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

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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

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All enquiries to: Margaret Moran, Solicitors’ Mutual Defence Fund Limited, 25 Lower Leeson Street, Dublin 2 Telephone: (01) 676 3118 / 676 2597. Fax: (01) 661 2402 VIEWPOINT Why this country needs a Whistleblowers’ Act new openness is sweeping malpractices by their employers since yielded to other priorities. Athe land. Where business- and others. Of course, in Britain, The Bill is now being drafted by men and bankers once took deci- as here, there has already been the Parliamentary Draftsman’s sions with all the transparency of protection against dismissal other Office and may be published by the Mafia’s omerta, now they than for lawful reason – which the end of the year. may have to justify decisions by would not include dismissal for The suspicions surrounding trawling through the minutiae of disclosing fraud or malpractice to the scandals of this decade war- their files with members of the the proper authorities. There, the rant that the Bill be given careful Oireachtas – on live television. Act has broadened and clarified consideration. Legislative draft- Meanwhile, civil servants are the protection. ers should – and do – consider now more likely to be thumbing Employment contract clauses legislation in other jurisdictions. through the Freedom of binding an employee not to dis- Two British Acts that are no Information Act rather than the close the company’s affairs to doubt being examined are the Official Secrets Act. outsiders do not extend to crime Criminal Justice Act 1987 and So far there have been 13 or iniquity. This was established the Theft Act 1968. Pat Rabbitte TD: Will his inquiries into Irish business as long ago as 1857 in the Whistleblowers’ Bill really encour- The 1968 Act makes clear that practices. There is at least a chancery court case of Gartside v age people to come forward? an offence by a company ‘with sense of shining a light into Outram. In his Dáil speech on the the consent or connivance’ of some obscure corners of Irish new Bill, Pat Rabbitte quoted The court thus provided an any director, manager or similar business, enabling ordinary citi- from the court’s ruling that ‘you imperative to reply to the inspec- officer will leave the individual zens to get a glimpse of what cannot make me the confidant of tors’ questions while providing a open to be charged with the same has been happening in our a crime or a fraud and be entitled protection that only a voluntary offence. Passive acquiescence midst. to close up my lips upon any confession would be permitted as would seem to be sufficient. secret which you have the audac- evidence at any criminal trial of Such provisions provide a posi- Whistleblowers’ Bill ity to disclose to me’. the employees. And, where there tive incentive to come forward. One significant contribution to But how far can a whistle- is a court order to co-operate, encourage openness in both blowers’ Bill go in disclosing there can be no reasonable Low deeds in high places business and public-sector fraud and malpractice in com- grounds for discrimination or The forthcoming Bill could be organisations is the Whistle- merce and public affairs? And recrimination by an employer. used to require that any informa- blowers’ Protection Bill, 1999. will the Bill, which is likely to be The importance of forcing tion that a company director or Proposed by the Labour enacted, really encourage people those who may be aware of fraud officer had, or should have, spokesman on Enterprise, Trade to come forward? or crime in general to make about fraud or illegality must be and Employment, Pat Rabbitte either an inculpatory admission disclosed to the relevant regula- TD, the Bill has already passed National Irish Bank or exculpatory denial has long tory body, such as the Central the second stage and has the Last year’s landmark Supreme been recognised in England. Bank, the Competition Authority support of the Government, in Court ruling in the National Irish There, section 2 of the Criminal or the Revenue Commissioners. principle at least. Bank case ironically highlights Justice Act 1987 requires a sus- Such a provision could respect The Bill contains a new set of the major shortcoming in the Bill pect to answer questions from the dicta of Mr Justice statutory rights for employees as drafted. In that case, NIB the Serious Fraud Office but, Barrington in the NIB case (in both the private and public employees questioned whether with exceptions, these answers whereby any such required infor- sectors) who report information they had the right to refuse to are not admissible in any future mation would not be permitted in of illegality or malpractice that answer questions from inspectors criminal trial. But one significant a criminal case. they have discovered at work. appointed under section 10 of the advantage of section 2 is that US President Woodrow Wilson Any employee who ‘blows the Companies Act, 1990 on the answers provided may lead wrote that ‘law is the crystallisa- whistle on fraud or malpractice grounds of possible self-incrimi- investigators to search and find tion of the habit and thought of will be entitled to protection nation. original and admissible evi- society’. This is as good a defini- against dismissal or any other In his 41-page judgment, Mr dence. A second advantage is tion as any, and highlights the fact sanction’ by the employer. To Justice Barrington agreed with that it enables information to be that our laws against low deeds in qualify for the protection of the the High Court decision that they given by people who are either high places still have some catch- Bill, disclosures would have to were not entitled to refuse to unwilling or unable to give infor- ing up to do. The Whistleblowers’ be made ‘reasonably and in answer questions put by the mation unless legally required to Act will be welcomed by a dis- good faith’. inspectors or to refuse to provide do so. gruntled populace as at least a In Britain, the Public Interest documents. He clarified that any Some 18 months ago, the belated recognition of a serious Disclosure Act 1998, known as bank official’s confession ob- Government approved the draft- problem. G the Whistleblowers’ Act, has tained by the inspectors would ing of legislation to reform the similar objectives – primarily to not generally be admissible at law on fraud and ‘white-collar’ Pat Igoe is the principal of protect employees who disclose any criminal trial unless the con- crime. The proposed Criminal Dublin-based solicitor’s firm to the proper authorities any fession was voluntary. Justice (Fraud Offences) Bill has Patrick Igoe and Company.

NOVEMBER 1999 LAW SOCIETY GAZETTE 5 VIEWPOINT Meteoric crash highlights regulatory problems for semi-States n late 1997, as part of a con- involved. Nothing particularly ‘I tinuing programme of liberal- new in that – except, perhaps, isation of the telecommunications the amount. Orange and Western industry in Ireland – in turn dri- Wireless, the backers of the ven by movement from the Meteor bid, are multi-billion European Community – a compe- pound public companies, and the tition was announced by the award of the licence could have [Director of Telecommunications significant impact on their busi- Regulation] for the award of a ness. licence to operate a mobile tele- More broadly still, the judg- phone service in Ireland’. ment highlights a fundamental With those words, Judge problem in the governance of Macken began her High Court these massive industries which decision in Orange Communica- provide utilities to the people. The tions Limited v The Director of starting position in our legal sys- Telecommunications Regulation tem is that everything is permitted and Meteor Mobile Communica- unless prohibited. However, spe- tions Limited (4 October 1999). cific laws did prohibit the provi- For the next 240-odd pages, the sion of utilities by other than judge cascaded findings adverse State-owned statutory companies Ireland will enter the new millennium with only two mobile phone operators to the director over a jungle of fighting over market share such as Bord Telecom Éireann. facts organic to the tender and Now, State-licensed companies evaluation process. the case was administrative law, overall decision, either alone or in can provide utilities, but no other Those intrepid and interested and when the High Court upheld combination. Third, the decision company can. There will be few enough may venture there alone. Orange’s claims, it remitted the was bad in law because the direc- licenses. There is not open compe- Even the judge admitted to not matter back to the director ‘for fur- tor failed in her obligation to give tition in the market; the open com- reading all the documents before ther consideration’ but could not full and proper reasons by provid- petition is in the tender for the her. But the judgment does bring award the licence. ing only rankings and a summary licence. home the problems inherent in The High Court upheld report. Yet, though the State has put so regulating State-owned or newly- Orange’s claims on three grounds: much at stake on the licence privatised industries. This case unreasonableness, bias and failure General interest mechanism, the High Court judg- means that Ireland will enter the to give reasons. The judgment is of general ment indicates a meteoric crash in new millennium with only two First, the director’s decision to interest in administrative law on the State’s ability to manage the mobile operators fighting over award the licence to Meteor was three points. First, that the direc- process it has begun. It is a diffi- market share, leaving consumers biased in the objective sense of giv- tor could sub-contract out her cult job. The State is dealing with with the choice and prices to ing rise to reasonable apprehension functions of evaluation and be big, advanced, highly-organised match. of bias. She was objectively biased caught by her sub-contractor’s and focused corporations, driven in her approach to the following ele- perceived errors (for example, by the opportunity for profit. It Scope of the appeal ments for which marks were award- those of Andersen Management will need to bring itself up to Judge Macken decided earlier this ed in the evaluation: binding com- International). Second, that a find- speed in order to serve the inter- year that the scope of the appeal mitments, low tariffs, subscriber ing of unreasonableness appears ests of the consumer and the citi- from the director to the High contracts, bonus to distribution to flow from a finding of bias. zen, and avoid dropping the ball Court provided by the Postal and channels, guarantees from backers, Third, there is an analysis of the in the sprint to an information- Telecommunications Services Act, changes in the drafts of reports and obligation to give reasons. based economy. 1983 was ‘a review-type appeal, the strength of the consortium. The case is also of tactical The positive effect of the High perhaps slightly wider than judi- Each of the first three elements interest: the judgment lays Court judgment is that it shows cial review simpliciter, as known alone supported Orange’s claim of emphasis on the oral evidence. the lengths to which the courts in this jurisdiction, and by which objective bias; combined with the Despite Judge Macken’s decision (and in that sense the State) will the reasonableness of the direc- others, a reasonable person would of 18 March that the appeal was a go to ensure that the process is tor’s decision is ascertained by apprehend significant bias to the review only, Orange appears from a fair one. G reference only to the materials extent that the decision could not the judgment to have bolstered its which she had before her, and justifiably stand. case by introducing oral evidence Note: At the time of writing, this none other, so as to permit the Second, the decision of the to support its contention of bias judgment is the subject of a full court to decide if her decision director was unreasonable in the and by cross-examining the direc- Supreme Court appeal scheduled should be confirmed’. The direc- sense that a reasonable person tor’s witnesses. for 18 January 2000. tor’s decision was both adminis- would not have come to the sub- More generally, and more trative and expert in nature. decisions reached in a number of obviously, the judgment is Diarmuid Rossa Phelan is a Consequently, the relevant law in areas which were critical to the important because of the money Dublin-based barrister.

6LAW SOCIETY GAZETTE NOVEMBER 1999 VIEWPOINT Letters

Immigration solicitors urgently needed Alarming implication in superior

From: Sue Richardson, Anti- or 087 6996046 so that we can pass court rules Racism Campaign, Dublin their names and telephone num- From: Richard E McDonnell, August/September issue of the he Anti-Racism Campaign is bers on to the people who need Ardee, Co Louth Gazette under the heading Section Tseeking to contact solicitors and their services. We would appreci- refer to the warning in the prac- 7, Courts Act, 1964: superior barristers with knowledge of immi- ate any help that you can give. Itice note published in the court rules (page 32). gration law and an interest in work- The implications are alarming: ing with refugees and asylum-seek- Top marks for Powers of Attorney Act the rules would appear to mean ers. Since refugees have only rela- that if a civil bill is issued in the tively recently been arriving in sub- From: Walter Beatty, Dean, the powers of attorney. I feel it would local circuit office a few months stantial numbers, and the laws are Faculty of Notaries Public in be of interest to practitioners to before the three-year period becoming more restrictive and Ireland know that the other members of the elapses, all a defendant has to do delineated, we have found it diffi- pproximately six years ago, committee were most impressed by is to avoid service for a few cult to find many solicitors with Athis faculty was granted the Powers of Attorney Act, 1996. months (not too difficult a task) to knowledge of this area of law. There observer status to attend the twice- Their opinion was that the Irish defeat a claim. are now too many refugees and asy- yearly meetings of the Union statute law in relation to enduring The same situation obtains in lum-seekers needing assistance Internationale du Notariat Latin. powers of attorney was excellent. the District Court. This rule does from the handful of solicitors who Every year the UINL examines a Indeed, they commented that it was not appear to apply to the High are fully conversant with this area number of legal topics which are of better than the other statutory pro- Court. Surely this is an unsatis- and who have done brilliant work. interest to the European members visions which had been introduced factory situation and one that I would appeal to any interested of the organisation. by a number of the other European should be addressed urgently by solicitors to contact the Anti- I served upon the sub-committee countries which reported to the the Litigation and Arbitration Racism Campaign on 087 2338143 that dealt with the topic of enduring sub-committee. Committee?

NOVEMBER 1999 LAW SOCIETY GAZETTE 7 NEWS

BRIEFLY Solicitor’s application for BRIEFLY ICCL calls for help reinstatement rejected by Ireland-Romania tax treaty The Irish Council for Civil The Irish and Romanian govern- Liberties would like to hear from the High Court ments have signed a double-tax- solicitors who are sympathetic ation convention. If the conven- to the needs of involuntarily- n application by a former the Disciplinary Committee, tion is ratified by the Dáil and detained patients and would be AGalway solicitor for rein- which then sought a High Court the Romanian parliament willing to advise them, if neces- statement to the Roll of Solicitors order striking his name from the before the end of the year, it will sary. Anyone interested can con- eight years after he had been Roll of Solicitors. This was grant- come into force at the begin- tact the ICCL on 01 878 3136. struck off was refused by the High ed in May 1991. ning of 2000. The text of the Court last month. The Society opposed Burke’s convention is available on the New degree combines Irish Frank Burke, who practised application for reinstatement. Revenue Commissioners’ web and French law under the style and title of Frank After a full hearing, the President site: http://www.revenue.ie. The increase in Franco-Irish Burke & Co, was investigated by of the High Court, Mr Justice trade, as well as the increasing the Law Society in 1985, and this Frederick Morris, refused Burke’s IALT mid-year meeting role of the EU on Irish affairs, investigation found that he had application and, in a written judg- Irish Association of Law Teachers has led to the need for more used client monies in breach of ment, stated: ‘I am satisfied will hold its mid-year meeting at specialisation in law, tax and the Solicitors’ accounts regula- beyond any doubt that there is no Blackhall Place on 20 November. commercial affairs. In response, tions and had allowed a deficit to evidence upon which I could con- There will be panels on UCD’s Law Faculty has launched occur on the client account. As a clude that he is a fit and proper European Community law a new degree, the BCL (law with result of this enquiry, he was fined person to practise as a solicitor. (including updates in competi- French law). It enables students £20,000. Burke also acknowl- On the contrary, all the evidence tion law), child law, procedural to spend their third year at a edged that he had frustrated the shows that he is not, in as much as law and private law. For further French law school, leading to an original enquiry and sought to he is not fit to manage clients’ information, contact IALT presi- award of Diploma in French mislead the Society’s investigat- money and therefore I conclude dent Bruce Carolan on 01 402 law. ing accountant. that it is not open to me to make 3016. The Society referred Burke to an order’.

8LAW SOCIETY GAZETTE NOVEMBER 1999 NEWS Validity of Society’s investigation upheld 19-day judicial review hear- regulations should not be Aing of the High Court ended impugned unless it can be shown in a favourable ruling for the Law that the investigation of the books Society last month, when Mr and records was merely a Justice Kearns held that an inves- colourable device or cover for the tigation by one of the Society’s pursuit of some other unautho- investigating accountants into a rised or improper considerations. Dublin solicitor’s practice in I do not believe that there was any 1993 was ‘a proper one within the irrelevant or improper considera- meaning of the Solicitors’ tion at work here’. accounts regulations’. In summing up, the judge also The proceedings were brought found that there was no require- by Giles Kennedy, practising as ment for a prima facie case before Giles J Kennedy & Co, who had the Society could begin an inves- challenged an investigation under tigation of a practice under the the Solicitors’ accounts regula- Solicitors’ accounts regulations. Dublin’s Four Courts: scene of the 19-day hearing tions initiated by the Society in ‘It can be done routinely and 1993, arising out of which a deci- business of the Law Society, but he reaches a line or point beyond some inspections may be more sion had been made to refer him was a matter for the Garda Fraud which he cannot go. In this regard, extensive than others, if relevant to the Disciplinary Tribunal of the Squad or possibly other agencies. it seems to me that where an concerns so dictate’, he said. On High Court. It was submitted on behalf of instance of fraud is uncovered in the issue of client confidentiali- Kennedy brought judicial the Law Society that the the accounts of a solicitor, the ty/privilege, he said that this was review proceedings to quash that Solicitors’ accounts regulations investigating accountant has a governed by the resolution of the decision, alleging that the investi- entitled an investigating accoun- right and duty to explore any area main issue as to whether or not gation which had been conducted tant to unfettered access to the of possible fraud which may be the investigation was authorised by the Society was unlawful and files of a solicitor and to look to reasonably connected with the under the regulations. Since he invalid. He argued that the the propriety of transactions on a fraud found within the books, had ruled that the investigation Society’s investigating accoun- client account. Where suspicions even if that connected area of was so authorised, ‘no defence of tant had conducted an ‘unautho- of fraud were aroused, the investi- fraud is not to be gleaned from the client privilege can be raised in rised and unnecessarily wide gating accountant had a clear books themselves. these proceedings’. trawl’ through the files in his obligation to explore that matter ‘In this case, such a reasonable And he concluded: ‘The inves- office, rather than merely sam- fully. It was further submitted that connection did exist, because the tigating accountant was not, in pling on a random basis for veri- there was no sense in which the same area of litigation was her report, guilty of any behav- fication and vouching of financial Law Society, in an effort to reduce involved, the same individual who iour which could invalidate her records. It was submitted on fraudulent activity among its was in receipt of fraudulent pay- report on the grounds that it behalf of Kennedy that a major members, could be said to be pur- ments within the office was in lacked objectivity or indepen- consideration, if not the major suing an unlawful or improper charge of personal injuries litiga- dence’. consideration, underpinning the purpose once the entitlement to tion and the payments were Costs were awarded to the decision to investigate his prac- take fraud into account was pre- specifically made to him for client Society, with a stay pending tice was the question of fraudu- sent. referrals, which was the very sub- appeal. The matter is being lent claims. It was further submit- In finding against Kennedy on ject matter of the Law Society’s appealed to the Supreme Court. ted, among other things, that all issues argued in the course of concern in that they believed one In a brief statement after the investigation of fraud was not the the hearing, Mr Justice Kearns Rossi Walsh, a notorious criminal, High Court ruling, Law Society said: ‘Where an investigating was at the time referring bogus Director General Ken Murphy accountant stumbles across fraud, personal injury claims to the said: ‘The Society welcomes the LawTech his obligation is, as far as may be applicant’s office. For this reason, finding of the High Court against practicable, to get to the bottom of I believe that the extended investi- the applicant on all issues in this exhibition it. This is not something which is gation in this case was a proper case. It is very important in the The annual LawTech exhibition spelled out in the regulations but one within the meaning of the public interest that the Society’s and IT seminar will be held in which arises from the general law Solicitors’ accounts regulations’. powers to investigate solicitors’ Blackhall Place on Friday 5 and from the principles and guide- Mr Justice Kearns then went on practices have been confirmed by November. The theme of this lines by which accountants bind to say: ‘An investigation under the the court’. year’s seminar, organised by the themselves … Put simply, an Practice Management/Technology auditor on encountering fraud, Committee, is the continuing cannot simply pass from it’. Galway Law Alumni reception effects of the IT revolution on And he continued: ‘If the To celebrate the 150th anniversary of the enrolment of the first law stu- solicitors’ practices. The seminar is investigating accountant, there- dents in Queen’s College, Galway, the Galway Law Alumni in Dublin entitled Managing change: the fore, has the right and duty to con- are hosting a Gala Reception in the Law Society, Blackhall Place, on Year 2000 and beyond. sider and investigate fraud, the Friday 26 November at 8pm. All Galway graduates are welcome. question arises as to when, if ever,

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arry O’Kelly, the reporter who A Certificate of Merit went to her article on the legal problems Bbroke the Philip Sheedy story Pat Brosnan of The Examiner for a facing the adult victims of child that eventually led to the resigna- two-part article explaining the ins abuse, entitled Church and State tion of two judges and a county and outs of an Irish divorce and unite to stonewall victims. registrar, has been named Overall how the children of separating The Justice Award in the Winner of the Law Society’s couples are affected by the legal Radio category went to Diarmaid Justice Media Awards. The compe- procedures involved. MacDermott of the Ireland tition aims to reward outstanding In the Non-Daily Newspapers International News Agency for an journalism in the printed or elec- category, the Justice Award went interview on the Today with Pat tronic media which contributes to to Tom Mooney of The Echo in Kenny show on the trial of four the public’s understanding of the Enniscorthy for his article In men charged with the murder of law, the legal system or any spec- strictest confidence, which graphi- Garda Jerry McCabe. ific legal issue. cally highlighted the difficulties A Certificate of Merit was At a ceremony in the Law involved in extracting data from awarded to Bill Meek of RTÉ for Society’s Blackhall Place head- government departments – even his series on people with disabili- quarters last month, the Attorney when armed with a copy of the ties, called Not so different. General, Michael McDowell, and Through a glass darkly: Barry 1997 Freedom of Information Act. The Justice Award for the President of the Law Society, O’Kelly accepts the prize as Overall Two Certificates of Merit were Television was presented to Winner of the 1999 Justice Media Patrick O’Connor, presented the awarded in this category: RTÉ’s Mary Raftery for her States Awards prize to O’Kelly, a reporter with ● Catherine Cleary of the Sunday of fear documentary series. The The Star newspaper. As Overall The winner of the Justice Tribune for an article on sen- judges called it ‘the most power- Winner, he received a Dublin Award in the Daily Newspapers tencing policy ful piece of broadcasting in many Crystal vase and a cheque for category was Margaret E Ward of ● Ted Harding of the Sunday a year’. £1,000. the Irish Times for her series of Business Post for an article on The winners in each of the five articles on William Geary, who the new Planning Bill. other categories in the competition was sacked from the Garda O’Donnell won a Justice Award, comprising a Síochána in 1928 for allegedly In the Magazine category, the Sweeney on Dublin Crystal Joyce plate (and a accepting a £100 bribe from the Justice Award went to the maga- the move £500 cheque), with the runners-up IRA. Geary, now resident in zine that won the award last year, receiving a Certificate of Merit America, has always denied the Consumer Choice. Carol-Anne O’Donnell Sweeney, Solicitors, (and a cheque for £100). charge and petitioned successive O’Reilly’s series of articles on a has acquired the lease on the governments to re-open the case. wide variety of legal issues meant A&L Goodbody office block at As a result of her stories, the that Consumer Choice has now Earlsfort Terrace, Dublin 2. The Gazette scoops Government reviewed the Geary won the top award in this category firm will move from Fitzwilliam case and said he was entitled to three times in total. Place to their new offices in another prize have his good name and pension The Certificate of Merit was December. rights restored. awarded to Liz Walsh of Magill for Warning: Year 2000 and computerised accounts packages

he Law Society’s Technology when these will be put in place. tem is in order. The following TCommittee would like to This confirmation should be points should be borne in mind: bring to the attention of members obtained in writing and the ● It is the responsibility of each of the profession the dangers for promised date followed up. If office to ensure their accounts their practices regarding their proper steps are not taken, the system works properly The Gazette’s Barry O’Halloran computerised accounts and the packages involved will not be ● The Law Society does not have accepts a Certificate of Year 2000 problem. operable after 31 December 1999. the resources to take part in Excellence from Enterprise and Many solicitors will have It will be very difficult to solve the remedying the problem Employment Minister Mary accounts packages that are not problem at that stage as there will ● There will be little chance of O’Rourke at the Irish Year 2000 compliant. It will be the be a great shortage of computer remedying the problem unless Independent/CIBI magazine awards last month. O’Halloran responsibility of each office to personnel. you formulate a plan of action won the award in the best writ- ensure that their system operates The Law Society does not have now ing category for his article on correctly on 1 January 2000. They the resources to ensure that soft- ● It is not enough to accept your corporate art in solicitors’ firms should immediately contact their ware suppliers take the necessary software supplier’s assurance. (Gazette, June 1999). This is supplier to confirm whether their measures, and the regulatory Follow the matter up until you the fourth time in three years that the Gazette has won a package is Year 2000 compliant authorities of the Society have receive your new software and CIBI award and, if not, what steps will be made it clear that the onus lies with have it fully approved by your taken to remedy the situation and each office to ensure that their sys- own accountant.

NOVEMBER 1999 LAW SOCIETY GAZETTE 11 Buying property

A buoyant domestic economy and the pleasure of owning a property in the sun have made investment in Spanish property an 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

f you are thinking of buying property in Spain, it goes without it’s worth noting that not all private contracts will have the same effect. saying that you should use the services of a reputable real estate For example, the seller can pull out of the transaction by paying com- company to help you find a home that will meet your needs and pensation to the buyer, usually twice the amount of the deposit paid. your budget. And, with caveat emptor in mind, no deposit should But this might be a very unsatisfactory outcome for the buyer who real- be paid to anyone other than your Spanish lawyer until a prior ly wanted to acquire the property on which he paid a deposit. Such a Iinspection of the title and the necessary searches have been carried out. situation can be avoided if your lawyer draws up a contract committing These should show that the property is registered in the seller’s name, the vendor to sell the property on the agreed date once the remaining is free from any charges and encumbrances and that all the appropriate conditions of the contract have been met, especially the payment of the taxes have been paid. The lawyer can also undertake searches in the balance of the purchase price. local council to verify the zoning of the surrounding plots to your prop- erty, especially when one of these is a green area. Property under construction Naturally, it is advisable for you to arrange a survey of the property, There’s an obvious risk when buying property off the plans or under especially if it is more than ten years old. In Spain, the builder of a construction since it may not be completed by the due date – or, indeed, property is liable for any structural defects which occur within ten built at all. In order to protect the prospective purchaser from any of years of the issue of the architect’s Certificate of Completion of Works. these eventualities, Spanish lawyers may well demand a ‘bank guaran- After this point, there is no remedy from the builder, so rectification of tee’ from the vendor under which any amounts handed over by the pur- any potential problems can only be sought from the seller. chaser (plus interest) shall be returned to him should the property not be started by a certain date or not completed when agreed. Private contracts The specifications and plans of the property must be agreed and Once the searches have been conducted to your satisfaction, your attached to the contract. If the property is within a complex, another lawyer will negotiate the terms of the contract with the seller or his plan of the common elements should be attached, showing the location lawyer. There are a number of different private contracts to be signed of the gardens and the pool. I have come across cases where the devel- at this stage to secure the purchase of the property: deposit contract, oper retained the land where the pool or other common elements were contract of purchase and sale, option contract, and so on. The buyer supposed to be. In one such instance, the developer went bankrupt and will pay a deposit of around 10% when the vendor agrees to sell the the residents were left without a swimming pool because it had been property, and the transaction is generally completed within a fixed acquired by a creditor in payment of his debt. The residents ended up time-scale, usually four weeks. At this stage, the balance of the pur- having to buy it back from the creditor. That’s why it’s important to chase price must be paid and the title deeds are then signed by the par- know which are the common areas of the development and to conduct ties in the presence of a notary public. a proper search to verify that these belong to the developer from whom The type of contract required will be assessed by your lawyer, but the purchaser is buying the property.

