Contents GazetteLawSociety

Regulars Cover Story Sporting chance Sport has moved from muddy playing fields to corporate boardrooms. News 2 8 Teams are brands, fans are consumers and money is the name of the Viewpoint 5 game. This means that sports organisations need lawyers on the team. Barry O’Halloran reports Letters 6

Tech trends 28

Stockwatch 30 No regrets? 12 The theme of the Law Society’s Briefing 31 annual conference in Sorrento was When saying sorry isn’t Council report 31 enough. Conal O’Boyle mops up the tears from the business session Practice notes 32 Legislation update 33 Judgment calls Personal injury Recent EU legislation has overhauled the way judgments 34 14 judgments delivered in one member state are to Firstlaw update 37 be enforced here. TP Kennedy discusses the Eurlegal 43 main changes contained in the new Brussels I regulation People and places 49

Apprentices’ page 51 Friendly persuasion Professional 20 Conciliation offers parties the opportunity to information 53 resolve disputes amicably before formal court proceedings become COVER: The french football team necessary. Denis O’Driscoll outlines celebrating their World Cup victory in 1998. See cover story, page 8 the process that operates in the construction industry

Parallel universe 24 The European Court of Justice has clarified and extended its case law on the repackaging and relabelling of pharmaceutical products, as Dorit McCann explains

Editor: Conal O’Boyle MA. Assistant editor: Garrett O’Boyle. Designer: Nuala Redmond. Editorial secretaries: Catherine Kearney, Nicola Crampton. Advertising: Seán Ó hOisín, 10 Arran Road, Dublin 9, tel: 837 5018, fax: 884 4626, mobile: 086 8117116, e-mail: [email protected]. Printing: Turners Printing Company Ltd, Longford. Editorial Board: Pat Igoe (Chairman), Conal O’Boyle (Secretary), Eamonn Hall, Mary Keane, Ken Murphy, Michael V O’Mahony, Michael Peart, Keith Walsh

The Law Society of Ireland can accept no responsibility for the accuracy of contributed articles or statements appearing in this magazine, and any views or opinions expressed are not necessarily those of the Law Society’s Council, save where otherwise indicated. No responsibility for loss or distress occasioned to any person acting or refraining from acting as a result of the material in this publication can be accepted by the authors, contributors, Editor or publishers. The Editor reserves the right to make publishing decisions on any advertisement or editorial article submitted to this magazine, and to refuse publication or to edit any editorial material as seems appropriate to him. Professional legal advice should always be sought in relation to any specific matter.

Published at Blackhall Place, Dublin 7, tel: 01 672 4800, fax: 01 672 4877. Volume 96, number 5 E-mail: [email protected] Law Society website: www.lawsociety.ie Subscriptions: €57.15

1 Law Society Gazette June 2002 News

COMPENSATION FUND PAYOUTS Fewer solicitors in new Dáil The following claim amounts were admitted by the eltdown’ would be too Compensation Fund Committee ‘Mstrong a word for it, and approved for payment by but the number of solicitors in the Law Society Council at its the Dáil elected on 17 May is meeting in May 2002: Dermot reduced to six from the eight in Kavanagh, 2 Mary Street, New the Dáil which preceded it, Ross, Co Wexford – €2,539.48; writes Ken Murphy. Michael Owens, 5 Lower Main Three outgoing solicitor Street, Dundrum, Dublin 14 – deputies lost their seats. The €958.52; Michael P McMahon, Labour Party finance 5/6 Upper O’Connell Street, spokesman Derek McDowell Dublin 1 – €1,060.23. lost his seat to an independent in Dublin North Central and, Enright: continuing a tradition Power: first time out NEW BOOK ON ABUSE OF also in Dublin, Fine Gael’s PROCESS spokesman on justice Alan constituency – in which, Power in Limerick East. Electronic legal publisher Shatter was squeezed out by a remarkably, three of the five The Law Society has written FirstLaw has just published its candidate from the Green TDs in the last Dáil were to congratulate all the first hardcopy book, Abuse of Party in Dublin South. solicitors – is now reduced to solicitors who were elected to process: unjust and improper Perhaps the most surprising two, with poll-topper and the Dáil and to commiserate conduct of civil litigation in of all the solicitors to lose their Minister for Foreign Affairs with those who were not re- Ireland, written by Desmond seats was another prominent Brian Cowen comfortably elected. Shiels, a solicitor in Dublin law Fine Gael frontbencher, re-elected as expected. firm McCann FitzGerald. Shiels’ Charlie Flanagan, in Laois The two other solicitors LawSociety book costs €50 and claims to Offaly where Tom Parlon of who were ministers in the Gazette be the first published on this the Progressive Democrats outgoing government, namely unique area of law. took a seat. However, there was Dermot Ahern in Louth and Summer good news for Fine Gael in the John O’Donoghue in Kerry publication LAW SCHOOL SWITCHBOARD same constituency in that South, also topped the polls in As usual, the Gazette will be Members should note that the solicitor Olwyn Enright was the course of being returned taking a break over the Law Society’s Law School has elected to the Dáil for the first for Fianna Fáil in their summer, so there will be no its own telephone switchboard. time, replacing her father, the respective constituencies. issue next month. Normal Anyone wishing to contact the Fine Gael veteran Tom The only solicitor, in publication will resume with a Law School should not dial the Enright, who is also a solicitor. addition to Olwyn Enright, joint July/August issue, due Law Society’s main number, Accordingly, the number of elected to the Dáil for the first out the first week in August. but instead call 01 672 4802. solicitors in the Laois Offaly time is Fianna Fáil’s Peter ONE TO WATCH: NEW LEGISLATION EC (Civil and Commercial judgments. There are no rules of articles 34 and 35 (unenforce- Court, although the master of Judgments) Regulations 2002 (SI court as yet dealing with the pro- ability due to conflict with pub- the High Court may make 52/02) cedure, so the regulations are lic policy, breach of the special enforcement orders in respect The regulations implement the reasonably detailed to make up jurisdiction rules for insurance of arrears of maintenance and Brussels I regulation on the recog- for that lack. The regulations are and consumer contracts and lump sums if this will result in nition and enforcement of judg- not always sufficient in them- reserved areas). Only after the more effective enforcement: for ments in civil and commercial selves to master the procedures decision on an enforcement example, if the defendant is matters. The Brussels I regulation but need to be read in conjunc- application is made may either not resident in any District and the implementing regulations tion with the Brussels I party appeal against it, and the Court area but has property in both came into effect on 1 March regulation: only grounds for revocation are the country. Equitable reme- 2002. • Application for an enforcement those specified in articles 34 dies, if needed, are also avail- These regulations are based in order is to be made to the mas- and 35, which are somewhat able within the High Court’s large measure on the Jurisdiction ter of the High Court, accompa- narrower than those set out in jurisdiction of Courts and Enforcement of nied by an address for service, article 27 of the original con- •Regulation 6 deals with mainte- Judgments Act, 1998. The a copy of the judgment and a vention nance orders. An enforcement Brussels I regulation is likewise certificate issued by the origi- • An enforcement order made by order of a maintenance order largely based on the Brussels I nal court in the form prescribed the master has the same force may be made by the District convention 1968. The main differ- in the regulation, annex V. The and effect as though made by Court, even if the amount ences between the Brussels I regulation provides that the the High Court involved exceeds that court’s convention and the new Brussels judgment shall be declared • Maintenance orders are treated jurisdiction. The court must I regulation are described on p14. immediately enforceable on somewhat differently to other take into account any variation The regulations set out the pro- completion of the formalities judgments, and are generally by the member state court, and cedure for the enforcement of and without any review under enforceable by the District its order lapses if the original

2 Law Society Gazette June 2002 News

INTERNATIONAL CRIMINAL Calcutta Run hits the mark COURT COURSE The Irish Centre for Human ver 1,400 runners and Rights, based in NUI Galway, Owalkers, including 700 will be hosting a one-week solicitors and their staff, turned course on the new International out for the fourth annual Criminal Court, which is due to Calcutta Run last month. This come into force on 1 July. The year’s run was the biggest yet, week-long course will run from and the organisers are 20-27 July, and further confident that they will reach information can be found on the their fund-raising target of ICHR’s website at €225,000. The money raised www.nuigalway.ie/humanrights. will be split between GOAL’s project for street children in GALWAY LAWYERS GO ON Calcutta and Fr Peter THE RUN McVerry’s shelters for homeless The Galway Bar Association youths in Dublin. has organised a second charity Running mates: Law Society President Elma Lynch with (from left) run, following the success of The Calcutta Run, which is Ken Doherty, Fr Peter McVerry, and Caroline and Andrea Corr organised by solicitors and last year’s event which raised supported by the Law Society, already, it’s not too late. You Society of Ireland. It is worth £24,000 (€30,4800) for the is now the biggest charity fun can send donations directly to noting that donations of €250 Crumlin Children’s Hospital and run in the country and has the Calcutta Run, c/o the Law or over are tax deductible. Burren Chernobyl Project. This raised some €625,000 for the year’s fun run starts at 10am charities so far. This year’s run on Saturday 6 July from the was officially started by Law New women lawyers’ courthouse in Clifden, ending Society President Elma Lynch, at the Foster Court Hotel in who set the runners on their association formed Galway. way from the society’s Blackhall A new organisation has been formed to promote equality and equal Place headquarters. treatment for women lawyers. The Irish Women Lawyers’ UCG LAW ALUMNI MEET Participants and supporters Association will be a national body made up of solicitors, barristers, Law lecturer and author Tom included musicians Andrea and academics and in-house lawyers. The association hopes it will also O’Malley will speak on Caroline Corr, former snooker be a social and professional contact point for women lawyers. A Reforming the courts system at world champion Ken Doherty steering committee, under the chairmanship of Miriam Reynolds the next gathering of UCG law and representatives of the SC, is currently drafting a constitution for the body. Anyone alumni on Thursday 13 June. Leinster rugby team. interested in finding out more about the association should contact The lecture will be held in the If you have not been Pauline Walley at Room 321, 145-151 Church Street, Dublin 7. Members’ Lounge of the Law approached by a colleague Society and begins at 8pm.

order is revoked. Arrears of failure to do so is an offence for provisional (including protec- provides that domicile ques- maintenance and related costs punishable by a fine of up to tive) measures in accordance tions are to be decided by the may be the subject of an €1,300 with article 31 of the regula- Circuit Court enforcement order. Sums •Regulation 7 deals with interest tion. The High Court may grant • Regulations 13 and 14 provide payable must be paid to the rel- and costs. If a judgment pro- provisional measures if it would for amendment of the evant District Court clerk or a vides for payment of interest, have jurisdiction to do so, if Maintenance Act, 1994 to take public authority, if authorised, the enforcement order should proceedings are planned or account of the substitution of for transmission to the mainte- include it. An enforcement have been commenced in a the Brussels I regulation for the nance creditor. If the money is order may also include reason- member state and the proceed- Brussels convention, and the not paid and the maintenance able costs and interest on the ings are within the scope of the Jurisdiction of Courts and creditor requests this in writing, costs Brussels I regulation. It may Enforcement of Judgments Act, the District Court clerk is •Maintenance is to be paid in refuse to do so if it considers 1998 is declared to be super- required to make an application the currency of the state, con- that it does not have jurisdic- seded by this regulation as for enforcement under section verted from any other currency tion and it therefore would be between the state and member 8 of the Enforcement of Court referred to in the original order inexpedient for it to grant provi- states, except in relation to ter- Orders Act, 1940 or section 10 • Regulation 9 provides that a sional measures. An applica- ritories, notably Denmark, of the Family Law (Maintenance duly authenticated judgment tion to the master of the High which are excluded from the of Spouses and Children) Act, should be accepted without fur- Court may include an applica- regulation (article 68 of the 1976, which provides for ther proof, and a certified tion for provisional measures regulation). G attachment of earnings. The translation by a competent per- • Regulation 11 defines domicile maintenance debtor is obliged son is admissible as evidence for the purposes of the Alma Clissmann is the Law to notify the District Court clerk of the document translated Brussels I regulation and these Society’s parliamentary and law of a change of address, and • Regulation 10 makes provision regulations, and regulation 12 reform executive.

3 Law Society Gazette June 2002

Viewpoint Enemy at the gates?

A quiet revolution is taking place in the European Community courts, where restrictions on the right of private individuals to challenge EU legislation are being eased, writes Conor Quigley

tudents of community law the Court of First Instance which is both definite and Sfor the last four decades have stuck rigidly to this immediate, by restricting his have questioned the correctness approach, and many actions rights or by imposing of the famous Plaumann decision which raised substantive obligations on him. The handed down by the European matters of legality against acts number and the position of Court of Justice in 1963. That of the council and the other persons who are likewise decision strictly limited the commission have been affected by the measure are of scope of locus standi for private dismissed as inadmissible. no relevance in this regard. applicants in judicial review Criticism has mounted, proceedings. Proceedings may however, that recourse to the Back door approach be instituted, pursuant to article national courts is inadequate Although it was stated by the 230 of the EC treaty, against and that legal rights of the European Council not to be Conor Quigley: a fundamental decisions addressed to an individual have been reappraisal has been taking place legally binding, it has individual person. But where the jeopardised. In light of this in Luxemburg generally been thought that it decision is addressed to someone criticism, a fundamental was only a matter of time else, or where the measure reappraisal has been taking of the European convention on before the community courts subject to challenge is a general place in Luxemburg. human rights. More invoked rights under the measure, such as an EC In 1999, the Court of First significantly, perhaps, he also Charter of fundamental rights. regulation, private parties are Instance, in Union de Pequenos mentioned the Charter of Critics of the Nice treaty will permitted the right to challenge Agricultores v Council, following fundamental rights of the doubtless have a field day in only where they can show that its usual practice, dismissed as European Union, which was arguing that the community the measure is of direct and inadmissible an action brought adopted last year. Article 47 of has implemented the charter individual concern. Surmount- against an agricultural the charter states that everyone by the back door. However, in ing this hurdle has proved regulation by an association of whose rights and freedoms the present context, the inordinately difficult. farmers on the ground that guaranteed by the law of the principles of the charter are they were not individually union are violated has the right being applied only to Plaumann’s pickle concerned. On appeal to the to an effective remedy before a community institutions – the In its decision in Plaumann ECJ, a landmark opinion was tribunal. National court ECJ and CFI. This should not ([1963] ECR 95), the ECJ held delivered by Advocate General proceedings did not provide an necessarily be taken as a that a person could be Jacobs in March of this year. effective remedy, principally precedent for wider individually concerned by a AG Jacobs’ opinions are because national courts cannot application of charter rights in measure only if he could generally regarded as among themselves declare EC the national courts. establish that he was affected by the best and are nearly always measures invalid. More immediate problems reason of certain attributes followed by the ECJ. He has may ensue for the CFI itself. It which were peculiar to him or urged the court to abandon its Grasping the nettle already has a backlog of some by reason of circumstances in past restrictive approach and to Taking its cue from AG Jacobs 900 cases and it has a terrible which he was differentiated from declare actions admissible and without waiting for the problem in translating all other people. The effect of where the applicant can show judgment of the ECJ which judgments into all languages, this limitation was that, unless a that, by reason of his particular should be delivered later this including English. Opening litigant could show that he was circumstances, the measure in year, the CFI, delivering the doors to a wider class of part of a closed and identifiable question has, or is liable to judgment on 3 May in Jego applicants can only result in a class of people, general measures have, a substantial adverse Quere v Commission (where significant increase in its were effectively immune from effect on his interests. annulment was sought of an workload. It cannot be long direct challenge in the EC regulation in the fishing before the CFI calls for a community courts. The ECJ Right to a fair trial sector), has firmly grasped the substantial increase in the justified this approach on the In particular, AG Jacobs held nettle. The action has been number of judges. Presumably ground that litigants could that alternative proceedings declared admissible on the it will invoke article 47 of the always challenge the measures in before a national court may not ground that the criterion of charter in its aid, on the national court proceedings, and always provide effective judicial individual concern in the ground that justice deferred is that it was open to the national protection for individuals. In legality of general measures justice denied. G court to refer the issue of justifying this conclusion, he should now apply where the legality to the ECJ in drew upon the rights to a fair applicant can show the Conor Quigley is a barrister accordance with article 234 EC. trial and to an effective remedy measure in question affects his specialising in European Union Over the years, the ECJ and contained in articles 6 and 13 legal position, in a manner law.

5 Law Society Gazette June 2002 Letters Letters

Justice delayed is a waste of everyone’s time

From: Conor O’Toole, Coughlan who had steeled herself for the have an efficient court system & Co, Naas, Co Kildare hearing some months in where cases proceed on the wish to raise a complaint advance. She has suffered very assigned date. I note that the Iabout the inefficiency of our serious and life-long injuries, chief justice is promoting a court system. and has waited five years from root-and-branch reform of the I had a medical negligence the time of her operation for courts, and I would hope that case which had been specially the case to come to court. Both this flaw is properly addressed. fixed for hearing in the High she and her family have There is not much point in Court very recently. The suffered enormous strain as a increasing the jurisdiction of application to list the case had result of the proceedings and the courts if there are no been made several months were looking forward to having judges in place to deal with the earlier, and the court was the matter disposed of once and case load. Much has been said advised that expert witnesses for all and the opportunity of about legal costs and their would travel from the UK and being able to get on with their inflationary effect on insurance that the case would take a week lives afterwards. A considerable they have a case-management premiums, but surely an or more. amount of effort had been system which includes a meeting efficient system would We spent all day Monday expended by both sides in of the experts on both sides to contribute greatly to reducing with an expert witness and our preparing for the hearing date, agree as many issues as possible those costs and eliminating the client in a consultation, as the and a large number of witnesses in advance. This meeting also needless time wasted watching case was due to go ahead the had adjusted their work has the effect of encouraging the clock in the Round Hall. following day. We attended the schedules to be available to settlements and, once it takes Until this defect is cured, High Court on the Tuesday and attend to give evidence. I also place, very few cases actually for my client and many others, were advised that there were no had a witness travel from proceed to hearing. justice delayed continues to be judges available; we waited England, who wasted three It is surely not impossible to justice denied. the entire day in the vain hope days in Dublin at considerable that a judge might be assigned expense waiting for a case that to the case. This did not never proceeded. DUMB AND DUMBER happen. We attended the It now seems to me that following day and were again having a case specially fixed and From: Mark Fitzgerald, Edward cumin’. When he clicked the advised that there were no even first in the list, as this case Fitzgerald and Son, Ballinrobe, ‘translate’ button to get it in judges available. There were was, is of no value at all. This Co Mayo English, to his surprise, the only three possible judges who inefficiency of our system he following is an excerpt velouté part of the recipe was could ultimately take the case – causes unnecessary hardship on Tfrom a recent job application entitled ‘velvety lawyers with all of these were involved in the parties and adds received by this office: ‘I am orange and cumin’, and the long hearings and we would considerably to the cost of forwarding my CV to you if in the ingredients given were ‘500 ml have to wait until one of them running an action, which is future you have a secretarial/ of orange juice, two quite ripe became available, which would expensive to begin with. It was administration vacancy that you lawyers, one c with tea of not be until the following week embarrassing to have to explain may consider me. I hope my CV powder poultry bubble, one c at the earliest. This we could the delay to our English is surplus to your requirements’. with table of ground cumin’. not do, as the availability of witness, who pointedly referred If you’d like the full recipe, expert witnesses on both sides to the effectiveness of the From: Simon MacMahon BL, just search Google for the was limited and the case had English system. He advised that Tramore, Co Waterford phrase ‘duo de potages’ and hit been specially fixed for a date to the English courts sit Monday ranslation software never ‘translate’. Oh, and when you suit all of them. It was necessary to Friday from 10.30am to Tceases to surprise. When a start cooking, don’t forget to to put the case back for six 4.30pm and that the parties are gourmet Internet browser went ‘remove the bark and the core weeks, and we were advised that specifically assigned not only a to search for a recipe for of lawyers’. the court would try to allocate a date for hearing but a named Vichyssoise recently, he was judge to hear it. judge well in advance and the furnished with ‘Vichyssoise et Mark Fitzgerald wins the bottle This experience caused case proceeds on the assigned velouté d’avocats à l’orange et of champagne this month. enormous distress to my client, date. He also explained that

6 Law Society Gazette June 2002 Letters Unexploited potential in Competition Acts From: Leesha O’Driscoll BL, Competition Acts, 1991-1996 actions by parties to anti- there is no reason why the Luxemburg should be underlined. Section competitive agreements to same considerations of public read with interest the Eurlegal 6 provides for a right of action recover damages resulting from interest should not operate in Ibriefing in the April issue of for damages for ‘any person same. In refusing to allow the damages actions under section the Gazette on case C-453/99 who is aggrieved’ by an doctrine of in pari delicto to 6, especially where the parties Courage v Crehan and the agreement which is prohibited operate as a bar to such are not in pari delicto. discussion of its implications in under sections 4 or 5. While it actions, the Supreme Court in Section 6 actions are rare in terms of Irish law. may well be that the person Perma Life Mufflers (392 US Irish law and, although the As your readers will have envisaged in such instances is 134 [1968]) was persuaded by unequal bargaining positions of noted, the Court of Appeal of usually the aggrieved the public interest in the parties can act as a England and Wales referred to consumer, an action by a party encouraging private actions in disincentive to taking action the Court of Justice questions to an anti-competitive competition law which provide against one’s stronger business concerning the compatibility agreement is not precluded by an additional layer of policing partners, the same inequality with community law of a rule the wording of the section. In of anti-competitive activity. could facilitate a successful of national law which precludes this context, it is worth While the question as to the rebuttal of the in pari delicto a person, party to an anti- considering the influence of position of a party who has defence. In this light, the dual competitive agreement within US law on the Irish Competition completely and voluntarily influences of US law and the the meaning of article 81 EC, Act. The US equivalent of participated in an anti- latest edicts of the Court of from recovering damages for section 6 is to be found in competitive agreement has yet Justice in Courage v Crehan loss caused by the performance section 4 of the Clayton Act and to be decided (see Bateman reveal the hitherto unexploited of the agreement. has been interpreted to allow Eichler v Berner [472 US 299]), potential of the section. The court responded that such a rule was inconsistent with community law where the party is precluded from Putting yourself on the map obtaining damages on the sole From: Anthony F Sheil, Sheil or otherwise, to purchase our ground of participation in the Solicitors, Dublin colleague’s excellent piece of agreement. It added that the t was with great interest that work. Many years ago it was rule would not infringe II saw the photograph in the mooted by the DSBA that community law where a last issue (page 50) of the new something of that order should significant amount of District Court map prepared be produced – but there are responsibility for the distortion by our colleague Desmond over 300 statutory instruments of competition is attributable to Fitzgerald. Des Fitzgerald and his map since 1961 affecting the various the party claiming damages. With undue haste, I sent District Courts (and I have no As regards the significance of him €70 and received his was only the second one to idea how many involve the the judgment in Ireland, I masterpiece! I actually rang have bought it. North). believe the importance of him to congratulate him on the I would urge all colleagues, Besides its usefulness, it section 6 of the Irish production, to be told that I whether litigation is their forte looks very well on the wall. Charitable thoughts An ironic mnemonic From: Orla Barry Murphy, acting There are two amendments. From: Desmond Rooney, Arthur considerable detail elicited secretary, Commissioners of The first is an amendment to O’Hagan Solicitors, Dublin from the pre-contract Charitable Donations and section 29 (as amended by onveyancing practitioners questionnaire), I find it useful Bequests for Ireland section 8 of the Charities Act, Care all too well aware of to recap on the following non- should be obliged if you 1973 and section 52 of the the banana skins lurking in title fundamentals: Iwould include a note in the Courts and Court Officers Act, even the most ‘straightforward’ S: Survey Gazette in relation to the recent 1995). The effect is to remove purchase. L: Loan Social Welfare (Miscellaneous the present monetary limit of Having advised a client on I: Insurance Provisions) Bill, 2002, which was £250,000 on the power of the issues arising from the contract P: Planning passed on 20 March. The bill board to frame schemes (and more recently, the S: Stamp duty (and costs). contains two provisions applying property cy-pres. extending the powers of the The new bill also amends SOLICITORS’HELPLINE Commissioners of Charitable section 34 of the Charities Act, The Solicitors’ Helpline is available to assist every member of the profession with any problem, whether personal or professional. Donations and Bequests for 1961 (as amended by section The service is completely confidential and totally independent of the Law Society. Ireland, and perhaps this could 11 of the Charities Act, 1973) If you require advice for any reason, phone: 01 284 8484 be brought to the attention of by extending the definition of a practitioners. disposition to include a lease. 01 284 8484

