LAW SOCIETY

Gazette€3.75 March 2006

PULLINGPULLING TOGETHERTOGETHER Collaborative family law TIPPERARYTIPPERARY STARSTAR John Carrigan interviewed DODO YOUYOU UNDERSTAND?UNDERSTAND? The Interpretation Act 2005 STRANGE FRUIT: Schools bite the rotten apple of classroom litigation

INSIDE: VICTIM IMPACT STATEMENTS • PRACTICE DOCTOR • MEMBER SERVICES SURVEY • YOUR LETTERS

LAW SOCIETY GAZETTE CONTENTS

On the cover LAW SOCIETY Schools are on the alert, given certain recent judgments in bullying actions, which state that the standard of care Gazette required from them is that of a ‘prudent parent’ March 2006

Volume 100, number 2 Subscriptions: €57.15 REGULARS 5 News Solicitors under pressure 6 The report of the Support Services Task Force has found that the pressures on solicitors caused by ‘too heavy a workload’ is the greatest barrier to successful practice ‘Unprecedented’ costs order 7 The President of the High Court, Mr Justice Finnegan, has granted an application by the Law Society to be joined as an amicus curiae in an appeal against a ‘wasted costs’ order of the Master of the High Court 5 Viewpoint 14 Victim impact statements were initially introduced for very good reasons. A review of how the system works is overdue, argues Dara Robinson 17 Letters 41 People and places 43 Book reviews Briefing 47 47 Council report 48 Practice notes 49 Practice directions 14 50 Legislation update: acts passed in 2005 52 FirstLaw update 57 Eurlegal: EC competition law 59 Professional notices Recruitment advertising 64 Ten pages of job vacancies

Editor: Mark McDermott. Deputy editor: Garrett O’Boyle. Designer: Nuala Redmond. Editorial secretaries: Catherine Kearney, Valerie Farrell. For professional notice rates (lost land certificates, wills, title deeds, employment, miscellaneous), see page 59. Commercial advertising: Seán Ó hOisín, 10 Arran Road, Dublin 9, tel: 837 5018, fax: 884 4626, mobile: 086 811 7116, email: [email protected]. Printing: Turner’s Printing Company Ltd, Longford. Editorial board: Stuart Gilhooly (chairman), Mark McDermott (secretary), Pamela Cassidy, Tom Courtney, Eamonn Hall, Philip Joyce, Michael Kealey, Mary Keane, Patrick 41 J McGonagle, Ken Murphy, Michael V O’Mahony, William Prentice

2 www.lawsociety.ie CONTENTS MARCH 2006

Get more at lawsociety.ie HOW TO REACH US: Law Society Gazette, Blackhall Place, Dublin 7. Phone: 01 672 4828, fax: 01 672 4877, email: [email protected] Gazette readers can access back issues of the magazine as far back as Jan/Feb 1997 right up to HAVE YOU MOVED? Members of the profession should send change-of-address the current issue at lawsociety.ie. details to: IT Section, Blackhall Place, Dublin 7, or to: [email protected] Subscribers to the Gazette should send change-of-address details to: You can also check out: Gazette Office, Blackhall Place, Dublin 7, or to: [email protected] • Current news • Forthcoming events, including online booking COMMERCIAL ADVERTISING: contact Seán Ó hOisín, 10 Arran Road, Dublin 9, tel: for the annual conference 01 837 5018, fax: 884 4626, mobile: 086 811 7116, email: [email protected] • Employment opportunities • The latest CPD courses PROFESSIONAL NOTICES: send your small advert details, with payment, to: Gazette Office, Blackhall Place, Dublin 7, tel: 01 672 4828. ALL CHEQUES SHOULD BE as well as lots of other useful information. MADE PAYABLE TO LAW SOCIETY OF IRELAND.

FEATURES COVER STORY: School’s out 18 Different judgments were recently given in two school bullying cases, but both reaffirmed that the standard of care required from schools is that of ‘a prudent parent’. Murray Smith reports Pulling together 24 Collaborative family law is starting to gain ground in Ireland. Anne O’Neill gives an insider’s view of how the process works, hopefully to bring about a ‘win-win’ situation

Tipperary star 28 John Carrigan was President of the Law Society almost 24 50 years ago. Mark McDermott speaks to him about his student days in the 1930s, his career in law and his time as president

A matter of interpretation 32 Interpretation acts govern the interpretation of both primary and secondary legislation. They also play an important role in ensuring the consistency of some aspects of legislation. Brian Hunt interprets the recently enacted Interpretation Act 2005

Another time, another place 36 As part of the series celebrating 100 volumes of the Gazette, Mark McDermott dips into its pages during the years of the Great War and the 1916 Rising – and discovers a distinctly royalist tilt in Council attitudes Obituary 42 The Hon Miss Justice Mella Carroll died on 15 January 2006 – a short time after her retirement. The Hon Mr Justice Thomas A Finlay pays tribute to a remarkable life

The Law Society of Ireland can accept no responsibility for the accuracy of contributed articles or statements appearing in this magazine, and any views or opinions expressed are not necessarily those of the Law Society’s Council, save where otherwise indicated. No responsibility for loss or distress occasioned to any person acting or refraining from acting as a result of the material in this publication can be accepted by the authors, contributors, editor or publishers. The editor reserves the right to make publishing decisions on any advertisement or editorial article submitted to this magazine, and to refuse publication or to edit any editorial material as seems appropriate to him. Professional legal advice should always be sought in relation to any specific matter. Published at Blackhall Place, Dublin 7, tel: 01 672 4800, fax: 01 672 4877. Email: [email protected] Law Society website: www.lawsociety.ie 36

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NEWS MARCH 2006 nationwide

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■ CORK some work,” he adds. Taken the court to see how they can social get-together of colleagues Don’t wait nationally, this must amount to a further improve the service and in the Dublin 6 West area. Of “We should be sensible and significant waste of garda time. facilities. “It is very important course, the annual DSBA undertake CPD courses earlier The local Bagenalstown court, that those involved in the courts dinner-dance in the Four rather than later and not wait like so many local courts around meet and listen to one another Seasons Hotel was its usual sell- until the panic sets in at the end the country, fell victim to the and this is what we will be out, attended by over 400 of our of the CPD cycle,” says Sinéad rationalisation programme of the doing,” she said. colleagues and partners. Behan of the Southern Law Courts Service. But local Unfortunately, in Dun Association (SLA). Sinéad, a solicitors had not been informed ■ DUBLIN Laoghaire, local sailor and practitioner in Cork City, points before the decision was Know thy neighbour solicitor (which comes first?), out that the SLA is organising announced. If they had been Significant increases in the Justin McKenna, had to cancel, 12 lectures for 2006 and is consulted, they would have numbers of solicitors now means or at least defer, his celebrated optimistic of good attendances. identified costs to the that there are up to 3,500 annual black-tie dinner for south They will cover the usual topics, community and financial costs practitioners in Dublin alone. Dublin solicitors on 17 February, including conveyancing and that are not always apparent. Just one of the problems with probably due to our coffers District Court practice. Perhaps greater sensitivity is such numbers is the loss of being empty after the Four Colleagues should remember Seasons. Watch this space for that, apart from the CPD points, future developments. the lectures will be helpful in So, in a demanding work themselves. In a further tilt at environment, the message is still: the consumer, the lectures will ‘Get to know your colleagues all be at lunchtime … so you get socially; a solicitor’s life can be home in time for your tea! fun.’ No, really.

■ CARLOW CPD – it’s coming to a We have something to say, computer near you too… Just about everything else is on- There are serious practical line. Why not continuing downsides to rationalisation of professional development? The the courts system that are not DSBA will launch CPD online always apparent when they are Welcome to Waterford! Law Society President Michael Irvine and on 20 March. Five introductory Director General Ken Murphy recently met with the members of the being planned, according to the Waterford Law Society, including its President, Neil Breheny (centre) lectures will cover key areas of newly-elected President of the practice. Details will be posted Carlow Bar Association, John G required, as is wider consultation collegiality and simply knowing on the DSBA website. Foley. with solicitors and others one another, according to DSBA “This is a major initiative and John, who practices in directly affected. Secretary Kevin O’Higgins. should be of real and practical Bagenalstown, regrets the pass- “We’re very conscious in the benefit to practitioners,” says ing of the local court sittings, ■ CLARE DSBA of the dangers of John Glynn, DSBA council which have been incorporated On the other hand… isolationism. There is still a large member, who has worked into the Carlow sittings. The new courthouse in Ennis is proportion of sole practitioners, assiduously with former DSBA “Gardaí, probation officers and proving popular with practition- but even those in the larger firms President Orla Coyne on this others, not to mention solicitors, ers. “We are very impressed would recognise the benefits of initiative. now have to sit for many hours with the facilities now available rubbing shoulders with their While not being a CPD waiting for cases to be heard. to practitioners and other users colleagues outside of work,” he panacea for everyone, it will This is hardly a good use of of the court and we feel that we says. provide an optional alternative public funds,” he suggests. now have a court for our times,” The DSBA detects a trend for for those who, for various “Gardaí are now often seen says Mary Nolan, President of colleagues wanting to meet reasons, cannot fulfil their sitting around in court waiting the Clare Bar Association. socially. In late January, solicitors requirements by conventional from 10.30am until late Clare solicitors are also happy in Blackrock, Co Dublin, met means. G afternoon for a single case to at the recent establishment of a for an informal lunch, while come up in Carlow because that liaison committee with the DSBA council members Stuart Nationwide is compiled by Pat court is so busy. They should be Courts Service, gardaí, probation Gilhooly, Geraldine Kelly and Igoe, principal of the Dublin law out in the community doing officers and all associated with Keith Walsh organised a recent firm Patrick Igoe & Co.

www.lawsociety.ie 5 LAW SOCIETY GAZETTE NEWS

‘STEP’ FOUNDATION COURSE The Law Society of Ireland is A message from the editor pleased to announce a foundation course in Trust and elcome to the March easier to access, Estate Planning in association Wissue of the new-look •All delivered at a lower with STEP Ireland. Gazette. As flagged in the last production cost than before. The course will run from 1 edition (p19), you will see that April 2006 to 24 June 2006 on the production team has been The test of time Saturday mornings in the Law working extremely hard to I hope you enjoy the new Society. deliver a fresh new design with Gazette. It’s entirely appropriate The Foundation Certificate many novel features. that we make these changes will give those with no In an effort to bring our during the year when the experience a basic knowledge readers a better product, you magazine is celebrating the of the core areas of practice, will notice a number of production of its 100th volume. including: wills, trusts, taxation significant improvements, There are few publications in (including CAT and CGT) and including: these islands that can boast such administration of estates. •A modern, brighter, more longevity. It speaks volumes for For further details contact attractive design, Mark McDermott: “The new-style the hard work and determined the Diploma Team in the Law •Gloss-laminated cover with Gazette – bringing readers a efforts of my predecessors that School: diplomateam@ perfect binding, better product” the Gazette has survived the test lawsociety.ie •A new contents, double-page of time. It has done so by spread, allowing readers to post. These will be carefully changing and developing to RETIREMENT TRUST SCHEME view content more filtered by a team of experts take account of readership Unit prices: 1 February 2006 conveniently, working in the fields of preferences and technical Managed Fund: €5.60952 • Clearer contact details, marketing, HR/recruitment advances. All-Equity Fund: €1.28823 making it easier for readers and practice management – The members of the current Cash Fund: €2.63235 and contributors to submit with the most pertinent production team are no less Long Bond Fund: €1.36648 articles, letters and issues chosen for publication. proud of ‘their’ Gazette. I would comments, The aim is to assist you to like to thank them for sharing REINTEGRATION PROJECT • New content ideas, including better develop your practice their vision, energy and ideas The Minister for Justice, a ‘Practice Doctor’ column. by suggesting solutions to since my arrival all of five Michael McDowell TD, has I would encourage you to real or potential challenges, months ago and for their keen announced that the International contact us with ideas or • Colour-coded ‘Briefing’ and input to the new design, in Organization for Migration queries at: practicedoctor@ ‘Professional notices’ particular: Garrett O’Boyle, (IOM) will undertake a new lawsociety.ie or by ordinary sections, making these areas Nuala Redmond, Seán assisted voluntary return and ÓhOisín, Catherine Kearney, reintegration programme for Valerie Farrell and Brian non-EEA nationals. EUROPEAN LAW FIRM OF THE YEAR Johnstone and his crew at This will apply to asylum Arthur Cox has won the ‘European Law Firm of the Year’ award at Tu rner’s Printing. seekers and irregular migrants in the ‘Legal Business’ Awards 2006 in London. The award None of these advances Ireland. recognises the best international law firms, legal teams and would have been possible The new project aims to help lawyers. Among the European law firms short-listed for the award without the enthusiastic up to 300 persons to return to included White & Case and Cleary Gottlieb Steen & Hamilton. backing of director general Ken their country of origin over a Arthur Cox has also topped the PLC ‘Which Lawyer?’ survey of Murphy, deputy director period of 12 months. Irish law firms for the seventh consecutive year, leading in eleven general Mary Keane and the practice areas. Gazette Editorial Board, led by SENIOR ASSOCIATE chairman Stuart Gilhooly. Connor Manning has been It’s now over to you, our appointed as senior associate in Annual General Meeting of the readers, to tell us what you Mason Hayes & Curran's think. We look forward to corporate group. Solicitors’ Benevolent Association hearing from you in the days, Connor practices in the Notice is hereby given that the 142nd Annual General months and years ahead. No areas of mergers and Meeting of the Solicitors’ Benevolent Association less than the people we serve, acquisitions, venture capital will be held at the Law Society, Blackhall Place, Dublin 7 we are committed to investment, joint ventures, on Monday 10 April 2006 at 12.30pm continuous development, at the corporate establishments and (1) To consider the Annual Report and accounts for the year best value, and hope that the corporate finance. He is a ended 30 November 2005. new Gazette reflects well on the graduate of both University (2) To elect Directors. profession. College Dublin and University To deal with other matters appropriate to a General Meeting. Mark McDermott College Cork. Editor – Law Society Gazette

6 www.lawsociety.ie NEWS MARCH 2006 Society joined in appeal against Master’s ‘unprecedented’ costs order

he President of the High application”. In the final that it goes to the core of the TCourt, Mr Justice sentence of his 24-page decision solicitor/client relationship, I Finnegan, has granted an he said: “For solicitors, this say and believe that it is very application on 24 February decision should be a ‘wake up’ important that the jurisdictional 2006 by the Law Society to be call.” The Master also ordered basis to make such an order be joined as an amicus curiae in an that in the event of an appeal, a clarified.” appeal against a ‘wasted costs’ solicitor, who he named, should order of the Master of the High represent the interests of the Public interest Court. The Master ordered that plaintiff. In granting the Society’s a firm of solicitors, not their application, the President of the client, should be responsible for Fundamental issues High Court said that the the costs of a failed application In his affidavit grounding the Society had shown in the past for interrogatories in a personal Law Society’s application to be and continued to show “a injuries action entitled Te r ence joined as an amicus curiae in the general interest in the proper Kennedy v Killeen Corrugated appeal, President of the Law Michael Irvine: ‘It is a matter of conduct of litigation”. He said Products Limited and another. Society, Michael Irvine, said: the utmost importance for the he believed the Society, in solicitors’ profession’ In a decision issued on 2 “The Law Society takes the making the application to be February 2006, and widely view that fundamental issues are the decision of the Master has joined as an amicus curiae, was reported in the media, the raised by the decision of the created great uncertainty in this acting “not just in the interests Master described the Master as to the jurisdiction to regard, which requires of its members but also in the interrogatories application as make ‘wasted costs’ orders and clarification.” public interest”. “pointless and misconceived” as to the parameters of such a The affidavit continued: “An The joining of the Society, and said that he was making an jurisdiction. It is a matter of the additional issue of great he continued, created the order under order 99, rule 7 of utmost importance for the concern to the profession arises possibility “of achieving a clear the Rules of the Superior Courts solicitors’ profession that from the decision of the Master statement of the jurisprudence” requiring the solicitor for the solicitors know whether, and in to interfere in the and “of saving of expense and applicant “to reimburse his what circumstances, such an solicitor/client relationship by court time”. client with the costs the latter is order might be made so that appointing, of his own motion, He adjourned the matter for liable to pay the respondent and they can properly advise their another solicitor to represent mention with a view to the cancelling the solicitor’s clients and discharge their the plaintiff on any appeal. This exchange of affidavits and to the entitlement to be paid by his professional obligations in is, to my knowledge, an setting of an early date for a client for the costs of the litigation. I say and believe that unprecedented order and, given hearing of this appeal.

PERMANENT CALCUTTA RUN 2006 DRUGS COURT IT’S A DATE The Drugs Treatment Court is to become permanent. On 1 Saturday 27 May February, the Courts Service said that the initial plan would Fun run/walk at Blackhall Place be to extend the court on a Be one of the 1,500 solicitors, staff and their staged basis – citywide. The friends to help raise €250k for Goal’s orphanage court has operated on a pilot in Calcutta and Fr Peter McVerry’s projects basis for a number of years for homeless boys in Dublin and has had a positive effect on the lives of many of its participants. Eventually, the If you have not started already, you can still start at this point. court is expected to become See page 40 for March’s training programme available to all court areas in For previous training programme or a sponsorship card see our website the Dublin Metropolitan www.calcuttarun.com District.

www.lawsociety.ie 7 LAW SOCIETY GAZETTE NEWS

PROFESSIONAL STANDARDS The Minister for Justice, Malawi appeal comes Michael McDowell, has announced government approval for the establishment to Blackhall Place of a Garda Professional Standards Unit (GPSU) in An ver the past six years, Sarah can help. First, your company Garda Síochána. OMolloy has worked in the could take out an advertisement Section 24 of the Garda Children’s Court, Smithfield, in the printed race card: Síochána Act 2005 provides for for Terence Lyons & Co. Now •A full-page advert costs a the establishment of a she and her boyfriend, Jon minimum of €500, Professional Standards Unit, Norton, have volunteered to •A half-page advert costs a with responsibilities for take a year out to work for a minimum of €350. addressing performance, small English registered charity effectiveness and efficiency – Friends of Mulanje Orphans Second, sponsored races will be across all levels of policing (FOMO) – in rural Malawi. named after companies listed in activity. FOMO is a community- the race card and company Specific responsibilities for based charity with ten centres details will be listed also on the the Professional Standards Unit across the rural district of The price of maize, the back cover. The MC will not be include: Mulanje. Its aim is to provide staple diet of Malawians, has shy about giving your company • The maintenance, assistance to orphans and their gone well beyond most people’s plenty of publicity! development and promotion extended families. The centres reach. People are reduced to Sarah says: “We are appeal- of professional standards in provide day-care, including eating the husks of maize grain ing to people to support this keeping with best food (10,000 meals per week), and whatever fruit they can excellent cause. We would international practice, education and medical find. Talk is not about debt appreciate any support, • The monitoring and assistance to over 3,000 child- relief, pop concerts or sponsorship or advertisement assessment of the ren. Most children have been globalisation, but survival. you can give. Trainers, horses performance (operational, orphaned by AIDS, malaria, Sarah and Jon are returning and jockeys can be purchased administrative and hunger and a chronically-poor to Dublin in March to fundraise for €20. All winners will managerial) of the gardaí, health system. for a month. They have organ- receive prizes.” and Malawi is one of the poorest ised a race night in the Blue Anyone wishing to con- • The formulation of proposals countries in Africa where one- Room, Law Society, Blackhall tribute should contact Sarah for performance management fifth of children die before their Place, on Thursday 23 March. Molloy and Jon Norton at: and improvement. fifth birthday. There are two ways that you [email protected]. ONE TO WATCH: NEW LEGISLATION Changes in maternity and additional unpaid maternity commence adoptive leave on adoptive leave. adoptive leave leave on or after 1 March or after 1 March 2006 are • Adopting mothers or sole The Maternity Protection Acts 2006 are entitled to 12 entitled to 20 weeks’ adoptive male adopters who 1994 and 2004 and the weeks’ unpaid maternity leave. leave attracting a payment commence additional unpaid Adoptive Leave Acts 1995 and and 12 weeks’ unpaid adoptive leave on or after 1 2005 have been amended by SI 2007 adoptive leave. March 2007 will be entitled to nos 51 and 52 of 2006, in order •Women who commence • Adopting mothers or sole 16 weeks’ unpaid adoptive to bring into effect increases in maternity leave on or after male adopters who leave. maternity and adoptive leave 1 March 2007 will be entitled commence additional unpaid announced in the context of the to 26 weeks’ maternity leave adoptive leave on or after 1 Entitlement of fathers to 2006 budget. The entitlements attracting a payment and 16 March 2006 are entitled to maternity and adoptive leave in are as follows: weeks’ unpaid maternity leave. 12 weeks’ unpaid adoptive the event of the death of the •Women who commence leave. mother has also been increased. Changes to maternity leave additional unpaid maternity Starting on or after 1 March 2006 leave on or after 1 March 2007 2006, the benefits will be paid •Women who commence 2007 will be entitled to 16 • Adopting mothers or sole by the Department of Social and maternity leave on or after weeks’ unpaid maternity leave. male adopters who Family Affairs for maternity or 1 March 2006 are entitled to commence adoptive leave on adoptive leave. G 22 weeks’ maternity leave Changes to adoptive leave or after 1 March 2007 will be attracting a payment and 12 2006 entitled to 24 weeks’ adoptive Adapted from the Equality weeks’ unpaid maternity leave. • Adopting mothers or sole leave attracting a payment Authority website, www.equality.ie, •Women who commence male adopters who and 16 weeks’ unpaid with permission.

8 www.lawsociety.ie NEWS MARCH 2006 Course cloning at Blackhall Place emand for legal training waiting another 12 months for Dto become a solicitor has the next PPC,” commented dramatically increased by 83% one student. over the last three years. This Student development upturn has led to the advisor, Emma Cooper, scheduling of an additional observed: “The students are full-time Professional Practice being innovative in structuring Course (PPC), referred to as their self-learning and tutorial the winter course. preparatory work in the The curriculum, course morning, and attending content, delivery format, lectures and tutorials later on teaching hours and in the day.” examination assessment on She points out that, like its both courses mirror each other autumn counterpart, the winter in every respect. The first course is full-time, which course (autumn) is delivered requires that trainees commit from 9am to 4.30pm. The all of their time and energy second course (winter) runs allowing the library, IT and opening hours. exclusively to it. The election from 4.15pm to 10pm. study facilities to cater for “Although starting a full of enthusiastic student social The preparation has been students up to 10pm daily. The day’s lectures at 4.15pm is representatives means that immense. Thirteen additional newly-remodelled student challenging, I’m glad I’m on social activities have not been staff have been recruited, canteen has extended its the course now, rather than neglected either! Advanced advocacy training for solicitors he Law Society will once day, full-time, intensive weaknesses in their own case. solicitors who already have T again run its annual workshop from 11 to 15 The course covers direct and significant courtroom and Advanced Advocacy course this September. cross-examination of witnesses representational skills, with a year in partnership with the The workshop aspect of the and expert witnesses, opening minimum of seven years’ post- US-based National Institute for course involves case analysis, statements and summing up. qualification experience. Trial Advocacy (NITA), followed by moot trials. The The mock trials are video- Solicitors involved in civil or renowned worldwide for its NITA tutors will help recorded in a simulated criminal practice will benefit trial-skills training. participants to analyse the courtroom environment. NITA from participation in this The Advanced Advocacy particular case on two levels: tutors, supported by Irish tutors, course, which will enable them course, now in its fifth year, has first for points of law, and then assess the individual participant’s to improve and develop their two parts. Barrister Paul from the perspective of how to performance. The final trial advocacy skills. Anthony McDermott will give a present these points in the tight takes place in the Four Courts See this month’s CPD series of evening seminars in framework of the court. They in front of real High Court and brochure or contact Rachel May on the rules of evidence. analyse the other side’s strong Circuit Court judges. D’Alton in the Law School for This will be followed by a five- points and anticipate the This course is aimed at full details, tel: 01 672 4938.

