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

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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). The franchise Act, 1995, in force since 11 must be off-putting to those aid in other areas of the law? model involves annual tendering October 1996. Whereas previously seeking assistance. According to by individual private sector law the Legal Aid Board operated on a the Legal Aid Board, delays of Real injustices firms for particular types of legal non-statutory basis, the 1995 Act up to ten months can occur, A fully comprehensive civil legal work in different regions of the has enshrined the right to apply for although some reports put the aid scheme might begin to tackle country. It would encompass a legal aid and advice if certain crite- figure as high as 19 months. The some of the real injustices affect- regular monitoring of the quality ria are satisfied. advent of divorce since February ing a large section of our popula- of the supplier, bid price, its While the provisions of the 1995 1997 will have further length- tion. For example, a recent UN expertise, innovation, range of Act represent progress, there ened the waiting time report found that 23% of our adult service offered and commitment remain a number of shortcomings ● The Legal Aid Board undertakes population is functionally illiter- of the firm to the type of legal in the operation of the scheme: negligible advertising and ate, while a recent report from the work sought. ● Clients are confined to the law makes little attempt to inform Simon Community on homeless- It would also be worth consid- centres (which is reminiscent of the public of the service (see ness in Cork found that there are a ering an advertising and public the old dispensary doctor sys- section 5(2) of the Act). growing number of homeless peo- education campaign, detailing the tem). The client must choose a Research in the UK in 1990 ple who have been released from legal aid service which is available lawyer from one of the law cen- showed that only 45% of those prison with nowhere to go. At first under the 1995 Act. tres, usually the closest to home. asked to name any scheme glance, these issues may not seem Furthermore, I believe that legal This presents obvious geograph- which provided help with solici- to fall within the remit of the tradi- aid before all tribunals should be ical difficulties: for example, tors’ costs mentioned legal aid, tional solicitors’ practice; howev- included in the scheme by there are two law centres in while seven out of ten people er, proceedings could conceivably Ministerial order under the 1995 Cork City, with nine solicitors to said that they did not understand be undertaken against the Act. cover the entire city and county the legal aid scheme. A similar Department of Education to pro- And, finally, there is a need for of Cork (plus a part-time service survey should be carried out in vide adequate grounding in the a Legal Services Research offered in Mallow some 22 this jurisdiction: surely lack of ‘three Rs’ or against the Commission – possibly headed miles away) knowledge of the scheme Department of Justice to force it to by a High Court judge – to exam- ● There is no involvement of pri- remains a factor in depressing provide some sort of half-way ine the extent of unmet need for vate sector solicitors, apart from demand for services? Has the housing. legal services and to develop a a limited effort to involve solici- scheme ever been advertised on It has been the political decision programme to tackle this. The tors in District Court family law TV or in a consumer-friendly of successive governments to keep Denham report has recently pro- cases since 1993, now confined fashion in the other media? a tight rein on the legal aid vided a comprehensive review of to Dublin ● The means test continues to scheme. The budget of the Legal the operation of the courts sys- ● The scheme does not cover the allow only those on a very low Aid Board has certainly increased tem; a similar review of access to appearance of solicitors at tri- ‘disposable’ income to be recip- each year, sometimes quite sub- lawyers and the courts is urgently bunals, which one would have ients of legal aid or advice stantially. More law centres have needed. G thought was vital to the very ● The law centres’ work is almost opened over the years (there are people who will benefit most entirely confined to the area of now 30 operating full-time) and Ann FitzGerald is a partner in the from such representation (for family law. The recently- the board currently employs 82 Cork solicitors’ firm FitzGerald example, social welfare appeals released 1997 Legal Aid Board solicitors (with approval for eight & O’Leary.

4LAW SOCIETY GAZETTE NOVEMBER 1998 VIEWPOINT When insanity just doesn’t make sense

ad Mark the tabloids called tence of life imprisonment. Mhim. Mark Nash’s recent In 1978, the Henchy convictions for murder suggest Committee, chaired by the eminent that the jury regarded the young judge, recommended that the Yorkshireman as ‘bad’ rather than diminished responsibility defence mad. The truth no doubt lies be introduced here. It has never somewhere in between. been provided, despite much judi- This latest awful murder trial, cial and political comment over the following those of John intervening years. It is a clear lacu- Gallagher, Brendan O’Donnell na in any modern system of crimi- and Patrick Granaghan, has again nal justice. It provides a humane highlighted the need for reform of mechanism for recognising that a the laws relating both to criminal person may not be of full legal insanity and culpable homicide. responsibility for their acts, while Evidence presented at Nash’s trial preserving the full range of sen- suggested that the accused was a tencing powers, up to the maxi- young man from a disturbed mum in appropriate cases, for the background with an explosive most dangerous people. and unpredictable temper. In the current climate of opinion, he was Abolishing murder? unlikely to persuade the jury that For that matter, should we now be he should be excused for his acts, thinking of abolishing the offence that he was in need of treatment of murder completely? There is no rather than punishment. logical reason why not. Many states of the USA have done so, Victorian attitudes and for perfectly good reasons. If Our criminal insanity laws date falling outside these treatable cate- proven killers. The Minister takes we had a single, simple, offence of, from the Victorian age, with only gories will not therefore usually advice, which he or she is not say, culpable homicide, punishable minor updating. An inevitable attract an insanity defence. Even obliged to act upon, from an ad hoc by anything up to life imprison- hanging was the result of a murder gravely disturbed persons – such as committee to which is delegated a ment, then the judges could tailor conviction in those days. Although Brendan O’Donnell, for example, fact-finding function, which con- the sentence according to the life imprisonment is the modern undoubtedly was – will have diffi- siders applications for release in nature of the crime and the charac- solution, there is still huge stigma culty in persuading a jury that the respect of the prisoner or patient. teristics of the offender (bearing in attached to the verdict, and, per- square peg of his particular disorder The ultimate responsibility lies mind that most homicides are one- haps worse, an indefinite sentence, falls into the round hole of a mental with the Minister. off offenders). with the life-long threat of recall to illness, and thus avail of the defence. Most people accused of murder prison for any perceived misbe- There are moral imperatives in all Criticism from judges contest the charge, if only because haviour following eventual release of this. We, as a society, have taken The all or nothing approach forced of the uncertain release date of a from custody. the view that the full rigour of the on accused people in insanity-type life sentence. If we had a more Psychiatry was barely out of the criminal law should be reserved for cases – that is, a conviction for flexible sentencing regime, then womb when the M’Naghten Rules people who are of full responsibility. murder or an acquittal by reason of the truly harsh sentences could be – the mid-19th Century definition Logically, then, it is presumably insanity – has been the subject of reserved for the worst cases. We of insanity – were conceived by incumbent on our lawmakers to an increasing amount of criticism could also, of course, extend the the UK House of Lords. Modern reserve punishment for those who from judges, practising lawyers judicial options by introducing psychiatry is far from being an deserve it, and to excuse those who and commentators over the last secure (or non-secure) hospital exact science, but bears little through no fault of their own suffer few years. In 1957, the Homicide orders, such as those available resemblance to its ancient cousin, from mental disorder to an extent Act was passed in Britain, allowing under the English Mental Health with its references to a ‘defect of that they lack ‘ordinary’ perception a mid-point defence of ‘diminished Acts, to deal with appropriate reason’ and ‘disease of the mind’. and control. responsibility’. This defence, cases. The real difficulty with the Ironically, there may be little dis- applicable only in murder cases, No doubt the tabloid papers will application of the insanity defence tinction between the end result of a applies, broadly, to persons suffer- continue to stigmatise the Mad is that today’s psychiatrists tend to murder conviction and an insanity ing from such abnormality of mind Marks of this world. That, howev- suggest that ‘insanity’ is a term ‘acquittal’. Each results in a com- as to substantially impair mental er, should be the spur to our legis- which, strictly speaking, applies to mittal to a long-term custodial insti- responsibility for their acts in rela- lators to enact long-overdue a limited number of mental illness- tution, respectively prison or the tion to a killing. It refers to either reforms of the law – not provide an es, treatable in nature, rather than Central Mental Hospital. The short-term or longer-term condi- excuse for continuing inaction. G to a broader set of mental disor- release date for each person will be tions, and has the effect of reduc- ders, such as, for example, person- determined by the Minister for ing a murder charge to one of Dara Robinson is a solicitor with ality disorder or psychopathy. Justice. Release dates tend to be manslaughter, which of course car- the Dublin solicitors’ firm Garrett Abnormal mental conditions conservatively decided in the case of ries a theoretical maximum sen- Sheehan and Company.

NOVEMBER 1998 LAW SOCIETY GAZETTE 5 VIEWPOINT Loyalty to King and country

dward VII, King of Great To The Private Secretary, Patrick Hogan was appointed EBritain and Ireland, and Queen Alexandra, Minister for Agriculture, and Defender of the Faith, breathed his Buckingham Palace, Kevin O’Higgins, who had served last at 11.45pm on Friday 6 May London. his apprenticeship with a view to 1910. On hearing the news, the The President and Council of the becoming a solicitor, was appoint- President of the Law Society of Incorporated Law Society of ed Minister of Economics. All Ireland, Richard A Macnamara, Ireland beg to assure Her Majesty were warmly congratulated by the summoned a meeting of the Queen Alexandra of their most President and Council of the Law Council for Monday 9 May 1910 profound sympathy in her bereave- Society. so that the Council and the Society ment, and of their deep sorrow for The President of the Law might give expression to their feel- the calamity which has befallen Society, PJ Brady, in his presiden- ings at the death of His Majesty. the nation. tial address to the Half-Yearly At the meeting, the Council Meeting on 16 May 1922 in ‘deplored’ the death of the King, The following replies were Dublin’s Molesworth Hall (the which took place ‘with such star- received: Four Courts, including the Law tling suddenness’. The President The President Society headquarters, still lying in stated that Edward VII was a great Incorporated Law Society of ruins), stated that the Council took and beloved monarch, a great Ireland, the earliest opportunity of commu- diplomat, and his voice was ever Solicitors’ Buildings, was one of the signatories to the nicating with the Provisional raised in the cause of peace. The Four Courts, proclamation. Government and, in particular, the sympathy of the Council was Dublin. The following year, Frederick Minister for Home Affairs whom, offered to Her Majesty Queen Queen Alexandra sends her sin- W Meredith, as President of the as a solicitor (together with the Alexandra and to His Majesty cere thanks for your kind expres- Law Society, informed the Council other solicitor members of the King George who, though he had sions of sympathy in her sorrow. of the Society on 17 May 1911 that government), they heartily con- gained a crown, had lost a loving he had been honoured with an gratulated on their appointments to father. Richard Macnamara, invitation to be present at such responsible positions. The The President then moved, and Solicitors’ Buildings, Westminster Abbey upon the President expressed his and the it was unanimously resolved, that Four Courts, occasion of the coronation of Their Council’s desire to assist the gov- the following telegrams be sent Dublin. Majesties King George V and ernment ‘by every means in their immediately: The King sincerely thanks you and Queen Mary on 22 June 1911. power whether in questions of To The Private Secretary, the Council of the Incorporated legal administration or otherwise’. King George V, Law Society of Ireland for the kind The new regime We should not misinterpret the Marlborough House, sympathy and loyal assurances The Great War followed, then the descriptions of loyalty described London. you express. 1916 Rising, the turbulent period in this piece. There are no neces- The President and Council of the of the Tan War, then the Civil War sary inconsistencies in an institu- Incorporated Law Society of The President of the Law Society and the destruction of the Four tion like the Law Society adopt- Ireland beg to offer to His Majesty received an invitation from His Courts (including the Law Society ing an exceedingly pragmatic the King their most respectful sym- Excellency the Lord Lieutenant to headquarters) and the birth of a approach to the incumbent pathy in his bereavement, and attend the meeting of the Privy new legal order. Early in January authorities in the context of the humbly to assure His Majesty of Council held on Monday 9 May 1922, Dublin solicitor Edmund J Law Society’s interests. G their feelings of loyalty and devo- 1910 for the proclamation of His Duggan was appointed Minister of tion to His Majesty’s Throne and Majesty King George V. The Home Affairs in the Provisional Dr Eamonn Hall is Chief Legal person. President attended the meeting and Government. Galway solicitor Officer with Telecom Éireann plc.

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NOVEMBER 1998 LAW SOCIETY GAZETTE 7 VIEWPOINT Letters

Payback time for Bad medicine From: Ronan W Holland, Dublin something needs to be done to the banks? am dismayed at the escalating keep these fees under control and Ifees being charged by doctors at reasonable levels. There was From: Richard E McDonnell, Co amount of paperwork, phone for medical reports. I was recent- previously an agreement as to the Louth calls (from clients and to various ly informed by a consultant that level of fees between the profes- note that the Council has decid- departments of each lending he would be charging £200 for a sional bodies and the Irish Ied to accept the Conveyancing agency), and the general harass- first report and £160 for a second Insurance Federation. The Law Committee’s recommendation ment that the processing of home report as recommended by the Society should strive to reach that the Society should not seek loans now involves can possibly Irish Hospital Consultants agreement with the appropriate what it refers to as ‘extra’ pay- expose us to any greater risk than Association. bodies on the level of these fees ment from lending institutions for already exists is beyond me. I am sure there are many prac- which seem at the moment to be the work done by us in domestic I note that the Society feels titioners who will agree that spiralling out of control conveyancing transactions that we should spend further ‘because of the risk that this millions of pounds building a would unacceptably increase the new Law School. Could I sug- liability of borrowers’ solicitors’. gest that the banks and building What heavy gang? The word ‘extra’ is surely societies for which, it seems, we superfluous as we are not being are to continue carrying out From: Patrick Cooney, Athlone in fairness to the Gardai paid at all for such work. It seems work free of charge indefinitely n the August/September issue of involved, it should be noted that to me that furnishing a certificate might be approached with a Ithe Law Society Gazette following exhaustive court pro- of title constitutes an open cheque view to their funding the acqui- (Viewpoint, page 4), Michael cedures none of the allegations in that if virtually anything ever sition of the new building? I Farrell writes: ‘… we had the of brutality stood up in court and transpires to be wrong with a title, imagine that one year’s fees for- Sallins mail train case along with no statement was excluded on the courts seem quite willing to gone by solicitors nationwide allegations of brutality being used the grounds of ill treatment. make solicitors liable. How being for such work would cover the to secure confessions’. These facts are sometimes over- paid a fee for dealing with the vast cost of the new premises. To complete that picture, and looked. Leave it to the experts!

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8LAW SOCIETY GAZETTE NOVEMBER 1998 VIEWPOINT A world beyond the Pale

From: Fiona Buckley, Cork City favour of those practising in those who do not practise there. I to attend? There cannot be many e have just been asked to Dublin. I fully accept that any assume, without having any fig- of the profession in areas such as Wvote in the election for Society has to have a headquarters ures for practising solicitors, that Cork for whom it is feasible to members of the Council of the and, perhaps understandably, the at least 50% of the profession travel to Blackhall Place to attend Law Society. On the voting paper, headquarters is in Dublin City. practises outside Dublin. Why is either a meeting or a two-hour there are 20 candidates presenting I would be of the view, though, it that so many of the meetings lecture at 5pm mid-week. themselves for election. Of those that the Society in terms of conve- and CLE lectures take place at After all, we all pay the same 20, 13 are solicitors practising in nience and accessibility serves its times that are completely imprac- rates for our practising certifi- Dublin City. There are no candi- Dublin members far better than tical for solicitors such as myself cates. dates from Cork, Limerick or Galway cities. Indeed, out of those 20, 15 are Altogether now from Leinster, two from Connaught, three from Munster From: Patrick O’Connor, religious beliefs. The courts inter- between the different churches and none from Ulster. Clearly, this Foxford, Co Mayo pret and apply the Constitution and and other places of worship in does not reflect the spread of recently had the honour, as laws of Ireland without regard to Dublin, or alternatively (and solicitors throughout the Republic ISenior Vice-President of the the religious beliefs of those who preferably, I suggest) in the Four of Ireland. Law Society, to represent the appear before them whether they Courts building itself. I would be very interested to solicitors’ branch of the legal pro- be litigants, lawyers, or otherwise. One service to celebrate the read other members’ views as to fession at the joint protestant reli- No fewer than six religious ser- beginning of the new law year what has led to this gross imbal- gious service held in St Michan’s vices were held to celebrate the would send a signal from lawyers ance in the candidates who are pre- Church to celebrate the beginning beginning of the new law year. in this country to the world, and pared to put themselves forward of the new law year. It was a fit- Should not the beginning of the particularly to those living in for election. I myself have been of ting and appropriate service. law year in Ireland be celebrated Northern Ireland, that we live in a the view over the last few years Ireland’s Constitution and laws by a non-denominational service? non-sectarian, united, open and that the Law Society is biased in apply to all people, regardless of Such a service might rotate tolerant society.

Dumb and dumber From: Dermod Morrissey-Murphy, ‘It is hereby certified that the with that machine I was telling you of Cassidy’s for me. Please do not Limerick transaction hereby effected does about that it cost £1,000 to over- send any more letters to ...’ was acting for a plaintiff some not form part of a larger transac- haul. The pump went on strike in it Iyears ago and I was in the course tion or of a series of transactions in at Christmas. It will cost £150 to From: Nicholas Hughes, Cork of dictating his statement of claim respect of which the amount or repair at Cassidy’s of Dublin. I have he following is an absolutely when I stated inter alia the follow- value or the aggregate amount or not a bob on me at the moment. I Ttrue incident. ing: ‘Because of the injuries sus- value of the consideration exceeds am waiting for a few farmers to pay Acting for a public body, I dealt tained by the plaintiff, he has ... and that the husband and wife up, they haven’t got any money, with two difficult motions in the become sexually impotent as a were lovely and were married to they are waiting for grant money, Supreme Court. In each case, my result of which he suffers from neu- each other as husband and wife’. and the Land Project Office across opposition represented themselves. rotic tendencies’. the street from ye say they will not As I was leaving the court, an elder- When it was typed and placed From: Liam Irwin, Irwin Kilcullen & have any money till the end of the ly barrister caught my sleeve and in on my desk, I noted the following Company, Cork month, so where am I. a superb imitation of Edith Evans translation of the above: ‘Because he following is the text of an I am trying to get in to Whiddy said: ‘To have one lay litigant may of the injuries sustained by the Tabsolutely genuine letter which Island driving one of their machines be a misfortune, but to have two plaintiff, he has become sexually I received many years ago from and that is the reason I did not seems like carelessness’. He was impudent as a result of which he someone from whom I was trying write you, as I was hoping I would right, but he did not know the half suffers from erotic tendencies’. to recover a debt. There is a certain be able to send you some few of it. Needless to say, had I not spot- roguish charm about it and it cer- pounds if I got a job there. ted this error the value of the plain- tainly had the desired effect in as I got married at Christmas, but Liam Irwin wins the bottle of champagne this month tiff’s claim would have been consid- much as my clients gave up all hope that cost me nothing, as I had noth-

erably reduced. of recovering anything from the ing to spend. My sister came from A bottle of the finest champagne gentleman in question. Perhaps America for the occasion. I would will go to the reader who sends in From Michael Cody, Carlow you may wish to publish it to ask her for money but I know she is the funniest contribution to Dumb enclose a copy of a draft finance demonstrate that our job does have broken now with myself. and dumber each month. certificate from a deed of transfer its lighter moments. Thanking you for all your kind- I Send your examples of the wacky, of the family home by a husband ness. weird and wonderful to and wife as part of their separation ‘Dear Sir, PS If you know anyone with work the Editor, Law Society agreement. I acted for the husband I am very sorry not to have written for a traxcavator bulldozer, I would Gazette, Blackhall Place, and received this draft from the to you sooner but my whole trou- work for half nothing for them if Dublin 7 or you can fax us on 01 671 0704. wife’s solicitor: ble is that I am still broke down they would redeem the pump out

NOVEMBER 1998 LAW SOCIETY GAZETTE 9 NEWS

BRIEFLY Examiner and Western People scoop LawLink adds two new databases Law Society Justice Media Awards LawLink has added two new data- bases to its on-line service. wo of the top Justice Media Working in association with pub- TAwards 1998 were awarded to lisher Bart Daly, LawLink has journalists from outside the Pale. launched a current awareness ser- The Examiner and Western vice which will track new develop- People were overall winners in ments in the law and produce the newspaper categories, leaving them in a manageable form. The their Dublin-based competitors in Irish Weekly Law Reports (IWLR) the shade. will be available free on the ser- The awards were presented by vice this month and next month. Minister for Justice, John Also this month, LawLink will pub- O’Donoghue, and the President lish hearing lists for the Eastern of the Law Society, Laurence K Circuit Court on a pilot basis. Shields, at a ceremony in Blackhall Place recently. The Vintage crack at wine fair winners in each of the four cate- The Law Library is planning an gories won a Dublin Crystal evening of vintage crack at its Joyce plate and a £500 cheque, Writer and broadcaster Vincent Browne (centre) accepts his Justice Christmas wine fair on Thursday with the runners-up receiving a Media Award from Justice Minister John O’Donoghue and President Laurence K Shields 26 November between 2pm and certificate of merit and a cheque 9pm at 145 Church Street, Dublin for £100. 7. Solicitors and friends are wel- The overall winners in the Daily Newspapers went to first year. Sally Roden won her come. The fair will be a chance to Daily Newspapers category were Denis Daly of the Western award for an article explaining the stock up for Christmas at trade Pat Brosnan and TP O’Mahony of People for his article on the dis- different rights and entitlements prices. Suppliers exhibiting will the Examiner for their series of credited petition system which, of married and co-habiting cou- include Findlater’s, Burgundy three articles on the role of the until four years ago, allowed the ples. Direct, Febvre, Fitzgerald’s, Mitch- Supreme Court and how its deci- Minister for Justice to cut or In the Radio and TV ell’s, Nicholson’s and Searson’s. sions have shaped policy and law remove fines and other penalties Broadcast category, the Justice in modern Ireland. The imposed by the courts. Media Award went to writer and Y2K courses for Italax users Adjudication Panel was particular- Three certificates of merit broadcaster Vincent Browne for Software supplier IVUTEC plans ly impressed by the combination were awarded in this category: his RTE radio show Tonight with to run a number of short training of depth of analysis and lightness ● Kevin MacDermot of Ireland Vincent Browne. The panel par- courses to prepare the users of its of touch which made this series on Sunday for an article on the ticularly liked the way his show practice management software both readable and informative. administration of justice called teased out some of the more prob- Italax for the Year 2000. Training Certificates of merit went to: Justice system in the dock lematic aspects of the Freedom of administrator Aveen Murphy told ● Michael Foley of the Irish ● Matt Cooper of the Sunday Information Act. the Gazette that the courses will Times for his two articles on Tribune for an article on the A certificate of merit was be run next January. ‘We have the impact of the Freedom of vagaries of sentencing called awarded to: spoken with our users and they Information Act The injustice of it all ● Joe Little of RTE for his televi- have repeatedly asked us to give ● Sam Smyth of the Irish ● Ted Harding of the Sunday sion news report in which he them the opportunity to go on Independent for a piece on the Business Post for an article on interviewed the parents of the short, affordable training cours- fundamental role played by whether we really need more girl at the centre of the C case es’, she said. Hepatitis C victim Brigid prison spaces, entitled Jails ● Sinead Wylde for her piece on McCole’s solicitors, called may be just easy answer. Cork Campus Radio on the Milestone on track Heroic lawyers did their coun- work placement of UCC stu- PC Consultancy Milestone try some service. In the Magazine Category, the dents on death row in the Systems is now distributing Justice Media Award went to United States Equitrac Corporation’s range of The winner of the Justice Media Consumer Choice, which also ● Fergal Ryan of Today FM for a cost recovery products. The two Award in the category of Non- won in 1992, the competition’s piece on the role of expert wit- products, AlphaFax and nesses. AlphaCopy track the cost of fax- ing and photocopying for clients, The awards were relaunched this allowing you to calculate accu- Compensation Fund payouts year after a gap of four years. The rately the cost of these services The following claim amounts were admitted by the Compensation Fund competition aims to reward out- and pass them on. Dublin-based Committee and approved for payment by the Council at its meeting in standing journalism in the printed Milestone also supplies products September: Dermot Kavanagh, 2 Mary Street, New Ross, Co Wexford – or electronic media which con- for tracking telephone and laser £2,892; Michael Owens, 5 Lower Main Street, Dundrum, Dublin 14 – tributes to the public’s under- printing costs. £3,819. standing of the law, the legal sys- tem or any specific legal issue.

