LAW SOCIETY

Gazette€3.75 Jan/Feb 2008

MEASUREMEASURE FORFOR MEASURE:MEASURE: HighHigh CourtCourt costscosts

INSIDE: DIVORCE 10 YEARS ON • BUYING/SELLING PRACTICES • FOCUS ON GALWAY • YOUR LETTERS

LAW SOCIETY GAZETTE JAN/FEB 2008 CONTENTS

On the cover LAW SOCIETY What light through yonder window breaks? ’Tis an account of High Court costs, measure for measure. Asses are made to bear, and so are you: the words Gazette expressly are “a pound of flesh”. Let every eye negotiate for itself, Jan/Feb 08 but all that glisters is not gold PIC: GETTY IMAGES/GAZETTE STUDIO

Volume 102, number 1 Subscriptions: €57 REGULARS 5 President’s message 7 News Comment 13 13 Letters

Analysis 16 16 News feature: new LRC programme 18 News feature: Justice Media Awards 2007 20 Human rights watch: if you want blood, you’ve got it 20 One to watch: new marriage regulations 11 46 People and places Obituary 51 Eugene Carey, 1955-2007 53 Student spotlight Book review 55 Principles of Irish Property Law

Briefing 56 56 Council report 57 Practice notes 58 Legislation update: 17 November ’07 – 16 January ’08 47 60 Solicitors Disciplinary Tribunal 61 Firstlaw update 63 Eurlegal: the Lisbon Treaty 67 Professional notices 73 Recruitment advertising Editor: Mark McDermott. Deputy editor: Dr 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 67. Commercial advertising: Seán Ó hOisín, 10 Arran Road, Dublin 9; tel: 01 837 5018, fax: 01 884 4626, mobile: 086 811 7116, email: [email protected]. Printing: Turner’s Printing Company Ltd, Longford. Editorial board: Stuart Gilhooly (chairman), Mark McDermott (secretary), Paula Fallon, Michael Kealey, Mary Keane, Aisling Kelly, Patrick J McGonagle, Ken Murphy, 53 Philip Nolan.

2 www.lawsociety.ie CONTENTS LAW SOCIETY GAZETTE JAN/FEB 2008

Get more at lawsociety.ie PROFESSIONAL NOTICES: send your small advert details, with payment, to: Gazette Office, Blackhall Place, Dublin 7, tel: 01 672 4828, or email: [email protected]. Gazette readers can access back issues of the ALL CHEQUES SHOULD BE MADE PAYABLE TO: LAW SOCIETY OF IRELAND. magazine as far back as Jan/Feb 1997, right up to the current issue at lawsociety.ie. COMMERCIAL ADVERTISING: contact Seán Ó hOisín, 10 Arran Road, Dublin 9, tel: 01 837 5018, fax: 884 4626, mobile: 086 811 7116, email: [email protected] You can also check out: • Current news HAVE YOU MOVED? Members of the profession should send change-of-address • Forthcoming events, including the new details to: IT Section, Blackhall Place, Dublin 7, or to: [email protected] distance learning course in District Court Subscribers to the Gazette should send change-of-address details to: procedures, 23 February Gazette Office, Blackhall Place, Dublin 7, or to: [email protected] • Employment opportunities • The latest CPD courses HOW TO REACH US: Law Society Gazette, Blackhall Place, Dublin 7. … as well as lots of other useful information Tel: 01 672 4828, fax: 01 672 4877, email: [email protected]

FEATURES COVER STORY: 24 Measure for measure What is the basis of the High Court’s jurisdiction to measure costs, and when is measurement of costs more appropriate than taxation? Hugh Kennedy and Brid O’Flaherty break out their measuring tapes Ten years after 28 Ten years after divorce was introduced in Ireland, there are about 60,000 divorced people here. But what type of legal framework and practice should underpin the law in this area? Geoffrey Shannon’s intentions are honourable Disputed territory 32 The Ryanair judgment limits the Labour Court’s jurisdiction to issue recommendations with regard to non-unionised workplaces. But it leaves many areas open to further interpretation, writes Maura Connolly Breathing easy 36 In the third article in our series on how an economic 28 downturn might affect solicitors, Barry Lyons says that the right knowledge can lead to new business by providing examinership solutions to difficulties faced by client companies Sweetening the pot 40 In the second of a two-part series, Hilary Haydon demystifies the complexities of valuing, buying and selling a solicitor’s practice Into the West 43 In our continuing series of snapshots of the profession around the country, Colin Murphy finds plenty of change in Galway, some of it led by a cabal of ‘young guns’ who think that some things could be done better

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

www.lawsociety.ie 3 NEW OFFICE NOW OPEN IN DUBLIN

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Mura gcuirfidh muid san earrach ní bhainfidh muid san fhomhair

olleagues, first and foremost I would client or in the capacity like to take this opportunity to wish of an arbitrator or you and your families every success mediator. In the course of and happiness for 2008. It is, of the year, the Society will C course, the time of the year for well- be launching new intentioned New Year’s resolutions. In my own case, schemes of arbitration the resolutions are by now so familiar that I view and mediation, and I them as the annual visit of close family friends. On would encourage you to this occasion, however (as so often in the past), I participate and, hope that they stay around until at least early importantly, to bring these opportunities to the “In the course of summer! attention of your clients. On a professional level, it is also an opportunity We are, of course, at the beginning of a new CPD the year, the for us to take stock and to plan for the year ahead. cycle, and what better time to strategically plan to Society will be As ever, there is no shortage of doom and gloom refine our existing skill sets? While, obviously, it is a being predicted, given that there is undoubtedly matter for individual choice, increasing numbers are launching new increased pressure on some traditional areas of seeking to participate in diploma programmes, schemes of practice. certificate courses or advanced advocacy courses as For this reason, the Society has established a an alternative to the more traditional stand-alone arbitration and Practice Management Task Force, which aims to lectures. The feedback we get is that longer courses mediation, provide guidance and assistance to solicitors who bring more ‘added value’ and satisfaction to the are interested in changing their work practices to participants. This is, therefore, the perfect time to and I would accommodate practising into their lives – rather plan to derive maximum benefit from the CPD encourage you than the other way around. obligations in the course of this present cycle. The start of a new year, coming at a time of In summary, my wish for the profession for 2008 to participate change in the legal market place, is also an is that, in recognising inevitable change, we embrace and, importantly, opportunity for colleagues to consider developing it as presenting opportunities rather than threats. We new expertise, perhaps in the practice areas where owe it to ourselves personally to continually reflect to bring these there is now a huge demand for legal talent. While on whether we work to live, or live to work. There opportunities to there are many to choose from, I would like to can be no doubt that if we practise smartly, our job concentrate here on the area of arbitration/ satisfaction will be greater, and our capacity to the attention of mediation/alternative dispute resolution. The Society deliver a quality service to our clients will be your clients” is strongly supportive of measures that that can enhanced. resolve contentious problems for our clients as It’s my hope that, in plagiarising the motto quickly and as economically as possible. There is of the Munster team, we can be inspired by their growing support, not only from within the profession, tenacity: “To the brave and faithful, nothing is but also within from the public, to explore impossible.” G alternatives to costly and time-consuming litigation. There are many suitable courses to train us how James MacGuill to participate in this work, whether representing a President

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NEWS LAW SOCIETY GAZETTE JAN/FEB 2008 nationwide

Send your news to: Law Society Gazette, Blackhall Place, Dublin 7, or email: [email protected]