SPRING CONFERENCE 2006 31 MARCH TO 2 APRIL 2006 AT LYRATH ESTATE HOTEL, DUBLIN ROAD, KILKENNY. (5* HOTEL – WWW.LYRATH.COM) Friday 31 March SYS website in due course – www.sys.ie) 20.00 - 21.30: Registration 14:00: H2O spa and other activities 21.00 - late: Welcome drinks in the bar 19.30 - 20.00: Pre-dinner drinks reception 20.00 - late: Gala dinner, band and DJ (black tie) Saturday 1 April 9.30 – 12.00: Lectures (full details of the speakers and Sunday 2 April topics to be covered will be available on the 12.00: Check out

www.lawsociety.ie 9 LAW SOCIETY GAZETTE NEWS NEWS MARCH 2006 human rights watch

Delay under the constitution and the ECHR Alma Clissmann reports on developments in relation to the practical application of the European Convention on Human Rights ost cases coming before laid down in the court’s case awarded €8,000 for non- Mthe European Court of law, in particular the pecuniary damage and €7,000 Human Rights concern delay, complexity of the case, the costs. The decision may yet be and there is a wealth of case law conduct of the applicant and referred to the Grand Chamber on the matter. Here are some of the relevant authorities, and of the European Court. The examples of established the importance of what is at proceedings are down for principles: stake for the applicant in the mention in the Circuit Court in •A state is obliged to organise litigation. March. its legal system so as to allow • Applicants are entitled to What are the options for the its courts to comply with the make use of all procedural DPP? A reference to the Grand reasonable time requirement steps relevant to them, but Chamber will cause more delay. of article 6. A principle of they should do so with If the state decides not to appeal, domestic law or practice that diligence and they must bear the DPP can either proceed with the parties to civil proceedings the consequences when such the trial (in which event his are required to take the procedural applications result decision is more than likely to be initiative with regard to the in delay. litigation were in progress. challenged) or he can enter a progress of the proceedings • All stages of legal proceedings, The European Court held nolle prosequi. In Quinn v O’Leary does not dispense the state including stages subsequent to that the period to be taken into & Ors ([2004] IEHC 103), from complying with the judgment on the merits, must consideration started in June O’Caoimh J held that the requirement to deal with cases be resolved within a reason- 1995, when his house was interests of justice required a in a reasonable time. If a state able time. The taxation of searched, which meant that the conviction obtained in violation lets proceedings continue costs procedure has to be seen proceedings had been ongoing of the applicant’s human rights beyond the reasonable time as a continuation of the for over ten years. The under the ECHR to be quashed, prescribed by article 6 without substantive litigation. sensitivity and complexity of the even though the legislation doing anything to advance criminal investigation (237 under which he was convicted them, it will be considered In July 2004, the European charges and 43 separate was constitutional. Dr Barry’s responsible for the resultant Court gave judgment in a case criminal complaints) could case is not quite the same, delay. concerning delay in civil explain the delay between 1995 because in his case it is the delay, •Time should run from when a proceedings (McMullen v and the formal charging of Dr not the charge itself, that is the person is ‘charged’. This may Ireland). In December 2005, Barry, but not the subsequent cause of the problem – but if his be as early as the date when there were two judgments in delay of eight years. The court trial goes ahead, there must be a preliminary investigations Irish cases on delay in criminal accepted that Dr Barry strong possibility that the High were opened. ‘Charge’ may be proceedings, one in Strasbourg contributed to the delay at Court or Supreme Court would defined as “the official (Barry v Ireland, 15 December various stages of the hold that the delay was excessive notification given to an 2005) and one in the High proceedings. However, the on both constitutional and individual by the competent Court (Sweetman v DPP, 20 court also held that there were ECHR grounds. authority of an allegation that December 2005). several periods of excessive he has committed a criminal delay that were partially or Sweetman v DPP offence”, a definition that also Barry v Ireland completely attributable to the The High Court granted an corresponds to the test of Dr Barry was accused by a large authorities. order of prohibition in relation whether “the situation of the number of female patients of The court found a violation of to the proposed retrial of the [suspect] has been indecent assault and his house articles 6 and 13 (right to an applicant, nearly ten years after substantially affected”. was searched in June 1995. In effective remedy) because the incident giving rise to the • The reasonableness of the October 1997, he was formally judicial review proceedings are original charges. In doing so, it length of proceedings must be charged with sexual assault. not capable of expediting a relied primarily on constitutional assessed in the light of the From then until now, various decision by the criminal courts principles and case law, referring circumstances of the case and aspects of the criminal or likely to result in a payment secondly to the McMullen case having regard to the criteria proceedings and related of compensation. Dr Barry was and the ECHR. G

www.lawsociety.ie 11 LAW SOCIETY GAZETTE NEWS FEATURE

‘Too heavy a workload’ – a solicitor’s The Support Services Task Force has delivered its report to the Law Society Council – the first step in reviewing services for Law Society members. Solicitors were asked for their views in a nationwide survey – the first of its kind. Ken Murphy reviews some of the key findings

he report of the Support barrier to successful practice TServices Task Force, overall. chaired by Olive Braiden, was The data can also be delivered to the Law Society examined in terms of the Council towards the end of last percentage of respondents who year and was summarised in named different factors as their pages 4 and 5 of the December first, second and third most 2005 Gazette. significant barriers. ‘Too heavy Central to the report was a a workload’ was named by 40% survey of the views of members of respondents as their number of the solicitors’ profession. A one obstacle – it ranked in the professional researcher, Hilary top three barriers for 72% of Clarke, BSc MPhil, was respondents. The next most commissioned to devise a significant impediments were questionnaire based on the task far behind this one in terms of force’s recommendations and importance – however, ‘work- to analyse the findings. This life balance’ and ‘keeping legal was the first time a survey of knowledge up to date’ were this nature, on this scale, was both named as the most carried out by the Law Society. important barriers for 17% of There was a 19% response respondents. rate – considerably higher than One section of the question- 10)Not making an adequate the average 10% response for naire aimed to identify the profit/earning a sufficient Gender balance this type of survey. barriers that solicitors face salary. Surprisingly, the barriers for One of the headings under within their current practice. male and female solicitors which the survey was carried Ten barriers were named and While some respondents did mirror each other very closely. out was ‘Barriers to successful the respondents were asked to not answer this question It should be noted that the practice’. The pressures on place them in order of correctly, naming one or two online data could not be solicitors caused by ‘too heavy importance. The named barriers as important and not stratified by gender, and hence a workload’ and the likely barriers were: ranking the remainder, only the postal data was associated difficulty of 1) Keeping legal knowledge up nonetheless the most important analysed, giving a total number maintaining a good ‘work/life’ to date, barriers were identified in all of 1,173. Even the work-life balance were identified as the 2) Too heavy a workload, cases. balance issue appears to hold greatest barriers to successful 3) Mistakes and their The chart (p12, top) shows the same level of importance practice. Perhaps consequences, the barriers to a successful for both male and female unsurprisingly, there was 4) Practice management practice in the order identified respondents. considerable similarity between problems (if applicable), by the respondents, with the Marginally more important responses from solicitors in all 5) Regulation (for example, most important barrier listed for male respondents are the types of legal practice, and clients making formal first (too heavy a workload) barriers of regulation, practice both male and female complaints to the Law and the least important, last management and work/life solicitors. Society), (regulation). ‘Too heavy a balance. For female The survey also recorded 6) Problems with relationships workload’ was the mean most respondents, profit was more assistant solicitors as the most with clients/colleagues/ important barrier named by commonly considered a barrier disillusioned group in the superiors, respondents. The next biggest to successful practice, as were profession. Among those 7) Personal problems (such as obstructions included work-life the difficulties of keeping legal members who would like to general health or stress balance, keeping legal knowledge up to date and ‘too change their practice situation, problems), knowledge up to date, mistakes heavy a workload’. the majority would prefer to 8) Disillusionment with and their consequences, and Keeping legal knowledge up move to a firm of two to five practice, practice management to date was considered quite a partners, or, alternatively, 9) Not achieving a good problems. ‘Regulation’ was significant barrier to successful outside private practice. work/life balance, and seen as the least important practice by all groups. The

12 www.lawsociety.ie NEWS FEATURE MARCH 2006 greatest barrier to successful practice

group that considered it of least 10 importance were the solicitors Biggest barriers to successful practice in large firms. Those who found it most important were 8 (rated out of 10) solicitors outside private 7.15 practice. All groups considered having 6 5.56 5.69 a heavy workload of great 5.45 5.35 consequence – it was named as 4.40 the mean most important 4 4.00 3.99 3.22 barrier to solicitors in all kinds 2.75 of practice. Bearing in mind that all responses were fairly 2 similar, the group that identified it as the most common problem were those in 0

large practices of six or more PROFIT CLIENTS PRACTICE MISTAKES PERSONAL WORK/LIFE

solicitors. The group that WORKLOAD REGULATION KNOWLEDGE identified it as of least MANAGEMENT

significance were sole DISILLUSIONMENT practitioners. Importance of barrier (1 = least important, 10 = most important) BARRIERS Mistakes Assistant solicitors named mistakes as being a more partners were more likely to average importance to all solicitors considered it more significant barrier to successful rate it as a considerable barrier groups. When comparing this important than the other practice than the other groups. than were other groups, chart with the figures below groups, and those in firms of Solicitors outside private particularly sole practitioners. regarding the ideal practice two to five, and six or more practice considered it less Personal problems were not situation, it is noteworthy that partners, considered it less important than others. considered a great barrier to the majority of solicitors who important. Partners in larger firms private practice, though those would change their situation named practice management as in large firms of six or more would indeed prefer to work in Summary a barrier to successful practice partners considered it of higher firms of two to five partners or In summary, solicitors in the more often than other groups, significance. Sole principals and outside private practice. different kinds of practice while assistant solicitors solicitors in firms of two to five Issues with work/life balance named the barriers to successful considered it less important. partners named this as a less were considered important for practice as of similar Regulation, in the sense that weighty barrier than the other all groups, but more so for significance. The barrier that it was explained in the question groups. those inside larger firms of six differed most between the (‘Regulation, for example, clients or more partners. Those in various groups concerned making formal complaints to the Ideal practice firms of two to five partners ‘relationships with clients’ – Law Society’) was not The most disillusioned group rated this as a less important sole practitioners found it less considered very important by were the assistant solicitors and barrier than the other groups. important than those outside the groups in general, but was the least were those working The groups differed in terms private practice or those in regarded as more weighty by outside of private practice and of how important profit was as larger firms. sole practitioners and sole in small firms – although this a barrier to successful practice. Profit and regulation as principals. was considered only a barrier of Sole practitioners and assistant barriers to successful practice were also different for the Client relationships different groups. These were ‘Problems with client Top three barriers more important to sole relationships as a hindrance to (percentage of respondents (%) practitioners and those outside successful practice’ was private practice respectively. It considered differentially Legal knowledge 43.8 is noteworthy that work/life important by the different Workload 72.2 balance was rated as an equally groups. Those outside of important issue, both by sole private practice and those in Work/life 47.5 practitioners and by assistant larger firms of six or more solicitors.

www.lawsociety.ie 13 LAW SOCIETY GAZETTE VIEWPOINT Hearing the voice of Introduced for very good reasons, victim impact statements have been used with little real consistency or control. A review of how the system works is overdue, argues Dara Robinson

n the aftermath of the recent these circumstances. But should IWayne O’Donoghue trial at they be taken into account in the the Central Criminal Court, proper measuring of the penalty there has been much public by a legally qualified judge? debate about victim impact Who is to say that those passing reports, previously a relatively sentence remain unaffected by obscure feature of the criminal such considerations, when justice system. That discourse forcefully expressed by a victim has tended to generate as much of crime? Further in this regard, heat as light, at least in the lay oral evidence by the victim tends community, but discussion of to be without advance notice to this issue has been well overdue, the defence, contrary to the both in the legal profession and normal practice in criminal in the community as a whole. trials, thus making it doubly The concept of the victim difficult to prepare for – and, if Majella Holohan: Her impassioned delivery may unwittingly have made impact report, or statement, an important contribution to our criminal justice system appropriate, challenge – the derived from a perception in the forthcoming evidence. 1980s that victims in rape cases The act was silent as to how as the Circuit Court began to Defence practitioners, of were being reduced to bit the experience of the victim, and appreciate that the act whom the writer is one, have players in the criminal justice the effects of the offence, might contemplated a statement in any been becoming increasingly system. Often personally be conveyed to the court, offence involving personal uneasy about the format and devastated by the offence, they although s5(3) made provision violence (assault), the tendency content of such reports and nevertheless, for perfectly for the “evidence” of the victim. to have a victim present a report statements. In those correct legal reasons, found The system of reporting, as through the lens of a circumstances, the torrent of themselves limited in their originally operated (if not professional (usually a criticism unleashed upon the evidence to a bald recital of the envisaged), was by way of a psychiatrist) began to evaporate. system of criminal justice by the facts of their complaint, and psychiatric assessment of the This may well have been devastated bereaved Ms even that tended to be subject to victim. This had the dual benefit because demand outstripped Holohan, mother of the hostile cross-examination. of reporting the trauma felt by supply, but for whatever reason, deceased in the O’Donoghue case, the victim (and that could a tendency began to emerge, in may paradoxically be a matter of New mandate include the trial process itself, if the Dublin courts at least, for good timing and, in the long That clearly unsatisfactory the accused had pleaded not gardaí or victims to prepare their term, a helpful intervention. In position was remedied, at least guilty and been convicted), but own impact statements. such an extreme case, where in theory, by the provisions of seen through a professional Without wishing to denigrate aspersions have been cast on the the Criminal Justice Act 1993, s5. ‘filter’. These reports often any individual case, the potential integrity of the prosecution and This made allowance for the provided a devastating insight for misuse appears obvious. Put upon the value of the trial voice of the victim to be heard, into the effect of the offence on bluntly, defendants and their process as a seeker of truth, it is post-conviction only, by way of the victim, furnishing exactly representatives were being easy to say that the boundary has an entirely new mandate to the what was envisaged by the act, placed in a very difficult been overstepped. But where court of trial. absent in the past, and which position, where victims were should it lie? Section 5 states: “In spelled out to the court just what making assertions about the determining the sentence to be had been visited upon the effect of the crime on their lives Third parties imposed on a person for an complainant by the accused in that could only be challenged at There are two major offence [of violence or sexual the course of the commission of the risk of being accused of theoretical difficulties that have violence], a court shall take into the crime and what adding insult to injury. In the arisen from the post-conviction account, and may, where consequences they had suffered. absence of the filter of a statements of Ms Holohan. necessary, receive evidence or professional opinion, victims The first of these is that, submissions concerning, any Supply and demand could be afforded free rein to strictly, the act only provides effect (whether long-term or So far, so relatively make complaints about how they for a statement to be made by otherwise) of the offence on the uncontroversial. But as the had been affected. Emotion, the victim of the crime and not person in respect of whom the demand grew for the provision vindictiveness, and a desire for by any third party, even one as offence was committed.” of such reports, and particularly vengeance are understandable in closely affected as a bereaved

14 www.lawsociety.ie VIEWPOINT MARCH 2006 the silent victim

parent. Whether the act should The second issue relates to critical pre-sentence tool. Might indicate that, since the victim be so limited is a subject of the content of the report and its it be proper, or perhaps better, impact report has moved to proper, informed debate. The presentation. The act implicitly, for the victim to be legally centre stage of the debate, why obvious problem is, if third if not explicitly, envisaged the represented at this stage? For not discuss thoroughly where parties become entitled to be reporting of both physical and that matter, is there not an this rather anomalous provision heard, how to limit the psychological effects of the argument for legal should be going? categories of person? It is offence. It may be time, more representation for the victim The voice of the victim long notable that anecdotal than a decade on, to review both throughout? It is certainly went unheard by the courts. evidence, reported in the print the format and content of such worthy of debate – and is There has been no real media, suggests that since this statements, as well as already provided for in certain, consistency or control in the controversy has arisen, judges considering how to present the admittedly limited, presentation of that voice. After are applying the law more material. This is so all the more circumstances. Although the more than a decade of patchy strictly and correctly. In one of because the act originally DPP has undertaken to maintain operation, a review of how the his last cases as a judge in the envisaged a first person a flow of information about the system works is overdue. If that Circuit Court, in Waterford, presentation by the victim, and trial process for complainants, review is to emerge as a result of Judge Kevin Haugh ruled out considerations of sensitivity, that is clearly no substitute for the impassioned delivery of Ms taking victim impact evidence among others, may have one’s own lawyer. Many of the Holohan, then she may well from a relative of a deceased determined that best practice traditional complaints about the unwittingly have made an victim on this basis. Having was via a psychiatrist. But it is system, which led to the idea of important contribution to the said that, it would be ironic if not unknown for the the victim impact statement in operation of our system of the law operated so that no prosecuting garda – hostile to the first place, might evaporate criminal justice. G evidence could be heard of the the interests of the accused – to if such a step were taken. This is effect on the bereaved in any prepare reports, in the full not to argue either for or against Dara Robinson is a solicitor with case of unlawful killing. knowledge that they are a the proposition, merely to Garrett Sheehan & Company.

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Send your letters to: Law Society Gazette, Blackhall Place, Dublin 7, or email: [email protected] CIRCULAR ARGUMENT LEAVES DAVID IN A TIZZY! From: David Alexander, number of further requests and follows, therefore, that if it Rutherfords, Dublin 2 observations. does not receive a reply to e received this morning Taking, however, the first the letter, it still does not Wfrom First Active plc one paragraph of the letter: know whether the of its securities department’s 1) If the recipient receives the undertaking has been ‘standard’ letters, sent letter and does not reply to discharged, something which ostensibly to assist the company it, the letter has, from First would only have happened if in monitoring the whereabouts Active’s perspective, been the relevant title deeds had of title deeds and other items ignored. Has it, however, been forwarded by the held, or to be held, as security. been ignored because the solicitor to First Active. The first paragraph of the relevant undertaking was 3) It in turn follows that First letter reads: “As part of our previously discharged or, Active does not know deeds/security tracking alternately, was it ignored for whether, in fact, it ever procedure, we note that the a less worthy reason? received the title deeds but, if above borrower obtained a 2) First Active, in sending the it did, it does not now know mortgage from First Active on Confused? Us too letter in the first place, where the title deeds are. the above date. If you have appears to recognise that it already received a discharge of letter and we apologise for the may not know whether, in All part, as stated, of a your undertaking for this administration error.” fact, it discharged the “deeds/security tracking transaction, please ignore this The letter continues with a relevant undertaking. It procedure”! LIVING IN A STATUTORY LIMBO From: Julian Deale, Julian Deale It is a disgrace to the Law were conferred without any members who are, after all, & Co, Solicitors, Society and to the legislature statutory instrument setting out providing an extremely in-depth Monkstown, Co Dublin that solicitors are left in such an the procedure in regard to service to the public. While t is coming close to 12 years exposed position without any natural justice; the there have been one or two Isince the Solicitors (Amend- statutory basis for imposing entertainment or otherwise of instances of solicitors ment) Act 1994 became law. sanctions, which seem to be clearly vexatious complaints; overstepping the mark in Among its provisions, inter done, to use a colloquialism, on and, most of all, no criteria for financial terms in terms of alia, was a widening of the the hoof. It could not be done dealing with and addressing the tribunal monies, or so I am led powers of the Law Society to any other way, as there are no large sums of money a solicitor to believe from the public press, investigate the conduct of regulations. frequently has to expend in I do not know whether those solicitors in regard to their I note, with interest, the zeal terms of time and disbursements complaints by the public have financial relationship with their with which the legislature is in dealing with what are any veracity. I suspect a number clients and indeed to entertain beefing up, if I may use a patently frivolous complaints. of those complaints have been any other kind of complaints. metaphor, the powers to be That is inherently unjust and generated by clients of solicitors The sanctions imposed by the conferred on the Law Society, unfair, and I am surprised that jumping on the bandwagon that legislature and the conferring of when it has not even regularised my professional body behaves in seems to be the order of the day, those powers by the legislature the initial tranche of powers that such a cavalier way towards its that is, that all solicitors are in on the Law Society have never some way underhand, devious been rendered into statutory and dishonest. form. There is no procedure set AND NOW WE’RE SOLID, The Law Society’s rights to out to protect solicitors from discipline solicitors for breaches frivolous and vexatious SOLID AS A ROCK of the provisions set out in the complaints and there is no From: Anthony F Sheil, Sheil, Dublin 7 1994 act are not statutory. It is a procedure to dictate how natural n perusal of the title to our offices in Dublin 7, we note with disgrace, and I believe it is justice should operate in regard Ointerest a covenant in the head lease: “The plumbing facilities something that should be to any penalty imposed upon a shall not be used for any other purpose for which they are con- rectified as a matter of urgency solicitor for a dilatory attitude in structed and no solid matter of any kind shall be allowed therein.” before the legislature seeks to regard to any matter. impose further impediments.

www.lawsociety.ie 17 LAW SOCIETY GAZETTE COVER STORY

SCHOOL’S

OUTA couple of recent judgments in bullying actions have emphasised that the standard of care required from schools is that of a ‘prudent parent’. Murray Smith goes to the head of the class

udgments were recently given in two school that she had been bullied since the previous October bullying cases where the plaintiff students and that numerous complaints had been made to the alleged negligence by the defendant schools. school, but the school had been negligent in The first case was in the Supreme Court, refusing to monitor the conduct of the pupils. JKenneth Murphy v County Wexford VEC The evidence supporting the plaintiff’s claim was ([2004] 4 IR 202), and that judgment was applied by mostly from herself and her mother, who claimed to the High Court in the second case, Wayne Maher (a have made a number of complaints about Nicola minor) v The Board and Management of Presentation being beaten up in the schoolyard. In November Junior School, Mullingar ([2004] 4 IR 211). Though 1997, an incident took place when her tracksuit both reached different judgments, due to different trousers were pulled down. Her mother reported facts, both reaffirmed that the standard of care this to Sister Gemma, the class teacher, who required from the school was that of a ‘prudent appeared to have resolved the matter. parent’. In December, on the last day of term, Mrs In reaching their judgments, each court took into Mulvey complained to Mrs Mularkey, the principal, account the relevant school’s level of awareness of about Nicola being bullied that term. As Mrs bullying – first, in terms of general awareness and, Mularkey was going to retire, she referred the second, in terms of particular awareness of incidents matter to her successor, Mrs Sweeney, who took up that took place there, an important factor in Murphy. her duties the next term. In January 1998, Mr and Mrs Mulvey met Mrs Sweeney, who said that she Standard of care would take more measures to monitor the While the Murphy and Maher cases do not mention schoolyard. At a later meeting, it was agreed that if it, an earlier High Court case dealt with the Mrs Mulvey had any further complaints, she should MAIN POINTS question of negligence and also upheld the existing go directly to Mrs Sweeney. • Recent school standard of care: Nicola Mulvey (a minor suing by her On 3 February, Mrs Mulvey said that she went to bullying cases mother and next friend Margaret Mulvey) v Martin the classroom where Nicola was sitting, asked Sister • Alleged McDonagh ([2004] 1 IR 497). Gemma for permission to address the class, and negligence of The plaintiff took a case against her school, berated them for their treatment of Nicola, schools claiming damages for personal injuries due to an threatening to “kick them up the backside” if they • ‘Prudent parent’ assault by a fellow pupil or pupils while attending did not stop. Mrs Sweeney came into the classroom standard of care the school on the last day of her first year, in June towards the end of this address. 1998, when she was four years of age. She alleged There were no more communications from

18 www.lawsociety.ie COVER STORY MARCH 2006 PIC: IMAGE SOURCE/REX FEATURES

www.lawsociety.ie 19 LAW SOCIETY GAZETTE COVER STORY

Nicola’s parents until 25 June, the last day of term, was, he said, in a number of incidents, “a direct though Mrs Mulvey claimed that Nicola was still contradiction” between the plaintiff’s and the being bullied. That day, Mrs Mulvey claimed that defendant’s evidence. He preferred the latter, because Nicola had been beaten up and kicked by a number of his opportunity of “watching the witnesses in of people in the schoolyard. She was taken to court, of seeing them give evidence and of watching Crumlin Hospital, her mother claiming that she their reactions in the witness box under cross- “was covered in bruises and that she had been examination. I have also taken the opportunity of covered in bruises for some considerable length of visiting the school yard and I am satisfied that it is an time prior to this date”. open yard, not very large, in which any adult would The plaintiff gave evidence, which the judge, have no difficulty in observing incidents as described Johnson J, hinted might be, in his opinion, the by the plaintiff taking place.” result of coaching by her mother, because it “agreed The evidence given by the defendant, which in almost every word with the evidence of the next neither of the expert witnesses “had an opportunity friend [her mother] and, despite the fact that she of seeing” was “extremely convincing and I am was now ten, appeared to have an extraordinarily satisfied that the defendant and each of the school’s good recollection of what took place when she was witnesses were responsible, caring, alert, concerned four years of age”. and truthful people”. Two expert witnesses supported the evidence of In terms of case law, the judge followed previous the plaintiff and her mother. The problem about precedents that the degree of care to be taken in this evidence, in the eyes of the judge, was that the case – which was accepted by both sides – was “they only heard the plaintiff and the next friend that of “a prudent parent exercising reasonable care [her mother] and did not have an opportunity of and I accept that that must be taken in the context witnessing the witnesses for the defence or the of a prudent parent behaving responsibly with a manner in which they gave evidence”. class of 28 four-year-olds having their first The paediatrician who dealt with the plaintiff experience of mingling socially with other when she was brought to the hospital gave evidence children”. which, despite the plaintiff’s statement of claim, He was satisfied that this care was taken. In any said: “…there was no damage to the spleen and no disputes over the facts, the judge was satisfied, rupture of the spleen” and “there was no bruising “having had the opportunity of watching both of whatsoever on any part of the plaintiff’s body”. The them and listening to them, that the defendant’s judge said that it was “very necessary” to note the version of the evidence of what took place is far evidence regarding the bruising. more reliable and acceptable and so I find”. Johnson J ruled in favour of the school. There This, he felt, was borne out by the medical evidence, which showed that there was no bruising. The judge also held that he accepted and adopted the definition of bullying given in the Department ALMA MATER of Education’s 1993 anti-bullying guidelines (see A school is liable in negligence towards its students and their parents or guardians panel p23). under the neighbour principle – outlined in the famous Scottish case of Donoghue v Stevenson ([1932] AC 562) – having a duty of care towards those students Dangerous behaviour regarding reasonably foreseeable injuries happening to them. The particular The Murphy case involved a fifth-year pupil who standard of care imposed by the courts on schools is that of a ‘prudent parent’, was with his class in the resource area at lunchtime. first developed in the English case Williams v Eady (10 TLR [1893-94] 41). There were about 50 students present. One pupil There, the Court of Appeal heard a case by a schoolboy against a schoolmaster, arrived with a packet of chocolate bars, which he alleging negligence for an injury after the teacher left a bottle containing a stick of offered to everyone. The bag burst and the bars phosphorus in a conservatory to which the boys had access. The judge in the began to be thrown around. The plaintiff was struck court of first instance directed the jury: “…that if a man keeps dangerous things, in the eye by one of the bars and was seriously he must keep them safely, and take such precautions as a prudent man would injured. A High Court judge awarded him €50,000 take, and to leave such things about in the way of boys would not be reasonable for personal injuries, which was appealed to the care”. Supreme Court. The jury then found for the plaintiff. The schoolmaster unsuccessfully appealed That court rejected the appeal by a two-to-one the decision to the Court of Appeal. The judgment of that court held that “it was majority. McCracken J gave the judgment of the correctly laid down by the learned judge that the schoolmaster was bound to take majority. He said that both sides accepted the duty such care of his boys as a careful father would take of his boys, and there could of care as set out by the Supreme Court in Lennon v not be a better definition of the duty of a schoolmaster. Then he was bound to McCarthy and followed by the High Court in Flesk v take notice of the ordinary nature of young boys, their tendency to do mischievous King (unreported, High Court, Laffoy J, 29 October acts, and their propensity to meddle with anything that came in their way.” 1996), where that judge said “the law does not This standard of care regarding schools was later accepted by the Irish require children in the school playground to be Supreme Court in the case of Lennon v McCarthy (unreported, 13 July 1966). under constant supervision and watched at every instance”.