10 LAW SOCIETY GAZETTE NOVEMBER 1998 NEWS

Members vote 76% in favour BRIEFLY O’Rourke to address of new education centre business breakfast Public Enterprise Minister Mary he recommendations of the O’Rourke will address this TEducation Policy Review month’s New Horizons business Group, including the recommen- breakfast at the RDS in dation to build a £5 million state Ballsbridge, Dublin, on Thursday of the art education centre at 12 November. The theme will be Blackhall Place, were overwhelm- The telecommunications indust- ingly approved in a postal vote of ry. For more information, contact members by a ratio of three to one. Geraldine Hynes at the Law This followed the earlier endorse- Society (tel: 01 670200). ment which the recommendations received from last month’s special 13 barristers take silk general meeting of the Society 13 barristers took silk last month. and, earlier still, from the Law The new senior counsel are: Society Council. Bernard Barton SC, Frank Reacting to the result of the Callanan SC, Michael Cush SC, postal ballot, Law Society John A Edwards SC, James Director General Ken Murphy Men at work: scrutineers count the votes cast in the recent postal ballot Gilhooly SC, Felix McEnroy SC, said: ‘The voice of the profession (seated from left: Andrew Donnelly, Colm Price, Walter Beatty and Michael Joseph McGettigan SC, Declan Staines. Standing: Adrian O’Gorman) has now been clearly heard, and McGovern SC, Noel McMahon SC, this utterly decisive majority puts James F O’Leary SC, Desmond the issue beyond further question. The next step will be the invi- O’Neill SC, Stephen Roche SC, This was one of the most impor- tation of tenders for the actual and John Whelan SC. tant decisions that the members Results of the construction of the new education have taken in decades. It is a dec- postal ballot centre. Work will begin as soon as Four Courts to smoke out laration of confidence in the possible. The target for comple- the weed future, and reveals a determina- Total valid poll: 1,878 tion of the building remains June The Four Court authorities want tion by the profession that the 2000, with the first students start- to smoke out lawyers who have In favour: 1,437 Society’s training of new solici- ing the newly-redesigned profes- been lighting up there and flout- Against: 441 tors will continue to be of the sional course in September of that ing its tobacco ban. High Court highest quality’. year. President Frederick Morris recently wrote to the Law Society asking it to remind solicitors that Law Society Council elections the Four Courts is a public build- ing and smoking is banned there. he Law Society has a new 12 James McCourt 1,093 19 Sean O’Ceallaigh 625 Morris pointed out that Gardai TCouncil and a new President, 13 Walter Beatty 1,092 on duty there noticed that solici- with Pat O’Connor set to take 14 James MacGuill 1,091 As there was only one candidate tors are lighting up despite the office this month. O’Connor was 15 Orla Coyne 1,077 nominated for each of the two rel- rule, and also leaving the Round deemed to be elected to his post evant provinces, there was no Hall floor littered with butts. after serving as Senior Vice- The following candidates were election and the two candidates President for a year. not provisionally elected: for these seats were returned Hostile bids destined The following members were 16 Boyce Shubotham 965 unopposed as follows: for court provisionally elected, the number 17 Patricia McNamara 869 Leinster: John Harte Almost every hostile takeover bid of votes received by each appears 18 Stuart Gilhooly 694 Ulster: James Sweeney. in this country will end up in after their names: court, a leading commercial prac- titioner warned recently. Arthur Name Votes Four members appointed to Cox partner Stephen Hegarty 1 Michael Peart 1,486 district bench told the Annual Irish Mergers 2 Gerard Griffin 1,425 and Competition Workshop 3 Donald Binchy 1,408 our more solicitors are on the Sligo. She qualified in recently that takeover activity 4 Elma Lynch 1,344 Fdistrict bench around the Michaelmas 1972. was increasing rapidly. He point- 5 John Shaw 1,277 country following the latest David R Anderson of Dublin ed out that when the 15-month- 6 John Fish 1,276 round of judicial appointments. firm Gerrard Scallan & O’Brien, old Irish Takeover Panel is faced 7 Anne Colley 1,249 One of the new judges is a Kerry solicitor James O’Connor, with a contested bid for a com- 7 Keenan Johnson 1,249 woman, Mary Devins. A gradu- and Limerick man Tom pany, it could find itself in a situ- 9 Philip Joyce 1,215 ate of University College Dublin, O’Donnell of Holmes O’Malley ation where its decisions would 10 Michael Irvine 1,188 she was a member of Armstrong Sexton have also been appointed be judicially reviewed. 11 Niall Farrell 1,174 and Devins of Wine Street, to the district bench.

NOVEMBER 1998 LAW SOCIETY GAZETTE 11 Top gun

Despite initial reservations, Pat O’Connor has followed in his father’s footsteps: first he became a solicitor, now he’s been elected President of the Law Society. Here he talks to Conal O’Boyle about his career to date and his plans for his year in office

f you ever stop loving and enjoying what ing full-time in the family firm P O’Connor our own building, our own place, and it is iden- you’re doing, either take a sabbatical or & Son. tifiable. The next stage, the construction of a ‘I consider a career change’. That’s the In the course of his professional career, new education centre, is to a certain extent the advice the Law Society’s new President, Pat O’Connor has become a notary public for final phase of what was started all those years O’Connor, would give to anyone entering the counties Mayo, Sligo, Roscommon and ago. Once you house your profession, you solicitors’ profession today. Ironically enough, Galway and coroner for Mayo East, but he have to have a place to educate and train those O’Connor himself thought of joining the mile- regards his greatest professional achievement who are coming into it’. high club rather than following two genera- as simply qualifying as a solicitor. One case tions of his family into the law. that gave him particular pleasure was a wran- No serious competition ‘Around 1968’, he says, ‘I thought I would gle over fishing rights on the River Moy a Unlike so many latter-day legal Cassandras, like to be an airline pilot so I applied to Aer number of years ago where some landowners O’Connor does not believe that the solicitors’ Lingus, but they weren’t taking on any trainee objected to the use of their lands by anglers profession is in imminent danger of imploding pilots that year. When I told my father of my and fishermen. The case ran for three and a under the sheer weight of numbers entering it ambition, he was a little taken aback because half days in Castlebar Circuit Court. The farm- nor that it is facing any serious competition he had wanted me to become a solicitor and to ers, represented by O’Connor, won the first from other professions. carry on the line. So he said to me: “If you round but lost in what might well be the ‘I think there is a tremendous future for the want to become an airline pilot, go ahead and longest Circuit Court appeal ever heard in the legal profession. We will have more lawyers do it, but just do one thing for your own sake: West of Ireland. The appeal lasted nearly ten rather than less because, as society becomes have the security of knowing that you have a days before Mr Justice Ronan Keane, who more complex and more regulated, it will profession behind you. Go to university first, ruled substantially in favour of the appellants. inevitably develop a need for more lawyers. get your qualifications, and then become a The point about cases like this, says ‘I have heard stories from colleagues in the pilot. If things don’t work out, then you’ll have O’Connor, is that it gives ‘a great insight into larger urban areas that accountants pose a two choices in life”’. human nature and into the real issues facing threat to solicitors. They don’t. We will always small landowners and farmers in the country have the march on any other profession Smooth passage – the issues that they feel are important to because we are trained to deal with legal issues O’Connor took his father’s advice, started out their livelihood are not necessarily the issues and concepts and to apply legal principles to with the law and has stuck with it ever since. that we as lawyers might think should be all the things that affect us in life. So far, at least, he has few regrets about his important. ‘The solicitors’ profession has a very rosy thwarted ambition and has run into very little ‘To go to court and to win is important’, he future provided that it understands where it’s turbulence in the course of his career. He flew adds, ‘but to go to court and to have a client going and doesn’t get involved in too many through college, served his apprenticeship, and satisfied that they got a good hearing and had diverse issues. In the past, there was an was on the Roll of Solicitors at the age of 21. a professional presentation of their case – attempt to broaden the areas of work that ‘Looking back on it, I think it was too win, lose or draw – is extremely satisfying. I solicitors became involved in, such as auc- young’, he says, ‘but at the time I was delight- just love it’. tioneering and insurance agencies. That may ed. I suppose I enjoyed being a young qualified suit some individuals but not the profession in solicitor with a bit of money to spend’. With Solid foundation general. I think we need to focus on our core the benefits of hindsight, the new President This kind of attitude may be just what the Law service areas and to market those services would recommend that would-be solicitors Society needs as it faces into the next millen- effectively’. today should have a little more life experience nium. The new President believes that the As one of the first recipients of the Q Mark, before they are admitted to the Roll. decision on whether or not to invest in a new it’s not surprising that O’Connor is a strong Following qualification, O’Connor went education centre is central to the Society’s advocate of customer care as a means of gain- to work in the Dublin firm Hayes & Sons, an ability to meet the challenges of the future. ing competitive advantage. He believes that experience he says that will stand to him for- ‘Some 25 years ago the Council of the Law the profession is increasingly losing its old- ever (‘I owe an enormous debt to Adrian Society had the vision to buy and equip fashioned image and today almost universally Glover and the staff at Hayes’s for training Blackhall Place’, he says. ‘I think that single embraces modern management tools and qual- me to be a practising solicitor’). Since 1976, achievement laid a very solid foundation for ity systems. he has been back in his native Mayo, practis- the profession into the future. We now have ‘There used to be a perception that solicitors

12 LAW SOCIETY GAZETTE NOVEMBER 1998 NEWS ANALYSIS

NOVEMBER 1998 LAW SOCIETY GAZETTE 13 NEWS ANALYSIS

Pat O’Connor Fact File

Born: 22 October 1952 Lives: Foxford, Co Mayo Family: Married to Gillian, four children (Katie, William, James, Christopher) Occupation: Solicitor (admitted to Roll of Solicitors in 1974), notary public for Mayo, Sligo, Roscommon, Galway, coroner for Mayo East. Principal of the firm P O’Connor & Son, which employs seven solicitors and 14 other staff in its Swinford and Kiltimagh offices Education: Secondary: Glenstal Abbey; third level: BCL (Hons) from UCD, 1970-73, LLB (Hons) from UCG (1992-94) Law Society career: Elected to Council every year since 1978. Junior Vice-President 1993, Senior Vice-President 1997, President of the Law Society for year 1998/99. Has served as chairman of the Education, Registrar’s, Professional Purposes (now Professional Guidance), Joint Law Clerks Labour and Annual Conference committees. Has been a member of nearly all the Society’s committees in his 20 years on Council Interests: Tennis, golf, yachting, fishing, swimming, walking Other information: Author of Handbook for coroners in the Republic of Ireland and The Royal O’Connors of Connaught. Former mem- ber of Fine Gael National Executive. His father, Thomas V O’Connor, was President of the Law Society 1972/73

were not good at looking after their clients or both going to end up as lawyers’, he says. term of office is to improve the Law Society’s at providing customer care. That is changing. Among the issues he will have to face in his image among its members. The starting point, Certainly the larger and medium-sized offices year as president is the perennial lament from he says, will be to tell the profession about the have had to change so that the needs of their some quarters that the Law Society is not doing large number of services the Society already commercial clients would be looked after, but enough for its members. O’Connor believes that provides and which they may be unaware of. the smaller practices are beginning to change this is largely a reaction to the dichotomy in the ‘I would hope that during my year that we too and are putting much greater emphasis on Society’s dual role as regulator of the profession will be able to convey to my colleagues what looking after the individual clients. I think you and as its representative body. the benefits of being a member of the Law will see an increasing number of solicitors Society actually are. After all’, he points out, going down the Q Mark and ISO 9000 route Changing the balance ‘they are the ones who are paying for the run- because it enhances and evaluates objectively ‘It’s very difficult for an organisation like the ning of the Society. the service they are giving’. Law Society to wear two hats. I think while ‘My twin goals are, firstly, to try to get all One change that O’Connor is not so keen to there is a perception that we have tended in the members of the Law Society to visit Blackhall see is a unified legal profession, and he doesn’t past to emphasise the regulatory side rather the Place, whether on a working or social occasion, think it will happen in his lifetime or even in representational side, major strides have been and to become regular users of its facilities. his children’s. ‘I don’t think it would be in the made in the last two or three years, particular- Secondly, I want to see a start made on the new public interest’, he says. He is, however, keen ly with the appointment of Director General education centre that has just been endorsed by to promote closer co-operation between barris- Ken Murphy, who is a solicitor and who under- the profession by a three to one majority. I hope ters and solicitors, particularly in the field of stands the solicitor’s mind. The balance has that as many of the profession as possible will education. ‘I think that there is a great waste of changed very dramatically so that we are now come and join me at our annual conference in resources on both sides of the legal profession more representational than regulatory – but the ‘magical Mayo’ next year. in providing what is in many respects a similar regulatory side is something that we will have ‘I am looking forward to my year as President. type of education and training. I accept that to carry on with it. It is a consequence and hall- I intend to try to meet as many of the profession there are some differences between solicitors mark of a self-regulating profession.’ as possible and to be as good and capable a rep- and barristers, but at the end of the day they are One of the goals he has set himself for his resentative as I can be for them’. G

NOVEMBER 1998 LAW SOCIETY GAZETTE 15 CookingCooking

The Criminal Justice (Fraud Offences) Bill is due to be published in January, but recent events have shown that, where corporate fraud is concerned, neither the Government nor the public at large seem to know what is really going on. Pat Igoe discusses the likely contents of the Bill that is being flagged as a major overhaul of our hopeless anti-fraud legislation

raud is infinite in variety: sometimes it is audacious and unblushing; sometimes it pays a sort of homage to virtue; and then sometimes it is modest and retiring. It would be honesty itself if it could only afford it. But fraud is fraud all the same’. ‘FA dictum for our times? The words of Lord MacNaughten ring through the years since he uttered them in the Appeals Court in 1896. It can be called fraud or white-collar crime or paperwork crime. And, as Irish peo- ple now believe, it does indeed come in many forms and from unexpect- ed directions. In the context of the Ireland of the 1990s, at least we can comfort our- selves that it is neither new nor exclusively Irish. One of the best-known frauds ever was the South Sea Bubble of 1720, an imaginative exercise in market manipulation. The largest-ever known was the Bank of Credit and Commerce International (BCCI) fraud at the start of this decade where an

16 LAW SOCIETY GAZETTE NOVEMBER 1998 COVER STORY gg thethe booksbooks

estimated £800 million was lost to depositors. Neither fraud was Irish. But there the comfort ends. The words of a latter-day Irish jurist, the late Mr Justice Niall McCarthy of the Supreme Court, written in 1990, are now sadly hollow: ‘Dublin has a number of advantages for those seeking financial services: in its location, in its use of the English lan- guage, and happily thus far in its lack of production of what are termed City scandals’. Long-awaited and overdue legislation is scheduled to be published next January. The Companies Act, 1963, the Planning Act of the same year, the Succession Act of 1965 and the Unfair Dismissals Act, 1977 were significant pieces of law that made a difference. Will the urgently- awaited Criminal Justice (Fraud Offences) Bill also provide some answers to a society that is now demanding fair and open dealing and the dropping of the term ‘golden circle’ from our lexicon?

Fundamental and far-reaching reform? The Bill will spearhead our anti-corruption and anti-fraud laws into the 21st Century. It will update and consolidate the law. It has been promised by a succession of Ministers for Justice, including Padraig Flynn and Nora Owen. The Government’s proposals on ‘zero tolerance’ for white- collar theft will be brought before the Dáil and the people by the Minister for Justice, John O’Donoghue TD. We are promised ‘a fundamental and far-reaching reform of the law on fraud and dishonesty’. The legislation will also ‘ensure that this vital area of the criminal law fully reflects modern conditions’, according to the Department of Justice. Apart from the succession of disclosures of suspected serious financial misdeeds, brought for one reason or another to the Irish public’s attention over recent years, the extent of fraud and the size of the ‘black economy’ in this country have been cause for serious concern. By their very nature, their size is unknown. But they are acknowledged as being as corrosive as they are secretive – to the economy, to the political system and to social cohesion. Their cost is incalculable.

NOVEMBER 1998 LAW SOCIETY GAZETTE 17 LAW SOCIETY OF IRELAND

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Last year, Gabriel Fagan, an economist vital tool in getting to the heart of com- with the European Monetary Institute and the plicated frauds’ Central Bank, attempted to identify the ● That the Gardai should be empowered to extent of our secretive black economy. He arrest without warrant for all offences of concluded that, depending on the technique dishonesty employed, estimates suggested that each year ● That accountants should be available to it amounted to at least £1 billion and could be juries in complicated fraud trials to as high as three times that figure – which is explain accountancy procedures equivalent to £250 to £750 for every man, ● That modern information technology, woman and child in the country. including computer terminals and other The black economy and fraud are inextri- aids, be used to help juries understand cably and symbiotically linked. But, unlike complicated issues in fraud trials. It is most other crimes, even their existence can well established that confusion and igno- be difficult to identify and even more diffi- rance are of considerable benefit to those cult to prove. Hence the significance of suspected of fraud Minister O’Donoghue’s Bill. ● That lawyers take training in accountancy and information technology and that Clearing house for hot money judges attend seminars on such matters. It Mr Justice Paul Carney spoke some years might be added that judges, lawyers, ago about ‘jurisdiction shoppers’ in the con- members of a jury or the men and women text of international fraud. The fight against on a Clapham omnibus would require the corruption and fraud is no longer local, par- abilities of a learned polymath, and an ticularly with Irish membership of the equal amount of patience, to fully under- European Union and the freedom of money to flow between countries. stand all of the legal, accounting, sociological and psychological aspects Apart from dealing home-grown fraudsters, the authorities here need of many of these complex crimes. effective legislation to protect Ireland from being used as an easy option by international criminals. According to the Irish Times earlier this year, The recommendations of the Government Advisory Committee on Fraud Ireland is in danger of becoming a clearing house for hot international range from the establishment of a Garda National Bureau of Fraud money, with an estimated £20 billion being ‘flushed’ through Irish non- Investigation (to replace the Garda Fraud Squad) to the curtailment of the resident companies. right to silence where explanations could reasonably have been given Few commentators would disagree that effective anti-fraud legislation earlier, and also giving the courts the right to impose unlimited fines ‘to in Ireland is overdue. The new Bill will be measured on whether it tack- punish serious fraud and to provide a credible deterrent’. les the gaping shortcomings both in our laws and in our court procedures. The bureau has been established, but it does not publish annual reports The world has moved on from the era of the Larceny Acts from 1861 and so its effectiveness cannot be assessed or compared with that of the SFO the Forgery Act of 1913. in London. The SFO is staffed primarily by lawyers and accountants, Mr O’Donoghue has promised that the Bill will create a new offence with the assistance of seconded police officers. It is not a branch of the of theft. This will replace a complicated range of both old statutory and police. It publishes an annual report each year which is presented to the common law crimes, including larceny, embezzlement and obtaining by British Parliament. false pretences. He also promises that the Bill will create new crimes ‘to deal with dishonest behaviour not properly covered by existing legisla- Reimbursement and disgrace tion’. The recommendation of unlimited fines aims to impose a meaningful Interested observers, both at home and abroad, will be watching to see deterrent to paperwork crime. It seeks to make fraud a non-profitable the extent to which the Minister heeds the advice of both the Law Reform exercise. Civil actions with a lower burden of proof and perhaps more Commission and the Government Advisory Committee on Fraud, both of realistic chances of success may be considered to complement criminal which reported almost six years ago. In June 1992, the then Minister for prosecutions. Their objective would be reimbursement of embezzled Justice, Padraig Flynn, promised that the Report on fraud (produced in monies and the disgrace of the perpetrator. just five months because of the urgency of the problem) was ‘not going If Mr O’Donoghue’s Bill does address a major, illicit growth sector in to be left to gather dust’. Many of its recommendations may at last reach the Irish economy, this will be viewed as significant but not sufficient. the statute book along with the recommendations of the Law Reform Unless the new legislation is enforced, it will simply take the place of the Commission. 1992 Advisory Committee Report on fraud on the shelf gathering dust. The Commission made 71 recommendations, including adopting To enforce the new law, the Minister might take counsel of the many provisions of England’s 1968 Theft Act. Seven others may also be Director of Public Prosecutions, Eamonn Barnes. Mr Barnes has long highlighted as interesting: since been calling for an efficient and cohesive prosecution system with- ● That any auditor of a company’s accounts who discovers fraud should out delays and ‘absurd duplication of work’. The new law should be one be required to report it to the Gardai of the major pieces of the current Government’s legislative programme. ● The creation of a distinct new offence of controlling a company when We are told that it will deal with ‘the present-day realities of fraud’. dishonesty was committed by an officer of the company (this may be But do the articulate criminals, who probably steal more from the particularly relevant to those who are in effective control of large com- community in one day than all of our handbag snatchers take in a life- panies) time, really believe that it will tilt the balance against them? Do the rest ● That powers of questioning fraud suspects, similar to those avail- of us? It is a massive task. The jury is still out. G able to the Serious Fraud Office (SFO) of England, Wales and Northern Ireland, be introduced here. The director of the SFO, Pat Igoe is principal of Dublin solicitors’ firm Patrick Igoe and Rosalind Wright, has noted that these powers ‘have proved to be a Company.

