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Issue Nov 99 NOVEMBER 1999 CONTENTS 12 Cover Story Buying property in Spain Investing in real estate in Spain has become an REGULARS attractive proposition for many Irish people. Rafael Berdaguer explains what’s involved in buying the Spanish holiday home of your dreams – and how to avoid the possible pitfalls President’s message 3 16 Accentuate the positive Traditional disciplinary procedures work on the illogical Viewpoint 5 premise that if an employer treats an employee progressively worse, the employee will get progressively better. Dr Mary Letters 7 Redmond outlines a more constructive approach News 8 18 ESOP fables Briefing 28 Could employee share-ownership plans help spread the benefits of our current prosperity a Council report 28 little more evenly? Kyran Fitzgerald reports Committee reports 29 Practice notes 31 22 And justice for all? Personal injury The Employment Equality Act, 1998 judgments 36 dramatically changed the way that corporate Ireland could select, Legislation update 37 recruit and treat its ILT digest 38 employees. Adrian Eurlegal 44 Twomey discusses the implications of the Act and highlights some grey areas People and places 49 24 The art of giving Apprentices’ page 52 The traditional time for corporate gift-giving is fast approaching, but how common – or advisable – is it Book reviews 54 for law firms to adopt this marketing approach? Maria Professional Behan shops around for information 55 some answers Editor: Conal O’Boyle MA 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 Reporter: Maria Behan expressed are not necessarily those of the Law Society’s Council, save where other- Designer: Nuala Redmond wise 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 accept- Editorial Secretaries: ed by the authors, contributors, Editor or publishers. The Editor reserves the right to Catherine Kearney, Andrea MacDermott make publishing decisions on any advertisement or editorial article Advertising: Seán Ó hOisín, 10 Arran Road, Dublin 9, submitted to this magazine, and to refuse publication or to edit any tel/fax: 837 5018, mobile: 086 8117116, E-mail: [email protected]. editorial material as seems appropriate to him. Professional legal Printing: Turners Printing Company Ltd, Longford advice should always be sought in relation to any specific matter. Editorial Board: Dr Eamonn Hall (Chairman), Conal O’Boyle (Secretary), Published at Blackhall Place, Dublin 7, tel: 01 672 4800, fax: 01 672 4801. E-mail: [email protected] Law Society website: www.lawsociety.ie Mary Keane, Pat Igoe, Ken Murphy, Michael V O’Mahony, Vincent Power Subscriptions: £45 Volume 93, number 9 NOVEMBER 1999 LAW SOCIETY GAZETTE 1 ROCHFORD BRADY the only Irish provider of ancillary legal services to be awarded the ISO 9002 LEGAL SERVICES LTD Are you paying too much for your Law Searching/Town Agency work? Change to Rochford Brady with our ‘one stop shop’ service (law searching and town agency under one roof) WE CUT YOUR COSTS OWNERSHIP/TITLE SPECIALISTS TOWN AGENTSLAWSEARCHERSSUMMONS COMPANY INQUIRY SERVERS FORMATIONAGENTS If you are not with Rochford Brady, isn’t it time you changed? We offer monthly retainer fees for town agency work Fixed/maximum prices for closing searches Planning searches carried out in all counties For our brochure Phone: 1850 529732 (20 lines) Fax: 1850 762436 (5 lines) ROCHFORD BRADY CUTTING YOUR COSTS PRESIDENT’S MESSAGE Over and out! ell, this is it – my last message we try to explain that judges are guaranteed to you, my colleagues, as independence in our constitution, that they W President. It has been a lifetime do universally try to do the right thing. If experience to have held the office of we run down the judiciary and the legal President of the Law Society of Ireland system, then our clients – as members of through the last year of this century and, the public – will think less of us, for we are indeed, the millennium. an important part of the system. It is the wish of every President to make The public have considerable confi- a difference, not for the sake of it but to dence in the judiciary. The minor turbu- improve any shortcomings in the profession lence of the last 12 months has not dented and to help it along. How is our profession that confidence. Judges have traditionally doing? Never has practising as a lawyer had respect from all lawyers. Lawyers also been so much of a challenge. Making a liv- deserve that respect which has traditionally ing in competitive times while other busi- been afforded to us by members of the nesses and professionals seek to enter into judiciary. The judiciary themselves who our traditional area of practice is challeng- treat lawyers with respect send a strong ing. Safeguarding the judicial system for message that lawyers should be respected everyone – from those who cannot afford by the