20 www.lawsociety.ie COVER STORY MARCH 2006 PIC: IMAGE SOURCE/REX FEATURES

McCracken J went on to say: “Quite clearly, supervision at lunch time in accordance with its rota school authorities are not insurers of the pupils system and that the failure to do so constituted under their care. However, they do owe a duty to negligence on the part of the defendant.” those pupils to take reasonable care to ensure that the pupils do not suffer injury. To do this, some Behind teacher’s back degree of supervision is clearly required. The extent The Murphy judgment was followed by Mr Justice of such supervision will depend on a number of Michael Peart in the High Court case of Maher. In factors, for example, the age of the pupils involved, that case, the plaintiff, a boy of six, was severely the location of the places where the pupils injured in his right eye when, in a classroom of the congregate, the number of pupils which may be “For a breach defendant’s school, another boy of the same age present at any one time and the general propensity of duty of care sitting at a table opposite to him used a rubber band of pupils at that particular school to act to fire a pencil at him when the teacher had her dangerously.” to occur, there back turned. The judge found relevant evidence that, in the must exist in The judge concluded that the class was “a normal defendant’s school, “there had been serious class of six-year-olds and that there is no evidence disciplinary problems, following which the addition to the that there was any particular or unusual or special defendant considered it necessary to ensure that a relationship of difficulty as far as the known behaviour of these teacher was present in certain specific areas”, children is concerned. I am sure that they were no including where the present incident took place, proximity, the better and no worse than any other group. I am also during lunch hour. These problems had led to the requirement of satisfied that from the evidence which I have heard expulsion of 20 pupils and, following the that it was entirely appropriate that one teacher introduction of the rota system, “the supervision forseeability” should be in charge of this class.” was reasonable and that, for some unexplained He then looked at what McCracken J had said in reason, the rota system did not operate on the day Maher, particularly in paragraph 27. In applying in question and there was no supervision”. this, the judge said that “…for a breach of duty of In the light of this, the judge concluded: “I am of care to occur, there must exist in addition to the the view that the particular circumstances of this relationship of proximity (which clearly exists in the case and the history of indiscipline in the school case of a school and pupil) the requirement of imposed a duty of care on the defendant to provide forseeability”.

www.lawsociety.ie 21 FRIARYLAW & ADR GROUP – MEDIATION AND DISPUTE RESOLUTION IN IRELAND FORTHCOMING PROGRAMMES Civil and Commercial Mediation Programme: 22-25 March, Venue: Dublin Civil and Commercial Mediation Programme: 24-27 May, Venue: Limerick • On April 1st 2005 Friarylaw was appointed by the ADR (Alternative Dispute Resolution) has brought about a remarkable Minister and Department of Justice as a nominat- change in the solving of civil and commercial disputes worldwide. The latest ing body under section 15 of the Civil Liability and statistics available from the US reveal the extraordinary impact of ADR, Courts Act, 2004. where civil and commercial litigation in the public fora of the courts is at a • ADR Group was the first mediation trainer and forty year low; similar trends are now emerging in the UK. service provider in the EU to receive ISO9002 As a result of the lessons learned in both the US and the UK, Irish civil and accreditation commercial society is embracing new and innovative forms of dispute reso- • The training course satisfies 35 hours of the Law lution. Recent legislative change at national (Civil Liability and Courts Act, Society of Ireland’s CPD requirements. 2004 & Statutory Instrument S.I. No. 2 of 2004 Superior Court Rules regard- • Areas of application include: General Civil and ing Commercial Proceedings) and at EU level (pending EU Mediation Commercial, Personal Injury and Clinical Negligence, Directive 2007) underpin the emergence of Mediation as an essential tool Employment, Construction and Engineering, Banking in the fast and efficient resolution of civil and commercial disputes. and Financial Services, Insurance, Professional Sophisticated clients are increasingly aware of the benefits of mediation; Accounting and Related Services Disputes, namely, a speedier and more cost efficient method of dispute resolution. Environmental Disputes, Family and Matrimonial. Friarylaw & ADR Group provide the most comprehensive Mediation training and formal accreditation process available in this jurisdiction. We adminis- The course will be presented by ADR Group, ter a structured pupillage programme for our accredited mediators. Friaylaw Oliver J Connolly BL FCIArb and the Friarylaw team. & ADR Group are committed to the development of the mediation practices If you require any further information please call of their mediation panel members both here and in the UK. the Friary at tel 8728405, email at admin@the friary.ie or visit the website at www.friarylaw.ie Training as a mediator with Friarylaw & ADR Group will: • Enhance your professional skill set • Obtain Mediator Accreditation Friary Chambers, The Friary, Bow Street, Dublin 7. • Develop a Mediation Practice Tel: 01 872 8405. Fax: 01 872 8409 Email: [email protected]. Web: www.friarylaw.ie COVER STORY MARCH 2006

In the present case it means that “before the defendant can be liable, the court would have to be GRIM FACTS satisfied that it is reasonable that Ms Shaw [the According to the Department of Education’s 1993 Guidelines on Countering teacher] should be expected to anticipate that the Bullying Behaviour in Primary and Post-Primary Schools: moment she turned her back (not literally) on the • Bullying is repeated aggression – verbal, psychological or physical – conducted class in order to have a very short conversation with by an individual or group against others. Ms Fitzsimons at the door of the classroom, it was • Isolated incidents of aggressive behaviour, which should not be condoned, can probable or likely that some behaviour would occur scarcely be described as bullying. However, when the behaviour is systematic which would cause injury to one or more of the and ongoing, it is bullying. pupils in her charge”. Peart J made the observation that: “There can of course be situations in any school where the school Subsection 3 says that this code of behaviour shall is well aware of potential dangers, where for be prepared in accordance with such guidelines as example there has been a history of disruptive and may (following consultation by the National even violent behaviour on the part of a pupil or a Educational Welfare Board with national group of pupils. Bullying would be a case in point. associations of parents, recognised school The duty of care of the school in such circumstances management organisations, and trade unions and would extend to taking appropriate account of these staff associations representing teachers) be issued by known circumstances when deciding on the the board. appropriate level of supervision in the school, Subsection 4 says that the principal of a particularly during break and recreation periods recognised school shall, before registering a child as when pupils are outside the more controlled a student at the school under section 20 of the act, environment of the classroom.” provide the parents with a copy of the code of Again confirming that the standard of care behaviour, and may, as a condition of registering the required in school was that of a prudent parent, he child, “require his or her parents to confirm in explained that this meant: “The school is expected writing that the code of behaviour so provided is to be no more and no less vigilant of those in its acceptable to them and that they shall make all care than a prudent parent would be in his or her reasonable efforts to ensure compliance with such own home. In any normal child, if there be such a code by the child”. creature, there is always a certain propensity for Under subsection 5, a principal shall also, on a horseplay and high spirits. Indeed, if it were not so, request made by a student registered at that school there might be some cause for concern.” or by such a student’s parent, provide the student In the particular circumstances of the case, the or parent with a copy of the school’s code of judge held that the school was not guilty of behaviour. negligence and that the student’s claim failed. Raising the standard Living by the code While the code of behaviour does not mention the In these three cases, the incidents complained of all word ‘bullying’, the specified provisions (particularly took place in the late 1990s. A court dealing with section 23(2)(a) and (b)) set out the standards of more recent incidents might take account of newer behaviour expected of students and the measures to developments, including the obligations of section be taken when a student fails or refuses to observe 23 of the Education (Welfare) Act 2000, which obliges those standards. These implicitly include the schools to have a code of behaviour. prohibition of bullying and how to deal with it Section 23(1) says that a school’s board of when it occurs. The Department of Education’s management should prepare such a code after 1993 anti-bullying guidelines are an invaluable aid consultation with the principal, teachers, parents, to schools in drawing up such a code. and the educational welfare officer who is assigned Looking at these cases, it is evident that the functions in relation to that school. courts have upheld the ‘prudent parent’ standard of In terms of what this code needs to contain, care. The difference is that, from the facts of the subsection 2 says that it shall specify: cases, certain schools were found to have kept to a) The standards of behaviour that shall be observed this standard – others not. Also, the courts have by each student attending the school, taken into account the school’s level of awareness of b) The measures that may be taken when a student bullying, first, in terms of general awareness fails or refuses to observe those standards, (including awareness of the department’s 1993 c) The procedures to be followed before a student guidelines) and, second, in terms of particular may be suspended or expelled from the school, awareness of incidents that took place at the d) The grounds for removing a suspension imposed particular school – an important factor in the in relation to a student, and decision in Murphy. G e) The procedures to be followed relating to notification of a child’s absence from school. Murray Smith is a Dublin-based barrister.

www.lawsociety.ie 23 LAW SOCIETY GAZETTE FAMILY LAW PULLING Collaborative family law is a relatively new process of dispute resolution in Ireland. Anne O’Neill gives an insider’s view of how the process works to bring about a ‘win-win’ solution for those involved in relationship break-up

ollaborative family law is a relatively meet to discuss problems that might arise for their new process of dispute resolution on clients – to address so-called ‘hot spots’. With that these shores. It’s a problem-solving in mind, the agenda for the ‘four-way meeting’ is approach where people affected by carefully crafted. Crelationship break-up work towards The four-way meeting is the highlight of each solving their legitimate needs, rather than taking up stage, where all parties, including the two clients and irreconcilable positions. The aim is a ‘win-win’ their solicitors, come together to try to work out solution for both. final solutions. The agenda endeavours to ensure a Each spouse retains a solicitor so that both can measure of success at each four-way meeting, thus receive independent advice that will help them to building confidence in the process. Each solicitor negotiate an outcome that they consider to be fair and client then meet to prepare for the meeting, and acceptable. In reaching an agreeable solution, during which the setting of the agenda is all- clients and solicitors must agree to work together important. respectfully, honestly and in good faith. This A core contract document, the ‘participation problem-solving approach necessarily involves full agreement’, underpins the collaborative process and and mutual disclosure of all assets. is signed by both parties and their solicitors. The In the June 2005 Gazette (pp24-25), Cork solicitor agreement sets out the principles of collaboration and well-known family practitioner, Rosemary and is a useful referral for everyone. Crucially, it sets Horgan, gave an overview of the collaborative out a core principle that, should the process fail, the approach. Since then, those of us who attended solicitors collaborating cannot then go to litigation training in UCC’s Glucksman Theatre went on to and the parties must find new lawyers. Solicitors form a ‘documents committee’. Our task was to draft hate to lose clients, so this provides a wonderful the core documentation grounding this new process incentive to make the process work. and, from there, to form the first Association of For the clients, the incentive is their investment Collaborative Practitioners (ACP). The association of themselves and their time in the process – which was officially launched in Cork’s Clarion Hotel in ensures their commitment. Each solicitor will test July 2005. At all stages, the process has had the full the client’s commitment through preparatory support and backing of the Southern Law groundwork carried out before the first four-way Association (SLA). meeting. It has been quite a voyage and we are still sailing. This consists of carefully identifying the reasons Those of us who formed the documents committee why the client wants to collaborate, thoroughly learned that a group of solicitors could work explaining the process, and securing the agreement together in harmony, week in and week out, and that of the client to interest-based rather than position- we could draft, redraft and refine documents without based bargaining. any rows or walkouts. MAIN POINTS Menu of options •Problem-solving Hot spots Collaboration is offered to clients as one choice on a approach This augured well for the success of collaboration, a menu of options to resolve their family issues. It is •Four-way process that works on face-to-face meetings rather never sold to the client but is rather held out as meetings than through paperwork. It involves lawyer-to- something to which they might aspire. This • Participation lawyer and lawyer-to-client meetings, after which generally puts the client in the right frame of mind agreement clients and lawyers meet together around a table. to contemplate collaboration. Meetings are carefully choreographed. The solicitors Clients who are contemplating collaboration are

24 www.lawsociety.ie FAMILY LAW MARCH 2006 together

often worried about what protection they will have down, so a party negotiating in bad faith will have it within the process. A full exchange of affidavits of follow them. Also, an accountant can be involved in discovery and/or affidavits of means is undertaken at the collaboration process as part of the team if a very early stage. Vouching documentation can then necessary – either to advise on some aspect of the be sought or inspected. Accountants can be spoken finances, tax issues, or even how best to deal with to if necessary, or further documentation sought. financial planning after separation. Because experienced family lawyers are presiding From a professional point of view, the experience over the process – unlike in mediation – a rigorous in America – where collaboration has been longest examination of the finances can be undertaken. Each established – is that collaborating lawyers do not get party has the benefit of their own lawyer at the sued for malpractice. Professionals in the USA and table. Any suspicion of bad faith will automatically England are also advising that their earnings since lead to a termination of the process. The exchange adopting collaboration as a model are at least equal of sworn affidavits is also done on the basis that to, if not better than, their previous family-law these documents survive the process should it break returns. It is hard to say why this might be the case,

www.lawsociety.ie 25 AIB Mortgage Bank

Transfer of Home Mortgage Business from Allied Irish Banks, p.l.c. to AIB Mortgage Bank

Transfer of Business • With effect from 13th February 2006, Allied Irish Banks, p.l.c. ('AIB') has transferred its home mortgage loan business, relevant mortgage loans and related security to AIB Mortgage Bank ('AIBMB'). • AIBMB is a wholly owned subsidiary of AIB and a designated mortgage credit institution within the meaning of the Asset Covered Securities Act 2001 (the 'ACS Act'). • The transfer was effected pursuant to Section 58 of the ACS Act with the approval of the Financial Regulator. • Related security held for the transferred home mortgage loans, including solicitors' undertakings and certificates of marketable title, have been transferred to AIBMB. • In accordance with the ACS Act, AIBMB has the same rights (including priorities) and obligations in respect of the business and home mortgage loans transferred as AIB had immediately before the transfer took effect. • Customers whose home mortgage loans have transferred will be advised upon receiving their next mortgage statement. A notice giving particulars of the transfer has or will be published by the Financial Regulator in one or more daily Irish newspapers in accordance with the ACS Act. • AIB Home Mortgage documentation in circulation before the transfer is now in favour of AIBMB under the terms of the transfer. This has effect without any amendment to the documents. Solicitors should continue with the process of execution and registration of mortgages, and should in due course return all documentation and continue to correspond with AIB Home Mortgages Department, Hume House, Ballsbridge, Dublin 2 or the relevant AIB Branch as appropriate.

New Form of Mortgage in favour of AIBMB and AIB (the 'New Mortgage') In order to allow customers to provide security to both AIBMB and AIB for loans from either of them, AIB and AIBMB have introduced a single mortgage and charge in favour of AIBMB and AIB as tenants in common. The New Mortgage will be used for new residential property mortgage lending by AIBMB and by AIB. The New Mortgage avoids the need to create separate security for AIBMB and for AIB for loans made by them. The New Mortgage will secure all sums due to AIBMB and AIB, but it will only operate as security where the terms of the loan offer expressly require the mortgagor to provide or maintain the mortgage as security for the loan. FAMILY LAW MARCH 2006

but it is definitely encouraging. For my part, I suspect the answer might be that collaborators COLLABORATIVE FAMILY LAW organise their time more productively, both because of the nature of collaboration, which works IN A NUTSHELL essentially on a time basis, but also because the work Collaborative family law is a relatively new process of dispute resolution. Each is ultimately so much more rewarding. spouse retains a solicitor so that both can receive independent advice in helping them to negotiate an outcome that they consider fair and acceptable. In reaching Practice makes perfect an agreeable solution, clients and solicitors must agree to work together You will not be surprised to learn that the respectfully, honestly and in good faith. documents committee went on to form a practice This problem-solving approach necessarily involves full and mutual disclosure of group. Practice groups are part of the collaboration all assets. In collaborative law, each party works towards solving their legitimate network or design. A practice group will work needs rather than taking up positions that cannot be reconciled. together to tease out difficulties that members might When working within the collaborative law process, no one may go to court, or encounter in implementing the process, and to share even threaten to do so. Should the process end, both solicitors are disqualified insights. In addition, the ACP was formed so that from any further involvement in the case. The solicitors engaged for a training for would-be collaborators could be collaborative law representation may never, under any circumstances, go to court provided both initially and on an ongoing basis. for the clients who retained them in a contentious capacity, or as witnesses to This has helped to maintain standards and to such litigation. distribute the core documents necessary to Clients wishing to proceed with the process must sign a legally binding collaborate. agreement to disclose all documents and information relating to the issues – New collaborators might be said to have a slightly early, fully and voluntarily. Open and honest disclosure of assets is essential. If it evangelical tinge to their make-up – I, for one, have becomes clear that one party is not proceeding in good faith, then their solicitor set to with gusto designing a room specifically for must withdraw from the process and may not continue to represent the client. collaboration. It has a round table, which I believe The ultimate aim of the collaborative process is to achieve a ‘fair’ outcome for to be essential, an up-beat painting oozing vitality, both parties. refreshing lilac curtains, comfortable chairs, a tea and coffee trolley, plants and even a very large amethyst rock. This last was suggested by my first professionals who assist the process are part of that collaborating client and I am not finished yet … it’s team. These include child therapists, auctioneers, a work in progress! counsellors and accountants. The ACP is now ACP was most anxious to launch collaboration as sourcing family or mental-health professionals who a ‘new’ way of doing things – both for solicitors and are interested in this process and would like to work clients. We felt, therefore, that the image projected within it. Early feedback is positive, as many of these to the public of the process was extremely professionals have found the adversarial system very important. The association sought the services of a wearying. graphic designer, who designed a new logo, Thus far, most of my clients opting for notepaper and client handbooks. Next, we secured collaboration could be described as ‘well-heeled’. As the services of a web designer. With our image a method, it certainly is more cost effective for such established, our association formed, and our core clients, since litigation costs in ‘ample resources’ documents ready, we were rearing to go. cases can be very high. Collaborators mainly charge on an hourly rate, since most of their work is time- Turbulent waters based. So the costs will, to a very great extent, be Some of us are now collaborating and are finding it dependent on the number of meetings required and challenging and exhilarating all at the same time. can therefore be controlled to some extent. More Charting through the turbulent waters of marital importantly, however, is the ultimate cost saving breakdown, parental disputes and family difficulties involved in ensuring that the parties can dialogue is always going to be tough work, but this method is into the future, thus minimising future applications civilised, fair and cost effective. It is an honest to court. attempt to offer hard-pressed families a method of Working outside the ‘adversarial comfort zone’ resolving their family crisis. The method is tailor- can be very scary. Collaborators have to constantly made to each individual family’s particular needs in a re-examine the way they talk as lawyers, the way way that puts the parties on genuinely equal footing they relate to clients and the terminology they use. during the negotiations. This ensures that future We have no recourse to our usual arsenal. As a dialogue will be possible for them. fellow collaborator said recently, “the weapons closet These are early days, but already we feel that the is locked”. G support of counsellors and psychologists for this process is vital. Because collaborators work on a Anne O’Neill is a family law solicitor in PJ O’Driscoll’s, team basis to provide solutions for a family, rather Bandon, Co Cork, a trained collaborator, secretary of the than adopting a position for their particular client Association of Collaborative Practitioners and social and negotiating or litigating around that, the other secretary of West Cork Bar Association.

www.lawsociety.ie 27 LAW SOCIETY GAZETTE INTERVIEW

John Carrigan – president of the Law Society almost 50 years ago – is one of life’s gentlemen. Mark McDermott spoke to him about his student days in the 1930s, his career in law and his time as president

ohn Carrigan – president of the Law Society in 1957/58 – is not someone you forget after a first meeting. A natural leader, he possesses a vigorous character, a memory as deep as the JMid-Atlantic Ridge and a wit as bright as the Cullinan Diamond. I first met John and his wife Shirley at a special lunch held in the past president’s honour at Blackhall Place last October. It’s not every year that the Society can celebrate the life of a man who was president one year shy of 50 years ago. So, this lunch, hosted by the then president, Owen Binchy, was a fitting tribute to an historic figure in Law Society terms. It also presented a golden opportunity to ask him a few questions about his life as a solicitor.

Was there a background to law in your family? My grandfather was a farmer, two of whose sons went into law. One was my Uncle William who qualified as a solicitor and started a solicitor’s practice in Thurles in 1889. The other was my father, John Pierce Carrigan, who followed him into the practice seven years later. However, shortly afterwards, William decided to go to the Bar and as a result of a successful criminal law practice, took silk in 1908, becoming what was then called a King’s Counsel. He was appointed the first Catholic Recorder of the City of Belfast and later became Crown Prosecutor and then State Prosecutor on the formation of the Irish state.

When did you decide to become a lawyer? PIC: MARK RUSSELL HILL I didn’t choose early on to become a lawyer, but it was presented to me by the family that I should go into the office to help my father, who had done so much for me. That seemed to me to be a perfectly reasonable request. I went to the Law Society in

28 www.lawsociety.ie INTERVIEW MARCH 2006 TIPPERARY

STAR1934. In those days, the course was five years but apprentice, you didn’t speak to Mr Wakely. It was a MAIN POINTS they had a scheme where you could get out in four different generation. The reason you didn’t speak to • Student days in for good behaviour! To achieve this I was compelled Mr Wakely was because Mr Wakely was ‘God’. I the 1930s to take conveyancing lectures in UCD twice a week recall that he always wore a butterfly collar with a tie, • Changes in the during term. These were given in the most and his hair was always carefully brushed. He had a Law Society uncomfortable surroundings by a senior counsel in moustache and was, or at least seemed to me then, an •Tipperary Bar the late evening after the courts had risen. I learnt elderly man. The only time I really spoke with him Association nothing at these, but they served their purpose. was when I passed my finals and I went to talk to him I was, of course, an apprentice to my father but I about my admission to the Roll of Solicitors. very rarely attended his office – this was the plight of Afterwards, I thought what a nice man he was. all country apprentices then. It was impossible otherwise to attend lectures regularly in the Four Where did you study? Courts. Apart from studying at home and at the Solicitors’ Buildings, I stayed for my last two years with my What do you recall of the Law Society then? uncle William and his wife in Donnybrook. He was a At that time, the Law Society was based in the ‘Bencher’ and obtained permission for me to read in Solicitors’ Buildings at the Four Courts. The Four the library of King’s Inns. I have always looked upon Courts had been destroyed in 1922 and the this as one of the turning points of my life. The reconstruction had only been completed in 1931. world of literature was opened to me and, with the The Solicitors’ Buildings was not a place where you permission of the librarian, I had access to any book I would spend longer than you had to. My recollection wanted, legal or otherwise. My gratitude to the of it is as one of the bleaker, more soulless places in Benchers of that day knows no bounds, more so the world. There were only two good rooms in it – when I learnt some years later that I was the only one was the Council Chamber. I haven’t seen it as it solicitor’s apprentice who was ever granted that is today, but I hear it’s all cubbyholes full of privilege. barristers. It was a magnificent room then, with a I never went to university. Like all others I fabulous table and carvings. It had the president’s attended lectures in the Solicitors’ Buildings. It is fair chair, which is in Blackhall Place now. The other to say that they were, by and large dull, lacklustre room equally large was the library. It was cold, and boring. Our lecturers read from textbooks for an austere and empty, with very few books, with just, if I hour, explanations were rarely offered and questions recall correctly, the acts of the Oireachtas and some were never allowed. reports. The original collection had been lost in the But for our finals, some of us went for tuition to 1922 fire. Brendan P McCormack. He was a practising solicitor In those days, the Law Society was run by William with an office in Bachelor’s Walk. He was a brilliant G Wakely. He went by the title of ‘secretary’ – teacher with a gift for explanation. No subject was today’s equivalent of the director general – as did ever abandoned until he was satisfied with one’s Eric Plunkett after him. When you were an understanding of it. He was the only person who

www.lawsociety.ie 29 LAW SOCIETY GAZETTE INTERVIEW PIC: MARK RUSSELL HILL taught me to understand, with a blinding clarity, the Statute of Uses. He was kind and always reassuring and I still think of him with affection and respect.

When did you qualify? I finished all my law exams in 1938, but still needed to pass final Irish so I went to Spiddal for three months. It was intended that when I passed this examination I should go to the Sorbonne in Paris for a year before joining my father. That was the plan. I sat the exam and got 68%. The pass mark was 70% and they failed me. I came back to Dublin and, with others, went to a man named Fenton in Parnell Square who gave tuition in Irish. He was absolutely first class – he could make the Irish language sing. He got me through in March 1939, but at that stage war was looming in Europe and I never got to France until Shirley and I went there on holiday in 1950. paid to him. To me, he seemed to have been there What memory most stands out for you forever and, indeed, I noted when you took me up to as a practising solicitor? see the Council Chamber earlier this morning that he I have many. I remember a matrimonial dispute that is listed on the board of past presidents as having was fought most bitterly, as such cases can be. It was been elected president in 1906, almost 100 years ago. so bitter that, when our success in the High Court Until recently, past presidents could always go for was appealed to the Supreme Court, their lordships re-election and very many of them did and, indeed, I ordered that both sides should appear before them did it myself. The bar associations seemed to be with the children and the matter would be dealt with happy with the operation of the status quo – which on oral evidence. I attended on the day with my meant that as many as eight or more past presidents client and the children and all my witnesses, and with were re-elected. The General Council of Provincial my three counsel, the late Niall McCarthy SC, “In those Solicitors had an unwritten understanding with the William Finlay SC and Frederick Morris BL (as he days, the Dublin Bar Association that the country solicitors then was). The other side came equally prepared. would refrain from proposing more than 15 of their I think the full court sat and the chief justice was course was members, leaving the remaining 16 to the Dublin the late Cearbhall Ó Dálaigh. All the evidence was five years but Bar. This worked quite well until it was changed oral and the case lasted four days. The children were some years ago, but I always felt that the number of interviewed privately by their lordships and the they had a past presidents on the Council should be restricted. appeal was dismissed. I have been told that this was scheme the only time oral evidence was ever heard by the What were your goals as president? Supreme Court. It may be worth remarking that, at where you The Society, now, is a significantly different place to the next Law Society annual dinner, I met the chief could get out what it was in 1957/58. When I was elected justice and asked him how he enjoyed the oral president, I had only been a member of the Council evidence. His eyes lit up, he put his hand on my in four for for eight years. Nowadays, presidents of the Law shoulder and shook me very gently, saying: “John, good Society have been members of the Council for a the days simply flew.” much longer time and set goals for their year in term. behaviour!” Back then, presidents had no goals! You went in and There have been incredible changes in the Law you did the best you could, with a little variation, to Society since you were first admitted to the Roll. keep the show on the road. That’s really what the Which ones most stand out? presidency was. Today, the Law Society is unrecognisable from what One particular change is worth mentioning, it then was. The Law Society has moved from the however. In those days, and I think until 1960, the Four Courts to the buildings vacated in 1970 by the president paid for himself. He paid for everything out King’s Hospital School in Blackhall Place. This was of his own pocket – all his travelling expenses and his largely due to the enormous foresight of two Law dinner for the Council members at the end of his Society presidents – Peter Prentice, who year of office (the only payment of this sort by the masterminded the original purchase, and Moya Council being for the annual Council dinner in Quinlan who completed the move. March or April each year). For that reason, some I was elected to the Council in 1949. Mr WS members of the Council who would most certainly Hayes, the doyen of the Council, was there on the have been outstanding presidents were never day when I walked into the Council Chamber to take agreeable to letting their names go forward for the my seat as a new boy. Great deference was always presidency.

30 www.lawsociety.ie INTERVIEW MARCH 2006

You would, however, probably have been given a become senior vice-president of the Law Society. very small subvention to attend the International Bar Forty-two years is a long time in any position. The Association (IBA) conference, should there be one responsibilities, if they are to be taken seriously, are during your year of office. During my presidency, I considerable. I had the luck of being able to benefit was elected to the council of the IBA. When I retired from the advice of my father, who himself had been after my two-year stint, I was asked to chair several of secretary of the bar association before me. He was a their committees, which I was happy to do. It meant first-class solicitor who always had a clear not only attending conferences every two years, but conception of what the conduct and integrity of a more especially attending IBA council meetings, solicitor should be. usually two but sometimes three or more in that time. The Tipperary Bar Association was the first in It was all a bit arduous, but I felt it very necessary that these islands, or anywhere else, to run courses for the Irish Law Society should stay at the forefront of what is now called ‘continuing professional an international organisation such as the IBA. I hope development’, the first of a series of lectures being that I managed, in some way, to do that. Let me say given in February 1960. From its very beginning, it that none of this would have been possible without passed the ‘vendor and purchaser rule’ to the effect the constant support of my wife, Shirley, who has that, except in very few stated cases, a member always been there when I needed her, with sound should in no circumstances act for a vendor and help and advice. purchaser of the same property.