7 Law Society Gazette June 2002 Cover story

As this month’s World Cup will show once again, sport has moved from muddy playing fields to corporate SS boardrooms. Teams are brands, fans are consumer communities and the name of the game is money. But this change means that sports organisations need lawyers on the team. Barry O’Halloran reports

• Sport has evolved into a global industry • Lawyers are playing a bigger role than ever before • Financial crisis facing European football MAIN POINTS

8 Law Society Gazette June 2002 Cover story PORTINGPORTING chancechance nless you’ve been on a different planet example, MacNeill points out that publicly-quoted for the last ten years, it must be clear at football clubs like Man U and Celtic need advice on this stage that soccer is no longer about listing and City of London regulations. The Bosman going out, giving 110% and, more ruling, handed down by the European Court of U importantly, giving your fans Justice in 1995, means that all sporting organisations something to cheer about from the terraces. involved in hiring athletes from other EU countries It’s not about football and tribal loyalties any need to be aware of the freedom of movement issues longer; it’s a business. Just ask Eoin MacNeill of raised by that landmark case. A&L Goodbody, who heads up the law firm’s sports ‘There is also the franchise area’, he says. ‘Celtic division. ‘Manchester United no longer sees itself as and Rangers are planning to leave the Scottish a club; it sees itself as a global brand’, he says. The league and move to the English Premiership. That minute you enter Old Trafford’s turnstiles or buy will probably require the consent of two leagues. A one of its ubiquitous items of merchandise, you are a similar issue could have been raised when customer. Wimbledon threatened to move to this country. Historically, if sports made money at all, it was Either the Football Association of Ireland (FAI) or from takings at the gate, with (if teams were lucky) the English Premiership could have objected. In that some ad hoc sponsorship from local businesses. Now situation, Wimbledon wanted to stay in the same they rely on a variety of sources, which could be league but wanted to relocate’. anything from corporate hospitality to TV rights. The major teams could have five or six revenue Put them under pressure centres. The list goes on to include intellectual property MacNeill says that this approach to sport was (logos, merchandise and websites), property, born in the United States, where enterprising financing and refinancing, and basically the whole baseball and American football clubs realised that gamut of legal specialisations. ‘You are talking about once fans walked into their grounds they had a large a huge industry’, says MacNeill. ‘When you get to number of captive consumers who could be sold that level, it’s proper that you carry on any activity anything from hotdogs to branded merchandise. within the regulations. Sports organisations need Football is the most obvious example of sport legal advice across the board. We regard it as an mixing it up with Mammon. But sport is big business industry focus rather than a specialised area’. even in this country, where the amateur-based GAA MacNeill’s own background is litigation. He and still commands the loyalty of vast swathes of the his colleagues in the Dublin firm advise the FAI, population. And if sports people are business people, Irish Open sponsor Murphy’s Brewery and the they are going to need professional advisors such as International Rugby Board (which is headquartered solicitors. in Dublin), among others. The field is getting increasingly sophisticated. For The sports law business in this country is largely

9 Law Society Gazette June 2002 Cover story focused on organisations, teams and sponsorship. He points to Manchester United’s recent switch The ‘private client’ end of it, that is, advising from kit supplier Umbro to Nike. Umbro is a British individual sportsmen and women is small – although brand, but Nike has a global presence, and the club the role played by Roy Keane’s solicitor, Michael wants to use this to grow its customer/fan base. Kennedy, in the recent pre-World Cup crisis shows Similarly, it is looking to main sponsor Vodafone to that this role can also be pivotal. MacNeill reckons use its technology to spread the gospel and generate the potential market does not stretch beyond much new revenue streams. more than a dozen internationally-recognised United’s chief executive puts it bluntly: ‘We are golfers, footballers and athletes. looking at ways of getting Old Trafford out there, as Sponsorship is the most significant area. Dublin- opposed to putting a few t-shirts on the wall. It’s based Amárach Consulting calculates that the Irish about a community build. It’s about building a sponsorship market is worth around €76 million (or supporter base that is connected and transactional’. £50 million when it published its report last year). Not a mention of four-four-two there. Up to 80% of this could be eaten up by sports Closer to home, Guinness has become almost events, according to some estimates. indelibly associated with hurling. Its marketing clout Funding sports events, teams and competitors in has helped to maintain the game’s high profile and this way has changed since the days when the local kept young people interested, despite the challenge publican gave a few bob to the senior hurling team. posed by international sports. At the same time, it ‘What we’ve seen in the market has been very much has even spread the gospel of our national game an evolution’, says MacNeill. ‘For years it used to be beyond these shores, at least to a certain extent. semi-altruistic and ad hoc – a local businessman did it out of interest or love of sport. Now there has to Show me the money be a much more tangible benefit for both sides. The There are a number of basic elements in every relationship is much more of a partnership’. sponsorship contract. The first is payment. This is straightforward, and the money is generally payable over the life of the contract. MacNeill advises that THE CHANGING FACE OF FOOTBALL the rights owner (that is, the team, person or Jean Marc Bosman never looked like he was going to leave an enduring mark on association) should try to have the payments loaded the beautiful game. According to University College Cork lecturer in European and towards the beginning of the contract. Next is the commercial law (and football fan) Declan Walsh, the Belgian was a ‘journeyman licence, which basically allows the sponsor to footballer’. promote the association. Current examples of this But in the early 1990s he started a process that was not only to leave a legacy are World Cup logos on a range of consumer for the game’s giants, but for any EU citizen seeking to enforce their right to earn products, or the Guinness All-Ireland Senior a living in any member state of their choosing. Bosman’s contract with his Belgian Hurling Championship. club, Liege, was up and he was due to transfer to US Dunkerque, a second Exclusivity, which to a certain extent governs the division French club. Under UEFA-FIFA rules, Liege was entitled to a transfer fee deal’s value, can cause tension. From the sponsors’ from Dunkerque. However, the asking price was too much; Dunkerque wanted point of view, exclusivity or a small number of him, but not that badly. At the same time, Bosman wanted to move for the sake backers offers the best value, as this gives the best of his career. So he sought a declaration from the Belgian courts that the transfer possible exposure to the brand. One thing they do fee rule breached his right to freedom of movement under the Treaty of Rome. not want is to have any competitors involved either The national court referred the matter to the European Court of Justice (ECJ). directly or indirectly. They will require a clause After a long drawn-out battle with Liege, UEFA and FIFA, the court found in his guaranteeing total or product category exclusivity. favour and handed down a landmark ruling in 1995. Even with safeguards, sponsors may not be safe Walsh states that the court held that Bosman was a worker within the meaning from ambush marketing, where a brand uses some of the treaty, as he played football for remuneration under the direction of another. kind of leverage to piggyback on an event sponsored As his contract was up, his club’s attempt to seek payment from Dunkerque was by a competitor. MacNeill points out that a recent found to be an interference with his right to freedom of movement, as was the example of this was the Pepsi ad featuring David federation rule requiring these payments to be made. Beckham and some sumo wrestlers. The court also ruled that UEFA’s rule banning clubs playing in the Champions’ Coke is the World Cup soft drink sponsor; League from having more than three foreign players was anti-competitive. This Beckham has a relationship with Pepsi and is the opened the door to the situation we have today where, for example, around 60% England captain; sumo wrestlers come from Japan, of all players in the English Premier League are from outside Britain. one of the tournament’s venues. Pepsi has no direct The doomsayers predicted that the transfer market would collapse as a result involvement with the competition and the ad did not of Bosman. Teams would simply sit back and wait until a desired player’s contract feature any World Cup logo, nor any mention of the was up. However, the pessimists reckoned without the market. tournament. But nonetheless, the association was The ECJ handed down its ruling in December 1995. The following summer, Alan clear, even if the law was not broken. Shearer transferred to Newcastle United from Blackburn Rovers for a record stg£15 million (€24 million). In 2001, French international Zinedine Zidane set a Keeping up appearances new record when he moved from Juventus to Real Madrid for €73.1 million. The Another problematic area can be the so-called average transfer fee between Europe’s top football clubs in 1996 was €15.36 ‘morality clause’. This means that neither party can do million; last year it was €52.32 million – an increase of 340% over five years. anything to bring the other into disrepute. That can be very hard to define. During the pre-World Cup

10 Law Society Gazette June 2002 Cover story

Keane crisis, there was speculation over the future of On top of these, there are warranties such as his endorsement deal with 7-Up. Similarly, rights those found in most commercial contracts. They will owners can be equally jealous of their image, and may generally include warranties that the parties have the reserve the right to scrutinise the sponsor’s activities. authority to enter into the agreement and to undertake whatever commitments are involved, as WHO ATE ALL THE PIES? well as a flexibility clause. Vast transfer fees combined with high salaries have driven football’s costs through Individual team members are generally required the roof. So where have they been getting all the money? In the mid 1990s, clubs to wear branded strips, but because footballers like Manchester United and Newcastle went to the City of London and to their loyal traditionally brought their own boots, MacNeill supporters, and raised funds from the markets like any other business. The only points out that their contracts do not require them one that’s repaid investor loyalty is Man U, and this rests partly on the global to wear specific kinds of footwear. Premiership appeal of its brand and not just at the valuable feet of its footballers. players can make their own deals with At the same time, many European clubs are facing massive debts. Recently, manufacturers. Real Madrid was forced to sell its training ground for office development to pay off With the exception of Formula One, its €272 million debts. Another Spanish club, Deportivo, has debts of €128 sportspeople who wear headgear are less million. At the end of June 2001, all 18 clubs in Italy’s Serie A recorded an recognisable, and so less attractive to sponsors. aggregate debt of €720 million. There are fears that Fiorentina will not survive its This is one of the reasons why a British national current crisis. The club has been having difficulty paying its players. hunt jockeys’ campaign to get sponsorship failed. One answer to this cash crisis is obvious – sell off assets to pay the debts. But American footballers are advised to take off their the clubs’ best assets are their players. If they go down this path, the transfer helmets when celebrating a touch down, or at any market will collapse. The other is to cut costs, lay off players and reduce salaries point where they are likely to be filmed, to get over in the long term, or link high fees with club and personal performance. Arsenal this problem. manager Arsene Wenger has already suggested that clubs will go down this route. So, when you settle down on your couch or in Either way, it seems as if Bosman’s legacy is double edged. your local to watch the boys in green, remember As for the man himself, his case took so long that his career had reached its that you are part of a worldwide community of natural end before the judgment. But he was not forgotten by the players who have consumers, ideally placed to have every conceivable benefited over the last seven years. Two years ago, Europe’s top players, including brand flogged to you. And you thought it was just a Zidane, held a benefit match for him in Barcelona. game of two halves. G Unfortunately, in a stadium with a capacity of 95,000, just 10,000 fans turned up to pay tribute to the man who brought the free market to football. Barry O’Halloran is a staff reporter with Business & Finance magazine. leaders… in the quest for excellence…

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11 Law Society Gazette June 2002 Annual conference REG The theme of this year’s annual conference in Sorrento was When saying sorry isn’t enough. Conal O’Boyle mops up the tears from the business session

ove means never having to say And in the lexicon of love, there is one phrase • Insurers’ you’re sorry’ romantics used to guaranteed to break off the engagement between perspective on bleat, but the hard-nosed realists in insurance company and solicitor. That phrase is PII claimsNothe insurance business went one step ‘statute barred’. Worse than adultery, more • Origins of the ‘L further at the Law Society’s recent unforgivable than insulting your mother-in-law, SMDF conference in Sorrento. The theme of the business ‘statute barred’ will leave you out on the street with • Malpractice session was When saying sorry isn’t enough, and Cyril your suitcase in your hand. Forbes warned the prevention Forbes of insurers Jardine Lloyd Thompson Ireland audience: ‘You may rest assured that insurers will checklist had some frank advice for solicitors who find hammer any solicitor notifying a statute-barred

MAIN POINTS themselves on the wrong end of a professional incident, as they are seen as arising only from gross indemnity insurance claim. negligence or carelessness. Insurers here and ‘Admit the mistake, but not the guilt’, he told overseas are taking a very strong line in doubling them. ‘Agree to fix the problem but never seek to excesses and premiums, while also imposing blame’. It was just business, he said, not personal. expensive risk management audits of the firms The proper course of action was to notify the involved’. relevant insurer immediately if a potential problem occurred. ‘Despite a perception to the contrary’, said Dancing at the crossroads Forbes, ‘insurers are much happier to be advised of Earlier, Ennis solicitor Michael P Houlihan had all incidents as they arise, to open many files and charted the growing love affair between the legal then to close them as the incidents go away’. profession and the Solicitors’ Mutual Defence Fund. There was also a very practical reason for notifying In the Ireland that existed before the Late Late Show, insurers early, he added, because any fees incurred there was no sex and very little professional without the insurance company’s prior consent might indemnity insurance. Solicitors danced with comely not be recoverable. ‘In my experience’, said Forbes, maidens at the crossroads and bluffed their way ‘clients are not penalised for notifying incidents that through the insurance market. By the 1970s, do not materialise. I have seen penalties imposed innocence was lost and premiums were skyrocketing. where the insured has failed to notify incidents which Many solicitors had to go to England to get relief, subsequently develop into claims. Insurers view these and eventually most PII found its way to London situations as either deliberate non-disclosure or and the various Lloyds syndicates. evidence of professional incompetence’. According to Houlihan, who was instrumental in

President Elma Lynch with the speakers at this year’s annual conference (from left): Michael P Houlihan, Cyril Forbes, EU Commissioner David Byrne and CCBE president John Fish

12 Law Society Gazette June 2002 Annual conference RETS? THE MALPRACTICE PREVENTION CHECKLIST • Do not undertake any task you are not competent to handle • Be sure to preserve your client’s confidence •Avoid representing parties with conflicting interests • Ensure that you have a management system that will require • Obtain a clear understanding of the issues and outline in writing to compliance with all deadlines, statutory limitations, court listings, your client exactly what work you are undertaking on his behalf trial dates, motion dates and adjournments • Explain to your client the basis of your fees and, where possible, • If you obtain oral instructions of any importance from your client, agree a charge and confirm this in writing, complying with statutory confirm them in writing obligations • Do not overstate the strength of your client’s case • Maintain proper attendance records and, if possible, time records • If you perceive a breakdown in the relationship with your client, for all services rendered discuss it with him and resolve the differences • Do not ignore your client. If there are long periods of delay, explain •Discuss with your client any referral to counsel or to specialists the reason for inactivity. Send copies of pleadings and self- and obtain his consent and, where possible, nominations explanatory letters. Return telephone calls • If there is a tender/lodgment in any case, because of its complexity •Give your client something to do you should confirm the lodgment procedure and its effect in writing • Keep your client advised of any serious problems that have to your client developed. Do not minimise risks that may be involved in any legal •Avoid criticising your colleagues or opposing lawyers unless proceedings. Where there are alternative strategies that involve absolutely essential risks, inform your client and give your recommendation. Let him •You should not reveal that you have PII cover without first obtaining choose the strategy to be pursued the approval of your insurers and reporting any circumstances that •Take no material action (including settling a case or agreeing to a may give rise to a claim judgment) which may prejudice your client without his expressed • Do not attempt to defend your own malpractice claims, otherwise consent you will have a you-know-what for a client.

previously insurer-driven’. He pointed out that times had changed and that every profession had become more accountable. ‘If you make a mistake today, you can expect to pay for it, and therefore you must be insured for the risk’. Houlihan’s figures seemed to suggest that when it came to insurance claims, women were winning the battle of the sexes. Female lawyers, he said, had one- third fewer claims than their male counterparts. And among practitioners, criminal lawyers had the fewest number of claims against them. Delegates at the Saturday morning business session After providing an extremely useful malpractice checklist for delegates (see panel), Houlihan ended compiling the first statistics on the relationship on this reassuring note: ‘In my view, you will be a between claims and PII costs, the SMDF sprang very lucky practitioner if you are not sued in the from an era when the pricing of the premium did course of your professional life’. not reflect the risk involved. ‘We could see there was The other speakers at the business session were no voodoo mathematics involved’, he said. ‘There CCBE president John Fish, who discussed the work was a direct relationship between premiums and of the CCBE (the European association of law claims, and the statistical information we had societies and bar associations) and the main items on unearthed disclosed that’. And so the Solicitors’ its agenda, including developments in European Mutual Defence Fund was born. By 1997, PII was company law and the proposed international mandatory for practitioners. criminal court, and European Commissioner David ‘We are not, and do not seek to be, a monopoly’, Byrne, who described the commission’s attempts to said Houlihan, ‘but we have been a huge influence resolve the differing approaches to contract law for the good of the profession in a market which was throughout the European Union. G

13 Law Society Gazette June 2002 European law

Recent European legislation has overhauled the way civil and commercial judgments delivered in one EU state are to be enforced here. TP Kennedy explains the main changes contained in the new Brussels I regulation

n 22 December 2001, the European convention will apply between all EU member states Council agreed a new regulation, the and Switzerland, Iceland and Norway. Brussels I regulation (44/2001, OJL The regulation very largely corresponds to the 12/1, 16 January 2001), to replace the existing convention. The amendments have been O Brussels convention on jurisdiction and confined to those regarded as essential. In drafting enforcement of judgments. This is part of a package of the regulation, the commission emphasised measures in the area of justice and home affairs. The continuity with the rules in the convention, which Brussels convention had been undergoing a process of had operated successfully since 1968, and the review for the last few years. interpretative case law. The major changes are On 28 May 1999, the commission put forward a described below. fresh proposal for the replacement of the convention with a regulation to bring the content of the former General jurisdictional rules convention into the main body of EC law. The general jurisdictional rule in the convention is ★Previously, the European Court of Justice was given that a defendant is to be sued in his own domicile. In the power to rule on questions of interpretation certain cases, such as contract and tort, a plaintiff is under a protocol annexed to the convention – the given a choice of an alternative forum. This remains Luxemburg protocol. This is no longer required for the case in the regulation. the regulation, as Irish courts are now able to make preliminary references to the ECJ under article 234 Domicile of the EC treaty (ex-article 177). The regulation changes the concept of domicile of The regulation came into force on 1 March 2002. companies. Article 53 of the convention currently As a regulation, it does not require implementing provides that a company is domiciled in the place of legislation, though regulations have been made by its seat. The determination of the seat is left to the statutory instrument 52/2002 to set out the private international law of the forum state. The procedures necessary in Ireland for the successful regulation provides that a company is domiciled working of the regulation (see One to watch on p2). either where it has its statutory seat, its central Having these rules in the form of a regulation will administration or where it has its principal place of also make future revisions much easier. Under the business. The regulation gives an autonomous Brussels convention, every amendment to it or definition of the seat of a legal person: ‘the accession of a new state required a separate treaty, registered office or, where there is no such office … which had to be implemented by its signatories. the place of incorporation or, where there is no such Judgment c

The legal basis for the regulation is title IV of the place … the place under the law of which the EC treaty. Measures adopted under this title are not formation took place’. It leaves questions of the applicable in Denmark, the UK or Ireland. At a validity, nullity and dissolution of legal persons and council meeting on 12 March 1999, the UK and decisions of their managing bodies to national law. Ireland indicated that they would ‘opt in’ for this and other proposals on judicial co-operation. Contract Denmark has not opted in, so we have the somewhat Article 5(1) of the convention provides that in ludicrous situation that the regulation will apply matters relating to a contract, a plaintiff can sue the between 14 member states, the convention will apply defendant in the place of performance of the between those states and Denmark and the Lugano obligation in question or the domicile of the

14 Law Society Gazette June 2002 European law

defendant. This is the most heavily litigated provision of the convention and has given rise to a • The Brussels I great deal of uncertainty. Some commentators had regulation advocated its complete deletion on the basis that it explained had not been successful. • Taking The regulation contains a provision on contract, evidence which retains most of the wording of article 5(1). abroad However, the regulation now contains a new • Parallel provision for contracts for the sale of goods and the developments provision of services. For such contracts, the in EU law

regulation defines the place of performance of the MAIN POINTS obligation in question. For the sale of goods, this will be the place where the goods were or should have been delivered. In the case of the provision of services, it will be the place where the contract provided that the services were or should have been provided.

Tor t Article 5(3) of the convention provides a choice of forum for a plaintiff in tort cases. It provides that, in tortious cases, jurisdiction is given to the court of the place where the harmful event occurred or the domicile of the defendant. The regulation provides that it will cover cases not only where the harmful event occurred but also those where it may occur.

Multiple defendants Article 6 of the convention allows a plaintiff to sue multiple defendants in the domestic jurisdiction of any one of them. alls

15 Law Society Gazette June 2002 European law

the consumer, and required him to take the necessary steps to conclude the contract in his state. The new provision is designed to take into account consumer contracts concluded through an interactive website accessible in the state of the consumer’s domicile. Knowledge of goods or services acquired by a consumer through a passive website accessible in his home state will not be sufficient. The removal of the requirement that the consumer take the necessary steps to conclude the contract in his home state is also meant to take The European Court of Justice in Luxemburg electronic commerce into account. In the case of contracts concluded through an interactive website, it may be very difficult to determine where the steps The regulation makes a minor change in this necessary to conclude the contract were taken. provision. It adds a new requirement that defendants Great concern has been expressed about this can be sued in the domicile of any one of them, article by the UK, by companies involved in ‘provided that the claims are so closely connected electronic commerce and by UNICE (the European that it is expedient to hear and determine them employers’ federation). They argued that they will together to avoid the risk of irreconcilable be exposed to potential litigation in each member judgments resulting from separate proceedings’. state and that the only alternative to this is to specify This follows a consistent interpretation of the that their products or services are not intended for original article from case 198/87 Kalfelis v Schröder consumers domiciled in certain member states. This ‘The regulation ([1988] ECR 5565). would result in partitioning markets in a manner makes the inconsistent with other EU legislation on electronic Insurance contracts commerce. Commentators further argued that this recognition and The scope of the provisions on insurance has been provision would have a disastrous effect on start-up enforcement considerably broadened. Article 9 currently allows a e-commerce businesses that would be unaware of the policyholder to sue an insurance company in the risks to which they were exposing themselves. mechanisms for courts of the policyholder’s domicile. The rationale Consumer associations argued that this provision foreign behind this is to protect the weaker party. The right was a necessity to give added confidence to to sue an insurance company in one’s own domicile consumers to purchase from websites. The judgments is now extended to the insured person and the commission held a hearing of interested parties in faster’ beneficiary when they are the applicants. This 1999 but did not propose any amendments. The extension is consistent with the purpose of these European Parliament had recommended delaying rules. adoption of the regulation until a full package of electronic commerce legislation was in place in the Consumer contracts EU. However, the council decided to proceed. The scope of the consumer contract provision has The result is that the provision is ambiguous. It is also been extended to offer consumers better unclear as to what ‘directing’ activities to a state will protection. The convention currently provides that a mean in practice. Earlier drafts of the regulation had consumer can sue in his own domicile in respect of a included a recital which stated that a company contract for the sale of goods on instalment credit should be considered as ‘directing’ its activities to terms or in respect of a credit agreement made to any member state in which its website was finance the sale of goods. There is then a residual accessible. This recital was removed at the request of category for contracts for the sale of goods or supply the parliament and thus there is no guidance in the of services where the conclusion of the contract was regulation as to its meaning. Practically, a company preceded by a specific invitation addressed to the with a website written in German with prices in consumer or advertising in his state and the marks is directing its activities at Germany. consumer took in his state the steps necessary to However, what happens if a consumer in Belgium conclude the contract. The new provision is broader. orders something from the German site and the It provides a residual category that: order is fulfilled? The UK Department of Trade and ‘In all other cases, the contract has been concluded with a Industry has taken the view that a statement on a person who pursues commercial or professional activities in website of the states being targeted may prevent the the member state of the consumer’s domicile or, by any site as being regarded as directed at all member means, directs such activities to that member state or to states. This will require a decision of the ECJ for several countries including that member state, and the final clarification. contract falls within the scope of such activities’. There is of course a third view, which I will The original article was confined to contracts for mention for sake of completeness. This is to the the sale of goods or supply of services; there is no effect that the new article 15 does not make a radical such limitation in the new provision. It also required change. The contractual provision now provides an invitation to purchase or advertising addressed to that, for contracts for the sale of goods, the correct