public. financially to gain access to the courts and who badly need to have legal aid funding provided for them, to our dedicated judiciary who face attacks Ás Gaelige from the misinformed and the malicious – is a challenge. You may have noticed that during the year I have made some use of the Being a lawyer is an honourable profession; serving as your President Irish language. I do not claim to be a fluent Irish speaker, but I do love our for the past year was the highest honour of all. national heritage, of which our language is an important part. Nonetheless, I abhor the compulsion that has been forced upon us all to learn Irish. The Judicial independence compulsory learning of Irish has served neither Ireland nor her people Our system of justice is one of the best in the world. While the public is well. It is long beyond time for Government to change its policy towards becoming increasingly aware of judicial decision-making, high-profile our national language and amend the Solicitors Act, 1954, which requires cases have generated debate about judges’ decisions. Debate is one thing; those who seek to become solicitors to sit two examinations in the Irish flawed attacks are another. Judges and the judicial system are under attack language ‘except for persons who are over the age of 15 years on 1 and are being challenged by those who disagree with their interpretation October 1929’. of the law. It is simply wrong and serves neither the country nor our profession Attacks in certain sections of the media are unwarranted and unfair. In well, to require solicitors to ‘have a competent knowledge of the Irish lan- our legal system, judges do not, and should not, speak out to defend their guage, that is to say, such a degree of oral and written proficiency in the decisions. Therefore, it is the responsibility of lawyers and their represen- use of the language as is sufficient to enable a solicitor efficiently to tative organisations to respond to unjustified attacks against the judiciary receive instructions, to advise clients, to examine witnesses and to follow and our legal system by reminding others that the role that judges play in proceedings in the Irish language’ (section 40 (3)(c), Solicitors Act, 1954). our democratic constitutional system is to interpret and apply the law to the best of their ability. We must defend the independence of our judici- Appreciation and thanks ary, whether or not their decisions are popular or welcome. We must invite I express my appreciation and thanks to the Vice-Presidents of the Law politicians, community leaders and members of the media to think twice Society who served with me, Anthony H Ensor and Gerard F Griffin, the before stirring up public emotions in the aftermath of an unpopular deci- members of the Council, the Director General, Ken Murphy, and all the sion. There is simply too much at stake to allow intellectually-dishonest staff of the Law Society whose help and assistance has made this a very attacks to be levelled against the system which stands as a bulwark for the memorable, stimulating and enjoyable year. citizen against the power of the State. Let us remember that each day in As I pass the ball to Anthony H Ensor, I know with confidence he will Ireland hundreds of decisions are made by judges that are correct and not drop it, and that the Society will be secure in a very safe pair of hands uncontroversial. for the next year. A respect for each other is something that must exist between all Good luck to you all, and may you have health, wealth and happiness lawyers. It is tempting when we receive a judgment contrary to our for many years to come. expectations or to those of our clients’ to blame the judge. The disap- pointment of an outcome contrary to what we thought might happen Patrick O’Connor, should not be a cause to complain about the judiciary. It is important that President NOVEMBER 1999 LAW SOCIETY GAZETTE 3 PROFESSIONAL INDEMNITY PROTECTION from The Solicitors’ Mutual Defence Fund limited A FUND OPERATED BY SOLICITORS, ONLY FOR SOLICITORS ● Competitive contribution levels ● Growing membership ● Cover to IR£1,000,000 each ● A commitment to giving the and every claim best terms and service to legal ● Top-up cover arranged at practitioners competitive rates ● Proven track record ● Surplus reinvested for the benefit of members Unlike commercial insurers, who base premiums on the general claims experience across the professional indemnity spectrum, the Solicitors’ Mutual Defence Fund bases contributions on the claims experience of Irish solicitors only This is your fund for your professional indemnity needs The Solicitors’ Mutual Defence Fund limited All enquiries to: Margaret Moran, Solicitors’ Mutual Defence Fund Limited, 25 Lower Leeson Street, Dublin 2 Telephone: (01) 676 3118 / 676 2597.
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