Is it true that you were secretary of the Tipperary What are your other interests outside of the law? Bar Association for over 40 years? I lived in the country and I lived a country life. I had Yes. I was elected secretary and treasurer of the all the outdoor country sports, particularly hunting Tipperary Bar Association (which was then known as and racing. In 1966, I was elected to the Irish the Tipperary and Offaly (Birr Division) Sessional National Hunt Steeplechase Committee and was Bar Association) on 12 January 1940, for no other made a steward in 1986 and became senior steward reason, I imagine, than that nobody else wanted the in 1988. That pleased me greatly. At one time I job and I was the youngest member of the bar played golf – a lot of golf. At my best, I got to play association. In those days (and it’s probably the same off a handicap of eight, but that’s another story! today), the younger members were expected to take the jobs that nobody else wanted. Any advice for today’s trainee solicitors? I remained secretary of the bar association until I Look, I am still writing with a fountain pen, which I retired in July 1982, when I was succeeded by Philip have to fill with ink from a bottle, and you ask me Joyce, who I am delighted to see is now about to that! G

www.lawsociety.ie 31 LAW SOCIETY GAZETTE LEGISLATION A MATTER OF INTERPRETATION The recently enacted Interpretation Act 2005 came into force on 1 January, and its importance cannot be overstated, says Brian Hunt MAIN POINTS nterpretation acts govern the interpretation of Mulcahy v Minister for Marine (1994) and also a both primary and secondary legislation and recommendation of the Law Reform Commission. • Interpretation play an important role in ensuring the Section 5(1) directs that, when interpreting a Act 2005 consistency of some aspects of legislation. provision (other than a penalty provision) that is • Significant new Their existence has tended to shorten enact- ambiguous, absurd or fails to reflect the intention of provisions I ments and to make their language more uniform. the Oireachtas, the provision must be given a • Repeal of The enactment of the Interpretation Act 1850 meaning that reflects the plain intention of the previous acts marked the beginning of a tendency towards the Oireachtas, insofar as that intent can be gleaned from standardisation of terms used in legislation. In 1875, a the act as a whole. select committee of the House of Commons on the Section 6 is also new, enabling provisions to be improvement of legislation advocated the preparation given an updated meaning so as to take account of of a further Interpretation Act. This led to the technological and other developments that have enactment of the Interpretation Act 1889, which has occurred since the passing of the act or making of the been in force here for over 100 years. The statutory instrument. This issue was addressed by the Interpretation Act 2005 repealed the Interpretation Acts Supreme Court in Keane v An Bord Pleanála (1996) as of 1889, 1923, 1937 and 1993. The Interpretation well as in other cases, and was also the subject of a (Amendment) Act 1997 is not being repealed. The recommendation by the Law Reform Commission. 2005 act is, to a large degree, a consolidating act. This is reflected in the fact that virtually all of the Margins of error previous Interpretation Acts are repealed. However, the With reference to the use of marginal notes and new act does contain some new and interesting headings, the Law Reform Commission also provisions. In view of the important, over-arching recommended “that all intrinsic aids should be nature of the act, it is perhaps helpful to visit, in brief available for use in interpretation and that their use terms, some of its provisions. should not be contingent on establishing, as a prerequisite, that there is some ambiguity in the text”. Plain intentions Under the 1937 Interpretation Act, marginal notes may Section 5 is a new provision. It provides for a not be relied on by the courts under any purposive construction to be given to legislation, so circumstances. This has been relaxed somewhat by as to give effect to the decision of the High Court in section 7 of the 2005 act. While it does not give effect POWER TO PROSECUTE Section 8 is a new provision that addresses the power of prosecution. prosecutions in respect of the offences contained in the ‘amendment’ Let’s put this section in context. Collective construction provisions are act could not proceed. Section 8 of the Interpretation Act 2005 appears unable to carry over matters of a substantive nature from an earlier act to be intended to address problems such as this. into a later act. Provisions of this kind are, however, suitable for Here are just some examples that should be remedied by section 8. carrying over matters of a procedural nature. The inability of collective It would seem that the Central Bank would not have power to prosecute construction provisions to carry over matters of a substantive nature, for any of the offences created by the Central Bank Act 1997, as it such as the power to prosecute, has presented some difficulties. contained no power of prosecution, and section 10 of the 1989 act For example, where an ‘amendment’ act containing offence only gave the bank the power to prosecute offences “under the Central provisions (but no prosecution provisions) was to be collectively Bank Acts 1942 to 1989”. Also, it seems that offences created under construed with a principal act that contained the power to prosecute, the Wildlife (Amendment) Act 2000 would encounter similar difficulties.

32 www.lawsociety.ie to the commission’s recommendation, it is perhaps accompanying section 90 of the Succession Act 1965 one of the act’s most significant new features. It states and was, in fact, placing considerable weight upon it. that when construing a provision of an act for the From a purely pragmatic point of view, when a purposes of sections 5 and 6, the court may make use judge reads a section of a statute, he does not close of all matters that are set out in the act as enrolled in his eyes when he sees a marginal note nearby. Even the Supreme Court. Section 7 therefore permits the Mr Justice Hardiman alluded to this reality when use of marginal notes and headings in an act for the speaking at a legislative drafting conference in 2000. purpose of interpretation, albeit in the limited He was critical of the notion that judges were not circumstances described. This amounts to a allowed to look at marginal notes, particularly when significant departure from pre-existing practice. they were printed on the same page that they were Over many years, the courts were very uneasy reading. In this context, as a good first step, section about lending any weight to marginal notes and 7 is to be welcomed. headings, particularly as they are not debated or voted upon as the bill goes through the Houses of the Pedants’ heaven Oireachtas and, consequently, are not formally part of Section 14(1) sets out the various ways in which an the act itself. Despite this, the courts have, on act may be cited. Section 14(2) states that a occasion, had resort to marginal notes when reference to an act is deemed to include interpreting legislation. amendments made to that act, irrespective of Section 7 is, to some degree, a recognition of whether the amendments pre- or post-date the reality. The overly restrictive approach imposed by reference in question. When citing an act, it has the 1937 act has long been criticised by the judiciary long been the practice to insert a comma before the and academics alike. Despite the 1937 act, it is clear year. The purpose of section 14(3) is to state that that judges have had regard to marginal notes. A the comma may now be omitted. And so, the practical example of this was in the Supreme Court Freedom of Information Act, 1997 now becomes the case of Rowe v Law (1978), where O’Higgins CJ made Freedom of Information Act 1997. However, just why it clear that he had read the marginal note it was felt that a statutory provision was needed to

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WHERE THERE’S A WILL THIS IS THE WAY…

When a client makes a will in favour of the Society, it would be appreciated if the bequest were stated in the following words: “I give, devise and bequeath the sum of X euros to the Irish Cancer Society Limited to be applied by it for any of its charitable objects, as it, at its absolute discretion, may decide.” All monies received by the Society are expended within the Republic of Ireland. “Conquer Cancer Campaign” is a Registered Business Name and is used by the Society for some fund-raising purposes. The “Cancer Research Advancement Board” allocates all Research Grants on behalf of the Society.

5 Northumberland Road, Dublin 4. Tel: (01) 231 0500 15 Bridge Street, Cork. Tel: (021) 4509 918 Web: www.cancer.ie LEGISLATION MARCH 2006

sanction the redundancy of the comma is bemusing. Surely, far more radical and meaningful reform of LEADING BY EXAMPLE the statute book is what is warranted. Section 11 is one of the more significant new provisions and is designed to give Section 15 states that the date of passing of an act effect to one of the recommendations of the Law Reform Commission. It provides a is the date on which the act is signed by the legislative basis for the use of worked examples in legislation. Formulaic examples president. In any act, that date can be found in should prove to be particularly helpful in tax and other finance legislation. square brackets immediately following the long title. Precedent forms are often provided in the schedule to a piece of secondary Section 16(1) states that an act comes into effect on legislation. Section 12, which is new, provides that where these forms are used the date of its passing, unless it contains a and there are trivial deviations from the form set out in the legislation, such trivial commencement provision, in which case, in deviations cannot be regarded as invalidating the form. This provision would apply, accordance with section 16(2), it commences at the for example, to the forms that are set out in the District Court rules. beginning of the day upon which it is stated to commence. Section 17 applies to acts that do not commence upon their passing. Its purpose is to enacted or made after 1 January 2006. Part 2 of the enable secondary legislation to be made and other schedule contains eight new definitions. preparatory measures to be implemented, even Section 22 deals with the exercise of legislative before the act actually comes into force. powers. Section 22(1) provides that a power Section 18 sets out ten rules of construction contained in an enactment does not expire once it is applicable to all acts and statutory instruments, such first utilised. Section 22(2) states that a power as: a word expressing the singular can be read as conferred on an office-holder may be exercised by expressing the plural, a word expressing the the person who occupies that office for the time masculine can be read as also expressing the being. Section 22(3) provides that the power to feminine, and the word ‘person’ includes a body make a statutory instrument includes the power to corporate as well as a natural person. It also amend or revoke that statutory instrument. Section expresses the rule that, where a period of time such 23(1) is similar to section 22, but it relates to the as a 14-day statutory appeal period is concerned, performance of duties. that period is inclusive of the commencement and end dates mentioned. Return to sender Section 19 provides that words used in a statutory “Just why it Section 24 states that where an enactment confers a instrument have the same meaning as they do in the new jurisdiction on the courts, the body with act under which the statutory instrument was made. was felt that a responsibility for making rules for that court This means that it is not necessary to define words statutory automatically has the power to make rules in respect used in a statutory instrument, if those words have of the newly-conferred jurisdiction. Section 25 already been defined in the parent act. Section 20 is provision was addresses the rule that governs service by post. It a new provision and applies to the definition or needed to provides that where legislation requires a person to interpretation provisions in an act or statutory ‘serve’, ‘give’, ‘deliver’ or ‘send’ a document, that instrument. It states that unless the contrary sanction the requirement may be satisfied by sending that intention appears, where an enactment contains redundancy of document by ordinary post. interpretation provisions, those definitions apply to Section 26(1) is designed to ensure that where an the enactment itself. It also states that where, for the comma is enactment is repealed and replaced by another, the example, a piece of secondary legislation defines a bemusing” repealed enactment continues in force until the word, that definition is deemed to apply to the act replacement enactment is in place. The purpose of under which that piece of secondary legislation is section 26(2) is to ensure that where an enactment is made. repealed and re-enacted, that appointments made, security given, proceedings taken, statutory High definition instruments made, and so on, shall continue as if Section 21 relates to the schedule, which defines they came into being under the new enactment. terms that are commonly used throughout Section 27 explains the effect of a repeal. Section legislation. Some terms have been assigned 27(1) states that where an enactment is repealed, its definitions that might not accord with the ordinary repeal does not revive anything that was not in force or expected meaning of the terms. For this reason, it at the time of the repeal, nor does it affect any right can be helpful to be familiar with the terms defined acquired or penalty imposed under the repealed in parts 1 and 2 of the schedule. Section 21(1) states enactment. In accordance with section 27(2), where that the words defined in part 1 of the schedule an enactment is repealed, legal proceedings relating apply to acts and statutory instruments. Part 1 of the to a right, obligation or liability, and so on, may be schedule defines 31 terms and is largely similar to instituted or continued as if that enactment had not the schedule to the 1937 act. It defines terms such as been repealed. G land, week, writing and year. Section 21(2) states that the words defined in part 2 of the schedule Brian Hunt is a consultant with Mason Hayes & apply to acts and statutory instruments that are Curran.

www.lawsociety.ie 35 LAW SOCIETY GAZETTE LOOKING BACK Another TIME,

Continuing with our celebration of 100 volumes of the Law Society Gazette, this month Mark McDermott examines the contents of its pages, covering the years 1910-1919

he decade 1910-1919 proved to be one of deep sorrow for the calamity which has befallen the the most violent in the world’s history. nation”. The Great War of 1914-18 left nobody In the July issue of 1911, under the heading untouched – including Irish solicitors and ‘Coronation’, it was reported: “The President Tapprentices, a good number of whom left [Frederick W Meredith] informed the Council that, in to fight in the war, several giving their lives for the obedience to the King’s command, he had attended in sake of freedom in Europe. Those who stayed at Westminster Abbey at the Coronation of Their home experienced other momentous political Majesties King George V and Queen Mary, upon June change. Royalist sentiment is deeply evident in the 22nd” (p24). Gazette’s reports on the death of King Edward VII Matters of a more trivial nature were dealt with in and the coronation of George V, while the Easter March 1911, when the provision of a smoking room Rising provides an opportunity for the Council to received the ‘thumbs up’. “It was resolved that the reassure the king of its “continued loyalty”. room opening off the gallery of the Society’s large However, the Society decried the “proposed Hall, formerly used as a Library, should be furnished exclusion” of the Six Counties in the Government of as a Smoking Room for the use of members of the Ireland Act. It was, without doubt, another time, Society” (p197). another place. During his presentation of the annual report in the December 1911 issue, the president remarked on the Death of King Edward VII “stirring events” that had taken place that year: In vol 4, no 2 (June 1910), the Gazette gave over an “We had the visit of Their Majesties to this country, entire page to the death of King Edward VII (p117). where they were received with enthusiasm by all class- It ran as follows: es. Your President, and several members of the Coun- “A Special Meeting of the Council was held upon cil, acted as Vice-Presidents or members of the Council Monday, the 9th May. The President [Richard A of the Citizens’ Reception Committee, which did so 1916: Children pick Macnamara] stated that owing to the death of His much to make Their Majesties visit a success” (p58). over ruins in Dublin Majesty the King he had summoned the Council so Taking a less royalist view, on 6 May the Solicitors’ following the Easter Rising against British that they might give expression to their feelings of Apprentices’ Debating Society organised a debate rule. The Rising regret. They all deplored the death of the King, titled: ‘That Home Rule is the true solution of the began on 24 April. which took place with such startling suddenness. He Irish question’ (April 1912, p128). While it ultimately was a great and beloved Monarch, a great failed, it proved to be a major propaganda Women and the law Diplomatist, and his voice was ever raised in the cause victory in the struggle of peace. The sympathy of the Council would go out The Gazette covered a very interesting test case in its for independence at this time to Her Majesty Queen Alexandra and to February 1913 issue (p92). Headlined ‘A High Court His Majesty King George, who, though he had Test Case’, it stated: gained a crown, had lost a loving father.” “The Times of 25th January, 1913, states they have A number of telegrams were sent to the private received the following statement from Messrs. secretary at Buckingham Palace on behalf of the Withers, Bensons, Birkett, and Davies, Solicitors, of members of the Incorporated Law Society of Ireland, Arundel Street, with reference to the claim of four expressing their most respectful sympathy on the women to enter the profession of Solicitors:— king’s bereavement, and “humbly to assure His Four ladies applied to the Law Society for permission Majesty of their feelings of loyalty and devotion to to attend the preliminary examination to enable them His Majesty’s Throne and person”. to enter the profession of Solicitors. These Queen Alexandra was assured of “their most applications have been refused by the Law Society on profound sympathy in her bereavement, and of their the ground of the sex of the applicants. The four ladies

36 www.lawsociety.ie LOOKING BACK MARCH 2006 another PLACE

have accordingly commenced four separate actions appreciation shown by its members, in more ways against the Law Society in the Chancery Division of than one, of the gravity of the issues involved for all the High Court claiming that they are entitled to be of us in that great struggle.” examined and to enter the profession of Solicitors.” The council decided that year not to hold its The four women were Miss Gwyneth Marjorie customary official dinner, instead sending an Bebb, Miss Karin Costello, Miss Maud Isabel Ingram ‘entertainment’ amount of £127 2s 0d to Sir Lambert and Miss Lucy Frances Nettlefold. Ormsby “to assist in the provision of Irish Motor Ambulances for our wounded soldiers”. The Great War “Better far, however, than these contributions to In 1913, the Society boasted 884 members out of patriotic funds is the fact that since the outbreak of 1,587 solicitors on the Roll. In his half-yearly general war no fewer than 40 young Irish Solicitors and 33 meeting speech (reported in the December 1914 Solicitors’ Apprentices have joined His Majesty’s issue), Society President Henry J Synnott, in moving Forces—a total of 73, the majority of whom have the adoption of the annual report, made considerable obtained commissions in Lord Kitchener’s new reference to the outbreak of the Great War: Armies” (December, 1914, p56). “I am afraid our domestic concerns have been almost A list of the names of many of those who left to completely overshadowed by the great war, which is take an active role in the war appeared in the the first subject referred to in the Annual Report. November 1914 issue of the Gazette (p48ff) and was The Society has reason to be proud of the attitude of followed by another in the December issue (p65ff), the Profession in reference to the war, and of the and still more as the war progressed. Interestingly,

www.lawsociety.ie 37 LAW SOCIETY GAZETTE LOOKING BACK

PRESIDENT’S ADDRESS, 17 MAY 1915 “The president [Arthur E Bradley], addressing the meeting, said that since their last Half-yearly meeting in November the war had continued to dominate the affairs of the Empire both at home and abroad. Our sailors and soldiers were engaged in the greatest war the world had ever known. They were fighting for the integrity and honour of the Empire, and for a cause that they believed must ultimately be victorious (hear, hear) [sic]. They joined with their fellow-countrymen in condemning the atrocities which had been committed from time to time by the enemy since the commencement of the war, culminating in the sinking of the Lusitania, when over 1,000 innocent lives were lost, including many women and children. There were now 55 Irish Solicitors and 46 apprentices to Irish Infantry] and Lieut. Brendan Fottrell [3rd Battallion, Royal Irish Solicitors serving with His Majesty’s forces (hear, hear), and he Regiment], and their sympathy went out to their relatives” (June regretted to say that two of their members had fallen in the field of 1915, pp11-12). battle in France doing their duty gallantly, he was proud to say. He (By November, six more had been killed in action – three solicitors referred to Capt. Robert Orr [3rd Battallion, Somersetshire Light and three apprentices – all in the Dardanelles.)

“The Council this issue reports that time spent in service with the Government the justice and necessity of providing has no politics, naval or military forces would “be allowed to be promptly the funds necessary for restoring the counted as part of the period of service of the buildings and property destroyed, and for compen- so you need not apprentice under his indentures of apprenticeship”, so sating adequately all loyal subjects who have suffered be afraid of my long as the service had been approved by the by reason of the outbreak” (Gazette, May 1916, p4). apprentice’s master. Discussing the Government of Ireland Act at the saying anything half-yearly general meeting on 27 November 1916, Insurrection injudicious” the president, Charles St George Orpen, opined: The Easter Rising was discussed at the council “The Council has no politics, so you need not be meeting on 10 May 1916, taking an anti-nationalist afraid of my saying anything injudicious. The Council stance (looking back through a modern lens): only considered the Act in connection with the “At the meeting of the Council held upon the 10th proposed exclusion of the six Northern Counties, and May, the following resolution was adopted, and as to how such exclusion would affect Irish Solicitors, copies directed to be sent to His Majesty the King, and the powers of the Incorporated Law Society. The the Prime Minister, the Chancellor of the Exchequer, Report tells you of my visit to London, and my and the Lord Lietuenant: – interview with Sir Edward Carson and Mr John 1919: The first aircraft Resolved – ‘The Council of the Incorporated Law Redmond. At present—just at present, at any rate— to cross the Atlantic, a Society of Ireland, at their first meeting since the Sinn proposed exclusion, and such like, have become a Vickers-Vimy biplane, Fein insurrection in Ireland, hereby tender to His ‘wash out’. But these things may come up again. was piloted by Captain John Alcock and Arthur Gracious Majesty the King the assurance of their There is always something new coming up in Ireland” Whitten Brown. It crash- continued loyalty to his person and Throne. The (December 1916, p42). landed in a bog outside Council express their abhorrence and condemnation Clifden, Co Galway, on of the scenes of outrage and destruction which have War is over 15 June, after a 3,040km journey from taken place, and urge upon His Majesty’s At last, during the half-yearly general meeting on 26 Newfoundland, Canada November 1918, the president, William V Seddall, could speak in the past tense of “the shadow of war which hung over the country at the period of the previous meeting of the Society”: “He was sure they would agree with him that those members of the profession who had joined the Army or Navy would have a hearty reception on their return, and that the members of the Society would endorse the action of the Council in giving to those apprentices who had risked their lives every facility to enable them to become honourable and honoured members of the profession. “Steps should be taken to perpetuate in a suitable manner the memory of those members of their profession and apprentices who had laid down their lives for their King and country,” he concluded. G

38 www.lawsociety.ie PRACTICE MANAGEMENT MARCH 2006 practice doctor

Got an issue you would like addressed by our panel of practice doctors? Email: [email protected] Minding your own BUSINESS ccording to the Professional Marketing Forum – the worldwide body for Adrienne Regan: “It’s time professional services marketing – 2006 is to listen to your clients” the year for client care. The increased 20% clients A competition we see today, coupled with the bigger opportunities appearing as a result of economic growth, have created greater awareness among clients about service expectations and more 80% profit aggression within the legal profession. Now, more than ever, it’s time to talk and listen to your clients. Don’t be afraid to ask them what they think of the service you deliver. Talking regularly to clients is common sense, but not common practice. A lot of practitioners see this as a taboo subject. The reality is that clients want the opportunity to speak. And they THE PARETO PRINCIPLE can be a gold mine of information. Some practices that currently invest in client constructive and honest feedback, which maximises feedback can manage this in-house, with nominated your chances of keeping your clients’ business. partners conducting the interviews. However, this We know that, for most professional service firms, route can be subjective and clients are not always the ‘Pareto Principle’ applies: the top 20% of clients likely to be completely open, sometimes feeling that provide 80% of the profit. So seeking the views of certain matters they would like to discuss might be this group is essential. The consequences of losing considered trivial. Independent feedback interviews these clients are too great. mean that clients are both curious and willing to give Clear benchmark The effect of asking clients for feedback ensures that the firm has a clear benchmark to make informed QUALITY FEEDBACK business decisions about its future. Standard feedback, written questionnaires and client-care policies have their Of all the marketing tools available to you, place, but the best way to get feedback in ways that give you meaningful independent feedback always gives back a high return information is through face-to-face interviews. There are many tangible benefits on your investment, simply because you are being to independent research including: proactive in anticipating the crucial elements that • Communicating the extent of your firm’s expertise, could bolster or save your relationship. • Finding out about new business opportunities, What your clients say to you is more valuable than • Discovering problems or concerns, any other opinions, thoughts or conjectures you • Communicating the fact that you value the relationship the client has with might hear from friends, foes or textbooks. your practice, Although some firms remain ambivalent about the • Understanding why clients choose your firm and other professional advisors merits of gaining client feedback, a vital part of they use, improving the service to clients is listening to what • Building empathy and goodwill, and they want and have to say. G • Finding out about their personal interests (just in case they might not appreciate an invitation to the Ryder Cup!). Adrienne Regan is a partner in Regan Lowey, which offers practical marketing advice to professional advisors.

www.lawsociety.ie 39 CALCUTTA RUN 2006 Saturday 27 May • Fun run/walk at Blackhall Place Be one of the 1,500 solicitors, staff and their friends to help raise €250k for Goal’s Orphanage in Calcutta and Fr Peter McVerry’s projects for homeless boys in Dublin. IT’S NEVER TOO LATE TO START Here is the next four weeks’ training programme (target 80 min) WEEK 5, 13 MARCH 1. Walk 30 min, jog 5 min 2. Walk 30 min 3. Jog 5-7 min, walk 30 min, jog 7-10min WEEK 6, 20 MARCH 1. Walk 35 min, jog 5-7 min, walk 10 min 2. Jog 5-7 min, walk 35 min 3. Jog 10 min, walk 30 min, jog 10 min WEEK 7, 27 MARCH 1. Jog 7 min, walk 35 min, jog 10 min 2. Jog 7 min, walk 35 min, jog 7 min 3. Walk 20 min, jog 10 min, walk 10 min WEEK 8, 3 APRIL 1. Jog 10 min, walk 30 min, jog 7 min 2. Jog 10 min, walk 20 min, jog 10 min, walk 10 min 3. Jog 10-15 min, walk 30 min, jog 7 min Always make sure you are warmed up before you jog! If you have not started already, you can still start at this point. For previous training programme or a sponsorship card see our website www.calcuttarun.com PEOPLE AND PLACES MARCH 2006

Glass act Members of the Waterford Law Society met recently in the Woodlands Hotel, Waterford. (Front, l to r): Claire Ryan, Valerie Farrell, Rosie O’Flynn, Neil Breheny (President, Waterford Law Society), Michael Irvine (President, Law Society of Ireland), Ken Murphy (Director General, Law Society of Ireland), Helen Bowe O’Brien, Bernadette Cahill, Joyce Cunningham and Eva Lawlor. (Standing, l to r): Niall King, Paddy Gordon, John Goff Snr, Gerard O’Herlihy, Jim Hally, Tom Murran, Derry O’Carroll, Pat Aherne, Emmett Halley, Gerard McCullagh, Nicholas Walsh, Myles O’Connor and Gerry Halley

Girls just wanna have fun Lining out for the Law Society’s women’s Gaelic football team are: (back, l to r) Pádraig Mawe (mentor), Siobhán McCarthy, Claire McGrath, Deirdre Lennon, Ciara Cahill (vice-captain), Aoife Walsh, Theresa Murphy, Deirdre McCarthy, Máiréad Cronin, Orlaith Ní Bhróin, Aishling Meehan, Catherine Boner, Ross Phillips (mentor); (front, l to r) Fiona O’Keefe, Carol Kelly (captain), Trina Galvin, Olive Heneghan, Mary Blake, Elaine McCarthy and Lynne Martin