■ SLIGO Property Registration Authority), Bar association president and the presidents of a number Seamus Monaghan, Fergal Kelly of bar associations, including (secretary), Carol Ballantyne Patrick Mullins from the SLA, and Brian Gill have been Patrick O’Connor from Mayo, working hard on behalf of their Anne Heseltine from Liverpool, members. Following a very Christopher Clarke from Bristol, successful social event in the James Cooper from the Law yacht club in Rosses Point, Society of Northern Ireland, we’ve heard about a number of John Guerin from Belfast, local seminars that have been Stephen Hindmarsh from held in recent months. These Manchester, and Catherine Allen have been very successful and from the SYS. have attracted a large audience A feature of the night is the of practitioners. charity raffle. This year, DSBA At the Southside Solicitors’ function in the Royal St George Yacht president Michael Quinlan ■ MAYO Club were Justin McKenna (Partners at Law), John O’Malley (John nominated the cystic fibrosis It is good to see the revival of P O’Malley & Co), Mr Justice Michael Peart and Jacinta Proctor charity. an initiative on the part of Michael Quinlan has also solicitors that reflects well on is separate and distinct from the Burke, outgoing treasurer put the final touches to everyone. In Dublin in the mid annual ‘away’ trip, which takes Valerie Corcoran and outgoing arrangements for the most 1980s, we had a number of very place towards the end of secretary Yvonne Francis and audacious legal conference in successful Wills Week September, and those interested the committee for their sterling years, namely the DSBA annual promotions, which not only in travelling should contact work during the past year. conference in China. This is to generated its own publicity for Colette Curtin, SLA secretary. For 2008, it is proposed to take place between 14 and 21 worthy causes but also filled the repeat the association’s day at September and involves three wills cabinet. ■ GALWAY the Galway Races in August and nights stays in both Beijing and Pat O’Connor and his team The AGM of the Galway Bar the Law Ball in early December, Shanghai. Anyone interested is in Mayo are promoting a Wills Association was held on 13 both of which were very asked to contact Michael or any Week (25-29 February) December 2007 in Galway successful. CPD courses will other council member. throughout the county. The Courthouse. The newly elected feature large in the coming year Considering the five-star public, through a media committee for 2008 is: president (see article, page 43). A number package over a basic six or seven campaign, are being encouraged – James Seymour (Seymour & of other functions are also nights, an anticipated and to call in to their solicitor to Co), vice-president – Ailbhe proposed, including wine- heavily subsidised cost (through make a will and, in so doing, to Burke (Pauline O’Reilly & Co), tastings, to be held in aid of sponsorship) seems good value make a donation of €100 to any treasurer – Cairbre O’Donnell various local charities. indeed. Mayo charity of their choice. (John C O’Donnell & Son), The DSBA has just moved The will is put together free of secretary – David Higgins (Law ■ DUBLIN offices, from Hatch Street, charge by the solicitor. Centre), PRO – Kayanne The DSBA dinner dance – held, where it has been for the last Horgan (Higgins Chambers as usual, in the Four Seasons – three years, to larger premises ■ CORK Flanagan), committee members was a glittering occasion and a on Harcourt Street beside BCM Mortimer Kelleher, SLA vice- – Louis Bourke (Brian Lynch & great credit to Michael Quinlan Hanby Wallace on the ‘Green’ president, has given advance Associates), Robert Meehan and his organiser-in-chief side. Maura Smith and her staff notice to the membership of a (Blake & Kenny), Valerie Geraldine Kelly. The event was (having got over a significant forthcoming trip to the Corcoran (Corcoran oversubscribed, with up to 400 in water leak in week one) are European Parliament on 2 McLoughlin), Cait Fitzgerald attendance. DSBA guests delighted with the move and September. Former SLA (Kilfeather & Co), Ciara included Minister for Education the additional space that it gives stalwart, Leeside practitioner O’Callaghan (Higgins Mary Hanafin, the presidents of to those involved in the and now MEP, Colm Bourke, Chambers Flanagan), Laura most of the courts, Dublin association. G has invited a delegation to King (Higgins Chambers county registrar Susan Ryan, the attend a session in the Flanagan). president and director general of ‘Nationwide’ is compiled by Kevin parliament in Strasbourg. A special word of thanks to the Law Society, Catherine O’Higgins, principal of the Dublin Mortimer stresses that the trip outgoing president Ailbhe Treacy (chief registrar of the law firm Kevin O’Higgins.

www.lawsociety.ie 7 LAW SOCIETY GAZETTE JAN/FEB 2008 NEWS Advocate General Sharpston calls for discussion on ECJ’s role

he role of the European sketch”. The ECJ had added TCourt of Justice in the considerable detail to that evolution of the EU was the sketch, she explained, and focus of the annual Hibernian emphasised that had the court Law Journal lecture, delivered not been so bold in its decisions, by Advocate General Eleanor the Treaty of Rome might have Sharpston at Blackhall Place on been regarded as just one more 22 November. AG Sharpston international treaty. examined the triumphs, challenges and limitations of the Rapid expansion court in her lecture, which was The advocate general discussed chaired by Mr Justice Nial the challenges currently facing Fennelly of the Supreme Court. the court, including those posed Fresh from her viewing of the by the rapid expansion of the Book of Kells earlier in the day, EU in recent years. The court’s Attending the HLJ lecture were (back, l to r): Rosemary Wall, AG Sharpston compared the caseload is increasing Michele Barker, Maeve Regan, Sinéad Hayes, Julia Emikh, Killian Kehoe, Emer O’Connor and TP Kennedy (director of education, Law Society). famous opus to the Treaty of dramatically and, accordingly, (Front, l to r): Erika O’Leary, Avril Mangan, AG Eleanor Sharpston, Rome, which admittedly was the length of time for John-Hugh Colleran (HLJ editor), Paul Ryan and Nicholas Blake-Knox more comparable to a “rough proceedings is also increasing. The 23 languages of the court discussion of the role and the make it like a ‘Tower of Babel’, current limitations of the ECJ is she said. AG Sharpston needed if it is to continue to demonstrated through striking respond to the challenges it examples how this linguistic faces and play a useful role in factor would exacerbate the the development of EC law. She increased caseload. Also, with an argued that member states must increased number of judges, it now engage actively with this will be more difficult to issue. maintain coherence in case law. Current editor of the Another challenge facing the Hibernian Law Journal, John- court is the specific technical Hugh Colleran, also announced expertise required of it in areas the launch of the HLJ on such as tax and trade law, while westlaw.ie. All articles published maintaining the broad vision to date are now available online Launching Westlaw’s online access to the HLJ were (l to r): John-Hugh necessary to deal with for the first time. The 2007 Colleran (editor), Lisa Scully-O’Grady (Round Hall Publishing and constitutional issues. edition is currently printing and westlaw.ie) and TP Kennedy (director of education, Law Society) The AG stressed that more will be available shortly. IBA annual conference scholarships he sections and committees 2008 annual conference, • A waiver of either the next Scholarships.cfm. Tof the International Bar 12-17 October 2008, Buenos IBA annual conference Each application must be Association’s (IBA) Legal Aires, Argentina, registration fee or the accompanied by a 2,500-word Practice Division are once • A contribution towards travel registration fee of one of the paper on a subject selected by again offering scholarships to costs to the conference, chosen committees’ specialist each of the sections/committees young lawyers who wish to • Cover of accommodation conference in 2009, (see link above). participate in the IBA annual costs while attending the • Free membership of the Applicants are only permitted conference, but who are unable conference, Scholarship Alumni Group. to apply for one section or to do so owing to financial • Two year’s free IBA committee scholarship and constraints. membership, including For a full list of the sections must be 35 years or under at The 2008 scholarship awards membership of one LPD and committees awarding the time of the conference. The include the following: committee and one PPID scholarships, you should visit deadline for submissions is • Free registration for the IBA constituent, www.ibanet.org/legalpractice/ Monday 7 April 2008.

8 www.lawsociety.ie NEWS LAW SOCIETY GAZETTE JAN/FEB 2008 Fermoy Courthouse opens in €7 million civic centre PIC: THE AVONDHU PRESS ermoy’s newly refurbished issued and documents filed in Fcourthouse was officially High Court civil cases and opened on 17 December 2007 contains court listings, dates and by Minister for Justice Brian summaries of orders and Lenihan. judgments. New technology has The board of the Courts also allowed the Courts Service Service was represented by to establish a central office for Judge Patrick Moran, who the processing of summons presided over the event, while applications received Garda Commissioner Fachtna electronically from An Garda Murphy also attended. Síochána. The courthouse, which has stood in Fermoy since 1808, Preserving history The newly refurbished courthouse in Fermoy has significantly features significantly improved Fermoy Courthouse was built by improved public facilities public facilities and is located in John Anderson and Archibald the town’s dedicated civic business to be conducted in bringing the total number of live Grubb and erected at the east complex. It now boasts: Fermoy. offices to 22. The roll-out to the end of the town in 1808. • Two courtrooms, Judge Moran commended the remaining District Court offices Though the building has • Judges’ chambers, minister for putting in place an is expected to be completed in changed much over the past 200 • A family law suite, impressive technology system the first quarter of 2008. In years, many features remain • A victim support room, for the courts. Citizens now coming years, similar projects from earlier times. • Consultation/waiting rooms, have easy online access to the will allow for the online The refurbishment process • New prisoner accommod- small claims system, which payment of court payments has respected and retained the ation, including cells and a enables members of the public and fines. inherent character, quality and secure interview room, to create and lodge small claims Information technology will presence of the 200-year-old and applications, pay the application also make it easier for building. The porch has been • Accommodation for members fees and check the status of their practitioners and members of removed to reveal the original of the gardaí and the Prison claims. Statistics show that there the public to track the progress Gibbs-designed door surround, Service. was a 28% increase in total of cases through the High and timber sash windows and claims received in the first nine Court. A public search facility doors have been retained. The Secure car parking and cell months of 2007 in 16 pilot sites project for the High Court Case courtroom furniture is believed accommodation included in the compared with last year’s figures. Tracking System went live on 21 to be original and the viewing extended building will further Following the satisfactory November 2007. It is available gallery is particularly distinctive. enhance the different uses of the completion of the pilot scheme, online to court users and the The double-height courthouse’s building. This will allow much six District Court offices went public via the internet. The ceilings are formed of panelled, more District and Circuit Court live on 7 December 2007, system records all proceedings sheeted timber. Where do we get our energy from? he global warming debate charity event that benefits switched the contract for all forestry. Their achievements Tis heating up, but the Law GOAL and Fr Peter McVerry’s waste management at Blackhall have earned them a place on Society is playing its part in Arrupe Society) was branded a Place to Greyhound Recycling the 2007 list of the worlds becoming greener. ‘green day’ – the Society and Recovery. This has assisted most ethical companies. For the last five years, the engaged Greyhound Recycling the segregation of all waste at In March 2007, the Society Society has been recycling and Recovery to assist it so that source – allowing even more moved all of its electricity paper, cardboard, bottles, and almost 95% of the material material to be recovered. supply requirements to plastics for both staff and collected on the day was The Society outputs 22 Airtricity. Airtricity receives students. In addition, it recycles recycled. The event celebrates million photocopies from its 89% of its energy from mobile phones, printer its tenth anniversary in 2008, print room annually. Of this renewable sources. cartridges and handheld when it hopes to set a new figure, 98% of all output is The Society has also electronic devices for Temple record in the amount of funds double-sided. The Society’s established an Eco Friendly Street Children’s Hospital. raised and materials collected paper comes from Task Force to build upon the In May 2007, the Calcutta for recycling. International Paper (UK) achievements to date and it is Run (the Society’s annual Last October, the Society Limited, which uses sustainable considering many useful ideas.