LAW SOCIETY GAZETTE 12 COVER STORY

in Spain

LAW SOCIETY GAZETTE 13 COVER STORY

Completing the sale Foreign company On the agreed completion date, the registration title deed or escritura is executed by Up until recently, there was a tend- the parties before a notary public and ency to use foreign companies as a the title is vested in the buyer’s vehicle to register property bought name. Under normal conditions, the by a non-resident in order to avoid buyer makes the final payment upon paying the transfer tax and death completion before the notary. If the duty. These could be avoided if the vendor is a non-resident, Spanish law shares were exchanged abroad so the obliges the buyer to withhold 5% of authorities would not know when the the purchase price and to pay this to property was changing hands. the tax authorities as a payment on Nearby Gibraltar did a booming account of the vendor’s capital gains business, with the result that there tax (CGT) liability resulting from the are now more companies registered sale. If this sum is not withheld and in Gibraltar than there are people liv- paid over to the tax authorities, the ing there. property conveyed will be liable for In response, the Spanish tax that CGT. This will be shown in the authorities passed a law obliging land registry books. non-resident companies owning real For his part, the vendor must pro- estate in Spain to pay an annual tax duce a CGT assessment within four of 3% on the value of such property months from the completion date, for rates purposes. This valor cata- and the withheld 5% will either be stral bears no resemblance to the real deducted from any tax to be paid or value of the property and normally refunded (in whole or in part) if it does not exceed 50% of this. (For exceeds the CGT due. The capital gains tax rate for non-residents is example, a property with a real value of 25 million pesetas may have 35% on a net gain. a valor catastral of 10 million.) A few entities are exempted from pay- The original title deed will remain in the office of the attesting ing this tax, such as non-profit organisations and companies which notary and he or she will issue an authorised working copy which develop business in Spain and which can be differentiated from mere must be processed by the purchaser for paying the taxes involved and holding companies for Spanish property. However, it is still possible registration in the local land registry. Taxes must be paid within 30 for a non-resident company to avoid this tax if both the company itself days of completion or else surcharges will apply. and the ultimate beneficiaries of the capital of the company are resi- dent in a country which has a double-taxation treaty with Spain (with Cost of acquiring property provision for exchanging information between the tax authorities of The costs involved in acquiring a Spanish property are different, both countries). depending on whether it was bought from a developer or bought sec- Since the tax was introduced by the Spanish authorities, the number ond-hand. In the former case, the buyer must pay 7% VAT plus 0.5% of foreign investors using an off-shore company for their investments stamp duty; if the property is second-hand, then only transfer tax of has fallen dramatically. This is not really much of a surprise since 3% 6% on the price agreed must be paid. of the valor catastral can amount to a considerable expense and only Apart from the transfer tax, the buyer must pay land registry fees those who for some reason do not want to disclose their names as ben- and his own legal fees. The land registry fees are based on a scale and eficiaries of the property now choose such a route. range from 35,000 pesetas to 150,000 pesetas, while legal fees vary from 1–2% of the purchase price. Making a Spanish will In addition to these costs, there are also the notary’s fees and a local Those who buy property in Spain are strongly advised to make a Spanish tax known as the plusvalía to be paid. Although, strictly speaking, will confined to their Spanish assets as this will save their heirs having to these should be paid by the vendor, it is common practice for the ven- translate, notarise and legalise any grant of probate or letters of adminis- dor to ask the buyer to foot the bill for all the taxes and disbursements tration issued in their own country. It will also allow them to simultane- on the transaction. The plusvalía is a one-off local tax on the increase ously wind up the Irish and the Spanish estates of the testator. in the value of the land on which the property is built since the last Given the complexities of some types of Spanish transaction, you recorded transfer of ownership and is based on the value of the prop- would be well advised to seek the services of a Spanish lawyer if you or erty for local rates purposes (valor catastral). I would strongly advise your clients are considering investing in Spanish property. But then, as anyone buying a Spanish property to check the amount of this tax with lawyers, you will know that already! G their lawyer before agreeing to the vendor’s request to pay it. So, in summary, the buyer has to allow for an additional 10% of the Rafael Berdaguer is a lawyer with the firm Rafael Berdaguer purchase price to meet the transfer costs involved in the transaction. Abogados, based in Marbella, Spain.

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NOVEMBER 1999 CourtLAW SOCIETY GAZETTE 15 Accentuate positivepositivethe Traditional disciplinary procedures work on the illogical premise that if an employer treats an employee progressively worse, the employee will get progressively better. So is there another way? Dr Mary Redmond outlines how a more constructive approach to employee discipline can make a difference

raditionally, employer-employee disci- an employer to dismiss an errant staff member plinary procedures are corrective. They without notice). In relation to suspected gross T provide for a series of punitive steps, misconduct, a disciplinary procedure will typi- which may be chosen or passed over, depend- cally involve precautionary suspension of the ing on the circumstances. The number of steps employee on full pay to enable the employer to varies between three and five, the average carry out a full investigation. Once again, natur- being four. Typically, they are: al justice must be fully respected. ● A verbal warning, which is noted in the per- Depending on the outcome, appropriate dis- approach is gaining ground, particularly (in my sonnel file: the employee is told that if an ciplinary action will be taken (or not). A pre- professional experience) among ‘information infraction occurs again within a specified cautionary suspension needs to be distinguished age’ companies with younger, skilled employ- period, a written warning will follow from suspension without pay, which is a form of ees. For such employers, traditional disciplinary ● A written warning, which is placed in the disciplinary action. This distinction should be procedures are unbalanced, and reminiscent of personnel file: the employee is told that if an clear in the procedures. master-and-servant-style relationships. infraction occurs again within a specified It is crucial for the employer to list all possi- Even in an established traditional procedure, period, a second written warning or more ble forms of disciplinary action other than warn- elements of a constructive approach can be severe disciplinary action will follow ings, suspension and dismissal in the contract of grafted on. ● Suspension for a period of time without pay, employment (for example, demotion, transfer, A typical constructive approach can be sum- with a record of this action placed in the per- freezing of pay, reduction in salary and so on). marised in this way. At the time an employee is sonnel file: the employee is told that if an Otherwise, it would be in breach of contract if it taken on, the employer spends time ensuring infraction occurs again within a specified were to impose such sanctions. (For a compre- that the new member of staff understands and period, dismissal will follow hensive disciplinary procedure which the accepts the values of the employer. This presup- ● Dismissal. Employment Appeals Tribunal incorporated in poses that the company has thematised its val- full into its determination, see Fogarty v Dunnes ues and is clear about them. The employee may A typical progressive system contains the addi- Stores Munster Company [UD 548/1996].) It be asked not only to acknowledge receipt of tionally vital element of due process or fairness, goes without saying that a list of employee standard contractual documents but also to sign allowing a right to representation (generally by wrongs should also be compiled, with the usual a statement detailing and committing the a trade union or work colleague) which is usual- caveat that the list is ‘not exhaustive’. employee to the employer’s rules of conduct. ly confined to the steps following from the first Alternatively, this statement may be incorporat- written warning. The constructive approach ed in the contract of employment. A warning is usually cleared after a specified A flaw in traditional disciplinary procedures is The employer’s values often centre around time, usually six months, if there is no recur- the illogical premise that if an employer treats five themes: values to do with the business’s rence of the wrong. an employee progressively worse, the employee customers or clients; its employees; its code of The step-by-step system outlined above will get progressively better. Some employers business conduct, internally and externally; its applies to issues of competence, capability and opt for a more constructive approach. stakeholders; and community relations. Each conduct (other than gross misconduct entitling Although still rare in Ireland, the constructive theme is detailed in accordance with what mat-

16 LAW SOCIETY GAZETTE NOVEMBER 1999 EMPLOYMENT LAW

‘The constructive approach to staff discipline puts the onus fairly on the employee’ ters to the particular work environment and the sign a reaffirmation statement of agreement and joining. The constructive approach fits in with, company concerned. commitment. Right from the time the employee and complements, anti-stress steps initiated by Joining a company with a comprehensive set is hired, and through such meetings, he is employers, such as comprehensive induction of values can be a differentiating factor in the explicitly accepting personal responsibility for training for employees on relationships at work. jobs market for potential employees. Research his conduct. In the traditional approach, disciplinary pro- shows that the most effective employees already If another meeting is appropriate, the cedures are detailed generally because it is a have a strong sense of their own values. They are employee is asked whether he wishes to remain requirement under statute, and an employee is the ones that companies will probably want to employed with the employer. If he answers unlikely to read them. In the event of a breach, attract. ‘yes’, he signs another statement which affirms there is punishment. If a meeting becomes necessary, say, because his desire to remain employed, and reaffirms his In the final analysis, under the constructive of the employee’s poor performance in relation to agreement and commitment to the employer’s approach it can be said that an employee effec- a customer, it will resemble a ‘refresher’ course. values. tively dismisses himself. That is not to suggest The employer will discuss with the employee his As in the traditional approach, only one that in Ireland’s unfair dismissal law there is any recollection of the values for which he signed on. ‘stage’ will be necessary if the employee is such a thing as ‘self-dismissal’! But it is obvious The employee will be asked if he remembers this alleged to have seriously disregarded the com- that there are psychological, behavioural and commitment. At the conclusion of the meeting pany’s value system. legal differences between the constructive and (and depending on the circumstances), the the corrective approach. employee will be asked to restate that commit- Management training It has been written that ‘employee discipline ment. Continued failure will signify that he no Management needs training in the constructive is the real drama of labour relations … It is a longer wants to be employed by the company. approach for such meetings, although much of method for the maintenance of authority by The employee will emerge from such a meet- the groundwork will have been done at the time management’. The first sentiment is unwise, ing with a clear choice: he may decide for or an employee is taken on. the second questionable, in the fast and ever- against trying harder, in line with the commit- The constructive approach places the onus changing world of work. G ment he has made. If he had been dealt with fairly on the employee. He is given a choice to under the traditional system, he would almost adhere to the employer’s standards of conduct. Dr Mary Redmond is a solicitor and author of certainly feel punished. These are stated explicitly and written down Dismissal law in Ireland (Butterworths, 1999). If a second such meeting is necessary, the from the start of his employment. He is made This article is an expanded extract from her employee will be asked not to verbalise but to aware of them and of the sort of employer he is book.

NOVEMBER 1999 LAW SOCIETY GAZETTE 17 ESOPESOP Share and

There is a whiff of resentment in the air. While employers, top professionals and property owners seem to enjoy the choicest cuts, the folks on the shopfloor feel they are being left with the scraps. Could employee share-ownership plans help spread the benefits of our current prosperity a little more evenly? Kyran Fitzgerald reports

ntil quite recently, it had been thought 5% is being handed over in return for changes in But what appears straightforward in theory can that Partnership 2000 would be the last work practices. turn out rather differently in practice. U national deal of its kind to be negotiat- An employee stock-ownership trust (ESOT) According to Maeliosa O’Culachain, manag- ed for some time to come. Instead, there would has been established. The trust is initially hold- er and secretary to the Telecom Éireann ESOT: in all likelihood be a return to free collective ing 9.9% of the company’s shares. Part of the ‘There has been a much higher commitment in bargaining. Since the mid-90s, the industrial cost of the shares is being met by the company, terms of administration required than we relations climate, at least in the public sector, which is providing £100m in what amounts to expected’. She and the other trustees have been has hardened appreciably. We have had the an accelerated payment in lieu of future pension working closely with trust expert David Beattie, ‘Blue Flu’ go-slow among the gardaí and the contributions. Prior to completion of the deal, a partner in the law firm O’Donnell Sweeney. first-ever nurses’ strike. the company was responsible for funding staff The trust document has been drafted to cover But the picture is not all black. Firms are cur- pensions. Now, employees are to pay over 5.3% tricky situations such as the death of an employ- rently developing new ‘gain-sharing’ models. In of salary towards their pension fund. The ee or a marital breakdown. The personal repre- a number of cases, they are being driven by the remaining part of the cost of the initial 9.9% sentatives of a deceased trust beneficiary will be need to ensure the co-operation of employees stake is being met by the with major programmes of change management employee trust, which has Everybody wants to get their hands on a piece of the Celtic Tiger within organisations. In many others, the dri- arranged a loan of almost ving force for such reforms lies in the increas- £100m from a consortium ingly tight labour market. headed by a Swiss bank. The renewed emphasis on profit-sharing It will be some time, per- arrangements has begun to improve the climate haps several years, before between the social partners, and there is a belief employees or former that Finance Minister Charlie McCreevy is employees will actually get holding in reserve the promise of tax conces- their hands on Telecom Éire- sions for a raft of employee stock-ownership ann shares. In the meantime, arrangements. Such concessions will be used as notional allocations of shares a carrot, along with a further programme of will be made to the employ- generous income tax cuts across the board, to ees and to anyone who was encourage the trade unions to buy into another an employee at the time the national programme. trust came into being. These notional allocations Ireland’s first ESOP are rather like the chips peo- The most adventurous and expensive experi- ple are given in a casino. ment in gain-sharing is that undertaken at They will build up until the Telecom Éireann (now known as Eircom), the time comes for them to be broad details of which are pretty well known by cashed in. What is clear is now. The employee share-ownership plan that the rules governing these (ESOP) was formally endorsed by the compa- allocations have had to be ny’s 11,000-strong workforce a year ago. Under drafted with great care so as the agreement, the employees have ended up to ensure that everyone is with a 14.9% stake in Telecom Éireann of which treated on the same basis.

18 LAW SOCIETY GAZETTE NOVEMBER 1999 BUSINESS fablesfables share alike

entitled to an allocation on behalf of those with On the other hand, approved profit-share panies, as John Bradley, head of KPMG Personal claims on the deceased’s estate. The trust has yet schemes are quite common, and a number of Financial Services, points out. ‘Employees of to agree a specific formula, though this should these are described by the companies in question quoted companies or their subsidiaries can avail happen soon. as ESOPs. But the full panoply of an employee of approved profit-share scheme tax breaks quite Legal formalities aside, it is clear that trust with the power to borrow to acquire shares easily. As a result, indigenous Irish-owned tech- Telecom Éireann staff stand to reap a rich har- on behalf of the staff is not in place. Irish nology companies competing in the same market vest. Employees may have to wait some time yet Permanent, for example, operates a successful are often put at a disadvantage’. before they have shares in their hands but approved profit-share scheme (APSS) which is already they have a nice nest egg accumulating. described as an ESOP. Creating a market No wonder a few people have wondered whether Such schemes are increasingly popular, being The problem is that shares in privately-owned the Irish taxpayer, who poured billions into the seen as a tax-efficient way of rewarding employ- Irish companies are not traded. APSS schemes company, has not been just a little short-changed. ees. If an employee receives shares in the com- are really only of value if there is a potential to pany which they then hold on to for the required float the company. The real obstacle is the dif- Other incentives minimum period, they will almost certainly be ficulty in creating a market in the shares so as to In discussing terms such as ESOP and ESOT, it far better off than if they were to receive a bonus allow for a profitable exit for the employee is important to be aware of the distinction taxable at the top income tax rate. shareholder down the line. Many firms prefer to between these concepts. ESOTs are still as rare Under an APSS, employees are given the offer share options to a limited group of staff. If as hens’ teeth. One is up and running at Telecom right to convert profit-sharing bonuses into they are going to float, they usually do not want Éireann, another has just recently got the go- shares in their employer company or its parent. to see the jam spread among all the staff, ahead at ICC Bank. All employees must stand to benefit. In this though there are signs that this attitude may be sense, the scheme differs changing somewhat under the pressure of from conventional share- labour market conditions. After all, these days option arrangements usually top quality secretaries are almost as hard to made available for select come by as computer whiz-kids. groups of key managers and According to Liam Hennessy of Farrell other employees. Grant Sparks Consulting, which has advised In this year’s Finance Act, trade union groups on a number of innovative a new tax break was intro- employee stock-option arrangements, a small duced for employees saving number of ESOTs are in the pipeline in the pri- up to £250 a month over a vate sector. However, the amount of shares to fixed period of either three, be granted are not of the same order as in the five or seven years. The case of Telecom Éireann or ICC Bank. This is employees have the option of understandable, as people who have built up a buying shares in their business are more reluctant to let go of too employer or of taking the much of the fruits of their risk-taking. Yet smart proceeds as a tax-free lump bosses are now realising that it is better to have sum. Irish Life has had such a 80% of a large pie than to be left with 100% of scheme in place for quite a small one. some time. Employers are The Irish Software Association is pressing keen on save-as-you-earn for the extension of tax breaks to share options arrangements as they do not across the board, arguing that this would allow cost them as much as a con- Irish high-tech companies to head off growing ventional profit-share labour inflation. In the case of share-option arrangement. schemes restricted to a limited number of But the current system of employees, 46% income tax liability applies. tax breaks is not geared to the This has the effect of restricting their useful- needs of privately-run com- ness. As a result, the development of many Irish

NOVEMBER 1999 LAW SOCIETY GAZETTE 19 What will I do with How can I get a an inheritance I’ve regular income from just received? a personal injury compensation? How do I invest the proceeds of a sale?

Answer: ASK MY SOLICITOR

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CAN YOU AFFORD NOT TO INVESTIGATE THE SERVICES AVAILABLE THROUGH SIS?

IPT Financial Services, a trading arm of Irish Pensions Trust Ltd., is part of the Marsh & McLennon Group and is appointed by the Law Society of Ireland to trade as Solicitors Investment Services. BUSINESS companies is being held back due to a shortage issues remain to be addressed in the case of of skilled people. ICC. It will not be a simple matter of just tak- The best guess, however, is that the ing the Telecom Éireann precedent off the Government favours a focus of tax breaks on shelf. Telecom Éireann was being floated on schemes that benefit all employees. Last year the the market, so the valuation issue was clear. In Institute of Taxation suggested to the Minister the case of ICC, however, it is possible that the for Finance that a new profit-share tax break be privatisation could involve a purchase by a pri- introduced under which privately-owned compa- vate buyer. Equally, a plc buyer might prefer to nies would be allowed to use cash instead of pay in cash rather than shares. shares in a new-style approved profit-share Under the law as it stands, this could present scheme arrangement which would be open to all problems. Approved profit-share schemes are employees in the firms in question. However, the ground, and now the ICC equivalent is almost in all about transferring shares to employees Revenue remains suspicious of such proposals, place. Once again, ICC employees can expect to rather than giving them cash which, strictly fearful of undermining the tax base. end up with a 14.9% stake in the company, with speaking, would be taxable as a benefit-in-kind In the meantime, Irish firms are forced to the employee trust borrowing a large sum to buy at the top tax rate. It is almost certain that fur- resort to less satisfactory gain-sharing arrange- part of the shares. The ICC arrangement is open ther ‘tweaking’ in tax legislation will be ments, the effect of which is frequently lessened to criticism in that one has to question just what required. As things stand, there has to be a by adverse market conditions. In some case, sort of concessions in the area of new work market for shares held under an ESOT arrange- employees have found themselves with just a practices ICC employees will be handing over ment. The Institute of Taxation’s proposals on fraction of the expected bonus as a result of an in return for their 5% stake. this may well see the light of day. adverse market shift outside the control of the Further State companies are waiting in line company. High price to pay? for privatisation, including the soon to be As things stand, gain-sharing arrangements in An expensive precedent has been set at Telecom merged ACC and TSB, the RTÉ transmission this country remain relatively modest by interna- Éireann, however justified it may have been in network, Aer Lingus and the forestry company tional standards. Typical pay-outs run to 4%–7% the particular circumstances faced by the com- Coillte, to name but a few. The demand for the of basic pay, though in the case of multinational pany. The taxpayer is paying a high price in services of trust lawyers and accountants spe- companies such as Intel profit-sharing bonuses return for State employee co-operation with a cialising in employee stock arrangements can run to 15%–20%. In the field of structured potentially lucrative privatisation programme. looks set to be pretty buoyant in the years employee share participation, it is the US-owned Equally, trade unions such as MSF, ahead. G multinationals and the Irish State sector which IMPACT and the Communication Workers’ lead the field. Union have played a blinder on their members’ Kyran Fitzgerald is a Dublin-based freelance The Telecom Éireann ESOT has broken new behalf. What is clear is that important technical business journalist.

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BASIC CAT FOR PRACTITIONERS Hodson Bay Hotel, Athlone 15 November 1999

SETTING UP IN PRACTICE Blackhall Place, Dublin 17 November 1999 SPANISH LAWYERS FAMILY LITIGATION POST BRUSSELS II RAFAEL BERDAGUER CONVENTION Imperial Hotel, Cork 23 November 1999 ABOGADOS TRUSTS Blackhall Place, Dublin 25 November 1999 PROFILE: FIELD OF PRACTICES: panish Lawyers Firm focussed eneral Practice, Administra- NEW PENSION OPTIONS Son serving the need of the for- Gtive Law, Civil and Commercial FOR THE SELF-EMPLOYED Imperial Hotel, Cork 30 November 1999 eign investors, whether in compa- Law, Company Law, Banking and ny or property transactions and all Foreign Investments in Spain, DISTRICT COURT attendant legalities such as ques- Arbitration, Taxation, Family Law, PRACTICE & PROCEDURE Blackhall Place, Dublin 2 December 1999 tions of immigration-naturalisa- International Law, Immigration tion, inheritance, taxation, and Naturalisation, Litigation in all PENSIONS & THE accounting and bookkeeping, Courts. FAMILY LAW ACTS Jurys Hotel, Limerick 6 December 1999 planning, land use and litigation in all Courts. THE PRINCIPLES OF PRACTICAL DRAFTING OF Avda. Ricardo Soriano, 29, DEEDS IN CONVEYANCING Edificio Asahara Oficinas, 4 Planta, 29600 Marbella, Malaga, Spain TRANSACTIONS Blackhall Place, Dublin 7 December 1999 Tel: 00-34-952823085 Fax: 00-34-952824246 e-mail: [email protected] For further information, please see CLE brochure enclosed with this month’s Gazette or telephone the CLE department References from Irish Law Firms: Hayes & Sons (Andrew O’Rorke), on 01 6724802 or fax 01 6724803. Suggestions for CLE Dillon Solicitors (Brendan Dillon), Sherrys Solicitors (Brian Sherry). seminars are always welcome.