NOVEMBER 1998 LAW SOCIETY GAZETTE 19 LeaveLeave itit toto thethe

When is an expert not an expert? When the other side’s legal team takes them apart on the witness stand and discredits their evidence. With a new statutory instrument (SI 391) on the use of expert evidence just signed 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

he increasing litigiousness of Irish soci- the future be called upon to examine someone ety means that expert evidence is and to offer an opinion as to whether one of T becoming ever more central to the con- their colleagues may have been negligent or duct of a court case. But where can you find an not at an earlier date’. expert witness when you need one? And how Apart from the medical experts, he adds, can you be sure that your expert is not only solicitors would probably choose an expert on suitably qualified but won’t wilt under cross- the basis that they might be, say, the best engi- examination? neer in their locality, are professionally quali- In contrast to Britain, where there are two fied and competent, and are known to the professional bodies representing experts judge as being honest. The Law Society’s (which some might say is one too many), there Library also has a copy of an expert witness is no central register of expert witnesses in directory produced by the Law Society of Ireland, nor any sure means of picking a good England and Wales (see Useful sources of one – apart from word of mouth among the information panel). legal community or the expert’s own high pro- file. But this may be no bad thing, according to No access to information James McCourt, chairman of the Law Dublin solicitor Caroline Conroy is managing Society’s’ Litigation Committee. director of La Touche Bond Solon, a firm that ‘If you have a directory of experts’, he says, specialises in training expert witnesses on how ‘you will end up with a publication of some to prepare expert reports and give evidence in kind that will invite people to promote them- court. Perhaps not surprisingly, she would like selves and their services upon payment of a to see some form of central register for experts fee, not unlike the yellow pages. We have in this country. explored the idea in a limited form before and ‘There’s just no access to information on we believe that, although the present system experts here, particularly experts in unusual may be imperfect, we would achieve nothing areas’, she says. ‘I think that’s something that by having a directory because the people who needs to be looked at’. would be in it are already well-known to the Conroy also looks forward to the day when profession at large’. some organisation akin to the UK Academy of The Law Society maintains a limited regis- Experts may be set up here. ‘There’s no pro- ter of experts in relation to medical negligence fessional body setting standards for experts in matters. ‘That’s where it’s most needed’, Ireland, whereas in England you have the explains McCourt. ‘One of the hardest things Academy and the Institute. To become a mem- in this country is to get one medical practition- ber of the Academy, you have to have certain er to swear up against another. We have med- references and also recommendations from ical practitioners who are willing to put them- lawyers who have used you’. selves on a panel and who may at some time in Almost anybody who has a recognised qual-

20 LAW SOCIETY GAZETTE NOVEMBER 1998 EXPERT WITNESSES experts

ification and expertise in a certain field can hold themselves out as experts, although as James McCourt points out: ‘In most personal injury cases, the expert witness is going to be the doctor or the engineer. The doctor won’t have been chosen by the plaintiff: he will be the registrar or the person in charge of the accident and emergency department that admitted the patient – which is as it should be. ‘When it comes to selecting engineers and so on, the solicitor can have an input into that. But when it comes to doctors, the practitioner should have no input whatsoever’. The only other input they should have, he adds, is in arranging for independent medical examinations by insurance companies. These are always carried out under what are called ‘the usual terms’, and McCourt believes it has now become necessary to remind solicitors of what this actually means. Basically, the opposing legal team is entitled to have your client medically examined but is not entitled to ask anything that touches on liability. (A Litigation Committee practice note on this area can be found on page 35 of this issue of the Gazette.) Perhaps it’s the result of the rather broad definition of an expert, but many expert wit- nesses can run into trouble during cross- examination, as Caroline Conroy can testify. ‘When they’re giving evidence in court, experts can be pulled out of their area of expertise very easily and can start going into areas that should be left to others, usually because they want to impress the court or don’t want their evidence to be undermined’. Many seem quite unprepared for the likeli-

NOVEMBER 1998 LAW SOCIETY GAZETTE 21 hood that their ‘expert assessment’ might be expert witnesses will simply call it as they challenged by the other side’s legal team. find it; if they find a building or stairs or a sys- ‘Sometimes they just don’t understand the rules tem of work in breach of statute, they simply within the adversarial system’, says Conroy. explain how and why they’ve reached that ‘They don’t understand that the first thing a conclusion. That’s factual information for the good cross-examining barrister is going to do is benefit for the court. Sure, it may seem to be to attack their credibility. They take things per- pushing the plaintiff’s case, but if the engineer sonally. They often don’t realise that once they hadn’t reached that conclusion in the first put themselves out there as an expert they stand instance, he wouldn’t be in court’. to have their expertise and credibility challenged The use of expert witnesses and reports – that’s how the system is supposed to work’. underwent a radical shake-up last year when Perhaps to avoid this very problem, or per- Statutory Instrument 348 of 1997 was intro- haps it’s just the comfort of the familiar, some duced with minimal consultation with the legal teams tend to use the same experts over legal profession. Among other things, the new and over again. And some expert witnesses get SI ended the traditional ‘ambush’ approach to themselves reputations as hired guns who will the use of experts in personal injuries litiga- turn up to the opening of an envelope. tion by stipulating that lawyers for both par- ties would have to exchange in advance the Same old faces lists of witnesses to be called and copies of all According to James McCourt: ‘The same old expert reports. Following intensive lobbying faces do turn up again and again but they tend from the Law Society and the Bar Council, a to turn up with the same teams, with solicitor x new statutory instrument (SI 391 of 1998), retaining the same counsel in every case and replacing SIs 348 and 471 of 1997, was signed the same psychiatrist or specialist. I believe into law on 14 October. that dilutes the effectiveness of their evidence Caroline Conroy believes that the new rules because we all know them. Not only can the Caroline Conroy: ‘some experts do end up will make lawyers consider more carefully the opposition see them coming, but the judge can as advocates’ use of experts in litigation and will lead to too. They come in with big built-up cases and higher standards of expert evidence. ‘What they don’t get beyond the starting blocks’. The fact that their fees are being paid by one you’re going to find is that probably fewer Caroline Conroy believes that one of the side in the case can also affect their sense of cases will come before the courts; more will main benefits of giving training to expert wit- independence, she says. ‘Some of them do end be settled on the basis of expert evidence. The nesses is that they will then start to appreciate up as advocates, or are used as advocates by exchange of reports means the expert evi- that their duty is first and foremost to the court, the lawyers, which is a very dangerous thing. dence is going to be out on the table so it’s not to the plaintiff or defendant. They don’t see that their role is to remain inde- going to be very important that these reports ‘Some don’t fully understand their role as pendent at all times, and that they must be bal- will be clear, polished, well presented – and an independent expert. This misconception anced, fair and must look at both sides of the honest’. occurs because at the outset they are brought argument. Their role is to assist and educate the But the Litigation Committee’s James in to advise a lawyer on whether a case court. They are not there to win the case’. McCourt is not so sure that the new statutory should be brought or not’, she explains. McCourt agrees that expert witnesses can be instrument will have a radical effect on the ‘Then they are used as a tool for presenting partisan, but believes it is up to the opposing system. ‘I don’t think it changes things with the evidence to the court, and that can be counsel and the judge to keep them focused on expert witnesses’, he says. ‘I believe that somewhat confusing for them’. their true role. ‘But’, he adds, ‘the majority of every report written in contemplation of legal

THE EXPERT’S VIEW Counting the cost Forensic accountants take to the witness box in their task are quantifying the loss involved and personal injuries at work, a forensic accountant cases where there is money at stake. According establishing a causal link between it and the will need to see the accident book. to Peter Johnson, a partner with James Hyland defendant’s actions. Johnson gives the example Johnson stresses that to do this work effec- & Co, their job essentially involves establishing a of a case where a client has bought a piece tively and draw up a comprehensive report, the link between what the client believes caused of equipment or machinery for a specific pur- job must be started as soon as possible. ‘The the loss of cash and the actual loss itself. pose, and he loses business because it fails in best advice I can give lawyers is to give instruc- ‘Typically we would be involved in any cases some way. tions early: rushing out a report in two or three where there is a loss of earnings or income’, In that situation, the expert draws an eco- weeks may not do your client justice’, he warns. he explains. ‘We are often called in on person- nomic model of the industry in question, calcu- The reports themselves need to be clear and al injury cases where someone is claiming for lates the projected losses and links them to the understandable to the court, while evidence loss of earnings or a business with a breach of fault. To do this, he needs to go through the needs to be objective and independent. contract’. documentary evidence of the problem and any Johnson points out that it is in this area that In all these cases, the two basic strands of other relevant material. Similarly, in the case of specialised training is most useful.

22 LAW SOCIETY GAZETTE NOVEMBER 1998 EXPERT WITNESSES

Useful sources of information on expert witnesses

Chartered Institute of Association of Consulting Irish Insurance Federation Management Accountants Engineers of Ireland 39 Molesworth St 44 Upper Merrion St 51 Northumberland Rd Dublin 2 Dublin 2 Dublin 4 Tel: 01 676 1820 Tel: 01 678 5133 Tel: 01 660 0374 Irish Law Times Expert Association of Chartered Irish College of General Witness Directory 1998 Certified Accountants Practitioners Roundhall Sweet & Maxwell 9 Leeson Park Corrigan House 4 Upper Ormond Quay Dublin 6 Fenian St Dublin 7 Tel: 01 491 0466 Dublin 2 ISSN: 0021-1281. Price £9.95 Tel: 01 676 3705 Institute of Bankers in La Touche Bond Solon James McCourt: ‘the majority of experts will Ireland Royal Institute of 20 Upper Merrion St simply call it as they find it’ Nassau House Architects Dublin 2 Nassau St of Ireland Tel: 01 662 3404 proceedings ought to be straight and honest and Dublin 2 8 Merrion Square address the issues’. Tel: 01 679 3311 Dublin 2 Academy of Experts The Litigation Committee is currently study- Tel: 01 676 1703 2 South Square, Gray’s Inn ing the new SI in detail with a view to teasing Institution of Engineers London WC1R 5HP out how the new rules can best operate in prac- of Ireland Institute of Chartered England tice, McCourt adds. ‘Our first reaction is that 22 Clyde Rd Accountants in Ireland Tel: 0044 171 637 0333 the new SI is a much more user-friendly docu- Dublin 4 87-89 Pembroke Road ment than its predecessor, but a definitive arti- Tel: 01 668 4341 Ballsbridge Expert Witness Institute cle on this subject by the Litigation Committee Dublin 4 11 Haymarket will appear in the December issue of the Directory of Expert Tel: 01 668 0400 London SW1Y 4BP Gazette’. Witnesses 1998 England Which leaves only one question: how come Law Society of England & Irish Hospital Consultants Tel: 0044 171 930 7878 experts can never seem to agree on even the Wales/FT Law & Tax Association simplest things? But then, as Conroy helpfully 21-27 Lamb’s Conduit St Heritage House Irish Medical Organisation points out: ‘Sometimes you can’t get judges to London WC1N 3NJ Dundrum Office Park 10 Fitzwilliam Place agree on certain points! Experts disagree; England Dublin 14 Dublin 2 lawyers disagree. As professionals we tend to ISBN: 0-75200-507-3 Tel: 01 298 9123 Tel: 01 676 7273 disagree’. Now that’s something we can all agree on. G

THE EXPERT’S VIEW Sudden impact Everybody knows that accidents happen, but Jordan will produce a report and give evi- While he frequently gives evidence and pro- courts often have to find out how. Impact analy- dence on the basis of his findings, as well as vides reports for lawyers and insurers, he feels sis is the science of establishing what happened attending consultations with insurers and loss that training expert witnesses is not a good idea, in the vital seconds before a car crash or some adjusters. He regularly deals with both branches saying that it’s a form of coaching. Instead, he other calamity that has left somebody with a of the legal profession, and says he finds that argues that the courts are looking for a simple claim. while all lawyers are seeking information, the and objective explanation of the technical back- Mark Jordan of Mayo-based Jordan M & demands of solicitors and barristers are very dif- ground to an accident. Associates specialises in this area. A mechanical ferent. Jordan stresses that delivering technical infor- engineer with a PhD in impact analysis, he will ‘Solicitors tend to look for supporting argu- mation in an understandable fashion is central visit the scene of an accident, take measure- ments for their client’s case, while barristers look to his job, and advises lawyers not to be fazed by ments and reconstruct the events on computer for the complete picture’, he says. ‘Barristers jargon when they cross-examine an expert. ‘If to – in his own words – ‘establish culpability or want to know what surprises the other side is they are not making themselves understood, “exculpability”’. likely to come up with’. insist that they do’, he says.

NOVEMBER 1998 LAW SOCIETY GAZETTE 23 Taking the initia

Earlier this year the he Law Society’s Law Reform Committee was established in Law Society’s newly- T November last year to identify and focus established Law Reform upon specific areas of law in need of updating and reform. We aim to contribute to improving Committee launched its the quality, fairness and effectiveness of Irish Focus on law reform legislation in a number of selected areas. We also seek to represent the views of the Law survey which aimed to Society’s members in relation to a number of law identify anomalies in legislative initiatives and to enhance the Society’s contribution to the development of the law and to suggest Irish law. More generally, we aim to build rela- suitable areas for reform. tionships between the Law Society and senior policy-makers and others involved in the Owen McIntyre looks at review of law and policy. the committee’s work so In order to identify specific areas of law upon which to focus, the committee surveyed refo far and at the priority all Law Society members and a wide selection areas it has selected for of voluntary and community groups, inviting them to identify anomalies in the law and to its current programme suggest suitable areas for reform. The Focus on law reform survey was despatched to the Society’s members in January and to voluntary organisations in February and, to date, approxi- mately 200 responses have been received, rang- ing across the entire spectrum of law and prac- tice. As it would not be possible to pursue all of the areas suggested, we have found it necessary to identify three priority areas for law reform for our current programme: ● Domestic violence ● Adoption, and ● Mental health.

These recommendations have been approved by the Council of the Law Society. We have replied to each respondent, informing them of our plans and thanking them for their submis- sions. Where possible, we have referred sug- gestions relating to other areas of law to the Society’s relevant specialist committees and many other suggestions have been retained on file to be re-examined when setting future law reform programmes. Throughout August of this year, Law Reform Committee representatives held exploratory meetings with senior officials in the relevant government departments concerning each of the selected priority areas and, in September, we submitted outline recommendations for legisla- tive reforms. We continue to monitor develop- ments in each area and to liaise closely with these departments with a view to making more Law Reform Committee chairman James detailed submissions as and when appropriate. MacGuill addresses the law reform reception As a first step, the committee will draft com- hosted by the Law Society at Blackhall Place prehensive position papers on each area, draw- during the summer

24 LAW SOCIETY GAZETTE NOVEMBER 1998 LAW REFORM

Questionnaire on tive on domestic violence

1. For how many barring applications or safety applications do you act each year? 5-10 10-20 20 +

2. How long is the return date on a barring/safety summons from the issuing of the summons to the hearing date? 7 days 21 days 42 days Other

3. In cases grounded by evidence of ‘physical abuse’, is such evidence: Evidence of applicant Medical evidence Report/oral evidence [delete as appropriate]

4. Are ‘physical’ grounds necessary to secure the relief in your court area? Always Sometimes Generally form 5. In cases grounded by emotional abuse/neglect/addiction of spouse, is the evidence: Evidence of Medical/other applicant only evidence

6. Will the court deal with maintenance and access contemporaneously and without need to issue separate proceedings? Yes Sometimes Never

7. Do health board social workers provide section 40 reports? Yes Sometimes Never

8. Delay in obtaining such reports: 6 weeks 12 weeks Longer

9. Does the district judge interview children? YesNo Sometimes

10. Are the factors needed to adduce the grounds for obtaining a bar- ring order/safety order different for spouses than for non-spouses? Yes No

11. When applying for interim barring orders are evidence and corrobo- ration necessary? Yes No

12. How long is the return date on an interim barring order from the issuing of the summons to the hearing date? 7 days 21 days 42 days Other

13. After the grant of a barring order on grounds of domestic violence, does access to children result in further problems? Often Rarely Never

Please return by 27 November 1998 to: Owen McIntyre, Parliamentary and Law Reform Executive, Law Society of Ireland, Blackhall Place, Dublin 7 (tel: 01 671 0711, fax: 01 6710704).

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LAW REFORM ing on all available empirical data and incorpo- 2) Establishment of a centrally-regulated con- decisions on behalf of the donor rating comparative examination of selected tact register whereby adopted persons and 7) Introduction of ‘adult care orders’ for men- legal systems. These position papers will be birth parents who so wish can obtain infor- tally ill adults who do not qualify as ‘depen- forwarded to policy-makers to support the mation about each other. However, the dent’ persons under the Child Care Act, Society’s recommendations for reform in each wishes of parties to the adoption process 1991 and provision for ‘custody’-type area. It is also intended that these papers be who would rather maintain confidentiality orders to be made in respect of mentally ill published in the Gazette. Any further submis- would be respected adults sions or additional information of relevance to 3) Removal of certain anomalies in the cur- 8) Extension of the time period, from six the debate on each of the priority areas would rent legislative scheme, for example: months to 12 months, within which a men- be very welcome. ● where the birth mother of a non-marital tally ill child may make an application for child may be required to adopt her own provision out of a parent’s estate under sec- Domestic violence child when in a new relationship, or tion 117 of the Succession Act, 1965. Recommendations for reform in the area of ● where someone married to a spouse Imposition of a statutory obligation on per- domestic violence include: with a child from a previous marriage sonal representatives to notify the health 1) Extension of the protection offered by the cannot adopt this child as it is a child board/Office of Wards of Court where a existing remedies under the Domestic from a marriage, even where the other mentally ill child is a beneficiary under a Violence Act, 1996: birth parent is deceased. will or could make a section 117 claim ● removal of the six-month residential 4) The introduction of a code of conduct for 9) Rationalisation and updating of definitions requirement where an unmarried cohab- adoption agencies dealing with, among relating to mental health legislation, such as itee applies for a safety order (section other things, suitable training and qualifi- ‘mental disorder’, ‘treatment’, ‘approved 2(1)(a)(ii)) cations for staff, the maintenance of centres’ and so on, and co-ordination with ● removal of the six-month cohabitation records, the treatment of clients, effective other areas of legislation such as wardship. requirement where the sole ownership or complaint/appeal mechanisms and tenancy rights vest in the cohabitee so on The outline recommendations listed applying for a barring order (section 3(b)) 5) Amendment to facilitate vary- above are very provisional in ● introduction of a category of ‘associated ing degrees of ‘open adoption’ nature and require further devel- persons’ who are entitled to apply for practice where preferred opment through research and protective orders, for example, a victim 6) Extension of the civil legal consultation with policy-mak- where the couple have children in com- aid scheme to cover adopters ers, practitioners and others mon but do not cohabit and charitable adoption with an active interest in, and ● extension of the availability of protective agencies in-depth knowledge of, each orders to protect a victim from abusive 7) General consolidation of all area. Our final recommendations relations or persons other than the vic- existing legislation in the area. for reform in each area will be set tim’s adult child, such as a son-in-law out in the published position papers. 2) Express provision of statutory criteria to be Mental health It is our intention to publish each of these considered by the courts when deciding Recommendations for reform in the area of papers to coincide with major developments in whether to make orders under the 1996 Act mental health include: the legislative process. For example, over the 3) Provision of detailed guidance as to the suf- 1) Establishment of a statutory right of access next few months a draft Mental Health Bill is ficiency of grounds for the grant of a pro- to a lawyer for involuntarily detained due to be published by the Department of tective order and clarification as to the cir- patients Health and Children, while the Department of cumstances in which it would be more 2) Extension of the civil legal aid scheme to Justice, Equality and Law Reform intends to appropriate for the courts to grant a barring cover proceedings arising out of involun- report on a research project into the operation order rather than a safety order and vice tary detentions, including hearings of the of the Domestic Violence Act, 1996. Also, in versa Mental Health Review Board the New Year, the Department of Health and 4) Provision of guidance as to the relevance 3) Streamlining of procedures for the admis- Children expects to embark upon a consulta- and effect of the O’B v O’B [1984] IR 182 sion of a ward of court to an approved cen- tion exercise leading to the publication of two (SC) judgment, in the context of the new tre and co-ordination of the wardship pro- Adoption Bills. definition of ‘welfare’ contained in the 1996 cedure with the mental health care proce- We would hope to take on a very active role Act dures on behalf of the Society in the debate on each 5) Amendment of the District Court rules to 4) Introduction of procedural safeguards area by publishing our final recommendations, provide for an automatic early return date where mentally ill people come before the supported by detailed legal argument and by for interim barring orders made ex parte, to civil courts as respondents in applications making representations to senior policy-mak- provide for the respondent to be served per- for court orders, for example, a duty on the ers. sonally with the order in such cases and to court to inform the local authority where a As a first step, we invite solicitors with require that the respondent be provided with mentally ill person is subject to an eviction experience of the Domestic Violence Act, a note of the evidence given at the initial order 1996 to complete the brief questionnaire hearing. 5) Introduction of safeguards for the interests included in this article and to return it to the of detained patients who are unfit to give Parliamentary and Law Reform Executive at Adoption consent to medical treatment and proce- the Law Society of Ireland not later than Recommendations for reform in the area of dures for such cases Friday 27 November 1998. G adoption include: 6) Amendment of the Powers of Attorney Act, 1) Provision of access to birth certificates for 1976 to permit a donee exercising enduring Owen McIntyre is the Law Society’s adopted persons at the age of 18 power of attorney to take medical care Parliamentary and Law Reform Executive.

