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NOVEMBER 1998 CONTENTS 12 Top gun New Law Society President Pat O’Connor tells Conal O’Boyle about his career to date and his plans for his year in office REGULARS 16 Cover Story Cooking the books Recent events have shown that, where corporate fraud is concerned, President’s message 3 neither the Government nor the public at large seem to know what is really going on. Pat Igoe discusses the likely contents of the Viewpoint 4 forthcoming Criminal Justice (Fraud Offences) Bill in the context of the fight against white-collar crime Letters 8 News 10 20 Leave it to the experts With a new statutory instrument on the use of expert evidence just signed Briefing 31 into law, Conal O’Boyle looks at the role of experts in the court system and talks to those in the know about the use and abuse of expert witnesses Council report 31 Committee reports 33 Practice notes 35 24 Taking the initiative on Legislation update 37 law reform Owen McIntyre explains ILT digest 38 the work of Eurlegal 44 the Law Society’s People and Law Reform places 49 Committee and highlights the priority Professional areas it has selected for its information 54 current law reform programme COVER PIC: ROSLYN BYRNE 28 Mitigating circumstances A recent House of Lords decision clarified the difference between tax avoidance and tax mitigation. Niall O’Hanlon analyses the judgment and looks at the chances of the Irish courts introducing a similar concept here Editor: Conal O’Boyle MA The Law Society of Ireland can accept no responsibility for the accuracy of contributed articles or statements appearing in this magazine, and any views or opinions Reporter: Barry O’Halloran expressed are not necessarily those of the Law Society’s Council, save where other- Designer: Nuala Redmond wise indicated. No responsibility for loss or distress occasioned to any person acting Editorial Secretaries: or refraining from acting as a result of the material in this publication can be accept- Andrea MacDermott, Catherine Kearney ed by the authors, contributors, editor or publishers. Professional legal advice should always be sought in relation to any specific matter. Advertising: Seán Ó hOisín, tel/fax: 837 5018, mobile: 086 8117116, E-mail: [email protected]. 10 Arran Road, Dublin 9 Editorial Board: Dr Eamonn Hall (Chairman), Conal O’Boyle, Printing: Turners Printing Company Ltd, Longford Mary Keane, Ken Murphy, Michael V O’Mahony, Helen Sheehy Published at Blackhall Place, Dublin 7, tel: 01 6710711, fax: 01 671 0704. Subscriptions: £45 Volume 92, number 9 NOVEMBER 1998 LAW SOCIETY GAZETTE 1 Rochford Brady Legal Services Ltd OWNERSHIP/TITLEINQUIRYSPECIALISTS TOWN AGENTSLAWSEARCHERSSUMMONSSERVERS COMPANYFORMATION AGENTS Are you paying too much for your Law Searching/Town Agency work? Change to Rochford Brady with our ‘one stop shop’ service (law searching and town agency under one roof) WE CUT YOUR COSTS If you are not with Rochford Brady, isn’t it time you changed? Phone: 1850 529732 (20 lines) Fax: 1850 762436 (5 lines) ISO 9002 PRESIDENT’S MESSAGE Looking to the future Education Policy Review Group Criticism of the profession t is with great satisfaction that I Throughout my year, I have been con- come to the end of my year with the sistent in conveying publicly on as I profession overwhelmingly endors- many occasions as possible that we ing the recommendations of the inde- should not be criticised for doing our pendent Education Policy Review job and, particularly, we should not be Group. As you will all be aware, I urged criticised unfairly or with venom. acceptance of these recommendations Recently, lawyers were described in and I am very pleased that the profes- one Sunday paper as being ‘like sion has responded positively and mas- bankers in the way that they facilitate sively in favour of them. It is important that we all go forward togeth- crime as a matter of routine, obstruct justice as a matter of principle, er now so as to ensure the best possible education system for our suc- and inveigle large swathes of the population into acting in a disgrace- cessors and state of the art facilities for continuing legal education. I am ful fashion. They are like all the other criminal elements that flourish particularly pleased that this vital development has had the benefit of in Ireland today, but they are worse, because they are more ambitious. both a full debate at a special general meeting and also a postal ballot There is a grandeur to their impertinences’. enabling all our members to deliberate on the matter and express their These are, in my view, disgraceful and unworthy comments. They are view in a fully democratic fashion. quite untrue, and I do not believe that any section of society should have