NOVEMBER 1999 LAW SOCIETY GAZETTE 21 And justic

The Employment Equality Act, 1998 heralded the advent of a dramatic change in the way that corporate Ireland could select, recruit and subsequently treat its employees. But while it clarifies many areas, it leaves others open to interpretation, as Adrian Twomey explains

he Employment Equality Act, 1998 Act prohibits discrimination between individ- ination based on age will not be repeals and replaces the Anti- uals on the basis that ‘they are of different sex- unlawful ‘where it is shown that T Discrimination (Pay) Act, 1974 and the ual orientation’. The enactment of the provi- there is clear actuarial or other evi- Employment Equality Act, 1977. In the sion in question is consistent with a number of dence that significantly increased process, it significantly broadens the area to steps taken by the State in recent years to pro- costs would result if the discrimi- which domestic employment-equality law tect the rights of homosexuals. The Unfair nation were not permitted in applies by outlawing previously permissible Dismissals (Amendment) Act, 1993, for exam- those circumstances’. In addi- discrimination on a wide range of grounds. ple, has the effect of deeming ‘unfair’ the dis- tion, the Act says that an The specified grounds are: gender; marital sta- missal of an individual because of his or her employer will not be regarded tus; family status; sexual orientation; religious sexual orientation. as having acted unlawfully if belief; age; disability; race, colour, nationality, he discriminates against a ethnicity or national origins; and membership A prime example person over the age of 65 or of the travelling community. The need for the extension of that kind of pol- under the age of 18. Gender or marital status. The prohibition icy into the area of anti-discrimination law Discrimination based on of gender-based discrimination and discrimi- was highlighted by cases such as McAnnellan disability. In 1996, the then nation based on marital status is largely just a v Brookfield Leisure Limited (EEO12/93). In Minister for Equality and continuation of the ban on such discrimination that case, the claimant was allegedly dis- Law Reform introduced a Bill originally implemented through the Anti- missed because of her sexual orientation. She which was very similar in its Discrimination (Pay) Act, 1974 and the was unable to pursue a case under the Unfair provisions to the 1998 Act. Employment Equality Act, 1977. For the pur- Dismissals Acts, however, because she had not The inclusion in that Bill of a poses of the 1998 Act, there are five distinct completed the necessary one year’s continu- ban on discrimination based on categories of marital status: single; married; ous service of her employers. Similarly, the a person’s disability was one of separated; divorced; and widowed. So it will, Labour Court was unable to be of assistance to the factors that contributed to its for example, be unlawful for an employer to her when she brought a claim before it under downfall. In holding the Bill to be treat a divorced employee differently to his or the Employment Equality Act, 1977 because unconstitutional, the Supreme her colleagues simply because of that divorce. that Act did not prohibit discrimination based Court said that: Family status. The first really new on sexual orientation. ‘The Bill has the totally laudable ‘ground’ introduced by the 1998 Act relates to Religious discrimination. Section 6(2)(e) aim of making provision for such of family status. Section 6(2)(c) of the Act pro- of the Act prohibits discrimination between our fellow citizens as are disabled. hibits discrimination between individuals on individuals on the basis that ‘one has a differ- Clearly, it is in accordance with the princi- the basis that ‘one has family status and the ent religious belief from the other, or that one ples of social justice that society should do other does not’. According to section 2(1), one has a religious belief and that the other has this. But, prima facie, it would also appear to is regarded as having ‘family status’ where not’. The term ‘religious belief’ is defined as be just that society should bear the cost of one has responsibility: including ‘religious background or outlook’. doing it ... The difficulty the court finds with ● As a parent or as a person in loco parentis Age discrimination. Among the more the section is not that it requires an employer in relation to a person who has not reached important practical changes effected by the 1998 to employ disabled people, but that it requires the age of 18, or Act is the prohibition of age discrimination him to bear the cost of all special treatment or ● As a parent or the resident primary carer in introduced by section 6(2)(f). For example, facilities which the disabled person may relation to a person of or over that age with paragraph (f) prevents companies from pursuing require to carry out the work unless the cost of a disability which is of such a nature as to recruitment policies that are designed to attract the provision of such treatment or facilities give rise to the need for care or support on younger workers. Similarly, it prevents employ- would give rise to “undue hardship” to the a continuing, regular or frequent basis. ers from eliminating large numbers of applicants employer ... It therefore appears to the court for posts on the basis of age. A legislative devel- that the provisions of the Bill dealing with dis- The inclusion in the Act of such a provision is opment of this nature obviously has significant ability, despite their laudable intention, are of particular benefit to lone parents who implications for personnel and human-resource repugnant to the Constitution’. would not previously have been protected management practice in Ireland. (In the Matter of Article 26 of the Constitution against employment-related discrimination The Act imposes some limits on the appli- of Ireland and In the Matter of the arising from their status as parents. cation of the age-discrimination ban. So, for Employment Equality Bill, 1996, (1997) 8 Sexual orientation. Section 6(2)(d) of the example, section 34(3) provides that discrim- ELR 132)

22 LAW SOCIETY GAZETTE NOVEMBER 1999 EMPLOYMENT ce for all?

far as to include, for example, ‘the partial owner of a small corner shop. absence of a person’s bodily functions’ and ‘a Race, colour and nationality. Section disability which ... previously existed but no 6(2)(h) prohibits discrimination between longer exists, or which may exist in the individuals on the basis that they are of a ‘dif- future or which is imputed to a person’. ferent race, colour, nationality or ethnic or While the definition used in the 1996 national origins’. None of these terms are Bill was even broader, one would still defined in the Act, although it would seem have to be a very healthy specimen unlikely that the absence of definitions will in order to fall outside the new, give rise to serious or persistent problems. narrower definition. While there is little evidence to suggest Section 16(3) requires that such forms of discrimination have con- employers to ‘do all that is stituted a particular problem in Irish work- reasonable to accommodate places in the past, it would seem almost the needs of’ persons with inevitable that the number of problems in this disabilities by providing area will increase as the workforce becomes special treatment or facili- increasingly diverse in terms of race, ethnici- ties, except where this ty and so on. would ‘give rise to a cost, Membership of the travelling commun- other than a nominal cost ity. Finally, the Act specifically prohibits dis- to the employer’. The ref- crimination between individuals on the basis erence to ‘nominal’ costs that ‘one is a member of the traveller com- is presumably designed to munity and the other is not’. It does not, how- address the concerns ever, include any definition of the term ‘trav- expressed by the Supreme eller community’. The potential difficulties Court and to avoid having which may arise on foot of the lack of such a the 1998 Act running into definition are significant. According to the constitutional problems in Travellers’ Youth Service: the future. The rigour of the ‘The traveller population in Ireland is at least provisions relating to dis- 24,000. The figure given by the [Central abilities is also limited by Statistics Office] of 10,891 has been section 34(3), which provides acknowledged by the CSO, the Task Force on that discrimination based on Travellers, and the Government [as not disability will not be unlawful being] a true representation, as the CSO fig- ‘where it is shown that there is ures only took travellers to be people living clear actuarial or other evidence in trailers/caravans on the roadside. They did that significantly increased costs not include travellers living in group housing would result if the discrimination were or county council/corporation-provided hous- not permitted in those circumstances’. ing. All groups involved in the study agreed [the number of travellers] was at least 24,000, Calculating costs if not more’. The Act gives no clear guidelines as to what is to be regarded as ‘a nominal cost’ or ‘signifi- An obvious question is prompted by such cantly increased costs’. There are two possible comments. If the State is unclear as to when approaches that may be taken by the courts in one may or may not be classed as a member In the immediate aftermath of the Supreme interpreting these concepts. The first is to of the ‘traveller community’, how are Court’s decision, there was some concern that indicate a set figure above which costs will be employers to make the distinction with any the Government’s response would simply be regarded as being more than merely ‘nomi- reasonable degree of certainty? Such a ques- to omit the provisions on disability from the nal’. The second is to determine the appropri- tion is unlikely to be satisfactorily resolved expected re-draft of the Bill. Section 6(2)(g) ate figures on the basis of the size and wealth until some guidance is obtained from the of the 1998 Act, however, does prohibit dis- of the company involved. For larger enter- courts. In the meantime, employers would crimination between individuals on the basis prises with substantial profit margins, once- seem to be well advised to be as inclusive as that ‘one is a person with a disability and the off costs running to hundreds of thousands of possible in terms of whom they classify as other either is not or is a person with a differ- pounds might, for example, be classed as being afforded protection by the Act. G ent disability’. ‘nominal’, whereas the expenditure of a sum The word ‘disability’ is very broadly of several hundred pounds could be regarded Adrian Twomey is a barrister and lecturer in defined for the purposes of the Act, going so as ‘significantly’ increasing costs for the law at the National College of Ireland.

NOVEMBER 1999 LAW SOCIETY GAZETTE 23 The art of The traditional time for corporate gift-giving is fast approaching. In many business sectors it’s common practice to send presents to valued clients, but how common – or advisable – is it for law firms to adopt this marketing approach? Maria Behan shops around for some answers givi

t a recent seminar on corporate gifts sponsored by the Australian Law A Society, the speaker attempted to sway a sceptical audience by citing the wise men who presented the infant Jesus with gold, frankincense and myrrh. But is it wise for solic- itors’ firms to play the role of modern-day magi with their clients? Unfortunately, there’s no Star of Bethlehem guiding solicitors to the correct path when it comes to corporate gifts. Some firms embrace the practice as a way of demonstrating apprecia- tion and cementing relationships; others view corporate gift-giving as wasteful at best and unethical at worst. Frank Daly, senior partner at Ronan Daly Jermyn in Cork, was in the audience at that Australian seminar, but he remains uncon- vinced. ‘I would find it embarrassing to “bribe” a client’, he says. ‘And I think that view is pret- ty widespread in the legal field’. Widespread, perhaps, but not universal. According to Charles Searson of Searsons Wine Merchants in Monkstown: ‘Some of the bigger firms we do business with have extensive gift lists, and a lot of thought goes into matching the gift with the recipient. And the smart, younger firms are doing the same thing’. Other law firms adopt a middle-ground approach. ‘We might take a client out to dinner or send a gift as a thank-you after a particular gifts to friends and relatives to bribe them, and tions can be clarified by ‘a well-worded note’, transaction, but we don’t make a practice of giv- that can be the case with business associates as which also makes the gift seem more thoughtful ing out corporate gifts’, says Denise Kenny, well’. and personal. director of business development at the Dublin Although many enterprises – both inside the One thing that’s clearly off-limits is giving firm McCann FitzGerald. ‘That wouldn’t fit in legal field and beyond – are skittish about any- expensive gifts to prospective clients. ‘That’s with our way of doing business’. thing that might even hint at impropriety, espe- another matter entirely’, says McKinney. She cially given recent media coverage of shady believes the only time that any business should Concerns and considerations dealings, McKinney says that client gifts won’t send presents to potential clients is in the course The main concern that many solicitors seem to be viewed with suspicion if companies follow of a well-orchestrated marketing campaign and, have about corporate presents is that they might some simple guidelines. The first rule of thumb even then, the gift should be small and ‘clever’, be viewed as improper. ‘There’s an industry is to send gifts only to clients with whom you never lavish. fear that gifts can be perceived as bribes’, says have a long-term relationship. ‘You’ll simply A different kind of scepticism about corpo- Ailsa McKinney, managing director of One 2 look like you’re thanking them, not bribing rate gifts arises not from concerns about ethics, One Marketing in Dublin. ‘But we don’t send them’, she maintains. Secondly, she says, inten- but the bottom line. Yet those who seek to mea-

24 LAW SOCIETY GAZETTE NOVEMBER 1999 MARKETING

Gift possibilities f Whether you’re looking for a present that’s mod- est or lavish, traditional or offbeat, a good place to start is by contacting one of the companies that specialise in corporate gifts. The follow- ing is just a sample. Adlantic Corporate Gifts. Specialising in promotional items, this company offers a wide range of products including golf wind- cheaters (£32 plus VAT, if bought in quantity) and leather wallets (£10–£15 plus VAT, depending on the quantity ordered and leather ing quality). If you opt to have items embossed with your firm’s name, there will be a one-time set-up charge of about £35, and some gifts will carry an extra per-item charge (usually about £2) for embroider- ing or engraving. Tel: 01 276 2382; web site: http://www.adlantic- pro.com. Alternative Gifts. To mark the change in the calendar – or a busi- ness relationship that’s moving into the new millennium – this comp- any has come up with a simple but elegantly presented set of two champagne flutes accompanied by a card marked ‘1999-2000’ (£40 plus VAT). Tel: 01 283 2966 or 0902 76715. Bewley’s Hampers. Bewley’s offers a range of food and wine treats, ranging from The Victorian, a wicker basket filled with cakes, sweets and a bottle of Hardy’s Australian chardonnay (£26.50) to The Millennium Gold, a hamper of delicacies accompanied by a bottle of Krug champagne, eight John Rocha Waterford Crystal flutes and a matching cut-glass bowl (£1,210). The Chocolate Box, one of their most popular gift items, includes a range of chocolates and Skellig truffles (£47.50). Tel: 1800 210021; fax: 01 855 1644; web site: http://www.bewleys-hampers.ie. Clonakilty Country Irish Food Hampers. Choices vary from The Erin hamper of tea, marmalade, salad dressings, mustards and choco- lates (£25 plus VAT) to The Aoife, which includes two bottles of Chilean wine, Sheridan’s Liqueur, port, Christmas cake, smoked salmon, cheese, coffee, wild Irish honey and chocolates (£120 plus VAT). Tel: 021 774 727; web site: http://www.dragnet-systemsie/dira/ hampers/index.htm. Dublin Crystal. This company specialises in hand-cut crystal gifts such as the Dublin Suite spirit decanter (£52.50 or £59 if engraved), clocks (£43.10; £48.40 if engraved), paper clip boxes (£10.40; £12 if engraved) and engravable paperweights (from £15 to £34.40). Tel: 01 288 7932; fax: 01 283 3227; web site: http://www.dublincrystal.ie. Lorsha Design. If you’re looking for something a bit different, this sure the return on investment from corporate Newry-based enterprise specialises in hand-painted silk scarves (from presents will probably be frustrated. ‘They’re an £20), ties (from £30), waistcoats (from £80), and wall-hangings and added expense with a non-quantifiable return – framed pieces (both from £40). Tel: 028 30 250146; web site: like almost all advertising’, McKinney says. But http://www.wiredup.net/lorshadesign. she adds that, like advertising, gift-giving can Searsons Wine Merchants. Searsons offers an array of libations, pay off. ‘I advise clients that if they have the from two bottles of wine for £25 to a more lavish selection that budget, they should engage in corporate gift- includes five bottles of Louis Roederer Brut Premier and a sixth special giving’, she says. bottle of Roederer vintage bubbly (£175). Tel: 01 280 0405; fax: 01 280 Not all solicitors’ firms see the value of gam- 4771. bling on uncertain results. ‘We spend on adver- Sheila’s Flower Shop. Flowers are a perennial favourite and the tising, but we haven’t really given consideration arrangements offered here start at £20. Tel: 1800 214114 or 01 676 to corporate gifts’, says Cora Crampton, Office 1232; web site: http://www.sheilas.ie. Manager at LK Shields in Dublin. ‘I know some people are using mouse pads, calendars and Note: Prices include VAT, unless otherwise indicated. G

NOVEMBER 1999 LAW SOCIETY GAZETTE 25 MARKETING clocks, but there are probably better ways to mar- context of traditional legal-industry client a bottle of whiskey’, says Charles Searson. ‘The ket. We promote the firm brand as much as we thank-yous. ‘We give out small tokens, like problem with gifts like that is that they’re gener- can, but we like to get the firm’s name out there golf balls with our name at sports outings’, ic, and the giver isn’t likely to be remembered’. in a subtle way’. Kenny says. ‘That type of thing is fairly com- Still, it’s important to strike a balance. ‘A gift Given the nature of the profession, it’s under- mon in the legal field’. that’s too personal may not go down well with standable that solicitors’ firms want to market clients’, observes Denise Devitt, director of with subtlety – if they do any marketing at all. Precision presents Dublin-based Bewley’s Corporate Hampers. ‘In general, legal firms don’t do as much as other If a firm decides gift-giving is the way to go, ‘Ours are generally well received because kinds of businesses’, says McKinney. ‘In one marketing consultant McKinney recommends a they’re not overly personal’. sense, they don’t have to market themselves targeted approach. ‘It shouldn’t be a willy-nilly Then there’s the thorny issue of how much to because, like a doctor, once they’ve established a programme that includes your entire customer spend on a gift. Spend too little in some cir- level of service, they’re likely to have a long- base every Christmas’, she says. ‘But if you cumstances and a client may not feel well term relationship with their client’. Nonetheless, focus on valued clients you want a lasting rela- thought of; spend too much in others and he or she feels solicitors can lose clients by resting on tionship with, it’s a good way to increase an she may feel compromised. A well-chosen, their laurels since there are often long gaps established loyalty’. moderately-priced gift is generally the safest between opportunities to help a client with a She advises firms to send their present to the course. ‘If a gift is sufficiently special, you commercial transaction, mortgage or a will – person they deal with most at their client account. don’t have to spend a fortune’, Searson says, time that can erode loyalty. Gifts which bypass that primary contact in favour adding that one of the easiest and best ways of Solicitors’ attitudes to marketing in general of a higher-up, such as a CEO, can cause offence. ensuring a gift’s impact is to include a hand- have changed in recent years. ‘It’s regarded as a ‘If you have the budget, send presents to both – if written note. He also points out that early deliv- necessity now’, observes McCann FitzGerald’s not, go with your key contact’, she counsels. ery for Christmas presents is a good idea since Denise Kenny. ‘We’re doing a lot more client Once the names on the gift list are decided, the gifts – and their givers – may become blurred in entertaining and producing more publications, next step is to decide which present is appropri- the final days before the holiday. such as newsletters and briefings on legal issues. ate. There are many choices when it comes to Finally, consistency is important. ‘If you We’ve also got a web site and we’re running a lot corporate gifts, the most popular ranging from send out gifts one year, recipients will expect more in-house client seminars. That’s a big pens and calendars emblazoned with the firm’s them next year’, Devitt observes. ‘They’ll be change from five to ten years ago when our pri- name to wine and food hampers. Whenever pos- disappointed if they don’t receive them’. G mary marketing vehicle was our corporate sible, a gift should reflect the recipients’ inter- brochure’. ests, such as reading, golfing or gardening. Maria Behan is a Dublin-based freelance Corporate gift-giving is part of McCann ‘Ten to 15 years ago, most people’s idea of an writer who specialises in business and tech- FitzGerald’s marketing strategy, but only in the appropriate corporate gift was a bottle of gin and nology issues.

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NOVEMBER 1999 LAW SOCIETY GAZETTE 27 BRIEFING Council report Report on Council meeting held on 10 September 1999

Motion for consideration Proposed: John Costello Fees: ad hoc legal aid Scheme of Compensation at October meeting Seconded: Michael Peart scheme for CAB cases for Personal Injuries ‘That this Council is opposed to the James MacGuill reported that Criminally Inflicted practice by some builders/develop- The Council approved the motion agreement had been reached with The Council noted that the ers of including in building con- and agreed that the appointment of the Department of Justice, Department of Justice, Equality and tracts for new houses that the pur- the members of the committee/task Equality and Law Reform in rela- Law Reform had invited the chase price be paid by way of stage force should be dealt with by the tion to increased fees under the ad Society’s views in relation to a payments and requests the Minister incoming President in appointing his hoc legal aid scheme for CAB review of the Scheme of Compensa- for the Environment and Local committees/task forces for the cases. The President compliment- tion for Personal Injuries Criminally Government to make the necessary 1999/2000 Council year. ed the Criminal Law Committee Inflicted. It was agreed that a sub- regulations to prohibit this.’ on its success in this regard. mission should be prepared by the Proposed: John B Harte Proposed designation Society’s Parliamentary and Law Seconded: Sean Durcan of solicitors pursuant to Mandatory CLE Reform Executive, Owen McIntyre, section 32 of the Criminal Owen Binchy reported that a task in consultation with the Director Motion: salary scale Justice Act, 1994 force had been established, under General and the officers. ‘That this Council recommends a The Council considered the contents the chairmanship of Michael salary scale of £18,000 – £22,000 of a draft EU directive extending the Peart, to consider the introduction DPP per annum for newly-qualified provisions of the existing Money- of mandatory CLE. The task force The Council extended congratula- solicitors.’ laundering directive to ‘independent would report to the Council in due tions to James Hamilton on his Proposed: Hugh O’Neill legal professionals’, among others. course. appointment as Director of Public Seconded: Michael Carroll Prosecutions. The Council also Disciplinary Tribunal Circuit Court rules passed a vote of appreciation to The motion was unanimously The Council agreed that, in order to Gerard Doherty reported that con- Eamonn Barnes, the outgoing DPP, approved by the Council. underpin the independence of the solidated rules were being sent for his independence and integrity in Disciplinary Tribunal of the High by the Circuit Court Rules the performance of his functions. Motion: pro bono Court, arrangements should be made Committee to the Department of ‘That this Council appoints a com- to source alternative accommoda- Justice, Equality and Law Reform County registrars mittee/task force to make recom- tion for the tribunal and its secretari- in the near future. It was hoped The Council congratulated Patricia mendations regarding the creation at at a location away from the that the department would intro- Casey and Susan Ryan on their of a voluntary pro bono scheme for Society’s premises at Blackhall duce the rules without undue appointments as county registrar for the profession.’ Place. delay. Carlow and Dublin respectively. G

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28 LAW SOCIETY GAZETTE NOVEMBER 1999 BRIEFINGBRIEFING

Committee reports

domicile of origin revived. have to look for support and should have been posed was: PROBATE, Domicile is not always obvious assistance. ‘Did Mrs Proes abandon her ADMINISTRATION and is ascertained only after Over a number of years, she English domicile by a) residing AND TAXATION identifying and answering the had looked at a number of hous- in Cork and b) deciding not to correct questions. es with a view to buying, and in return to live permanently in The subtlety of domicile: In the case of Proes v The 1992 she finally purchased a England?’, and not: ‘Did not asking the right Revenue Commissioners (High house in London in which she Mrs Proes decide to live perma- questions Court, 1996, no 157R; Costello had not actually resided as it nently in Ireland and thereby Domicile is a common-law con- P, 5 June 1997), the appellant required extensive refurbish- acquire a new domicile of cept and usually understood as contended that she was not ment, which was in progress. choice?’. The Revenue argued the place of a person’s perma- domiciled in the State and there- Apart from a current account in that this was a distinction with- nent home; it may be in a coun- fore not subject to Irish income Ireland, her main accounts and out a difference and that the try where a person is resident tax on unremitted foreign investments were maintained determination that the appellant and intends to stay or to which income; the burden of proof fell outside Ireland and she had Irish had decided to ‘live indefinitely’ he or she intends to return. A on the appellant to establish that and UK health insurance; her in Ireland and thereby acquired person’s domicile is relevant in she had acquired a domicile of daughters and grandchildren a new domicile of choice meant determining whether a marriage choice in England in 1940 and were domiciled in England. that she had ceased to intend to or divorce is recognised. In the that she did not abandon her At the conclusion of her evi- return to live permanently in area of taxation, a non-domi- domicile of choice when she dence, in response to a question England and therefore had aban- ciled person’s foreign assets returned to Kinsale following posed by the judge as to whether doned her English domicile. will not usually be subject to the death of her husband or any she considered the Kinsale Costello disagreed for the fol- capital acquisitions tax (CAT), time thereafter. The trial judge house as her permanent home, lowing reasons: and their unremitted foreign accepted that for some time the appellant replied: ‘Yes, for ● The issue was whether, in income (other than UK) will not prior to her late husband’s death the time being’. The trial judge light of all the evidence, it be subject to income tax. Also, a she had acquired a domicile of was satisfied that the appellant could be inferred that Mrs beneficiary neither ordinarily choice in England (she was a and her husband had an English Proes had abandoned her resident nor domiciled in British subject and held a British domicile from the date of her English domicile, not only by Ireland is exempt from CAT on passport). marriage until 1982; however, ceasing to reside in England certain government stocks, sub- Some 12 years prior to the although he accepted the appel- but by residing in Ireland and ject to certain conditions. death of her husband in 1982, lant did intend to return to in ceasing to have an inten- Every person receives at birth they had bought a holiday home England at some future time, she tion to return to England as a domicile of origin (usually in Kinsale when circumstances had nevertheless resided in her permanent home. The that of the father) but may had prevented them making Kinsale for over ten years. He failure to address this issue acquire a domicile of choice by extensive use of it. Following considered that the issue which meant that proper weight was the combination of residence his death, the appellant had to arose was whether despite the not given to the very com- and intention of permanent or vacate their apartment in appellant’s evidence as to her pelling evidence that no indefinite residence (a wife’s London and she decided to stay intentions for the future (which intention to abandon her domicile of dependency on mar- in the house in Kinsale because he accepted), her acts belied her English domicile had proper- riage has ceased to be part of it was the only place immediate- intentions sufficiently to estab- ly been inferred from the Irish law). The domicile of ly available to her. She was also lish that she nevertheless intend- admitted facts choice may be lost by abandon- happy in Kinsale and would ed to live indefinitely in Cork ● It was clear that in 1982 the ment – for example, when a per- probably stay there as long as and had accordingly made a appellant had not decided to son ceases to reside in the coun- her health permitted. She envis- domicile of choice in Ireland. cease residing permanently in try of domicile and to have an aged that if she ceased to be able On appeal to the High Court, England and subsequent intention to return to it as a per- to look after herself and live Costello P determined that the thereto never ceased to have manent home. On such aban- alone, she would return to trial judge had erred in the ques- an intention to so return, and donment, either a new domicile England to live closer to her tion he thought he was required that her intention to return to of choice is acquired or the daughters to whom she would to answer. The question which reside in London was not so