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NEWS LAW SOCIETY GAZETTE JAN/FEB 2008

■ PRIZE BOND DRAW RESULTS Press Council launched HELD ON 6 NOVEMBER 2007 1 x €1,250: bond number ew Year’s day saw the 1973 (anonymous). Nestablishment of the Press 4 x €500: bond number 1471 Council of Ireland and the (John O’Donnell, ‘Glendine’, Office of the Press Lynn, Mullingar, Co Ombudsman. The new Press Westmeath); bond number Ombudsman’s office will give 1639 (Patrick T Moran, everyone access to an Michael Moran & Co, independent press complaints Mountain View, Castlebar, Co mechanism that, according to Mayo); bond number 1713 the Press Council, will be (anonymous); bond number “quick, fair and free”. 2240 (Enda P O’Carroll, Wells The objectives of the Press & O’Carroll, Main Street, Council and Press Ombudsman Carrickmacross, Co Monaghan). are: 5 x €275: bond number 1221 • To provide the public with an (Kenneth Armstrong, 9 Glenart independent forum for Justice minister Brian Lenihan, Prof John Horgan and Avenue, Blackrock, Co Dublin); resolving complaints about Prof Thomas Mitchell at the launch bond number 1860 (Brian the press, Gallagher, Gallagher Shatter, 4 • To resolve all complaints complex” cases that have been • It must breach the code of Upper Ely Place, Dublin 2); bond quickly, fairly and free of referred to it by the Press practice for newspapers and number 1975 (Thomas Farrell, charge, Ombudsman. It will also decide periodicals, and Farrell & Partners, O’Connor • To maintain the highest on appeals to decisions made by • The person making the Square, Tullamore, Co Offaly); standards of Irish journalism the Press Ombudsman. complaint must show that bond number 2174 (Mary and journalistic ethics, and they have been directly Twomey, David Twomey & Co, • To defend the freedom of the Press Ombudsman affected by, and involved in, 55 Main Street, Castleisland, press and the freedom of the The role of the ombudsman is the article or behaviour in Co Kerry); bond number 2279 public to be informed. to investigate complaints that question. (George V Maloney, 6 Farnham breach the new code of Street, Cavan). The Press Council has 13 mem- practice, which the press The ombudsman’s office will, bers. Seven of these, including industry signed up to in 2007. in the first instance, attempt to ■ RULE OF LAW PROJECT its chairman, Professor Thomas The code can be viewed at resolve the matter by making LAUNCHED Mitchell, are lay members www.presscouncil.ie. The Press direct contact with the editor The Law Society has representing a broad spectrum of Ombudsman’s aim is to provide of the publication concerned. established a Rule of Law Irish society. The remaining six the public with a way to resolve The ombudsman will outline Project. The objective is to come from the press industry any complaints in relation to the complaint to the encourage members to and have senior editorial and newspapers and periodicals that publication and seek to resolve develop and enhance the rule journalistic expertise. breach the code. the matter by conciliation. If of law in the developing world The Press Council of Ireland Complaints about an article this process fails, the with the assistance of Irish Aid appoints the Press Ombudsman or about the behaviour of a ombudsman will examine the or otherwise, so that human – a position that is held by journalist can be made to the case and make a decision. He rights, democracy, good Professor John Horgan of Office of the Press may refer significant or governance and justice may be DCU. The council will make Ombudsman. For a complaint complex cases to the Press available to all people. This decisions on “significant or to be examined by the office: Council of Ireland. project is being run in cooperation with the Bar Council. If you are interested IT security is in your interest in becoming involved in this countrywide IT security on how to effectively protect unmanaged and unsecured project, please contact Aawareness campaign – yourself from IT security threats, environments that are easy prey [email protected] for makeITsecure – is being particularly phishing, spyware, for malicious and criminal more information. launched on 11 February. The ID theft and child safety online, hackers”, all users need to be two-week public/private including social networking. more aware of the importance ■ RETIREMENT TRUST partnership programme will run The organisers of of IT security. SCHEME on an all-island basis. makeITsecure say that Further information on the Unit prices: 1 January 2008 The campaign will stress the awareness of key internet security measures that Managed fund: €5.893084 importance of IT security for threats among consumers and businesses and consumers need Cash fund: €2.800760 business users and ordinary small businesses is “very low”. to take is included on the Long-bond fund: €1.362925 consumers. It will give guidance Due to “a significant number of website: www.makeitsecure.ie. All-equity fund: €1.424523

www.lawsociety.ie 11 LAW SOCIETY GAZETTE JAN/FEB 2008 NEWS

■ THOMAS ADDIS EMMET SUPPORT SERVICES FOR MEMBERS FELLOWSHIP FLAC is giving one Irish law student the opportunity to HELP! I NEED SOMEBODY! take part in an exciting Louise Campbell summarises five separate sources of assistance and support available to programme run in conjunction the profession, independent of the Society with the University of Washington, Seattle. Through rom 1 January 2008, the Law member of the SLA experiencing its Thomas Addis Emmet FSociety has funded the difficulties in practice, whether Fellowship, the successful provision of the services of the problem is professional or candidate will get the chance LawCare to the solicitors’ personal. A panel of eight to work for two months in the profession in Ireland. Provided experienced and approachable USA in the field of inter- across Britain for the past ten Cork-based solicitor volunteers national public interest and years, LawCare offers a free provide this confidential service. human rights law. Those and completely confidential Their contact details are included invited to apply include law advisory service for lawyers, on the official SLA headed undergraduates, postgrad- their immediate families, and notepaper on which members uates, Law Society students their staff. It helps callers to receive regular correspondence. and King’s Inns students. The deal with health issues and No details relating to any callers closing date is 8 February related emotional problems are passed to the Law Society. 2008. Full details, rules and such as stress, depression, entry form are available at drug and/or alcohol dependency, Put your best Mentor programme www.flac.ie. eating disorders, bullying, fist forward The mentor programme provides bereavement and gambling, an opportunity for solicitors ■ ACCESS TO EULIS LIVE among others. setting up in practice to make Landdirect.ie now offers represented on the board by Tom contact with a more senior and customers the facility to LawCare freephone helpline Murran (Council member) and experienced solicitor, for search other European online LawCare offers its service in Louise Campbell (support guidance and advice on an land registry services. All Ireland through a freephone services executive). Neither, informal and voluntary basis. professional users of land helpline, 1800 991 801, which however, have any direct For a copy of the register of registration services who operates 365 days a year, involvement in the day-to-day mentors, please contact Louise subscribe to landdirect.ie and Monday to Friday, 9am to provision of the LawCare service, Campbell (contact details below). are resident within the 7.30pm, and weekends/public which is completely confidential, European Economic Area have holidays from 10am to 4pm. Out- and no details relating to any Panel to assist solicitors in been getting access to EULIS of-hours calls are connected to callers are passed to the Law difficulty with the Law Society automatically since 1 an answering service and will be Society, other than general A panel is available to assist December 2007. If you are an returned within 24 hours. statistical information. solicitors about whom a existing landdirect.ie customer Those answering calls are complaint is made to the Society, and do not wish to have lawyers trained in telephone DSBA confidential helpline or who might be in difficulty with access to EULIS, you should counselling skills, who seek to Since 1994, the Dublin Solicitors’ the Society, and who require email [email protected]. identify the nature and extent of Bar Association has provided its assistance with their initial any problems. Where confidential helpline, tel: 01 284 response. The list of panel ■ MHC SEEKS VIEWS appropriate, they refer callers to 8484, to assist every member of members is sent with the initial The Mental Health Commission a relevant health professional for the profession with any problem, letter from the Society, and is has invited members of the counselling and/or treatment whether professional or personal. also available on the Society’s public and organisations, and to other specialist A recorded message provides the website, www.lawsociety.ie, in individuals or groups with an organisations who offer help. names and phone numbers of two the Law Directory, or on request interest in mental health issues They may also be able to offer solicitors on duty during the from Therese Clarke, secretary, to make submissions on the the support of a lawyer current week, who may be Guidance and Ethics Committee, operation of part 2 of the volunteer, who has personal contacted in complete confidence. Manor Street, Dublin 7; tel: 01 Mental Health Act 2001. This experience in dealing with similar Over 100 solicitors do volunteer 868 1220, email: t.clarke@ concerns the involuntary problems. More volunteers are duty for one week of the year. No lawsociety.ie. G admission of adults and always welcome, and LawCare details relating to any callers are children to approved centres. would be pleased to hear from passed to the Law Society. For information on any Law The closing date for any solicitor who is prepared to Society member service, please submissions is 5pm on 18 offer their help as a volunteer. SLA confidential service contact Louise Campbell, support February 2008. Submissions A board of trustees deals with Since 2000, the Southern Law services executive, Blackhall must be forwarded on a LawCare’s policies and Association (SLA) has provided a Place; tel: 01 881 5712 or specific template, available development. The Law Society is confidential service to assist any email: [email protected]. from www.mhcirl.ie.