NOVEMBER 1998 LAW SOCIETY GAZETTE 27 Mitigating ci

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 the same concept here

eople have always transferred assets out In the Willoughby case, the taxpayer, Professor of this jurisdiction to avoid income tax. Willoughby, lived for many years in Hong P Section 806 of the Taxes Consolidation Kong and was neither resident nor ordinarily Act, 1997 (formerly section 57 of the Finance resident in the UK. He retired from his position Act, 1974), as amended by section 12 of the as Professor of Law at the University of Hong Finance Act, 1998, is designed to combat this. Kong in 1986 and returned to England, becom- A recent House of Lords decision – Inland ing resident and ordinarily resident in the UK Revenue Commissioners v Willoughby ([1997] in May 1987. He wanted to make extra provi- STC 995) – throws new light on the equivalent sions for his retirement and so took out three UK provisions (section 739 of the Income and off-shore personal portfolio bonds. Corporation Taxes Act 1988). The parties did not dispute that this was a It sets out the residency requirements which transfer of assets for the purposes of section must be satisfied before liability to tax arises 739 of the Income and under the section and, more importantly, high- Corporation Taxes Act 1988 lights the distinction between tax avoidance (the UK equivalent of section and tax mitigation. Of course, it must be 806). But the premium on the remembered that while the provisions of sec- first bond was taken out when tion 806 and section 739 are similar, the both the taxpayer and his wife Willoughby decision is persuasive only. lived outside the UK. The House Section 806(3) – as amended by section of Lords upheld the taxpayer’s 12(1) of the Finance Act, 1998 – states that the contention that section 739 only section applies to individuals resident or ordi- applied to asset transfers by individ- narily resident in the State who, either alone or uals who are ordinarily resident in the with associated operations, try to avoid income UK at the time of the transfer. tax by transferring assets out of the jurisdiction But the tax planning opportunities presented so that the relevant income is paid to persons by this decision have been reduced by section eration of section 741 of the UK legislation resident or domiciled out of the State. 12 of the Finance Act, 1998, sub-section which is similar to section 806(8) of the Irish Broadly, section 806 imposes income tax (1)(a)(ii) of which inserts a new sub-section Act. liability in one of two circumstances: (5A) into section 806. This provides, inter alia, Section 806(8) states that the charging provi- 1) ‘Where as a result of such a transfer (either that: ‘Nothing in sub-section 3 shall be taken to sions of the section shall not apply where the alone or in conjunction with associated imply that the provisions of sub-sections 4 and individual shows, in writing or otherwise, to the operations), the transferor has power to 5 apply only if (a) the individual in question satisfaction of the Revenue Commissioners: enjoy, immediately or in the future, any was resident or ordinarily resident in the State 1) ‘That the purpose of avoiding liability to tax- income of a person resident or domiciled out at the time when the transfer was made’. ation was not the purpose or one of the pur- of the State, that income is deemed to be the However, Willoughby is not entirely without poses for which the transfer or associated income of the transferor for all Irish income significance because, although section 12(2) operations or any of them was effected, or tax purposes (sub-section 4), or states that the section shall apply irrespective 2) That the transfer and any associated opera- 2) Where, whether before or after any such of when the transfer or associated operations tions were bona fide commercial transac- transfer, the transferor receives or is entitled took place, the section applies only to income tions and were not designed for the purpose to receive any capital sum, the payment of earned on or after 12 February 1998. of avoiding liability to taxation’. which is in any way connected with the transfer or any associated operation. The Mitigation or avoidance Obviously a clear understanding of what does relevant income of the foreign person is The House of Lords’ view of the distinction and does not constitute ‘avoiding liability’ to deemed to be the income of the transferor between tax avoidance and tax mitigation is taxation is vital to an appreciation of the ambit for all Irish income tax purpose’ (sub-sec- perhaps of greater long-term significance. The of sub-section 8. The taxpayers’ right to organ- tion 5). House gave its views on this area in a consid- ise their affairs to minimise their liabilities was

28 LAW SOCIETY GAZETTE NOVEMBER 1998 TAXATION ircumstances

linked. The Inland Revenue argued that the bonds had been purchased for the purpose of avoiding tax by contrasting the position of a UK resident who directly owned the underly- ing investments with one who profited from the investments through the medium of a per- sonal portfolio bond. The former would be liable for tax on the income from the investments at the basic and higher rate, and potentially capital gains tax (CGT) on the investments’ disposal. The latter would pay CGT only when the bond matured or some other specified chargeable event. In dismissing the Inland Revenue’s argument, Lord Nolan stated: ‘It was submitted on behalf of the Inland Revenue that tax avoidance was to be distin- guished from tax mitigation. The hallmark of tax avoidance is that the taxpayer reduces his liability to tax without incurring the econom- ic consequences that Parliament intended to be suffered by any taxpayer qualifying for such reduction in his liability. The hallmark of tax mitigation, on the other hand, is that the taxpayer takes advantage of a fiscally attractive option afforded to him by the tax legislation, and genuinely suffers the eco- nomic consequences that Parliament intend- ed to be suffered by those taking advantage of the option. Where the taxpayer’s chosen course is seen upon examination to involve How long can the Irish gamble on the legitimacy of tax avoidance schemes? tax avoidance (as opposed to tax mitigation), it follows that tax avoidance must be at least one of the taxpayer’s purposes in adopting recognised in Ayrshire Pullman Motor The Supreme Court declined the opportuni- that course, whether or not the taxpayer has Services and Ritchie v Inland Revenue ty presented in McGrath v McDermott ([1978- formed the subjective motive of avoiding Commissioners (14 TC 754) where Lord 1987] Vol III ITR 683) to adopt the House of tax’. Clyde held: ‘No man in this country is under Lords approach, following which section 86 of He went on to hold that it would be absurd the smallest obligation, moral or other, so to the Finance Act, 1989 (now section 811 of the in the context of the section to describe as tax arrange his legal relations to his business or Taxes Consolidation Act, 1997) was enacted. avoidance the acceptance of an offer of free- to his property as to enable the Inland Therefore, the House of Lords’ view in dom from tax which Parliament had deliber- Revenue to put the largest possible shovel into Willoughby must be considered in the context ately made. To the extent that his pronounce- his stores. [He is] ... entitled to be astute to of the different approaches adopted by the Irish ments represent a refinement by the House of prevent, so far as he honestly can, the deple- and UK courts to the question of tax avoidance Lords of the doctrine of fiscal nullity, their tion of his means by the Inland Revenue’. generally. Notwithstanding such a caveat, the general applicability in the Irish context may But with the growth of aggressive tax-plan- pronouncements of Lord Nolan provide an be doubted. But it remains to be seen, insofar ning strategies, the House of Lords in a series interesting insight to what would presumably as section 806 is concerned, whether the term of seminal decisions – including WT Ramsey be the House of Lords’ approach in interpret- tax mitigation will enter the lexicon of Irish Ltd v Inland Revenue Commissioners, Eilbeck ing section 806(8). jurisprudence. G (Inspector of Taxes) v Rawling ([1981] STC 174) and Furniss (Inspector of Taxes) v The House of Lords’ view Niall O’Hanlon BA (Hons) (Acct & Fin), LLM Dawson ([1984] STC 153) – developed the A distinguishing characteristic of Willoughby’s (Comm Law), ACA, AITI is a practising bar- doctrine of fiscal nullity, and held that it was off-shore bonds was that the purchaser retained rister specialising in general commercial and appropriate to look at the substance of trans- the ability to choose, switch and manage the taxation law and is a consultant to the Law actions over their legal form. investments in the fund to which the bond was Society’s Law School.

NOVEMBER 1998 LAW SOCIETY GAZETTE 29

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Council report

Report on Council meeting held on 24 September 1998

Solicitors (Amendment) the amending rules had been forward- world to seek to set a balance ing the provision of investment Bill, 1998 ed to the Minister on 28 July for his between independence and business services by solicitors to The Council considered and signature and were expected to come accountability and matters dealt their clients. Michael V O’Mahony approved a number of proposed into operation shortly. Gerard Griffin with in other jurisdictions were not outlined the background to the reg- amendments to the Solicitors Acts suggested that the rules should pro- purely confined to the conduct in ulations, which reflected obliga- which, it was agreed, should be vide for a ‘lead in’ time of at least one court of members of the judiciary or tions contained in the Investment sought in the Solicitors month. The profession had, quite their treatment of lawyers or clients Intermediaries Act, 1995 and the (Amendment) Bill, 1998. rightly, been critical in the past of the appearing before them, but also Investor Compensation Act, 1998. The purpose of the proposed introduction of rules and regulations included bias and political actions He noted that the regulations would amendments was to ensure (a) that without any prior notification and, in by judges. The President undertook allow solicitors to engage in invest- all parties to a disciplinary tribunal his view, the Society should be in a to forward the Council’s views to ment business services, investment hearing would be served with the position to give advance warning of Mrs Justice Denham. advice and insurance intermediary same documentation at the same the operative date. services which were incidental to time following its conclusion, (b) Incorporation of the provision of legal services to that the Society would be entitled to Denham Working Group: solicitors’ practices clients. If a solicitor wished to pro- receive and publish all relevant judicial accountability The Council considered two reports vide non-incidental services, he information in relation to the out- The Council discussed a request from on the legal and taxation implica- would be required to register with come of disciplinary inquiries, and Mrs Justice Susan Denham for a sub- tions of incorporation, which had the Central Bank and indemnify (c) that solicitors who persistently mission on the issue of judicial been commissioned by the Society, himself, in terms of fidelity bond- failed to respond to the Society in accountability, which was under con- and discussed what further steps ing and indemnity insurance, equal relation to complaints would be sideration by the working group. John should be taken on the issue. to the amount of cover provided by required to pay a contribution Harte said that, in other jurisdictions, Michael Irvine said that section 70 the Compensation Fund or standard towards the costs incurred by the the relevant monitoring committee of the Solicitors (Amendment) Act, professional indemnity insurance. Society in dealing with those com- was composed entirely of members 1994 enabled the Society to make The purpose of the regulations was plaints arising from the failure of of the judiciary which, in his view, regulations providing for the incor- to allow solicitors to continue to solicitors to respond to correspon- was not the correct approach in the poration of solicitors’ practices and, provide investment and insurance dence. The Director General report- current climate of openness and trans- in his view, the Society should pro- intermediary services to clients and ed that the Bill was expected to be parency. He also believed that any ceed to do so. to earn commission therefrom, pro- considered by the Seanad shortly system of judicial accountability Michael V O’Mahony noted that vided those services were incidental after the resumption of the should apply to all courts, and not just section 70 of the 1994 Act required to legal services. At the same time, Oireachtas in early October. to the higher courts. In addition, he the concurrence of the Minister for the regulations sought to protect the strongly believed that any committee Justice, after consultation with the Compensation Fund from claims in Proposed designation charged with monitoring the behav- Minister for Enterprise, Trade and relation to non-incidental services. of solicitors pursuant to iour of judges and dealing with com- Employment, with the regulations. The President said that, as a section 32 of the Criminal plaints should include members of the Michael Irvine proposed that dis- result of the new legislative require- Justice Act, 1994 solicitors’ profession and members of cussions should be immediately ments, solicitors who wished to The President reported that draft the public. opened with the relevant depart- continue to earn commission from regulations designating solicitors Hugh O’Neill noted that the US ments in relation to the possibility investment work would have the had been received from the system provided for a review after of incorporation. Once the profes- option of registering with the Department of Justice and that the six years and suggested that a similar sion had secured the right to incor- Central Bank as an authorised Society had written requesting clar- review procedure should be consid- porate, it would be a matter for each investment business firm or obtain- ification of the phrase ‘information ered by the working group. Niall practice to decide whether or not to ing a letter of appointment directly subject to legal privilege’. It was Casey said that there should be a avail of that right. The Council from the relevant financial product agreed that the matter would be greater emphasis on pre-qualification approved this course of action. provider. He noted that Irish fully debated at the Council meet- training. Patricia McNamara cau- Pensions Trust, trading as Solicitors ing to be held on 5 November. tioned against any procedures which Investment business and Financial Services, would also pro- would erode the fundamental princi- investor compensation vide a means for the placing of Statutory Instrument ple of judicial independence. regulations investments, in compliance with the No 348 of 1997 The Director General noted that The Council considered and statutory provisions. The Director General reported that there was a growing trend around the approved draft regulations govern- Contd on page 36

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Committee reports

ers will be supplied with the appro- However, where application to the of practitioners in relation to the CRIMINAL LAW priate application form by the Collector General has been made non-use of registered post by both courts division, Department of after 15 November 1998* and a the Land Registry and the Criminal legal aid Justice, Equality and Law Reform. certificate has not issued for what- Revenue Commissioners. The scheme: tax clearance This form must then be submitted ever reason, the solicitor’s name committee is trying to ascertain certificates to the Collector General on or will be removed from the panel. the frequency with which land The Department of Justice has before 15 November 1998*. When * Regulations are expected to be certificates and/or original advised the Criminal Law the certificate is issued by the introduced in November 1998 to set stamped title documents are lost Committee that, as from 1 Revenue, the practitioner should these application and implementa- while being returned by ordinary January 1999*, practitioners on immediately forward same to the tion dates. The above dates are the post by either the Land Registry the Criminal Legal Aid Scheme County Registrar for noting before anticipated dates at the time of or the Revenue Commissioners. Panel will be required to submit the 1 January 1999 implementation going to press. Practition-ers The committee would also like to a tax clearance certificate in date. Where a solicitor has applied should check the next issue of the hear from practitioners who have order to be eligible for the to the Collector General on or Gazette or should contact the experienced difficulties in having assignment of new cases under before 15 November 1998* but Department of Justice to confirm such lost title documents reconsti- the criminal legal aid scheme. where, due to delays in the clear- the relevant dates. tuted, including any difficulties Immediately following the ance procedure or where a certifi- they have encountered with their introduction of regulations under cate has been refused and the matter clients in having their fees in con- the Criminal Justice (Legal Aid) remains unresolved on 1 January nection with the reconstitution of CONVEYANCING Act, 1962, which will provide that 1999, the solicitor’s name will title paid by the clients. Details solicitors operating under the crim- remain on the panel until such time should be sent to the secretary of inal legal aid scheme will require a as the certificate issues or the matter The Conveyancing Committee is the committee at the Law Society tax clearance certificate, practition- in dispute has been determined. seeking the views and experiences before the end of November 1998.

CRIMINAL LAW COMMITTEE FORUM Offences Against the State (Amendment) Act, 1998 Blackhall Place, Friday 27 November 1998, 6.30pm Chairman: This seminar will be of interest to all criminal law Judge Gerard Haughton practitioners as it will provide an overview of the Speakers: new Act and will examine its application to terror- Barra McGrory, Solicitor (Northern Ireland) ist and non-terrorist offences. It will also focus on Michael Farrell, Solicitor the possible implications for solicitors when advis- Michael Lanigan, Solicitor ing clients in relation to certain provisions of the Registration & coffee: 6pm Act. Human rights and civil liberties issues will also Seminar fee: £25 (solicitors), £20 (apprentices) be highlighted.

APPLICATION FORM

Name

Practice name & address

Please reserve place(s). I enclose £

Please return to: Colette Carey, Solicitor, Criminal Law Committee, Law Society, Blackhall Place, Dublin 7, no later than 25 November 1998

NOVEMBER 1998 LAW SOCIETY GAZETTE 33 BRIEFING

Computerisation of Law Society Library Following a year and a half of inten- particular record types, for example, sive cataloguing, indexing and data textbooks only, or CLE lectures, or inputting, the library’s textbook cata- statutory instruments, or Irish judg- logue and indexes to recent legisla- ments, or confined to the three tion and case law are now searchable broad record categories (mono- on PCs in the library. The software graphs, legislation or case law). used is the Unicorn Collection Print-outs can be had of any sec- Management System. tion of the catalogue. The database holds records of the following materials: Textbook loans ● Monographs. All text books, The membership records and those reports, lectures, seminar proceed- apprentices on current Law School ings, government reports and professional and advanced courses annual reports held by the library, are held on the library computer, and with details of author, title, pub- the circulation system for textbook lisher, date, subject, keywords loans has been running since the ● Legislation (since 1 January beginning of September. Loan peri- 1997). Bills before the Oireachtas being put on retrospectively. very brief keyword details and ods are for ten working days, renew- with details of date of introduc- Currently records of judgments subject; citation when reported. able if the item is not requested by tion; Minister, senator or private from 1994 to-date are on the another member, and three working member introducing the Bill; database, with fields showing title Updating of the catalogue, including days for certain reserved student whether or not there is an accom- of case; the court; judge; record the legislation records, is done on a textbooks. Overdue notices issue panying explanatory memoran- no; subject; keyword summary; daily basis. New material is recorded automatically. Reports can be run on dum; a note of the main provi- and citation where the case is on the system as soon as it is received. usage of books, books not returned, sions of the Bill; subject; addition- reported in the law reports. Searching the catalogue can be by frequent offenders etc. The system is al keywords if necessary; and a Judgments of the European Court word or phrase in any of the indexed working satisfactorily and is already ‘present position’ date field, of Justice and opinions of the fields referred to above, or specifical- resulting in a faster turnaround of updated to show its current status. Advocate General, received since 1 ly by author, title or subject. A search books. Acts with many of the above January 1997, are included with can be made of the whole database It is intended that members will fields, including the note of the details of title; court; record no; across all materials, or confined to shortly have dial-in access to the cat- main provisions, plus a ‘date alogue using ID and Pin numbers via enacted’ field and a ‘commence- The catalogue is now searchable in the library and members are wel- the Law Society’s website. Further ment date/s’ field updated where come to come in and use it. It is proposed to hold short training sessions details will be published as soon as necessary as commencement at lunchtime and at 4.30pm each day over a two week period 9-20 this service is available. orders are made. Statutory November. Those interested should contact the library in advance to In addition to the library cata- instruments with fields showing arrange a time. logue, the library holds a range of enabling Act/s and section/s, a hard copy and CD-ROM indexes to note of the main provisions of legislation, case law, journal articles selected SIs; subject and keywords; Library services include: lending of textbooks, bibliographical and case and EU materials. On-line computer and EU legislation implemented. law searching, providing copy documents such as journal articles, case access to other sources is available via ● Case law. The index to the reports, unreported judgments, Acts, statutory instruments, EU regula- the Lexis database and the Internet. reserved written judgments of the tions and directives, precedent forms and practice notes. Margaret Byrne, Supreme Court and High Court is Librarian.

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34 LAW SOCIETY GAZETTE NOVEMBER 1998 BRIEFINGBRIEFING

Practice notes

Lodgment of deposit cheques pending exchange of contract The Conveyancing Committee has to an exchange, until the purchaser returned with amendments on acknowledging the receipt of the been asked for its view on the rights requires the amount of the deposit which the vendor’s instructions must contract and deposit, the vendor’s and obligations of a solicitor acting to be returned. be obtained is more obviously one in solicitor should advise the purchas- for a vendor in a sale who receives The committee is satisfied that which the vendor cannot be bound er’s solicitor that the deposit cheque from the purchaser’s solicitor a con- the negotiation of the cheque for by the negotiation of the deposit is being negotiated and that the pro- tract for sale in a form acceptable to the deposit does not derogate from cheque in advance of the exchange ceeds will be held by the vendor’s the vendor, accompanied by a cheque a vendor’s position of not being of contracts. solicitor in trust for the purchaser for the agreed deposit, so that all that bound until contracts are exchang- The proceeds of the deposit pending the parties becoming con- remains for the contract to become ed. A vendor is entitled to know that cheque may not strictly speaking be tractually bound. effective is for it to be signed by or on the deposit has been validly ten- clients’ monies since the purchaser is The proceeds of the deposit behalf of the vendor and exchanged. dered, which requires the clearance not a client of the vendor’s solicitor. cheque should be paid either: The committee is of the view that of the cheque. It is clearly more effi- The proceeds are, however, ‘trust ● Into a trust bank account kept the vendor’s solicitor should negoti- cient to arrange to have the deposit money’ and must be held by the ven- solely for money subject to the ate the cheque and hold the pro- cheque cleared as soon as possible in dor’s solicitor as such. They are not particular trust, or ceeds on trust for the purchaser order to avoid delay after the vendor held by the vendor’s solicitor as ● Into a client bank account. pending the exchange of contracts, has signed. stakeholder until such time as the or, if the vendor declines to proceed The position where the contract is contract comes into effect. In Conveyancing Committee

Personal injury cases: Medical examination on ‘the usual terms’ By custom and practice and, as a agreed between them. This is plaintiff’s travelling, subsis- tiff, and in the case of an infant result of an agreement between the one of the terms that is more tence and other expenses plaintiff also of their parent or Law Society and the Irish Medical honoured in the breach than the incurred by the plaintiff’s in guardian, would be considered Organisation (IMO), what have come observance. The usual procedure attending the defendant’s appropriate and reasonable. to be known as ‘the usual terms’ on now is that the doctors communi- examination. In the case of a which a plaintiff in a personal injury cate by telephone and the plain- medical examination of a child, Practitioners should note that the case, through their solicitor, consents tiff’s doctor furnishes his notes to these expenses will include the evidence of the medical to a medical examination taking the defendant’s doctor to enable attendance of at least one of the advisor/doctor acting on behalf of a place by a doctor on behalf of the the latter to prepare his medical infant plaintiff’s parents or defendant at the trial of an action defendant, have come to be formu- report following his examination guardian or some other person in for personal injuries is confined to lated as follows: of the plaintiff. loco parentis. the issue of damages. No evidence 1) The defendant’s doctor will 3) The defendant will pay a con- Such expenses may also have of any statement or otherwise not question the plaintiff on sultation attendance fee to to include the cost of taxis where made by the plaintiff to the exam- any matters which do not the plaintiff’s doctor at a rate public transport might not be ining doctor on behalf of the have a direct bearing on the agreed usually between the appropriate due either to the defendant relating to the issue of medical aspects of the case. insurance companies and the medical condition of the plaintiff liability should be given. This was Under no circumstances should relevant representative med- or the inaccessibility of the plain- enunciated in the Northern Ireland the plaintiff be questioned on ical bodies for the plaintiff’s tiff’s residence to public trans- case of McDowell v Strannix & Anor any matters relating to the issue doctor’s attendance. This fee is port. – KBD before Sheil J on 15 February of liability, for example, whether payable whether such consulta- Subsistence would include the 1951 (Northern Ireland) and practi- the plaintiff was wearing a seat tion be by physical presence or cost of at least two, or up to tioners are recommended to read belt or not. on the telephone and for the fur- three, meals depending upon the the full judgment in the case as it is 2) The plaintiff’s doctor will nishing of the plaintiff’s notes to circumstances. If the plaintiff has important that the ratio for the attend at the medical exami- the defendant’s doctor or what- to stay overnight for any reason decision on the issue should be nation by the doctor on behalf ever information he may choose (for example, the taking of x-rays clearly appreciated and under- of the defendant, which shall to give him concerning the plain- or the length of the defendant’s stood. take place at the consulting tiff’s injuries and so on. medical examination), then the rooms of whichever doctor is 4) The defendant will pay the overnight expenses of the plain- Litigation Committee