NOVEMBER 1999 LAW SOCIETY GAZETTE 29 BRIEFING

vague and indefinite as to Government and passed the 1999. This was published and CONVEYANCING justify the conclusion that her committee stage in July. Its prin- enacted in May/June 1999 in domicile of choice had in cipal provisions are: i) clarifica- advance of the Eircom plc (Bord reality been abandoned tion of the law on examinerships Telecom Éireann plc) IPO. It Bank fees for Revenue ● The determination of the trial by tightening up the circum- facilitates stabilisation exercises guarantee judge in accepting that the stances in which a company may after IPOs and other public offer- The Conveyancing Committee appellant was assessable be put under court protection; ii) ings of shares. For a period of 30 would like to thank those mem- from 1982 onwards was not removing the requirement for days after the ‘closing date’ as bers of the profession who consistent with his view that small companies (turnover under defined, the managers of a public responded to its survey on the length of her residence £250,000) to have auditors or an issue of shares are able to over- the Revenue Commissioners’ from 1982 was the decisive audit; and iii) providing for allot and buy in the shares the requirements for bank guarantees factor. more stringent requirements for subject of the issue, with a view for solicitors’ cheques for stamp incorporation of companies to to stabilising the share price and duty. The results of the survey Costello P concluded that the deal with the perceived menace to avoid peaks and troughs. have been collated and are as fol- trial judge was incorrect in of Irish-registered non-resident Companies (Amendment) lows: determining that the appellant companies. Two items are (No 4) Bill. This was introduced a) 30 firms pay bank fees for had acquired a domicile of deserving of special note. in late September 1999 by Ruairí this guarantee choice in the State; she had First, the possibility of shelf Quinn TD and, like Mr 28 firms do not pay a fee acquired an English domicile of companies is removed. It is pro- Rabbitte’s Bill earlier in the year, 4 firms pay no fee but give choice which she had not aban- posed now that all companies seeks to expand the class of dis- some other form of doned and, accordingly, at the when formed must identify the closee of departmental inspec- security relevant times her Irish domicile exact activity they will engage tors’ reports. This time it is pro- 6 firms do not use the of origin had not revived. in, and the precise place in posed that Dáil, Seanad and joint guarantee Ireland where that will take Oireachtas committees should be 68 firms responded Des Rooney, Vice-chairman, place. The Business Law authorised. Probate, Administration and Committee lobbied for this pro- b) Of the 30 firms that pay a fee, Taxation Committee vision to be amended so as to Possible consolidation? 25 gave an indication of how enable shelf companies to be In March, the Government much they pay: formed, with a deshelving reso- adopted the McDowell report on 5 pay a percentage of the lution filed after the company company law enforcement. One amount guaranteed (4 @ BUSINESS LAW commences commercial activi- of its proposals is a consolida- 1% and 1 @ 0.75%) ties. These submissions were tion of company law, with bien- 1 pays a fixed sum per Four Companies ignored. nial Bills, along the lines of annum (£100) plus a (Amendment) Bills, and Therefore, the Irish solution Finance Bills, to defossilise the percentage of the amount one Act to the Irish problem will be that, legislation. However, the first guaranteed (2%) 1999 has seen a flurry of pro- on and from enactment of the legislative excursion arising 19 pay a fixed sum per posed legislation on company new law, practitioners will be from the McDowell report is annum (between £20 and law, with four Bills published obliged to use non-Irish compa- likely to be the Bill to institute £410) and given a second reading. The nies as shelf companies, such as the Office of the Director of £ Bills and their respective Manx, BVI and Channel Island Corporate Enforcement pro- 0-50 - 6 firms progress is as follows. companies. The Business Law posed in that report. This office, 51-100 - 4 firms Companies (Amendment) Committee is of the view that to be staffed by 30 officials and 101-200 - 4 firms Bill. This was introduced in this provision, if enacted, will be backed up by seven members of 201-300 - 2 firms February by Pat Rabbitte TD a great leap backward. Rather the garda, is expected to be in 301-400 - 2 firms and sought to expand the list of than regulate Irish companies, place by mid-2000. 401 + - 1 firm authorised disclosee of reports instead there will be a prolifera- of departmental officials tion of companies beyond Irish Companies Acts, The committee thanks the bar appointed to investigate the regulation (and maybe even, in 1963 to 1999 associations for their co-operation affairs of a company, under part some circumstances, capital This is the new collective citation and assistance in collating II of the Companies Act, 1990. duty). of the Companies Acts. responses to the survey. It will The proposed addition was a Secondly, all companies must report further in due course on tribunal of enquiry (such as the have either an Irish director or www.cro.ie any approaches made to the Moriarty Tribunal). This Bill an Irish activity certified as such The Companies Registration Revenue Commissioners in rela- did not progress beyond second by the Companies Registration Office has a web site which has tion to this matter. In the mean- stage, but at the committee Office or a bond of £20,000 the most popularly-used CRO time, the committee recommends stage of the No 2 Bill (see lodged with the CRO. forms available for download. to those practitioners who cur- below) its provisions were Companies (Amendment) Further functions are being added rently pay fees to their banks for incorporated into the No 2 Bill. (No 3) Bill. Of the quartet of and will be the subject of further this guarantee that they ask their Companies (Amendment) Bills published, this is the only announcements. banks to waive the fees. (No 2) Bill. This was intro- one as yet law, and is the duced in March by the Companies (Amendment) Act, Business Law Committee Conveyancing Committee

30 LAW SOCIETY GAZETTE NOVEMBER 1999 BRIEFINGBRIEFING

Practice notes

High Court: assessment New District Court rules cases – country venues District Court (Discovery of Documents) Rules (SI No 285 of 1999) Practitioners should note the introduction of new District Court rules (order On Monday 26 April 1999, a practice direction was re-issued by Mr Justice 46A) to regulate and expand the procedure of discovery in the District Court. Frederick Morris, President of the High Court, with reference to ‘short cases The rules set out the procedure to be followed to obtain discovery, the sanc- (a duration of one day or less) involving an assessment of damages only’, and tion for failure to comply with an order for discovery and the costs which the he set out the following provisions which shall apply: court may award in both circumstances. The rules are operative from 27 ● Such cases will, on the application of the plaintiff, be listed for trial on the September 1999. Wednesday, Thursday or Friday of the last week of each sitting ● Applications may be made in respect of any such case which has been set District Court (Affidavits) Rules (SI No 286 of 1999) down for trial, regardless of whether or not it has appeared in the pub- New rules have been introduced to amend order 9 of the District Court rules lished list 1997 to allow a practising solicitor to sign an affidavit for use in the District ● Applications for such listing must be made to the presiding judge Court. The new rules are operative from 27 September 1999. at the call-over in Dublin which precedes the hearings in each Litigation and Arbitration Committee country venue ● This direction has been in effect in respect of all trials at country venues from Easter Term 1998. New Circuit Court fees This is being done in an effort to expedite the hearing of cases and has been the subject of consideration by the Litigation and Arbitration Committee. It is Practitioners should note the introduction of a new Circuit Court Fees Order felt that there should be a positive response from solicitors and the commit- (SI No 292 of 1999) which provides for increases of between £1-£24 in fees tee would recommend that solicitors co-operate by submitting applications to chargeable in Circuit Court offices as and from 4 October 1999. The order also have appropriate cases listed in accordance with the terms of the direction. provides for the exemption from fees of family law proceedings. Litigation and Arbitration Committee Litigation and Arbitration Committee

Mortgage redemption figures The Conveyancing Committee has received a significant number of complaints will stand over (that is, one which is not stated to be provisional). Solicitors from members of the profession about difficulties being experienced in are reminded that if they give an undertaking to procure the release of a obtaining mortgage redemption figures from lending institutions. The main mortgage without having secured a statement of redemption figures which complaint is that provisional figures were given and lenders later revised the are not provisional or hedged in some way, they are putting themselves at figures upwards, even though the solicitors had acted upon the basis of the unnecessary risk. figures furnished. In one case, a solicitor had actually parted with the sale pro- ceeds of a property and had given an undertaking to procure a release of the ‘Re Borrowers: mortgage which the particular lending institution refused to do without being Property: paid further monies. Account No: The committee would like to refer practitioners to practice notes previous- Dear Sirs, ly published on this topic, in particular the practice note published in the Law We act for the above named borrowers who have agreed to sell their property Society Gazette in November 1990 entitled S18 Housing Act, 1988: release of at the above address. We expect to be in a position to complete the sale shortly mortgages, which has also been published in the Conveyancing handbook. and accordingly would be glad if you could let us have details of the amount due The Conveyancing Committee proposes taking this matter up with the lend- to you as of the … day of …19/20 … under the above account (or any other ing institutions in an effort to resolve the current difficulties. account or accounts that may be relevant) to enable you release or vacate all In the meantime, in order to assist practitioners, the committee recom- mortgages which either directly or indirectly affect the above property. When mends that the following letter be used by practitioners when seeking sending the figures to us, please let us also have a daily rate of interest. redemption figures from lending institutions. In the opinion of the commit- Yours faithfully’ tee, a borrower is entitled to be given a redemption figure which the lender Conveyancing Committee

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Enduring powers of attorney A situation has been brought to the attention of the Conveyancing Committee In the above circumstance, the committee concluded that the course of action whereby a donee of an enduring power of attorney which had not been regis- proposed by the donee of the enduring power was not in fact good conveyanc- tered sought to sell the property of the donor at auction. The special conditions ing practice. in the contract provided that the closing date would be seven working days after The committee wishes to point out to the profession, however, that, in an the registration of the enduring power of attorney. No application had been emergency, the donee can apply to the court for an order under section 8 of made to the court for an order to effect the sale pre-registration. The commit- the Powers of Attorney Act for the exercise of the power by the court pending tee was asked to consider whether this was good conveyancing practice. registration of the enduring power of attorney, and practitioners are recom- The committee noted that until such time as an enduring power of attorney mended to consult the legislation before applying for such an order in appro- is registered, the power has not come into force. Therefore, the donee would priate cases. have no power to execute a valid contract for the sale of the donor’s property. Conveyancing Committee

New system for stamping deeds The Conveyancing Committee has been informed by the Revenue Commissioners iii) Collateral and counterpart: that a new computerised system for stamping deeds will shortly be introduced ● In the case of a collateral and/or counterpart document, the following by them. Revenue have indicated that the system is currently being tested and text will be printed as appropriate: ‘Collateral – principal fully and prop- that they hope that, all going well, it will be introduced on a phased basis over erly stamped’ or ‘Counterpart – original, fully and properly stamped’. a two-week period, probably in November. Revenue have also stated that they iv) Exempt documents: will furnish information leaflets to the profession setting out full details of the ● In the case of documents adjudged exempt, the word ‘exempt’ will new system prior to its implementation. In the meantime, the committee wishes replace the amount. to give practitioners a flavour of the new system as follows. The string will usually be printed on the front of the document in a one-line, New features of the system include: two-line or three-line format, depending on the space available. If space is 1) Identifier number very limited, only the summary information will be printed on the front and Each document presented for stamping will be allocated a unique identifier the detailed information will be printed on the back. number which will be printed as part of the new ‘printed string’. Any record- ed information in relation to the document can be accessed by means of this b) Embossed clear foils identifier number. The information recorded on the electronic database will The summary information will be covered with either one or two transparent include the name and address of the solicitor acting in the case, the effective foils. The number required will be dependent on the length of the summary. date of the document, the date of presentation for stamping, the considera- Each of these foils will display three images of castle gates. The word tion or value of the property, the relevant classification(s), the duty payable, ‘Revenue’ will appear at an oblique angle on these foils in colours of green any penalties due, payments received, date and type of stamping details, rel- and orange. The foil protects the data which it covers and is intended to pre- evant details of the transaction taken from the PD form, details of certificate vent tampering. values, types of property transferred, relevant reliefs together with any mit- igation of penalties granted or refused. c) Silver coloured securagrafix A non-transparent silver coloured foil incorporating a registered holograph- 2) Green stamps replaced ic image of a harp with matt white detail with grating infill will be impressed The old familiar embossed green stamps will be replaced by a combination of adjacent to the transparent foil(s), on the right hand side. This hologram will a ‘printed string’, one or more embossed clear foils and a silver coloured indicate the end of the printed string. securagrafix. a) The printed string Changes in practice i) Detail part of the string: The Revenue Commissioners have indicated they will introduce the following Documentation identification number will be ten numeric characters changes in practice when the new computerised system becomes operational: Date document was stamped in the format dd/mm/yy 1. In the Dublin office a one-stop service will be available in most instances. An ● Code representing the type of transaction (for example, C for conveyance, electronic ticketing system will be in place and persons will take a ticket (adju- M for mortgage and so on). A complete list of the type of transactions dication/straight or straight only). They will then wait to be called to the and how they will be represented will be made available in the Revenue appropriate desk. It will no longer be necessary to queue separately for mark- information leaflet ing, stamping and PD stamping. Persons attending at the public office are ● Amount of duty paid in respect of that transaction. (Note that the code asked to have their documents, supporting documentation and payments cor- and amount of duty will be repeated if more than one transaction is rectly ordered before seeking service. The committee has not yet been given included in the document) information on what procedures will be adopted in the Cork office. ● Capital letter P followed by an amount indicating that penalty/interest 2. It will no longer be possible to have a document marked without stamping. was imposed and paid (if applicable) Instead, an assessment will issue as required. ● Letters PM followed by an amount indicating that penalty/interest had 3. The PD stamp will no longer be impressed separately. It will form part of the been partially mitigated (if applicable) marking string which, together with the foils and secure graphics, will form ● Letters PM not followed by an amount indicating that penalty/interest the stamp. A properly completed PD form, where required, must be present- had been fully mitigated (if applicable). ed before stamping may proceed. It will be possible to make payment in advance of delivery of the PD form in order to prevent penalties accruing. ii) Summary part of the string: 4. Change from cheques and so on will no longer be given in cash. Refunds will ● Letter A indicating that the document had been adjudicated (if applica- be made by means of payable order through the post. Refunds will be made ble) to the solicitor of record unless written authorisation to the contrary is pro- ● Letters PD indicating that a Particulars Delivered form had been received vided. (if applicable) 5. When cancelling stamps, the old system of blockouts will be replaced by a ● Letters EUR or IEP showing the currency of the document simple inked stamp or manual embossment. The database will contain full ● Amount showing the total amount paid including duty, interest and details of all cancellations. penalties. Conveyancing Committee

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Safety files and once-off houses The Conveyancing Committee Supervisor for the construction is: is he also the Client? He is to carry out the construction work would like to thank Rory stage. The Project Supervisor for clearly a person engaged in trade (so that no sub-contractor or any O’Donnell and Breda Sweeney of the construction stage in appro- business or other undertaking other third party whatsoever was O’Donnell Sweeney, Solicitors, priate cases has the obligation to who carries out a project for the necessary) whether the contractor for the following practice note prepare the safety file. In such a purposes of such trade, business would come within the definition of which has been approved by the case, the independent building or undertaking. However, the ‘the Client’. committee. contractor is the Contractor. definition is a person engaged in The distinguishing factor between 2. A house-building company buys a trade, business or other under- these two scenarios is the engage- The object of this practice note is to site on which to build 100 houses. taking who commissions a project ment of sub-contractors. In the latter, consider who is ‘the Client’ (if there It retains an architect, an engi- for the purposes etc or who pro- no-one has been procured or commis- is one at all) within the meaning of neer and obtains planning per- cures the carrying out of a project sioned to carry out a project. the Health and safety regulations mission. It then proceeds to build for the purposes etc. It would seem, however, that the where an individual buys a site for a houses. Typically, it would have a engagement of sub-contractors does house for himself and arranges to foreman and a small staff, and The Oxford Dictionary defines ‘com- not of itself bring one within the get a building contractor to build a most of the work would be done mission’ as follows: definition of ‘the Client’. There house as a residence for himself or by specialist sub-contractors. In 1. Authority committed or entrust- seems to be a difference between herself. The following definitions this case, the house-building ed to any one specially delegated engaging a contractor for the pur- are important in considering this. company is the Client and it is authority to act in some specified poses of the ‘Project’ (as in example ‘Client’ means any person also a Contractor. Each sub-con- capacity, to carry out an investi- 1 above) and a main contractor engaged in trade, business or other tractor would also be a gation or negotiation, perform engaging sub-contractors who carry undertaking who commissions Contractor. judicial functions, take charge- out construction work and/or supply or procures the carrying out of a 3. A company buys a site to expand able office and so on. labour and so on. In the latter case, project for the purpose of such its builders’ providers business. It 2. The action of committing or giv- the sub-contractors have not been trade, business or undertaking. appoints an architect and engi- ing in charge the entrusting of appointed for the purposes of carry- ‘Contractor’ means a contractor or neer to procure planning permis- (authority etc to any one). ing out the project (which is the an employer whose employees sion for the building it wants and 3. A charge or matter entrusted to broader picture). However, this undertake or carry out construction then puts the building contract any one to perform: in order to rationale does not in our opinion work or any person who carries out out to tender, and in due course execute objective work. taint the conclusion reached in construction work for a fixed or enters into a building contract 4. Authority given to acts of agent example 2 above. In such a case, the other sum and who supplies the with an independent builder. In or factor for another in the con- project is being ‘commissioned’. materials and labour (whether his that case, the company carrying text of business or trade; system The obligation to appoint the own labour or that of another) to out the builders’ providers busi- of trading in which a dealer acts Safety Supervisors is imposed on the carry out such work or supplies the ness is the Client and the building as agent for another, generally Client. If there is no Client in con- labour only. ‘Project’ means any contractor is the Contractor. receiving a percentage as its nection with a particular project, it development which includes or is 4. An individual or company buys remuneration. seems that there would be no per- intended to include construction sites, gets planning permission 5. To furnish with a commission or son fixed with the obligation to work. for a house and builds the house. legal warrant to empower by a make the appointments of the The definition of construction Say, for example, that it buys a commission. Safety Supervisors, and consequently work is quite long and it is not nec- two-acre site for the purposes of 6. To give a commission or order to no person is obliged to prepare a essary to set it out in full. It includes sale. The individual/company gets (a person) for a particular piece safety file. construction, alteration, conversion, an architect/engineer to design a of work: chiefly used of the The regulations also clearly fitting out, renovation, repair, house and obtain planning per- orders given to artists. intend that the Client will be the upkeep and redecoration. In other mission. The individual or compa- 7. To send on a mission, despatch. owner of the land on which the pro- words, everything you could possibly ny who buys the site is the Client ject is carried out. We say this think of in relation to a building. and the company who carries out It seems clear that the word ‘com- because the Safety Supervisor It is clear that the definition of the building of the house is the mission’ means the act of getting (Construction Stage) is obliged in contractor includes both a main con- Contractor. someone else to do something. appropriate cases to prepare a safe- tractor and a sub-contractor. To illus- 5. An individual buys a site upon When the expression ‘procures the ty file and give it to the Client. The trate the point best, we would like which to erect a house for his carrying out’ is examined, it is self- Client is then fixed with the obliga- to give a series of examples: own use as a residence. He gets evident that this also means getting tion to keep the safety file so that it 1. A development company is devel- an architect and engineer to someone else to do something. will be available for persons who oping a business park. It engages arrange for the preparation of It seems, therefore, that the use need to inspect it. The only way in architects, engineers and so on to drawings and to obtain planning of the word ‘commissions’ or the which the Client can relieve himself prepare drawings and obtain permission. He puts the job out to words ‘procures the carrying out’ or herself from this obligation is planning permission for its devel- tender and an independent excludes the application of the defi- under regulation 3(6) which reads: opment. It then employs an inde- building contractor tenders for nition to a person actually carrying ‘It shall be sufficient compliance pendent building contractor to the job and proceeds to build the out the work (save in a case such as with paragraph (5) by a client who construct the building in accor- house on behalf of the individual. that outlined in example 2 above, disposes of his or her interest in the dance with the approved draw- The question is: who in this sce- where the person carrying out the property involved in the project if he ings. In that case, the develop- nario is the Client? Clearly, the work is also the owner of the land). or she delivers the safety file for that ment company is the Client who individual is not the Client. The It is arguable, however, in the theo- property to the person who acquires has the responsibility to appoint building contractor is clearly a retical event that a contractor such interest in that property and the Project Supervisor for the Contractor within the meaning of bought a site and had sufficient such person shall keep available such design stage and the Project the regulations but the question capacity within its own organisation Continued on page 34 ➜

NOVEMBER 1999 LAW SOCIETY GAZETTE 33 BRIEFING

➜ Continued from previous page safety file in accordance with paragraph (5)’. Deduction of tax from It seems, therefore, that it is implicit that the Client must also be the payments of interest owner of the land (or perhaps entitled to control the ownership thereof). The building of houses like this is a very common feature in rural Ireland On the payment of yearly interest: and this matter of interpretation is going to become the focus of much 1. By a company to any party, tax must (in almost all instances) be deducted attention. In conclusion, it is clear that in some cases where ‘once-off’ hous- at source es are being built that there is no Client and therefore no obligation on any 2. By an individual to any party other than a non-resident, payment should person to prepare a safety file. In such cases, solicitors dealing with convey- be made gross (that is, without deduction of tax) ing the house should not concern themselves with the matter of a safety file. 3. By an individual to a non-resident, tax must be deducted at source. Conveyancing Committee Interest on the balance of purchase money payable in respect of a con- veyancing transaction is regarded as yearly, because it could technically cover New Superior courts rules a period in excess of a year. This was held to be the case in Bebb v Bunny (1854), and it has been confirmed by the Revenue Commissioners as being Rules of the Superior Courts (No 2) (Discovery) 1999 their acknowledged practice. Practitioners should note that order 31 of the Superior courts rules has been Tax in the foregoing context means tax at the standard rate and, where amended by the substitution of a new rule 12 which provides, inter alia, that deducted at source: the notice of motion in respect of an application for discovery must now spec- a) Same should be accounted for to the Revenue Commissioners by the ify the precise categories of documents sought and must be grounded upon party deducting, who affidavit. The affidavit must verify that the discovery is necessary for disposing b) Should forward to the recipient of the interest a certificate of deduction fairly of the matter or for saving costs and must set out the reasons why each in Form 185 or its equivalent. category of documents is required. The court may refuse or adjourn the appli- cation if voluntary discovery has not been requested prior to the application Payments of short (that is, non-yearly) interest should in all instances – irre- for an order. Requests for voluntary discovery must specify the precise cate- spective of the identities of the payer and of the recipient – be paid without gories of documents sought and must set out the reasons why each category deduction of tax. of documents is required. The new rule is operative from 3 August 1999. This note has been approved by the Revenue Commissioners. Litigation and Arbitration Committee Conveyancing Committee

PROBATE, ADMINISTRATION AND TAXATION COMMITTEE A guide to In recognition of the United Nations International Year of Older Persons, the Probate, Administration and Taxation Committee invites members to attend a seminar on Irish planning MENTAL HEALTH AND legislation INCAPACITY Saturday, 4 December 1999 3rd revised edition by President’s Hall, Law Society of Ireland, Kevin I Nowlan Blackhall Place, Dublin 7 9.30am – 1pm Admission is free. Places are limited and will be allocated on a first-come, first-served basis. An annotated ‘LEGAL ISSUES’ ‘MEDICAL ASPECTS John Costello OF INCAPACITY’ compendium of the Chairman, Probate, Dr Colm Cooney Administration and St Vincent’s Hospital Planning Acts and Taxation Committee Eugene F Collins & Co ‘PRACTICE PROBLEMS WITH ALZHEIMER PATIENTS’ Regulations, ‘LAW REFORM’ Barbara Scully Patricia Rickard-Clarke Alzheimer Society 1963 to 1998 Solicitor, Probate, Administration and ‘WARDS OF COURT MATTERS’ Committee Nuala McLoughlin McCann FitzGerald Registrar, Wards of Court Office

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34 LAW SOCIETY GAZETTE NOVEMBER 1999 BRIEFINGBRIEFING

Joint carriage of sale The Conveyancing Committee investigates title and prepares: client to sign. Contracts are The engrossed deed receives many queries about the (If one of the solicitors involved then sent to the second solici- 1.10On receipt, the first solicitor conduct of a sale of property where acted in the purchase of the tor for signature. sends the engrossed purchase there is joint carriage of sale. The property, then it is recommend- Where the property is a family deed and all other original committee has considered a prac- ed that that solicitor be the home and title is in the name documentation to the second tice note published by Dublin first solicitor as defined) of one spouse only, the solicitor solicitor for signing. On Solicitors’ Bar Association in March 1.2.1 Letter of engagement for the non-owning spouse return, the first solicitor has 1996 and the committee has decid- (section 68) arranges for that spouse to his client sign and arranges a ed to adopt this practice note and 1.2.2 Draft contract execute his or her consent prior completion. recommends same to the profes- 1.2.3 Draft replies to to the execution of the con- sion. While the practice note is requisitions tract by the other spouse. Completion drafted in the context of a sale aris- 1.2.4 Draft family law 1.11Prior to completion, the first ing out of family law matters, the declaration 1.6 The second solicitor returns the solicitor prepares a draft committee has decided that the 1.2.5 Draft ST21 signed contracts to the first financial statement for principles involved should be 1.2.6 Draft tax clearance solicitor, having kept a copy. approval by the second solici- adopted in all cases where there is forms. tor. Following completion, the joint carriage of sale. This would be Undertaking mortgage, if any, is redeemed particularly important where the These are then submitted to 1.7 The first solicitor asks the mort- by the first solicitor and the parties are co-owners of the prop- the solicitor for the other party gagee for details of the proceeds of the sale divided as erty in question. (‘the second solicitor’) for redemption figures and sends a agreed. The second solicitor The committee wishes to thank approval with the results of the copy to the second solicitor then discharges the first solici- the conveyancing and family law searches, including a planning with an undertaking to send tor from all undertakings inso- sub-committees of the DSBA for search for comment. The solici- the first solicitor’s client far as the second client is con- their permission to re-produce the tors should pay particular account cheque payable to the cerned. practice note as set out below: attention to the contents to be second solicitor for the amount ‘The precise terms of the joint included in the sale, the closing due to the second solicitor’s If it is agreed that one solicitor may carriage should be agreed in writ- date and the division of the client immediately after com- have sole carriage of sale, the ing in advance, or the procedures remaining contents between pletion. The first solicitor committees recommend as follows: laid down by this protocol be fol- the husband and wife. should obtain his or her client’s 2.1 That the spouses both sign a lowed. The committees recommend irrevocable written authority letter confirming which solici- the following procedure: The second solicitor’s to give this undertaking. tor should act. Instructions The second solicitor furnishes 2.2 The solicitor acting has the Letter of authority 1.3 The second solicitor takes his or her client’s RSI number replies to the factual requisi- 1.1 Both parties sign a letter of instructions and approves the and income tax district to the tions confirmed by the other authority for one of the solici- draft documents before return- first solicitor at the same time. solicitor. tors to take up the deeds on ing them. A letter of engage- 2.3 That a similar undertaking be accountable receipt. The solici- ment issues. Completion of exchange of given concerning the sum to tors for the spouses should Note: Unless there are substan- contract be paid to the other spouse’s specify the proportions in tive issues of title or contract 1.8 The first solicitor completes the solicitor. which the proceeds of sale are involved, the second solicitor exchange of contract with the to be distributed between the should refrain from comment- purchaser’s solicitors and either Costs parties after payment of costs, ing on the conduct of the forwards the CORT requisitions The scale fee does not apply to a outlay and encumbrances, transaction. on title with replies to the pur- joint carriage. The engagement including the redemption of chaser’s solicitors or replies to letters should state the fees to be any mortgage and payment of Issue of contract the purchaser’s solicitors’ requi- charged, to be agreed between local authority and similar 1.4 When the draft documentation sitions on title in accordance the solicitors before the section 68 charges. The committees rec- is returned, the first solicitor with the draft replies already letters issue. The committees note ommend the usual searches sends the engrossments with approved by the second solici- that it is a regular practice that a affecting the property be car- the copy title to the purchaser’s tor. The first solicitor should not fee of 1.5% of the sale proceeds be ried out against the husband solicitors, informing them that give a reply to a requisition on charged, plus VAT and outlays; and the wife at this stage to the second solicitor has joint title without the prior approval that two-thirds of the fee should ensure that no unforeseen carriage of sale. of the second solicitor. be paid to the first solicitor and encumbrances appear on clos- one third to the second solicitor. ing. Exchange of contract Approved draft deed The clients should be informed 1.5 On receipt of the signed con- 1.9 The first solicitor approves the that the fee quoted in the section The first solicitor’s instructions tracts and deposit from the draft deed. If in doubt, it 68 letter is based on the presump- 1.2 The authorised solicitor (the purchaser’s solicitors, the first should be referred to the sec- tion that the sale proceeds without ‘first solicitor’) takes up the solicitor puts the deposit on ond solicitor for further undue complications.’ title deeds, takes instructions, interest and asks his or her approval. Conveyancing Committee