12 www.lawsociety.ie COMMENT LAW SOCIETY GAZETTE JAN/FEB 2008 letters

Send your letters to: Law Society Gazette, Blackhall Place, Dublin 7, or email: [email protected] Will the Central Office ever join us in the 21st century? From: Liam Moloney, Moloney & what connectivity is there where one has to wait be tolerated in the private Co, Naas, Co Kildare between the administration and sometimes even longer than an sector. hen one considers that practice of the court system? hour to file one document so it Surely a few more staff can Wthe courts start between Why are the opening hours bears the court stamp. There be reallocated to the Central 10.30am and 11am and the linked to the Superior Court is absolutely no excuse for the Office to bring these Central Office doesn’t even Rules? inefficient practices being outmoded practices to open until 10.30am each day, The filing system is a fiasco, operated, which would never an end? G

SEI takes issue with ‘BER necessities’ cert ustainable Energy Ireland sought and secured a I believe that SEI would S(SEI) has drawn our attention commitment from NEA to agree that NEA has to an inaccuracy that appeared in withdraw this document from never misled any of its the ‘BER Necessities’ article circulation.” customers or potential (see Gazette, November 2007). customers and, since the The article referred the reader to NEA responds introduction of non- an illustration of a ‘BER In reply, NEA points out the mandatory BERs, following certificate’ on page 41. The following: “Prior to ‘non- NEA representations in favour Gazette is happy to point out that mandatory BERs’ being of this, we have retired the the illustration on page 41 was introduced in October 2007, NEA certificate. not, in fact, a BER certificate, customers who could not “On a request from SEI, in but rather a certificate issued by purchase a BER and wished a letter received on 30 National Energy Assessors (NEA) to understand where their October, NEA immediately in its own name, with no legal property rated on the BER retired the NEA certificate in standing. scale had no solution favour of the SEI cert. In a “Its similarity to the official available to them. It is for proactive fashion, we wrote to BER certificate could easily lead this specific reason that SEI to provide notice that the to confusion. It would not be NEA developed its own in- Law Society Gazette, to which we difficult to imagine that a house certificate. We had contributed an article, had solicitor would mistake an NEA found that this document, which gone to press prior to receipt of certificate for an official building was clearly NEA branded, served efficiency of their property. the SEI request.” energy rating,” says the SEI. “For the purpose of demonstrating to This was the precise purpose Hopefully this clarifies the these reasons, SEI has already our customers the energy and function of this certificate. matter.

EU counter-terrorism law n the December issue of the 1994”. In fact, Dr Barrett would Barrett had indicated that presentation was that, within the IGazette (p17), we referred to like us to point out that he “voluminous domestic and financial services sector, the a recent conference on EU indicated at the conference that international obligations [had] Criminal Justice Act 1994 counter-terrorism law in Dublin, he considered the financial besieged the financial sector, continues to be the principal where we intimated that one of sanction measures adopted by which appears to be no clearer deterrent to the offence of the speakers, Dr Max Barrett, the European Union to be on the distinction between financing terrorism, solicitor, believed that, “the working well in tandem with the terrorism and other criminal notwithstanding the enactment financial sanction measures Criminal Justice Act 1994. activity”. Dr Barrett has of the Criminal Justice (Terrorist imposed by the EU add little to It might also be incorrectly indicated that the broad Offences) Act 2005. We are the existing Criminal Justice Act inferred from the article that Dr contention of his conference happy to clarify these matters.

www.lawsociety.ie 13 LAW SOCIETY GAZETTE JAN/FEB 2008 ANALYSIS President welcomes proposed The Law Society president has strongly defended the Society’s stance on regulation and has welcomed draft legislation that will introduce a legal services ombudsman, writes Mark McDermott

resident of the Law including the President of the will play our part in that. I PSociety James MacGuill High Court, the Minister for believe that it is now timely has delivered his strongest Justice, the independent that we have this review by the statement yet on the subject of adjudicator and the non-lawyer Oireachtas. The profession and regulation of the legal nominees of IBEC, ICTU and public must be satisfied that our profession. Speaking at a the Director of Consumer systems and standards have the parchment ceremony on 20 Affairs.” most appropriate and best December at Blackhall Place, “These people of integrity public protection measures. which was attended by and standing would not tolerate “The single greatest threat President of the High Court a system that worked other to the independent legal Mr Justice Richard Johnson, than in the public interest,” he profession is not the form of Minister for Justice Brian said. regulation that applies. It’s a Lenihan, and legal affairs perception that regulation is editor of The Irish Times Dr Meeting of minds – Minister Brian Draft legislation welcomed ineffective – that it’s self- Lenihan and director general Ken Carol Coulter, the president The system could be improved, serving; that it protects the Murphy share some thoughts said that, while he had already during the parchment ceremony he accepted, and said that the lawyer, not the client – that it’s publicly made certain Law Society welcomed the geared to the profession, not observations on the subject promote self-regulation,” he draft legislation that would the consumer. of the regulation of stated. “As we have pointed out introduce a legal services “That is not what regulation the profession, it was repeatedly, it is fundamentally ombudsman, together with a should be about,” he continued. particularly apposite to revisit misleading to describe the non-lawyer majority on the “It is not what we are about. the subject again. current system of regulation of Society’s Complaints and Client We work in a profession where Addressing the minister, solicitors in Ireland as ‘self- Relations Committee, to we help people, often under assembled guests and the regulation’.” further increase – in the public great pressure in the most newly qualified solicitors, he Mr MacGuill pointed out interest – the independence, critical events of their lives. said: “Opinion-formers and that the system of regulation transparency and accountability Their homes, futures, other commentators assume operated under statute and was of the system. businesses, good names, that the legal profession characterised by “all-pervasive “We believe in having families and even liberty supports self-regulation. external supervision and control appropriate regulation of the depend on us. They depend on We don’t – and won’t – by independent people, profession by others, and we the excellence of the service we provide and the relationship of trust we have with them – the relationship of trust that every solicitor in this room guards so dearly. That,” he concluded, “is what any future regulation must be about.”

Legislative reforms Responding to the president’s comments, Minister Brian Lenihan said that the government had agreed a package of legislative reforms that would be specific to the legal professions. “This reflects the govern- ment’s recognition that improved regulation of the Special guests of the Law Society at the 20 December parchment ceremony at Blackhall Place were (l to r): Law Society President James MacGuill, Minister for Justice Brian Lenihan, Irish Times legal affairs legal professions is necessary – editor Dr Carol Coulter, President of the High Court Mr Justice Richard Johnson and Law Society and that is why legislative Director General Ken Murphy proposals for the establishment

14 www.lawsociety.ie ANALYSIS LAW SOCIETY GAZETTE JAN/FEB 2008 legal services ombudsman

of a legal services ombudsman constructive,” he said. “It is of ALL PICS: LENSMEN are being progressed. The bill fundamental importance that is being drafted for publication both the legal system and the early in the new year,” he said. banking system operate to the “The ombudsman will highest standards and that the replace the Law Society’s public can have full confidence independent adjudicator and in them.” will provide both for review of individual complaints and of Changes to legal costs complaints procedures, as well The minister told the audience as overseeing admission to the that a legal costs bill was also profession, particularly with being developed to reform the regard to the adequacy of the manner in which disputed legal numbers admitted.” costs would be assessed. This The Law Society had been would have the allied objective closely consulted on the of making the market for civil development of the bill, and he legal services more predictable, said that the Society “has consistent and transparent to contributed in a very positive consumers. way and is, I am glad to state, “It is my intention that the fully supportive of the bill will also provide for government’s proposals”. significant improvements in the In addition to this quality and quantity of the development, he continued, a information that a solicitor is number of the recomm- required to provide to clients,” endations initiated by the Law he said, “and the manner in Law Society President James MacGuill Society by way of the Brosnan which it is to be supplied. I am Report on regulatory matters in firmly of the view that the The minister next addressed by society. relation to solicitors were now individual litigant should have a the Legal Practitioners (Irish More recently, while provided for in the Civil Law central role to play in Language) Bill, published in conducting the Family Law (Miscellaneous Provisions) Bill controlling his or her legal November 2007. The bill Reporting Project for the 2006. costs. promotes the better use of the Courts Service, she had “For example, the bill “How the litigant can be so Irish language by legal considered how solicitors provides for a majority of lay empowered will be addressed in practitioners and the provision defended their clients’ interests. membership of regulatory the bill,” he continued. “Suffice of legal services through Irish. She warned of the danger of committees. Provision is also to say that the timely provision The bill, he said, would ensure perceiving clients’ interests as made to ensure better of information to clients is that a better standard of legal being solely concerned with a enforcement of orders of the central to this empowerment. services would be available to good financial outcome. Often, Solicitors’ Disciplinary I want to have a new assessment the public in Irish. people had other interests, she Committee.” of the costs system which, as said, “like the need to maintain Addressing the issue of the part of its remit, provides infor- Sound advice good relations with their cases currently being mation to the public on the law The ceremony also included a children, and their children’s investigated by the Law Society and on client’s entitlements rel- short speech by Carol Coulter, other parent and wider family, and also before the courts, the ating to costs. The new system Irish Times legal affairs editor. into the future”. minister welcomed the fact that should have a mechanism to Dr Coulter told the next She advised the newly the Law Society and the Irish collect, analyse and publish data generation of Irish solicitors that qualified solicitors when Bankers’ Federation had been in relation to costs, counsels’ her interest in law and public advising such clients (who engaged in discussions with a fees, witnesses’ expenses and policy stretched back 20 years, were often hurt and angry) to view to ensuring the other disbursements from all to the appeals of the Birming- consider the importance of maintenance of a proper court jurisdictions. Finally, the ham Six and the Guildford Four. their duty to alert them to their balance between the needs of bill will also provide for This had alerted her to the great personal and family- good conveyancing, mortgage legislative and procedural commitment that certain relationship requirements, lending and banking practice. changes to reduce delays in solicitors showed to their clients, rather than being overly “I understand that these court hearings and generally especially clients who were concerned with the desire to discussions have been very expedite the legal process.” isolated and widely condemned obtain the best financial deal. G