16 Law Society Gazette June 2002 European law OTHER DEVELOPMENTS IN THE EU here have been a number of other transmitted through these agencies and are acknowledge the request and is given 90 Tdevelopments parallel to this regulation. to be accompanied by a standard form set days to execute the request. Article 10 The EU has been introducing a range of out in the annex to the regulation. No other provides that a videoconference or measures in the area of co-operation in civil legal formalities are necessary. teleconference can be requested. There are and judicial matters. In family law cases, the Service by the receiving agency is to take a number of grounds for refusing a request: Brussels II regulation (council regulation (EC) place as soon as possible. The document to where a person claims the right to refuse to no 1347/2000) sets out similar rules on be served must be in the language of the give evidence or is prohibited from doing so jurisdiction and the recognition and place of service or in a language the by the law of the requested state or where enforcement of judgments in matrimonial addressee knows. The receiving agency is to the request falls outside the scope of the matters and in matters of parental confirm receipt of the documents to the regulation. responsibility for children of both spouses. A transmitting agency. It will serve the Article 17 allows a court in one state to new Insolvency★ regulation (1346/2000) document itself or arrange to have it served. take evidence directly in another state on likewise sets out jurisdictional rules in When served, a standard certificate of request to the central body in the state transnational insolvency cases. Neither of completion (in a form set out in an annex to concerned. The parties to the proceedings these regulations applies to Denmark. the★ regulation) is sent to the transmitting may be requested to bear the fees of Negotiations are continuing over the agency. The applicant bears the cost of a experts and interpreters and other specified recasting of the Rome convention on choice summons server or the use of a particular costs. of law in contractual matters in the form of a method of service. To ensure proper implementation of the regulation. The regulation also provides for a central regulation, the commission is required to authority. This is primarily to be a source of prepare and maintain a manual setting out: Service of judicial documents information. In Ireland, the master of the • The courts on a state-by-state basis The Regulation on the service of judicial and High Court will act in this capacity. which will undertake the execution of extrajudicial documents in civil or commercial such requests matters (council regulation (EC) no Taking of evidence abroad • The central body in each state 1348/2000) applies within the EU and within In June 2001, a regulation was adopted on responsible for supplying information, it will prevail over any other service co-operation between national courts in the resolving difficulties and dealing with convention, such as the Hague convention. taking of evidence in civil and commercial applications★ under article 17 Denmark is not a party to this regulation. The proceedings (council regulation (EC) •The technical means available by courts Hague convention will continue to apply to 1206/2001). This will come into effect from for receiving requests under the service of judicial documents outside the EU. 1 July 2004 and will apply between all the regulation The regulation asks states to designate member states of the EU with the exception • The languages in which requests may be public officers, authorities or other persons of Denmark. accepted in various states, and as ‘transmitting agencies’ and ‘receiving It will allow a civil court in one state to • Any bilateral arrangements facilitating the agencies’. As their names suggest, these request a court in another state to take taking of evidence which are compatible agencies will be competent for transmitting evidence in its state. Such a request is to with the regulation. judicial documents to be served in another be the in official language of the place state or for receipt of judicial documents where the evidence is to be taken and in a As between member states, the regulation from another state for service in their own prescribed form. Any appropriate means can supersedes any other bilateral or multilateral state. Ireland has designated county be used for the transmission of these agreement between these states relating to registrars for this role. Documents are to be requests. The requested court is to the subject matter★ of the regulation.

jurisdiction is that of the place of delivery. This is Jurisdiction agreements invariably the place of the consumer’s domicile. US As with the convention, the regulation allows the courts are also becoming more sympathetic to parties to choose the jurisdiction of a certain court consumers asserting jurisdiction in their home states. and then gives that court exclusive jurisdiction. The Thus, on this analysis, the new consumer provisions convention requires such a jurisdiction clause to be will be something of a paper tiger. in writing, evidenced in writing, in a form that The original article excluded transport contracts accords with international trade or commerce from its scope. The regulation continues to do so practices or in a form which is consistent with but makes it clear that package holidays do come practices developed between the two parties. The within the scope of the consumer protection. regulation takes account of electronic commerce and provides that ‘any communication by electronic Employment contracts means which can provide a durable record of the The jurisdictional rules on employment contracts agreement shall be deemed to be in writing’. will remain the same. However, they have been taken from articles 5 and 17 and consolidated in Lis pendens articles 18-21 of the regulation. The convention provides that where two courts are

17 Law Society Gazette June 2002 Irish Stenographers Meet your clients... Ltd enjoy a Director: Sheila Kavanagh coffee... Experts in or simply take Overnight Transcripts

Specialists in Court Reporting enjotime Medical Cases / Arbitrations Conferences / Board Meetings y to Contact: relax Hillcrest House, at the Society’s new Dargle Valley, Bray, Co. Wicklow. Telephone/Fax: (01) 286 2184 or 4b Arran Square, Dublin 7 Friary Telephone: (01) 873 2378 Café at the Four Court s Have you accessed the Law Society website yet?

he Law Society’s website contains a wealth of information for the Tpractising solicitor including: Open 9am to 4.30pm, Monday to • Employment opportunities: • Gazette on-line: updated monthly Friday updated weekly • Links to other legal sites on • Continuing Legal Education the net programme • Legislation updates: Law Society of Ireland, • An overview and updates on the updated quarterly work of the society’s committees • Committee reports and publica- Friary Café, Four Courts, • Contact names of Law Society per- tions Inns Quay, Dublin 2, sonnel • Forthcoming conferences and • Comprehensive index of member seminars: regularly updated Telephone 668 1806 services • What’s new: updated weekly THE MEMBERS’ AREA of the website contains practical information for solicitors such as practice notes, policy documents, precedents for practice, professional information, frequently asked questions and an interactive bulletin board www.lawsociety.ie European law seised of the same cause of action, the court first The court asked to enforce the judgment cannot seised has jurisdiction. This led to some uncertainty, entertain grounds for non-enforcement of its own as the rules concerning courts being seised of an motion. The judgment debtor must raise these. action differed between common and civil law The enforcing court is limited to checking the jurisdictions. In the UK and Ireland, a court is documents submitted with the foreign judgment. regarded as seised of a matter when a summons is issued, whereas in civil law jurisdictions courts look to Defences to recognition and enforcement service of the originating document. The regulation One of the defences to recognition and enforcement attempts to resolve this by providing a definition of of a foreign judgment is that it is contrary to public the date when a court is seised of a matter. Article 30 policy. The regulation also contains this defence but provides that a court is seised either where the it requires that the judgment be ‘manifestly’ contrary document instituting the proceedings is lodged with to public policy. This defence has always been very the court or, if the document has to be first served narrowly interpreted: the Jenard report states that it is before being lodged, when the server receives the only to apply in exceptional circumstances. Indeed, it document for service (that is, when a summons is is only very recently that the ECJ has applied this issued). This is broadly consistent with the decision defence. In case C-7/98 Dieter Krombach v André of the English Court of Appeal in Dresser UK Ltd v Bamberski (28 March 2000, unreported), the court Falcongate ([1992] 2 All ER 450). applied this defence in the context of the breach of fundamental human rights. If the court is Recognition and enforcement of judgments interpreting the defence so restrictively, this The regulation makes the recognition and amendment is likely to render this defence almost enforcement mechanisms for foreign judgments completely inapplicable. faster. It provides for a uniform certificate containing basic information to accompany Renumbering judgments. Enforcement applications continue to be As a consequence of some deletions and additions, heard on an ex parte basis. However, the party there is some renumbering in the regulation. This is seeking to enforce the judgment is now required to most significant in the recognition and enforcement produce an authentic copy of the judgment, the provisions. G certificate and give an address for service of proceedings within the enforcing state. TP Kennedy is the Law Society’s director of education.

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19 Law Society Gazette June 2002 Dispute resolution Friendly

Conciliation creates an intermediate tier in the dispute resolutionPER chain and offers the parties an opportunity to amicably resolve the dispute before formal proceedings become necessary. Denis O’Driscoll outlines the process that operates in the construction industry

raditionally, the choice of dispute followed by individual sessions (known as a resolution mechanism in construction ‘caucus’) between the conciliator and each of the contracts was stark. If a dispute could parties in turn. Obviously, settlement would be not be resolved through negotiation, impossible if both parties adhered to their opening T the only weapon left in the contractor’s positions, and the conciliator’s skill is to quickly arsenal was the threat of arbitration. Many of the large clients in Ireland are repeat players in the construction market, with strategic rolling plans for future investment in the industry. The issuing of formal court proceedings will be an act of last resort for any contractor because, by implication, it means that the relationship with the client has broken down irretrievably. Faced with such a zero- sum game, what is a contractor to do? A new process has been sweeping across all common-law jurisdictions – alternative dispute resolution (ADR). Conciliation is a member of the ADR family and is now incorporated as a dispute resolution mechanism into the conditions of contract of both the Royal Institute of Architects of Ireland (building works) and the Institution of Engineers of Ireland (civil engineering works).

The art of compromise It must be clearly understood that the conciliator’s role is not synonymous with that of an arbitrator. His role is not necessarily to dispense justice but to assist the parties in reaching a mutually acceptable compromise. A skilled conciliator can inject much-needed objectivity into a dispute and • Alternative issues can be constructively explored in a civil dispute resolu- manner, which is the antithesis to the short, heated tion in the exchanges that sometimes prevail in the site construction portacabin. industry The conciliator has discretion to adopt the • How conciliation procedure he deems most appropriate for the works hearing, and strict rules of evidence do not apply. • RIAI and IEI The hearing usually starts with a joint session conciliation rules where, typically, both parties set out their

MAIN POINTS respective positions in a robust fashion. This is

20 Law Society Gazette June 2002 Dispute resolution

SUASIONseek common ground in order to narrow the issues WHY CONCILIATION in dispute. During the caucus, he will talk confidentially and FAILS frankly to each party, exploring the strengths and There are a number of reasons why conciliations weaknesses of their positions. He may also need to fail. Among them are: subtly challenge the parties by identifying issues of •Apoor quality conciliator. A conciliator should fact or law that might adversely affect the cogency be a mutually respected construction of their case. If both parties are less certain about professional, ideally with a legal qualification. A the strength of their respective positions, then they well-intentioned construction professional are more likely to seek a settlement. without legal skills may well be able to broker a deal, but some difficult disputes can hinge on fundamental principles of contract law, such as causation and mitigation. If these issues are not addressed at the conciliation, then an opportunity may have been missed. Although he is not obliged to do so, the parties should consider asking the conciliator to provide the reasons on which his recommendation is based. The parties would be wise to seriously reflect on a reasoned recommendation, as this may substantially replicate an arbitrator’s award in subsequent proceedings • Decision-makers are not in attendance. A representative with the authority to sign a settlement agreement should attend the conciliation hearing on both sides • The dispute has not been sufficiently particularised. The written submissions served prior to the hearing should be particularised with regard to liability and quantum so that each issue can be analysed in some depth, particularly with regard to time extensions and loss and expense claims • Cooling off following a break in proceedings. Ideally, conciliation should be restricted to a duration of one day, bearing in mind that a day has 24 hours. Many agreements are reached at the 11th hour, when fatigue has perhaps set in. If proceedings are carried forward to another day, gains painfully made can quickly be lost • Ego/loss of face. The construction industry attracts its fair share of arrogant and abrasive personalities. Unfortunately, many construction disputes are personality driven.

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THE RIAI AND IEI’S CONCILIATION RULES Both the RIAI and IEI publish conciliation rules applicable to their own contracts. Reference should be made to these rules for their specific import, but a general comparison of the main provisions is as follows:

RIAI CONCILIATION PROCEDURE IEI CONCILIATION PROCEDURE (1996 ed, issue 3) (2000 [9/2000])

COMMENCEMENT By notice served on the other party By written notice served on the other specifying the matters in dispute party specifying the matters in dispute and the relief sought

PERIOD TO CONCUR IN THE Ten working days from the notice 14 days from service of the notice APPOINTMENT OF A CONCILIATOR

APPOINTING BODY IN DEFAULT OF President of the Royal Institute of President of the Institution of Engineers of AGREEMENT Architects of Ireland Ireland

PROCEDURE • Serve brief written submission with • Serve written submission relevant documentation •Procedure conducted at the conciliator’s •Procedure conducted at the conciliator’s discretion but on a ‘without prejudice’ discretion but on a ‘without prejudice’ basis basis

SETTLEMENT/RECOMMENDATION • If agreement is reached, it should be set • If agreement is reached, it should be set down in writing and signed down in writing and signed • If no agreement, the conciliator shall • If no agreement reached, the conciliator issue his recommendation within ten shall issue his recommendation within working days of the hearing two weeks • He shall not be required to give reasons • He shall not be required to give reasons, but should he choose to do so, these should be issued within seven days of the recommendation

EFFECT OF RECOMMENDATION If neither party rejects it within ten working If neither party rejects it in writing within days of its issue, it shall be final and two weeks of receipt, it shall be final and binding binding

COSTS • Each party to bear their own costs • Each party to bear their own costs • Both parties jointly and severally liable • Both parties jointly and severally liable for for the conciliator’s costs, to be paid in the conciliator’s costs, to be paid in equal shares, unless he decides equal shares within seven days of receipt otherwise of the conciliator’s notice of costs

During the course of the proceedings, the based. If neither party rejects the recommendation conciliator moves back and forth between the within a prescribed period, it becomes final, parties using the skills of shuttle diplomacy. If all binding and determinative of the matter. If rejected goes well, by the end of the proceedings a figure is by either party, the recommendation has no effect nervously scratched on a sheet of paper and a deal and the aggrieved party is once again left with the is done. It is not uncommon that agreement cannot stark choice of whether to begin formal be reached on the day, but will follow later when proceedings. As conciliation is conducted on a the parties have had an opportunity for critical ‘without prejudice’ basis, concessions made during reflection. Conciliation at its best is a ‘win-win’ the process are inadmissible and the conciliator can situation. have no role in any subsequent proceedings either However, if the parties cannot compromise, the as an arbitrator or as a witness of fact. G conciliator will issue a written recommendation after the proceedings. The conciliator need not Denis O’Driscoll is principal of the Cork law firm Denis give the reasons on which the recommendation is O’Driscoll & Associates.

23 Law Society Gazette June 2002 Trademarks Parallel u The European Court of Justice has clarified and extended its case law relating to the repackaging and relabelling of pharmaceutical products in some recent judgments. Dorit McCann explains

n 23 April 2002, European Court of considered necessary. In particular, the ECJ • Parallel import Justice judgments in Boehringer (case considered whether it is lawful for the trademark of repackaged C-143/00) and Merck, Sharp & Dohme owner to refuse repackaging where, although the products (case C-443/99) clarified the extent to repackaging is not necessary for the product to be • Trademark which manufacturers may rely on their marketed in the importing state, the marketability protection O trademarks in challenging the parallel import of of the product would be jeopardised because a • Recent ECJ repackaged or relabelled pharmaceutical products. significant proportion of the consumers in that state judgments In Boehringer, several pharmaceutical companies, are suspicious of pharmaceutical products clearly including Boehringer, Glaxo, SmithKline, Wellcome MAIN POINTS and Eli Lilly, objected to the relabelling and repackaging of their products. The manner in which the different products were repackaged varied, but it largely consisted of attaching a label in the English language to the package or of repackaging the products in boxes designed by the parallel importer. In Merck, Sharp & Dohme, the parallel importer replaced the original packaging with new packaging designed by himself and added descriptions in German. The trademark proprietor requested that the importer restrict himself to relabelling by means of self-adhesive stickers. The pharmaceutical companies argued that the repackaging and relabelling of their products constituted an unlawful interference with their trademark rights. Both cases arose from references to the ECJ by national courts in the UK and Austria respectively.

The need for repackaging In Boehringer and in Merck, Sharp & Dohme, the ECJ was asked to consider the circumstances in which the repackaging of trademarked products, rather than the application of a new label to the existing packaging, might be

24 Law Society Gazette June 2002 Trademarks niverse

intended for another state’s market (as was determine whether they make repackaging reported to be the case in Austria). objectively necessary. It went on to say that, while In line with its previous case law, the resistance to relabelled pharmaceutical products by ECJ stated that the circumstances consumers does not always constitute an impediment prevailing at the time of marketing the to effective market access so as to make replacement product in the importing state, packaging necessary, there may be ‘such strong including national rules or practices resistance from a significant proportion of relating to packaging or insurance consumers to relabelled pharmaceutical products rules, must be taken into account to that there must be held to be a hindrance to effective market access. In those circumstances, repackaging of the pharmaceutical products would not be explicable solely by the attempt to secure a commercial advantage. The purpose would be to achieve effective market access’. Whether or not this is the case is a matter to be determined by the national court.

Advance notice of repackaging The ECJ also confirmed its previous case law on the need for the parallel importer to provide the trademark owner with advance notice of his intention to repackage a trademarked pharmaceutical product. At the request of the trademark owner, the importer must also supply it with a sample of the repackaged product before it goes on sale. In Boehringer, the national court queried whether such notice must necessarily be given by the importer himself or whether it is sufficient for the trademark owner to receive such notice, from whatever source. The ECJ held that it is incumbent on the parallel importer to give notice to the trademark owner of the intended repackaging and that it is not sufficient that the owner be notified by other sources. It also confirmed that notice must be given, whether or not the intended repackaging prejudices the specific subject matter of the mark or not. In responding to the national court’s query as to what length of notice must be given to the trademark owner by the parallel importer, the ECJ

25 Law Society Gazette June 2002 WHERE THERE’S A WILL TRUSTEES THIS IS THE WAY…

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Charity Registration No. CHY6892. Tax Relief No. CHY8 Trademarks PREVIOUS held that ‘a reasonable time period’ must be allowed ECJ CASE LAW to enable the owner to react to the intended In Hoffmann-La Roche v Centrafarm (case 102/77, [1978] ECR repackaging, and bearing in mind the parallel 1139), the ECJ held that derogations from the fundamental importer’s interest in marketing the pharmaceutical principle of the free movement of goods between member product as soon as possible. It held that it is for the states, contained in article 28 of the EC treaty, are allowed to national court to assess, in the light of all the the extent that they are justified in order to safeguard the relevant circumstances, whether a reasonable notice rights that constitute the specific subject matter of the period has been provided by the parallel importer. industrial property concerned. By stating that the guarantee of The ECJ did, however, suggest that a period of origin of a trademark is part of the specific subject matter of a 15 working days seemed likely to constitute such trademark, the ECJ recognised the right of a trademark owner a reasonable time where the parallel importer to prevent the marketing of a repackaged product to which the has also supplied the trademark owner with trademark has been affixed by a parallel importer. a sample of the repackaged pharmaceutical However, the ECJ also held that such prevention of product. marketing by the trademark owner will constitute a disguised restriction on trade between member states where it will Striking a balance contribute to the artificial partitioning of the markets between The ECJ has confirmed the approach set out in its member states and where the repackaging is done in such a earlier judgments that the repackaging of a way that the legitimate interests of the owner are respected. In pharmaceutical product poses a risk to the guarantee particular, the repackaging must not adversely affect the of origin of a product, which forms part of the original condition of the product and must not harm the specific subject matter of a trademark right. By reputation of the mark. In addition, the trademark owner must doing so, it confirms the right of a trademark owner receive prior notice of the marketing of the repackaged product to prevent the use of its trademark on repackaged and the new packaging must identify by whom the product has goods unless the repackaging is necessary in order to been repackaged. enable the marketing of the product and provided In subsequent cases, in particular Bristol-Myers Squibb that the interests of the owner are safeguarded. (joined cases C-472/93, C-429/93, and C-436/93 [1996] ECR In delivering its two judgments, the ECJ is once I-3457) and Upjohn (case C-379/97 [2000] 1 CMLR 51), the again attempting to strike a balance between the ECJ has clarified what may constitute artificial partitioning of fundamental principle of the free movement of the markets between member states. It stated that, in certain goods between member states and the right of circumstances where repackaging is necessary to allow the trademark owners to protect their marks. However, imported product to be marketed in the importing state, just as it did in its judgments in Silhouette (case C- opposition by the trademark owner to the repackaging of its 355/96) and Davidoff/Levi (joined cases C-414/99 products constitutes an artificial partitioning of markets. and C-415/99), where it ruled that trademark Therefore, the trademark owner’s opposition to the repackaging owners have an unfettered right to control the of the product by the parallel importer is not justified if it import of goods bearing their trademarks into the hinders effective access of the imported product to the market EU, it has come down again in favour of protecting of that state, provided that the presentation of the repackaged the rights of trademark owners rather than those of product does not damage the reputation of the trademark. parallel importers. It remains to be seen what Conversely, the ECJ held that the trademark owner may oppose circumstances have to prevail for it to be considered the repackaging if it is based solely on the parallel importer’s necessary to repackage a pharmaceutical product in attempt to secure a commercial advantage or where the order to effectively access a market. G parallel importer is able to reuse the original packaging by affixing labels to that packaging. Dorit McCann is a solicitor with the Dublin law firm A&L Goodbody.

73 Bachelors Walk Dublin 1 Ireland • Tel 01 872 8881 • Fax 01 872 8979 • Email [email protected]

27 Law Society Gazette June 2002 Gadgets Tech trends Ringing the changes Seeing is believing

o you remember when and a portable speakerphone. f it’s true that ‘you are what Dmobile phones used to be The V70 also looks different, Iyou wear’, then the new just mobile phones? with its 360-degrees Poma from US hi-tech Motorola obviously swivelling cover and company Xybernaut will doesn’t and futuristic shape. identify you as a computer continues to find Luckily, Motorola geek with more money than ways to reinvent its remembered that the sense. Poma stands for products so that V70 still has to ‘personal optical mobile they become function as a phone, assistant’ and it looks like it ‘indispensable so it includes all the came straight out of Star wars. lifestyle accessories’. trimmings, such as It’s a featherweight computer This summer, it will voice-activated with a head-mounted visual be launching a dialling, vibration display unit that is designed to range of new alert, 100-name deliver instant access to e-mail, mobiles, of which phone book and an the Internet, music, videos, the most assortment of games and the usual interesting will be games. The phone business tools you the A388 and the is expected to cost find in a handheld V70. The A388 around €375 when it PDA. The one- combines a phone goes on sale shortly inch, full-colour with a PDA and the company screen weighs three (personal digital says it is designed for ounces and sits just of a paperback book that assistant), and also ‘the culturally hip, below your eye. clips to your belt, and an includes Internet, the sophisticated, the Xybernaut claims that ‘optical pointing device’, computer and bold and the the viewing area is which is basically a glorified digital camera elegant’. So that rules similar to looking at a mouse. The computer has a connectivity, as well as you out, then. desktop monitor two feet away. 128 MHz processor, 32MB of downloadable games. The Available from the usual There are three elements to RAM and runs Microsoft’s new V70, on the other hand, mobile phone retail outlets in the Poma: the headset, a Windows CE operating system includes an FM radio headset June. Hitachi-built computer the size (about the same level of functionality as a pocket PC). Like other Windows CE Just the thing to light up your life devices, the Poma comes with scaled-down versions of f making presentations is a added bonus is that you can including Microsoft Microsoft Word, Windows Ipart of your job, then you dispense with the PC or laptop PowerPoint, JPEGs and BMPs. Media Player and Internet might be interested in the new if you buy the optional Media Available for around €6,750 from Explorer. Not surprisingly, the range of multimedia projectors Card Imager kit which can be computer outlets and from Canon Poma recently won the from Canon. The Canon used to project data and files (tel: 01 205 2400, Editor’s Choice Award from LV7340 uses the manufacturer’s created in various formats, www.canon.ie). Popular mechanics magazine. At own ‘turbo bright system’ the moment, the device is only which claims to make available in the United States, projections 25% brighter than where it costs just under $1,500 conventional LCD projectors – but if it catches on, it won’t (up to 1,500 ANSI lumens be long before we see it over with a contrast ratio of here. At a time when people 350:1, if you’re interested). routinely walk around with a This means that it can be mobile phone in one hand and used in even the most well-lit a pocket PC in the other, the rooms. idea of a computer you wear The LV7340 weighs in at doesn’t seem that bizarre at all. around four kilos, which makes For further information, see it ideal for both mobile and www.xybernautonline.com/ desktop presentations. An poma.

