - Junior Solicitors: A major player in the Telecoms industry is looking for bright solicitors with outgoing personalities to work with its international sales team focusing on opening up new markets. This is very much a sales oriented role and fl uency in either Spanish or French is an essential pre-requisite. Partnership Our clients include the leading Irish law fi rms. Signifi cant opportunities exist in the following practice areas and a client following is not essential. Employment ; Funds ; Insolvency ; Litigation ; Regulatory/Compliance ; Environmental & Planning
For more information on these or other vacancies, please visit our website or contact Michael Benson bcl solr. in strict confi dence at: Benson & Associates, Suite 113, The Capel Building, St. Mary’s Abbey, Dublin 7. T +353 (0) 1 670 3997 E [email protected]