www.lawsociety.ie 15 LAW SOCIETY GAZETTE JAN/FEB 2008 ANALYSIS Even better than The LRC issued its Third Programme of Law Reform in December 2007 – intended to take it up to 2014 – and the mark of the postmodern society is all over it. Colin Murphy reports

hen is a document not a brought, will they have to characterised by movement of an issue that people think Wdocument? When is a recognise electronic signatures the most tangible legal ‘goods’ about, and that’s reflected in the parent not a parent? When is a and PDF contracts as being as of all – people. Where once programme”. signature not a signature? good as the ‘real’ thing? people held wakes before When is a migrant not an Evidence no longer means emigrating to America, and the Achtung baby immigrant? simply the kind of tangible clues few who arrived on our shores The programme doesn’t contain When the Law Reform of Cluedo. Increasingly, came here to stay, today people answers to these questions. Commission was established in evidence is something that is migrate rather than emigrate or What it does contain is an 1975, it could hardly have interpreted under a microscope, immigrate – they come and go. outline of 37 law reform expected to have to tackle the or upon inspection on a What does that mean for the projects, grouped under nine kind of futuristic, existential computer screen of a digitised right to, and the procedures for headings (see panel), which are questions that bedevil it in version. Electronic files can’t be granting, residence and effectively legal versions of the 2008. Information is now more labelled, locked up in a citizenship, and family questions above, and many easily transferred by virtual storeroom, and signed in and reunification? others. means, but the law tends to like out – so what are the rules that For the Law Reform One of these groups – things that are down on paper – should govern their transfer? Commission’s director of ‘Technology, innovation and the like signatures. If the courts are And the postmodern society research, Raymond Byrne, individual’ – includes three to respond to the efficiency isn’t simply about ‘virtual’ “technology is a big feature of projects: ‘Legal aspects of gains that technology has movement. Increasingly, it’s the world that we live in – it’s bioethics’, ‘Legal aspects of assisted human reproduction’, and ‘Privacy’. And technological issues crop up elsewhere. In the THE LRC’S THIRD PROGRAMME OF general area of ‘Law of evidence’, there are projects on LAW REFORM: IN BRIEF ‘Documentary evidence and The programme will occupy the commission from • Land law and property, technology’ and ‘Forensic 2008 to 2014. • Family law, evidence’, while the area of Its priorities are the law relating to juries, the • Specific groups in a changing society, ‘Land law and property’ law relating to documentary evidence and • Technology, innovation and the individual (to includes the ‘eConveyancing technology, the rule on hearsay, and legal aspects include legal aspects of bioethics and assisted road map’ project. of bioethics and assisted human reproduction. human reproduction), This reflects both the new The LRC intends to publish consultation papers • Commercial law, and demands that scientific on a number of its priority areas in 2008, with final • International law. innovation is placing on the reports on some areas possibly being presented in legal system and the widespread 2009. Each of the areas in the programme should These were chosen after a public consultation concerns that people have about be brought to final report by 2014. process, during which the commission received how technology increasingly As Raymond Byrne says, consultation papers over 200 submissions suggesting over 400 areas permeates their lives. As consist of “an analysis of all the law as it exists, of law for inclusion in the programme. Raymond Byrne notes, “Privacy identifying if there are gaps in the existing law and The commission’s criteria for deciding on the 37 is the only topic mentioned in what other countries have done to fill those gaps, projects were that they must meet a real each of the commission’s three and provisional recommendations”. community need, that the commission has the programmes. There is a The programme consists of 37 law reform capacity to research them, that the final concern [among members of projects, grouped under nine major headings: programme should include a mix of projects, and the public] that our privacy is • The legal system and public law (to include the that the projects should not overlap with the work being increasingly threatened.” law relating to juries), of other bodies engaged in law reform. • Law of evidence (to include the law relating to Since the Law Reform Commission was founded Rattle and hum documentary evidence and technology, and in 1975, it has published over 130 documents What concerns the public is hearsay), containing proposals for law reform, available at taken seriously by the • Criminal law, www.lawreform.ie. commission. For this third programme, the commission

16 www.lawsociety.ie ANALYSIS LAW SOCIETY GAZETTE JAN/FEB 2008 the real thing embarked on an extensive public consultation, with public meetings in Galway, Cork and Dublin during 2007. They received over 200 submissions, with over 50% of them coming from non-legal parties. Submissions could even be made over the telephone, and were strictly confidential, according to the president of the commission, Mrs Justice Catherine McGuinness. One of the issues that the public consultations threw up, to the surprise of the commission, was the law relating to juries: “We wouldn’t have anticipated that ourselves,” said Catherine McGuinness. A number of people described their own Government departments bills and the government has commission is not a lobby experiences in court and on make submissions also, but, taken them up (such as Senator group, but there is constant juries in their submissions. according to Commissioner Mary Henry’s Mental Capacity discussion with government Catherine McGuinness Patricia Rickard-Clarke, “they and Adult Guardianship Bill departments, particularly with explained the general issue don’t carry particular weight 2007). the Department of Justice, raised: “The Juries Act of 1976 just because they’re As a result, since 2000, “the Equality and Law Reform, has become outdated in a government departments”. graph [of implementation of about the extent to which number of ways. The jury recommendations] has gone recommendations have or system is supposed to reflect Unforgettable fire way up”, says Patricia Rickard- haven’t been implemented.” the whole of society. People Catherine McGuinness says Clarke. Catherine McGuinness are supposed to be tried by a that 70% of the recommend- And as Raymond Byrne gives a pithy overview of the jury of their peers. But, by and ations contained in the second says, “it would be surprising if role of the commission. “We large, it’s the people who are programme (2000-2007) have 100% of a Law Reform have had this kind of history available to sit on juries who already found their way into Commission report were where we were a bit inclined comprise them. There’s a great law or are on their way into always implemented. We’re to say ‘forget about this, it’s ‘middle’ [stratum] of society law. “By international not a part of government. The difficult – leave it until there’s who tend to avoid jury standards, by comparison with Oireachtas decides what laws a huge problem and the service.” other law reform bodies, that’s should be made, and it isn’t courts have to make a And there are more a very good rate of implement- simply a rubber stamp for the decision’. That’s obviously no particular concerns, such as: ation.” LRC. Debate should happen. way to reform the law. The “If an immigrant person is Since 2000, the LRC has The reports of the commission courts will do the best they being tried, there is no published a draft bill or provide a context for that can, but they are deciding on reflection on the jury of that guidelines, as appropriate, with debate.” the facts of each case rather particular community.” each report, to make it as easy When recommendations are than on a general principle. It According to the as possible for legislators to ignored or not prioritised, the is of course more desirable submissions received, the most take on their recommend- commission continues to that we would reform via prominent public concerns ations. monitor the issue. “The legislation.” related to juries, to aspects of In a number of cases, commission would never And empowering family law – including the individual members of the forget recommendations that legislators to make those rights and duties of fathers – Oireachtas have brought these have been made in the past,” reforms is the key task of the and to children and the law. forward as private members’ says Raymond Byrne. “The commission. G