28 Law Society Gazette June 2002 Gadgets Colour me beautiful olour printing from your PC printer that can spew out colour conventional colour printing Cis often the technological or black and white prints at the method. The unique toner equivalent of watching paint dry. same speed – 16 pages a minute. cartridge uses smaller particles, Whole civilisations can rise and The Magicolor 3100 uses leading to sharper colours and fall before you get one usable ‘crown control technology’, graphics and cheaper page cost. colour printout, and even then it which basically means that This is good news for anyone rarely bears any resemblance to instead of layering four colours who needs to generate colour the colours on your screen. This on top of each other to achieve reports. The bad news is that it could all change with the new the desired effect, the colours costs just under €4,000. Magicolor 3100 laser printer are printed simultaneously, Available from Minolta-QMS (tel: from Minolta-QMS, which resulting in prints that are 041 988 7160) and from computer claims to be the first colour laser several times faster than the outlets (see also www.minolta-qms.ie). Sites to see

Cartoon library (www.cartoonstock.com). You can tart up your Technobabble dictionary (www.webopedia.com). If terms like in-house newsletter or client brochure by visiting this RAM and PDA have left you baffled while reading about the searchable library of thousands of new cartoons from many of gadgets described above, help is at hand. This website will the world’s best cartoonists. Catalogued by keywords, category explain it all in plain English, even those tricky acronyms like and artist, the cartoons on offer can be bought for use in any WAP and SCSI, which sound like they should be personal number of publications. insults but aren’t really.

Predict your own death (www.thespark.com). A light-hearted Daily horoscopes (www.astrology.msn.com). Throw away your website questionnaire that claims to be able to predict the crystals and shove your feng shui. You can get your daily dose precise date and method of your demise. Unfortunately, we look of superstitious nonsense from this site, which gives you a daily set to be ‘abducted by aliens’, but there are worse ways to go. horoscope, Chinese readings (whatever they are) and Among the other questionnaires on this site, you can test your numerology. You can even get readings for your pets. Or you IQ – assuming you’re still alive. can just get a life.

29 Law Society Gazette June 2002 Stockwatch Will the summer bring sunshine? You don’t need a weatherman to know which way the wind blows, argues Alan Murphy, who explores four issues that may affect global markets over the coming months

ailing enthusiasts would before another downturn in the post year-on-year earnings Sdescribe recent market economy. declines in the second quarter. movements as ‘choppy’, car The US Federal Reserve, enthusiasts might call it ‘bumpy’ while moving its interest rate Company valuations and those fond of aeronautical policy to ‘neutral’, seems Current conditions: partly Alan Murphy: ‘Be prepared for prepared to hold off on raising cloudy with a touch of fog. pursuits may even tag it some mixed weather’ ‘turbulent’. One thing for sure is interest rates in the short term. Based on earnings estimates for that markets have been volatile This will leave the cost of 2002, the S&P 500 has an unpredictable role in investing over the course of the first part raising capital at a 40-year low average price/earnings (P/E) your money. ‘Enronitis’ has of this year. As we go to print, and may well provide further ratio of 20. However, the Dow played much more than a bit the ISEQ is down 7.9%, the fuel to a sunny period. Jones Technology Index is part in market volatility this year. S&P 500 is off 4.5%, the trading at more than 40 times Accounting issues, in particular NASDAQ has fallen another Corporate earnings 2002 earnings estimates, with complex accounting and 11.6% and the narrower Dow Current conditions: partly many big name technology financial structures, have played Jones has managed a 2.4% gain. cloudy. According to First Call, companies with P/Es reaching havoc with companies such as When looking to the US for the global research network, past the 100 level. In other Tyco, IBM, GE, WorldCom and direction, the economy seems to earnings for the S&P 500 are words, some investors are many other blue-chip names be showing signs of recovery, expected to increase on a year- willing to pay (‘P’) 100 times across the globe. yet the recent first quarter on-year basis for the first time this year’s earnings (‘E’) to pick Combine stock-specific risk earnings were very much a since the fourth quarter of up a company. with other outside variables – mixed bag. Crucially, US 2000. First Call is predicting What does this mean? such as continued tension in the corporates are still vague in broad earnings to increase by Simply put, it means certain Middle East, the possibility of guiding on future profitability. 6.6%. sectors are still looking very US military activity in Iraq and So what’s next for the Mid-May’s modestly bullish expensive. It is hard to justify a the further possibility of rising markets? Should investors break results from Cisco and Dell concerted investment strategy energy costs with oil prices out the sunglasses and lotion? recently sent telecom- to include companies that are tightening – and the markets will Or are we in for a typically Irish munications and technology trading twice the multiple (P/E) remain under pressure in 2002. summer forecast, promising lots stocks surging. Consensus of the overall US market, While an improving economy and always disappointing. earning forecasts (profits) in the particularly when earnings are should help boost earnings and US for the financial sector are not growing at the rate they make high valuations a little The US economy expected to be up 22%, while were in the late 1990s. more digestible, uncertainty Current conditions: sunny. technology and consumer Strong earnings growth will about accounting issues, On 17 May, the US consumer cyclicals are both expected to be needed to sustain such lofty terrorism and the unstable confidence figures were again report earnings up by similar valuations. Until the earnings political environment in the better than expected and retail figures. outlook (that is, future Middle East will continue to sales figures beat Wall Street So that may be good news. earnings) improves, or indeed persist. Some good advice would estimates. Productivity and gross However, we must take into becomes at least more visible, be to pack both the sun lotion domestic product (GDP) also account that the growth in many high-valuation sectors and the umbrella and be well soared and the manufacturing earnings is from dramatically will continue to come under prepared for some mixed sector, one of the hardest-hit lowered base levels than pressure if they disappoint. weather. areas during the downturn in previous years. There is also no In the next issue, I will discuss 2001, reported its third straight margin for error in the current The great intangibles a number of options to guard month of expansion. These market for companies falling Current conditions: very against these conditions and indicators are increasing short of expectations. stormy. While numbers, of help guide you through a optimism for a sustained What is also troubling is that course, are vital to managing difficult trading environment. G recovery and casting further many sectors are still expectations and evaluating the doubts over the much struggling. Communications, market, the many intangible Alan Murphy is a portfolio mentioned double-dip recession energy and transportation, to variables that surround the manager with Davy Stockbrokers’ – a quarter or two of recovery name a few, are all expected to market can also play a very private clients unit.

30 Law Society Gazette June 2002 Briefing Report of Law Society Council meeting held on 22 March 2002 NOVA case the Law Society of England & rule against solicitors and barris- seminars on the Solicitors’ The Council considered the Wales had adopted a stance in ters acting together as advocates accounts regulations had now been recent decision by the European support of this ‘Tesco legal serv- and the Bar Council had no dif- held in Dublin (twice), Cork, Court of Justice in the NOVA ices’ concept. ficulties with the joint exercise of Sligo and Kilkenny and a further case that ‘an international regu- rights of audience. seminar would be held in lation such as the 1993 regula- Meeting with neighbouring law The director general also Limerick during the following tion [prohibiting MDPs societies reported that it appeared likely week. To date, over 1,000 solici- between lawyers and account- The president and director gen- that the special additional role tors or their book-keepers had ants] adopted by a body such as eral reported on a meeting of the envisaged for the attorney gen- attended the seminars and very the bar of the Netherlands does presidents, vice-presidents and eral in relation to judicial positive feedback had been not infringe article 85(1) of the secretaries of the law societies of appointments would be deleted received by the committee. He treaty, since that body could rea- Ireland, Northern Ireland, from the bill and that the intro- recorded his thanks and appreci- sonably have considered that Scotland and England & Wales, duction of the ministerial order ation to Charles Russell for his that regulation, despite the which had been held in Dublin required to give effect to the excellent presentations on the effects restrictive of competition on 28 February and 1 March, increases in court jurisdictions detail of the regulations. that are inherent in it, is neces- 2002. The meeting had dealt with might not be introduced for a sary for the proper practice of a wide range of issues, including considerable period of time. International Criminal Bar the legal profession, as organised MDPs, ‘Tesco legal’, the The Council approved the in the member state concerned’. Establishment directive, the PIAB, Task force on proposed PIAB appointment of James MacGuill The Council noted that this rep- competition law, legal aid, legal Ward McEllin briefed the as the society’s representative on resented an objective endorse- expenses insurance, the CCBE Council in relation to corre- a preparatory committee for the ment of the importance of the and e-commerce. Each of the spondence with the PIAB creation of an International core values of the profession. societies faced many of the same Implementation Group and Criminal Bar, a development John Fish said that the CCBE issues, with similar approaches noted that the society had being considered in the context had been a party to the case, in being adopted in each of the sought details of the group’s pro- of the International Criminal support of the Dutch bar. It was jurisdictions, save for England & posals in advance of a proposed Court. a matter of great satisfaction that Wales which displayed a signifi- meeting with the group. The the legal profession now had an cantly different stance on many society’s task force continued to Competition Authority study authoritative statement of law in matters. Work had been com- work on proposals for reform of The Council reconvened in the support of prohibitions or menced on a draft joint declara- the personal injuries litigation afternoon to consider the soci- restrictions on MDPs. He noted tion of the core values of the pro- system, which would be brought ety’s draft response to the 74- that another aspect of the judg- fession, which would be consid- to the Council for consideration part questionnaire received from ment was that bars and law soci- ered further at the next meeting at its next meeting. the Competition Authority. eties could be regarded as an of the four societies. Following a lengthy discussion, ‘association of undertakings’ for Solicitors’ accounts the response was approved by competition purposes. Courts and Court Officers Bill, regulations the Council, subject to a num- 2001 Simon Murphy reported that ber of amendments. G ‘Tesco legal services’ The director general reported The director general outlined that, uniquely, the president and the proposal by the Law Society he had attended and addressed POSTCARD FROM THE PAST of England & Wales to amend the Dáil Select Committee on t its meeting held on Apprenticeship. its rules so as to permit solicitors Justice, Equality, Defence and AWednesday 18 February Yours obediently, employed in commercial organi- Women’s Rights on the previous 1885, the Council considered M Murphy’ sations to act for clients of their day. The committee had sought the following letter received from employer. The law societies of the views of the Law Society and a Mr M Murphy, Church Street, The Council ordered that a reply Ireland, Northern Ireland and of the Bar Council on a proposed Listowel: should issue ‘that the Council Scotland had each communicat- amendment to the Courts and ‘Sir, consider the wife of an ed their view that the delivery of Court Officers Bill to the effect Would you kindly let me have Apprentice having means of her legal services via non-private that a solicitor or solicitors could prospectus required by a party own can carry on business on practice firms constituted a sur- appear and act together with a seeking to become a Solicitor’s her own account during the render of the core values of inde- barrister or barristers as advo- Apprentice, and whether the wife Apprenticeship of her husband’. pendence, confidentiality and cates in any proceedings. The of an Apprentice having means the avoidance of conflicts of society had supported the pro- of her own could trade or carry Extracted from the ‘Minute Book interest and was contrary to the posal. The Bar Council had on business without prejudice to of The Incorporated Law Society public interest. Nonetheless, on objected to it, on the basis that it her husband continuing his of Ireland’ – 1879-1885 the previous day the council of was unnecessary as there was no

31 Law Society Gazette June 2002 Briefing LEGISLATION UPDATE: 18 APRIL – 20 MAY 2002 ACTS PASSED 2002 as the commencement date Gas (Interim) (Regulation) Act, Irish Nationality and Citizenship Communications Regulation Act, for certain provisions of the 2002 (Appointed Day) Order 2002 Act, 2001 (Commencement) 2002 Children Act, 2001 for which the Number: SI 146/2002 Order 2002 Number: 20/2002 minister for justice, equality and Contents note: Appoints 30/4/ Number: SI 128/2002 Contents note: Establishes a law reform has responsibility; also 2002 as the appointed day for the Contents note: Appoints 30/11/ Commission for Communications repeals provisions of the Children purposes of the act 2002 as the commencement date Regulation, dissolves the Office of Act 1908 and other legislative pro- for all sections of the act, other the Director of Telecommunications visions which are now obsolete Housing (Miscellaneous than sections 2(a)(iii), 2(d) and 3 Regulation and transfers its func- (see SI for details) Provisions) Act, 2002 which were deemed to have come tions to the commission. Makes (Commencement) Order 2002 into operation on 2/12/1999, per provision in respect of the opening Courts and Court Officers Act, Number: SI 163/2002 s9(3) of the act of public roads for electronic com- 2002 (Section 29) Contents note: Appoints 25/4/ munications infrastructure and pro- (Commencement) Order 2002 2002 as the commencement date Irish Nationality and Citizenship vides for related matters Number: SI 176/2002 for section 17(c) of the act, which (Declaration of Citizenship) Date enacted: 27/4/2002 Contents note: Appoints provides for an increase in the bor- Regulations 2002 Commencement date: 27/4/ 29/4/2002 as the commencement rowing limit of the Housing Finance Number: SI 196/2002 2002; establishment day order to date for section 29 of the act Agency Ltd from £1.5 billion to €6 Contents note: Prescribe the forms be made for the purposes of the act (length of service of a High Court billion to be used by a person born in judge in a specified case) Ireland who wishes to make a dec- Hepatitis C Compensation laration that he or she is an Irish cit- Tribunal (Amendment) Act, 2002 Criminal Justice (United Nations District Court (Company Law izen as provided for in section 6 of Number: 21/2002 Convention against Torture) Act, Enforcement) Rules 2002 the Irish Nationality and Citizenship Contents note: Amends and 2000 (Commencement) Order Number: SI 207/2002 Act, 1956 (as amended by section extends the Hepatitis C 2002 Contents note: Amend order 3 of the Irish Nationality and Compensation Tribunal Act, 1997 Number: 166/2002 34, rule 7 of the District Court Citizenship Act, 2001) to enable the tribunal to award Contents note: Appoints 11/5/ Rules 1997 (SI 93/1997) and Commencement: 29/4/2002 compensation to certain persons 2002 as the commencement date substitute new forms 34.15 and who contracted HIV within the state for section 11 of the act (privileges 34.16 to provide for the position Medical Practitioners from certain blood products and to and immunities of the committee of the director of corporate (Amendment) Act, 2002 provide for related matters against torture and the conciliation enforcement under section (Commencement) Order 2002 Date enacted: 29/4/2002 commission established under the 20(1) of the Companies Act, Number: SI 159/2002 Commencement date: Commence- convention) 1990 (as substituted by section Contents note: Appoints 1/5/ ment order/s to be made (per s11 30 of the Company Law 2002 as the commencement date of the act) European Communities and Swiss Enforcement Act, 2001) for the whole act Confederation Act, 2001 Commencement date: 13/6/ Ombudsman for Children Act, (Commencement) Order 2002 2002 Planning and Development (No 2) 2002 Number: SI 195/2002 Regulations 2002 Number: 22/2002 Contents note: Appoints 1/6/ District Court (Sex Offenders) Number: SI 149/2002 Contents note: Provides for the 2002 as the commencement date Rules 2002 Contents note: Amend part 1 of appointment and functions of an for the whole act Number: SI 206/2002 schedule 12 of the Planning and ombudsman for children Contents note: Amend order 38 Development Regulations 2001 (SI Date enacted: 1/5/2002 European Communities (Data of the District Court Rules 1997 600/2001) to prescribe a fee for Commencement date: Commence- Protection and Privacy in (SI 93/1997 and add new forms licenses for fingerpost direction ment order/s to be made to Telecommunications) Regulations 38.4 and 38.5 to provide for the signs for tourist accommodation appoint a day or days not later than 2002 notification of convictions for Commencement date: 22/4/2002 two years after the passing of the Number: SI 192/2002 sex offenders act (that is, not later than 1/5/ Contents note: Give effect to direc- Commencement date: 13/6/ Radiological Protection 2004) for the coming into operation tive 1997/66/EC on the process- 2002 (Amendment) Act, 2002 of the act (per s1(2) of the act) ing of personal data and the pro- (Commencement) Order 2002 tection of privacy in the telecommu- Rules of the Superior Courts Number: SI 133/2002 Twenty-third Amendment of the nications sector (No 1) (Remuneration of Contents note: Appoints 8/4/ Constitution Act, 2001 Commencement date: 8/5/2002 Committees of Wards of Court) 2002 as the commencement date Contents note: Adds a new section 2002 for the whole act 9 to article 29 of the constitution Finance Act, 2002 (Section 93) Number: SI 208/2002 enabling the state to ratify the (Commencement) Order 2002 Contents note: Substitute a Tribunals of Inquiry (Evidence) Rome statute of the International Number: SI 177/2002 new rule 65 for order 67, rule Act, 1921 (Establishment of Criminal Court done at Rome on Contents note: Appoints 1/5/ 65 of the Rules of the Superior Tribunal) Instrument 2002 17/7/1998 2002 as the commencement date Courts in order to remove the Number: SI 175/2002 Date enacted: 27/3/202 for section 93 of chapter 2 of part requirement that special circum- Contents note: Provides for the Commencement date: 27/3/2002 2 of the act, which extends the stances or special cause should establishment of a tribunal of scope of the partial relief from min- exist before remuneration would inquiry into certain garda activities SELECTED STATUTORY eral oil tax for certain passenger be allowed to a committee of in Donegal INSTRUMENTS road services to certain coach the person or estate of a ward of Commencement date: 24/4/ Children Act, 2001 tours. Section 93 also provides for court 2002. G (Commencement) Order 2002 extended claim periods and time Commencement date: 13/6/ Number: SI 151/2002 limits for repayments and a tax 2002 Prepared by the Law Contents note: Appoints 1/5/ clearance requirement Society Library

32 Law Society Gazette June 2002 Briefing Practice notes

VHI UNDERTAKINGS or many years past, the Law ered in respect of VHI benefits, In future, practitioners will due consideration and discus- FSociety and VHI Healthcare but could also have to pay, out of have to conclude their own agree- sion with his client, that (‘VHI’) have operated a protocol the damages recovered, any bal- ment with VHI. The following he/she will provide an under- which the society believes fairly ance due to VHI. Thus, in many advice is offered: taking, it is essential that what protected the interests of VHI, cases, clients would be deprived 1) There is no obligation whatever is undertaken for is the repay- solicitors, and solicitors’ clients. of some or all of their damages to give an undertaking to VHI. ment only of not more than Regrettably, recent negotiations and would be engaging in litiga- If an undertaking is refused, such monies as have been in regard to the fee payable broke tion effectively for the benefit of however, VHI may refuse, pur- recovered in the litigation down when VHI sought to impose VHI at no cost to VHI. suant to rule 9(f)(ii) of its rules, 3) Each practitioner must decide conditions which are not only In the Law Society/VHI proto- to pay benefits for treatment what is a reasonable fee to unworkable in the society’s view col hitherto applicable, it had for injury caused through the charge for the important serv- but, in very many cases, contrary been agreed that the VHI would fault of some other person or ice provided. By providing an to clients’ interests. In particular, accept from the undertaking solic- body. The society considers undertaking, the practitioner is VHI states that it will hencefor- itor the sum that that solicitor the rule to be an unreasonable delivering a service of substan- ward seek an undertaking that stated he had recovered for VHI. one as it stipulates, inter alia, tial value to VHI, in which he the solicitor will pay the full The solicitor would provide a clear that the member will ‘do every- incurs a personal responsibili- amount of the benefit received explanation and his word would thing we ask to recover those ty, and that should be reflected from VHI where the amount recov- be accepted. This was important benefits and repay them to in the fee charged to the VHI. ered for damages equals or because many settlements are us’. VHI contends that this In the recent negotiations with exceeds the benefits received ‘round figure settlements’ and it entitles it to direct its mem- VHI, the society had proposed from VHI. Thus, in a case where was essential that the undertak- bers to direct their solicitors to a fee of €400 which was in only part of the full value of the ing solicitor should be the arbiter give undertakings that VHI respect of undertakings in the claim has been recovered, the of the issue of how much of the requires. There is no such obli- form that had been agreed client might have to pay not only damages recovered were recov- gation hitherfore. any amount that he had recov- ered for VHI. 2) If a practitioner decides, after Litigation Committee

RE: VAT CHANGES – DISPOSAL OF REVERSIONARY INTEREST herea freehold owner devel- year lease, VAT would again be a taxable person and normally fabric business with payment of Wops property and lets it out payable on the unexpired residue entitled therefore to recover the a premium for goodwill. As a on a 35-year lease to a taxable of that lease (if that residue were, VAT. For VAT purposes, the value result of falling turnover, the business, the lease becomes the say, 30 years, this would usually of a 20-year lease is the capi- premises is assigned to anoth- VATable interest from then on. The equate with the value of the free- talised value of the right to collect er lessee for little or no key freehold owner can sell the prop- hold). If the landlord was not going rent for 20 years, and if this falls money. Unless the taxpayer can erty subject to and with the bene- to re-let the property to another short of acquisition and develop- prove to the Revenue that the fit of the lease and there is no VAT taxable business, he will again ment costs, this will result in an value of the property has payable; an assignment of the suffer irrecoverable VAT. The end irrecoverable VAT hit which dropped due to an unforeseen lease is taxable in the usual way. result, therefore, is that B (depending on the contract) will be change in ‘market conditions An anomaly arises, however, suffers irrecoverable VAT on up to borne by either the lessor or the affecting the value of the prop- where after the granting of the 200% of the market value of the lessee; and this throws up inter- erty’, irrecoverable VAT will be lease, the tenant further develops property! esting questions where, for due. It is open to the Revenue the property. Even though such instance, a lease is forfeited or a to argue that the value of the development would be regarded Changes in the Finance Act, tenant does not exercise an property has not changed – only as the tenant’s improvements and 2002 option to extend. It is not possible the goodwill of the business. will not therefore necessarily add A new VAT trap has been intro- to anticipate all of the situations anything to the value of the duced affecting the creation, where this could impact, but pos- The Probate, Administration and lessor’s interest, a sale of the assignment or surrender of a sible circumstances would be: Taxation Committee, through its freehold following such develop- lease. Unless the VAT value of a) Development of hotels where involvement on TALC (Tax ment will now be regarded by the such lease, assignment or surren- the capital allowances are Administration Liaison Commit- Revenue as taxable and the VAT der is greater than the acquisition geared towards facilitating low tee), is pressing the Revenue to will be irrecoverable. If the free- and development costs of the rental values review the foregoing, and we hold owner sold to B and special property for VAT purposes, irrecov- b) Buildings where rental values understand the Revenue is in the condition 3 in the contract were to erable VAT will become chargeable are inherently low: hospitals, process of preparing a practice stand, B would suffer irrecover- on the creation, assignment or educational institutions and note. able VAT on the full sale price; if B surrender as the case may be. It so on Probate, Administration and later took a surrender of the 35- does not matter that the lessee is c) Acquisition of a lease of, say, a Taxation Committee