NOVEMBER 1999 LAW SOCIETY GAZETTE 35 BRIEFING

Personal injury judgments

Public liability – unsafe, should have prevented to the ground. The pin that should stone and a dangerous rock for rock-climbing on a cliff access to the area. have halted his fall gave way and climbing. He stated that Mr Barry face opposite a railway It was further alleged by Mr came out of the rock so that he should have continued the climb line – whether rock- Barry that a Mr Aidan Barrett, a had nothing to protect him against to the top and then abseiled down. climber lawfully on gate keeper at a level crossing in falling to the ground. He suffered The climbing down was always railway property or a the area, was negligent in request- severe injuries. unsafe and there was always the trespasser – whether ing Mr Barry to come down from possibility of falling. The judge Iarnród Éireann liable the cliff and in refusing to allow The judgment noted that Mr Valvey stated in in negligence or breach Mr Barry to continue to the top of Smith J, having outlined the facts cross-examination that Mr Barry of duty the cliff and descend by rope, a above, stated that rock-climbing should not have climbed in the process known as abseiling. is by its nature a hazardous sport. area where a person might be Case In evidence, Mr Barry stated It depends a lot on the climate and stopped, as this might interfere Stephen Barry v Iarnród Éireann, that he had been engaged in rock- a person’s skill and judgement as with a person’s concentration. Mr High Court, Cork, before Mr climbing since he was 12 years of to where and when to climb. The Valvey accepted that the gate Justice Smith, judgment of 20 age. He began climbing when he judge stated that one must be keeper would not be expected to January 1999. was with the boy scouts. He did a fully equipped with the necessary know anything about rock climb- considerable amount of climbing, equipment, including ropes, har- ing. He also gave evidence that The facts mostly at weekends, up to 40 nesses, pins, hammers and shoes before Mr Barry descended it Stephen Barry claimed that on 8 weekends in a year, until he met or boots. As one climbs upwards, would have been safer to put July 1993 he was lawfully on the with this accident when he was pins must be inserted securely another pin in the rock. property of Iarnród Éireann at just 21 years of age. into the rock surface every six to The last witness for Mr Barry Lower Glanmire Road in the city On the day of the accident, Mr seven feet, and the judge noted was John Lennon, consulting of Cork. He claimed he was in the Barry was the first to climb the there was always present the dan- engineer, who stated that greater process of climbing a cliff face rock face. He had two friends ger of falling to the ground. The precaution should have been opposite a railway line, and that with him, Andrew Daly and Paul possibility is greatly reduced if all taken to prevent people gaining an employee of Iarnród Éireann Daly. They were at the bottom of the necessary precautions are access to the railway track and ordered him to desist and to the rock face. Mr Barry put the taken. rock face, preferably by putting descend from the cliff face. In first pin in the rock ten to 12 feet The judge noted that inside the up a wall and fencing, in the event attempting to return to the up and the second pin was insert- railway gate, near to the scene of of Iarnród Éireann knowing at the ground, he fell and suffered ed a further six feet up. As he the accident and the cliff face, was time that rock-climbing was tak- severe personal injuries, loss and could find no secure place for the a sign forbidding trespass on the ing place. damage. Mr Barry sued Iarnród third pin, he continued to climb railway line. But Mr Barry said he The judge noted there was no Éireann. for a further distance of 30 feet. took no notice of the contents of doubt that what Mr Barry did was Mr Barry claimed that the When Mr Barry was about 45 this sign. However, the judge stat- highly dangerous when he accident was caused by the negli- feet up on the rock face, he stated ed that Mr Barry knew that he was climbed the rock face against the gence and breach of duty of in evidence that he heard a man, trespassing on the railway line and railway line to a height of 45 feet Iarnród Éireann, their servants or whom he now knew was Mr should not be there. Andrew Daly, at a time when the nearest pin was agents. Iarnród Éireann denied Barrett, the gate keeper, who a friend of Mr Barry’s, who was 30 feet below him. Once he the allegations of negligence and shouted at him to come down. Mr with him on the date of the acci- attempted to descend, everything, pleaded contributory negligence Barry claims he asked the gate dent, gave evidence and accepted apparently, gave way and he came on the part of Mr Barry. keeper could he go further up to in cross-examination that he knew crashing down to the railway line. It was claimed that Iarnród tie the rope and then abseil down. they were trespassing on Iarnród Smith J noted that it had been Éireann was negligent in allow- He stated in evidence that the gate Éireann’s property. He agreed argued that Iarnród Éireann was ing Mr Barry to use the cliff for keeper said that he was to come with counsel for Iarnród Éireann negligent in the sense that the rail- rock-climbing when Iarnród Éire- down immediately. At that stage, that as adults they were going to way company knew or should ann knew or ought to have known Mr Barry was safely standing on the rock face to climb at their own have known of rock-climbing that rock-climbing was going on the ledge of a rock. Mr Barry stat- risk. activity at the scene of the acci- in the area. It was also claimed ed he then started to descend as Pat Valvey, an experienced dent and that the place was unsafe that Iarnród Éireann should have directed and his foot slipped, the mountain- and cliff-climber, stat- for climbing. It was further argued checked to see that the rock cliff rock gave way, he was unable to ed in evidence that the rock at the that the gate keeper was negligent was safe for rock-climbing and, if hold on with his hands and he fell scene of the accident was sand- in ordering Mr Barry to come

36 LAW SOCIETY GAZETTE NOVEMBER 1999 BRIEFINGBRIEFING

down and threatening to call the that he was trespassing and that if were entitled to go on to the line. held that negligence had not been gardaí if he did not do so and he failed to come down he would From his knowledge of the gate proved against Iarnród Éireann, refusing to allow him to continue call the gardaí. Mr Barrett gave keeper, Mr Sheehan stated that the and the blame for this most unfor- up the cliff face and then abseil evidence that he did not hear Mr gate keeper was an observant man tunate accident rested with Mr down. Barry say anything to the effect and not likely to behave in a Barry. At the end of Mr Barry’s case, that he wanted to go to the top so threatening manner. Counsel for Iarnród Éireann Iarnród Éireann sought a direction that he could abseil down. The The judge stated that the issue sought his client’s costs but stated but this was refused by the judge gate keeper then stated that he had he had to decide on the entirety of that he did not believe that the and so Iarnród Éireann had to pro- gone to another gate that had been the evidence was whether or not order would be pursued. ceed to give evidence and a num- opened, and before he had there was any negligence on the Counsel for Mr Barry noted ber of witnesses were called. returned, the accident had hap- part of Iarnród Éireann, their ser- that, having regard to the fact that The gate keeper, Mr Barrett, pened. vants or agents. the judge had discretion in rela- stated that his job was to ensure In cross-examination, the gate Smith J said that he was satis- tion to costs, in the tragic circum- that the gates were open for trains keeper accepted that if rock- fied with the evidence as to the stances he felt that the judge at all times as they passed through climbing had been occurring on probability that Iarnród Éireann should not make an order as to and to watch out for trespassers on Iarnród Éireann’s property, then did not know or were not aware of costs. Counsel for Iarnród Éireann the railway line. he should have known about it. He any rock-climbing on the railway replied that although he was On the morning of the accident, rejected any suggestion that he track, the area where Mr Barry instructed to ask for costs, his per- at about 11am, the gate keeper saw threatened or pressurised Mr and his friends were trespassing sonal belief was that they would three figures up the line crossing Barry into coming down. It never when the accident occurred. Smith not be pursued. The judge gave the railway line. He reported this occurred to the gate keeper that it J referred to the allegation of neg- judgment for Iarnród Éireann, dis- fact to his superiors as he thought might be safer in the circum- ligence relating to the gate keeper missing Mr Barry’s claim and they were ‘winos’ and that drivers stances to go to the top and then in the manner in which he request- making an order for costs against should be warned of their pres- slide down. ed Mr Barry to descend from the Mr Barry and in favour of Iarnród ence. The three people were, in Evidence was also given by dri- rock face. The judge noted that the Éireann. fact, Mr Barry and his two friends, vers of various trains on the Cobh gate keeper was obliged to ensure the Daly brothers. railway line and other officials of that there was no trespassing on Mr O’Driscoll SC, Mr M Gleeson The judge noted that sometime Iarnród Éireann to the effect that Iarnród Éireann’s railway track. SC and Mr Lucey BL, instructed after 11.45am the gate keeper saw none of them had been aware of He did no more than was reason- by Martin A Harvey & Co, solici- Mr Barry who was up on the cliff any rock-climbing at the scene of able in the circumstances. He tors, represented Mr Barry. with another man, presumably one the accident. In evidence for requested Mr Barry to come down Mr D McCullough SC and Mr D of the Daly brothers, holding a Iarnród Éireann, Timothy to cease trespassing and said that McCarthy BL, instructed by rope at the bottom. Mr Barrett Sheehan, who had been in the sta- if he failed to do so he would Philip William Bass & Co, solici- walked towards those men. He tion in 1993 and knew about most report the matter to the gardaí. The tors, represented Iarnród Éire- asked them to come down, told matters that were going on at the judge noted that he behaved as he ann. G them they were trespassing and if time, stated he was not aware that would expect any reasonable they did not come down he would any trespassing or rock-climbing employee of Iarnród Éireann’s to This summary was compiled by call the gardaí. Mr Barry had stat- in the area had been taking place. behave in similar circumstances in Dr Eamonn G Hall, solicitor, ed to the gate keeper that he want- If he had been so aware, he would the event of anyone trespassing on from Reports of personal injuries ed to proceed further up but the not tolerate such climbing or tres- Iarnród Éireann’s property. In from Doyle Court Reporters, 2 gate keeper again reminded him passing as only authorised persons those circumstances, the judge Arran Quay, Dublin 7.

LEGISLATION UPDATE: 14 SEPTEMBER – 18 SEPTEMBER SELECTED STATUTORY Contents note: Amend order 9 of cedures to be followed to obtain evidence) of the Criminal Justice INSTRUMENTS the District Court rules 1997 (SI discovery, the sanction for failure to Act, 1999 Circuit Court (Fees) Order 1999 93/1997) to allow a practising solici- comply with an order for discovery Number: SI 292/1999 tor to sign an affidavit for use in the and the costs which the court may Copies of the above statutory Contents note: Provides for District Court award in both circumstances instruments are held in the Law increases in fees chargeable in Commencement date: 27/9/1999 Commencement date: 27/9/1999 Society Library. They may be pur- Circuit Court offices and provides chased from Government for the exemption from fees of fam- District Court (Discovery of Criminal Justice Act, 1999 Publications, in person at the Sales ily law proceedings. Revokes the Documents) Rules 1998 (Parts IV and V) Office, Sun Alliance House, Circuit Court (Fees) Order 1989 (SI Number: SI 285/1999 (Commencement) Order 1999 Molesworth Street, Dublin 2, or by 342/1989) Contents note: Add a new order Number: SI 302/1999 post or fax from Government Commencement date: 4/10/1999 46A (discovery of documents) to Contents note: Appoints Publications Postal Trade Section, 4- order 46 of the District Court rules 1/10/1999 as the commencement 5 Harcourt Road, Dublin 2, tel: 01 District Court (Affidavits) 1997 (SI 93/1997). Regulate and date for parts IV (amendments 6613111, fax: 01 4752760. Rules 1998 expand the procedure of discovery relating to confiscation orders) and Prepared by the Number: SI 286/1999 in the District Court. Set out the pro- part V (guilty pleas and certificate Law Society Library

NOVEMBER 1999 LAW SOCIETY GAZETTE 37 BRIEFING

ILT digest of legislation and superior court decisions Compiled by David P Boyle

and is undemocratic and con- equality to each side of the ADMINISTRATIVE AGRICULTURE stitutionally unfair. argument to which there could only have been a yes or no Pensions for persons New beef assurance The applicant sought to quash a answer. involved in ‘Sheedy’ scheme? decision of the Broadcasting affair A new Bill proposes the estab- Complaints Commission on the Coughlan v The Broadcasting A Bill has been presented lishment of a national beef assur- ground that it misapplied the rel- Complaints Commission (Carney allowing for the payment of the ance scheme, the purpose of evant law in holding that there J), 24 April 1998 following pensions by the State: which is to: was no breach by RTÉ of the Hugh O’Flaherty – £40,000; ● Develop common standards provisions of the Broadcasting Cyril Kelly – £30,000; Michael for production, processing and Acts relating to alleged imbal- COMPANY Quinlan – £15,000. trade in Irish cattle and beef ances in the divorce referendum for human consumption and coverage. In granting the appli- Further changes the manufacture and trade of cation, it was held that: Companies (Amendment) proposed to Údarás na feeding stuffs ● RTÉ, as the national broad- Act, 1999 (No 8 of 1999) Gaeltachta ● Apply these standards through casting service, was subject to This Act (referred to before A Bill has been presented which a process of registration, the Constitution and also to enactment as the Companies seeks to increase the number of inspection and approval, and the Broadcasting Act, 1960, (Amendment) (No 3) Bill, 1999) board members of Údarás na ● Enhance the animal identifica- which required that it uphold was signed by the President on Gaeltachta from the present 13 tion and traceability system for the democratic values 19 May 1999. The Act came into to 20, with 17 of these members Irish cattle. enshrined in the Constitution effect on 24 May 1999 by virtue being elected by residents of ● A package of uncontested or of the Companies (Amendment) Gaeltacht areas. A new con- National Beef Assurance Scheme partisan broadcasts by the Act, 1999 (Commencement) stituency structure would also Bill, 1999 national broadcasting service Order 1999 (SI No 144 of be put in place with each of the weighted on one side of the 1999). seven counties having a argument was an interference Gaeltacht area having a con- with the referendum process COMMUNICATIONS stituency. The Bill also: and was undemocratic and a COMPETITION ● Provides for the updating of constitutionally unfair proce- various aspects of the 1979 Digital broadcasting dure legislation on the way ● The imbalance of time allo- Power to summons ● Places the regional commit- A Bill has been presented which cated to each side of the granted tees on a statutory basis seeks to facilitate the introduction divorce argument led to the New regulations prescribe a pro- ● Provides for the establish- of digital terrestrial television. conclusion that the scales cedure to allow the Competition ment of an evaluation com- Broadcasting Bill, 1999 were not held equally and that Authority to summons witnesses mittee, and RTÉ’s weight was thrown under the Competition Act, 1991 ● Sets out new procedures in RTÉ must maintain behind one side of the argu- and the Competition (Amend- relation to the fixing of limits balance ment ment) Act, 1996. The regulations for financial assistance from ● Partisan broadcasts by the ● RTÉ’s approach resulted in came into effect on 27 May Údarás na Gaeltachta. national broadcasting service inequality which amounted to 1999. weighted on one side of an unconstitutional unfairness. Competition Authority (Witness Údarás na Gaeltachta argument is an interference Such unfairness would not Summons) Regulations 1999 (SI (Amendment) (No 3) Bill, 1999 with the referendum process have arisen had they afforded No 137 of 1999)

38 LAW SOCIETY GAZETTE NOVEMBER 1999 BRIEFINGBRIEFING

● It is settled law that article 40.1 No right to Protection of Patients and CONSTITUTIONAL of the Constitution does not Irish-speaking jury Doctors in Training Bill, 1999 require that all citizens be treat- The applicant was charged with Extension under ed identically certain criminal offences and was Injunction granted article 29.7 ● The facts proved in evidence to be tried before a judge and jury restraining enquiry into A Bill has been presented seeking before the High Court judge in the Circuit Court. The applicant employee’s conduct to provide a period of two years showed clearly how women in was brought up through the medi- The plaintiff was employed by the from the date of coming into force employment at the material um of Irish and sought to conduct defendant as secretary to the man- of art 29.7.5° for the purposes of times were at a financial disad- his case through Irish. He brought ager of the defendant’s studs in that provision of the Constitution. vantage in comparison with an application seeking, among this country. She received notice The provision in question reads: men other things, to prohibit the trial by letter from the personnel man- ‘5º The State may ratify the Treaty ● The plaintiff’s claim was pre- continuing unless the jury was ager that he was holding an of Amsterdam amending the Treaty sented and contested on the nar- composed of members who could inquiry into her improper use of on European Union, the Treaties row grounds that there was no understand Irish without the need the property, and she was required Establishing the European economic justification for dif- of a translator. He submitted that to attend. This meeting was post- Communities and certain related ferentiating between deserted his constitutional rights would be poned on a number of occasions. Acts signed at Amsterdam on the husbands and deserted wives breached if a jury composed of The plaintiff was attending a doc- second day of October 1997’. ● It was only necessary to con- members fluent in the Irish lan- tor during this time. She claimed clude that there were ample guage was not selected. In refus- that she was not afforded basic Less favourable grounds for the Oireachtas to ing the appeal, it was held that: fairness of procedures and that the treatment for conclude that deserted wives ● There were difficulties personnel manager was proceed- deserted husband not were, in general, likely to have involved in the use of transla- ing with ‘indecent haste’. She was unconstitutional greater needs than deserted hus- tion but as yet there was no bet- of the view that she was placed in ● It is settled law that article 40.1 bands so as to justify legislation ter solution in Ireland a position where she would face of the Constitution does not providing for social welfare, ● If every member of the jury serious allegations without being require that all citizens be treat- whether in the form of benefits had to be able to understand adequately prepared. She also ed identically. or grants or a combination of legal matters in Irish without alleged that the personnel manag- both, to meet such needs. the aid of a translator, the er was not an appropriate person In 1984 the plaintiff and his two majority of the people of to conduct the inquiry, as there young children were deserted by Lowth v The Minister for Social Ireland would be excluded. was a real risk of bias on his part. the plaintiff’s wife, which resulted Welfare (Supreme Court), 14 July This would be a breach of arti- The plaintiff sought an order in the plaintiff having to give up 1998 cle 38.5 of the Constitution. restraining the inquiry, and an his job in order to look after his order that the defendant would children. In these proceedings, the Mac Cárthaigh v Ireland pay her sick pay for absence on plaintiff claimed that the Social (Supreme Court), 15 July 1998 medical grounds. There was no CRIMINAL Welfare (Consolidation) Act, 1981 written contract of employment made provision for deserted wives between the parties and it was not but not for deserted husbands in Criminal Justice (Location an express term that she was enti- EDUCATION similar situations during the same of Victims’ Remains) Act, tled to be paid her salary while period, and was, accordingly, 1999 (No 9 of 1999) absent from work due to illness or unconstitutional. The defendant This Act was signed by the New institute of incapacity. In granting the orders argued that the distinction in treat- President on 26 May 1999 and technology for Dublin sought, it was held that: ment between the two categories came into operation with effect A Bill has been presented which ● There were fair issues to be was permissible and submitted, from the same day by virtue of the seeks to establish the Institute of tried as to whether the inquiry among other things, that the ratio- Criminal Justice (Location of Technology in Blanchardstown, was merely an investigation or nale behind the deserted wives Victims’ Remains) Act, 1999 Dublin, on a statutory basis. was a disciplinary process, and scheme was that married women (Commencement) Order 1999 (SI Regional Technical Colleges whether the plaintiff could be were more in need of income sup- No 155 of 1999). (Amendment) Bill, 1999 assured of a hearing in accor- port than men. In dismissing the dance with natural and consti- appeal, it was held that: Criminal Justice Act, 1999 tutional justice and, in particu- ● The fact that wives deserted by (No 10 of 1999) lar the principle of nemo iudex EMPLOYMENT their spouses between 1979 and This Act (referred to before enact- in causa sua 1990 were more favourably ment as the Criminal Justice (No ● Damages would not be an ade- treated in respect of social wel- 2) Bill, 1997) was signed by the Reduction in doctors’ quate remedy for the plaintiff if fare payments than husbands President on 26 May 1999. Parts I hours? she were subjected to an similarly deserted during the and II of the Act were brought A private member’s Bill has been inquiry which was later found same period is beyond dispute into operation with effect from 29 introduced which seeks to end the to have contravened natural ● It has long been recognised that May 1999 by the Criminal Justice complete exemption from the and constitutional justice. The the burden of establishing the Act, 1999 (Parts I and II) Working Time Act, 1997 currently allegations made by the defen- unconstitutionality of a law is a (Commencement) Order 1999 (SI enjoyed by junior hospital doctors dant against the plaintiff were formidable one No 154 of 1999). and doctors in training. very serious and her dismissal

NOVEMBER 1999 LAW SOCIETY GAZETTE 39 BRIEFING

from employment was one that regulation. Farmers who had ings. In dismissing the appeal and Campbell v Minister for possible outcome from the withdrawn from milk production allowing the cross-appeal, it was Agriculture Food and Forestry inquiry in 1983 were not entitled to quo- held that: (Supreme Court), 8 December ● The balance of convenience tas under Council regulations ● It was clear that in general, 1998 clearly favoured the granting 856/84 and 857/84, the Milk there is no obligation on of the injunction to restrain the Quota Regulations. Mulder One Member States to promulgate inquiry until the issues Regulations were then introduced Community law. The applica- HUMAN RIGHTS between the parties in relation entitling Irish farmers who had tion of Community law in to the conduct of the inquiry been excluded under the Milk Member States cannot be were determined at the trial of Quota Regulations to a ‘special accelerated or postponed by Commission to be set up? the action reference quantity’. The Mulder the decision of national author- A Bill has been presented which ● The plaintiff was absent from Two Regulations were introduced ities. Whatever the hardship, it aims to establish an independent work on certified medical in order to remedy certain defi- was clear that European legis- body to be known as the Human grounds and had not been paid ciencies in the Mulder One lation took effect from the date Rights Commission. The estab- her salary. She had established Regulations. The respondent of its publication in the lishment of such a body was there was a fair issue to be tried publicised the making of the Official journal of the agreed as part of the multi-party that it was an implied term of Mulder Two Regulations in news- European Communities negotiations on Northern Ireland her contract that she be paid papers, as well as journals most ● The Milk Quota Regulations and the proposed body is to have her salary less disability bene- closely associated with the farm- did not impose a duty upon the a mandate and remit equivalent to fit received for a reasonable ing industry, and also communi- competent authority to give that in Northern Ireland. period while absent from work cated directly with the co-opera- publicity to the making of any Human Rights Commission Bill, on medical grounds. The tives and creameries who effec- regulations by the Council 1999 defendant was not entitled to tively operated the milk quota ● There was no basis for an rely on the Employment scheme. The applicant contended obligation to notify individual Clampdown on Regulation Order made by the that there was a duty on the com- citizens, however obvious their trafficking of Labour Court on 10 July 1988 petent authority of every Member interests or however desirable immigrants? in relation to the plaintiff’s State to lay down procedures that course might appear. A Bill has been presented which employment. Damages would which were adequate and appro- Indeed, a decision to give will, if passed: not be an adequate remedy for priate to give notice of the mak- notice individually to persons ● Define ‘illegal immigrant’ as a the plaintiff. While her liquidi- ing of the Mulder Two affected by regulations would non-national who enters the ty was in issue, she had suffi- Regulations and the right of the create not merely a precedent, state or has entered the state cient assets to support the applicant to apply for quotas but perhaps an expectation unlawfully undertaking as to damages. thereunder. The applicant argued which the competent authority ● Create an offence of trafficking that the Mulder Two Regulations could not ignore in other and in illegal immigrants, having a Charlton v HH The Aga Khan’s were incomplete and that nation- less meritorious cases maximum penalty of an unlim- Studs Société Civil (Laffoy J), 22 al procedures had to be adopted ● Where in particular cases the ited fine and/or ten years’ December 1998 before the Community regula- court held that certain regula- imprisonment tions could be truly effective. The tions which prohibited the ● Give extraterritorial effect to respondent contended that the granting of a milk quota were the offence, and relevant regulations had direct invalid, or were administra- ● Provide for search and seizure. EUROPEAN effect and that the Minister was tively interpreted as having not under any obligation to adopt that effect, the offending regu- Illegal Immigrants (Trafficking) No obligation to any measure by way of legisla- lation could not be ignored by Bill, 1999 promulgate EU law tion, statutory instrument or oth- national competent authorities ● In general, there is no obliga- erwise to give effect thereto. The until remedial regulations were tion on Member States to pro- trial judge in the High Court con- adopted INTERNATIONAL mulgate Community law, and cluded there was no obligation on ● The applicant, in the present RELATIONS its application in Member the Minister to give notice to the case, would have had no States can not be accelerated or individual appellants, or any redress unless and until reme- postponed by the decision of other parties whose claims for a dial legislation was adopted Changes to British-Irish national authorities. quota under the Mulder One ● The advertisement published agreement? Regulations had been rejected. by the respondent, taken in An Act has been signed by the The issue in this case was However, the trial judge held that conjunction with his commu- President incorporating the whether the applicants, a group of the seventh-named plaintiff was nications with the creameries exchange of letters between the farmers, were entitled to be noti- entitled to pursue a claim to dam- and co-operatives, fully dis- government of the United fied individually by the respon- ages as the notice published by charged any obligation which Kingdom and the Irish dent of the adoption of Council the respondent in the national he had assumed, there was no Government on 18 June 1999. Regulation (EEC) 1639/91, press was misleading and had inaccuracy therein and on a The text of the letters appears as a Mulder Two Regulations, and of misled him. The applicant fair reading the persons to schedule to the Act. their right to apply for milk quo- appealed and the respondent whom it was addressed should British-Irish Agreement (Amend- tas, Mulder Two Quotas, under cross-appealed the court’s find- not have been misled. ment) Act, 1999 (No 16 of 1999)