NOVEMBER 1998 LAW SOCIETY GAZETTE 35 BRIEFING

PRACTICE NOTE Revision of Law Society Requisitions on title – 1996 edition The Conveyancing Committee has reprint of the Conditions of The old sub-paragraph b has permission have been complied made the following revisions to sale) been deleted and replaced with a with’. the 1996 edition of the Law b) At the foot of the page the new sub-paragraph b as follows: 5. Requisition 30.1: Society’s Objections and requisi- word ‘(Revised)’ has been ‘(Save where the retention per- The word ‘commencement’ in tions on title and same will be inserted after the word mission relates only to a change the fifth line has been replaced incorporated in the next reprint of ‘Edition’. of use and there were no condi- with the word ‘construction’. the Requisitions which is due 2. Requisition 15 Voluntary dis- tions attached to said permission shortly. positions/bankruptcy: or was granted in respect of a Practitioners are recommended to 1. Front page of the The old paragraph c has been private house more than ten make a note of these revisions and Requisitions: deleted and the old paragraph d years ago) satisfactory evidence incorporate same when raising a) The words ‘RSI No:’ have been has been renumbered as ‘c’. from an architect/engineer that Requisitions on title, including added under both ‘Vendor’ 3. Requisition 16.7 and 16.9: the drawings submitted on the those practitioners who use the and ‘Purchaser’ on the front The figure of £100,000 has been application for retention cor- CORT computerised version of the page. (Please note that this changed to £150,000 in both rectly shows the structure(s) as Requisitions. amendment will also be paragraphs. built and that the conditions (if incorporated in the next 4. Requisition 27.6.b: any) attached to the retention Conveyancing Committee

PRACTICE NOTE Practitioners should familiarise them- This will require an ordinary resolu- the number of shares so that the adjustment in distributable reserves selves with the recently enacted tion to be passed by the members. If nominal share value is expressed in or through the introduction of addi- Economic and Monetary Union Act, redenomination is not undertaken unrounded euro amounts. tional capital. Where renominalisa- 1998. This Act provides for various voluntarily by a company during the Redenomination is likely to yield tion leads to a decrease in the autho- matters relating to the introduction transitional period, it will occur auto- rather awkward figures representing rised or issued share capital, a special of the euro as the national currency matically on 1 January 2002 without the authorised and issued share capi- resolution is necessary to the effect on 1 January 1999. Among the more the need for a members’ resolution. tal and the nominal par value of that there shall be transferred to a relevant provisions are those relating The Act provides that the redenomi- shares. The process by which these Capital Conversion Reserve Fund an to the redenomination and renomi- nation (whether during the transi- figures may be adjusted to achieve amount equal to the aggregate nalisation of share capital. tional period or on 1 January 2002) more convenient and workable mon- amount of the capital reduced. Although companies are not oblig- must occur at the level of total share etary amounts is known as renomi- Copies of all resolutions must be ed to convert share capital denomi- capital or any part of the total issued nalisation. It will be possible for com- filed at the Companies Registration nated in Irish pounds into euros dur- or to be issued share capital, and that panies to renominalise their share Office within 15 days of their passing. ing the transitional period between 1 the nominal value in euro of each capital and share par values by ordi- January 1999 and 31 December 2001, share is to be calculated by dividing nary resolution before 30 June 2003, Company and Commercial Law it is expected that many will do so. the total value of the share capital by provided that there is an appropriate Committee

Contd from page 31 firms, similar to the Rule 15 sys- leagues to assist others, both on a Presentation to Michael V Report on the Society’s tem in England and Wales. Martin formal and informal basis. Keenan O’Mahony, Past President complaints-handling Harvey complimented Mr Daly on Johnson suggested that an inde- The Council noted that Michael V procedures a well-structured report, which pendent panel of solicitors who O’Mahony was retiring from the The Council considered a report was full of good sense. He agreed would be willing to assist col- Council, after many years of dis- by Francis D Daly on the Society’s with Mr Daly’s view that it was leagues with difficulties might be tinguished service. As a mark of complaints-handling procedures. unacceptable that the Society established and a list circulated to recognition for his commitment to Mr Daly said that, having conduct- should have to pursue solicitors for all members as an aid to col- the work of the Society, the ed a review of the current proce- responses to complaints. He sug- leagues who found themselves the Council and the profession over dures, in conjunction with previ- gested that the profession should subject of a client’s complaint. many years, particularly in the ous reports by the Lay Members of be made aware of the relevant sta- Anthony Ensor suggested that, if drafting of legislation, the the Registrar’s Committee, he tistics in relation to failure to no response was received to the President presented Mr O’Mahony believed that it was necessary for respond and consequent delays first letter from the Society, the with a gift bearing the following the Society to take action in rela- should be clearly outlined. Society should offer to provide the inscription: ‘The Master tion to its complaints-handling Gerard Griffin suggested that names of solicitors who would be Draftsman – Presented to Michael procedures and, particularly, to the Society should identify those willing to assist. The Council V O’Mahony by Laurence K address delays occurring in deal- solicitors who persistently failed to unanimously approved Mr Daly’s Shields, President of the Law ing effectively with complaints. respond to correspondence and report on complaints-handling and Society 1997/98, on behalf of the He said that some elements of his consider introducing a ‘penalty appointed a Task Force, to be Council, Management and Staff of report could be immediately points’ system, while providing a chaired by Mr Daly and to include the Society, to mark his retirement implemented, while work could support and advisory service to John Shaw and Linda Kirwan, from the Council on 24 September commence on others, including those in need of assistance. Patrick with the power to co-opt, to imple- 1998, in appreciation and recogni- the introduction of in-house com- Glynn urged that the Society ment the recommendations as tion of his extraordinary contribu- plaints procedures in solicitors’ would seek to encourage col- soon as possible. tion to the Society’. G

36 LAW SOCIETY GAZETTE NOVEMBER 1998 BRIEFINGBRIEFING

LEGISLATION UPDATE: 11 SEPTEMBER – 19 OCTOBER 1998

SELECTED STATUTORY such a statement. The regulations Minister for Enterprise, Trade and (Committees of the Houses of the INSTRUMENTS extend the provisions concerning the Employment, to be members of the Oireachtas (Compellability, Privi- Air Navigation and Transport furnishing of additional information Investor Compensation Company Ltd in leges and Immunities of (Amendment) Act, 1998 relating to an environmental impact accordance with s17 of the Investor Witnesses) Act, 1997) 1998 (Commencement) Order 1998 assessment and also include provisions Compensation Act, 1998. Number: SI 381/1998 Number: SI 327/1998 relating to applications for planning Commencement date: 14/9/1998 Contents note: Insert order 131 into Contents note: Appoints 11/9/1998 as permission involving an environmental the Rules of the superior courts to pro- the commencement date for the Act. impact statement, where the proposed Investor Compensation Act, 1998 vide for applications and appeals to the development may have effects on (Section 18(4)) (Prescription of High Court under the Committees of Air Navigation and Transport another EU Member State. Individuals) Regulations 1998 the Houses of the Oireachtas (Amendment) Act, 1998 (Vesting Commencement date: 18/9/1998 Number: SI 350/1998 (Compellability, Privileges and Day) Order 1998 Leg implemented: Dir 85/337 Contents note: Prescribe individuals to Immunities of Witnesses) Act, 1997. Number: SI 326/1998 be appointed to the Board of the Commencement date: 20/10/1998 Contents note: Appoints 1/1/1999 as European Communities (Motor Investor Compensation Company to the vesting day for the purposes of the Vehicles Type Approval) represent the interests of clients of Rules of the Superior Courts (No 6) Act. Regulations 1998 investment firms in accordance with (Disclosure of Reports and Number: SI 371/1998 s18(4) of the Investor Compensation Statements) 1998 Building Regulations Advisory Contents note: Give effect to two EU Act, 1998. Number: SI 391/1998 Body Order 1998 directives: 98/12/EC (braking devices of Commencement date: 18/9/1998 Contents note: Revoke and replace Number: SI 348/1998 certain categories of motor vehicles and Rules of the superior courts (No 7) (SI Contents note: Appoints the Building their trailers) and 98/14/EC (type Occupational Pension Schemes 348/1997) and Rules of the superior Regulations Advisory Body under s14 of approval of motor vehicles and their (Disclosures of Information) (No 2) courts (No 8) (Disclosure and Admission the Building Control Act, 1990. trailers). Amends SI 305/1978 and insert Regulations 1998 of Reports and Statements) a new schedule to those regulations list- Number: SI 349/1998 (Amendment) 1997 (SI 471/1997). Defence (Amendment) Act, 1998 ing all relevant EU directives dealing Contents note: Regulate the disclo- Provide for an addition to order 39 of (Commencement) Order 1998 with the type approval of motor vehi- sure of financial and other information new rules 45 to 51 in relation to the dis- Number: SI 366/1998 cles, their trailers and components by occupational pension schemes. closure of reports and statements pur- Contents note: Appoints 1/10/1998 as which have been implemented. Revoke on a phased basis the existing suant to s45, Courts and Court Officers the commencement date for the Act. Commencement date: 12/10/1998 regulations relating to disclosure and Act, 1995. The rules apply to all existing Leg implemented: Dir 98/12; Dir 98/14 replace them with these regulations. proceedings which were instituted on Dublin Docklands Development Commencement date/s: various – or after 1/9/1997. Authority Act, 1997 (Extension of Europol Act, 1997 (Certain see SI Custom House Docks Area) Order Provisions) (Commencement) Order Rules of the Superior Courts (No 7) 1998 1998 Rules of the Superior Courts (No 3) (Appeals from the Hepatitis C Number: SI 344/1998 Number: SI 345/1998 (Freedom of Information Act, 1997) Compensation Tribunal) 1998 Contents note: Extends the Custom Contents note: Appoints 1/10/1998 as 1998 Number: SI 392/1998 House Docks Area in an easterly direc- the commencement date for all sections Number: SI 325/1998 Contents note: Insert order 105A into tion to include the area bounded gen- of the Act, other than s2, insofar as it Contents note: Insert order 130 into the Rules of the superior courts to pre- erally by the River Liffey, Guild Street, relates to the 1996 protocol and the the Rules of the superior courts to pro- scribe procedures in relation to appeals New Wapping Street and Lower Sheriff 1997 protocol, and s10(1). vide for applications and appeals to the against decisions (including awards) of Street. High Court under the Freedom of the Hepatitis C Compensation Tribunal Housing (Travellers Accommo- Information Act, 1997. pursuant to the Hepatitis C European Communities (Environ- dation) Act, 1998 (Commencement) Commencement date: 21/9/1998 Compensation Tribunal Act, 1997. mental Impact Assessment) Order 1998 Commencement date: 23/10/1998 (Amendment) Regulations 1998 Number: SI 328/1998 Rules of the Superior Courts (No 4) Number: SI 351/1998 Contents note: Appoints 11/9/1998 as (Review of the Award of Public Taxes Consolidation Act, 1997 Contents note: Amend the European the commencement date for all sections Contracts) 1998 (Section 284(3A)) (Commencement) Communities (Environmental Impact of the Act, other than sections 6, 19, 20 Number: SI 374/1998 Order 1998 Assessment) Regulations 1989 to 1996, and 25. Contents note: Insert order 84A into Number: SI 321/1998 and provisions relating to environment the Rules of the superior courts to pre- Contents note: Appoints 4/9/1998 as impact assessment in the Local Investor Compensation Act, 1998 scribe procedures in relation to the the commencement date for s284(3A) Government (Planning and Develop- (Appointment of Members of review by the High Court of the award of the Taxes Consolidation Act, 1997, as ment) Acts, 1963 to 1998 and in a num- Investor Compensation Company) or a decision to award a public services, inserted by s23 of the Finance Act, 1998 ber of other Acts. The amendments Regulations 1998 public supply, public utilities or public (capital allowances for certain sea fish- restate provisions relating to the infor- Number: SI 352/1998 works contract. ing boats). mation to be contained in an environ- Contents note: Set out the bodies and Commencement date: 19/10/1998 mental impact statement and exemp- persons nominated by the Minister for Prepared by the Law Society tions from the requirement to prepare Finance, with the consent of the Rules of the Superior Courts (No 5) Library

NOVEMBER 1998 LAW SOCIETY GAZETTE 37 BRIEFING

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

found that there was an enforce- good faith to allow the defen- ADMINISTRATIVE CONTRACT able agreement between the par- dant to rely upon the terms of ties. In allowing the appeal and the Statute of Frauds to prevent Sale of National Stud land Whether sufficient acts of refusing the relief sought, it was performance of the contract to be permitted part performance held that: ● The detriment to the plaintiff A portion of the land (amounting ● In ascertaining whether there ● Where a question arises which must be the result of what the to 21.66 hectares) attached to the were sufficient acts of part per- has not been covered by the plaintiff did with the defendant National Stud Farm in Co Kildare formance, it was necessary to parties to the agreement it must standing by and not detriment will be severed from the farm by show that the other party was be answered in the light of the to the plaintiff as a result of the construction of the Kildare by- aware of what was being done, proper construction of the con- what the defendant does with pass. A Bill removing reference to whether by standing by and not tract the plaintiff standing by the National Stud Farm from the doing anything or by more ● The essential question is ● Even if there had been a con- State Property Act, 1954 has been active participation. whether the parties have left cluded oral agreement as introduced. If passed, this legisla- over some matter to be deter- claimed, there were no acts on tion will permit the sale of the sev- The plaintiff and the defendant mined which can only be deter- the part of the plaintiff which ered land. were at all material times the own- mined by themselves. An showed an intention to perform State Property Bill, 1998 ers of a joint fishery in Co agreement to enter into an that contract. Donegal. In February 1984, the agreement is not a concluded plaintiff and the defendant agreed agreement. In these circum- Mackey v Wilde (Supreme Court), to run the fishery as a joint fishery stances there was no concluded 17 December 1997 COMMUNICATIONS in accordance with a set of rules agreement drawn up by the defendant. There ● In ascertaining whether there Anti-monopoly legislation was no particular agreement as to were sufficient acts of part per- CRIMINAL proposed the number of persons entitled to formance, it was necessary to A private member’s Bill has been receive licences. The plaintiff, show that the other party was introduced which seeks to: unhappy at the number of people aware of what was being done, Decommissioning ● Implement article 3a of the EU being permitted to use the river, whether by standing by and not Sections 5 and 6 of the Broadcasting Directive, and sought to agree a new agreement doing anything or by more Decommissioning Act, 1997 came ● Define limits of cross-owner- with the defendant limiting num- active participation into force on 30 June 1998 and ship of differing media by pro- bers. The plaintiff then instituted ● In granting a decree for specif- regulations have been made gov- viding that a person or compa- proceedings seeking to restrain the ic performance it was essential: erning the decommissioning of ny cannot have a direct or indi- defendant from issuing more than that there was a concluded con- arms and the functions of the rect interest in more than 25% a specified amount of licences tract; that the plaintiff had Independent International Com- of two different media mar- under a concluded agreement acted in such a way that mission in relation to such decom- kets. between the parties. The defen- showed an intention to perform missioning. dant submitted that there was no that contract; that the defendant Decommissioning Act, 1997 Broadcasting and Other Media concluded agreement, nor were induced such acts or stood by (Sections 5 and 6) (Commence- (Public Right of Access and there sufficient acts of part perfor- while they were being per- ment) Order 1998 and Diversity of Ownership) Bill, mance to make the agreement formed; and that it would be Decommissioning Act, 1997 1998 enforceable. The High Court unconscionable and a breach of (Decommissioning) Regulations

38 LAW SOCIETY GAZETTE NOVEMBER 1998 BRIEFINGBRIEFING

1998 (SI Nos 215 and 216 of unlawful organisation or appearing Hague convention, cannot be by the defendant fell far short 1998) to be so issued … or appearing to altered by a court in another of establishing that as a matter aid and abet any such organisation jurisdiction granting a tempo- of probability, long-term seri- New anti-terrorism or calculated to promote the forma- rary order appointing an indi- ous psychological damage measures in force tion of an unlawful organisation’. vidual in that jurisdiction as the would be caused to E by mere- Legislation was signed on 3 The applicant applied for leave child’s guardian. ly taking him to England for the September 1998 by the to appeal his conviction for being in purposes of court proceedings Presidential Commission (the possession of an incriminating doc- The plaintiff sought an order to determine custody issues. President being absent outside the ument pursuant to section 2 of the enforcing an order made by the Any danger of even some dam- jurisdiction) which makes the fol- 1939 Act. The document in ques- English High Court granting to age could be removed by suit- lowing provisions: tion was a video cassette. In granti- him the interim care and control able undertakings being given ● A court may draw inferences ng leave to appeal and quashing the of his infant son E and compelling as to what was to happen when from the failure of a person conviction, it was held that: the defendant to return E to the the child was brought to accused of membership of an ● The document on the balance of jurisdiction of the courts of England. unlawful organisation to probabilities was not issued by England and Wales. By order of answer material questions an unlawful organisation, nor the court, the claim was amended AS v EH (Geoghegan J), 20 ● An offence is created relating did it emanate from one. It so as to include a claim for the November 1997 to the recording or collecting appeared from a concession return of the child pursuant to the of information likely to be use- made by the prosecution wit- Hague convention. E had been ful to members of an unlawful nesses that it had emanated born outside marriage and his INDUSTRIAL organisation in the commission from French radio/television mother had died. The defendants RELATIONS of an offence ● The document was a documen- were E’s maternal grandmother ● The period of detention under tary on the Provisional IRA and aunt. The latter, the first- section 30 of the Offences which gave the IRA a platform named defendant, had been Interlocutory relief Against the State Act, 1939 to express certain views but appointed guardian of the child by granted to employer may be extended for a further which also contained, although the Irish Circuit Court on the regarding picket 24 hours on application by the not to the same extent, condem- same day as the English High ● Where a defendant has not Gardaí to the District Court nation of the organisation Court had ordered E’s return. In established that they were enti- ● Giving instruction in the mak- ● While within the document making an order under the Hague tled to rely on section 19(2) of ing or use of firearms becomes there was what appeared to be convention for the return of the the Industrial Relations Act, an offence in the absence of an extract from a document child, it was held that: 1990, the application falls to be lawful authority or reasonable issued by the Provisional IRA, ● The father of an illegitimate decided on the basis of ordinary excuse the court was dealing with a child in England had no cus- principles applicable to appli- ● Fines for the possession of crime which was set into tody rights unless and until he cations for interlocutory injunc- firearms with intent to endanger restrictive legislation which had obtained such rights from a tions. life or cause damage to proper- to be interpreted in a restrictive court. Therefore, the court had ty or in suspicious circum- way to assume that the removal of The plaintiff was a building com- stances become unlimited, and ● The legislation in question the child to Ireland by the pany which contracted to con- ● A property forfeiture order touched on the background of defendant was lawful struct a building to be completed may be made in respect of the constitutional rights which ● At all material times the child on 14 August 1998, after which property of a person convicted guaranteed freedom of expres- had enjoyed a habitual resi- date it would be subject to penalty of certain terrorism-related sion and the court could not be dence in England. The Irish clauses for default on its part in offences. satisfied on the basis of the evi- Circuit Court order did not performing the contract. The dence placed before it that this have any effect on residence. It defendant included, inter alia, the The legislation came into opera- was a document which was a temporary order until a union and former workers on the tion on 3 September 1998. appeared to aid or abet the particular date and, as such, site. The core issue between the Offences Against the State Provisional IRA. could not have the effect of parties was that the defendant (Amendment) Act, 1998 (No 39 of altering residence objected to the plaintiff’s practice 1998) Director of Public Prosecutions v ● While section 40 of the of sub-contracting blocklaying McGavigan (Court of Criminal Adoption Act, 1952 provided and bricklaying work on its con- Conviction for possession Appeal), 10 November 1997 that a child could not be sent struction sites and of not employ- of incriminating docu- abroad without the approval of ing blocklayers and bricklayers ment quashed his guardian, the section did directly. On 17 November 1997, a ● The courts have to interpret not have any application in the picket was placed at the entrance FAMILY restrictive legislation in a present proceedings because it to the site. The effect of the picket restrictive fashion. would not have been contem- was the obstruction of the Guardianship order does plated as applying to a child entrance to the site resulting in no Section 2 of the Offences Against not alter child’s place of merely because the child was work whatsoever being carried out the State Act, 1939 defines an residence in Ireland as distinct from on the site and the fact that the incriminating document as one ● A child’s place of habitual resi- being resident in Ireland plaintiff was unable to obtain deliv- ‘issued or emanating from an dence, for the purposes of the ● The expert evidence adduced eries of materials. The plaintiff