33 Law Society Gazette June 2002 Briefing Personal injury judgments

Car accident – neck and chest injuries that cleared up quickly – dispute over significance of MRI scan and extent of injury in High Court – award of damages – appeal to the Supreme Court – whether award of damages inadequate – whether case should be remitted to the High Court CASE Collette Meehan v Anthony Clerkin, Supreme Court (Denham, Murray and McGuinness JJ), judgment of Denham J for the court of 1 February 2002. THE FACTS n 30 January 1997, Clogherhead, was involved in The neck and chest injuries some sessions of physiothera- OCollette Meehan, a 34- a car accident. She suffered cleared up fairly quickly but py. High Court proceedings year-old secretary working in certain injuries around her she complained of symptoms were issued against Anthony Redsale Frozen Food in chest, neck and lower back. in her back. She did receive Clerkin. JUDGMENT OF THE HIGH COURT he case was heard before Mr the case of having some difficul- She had been able to continue at some early degeneration of the TJustice Kearns of the High ty in accepting that the plaintiff work and had some good days L4/5 disc with moderate cen- Court, who delivered judgment had given a completely fair and and bad days. The judge referred tral and left-sided herniation. on 31 May 2001. Kearns J noted accurate account of her injuries. to the MRI scan which did show Kearns J stated that, overall, that the CT scan had been nor- while there was some degree of mal and lumbar x-rays were irritation in the lower back, it normal. An MRI scan had also HIGH COURT AWARD was nothing like as serious as been carried out. The judge Ms Meehan believed it was. He noted that the level of com- Kearns J awarded: considered that the injury was plaint by Ms Meehan seemed to • General damages to date of trial: £20,000 not more than moderate and increase rather than decrease • General damages in the future: £10,000 that, with proper management after the MRI scan. The judge • Special damages, past and future: £5,000 and minding in the future, Ms stated he was left in the unsatis- Total: £35,000 Meehan would be well able to factory position at the end of cope. SUPREME COURT s Meehan appealed to the submissions were made to the on the medical evidence, position to determine the mat- MSupreme Court on the Supreme Court. according to Denham J, was not ter other than to allow the basis that the High Court failed Denham J delivered an ex resolved by the High Court. appeal and return the matter to to take proper account of, have tempore judgment on 1 February This created a dilemma for the the High Court. due regard for, and give appro- 2002. Having referred to the Supreme Court. She noted that The court accordingly priate weight to the evidence facts, she stated that the High counsel took opposing allowed the appeal and remitted called on her behalf in measur- Court judge doubted the full approaches to the matter, but the matter to the High Court. ing damages for pain and suffer- extent of the injuries of which that the Supreme Court could ing to the date of the trial and Ms Meehan complained. She not resolve the conflict. LAW SOCIETY pain and suffering in the future, stated that this was a matter for Denham J concluded that OF IRELAND ON and that the sums awarded were the trial judge. However, there while the court was concerned E-MAIL disproportionately low and were was a conflict in the findings of about the adequacy of a portion Contactable at unjust. the trial judge as to the signifi- of the High Court judge’s [email protected] As required by the practice cance of an MRI scan and the award, on one view of the evi- direction of the chief justice, extent of Ms Meehan’s injury. dence, and in view of the unre- Individual mail addresses take the form: written submissions were filed There was also a conflict on the solved conflicts of evidence, the [email protected] on behalf of the parties and oral medical evidence. The conflict Supreme Court was not in a

34 Law Society Gazette June 2002 Briefing

Traffic accident – cow jumped out in front of car – driver hit cow and stopped – driver left scene to drive to local house to notify the gardaí – subsequently a second car hit the cow – Animals Act, 1985 – obligation of owner of field in relation to fencing – defence of novus actus interveniens – whether owners of the cow should be liable CASE Syl Murray v Marvyn Millar, Pamela Millar and Paul Brady, Roscommon Circuit Court, judgment of Judge Bryan McMahon of 14 November 2001. THE FACTS n 14 January 2000, Paul Brady became concerned, as the the garda station, he learned that already collided with the cow OBrady, an employee of the traffic was increasing and the Syl Murray (the plaintiff in the some minutes prior to Mr Department of Agriculture, was evening was getting darker. case) had collided with the ani- Murray’s accident but who had driving home on the main road Eventually, a small car pulled up mal when he was away. left the scene to summon help. from Roscommon to Lanesboro and, with some trepidation, an Syl Murray was very familiar Marvyn Millar acknowledged when he was suddenly confront- elderly lady rolled down the with the main road from that his wife owned the cow and ed by a black pedigree Aengus window. Mr Brady enquired if Roscommon to Lanesboro. At that the animal was being kept cow which jumped out in front of she would phone the gardaí, but approximately 5.37pm on 14 in a field which Mr Millar rent- his car on his left-hand side of she said she did not have a January 2000, his vehicle sud- ed for a number of years and the road. Mr Brady braked mobile phone. The lady was denly collided with a cow on the which at that time held only two immediately but failed to avoid somewhat reluctant to become road. The left side of his car animals. He stated that he had the collision. After hitting the involved. She did indicate, how- jumped up in the air and it con- never had any previous trouble cow, he pulled into his own side ever, that there was a house tinued for some distance before with the fencing of the field and of the road, turned his lights to some 400 hundred yards further he succeeded in stopping. He that he used to keep horses there dims, put on his hazard lights and up the road from which Mr had been driving at approxi- at one time, but not at the time went back to see what he had hit. Brady could make a telephone mately 60 miles an hour at that of the incident. The field in Mr Brady saw the animal call. She then drove off. time, but as he entered that part which the animals were kept did lying on the grass verge off the Mr Brady was in something of the road, he began to slow to not immediately adjoin the road; road and, as he saw no move- of a predicament: he waited for a 50 miles an hour and dipped his there was one field further back ment from the animal, he con- further period and decided that lights for an oncoming car. from the highway. Mr Millar did cluded that the cow was dead. he would leave the scene and Syl Murray issued proceed- admit that since the animal Aware of the hazard that this drive up to the house to tele- ings in the Circuit Court against ended up on the road, the cow represented, he attempted to flag phone for help. When he Marvyn Millar and Pamela must have broken out from his down the passing cars; several returned some ten minutes later, Millar, owners of the cow, and field into his neighbour’s field cars passed without stopping. Mr having made the phone call to against Paul Brady, who had and then onto the road. THE JUDGMENT udge Bryan McMahon gave ately after the second collision, Animals Act, 1985 the owner of the animal who Jjudgment on 14 November the cow was some way out on Judge McMahon referred to sought to evade liability. The 2001 at Roscommon Circuit the road and still alive. The section 2 of the Animals Act, judge referred to O’Reilly v Court. Having considered the garda had to send for a vet to 1985, which amended certain Lavelle ([1990] 2 IR 372) and to facts as set out above, he stated have the animal put down. On common-law rules in relation O’Shea v Anhold and Horse that Mr Brady was a credible the balance of probabilities on to straying animals. The judge Holiday Farm Ltd (unreported, witness and he accepted in gen- this issue, Judge McMahon held noted that the effect of this Supreme Court, 23 October eral his version of events. that the cow had moved forward statutory provision was that 1996). He noted that the courts However, in one instance, Mr onto the road when Mr Brady reasonable care must now be in this jurisdiction have clearly Brady was in error. When Mr left the scene to summon help. taken to ensure that animals do accepted that the principle of Brady concluded that the cow It was noted by the judge that not stray onto the highway and res ipsa loquitur applies to these was dead after his collision, he there had been no evidence that cause damage. This normally situations. Accordingly, the was mistaken. Syl Murray had the field rented by Mr Millar translates into an obligation to judge noted that, in order to given evidence, which the judge was stockproof; neither did Mr ensure that the land was stock- escape liability, the Millars must believed, that when he collided Millar offer any photographic proofed and that the fencing provide the evidence to show with the animal some short time evidence of the fences or any was sufficient to prevent ani- that they took reasonable care after the first collision the ani- engineering evidence. However, mals from breaking out. The in the management of the land mal was some way out on the the judge noted that Mr Millar judge noted that case law indi- to ensure that the fencing was roadway. Further, the garda who understood that the field was cated that the onus of proof that secure. Noting that the Millars was called to the scene testified very safe and the animal was in a the land was properly fenced tendered no significant evi- that when he arrived immedi- secure holding. was now on the landowner or dence in this regard, the judge

35 Law Society Gazette June 2002 Briefing had little hesitation in holding grossly negligent or reckless? them liable for the damage THE AWARD Was it of such a kind that it which their straying animal relieved the original wrongdo- • Judge McMahon awarded £7,500 to Syl Murray against the caused to Mr Murray. ers? Further, in considering the Millars only, together with costs. matter, it must be relevant to • Paul Brady was awarded his costs against Syl Murray, with an Novus actus interveniens acknowledge that the predica- order over and against the Millars. Counsel for the Millars argued ment in which Mr Brady found that the conduct of Paul Brady himself was caused by the very (who first hit the cow) relieved people who wanted to place lia- them of any liability they may tically programmed the inter- the intervening act was to be bility on him. have had for their initial negli- vention. Similarly, if the original considered as the sole operative The judge noted that the gence in failing to stockproof actor intended the intervention, cause. If, on the other hand, the Millars must have foreseen that the fields. They argued that the he would be responsible. In this intervening act was close in if their cow escaped onto the force of their negligence was context, reference may be made time to the original act, the road, it was likely to cause an spent and had become irrelevant to the case of O’Rourke v An Post courts were more inclined to accident and that more than one because of the subsequent con- (unreported decision of Judge hold that the original conduct vehicle might eventually duct of Paul Brady. They argued Brian McMahon, Circuit Court, still possessed a causative rele- become involved. In general, that the sole cause of Mr Dublin, 19 July 2000). In that vance. therefore, the Millars should be Murray’s injury was Mr Brady’s case, An Post, having conducted In this case, the judge consid- liable for all the reasonable fore- conduct in leaving unguarded a certain investigation into thefts ered that the cause of the initial seeable consequences of their the injured animal which was a from its premises, reported its collision was the failure of the initial negligence. The judge hazard to other traffic and in conclusions rather speedily to Millars to keep the animal safe- stated that, in his opinion, the particular to Mr Murray. the gardaí, who then arrested ly corralled. Undoubtedly, on conduct of Paul Brady did not in Judge McMahon considered the plaintiff. It subsequently the evidence before the court, the present circumstances pos- this defence of novus actus inter- transpired that the plaintiff was the judge stated that the Millars sess such defective qualities as to veniens. The judge explained this innocent. would be liable to Paul Brady wrest responsibility entirely defence as meaning that in some The argument put forward by for his injuries suffered in the from the original perpetrators. circumstances the causal link An Post was that the interven- first collision. The liability to The judge stated that the con- between the original negligence tion by the gardaí constituted a Mr Brady, however, was not in duct of Paul Brady, given the (of the Millars in this case) and novus actus interveniens. This was issue in the proceedings before emergency the other defendants the injury of Mr Murray was dismissed by the court. It was the court and because of that no had created for him, was cer- broken by an intervening act of a held that it was reasonable and evidence was adduced that Mr tainly not criminal or subjective- third party (Paul Brady in this foreseeable that the gardaí, hav- Brady had in any way con- ly reckless, as the law seemed to case). ing been furnished with a report tributed to his own injury. The demand if it was to amount to a The judge noted it was not from An Post’s investigative sole concern of the court was to novus actus interveniens which every intervening act, however, department, would rely on it. determine if the conduct of Mr broke the link back to the other that would have the effect in law Indeed, it could be said that the Brady relieved the Millars of defendants. of rupturing the chain that links gardaí, having a legal duty to act their liability to Mr Murray. That a car might collide with the initial negligence with the in the matter, were primed to When Mr Brady hit the cow, a straying cow in the dark was ulterior injury. Only some kinds act. he pulled into his own side of foreseeable and that a further of acts have this legal effect. In examining the circum- the road, put on his dims and collision might occur when the Judge McMahon noted that the stances where the intervening hazard lights and walked back first party injured was seeking efforts of the courts to define the act would have the effect of to the point of impact. The assistance was also foreseeable. nature and quality of the inter- relieving the original perpetra- judge noted that the animal was In the judge’s view, the general vening act had not been a total tor, two factors featured in the motionless and Mr Brady sequence of events was reason- success. judiciary’s approach. First, wrongly concluded that the ani- ably foreseeable by a reasonably The judge noted that the whether and to what extent the mal was dead. Mr Brady appre- prudent person and the conduct Latin phrase novus actus interve- intervening act was foreseeable ciated the danger and began to of the intervenor, Paul Brady, niens was an insufficient abbrevi- by the original actor; second, flag down the passing traffic. was not so unreasonable or of ation. He said that the phrase the extent to which one was to He had little success. The one such a nature as to hijack the might more meaningfully trans- characterise the attitude of the car that did stop was not too causative aspect of the second late as ‘an intervening act which subsequent intervenor: was he helpful. He began to consider collision. is of such a kind that it attracts careless, negligent, grossly neg- his options. Having considered The Millars must compensate sole liability for the plaintiff’s ligent, reckless or did he intend the matter further, he decided Syl Murray for his loss and, injury or is of such a kind that it to do damage? Here, reference to go for help to a house which based on the facts, the judge had becomes the sole legal cause of was made to McMahon and was no more than 400 yards no hesitation in holding that the the plaintiff’s injuries’. Binchy’s Law of torts (3rd edition, away. If he took the car, he straying animal was the sole Judge McMahon noted that if 2000, pp69-70). would only be gone for a few cause of the accident. G the intervening act was pre- The judge also noted that the minutes. dictable and inevitable, the orig- greater the delay between the In the circumstances, the These judgments were summarised inal actor could not shrug off original conduct and the inter- judge posed the question: was by solicitor Dr Eamonn Hall, chief responsibility since he had prac- vening act, the more likely that Mr Brady’s conduct negligent, legal officer of Eircom plc.

36 Law Society Gazette June 2002 Briefing Update

News from Ireland’s on-line legal awareness service Compiled by Robert Forde BL for FirstLaw

ARBITRATION Murphy J and McGuinness J ceedings were substantially the COMPANY agreeing) allowed the appeal, same as those previously litigat- Company law, practice and holding that people such as the ed and that, accordingly, the Directors’ duties, liquidation procedure respondents, who had voluntar- plaintiff was estopped from Duty of care – duty of liquidators – Oppression of shareholders – arbi- ily disposed of their entire maintaining the present pro- nature of Revenue debt – failure by tration – practice and procedure – shareholding in a company, ceedings. In the High Court, Ó liquidator to maintain records of interpretation of shareholders’ could not conceivably have Caoimh J held that the pro- company – whether disqualifica- agreement – contract – conflict of been contemplated by the legis- ceedings in question were not tion order should issue – laws – abuse of process – whether lature as people who would be substantially the same as the Companies Act , 1990, sections petition should be dismissed – entitled to relief under section previous proceedings and 159, 160 whether petitioners had necessary 205. Under the terms of the accordingly there was no rule The applicant brought a locus standi– Arbitration Act, agreement, the respondents which prevented the plaintiff motion pursuant to section 160 1980 – Companies Act, 1963, were contractually bound under from maintaining the present of the Companies Act, 1990 section 205 the law of New York to divest proceedings. seeking to have the respondent The respondents and the appel- themselves of their rights as The Supreme Court (Keane disqualified from acting as a lants were shareholders in Via shareholders. The proceedings CJ delivering judgment; liquidator. Mr Justice Smyth Net Works Limited. The should either have been struck McGuinness J and Geoghegan J was satisfied that the respon- respondents had brought a sec- out by the High Court as dis- agreeing) dismissed the appeal, dent had failed to act in an tion 205 petition to the High closing no cause of action or as holding that there was no ques- impartial manner, destroyed Court alleging that the affairs constituting an abuse of tion but that the plaintiff was the books and records of the of the company were being process. In addition, the dispute entitled to proceed by way of company and failed to act in conducted by the appellants in that had arisen was manifestly special summons when seeking the interests of the creditors of a manner oppressive to them. encompassed by the terms of the order for possession and to the company and, in particular, The appellants had purchased the arbitration clause and the proceed by summary summons of the Revenue. The respon- shares in the company from the proceedings should therefore in relation to the liquidated dent was unfit to be concerned respondents representing 60% have been stayed. sum. The rules of the superior with the management of a of the issued share capital. The In the matter of Via Net Works courts clearly envisaged that company. The respondent appellants sought to have the Limited, Supreme Court, proceedings in which a mort- would be disqualified for seven respondents’ petition dismissed 23/4/2002 [FL5215] gagee sought an order for pos- years from being concerned in on the grounds of abuse of session were properly brought the management of a company process or alternatively staying by a special summons, and those as liquidator, receiver or exam- the petition pending a referral BANKING in which relief was sought in the iner. In addition, conditions to arbitration. Mr Justice Lavan form of a judgment for a liqui- were imposed on the respon- refused the orders sought and Litigation, summary dated sum were properly dent in relation to acting as an the appellants appealed the judgment brought by way of summary auditor, director or secretary judgment to the Supreme Property – practice and procedure summons. There was no reason of a company. The respondent Court. It was submitted that – summary judgment – res judi- why a mortgagee seeking an appealed against the judgment. the respondents did not have cata – estoppel – multiplicity of order for possession should seek The Supreme Court the necessary locus standi to actions – rule in Henderson’s to join with it an order which (Murphy J delivering judg- bring a section 205 petition as case – order of possession already was properly brought by way of ment; Murray J and they were obliged to transfer all issued – whether claim already lit- a summary summons in the case McGuinness J agreeing) dis- their shares under the share- igated – Rules of the Superior of a claim for liquidated sum. missed the appeal. The respon- holders’ agreement. In addi- Courts 1986, order 2, rule 1, This was not a case of action dent had destroyed the docu- tion, it was contended that the orders 3, 37, 38 estoppel because the cause of ments in question in order to issues raised were governed by The plaintiff bank had obtained action in the two sets of pro- deprive the official liquidator the law of the State of New an order for possession against ceedings was entirely different: of access to them. The respon- York and that the proceedings the defendants a number of one, a cause of action based on dent had showed a completely should be referred to arbitra- years previously which had not the right of a mortgagee to pos- mistaken view as to the duties tion as the matter was within been enforced. In these pro- session; the second, the right of of a liquidator. While it was the scope of a valid arbitration ceedings, the plaintiff sought a creditor to recover the money accepted that the respondent clause. summary judgment against the owed by a debtor. had not acted maliciously, the The Supreme Court (Keane defendants. The defendants Ulster Bank v Lyons, Supreme decision to permit the destruc- CJ delivering judgment; claimed that the present pro- Court, 11/3/2002 [FL5137] tion of the books and records

37 Law Society Gazette June 2002 Briefing was a very serious wrong. The reference to the wording of the main house of the complex and, and Hardiman J agreeing) dis- High Court was entitled to dis- Fisheries Acts to make SI 267/98 as such, only had rights to missed the appeal, holding that qualify the respondent from and accordingly had acted ultra receive care facilities in the it might be thought unjust that filling certain offices and to vires as to the mode of imple- main house. Accordingly, the a lay litigant was unable to impose other stipulated condi- mentation of the EC regulation. claim was dismissed. The plain- recover costs, but that was a tions. The purported transposition was tiffs appealed against the judg- matter for the legislature. Only Cahill v Grimes, Supreme ultra vires in that SI 267/98 ment. legal costs that a court could Court, 1/3/2002 [FL5185] infringed the exclusive law-mak- The Supreme Court measure were allowed. The ing power conferred on the (Fennelly J delivering judgment; High Court judge had correctly Oireachtas by article 15.2.1 of Denham J and Murray J agree- disallowed the costs awarded in CONSTITUTIONAL the constitution. ing) dismissed the appeal, hold- respect of the solicitors who had Browne v Attorney General ing that the terms of the advised the plaintiffs but were European law, fishing and and Others, High Court, Mr brochure could not be relied on not on record for them. fisheries Justice Kearns, 6/3/2002 as being included in the terms of Dawson and Others v Irish Fisheries and marine law – admin- [FL5121] the leases. The terms of the Brokers Association, Supreme istrative law – European law – del- leases of the residents did not Court, 8/5/2002 [FL5337] egation of legislation – ministerial include an implied right of powers – statutory instrument – CONTRACT access to the main house of the use of drift nets – whether regula- complex. The trial judge had CREDIT AND SECURITY tion ultra vires – whether passing Landlord and tenant found that the defendants had of regulations necessitated by mem- Land law – conveyancing – con- discharged the burden of proof Practice and procedure bership of European Union – Sea tract – breach of terms of lease – of showing that the variation of Summary judgment – credit and Fisheries (Drift Nets) Order specific performance – service the care contract was in the security – guarantee – construction 1998 – Fisheries charges – misrepresentation – plan- interests of the retirement vil- of guarantee – whether sums (Consolidation) Act, 1959 – ning – right of access – whether lage as a whole. The defendants claimed due and owing – whether Bunreacht na hÉireann 1937 defendants entitled to reside in had formed this opinion in a defendants had real or bona fide The applicant initiated pro- property – whether defendants bona fide manner. defence ceedings seeking to challenge entitled to alter terms of contract – Honiball and Others v The plaintiff sought summary the validity of certain regula- whether defendants obliged to pro- McGrath and Others, judgment for the sum of tions dealing with the use of vide residential nursing facilities – Supreme Court, 24/4/2002 £211,134 which, it was claimed, drift nets. The applicant’s vessel whether terms in brochure could [FL5318] was owed by the defendants on had been boarded by members override terms of care contract – foot of a guarantee entered into of the Naval Service and subse- Companies Act, 1990, section by the defendants. The defen- quently detained on suspicion of 12(2) – Registration of Title COSTS dants sought leave to defend the having committed an Act, 1964, section 72 proceedings, claiming that the offence under the Fisheries The plaintiffs were residents of Litigation, practice and guarantee should be construed (Consolidation) Act, 1959. The a retirement home complex. procedure strictly and crystallised on the applicant claimed that the rele- The complex had run into diffi- Recovery of costs – whether lay liti- date of the first default. It was vant regulation was ultra vires culties and had been taken over gants entitled to recover costs – further contended that the the powers of the third-named by the defendants. The defen- whether determinations of taxing guarantee document was respondent, contrary to the dants sought to manage the master correct – whether refusal to ambiguous in relation to the European Communities Act, 1972 complex and instituted a num- allow costs unjust guarantor’s liability and must be and contrary to section 5 of the ber of changes to the original The plaintiffs were insurance treated as null, void and of no Fisheries (Amendment) Act, 1983. care contract. The plaintiffs brokers who were successful in effect. The defendants claimed The applicant also claimed the brought proceedings claiming their proceedings against the that there was an obligation on regulation was ultra vires the that the defendants had failed to defendants. The plaintiffs were the part of the plaintiffs to Fisheries (Consolidation) Act, honour their obligations as set awarded costs of the action and inform the guarantor of the 1959 and was repugnant to the out in the care contract. In had appeared at their case as lay default and to pursue the cus- constitution. addition, the plaintiffs contend- litigants. In the High Court, tomer for payment. Instead, it Kearns J granted the declara- ed that terms set out in an Kelly J declined to award the was alleged that the default was tions sought. A fundamental advertising brochure had not plaintiffs the costs of the ignored and additional sums principle of the rule of law was been adhered to. The plaintiffs preparatory work done by them were added on. The defendants the principle of legality whereby sought decrees of specific per- on the basis that they had con- contended that at no time did every executive or administrative formance. The court rejected ducted the litigation in person. they consent to the amendment act which affected legal rights, the claim of the plaintiffs, hold- In addition, the High Court had of the guarantee. In the High interests or legitimate expecta- ing that the defendants were set aside fees awarded to a firm Court, Mr Justice O’Neill held tions must be legally justified. not obliged to provide residen- of solicitors who had advised the that there was no basis for the The minister had not demon- tial nursing facilities. The plaintiffs but were not on record contention that the guarantee strated that the measure in ques- defendants were entitled to vary for them. The plaintiffs crystallised upon the first tion met the principles and poli- the terms of the care contract. appealed these determinations. default. The construction of the cies test and had not shown that The plaintiffs could not be said The Supreme Court (Keane CJ guarantee put forward by the he had such legal authority by to possess property rights to the delivering judgment; Murphy J defendants would render it vir-