New offices for McDowell Purcell CLARKE PHOTOGRAPHY PIC: NICK BRADSHAW/JASON The Minister for Justice, Equality and Law Reform, Michael McDowell, Taking it handy officially opened the new offices of McDowell Purcell Partnership at the The winner of the MRCS Canon Maurice Handy Award 2006, Capel Building in Mary’s Abbey, Dublin, on Thursday 24 November. The for contributions to understanding marriage and relationships, firm was originally established by the minister’s grandfather, John is Geoffrey Shannon, Law School Deputy Director at Blackhall Place. McDowell, in 1898. (L to r): Thomas O’Malley, Michael McDowell, Geoffrey was presented with his award by MRCS Chief Executive JP McDowell and Breen Purcell Elizabeth Everett and Dennis Handy

www.lawsociety.ie 41 LAW SOCIETY GAZETTE OBITUARY

OBITUARY

The Hon Miss Justice Mella Carroll 6 March 1934 – 15 January 2006

he recent death of Mella in Geneva, Switzerland. TCarroll, shortly after her Her career as a judge was retirement as a High Court not only regarded as judge, brought great grief and particularly valuable here in a deep sense of loss to a Ireland, but also received a remarkable number of almost strong recognition abroad. Her infinite variety. work in Geneva, together with Mella was called to the Bar, her election as president of the as a Brooke Scholar, in 1957. International Association of Her choice of the Bar as a Women Judges and her career was probably influenced discharge of that office, added by the fact that her father significantly to the (who was then a garda chief international prestige of the superintendent, and eventually Irish judiciary. retired from the force as its commissioner) had in 1932 been called to the Bar but, clearly Major contribution influenced by a strong sense of duty to the still emerging Her interest in, and capacity to relate to, younger people was police force, never practised. well reflected in the success she made of her appointment as Mella very successfully practised at the Bar for 23 years, chancellor of Dublin City University. In addition, she made a taking silk in 1976. The esteem in which she was held by her major contribution to the development of Irish society by her colleagues is reflected by the fact that, in 1979, she was elected work on the Nursing Commission and on the Commission on as chairman of the Bar Council, the first lady to hold that post. the Status of Women. All these achievements were infused In October 1980, she was appointed as the first lady High with (and almost, in a sense, dwarfed by) a wonderful and Court judge and commenced a remarkably successful, and for endearing personality. good reasons, popular career that lasted for 25 years. Mella Carroll was an immensely kind and caring person with a splendid sense of humour and an infinite capacity for Compelling sense of justice making and keeping friends. As many people will remember, First and foremost, during her career on the Bench, she was meeting her for any length of time and for any purpose was driven by a sincere and compelling sense of justice, which she guaranteed to lighten the darkest day. applied with the highest intelligence and a deep compassion to Her interests outside of the law and her close-knit family, to every task she undertook. whom she was devoted, included travel, music (especially Although she had concentrated on chancery work at the opera) and the arts. They brought her into contact with many Bar, she undertook on appointment all the varied legal issues people of varied types and occupations who, together with that were required of a High Court judge, including criminal those of us who knew her from the legal professions, now so trials, with complete success. deeply mourn her loss. For 15 years of her term as a High Court judge, Mella May she rest in peace. G acted each year for a period as a judge of the Administrative Tribunal of the International Labour Organisation (ILO) TAF

42 www.lawsociety.ie BOOK REVIEWS MARCH 2006 books Juvenile Justice Dermot Walsh. Thomson Round Hall (2005), 43 Fitzwilliam Place, Dublin 2. ISBN: 1-85800-402-0. Price: €296 (hardback).

n the preface to this work, sanctions. However, Professor mental research into juvenile IProfessor Dermot Walsh Walsh, in referring to the crime and justice in Ireland, refers to “the challenge of quality of official crime together with extensive tackling youth crime in a statistics, says: “They are reference to legal manner which is sensitive to the totally and absolutely riddled commentary on juvenile circumstances of the youth, with inaccuracies. Apart from justice. This section clearly while at the same time satisfying the fact that they do not cater shows very serious failures of the law-and-order demands of adequately for the substantial our governments to adult society”. He further adds volume of unreported crime, adequately and properly that “subjecting young offenders the manner in which they are research and resource this to the full rigours of the criminal recorded, compiled and area. There is a very close link law and the criminal justice presented renders it very between child poverty and system is unjust, inappropriate difficult to extract any juvenile justice. and counter-productive. They meaningful or reliable trends do not have the maturity, from them.” Recently it has For over 90 years, the law in foresight and experience of life been announced that crime relation to young offenders was to appreciate fully the harm statistics face a major overhaul governed by the Children Act caused by their offending, both examination of the age of under a new system being 1908. Recently, the Oireachtas to themselves and to the criminal liability, powers of An planned by the Central enacted the Children Act 2001. community around them.” He Garda Síochána, the Juvenile Statistics Office. The function This book deals fully with the says that “it would seem Diversion Programme and trial was removed from the gardaí provisions of both the 1908 and appropriate, therefore, to have procedure, together with the full following ongoing concerns the 2001 acts, as there is interventions designed to divert range of detention facilities and over the recording, analysis currently a transitional period – young offenders away from an non-custodial options under the and presentation of crime during which the 1908 act is offending lifestyle and to help Children Act 1908 and the statistics. The CSO is being gradually phased out in them appreciate that crime is Children Act 2001. The book is considering recasting Irish favour of the 2001 act. Professor neither normal nor acceptable”. divided into three parts: crime statistics along the lines Walsh deals with this in a very The author (professor of law 1) A comprehensive account of of British or Australian clear and easy-to-follow manner. at the University of Limerick), the juvenile justice system. models. The transitional process is still in association with the This expansive section takes 3) A summary of available ongoing. Department of Justice, has us through the system step by literature. The final part is a Juvenile Justice is a most produced a most valuable work, step, from the moment a comprehensive bibliography valuable work that brings covering all aspects of trial and young offender first comes in of published works dealing together material from many pre-trial procedures affecting contact with it, right through with youth crime and youth different sources that is juveniles. A work of this to the point where the order justice in Ireland, making it frequently difficult to find (for magnitude has long been or conditions imposed are quicker and easier to identify example, it is extremely difficult awaited and it will be of satisfied. relevant materials. This is a to locate the 1908 Children Act). enormous assistance to all 2) Juvenile crime data. This very valuable and most This is a most important and people involved in the area of section gives valuable insights important part of the book. It relevant book and is the first juvenile crime, including into juvenile offending and sets out full details of official such work in this jurisdiction practitioners, judges, gardaí, the the juvenile justice system. It reports and publications in dealing with juvenile justice. It probation service, social contains a unique analysis of relation to juvenile crime, must be warmly welcomed. G workers, students and academics. publicly-available data on young offenders, and so on. It includes an in-depth youth crime and youth justice Also listed is non-govern- Pól Ó Murchú is a solicitor.

www.lawsociety.ie 43

BOOK REVIEWS MARCH 2006 A Memoir Terry de Valera. Currach Press, 55a Spruce Avenue, Stillorgan Industrial Estate, Blackrock, Co Dublin. ISBN: 1-85607-921-X. Price: €14.99 (paperback).

owadays, most books and a father and, for that On a more personal note, I Nwritten by solicitors are reason, is historically of value would like to record the wider erudite tomes on technical legal in addressing that aspect of his Michael Collins family’s subjects and, as such, are persona. appreciation of the part played worthy of review in the Gazette. Throughout the book, Terry by Terry de Valera and his On this occasion, while the does not hold back in daughter Síle, TD, in ensuring author was in his time an expressing his sometimes the success of the celebration of eminent solicitor, this book singular point of view, negative the centenary of the birth of does not address a legal topic – as well as positive, on many and Michael Collins held in Cork rather, it is in the nature of an varied people and events. He in 1990. In organising the autobiography. Its interest to does manifest a filial sense of event, Liam Collins, solicitor Gazette readers, however, duty to protect his father’s (Michael’s nephew, who died in should lie firstly in the fact that reputation and memory, but in 1997), wished it to be a way of Te rry de Valera is the youngest a style that tends to be more in ‘handing Collins back’ to all son of Eamon de Valera and, sorrow than in anger, and Irish people of whatever secondly, in the fact that the sometimes with distinctive political or religious persuasion author was between 1969 and literary aplomb. man or the very rich one … so that he would no longer be 1992 one of the taxing masters He does not unduly linger could ensure the enforcement perceived only in partisan of the High Court and as such on his term as a taxing master, of their rights. The law should political terms. To achieve that, was, particularly for litigation but what he does say is at times be for the benefit of all citizens. Liam wished that then practitioners during that illuminating of both the man It should not be allowed to president Patrick Hillery, as period, a household name. and the office. Of particular become a means, as my father well as all shades of The author, who was born contemporary interest to once remarked, ‘for the benefit representatives of church and on 4 June 1922 (named after solicitors is the author’s allusion of rapacious lawyers’.” state and the judiciary should Te rence MacSwiney, who in to being “disturbed” towards This book is to be be present. Liam and Terry had 1920 had died on hunger strike the latter part of his career as recommended because of who been at school together and in Brixton Prison), ranges far taxing master: the author is and the family he were subsequently apprentices and wide in conveying not only “Unlike my days in practice, it belongs to, and because it is a at the same time. his personal recollections as a became the norm to charge not well-written commentary. It When contacted, Terry member of one of the families what the case was worth, what reflects on a life that started in assured Liam that Síle would of 20th century Ireland but also was fair and reasonable and the the same year as the Treaty was be delighted to accept an in conveying his mother true value of the work and marginally approved by Dáil invitation to attend. When the Sinéad’s written record of services rendered, but rather Éireann (64 to 57) on 7 January fact of Síle’s acceptance became earlier times. Much has been what the case could bear in 1922 and in the same month as public, all potentially ‘closed written about Eamon de Valera financial terms. Sadly, I noted the Civil War started (28 June doors’ opened and on 14 as soldier, advocate for national that attitudes were changing all 1922), and is still going strong. October 1990, the president, independence, politician and round, applying even to newly- It has been a period of the then chief justice, and statesman, as well as the appointed judges who took a extraordinary change, political, represent-atives of all the publicly-perceived, somewhat decidedly more liberal view social and cultural, and reveals political parties and churches austere figure, who in his time than their predecessors. It how one man, close to the attended. G has been the subject of both would be frightening if a action, perceived himself adulation and opprobrium. But position should arise (and it throughout that 80-year Michael V O’Mahony is a this book is the most intimate looks like it is fast approaching) transition to where we all find consultant with McCann insight into Dev as a husband whereby only the very poor ourselves today. Fitzgerald. 75 Years of the UCC Law Society Therese Lyne (ed). Nonsuch Publishing (2005), 73 Lower Leeson Street, Dublin 2. ISBN: 1-84588-513-9. Price: €18.99. n her preface to this It certainly achieves that. Soc from the 1930s to the social photographer and judge, Icharming volume, the editor This is a beautifully written, present day. It is accompanied Harvey Kenny, who was a expresses the hope that the meticulously researched and by wonderful and often member of the society in the book will pay the UCC Law most entertaining view of the humorous photos, many swinging ’60s. During this era, Society a well-deserved tribute. various activities of the Law supplied by the well-known we are told that a motion of

www.lawsociety.ie 45 LAW SOCIETY GAZETTE BOOKS

censure was passed on the so- these engaging, fresh-faced book gives a concise and very was held that, in the 1950s, the called ‘dinosaurs’ – the youths. readable view of the social taoiseach of the day, John A administrators of the college – This book resonates with history of the time, detailing Costello, addressed the society for daring to criticise the tales of well-known and often the debates on subjects from as a guest speaker. excesses of the then infamous colourful characters of Irish the mischievousness of trade This book contains a wealth Law Ball. Sadly, the rigours of legal, academic and public life, unions to gay rights over 35 of research and record that life in the law have put paid to such as Gerald Goldberg, years ago. The subjects of the ought to ensure its place in many a handsome face Ralph Sutton SC, Professor debates and the calibre of the every legal library in Ireland. beaming from these fascinating Edward Ryan and Jack Lynch, speakers show the central role For anyone with a connection pages, and a worthwhile way to to name but a few. It is most played by law students as the to UCC or an interest in social pass the tedious hours waiting interesting to note how many articulators of the controversial history and the evolution of in the round hall or the leading lawyers, judges, issues of their time. It is not public debate in this country, draughty corridors of rural academics, lord mayors, TDs, surprising that so many of its read this book. G courthouses would be to spot ministers and even a former members went on to make the rather battered taoiseach started their careers such a contribution to public Isabelle Sutton is a solicitor with countenances of current pillars debating in the UCC Law Soc. life in Ireland. Such was the the Cork law firm Dillon Mullins of legal and public life from Divided into decades, this esteem in which the Law Soc & Co. Murdoch’s Dictionary of Irish Law, 4th edition Henry Murdoch. Tottel Publishing (2004), Fitzwilliam Business Centre, 26 Upper Pembroke St, Dublin 2. ISBN: 1-854-75362-2. Price: €110 (hardback). hether you need a Land Registry electronic access that there is also an electronic Wdefinition of a legal term service. version of the dictionary, or its legal meaning, or an Reflecting recent Murdoch’s Irish Legal introduction to an area of law developments and new Companion, available on both that you are not particularly legislation, hundreds of new CD-ROM and online from familiar with, Murdoch’s entries have been added to the Lendac Data Systems Ltd Dictionary of Irish Law, now in fourth edition. Newcomers (http://milcnet.lendac.ie). its fourth edition, is an include ‘case management In addition to the dictionary, excellent research tool. conference’, ‘commercial this product also has the full Now three times the size of proceedings’, ‘eGovernment’, text of Irish statutes up to the 1988 first edition, Murdoch ‘emissions trading’, and 2004, statutory instruments to has established itself as the ‘European arrest warrant’. 2003 plus certain later SIs, the definitive Irish legal dictionary. The entry under ‘dictionary, text of the constitution, Law Actually, the title ‘dictionary’ use of’ states that a dictionary Reform Commission doesn’t really convey the scope may be used in court to publications and some and depth of its coverage. It ascertain the meaning of words European and other materials, gives definitions of words and to which no particular legal and there are links from phrases, including Latin interpretation attaches. A references in the dictionary to phrases, and, in most cases, the number of cases are listed that reports, amendments to the the full text of these materials. legal sources of such refer to the use of a dictionary, constitution (including It allows for cross-referencing definitions, whether statutory including this dictionary, in defeated amendments) and between related terms in the or judicial, as well as a brief court. bibliographies of books on dictionary and for access to introduction to the relevant Many entries run to half a Irish and UK law referred to in websites given in the entries. law. page and longer and there are the dictionary entries. For further information and There are entries for law- extensive cross-references to This is an extremely useful pricing, contact Lendac Data related organisations (both other related headings. Very reference work that is Systems Ltd, Unit 6, Trinity national and international), usefully, entries also point to constantly consulted in the Enterprise Centre, Pearse Irish statutory bodies, and further information – cases, library. Every solicitor would Street, Dublin 2; tel: 01 677 review groups such as the textbooks, government reports, find it useful to have a copy in 6133, email: [email protected]; Company Law Review Group journal articles and websites. his/her office. website: www.lendac.ie. G and the review of the courts The appendices include lists While I have been asked to system. There are entries for of law report abbreviations, review the hard copy version of Margaret Byrne is the Law particular services, such as the Law Reform Commission Murdoch, I should point out Society’s librarian.

46 www.lawsociety.ie BRIEFING 47 MARCH 2006 MARCH www.lawsociety.ie eport G The Council noted that the A number of Council mem- r tem of costs assessment carried tem of costs assessment out by a legal costs assessment assess- office”. The legal costs on ment office would operate proce- the basis of a written appeals dure, with an oral process. minister had announced the appointment of an implemen- tation group, under the chair- manship of Desmond Miller, accountant. It was agreed that the Society should act immedi- ately to impress upon the min- ister the importance of includ- ing a representative of the solicitors’ profession in the implementation group. bers noted that, while the report sought to reduce the costs for those who could afford to go to litigation, it did nothing for those who could not afford to go to litigation. Paragraph 5.51 of the report timidly suggested that the gov- ernment might consider doing something about legal aid. effect of a negative However, the implementation of the report would be that many individuals who had meagre financial means, but did not qualify for legal aid, would now go unrepresented. It was noted that, in England and Wales, this factor had been recognised and had been dealt with by a provision that allowed for an uplift in fees where a solicitor successfully represented a client in such circumstances. It was also noted that reviews of civil legal aid were being con- ducted throughout the world and new initiatives, such as drop-in centres and part-pay- ment of fees, were being intro- duced. council council Mr Griffin noted that the the report rec- Significantly, The group had also recom- the report of the working the report of the costs. In group reviewing legal he noted that the particular, on key submissions Society’s justice’ the issues of ‘access to had been and ‘no foal, no fee’ group. accepted by the working The group had also accepted that “the costs should follow the event”. group had rejected the con- cept of setting scales of fees having mandatory effect. Instead, the group had recom- mended the establishment of “a legal costs regulatory body to formulate guidelines setting out the amounts of legal costs that normally can be expected to be recovered in respect of particular types of proceedings or steps within proceedings”. Such costs guidelines would be based on “an assessment of the amount and nature of work required to be done in such a case”, including such elements as “the appropriate hours expended by the various persons to be remunerated, the complexity of the proceed- ings and the stages therein, and the level of the court in which the case is heard”. The onus would be on a party seek- ing costs higher than those set out in the guidelines to show in the particular circum- why, stances of the case, the higher amount claimed should be paid. ommended that “the body responsible for issuing guide- lines be charged under statute with keeping its costs guide- lines up-to-date”. mended that “the taxation sys- tem be replaced by a new sys- and endorsed the com- ulnerable Adults and the Law: ulnerable Adults and the epresentatives eview of legal costs The Council noted, with The Council noted, the approval, extracts from Law Reform Commission’s entitled consultation paper V Capacity for recommendation mission’s the establishment of the Office of Public Guardian. Legal services ombudsman The Council noted the announcement made by the minister for justice, equality and law reform that he intend- ed to appoint a legal services ombudsman, who would per- form the functions of the cur- rent independent adjudicator, but in relation to both branch- es of the profession and with an additional function to monitor entry to the profession on an annual basis to ensure that entry was not determined by financial inter- the profession’s needs. The ests but by society’s Council indicated its support for the proposal, subject to sight of the detail of the legisla- tion. Appointment of Law Society r The Council approved the appointment of Helene Coffey representative as the Society’s on the Irish Auditing and Accounting Supervisory Board and the appointment of John repre- Costello as the Society’s sentative on the Elder Abuse National Implementation Group established by the Department of Health and Children. Government working group r Gerard Griffin outlined the principal recommendations of Report Law Society Council of and that meeting held on 13 Januarymeeting 2006 , which gave John Costello John O’Connor Solicitors’ Accounts Solicitors’ Accounts John O’Connor James B McCourt . Solicitors’ Accounts The Council noted that the ecommendations in recommend- (Amendment) Regulations Motion: Office of Public Guardian “That this Council supports the Law Reform Commission’s r ing the establishment of a new independent Office of Public to promote and protect Guardian of vulnerable the interests adults.” Proposed: Seconded: the regulations of the Council be of the the regulations implemen- amended to delegate the tation of the (Amendment) Regulations 2006 to the Regulation of Practice to the Committee without reference Council.” Proposed: The Council approved the Solicitors’ Accounts (Amendment) Regulations 2006 effect to a recommendation of the Regulatory Review Task Force to provide for the moni- toring of compliance with sec- tion 68 as part of a standard investigation into compliance with the Regulations Regulation of Practice Committee already had the power to institute investiga- tions to monitor compliance with section 68 and that the effect of the regulations was to combine pre-existing functions so that, where there previously had been two separate investi- gations, there would now be only one. Motion: the “That this Council approves (Amend- Solicitors’ Accounts ment) Regulations 2006 Seconded: Taxation Committee Criminal Law Committee ership, other than under a per- ership, other than under mitted rent-a-room or scheme, as a failing to have it occupied main residence. The simple questionnaire (see below) may be considered by practitioners for use and retention on the file. It is not intended as a substitute for comprehensive advice. advised that, in such circum- stances, the invoice for the interpreter should be submitted along with the practitioner’s own claim form under the Garda Station Legal Advice Scheme. Both will then be submitted to the finance division of the department for payment. No / Yes : : (to be completed by each purchaser) STAMP DUTY ENQUIRY FORM DUTY ENQUIRY STAMP mmittee recommends co egarding the payment YMENT FOR INTERPRETERS ueries have recently arisen r o you intend to claim first-time buyer’s relief? he that solicitors obtain written Have you ever purchased your own behalf a house, or built on or do you, or have you had, an interest in a house (either in Ireland or abroad)? resideDo you, or does anyone on your behalf, intend to in this house as a principal private residence for a minimum of five years? Do you intend to chargerent within the first five years of own- ership, other than under a permitted rent-a-room scheme? resideDo you, or does anyone on your behalf, intend to in this house as a principal private residence for a minimum of five years? Do you intend to chargerent within the first five years of own- ership, other than under a permitted rent-a-room scheme? The Departmentof Justice, TTENDING AT GARDA STATIONS TTENDING AT PA A elief, and also confirmation eceiving rent from the property STAMP DUTY RELIEFS STAMP Q T First-time buyer •D • • • Owner occupier • • Dated: Signed: Name: instructions from clients confirm- first-time ing their entitlement to buyer’s relief owner occupier and r from the client that the client understands the implications of r within the first five years of own- structure for interpreters provid- ing services to persons detained in garda stations and the proper procedure for the processing of claims in relation to same. Equality and Law Reform has , as , as Offences Criminal Justice Taxation Committee Criminal Law Committee .) under section 30 of the Returns can be made online ency it was paid in; either the ency it was paid in; either interest and the cur- payment r account number associated with the interest payment or information asset identifying the giving rise to the interest pay- ment, if there is no account (A more detailed outline number. of the directive is available in the ‘Practice Note’ section of the July 2005 issue of the . Gazette via the Revenue Online Service or a hard-copy (www.revenue.ie) form of return can be obtained from the VIMA Office, Government Offices, Millennium Centre, Dundalk, Co Louth. Further information in relation to completion of returns is avail- able from: Direct Taxes Interpretation and International Division, Stamping Building, Dublin Castle, Dublin 2; tel: 01 674 8016 or 01 674 8018. Practitioners should note that, For persons detained under (Drug Trafficking) Act 1996 Against the State Act 1939 , amended, 11 consultations over the detention period, subject to a maximum of three paid consulta- are tions per calendar day, allowed. for the purposes of the Garda Station Legal Advice Scheme, ‘consultation’ is taken to include telephone consultations. amended. section 2 of the notes Criminal inter alia 31 March 2006 , as amended. Savings Directive iminal Law Committee Cr SAVINGS DIRECTIVE has received a response he he EU imposes certain obligations Three consultations are Practitioners are reminded Seven consultations over the GARDA STATION LEGAL ADVICE GARDA STATION SCHEME eturn must be submitted to EU T T from the Department of Justice in relation to its query regarding the number of consultations per- mitted under the Garda Station Legal Advice Scheme. allowed over the detention period where the person is detained under section 4 of the Practitioners are urged to begin the process of collating the nec- essary information in early course, in order to meet the Revenue deadline. The informa- tion required includes, on ‘paying agents’ (which on ‘paying agents’ make includes solicitors), who or secure interest payments in for the course of their business A the benefit of individuals. r Revenue by 31 March in each tax year in respect of relevant payments. that the first such return, cover- ing the period from 1/7/05 to 31/12/05, must be submitted to Revenue by www.lawsociety.ie LAW SOCIETY GAZETTE practice detention period, subject to a maximum of three paid consulta- are tions in a calendar day, allowed for persons detained Justice Act 1984 the paying agent’s name, address and tax reference num- ber; details of the type of inter- est payment made and when it was paid; the amount of the

BRIEFING 48 BRIEFING 49 sary in the petition or sup- porting documents. on and from 26 January 2006. Chief Justice, Chief Justice, supporting documents. This direction shall take effect on and from 26 January 2006. MARCH 2006 MARCH 2) This direction shall take effect John L Murray, John L Murray, in more detail 25 January 2006 25 January 2006 2) www.lawsociety.ie Conveyancing Committee It is not attached to the land. It is not attached agricultural asset It is not an stamp duty but or for CAT may be considered a busi- right ness asset under the circumstances. Consolidation of entitle- ments is not considered a disposal for CGT purposes. Taxbriefing • • • look at It is vital that colleagues the before clients in any advising Single dealings with the Payment. , the administration of oaths in the city or district for county, which appointment is sought is inadequate to meet the needs of business and com- merce and no averment as to such matter shall be neces- matters in the county, city or matters in the county, district for which appointment is sought is inadequate to meet the needs of business and commerce and no aver- ment as to such matter shall be necessary in the petition or Taxbriefing 61 n their SINGLE PAYMENT SCHEME PAYMENT SINGLE FOR FARMERS I Some points to note in Some points to note a It is a separate asset with nil base cost. Revenue Commissioners have Revenue Commissioners outlined how they intend to deal outlined how with the Single Payment This Scheme for tax purposes. tax, CAT, deals with the income issues stamp duty and VAT CGT, Single on dealings with the at the Payment and is available www.rev- Revenue website at enue.ie. Revenue’s intended treatment of the Single Payment are: • Litigation Committee an application to be appoint-

In an application to be appointed a commissioner for oaths, the petitioner shall not be required to establish that the existing number of com- missioners available for the In cases of long duration, PRACTICE DIRECTIONS In ed a notary public, the peti- tioner shall not be required to establish that the existing number of notaries available for the transaction of notarial for oaths: 1) applications can be made to applications can be made or, have cases listed for Dundalk on production of letters of con- sent from all parties, the appli- regis-cation can be made to the Cases that are not disposed trar. retainof in these two weeks will list. their position in the Dublin arrangements will be made to have the case heard at a venue other than Dublin. notary public: 1) Courts the powers , I hereby make uance of the powers ioners should note that s

it

ct , I hereby make the follow- pur

Rules of the Superior Courts ra the High Court will sit at

In any action where there is There of the will be a call-over vested in me by the n n pursuance of vested in me by order 127 of APPOINTMENT BY THE CHIEF JUSTICE OF NOTARIES PUBLIC JUSTICE OF NOTARIES APPOINTMENT BY THE CHIEF (No 2 of 1993) APPOINTMENT BY THE CHIEF JUSTICE OF COMMISSIONERS FOR OATHS APPOINTMENT BY THE CHIEF