www.lawsociety.ie 17 LAW SOCIETY GAZETTE JAN/FEB 2008 ANALYSIS Justice Media Awards 2007 The Law Society competition is now the sole one that celebrates excellence in journalism in Ireland. Mark McDermott reports on the gala awards last December reland’s top print and weakness in the system that Ibroadcast journalists were out requires urgent addressing. in force at the Justice Media Two Certificate of Merit Awards 2007 on 7 December. were presented, one to Stephen The awards, which have been Rogers of the Irish Examiner running for 16 years, attracted for his article ‘Click here for the biggest ever number of sex’, and the other to Paul entries. The judging panel Cullen of The Irish Times for commented that there had been his article ‘Pros and Cons of a noticeable improvement in the the Personal Injuries overall standard in certain Assessment Board’. categories – specifically the ‘National dailies’ and ‘Regional’ Sunday newspapers categories. ‘Sundays’ – The Justice Media Award went traditionally the strongest to Kieron Wood of the Sunday performer in terms of quality – Guest speaker at the JMAs was High Court judge Mr Justice Business Post for his article had disimproved compared with Garrett Sheehan ‘Mandatory Sentencing’. This previous years, though the highly challenging article judges pointed out that the focused on several disquieting winners in this and all other provisions of the Criminal categories continued to excel. Justice Bill that have since been This year’s awards were enacted. presented by President of the A Certificate of Merit was Law Society James MacGuill presented to John Burns of The and director general Ken Sunday Times for his article Murphy. The guest speaker was ‘Mistrial by Internet’. High Court judge, Mr Justice Garrett Sheehan. Regional newspapers The president congratulated The Justice Media Award went all those who had entered for the to Maria Rolston of Cork’s awards. Not everyone could be a Dearbhail McDonald of the Irish Independent won a Justice Media Award Evening Echo for her series winner on the night but, given for her series on ‘Jury Reform’ and receives her award from president ‘Reform of the Family Law the high standards set by the James MacGuill and director general Ken Murphy System’. Through her excellent judging panel, the prestige of series, she showed that regional winning an award would ensure newspapers can deal with the that journalists would be big legal issues facing the encouraged to enter again and general public today. again. A Certificate of Merit was The winners in each category presented to Paul Deering of were presented with specially The Sligo Champion for his commissioned Justice Media thought-provoking article: ‘Sex Awards from Dublin Crystal and Offenders and the Law’. a cheque for €750. Runners-up received Certificates of Merit Court reporting – print media and cheques to the value of The Justice Media Award went €250 each. to Isabel Hayes of the Sunday Tribune for her article ‘The WINNERS Children’s Court’. Isabel Chairman of the Law Society’s PR Committee, Patrick Dorgan, Daily newspapers addressed the assembled journalists and special guests focused on the human tragedy The Justice Media Award in of child offenders, the effect on this category went to Dearbhail ‘Jury Reform’ – specifically in seldom represent a fair cross- their lives and the lives of their McDonald of the Irish relation to how juries are section of the community as a families, and concludes that Independent for her series on chosen. Her finding that juries whole points to an obvious there is a real problem of

18 www.lawsociety.ie ANALYSIS LAW SOCIETY GAZETTE JAN/FEB 2008 set stellar standards ALL PICS: LENSMEN

Winners of the Justice Media Awards 2007 in the Council Chamber at Blackhall Place

children being criminalised community with little sign that unnecessarily without any punishment was being fairly attempt to address their matched to the crime behaviour. committed. The judging panel said of the Court reporting – broadcast programme: “It is an important media contribution to a very serious The Justice Media Award went legal issue. It shows that a to Barry Cummins of RTÉ major gulf exists between what News, for his powerful series of judges and the citizens of television reports, ‘On the Ireland regard to be the fair Balance of Probabilities’. An administration of justice in Irish inquest into the death of a Director general Ken Murphy was the recipient of a special ‘multimedia’ courts.” award, crafted in Cork silver, celebrating his close ‘collaboration’ with newborn baby girl found the media down the years A Certificate of Merit was stabbed to death in Dun presented to Mary Raftery and Laoghaire in April 1973 was Charlie Bird (correspondent), of RTÉ’s current affairs Sheila Ahern (RTÉ News and finally held in February 2007. and Samantha Libreri programme, Prime Time. In the Current Affairs) for the Prime Barry followed the case from (researcher) for their road run-up to the announcement of Time programme ‘Making start to finish, revealing a safety campaign series. This the general election, Prime Time Them Pay’. clarity of approach to his series caused many people to transmitted a number of special subject and a commendable lack question their driving habits, programmes on the issues that No overall winner of bias that added hugely to the shone a spotlight on the new were uppermost in the minds of Notwithstanding the appeal of this series of reports. legislation, and set as its goal the electorate, one of which was commendable standard of the saving of lives. crime. The programme asked winning entries in each Television news whether judges were out of category, no single entry In this category, a Justice Media Television features and touch with Irish citizens, to the stood apart from the rest – Award was presented to documentaries extent that they might be so no overall award was Dympna Moroney (producer), The winner was Paul Loughlin returning criminals to the presented. G

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Religious objections to Recent cases have highlighted the contentious issue of the right to refuse life-saving blood transfusions on religious grounds, writes Niamh Hayes n Christmas Eve 2007, Mr B should be authorised to the Irish Constitution required hospital had committed assault OJustice George Birmingham perform a blood transfusion if that precedence be given to and trespass upon her person. made an interim order directing the child’s condition deteriorated the welfare of Ms K’s newborn The Attorney General was the National Maternity Hospital further and a transfusion became child, as to refuse the joined as a defendant to the to provide all necessary care to a absolutely necessary. He stated transfusion would effectively proceedings and a decision by premature infant known as Baby that it would amount to deny the child the right to its Ms Justice Mary Laffoy is B, including a blood transfusion, “brinkmanship” and an mother. expected in the coming weeks. should his life be in danger. “abdication of responsibility” not The Coombe Hospital Baby B had been born ten weeks to extend the order, as the subsequently began what may Legal implications prematurely on 20 December hospital could otherwise be well be a landmark legal action While there is precedent in and was transferred to the forced to delay life-saving against Ms K’s refusal of the Irish law for a court order to neonatal intensive care unit of treatment pending a further transfusion, arguing that it had overrule the religious beliefs the hospital due to internal court application. The case was a duty to protect and safeguard and wishes of parents bleeding. He was initially treated adjourned for mention to 7 the woman’s right to life, the concerning medical treatment with blood products not March. family rights of the mother and in the best interests of the child, containing red blood cells, but child and the right of her child Ms K’s case is far more his parents, both devout The Coke side of life to be nurtured and reared by its controversial. It raises issues of Jehovah’s Witnesses, objected to Some months previously, on 20 mother. Further, lawyers for the the right to privacy, bodily any potential blood transfusion September, Mr Justice Henry Coombe argued that it would integrity, freedom of conscience on religious grounds. Abbott ruled that doctors at be contrary to public order and and freedom of religion in The initial court order was the Coombe Maternity morality to permit Ms K to put relation to an adult, whose extended on 28 December, Hospital should be permitted her life in danger by refusing autonomy of decision making despite the objections of the to carry out a life-saving blood routine medical treatment and when of sound mind one could child’s parents, following transfusion on a Congolese that her undoubted constit- reasonably expect to be medical advice on the woman, known only as Ms K, utional rights to freedom of respected. Baby B’s case is less deterioration of Baby B’s who had lost 80% of her blood conscience and freedom of ideologically fraught, as it has condition and the likely through haemorrhage while religious practice did not extend previously been established that necessity of a blood transfusion giving birth to a baby boy. Ms to the refusal of life-saving the courts can and will over the following days. If Baby K was conscious and cognisant, medical treatment. intervene in exceptional B, weighing less than 1kg, were objected to the procedure on Ms K submitted a counter- circumstances, even overruling to lose as little as two the grounds of her religious claim in which she alleged that the wishes of a child’s parents, if teaspoonfuls of blood, his life beliefs as a Jehovah’s Witness, the decision to administer the to do so is in the best interests would be under imminent and had asked medical staff for transfusion was in breach of her of the child. threat. Mr Justice Birmingham an alternative remedy of Coca rights under the Irish In Northwestern Health Board acknowledged that the child’s Cola and tomatoes. Mr Justice Constitution and the European v W ([2001] 3 IR 622) (the parents were acting out of a Abbott, in an Irish legal first, Convention on Human Rights, Baby Paul case, involving “deeply held conviction”, but overruled the stated wishes of that she was entitled to refuse parental objections to the held that doctors caring for Baby the adult Ms K, stating that such treatment and that the PKU test), a majority of the ONE TO WATCH: NEW LEGISLATION Civil Registration Act 2004 2007); Delivery of Notification of came into force. This part as supplemented by regulation (Commencement) Order 2007 (SI Intention to Marry (Prescribed provides for the establishment of (ss45 to 58 inclusive). no 736 of 2007); Civil Registration Circumstances) Regulations 2007 a Register of Marriages that will (Marriages) (Fees) Regulations (SI no 744 of 2007) record all marriages taking place Notification of marriage 2007 (SI no 737 of 2007); in the state (s13(1)(e)) and sets A marriage will not be valid unless Marriage Registration Form On 5 November 2007, part 6 of out in detail the substantive the parties to the marriage notify Regulations 2007 (SI no 738 of the Civil Registration Act 2004 requirements for a valid marriage the registrar in writing not less than