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that they were included in the Criminal Justice (Legal Aid) The applicants were residents of LEGAL COSTS brief fee. In varying the award of (Tax Clearance Certificate) County Galway and brought an the taxing master, it was held that: Regulations 1999 (SI No 135 of application pursuant to s27 of the District Court scale ● For the court to alter the deci- 1999) Local Government (Planning and altered sion of the taxing master, it Development) Act, 1976 in With effect from 21 May 1999, must find that his decision was respect of a dump in County the District Court rules are unjust Galway. The respondent was sued LOCAL GOVERNMENT amended to include the term ● The court could not approach as the developer of the lands situ- ‘actual and necessary outlay’ in the issue on the basis of trying ated in County Galway. It had order 51. This sum, as set out in to assess what costs it would New regional authorities been granted planning permission the schedule of outlays attached have awarded had it been the established by An Bord Pleanála in respect of to the rules, is to include postage, taxing master An order having effect from 21 the dump on 9 April 1997, subject photocopying, registered post, fax ● The taxing master erred in July 1999 establishes the Border, to a number of very stringent con- and sundries. principle as the affidavit was a Midland and Western Regional ditions. The applicants submitted District Court (Costs) Rules 1999 vital part of their defence of the Assembly and the Southern and that there had been and continued (SI No 126 of 1999) second motion, and 75% of the Eastern regional assembly under to be many breaches of the condi- costs claimed in respect of the the Local Government Act, 1991. tions upon which the permission Importance of motion affidavit should be allowed Local Government Act, 1991 was granted, including the breach justified two senior ● While the case of In Re South (Regional Authorities) (Establish- of condition no 6 concerning counsel Meath Election Petition was ment) Order 1999 (SI No 226 of rehabilitation measures which ● The motion in this case was of correct as a general statement of 1999) had to be complied with by 9 such importance as to consti- practice, that only two counsel April 1998. The applicants sub- tute exceptional circumstances, would be allowed on a motion mitted that the respondent contin- and the taxing master was save in very special circum- ued to use the dump after that date NATURAL RESOURCES wrong to disallow the costs of stances, there were very special contrary to the conditions of plan- one of the senior counsel. circumstances in this case ning permission. In ordering the ● The motion was of such impor- Minerals Development closure of the dump as of one The first-named defendant and tance as to constitute excep- Act, 1999 (No 21 of 1999) month from that date, the court the second-named defendant tional circumstances, and the This Act came into operation on 7 held that: sought a review of a taxation of taxing master was wrong to July 1999. It has the effect of ● It was accepted that many of costs in respect of a motion. The disallow one senior counsel deeming minerals or exclusive the planning requirements plaintiff’s action against the ● If only one senior counsel had mining rights vested in the Land which were to have been com- defendants was dismissed by the been briefed, then the agreed Commission to be and always plied with by the respondent by High Court, and the plaintiff fee might have been appropri- have been the property of the April 1998 were not so com- appealed to the Supreme Court. ate, but as two counsel were State and vested in the State. plied with and still were not. Two motions then came before briefed, the fee should be The respondent had accepted the Supreme Court, one by the reduced that it had been in breach of defendants to dismiss the appeal ● The taxing master, in respect of condition no 6 and had accept- PLANNING AND for want of prosecution, the other his disallowance of fees for ed that, insofar as they had not DEVELOPMENT being the plaintiff’s motion to written submissions, erred in complied with it, they had been adduce additional evidence in the that he applied what was a cor- involved in the commission of Supreme Court. The second rect ruling in respect of a hear- Local Government a criminal offence motion was dismissed, with the ing at first instance to the cir- (Planning and ● The respondent was in serious costs of it being awarded to the cumstances of an appeal or Development) Bill, 1998 breach of the planning laws. It defendants. The costs of that motion to the Supreme Court. This Bill has been amended in the was the recipient of a planning motion were taxed, and it is from Select Committee on Environ- permission and it quite fla- that taxation that the defendants Smyth and Genport Limited v ment and Local Government and grantly had not complied with appealed. The defendants argued Tunney (McCracken J), 12 June passed by Dáil Éireann. the terms of that permission that an affidavit filed in support of 1998 ● If the respondent were dissatis- the first motion related almost Order made against fied with the order made by An exclusively to the second, and the landfill site Bord Pleanála, it had rights and costs of it should be awarded or ● The circumstances in which remedies available to it, partic- LEGAL PROFESSION apportioned accordingly. The the court could withhold an ularly if, as it alleged, the deci- defendants also disputed the fact order included genuine mis- sion of An Bord Pleanála was that the taxing master only Tax clearance required to take cases, acquiescence for a arbitrary allowed one senior counsel in join legal aid long period of time on the part ● When it became clear that the respect of the motion, and the fact With effect from 1 August 1999, of the applicants, where the respondent was not going to be that counsel’s fees were reduced. tax clearance procedures will infraction was a mere triviali- able to comply with condition The taxing master also disallowed apply to solicitors and barristers ty or technicality, or if gross no 6 of the planning permis- all fees in respect of written sub- who operate under the criminal or disproportionate hardship sion, it had no lawful entitle- missions to the court on the basis legal aid scheme. occurred. ment to continue to allow the

NOVEMBER 1999 LAW SOCIETY GAZETTE 41 BRIEFING

site to be used as a landfill site include the provisions of the between the plaintiff and L, all judge and should not be dealt and it was open to apply for a Children Act, 1997: proceedings against L were with prior to the trial, by way fresh permission ● Enabling relatives of a child’s closed and all that was required of certiorari or otherwise. ● Although the respondent had parents or any person acting to implement the settlement was submitted that an order would in loco parentis to apply to the to grant the plaintiff the exten- The applicant issued proceedings give rise to very considerable court for access to the child sion of time. In allowing the challenging the validity of a difficulties in complying with ● Taking into account the provi- appeal, it was held that: search warrant in a case that had its statutory obligations, the sions of the Guardianship of ● Appeals should not be made not yet come to trial. The appli- court could not – in order to Children (Statutory Declara- against orders or rulings cant now appealed the decision of enable the respondent to com- tion) Regulations 1998 which made by a trial judge during the High Court refusing to grant ply with its statutory obliga- prescribe a form of declara- the course of an action being him the relief sought. In dismiss- tions under one piece of legis- tion to allow the father of a tried by him or her ing the appeal, it was held that: lation – permit it to breach non-marital child to be ● The plaintiff and L were the ● Any challenge that might be obligations imposed upon it by guardian of the child with the only parties to the proceed- made to the validity of the another piece of legislation consent of the mother. ings who had any possible search warrant would be more ● The circumstances in which proprietorial interest in the properly dealt with by the trial the court could withhold an District Court (Custody and monies lodged in court. The judge order included genuine mis- Guardianship of Children) Rules other defendants had not ● Similarly, the revelation to the take cases, acquiescence for a 1999 (SI No 125 of 1999) identified any circumstances applicant of the name of the long period of time on the part in which they might obtain informant who had led to the of the applicants, where the Enforcement procedures any interest in those monies search warrant being issued infraction was a mere triviality strengthened in District ● The proceedings in the case was a matter totally within the or technicality or if gross or Court so far as they related to the jurisdiction of the trial judge to disproportionate hardship A new procedure of attachment claim by the plaintiff against rule on occurred. and committal for contempt of a L had been finally deter- ● The court had no jurisdiction to District Court Order has been mined by virtue of the agree- order the Oireachtas or the Curley v Mayor, Aldermen and introduced with effect from 21 ment between them and with- Attorney General to enact any Burgesses of the City of Galway May 1999. out derogating in any way legislation in any circum- (Kelly J), 11 December 1998 District Court (Attachment and from the proposition that stances. Committal) Rules 1999 (SI No appeals should not be made Local Government 124 of 1999) to the court against orders or Cummins v Director of Public (Planning and rulings made by a trial judge Prosecutions (Supreme Court), 3 Development) Act, 1999 Orders should not be during the course of an action December 1998 (No 17 of 1999) appealed during course being tried by him or her This Act has been signed by the of hearing ● In the particular and unique President and comes into opera- ● Appeals should not be made circumstances of the case, the SPORT tion on 1 January 2000 by opera- against orders or rulings made relevant proceedings between tion of s42(3). by a trial judge during the the plaintiff and L having course of an action being tried been finally determined, the Alterations to betting by him or her. court was entitled to deal levy system PRACTICE AND with the matters raised on A Bill has been presented which PROCEDURE The plaintiff sought to recover, appeal aims to: under policies of insurance, ● There was no rule of law, nor ● Introduce a 0.3% betting compensation from the defen- did the interests of justice turnover charge on all on- Changes to periods of dants (the first, second and third- require, that there would be course and off-course book- limitation? named defendants) and L, (the any impediment to the imple- maker betting (increasable by A private member’s Bill has fourth-named defendant). L mentation of a desired settle- subsequent regulations up to been introduced which seeks to made a lodgment into court. ment of even a portion of 5%) make new provisions regarding During the course of proceed- those protracted proceedings. ● Introduce a flat-rate charge of the date from which the Statute ings, the plaintiff sought an £2,000 on each off-course of Limitations runs in respect of order to extend time for accep- Superwood Holdings plc v Sun bookmaker’s shop (increasable actions for certain personal tance of the lodgment, in settle- Alliance and London Insurance by subsequent regulations up injuries arising from sexual or ment of all aspects of the claim plc (Supreme Court), 21 July to £5,000) physical abuse. against L. The trial judge refused 1998 ● Introduce a flat-rate charge on Statute of Limitations (Amend- the application. On appeal, the on-course bookmakers, the rate ment) Bill, 1999 plaintiff submitted, among other Validity of warrant a of which is to be set by the things, that the ruling made by matter solely for trial IHA. New custody rules for the trial judge refusing the appli- judge District Court cation was not made during the ● The question of the validity Horse and Greyhound Racing With effect from 21 May 1999, course of proceedings. By virtue of a warrant is solely within (Betting Charges and Levies) Bill, new rules amend order 58 to of the agreement reached the jurisdiction of the trial 1999

42 LAW SOCIETY GAZETTE NOVEMBER 1999 BRIEFINGBRIEFING

gave rise to considerations of take into account in assessing business tax incentives in areas SUCCESSION whether and to what extent the the fulfilment of a moral duty qualifying for the rural renewal behaviour of a child towards his was behaviour of the plaintiff schemes. The incentives consist of Plaintiff fails to meet father could affect the father’s towards his parent, which was a capital allowances for expenditure s117 criteria moral duty under the section circumstance which had to be on the construction or refurbish- ● The scheme of the Succession ● The existence of a moral duty taken into account together ment of certain industrial and Act, 1965 implies that among to make proper provision by with the benefit which the commercial buildings and will be the circumstances which a court will for a child had to be decid- plaintiff had in fact got during available initially in respect of could take into account in ed by objective considerations. his lifetime. expenditure incurred from 1 July assessing the fulfilment of a The court had to decide 1997 to 31 December 2001. It is moral duty was the behaviour whether the duty existed and McDonald v Norris (McCracken understood, however, that the ter- of the plaintiff towards his par- the view of the testator that he J), 18 December 1998 mination date for the scheme will ent, which was a circumstance did not owe any was not deci- be extended to 31 December 2002 which had to be taken into sive for publication by way of a leg- account together with the bene- ● The recent Supreme Court deci- islative provision in the Finance TAXATION fit which the plaintiff had in sion of EB v SS ([1998] 2 ILRM Bill, 2000. fact got during his lifetime. 141) supported the view that Taxes Consolidation Act, 1997 there could be cases where the Reduced and tax-free (s372L) (Commencement Order) The plaintiff was the eldest son of child was in serious need, but betting 1999 (SI No 205 of 1999) the testator who died on 15 nevertheless no moral obliga- From 1 July 1999, as a conse- November 1993. By his will, the tion to provide for that child quence of the coming into opera- Abolition of duty free testator appointed the defendant to existed. Admittedly, that was a tion of s117(1) of the Finance Act, within the EU be his sole executrix and case where the testatrix had 1999, the rate of excise duty on Regulations have been made, bequeathed everything to his already made considerable pro- bets is reduced to 5%. With effect amending the VAT Act, 1972, so as daughter subject to the payment of vision for the plaintiff during from 25 July 1999, s75 of the to give effect to the abolition of £5,000 to the plaintiff ‘in dis- his lifetime, and therefore pre- Finance Act, 1996 comes into duty-free sales to passengers mak- charge of any moral obligations’ sumably could be considered to operation. As a consequence, bets ing intra-EU journeys after 30 he might have towards him. The have fulfilled such moral oblig- placed on-course (other than bets June 1999. From that date, sales of plaintiff brought these proceed- ation as did exist placed by means of telecommuni- goods to passengers will be liable ings pursuant to s117 of the ● The court had to decide cations) at a greyhound meeting in to VAT at the appropriate rate. Succession Act, 1965 asking the whether a prudent and just par- respect of events taking place off- However, certain food, drink and court to consider whether the tes- ent, in the circumstances of the course are to be relieved of off- tobacco products supplied to pas- tator failed in his moral duty to present case and given the course excise duty. sengers for consumption on board make proper provision for the behaviour of the plaintiff, Finance Act, 1999 (Commence- a vessel or aircraft during any plaintiff in accordance with his reached a decision which was ment of s117(1)) Order 1999 and intra-EU journey will continue to means. In dismissing the claim, it in accordance with his moral Finance Act, 1996 (Commence- be liable to VAT at the zero rate. was held that: duty to the plaintiff ment of Section 75(1)) Order 1999 Duty-free sales will continue to ● The plaintiff’s behaviour ● It was extremely relevant that (SI Nos 178 and 223 of 1999) apply in respect of journeys out- towards his father, at least from the plaintiff had the benefit of side the Community. 1984 when he refused to leave the testator’s farm for which he Business tax incentives in European Communities (Value- the lands, was quite appalling. paid nothing, not by a voluntary rural renewal scheme Added Tax) Regulations 1999 and The plaintiff and his family act of the testator but because The qualifying period for the pur- Value-Added Tax (Supply of Food, continued to reside on and work he took it against the will of the poses of s372L of the Taxes Drink and Tobacco Products On the home farm and the family testator Consolidation Act, 1997 has been Board Vessels or Aircraft for On home to this day, although they ● The scheme of the 1965 Act defined as the period commencing Board Consumption) Regulations clearly had no right so to do implied that among the circum- on 1 July 1997 and ended on 31 1999 (SI Nos 196 and 197 of ● It was a tragic background and stances which a court could December 2001. This relates to 1999) G

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Eurlegal

News from the EU and International Law Committee Edited by TP Kennedy, Legal Education Co-ordinator, Law Society of Ireland Reform of European competition policy (part 2) he EC Commission recently paper suggested a number of makes EC policy towards vertical cant changes to be made to the Tpublished Commission regu- options for reform which interest- restraints radically different from current system and to the manner lation on the application of article ed parties were asked to review US anti-trust policy … The free in which vertical restraints are 81(3) of the EC treaty to cate- and which led to the submission rider rationale does not have the managed by the EC Commission. gories of vertical agreements and of 227 written comments. The same influence in the EC, at least In particular, the regulation pro- concerted practices together with majority of the submissions con- where parallel imports are con- vides for the following innova- Guidelines on vertical restraints sidered that the current system cerned … Nonetheless, resolu- tions. (the text of both documents can be was too legalistic. This criticism tions of the tensions between ver- The regulation is to cover all found on the DG4 web site: has been levelled at the EC tical efficiencies and intra-brand vertical arrangements relating to europa.eu.int/comm/dg04/index_ Commission for quite some time competition, on the one hand, and goods and services, final and en.htm). The regulation (also in that it is widely considered that market integration and distribu- intermediate. This essentially referred to as the block exemp- EC Commission decisions fail to tive concerns on the other remains means that the goods or services tion) will cover and exempt a consider adequately whether the one of the most important issues may be resold by the buyer or, wide range of vertical arrange- restraint at issue harms competi- in EEC anti-trust law’. alternatively, may be used as an ments which were previously tion in the consumer welfare The EC Commission itself is input by the buyer to produce its analysed under one of a number sense of economics. In other aware of the shortcomings in its own good or service. of different regulations (for exam- words, it is thought that the EC policy and has highlighted some Article 2 of the regulation pro- ple, the regulations on exclusive Commission fails to take into of them in both the green paper vides that the exemption for verti- distribution/purchasing) or which account adequately the effect and in its Communication on the cal arrangements will not apply to fell to be considered under the which any given vertical restraint application of the Community a situation where the market share individual notification system has on price and output. This fail- competition rules to vertical held on the relevant market by the managed by the EC Commission. ure on behalf of the EC restraints (also to be found on the supplier, and by undertakings Comments from interested parties Commission is attributed to its DG4 EC Commission web site). connected with the supplier, on the provisions of the regulation prioritisation of its market inte- In the Communication, it states exceeds 30%. Obviously, in the were to be lodged with the EC grationist goal. This goal, it is that it now wishes to shift the case of exclusive supply obliga- Commission by 23 October and argued, forces it to reject efficien- focus of its analysis when assess- tions, the threshold of 30% will comments on the guidelines are to cy arguments or justifications and ing vertical restraints. In particu- apply to the market share held by be submitted by 23 November to favour the promotion of intra- lar, it notes that it is only when the buyer, and by undertakings 1999. The EC Commission plans, brand competition over inter- inter-brand competition is weak connected with the buyer, on the in the normal course of events, to brand competition. and market power exists that it market on which it purchases the adopt the regulation by the end of Balancing the conflicting goals becomes important to control ver- contract goods or services. the year and to put in place the of efficiency and market integra- tical agreements. On the other The market share is to be cal- guidelines early next year. tion is not an easy task as both hand, it states in its green paper culated on the basis of the market The publication of this regula- goals raise very different issues. that, in the light of the future sales of the contract goods or ser- tion and set of guidelines is the In the words of Barry Hawk enlargement of the Community, vices and other goods or services result of extensive consultation (System failure: vertical restraints market integration remains an sold by the supplier, or an under- with interested parties which and EC competition law, 1995 important objective when assess- taking connected with the suppli- began with the publication of The CMLR): ing competition issues. er, and which are regarded as green paper on the reform of EC ‘The effect of the market inte- interchangeable or substitutable Commission policy towards verti- gration goal and the continuing Specific proposals by the consumer, by reason of the cal restraints (again, to be found governmental and private barriers The regulation/block exemption products’ characteristics, their on the DG4 web site). The green to trade between Member States provides for a number of signifi- price and their intended use.

44 LAW SOCIETY GAZETTE NOVEMBER 1999 BRIEFINGBRIEFING

The relevant market share is to duration is indefinite or exceeds They also address some of the ● Maturity of the market be calculated on the basis of data five years; any direct or indirect market definition issues, although ● Level of trade relating to the preceding calendar obligation causing the buyer, after not in any great depth. ● The nature of the good or ser- year. There are provisions in the termination of the agreement, not Section IV of the guidelines vice regulation which deal with the to manufacture, purchase or dis- entitled Enforcement policy out- ● Other factors: for example, the scenario where an undertaking tribute goods or services; any side the scope of the block exemp- duration of the agreements, normally benefits from the direct or indirect obligation tion is perhaps the most instruc- their cumulative effect or exemption but where it does par- imposed on the members of a tive section and will no doubt be whether the agreement is ticularly well in the market during selective distribution system to of help to practitioners when agreed or imposed. a number of years, thus temporar- sell or not to sell specified brands advising clients who wish to enter ily pushing its market share over of competing suppliers. These into vertical arrangements with Section IV also sees the EC the threshold. These provisions restrictions can, however, be sev- their distributors or buyers. The Commission analysing particular provide for the following: if the ered and the rest of the agreement section begins by outlining the vertical restraints and types of relevant market share of a partic- can continue in force (paragraph possible negative and positive vertical agreements with the help ular undertaking exceeds 30% but 57 of the guidelines). effects of vertical restraints. It of examples to show when the does not exceed 35%, the exemp- The regulation provides that then lays down the general rules particular agreements/restraints tion shall continue to apply during the EC Commission may with- which it will apply when evaluat- can have anti-competitive effects. a period of two consecutive calen- draw the benefits of the regulation ing vertical restrictions. For The guidelines are not unlike dar years. If the relevant market where it finds that an agreement example, it notes that vertical the Guidelines of the US National share exceeds 35%, the exemp- covered by the regulation has cer- restraints which reduce inter- Association of Attorneys General tion shall continue to apply for tain effects which are incompati- brand competition are generally (see Antitrust and trade regula- one calendar year. The benefit of ble with the conditions laid down more harmful than those which tion report, vol 68, no 1706) this relaxation cannot, however, in article 81(3) of the treaty and, reduce intra-brand competition. It which are of particular impor- be used for more than two years. in particular, where access to a also notes that the possible nega- tance in the US in that section 1 Article 3 of the regulation pro- market or competition therein is tive effect of vertical restraints are of the Sherman Act can be vides that the exemption is not to significantly restricted by the reinforced not just when one sup- enforced by civil actions taken by apply to agreements which have cumulative effect of parallel net- plier with its buyers practises a state officials and, in particular, the object of restricting the buyer works of similar vertical restraints certain vertical restraint but also by attorneys general. In the US, in determining his resale price, of practised by competing suppliers when other suppliers and their these guidelines have been found limiting active or passive resales or buyers. buyers organise their trade in a by practitioners to be of enor- to users by members of a selective The EC Commission may also, similar manner. mous help in analysing vertical distribution system, of restricting by regulation, declare that where The EC Commission in this arrangements. The practical sig- cross-supplies between distribu- parallel networks of similar verti- section also outlines its methodol- nificance and usefulness of the tors, again within a selective dis- cal restraints cover more than ogy for analysing vertical Commission’s guidelines will be tribution system, or of prohibiting 50% of a relevant market the arrangements which do not fall best tested in practice and will sales of spare parts to independent exemption laid down in the regu- within the perimeters of the new hopefully become a important repairers and service providers. lation will not apply to vertical regulation. It states that when tool for competition lawyers. Article 3 also provides that the arrangements containing specific deciding whether an agreement is exemption will not apply to restraints and relating to that mar- prohibited under article 81(1), the Resale price maintenance agreements which have the object ket. Finally, it is noteworthy in following factors should be con- Article 3(1)(a) of the of restricting resales made by the this regard that in certain circum- sidered: regulation/block exemption pro- buyer except in certain instances stances the competent authorities ● The market position of the sup- vides that the exemption shall not – for example, where the supplier in the Member States may also plier: the market share of the apply to an agreement the object restricts the members of its selec- withdraw the benefit of the supplier is stated to be of the of which is: ‘the restriction on the tive distribution system from exemption. utmost importance in deciding buyer in determining its resale reselling to unauthorised distribu- upon the market power of the price, without prejudice to the pos- tors. There is no severability for Guidelines on vertical supplier sibility for the supplier to impose a these hardcore restrictions: in restraints ● The market position of com- maximum resale price or to rec- other words, if one of these claus- The aim of the guidelines is to petitors: in this regard, the EC ommend a resale price, provided es is included in an agreement, outline the enforcement policy of Commission notes that the that these do not amount to a fixed the offensive clause cannot be the EC Commission in the appli- stronger the established com- or minimum resale price as a severed in order to allow the cation of article 81 to vertical petitors are, and the greater result of pressure or incentives remainder of the agreement to arrangements. In this regard, the their number, the less risk there created by any of the parties’. operate (paragraph 56 of the guidelines explain, among other is that the supplier or buyer in This approach by the EC guidelines). things, the application of the new question will be able to fore- Commission is consistent with the The regulation also provides regulation and also describe the close the market individually approach adopted throughout the that the exemption will not apply general framework of analysis for and the less risk there is of a world: there is virtual unanimity to any of the following specific vertical agreements and the reduction in inter-brand com- amongst the competition policies obligations contained in vertical enforcement policy of the EC petition of states that resale price mainte- agreements: any direct or indirect Commission outside the scope of ● Entry barriers nance (RPM), and in particular non-compete obligation if its application of the new regulation. ● Buying power minimum resale price mainte-

NOVEMBER 1999 LAW SOCIETY GAZETTE 45 BRIEFING

nance, should be per se illegal. (Overstreet, Th Jr, (1983) Resale that it found that vertical maxi- But this hardly amounts to a The only country I can think of in price maintenance: economic the- mum price-fixing should not be coherent policy or a convincing which it is not per se illegal is ories and empirical evidence, considered a per se violation of reason for the application of a per New Zealand. That country’s Bureau of Economics Staff competition rules (see State Oil se rule to a particular category of Commerce Amendment Act of Report to the Federal Trade Company v Barkat U Kahn and vertical restraint. 1990 provides that RPM may be Commission) who looked at RPM Kahn & Associates, Inc, judg- The practical implications of authorised by the Commerce during a time when it was broadly ment of the US Supreme Court of the adoption of the regulation and Commission in cases where bene- legal in much of the United States 4 November 1997). We wonder, guidelines will undoubtedly be fits can be shown to outweigh under federal fair trade law. He however, whether the entire ques- significant for lawyers who prac- anti-competitive effects. concluded that: ‘the empirical tion should not once again be tise in the area. Hopefully, the However, consistent economic evidence on the effects of RPM considered, preferably at a amendments will translate into a analysis/empirical evidence does validates the implications of cur- European level. more flexible legal environment not exist which proves that the rent economic theory. Theory This, however, appears unlike- in which business people can effects of RPM on economic effi- suggests that RPM can have ly in the foreseeable future, given operate more effectively and, in ciency are any more detrimental diverse effect, and the empirical the attitudes of the EC addition, to a greater degree of than those of other vertical evidence suggests that, in fact, Commission. This was summed legal certainty. The proposed restrictions. In fact, it has been RPM has been used in the US and up by Jonathan Faull, Former amendments appear to introduce a argued by certain economists that elsewhere in both socially desir- Director in DGIV for General degree of pragmatism into a sys- the benefits of vertical price able and undesirable ways’. Competition Policy on Co-ordi- tem which, in the past, failed to restraints are similar to the bene- Not all analysts have reached nation and International Affairs, marry legal formalisms with eco- fits derived from vertical non- the same conclusion so there is at a British Chamber of nomic theory and business reality. price restrictions – that price- some uncertainty. Commerce Conference in The new system, whatever its related vertical restrictions in At a legal level, it is interesting Brussels in April 1997. In his flaws, does represent a step for- general, and RPM in particular, to note the case of Dr Miles speech, he conceded that certain ward towards an effective compe- accomplish directly what non- Medical Company v John D Park types of RPM could, in certain tition policy. How significant a price vertical restrictions accom- & Sons (220 US at 373) where the circumstances, be said to be pro- step the amendments to the sys- plish indirectly. US court drew the conclusion that competitive but he stated that in tem represent will only be appar- As mentioned above, the vertical price-fixing was equiva- general they were likely to be ent once we have seen the opera- empirical evidence on the effects lent in all respects to horizontal harmful. Therefore, he consid- tion of both the regulation and of RPM is also contradictory. price-fixing and constituted an ered that a simple legal rule deal- guidelines in practice. G One valuable and thorough unlawful restraint. Since then, ing with this would in his opinion review of the empirical evidence there has been some movement be the best option, especially in Lynn Sheehan is a solicitor with is a study by Overstreet from the US Supreme Court in view of the available resources. Philip Lee, Solicitors.