I I NON-JURY LIST – SPECIAL CALL- LIST – NON-JURY TO FIX CASES ON 9 MARCH OVER FROM IN DUNDALK FOR HEARING 2006 24 APRIL

the P Dundalk, commencing on Dundalk, commencing for two Monday 24 April 2006, weeks, to hear non-jury actions. the consent of all parties, an to have application can be made at the case listed for hearing weeks. Dundalk during those two non-juryDublin) on 9 list (in March 2006 where consent ing direction and regulation con- cerning applications of persons to be appointed a commissioner the following direction and regu- lation concerning applications of persons to be appointed a 1961 (Supplemental Provisions) Act arious Com- V 10/7/2005 25/3/2005 s64(b) as relates 104(1)(b) (per SI mineral oil tax on Finance Act 1999 20/2005 5/2005 axes Consolidation Act 1997 mencement order(s) to be made (per s2 of the act): 1/8/2005 for part 1 (ss1-5), other than s4, and for ss7, 39, 40, 41, 47, 48, 49, 60, 62, 121 (other than subsections (2)(b) and (2)(c)), 124, 130 and 131 (per SI 370/ 2005); 9/12/2005 for the following provisions: sections 24, 63 to 66, 67(3), 67(4), 67(5), 68 to 72, 76 to 80, 121(2)(b), schedule 2 (insofar as it relates to a person trans- ferred under section 72 of the act to the commission), and schedule 4 (per SI 801/ 2005); 12/12/2005 appointed as the establishment day for the establishment of the Garda Síochána Ombudsman Commission (per SI 802/2005) Commencement date: Garda Síochána Number: Act 2005 Date enacted: Finance Act 2005Number: Date enacted: Commencement date: – see act and commencement 150(9). sections 150(8) and to be Commencement order(s) made for certain provisions: 1/5/2005 for ss100(1)(a), 100(1)(b) and 225/2005); 1/7/2005 for ss65, 66, 67(b) and 69 and so much of the amendment of schedule 2 to the referred to in to rates of coal (per SI 284/2005); 1/7/2005 for s87 (per SI 291/2005); see SI 317/2005 for application of s898P of the T (substituted by s144(1)(h)) on and from 1/7/2005; 23/9/2005 for s21(1)(e)(ii) (per SI 570/2005) 9/7/ 1/9/ 21/12/ Com- Electoral 8/7/2005 25/5/2005 9/7/2005 8/2005 16/2005 14/2005 Commencement date: Commencement date: and 2005 for certain sections, see act for other commence- ment provisions (Amendment) Act 2005 2005 Commencement date: mencement order(s) to be made, except for provisions whose commencement dates are otherwise provided for by the act (per s1(2) and 1(3)). These commencement dates are: 31/12/2005 for s25 (access to public buildings), s26 (access to services), s27 (accessibility of services supplied to a public body), s28 (access to informa- tion), and 31/12/2007 for s29 (access to heritage sites). 29/7/2005 for part 1 (ss1-6), sections 24, 30, 31, 32, 33, 34, 35, 36 and 37, and part 7 (ss53- 58); 31/12/2005 for sections 38, 39 and 40, part 4 (ss41-45) and part 5 (ss46-51); 1/1/2007 for part 6 (s52) (per SI 474/2005) Dormant Accounts Number: Date enacted: Commencement date: 2005 for all sections of the act (per SI 545/2005) Electoral (Amendment) Act Number: Date enacted: Commencement date: 2005, but provisions relating to the new constituencies and the repeal of the (Amendment) (No 2) Act 1998 will come into force on the dis- solution of the Dáil that next occurs after the passing of this act (per ss2, 3(1) and 5(2)) Disability Act 2005Number: Date enacted: Com- 8/3/ 9/7/ 21/12/ , s14) (per 9/7/2005 21/12/2005 8/3/2005 21/12/2005 9/7/2005 Criminal Justice Act 34/2005 33/2005 2/2005 17/2005 , as amended by the mencement order(s) to be mencement order(s) for made for all sections, except service part 10 (s33, ‘public is superannuation’), which deemed to have come into operation on 1/4/2004 (per s2 of the act): 6/10/2005 for sec- tion 8 (per SI 763/2005) Date enacted: Commencement date: Act 2005 s23) 2005 2005 Offences) Act 2005 Child Abuse (Amendment) 2005 for all sections other than section 32; 8/7/2005 for sec- tion 32 (amendment of section 32 of the 1994 Criminal Justice (Miscellaneous Provisions) Act 1997 section 2 of the act) Commencement date: Commencement date: Development Banks Act Number: Date enacted: Coroners (Amendment) Act Number: Date enacted: 2005 Criminal Justice (Terrorist Number: Date enacted: Number: Date enacted: Commencement date: 2005. Establishment day order to be made not later than one year from the date of the passing of this act for the establishment of the Edu- cation (Former Residents of Certain Institutions for Children) Finance Board (per Commission to Inquire into ACTS PASSED IN 2005 ACTS PASSED legislation update legislation 28/11/ 6/5/2005 9/7/2005 4/7/2005 16/12/2005 2/11/2005 all bills, acts and 18/2005 6/2005 19/2005 13/2005 29/2005 25/2005 etails of of etails statutory instruments (Amendment) Act 2005 (Amendment) Act 2005 (Amendment) Act 2005 (Indemnities) Act 2005 Civil Service Regulation Number: Civil Registration Number: British-Irish Agreement Number: Date enacted: Commencement date: 6/5/2005 Date enacted: Commencement date: 9/7/2005 Appropriation ActNumber: 2005 Air Navigation and Transport Number: Date enacted: Commencement date: 4/7/2005 Date enacted: Commencement date: 16/12/2005 Adoptive Leave ActNumber: 2005 Date enacted: Commencement date: 2005 for all sections of the act other than ss9 and 10 (per SI 724/2005); 30/1/2006 for ss9 and 10 (per SI 16/2006) www.lawsociety.ie since 1997 are on the library since 1997 are on the catalogue – www.lawsociety.ie (members’ and students’ infor- area) – with updated stage mation on the current and the a bill has reached of commencement date(s) each act. Commencement dates are up to date to 15 February 2006. D LAW SOCIETY GAZETTE

BRIEFING 50 BRIEFING 51 12/7/ Com- Com- 18/12/ G Prepared by the Prepared 27/11/2005 18/12/2005 13/12/2005 12/7/2005 MARCH 2006 MARCH www.lawsociety.ie Law Society Library 28/2005 22/2005 26/2005 32/2005 for s16, various dates – for s16, 1/6/2005, 2/6/2005 7/4/2005, – for ss24 and 25 and 6/6/2005 to different as they apply for s26 benefits, 11/4/2005 23/9/ (per SI 182/2005); other 2005 for part 3 (ss27-39), (per SI than ss38 and 39 591/2005) eterinary Practice Act ransfer of Execution of Sentences Act 2005 Act 2005 (Pre-1922) Act 2005 2005 Commencement date: Commencement date: to be mencement order(s) made (per s366); 6/4/2012 for para 3 of schedule 6 (per s366(2)(c)) Commencement date: 2005 T Number: Date enacted: Commencement date: mencement order(s) to be made (per s14(2) of the act) V Number: Date enacted: Commencement date: 2005; 1/1/2006 appointed as the establishment day for the establishment of the Veterinary Council of Ireland in accor- dance with section 3 of the act (per SI 598/2005) Social Welfare Consolidation Number: Date enacted: Statute Law Revision Number: Date enacted: Var- Com- arious Com- V CHOOSE THE LAW SOCIETY (per SI 22/6/2005 30/5/2005 16/12/2005 14/3/2005 30/2005 4/2005 10/2005 9/2005 l: (01) 672 4802, fax: (01) 672 4890 ebsite: www.lawsociety.ie ou can obtain more information on any CPD seminar ork Act 1989 mencement order(s) will be mencement ss84 and 92 of the made (per for the establish- act); 1/1/2006 Railway Safety ment of the 2 (ss7- Commission under part 35)(per SI 841/2005) Y by contacting the CPD team at: Te e-mail: [email protected] W Act 2005 Act 2005 at Work Act 2005 Substances) (Compensation) Commencement date: Commencement date: be made mencement order(s) to 1/9/2005 (per s1(2) of the act): section for all sections, except subsec- 4(2) other than as that of the tion applies to the repeal Health andSafety, at Welfare W 328/2005) Commencement date: mencement order(s) to be made (per s1(4) of the act) Social Welfare ActNumber: 2005 Date enacted: Commencement date: – see act Social Welfare and Pensions Number: Date enacted: Commencement date: ious – see act. Commencement orders to be made for ss7(1), 16 and 24 to 39 (per s1(4), 1(5) and 1(6) of the act): 11/4/2005 for ss38 and 39 (per SI 187/2005); 3/5/2005 for s7(1) (per SI 230/2005); 1/6/2005 Safety, Health and Welfare Number: Date enacted: Sea Pollution (Hazardous Number: Date enacted: 12/2/ 4/11/ 19/5/ 29/6/ 18/12/ CONTINUING PROFESSIONAL DEVELOPMENT 12/2/2005 18/12/2005 19/5/2005 29/6/2005 26/10/2005 7/2005 1/2005 31/2005 11/2005 24/2005 made for all other sections made for the act): 30/6/2005, (per s2 of 6/7/2005 and 1/9/ 1/7/2005, sections of 2005 for specified the act (per SI 323/2005); 61 and 1/12/2005 for ss57, 58, law 71 (miscellaneous company 2005) amendments) (per SI 695/ (Amendment) Act 2005 Rents) Act 2005 Proceeds of Crime Number: Date enacted: Commencement date: 2005 Railway Safety ActNumber: 2005 Date enacted: Commencement date: 2005 for all sections other than part 9 (ss84-91) and part 10 (ss92-112) for which com- Number: Date enacted: Commencement date: Maritime Safety Number: Act 2005 Date enacted: Commencement date: Land Act 2005 Number: Date enacted: Commencement date: sec- 2005 for all sections except oper- tion 5, which comes into (per SI ation on 2/12/2005 689/2005) Landlord and Tenant (Ground 2005 2005 for sections 53 and 56 and for part 6 (sections 59 and 60), 29/7/2005 for all other sections (per s1(10) of the act) [CPD] 20 discount (www.lawsociety.ie € 11/7/ 29/6/ Com- 29/6/2005 9/7/2005 17/10/2005 30/11/2005 11/7/2005 11/3/2005 Gazette. 23/2005 12/2005 15/2005 27/2005 3/2005 21/2005 own Convention) Act 2005 APPLYING IS EASY APPLYING Apply on-line and receive a and follow links for CPD) or simply return the application form at the back of the CPD brochure which is enclosed with each issue of the DISCOVER THE EASYDISCOVER WAY GET TO YOUR CPD HOURS – Provisions Act 2005 T and Miscellaneous Mobile Equipment (Cape Professionals Act 2005 2005 Agency Act 2005 Number: Date enacted: Commencement date: Investment Funds, Companies 2005 for sections 85 and 86; commencement order(s) to be Interpretation ActNumber: 2005 Date enacted: Commencement date: 9/7/2005 Commencement date: 1/1/2006 (per s1(2) of the act) Number: Date enacted: International Interests in Date enacted: Health and Social Care Number: Commencement date: mencement order(s) to be made (per s2 of the act) Number: Health (Amendment) Act Date enacted: Commencement date: Commencement day order 2005. Establishment a date to be made appointing of the for the establishment Grangegorman Development act) Agency (per s5 of the Commencement date: 11/3/2005 Number: Date enacted: Grangegorman Development conferred exclu- , High Court, Mr to information, in the Freedom of InformationFreedom Act EC Treaty Herbert J dismissed the pro- Herbert J dismissed the The Supreme Court (Den- ceedings, holding that the ceedings, holding sole- plaintiffs’ claim was based liability ly on non-contractual caused to for damage allegedly the plaintiffs by the institutions of or by one or more servants within the community acting duty the scope of their official the claim and, accordingly, came within the provisions of article 288, paragraph 2, and was maintainable only by virtue of that provision. Article 235 of the sive jurisdiction on the European Court of Justice in respect of claims to which arti- cle 288, part 2, applied, and consequently this court had no jurisdiction to hear and deter- mine the plaintiffs’ claim. Kearns v European Com- mission Justice Herbert, 21/10/2005 [FL11794] Access to information to hospital Entitlement of parent notes about illness of daughter – Freedom of Information Act 1997. At issue in this case was whether who had a widower a father, been separated from his late wife, who was joint guardian of his children, was entitled under the 1997 form of hospital notes, about illness. his daughter’s ham, McGuinness, Hardiman, Geoghegan and Fennelly JJ) dismissed the appeal, affirmed the decision of the High Court and remitted the matter to the Information Commissioner for review in accordance with the FREEDOM OF INFORMATION EC , which , Court of EC Treaty – whether the court had [FL11801] The Court of Criminal eaty of undue leniency. of Appeal held that a sentence com- ten years’ imprisonment of the mencing from the date original commencement of the sentence was the appropriate circum- sentence in all the sentence stances of the case. A for a second, quite similar offence committed in close proximity to the release from the sentence for the first had to be greater than that for the first offence. The question of the regime, medical or otherwise, appropriate to the applicant was a matter for the executive. DPP v Moore Criminal Appeal, 20/12/ 2005 Practice and procedure Jurisdiction – European law – articles 235 and 288 of the Tr jurisdiction to hear and determine the plaintiffs’ claim for damages against the European Commission for infringement of copyright. The plaintiffs’ claimed dam- ages for infringement of copy- right, infringement of their false attribu- right of paternity, tion of authorship and conver- sion. By notice of motion, the defendant sought an order dis- missing proceedings on the basis that the court had no jurisdiction to hear and deter- mine the plaintiffs’ claim hav- ing regard to articles 235 and 288 of the vested exclusive jurisdiction in relation to claims concerning the non-contractual liability of the EC for actions by its insti- tutions in the European Court of Justice (ECJ) to the exclu- sion of any national court. EUROPEAN LAW , s2. . Given Criminal Bunreacht – [FL11784] , article 38.3. Criminal Justice Act , Supreme Court, , as amended, were not The attorney general and The attorney general The Supreme Court (Murray CRIMINAL Jurisdiction of – jurisdiction Confiscation order to make Special Criminal Court of under s4 order Justice Act 1994 na hÉireann the DPP appealed against the determination of the High Court that the power to make a confiscation order following a conviction was not sufficient- ly ancillary to the trial of offences to come within the jurisdiction of the Special Criminal Court pursuant to article 38.3 of the constitution and that the powers contained in s4 of the 1994 conferred on the Special Criminal Court. CJ, Denham, Geoghegan, Fennelly and Macken JJ) dis- missed the appeal, holding that the Special Criminal Court did not have jurisdiction to make orders pursuant to s4 of the Criminal Justice Act 1994 Sentencing Unduly lenient – application by – rape – medical DPP for review issues – second offence – whether regime, question of rehabilitating medical or otherwise, matter for executive and not court – Criminal Justice Act 1993 The DPP applied for a review of a sentence of six years imposed on the respondent for sexual offences, on the grounds the nature of the court, a court of trial, matters other than a trial could not be inferred into its jurisdiction. Gilligan v Special Criminal Court 21/12/2005 News fromIreland’s online legal awareness service Compiled by Flore Bouhey for FirstLaw update , High [FL11812] The defendants pleaded Carroll J, in determining a illiam McDonnell espass to goods – whether the espass to goods – whether CONVEYANCING deed of transfer created an option deed of transfer created which was interest, or other future void as infringing the rule against perpetuities. deed of The plaintiff, by transferred certain transfer, lands in consideration of a sum Those lands were of money. ultimately transferred to the defendants. The deed stated that certain minerals found on/in the land were excepted and reserved to the plaintiff, subject to the payment to the transferee of repurchase. The plaintiff sought damages for trespass to goods and conver- sion, claiming that the defen- dants converted those miner- als, the property of the plain- tiff, to their own use and sold same. that the deed did not reserve or except to the plaintiff the minerals alleged and, further, that the deed purported to create an option or other future interest in the lands, which was void in law for infringement of the rule against perpetuities. preliminary issue as to the validity of the deed, held that on a true construction of the reserve it did deed of transfer, to the plaintiff the minerals deed the alleged. However, created an option to repur- chase in order to extract the minerals, which was void for offending the rule against per- petuities. Roadstone Dublin Ltd v W Court, Ms Justice Carroll, 6/11/2003 Deed of transfer Tr www.lawsociety.ie firstlaw LAW SOCIETY GAZETTE

BRIEFING 52 53

BRIEFING , [FL11773] . At the hearing MARCH 2006 MARCH www.lawsociety.ie Murphy J refused the relief Murphy J refused the did not Section 160 of the act the allow the court to restrict use of development even if it proved to be unauthorised, as the power of the court was only to order the carrying out of any works, including the restoration, reconstruction, removal, demolition or alter- ation of any structure or other feature once it was proven that development was unauthorised; Section 160 applied to development in respect of which no planning permis- or sion had been applied for, was having been applied for, refused; the planning authority by engineers for the respondent did not amount to such a breach of the planning regu- lations as to invalidate the planning permission granted for the development com- plained of, and the develop- ment was authorised. ward of damages – back injuryward – missions had been granted, in missions had article 23 of the breach of and Development Planning 2001 Regulations the works of the application, completed and the had been to have applicant then sought works the use of the said respon- restrained instead. The the works dents contended that of the were within the scope by the permission granted planning authority. sought, holding that: 1) 2) 3) The drawings submitted to Cantwell Ltd v McCarthy Personal injuries A future. foreseeable The plaintiff suffered a low- back injury as a result of a colli- sion between her vehicle and a vehicle being driven by the defendant. As a result of her injuries, the plaintiff was unable to assist her husband on High Court, Mr Justice 1/11/2005 Murphy, TORT High , , s160. Planning and Planning and [FL11752] , article 23 – , for an order restraining O’Sullivan J refused the O’Sullivan J refused took into account Dublin Rock’s took into account under two separate track record broadcasting con- temporary where it tracts in circumstances to credit for was only entitled one. that the application, holding comprise several elements that by character were considered the respondent. Furthermore, establish the applicant failed to gave an that the respondent aris- advantage to Dublin Rock ing out of its illegal broadcast- ing experience. The applicant’s bias did allegation regarding not establish the level of coher- ent evidence required to sub- stantiate such an allegation of a the fraudulent nature. Finally, respondent did not err in con- sidering the provision of servic- es provided pursuant to the two temporary contracts. Scrollside Ltd, trading as ‘ZED FM’ v Broadcasting Commission of Ireland Court, Mr Justice O’Sullivan, 1/11/2005 Injunction Unauthorised development – whether court has jurisdiction to deal with s160 application when basis for application is question of validity of planning permission – principles of construction of plan- ning documents – Development Regulations 2001 Development Act 2000 The applicant applied, pur- suant to section 160 of the Planning and Development Act 2000 the continuation of works by the respondent on a drainage system, on the basis that it was unauthorised development as it did not conform to planning permission granted to the respondent, in that it occurred outside the area delineated in red on the maps submitted to the planning authority in respect of which planning per- PLANNING AND DEVELOPMENT High Court, Mr , O’Neill J dismissed the O’Neill J dismissed The respondent assessed ref- credibility correctly by out in erence to factors set its decision, which it was entitled to treat as factors relevant to an assessment of credibility; the applicant’s what took place at the oral hearing of the applicant’s appeal. In any event, there was no dereliction by the respondent in failing to put certain matters expressly to the applicant at the oral hearing. ribunal) JUDICIAL REVIEW sion of the respondent refusing sion of the refugee status. The to grant her that the find- applicant alleged respondent that her ing by the not credible was story was carrying out a reached without proper assessment of credibility. claimed The applicant further were not that certain matters which ultimately put to her, in the became significant factors assessment of her credibility. application, holding that: 1) 2) There was no evidence as to Nicolai v Des Zaidan (Sitting as the Refugee Appeals T Justice O’Neill, 7/10/2005 [FL11818] Licensing Granting of broadcasting licence – in erred whether the respondent a broadcasting licence to awarding the successful applicant, who had engaged in illegal previously broadcasting. The applicant was the unsuc- cessful bidder for a broadcasting licence on the FM radio band in Dublin and challenged the award of the contract to Dublin Rock Radio Ltd on the grounds that the respondent failed to consider the character of the successful candidate, erred in law in affording Dublin Rock credit for the experience and expertise gained by it during a period of illegal broadcasting, prejudged the issue of the award of the contract, and erroneously quashing the quashing the deci- [FL11823] High Court, Mr certiorari , , Supreme Court, certiorari O’Neill J refused the appli- rture) Act 2000. IMMIGRATION Asylum in erred Whether the respondent its assessment of the applicant’s in determiningcredibility her application for asylum. The applicant sought an order of Justice O’Neill, 13/10/2005 [FL11744] cation, holding that the appli- cant failed to demonstrate that there were substantial grounds for contending that the deci- sion of the first-named respon- dent should be quashed. Amadi v The Minister for Justice, Equality and Law Reform decision of the respondent to make a deportation order The applicant sub- against her. failure mitted that the minister’s to consider the question of tor- ture pursuant to s4 of the 2000 act and his failure to consider certain country of origin infor- mation that was favourable to the applicant invalidated the The appli- deportation order. cant further submitted that there was an error on the face of the record and that the order failed to state the destination of deportation, thus rendering it invalid. Judicial review Asylum –whether the deportation was made by the respondent order quashed – invalid and ought to be Criminal Justice (United Nations Convention Against To The applicant sought leave to apply for judicial review and an order of correct test, holding that the correct test, the commissioner approach of when he required was in error evidence” that the “tangible such information release of the best interests of would serve the minor. McK v Information Commis- sioner 24/1/2006 Circuit G 330 350 310 € € € [FL11827] 3-4 weeks plaintiff’s action, holding that action, plaintiff’s of premises would an occupier to visitors injured only be liable thereon if he due to a danger reasonable care had not taken to the danger on with regard respect, the premises. In this on its each case is determined shelving own facts. Here, the in any was not obviously unsafe it was an way and the curving in could aesthetic concession that a not be foreseen as providing grip that child with a levering topple. would cause it to young Furthermore, given that be children would inevitably accompanied by an adult when visiting such a shop, there was no duty on the occupier to sta- bilise the shelf so as to render it immoveable. Coffey v Moffit, Court, Judge McMahon, 17/6/2005 , The information contained here Legal is taken from FirstLaw’s Service, Awareness Current published every day on the inter- net at www.firstlaw.ie. For more information, contact bartdaly@ or FirstLaw, firstlaw.ie Court, Merchant’s Merchant’s 01 679 Dublin 8, tel: Quay, 0370, fax: 01 679 0057. Private companies limited Single-member companies Guarantee companies Charitable status companies Unlimited companies High Court, Mr , Guarantee/charitable status companies from The plaintiff, a two-and-a- McMahon J dismissed the file your documents

the driver of the lorry was not the driver the second defen- the privy of of lia- dant, the apportionment action was not bility in that of the appor- determinative the defen- tionment between action on dants in the present the basis of issue estoppel. Murrin County v Sligo Disposal Council and Waste Sligo Ltd Justice Finnegan, 5/12/2005 [FL11828] Duty of care liability – invitee – Occupier’s to see care duty to take reasonable safe for visitors – that premises – child whether danger foreseeable toppling shop shelf on to herself and sustaining injuries – Liability Act 1995 Occupier’s section 1(1), 3. infant, injured half-year-old her thumb when she desta- bilised a glass shelve that was three feet from the ground in shoe shop, the defendant’s which she was visiting with She alleged that her mother. the heavy glass shelves pro- truding from the wall in a chil- shoe shop was an unrea- dren’s sonable danger. achieved ISO 9001:2000 NSAI in 2002. Fast efficient service Competitive prices5-day electronic filing We which is electronically, faster and cheaper for you by shares

our Company Formation Service forms approx 1,100 Private and single-member companies limited by shares and unlimited companies: 5 day Y companies every year for over 300 solicitors’ firms. We WHY USE US WE FORM THE COST COMPANY FORMATION SERVICE FORMATION COMPANY or 672 4914/6 or fax 01 672 4915 tel 01 Finnegan P held that the defendant and driven by a per- defendant and claim for personal son whose struck out in injuries was the second-named respect of in separate, prior defendant relating to the proceedings indem- same crash. Notices of had been nity and contribution as served in those proceedings The driv- in the present action. and the er was found to be 60% fault in first defendant 40% at action. his personal injuries claimed The second defendant as that the issue of liability the first between itself and deter- defendant had been mined in the earlier action. In short, issue estoppel was claimed. issue of liability between the first and second defendants remained to be determined and that the withdrawal of a claim not leading to an adverse adju- dication did not operate as an estoppel. While the first and second defendant had been parties to earlier action the issue brought by the driver, between them on their respec- tive defences and notices of indemnity and contribution had not been determined and remained to be dealt with. As For further information, application form and form A1 see our website . High Court, , www.lawsociety.ie or contact us directly by or contact us directly www.lawsociety.ie email: [email protected] 393,044 by way of 393,044 by res judicata € Peart J awarded the plaintiff a Peart J awarded LAW SOCIETY SOCIETY LAW the family farm, she experi- the family carrying out enced difficulties chores, and she was household to her job. unable to return sum of compensation, holding that it compensation, holding plaintiff was likely that the or would not gain any full-time any per- even part-time work of the manence. Furthermore, injuries would contin- plaintiff’s for the ue to cause her difficulty accord- foreseeable future and, entitled to an she was ingly, past and award of damages for loss of future pain and suffering, earnings and loss of pension. O’Neill v Kenny The plaintiff was a passenger in a lorry owned by the second Mr Justice Peart, 24/10/2003 [FL11793] Estoppel Road accident – personal injury – plaintiff passenger in vehicle owned by second defendant and driven by its employee – personal injury proceedings brought against lorry owner and road authority – struckdriver previously out claim for injuries sustained in same acci- dent as against second defendant – whether issue of second defendant’s negligence www.lawsociety.ie LAW SOCIETY GAZETTE

BRIEFING 54 BRIEFING 55 MARCH 2006 MARCH www.lawsociety.ie Reading between the lines Reading between the In that case – and assuming both the green Finally, The green paper (and much legal passing-on defence before the passing-on defence before Irish courts. relevant of the concisely worded working section of the EC’s it would appear likely that paper, the con- one of the outcomes of like in the sultation will be that, United States, the EC will rec- ommend that the passing-on defence in competition cases is excluded in damages actions before the Irish courts (or sug- gest such conditions as to render the defence practically useless). position in the staff that the EC’s paper (that inevitably a trade-off will have to be made between the effective enforcement of EC competition law and justice, in the sense of a full recovery for all those who have suffered loss from an illegal practice) is endorsed by the member states and commentators – it is also likely that in Ireland and for the foreseeable future, indirect pur- chasers (or even final con- sumers) will find it very difficult to translate their theoretical right to bring damages claims available now into actual com- pensatory awards in the courts. paper and the working paper suggest that the hopes of some Irish practitioners may be bol- stered to the extent of introduc- ing some pan-EU basis for col- lective or representative actions by consumer associations or other qualified entities claiming damages for violation of the EC competition rules. more detailed staff working paper) can be downloaded from www.europa.eu.int/comm/com- petition/antitrust/others/actions _for_damages/index_en.html. eur In Ireland, some of the com- In Ireland, some of the and as there is no Similarly, in several areas, However, sultation, it wants to significant- ly enhance the complementary of role of private enforcement rules – the EC competition 1 May firmly grounded in the package – 2004 ‘modernisation’ future. in the not-too-distant options are likely to be mission’s less than controversial. For example, the availability of wide-ranging pre-trial discovery from a defendant in ‘stand alone’ actions (taken without a prior decision of a competition regulator) that is the norm in Ireland and England and Wales is offered as one of five options to overcome the obstacles to obtaining the factual evidence necessary to bring a claim that litigants in other member states face. need for a plaintiff to prove fault on the part of the defendant in competition cases, the option to introduce some form of no-fault liability (ie simply proving the infringement would suffice) should not prove problematic, in Ireland at least. the options canvassed by the commission would merit some attention from Irish competi- tion law practitioners before the consultation ends. Accord- ing to the Irish sections of the September 2004 study (www.europa.eu.int/comm/com petition/antitrust/others/actions that _for_damages/study.html) confirmed to the EC the ‘totally underdeveloped’ state of private enforcement of the competition rules in the EU, while there is currently no reported case law, on the basis of general princi- ples, it may be possible, in theo- for a defendant to argue the ry, News from International the EU and Affairs Committee o the rules on causation re special rules on the What disclosure rights and What disclosure rights to doc- other rights of access a umentary evidence should claimant have? of Should there be a defence or can liabili- excusable error, ty be established without proof of fault? How should damages be cal- culated (and should punitive damages be available)? Should the defendant be able to use the ‘passing-on defence’ (ie reducing the damages payable on the ground that the claimant was able to recover some or the entire overcharge from its customers)? Should a class action regime be introduced for end con- for more broadly, sumers or, representative groups of pur- chasers? Should claimants benefit from special rules concerning the payment of the other costs in the event of an side’s unsuccessful action? How should private and pub- lic enforcement mechanisms be co-ordinated? What rules should regulate where claims can be brought, and the law applicable to those claims? appointment of experts to assess damages required in competition cases? When do limitation periods start and stop (particularly where a regulatory investiga- tion is started)? need clarification? • • • • • • • • •A • •D For each of these issues, the EC suggests various solutions or ‘options’ that chart fairly clearly at the outcome of the con- how, Edited by TP Kennedy, Director Society of Ireland of Education, Law TP Kennedy, Edited by EC . and its likely GE/Honeywell to exclusionary abuses.

ost of us were hopefully fortunate enough to enjoy

This article will review the According to the commis- The commission has invited GE/Honeywell eaty ear holiday. EC competition ear holiday.