20 www.lawsociety.ie ANALYSIS LAW SOCIETY GAZETTE JAN/FEB 2008 human rights watch blood transfusions Supreme Court stressed that Walsh J, McGee v Attorney state interference in family General, [1974] IR 284). decisions should be permitted It is particularly interesting only in truly exceptional to note that Mr Justice Abbott circumstances. Chief Justice based his initial emergency Keane’s dissenting judgment court order on references to the argued that the constitutional right of Ms K’s newborn son to protections afforded to the company and care of his children may oblige the state mother. It is questionable how to intervene where necessary significant this line of argument to protect their welfare and to will be in the forthcoming vindicate their personal rights. judgment of Ms Justice Laffoy, Chief Justice Keane’s analysis since the constitutional right of distinguished between the children to the care and inherent jurisdiction of the company of their parents under courts to protect the rights of article 41 was not held to extend the child under articles 40.3, Vampires join the 21st century even to the prevention of the 41, and 42.5 and the parens parents’ deportation in the case patriae (‘father of the people’) medical treatment for the child. failure to do so would almost of Osayande & Lobe v Minister for jurisdiction by which the state In August 2004, Mr Justice certainly result in her death. Justice ([2003] 1 IR 1). assumes wardship, although in Abbott unambiguously extended The Supreme Court has Both cases will undoubtedly previous relevant decisions the the court order, authorising all previously stated that the have a noteworthy legal impact power of wardship has been urgently necessary remedial unenumerated right to privacy on medical practice relating to used as the authoritative basis surgery. In September 2004 – and bodily integrity extends to blood transfusions in cases of for court-authorised medical Baby Janice having made a good the right to refuse medical religious objection. The intervention. recovery – the wardship order treatment even in cases where forthcoming High Court A leading example of this is was discharged and mother and death would result, with or decision in the dispute the case of In re a ward of Court child rejoined the rest of the without a religious motivation between Ms K and the – Baby Janice (High Court, 18 family in Britain. for the decision (In re a Ward of Coombe Hospital has the March 2004; High Court, 5 The order made in the Baby Court (Withholding Medical potential to significantly August 2004), in which the B case did not involve Treatment) (No 2), [1996] 2 IR redraw the boundaries Jehovah’s Witness mother of a temporary wardship 79). The right to freedom of between the competing rights child born with a hole in her jurisdiction, but was made over conscience and religion of bodily integrity, family and heart withdrew her consent to a the objections of the parents in contained in article 44.2.1 has freedom of religion, and will life-saving operation due to the the best interests of the welfare been defined as guaranteeing be anxiously awaited by those necessary use of blood of the child. Ms K’s case, by “the right not to be compelled in the legal, medical and transfusions and blood contrast, involved court- or coerced into living in a way religious spheres. G products. In March 2004, Baby authorised medical intervention which is contrary to one’s Janice was made a ward of court despite the religious objections conscience … so far as the Niamh Hayes is a PhD student in and Mr Justice Finnegan and refusal of consent of a exercise, practice or profession the Irish Centre for Human Rights authorised the appropriate mentally sound adult, as a of religion is concerned” (per at NUIG.

three months prior to the Notification by registered post is of ill-health, as certified by a The parties may seek an marriage. All notifications must be also possible, where a party or the registered medical practitioner. The exemption from the requirement delivered by both parties in parties to an intended marriage notification in such cases should for notification from the either the person and must be accompanied are resident outside the state and be delivered by registered post or, Circuit Family Court or the High by the prescribed fee of €150 it would not be reasonable or where it applies to only one of the Court. Both parties are required and any other documents as practicable for them to comply, or parties, delivered in person by the to make the application, which specified by the registrar. are unable to comply on grounds other party (s46). may be made informally and may

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ANALYSIS LAW SOCIETY GAZETTE JAN/FEB 2008

be heard otherwise than in public. the registrar within one month of Location. The marriage can be the presence of the solemniser, a A court fee shall not be charged the marriage and the registrar will solemnised only at a place and certificate, in the language of the in respect of it. The exemption will then register the marriage as time chosen by the parties to the solemniser, to the effect that they only be granted where the parties soon as is practicable thereafter. marriage with the agreement of have acted faithfully as an can show that there is a serious The marriage cannot be registered the registered solemniser interpreter (s51(6)). reason why it should be justified without the marriage registration concerned. The place where the and that it is in their interests for form. If the registrar is satisfied marriage is taking place must be Objections the exemption to be granted. A that the form has been lost, open to the public (s 51(2)). A person may object to a marriage notification of the exemption must destroyed or damaged, the tArd There is an exception made for a at any time before a marriage is be presented to the registrar Chláraitheoir may direct the situation where one or both of the solemnised. The objection must be (s47). registrar to complete another form parties is too ill to attend at a made in writing to the registrar, The parties to a marriage must and arrange for signature by all place that is open to the public, who will notify the parties of the attend in person at the office of the relevant parties and to as certified by a medical stated objection and make such the registrar not less than five register the details of the certificate, and the inquires as he or she thinks fit. If days before the date of the marriage in the register (s49). superintendent registrar or an tArd the marriage registration form has marriage to make and sign a If, within 56 days of the Chláraitheoir gives approval to the already been given to the parties, declaration in the presence of the marriage, the registrar has not solemniser for the marriage to the registrar may request the registrar to the effect that there is received the marriage registration take place at a location chosen by return of the form and correct it by no impediment to the marriage form, he or she may serve a the parties and agreed by the adding any notifications to it. It will (s46). notice on the parties requiring solemniser (s51, as amended by then be returned to the parties. If them to provide the duly the Health Act 2007, schedule 2, the registrar sees fit, the objection Marriage registration form completed form within 14 days. If part 5). can be sent to the tArd Once notification has been the parties fail to comply, the Declarations. The solemniser Chláraitheoir, who will in turn received, the registrar must registrar may serve another notice must be satisfied that the parties ensure that the parties are notified complete a marriage registration requiring one of the parties to to the marriage understand the of the objection lodged, the form, and this should be given to attend on a specified date at the marriage ceremony and the investigation, and the fact that the one of the parties to the marriage office of the registrar or other declarations. The parties must marriage cannot go ahead until the (s48), who in turn should pass it convenient place to provide the declare in the presence of each investigation is completed. If no to the solemniser for examination. form (s50). other, the registered solemniser impediment is found, then the The form is set out in SI 738 of and the two witnesses, that he or parties will be notified and will be 2007 (Marriage Registration Form Ceremony she does not know of any lawful reissued with their marriage Regulations 2007). Provision is The following requirements are impediment to the marriage and registration form. If there is an made for a situation where six provided for in the act. that they accept one another as impediment found, the parties will months have passed since the Solemniser. The marriage must husband and wife. Once the be notified that the marriage shall form was given to the parties but be conducted by a registered declarations have been accepted, not proceed, including the reason the marriage has not yet been solemniser in a form of ceremony the parties are then considered to for the decision. If the marriage solemnised. In such cases, the that is approved by the tArd be married (s51(4)). has already been solemnised, it parties are required to begin the Chláraitheoir. The tArd Language. If one of the parties shall not be registered. An appeal process of notification again and Chláraitheoir will maintain a to the marriage does not have is available to the Circuit Family the registrar will furnish them with register of all persons empowered knowledge of the language of the Court (s58). another marriage registration to solemnise marriages that is ceremony, a translator must be form. open to inspection by the public provided. The interpreter must More information on the new Immediately after the marriage, at all reasonable times (s51(1)). sign a declaration in the presence provisions is available at the marriage registration form Parties. Both parties to the of the solemniser that they www.citizensinformation.ie. G shall be signed by each of the marriage must be present. There understand and are able to parties to the marriage, two must also be two witnesses, converse in that language. Elaine Dewhurst is the Law witnesses and the solemniser. professing to be over the age of Immediately after the ceremony, Society’s parliamentary and law The form should be returned to 18 (s51(2)). they must also give and sign, in reform executive.

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www.lawsociety.ie 23 LAW SOCIETY GAZETTE JAN/FEB 2008 COVER STORY

What is the basis of the High Court’s jurisdiction to measure costs, and when is measurement of costs more appropriate than taxation? Hugh Kennedy and Brid O’Flaherty break out their measuring tools

he High Court on occasion exercises its the High Court enjoys a wide discretion in the jurisdiction to ‘measure’, on the spot, the awarding of costs of proceedings that come before it, costs of applications determined before it. subject to law. The court’s jurisdiction to measure For example, the costs of an application to costs arises under order 99, rule 5, which reads: “In T restrict a director of a company have awarding costs, the court may direct (a) that a sum in commonly been measured, the usual order for costs gross be paid in lieu of taxed costs…” being that the restricted director “do pay the sum of Thus, it is clear that the High Court has €X as a contribution toward the costs of the applicant jurisdiction to measure the costs of any proceedings in liquidator”. In family law proceedings, the court has a summary manner, rather than delegating the on occasion measured the entire costs of an action, in quantification of costs to the taxing master in default the interests of finality. In the Commercial Court, it is of agreement by the parties. not uncommon for costs to be summarily determined and ordered to be payable immediately, particularly in Masters of their fates interlocutory applications. Under order 63, rule 6, the master has jurisdiction to In addition, the Master of the High Court, in award costs at his discretion and “may direct payment Mitsubishi Electric Europe BV v Design Air Ltd, has of a sum in gross in lieu of payment of costs to be engaged in a pilot exercise to measure costs of taxed”. In the Mitsubishi case, the master engaged in a common applications. The master set out in pilot exercise to measure the costs of “a random considerable detail how he believes such regularly sample of applications of the sort which are made on occurring costs should be measured. a daily basis in the master’s court”. The master had Here, we examine the basis of the High Court’s already made rulings on different types of motions in jurisdiction to measure costs, and we explore the 16 separate cases and had made costs awards. He then question of when measurement of costs may be more invited the parties in all the motions to return and appropriate than taxation. make submissions on the quantum of costs of the motions; the parties did so in 13 of the cases. Three All the world’s a stage parties declined to participate: “For the record, it Order 99 of the Rules of the Superior Courts 1986 deals should be noted that three of the larger firms in with the jurisdiction of the High Court on the Dublin … requested the master not to measure costs question of costs generally. Under order 99, rule 1, in their particular cases. For whatever reason, these MEASURE for MEASUMEASU