One of the recommendations is the establishment of a Curriculum to put up with such enormously venomous diatribes. It is wrong that Development Unit (CDU). I am confident that the CDU will be com- lawyers should be blamed for doing their job, for protecting the rights of prised of a wide mix of people, including solicitors in private practice and individuals and securing justice. I repeat my previous message, that by in the corporate and public services sector. I believe this unit will be denigrating lawyers in the manner in which this article does, and in the visionary and conceptual in its approach to the education of our future way it has happened in previous months, I believe public respect for the solicitors so that the maximum opportunities will be available. law itself is being collaterally damaged and this itself will have a perni- Last weekend I attended the Law Society of England and Wales annu- cious effect over time which is dangerous for our whole society. Many al conference in Bournemouth. One of the keynote speakers postulated a lawyers strive passionately to achieve justice for their clients and are, in view with which I agree, that – while not forgetting the emphasis in legal fact, the first bulwark to protect justice and the people. They are essen- training – the way forward is for the profession’s training for (and tial in any real democracy. approach to) practice to be radically changed to enable its members first to organise themselves and to promote themselves according to modern Thank you business principles and, secondly, to be better prepared to move out of As I have said in the Annual report, it has been a privilege and honour the profession into general management if they wish or must. to be President of this great Society. When you receive this Gazette, The view was that, from the very beginning, as a significant part of our Patrick O’Connor of Swinford will take up this honour. I wish him well education and training our successors should be taught the basics of in the many challenges that will face us in the year ahead. I have no financial good practice and management, of marketing, of how IT can doubt that he will rise to the challenges along with the excellent team of help them organise their practices. And there should be continuing devel- Council, officers, management and staff, and build on the progress that opment of these skills after qualification. has been made. The Law Society through its Law School, its continuing legal educa- Thank you. tion programmes and the practice management and technology commit- tees is moving in this direction. I would urge that the pace quicken and Laurence K Shields that these issues receive greater attention when the CDU is established. President NOVEMBER 1998 LAW SOCIETY GAZETTE 3 VIEWPOINT Why a pro bono scheme may not be enough he proposal by John Costello more). But it is all relative: 90 Tfor a formal pro bono scheme solicitors out of 4,800 practising in (Gazette, Aug/Sept, page 5) is the country overall? While accept- laudable and to be supported. Yet, ing the limits of the law in tackling while such a scheme might work poverty, is there not a role for parallel to a State legal aid scheme, lawyers in highlighting the essen- it should not be considered as a tially political decision to offer a substitute for comprehensive legal civil legal aid scheme which is aid. very much confined to the area of There has been a complete family law? absence of debate in recent times as Some further involvement of to the adequacy or otherwise of the the private sector solicitors in State’s civil legal aid scheme. partnership with the existing law Possibly we have been lulled into centres seems inevitable. In order silence, given that there is a scheme and employment appeals tri- annual report indicates that a to curb a galloping increase in the and it does work within its own bunals). It is difficult to defend startling 90% of advice and cost of the legal aid scheme, it limited terms of reference. The the exclusion of any area of the legal aid was in the area of fam- might be sensible to contract out question is: should more be on law from a legal aid scheme, par- ily law. The law centres offer a or franchise legal aid (which has offer? ticularly one which traditionally very good service in this field become the vogue in the UK The State’s civil legal aid will affect the underprivileged and have built up a recognised since 1996 in an attempt to con- scheme now operates on a statuto- perhaps more than any others expertise, but do the underpriv- trol the enormous legal aid ry basis under the Civil Legal Aid ● Waiting lists are common and ileged not require advice and spending there).
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