NOVEMBER 1998 LAW SOCIETY GAZETTE 39 BRIEFING

sought interlocutory relief restrain- exceeds 3,000 square metres shall ing which might, provided all ment) Bill, 1998 ing the defendant from, inter alia, not be exempted development. the planning requirements were engaging in industrial action. The Local Government (Planning and met, prove acceptable to the Res judicata considered in defendant contended that the court Development) (No 2) Regulations defendant bail application was precluded from granting the 1998 (SI No 194 of 1998) ● There was no planning permis- ● An application cannot be con- relief sought by virtue of section 19 sion for the one-storey building sidered res judicata where it of the Industrial Relations Act, Traveller accommodation which stood on the land involves evidence which is 1990. One of the preconditions to legislation comes into ● The liberty given by the High being tendered for the first section 19 concerns the holding of effect Court on 20 January 1995 to time. a secret ballot. In restraining the All the provisions of the Housing complete the roof on the build- defendant from watching or beset- (Traveller Accommodation) Act, ing did not amount to any form The applicant attempted to renew ting or picketing the site and from 1998 (other than sections 6, 19, 20 of planning permission but was an application for bail in the High interfering with access to or egress and 25) came into effect on 11 designed to save a loss which Court on the basis that there had from the site, it was held that: September 1998. would befall the plaintiffs in been a change of circumstance, in ● There was no evidence before Housing (Traveller Accommoda- the event of their being obliged that he could now undertake to the the court as to the outcome of tion) Act, 1998 (Commencement) to leave a roofless structure court to reside at an address in this the secret ballot conducted by Order 1998 (SI No 328 of 1998) open to the elements. jurisdiction until his trial. The the union and in particular there High Court ruled the matter res was no evidence that the out- Court order does not Child and Child v Wicklow County judicata. The applicant appealed come favoured picketing the site amount to planning Council (Supreme Court), 3 and, in remitting the matter to the ● The defendant had not estab- permission December 1997 High Court for reconsideration, it lished that it was entitled to rely ● A court order allowing comple- was held that: on section 19(2) and the plain- tion of a structure pending the ● The applicant had wished to tiff’s application fell to be outcome of proceedings does PRACTICE & tender new evidence and that decided on the basis of ordinary not amount to a planning per- PROCEDURE meant the matter could not be principles applicable to applica- mission. regarded res judicata tions for interlocutory injunc- ● Having heard the evidence it tions The plaintiffs appealed an order of New bankers’ books rules was open to the High Court ● Expressing no view on the the High Court of 20 January 1995 With effect from 9 June 1998, new judge to decide whether it justi- strength of the contending sub- whereby their claim was dis- District Court rules reflect the pro- fied, as the applicant claimed, a missions, there was a fair issue missed. They sought certain decla- visions of section 7a of the reduction in the amount of the to be tried between the parties rations, including: a declaration Bankers’ Books Evidence Act surety. as to whether section 11 was that they had obtained planning 1879, as amended by section 131 available to the defendant permission by default; a declara- of the Central Bank Act, 1989 and Director of Public Prosecutions v ● The balance of convenience lay tion that an order made by the section 14 of the Disclosure of Gray (Supreme Court), 10 in favour of granting the Wicklow County Manager on 29 Certain Information for Taxation November 1997 injunctions. Damages would January 1987 refusing them plan- and Other Purposes Act, 1996. not be an adequate compensa- ning permission was null and District Court (Bankers’ Books Limitation to law on tion for the loss suffered by the void; and a declaration that plan- Evidence) Rules 1998 (SI No 170 maintenance and cham- plaintiff between then and the ning permission should be deemed of 1998) perty trial of the action as the plain- to have been given on or about 19 ● While the law relating to main- tiff would suffer both monetary January 1987. In dismissing their New form of barring tenance and champerty still loss and damage to its goodwill appeal, it was held that: order subsisted, it could not be and reputation, whereas dam- ● The High Court had accepted With effect from 26 June 1998, extended in such a way as to ages would adequately com- the defendant’s evidence that it new District Court rules prescribe deprive people of their consti- pensate the defendant. had notified the plaintiffs of its an amended form of barring order. tutional right of access to the decision to refuse planning per- District Court (Domestic courts to litigate reasonably G&T Crampton Limited v mission. There was credible Violence) Rules 1998 (SI No 201 stateable claims. Building and Allied Trades Union evidence on which the High of 1998) (Laffoy J), 20 November 1997 Court had been entitled to draw The applicant had applied to the those conclusions and the court Extension of disability High Court for an order to stay could not now interfere with under Statute of and/or dismiss the respondents’ Limitations? PLANNING & them proceedings against her on the ● DEVELOPMENT The plaintiffs had misinterpret- A private member’s Bill has been grounds that they were com- ed the defendant’s letter of 27 presented which seeks to extend menced in consequence of an November 1986. Rather than the definition of disability under unlawful agreement or arrange- Supermarket no longer giving outline permission for a the Statute of Limitations (as ment in the nature of savouring of exempted development one-storey building of the kind amended) to accommodate cir- maintenance and champerty. Her With effect from 10 June 1998, a which now stood on the land, cumstances arising out of child- application was dismissed in the change of use of any premises the the letter had been a helpful hood abuse. High Court and she appealed to retail floor space of which intimation of the kind of build- Statute of Limitations (Amend- the Supreme Court. Between 1983

40 LAW SOCIETY GAZETTE NOVEMBER 1998 BRIEFINGBRIEFING

and 1989, the respondents had cial damage in respect of costs that there cannot be an appeal of those communications invested their savings in a hotel due to M did not contravene from a decision in the High Court ● It was reasonable to infer that which had failed, causing them section 68 of the Solicitors’ affirming a decision of the Circuit some of those documents might financial ruin. From March 1988 (Amendment) Act, 1994 Court. well put the applicant on a train to May 1989, the applicant had ● If at the plenary trial, the appli- MacGairbhith v The Occupants of enquiry which would be been the plaintiff’s solicitor. In cant was successful in her (Supreme Court) ex tempore, 4 material in relation to the pre- 1995, the respondents instituted defence and it was established November 1997 sent proceedings proceedings against the applicant that M had maintained the pro- ● There was no need for the limit- seeking damages for alleged negli- ceedings in a champertous fash- Procedure for freedom of ed third party discovery order to gence. Between 1983 and 1993, ion, it would be open to the information applications go beyond requiring the third- the respondents also incurred a lia- applicant to sue M directly for New rules make provision, with party to make an affidavit with- bility in the sum of £275,620 to all the damage suffered by her effect from 21 September, 1998, in in whatever period would be another solicitor (M) who acted including any costs awarded to regard to applications and appeals reasonable for the respondents. Of that sum, her and not recovered or recov- to the High Court under the ● In so limiting the order, the £164,300 remained due on foot of erable from the respondents Freedom of Information Act, 1997. court was doing justice both to a judgment granted in 1993, and ● The applicant was not entitled Rules of the superior courts (No 3) the applicant and the third party. the balance was due for work done to have the respondents’ claim (Freedom of Information Act since 1993. The respondents dismissed in advance of the ple- 1997) 1998 (SI No 325 of 1998) Kennedy v Law Society of Ireland claimed the sum of £275,620 nary trial. (Supreme Court), 28 November against the applicant. The appli- Limited third party 1997 cant contended that the inclusion O’Keeffe v Scales (Supreme discovery granted of sums due to M in the proceed- Court), 11 December 1997 ● It was reasonable to infer that ings against her amounted to M there were personal contacts of PRISONS having an interest in the outcome No appeal of High Court communications from the third of the action inconsistent with his affirmation of Circuit party to the Law Society in rela- position as solicitor for the respon- Court decision tion to the subject matter of Remand prisoner dents. The applicant contended ● There cannot be an appeal from their enquiries and that a writ- had been adequately that the proceedings were an abuse a decision of the High Court ten record was made for some protected of process and should, therefore, affirming a decision of the of those communications. It ● The law did not expect a prison be stayed until such time as the Circuit Court. was reasonable to infer that authority to guarantee that a matters giving rise to the abuse of some of those documents might prisoner would not suffer injury process had been brought to an The applicant brought proceedings well put the applicant on a train from the action of another pris- end. The applicant argued that in the Circuit Court seeking a dec- of enquiry which would be oner during a term of imprison- champertous agreements entered laration that the applicant was the material in relation to the pre- ment, and a balance had to be into by solicitors had always been tenant of certain premises, which sent proceedings. struck between precautions regarded as contrary to public pol- action was dismissed. The appli- which were acceptable and icy. In dismissing the appeal, it cant then appealed that decision to The applicant sought third-party those which were excessive. was held that: the High Court. Before the Circuit discovery from a firm of accoun- ● It was clear from the authorities Court appeal was disposed of, the tants. The High Court refused the The plaintiff was a remand prison- that the law relating to mainte- applicant instituted proceedings in application on the ground that it er. On the day he was incarcerated, nance and champerty still exist- the High Court. On 14 May 1991, had not been established that there a fellow prisoner threw a bucket of ed in the State the High Court (Hamilton P) held were any documents in the posses- boiling water over him causing ● While the law still subsisted, it that the plenary summons claim- sion of the third party which might him to suffer severe injuries. The could not be extended in such a ing possession of certain premises be relevant to the proceedings. The plaintiff contended that the first- way as to deprive people of was res judicata as it was putting applicant appealed to the Supreme named defendant failed to put him their constitutional right of in issue that which had been deter- Court. In allowing the appeal to a into protective custody despite his access to the courts to litigate mined in the Circuit Court pro- limited extent only, it was held request. He further argued that the reasonably stateable claims ceedings. As there were extant that: first-named defendant was aware ● Even if M was maintaining the proceedings, namely the Circuit ● The third-party took on some- of the violent nature of the attack- respondents’ action in a cham- Court appeal, the applicant was thing of an investigative role er and had both failed to segregate pertous and unlawful manner, offered the choice to amalgamate which could have resulted in him and allowed him access to the court doubted that that in both proceedings but chose not to the generation of material docu- buckets of boiling water. In dis- itself would amount to a do so. On 13 November 1995, the mentation under their power, missing the plaintiff’s claim, it defence to the respondents’ High Court (Budd J) heard and control or procurement was held that: claim, much less entitle the dismissed the Circuit Court ● It was reasonable to infer that ● The court did not accept that the applicant to stifle the respon- appeal. The applicant appealed the there were personal contacts of plaintiff requested that he be dents’ claim in limine on the High Court decision of 14 May communications from the third- placed in protective custody as motion to stay or dismiss in 1991 to the Supreme Court. In dis- party to the respondent in rela- it would have been illogical for advance of a plenary trial missing the appeal, it was held that tion to the subject matter of the first-named defendant to ● The inclusion in the respon- that the appeal was an attempt to their enquiries and that a writ- refuse such a request, had one dents’ claim of the items of spe- circumvent settled jurisprudence ten record was made for some been made

NOVEMBER 1998 LAW SOCIETY GAZETTE 41 BRIEFING

● The law did not expect a application for judicial review. and other facts that had been respondent disputed that the prison authority to guarantee She sought an order of man- ascertained and established applicant should continue to act that a prisoner would not suf- damus directing the respondent were put to the applicant for- as executrix of the testator’s fer injury from the action of to consider her application for mally in the context of a pos- estate and he applied to the High another prisoner during a term refugee status in accordance sible deportation order being Court for her removal. The of imprisonment with the United Nations conven- made against the applicant applicant was removed as ● A balance had to be struck tion on the status of refugees of and she had been invited to executor of her deceased sister’s between precautions which 1951 and a declaration that she make whatever observations (that is, the testator’s) estate by were acceptable and those was entitled to have her applica- she thought fit and had the High Court. She appealed to which were excessive tion for refugee status deter- availed of that opportunity the Supreme Court, which ● The history of the attacker did mined in accordance with the ● The respondent had carried appeal was allowed: not suggest that he was so dan- agreement and procedures out a proper inquiry as to ● The factors referred to by the gerous that the prison authori- agreed between the respondent whether the UK was the trial judge were no reason at ties should have recognised a and the United Nations High ‘first safe country’ for the all why the applicant, a sister need to segregate him from Commissioner for Refugees as purpose of a substantive of the testator, should have other prisoners. set out in a letter dated 13 inquiry into the applicant’s contemplated renouncing December 1985 from the claim for refugee status and rather than extracting pro- Bolger v Governor of Mountjoy respondent to the Commission such inquiry had been held bate. They were factors Prison (O’Donovan J), 12 for Refugees. Her appeal was in accordance with the provi- which existed prior to the tes- November 1997 dismissed on the following sions of the letter of 13 tator’s death who neverthe- grounds: December 1985 and the less chose the applicant to be ● The respondent accepted she requirements of constitution- her executrix was bound by the procedures al and natural justice. ● The removal by the court of REAL PROPERTY described in the letter of 13 the applicant as executrix December 1985. The accep- Anisimova v Minister for was a very serious step to Gazumping to be curbed? tance by the respondent of Justice (Supreme Court), 28 take which required serious A private member’s Bill has been those obligations was, how- November 1997 misconduct and/or serious introduced which would, if ever, subject to one qualifica- special circumstances on the passed: tion, in that it was maintained part of the executrix to justify ● Seek to prevent vendors, in this case that there was an such a drastic step and as SUCCESSION including builders, who have international understanding such overrule the wishes of received a booking deposit in that a person seeking asylum the testator relation to a residential proper- was under an obligation to Removal of executrix ● There was no valid basis for ty, from selling it to another seek it in the ‘first safe coun- ● The removal by the court of the respondent feeling frus- purchaser for an increased try’ where he had an opportu- the appellant as executrix of trated and excluded from price within a period after pay- nity to do so the testator’s estate was a what he considered were his ment of the booking deposit ● It was unnecessary for the very serious step to take legitimate concerns ● Set time limits for the furnish- court to investigate the exis- which required serious mis- ● The respondent’s objections ing of contracts and the return tence of such an understand- conduct and/or serious spe- to the applicant based on her of same with contract deposit ing as the applicant did not cial circumstances on the valuation of the testator’s ● Provide for fines and impris- dispute that the terms of the part of the executrix to justi- preference shares were with- onment for persons breaching said letter were required to be fy such a drastic step and, as out any substance whatsoever the provisions of the legisla- read in the light of such an such, overrule the wishes of ● The applicant was adminis- tion, and understanding and were qual- the testator. tering the testator’s estate ● Permit the award of compen- ified pro tanto with the advice and assis- sation by the court to disap- ● The correspondence indicated The applicant was the sole-sur- tance of reputable solicitors, pointed purchasers. that the respondent carried viving executrix named in the and nothing had been done out an appropriate inquiry testator’s will and probate was which was in any way Home Purchasers (Anti-Gazump- and afforded the applicant an granted to her. The testator pos- improper or which justified ing) Bill, 1998 adequate opportunity of being sessed 265 preference shares in the respondent’s distrust heard in relation to the deci- Dunne’s Holding Company at ● The applicant had done noth- sion affecting her rights the time of her death. ing wrong in her capacity as ● It had been made patently According to the articles of executrix of the testator’s REFUGEES clear on the respondent’s association of that company, estate, and as such there were behalf that no investigation each preference share was no grounds which would jus- Mandamus refused in was taking place on the sub- worth £1. Hence the valuation tify the removal of the appli- application for judicial stantive issue on the appli- of the testator’s shares was cant as executrix of the testa- review cant’s right to asylum; rather, £265. The testator’s shares tor’s estate. The applicant appealed against a the investigation had centred were purchased by the other decision of the High Court of 18 on the duration of the appli- holders of preference shares, Dunne v Heffernan (Supreme February 1997 which refused her cant’s stay in the UK. This except for the applicant. The Court), 26 November 1997

42 LAW SOCIETY GAZETTE NOVEMBER 1998 BRIEFINGBRIEFING

known to the latter but not to to someone in the travel indus- tragedy were not in a position TAXATION the former. try is that of the person on the to give the trial judge a coher- spot, providing the service ent account of what happened VAT waiver rules changed The first-named defendant was a ● A tour operator is not entitled and the trial judge was unable New regulations, deemed to have tour operator and the second- to assume knowledge on the to reach any conclusion of fact. come into effect on 26 March named defendant was a travel part of its customers which it In such circumstances there 1997: agent. The plaintiff and her sister acquires in its capacity as a was no reliable evidence to ● Amend regulation 4 of the booked a holiday in Cyprus with tour operator bring any form of negligence Value-Added Tax Regulations the first-named defendant ● Although the ultimate respon- causing this accident 1979 to provide for the back- through the agency of the sec- sibility for the safety of the dating of a waiver of exemp- ond-named defendant. The tourists must lie with the tour O’Driscoll v Cork Corporation tion for VAT on short-term let- brochure of the first-named operator, the travel agent must (Supreme Court), 18 December tings of immovable property in defendant contained details of a also familiarise itself with the 1997 specified circumstances, and short cruise to Israel but the conditions likely to be met by ● Amend the same regulation 4 plaintiff was informed by the sec- such person to take account of the changes ond-named defendant that the ● The test is what a reasonably TRANSPORT to VAT on property contained cruise was bookable only from prudent tour operator exercis- in the Finance Act, 1997 to Cyprus. The cruise included, ing reasonable care would section 7(3) of the Value- inter alia, a coach tour through consider it necessary to inform Road transport of Added Tax Act, 1972, which Bethlehem. The plaintiff went on those travelling with it. dangerous goods deals with the calculation of the cruise and, near Bethlehem, to be changed the amount due on the cancel- was struck by a stone thrown McKenna v Best Travel Limited A Bill has been presented which lation of a waiver. through the window of the coach (Supreme Court), 18 November aims to put in place enabling injuring her. She instituted pro- 1997 powers for the making of regula- Value-Added Tax (Waiver of ceedings for damages against the tions to: Exemption) (Amendment) Regula- first-named defendant and the Causal link in drowning ● Allow the State to accede to the tions 1998 (SI No 228 of 1998) second-named defendant alleging not established European arrangement con- breach of contract and of the duty ● The onus of proof was on the cerning the international car- Identity cards for tax of care owed to her. The High plaintiff to establish a causal riage of dangerous goods by inspectors Court found that there was a connection between the diffi- road As and from 1 July 1998, provi- breach of the duty of care and culty in obtaining the life buoy ● Implement Directive 94/55/EC sion has been made (under section found for the plaintiff. The defen- and the death of the deceased on the approximation of the 858 of the Taxes Consolidation dants appealed to the Supreme by drowning. laws of the Member States with Act, 1997) for a new type of iden- Court on the issue as to whether regard to the transport of dan- tity card for officers of the or not a warning should have On 16 June 1987 a group of men, gerous goods by road, and Revenue Commissioners which been given to the plaintiff con- including the deceased, were ● Implement Directive 95/50/EC will show the functions and pow- cerning the state of unrest which drinking at the quayside of the on uniform procedures for ers which the officer identified is then existed in and around River Lee in Cork. The deceased checks on the transport of dan- entitled to exercise. The produc- Bethlehem. In allowing the jumped into the river and shortly gerous goods by road. tion of the card will be taken as appeal, it was held that: thereafter he got into difficulties. evidence of the officer’s authori- ● The duty of care in tort arises Nearby there were at least three Carriage of Dangerous Goods by sation for the purposes of the from the proximity created by life buoys, all of which had been Road Bill, 1998 specified statutory provisions the contractual relationship. secured with wire to prevent shown on the card. This duty of care extends to all vandalism. The other men who Taxes Consolidation Act, 1997 matters concerning the safety, were with the deceased gave evi- TRIBUNALS (Section 858) (Commencement well being and comfort of the dence that they were unable to Order 1998) (SI No 212 of 1998) tourists which by the nature of release the life buoys. The plain- the relationship between the tiff instituted proceedings Change in terms of tourists and those providing against the defendant in negli- reference the service would or should be gence and lost in the High Court. A Bill, which has been passed by TORT known to the latter but not to In dismissing the appeal, it was Dáil Éireann, seeks to permit the the former held that: Houses of the Oireachtas to Tour operator’s duty of ● The standard of knowledge to ● The onus of proof was on the change the terms of reference of a care be attributed to the tourist is plaintiff to establish what had tribunal by resolution, subject to ● The duty of care extends to all that of someone who, having happened, to bring home some the consent of the tribunal. matters concerning the safety, decided to go on holiday to a fault to the defendant and to Tribunals of Inquiry (Evidence) well being and comfort of particular area, might be establish a causal connection (Amendment) (No 3) Bill, 1998 G tourists which by the nature of expected to have gained from between the difficulty in the relationship between the advertisements or news items obtaining the life buoy and the The ILT digest is reproduced by tourists and those providing the relating thereto. The standard death of the deceased kind permission of the Irish Law service would or should be of knowledge to be attributed ● The main witnesses to the Times.