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46 LAW SOCIETY GAZETTE NOVEMBER 1999 BRIEFINGBRIEFING

RECENT DEVELOPMENTS IN EUROPEAN LAW concentration as a whole and not sportsmen can be considered as equal treatment is of universal COMPETITION just to particular aspects of it. The undertakings for the purposes of scope. Its prohibition of gender dis- Mergers Commission had not breached the competition law. Restrictions on this crimination applies to any branch of Case T-221/95 Endemol Entertain- applicant’s rights of the defence by activity by national rules for the activity. The only permitted exemp- ment Holding BV v EC Commission, providing it only with non-confi- selection of national squads can be tions are those set out in the direc- judgment of 29 April 1999. The dential summaries of the third par- justified in the public interest. Thus, tive itself. The ECJ has already held Dutch TV joint venture Holland ties involved or by not indicating regulations limiting the number of that the directive applies in the field Groep (HNG) operated three Dutch their identity. The applicant’s right sportsmen who compete in interna- of internal safety. The field of TV channels. The Dutch of access to the file had to be bal- tional competitions and requiring defence is directly comparable. One Government requested an investi- anced against the right of protec- such athletes to be authorised by of the exemptions provided in the gation under article 22 of the tion of business secrets of the third national federations to participate in directive is where gender is a deter- Merger regulation. The Commission parties, as well as with the need for international competitions do not mining condition for access to work. conducted an investigation and speed when adopting merger deci- breach free movement rules. The Military activity in itself is insufficient declared in September 1995 that sions. The CFI also held that articles Advocate General considered that to allow the invocation of this the joint venture was incompatible 2 and 3 had not been breached. The there were insufficient factual and exemption. However, the special with the common market. It con- Commission had correctly defined legal points raised to allow the court conditions that the Marines operate cluded that the concentration creat- the market and it was one in which to reach a conclusion on any viola- in and its principle of requiring all ed a dominant position on the TV the applicant held a dominant posi- tion of competition law. marines to be capable of combat advertising market in the tion. could theoretically come within the exemption. Determining whether it Netherlands and the strengthening COMPETITION of the dominant position on the Undertakings does would require a thorough eval- Dutch TV production market of one Joined Cases C-51/96 and C-191/97 Equality uation by the national authorities. of the parent companies. One of Christelle Deliege v Asbl Ligue Case C-273/97 Angela Maria Sirdar v Such an evaluation must take the companies (the applicant) with- Francophone de Judo and Ors, opin- The Army Board and Secretary of account of the principle of propor- drew from the joint venture and, as ion of Advocate General Cosmos of State for Defence, opinion of tionality to properly and rigorously a result, the Commission cleared the 18 May 1999. Ms Deliege has been Advocate General La Pergola, 18 determine whether the absolute joint venture in July 1996. The practising judo since 1983. She May 1999. Ms Sirdar had been exclusion of women is an appropri- applicant appealed against the claimed that the Belgian judo feder- employed as a cook in the British ate and necessary measure for the 1995 decision. It argued that the ation had impeded her career by not Army since 1983. In 1994 she safeguarding of the military effec- Dutch Government had authorised permitting her to participate in received a redundancy notice due to tiveness of the Marines. the Commission to investigate only important competitions such as the overstaffing and the need to reduce the TV advertising market and not 1992 and 1996 Olympic Games. She defence costs. She requested a trans- FREE MOVEMENT the TV production market, that the argued that she was carrying out an fer to the Royal Marines. Her request OF GOODS commission had not given the appli- economic activity, the freedom of was refused, as the Marines did not cant adequate access to the file, and which is guaranteed by EC law. She admit female employees. She Case C-255/97 Pfeiffer Großhandel that it had breached articles 2 and 3 argued that EC rules on fair competi- brought a gender discrimination GmbH v Löwa Warenhandel GmbH, of the Merger regulation. The Court tion and freedom to provide services claim. The UK government argued judgment of 11 May 1999. Pfeiffer of First Instance (CFI) held against had been breached. The Advocate that the Royal Marines operates on had sought an order restraining the applicant. It held that article 22 General determined that leading the basis that each member must be Löwa from using the trade name did not enable a Member State to amateur sportsmen who receive in a position, independent of his spe- ‘Plus’ in certain districts of Austria. control the Commission’s investiga- financial contributions that enable cialisation, to fight as part of an Austrian law allowed such an order tion or define its scope once the them to devote themselves to the infantry. Theoretically, one cannot to be granted to prevent ‘unfair concentration has been referred to sport – as would a professional join the Marines to carry out a spe- competition’. The ECJ was asked the Commission. The Commission sportsman – can be seen as carrying cialised activity. The Advocate whether a national law not allowing examination has to relate to the on an economic activity. Thus, such General opined that the Directive on a trade name to be used as the des-

Conferences and seminars Academy of European Law the Internal Market European Union Topic: 38th annual congress Contact: (Tel: 0049 651 937370) Date: 18-19 November Date: 4-5 December Date: 27 August–1 September Venue: Alicante, Spain Venue: Trier, Germany 2000 Topic: Current developments Venue: Helsinki, Finland in European fiscal law Topic: The eco-label as a AIJA (International Association Date: 18-19 November voluntary measure and consumer of Young Lawyers) HAWKSMERE Venue: Amsterdam, The interests Contact: Gerard Coll Contact: (Tel: 0044 207 8811858) Netherlands Date: 29-30 November (tel: 01 667 5111) Venue: Trier, Germany Topic: International acquisitions Topic: The Community trade mark: Topic: Private-public partnership Date: 29 November–1 December caselaw of the Boards of Appeal of Topic: Human rights and Date: 20-21 November Venue: Brussels, Belgium the Office for Harmonisation in combating racism in the Venue: Warsaw, Poland

NOVEMBER 1999 LAW SOCIETY GAZETTE 47 BRIEFING

ignation of an undertaking where ing the quota by two and fined him Chimesee and incorporated decided that there was no doctrine there is a risk of confusions contra- 75,000 sch. The two persons resided ‘Chiemsee’ on their products. of international exhaustion of trade- vened articles 28 and 43 of the in Germany and Liechtenstein. The Windsurfing brought proceedings marks. It held that goods with a treaty. It held that legislation pro- ECJ held that the quota was an act of against them on the basis that their trademark and first marketed out- hibiting the use of a trade name indirect discrimination contrary to use of ‘Chiemsee’ was misleading side the EEA could not be imported could discriminate against undertak- article 59. It had been put forward and in breach of the Trademark into the EEA and sold without the ings in other Member States wishing on economic grounds rather than directive (Directive 89/104). Article consent of the trademark owner. to establish there. However, such based on reasons of public policy, 3(1)(c) provides that ‘trademarks Davidoff is the manufacturer of lux- legislation was justified as it safe- public health or public security. which consist exclusively of signs or ury toiletries and cosmetics. These guarded trade names against the indications which may serve, in products are sold at a lower price risk of confusion. trade, to designate the … geograph- outside the EU. AG Imports pur- FREEDOM OF ical origin’ may not be registered as chased some of these products Case C-350/97 Wilfried Monsees v ESTABLISHMENT trademarks. Article 3(3) provides abroad and imported them into the Unabhängiger Verwaltungssenat für Case C-311/97 Royal Bank of that a trademark shall not be UK. Davidoff sought to rely on Kärnten, judgment of 11 May 1999. Scotland plc v Greece, judgment of refused registration or declared Silhouette. Laddie J in the English The case concerned proceedings 29 April 1999. The Royal Bank of invalid if, before the date of applica- High Court accepted that Davidoff taken by Monsees against the Scotland has a Greek subsidiary tion for registration and following had given an implied consent to the Independent Administrative Board established in Piraeus. Greek law the use which has been made of it, it importation of its trademarked for Carinthia. His truck had been requires a 40% corporation tax of has acquired a distinctive character. products. In selling the products stopped while transporting a herd of companies whose head office in not The ECJ held that the prohibition on abroad, it had not attempted to live cattle destined for Istanbul. The situated in Greece. In its 1995 tax the registration of designations of restrict non-EEA purchasers in their point of origin was in Germany. He declaration, the bank claimed that it geographical origin is to ensure that freedom to resell the products any- questioned the application of legis- should be subject to the tax rate such indications remain available to where. lation governing maximum journey applicable to companies whose head all. The rule applies both to places times and distances for the transport office is situated in Greece – 35%. with a close association with certain LITIGATION of live animals for slaughter. The The tax authorities rejected this products and to places of lesser Law on transport of animals by road request. The ECJ held that the dis- renown, which may become associ- Brussels convention provides that the transport of live tinction drawn between companies ated with particular products. Case C-267/97 Eric Coursier v Fortis animals must end at the nearest suit- whose head office was located in Whether a place is or may be associ- Bank, Martine Coursier, née Bellami, able abattoir in order for the animals Greece and those with a head office ated with a product is for national judgment of 29 April 1999. Fortis to be killed. It was argued that this located outside Greece was contrary courts to determine, taking into Bank had given a loan to Mr and Mrs provision is an obstacle to transport to EC law and was not justified by account the perceptions of con- Coursier. They failed to make repay- of live animals to or from Austria any objective criterion. The taxation sumers of a given place and product. ments and the bank commenced pro- and transit through it. The ECJ held powers of state must be used in com- Where a place name does not ceedings against them. The Cour that it was a measure having an pliance with the general principle of appear to be connected to specific d’Appel in Nancy required repay- effect equivalent to a quantitative non-discrimination – article 6. Article products, registration may be possi- ment of the loan, including interest restriction prohibited by articles 28 52 further develops this principle for ble. A designation of geographical at the rate agreed to and costs. A and 32 of the treaty. The court held companies. It ensures that compa- origin may, as a result of usage, French commercial court subsequent- that the measure could not be justi- nies established in a Member State acquire a meaning broader than its ly held that there were insufficient fied by article 34 – to protect the may operate in other Member States original description of origin. assets to put the Coursiers into court- health and life of the animals. It on the same terms as the companies National courts should consider the supervised liquidation. This court went beyond what was necessary to of that Member State. specificity of the name, the length of reinstated the initial claim to bring achieve this aim and made interna- time of the alleged usage and its individual proceedings under French tional transit by road of animals for intensity, the market share and geo- insolvency law. The effect of this was INTELLECTUAL slaughter almost impossible in graphical market of the product sold to make the bank’s claim unenforce- PROPERTY Austria. under the mark, the company’s able. Mr Coursier took up employ- Trademarks investment into the mark, its percep- ment as a frontier worker in Case C-108/97 Windsurfing Chiemsee tion by consumers, declarations by Luxembourg. The bank began pro- FREE MOVEMENT Produktions-und Vertriebs GmbH v chambers of commerce or other pro- ceedings against him before the OF SERVICES Boots-und Segelzubehör Walter fessional bodies and opinion surveys. Luxembourg courts. Mr Coursier Case C-224/97 Erich Ciola v Land Huber and Case C-109/97 Windsurf- If, as a result of such examination, argued that the unenforceable order Voralberg, judgment of 29 April ing Chimesee v Attenberger, judg- the national court is satisfied that of the French courts under article 31 1999. In 1990 the plaintiff took a ment of 4 May 1999. Windsurfing the market considers this mark as of the convention precluded the lease on several plots of land on the Chimesee is a clothes designer and identifying a specific product of a granting of an order for enforce- Austrian shore of Lake Constance manufacturer, which is established specific company, the mark will be ment by a Luxembourg court. The with permission to erect 200 moor- on the shores of Lake Chiemsee in eligible for registration under article ECJ held that article 31 deals solely ings. The local authority issued the Bavaria. The company uses the word 3(3). with the execution of foreign plaintiff a decision setting a quota Chimesee as a product brand and has enforceable instruments and not limiting the amount of moorings registered a number of graphics con- Zino Davidoff SA v AG Imports Ltd, with the procedure for obtaining allocated to non-Austrian nationals taining the name. Huber and 24 May 1999, The Times. In such an order. ‘Enforceable’ in article to a maximum of 60 by 1 January Attenberger are two more recent Silhouette International Schmied 31 does not refer to the circum- 1996. In June 1996 a local court clothes manufacturers who estab- GmbH KG v Hartlauer stances in which a decision may be found the plaintiff guilty of exceed- lished their operations by Lake Handelgesellchaft mbH, the ECJ executed in the state of origin. G

48 LAW SOCIETY GAZETTE NOVEMBER 1999 PEOPLE AND PLACES London Irish solicitors Justice Media Awards 1999 have a ball

Margaret C Ward Tom Mooney

The tenth Irish Solicitors’ Bar Association’s Charity Ball in London was held in The Savoy last month, and was attended by lawyers from major London firms, the English and Irish bars and American law firms. The event raised just under £14,000 (bring- ing the total raised to date to £90,000), and once again the Carol-Anne O’Reilly Diarmaid MacDermott proceeds were donated to the Westminster Branch of the NSPCC. The ball was supported by the five biggest Dublin law firms and sponsored by Allied Irish Bank (GB), Anglo-Irish Bank and Bank of Ireland. (Above:) Law Society President Patrick O’Connor with Cliona O’Tuama, President of the Irish Solicitors’ Bar Association, London

Moylan to Mary Raftery Barry O’Kelly advise AG Pictured at the Justice Media Awards ceremony in Blackhall Place last month were: Margaret E Ward of the Irish Times who won the Justice Award in the daily newspapers category; Tom Mooney of The Echo in Enniscorthy, Co Wexford, who won the Justice Award in the non-daily newspapers category; in the magazine category, the Justice Award went to Consumer Choice’s Carol-Anne O’Reilly; Diarmaid MacDermott of the Ireland International News Agency picked up the Justice Award for radio; and RTE’s Mary Raftery won the Justice Award for television. Barry O’Kelly, the reporter who broke the Philip Sheedy story for the Star newspaper, was named Overall Winner of the competition (see also News, page 11).

Declan Moylan, Managing Partner at Mason Hayes & Curran, has been appointed Pictured at a recent CLE seminar personal solicitor to the on shareholders’ agreements Attorney General, Michael were (l-r) Patricia McGovern, LK McDowell. Moylan will Shields; Paul Keane, Reddy advise the AG in relation to Charlton & McKnight; Barbara charities and other matters Joyce, Law Society; and Barbara Law Society President Patrick O’Connor and Director General Ken Murphy Cotter, A&L Goodbody pictured at a recent meeting with the West Cork Bar Association NOVEMBER 1999 LAW SOCIETY GAZETTE 49 PEOPLE AND PLACES New Director of Education All you ever needed to he Law Society has named TTP Kennedy as the new know about the CCBE Director of Education, taking he Council of European Bars The only Irish president to-date was over from Albert Power who left T and Law Societies (CCBE) was John Cooke, then senior counsel, to join the Institute of Chartered set up ten years ago as a liaison now a judge of the European Court. Accountants in Ireland. Prior to body between law societies and his appointment, Kennedy was bars in Europe and to represent the Who represents Ireland? the Legal Education Co-ordinator interests of the legal professions Geraldine Clarke (Council member) in the Law School and secretary before the European institutions. is the present head of the Irish del- to the EU and International Law egation and its other members are Committee, among other things. What does it do? John Fish (Council member), and He takes over at one of the most The CCBE monitors and analyses Harry Whelehan SC and Mary Finlay challenging times in the history Director of Education TP Kennedy: major challenges ahead proposals and legislation of the SC representing the Bar. They have of the Society’s professional edu- European Commission, individual been ably assisted by TP Kennedy, cation and training, with the on- Member States and other bodies, Legal Education Co-ordinator (now going construction of the new said: ‘There are still major such as the World Trade Organisa- Director of Education) of the Law £5.2 million Education Centre changes ahead, and the Society is tion, which affect lawyers and make Society, who acted as correspon- and the establishment of the new very happy that with TP leading submissions and representations dent to the delegation. Curriculum Development Unit the Education Department, these concerning their provisions to the to oversee the new improved challenges will be met and man- relevant bodies. Its agenda over the Present priority courses. Commenting on the new aged with the commitment to past year has included: Following the proposals of the appointment, Law Society excellence that has always char- ● Submissions to the European European Commission to extend to Director General Ken Murphy acterised his work’. Commission, urging a reduction lawyers existing obligations under of VAT on legal services for pri- the EU directive on money launder- vate individuals, in the forthcom- ing, the CCBE established a small ing amendment to the VAT task force under the chairmanship directive of John Fish to monitor the ● Analysing the E-commerce progress of these proposals. The directive task force has made a number of ● Responding to the proposals of vigorous responses to the European the GATS 2000 committee of the Commission regarding the pro- WTO on the removal of the bar- posed requirement that lawyers riers to trans-national legal prac- would, in relation to certain finan- tice cial activities, be bound to report ● Drawing up and circulating suspicious transactions to state guidelines on the implementa- authorities without reference to tion Establishment directive. the client. It would appear that the Gardening Tipps At the Tipperary Bar Association’s summer garden party were Philip Joyce, Who are its members? Commission has, to some extent, Tipperary and Offaly (Birr Division) Sessional Bar Association; Gillian Its membership comprises 18 nation- recognised the concerns of the O’Connor; Rosario Boyle; Law Society President Patrick O’Connor; al delegations, representing the CCBE by including a provision in its Superintendent Mary Fitzgerald; District Judge Michael Reilly and District legal profession in each Member proposal that Member States will Judge David Riordan State of the EU and the European have the option of designating the Economic Area. There are also bar association or appropriate self- observer members from a number regulatory body as the authority for of eastern European countries. combating money laundering and to exclude such obligations in What is its structure? regard to information received It has a president, first vice-presi- from a client in order to enable the dent and second vice-president who lawyer to represent that client in are elected annually and serve for legal proceedings. one year. This year the president is This task force was also charged Sotiris Felios from Greece. with the task of reviewing and John Fish has been nominated by negotiating with the European the Irish delegation for election to Commission the terms of a charter, the position of first vice-president adopted by the European for the year beginning 1 November Professional Associations in July of 1999. If elected, he will go on to this year, in relation to money laun- serve as president during the year dering and the professions. Law Society President Patrick O’Connor and Director General Ken Murphy November 2001 to November 2002. Geraldine Clarke pictured at a recent meeting with members of the Waterford Bar Association

50 LAW SOCIETY GAZETTE NOVEMBER 1999 PEOPLE AND PLACES Certificate in legal German The great and the good he Certificate in legal German Institute, who did most of the Tis a course which was offered teaching on the course. by the Law Society in association The conferring ceremony for with the Goethe Institute for the the course took place recently. Ten first time in 1998/99. The course is candidates graduated from the taught through interactive tutorials course: Laura Sullivan Byrne, about German law and the German Kenneth Clear, Meriel Fitzsimon, legal system. The Society’s EU Paul Fogarty, Oisin McClenaghan, and International Law Committee Laura Mulleady, Sean was instrumental in bringing this O’Ceallaigh, Elaine O’Keefe and project to fruition. A great deal of Hilda Clare O’Shea. work was put in by committee The diplomas were awarded by member Philip Daly, who put for- Law Society President Patrick ward many ideas for the course O’Connor and the Director of the and then monitored it, and by Jutta Goethe Institute, Rheinard Breatnach from the Goethe Schmidt-Supprian. Law Society President Patrick O’Connor recently hosted a number of dinners at Blackhall Place for leading political movers and shakers, including Taoiseach Bertie Ahern and Tánaiste Mary Harney. (Above) Taoiseach Bertie Ahern and Patrick O’Connor with (from left) Junior Vice-President Gerard Griffin, Law Society Director General Ken Murphy, Finance Committee Chairman Ward McEllin, and Registrar of Solicitors PJ Connolly (Below): Tánaiste Mary Harney and Patrick O’Connor (front row), flanked by Gillian O’Connor and Attorney General Michael McDowell; (back row, l-r) Fergus O’Hagan SC, Beatrice Ensor, Dr Niamh Brennan, Director General Ken Murphy, Yvonne Chapman and Senior Vice President Tony Ensor (Bottom) Ken Murphy; Patrick O’Connor; Brendan Howlin TD, Labour Party Spokesman on Justice, Equality and Law Reform; Deputy Director General Mary Keane; and past-president Law Society President Patrick O’Connor with Director General Ken Murphy Michael V O’Mahony and Director of Education TP Kennedy (front row, second from right) at the conferring ceremony for the Certificate in legal German

Diploma in property tax conferring he Diploma in property tax is Brian O’Halloran, Annette Ta course which has been O’Sullivan, Marcella Power, Greg offered by the Law Society since Ryan, Valerie Ryan, Carol Sheehy, 1992. It was the first of the Giles Smyth, Elaine Sweeney, Society’s diploma/certificate Clodagh Tayler, Mary Tunney and courses and has been offered on Deirdre Wilson. Fiona Foley eight occasions in various parts of obtained the highest marks on the the country. The 1999 course was course, with Conleth Harlow sec- held in Cork and the conferring ond and Mary Tunney third. ceremony for the 35 graduating The diplomas were awarded by solicitors and apprentices was held Law Society President Patrick in Jury’s Hotel, Cork, last month. O’Connor. The Chairman of the The graduates of the course were: Education Committee, Owen Gillian Ahern, Owen Binchy, Binchy, addressed the gathering Eimear Binchy, Finola Burke, and expressed his thanks to the Aeibhin Cahalan, Michael Cotter, long-suffering spouses and family Anne Marie Cullen, Sheila Duff, members of the conferees. The Finola Dunne, Gail Enright, President thanked Owen Binchy, William Fitzgibbon, Fiona Foley, who had co-ordinated the course in Kevin Goggin, David Guilfoyle, Cork, while also attending it. He Conleth Harlow, Jeremiah Healy, also expressed his thanks to the Francis Kelleher, Fiona Kelly, Kay lecturers on the course, most of Lynch, Kieran McCarthy, Saundra whom are solicitors. He announced McNally, Veronica Neville, that the ninth course is currently Michele Nunan, Mary O’Connell, being planned for Dublin.