Seasonal offeringsSeasonal law in EC competition M law practitioners enjoyed some law practitioners enjoyed offerings ‘traditional’ December of two of their own, in the guise and major policy developments the Court of First Instance’s judgment in a traditional Christmas and New a traditional Christmas Y two Christmas ‘presents’ from the European Commission’s Directorate General for Competition – the green paper on damages actions for breach of the EC antitrust rules and a discussion paper on the applica- tion of article 82 of the Private enforcement of the EC competition rules On 20 December 2005, the European Commission publish- ed a green paper and an accom- panying staff working paper that suggest facilitating damages claims caused by violations of the EC competition rules. sion, private enforcement of the EC competition rules (through litigation before the national courts) is lagging far behind public enforcement. The lack of a clear set of rules for damages claims in the EU member states means that there is currently vir- tually no successful private liti- gation for damages resulting from infringements of the EC competition rules. comments before 21 April 2006 on a range of issues such as: Tr The article will conclude with a brief overview of the judgment in implications for the commis- future merger policy. sion’s UKTyping

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www.uktyping.com Tel: +44 208 204 3000 [email protected] BRIEFING 57 MARCH 2006 MARCH www.lawsociety.ie In the December judg- In the December the CFI found In particular, The CFI also found that the Despite these ‘manifest Given the mixed outcome GE and Honeywell have wo of these related to the wo of these related ments, the CFI upheld the com- ments, the CFI decision. prohibition mission’s the court found Nevertheless, with the some serious errors key analysis in commission’s parts of that decision. produced that the EC had not evidence sufficiently convincing its case. in three key areas of T alleged so-called conglomerate merger. effects of the proposed For example, the conglomerate effects alleged by the EC were that the merger would have allowed GE to force aircraft builders to take a bundle of products including Honeywell’s avionics equipment, giving Honeywell an unfair advantage over its direct competitors. EC had not correctly assessed pre- the likelihood of GE’s merger dominance on the mar- ket for jet engines for large commercial aircraft, as a result of an overlap between engine starters and Honeywell’s large engines as a result of GE’s the merger. errors of assessment’, the CFI approved the commission’s analysis based on three other key aspects of the case that were to view, sufficient, in the court’s justify the overall prohibition decision. of the judgments, all the parties (the commission, GE and Honeywell) publicly welcomed the rulings. However, Commissioner Kroes stated that the commission will “consider carefully what lessons may be learned from this judgment for our future merger policy”, criticisms of reflecting the CFI’s analysis. the EC’s until 13 February 2006 to decide whether to appeal the judgment to the European CFI’s Court of Justice, but such an appeal can be on points of law only. GE/Honeywell Measured against that stan- Measured against that Nearly five years after the Following the July 2001 Commissioner Kroes set the Commissioner assessing the out- standard for whole article 82 come of the that would pro- review as one that would enable duce ‘rules’ reach preliminary the EC to con- conclusions about when duct may exclude competition, com- yet at the same time allow they are panies to know when on safe ground. the dard – and notwithstanding inherent additional complexities a form- in moving away from a more based approach towards of the robust economic analysis potential effects of a particular conduct trumpeted by the arti- cle 82 paper – the EC certainly has its work cut out in 2006 to move beyond this ‘discussion’ paper and produce some real ‘guidelines’ that companies, their advisers and national com- petition authorities/courts can rely on in this notoriously diffi- cult area. The Court of First Instance’s judgment in On 14 December 2005, the CFI delivered its two judgments in the appeals brought by General Electric (GE) and Honeywell of the United States (cases T- 209/01 and T-210/01). GE/Honeywell merger was notified to the European Commission and subsequently blocked in June 2001, the CFI prohi- upheld the commission’s bition decision. This prohibi- tion was – and probably remains – the most important case that showed how the EC in Brussels could adopt decisions affecting the strategies of companies operating in the EU (European and non-European alike) and when non-European antitrust agencies had already approved the same strategies. prohibition decision, GE and Honeywell abandoned their proposed merger but nonethe- less filed an appeal against the decision before the CFI. Listening to senior commis- Listening to Practices dealt with by the In relation to pricing abus- Some of the reactions so far nies to know whether their con- nies to know duct is legal. before the discus- sion officials was published, two sion paper were clearly ‘holistic’ messages identi- heard. First, the EC has only fied that it should intervene that raise in exceptional cases (and abuse of dominance issues to receive consequently expects of com- a substantial volume an ments on what constitutes the ‘exceptional’ case). Second, to change EC does appear ready discussed tack on certain points (for in the article 82 paper example, whether the specifici- ties of monopolisation and abuse of dominance cases sug- ini- gest that (unlike in the EC’s tial draft of the paper), the arti- cle 82 analysis should start by examining the effects of the rel- evant conduct and then turn to analysing the conduct itself). discussion paper include preda- tory pricing, single branding and rebates, tying and bundling As stated and refusal to supply. the EC intends to pay earlier, more attention to the economic effects of conduct, moving away from the application of rigid rules. Defining abuse is not as unilateral conduct clear-cut, may have both competitive and anti-competitive effects. es, the discussion paper sets out arguments as to whether only conduct that risks the exclusion of equally efficient competitors (ie competitors with the same costs as the dominant firm – the so-called ‘as efficient competi- tor’ test) should be considered abusive. It also considers efficiencies and how, whether, should be taken into account as part of an article 82 assessment. have expressed disappointment about the discussion paper’s apparent failure to live up to its billing since the article 82 review was launched by the former competition commis- Mario Monti. Recently, sioner, EC Treaty ruling). The first concrete step in a The first concrete step Other forms of abuse, such A public hearing will be Following modernisation According to the commis- (and the implications of the (and the implications GE/Honeywell lead to a process that should guide- comprehensive set of EC the lines by the end of the year, article 82 discussion paper pub- lished on 19 December describes a general framework for analysing abusive exclusion- ary conduct by a dominant com- The discussion paper is pany. intended to introduce a more refined economic approach for assessing some of the more common abusive exclusionary practices (ie that exclude a com- petitor from the market), such as tying, rebates and discounts. as discriminatory and exploita- tive conduct (ie where the dom- inant company exploits market power) will be the subject of fur- ther work by the EC in 2006. held in spring 2006 as part of the consultation process. and the refocused drive to detect and prosecute cartels, which was proposals the launched last year, made in the discussion paper signal a change in the commis- enforcement priorities for sion’s article 82 towards those abuses of dominant positions most like- ly to harm consumers. sion, the ultimate aim of the dis- cussion paper and the guidelines that are nearly certain to emerge from the consultation is to design a workable and opera- tional tool both for making enforcement decisions by com- petition authorities across the EU and for dominant compa- EC paper on abuse of EC paper on dominance the long-term Notwithstanding of the outcomes of importance on the private the consultation the green paper, enforcement in ‘talk of the town’ in Brussels about the December was mostly long-awaited (and selectively leaked) European Commission review discussion paper on the of article 82 of the G G Similar considerations will Similar considerations significant market overlaps. significant market when, in the no doubt operate the commission years to come, few article 82 pro- takes the first under the hibition decisions forthcoming guidelines. eal link with the employment Conor Maguire is a Brussels-based is a Conor Maguire solicitor. state. Only the former the have right to the tideover allowance. This requirement can more easily be met by Belgian nationals and can place nationals of other member states at a disadvan- tage. Such a difference in treat- ment can only be justified if it is based on objective considera- tions, independent of the nation- ality of the persons concerned and proportionate to the aim legitimately pursued by national It is legitimate for the nation- law. al legislature to wish to ensure that there is a real link between the applicant for the allowance and the geographic employment a market concerned. However, single condition regarding the place where the diploma of com- pletion of secondary education was obtained is too general and exclusive in nature. It goes beyond what it necessary to attain the objective pursed. The fact that the applicant’s parents are not migrant workers residing in Belgium cannot provide a rea- son for refusing to grant the allowance. That condition cannot be justified by the wish to ensure that there is a real link between the applicant and the geographic employment market. It is possi- ble that a person, after complet- ing secondary education in one state, pursues higher education in another state and obtains a diploma there, may establish a r market of that state, without, being the dependent however, child or migrant workers residing in that state. and EC Treaty ejected this application as he equired by Belgian legislation. certificate of high secondary edu- cation giving access to vocational higher education in Belgium. he After three years of study, obtained a graduate diploma in physiotherapy in Belgium. He also did a paid training course in vestibular rehabilitation in France. In 2001, he returned to Belgium and applied to the national employment office for a tideover allowance. The office r had not completed his secondary education at an educational establishment run, subsidised or approved by one of the three communities in Belgium, as r The Court asked the de Travail ECJ whether it was contrary to EC law for a member state to refuse an allowance to a national of another member state who is seeking his first employment on the sole ground that he complet- ed his secondary education in another member state. The ECJ held that nationals of a member state seeking employment in another member state fell within the scope of the would not be surprising if, in the would not be such compelling evi- absence of the market play- dence from to the merging ers/competitors EC were to refrain parties, the or even chal- from prohibiting remedies lenging (by way of but anti- imposed) proposed competitive conglomerate present mergers that did not therefore enjoy the right to equal treatment. The principle of equal treatment prohibits not only overt discrimination based on national- ity but also all covertforms of discrimination which, by applying other distinguishing criteria, lead in fact to the same result. The Belgian legislation introduces a difference in treatment between citizens who have completed their secondary education in Belgium or in another member Ioannis , 15 September 2005. In the circumstances, it In the circumstances, onment in general, the court has FREE MOVEMENT OF PERSONS and the north The court of Italy. stress that an did, however, obstacle to the free movement of goods may be justified by imper- ative requirements relating to the protection of the environment. Concerning protection of the envi- r held that the sectoral traffic ban infringes the principle of propor- It was held that the pro- tionality. hibition in question is dispropor- tionate, as they did not suffi- ciently study whether there was actually a realistic alternative to the ban. Case C-258/04, petition authorities after 1 May petition authorities satisfy in order to 2004) must reliable and produce “accurate, evidence” means convincing (like in the US) that in future be a much greater there will parties burden on the notifying the dis- and market players for covery of economic evidence. un, subsidised or approved by a Belgium provides a social welfare allowance to young people who have completed their studies and are seeking their first employ- ment. This is known as a tideover obtain this allowance. To allowance, the young person must have pursued education or training in another member state of the EU at the same level as, and equivalent to, that provided by an educational establishment r He must Belgian community. also, at the time of the applica- tion, be the dependent child of migrant workers who are resident in Belgium. Mr Ioannidis is a Greek national who completed his secondary education in Greece. His Greek certificate of education was recognised as being equivalent to the approved Ioannidis , 15 , Commission of is that, while it is that, while FREE MOVEMENT OF GOODS AIR TRAVEL One of the likely but per- One of the Case C-320/03 First stage of discussion in “open skies” pact the EU and the On 21 November, US opened up discussions on a long-awaited deal on the access to air services between the US and Europe. The consequence of such a deal would be to allow European and American-based airlines to compete on transat- lantic routes and to allow subse- quent internal correspondence. the situation is that air- Currently, lines can only operate transat- lantic flights from their own home countries. This deal would facili- tate airline mergers acquisi- and both European tions; however, and US airlines would have to open up to the possibility of for- eign ownership. Recent developments in Europeandevelopments in Recent law Republic of Austria the European Communities v www.lawsociety.ie haps less visible consequences of haps less visible in reiteration the CFI’s GE/Honeywell theories of poten- embraces the harm stem- tial anti-competitive effects ming from conglomerate the EC, and bundling used by the EC the evidential threshold com- (and by extension national LAW SOCIETY GAZETTE November 2005. A 2003 Austrian regulation banned lor- ries of over 7.5 tonnes carrying goods such as waste, stone, soil, motor vehicles, timber or cereals from using a 46km section of the The A12 motorway in Inn Valley. Courthas held that of Justice this sectoral ban obstructs the free movement of goods, particu- larly their free transit. The meas- ure concerns a road of the utmost importance,constituting one of the main land routes between the south of Germany

BRIEFING 58 PROFESSIONAL NOTICES MARCH 2006

LOST LAND CERTIFICATES LAW SOCIETY

Registration of Title Act 1964 Gazette An application has been received from the registered owners mentioned in PROFESSIONAL NOTICE RATES the schedule hereto for the issue of a RATES IN THE PROFESSIONAL NOTICE SECTION ARE AS FOLLOWS: land certificate as stated to have been lost or inadvertently destroyed. A new • Lost land certificates – €126 (incl VAT at 21%) certificate will be issued unless notifi- cation is received in the registry with- • Wills – €126 (incl VAT at 21%) in 28 days from the date of publication • Lost title deeds – €126 per deed (incl VAT at 21%) of this notice that the original certifi- • Employment/miscellaneous – €126 (incl VAT at 21%) cate is in existence and in the custody of some person other than the regis- tered owner. Any such notification HIGHLIGHT YOUR NOTICE BY PUTTING A BOX AROUND IT – €30 EXTRA should state the grounds on which the certificate is being held. All notices must be paid for prior to publication. CHEQUES SHOULD BE MADE PAYABLE (Register of Titles), Central Office, Land TO THE LAW SOCIETY OF IRELAND. Deadline for April Gazette: 24 March 2006. For fur- Registry, Chancery Street, Dublin ther information, contact Catherine Kearney or Valerie Farrell on tel: 01 672 4828 (fax: (Published 3 March 2006) 01 672 4877) Regd owner: Marcus McInerney; folio: 14503; lands: townland of Cloondorney More and barony of Regd owner: Mitchelstown Coopera- Road in the parish of Kilbarrack, 10487; lands: townland of (1) Tulla Upper; area: 18 acres, 3 roods, tive Agricultural Society Limited; district of Raheny; Co Dublin Farnaun, (2) Gardenblake and 25 perches; Co Clare folio: 5915L; lands: plots of ground Regd owner: Michael McCarthy; barony of (1) and (2) Loughrea; Regd owner: Sarah O’Connor being part of the townland of folio: DN119115F; lands: property area: (1) 3.7559 hectares, (2) (deceased); folio: 26051; lands: Oatencake in the barony of Imo- situate in the townland of 10.5218 hectares (one undivided townland of Barnageeha and killy and county of Cork; Co Cork Finnstown and barony of moiety); Co Galway barony of Islands; Co Clare Regd owner: Mitchelstown Newcastle; Co Dublin Regd owner: Matthew Darcy; folio: Regd owner: Martin Reidy; folio: Cooperative Agricultural Society Regd owner: Kevin Monaghan; folio: 24701; lands: townland of (1) 25213; lands: townland of Limited; folio: 37783; lands: plots DN70842F; lands: property situate Leagaun (Moycullen By), (2) and Crossderry and barony of of ground being part of the town- in the townland of Murphystown (3) Moycullen, and barony of Clonderalaw; area: (1) 17.4419 land of Mogeely in the barony of and barony of Rathdown; Co Moycullen; area: (1) 11.4865, (2) hectares, (2) 10.0412 hectares, (3) Imokilly and county of Cork; Co Dublin 0.7815 hectares, (3) 0.1593 1.3152 hectares; Co Clare Cork Regd owner: Anthony Mulholland; hectares; Co Galway Regd owner: John Ahern; folio: Regd owner: Eileen O’Reilly; folio: folio: DN77101L; lands: property Regd owner: Brendan Madden and 4201F; lands: plots of ground being 14315; lands: plots of ground being known as site 22 Sandyford Office Sean Osborne (as tenants-in-com-

part of the townland of Raheens in part of the townland of Rathpeacon Park, Sandyford, situate in the mon of five undivided 1/2 shares); the barony of Kerrycurrihy and in the barony of Cork and county of townland of Tipperstown and folio: 5096F; lands: townland of (1) county of Cork; Co Cork Cork; Co Cork barony of Rathdown; Co Dublin and (2) Carrowmore Knock, (3) and Regd owner: Marion Cronin and Regd owner: Michael and Delia Regd owner: Alan Connolly; folio: (4) Freeheen Island, and barony of Liam Cronin; folio: 44148; lands: O’Riordan; folio: 28177F; lands: DN18590; lands: property situate (1), (2), (3) and (4) Moycullen; Co plots of ground being part of the plots of ground being part of the in the townland of Rath and barony Galway townland of Glenfield South in the townland of Mitchellsfort in the of Nethercross; Co Dublin Regd owner: Cecilia Diskin; folio: barony of Dunhallow and county of barony of Barrymore and county of Regd owner: David Nolan; folio: 3822F; lands: townland of Dangan Cork; Co Cork Cork; Co Cork DN121004F; lands: property situ- Upper and barony of Galway; Co Regd owner: David Kiely; folio: Regd owner: John O’Neill and Claire ate in the townland of Drummartin Galway 29725; lands: plots of ground being Curran, 58 Wheatfield, Muff, Co and barony of Rathdown; Co Regd owner: Michael J Rowland part of the townland of Ballyvolane Donegal; folio: 47055F; lands: Dublin (deceased) and Bridget Rowland; in the barony of Cork and county of Muff; Co Donegal Regd owner: William Wogan; folio: folio: 5786F; lands: townland of Cork; Co Cork Regd owner: Henry Leo Doherty, DN72306F; lands: property situate Dangan Lower and barony of Regd owner: Patrick and Theresa Castlequarter, Inch, Co Donegal; in the townland of Wimbleton and Galway; Co Galway Murphy; folio: 15249F; lands: plots folio: 30765; lands: Carrowreagh; barony of Balrothery East, property Regd owner: Catherine Teresa of ground being part of the town- area: 0.6171 hectares; Co Donegal situate in the townland of Irishtown O’Donnell; folio: 40040; lands: land of Eyeries in the barony of Regd owner: John O’Donnell (Mick), and barony of Balrothery East; Co Gortnaleck and barony of Galway; Bear and county of Cork; Co Te rmon, Maghery, Dunloe, Co Dublin Co Galway Cork Donegal; folio: 10901; lands: Regd owner: Vincent Woods and Regd owner: Michael Brosnan; folio: Regd owner: Johanna Tobin; folio: Te rmon and Two Islands, adjacent Margaret Woods; folio: 20201F; lands: townland of 10927F; lands: plots of ground to Termon; area: 9.0421 hectares, DN22628L; lands: property known Parkboy and barony of being part of the townland of 0.5311 hectares; Co Donegal as no 17 Ballygall Parade, situate in Tr ughanacmy; Co Kerry Glenagurteen in the barony of Regd owner: Martin Cosgrave; folio: the parish of Finglas, district of Regd owner: Gerald and Joy Mullane; Condons and Clangibbon and DN15437; lands: a plot of ground Finglas North; Co Dublin folio: 19867F; lands: townland of county of Cork; Co Cork situate to the north side of Howth Regd owner: Patrick Connors; folio: Dooneen and barony of

www.lawsociety.ie 59 Co Co Co Roscommon Co Offaly Co Tipperary rrenstown; ipperary ipperary; BOOKING FORM Sligo of 32319; lands: townland of Garryduff East and barony Kilnamanagh Lower; Helen Rafferty; folio: 18321F; Helen Rafferty; folio: Beg lands: townland of Ardsallagh South; and barony of Ballintober Co Roscommon of 12732; lands: townland of Drumaskibbole and barony Carbury; area: 5.9741 hectares; T 34605F; lands: townland of Garryard East and barony of Upper Ormond and county of Tipperary; Co Tipperary 32565F; lands: townland of Garryard East and barony of Upper Ormond and county of Tipperary; Co Tipperary folio: 22267; lands: townland of Newtown and barony of Middlethird and county of T Nora Donnelly; folio: 3629L; lands: plots of ground known as no 32 Nora Sheehan; folio: 7194F; lands: Nora Sheehan; and or Drum Warren townland of barony of Boyle; 14558F; lands: road and barony of 14558F; lands: Wa Regd owner: Michael Beirne; folio: Regd owner: Michael Beirne; Regd owner: Fionan Rafferty and Regd owner: Fionan Rafferty folio: Regd owner: Owen McLean; Regd owner: Aivars Greislis; folio: Regd owner: Aivars Greislis; folio: Regd owner: Michael McCarthy; Regd owner: Albert Donnelly and Regd owner: Michael Sheehan and Regd owner: Regd owner: Sean T Farrell; folio: Regd owner: Co Co Co Co Co Conal Boyce, solicitor estland, (4) Cornaveagh and estland, (4) part), (4) 1.2970 W (2), (3) and (4) Carra; barony of (1), hectares, (2) area: (1) 13.1200 (one undivided 23.2540 hectares 21 incent Deane, solicitor, of the Director Office st V Co Mayo Co Offaly Evan O'Dwyer, solicitor part), (3) 23.2540 hectares (one part), (3) 23.2540 st (as amended). Speaker: Speaker: undivided 21 4138F; lands: townland of 4138F; lands: townland of Carrowgowan and barony Gallen; area: 0.3237 hectares; Mayo Dunbin, Knockbridge, Dundalk, lands: Co Louth; folio: 18403F; hectares; Ricetown; area: 82.8257 Co Meath Meath; Killegland, Ashbourne, Co folio: 2104L; lands: Killegland; Meath Drumcatton, Inniskeen, Co Monaghan; folio: 17489, 17596; lands: Monaghan; area: 4.6918 hectares Bocks Lower (folio 17489) and area: 2.0361 hectares Bocks Lower (folio 17596); Monaghan (deceased); folio: 211F; lands: Clara and barony of Kilcoursey; Offaly (deceased); folio: 4611; lands: Rath More and barony of Clonlisk, Offaly 1766F; lands: Killaun and barony of Eglish; hectares; Alan Gannon, solicitor, Chairman, Criminal Law Committee Regd owner: Martin O’Brien; folio: Regd owner: Martin O’Brien; Meegan, Regd owner: Seamus Fitzsimons, Regd owner: Eamonn Regd owner: James Lambe, Regd owner: Matthew Fleming Regd owner: Josephine Rothwell Spain; folio: Regd owner: William Speaker: Co Louth Co Limerick Law Society of Ireland Co Limerick Co Louth Co Louth Co Longford Co Longford Criminal Justice Bill Criminal Justice runk driving offences. runk driving he of Public Prosecutions Speeding offences. resa Flannelly; folio: 9729F; ffia Park, Longford, Co ffia Park, Longford, irawley; area: 24.0187 hectares; Limerick 5743L; lands: Danagher; folio: and barony of townland of Kilbane Clanwilliam; folio: 1164F; lands: Annie M Burke; of townland of Gortroe and barony Glenquin; 26 Norfolk Road, Dublin 7; folio: 1166F; lands: Callystown; area: 1.4039 hectares; Dundalk, Co Belrobin, Kilkerley, Louth; folio: 11127; lands: Balrobin; 10236; lands: townland of Ballinahaglish and barony of T Co Mayo Te lands: townland of (1), (2), (3) Gelshagh, Ballinalee, Co Longford; lands: Gelshagh; Co Longford; 0.7107 area: 21.0007 hectares and hectares; Te lands: Longford; folio: 74L; 0.0405 Deanscurragh; area: hectares; Co Barronstown, Dundalk, Louth; folio: 4868; lands: Barronstown; area: 65.9081 hectares; SEMINAR CHAIRMAN: SEMINAR •T •D • Regd owner: Joseph and Ann Regd owner: Jeremiah Burke and Regd owner: Regd owner: Mary Aloysius Durkan, Regd owner: Kathleen McKenna, Regd owner: James Foody; folio: Regd owner: Laurence Flannelly and Regd owner: Vincent Smith, Regd owner: Vincent Marsden, 54 Regd owner: Teresa Coleman, Regd owner: James J CRIMINAL LAW COMMITTEE SEMINAR LAW CRIMINAL Co Co Cashel Palace Hotel,Cashel Palace Cashel,April 2006. 10am – 4pm Saturday 1 Tipperary. Co 80 € Co Kilkenny hours (group study) Co Kerry

Co Kerry Co Laois ve 9.30am fi 10am – 4pm Co Leitrim Co Kildare Co Kildare Co Kilkenny Name(s): Firm: Please reserve place(s): to: Please forward booking form and payment (to be received no later than 29 March 2006) Criminal Law Committee, Law Society of Ireland, Blackhall Place, Dublin 7. solicitor, Colette Carey, Cheque in the sum of € attached. ughanacmy; ainee solicitors: 130 per person Tr lands: townland of folio: 27801F; and barony of Kilmoyly South Clanmaurice; 2242F; lands: Rathjordan, Herbertstown, Co Limerick; and Margaret Gabb; folio: 15915; and barony of lands: Tinnaranny Ida; 14534; lands: Knickeen, Bally- nalinagh, Curraghnadimpaun and barony of Kells; O’Connor; folio: 11812F; lands: Bracklone and barony of Portnahinch; Ballygeeher Hill, Barnacoola, Co Leitrim; folio: 17534; lands: Bellageeher; area: 0.7866 hectares; Kilkenny 585 Kilkenny; lands: Borrismore and barony of Galmoy; 9977F; lands: Tuckmilltown and Tuckmilltown 9977F; lands: barony; of folio: 4956; lands: townland of Landenstown and barony Clane; folio: 1182; lands: Clonmantagh Upper and barony of Crannagh; Co Kilkenny (includes materials, coffee morning and lunch) CPD hours: € Tr Registration: Seminar: Regd owner: Jeremiah Meehan; Regd owner: Regd owner: Elizabeth Leahy; folio: Regd owner: Peter Gabb (deceased) Regd owner: Peter Gabb Regd owner: John Duggan; folio: Regd owner: Dermot and Linda Regd owner: Michael P McGarry, Regd owner: James Dowling; folio: Regd owner: James Dowling; Regd owner: Cyril Reeves; folio: Regd owner: Estates; Regd owner: Landenstown Dowling; Regd owner: Michael www.lawsociety.ie LAW SOCIETY GAZETTE