NOVEMBER 1998 LAW SOCIETY GAZETTE 43 BRIEFING

Eurlegal

News from the EU and International Affairs Committee Edited by TP Kennedy, Legal Education Co-ordinator, Law Society of Ireland Regulation No 4064/89 on the control of concentrations between undertakings

he essential purpose of the envisaged in its report (Doc COM only operations which bring about independent undertakings or as a TMerger control regulation is (93) 385 final, as amended by a lasting change in the structure of result of a change of control, to give the EC Commission’s COM (93) 385 final/2) to the the undertakings concerned. associated with more sophisticat- Merger Task Force exclusive Council of Ministers of 28 July Article 3(1) of the regulation pro- ed transactions. A typical con- jurisdiction in the EU territory 1993 that formal guidance on the vides that such structural change centration will involve an under- over large mergers where struc- interpretation of article 3 of regu- is brought about either by a merg- taking acquiring control of tural change occurs because pre- lation (EEC) No 4064/89 could er between two previously inde- another undertaking. However, viously independent undertakings enable firms to establish more pendent undertakings or by the the notion of concentration also lose their independence or identi- quickly whether and to what acquisition of control over the covers situations where a change ty through merger or by coming extent their operations may be whole or part of another undertak- in the nature or quality of control under common control. The regu- covered by Community Merger ing. in an undertaking occurs, as lation employs the term ‘concen- Control in advance of any contact The definition of concentra- where one controlling sharehold- tration’ to describe mergers (arti- with the Commission’s services. tion, therefore, focuses on the er in a joint venture sells out to cle 21(2) gives the Commission In order to further this aim, the existence in the change in control. another shareholder or a third exclusive competence, subject to definition in article 3 of the term It is therefore important to consid- party. certain exceptions, over concen- ‘concentration’ has been elaborat- er the criteria necessary to deter- Article 3(1)(b) of the regula- trations that have a ‘Community ed upon by a Commission notice mine what constitutes a change in tion provides that a concentration dimension’). on the concept of a concentration control. The regulation defines a occurs in the case of an acquisi- The idea is that large concen- (Commission Notice 98/C 66/02) change in control in article 3(3) as tion of control. The key issue, trations (that is, ‘Community and explains how the follows: ‘For the purposes of this therefore, is whether the rights dimension’-sized concentrations) Commission has interpreted arti- regulation, control shall be consti- which one undertaking acquires should be regulated exclusively cle 3 in the light of its experience tuted by rights, contracts or any over another undertaking are suf- by the Commission. This is the in applying the regulation since other means which either sepa- ficient to confer on it ‘the possi- ‘one-stop shop’ principle. Smaller September 1990. rately or in combination and hav- bility of exercising decisive concentrations, on the other hand However, despite the efforts of ing regard to the considerations of influence’. (that is, those that are not suffi- the Commission notice, legal cer- fact or law involved, confer the Although increasing impor- ciently large to have a tainty and the practical usefulness possibility of exercising decisive tance is attached to the issue of ‘Community dimension’), will of Regulation 4064/89 could ben- influence on an undertaking in decisiveness, this is an area of fall within the regularity compe- efit from the increased particular by: merger control in which it is not tence of the national merger Commission guidance in this con- a) Ownership or the right to use easy to set out definite and pre- authorities of the Member States text. Although it is clear that the all or part of the assets of an cise parameters. It has been left concerned. main difficulty is the absence of undertaking to the Commission in its deci- As the appraisal criteria of the detailed information on the inter- b) Rights or contracts which con- sions to give a detailed interpre- regulation were unclear in some pretation of key issues, the fer decisive influences on the tation of the meaning of decisive respects, the Commission intro- Commission notice goes no fur- composition, voting or deci- influence. An analysis of the duced a series of initiatives aimed ther than a previous 1994 notice sions of the organs of an under- decisions to date would seem to at ‘improving the transparency (which it replaces) in alleviating taking’. indicate that the Commission and legal security of all decisions uncertainty in this area. considers that it is not necessary taken in application of the regula- According to recital 23 to the A concentration may therefore that an acquiring firm has the tion’ (Commission Notice 94/C regulation, the concept of a con- arise either as a result of a ability to manage all aspects of 385/02, para 1). The Commission centration is defined as covering straightforward merger between the other firm on a day-to-day

44 LAW SOCIETY GAZETTE NOVEMBER 1998 BRIEFINGBRIEFING

basis. It is enough that the right to In Arjomari/Wiggins Teape concept of a concentration is pre- ● To determine whether or not a take the strategic decisions of that Appleton (M4) (1991) 4 CMLR dominantly an economic one, and holding will result in the acqui- undertaking is acquired. 854, the Commission found that a that the regulation accordingly sition of control it is necessary However, the Commission has 39% shareholding gave rise to focuses on the substance of the to examine the distribution of helpfully clarified some issues. decisive influence where the transaction concerned and its the remaining shares. For example, it has made it clear remaining shares were dispersed effect on the behaviour of the that veto rights which are among 107,000 other sharehold- undertakings (and not its form), it To remain tight-lipped on this designed only to protect the finan- ers, none of whom held more than would have been expedient to obviously grey area of the regula- cial interests of minority share- 4% and three of whom held more highlight a few guiding factors to tion is to increase concerns for holders do not confer control. than 3% of the issued share capi- determine whether the acquisition advisors who may be asked Rather, the regulation is con- tal. This is apparently based on of a minority holding constitutes a whether the acquisition of a cerned with whether the relevant the idea that dispersal results in notifiable transaction – that is, a minority holding constitutes a undertakings have acquired influ- low attendance at general meet- change in control. Although each notifiable transaction. Further- ence over the business strategy of ings, and that in the absence of case must be examined on its own more, it may be argued that this an undertaking. Yet for accuracy any formal mechanism between merits, it is submitted that the fol- lack of clarity undermines the we must turn once again to the the smaller shareholders, they are lowing factors might have provid- concept behind the Commission decisions of the Commission. It unlikely because of their large ed guidance: notice, which is to help create has been made clear that the number to reach agreement on a ● The nearer that a holding legal certainty with respect to a Commission considers that in cer- combined exercise of their pow- approaches 50% plus one class of agreements and to tain circumstances an undertaking ers. So in considering whether or share, the more likely it will decrease the necessity for individ- can acquire control over another not a shareholding of a certain confer control ual notification. when it holds less than 51% of the size gives rise to the possibility of ● A 25% interest will not in nor- Although the notice provides a other undertaking’s voting shares exercising a decisive influence, mal circumstances be sufficient great deal of helpful information but nevertheless has the de facto the Commission may consider to establish decisive influence. with regard to the assessment of ability to control or direct the what percentage of the votes his- As seen in ConAgra/IDEA joint ventures and so forth, practi- strategic decisions of that compa- torically cast at general meetings (M24), the veto rights normal- tioners face a number of recurring ny. Such ability may be acquired it represents (para 14 of the ly connected to minority share- interpretative difficulties and with the purchase of a significant notice). holdings are – at least in the ambiguities when assessing a minority shareholding, where the Nevertheless, this approach, as European Community – insuf- concentration under article 3. remaining shareholdings are many legal commentators have ficient to control. For holdings Legal certainty and the practi- widely dispersed. Given that it is noted, creates uncertainty to the less than 25%, control will not cal usefulness of Regulation most unlikely that all the smaller extent that it leaves open the ques- therefore exist in the absence 4064/89 could benefit from shareholders will be present or tion of the precise level at which it of a shareholder agreement increased Commission guidance represented at the AGM, the may be considered that a minority granting the owner of the in this context. G acquisition of a significant minor- shareholder enjoys decisive influ- minority holding exceptional ity block of shares may enable ence, taking into account ‘the veto rights over the company’s Erin Barrett is an apprentice their holder to exercise effective varying levels of possible dilu- strategic decision making solicitor with solicitors Lee control over the meeting. tion’. While it is accepted that the process, and McEvoy.

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NOVEMBER 1998 LAW SOCIETY GAZETTE 45 BRIEFING

RECENT DEVELOPMENTS IN EUROPEAN LAW

are a small number of exclusions as certain items in the shop were sex. In R v Secretary of State, Ex COMPETITION from the general ban. These are: labelled only in English, French or parte Perkins, 16 July 1998, The The Commission has recently adopt- communications intended exclu- Italian. The implementing legisla- Times, Lightman J in the English ed a communication on the applica- sively for professionals in the tobac- tion provided that the foodstuffs High Court applied Grant. Perkins tion of competition rules to vertical co trade; presentation of tobacco had to be labelled in German or had been dismissed from the Royal restraints (agreements between products and prices at point of sale; some other ‘easily intelligible lan- Navy on the grounds of his homo- producers and distributors). The advertising aimed at purchasers in guage’. The defendant argued that sexuality. He sought a judicial Commission is proposing the adop- establishments specialising in the the directive prevented a Member review on the basis that the policy tion of a very wide block exemption sale of tobacco products; and the State from insisting that foodstuffs was to dismiss homosexuals from regulation exempting from the sale of publications containing be labelled in a particular lan- the armed forces was contrary to application of article 85 almost all advertising for tobacco products, guage. He also argued that, even if the Equal treatment directive. vertical restraints. The regulation provided that the publications are this was wrong, sufficient labelling Lightman J had initially referred the will set out market share thresholds; published and printed outside the steps had been taken in that a sign question of the scope of the direc- it will apply to companies which fall EU and are not principally intended had been erected in the shop set- tive to the ECJ. The administrator of below such thresholds. for the EU market. ting out the necessary information the ECJ asked the judge to consider Article 6(1) provides that the in German. The court rejected both whether in light of the ruling in prohibitions are to be implement- defences. It held that the directive Grant the reference should be with- CONSUMER ed by each Member State by 30 July did not prevent domestic law from drawn. Lightman J held that the PROTECTION 2001. The article allows for imple- demanding that labelling be in a case was covered by Grant. He did Further curbs proposed mentation to be deferred by one language easily understood by not accept argument that Grant on tobacco advertising and year in respect of press advertising potential purchasers. The erecting was confined to the Equal pay sponsorship and for two years in respect of of an adjacent sign was insufficient directive. He ruled that the word Detailed negotiations have been sponsorship. Member States can as the purpose of the directive was ‘sex’ should be interpreted in the taking place in the EU concerning postpone the prohibition of spon- to protect not just the purchasers of same way in both directives. the prohibition of tobacco advertis- sorship for a further period not foodstuffs but also its ultimate con- ing and sponsorship. The result of extending beyond 1 October 2006. sumers. LEGAL PROFESSION these negotiations is Directive 98/43/EC on the approximation of The European Commission has LANGUAGE LABELLING EMPLOYMENT the laws, regulations and adminis- threatened to bring an action trative provisions of the Member Directive 79/112 on labelling of Gender discrimination against Italy concerning its admis- States relating to the advertising foodstuffs requires the information In Grant v South West Trains (C- sions test for EU-qualified lawyers. and sponsorship of tobacco prod- included in labels attached to food- 249/96) [1998] ICR 449 (Gazette, The Commission argues that this ucts (OJ 1998 L213/9). stuffs to be clearly expressed. The April, 39), the ECJ held that the test is too bureaucratic and too dif- Article 3(2) of the directive bans problem of language came before Equal pay directive did not outlaw ficult. Those sitting this examina- all forms of advertising and spon- the Court of Justice in Re Goerres. discrimination on the grounds of tion are required to take papers on sorship of tobacco products within The defendant operated a food sexual orientation. It held that more subjects than those faced by the EU. It lays down minimum stan- store in Germany. He was prosecut- same-sex partners of employees Italians during the qualification dards only; Member States are free ed and fined under the German leg- were not entitled to travel conces- process. A similar action has recent- to impose tighter restrictions. There islation implementing the directive, sions given to partners of opposite ly been initiated against France.

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46 LAW SOCIETY GAZETTE NOVEMBER 1998 BRIEFINGBRIEFING

New Acquired rights directive

he Acquired rights directive person from the protection of the Public bodies related rights within their imple- T(77/187/EEC) safeguards the directive by reference to the The 1977 directive applied to both menting legislation. rights of employees on the trans- number of hours worked, part- private and public undertakings. fer of a business. This directive time status or the fact that he Article 1.1c refines the definition Exceptions has given rise to much case law works under a fixed-term con- of public undertakings and con- Article 4 retains the exception pro- and general controversy. After tract. firms that the directive applies to viding that a dismissal for ‘econom- four years of negotiation, the public bodies engaged in econom- ic, technical or organisational rea- Council had adopted a new Transfer of an ic activities, whether or not for sons’ is permitted. Article 4a adds a Acquired rights directive ‘undertaking’ gain. However, the directive stipu- new exception. Member States can (98/50/EC). This endeavours to The directive applies to the trans- lates that it does not apply to any provide that protection is available solve some of the problems fer of an undertaking, business or administrative reorganisation of even where the transferor is subject revealed in the litigation on the part of a business, to another public administrative authorities to insolvency proceedings in the original directive. The 1998 employer as a result of a legal or the transfer of administrative course of which its assets are being directive adds to the 1977 direc- transfer or merger (article 1.1a). functions between public adminis- transferred. Domestic law can pro- tive and substitutes some of its This reproduces the language of trative authorities. In applying the vide that the transferee is not to be provisions. The amendments and the original directive, which gave directive for the future, a distinc- responsible for the transferor’s lia- substitutions reflect much of the rise to differing interpretations. tion will have to be drawn bilities to the employees accrued case law and also attempt to Article 1.1b goes on to provide between economic activities and prior to the insolvency so long as resolve problems posed by con- that there is a transfer only where administrative functions. there are sufficient guarantee flicting court decisions. Member what is transferred is ‘an eco- arrangements in favour of the States are required to implement nomic entity which retains its Effects of a transfer employees from the transferor. the amendments in the new identity, meaning an organised Article 3 concerning the effects of directive by 17 July 2001. group of resources which has the a transfer remains substantially Remedies objective of pursuing an econom- unchanged. The transferee The directive provides a right of Scope of the directive ic activity, whether or not the remains liable for the accrued enforcement to individual employ- Article 1.2 limits the application activity is central or ancillary’. rights and liabilities of the trans- ees who had been dismissed or of the directive to situations This follows a somewhat restric- feror. Article 3.2 now gives states whose terms of employment had where the undertaking to be tive interpretation taken in some the power to require the transfer- been altered after a transfer or to a transferred is within the EU. The of the Court of Justice decisions or to notify the transferee of all trade union which had not been directive leaves it to individual on the 1977 directive. The trans- rights and liabilities known to the consulted. A new article 7a states to define ‘employee’. fer of an activity, rather than transferor before the transfer. extends the right of enforcement to However, article 2.2 provides assets is not caught by the direc- Article 3.4 allows states to all employees and representatives that a state is not to exclude a tive. include pension, invalidity and of employees. G

Family law convention he Convention on jurisdiction courts. There is also a detailed joint application, either spouse is has jurisdiction if the child is Tand the recognition and explanatory report prepared by habitually resident; or the appli- habitually resident within the EU, enforcement of judgments in mat- Prof Borras. cant is habitually resident and has one of the spouses has parental rimonial matters (OJ 1998 Scope. The convention applies been so for a year prior to the responsibility and the spouses have C221/1) was recently adopted by in civil proceedings relating to application; or the applicant is accepted the jurisdiction of the the Council of Ministers. It sets divorce, legal separation or mar- habitually resident, has been so court. In the case of child abduc- out rules for determining jurisdic- riage annulment and parental for six months prior to the appli- tion by one of the spouses, the con- tion in family law disputes within responsibility for the children of cation and is resident or domiciled vention defers to the Hague con- the European Union and requires both spouses. there. Alternatively, the courts of vention on child abduction of courts of Member States to recog- Jurisdiction. There are two the Member State of which both 1980. nise and enforce judgments in sets of rules dealing with jurisdic- parties are nationals, or are domi- Jurisdictional conflicts. other Member States. It parallels tion. The first of these sets out a ciled on a long-term basis, has Applying the above rules, the the Brussels and Lugano conven- number of choices for jurisdiction jurisdiction. courts of more than one state may tions which set out similar rules in the case of divorce, separation The second set of rules deals have jurisdiction. To resolve any for civil and commercial matters. or annulment. Jurisdiction is with parental responsibility cases. conflict, the convention provides The convention is to enter into given to the courts of the Member A court with jurisdiction over the for a rule similar to that found in force when it is adopted by indi- State in whose territory the spous- divorce or separation had jurisdic- articles 21 and 22 of the Brussels vidual Member States. As with es are habitually resident; or the tion in a matter relating to parental convention. The court first seized the other conventions, it has a spouses were last habitually resi- responsibility where the child was of the matter is given exclusive protocol which allows the Court dent is one of them still resides habitually resident in its territory. jurisdiction. Other courts are of Justice to give preliminary rul- there; or the respondent is habitu- Even if the child is not habitually required to stay their proceedings ings on references from national ally resident; or in the event of a resident in that state, the court still until the court first seized satisfies

NOVEMBER 1998 LAW SOCIETY GAZETTE 47 BRIEFING

itself that it has jurisdiction to the convention’s provisions is not have recognised a divorce, separa- judgment is irreconcilable with the hear the matter. to be reviewed as to its content. In tion or annulment on that basis. public policy of the recognising Judgments. As in the Brussels particular, the recognition of a Defences. There are a small state; a judgment given in default convention, a judgment given in divorce, separation or annulment number of defences to automatic of appearance where the respon- the courts of one Member State is granted in one Member State is recognition. These are very similar dent was not duly served; a judg- to be recognised in all others. The not to be refused simply because to the defences in the Brussels con- ment which is irreconcilable with convention also provides that a the law of the state in which vention to recognition and enforce- an earlier judgment given in that foreign judgment coming under recognition is sought would not ment. These defences are: where a state or given elsewhere. G

Conferences and seminars Academy of European Law British Institute of International Contact: Christian Roth (tel: 0044 Topic: 50th anniversary conference Contact: (Tel: 0049 651 937370) and Comparative Law 171 8398391) Date: 8-10 July 1999 Contact: Valerie Echard (Tel: 0044 Topic: Community rules on State aid 171 3232016) Topic: European telecoms Solicitors’ European Group Date: 30 November and 1 December regulations and competition Contact: (Tel: 00 44 1905 724734) Venue: Trier, Germany Topic: Civil redress for human law rights violations abroad: the UK Date: 30 November and Topic: Vertical restraints and other Topic: Combating corruption in the dimension 1 December competition reform projects European Union Date: 4 December Venue: London, England Date: 13 January 1999 Date: 3-4 December Venue: London, England Venue: London, England Venue: Trier, Germany Hawksmere Topic: Issues arising in the renegoti- Contact: (Tel: 0044 171 8248257) Topic: Future of takeover Topic: Mutual recognition of educa- ation of the Brussels and Lugano regulation in the UK and the tional and professional qualifica- conventions Topic: International product European view tions in Europe Date: 8 December liabilities Date: 8 February 1999 Date: 3-4 December Venue: London, England Date: 8 December Venue: London, England Venue: Brussels, Belgium Venue: London, England Topic: United Nations working Topic: Litigation in Luxembourg Topic: Current developments in group on the peaceful settlement IBC Date: 26 April 1999 European distribution law of disputes: prospects for the 21st Contact: (Tel: 0044 171 453 5492) Venue: London, England Date: 7-8 December Century Venue: Trier, Germany Date: 11-12 December Topic: Pricing in Europe and EC Topic: The new merger rules one Venue: London, England competition law year on and other recent develop- Topic: Biotechnology in the single Date: 9 December ments market Topic: Current problems in interna- Venue: Brussels, Belgium Date: 18 May 1999 Date: 22 January 1999 tional arbitration Venue: London, England Venue: Edinburgh Date: 19 January 1999 IIR Venue: London, England Contact: (Tel: 0044 171 915 5055) Topic: Public procurement policy in AIJA (International Association the Community of Young Lawyers) Topic: Legal problems in the regula- Topic: Mastering the legal Date: 16 June 1999 Contact: Gerard Coll (tel: 01 tion of vertical restraints challenges of EMU Venue: London, England 6761924) Date: 12 February 1999 Date: 2 December Venue: London, England Venue: London, England Topic: Broadcasting, pay-per-view Topic: Annual congress 1999 and sports competition law Date: 22-27 October 1999 Computer and Telecommun- Law Society of Scotland Date: 6 July 1999 Venue: Brussels, Belgium ications Law Review Contact: (Tel: 0044 141 5531930) Venue: London, England

Solicitors Financial Services A Law Society company

• Independent investment advice for your client • Commission and client loyalty for you • Membership now only £25 (plus VAT)

CONTACT CILLIAN MACDOMHNAILL AT THE LAW SOCIETY, BLACKHALL PLACE, DUBLIN 7 (TEL: 01 671 0711).

48 LAW SOCIETY GAZETTE NOVEMBER 1998 PEOPLE AND PLACES

Justice Media Awards 1998

Pictured at the Justice Media Awards ceremony in Blackhall Place daily newspaper category; in the magazine category the Justice last month were: (top left) Pat Brosnan of The Examiner who, Media Award went to Consumer Choice (above left), whose editor together with his colleague TP O’Mahony, won the Justice Media Kieran Doherty picked up the Justice Media Award for journalist Award in the daily newspaper category; (top right) Denis Daly of Sally Roden; and (above right) Sunday Tribune editor Matt Cooper, the Western People who won the Justice Media Award in the non- who picked up a certificate of merit

All the presidents’ wives: the wives of past presidents of the Law Society pictured at a recent lunch in their honour, hosted by Helen Shields

NOVEMBER 1998 LAW SOCIETY GAZETTE 49 PEOPLE AND PLACES

Law Society President Laurence K Shields and Director General Ken Murphy concluded their pro- gramme of visits to bar associations around the country with visits to the Wexford (above), Waterford (top right) and Longford (right) bar associations. The pair visited a total of 27 bar associations over the course of the last year

NOVEMBER 1998 LAW SOCIETY GAZETTE 51 Irish Cost Recovery made Stenographers easy with... Ltd Equitrac can help you accurately record the usage of Photocopiers, Fax Machines, Laser Director: Sheila Kavanagh Printers and Telephone Systems. Experts in Equitrac means Overnight Transcripts • Increased Accuracy Specialists in • Increased Productivity • High Flexibility Court Reporting • Higher Billable Percentage Medical Cases / Arbitrations • Fewer Write-Offs Conferences / Board Meetings Contact: See Equitrac at LawTech on November 13th or contact Milestone Systems for more infor- Hillcrest House, mation about how the Equitrac range of prod- Dargle Valley, Bray, Co. Wicklow. ucts can help you control your costs. Telephone/Fax: (01) 286 2184 or 4b Arran Square, Dublin 7 Milestone Systems Ltd Unit 6 78 Furze Road Sandyford Industrial Estate Telephone: (01) 873 2378 Dublin 18 Telephone 353 1 2160192 Fax 353 1 2161371 DX 76006 Dundrum

LAW SOCIETY OF IRELAND

CHANGE OF MAIN PHONE/FAX NUMBERS With immediate effect

New numbers: Law Society phone: 672 4800 Law Society fax: 672 4801

Law School phone: 672 4802 Law School fax: 672 4803

LAW SOCIETY OF IRELAND PEOPLE AND PLACES Anyone for tennis? he Irish Law Society record- Egan, James Flynn, Maurice Joy, Ted its third consecutive victo- Henry Lappin and Donnough ry against the Law Society of Shaffrey. The score was an England and Wales in this year’s emphatic 13 sets to 5 in favour of tennis fixture which took place in the Irish, who easily outlasted London on Saturday 19 their English and Welsh counter- September. The tennis was played parts in the off-court entertain- in glorious sunshine on the ment also. superbly maintained grass courts ● The Law Society of Ireland was at the Bank of England grounds in invited to participate for the first Roehampton, which each year time in June 1997 in the Biennial plays host to the Wimbledon European Lawyers’ Tennis qualifying competition. Tournament in London. The Irish The fixture comprised three team greatly upset the expectations rounds of men’s doubles, and the of the other participating nations Law Society of Ireland was repre- by defeating Italy, England and sented by Michael Doran, Frank Germany to win the event.