38 Law Society Gazette June 2002 Briefing

tually meaningless. The exten- extradition to the UK authori- fair procedures – order of prohibi- finding the applicant guilty. If sions of time granted under the ties. It was alleged that the tion sought – whether conviction the applicant was dissatisfied guarantee were permissible applicant had committed drugs should be quashed – whether trial with the guilty verdict, the under the terms of the guaran- offences. The applicant alleged judge had taken irrelevant consid- appropriate remedy was to tee and did not represent a that he had been denied access erations into account in determin- appeal. Judicial review did not departure from the terms of the to relevant documents, that he ing sentence – whether unlawful lie on a quia timet basis. The guarantee. It could not be said had been denied the opportuni- interference in applicant’s rights – applicant appealed against the that there was a fair or reason- ty to cross-examine certain per- whether applicant received fair decision. able probability of the defen- sons and that there had been a trial – whether judicial review The Supreme Court dants having a bona fide failure to vindicate his constitu- available on quia timet basis. (Hardiman J delivering judg- defence. Liberty would be tional rights. In addition, it was The applicant had been charged ment; Murphy J and Geoghegan granted to the plaintiff to enter contended that the offence in in the District Court with pub- J agreeing) dismissed the appeal, final judgment for the sum question did not correspond to lic order offences. The appli- holding that the question of claimed. The defendants an offence known to Irish law. It cant had contended that a garda whether the applicant intended appealed against the judgment. was also contended that given had assaulted him at the time to sue for assault was wholly The Supreme Court the lapse of time that had and was considering bringing a irrelevant to the question of the (Geoghegan J delivering judg- occurred, it would be oppressive complaint in this regard. A appropriate sentence to be ment; Murphy J and Hardiman to proceed with the extradition. solicitor appearing on behalf of handed down in the District J agreeing) dismissed the Mr Justice Ó Caoimh dis- the accused had suggested that Court. It was unfortunate that appeal. The submissions of the missed the proceedings. The rather than record a conviction, the matter was mentioned at all. defendants were entirely mis- applicant had been afforded the the District Court judge might However, the words of the dis- conceived. To have continued opportunity to cross-examine consider requiring the payment trict judge would not justify trading with a customer who the police officer in question of money into the poor box. granting the relief sought by was in breach of terms binding and had not availed of it. There The District Court judge indi- way of judicial review. The mat- upon him was an indulgence. had been a lack of reasonable cated that proceedings would be ter should be remitted to the Mere forbearance to sue was expedition on the part of the struck out if the applicant with- District Court and there pro- not sufficient to release a surety. UK authorities which had not drew his complaint against the ceed in accordance with law. Allied Distributive Merchants been explained. However, it garda. The District Court judge Mellett v District Judge and Limited v Kavanagh and would not be unjust, oppressive found the applicant guilty and the DPP, Supreme Court, Kavanagh, Supreme Court, or invidious to order up the then adjourned the matter 26/4/2002 [FL5245] 10/5/2002 [FL5336] delivery of the plaintiff. The before any sentence had been offence set forth in the extradi- passed. The applicant changed tion warrant was an offence his mind about giving an under- DELAY CRIMINAL known to Irish law. Accordingly, taking and sought an order of the relief sought by the appli- certiorari to quash the convic- Dismissal of proceedings Extradition, judicial review cant would be refused. tion and an order of prohibition Practice and procedure – delay – Drugs offences – delay – whether Armstrong v Judge Smithwick restraining any further prosecu- litigation – motion for judgment – failure by state authorities to abide and the Attorney General, tion. The applicant contended compensation for interference with by fair procedures – whether it High Court, Mr Justice that his decision whether or not property rights – whether plaintiff would be oppressive to proceed with Ó Caoimh, 18/1/2002 to pursue complaints against the had proceeded with undue delay in extradition – Extradition Act, [FL5191] gardaí had an improper bearing the case – whether court should 1965, sections 47, 50 – Misuse of on the nature of the sentence to extend time for delivery of state- Drugs Act, 1977 Fair procedures, judicial be imposed. Ms Justice Carroll ment of claim The applicant issued proceed- review held that the trial judge had The plaintiff had vacated his ings seeking to challenge his Garda Síochána – certiorari – acted within jurisdiction when premises as a result of a notice

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The plaintiff which required that the inordi- Garda Síochána was a serious CJ delivering judgment; sought to recover damages nate and inexcusable delay matter and under any reasonable Murphy J and Hardiman J from the defendant and issued a should be overlooked. interpretation of the legislation agreeing) dismissed the appeal. plenary summons. However, a Daly v Limerick Corporation, it would have been intended that The trial judge was entirely considerable delay elapsed in Supreme Court, 7/3/2002 expedition was also in the inter- correct in treating the delay as the issuing of the statement of [FL5163] ests of those members. Given inordinate and inexcusable. claim. The plaintiff brought a the gross and unlawful delay that The balance of justice was motion to extend time for the Garda Síochána, judicial had occurred, the appeal would clearly in favour of striking out service of the statement of review be allowed. proceedings. The order of the claim and also for judgment in Judicial review – delay – com- McCarthy and Dennedy v High Court was affirmed. default of defence. Mr Justice plaints board – fair procedures – Garda Síochána Complaints Robert McGregor & Sons v Morris was satisfied that the whether tribunal acted ultra vires Tribunal and Others, Mining Board and Others, plaintiff’s motion should be – whether specific breaches of disci- Supreme Court, 15/3/2002 Supreme Court, 26/4/2002 refused and also that there pline alleged bore relation to orig- [FL5294] [FL5313] should be a refusal to extend inal complaint – whether failure the time to deliver the state- by respondents to act with reason- Practice and procedure ment of claim on the grounds able expedition – Garda Síochána Delay – preliminary issue – min- EVIDENCE that the plaintiff had been (Complaints) Act, 1986 ing – prospecting licenses – whether guilty of inordinate and inex- The applicants were members plaintiffs’ action should be stayed – Liability, personal injuries cusable delay. Furthermore, if of An Garda Síochána who registration of minerals – applica- Negligence – liability – traffic acci- an application had been were the subject of complaints tion granted in respect of one area dent – fatal injuries – claim by brought by the defendants to in relation to the arrest of a – right to work minerals in other widow of deceased driver – circum- strike out the plaintiff’s case on member of the public. The areas rejected – proceedings not stantial evidence – whether defen- the grounds of this delay, it applicants sought to challenge issued until ten-and-a-half years dant contributed to accident – would have been granted. The the actions of the Garda after cause of action arose – whether impact occurred solely on plaintiff appealed against the Síochána Complaints Board on whether delay in prosecuting claim deceased’s side of road – whether judgment. the grounds that the chief exec- inordinate and inexcusable – speed of deceased’s vehicle major The Supreme Court (Keane utive of the board had acted whether valid excuse for delay contributing factor to accident CJ delivering judgment; ultra vires in formulating the existed – balance of justice – The plaintiff claimed damages Hardiman J and Fennelly J alleged breaches of discipline whether claim statute barred – arising out of the death of her agreeing) dismissed the appeal. and referring these to the Minerals Development Act, husband whose car was in colli- The case as pleaded was one in Garda Síochána Complaints 1979, section 15(4) sion with a left-hand drive which the plaintiff was essen- Tribunal. In addition, the The applicants had made an camper van driven by the tially claiming that the defen- applicants sought to impugn application to the High Court defendant. The deceased was dants failed to exercise in his the proceedings before the tri- pursuant to section 15(4) of the accompanied by two colleagues favour the statutory power to bunal on the grounds of delay. Minerals Development Act, 1979. from the Defence Forces who make a grant of compensation In the High Court, Mr Justice However, as a preliminary issue, were seriously injured and had to him, having regard to the Smyth refused the reliefs it fell to be decided whether the no recollection of the accident. fact that he had to leave the sought and the applicants applicants’ action should be The defendant’s van had been premises as a result of their appealed. stayed due to the alleged delay stopped at an angle in the cen- dangerous and dilapidated The Supreme Court in instituting proceedings. In tre of the road preparing to state. Making every assumption (Murray J and Geoghegan J the High Court, Carroll J held turn onto a road when it was in favour of the plaintiff, the delivering judgments; Keane that the passage of time in not struck at speed by the fact remained that this was a CJ, Murphy J and McGuinness issuing proceedings until ten- deceased’s car. Damages had purely discretionary power, a J agreeing) allowed the appeal. and-a-half years after the cause been agreed at £247,000 and power which the corporation Murray J held that the appli- of action arose was such that the the court was asked to decide enjoyed but was not a power cants were erroneous in their delay could be described as the question of liability. Ó which it had to exercise in view of what could constitute a inordinate. The reason given by Caoimh J held that the favour of any person. None of relationship with an original the applicants, that no rules of deceased’s car was being driven the documents exhibited gave complaint. The breaches of dis- court had been made regulating at an excessive speed and this any indication that the corpo- cipline alleged against the the right of appeal, was not a was a major contributing factor ration had misconceived or applicants were related to the valid excuse as an appeal could to the accident. The essential misapplied its powers or that original complaint and were have been brought at any time liability for the accident must they had exercised them in a not so unrelated as to render by plenary summons. The court rest with the deceased. The manner which disregarded any the actions of the board ultra could foresee unfairness for the defendant was 20% negligent constitutional rights of the vires. On this ground, the respondents in not being able to for failing to have his vehicle in plaintiff. The court was satis- appeal would fail. However, find a witness due to the lapse of the correct position on the road fied that the president of the referring to the issue of delay time. This placed an inexcusable at the time of the impact. The High Court was perfectly cor- (as contained in the judgment and unfair burden on the plaintiff appealed against the rect in holding that the delay of Geoghegan J), the appeal respondents. The application judgment.

41 Law Society Gazette June 2002 Briefing

The Supreme Court by a widow of the deceased. dants were not negligent in fail- (Hardiman J delivering judg- The deceased had suffered ing to diagnose the phaeo it was ment; Murphy J and from a rare form of abdominal difficult to justify his finding of Geoghegan J agreeing) held tumour known as a phaeo. It negligence regarding the ‘panic LAW SOCIETY that the trial judge’s findings in was common case that the pri- attacks’. The trial judge had no OF IRELAND relation to excessive speed were mary cause of death was the basis for concluding that the rationally open to him on the tumour. The plaintiff claimed defendants were negligent in evidence. However, there had that the defendants ought to failing to carry abdominal tests been an important dispute have diagnosed the condition in order to investigate the panic ON between the engineers called by and treated the deceased attacks. The appeal of the both parties in relation to the accordingly and were negligent defendants was allowed. Mr E-MAIL point of impact of the vehicles for not having done so. Barr J Justice Geoghegan, dissenting, which had not been considered. was satisfied that there was a held that there had been a duty The matter would therefore be failure to investigate fully the of care to investigate the panic Contactable at remitted to the High Court for symptoms of the deceased. In attacks and there had been a [email protected] retrial. particular, it was found that the failure to carry this out. The Furey v Suckau, Supreme ‘panic attacks’ experienced by appeal should be dismissed. Individual mail Court, 26/4/2002 [FL5259] the deceased ought to have Wolfe v St James Hospital and addresses take been investigated but were not. Others, Supreme Court, the form: Negligence had been estab- 20/2/2002 [FL5122] G [email protected] PERSONAL INJURIES lished. The defendants appealed to the Supreme Court The information contained here Medical negligence against the findings of the High is taken from FirstLaw’s Legal To rt – liability – failure to diag- Court. Current Awareness Service, pub- AND nose condition of plaintiff – plain- The Supreme Court lished every day on the Internet at tiff suffering ‘panic attacks’ – (Fennelly J delivering judg- www.firstlaw.ie. For more infor- ON THE standard of care – whether medical ment; Murray J agreeing and mation, contact bartdaly@ first- staff negligent in treatment of Geoghegan J dissenting) law.ie or FirstLaw, Merchants WEB patient – Civil Liability Act, allowed the appeal. Mr Justice Court, Merchants Quay, Dublin www.lawsociety.ie 1961 Fennelly held that once the trial 8, tel: 01 679 0370, fax: 01 679 The proceedings were brought judge had held that the defen- 0057.

DIPLOMA IN LEGAL FRENCH

nce again the Alliance Française, in a broad area including contract law, company Oassociation with the Law Society, is open law and tort. The language modules to applications for its Diploma in legal French complement the syllabus while concentrating programme. Certified by the internationally- on the oral and written skills essential to success recognised Chambre de Commerce et in the diploma examination. d’Industrie de Paris (CCIP), this programme is now in its 7th year and takes place over the TIME AND VENUE academic year October 2002 to June 2003. Lectures will take place at the Law Society, The diploma is a practical qualification and Blackhall Place, on Wednesday evenings and provides a comprehensive study of the French one Saturday per month. legal environment. Successful participants possess an excellent knowledge and ENTRY CRITERIA understanding of the French legal system and The course is open to solicitors, barristers, are qualified to interact with French legal and apprentices and other interested parties. business professionals. Admission will be based on a pre-course The course is divided into legal French and assessment at the Alliance Française. Course fee: general French modules. Legal modules cover €935 per student, inclusive of course materials.

For further information please contact: Louise Stirling, Alliance Française, tel: 01 676 1732, ext 205, or e-mail: [email protected]

42 Law Society Gazette June 2002 Briefing Eurlegal News from the EU and International Affairs Committee Edited by TP Kennedy, director of education, Law Society of Ireland

Procurement law as it applies to public/private partnerships

any readers will be famil- straints preceded by formal 2001, explanatory memoran- Implemented in Ireland by Miar with the much-herald- advertisement throughout the dum). the European Communities ed introduction of public/private EU. Slightly different rules PPPs involve a genuine (Award of Public Supply partnerships (PPPs) in Ireland. apply for each of the different transfer of risk from the public Contracts)(Amendment) PPPs are seen as a potential spur types of procurement (works, sector to the private sector and Regulations 1994 (SI 292 of to the economy. Many large- supplies and services) and fur- allow state authorities to draw 1994) scale infrastructure contracts are ther differences occur due to upon economic resources which • The Public works directive – being put out to tender by the the availability of three differ- otherwise would not have been council directive 93/37/ Irish government, such as the ent contract-award procedures available to them. As increased EEC (covering construction Luas line and the Metro in (the open, restricted and nego- deregulation becomes more and engineering works). Dublin, educational infrastruc- tiated procedures: see below). common in Ireland and Implemented in Ireland by ture projects and the bypass The foundation of European European funding of services is the European Communities roads and motorways that are Community law relating to set to decrease, public/private (Award of Public Works currently under construction public procurement rules can partnerships are a cost-effective Contracts)(Amendment) throughout the country. be found in the 1957 Treaty of method of offering high-quality Regulations 1994 (SI 293 of But what of the legal proce- Rome, notably in those provi- products and services to the 1994) dures for practitioners involved sions that: guarantee the free public while simultaneously • The Utilities directive – coun- in the PPP tendering process movement of goods, services providing a more flexible cil directive 93/38/EEC and the influence of European and capital; establish funda- approach to the support of cap- (applies to ‘utility’ companies law on such procedures? This is mental principles (equality of ital investment in economic and operating in the water, governed by a well-established treatment, transparency and social infrastructure. energy, telecommunications European legal framework in mutual recognition); and pro- and transport sectors). respect of procurement of pub- hibit discrimination on the EU public procurement Implemented in Ireland by lic contracts, which has been grounds of nationality (article directives the European Communities fully implemented in Ireland. 12, article 28 and those follow- The treaty provisions were ren- (Award of Contracts by Entities Many practitioners, whether ing, article 43 and those follow- dered more effective by a series Operating in the Water, advising public utility bodies or ing, and article 49 and those of detailed secondary legislation Energy, Transport and suppliers who submit tenders following). In addition, article in the form of European direc- Telecommunications Sectors) for the PPP process, should 163 guarantees that the com- tives. Ireland does not have any Regulations 1995 (SI 51 of have a working knowledge of munity supports co-operation binding domestic public pro- 1995), and the EU public procurement among undertakings, research curement code and, as such, it •The Remedies directive – rules. centres and universities, among relies upon the implementation council directive 89/665/ The purpose of the European other things, to exploit the of these directives by way of EEC (covers review proce- Union’s public procurement internal market ‘in particular corresponding statutory instru- dures of procurement notes). policy is to attain fair and open through the opening-up of ments: Implemented in Ireland by competition for public contracts national public contracts’. • The Public services contracts the European Communities above certain thresholds, by Much of this article looks at directive – council directive (Review Procedures for the allowing suppliers to gain the the application of the public 92/50/EEC (applicable Award of Public Supply and full benefit of the single market procurement rules to the PPP to services contracts). Public Works Contracts) and contracting authorities to process. PPPs can be defined as Implemented in Ireland by Regulations 1995 (SI 104 of choose from a more competitive ‘arrangements between the the European Communities 1993). and wider range of bids. public and private sector for the (Award of Public Services Transparency and equality of delivery by the private sector of Contracts) Regulations 1993 A further public procurement treatment are two important certain public infrastructure (SI 173 of 1993) directive 97/52/EC was adopt- elements in the European pub- and/or public services, which • The Public supplies directive – ed by the European Parliament lic procurement process. traditionally would have been council directive 93/36/ and the Council of the The EU regime provides for provided by the public sector’ EEC (covering contracts for European Union on 13 a regulated tendering exercise (State Authorities (Public Private the purchase or hire of October 1997. This was imple- within strict timetable con- Partnership Arrangements) Bill, equipment and goods). mented in Ireland by the

43 Law Society Gazette June 2002 Briefing

European Communities (Award of directive, the High Court has the of these three directives apply to directive apply to ‘contracting Public Services Contracts) power to review the award of a a particular contract. Many authorities’, which are defined Regulations 1998 (SI 378 contract and does have the PPPs may involve contracts that in article 1(b) of the Services of 1998), the European power to award certain reme- may be multi-faceted, incorpo- directive as ‘the state, regional or Communities (Award of Public dies, including (a) declaring that rating elements of public works, local authorities, bodies gov- Supply Contracts) (Amendment) a contract is void, (b) ordering supplies and services. For exam- erned by public law, associations Regulations 1998 (SI 379 of that the contract be varied, ple, if the contract involves an formed by one or more of such 1998), and the European and/or (c) awarding damages to operational element, such as a authorities or bodies governed Communities (Award of Public any person who is harmed by an contract for the construction of by public law’. Works Contracts) (Amendment) infringement of the public pro- a public transport system that The regulations apply to Regulations 1998. This directive curement rules. The European involves the operation of the contracts awarded by the public amended in different ways Commission also has the power service after its construction, it sector in a wide sense. They the Services directive (92/50/ to request an explanation from a could invariably be classified as apply not only to central gov- EEC), the Supplies directive member state on any contract both a services and supplies ernment departments and local (93/36/EEC), and the Works procedure in which it considers contract. As a result, this ren- authorities but also to ‘bodies directive (93/37/EEC). The there has been a breach of com- ders the procedure less than governed by public law’. The most relevant amendments munity procurement rules. The clear. latter includes any organisation were made in respect of proce- member state has 21 calendar For a supply and services which is established to meet the dures concerning the award days in which to confirm that contract, the ‘relative value’ of ‘needs in the general interest’, notices, discrimination, debrief- the breach has been either cor- each element is the determi- has legal personality and which ing requirements, disclosure, rected, or give reasons why it has nant. Therefore one should is principally financed, super- withholding information, and not been, or inform the commis- apportion the value of the con- vised and appointed by the state time limits. sion that the award of the con- tract between the different ele- or other public authorities. tract has been suspended. ments and the element with the There is a non-exhaustive list of Utilities directive highest value will indicate such bodies in Ireland set out in The Utilities directive covers Public services, supplies and which of the supplies or services annex 1 to the Works directive. contracts involving water, ener- works directives directives will apply. The definition of contracting gy, transport and telecommuni- The Public services contracts direc- The works and services authorities has been considered cations and is concerned with tive covers contracts for public directives do not give any indi- by the ECJ (case 31/87 those contracting authorities services, which means contracts cation in such circumstances Gebroeders Beentjes BV v operating in these four sectors. in writing between a service which of the directives should Netherlands, [1988] ECR 4635; Contracting authorities in these provider and a contracting apply. For example, a PPP proj- case C-44/96 Mannesmann sectors largely operate in a authority for the provision of a ect for the construction of a Anlagenbau Austria v Strohal commercial or quasi-commer- public service. clubhouse for a municipal golf Rotationsdruck GmbH, [1998] cial manner. In Ireland, the The Public supplies directive course would involve elements ECR 1-73; and case C-306/907 main bodies whose contracts covers contracts in writing for of works (for the building) and Connemara Machine Turf Co Ltd are covered are the semi-state the supply of public products services (involving the mainte- v Coillte Teoranta, [1998] ECR organisations and local authori- involving the purchase, lease, nance and running of the club- 1-8761). In the Coillte case, a ties operating in these four sec- rental or hire purchase, with or house). In this instance it is nec- dispute arose as to whether the tors. Provisions in the Utilities without the option to buy, of essary to examine the main Irish Forestry Board, which directive resemble those of the products between a service object of the overall contract as failed to tender the award of main directives, but they do provider and a contracting decided in case C-311/92 two public supply contracts, allow for more flexible proce- authority. Hotelera International (19 April came within the meaning of a dures as a result of the commer- The Public works directive 1994). contracting authority. Coillte cial nature of the bodies in covers public works contracts, It is possible that a PPP could was established by the Forestry question. which are defined under article be structured as a service con- Act, 1988 and is a private under- 1 of the directive as contracts tract and still be classified as a taking subject to the Companies Remedies directive that are concluded in writing works or supplies contract. It is Acts. Its day-to-day business was The Remedies directive covers which have as their object important to note, however, managed independently of the review procedures of procure- ‘either the execution, or both that the procedural require- state and the state had very little ment rules and is aimed at the execution and design, of ments for works, supplies or influence in the award of public ensuring that review procedures works related to one of the services contracts under the contracts. The ECJ referred to are made available to any activities referred to in annex II directives are quite similar, and its decision in Beentjes and potential or actual tenderer for as a work’. A work is defined as so the categorisation of a con- determined that the term ‘con- a contract who has been, or the outcome of building or tract is not necessarily as critical tracting authorities’ should be risks being, harmed by any engineering works taken as a as one might think. interpreted in functional terms. infringement. These powers of whole that is sufficient in itself It emphasised that there was no review have been translated into to fulfil an economic and tech- Contracting authorities provision expressly to the effect statutory instruments in nical function. subject to the public sector that the state control was to Ireland. For example, according directives extend to the awarding of public to regulation SI 104 of 1993 Supplies, services or works? Each of the Services directive, the supply contracts by Coillte, and implementing the Remedies It is not always easy to say which Supplies directive and the Works that the state might exercise

44 Law Society Gazette June 2002 Briefing such control at least indirectly. post-award notices but are Under the open and restricted Contracting authorities involved It held that Coillte was entrust- exempt from other procedural procedures, the authority in PPPs should be advised that ed to provide a service of man- requirements. PPP projects must choose among bidders the ECJ interprets the grounds aging the national forests and may be a combination of part A on the sole basis of the written for use of the negotiated proce- also providing certain facilities (for example, sewage/refuse dis- tenders that are submitted. dure very narrowly. in the public interest. It held posal) and part B (for example, The contracting authority dis- In an opinion on 13 that the state had the power to recreational, cultural and sport- cusses the tenders received September 2000, the European appoint the head officers of the ing services). In this instance, from all the bidders (see the Commission reprimanded the company and could exercise the full set of procurement rules statement concerning article British government for breaking control over its economic activ- will apply if the part A services’ 7(4) of council directive the procurement rules over the ity. As a result, it decided that relative value is more than the 93/37/EEC of 14 June 1993, use of the negotiated procedure Coillte did come within the part B services portion of the OJ [1994] L 111/114). In the in tendering for the PFI (the UK meaning of a ‘public authority arrangement. case of PPP projects, detailed equivalent of PPPs) deal for the whose public supply contracts The categories of services to discussions and negotiations redevelopment of the Pimlico are subject to group control by which the regulations apply are with bidders are necessary School. The commission stated the state’ (point VI of annex I to set out in schedule 1 of the before deciding on one partic- that the contract did not, as the directive 77/62/EEC). directive, which is divided into ular bidder. As a result, award- determined by the British gov- Although this decision has been two parts: part A and part B. ing authorities should be ernment, satisfy the criteria for criticised and the dissenting The regulations provide that if advised to opt for the negoti- use of the negotiated procedure, opinion of Advocate General the contract is a part B services ated procedure. which should be used for a con- Alber is considered to be prefer- contract, then, although techni- Awarding authorities can tract of an exceptional nature able, it is an indication that the cal specifications must be drawn always choose to opt for the which, when considering the court may adopt a wide inter- up in terms of European specifi- open or restricted procedures, risks attaching to it, did not per- pretation of the term ‘contract- cations as far as possible and an whereas a negotiated proce- mit prior overall pricing. The ing authority’. award notice must be published, dure may only be used in cer- commission found that the use there is no requirement to use tain circumstances as laid out of the negotiated procedure Thresholds the open, restricted or negotiat- in the directives (see below). should be limited to situations Before the award of contracts is ed procedures set out in the reg- The negotiated procedure where the existence of any of the affected by the procurement ulations. therefore is more suitable for three contingencies under the directives, the value of the con- directives enabling the use of the tracts must exceed the following negotiated procedure are con- thresholds, effective from 1 July EXAMPLES OF PART A AND PART B SERVICES crete and can be proved by the 2002: awarding authority. These three • €6,242,028 for works con- contingencies under the direc- Part A services Part B services tracts awarded by govern- tives being: • Land transport • Rail transport ment departments and •In exceptional cases, when the • Maintenance and repair • Water transport offices, local and regional nature of the works or servic- • Telecom services • Security services authorities and other public es or the risks involved do not • Financial services • Legal services authorities permit prior overall pricing • Computer (IT) services • Education services • €162,293 for supplies and • In the event of irregular ten- • Architectural and engineering • Health and social services services contracts applying to ders in response to an open or services • Recreational, cultural and government departments and restricted procedure • Management consultancy sporting services offices • When the nature of the serv- • Advertising services • Other services. • €249,681 for supplies and ice being contracted for, espe- management services contracts applying to cially in the case of intellectu- • Building-cleaning/property local and regional authorities al or financial services, is such • Sewage/refuse disposal. and public bodies outside the that contract specifications utilities sector. cannot be established with sufficient precision to permit The procedural requirements Tendering procedures. PPP projects. There are two a contract to be awarded Types of service contracts. The directives established a types of negotiated procedure: under the open or restricted There are two types of services framework whereby the tender- • Negotiated procedure with- procedures. listed in the directives that apply ing of certain projects could be out prior publication (non- to contracting authorities. Part carried out. The EU directives competitive negotiated pro- The commission went on to A services are considered as pri- recognise three tendering pro- cedure), capable of use in point out that the procedure ority services capable of leading cedures: exceptional circumstances as cannot merely cover the situa- to cross-border competition •Open – everyone considered set out in the directives, and tions that involve risks that will and are subject to the full set of • Restricted – a short-list made • Negotiated procedure with normally be implied in any pro- procurement rules. Part B serv- out of all interested parties prior publication (competi- curement contract. The com- ices are the services that are • Negotiated – the contracting tive negotiated procedure), mission also decided that the subject only to the rules on authority negotiates with the capable of use in certain cir- type of works that may fall into technical specifications and suppliers of its choice. cumstances. this category includes highly