PROFESSIONAL NOTICES 60 PROFESSIONAL NOTICES MARCH 2006

McCarthyville in the urban district Ireland Chambers, Westland Row, of Dungarvan and county of Dublin 2; tel: 01 672 6115/4/6, fax; 01 Waterford; Co Waterford 672 6099, email: [email protected] forensic accountants Regd owner: Michael Kenny and Ann Kenny; folio: 12843F; lands: plots Culhane, Wilhelmena (deceased), of ground known as 11 Beechwood late of 64 Seapark Drive, Clontarf, Avenue, situate to the west of St Dublin 3. Would any person having Johns Park in the parish of St Johns any knowledge of the whereabouts of a Without, division B, and in the will made by the above-named Be Sure. Trust our experience. county borough of Waterford; Co deceased please contact David M 5 Union Quay, Cork Tel:021 431 9200 Fax:021 431 9300 Waterford Tu rner & Co, Solicitors, 32 Lower 60 Lower Baggot Street, Dublin 2 Tel:01 475 4640 Fax:01 475 4643 Regd owner: Michael Kett; folio: Abbey Street, Dublin 1; tel: 01 878 e-mail: [email protected] Web: www.jhyland.com 12721F; lands: plots of ground 7922, email: [email protected] being part of the townland of ing knowledge of a will made by the gation, property and company/com- Ballintlea in the barony of Decies Duffy, Maura (deceased), late of 40 above-named deceased please contact mercial. Parfitt Cresswell, 567/569 without Drum and county of West Priory, Kilvane Avenue, Navan Tim O’Hanlon, 47 Cedarmount Fulham Road, London SW6 1EU; Waterford; Co Waterford Road, Dublin, and Lismunga, Ruan, Road, Mount Merrion, Co Dublin; DX 83800 Fulham Broadway; tel: Regd owner: Michael Grehan, Co Clare. Would any person having mobile: 086 880 3576 0044 2073 818311, fax: 0044 2073 Toorlisnamore, Kilbeggan, Co knowledge of the whereabouts of a will 816723, email: arobbins@parfitts. Westmeath; folio: 2645; lands: executed by the above-named O’Reilly, Paul (deceased), late of 7 co.uk Toorlisnamore; area: 21.0917 deceased, who died on 14 August Carlingford Road, Drumcondra, hectares; Co Westmeath 2005, please contact Michael Dublin 9. Would any person having Seven-day publican’s on-licence Regd owner: William Loughlin, Houlihan & Partners, Solicitors, knowledge of the whereabouts of a will required immediately – contact: Killula, Delvin, Co Westmeath; 9/10/11 Bindon Street, Ennis, Co executed by the above-named O’Donnell & Sweeney, Solicitors, folio: 16407; lands: Killulach; area: Clare; tel: 065 684 6000 deceased, who died on 14 April 2003, Dungloe, Co Donegal; tel: 074 952 9.3457 hectares and 1.5428 please contact Orla O’Donnchadha & 1055 hectares; Co Westmeath Duncan, George A (deceased), Co, Solicitors, 208 Botanic Avenue, Regd owner: Ciaran Daly, Mabrista, late of 7 Braemor Road, Rathgar, Glasnevin, Dublin 9; tel: 01 857 4099, Ballinagore, Co Westmeath; folio: Dublin 14, who died on 14 January fax: 01 857 4098 or email: For sale: ordinary seven- 6864; lands: Ballynacoska; area: 2006. Would anybody having [email protected] day publican’s on-licence. 4.1050 hectares; Co Westmeath knowledge of the whereabouts of the Enquiries please to Declan Regd owner: Nicholas Dempsey; original of the deceased’s will, which Shanney, Thomas (deceased), late of Duggan & Company, Solicitors, folio: 10101F; lands: Dunanore and is dated 23 September 1988, or of a Kilcastle, Ballydangan, Athlone, Co Charleville, Co Cork; tel: 063 barony of Bantry; Co Wexford later will, please contact Eugene F Roscommon. Would any person hav- 89822 Regd owner: Nicholas Dempsey; Collins, Solicitors, 3 Burlington ing knowledge of a will made by the folio: 23975F; lands: Dunanore and Road, Dublin 4 above-named deceased, who died on barony of Bantry; Co Wexford 30 May 2005, please contact Tormeys, Regd owner: Peter Levingston Keogh, Brendan (otherwise Solicitors, Castle Street, Athlone, Co (deceased); folio: 14101 Wexford; Brendan Kehoe) (deceased), late of Westmeath TITLE DEEDS lands: St Iberius and barony of 35 Coolbawn, Ferns, Co Wexford. Forth; Co Wexford Would any person having knowledge Tuohy, Brigid Anne (deceased), late In the matter of the Registration of Regd owner: International Travel of the whereabouts of a will dated 20 of Deer Island, Ballynacally, Co Clare. Title Act 1964 and of the application Bureau Limited; folio: 2127L; May 1983 or any other will executed Would any person having knowledge of Anthony Morris and Celine lands: townland of Kilpoole Lower by the above-named deceased, who of a will made by the above-named Morris in respect of property in the and barony of Arklow; Co died on 23 January 1990, please con- deceased, who died on 25 August county of Laois. County: Laois; Wicklow tact Dermot F Davis & Co, Solicitors, 2004, please contact Michael lands: Ullard or Lea; dealing no: Regd owner: Marguerite McConnell; 1 Lymington Road, Enniscorthy, Co Houlihan & Partners, Solicitors, 9-11 T10223/98 folio: 10720; lands: townlands of Wexford; tel: 054 35887, fax: 054 Bindon Street, Ennis, Co Clare; tel: Take notice that Anthony Morris and Santryhill and baronies of 36350 065 684 6000, fax: 065 682 1870 Celine Morris, of 341 Morell Avenue, Talbotstown Lower; Co Wicklow Naas, Co Kildare, have lodged an Regd owner: Michael Osborne; folio: O’Brien, Thomas (deceased), late of application for registration on the free- 3399; lands: townland of 59 Belton Park Road, Dublin 9. hold register free from encumbrances Derrybawn and barony of Would any person having knowledge MISCELLANEOUS in respect of the above property. Ballinacor North; Co Wicklow of a will executed by the above-named The original title documents speci- deceased, who died on 30 July 1996, Northern Ireland agents for all con- fied in the schedule hereto are stated please contact Corrigan & Corrigan, tentious and non-contentious matters. to have been lost or mislaid. Solicitors, 3 St Andrew Street, Dublin Consultation in Dublin if required. The application may be inspected WILLS 2; tel: 01 677 6108, fax: 01 679 4392, Fee sharing envisaged. Contact at this registry. email: [email protected] Norville Connolly, D&E Fisher, The application will be proceeded Brennan, Deirdre (deceased), late Solicitors, 8 Trevor Hill, Newry; tel: with unless notice is received in the of Killea, Barnhill Road, Dalkey, Co O’Hanlon, Mary (deceased), late of 048 3026 1616, fax: 048 3026 7712; registry within one calendar month Dublin. Would any person having 47 Cedarmount Road, Mount email: [email protected] from the date of publication of this knowledge of a will executed by the Merrion, Co Dublin, also 39 Devenish notice that the original documents of above-named deceased, who died on Road, Kimmage, Dublin 12 and 9 St London solicitors will be pleased to title are in existence. Any such notice 25 October 2005, please contact Gerrard St, Limerick, who died on 6 advise on UK matters and undertake should state the grounds on which the Donal O’Kelly, Solicitor, Bank of January 2006. Would any person hav- agency work. We handle probate, liti- documentation is held and quote the

www.lawsociety.ie 61 : an and in the Landlord and Landlord Landlord and Tenant Landlord ake notice that the applicant, In default of any such notice being In default of any such notice T In default of any such notice being nant Acts 1967-1994 ake notice that any person having an matter of the (Ground Rents) (No 2) Act 1978 interest in the aforesaid premises (or interest in the called upon to furnish any of them) are title to the aforemen- evidence of to the below named tioned premises date of this within 21 days from the notice. to pro- received, the applicant intends before the ceed with the application of the county registrar for the county as may be city of Dublin for directions the per- appropriate on the basis that entitled to son or persons beneficially the the superior interest including aforesaid freehold reversion in the premises is unknown or unascertained. Date: 3 March 2006 for the Signed: Nelson & Co (solicitors Dublin Village, applicant), Templeogue 6W In the matter of the Te application by Mary Holohan T interest in the freehold estate or any superior interest in the property known as: all that and those the prem- ises known as 151 Upper Leeson Street in the city of Dublin, being part of the property comprised in and demised by indenture of lease dated 14 December 1840 and made between Henry Read of the one part and Robert Chambers of the other part for a term of 200 years and subject to a yearly rent of £20. Mary Holohan, intends to submit an application to the county registrar for the county of Dublin for the acquisi- tion of the freehold interest in the and any party aforesaid property, asserting that they hold a superior interest in the aforesaid property is called upon to furnish evidence of title to the aforesaid property to the below named within 21 days from the date of this notice. received, the applicant, Mary Holohan, intends to proceed with the application before the county registrar at the end of 21 days from the date of this notice and will apply to the coun- ty registrar for the county of Dublin for directions as may be appropriate on the basis that the person or persons beneficially entitled to the superior interest including the freehold rever- sion in the aforesaid property are unknown and unascertained. Date: 3 March 2006 Signed: Pearse Mehigan & Co (solicitors : an and in the Landlord and Landlord Landlord and Tenant Landlord ake notice that the applicant, ake notice that Dundonnell T In default of any such notice being T nant Acts 1967-1994 ake notice that any person having comprised in and demised by inden- comprised in 14ture of lease dated 1840 December Henry Read of the and made between Robert Chambers of the one part and 200 years other part for the term of of £20. and subject to the yearly rent submit an Ruby Holdings, intends to registrar for application to the county the acquisi- the county of Dublin for in the tion of the freehold interest and any party aforesaid property, a superior asserting that they hold property is interest in the aforesaid of title called upon to furnish evidence the below to the aforesaid property to the date of named within 21 days from this notice. received, the applicant, Ruby Holdings, intends to proceed with the application before the county registrar at the end of 21 days from the date of this notice and will apply to the coun- ty registrar for the county of Dublin for directions as may be appropriate on the basis that the persons benefi- cially entitled to the superior interest including the freehold reversion in the aforesaid property are unknown or unascertained. Date: 3 March 2006 Signed: Leo Buckley & Co (solicitors for the applicant), 78 Merrion Square, Dublin 2 In the matter of the Te matter of the (Ground Rents) (No 2) Act 1978 application by Dundonnell Estates Limited T any interest in the freehold estate of the following properties: all that and those the hereditaments and premises known as no 1, no 1a and no 2 in the Basin Lane, Brandon Terrace, city of Dublin, all held under inden- ture of lease dated 24 January 1878 J Gormley and made between William and Marianne Gormley of the one part and Richard Hayden of the other part for a term of 400 years from 24 January 1978, subject to the yearly rent of £12 thereby reserved and the covenants on the part of the lessee to be performed and conditions therein contained. Estates Limited intends to submit an application to the county registrar for the county of the city of Dublin for the acquisition for the freehold interest in the aforesaid premises, and any party asserting that they hold a superior : an and in the Landlord and Landlord Landlord and Tenant Landlord ake notice that the applicant, In default of any such notice being T nant Acts 1967-1994 ake notice that any person having an Te matter of the (Ground Rents) (No 2) Act 1978 application by Ruby Holdings T interest in the freehold estate or in any superior interest in the property known as: all that and those the prem- ises formerly known as no 116 Upper Leeson Street and now known as no 153 Upper Leeson Street in the city of Dublin, being part of the property David Mac Nicholas, intends to sub- mit an application to the county regis- trar for the county of Dublin for the acquisition of the freehold interest in and any party the aforesaid property, asserting that they hold a superior interest in the aforesaid property is called upon to furnish evidence of title to the aforesaid property to the below named within 21 days from the date of this notice. received, the applicant, David Mac Nicholas, intends to proceed with the application before the county registrar at the end of 21 days from the date of this notice and will apply to the coun- ty registrar for the county of Dublin for directions as may be appropriate on the basis that the persons benefi- cially entitled to the superior interest including the freehold reversion in the aforesaid property are unknown or unascertained. Date: 3 March 2006 Signed: Leo Buckley & Co (solicitors for the applicant), 78 Merrion Square, Dublin 2 In the matter of the of Dublin, being part of the property of Dublin, being part of the by inden- comprised in and demised ture of lease dated 14 December 1840 and made between Henry Read of the one part and Robert Chambers of the other part for the term of 200 years and subject to the yearly rent of £20. : an and in the Landlord and Landlord el: 068-31777. Email: [email protected]. el: 068-31777. Email: Landlord and Tenant Landlord APPLYTO: IN CONFIDENCE Ward & Company, David Registered Auditors & Accountants, Limerick. Abbeyfeale, Co. Convent Street, T and conveyance dated 8 Solicitor to Litigation, in Commercial may amount to Legal disputes. Legal el: +353 1 8416022 ax: +353 1 8416024 penalised in costs. & Clients may be Accredited Mediator T F MEDIATION ESMOND REILLY ailure to Mediate first, An effective alternative An effective F Practice transferee must be willing to negotiate partnership must be willing Practice transferee area preferred Tralee with transferor. or employee position also be considered. but other locations would Principal ofPrincipal practice in Co. solicitor’s Kerry is interested in transferring the goodwill of his practice solicitor's practice. to another professional negligence, nant Acts 1967-1994 COMMERCIAL Centre for Effective Dispute Centre for Effective www.resolvitmediation.ie Resolution, London (CEDR) ake notice that any person having an [email protected] RESOLVIT MEDIATION RESOLVIT Te matter of the application by David Mac Nicholas T interest in the freehold estate or in any superior interest in the property known as: all that and those the prem- ises formerly known as no 115 Upper Leeson Street and now known as no 152 Upper Leeson Street in the city dealing reference above. of Titles Sean MacMahon, Examiner Schedule: October 1952 from Margaret McCormack to Margaret Fraser In the matter of the (Ground Rents) (No 2) Act 1978 www.lawsociety.ie LAW SOCIETY GAZETTE

PROFESSIONAL NOTICES 62 PROFESSIONAL NOTICES MARCH 2006

Publication of advertisements in this section is on a fee basis and does not represent an endorsement by the Law Society of Ireland. for the applicant), 83/84 Upper Georges Street, Dun Laoghaire, Co Dublin NORTHERN In the matter of the Landlord and Te nant Acts 1967-1994 and in the IRELAND matter of the Landlord and Tenant (Ground Rents) (No 2) Act 1978: an SOLICITORS application by John Shane Dalton We will engage in, Take notice that any person having and advise on, SPANISH LAWYERS interest in the freehold estate of the all Northern Ireland- property known as 8 Thompson related matters, Cottages, North Circular Road, particularly personal injury RAFAEL BERDAGUER Dublin 1, being portion of the proper- litigation. ABOGADOS ty held under an indenture of lease Consultations where dated 8 August 1878 and made TWENTY YEARS ADVISING CLIENTS convenient. IN REAL ESTATE TRANSACTIONS IN SPAIN between the Honourable Charles Spencer Cowper of the one part and PROFILE: FIELD OF PRACTICES: John Thompson of the other part for panish Lawyers Firm focused eneral Practice, Administra- the term of 200 years from 1 May OLIVER M Son serving the need of the Gtive Law, Civil and Commer- 1878, subject to the yearly rent of £40 foreign investors, whether in cial Law, Company Law, Banking and the covenants and conditions company or property transac- and Foreign Investments in LOUGHRAN tions and all attendant legalities Spain, Arbitration, Taxation, therein contained, and an indenture of such as questions of inheritance, Family Law, International Law, lease dated 11 January 1878 and made & COMPANY taxation, accounting and book- Litigation in all Courts. between Luke Reilly of the one part keeping, planning, land use and and John Thompson of the other part litigation in all Courts. for the term of 91 years from 1 9 HOLMVIEW TERRACE, OMAGH, November 1877, subject to the yearly Avda. Ricardo Soriano, 29, CO TYRONE Edificio Azahara Oficinas, 4 Planta, 29601 Marbella, Malaga, Spain rent of £65 and the covenants and con- Phone (004428) 8224 1530 ditions therein contained and being all Tel: 00-34-952823085 Fax: 00-34-952824246 of the property the subject of a deed of Fax: (004428) 8224 9865 e-mail: e-mail: [email protected] assignment dated 27 June 1997 and [email protected] Web site: www.berdaguerabogados.com made between Alan Hoey and Gina Hoey of the one part and John Shane Dalton of the other part. (Ground Rents) (No 2) Act 1978: an Take notice that John Shane Dalton application by Seamus Smyth and intends to submit an application to the Thomas Smyth county registrar for the county of Take notice that any person having Dublin at Áras Uí Dhálaigh, Inns any interest in the freehold estate of Quay, Dublin 7 for the acquisition of the following property: all that and the freehold interest in the aforesaid those the dwellinghouse and premises property and that any party asserting known as 70 South Circular Road, in that they hold a superior interest in the the city of Dublin, held under an aforesaid property are called upon to indenture of lease made 9 April 1878 furnish evidence of title to the below between Joseph Kelly of the one part named within 21 days from the date of and Stephen Adams of the other part this notice. for the term of 137 years from 9 April In default of any such notice being 1878, subject to the annual rent of £3 received, John Shane Dalton intends to and 14 shillings (since adjusted to proceed with the application before the £3.60) and subject to the covenants county registrar at the end of 21 days and conditions therein contained. from the date of this notice and will Take notice that Seamus Smyth apply to the county registrar for the and Thomas Smyth intend to submit city of Dublin for directions as may be an application to the county registrar appropriate on the basis that the per- for the city of Dublin for the acquisi- son or persons beneficially entitled to tion of the freehold interest in the the superior interest including the free- aforesaid premises, and any party hold reversion in the aforesaid proper- asserting that they hold a superior ty are unknown or unascertained. interest in the aforesaid premises are Date: 3 March 2006 called upon to furnish evidence of the Signed: Niall Corr & Company, Solicitors title to the aforementioned premises (solicitors for the applicant), 32 Malahide to the below named within 21 days Road, Artane, Dublin 5 from the date of this notice. In default of any such notice being In the matter of the Landlord and received, Seamus Smyth and Thomas Te nant Acts 1967-1994 and in the Smyth intend to proceed with the matter of the Landlord and Tenant application before the county regis-

www.lawsociety.ie 63 to cover by former Dublin-based but ill also consider temporary secretar- ill also consider temporary yping service supplied yping service vailable 24 hours, seven days a week. vailable 24 hours, seven days veyancing and probate work. Please veyancing and Brendan Irwin & Co, email CV to brendanirwin@eircom. Solicitors, at to 6 Garden Vale, net or by post Athlone T Dublin 4. legal secretary based in A from Fast and accurate transcription 80wpm. audio and/or copy at W rates. ial assignments. Reasonable Contact Excellent references available. Elizabeth on 086 083 1328 seeks Enthusiastic individual apprenticeship. Qualifi- willing to travel elsewhere. P dip legal cations held: BA (Hons), Irish exam studies (DIT). All FE1s and completed. Contact 086 081 0844 Locum solicitor required maternity leave from mid April 2006 to the end of October 2006. Conveyancing and probate. May suit newly qualified. CVs to Thomas 20 Sandymount O’Reilly & Company, Green, Dublin 4; email: tom@torle- gal.com box no for suburban gen- in Athlone, principally con- rrace, Dublin 2 eral practice. Minimum two years’ eral practice. Minimum Shaw & PQE. Apply in writing to DC 200 Kimmage Solicitors, Company, Dublin 12; tel: 01 456 Road West, 1344, email: [email protected] Solicitor experienced in family law wishes to join a practice to pursue fam- ily and collaborative law – North Dublin/Meath area. Reply to 20/06 Solicitor required for general prac- tice ty registrar for the county of Dublin ty registrar for as may be appropriate for directions the person or persons on the basis that to the superior beneficially entitled the freehold rever- interest including property aforesaid are sion in the unknown or unascertained. Date: 3 March 2006 for the Signed: Arthur Cox (solicitors Earlsfort applicant), Earlsfort Centre, Te Solicitor required RECRUITMENT ake notice that Leo Reynolds and ake notice that Leo Reynolds In default of any such notice being T Marie Reynolds intend to submit an Marie Reynolds intend to registrar for application to the county the acquisi- the county of Dublin for in the tion of the freehold interest and any party aforesaid property, a superior asserting that they hold are interest in the aforesaid property called upon to furnish evidence of title to the aforementioned property to the below named within 21 days of the date of this notice. received, Leo Reynolds and Marie Reynolds intend to proceed with the application before the county registrar at the end of 21 days from the date of this notice and will apply to the coun- the register county Dublin for a term the register county less one day from 29 of 999 years at the annual rent of September 1844 an indenture of lease £3.6s.8d, and 1921 and made dated 1 January Thomas Kershaw of the between Noel John Mooney of the one part and a portion of other part and now being in folio the premises comprised Dublin, 76393L of the register county one day for a term of 999 years less the annu- from 29 September 1844 at al rent of £3.6s.8d. and Landlord and Landlord Landlord and Landlord : an application by Leo : an application by ake notice any person having interest ake notice any person having enant (Ground Rents) (No 2) Act enant (Ground Rents) (No enant (Ground Rents) Act 1967 enant (Ground Rents) Act T 1978 Reynolds and Marie Reynolds T in the freehold estate of the property known as Brookfield House, Carysfort Avenue, Brookfield Terrace, Blackrock, Co Dublin, being part of the premises held under an indenture of lease dated 25 October 1920 and made between Noel Thomas Kershaw of the one part and Robert Allen of the other part and now being a portion of the lands comprised in folio 76393L of in the matter of the T trar at the end of the 21 days from the trar at the end and will apply to the date of this notice for the city of Dublin county registrar as may be appropriate for directions that the persons benefi- on the basis to the superior interest cially entitled freehold reversion in the including the or aforesaid premises are unknown unascertained. Date: 3 March 2006 Odlum & Co (solicitors for Signed: Walter Street, the applicant), 2A Main Blackrock, Co Dublin In the matter of the www.lawsociety.ie LAW SOCIETY GAZETTE

PROFESSIONAL NOTICES 64

LAW SOCIETY GAZETTE RECRUITMENT

66 www.lawsociety.ie RECRUITMENT MARCH 2006

AT STELFOX LEGAL WE PRIDE CURRENT OPPORTUNITIES INCLUDE: OURSELVES IN THE FACT THAT WE ARE A LEGAL RECRUITMENT Private Practice ■ Investment Funds Lawyer. Dublin €64,000+ AGENCY RUN BY LEGAL PEOPLE ■ Corporate Lawyer - Top Tier firm. My client, a well-established large law firm has a FOR LEGAL PEOPLE. A DIVISION Dublin. €Neg. rare vacancy for an investment funds lawyer with a minimum of three years experience both RUN BY SOMEONE WITH FIVE Solicitor with a minimum of three years PQE required to work in Corporate Department of advising on and establishing investment funds. YEARS LEGAL EXPERIENCE, WE highly regarded practice. Role encompasses This role offers an exceptional working KNOW THE DEMANDS OF BOTH dealing with joint ventures, mergers and atmosphere as well as very attractive benefits in THE INDUSTRY AND THE PEOPLE acquisitions etc. Must have outstanding client this city centre location. focus and strong business acumen. WHO WORK IN IT. WE CANNOT Experience in a medium/large firm a distinct ■ Commercial Property Lawyer. Top Tier Firm. STRESS ENOUGH HOW advantage. Dublin. €70,000+ SERIOUSLY WE RESPECT BOTH Prestigious top tier firm is looking to recruit a ■ solicitor with a minimum of three years PQE in CANDIDATES AND CLIENTS Construction Lawyer - Top Tier firm. Dublin. €85,000+ Commercial Property. Role will involve dealing CONFIDENTIALITY. WITH Construction lawyer with experience in non- with major retailers, various institutions, large STELFOX LEGAL, YOU'RE IN THE contentious construction law, skilled at private investors and both public and local DRIVING SEAT. advising private developers and public sector authorities. This role is ideally suited to someone bodies in all elements of construction law. wishing to take the next step in their career. Must be familiar with FIDIC type contracts WE HAVE A NUMBER OF and public procurement procedures. Min of ■ Conveyancing Solicitor. Donegal. €Neg POSITIONS FOR ALL LEVELS OF four years PQE with genuine career Highly regarded firm in Donegal has an opening LAWYERS AS WELL AS development opportunities with this highly for a solicitor with any amount of PQE mainly in reputable firm. Conveyancing. Experience in family law and EXPERIENCED SUPPORT STAFF. probate would be an added advantage but not ■ Commercial Lawyer - Dublin City Centre. deemed necessary. € Market leading salary and benefits A rapidly expanding business law firm in In House Dublin's Southside city centre is looking for ■ In House Legal Advisor. Dublin South. an Associate Solicitor with 3 - 5 years PQE to €55,000+ join their Commercial department. Solid International investments management company knowledge of Irish Company Law necessary in Dublin's Southside is looking to recruit a for this role. Excellent potential for lawyer with one to three yrs PQE to begin as progression within this firm. Legal Advisor. A background in Corporate/ Commercial law is necessary with experience of ■ Banking Solicitor - Top Tier firm. Dublin. funds and asset management a distinct advantage. €85,000+ Excellent location. Candidate with particular experience in property based commercial lending within Support Roles the banking law sector required for this ■ Legal Executives, Legal Secretaries, leading firm in Dublin. Candidate will have Company Secretarial experience of structure and tax based lending We have a constant stream of support roles transactions and in advising lenders. Must available with firms right across the Greater have impressive track record in this field. Dublin Area. These are with firms of all sizes from Excellent career advancement opportunities small practices to top tier firms. Market leading within this firm. salaries and benefits packages.

If you are interested in finding the right position in the right firm with an agency who genuinely respects your need for confidentiality do not hesitate to call Stephen Kelly B.A., LL.B. at Stelfox Legal on (01) 679 3182 or email your CV to [email protected] Log on to our new website for more opportunities www.stelfox.ie

www.lawsociety.ie 67

RECRUITMENT MARCH 2006

www.lawsociety.ie 69

LAW SOCIETY GAZETTE RECRUITMENT

72 www.lawsociety.ie Medical Negligence Solicitor x2 A top 20 and Top 5 firm are currently seeking to expand their medical negligence teams. 1+ year's pqe with exposure to this area of law is essential. Both firms are offering a competitive salary package and a stimulating environment, working alongside friendly and supportive colleagues.

Commercial Property Solicitor x8 The successful candidates should have gained experience from a recognised property department of a major or medium sized firm. In addition, candidates should have a strong academic background and the ambition to succeed. You will advise on all aspects of commercial property business including commercial landlord and tenant matters, portfolio acquisitions and disposals. All levels of PQE are in demand and there are roles available in medium to large firms.

General Practioner Solicitor x4 With roles throughout Dublin city, Dublin suburbs and surrounding counties, Solicitors who have had exposure to a 'mixed bag' are in demand! All levels of PQE are required for all size firms.

• Residential Conveyancing Solicitor: 3yrs+PQE • Banking Solicitor: All levels PQE • EU/Competition: 1yr+PQE • Tax Solicitor: 5yrs+PQE • Newly Qualified Solicitors: All areas • Legal Counsel (Funds) • Employment Solicitor: 2yrs+PQE • In-House Legal Counsel (General) • Corporate/Commercial Solicitor: 5yrs+PQE • Part-time Compliance Officer