NOVEMBER 1999 LAW SOCIETY GAZETTE 51 APPRENTICES’ PAGE Apprentices’ page Compiled by Keith Walsh here are 900 apprentices at resembles a huge college group Tvarious stages of their appren- rather than an intimate profession- The West’s Awake: ticeship as we reach the end of this al course. century. Some 300 of these That is why an Apprentices’ apprentices in Westport apprentices are currently engaged Page is probably more needed now in the professional practice course than at any time in the past. in Griffith College. Another 300 Although we may not know each will start their professional course other personally, we are all appren- in February 2000. Faced with the tices, and it is always interesting to huge expansion in apprenticeship see the developments on other numbers, it is clear that both the courses and who is doing what or, Law School and the apprentices indeed, who is representing themselves have to deal with great apprentices in various events here changes both in the educational and abroad. This Apprentices’ and social nature of their courses. Page is a start. If successful, it may The current professional course be expanded in length, but will has evolved from the cosy five- definitely be expanded in terms of month, 80-people course into a contributors and the breadth of gargantuan nine-month, 300- apprentice activities covered. This apprentice monster. Indeed, the page is open to all apprentices, so large numbers on this and the next comments, criticisms and sugges- Westward, ho! Michael Gilroy on guitar and Gary Daly on bodhrán professional practice course have tions to: kgwalshie@ hotmail.com. meant that it is of a very different or c/o the Law School, Law t has almost become a tradition Mayo hospitality, the apprentices nature to its predecessors. It Society, Griffith College, Dublin 8. Ithat the apprentices undertake a traipsed into the standard Friday weekend away to Westport as part night fleshpot in the centre of of their professional course. The town known locally as the ‘cattle- Popcorn for the soul current course’s pilgrimage to the mart’. Happily the apartment west started with an inspiring complex occupied by the appren- seisiún by Mike Gilroy on guitar tices was equipped with a wine and Gary Daly on bodhrán which bar and the staff were none too passed the four-hour train journey shy about ensuring that the grape in the blink of an eye. kept flowing. Once in Westport, it was off to Westport Arts Festival kicked the Towers pub and restaurant on off on Saturday evening and the the quays for an aperitif and a town was ablaze with fireworks light meal. A free bar was opened displays. Sunday was a relaxing to the apprentices for a portion of stroll through Westport before the their stay, although predictably circus that is an apprentice week- Cast of Philadelphia here I come enough it was dry within the end away left town with the music (Back row l-r) David Fahy, Willie Brennan, Ronan O’Brien, Ashley hour. In search of the famous of Mayo ringing in their ears. O’Connell, Olivia Broderick, Ross Moore and Cathal McGreal; (seated ladies) Edel McCormack and Deirdre Kelly; (front row) Dave Peters, Tommy Byrne and Domhnaill Forde Human rights seminar ugust saw a Blackhall Place And they didn’t let me down. esigned to raise the aware- rights. Marie Quirke, the solicitor Aproduction of Brian Friel’s I’ve been in a lot of plays in my Dness of human rights issues in in charge of the newly-formed Philadelphia here I come, staged time, but this was easily my the day-to-day practice of a solici- (State) Law Centre for Refugees, by members of the current profes- favourite production. Among the tor’s office, the human rights sem- emphasised the obligations sional course. I directed it, and by cast, there was a tremendous sense inar held in the Law Society on 7 imposed on the State and the indi- all accounts we were a hit. There of spirit, camaraderie and general October, organised by Eleanor vidual by human rights. Michael were 12 people in the cast, and we enthusiasm. It was a brilliant expe- Edmond and Keith Walsh, was a Farrell, co-chairperson of the Irish all got on like a house on fire rience and the professional course great success. The seminar was a Council for Civil Liberties and a (everybody trying to escape!). presents the ideal opportunity for blend of a number of human rights practising solicitor with Hanahoe We rehearsed the show over a such a venture. So if you’re an voices on this island. Professor & Co, set out the appalling dis- period of nine weeks with no short- apprentice waiting to go on the Brice Dickson, chairman of the grace that is the Irish domestic age of blood, sweat, tears and gen- next professional course, remem- Northern Ireland Commission on record on human rights. And eral heartache. When showtime ber: It’s not the things you do that Human Rights, articulated the dif- Siobhain Phelan BL, Chairperson finally arrived, ‘Get out there and you regret, it’s the things that you ficulties of getting both sides of of FLAC, spoke eloquently on be brilliant’ was my much-consid- don’t do. the sectarian divide in the North to the need to give a voice to the ered pre-show pep talk to the cast. Ronan O’Brien acknowledge the need for human voiceless. G

52 LAW SOCIETY GAZETTE NOVEMBER 1999 BOOKS Book reviews Regulation of investment capital markets: Irish and European regulatory arrangements and laws Kevin McHugh Blackhall Publishing (1999), 26 Eustace Street, Dublin 2. ISBN: 1-901657-13-2. Price: £75 (hbk), £45 (pbk). egulation of investment capi- Particular attention is given to the of US law in this area; unfortunate- O’Farrell, considers related-party Rtal markets is the second authorisation process which firms ly, the author does not go so far as transactions and disclosure of book on this area of the law to be wishing to provide services on to indicate which federal or state interests in shares, offerings of published in recent times. The markets which come within the enactments firms should beware of. securities by Irish-listed compa- main author, Kevin McHugh, is ambit of the directive must under- The book could also have benefited nies and insider dealing. Director of Compliance and Risk go. Relevant questionnaires and by the inclusion of tables of cases This is a useful book and will at Goodbody Stockbrokers. guidance notes are reproduced in and statutes. be of assistance to those working Chapters have been contributed appendices to the chapter. Chapter 5, contributed by Mary in the financial services area and by Mary O’Dea, Deputy Head of Chapter 3 considers conflicts of O’Dea, sets out the role of the to lawyers seeking a readable Securities and Exchanges interest between a firm and its Central Bank under both the Stock introduction to the latest legisla- Supervision in the Central Bank, clients and between clients. Exchange and Investment Inter- tive and stock exchange require- and Jack O’Farrell, a partner with Attention is drawn to the increasing mediaries Acts and considers, in ments in this increasingly-techni- solicitors A&L Goodbody. scepticism of regulators about the particular, advertising and finan- cal area of the law. G The book is divided into eight inscrutability of ‘Chinese walls’ cial requirements and client asset chapters. The Investment services and suggests buttresses to ensure protection. The author goes on to Niall O’Hanlon is a barrister spe- directive (transposed into Irish that such oriental architecture is not consider the CREST Equity cialising in taxation and chancery law by the Stock Exchange Act, merely ornamental. Chapter 4 con- Settlement System (introduced in matters. He is also a qualified 1995 and the Investment Inter- tains an interesting discussion on Ireland in September 1996) and chartered accountant and has mediaries Act, 1995) is consid- money laundering and draws atten- the Listing directives and rules. recently been appointed editor of ered at length in chapter 2. tion to the wide-ranging application Chapter 8, contributed by Jack the journal Irish business law. Jordan’s Irish company secretarial precedents Paul Egan, Liam Brazil and Patricia Haran Jordan Publishing Limited (second edition), 21 St Thomas Street, Bristol. ISBN: 0-85308-389-4. Price: stg£80.

s Dr Conor Cruise O’Brien Patricia Haran has now reached sec- vate and public records of status procedural requirements that a Amight say from his eyrie in ond-edition status. and decisions to be maintained. company secretary, solicitor, fashionable Howth, a book on com- The courts are increasingly reluc- Through the 15 chapters in this accountant or director will face on pany secretarial precedents is tant to grant a fool’s pardon to those book, the precedents range through an on-going basis are covered here. unlikely to make the rafters ring who use the corporate frame with- re-registration of a multi-member One or two minor criticisms. down in County Roscommon. Yet out bothering with its forms – liter- company as a single-member com- Firstly, Appendix 1 reproduces the such a book has significant and ally and metaphorically. The old pany, allotment of shares, borrow- first schedule (tables A to E) of the immediate relevance – to employ- approach of board meetings and ings and debentures, appointment Companies Act, 1963 and the sec- ers and to the great majority of members’ meetings over breakfast and dismissal of directors, share- ond schedule (forms of memoran- workers in the private sector who (if at all), without proper records, holders’ meetings and required dum of association of a public lim- are employees of companies. Not are increasingly dangerous for com- records and registers. ited company) to the Companies to mention their professional advi- panies, and their advisors. What is a stop notice? If you (Amendment) Act, 1983. This sors. Most or all of the precedents in need reminding, see page 118 for a reproduction is arguably unneces- There are almost 150,000 limit- frequent use are here. They range brief explanation. A precedent sary. Secondly, the ten-page index ed companies in Ireland, and about from an example of completed notice to the server of a stop notice could be more comprehensive. 5,000 public limited companies. ‘Statement of first secretary and is on page 123. There is no mention The authors, who practise law This book will help both categories directors and situation of registered of caselaw or the rules of the supe- with the Dublin firm Mason, to keep within the law – which is office; Declaration of compliance; rior courts. For those, we must go Hayes & Curran, give us a wide being increasingly policed. and Companies capital duty state- to the textbooks or the rules. array of precedents. Whether a The price of not bothering, or of ment’ (Companies Office form A1) This is not a work of profound firm boasts dozens of plcs or getting it wrong, is increasing. on page 13 to ‘Shareholders’ resolu- erudition and scholarship. It does merely a handful of small private Post-McDowell, so is the likeli- tion for disposal of books and not seek to be. Its function is dif- companies among its clients, this hood of detection. Meanwhile, papers after liquidation’ on page ferent and, to the busy practitioner book is highly recommended. G excuses are disappearing. Indeed, 345. and business person, probably Jordan’s Irish secretarial prece- Between conception and demise more valuable. The authors do not Pat Igoe is principal of Dublin- dents by solicitors Paul Egan and of a company, whether private or make the mistake of trying to based solicitors’ firm Patrick Igoe Liam Brazil and chartered secretary public, the law requires varying pri- achieve too much. Yet most of the and Company.

54 LAW SOCIETY GAZETTE NOVEMBER 1999 PROFESSIONAL INFORMATION

Ballyhilloge, in the Electoral Division of LOST LAND Knockantota and Barony of Baretto; Co CERTIFICATES Cork Regd owner: Charles Gallagher, c/o Registration of Title Act, 1964 O’Donnell & Sweeney, Solicitors, ADVERTISING RATES An application has been received from the Dungloe, County Donegal, and 1914 registered owners mentioned in the schedule Columbia Pike-9, Arlington, Virginia Advertising rates in the Professional information section are as follows: hereto for the issue of a land certificate as 22204, USA; Folio: 9590; Lands: stated to have been lost or inadvertently Maghernagran; Area: 85.681 acres; Co • Lost land certificates – £30 plus 21% VAT (£36.30) destroyed. A new certificate will be issued Donegal • Wills – £50 plus 21% VAT (£60.50) unless notification is received in the registry Regd owner: Arthur Sweeney, • Lost title deeds – £50 plus 21% VAT (£60.50) within 28 days from the date of publication of Doaghcrabbin, Porsalon P.O., • Employment miscellaneous – £30 plus 21% VAT (£36.30) this notice that the original certificate is in Letterkenny; Folio: 23849; Lands: existence and in the custody of some person Doaghbeg, Drumnacraig, Drumavohy HIGHLIGHT YOUR ADVERTISEMENT BY PUTTING A BOX AROUND IT – £25 EXTRA other than the registered owner. Any such and Ballybolagan, Murren, Rosskirk & notification should state the grounds on which Killhill, Doaghcrabbin; Co Donegal All advertisements must be paid for prior to publication. Deadline for the certificate is being held. Regd owner: Mary Byrne; Folio: 8994; December Gazette: 19 November 1999. For further information, contact (Register of Titles), Central Office, Land Lands: Townland of Tolka and Barony of Catherine Kearney or Andrea MacDermott on 01 672 4800 Registry, Chancery Street, Dublin Castleknock; Co Dublin (Published 5 November 1999) Regd owner: The County Council of the County of Dublin; Folio: DN7181; Regd owner: Kenneth Potterton and Richard Regd owner: Kathleen Murphy (deceased); Regd owner: James Cooney, Legland, Lands: Townland of Churchtown Lower Cross; Folio: 17130; Lands: Dreenan and Folio: 122R; Lands: Ballyfarnoge and Tunnyduff, Bailieborough, Co Cavan; and Barony of Rathdown; Co Dublin Barony of Carbury; Co Kildare Barony of Ballaghkeen; Co Wexford Folio: 8542; Lands: Legland; Area: 16.588 Regd owner: Pascal A Logan; Folio: 475L; Regd owner: Martin Doyle and Gary Hayes; Regd owner: Anne Walsh; Folio: 19111; acres; Co Cavan Lands: Property known as No 100 Home Folio: 9773; Lands: Ballytarsney and Lands: Ballytegan Park and Barony of Regd owner: David Morrissey, Cuannakeen Farm Road situate on the south side of the Barony of Iverk; Co Kilkenny Gorey; Co Wexford House, Clancy Strand, Limerick; Folio: said road in the parish of Clonturk, Regd owner: Gene Heatherington, 27050; Lands:Townland of Clonmoney District of Drumcondra; Co Dublin Drumrane, Ballinamore, County Leitrim; WILLS West and Barony of Bunratty Lower; Area: Regd owner: John and Dolores McMahon; Folio: 3778F; Lands: Drumraine Glebe; 1a 0r 10p; Co Clare Folio: 108649F; Lands: 23 Seskin View Area: 8.364 hectares; Co Leitrim Regd owner: Roadstone Limited, Naas Road, Road, Parish of Town Tallaght, Dublin Regd owner: Joan Sweeney; Folio: 18144; Markham, Maureen (deceased), late of 59 Dublin 12; Lands: (1) Clonmoney South, 24; Co Dublin Lands: Ballycollin Lower and Barony of Willow Park, Lifford, Ennis, Co Clare. (2) Clonmoney North; (1) Bunratty Lower Regd owner: Padraic Crowley, Furrymelia Ballyboy; Co Offaly Would any person having knowledge of a (2) Bunratty Lower; (1) 58a 3r 26p, 47a 2r East, Barna, County Galway; Folio: Regd owner: John A Malone, Derrynargan, will of the above named deceased who died 00p; Co Clare 16288; Lands: Townland of Forramoyle Boyle, Co Roscommon; Folio: 36971; on 20 June 1999, at the County Hospital, Regd owner: Association Le Patriarche other- East (parts) and Barony of Galway; Co Lands: Townland of USNA and Barony Ennis, Co Clare, please contact M Petty & wise known as Association Dianova; Galway of Boyle; Area: 65a 0r 0p; Co Company, Solicitors, Parliament Street, Folio: 34523F; Lands: Situate in the town- Regd owner: Laurence Leo Prendergast Roscommon Ennistymon, Co Clare, tel: 065 7071445 land of Glebe, Barony of Carbery West (deceased); Folio: 1203; Lands: Regd owner: Mary Lysaght; Folio: 12761; [East Division]; Co Cork Grayrobin and Barony of Bargy; Coane Lands: Loughbrack and Barony of O’Mahony, Richard, late of 173 Pearse Regd owner: Mary and Johanna Hanlon, The & Company, Solicitors, 2nd 71 Hardiman Kilnamanagh Upper; Co Tipperary Road, Ballyphehane, Cork. Would any per- Square, Kilworth, County Cork; Folio: House, Eyre Square, Galway, tel: 091 Regd owner: Margaret Brown (deceased); son having knowledge of a will executed by 16229; Lands: Kilworth; Area: 2a 3r 10p; 566767; Co Galway Folio: 4308F; Lands: Townland of Parish the above named deceased who died on 7 Co Cork Regd owner: Brownes Drinks Limited; of Trinity Without; Co Waterford July 1999, please contact Frank Buttimer & Regd owner: Michael and Irene Henchy; Folio: 1208F; Lands: Townland of Regd owner: John Doyle; Folio: 875 and Company, Solicitors, 19 Washington Street, Folio: 37827F; Lands: Situate in the town- Castleview and Barony of Trughanacmy; 7214F; Lands: Townland of Knockane Cork, tel: 021 277330 (Reference GH) land of Carrigrohane; Co Cork Co Kerry and Barony of Middlethird; Co Regd owner: Colin and Sylvie Sheil; Folio: Regd owner: Mary Galvin (deceased); Folio: Waterford Prendergast, Ellen (deceased), late of 240 835F; Lands: A plot of ground situate in 4111; Lands: Townland of Doonard Regd owner: John Christopher O’Meara, The Sycamores, Kilkenny. Would any person the townland of Ballintubbrid and Barony Upper and Barony of Iraghticonnor; Connaught Street, Athlone, County having knowledge of a will of the above of Barrymore; Co Cork Area: 38a 2r 15p; Co Kerry Westmeath; Folio: 11140; Lands: Creggan named deceased who died on 15 May 1999, Regd owner: Philip White; Folio: 12136; Regd owner: Edmond Walsh; Folio: 28624; Upper; Area: 37.056 acres; Co Westmeath please contact O’Shea Russell, Solicitors, Lands: Situate in part of the lands of Lands: Townland of Knocknagoshel West Regd owner: James Begley; Folio: 20515; Main Street, Graignamanagh, Co Kilkenny, and Barony of Trughenackmy; Area: 2a Lands: Ballygerry and Barony of Forth; tel: 0503 24106, fax: 0503 24687 (Reference 0r 2p; Co Kerry Co Wexford MOS/1093) ENGLISH AGENTS: Agency work undertaken James Hyland for Irish solicitors in TITLE RESEARCH both litigation and and Company non-contentious matters – YOUR PARTNER IN TRACING including legal aid. FORENSIC ACCOUNTANTS MISSING BENEFICIARIES PROBATE & 26/28 South Terrace, Cork SUCCESSION • Free professional assessments Fearon & Co, Phone (021) 319 200 GENEALOGY – • Range of cost structures Fax: (021) 319 300 W ORLDWIDE • Excellent success rate worldwide Solicitors, Dublin Office: • A complete service to the profession Westminster House, Carmichael House 60 Lower Baggot Street For more information or our detailed brochure please call 12 The Broadway, Woking, Dublin 2 Surrey GU21 5AU. Phone: (01) 475 4640 +44 171 549 0900 Charter House, 2 Farringdon Road, London EC1M 3HN England Tel: 0044 1483 726272 Fax: (01) 475 4643 Fax: +44 171 549 0949 DX: 53347 Clerkenwell Fax: 0044 1483 725807 E-mail: [email protected] Email: [email protected] www.title-research.com

NOVEMBER 1999 LAW SOCIETY GAZETTE 55 PROFESSIONAL INFORMATION

Somerville (otherwise Sommerville, other- in our Litigation and Commercial Northern Ireland agents for all contentious cases as preferred. Consultations in Dublin wise Summerville), Sean, late of Conveyancing Departments. Applicants and non-contentious matters. Consultation in or elsewhere if required. Fee sharing envis- Cappaghnagapple, Cloughbrack, Clonbur, must be ambitious and self-motivated. Dublin if required. Fee sharing envisaged. aged. Donnelly Neary & Donnelly, 1 Co Galway. Would any person having Apply in writing enclosing current CV and Offices in Belfast, Newry and Carrickfergus. Downshire Road, Newry, Co Down, tel: 080 knowledge of a will executed by the above quoting reference NTB/SD/01200/34/1 to Contact Norville Connolly, D&E Fisher, 1693 64611, fax: 080 1693 67000. Contact K named deceased who died on or about McIldowies, Solicitors, Lincoln House, Solicitors, 8 Trevor Hill, Newry, tel: 080 J Neary August 25 1999, please contact Kieran 51/53 Victoria Square, Belfast BT1 4DG 1693 61616, fax: 080 1693 67712 Murphy & Company, Solicitors, 9 The Advertiser acts for hotel company com- Crescent, Galway, tel:091 587171 Solicitor required for Donegal Town gener- Personal injury claims, family law, crimi- mencing to build new hotel January 2000, (Reference 346.99/BT) al practice. Newly-qualified considered. nal law and property law in England and expected completion March 2001, needs to Reply to Box No 93 Wales We have specialist departments in acquire one clean publican’s seven-day Sweeney, Norah (deceased), late of 22 each of these areas, and offices in London licence anywhere in Ireland. Replies please Ferguson Road, Drumcondra, Dublin 9 and Solicitor available on ad hoc basis to attend (Wood Green and Camden) and Birmingham. to Box No 96 also of Kyle, Killea, Templemore, County High Court, prepare briefs, consultations, One of our staff is in Ireland for one week in Tipperary. Would anyone having knowledge attend counsel etc, also short term High every month. Legal aid available to clients Galway practice, city or county required. of a will made by the above named deceased Court locums. Reply to Box No 94 or phone that qualify. Contact David Levene & May suit senior practitioner interested in who died on 26 August 1999, please contact 087 2603316 Company, Ashley House, 235-239 High remaining as consultant, or sole practitioner Messrs. O’Keeffe & Lynch, Solicitors, 30 Road, Wood Green, London Nial experience interested in merger. All replies treated in Molesworth Street, Dublin 2 (Reference EA) Experienced conveyancing solicitor (at seeks immediate apprenticeship. Please strict confidence. Reply to Box No 97 least 2-3 years’ pqe) required for small, busy reply to Box No 91 Wall, David W (deceased), late of Glenealy, Dublin 2 practice. Salary in accordance with For sale, ordinary clean seven-day publi- County Wicklow. Would any person having experience. Reply to Box No 95 London solicitors will advise on UK matters can’s licence. Enquiries to John J Gordon & knowledge of a will executed by the above and undertake agency work. All areas. Sons, Solicitors, Ballina, tel: 096 21644, named deceased who died on 19 September Solicitor required for upmarket D2 general Corporate/private clients. Ellis & Fairbairn, (Reference MOB) 1999, please contact R Roper of Orpen practice! Sal £25-30k. NQ – 2yrs’ exp. Tel: 26 Old Brompton Road, South Kensington, Franks, Solicitors, 28/30 Burlington Road, Gina @ Osborne Recruitment 662 8686, fax: London SW7 3DL, tel: 0044 171 589 0141, Churchtown Meeting Place. Anyone acting Dublin 4, tel: 01 6689622, fax: 01 6689004 662 8689, e-mail: [email protected] fax: 0044 171 225 3935 for the estate of Alfred Wormser Harris, or for the successor in title to the said Alfred Wright, Anthony (otherwise known as Legal secretary/PA for lively large firm! Agents, England and Wales We are willing Wormser Harris claiming to have the premis- Tony Wright), late of 16 Harty Place, Lower Generous salary, flexible working hours. to act as agents for Irish solicitors in civil and es in Churchtown under a fee farm grant Clanbrassil Street, Dublin 8 and 61 Cluain URGENT! Tel: Gina @ Osborne criminal litigation. Contact: Olliers, dated 6 February 1852 made between Aoibhinn, Maynooth, County Kildare. Recruitment 662 8686, fax: 662 8689, e- Solicitors, Alderman Downward House, 2/3 Charles Arthur Waker of the one part and Would any person having knowledge of a mail: [email protected] The Birtles, Civic Centre, Wythenshawe, Langrish Prim, Elizabeth Hutton and Daniel will executed by the above named deceased Manchester M22 5RF, tel: 0044 161 437 Hutton of the second part and Olympia who died on 28 September 1999, please con- MISCELLANEOUS 0527, fax: 0044 161 437 3225 Hutton of the third part, the lessor of the tact Murray Flynn, Solicitors, 4 Pembroke Churchtown Meeting House, please contact Road, Dublin 4, tel: 01 6600622 (Reference Northern Ireland solicitors Will advise and Orpen Franks, Solicitors, Ref (80917/NC) ER/MMcL) Northern Ireland solicitors providing an undertake NI-related matters. All areas cor- 28/30 Burlington Road, Dublin 4, solicitors efficient and comprehensive legal service in porate/private. Agency or full referral of for the lessees to buy out the leasehold EMPLOYMENT all contentious/non-contentious matters. Dublin-based consultations and elsewhere. Fee apportionment. ML White, Solicitors, Experienced conveyancing solicitor seeks 43-45 Monaghan Street, Newry, County Peter Fitzpatrick change to part-time work in Dublin South Down, tel: 080 1693 68144, fax: 080 1693 city/county area. Reply to Box 90 60966 LEGAL COSTS ACCOUNTANTS

Engineer (29) LLB 96 and subsequent post- graduate legal qualifications with six years REQUIRE A HIGHLY managerial experience seeks immediate apprenticeship. Please reply to Box No 91 DUBLIN SOLICITORS’ MOTIVATED INDIVIDUAL PRACTICE OFFERS TO TRAIN AS A LEGAL Solicitor required for expanding Mid-West COST ACCOUNTANT legal practice. Commercial, conveyancing AGENCY WORK and litigation experience desirable, but not IN NORTHERN (2/3 YEARS LEGAL EXPERIENCE essential. Apply with CV to Box No 92 IRELAND DESIRABLE) Belfast City Centre. Due to continued * All legal work undertaken £ PLEASE FORWARD CV TO expansion further positions have arisen with- on an agency basis ADDRESS BELOW * All communications to clients £ through instructing solicitors Peter Fitzpatrick * Consultations in Dublin if required Anthony Quann LOST A WILL? Contact: Séamus Connolly Rose Sorohan TRY THE Moran & Ryan, Solicitors, Stephen Fitzpatrick Arran House, REGISTRY OF WILLS 35/36 Arran Quay, Dublin 7. SERVICE Tel: (01) 8725622 Telephone: 873 0688 / 873 0270 / Fax: (01) 8725404 878 2678 / 8782679 / 878 2680 E-mail: [email protected] Tuckey’s House, or Bank Building, Hill Street HALIDAY HOUSE, 8, Tuckey Street, Newry, County Down. 32 ARRAN QUAY, DUBLIN 7. CORK. Tel: (0801693) 65311 Fax: 873 0817 Tel: +353 21 279225 Fax: (0801693) 62096 Email: [email protected] Fax: +353 21 279226 E-mail: [email protected] DX: 1053 Four Courts Dx No: 2534 Cork Wst

56 LAW SOCIETY GAZETTE NOVEMBER 1999