45 Law Society Gazette June 2002 Briefing innovative and complex works The time limit is 40 days for entail expenditures of commission not more than 48 and where there is a possibility receipt of tenders in response to €6,242,028 in any particular calendar days after the award of of finding archaeological ves- the restricted or negotiated pro- works category. For supplies the contract. These notices are tiges at the site or where the cedures. This time limit may be and services contracts, contract- made available to unsuccessful geological character of the area reduced to 26 days if a PIN is ing authorities are required to candidates upon request. is particularly unusual. In such dispatched at least 52 days and publish prior information Contracting authorities cases, the authority would be not more than 12 months notices of their procurement should note that, when adver- justified in opting for a negoti- before the call for competition plans if these entail expenditure tising in the Official journal, the ated procedure. The commis- was dispatched. of €750,000. provisions of the directives, sion stated that these circum- Advertisement of public In the event that the con- including the format in the stances did not apply in the contracts. There are three tracting authority does not pub- model notices, must be strictly Pimlico School’s case and, as types of notices that the con- lish a PIN including a project, followed in all cases. It is such, it concluded that the tracting authority is obliged to which may arise at a later date important to draft the notice negotiated procedure was not publish in relation to the pro- and is not included in the origi- properly and it should not permitted. curement procedures on public nal prior information notice, exceed 650 words. Therefore, Following this opinion, the contracts: then the contracting authority although detail should be given use of the most appropriate pro- •The PIN, or prior informa- may still proceed with the PPP in respect of the contract, there cedure for PPP projects, being tion notice contract. The advantage to hav- is a limit as to what can be the negotiated procedure, may • The contract notice ing advertised proposed projects included. These notices are set be subject to doubts. • The award notice. in the PIN arises in relation to out in the annexes to the direc- Time limits. Minimum time time limits for the receipt of tives. Any advertising of the limits are set down for the These notices appear in the tenders, which are reduced contract in a national publica- receipt of tenders in response to Tenders electronic daily (TED) when a PIN is published. tion prior to its publication in the different tendering proce- database, located at http:// Contract notice. Where the the Official journal is not per- dures. The time limit for receipt www.echo.lu/ted. contracting authority makes it mitted. of tenders for an open tendering PIN. Contracting authorities known that it wishes to award a Technical specifications. procedure is not less than 36 involved in works contracts are particular contract and invites All of the directives contain days (as amended by council obliged to publish in the Official bids. The notices must be set similar provisions in relation to directive 97/52/EEC) or 22 journal an annual notice, called a out according to the models in technical specifications. The days if a PIN (prior information prior information notice, set- the directives. requirement is to use European notice, also known as prior ting out what the contracting Award notice. This post- standards whenever possible indicative notice) containing all authority proposes to purchase award notice makes known the and, in their absence, there is a available information is dis- in the forthcoming year. For name of the person to whom hierarchy of other standards patched at least 52 days and not works contracts, contracting the contracting authority has that may be used. These are more than 12 months before the authorities are required to pub- awarded the contract. international, national and, call for competition is dis- lish prior information notices of Information on the award of a lastly, company standards if no patched. their procurement plans if these contract must be notified to the others exist.

LAW SCHOOL ANNOUNCES NEW DIPLOMA IN APPLIED FINANCE LAW

he Law School of the Law Society is pleased to announce The next Diploma in legal French certified by the Chambre de the introduction of a new Diploma in applied finance law. Commerce de Paris will run from early October 2002 to June TThis diploma will commence later this year. The course is 2003. Classes will take place in the Law Society on Wednesday designed to acquaint students with the law in relation to the pro- evenings and every fourth Saturday. Full details are available vision of financial services. It will examine the regulation of the from Louise Stirling at the Alliance Française, 1 Kildare Street, financial services industry, wholesale banking, derivatives, Dublin 2, tel: 676 1732, ext 205, or e-mail: lstirling@alliance- aspects of corporate finance and the funds industry. The course francaise.ie. will be provided in the Education Centre in the Law Society on Tuesday evenings over 15 weeks between 6.30pm and 9.45pm. The next Certificate in legal German is scheduled to start in October of this year. This course is specifically designed for A slightly revised Diploma in e-commerce is scheduled to begin lawyers and other interested people with a good level of German. in November of this year. Further details will be released in the Some of the topics covered are German legal structure, civil coming weeks. code, commercial law and European law.

The timetables and syllabi for these courses will be finalised in the coming months. If you would like to receive this information in due course, please e-mail us giving details of your name, address and area of interest at [email protected].

46 Law Society Gazette June 2002 Briefing

The tenders/negotiations However, these will include Department appointment of a mission. These types of con- stage. After candidates have lengthy discussions and corre- contractor to supply the win- tracts are dealt with exclusively indicated their interest in bid- spondence between the award- dows for the new parliamentary in the Works directive. A conces- ding, the contracting authority ing authority and the bidders. office building above sion consists of, or includes, a can proceed to vet the interested Criteria for awarding con- Westminster underground sta- grant by a contracting authority parties. The directives provide tracts. Procurement rules tion, a UK contractor was of a right to exploit the work or that such testing may be carried require that contracting author- accepted for the contract works to be carried out under a out on a review of criteria for ities must state whether they despite a lower bid being sub- contract. An example of a pub- qualitative selection. Bidders will accept a bid on the basis of mitted by another company, lic works concession is a con- can be treated as ineligible if the lowest price only, or on the Harman CFEM Facades (UK) tract to construct a toll bridge they do not satisfy minimum basis of the most economically Limited. Harman sued for or road such as the second standards of economic or finan- advantageous tender (using var- wasted tendering costs, loss of Westlink bridge in Dublin. cial standing and technical ious criteria such as price, peri- profit that it claimed it would There was certain ambiguity capacity. The short-listed candi- od for completion, quality, after- have made on the contract, and surrounding the issue of dates are then sent invitations to sales service and other things). aggravated and exemplary dam- whether the public procure- tender. The information in the If the contracting authority ages. The court held that, for ment rules applied to public invitation to tender is similar to proposes to apply the latter 100% of the profits to be recov- works concessions. This issue that which would be used in the basis when considering a bid, it erable, the tenderer must show was clarified in a communica- notice for the open procedure. must state in the contract docu- to a high degree of certainty tion from the commission in In the case of the restricted pro- ments, or in the notices, which that it would have won the con- April 2000, entitled Interpretive cedure, the preferred bidder is of the criteria it intends to apply tract. However, in this instance communication on concessions chosen from the written tenders to the award and the order of the tenderer had to show that under community law, in that submitted and, as with the open their importance. there was a 90% chance of win- such projects are subject to the procedure, there can be no It is important to note that ning the contract. The court public procurement rules and meaningful negotiations these requirements must be fol- ruled in favour of Harman and principles and thus should be between the parties after the lowed precisely, as a breach of awarded them all loss of profits. followed accordingly. G tenders are received. procurement rules is not looked Public works concessions. In the case of the competitive upon lightly by the ECJ. For Certain PPP projects fall under Philip Daly is a partner in the negotiated procedure, the direc- example, in the Harman case, the scope of public works con- Dublin law firm LK Shields. The tives do not specify what form which concerned the House of cessions and they are treated as final part of this article will appear negotiations are to take. Commons’ Public Works separate contracts by the com- in the next issue’s Eurlegal.

NEWNEW Keating on Probate Second Edition By Albert Keating

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47 Law Society Gazette June 2002 Briefing Recent developments in European law

EMPLOYMENT transport sector and the exclusion OMAI Srl, 22 November 2001. In consists of a number of liberalising extends to all workers in the sector. both cases, Idealservice entered and harmonising directives. The Case C-133/00 JR Bowden, JL into a contract for the supply of latter concern the harmonisation Chapman, JJ Doyle v Tuffnells FREE MOVEMENT OF automatic drink dispensers of the conditions under which pub- Parcels Express Ltd, 4 October GOODS installed on its premises and lic telecommunications networks 2001. Bowden, Chapman and intended to be used by its staff. and public telecommunications Doyle were part-time clerical work- Case C-1/00 Commission v The contracts contained a juris- services many be openly and ers of Tuffnells, a parcel delivery France, 13 December 2001. In diction clause which conferred effectively accessed and used. service. They brought proceedings 1996, the commission imposed a jurisdiction on the magistrate of The dispute in this case concerned over their employer’s refusal to complete ban on imports of all Vidana. The applicants argued Spanish implementation of one grant them paid annual leave. The forms of bovine products from the that this was an unfair clause and such directive. Telefónica chal- UK Employment Appeals Tribunal UK. From June 1998, there was a was unenforceable. Idealservice lenged the manner of implementa- made a reference to the ECJ under gradual lifting of the ban. The date argued that the applicants could tion, arguing that the Spanish gov- article 234 on the interpretation of for the final lifting of the ban was not be regarded as ‘consumers’ ernment was acting ultra vires its directive 93/104/EC on the organ- set as 1 August 1999. France and thus could not avail of direc- regulatory competence. The isation of working time. Regulation refused to open its market to UK tive 93/13 on unfair terms in con- Spanish Supreme Court made a 13 of the directive provides for an imports, relying on the opinion of sumer contracts concluded reference to the ECJ, asking entitlement to annual leave for the French food safety agency. The between a seller or supplier and a whether member states can those workers covered by the direc- commission brought an action consumer. The Italian court impose on dominant operators the tive. However, regulation 18 exclud- against France, arguing that it was asked the ECJ to rule whether the obligation to provide access to the ed workers in the road transport in breach of its EU law obligations. term ‘consumer’, as defined in subscriber loop and to offer inter- sector from the scope of regulation The ECJ held that the French the directive, applied only to nat- connection at local and higher-level 13. The applicants worked in refusal to lift the ban on correctly ural persons. The ECJ held that switching centres. It said that the offices and under their contacts marked imports of British beef the term ‘consumer’ in the direc- purpose of the directive was to could not be asked to work in actu- and veal from 30 December 1999 tive refers only to natural per- ensure interconnection of net- al transport operations. When the was unlawful. However, it did sons, whereas the term ‘seller or works and the provision of a uni- implementing regulations in the UK stress the importance of a reliable supplier’ includes both natural versal service. To achieve this, the entered into force, they asked for tracing system for protecting pub- and legal persons. directive relies primarily on negoti- paid annual leave. This was lic health. ations between operators. refused, as Tuffnells said that they TELECOMMUNICATIONS However, it also permits member were not entitled to it under regula- CONSUMER LAW states to limit the freedom of oper- tion 18. The UK Employment Case C-79/00 Telefónica de ators to decide to enter into such Appeals Tribunal made a reference Joined cases C-541/99 and C- España v Administración General agreements. The ECJ held that the to the ECJ. The ECJ held that the 542/99 Cape Snc v Idealservice del Estado, 13 December 2001. Spanish legislation was in con- directive does not apply to the Srl and Idealservice MN RE Sas v EU telecommunications legislation formity with EU law. G

Law Society Bushmills Millenium Malt 25 years old €110 (plus €17 postage and packaging) First come, first served Only one bottle per member

Contact Alan Greene, Bar Manager, Law Society of Ireland, Blackhall Place, Dublin 7, tel: 01 6724919, e-mail: [email protected]

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48 Law Society Gazette June 2002 People and places Courting success

Wisdom in evidence Dr Paul Anthony McDermott addressing a recent workshop on evidence, which is a vital component of the Advanced advocacy for solicitors course, in the Law Society’s Education Centre

Pictured at the commissioning of the newly-refurbished courthouse in Sligo were (above, from left) Niamh McGovern, Paula Daly, Ann Martin and Tom Martin, president of the Sligo Bar Association, and (below, from left) Judge Keenan Johnson, Claire Walsh, Derry O’Donovan, Helen Johnson, Kathleen Henry, Aideen Collard, Therese Johnson and Brendan Johnson

Grab your partners Eugene F Collins Solicitors has appointed two new partners, Lisa McManus and Ronan O’Neill (pictured above with David Cantrell, managing partner, on left). McManus, who has been a member of the Law Society’s Conveyancing Committee for over five years and an active member of the DSBA Conveyancing Committee, specialises in property law, particularly commercial property. O’Neill specialises in litigation, specifically trademark and copyright infringement cases

Discriminating tastes Pictured at the recent CLE seminar on disability discrimination were (from left) Eilis Barry BL, legal advisor at the Equality Authority; Ciaran O’Mara of O’Mara Geraghty McCourt Solicitors; Terence McCrann of McCann FitzGerald; Madeleine Reid, legal advisor at the Office of the The magnificent building in all its glory Director of Equality Investigations; and the Law Society’s CLE executive Barbara Joyce

49 Law Society Gazette June 2002 People and places

And they’re off... Law Society President Elma Lynch officially starts the Calcutta Run (see News, p3)

Keano and McGrath, together again Twice as nice Deputy Director General Mary Keane does a creditable man-marking Here at the Gazette, we can’t get enough of the Corrs, or even near job on soccer star Paul McGrath, who was in Blackhall Place recently them, so here’s another picture of them with Law Society to promote Healthy eating week President Elma Lynch

FOR BOOKINGS CONTACT MARY BISSETT OR PADDY CAULFIELD CourtTEL: 668 1806 Meet at the Four Courts FEATURES INCLUDE: Improved ventilation and lighting LAW SOCIETY ROOMS Telephone extension in every room Conference facility telephones at the Four Courts Room service catering facility Friary Café

50 Law Society Gazette June 2002 Apprentices’ page SADSI

Solicitors Apprentices Debating Society of Ireland A game of two halves, unfortunately he traditional post-exams half time 3-1 down. Tchallenge match between What was said at half time the PPC1 novices and the will remain confidential, but PPC2 veterans kicked off in the PPC1 team came out like a glorious sunshine at 5pm on 25 team possessed. For a ten- April, to the cheers of a minute period, shots were significant number of raining down on the PPC2 supporters. goal. There was, however, Despite the hour – more to this PPC2 team than considering the exams finished met the eye, and they soaked at 1pm and the availability of up all the pressure that was reduced-price beer tickets in thrown at them, calmly the afternoon – the PPC1 boys despatching a fourth goal. That mustered a sizable squad. was the signal for the game to Whether this was motivated by The PPC1 team (above) and the victorious PPC2 team open up, with both sides a desire to be photographed at creating but missing chances. the unveiling of the new At this point, Cormac SADSI football kit or an urge McCarthy took the game by to buck the recent trend of the scruff of the neck and PPC2 victories is unknown, but threatened to win it single- everybody seemed up for the handedly with some surging game. runs and a well-taken goal. Despite their best efforts, Alas, it was not to be, and the PPC1 team got off to a the PPC2 team were the sluggish start. This was deserved winners, by a score of understandable, considering 5-3. All rivalries were forgotten that most of the players had as the teams retired to the bar, been up all night trying where a spirited discussion took desperately to understand place on the effect of the exams unfair dismissals law while, it is on the outcome. said, the PPC2 team were were 2-0 down. Worse was to annihilated at this point, but, Once again, I must sincerely safely tucked up in their beds. come, with the injury of their with some frantic reorganising, thank Frank Ryan & Son, The PPC2 team came out all great white hope for the game, they began to come back and without whose generosity we fired-up, and before the PPC1 Owen Kelly. The PPC1 lads even managed to get the score would not have a SADSI kit. team knew what hit them they were in danger of getting to 2-1 before going in at Noel Devins, sports liaison officer CAREERS DAY 2002 enson and Associates is Belfast office and our associated to recruitment. The emphasis has retained. This can probably be Bdelighted to be involved, once office in London, we are well- been on retaining staff and filling accounted for by the elevated again, with the SADSI Careers placed to fulfil these vacancies as they arise, rather intake of trainees in previous Day. Last year’s event was both requirements. Our principal, than boosting numbers. Many are years and cost-trimming informative and enjoyable and we Michael Benson, will be a guest adopting a wait-and-see policy, but measures. In any event, the look forward to a further success speaker on the day and will be few are passing up the chance to balance of power is back in favour this year. offering advice on topics such as recruit talented, experienced of the employer, and newly- Benson and Associates is a CV and interview preparation, candidates in certain areas, qualified solicitors will need to niche consultancy, specialising in employment opportunities and especially PPP, banking and work that bit harder to impress. the recruitment of high-calibre salary scales. He will also be financial services, and taxation. That said, there has been a lawyers for private practice, assessing the current market and At the newly-qualified level, recent increase in activity and commerce and industry, from trends in recruitment. there has been a noticeable there is a cautious optimism in newly-qualified to partner level. Our experience suggests that, change in the past nine months. the market. Our clients include pre-eminent over the past year, employers This year’s qualifiers are not We look forward to seeing you legal practices in Ireland and the have been inclined to adopt a necessarily guaranteed their on 5 July, when we can discuss UK who are seeking the best reactive rather than an placement of choice, and not all these and other topics in more talent. From our Dublin base, our aggressively proactive approach newly-qualifieds are being detail. G

51 Law Society Gazette June 2002 Recruitment

www.pmg.ie/careers

PM is an international provider of professional services in project and construction management, engineering design and technical consultancy. COMPANY LAWYER

e require a talented and highly motivated individual for this position Wbased in our Dublin office. Responsibilities include the provision of corporate legal advice; participation in the negotiation and structuring of contracts relating to design, construction and other services; and the management of legal issues that arise in such transactions. While the focus of the position is on the area of contracts and contract negotiation and drafting, it offers a significant opportunity to become involved in a broad range of commercial legal matters, and provides ample opportunity to develop further the legal function within the organization. The ideal candidate is likely to be a lawyer with 10 or more years’ relevant experience. However, we will consider candidates of fewer years’ experience if they have the right knowledge, attitude and skill set. The successful candidate will have the ability to adapt to a demanding and stimulating legal and business environment, will have excellent negotiation, communication and interpersonal skills and an extensive knowledge of the law of contract. An attractive remuneration package is available for the right candidate.

SEND YOUR C. V. IN STRICTEST CONFIDENCE TO: Jim O’Dwyer, Director of Human Resources, PM, Killakee House, Belgard Square, Tallaght, Dublin 24. Email: [email protected] Dublin • Cork • Rugby • Warsaw • Singapore

52 Law Society Gazette June 2002 Professional information

LOST LAND Regd owner: John and Nora McCaul; CERTIFICATES folio: DN34750L; lands: property LawSociety situate in the townland of Tymon Gazette Registration of Title Act, 1964 South and barony of Uppercross; An application has been received from Co Dublin the registered owners mentioned in Regd owner: Michael and Mary ADVERTISING RATES the schedule hereto for the issue of a Lasinski; folio: DN62263F; lands: Advertising rates in the Professional information section are as follows: land certificate as stated to have been property known as 9 Lally road, sit- lost or inadvertently destroyed. A new uate in the parish of St Jude and • Lost land certificates – €46.50 (incl VAT at 21%) certificate will be issued unless notifi- district of Kilmainham; Co Dublin • Wills – €77.50 (incl VAT at 21%) cation is received in the registry with- Regd owner: Noel Whyte; folio: • Lost title deeds – €77.50 (incl VAT at 21%) in 28 days from the date of publication DN102917F; lands: property • Employment miscellaneous – €46.50 (incl VAT at 21%) of this notice that the original certifi- known as 6 Verbena Lawn situate cate is in existence and in the custody in the parish of Kilbarrack and dis- HIGHLIGHT YOUR ADVERTISEMENT BY PUTTING A BOX AROUND IT – €30 EXTRA of some person other than the regis- trict of Howth; Co Dublin All advertisements must be paid for prior to publication. Deadline for tered owner. Any such notification Regd owner: Paul and Ann Marie July/August Gazette: 19 July 2002. For further information, contact Nicola should state the grounds on which the Doyle; folio: DN13725L; lands: Crampton on 01 672 4828 (fax 01 672 4877) certificate is being held. property situate in the townland of (Register of Titles), Central Office, Land Carrickhill and barony of Coolock; Registry, Chancery Street, Dublin Co Dublin 10119; lands: townland of Ardagh Street. Would any person having (Published 7 June 2002) Regd owner: Patrick J O’Brien; folio: and barony of Tirawley; area: 20 knowledge of a will made by the DN19499; lands: property situate acres 1 rood 31 perches; Co Mayo above named deceased who died on Regd owner: James Reilly; folio: 3448; in the townland of Spricklestown Regd owner: David Jordan; folio: 6 April 2002, please contact Bryan F lands: Kilnaglare; area: 3.937 acres; and barony of Castleknock; Co 705L; lands: Killengland; area: Fox and Co, Solicitors, 46 North Co Cavan Dublin 0.04375 acres; Co Meath Circular Road, Dublin 7, tel: 01 838 Regd owner: Michael Mulqueen; folio: Regd owner: Thomas J Duffy; folio: Regd owner: Thomas Eugene 6175 or fax: 01 838 7088 10190; lands: townland and Dooras DN5862F; lands: property situate McDonnell; folio: 17936; lands: (parts); area: 45 acres 3 roods 36 in the townland of Rowlestown Coolskeagh, Gorteens; area: 10.625 Clarke, Patrick (deceased), late of perches; Co Clare East and barony of Nethercross; acres and 4.562 acres; Co 16 Albert College Court, Dublin 9 Regd owner: Laurence Duggan; folio: Co Dublin Monaghan and formerly of 27 Dunsink 10750 entry no 15; lands: known as Regd owner: John Kilmartin; folio: Regd owner: James Murphy; folio: Gardens, Finglas, Dublin 11. the townland of Killalough situate DN6665F; lands: property situate 7317; lands: Dromore; area: 25.468 Would any person having knowl- in the barony of Barrymore, and the on the south side of the Dublin acres; Co Monaghan edge of a will executed by the above county of Cork; Co Cork road in the town of Lucan; Co Regd owner: Margaret (Madge) named deceased who died on 21 Regd owner: Jeremiah Murray; folio: Dublin O’Doherty; folio: 7583F; lands: sit- November 2001, please contact 47253; lands: a plot of ground being Regd owner: John and Anne Byrne; uate on the south side of Mass road James Fagan and Co, Solicitors, 57 part of the townland of Lahardane folio: DN21581L; lands: property in the parish of Carrick and barony Parnell Square West, Dublin 1, tel: situate in the barony of Cork and situate to the north side of the of urban district of Carrick-on- 01 872 7655 or fax: 01 873 4026 the county of Cork; Co Cork North Road in the parish of Suir; Co Tipperary Regd owner: Achaean Enterprises; Kilbarrack, district of Raheny; Co Regd owner: Geoffrey Manners Cronin, Donal (deceased), late of folio: 15422F; lands: a plot of Dublin (deceased); folio: 37209; lands: 47 Knockfree Avenue, Fairhill, ground being part of the townland Regd owner: Neil McGrory, Hugh Lehinch and barony of Ormond Cork. Would any person having of Lehenagh Beg situate in the Gallagher and John Aloysius Lower; Co Tipperary knowledge of a will made by the barony of Cork and the county of Mone; folio: DN9591F; lands: a Regd owner: Graham Davies; folio: above named deceased who died on Cork; Co Cork plot of ground known as 234 33608; lands: part of the land of 19 December 2001, please contact Regd owner: Eamon O’Flynn; folio: Moyville, situate in the townland Modeshill (Sankey) with the cot- Messrs Kieran Riordan and Co, 42438F; lands: a plot of ground of Edmondstown and barony of tage thereon situate in the barony Solicitors, 14 Princes Street, Cork; being part of the townland of Rathdown; Co Dublin of Slievardagh shown as plan 14 reference MM/CH, tel: 021 Lavally Lower situate in the barony Regd owner: Thomas and Mary edged red on the registry map of 4273651 or fax: 021 4275716 of Fermoy and the county of Cork; Bridget Ryan; folio: 25252F; lands: the townland (OS 63/4) (from folio Co Cork townland of Carnmore West and 19596) Eragh; Co Tipperary Dolan, Michael (deceased), late of Regd owner: Thomas Gallon; folio: barony of Dunkellin; area: 0.1922 Regd owner: Michael Scally; folio: 154 Mulvey Park, Dundrum, 6313; lands: Lismullyduff; area: hectares; Co Galway 945F; lands: Mayne; area: 3.375 Dublin 14. Would any person hav- 57.4375 acres; Co Donegal Regd owner: John Maguire; folio: acres; Co Westmeath ing knowledge of a will made by Regd owner: Bertie McCormack; 7102; lands: Drumderg; area: Regd owner: Rose Cunneen; folio: the above named deceased, who folio: 9903F; lands: Doonalt; area: 20.625 acres; Co Leitrim 6175F; lands: Clonmellon; Co died on 23 January 2002, please 0.338 acres; Co Donegal Regd owner: Matthew Riordan; folio: Westmeath contact Anderson and Gallagher, Regd owner: Shane O’Brien; folio: 4218; lands: townland of Regd owner: Seamus McCormack; Solicitors, 29 Westmoreland DN108825F; lands: property Thomastown and barony of folio: 14040; lands: Caddagh, & Street, Dublin 2, tel: 01 677 6066 known as 12 Pinewood Grove in the Coshlea; Co Limerick Caddagh; area: 61.681 acres & or fax: 01 679 8494 parish of Glasnevin and district of Regd owner: Thomas Johnson; folio: 20.681 acres; Co Westmeath Glasnevin North; Co Dublin 17054; lands: townland of Teer and Regd owner: William and Mary McCaffery, Agnes (deceased), late Regd owner: Orla Walsh; folio: barony of Corkaguiny; Co Kerry Burke; folio: 2160F; lands: town- of Huntington Castle, Clonegal, Co DN59072F; lands: property known Regd owner: Margaret Mary Kearney; land of Kilcoole and barony of Wexford. Would any person having as 2 The Orchard, Woodfarm folio: 572F; lands: townland of Newcastle; Co Wicklow knowledge of a will made by the Acres, Palmerstown; Co Dublin Reavaun and barony of Magunihy; above named deceased who died on Regd owner: Chandrakant M Vyas and Co Kerry 25 January 2001 please contact Aruna C Vyas; folio: DN18898L; Regd owner: Liam Power; folio: WILLS Ensor O’Connor Solicitors, 4 lands: property situate to the south 268R; lands: Clogga and barony of Court Street, Enniscorthy, Co of the Skerries-Dublin road in the Iverk; Co Kilkenny Burke, Anthony (deceased), late of Wexford, tel: 054 35611 or fax: 054 town of Skerries; Co Dublin Regd owner: John Hegarty; folio: 14N, Pearse House, off Pearse 35234