(Seated, left to right) Law Society President Laurence K Shields, Cliona O Tuama, President of the Irish Solicitors’ Bar Association, London, at a meeting in London’s Irish Club last month

The team from Sherlocks law searchers who won the recent Soccer Blitz Members of the Conveyancing Committee Task Force who produced the organised by the Law Society’s Younger Members’ Committee at Blackhall Law Society’s new Conveyancing handbook that has recently been sent out Place. The victors are pictured with Law Society President Laurence K to every solicitors’ practice in the country. (From left) Robert Potter-Cogan, Shields and the chairman of the Younger Members’ Deirdre Fox, task force chairman Brendan McDonnell, Martin Archer Committee Stuart Gilhooly and John Tarpey

Law Society President Laurence K Shields presents a cheque to Sabha Greene, Resources Manager of The Attorney General and members of the Law Reform Commission recently Attorney General David Byrne SC Free Legal Aid Centres, on behalf met to discuss a second programme of law reform (the first was compiled in congratulates Hugh Sheridan on of the Law Society. Over £10,000 1976). (Front row, l-r) Hilary Delaney BL, Attorney General David Byrne SC, his appointment as State has been collected for FLAC by the solicitor Patricia Rickard-Clarke. (Back row, l-r) Dr Turlough O’Donnell QC, Solicitor for Sligo Society since January Mr Justice Vivian Lavan, President of the LRC, and Arthur Plunket BL

NOVEMBER 1998 LAW SOCIETY GAZETTE 53 PROFESSIONAL INFORMATION

East side of Emmet Street in the parish of Chapel Street, Charlestown, County Mayo; Darcy, William (known as Tony), deceased, LOST LAND Monkstown and Borough of Dun Folio: 12776; Lands: Townland of late of 72A Summerhill, Dublin 1. Would any CERTIFICATES Laoghaire; Co Dublin Lowpark, Barony of Costello, Area: 0a 0r person having knowledge of the whereabouts of Regd owner: Martin O’Sullivan; Folio: 5p; Ref: MMcD/HB/SDO/353; Co Mayo the will of the above named deceased, who died Registration of Title Act, 1964 118780F; Lands: property known as Site 66 Regd owner: Eva Mildred Wilson, Cornasoo, on 19 August 1998, please contact JF Proctor & An application has been received from the reg- Prospect View, Stocking Lane, Dunraymond PO Co Monaghan; Folio: Company, Solicitors, 230 Swords Road, Santry, istered owners mentioned in the schedule here- Rathfarnham, Townland of Newtown, 12767; Lands: Cornasoo; Area: 20.156 Dublin 9, tel: 8422919, fax: 8422793 to for the issue of a land certificate as stated to Barony of Uppercross; Co Dublin acres; Co Monaghan have been lost or inadvertently destroyed. A Regd owner: Roebuck District Utility Society Regd owner: Leo and Julia Marren, Foley, Joseph, deceased, late of 52 Connaught new certificate will be issued unless notifica- Limited; Folio: 15933; Lands: property sit- Carrowmore, Croghan, Boyle, Co Street, Dublin 7. Will anybody having knowl- tion is received in the Registry within 28 days uate in the Townland of Roebuck and Roscommon; Folio: 13361; Lands: edge of the whereabouts of the will of the above from the date of publication of this notice that Barony of Rathdown; Co Dublin Townland of Carrowmore, Barony of named deceased, who died on 21 June 1998, the original certificate is in existence and in the Regd owner: Joan Clarke and Martin Kelly Boyle, Area: 14a 0r 0p; Co Roscommon please contact Padraig E Halpenny and custody of some person other than the regis- both of 3 Annamoe Park, Cabra, Dublin 7; Regd owner: Gabriel McSharry, Tonaphubble, Company, Solicitors, 16 Inns Court, tered owner. Any such notification should state Folio: 110020F; Lands: property known as Sligo; Folio: 17365; Lands: Townland of Winetavern Street, Christchurch, Dublin 8, tel: the grounds on which the certificate is being 3 Annamore Park, in the parish of Clogher Beg, in the Barony of Carbury; 6797884 or 6797066 held. Grangemore and District of North Central; Area: (1) 24a 3r 5p, (2) 15a 1r 30p; Ref: (Register of Titles), Central Office, Land Co Dublin 98/159/RW/LH; Co Sligo Hennessy, Mary T, deceased, late of Maelclye, Registry, Chancery Street, Dublin Regd owner: Edward Campion, Mary Campion Regd owner: Martin Kerins, c/o Rochford, Annacarty, County Tipperary. Would any per- (Published 6 November 1998) and Loughlin Campion all of Glenfarne, Gallagher & Company, Ballymote, Co son having any knowledge of a will executed Castleknock Road, County Dublin; Folio: Sligo; Folio: 23989; Lands: Townland of by the above named deceased, who died on 31 Regd owner: Daniel McLoughlin, 40459F; Lands: property situate in the (1) Carrowkeel, (2) Chaffpool, (3) Leitrim July 1998, please contact Michael J Breen & Crossmakellegher, Ballyconnell, Co Cavan Townland of Castleknock, Barony of South, (4) Leitrim South, (5) Leitrim Co, Solicitors, Main Street, Roscrea, County and Gortnaleck, Ballyconnell, Co Cavan; Castleknock; Co Dublin South, (6) Carrowkeel in the Barony of Tipperary, tel: 0505 22155, fax: 0505 22394 Folio: 25372; Lands: (1) Kilnavert, (2) Regd owner: Brendan O’Reilly and Vivien Leyny; Area: (1) 9a 3r 15p, (2) 7a 2r 30p, Corneen and (3) Gortnaleck; Area: (1) O’Reilly both of 24 Esmondale, Naas, (3) 23a 2r 11p (4) 3a 1r 26p, (5) 18a 1r 0p, Joy, William, deceased late of Buncurrig, 29.875 acres, (2) 0.488 acres, (3) 11.219 County Kildare; Folio: DN014053; Lands: (6) 6a 1r 31p; Ref: MD/KEA/001; Co Sligo Ballyheigue, Co Kerry. Would any person hav- acres; Co Cavan A plot of ground situtate on the north side Regd owner: John Joseph Walsh; Folio: 6993; ing knowledge of a will executed by the above Regd owner: Michael McQuillan; Folio: of Lorcan Avenue in the parish and district Lands: Townland of Blackknock, Barony named deceased, who died on 23 September 3564F; Lands: Annaghlee; Area: 0.619 of Santry and city of Dublin; Co Dublin of Middlethird; Area: 1 roods and 12 1998, please contact Patrick Mann & Company, acres; Co Cavan Regd owner: Michael Langan (deceased) perches; Co Waterford Solicitors, 25/26/27 Ashe Street, Tralee, Co Regd owner: Michael and Anne Fitzgerald; Rawfee, Headford, County Galway; Folio: Regd owner: Eileen Whelan, Newcourt, Kerry, tel: 066 24843 or fax: 066 23138 Folio: 20626F; Property: part of the 31256; Lands: Townland of Headford (sit- Killotteran, County Waterford formerly Townland of Monacnapa situate to the west uate on the north side of High Street in the Catherine Street, Waterford; Folio: 4340; Keating, Maureen, deceased, late of 187 side of Mangerton Terrace, Town of town of Headford); Area: 0a 1r 7p in the Lands: Townland of Bawndaw; Area: 20 Oranmore Road, Ballyfermot, Dublin 10. Blarney, in the Barony of Muskerry East, Barony of Clare; Co Galway acres 2 perches; Co Waterford Would any person having knowledge of a will County Cork; Co Cork Regd owner: Bridie Goode (deceased), Moher, Regd owner: Joseph Gerard O’Shea; Folio: executed by the above named deceased, who Regd owner: John Lynch; Folio: 26411; Ballinasloe, County Galway, 47640; Folio 8954; Co Wicklow died on 1 June 1998, please contact John Property: in the Townland of 47640; Lands: Townland of (1) Moher and Sherlock & Company, Solicitors, 4 Tower Garrynagranoge situate in the Barony of (2) Moher; Area: (1) 10a 2r 15p; 0a 0r 0p; Road, Clondalkin, Dublin 22, tel: 4570846, fax: Orrery and Kilmore and County of Cork; in the barony of Clonmacnowen; Co WILLS 4571156 Co Cork Galway Regd owner: Joseph Sheehan and Phyllis Regd owner: Chemoran Limited, 30 Lower McDermott, Isabella, deceased, late of 12 Sheehan (deceased); Folio: 8990F; Lands: Leeson Street, Dublin 2; Folio: 53950; Connell, Michael, deceased, late of Garden Village Drive, Kilpeddar, County Property in the townland of Drom South Townland of Carrowmoneash; Area: 0a 1r Castlehackett, Belclare, Tuam, Co Galway. Wicklow, and formerly of 36 Kilmacud Park, situate in the Barony of Bear and County of 20-1/2p; Co Galway Would any person having knowledge of a will Stillorgan, County Dublin. Would any person Cork; Co Cork Regd owner: Margaret O’Donoghue; Folio: executed by the above named deceased, who having knowledge of the existence of a will Regd owner: Anne-Marie and Laurence Byrne; 9094; Lands: Townland of Knockaninane died on 23 August 1998, please contact (made after 18 March 1988) executed by the Folio: 39980; Property: part of the lands of West, Barony of Magunihy; Area: two Gleeson & Kean, Solicitors, High Street, above named deceased, who died on 6 Ballymah situate in the Barony of Cork; Co roods and two perches; Co Kerry Tuam, Co Galway, tel: 093 24082, fax: 093 September 1998, please contact Margaret Cork Regd owner: Daniel McCarthy; Folio: 17329F; 24088 Behan of Behan & Company, Solicitors, Irish Regd owner: Donegal Creameries Plc (former- Lands: Townland of Urdan District of Permanent House, 12 Lower Kilmacud Road, ly Donegal Co-Operative Creameries Tralee, Co Kerry Connolly, Sarah, deceased, late of 16 Macken Stillorgan, County Dublin, tel: 2832106 Limited and prior thereto Taughboyne Co- Regd owner: Margaret Phelan; Folio: 14093; Street, Dublin. Would any person having Operative and Agricultural Dairy Society Lands: Prop 1: Carraguan, Prop 2: knowledge of an original will of the above McManus, Michael, deceased, late of Limited), Moness, St Johnston, Co Ballygowan; Area: Prop 1: 14a 2r 37p, named deceased, who died on 12 August 1988, Larkfield, Manorhamilton, Co Leitrim. Would Donegal; Folio: 8076; Lands: Moness; Prop 2: 10a 1r 20p; Co Kilkenny please contact O’Neill Regan & Co, Solicitors, any person having knowledge of a will execut- Area: 0 acres 0 roods 31.5 perches; Co Regd owner: Bridget Doherty (deceased), 12 Carysfort Avenue, Blackrock, County ed by the above named deceased, who died on Donegal Dublin, tel: 2882100, fax: 2833627 Regd owner: Moira Wade, Ardmalin, Malin Head, Co Donegal and 7 Maybrook Mews, Conry, Celia (D), late of 22 Ranelagh Road, LOST A WILL? Pennyburn, Derry, also 440 Carnhill Estate, John A. Black Dublin 6. Any solicitor having a will for the Derry; Folio: 3163F; Lands: Ardmalin; Farming Systems Specialist late Celia Conry, who died on 9 March 1998, TRY THE Area: 0 acres 1 rood 0 perches; Co Donegal (specialising in farming accidents) might please notify O’Connor & Co, REGISTRY OF WILLS Regd owner: Gordon Allen and Cora Allen of Solicitors, 196 Upper Salthill, Galway, tel: 091 SERVICE Site 297 Grangemore, Raheny, Dublin, 32 Nation-Wide 525346, fax: 091 526474, DX 4 538 Galway, Grangemore Avenue, Raheny, Dublin; 30 Years Experience Mary St. File ref: LO’C/IA 2036 Folio: 23981L; Lands: property situate to Expert Witness Evidence the west side of Grange Road in the parish Curley, Michael, deceased, late of 2 Hymany of Baldoyle and District of Kilbarrack; Co Reports - including site inspection Park, Ballinasloe, Co Galway. Would any per- Tuckey’s House, and photographs son having any knowledge of a will executed Dublin 8, Tuckey Street, Regd owner: Brian Whelan and Margaret by the above named deceased, who died on 18 Contact Phone & Fax: CORK. Whelan both of 10 Emmett Street, (0801504)265493 May 1998, please contact FM Fitzgerald & Co, Solicitors, Kiltartan House, Forster Street, Tel: +353 21 279225 Sallynoggin, Dun Laoghaire, County Mobile: (0044411) 198729 Dublin; Folio: 48827L; Lands: property Galway, tel: 091 565601, fax: 091 567488, ref- Fax: +353 21 279226 Dx No: 2534 Cork Wst known as 10 Emmet Street, situate on the erence: NF/4349

54 LAW SOCIETY GAZETTE NOVEMBER 1998 PROFESSIONAL INFORMATION

19 June 1995, please contact Michael Shiel & Co, Solicitors, 13 Upper Main Street, MISCELLANEOUS Letterkenny, Co Donegal, tel: 074 29900, fax: 074 29901 Northern Ireland agents for all contentious and non-contentious matters. Consultation in ADVERTISING RATES Moore, Kathleen, or Moore, John Joseph both Dublin if required. Fee sharing envisaged. late of 12 Blackquire Vills, Phibsboro, Dublin 7. Advertising rates in the Professional information section are as follows: Offices in Belfast, Newry and Carrickfergus. Would any person having knowledge or the Contact Norville Connolly, D&E Fisher, Lost land certificates – £30 plus 21% VAT whereabouts of the making of a will of either of • Solicitors, 8 Trevor Hill, Newry, tel: 080 Wills – £50 plus 21% VAT the above named, please contact Sherrys, • 1693 61616, fax: 080 1693 67712 Solicitors, Palmerstown Avenue, Dublin 20 • Lost title deeds – £50 plus 21% VAT • Employment miscellaneous – £6 per printed Personal injury claims, family law, criminal Morrissey, Patrick, deceased, late of Kilbeg, line plus 21% VAT (approx 4/5 words a line) law and property law in England and Wales. Kill, Co Waterford. Would any person having We have specialist departments in each of knowledge of the whereabouts of a will dated 12 All advertisements must be paid for prior to publication. Deadline for these areas, and offices in London (Wood September 1980 executed by the above named December Gazette: 20 November. For further information, contact Catherine Green and Camden) and Birmingham. One of deceased, who died on 21 July 1998, please con- Kearney or Andrea MacDermott on 01 671 0711. our staff is in Ireland for one week in every tact T Kiersey & Company, Solicitors, 17 month. Legal aid available to clients that Catherine Street, Waterford, tel: 051 874366, qualify. Contact David Levene & Company, 051 870390 Ashley House, 235-239 High Road, Wood Fee apportionment. ML White, Solicitors, 43- To whom it may concern (and in particular Green, London N22 4HF, England, tel: 0044 45 Monaghan Street, Newry, County Down, the next of kin of the above mentioned Madge 181 881 7777, fax: 0044 181 889 6395, and tel: 080 1693 68144, fax: 080 1693 60966 Diver) EMPLOYMENT The McLaren Building, 35 Dale End, Birmingham B4 7LN, tel: 0044 121 212 Seven day publican’s licence for sale. Take notice that Rose McCready of 0000, fax: 0044 121 233 1878 Further particulars: P O’Connor & Son, Derryleconnell, Doochary, County Donegal, Wanted – solicitor with minimum three years’ Solicitors, Swinford, County Mayo. Tel: 094 has lodged an application under section 49 of post-qualification experience for general prac- London solicitors will advise on UK matters 51333, Telefax: 094 51833, e-mail:pocon- the above Act to be registered as full owner tice. Excellent prospects for suitable candidate. and undertake agency work. All areas. [email protected], Ref: BD/P/W.31 3/G with an absolute title of the above mentioned Apply in writing with CV to MC Dolan & Co, Corporate/private clients. Ellis & Fairbairn, folio lands. The map may be inspected at this Solicitors, Ridge House, 1 Conyngham Road, 26 Old Brompton Road, South Kensington, Seven day publican’s licence for sale. registry. Dublin 8 London SW7 3DL, tel: 0044 171 589 0141, Apply Marren & Company, Solicitors, fax: 0044 171 225 3935 Mullingar, tel: 044 43826 All persons objecting to such registration are Solicitor seeks PQE in Dublin area. Practical hereby required to file their objections in experience and involvement considered more Agents – England and Wales. We are will- Change of address – Bohan Solicitors have writing duly verified within one calendar important than remuneration. Reply to Box No 90 ing to act as agents for Irish solicitors in civil moved to new premises. The new address is month from the date of publication of this and criminal litigation. Contact: Olliers, 16 Fitzwilliam Square, Dublin 2, tel: notice. Solicitor required for busy South Eastern prac- Solicitors, Alderman Downward House, 2/3 6779722, fax: 6779993 tice. Minimum of two years’ post-qualification The Birtles, Civic Centre, Wythenshawe, In the absence of objection or in the event of experience in conveyancing, probate and litiga- Manchester M22 5RF, tel: 0044 161 437 any objection not being sustained, registra- tion essential. Apply in writing with comprehen- 0527, fax: 0044 161 437 3225 tion will be effected. sive CV to Thomas J. Kelly and Son, Solicitors, TITLE DEEDS 35 South Street, New Ross, Co Wexford Northern Ireland solicitors. Will advise and Dated 25 September 1998 undertake NI-related matters. All areas corpo- Folio 14619 Denis Connolly, Assistant Principal, Land Solicitor – seven years’ PQE in general practice rate/private. Agency or full referral of cases County Donegal Registry and seeks position in Dublin. Preference litiga- as preferred. Consultations in Dublin or else- Registered owner: Madge Diver of tion and matrimonial work. Box No 91 where if required. Fee sharing envisaged. Boyoughter, Lettermacaward, County Donnelly Neary & Donnelly, 1 Downshire Donegal Locum solicitor required from February to Road, Newry, Co Down, tel: 080 1693 64611, In the matter of the Registration of Title September 1999, reply in writing to Ita Gray, fax: 080 1693 67000. Contact KJ Neary Act, 1964 and the application of Rose DUBLIN SOLICITORS Ernest J Cantillon & Co, Solicitors, 39 South McCready for registration as owner with Mall, Cork PRACTICE OFFERS Northern Ireland solicitors providing an an absolute title efficient and comprehensive legal service in Application No AP/DC/W7646/96 AGENCY WORK all contentious/non-contentious matters. IN NORTHERN Partnership buy-in/out sought by solici- Dublin-based consultations and elsewhere. tor of ten years’ standing with strong PI lit IRELAND background. Would also like to hear solic- itor intending sole practice with a view to * All legal work undertaken partnership. Reply in absolute confidence ENGLISH AGENTS: on an agency basis to Box No 92 * All communications to clients PREMISES TO LET Agency work undertaken through instructing solicitors 168 CAPEL STREET for Irish solicitors in * Consultations in Dublin if required Assistant solicitor (Co Galway) required for pro- both litigation and (beside bridge) Contact: Séamus Connolly bate, conveyancing and tax-related matters. non-contentious matters – Moran & Ryan, Solicitors, Experience essential. Modern office. Excellent IDEAL SOLICITORS’ OFFICE including legal aid. or Arran House, conditions. Apply Box No 93 35/36 Arran Quay, Dublin 7. BARRISTERS’ CHAMBERS Fearon & Co, Experienced solicitor required for temporary Ground Floor 380 sq. ft. Tel: (01) 8725622 position in busy Waterford City practice. Mainly Basement (storage) 350 sq. ft. Solicitors, Fax: (01) 8725404 conveyancing with some litigation work. Apply in * Adjacent to Four Courts confidence with CV and references to Box No 94 * Newly refurbished period Westminster House, E-mail: [email protected] building 12 The Broadway, Woking, or Bank Building, Hill Street Newry, County Down. Locum solicitor required for busy County * Flexible lease terms Surrey GU21 5AU. Galway office from early January, for a period Tel: 0044 1483 726272 Tel: (0801693) 65311 Rent on Application Fax: (0801693) 62096 of three to four months to cover maternity leave. Phone: (086) 232209 Fax: 0044 1483 725807 E-mail: [email protected] Experience in litigation and conveyancing essential. Apply to Box No 95

NOVEMBER 1998 LAW SOCIETY GAZETTE 55 Corporate and Public Services Solicitors Association Annual Conference Speakers Professor Ciaran O’Boyle Professor of Psychology Chaired by Royal College of Surgeons Weekend of 20 to 22 Des O’Malley, T.D. Don McAleese Partner November, John F. Daly Dunraven Arms, Matheson Ormsby Prentice 1998 Chairman, ICL Adare, Co. Limerick. Ultan Stephenson Computers Ireland Partner Topics McCann FitzGerald In association with Sonja Foley ● Stress Management Irish Business Law Financial Regulator Central Bank of Ireland ● Data Protection ñ the For details and registration, contact Securities & Exchanges Supervision new rules Suzanne Healy, NTMA, Treasury Building, Grand Canal Street, Dublin 2. John Breslin ● Banking Regulation Tel: 0 1 - 676 2266 Barrister and Lecturer in Banking Fax: 01 - 676 6582 ● Law at University College Dublin. Developments in E-mail: [email protected] Author of Banking Law in the Financial Services and Republic of Ireland

HERE THERE’S A WILL IRISH KIDNEY W ASSOCIATION Donor House, THIS IS THE WAY… 156 Pembroke Road, Ballsbridge, Dublin 4. Tel: 01 -668 9788/9 Fax: 01 - 668 3820 When a client makes a will in favour of the Society, it would be appreciated if the bequest were stated in the following words: The Irish Kidney Association was formed in 1978 to: “I give, devise and bequeath the sum of X pounds to the Irish 1. Promote the general welfare of persons suffering Cancer Society Limited to be applied by it for any of its kidney failure - financial and psychological. charitable objects, as it, at its absolute discretion, may decide.” 2. To give advice and guidance to parents and relatives. All monies received by the Society are expended within the 3. To arrange lectures, conferences and meetings Republic of Ireland. pertaining to kidney disease. “Conquer Cancer Campaign” is a Registered Business Name 4. To support research projects into the causes and effects of inherited disorders and kidney failure. and is used by the Society for some fund-raising purposes. The “Cancer Research 5. To print and distribute the Multi-Organ Donor Card Advancement Board” and actively promote public awareness of organ allocates all Research failure. Grants on behalf of the Society. REMEMBER US WHEN MAKING A WILL! 5 Northumberland Road, Dublin 4. Tel: (01) 668 1855 Certified by the Revenue Commissioners as a charity: 6327 OUR FINANCIAL ASSISTANCE IS NATIONWIDE