53 Law Society Gazette June 2002 Professional information

McFarlan, Diana Mary (deceased), Recently qualified (one to two Offices in Belfast, Newry and late of Stonewall, Bailieboro, Co years) solicitor required with IRISH GUARDIAN AD Carrickfergus. Contact Norville Cavan and also Fairways Nursing experience in litigation and general LITEM SERVICES Connolly, D&E Fisher, Solicitors, 8 Home, Rathfarnham, Dublin 16. practice. Attractive salary for suit- Providing a nationwide GAL and Tr evor Hill, Newry, tel: 080 1693 Would any person having knowledge able candidate. Send CV to Ken J independent social work services 61616, fax: 080 1693 67712 of a will made by the above named Byrne & Co, Main Street, to the courts in addition to pre- deceased who died on 7 April 2000, Blackrock, Co Dublin; e-mail: kjb- placement assessment in foster- London solicitors will advise on UK please contact O’Rafferty Powderly, [email protected] ing/adoption applications. matters and undertake agency work. Solicitors, 18 Merrion Row, Dublin Contact: Eugene McCarthy, All areas. Corporate/private clients. 2, tel: 01 676 4638 and fax: 01 661 Locum solicitor required. BSS CQSW, member Ellis & Fairbairn, 26 Old Brompton 2020 September to December inclusive. NAGALRO (UK) BAAF IASW. Road, South Kensington, London Please apply with CV to Mr Jim 1 Corbawn Lawn, Shankill, SW7 3DL, tel: 0044 171 589 0141, McGill, Ellen (deceased) late of Houlihan, Desmond A Houlihan & Co Dublin. Tel/fax: 01 272 2831; fax: 0044 171 225 3935 Neary’s Hotel, 76/78 Parnell Street, Son, Solicitors, Birr, Co Offaly mobile 086 811 8032; e-mail: Dublin 1. Would any person having [email protected] Northern Ireland solicitors. Will knowledge of a will executed by the Mullingar firm need qualified advise and undertake NI-related mat- above named deceased who died on solicitor for full-time position; gen- ters. All areas corporate/private. 1 April 2002, please contact James eral practice. Experience preferable. Agency or full referral of cases as pre- Fagan and Co, Solicitors, 57 Parnell Contact Sally-Ann O’Donnell or ferred. Consultations in Dublin or Square West, Dublin 1, tel: 01 872 Paddy Crowley at 044 40887/8 or MISCELLANEOUS elsewhere if required. Fee sharing 7655 or fax: 01 873 4026 send CV to JJ Macken, Bishopsgate, envisaged. Donnelly Neary & Mullingar, Co Westmeath Northern Ireland solicitors provid- Donnelly, 1 Downshire Road, Newry, O’Neill, John Howard (deceased), ing an efficient and comprehensive Co Down, tel: 080 1693 64611, fax: late of 2 Caravan, Labour in Vain, Locum solicitor needed for general legal service in all contentious/non- 080 1693 67000. Contact KJ Neary Horsehay, near Wellington, County practice in Mullingar, 4/5 months; contentious matters. Dublin-based Salop, England. Would any person May to September; experience need- consultations and elsewhere. Fee Personal injury claims, employ- having knowledge of the where- ed. Contact Sally-Ann O’Donnell or apportionment. ML White, ment, family, criminal and property abouts of the will of the above Paddy Crowley at 044 40887/8 or Solicitors, 43-45 Monaghan Street, law specialists in England and Wales. named deceased who died on 1 send CV to JJ Macken, Bishopsgate, Newry, County Down, tel: 080 1693 Offices in London (Wood Green, August 1978, please contact Niamh Mullingar, Co Westmeath 68144, fax: 080 1693 60966 Camden Town and Stratford), Kelly, O’Donoghue Solicitors, 11 Birmingham and Cardiff. ‘No win, Fairview, Dublin 3, tel: 01 833 2204 Solicitor required for busy general Northern Ireland agents for all con- no fee’ available for accident and or fax: 01 833 6941 practice. Some experience prefer- tentious and non-contentious mat- employment claims, legal aid for fam- able. Conveyancing, probate and ters. Consultation in Dublin if ily and criminal cases. Contact Quinn, Patrick, late of Oghill general practice. Extensive experi- required. Fee sharing envisaged. Levenes Solicitors at Ashley House, Nursing home, Monasterevin, Co ence and responsibility promised. Kildare and formerly of 29 Haddon Great opportunity with long-term Road, Clontarf, Dublin 13. Would possibilities for the successful candi- any person having knowledge of a date. Please reply to Kieran will made by the above named McCarthy, McCarthy & Associates, deceased who died on 12 December Oakview, Brewery Road, Tralee, Co 2001, please contact FB Taaffe and Kerry, or e-mail: traleelaw@eir- Co, Solicitors, Edmund Rice Square, com.net The Irish Legal Recruitment Athy, Co Kildare, tel: 0507 38181 Specialists and 38166, fax: 0507 38459, e-mail: Locum solicitor required for six www.benasso.com [email protected] months commencing on 1 August 2002. Experience in dealing primari- ly with conveyancing and probate EMPLOYMENT required. Messrs Crean O’Cleirigh and O’Dwyer, Solicitors, Benson & Associates is a Experienced solicitor capable of Ballyhaunis, Co Mayo working on his/her own initiative niche consultancy, required for busy practice 25 miles Join one of the world’s largest from Dublin. Litigation, conveyanc- insurance groups: Eagle Star specialising in the ing, probate experience desirable. requires a qualified solicitor with Apply to box no 60 experience in personal injury recruitment of high calibre defence litigation to join our legal lawyers for private practice, Kerry – assistant solicitor required team. This important position for busy Tralee practice with experi- demands a highly motivated, commerce and industry ence in conveyancing, litigation and responsible individual who will For information on the services we provide as probate. Minimum of two years’ report directly to our managing experience required. Reply in confi- solicitor. A competitive remunera- well as current vacancies, please visit our dence to box no 61 tion package commensurate with the website or contact Michael Benson (BCL) or position will be offered to the suc- Annaleen Sharkey (LLB) Solicitor required for busy general cessful candidate. Applications, in strictest confidence, at:Carmichael House, practice, experience in probate and including CV, should be sent to 60 Lower Baggot Street, conveyancing essential. District Irene Wixted, personnel officer, Dublin 2, Ireland Court experience desirable. Apply to Eagle Star Insurance Company T +353 (0) 1 670 3997 Branigan and Matthews, 33 (Ireland) Ltd, Ballsbridge Park, F +353 (0) 1 670 3998 Laurence Street, Drogheda. Fax: Dublin 4; e-mail: Irene.Wixted@ www.benasso.c E [email protected] 041/0937049 Eaglestar.ie om

54 Law Society Gazette June 2002 Professional information

235-239 High Road, Wood Green, application by John McKenna and sion are unknown or unascertained. 1978, intend to submit an application London N22 8HF, tel: 0044 20 8881 Catherine McKenna of 305 Date: 24 May 2002 to the county registrar for the coun- 7777. Alternatively e-mail us on Harold’s Cross Road in the city of Signed: Joseph T Deane & Associates, ty of the city of Dublin for the acqui- [email protected] or visit our web- Dublin solicitors for the applicants, St Andrews sition of the freehold interest in the site at www.levenes.co.uk Ta ke notice that any person having House, 28/30 Exchequer Street, aforesaid property and any party any interest in the freehold estate of Dublin 2 asserting that they hold a superior Publican’s ordinary seven day the property known as 305 Harold’s interest in the aforesaid property (or licence for sale. Please contact Denis Cross Road, in the city of Dublin, In the matter of the Landlord and any of them) are called upon to fur- A Linehan and Company, Solicitors, held under an indenture of lease Tenant (Ground Rents) Acts, 1967- nish evidence of title to the afore- Main Street, Charleville, Co Cork. dated 14 November 1834 and made 1994 and in the matter of the mentioned premises to the below Ref: DL. Tel: 063 89667 between Henry Coulson Beauchamp Landlord and Tenant (Ground named within 21 days from the date of the one part and John Dodd of the Rents) (No 2) Act, 1978 and in the of this notice. Office premises available, Dublin 2. other part subject to an annual rent of matter of the Landlord and Tenant In default of any such notice Might suit solicitor/secretary/appren- Sterling £78.0s10d but indemnified (Ground Rent) Acts, 1967-1984: being received, Frederic Ozanam tice. Car space; tel: 01 668 4366 as to £73.0s10d and to the covenants notice of intention to acquire the Tr ust (Incorporated) intend to pro- and conditions therein contained. fee simple ceed with the application before the Take notice that John McKenna To any such person or persons for county registrar at the end of 21 days EYE INJURIES AND and Catherine McKenna intend to the time being entitled to the interest from the date of this notice and will OPHTHALMOLOGICAL submit an application to the county in the freehold estate of the follow- apply to the county registrar for the NEGLIGENCE registrar at Arás Uí Dhálaigh, Inns ing property: the premises known as county of the city of Dublin for Quay, Dublin 7 for the acquisition of 3 Beresford Place, Dublin 1 in the directions as may be appropriate on Mr Louis Clearkin ChM, FRCS, the freehold interest in the aforesaid county of the city of Dublin, held the basis that the person or persons FRCOphth, DO, MAI, MEWI property and any party ascertaining under an indenture of lease dated 16 beneficially entitled to the superior Consultant Ophthalmic Surgeon that they hold a superior interest in August 1946 and made between interest, including the freehold the aforesaid property are called Violet Kathleen McCormick and reversion in the property, are Experienced expert witness in upon to furnish evidence of title to Elizabeth Ivy Norman of the one unknown or unascertained. ophthalmological personal the aforementioned premises to the part and Bartholomew Glavin of the Date: 10 May 2002 injury, medical negligence and below within 21 days from the date second part for a term of 120 years Signed: Kilcullen & Associates, solicitors civil litigation of this notice. from 1 April 1946, subject to the for the applicant, 183 Lower Rathmines In default of any such notice yearly rent of £155 during the first Road, Rathmines, Dublin 6 1 Renuntiabo, 8 Rose Mount, being received, John McKenna and 21 /2 years of the said term and Oxton, Wirral, Merseyside, Catherine McKenna intend to pro- thereafter the yearly rent of £180 and In the matter of the Landlord and L43 5SW ceed with the application before the to the covenants on the part of the Tenant (Ground Rents) Acts, 1967- county registrar at the end of 21 days lessee and conditions therein con- 1994 and in the matter of the secretary: +44 (0) 151 6047047 from the date of this notice and will tained. Landlord and Tenant (Ground fax: +44 (0) 151 6047152 apply to the county registrar for Take notice that Frederic Ozanam Rents) (No 2) Act, 1978 and in the e-mail: [email protected] directions as maybe appropriate on Trust (Incorporated), being persons matter of the Landlord and Tenant the basis that the person or persons entitled under the provisions of sec- (Ground Rent) Acts, 1967-1984: an beneficially entitled to the superior tions 9 and 10 of the Landlord and application by St Laurence interest including the freehold rever- Tenant (Ground Rents) (No 2) Act, O’Toole Diocesan Trust TITLE DEEDS Olive Lynch de Loewe, (otherwise NORTHERN Olive Lynch Creaven). Would any DUBLIN SOLICITORS’ solicitors holding any deeds to the IRELAND PRACTICE OFFERS premises at 23 Wainsfort Road, J. DAVID O’BRIEN SOLICITORS Te renure, Dublin 6, acquired by the AGENCY WORK above named by assignment dated 18 IN NORTHERN ATTORNEY AT LAW May 1971, please contact Robert We will engage in, IRELAND Ryan and Associates, Solicitors, 23 20 Vesey St, Suite 700 and advise on, New York, NY, 10007 Ballsbridge Terrace, Dublin 4, tel: 01 all Northern Ireland- * All legal work undertaken 667 4255 or fax: 01 667 4050 Tel: 001212-571-6111 related matters, on an agency basis Fax: 001212-571-6166 particularly personal * All communications to clients Foy, Peter (deceased), late of 9 Email: [email protected] injury litigation. through instructing solicitors Windele Road, Drumcondra, Dublin Consultations where * Consultations in Dublin if required 9. Would any person having knowl- PERSONAL INJURY ACCIDENT convenient. Contact: Séamus Connolly edge of the whereabouts of the title CASES Moran & Ryan, Solicitors, Fee sharing Arran House, documents of 9 Windele Road, CONSTRUCTION envisaged. 35/36 Arran Quay, Dublin 7. Drumcondra, Dublin 9, please contact RAILROAD Padraig Turley and Company, Solici- MARITIME tors, 27 Bridge Street Lower, City AVIATION OLIVER M LOUGHRAN Tel: (01) 872 5622 Gate, Dublin 8. This property is held CAR/BUS/TRUCK Fax: (01) 872 5404 under a deed of lease and mortgage MEMBER AMERICAN AND NEW & COMPANY dated 30 March 1929 and made bet- YORK STATE TRIAL LAWYERS e-mail: [email protected] ween Dublin Corporation of the one ASSOCIATIONS 9 HOLMVIEW TERRACE, or Bank Building, Hill Street part and Martin Foy of the other part OMAGH, CO TYRONE Newry, County Down. Enrolled as Solicitor Phone (004428) 8224 1530 Tel: (0801693) 65311 in Rep of Ireland, England In the matter of the Landlord and Fax: (004428) 8224 9865 Fax: (0801693) 62096 & Wales Tenant Acts, 1967-1994 and in the e-mail: E-mail: [email protected] matter of the Landlord and Tenant [email protected] (Ground Rents) (No 2) Act, 1978: an

55 Law Society Gazette June 2002 Professional information

CARLOW TOWN Diocesan Trust intends to proceed tions therein contained. of Conturk barony of Coolock for- with the application before the coun- Take notice that Michael Tuite merly in the county but now in the CENTRE ty registrar at the end of 21 days from intends to submit an application to city of Dublin held under indenture ADJACENT COURTHOUSE the date of this notice and will apply the county registrar for the county of of lease dated 12 May 1952 and made NEW OFFICE to the county registrar for the county the city of Dublin for the acquisition between Arthur Greene, John SUITE TO LET of Wicklow for directions as may be of the freehold interest in the afore- Nassau Greene and Dermot appropriate on the basis that the per- said properties and any party assert- McGillicuddy of the one part and 1,700 sq ft (850 per floor) son or persons beneficially entitled to ing that they hold a superior interest Charles F Kenny of the other part for Cat 5 cabling & ISDN the superior interest including the in the aforesaid premises (or any of a term of 99 years and subject to the opp 70 car spaces them) are called upon to furnish evi- Complete July/Aug freehold reversion in each of the yearly rent of £8.00 and the Can re-design to suit aforesaid property are unknown or dence of title to the aforementioned covenants on the part of the lessee to unascertained. property to the below named within be performed and conditions therein Tel: 086 821 7801 Date: 23 May 2002 21 days from the date of this notice. contained. Signed: Arthur O’Hagan, solicitors for In default of any such notice being Take notice that Ciaran Tuite Ta ke notice that any person having the applicant, 9 Harcourt Street, received, the applicant intends to intends to submit an application to any interest in the freehold estate of Dublin 2 proceed with the application before the county registrar for the county of the following property: all that and the county registrar for the county of the city of Dublin for the acquisition those that part of the lands of In the matter of the Landlord and the city of Dublin for directions as of the freehold interest in the afore- Ballycreen Lower containing two Tenant (Ground Rents) Acts, 1967- may be appropriate on the basis that said properties and any party assert- roods statute measure or thereabouts 1994 and in the matter of the the person or persons beneficially ing that they hold a superior interest comprising the former national Landlord and Tenant (Ground entitled to the superior interest in the aforesaid premises (or any of school at Ballycreen situate in the Rents) (No 2) Act, 1978: an applica- including the freehold reversion in them) are called upon to furnish evi- parish of Ballykine, barony of tion by Michael Tuite each of the aforesaid premises are dence of title to the aforementioned Ballinacor South and county of Ta ke notice that any person having unknown or unascertained. property to the below named within Wicklow. any interest in the freehold estate of Date: 24 May 2002 21 days from the date of this notice. Take notice that St Laurence the following properties: all that and Signed: Kent Carty Solicitors, 47/48 In default of any such notice being O’Toole Diocesan Trust intends to those of the premises known as 11 Parnell Square, Dublin 1 received, the applicant intends to submit an application to the county Fairview Strand situate in the parish proceed with the application before registrar for the county of Wicklow of Conturk barony of Coolock for- In the matter of the Landlord and the county registrar for the county of for the acquisition of the freehold merly in the county but now in the Tenant (Ground Rents) Acts, 1967- the city of Dublin for directions as interest in the aforesaid property city of Dublin held under indenture 1994 and in the matter of the may be appropriate on the basis that asserting that they hold a superior of lease dated 12 May 1952 and made Landlord and Tenant (Ground the person or persons beneficially interest in the aforesaid property are between Arthur Greene, John Nassau Rents) (No 2) Act, 1978: an applica- entitled to the superior interest called upon to furnish evidence of Greene and Dermot McGillicuddy of tion by Ciaran Tuite including the freehold reversion in title to the aforementioned property the one part and Charles F Kenny of Ta ke notice that any person having each of the aforesaid premises are to the below named within 21 days the other part for a term of 99 years any interest in the freehold estate of unknown or unascertained. from the date of this notice. and subject to the yearly rent of £7.10 the following properties: all that and Date: 24 May 2002 In default of any such notice being and the covenants on the part of the those of the premises known as 13 Signed: Kent Carty Solicitors, 47/48 received, St Laurence O’Toole lessee to be performed and condi- Fairview Strand situate in the parish Parnell Square, Dublin 1 LAW DIRECTORY ERRATA SHEET 2002 PAGE SECTION AMENDMENT 74 John Callinan Alphabetical list of solicitors Add telephone number 065 6828990 and fax number 065 6829016 149 Jim Grogan Alphabetical list of solicitors Delete mobile number and add telephone number 021 4516450 & fax number 021 4516453 173 Marie Keane Alphabetical list of solicitors Add telephone number 065 6828990 and fax number 065 6829016 203 Henry J McCourt Alphabetical list of solicitors Amend telephone number from 021 4631222 to 021 4631322 237 Michael Mullane Alphabetical list of solicitors Amend telephone number from 021 4631222 to 021 4631322 347 Brian O’Brien-Kenny Members not holding PCs Amend entry to read Office of the Parliamentary Counsel to the Government, Upr Merrion St 349 Evenlyn Robinson Members not holding PCs Amend entry to read Office of the Parliamentary Counsel to the Government, Upr Merrion St 354 Fiona C Carroll Service of the state Amend entry to read Office of the Parliamentary Counsel to the Government, Upr Merrion St 355 Ann Marie Crowley Service of the state Amend entry to read Office of the Parliamentary Counsel to the Government, Upr Merrion St 356 Margaret Kennedy Service of the state Amend entry to read Office of the Parliamentary Counsel to the Government, Upr Merrion St 356 Mary Johnson Service of the state Amend entry to read Office of the Parliamentary Counsel to the Government, Upr Merrion St 357 Michael D Murphy Service of the state Amend entry to read Office of the Parliamentary Counsel to the Government, Upr Merrion St 358 Brian O’Brien-Kenny Service of the state Amend entry to read Office of the Parliamentary Counsel to the Government, Upr Merrion St 358 Evelyn Robinson Service of the state Amend entry to read Office of the Parliamentary Counsel to the Government, Upr Merrion St 358 June Reardon Service of the state Amend entry to read Office of the Parliamentary Counsel to the Government, Upr Merrion St 365 John Callinan & Co Alphabetical list of firms Add telephone number 065 6828990 and fax number 065 6829016 Ennis 365 John Callinan & Co Alphabetical list of firms Delete telephone number 065 6828990 and fax number 065 6829016 Sixmilebridge 374 Jim Grogan Alphabetical list of firms Delete mobile number and add telephone number 021 4516450 & fax number 021 4516453 379 McCourt Mullane Alphabetical list of firms Amend telephone number from 021 4631222 to 021 4631322 394 Barry Doyle & Co Alphabetical list of firms Delete entry from page 394 and move to page 408 in the Dublin firm section 448 PR Hanna Alphabetical list of firms Delete entry from page 448 and move to page 419 in the Dublin firm section 508 Buckley Hennessey Alphabetical list of firms Delete firm entry from the Meath section page 508 and move to page 531 in the & Co Westmeath section 679 Kilkenny Revenue sheriff Amend to read Thomas Murran 780 Robert Corbet Solicitor trademark agents Amend firm to read Arthur Cox, Earlsfort Centre, Earlsfort Terrace, Dublin 2 783 Office of the Director of Government departments Read as separate organisation Equality Investigations and organisations

56 Law Society Gazette June 2002