24 www.lawsociety.ie COVER STORY LAW SOCIETY GAZETTE JAN/FEB 2008

MAIN POINTS • Measuring costs • Measuring jurisdiction • Pointers for practitioners

RERE

www.lawsociety.ie 25 LAW SOCIETY GAZETTE JAN/FEB 2008 COVER STORY

THE PLAY’S THE THING Some pointers for practitioners on measurement: – Standard or common applications that frequently • The court may, of its own motion, decide to come before the court, measure costs rather than direct them to be taxed – Matters where measurement and an order for in default of agreement, immediate payment is requested because • The court that hears the matter should be the one payment by the losing party is in doubt, that measures, and not another court, as it is only – Cases where the court wishes to mark its the court that has actually heard the case and displeasure with a party’s conduct, or where knows about it that is in a position to make a some serious prejudice has been caused to the summary assessment of costs, opposite party for which it is necessary • If the court decides to measure, it need not ape or immediately to compensate him, copy the practices and procedures of the taxing – Cases where ‘issue-based costs orders’ are master, but can act in a summary manner, made by the court, • Under order 99, rule 5, no provision is made for the • On the other hand, taxation may be more parties to be heard before the court measures, but appropriate than measurement in: it is clearly in the interests of justice that parties be – Cases where there is likely to be an overall afforded the opportunity to be heard first, taxation at the conclusion, • It is open to one or both of the parties to ask the – Complex or non-standard matters that are court to measure instead of tax, perhaps interlinked with or referable to other “The whole • Where a party seeks to have its costs measured by proceedings where costs will be taxed, purpose of the court, to aid the court, a statement of the – Hearings that last longer than a day, party’s costs can be presented for the court’s – Matters where one party is legally aided, a minor measurement consideration, with a copy for the other side – to or under a disability, or an emanation of the was to avoid avoid accusations of ambush and to allow the other state, party to respond, it might be prudent to send a copy – Matters where a costs award covers multiple the expense to the other side prior to the hearing, plaintiffs or defendants, and • Parties may dispute items of costs presented to the • Order 99, rule 5, appears to exclude split court by the other side, measured/taxed costs awards by the court, aggravation • Measurement rather than taxation may be more • Measurement is not to be confined to ‘simple’ or involved in appropriate in: ‘small’ cases only. – Short, self-contained and discrete matters that protracted have reached a conclusion before the court, Finally, practitioners should remember that an award litigation – Matters where finality is desirable and the of measured costs has the same status as any aggravation of taxation proceedings would best other order of the court and is enforceable in like arising out of be avoided, manner. a taxation”

solicitors’ firms, presumably on their clients’ Wales equivalent rules, and the Court of Appeal has instructions, opted to go the taxation route.” provided useful guidance. The master warns in Mitsubishi that changes The seminal case is Leary v Leary, a 1987 decision proposed by the Legal Costs Working Group should of the English Court of Appeal in matrimonial be monitored by the courts. The master summarises proceedings. There, when delivering judgment, the the Irish and English jurisprudence available on trial judge, without prior warning to the husband, had measurement of costs. He explains in great detail how made an order under the equivalent of order 99, rule costs should be measured. 5, directing him to pay to the wife a fixed amount of The master then applied these principles to the 13 stg£31,000 costs instead of having the costs taxed. cases before him and measured costs accordingly. The trial judge stated that the order for costs Since Mitsubishi, the master has been applying the reflected the consequences of the husband’s failure to principles set out there to measure and fix the costs of disclose his financial position during the proceedings various types of interlocutory motions, when and that the possibility of further litigation arising out requested to do so. of a taxation should be forestalled for the benefit of the parties. A pound of flesh The Court of Appeal upheld the judge’s summary Although it is not uncommon for the court to measurement, finding that the judge was entitled to exercise its discretion to measure costs, there is very award a fixed sum in lieu of taxed costs if he little case law indeed (the master’s Mitsubishi ruling considered such an award was required to reflect the aside) dealing with when the court should exercise failure of a party to disclose his financial situation. this discretion, and how. The provisions of order 99 The court went on to say that, generally, the power to are in identical terms to the pre-1999 England and measure costs was not confined to “modest and

26 www.lawsociety.ie COVER STORY LAW SOCIETY GAZETTE JAN/FEB 2008

LOOK IT UP Cases: • Leary v Leary [1987] 1 All ER 261 • Lownds v Home Office [2002] 1 WLR 2450 (summary assessment under the CPR regime) • Mitsubishi Electric Europe BV v Design Air Ltd [2007] IEHC 203, unreported, 22 May 2007 • Silva v C Czarnikow Ltd [1960] 1 Lloyd’s Rep 319 (measurement sought and granted to guarantee costs payment) • Veolia Water UK plc v Fingal County Council [2006] IEHC 240, Clarke J, unreported, 22 June 2006 (issue-based costs orders)

Legislation: • Rules of the Superior Courts 1986, orders 99, 63 simple cases”. Nor was the judge required, before Literature: making the award, to conduct an inquiry in the nature • Legal Costs Working Group, Legal Costs Working Group Report, 7 November of a ‘preliminary taxation’ in which there was a 2005, available at: www.justice.ie/en/JELR/legalcosts.pdf/Files/legalcosts.pdf detailed investigation of the figures. The whole purpose of measurement was to avoid the expense and aggravation involved in protracted litigation arising on a relatively rough-and-ready basis. Where out of a taxation. The discretion was, however, hearings of either trials or interim applications are required to be exercised judicially, and the judge was disposed of within a day, all courts are obliged to required to give proper consideration to all relevant make a summary assessment of the costs of that day factors when measuring. Furthermore, it depended on on that day, unless there is good reason not to do so. the circumstances of the case whether the rules of Summarily assessed costs are normally payable within natural justice required the judge to warn of his 14 days of the order. intention to measure and to give the affected party To assist the judge, parties are required to file and the opportunity of making submissions before doing serve – not less than 24 hours before the hearing – so. signed statements of their costs, detailing the number of hours claimed, the hourly rate, the grade Let’s kill all the lawyers of fee earner, the solicitor’s costs for attending the Since the introduction of the new Civil Procedure Rules hearing, counsel’s fees and VAT. At the end of the in 1999 in England, a new regime for the awarding of hearing, the judge asks for the parties’ statements costs generally, and specifically the assessment of and examines the detailed breakdown of costs costs, has been in operation, leading to a large gap actually incurred by the party to whom costs have between the practice of the Irish and English courts. been awarded, before measuring those costs. The The English and Welsh courts now deal with the court is permitted to draw on its general experience quantification of costs either by way of ‘detailed of costs in comparable cases, although judicial tariffs assessment’ by a costs officer (analogous to taxation) for different types of cases are not allowed. G or by ‘summary assessment’ (akin to measurement). Summary assessment involves the court determining Hugh Kennedy and Brid O’Flaherty are barristers in the amount payable at the end of the hearing, usually general practice.

www.lawsociety.ie 27 LAW SOCIETY GAZETTE JAN/FEB 2008 FAMILY LAW TEN YEARS

AFTERTen years after divorce was introduced in Ireland, there are about 60,000 divorced people here. But what type of legal framework and practice should underpin the law in this area? Geoffrey Shannon’s intentions are honourable

n 2007, Ireland marked its first full decade of facing Ireland now is what type of legal framework divorce legislation. Since the introduction of and practice should underpin its law in this area? divorce, the country has witnessed radical What type of divorce do we want? change that has resulted in a more secular and Iless traditional society. Key among these Watershed changes has been considerable economic growth The introduction of divorce marked a watershed in leading to increased personal wealth. Ireland now Irish legal and social history. The scheme of divorce boasts approximately 33,000 millionaires, a statistic entered into continues the old common-law that at the time of the 1986 – and indeed the 1995 – tradition of a lifelong spousal support obligation. referenda would have been unimaginable to most Since 1997, several cases have come before the Irish people. In addition to growing wealth, Ireland Circuit, High and Supreme Courts that have has also been significantly influenced by its provided clarification on some of the ambiguities in membership of the European Union. the divorce legislation. Moreover, the increasing It is within the context of this change that the internationalisation of family law has fundamentally divorce jurisdiction has operated in Ireland since it altered the manner in which divorce advice is came into force in 1997. While marriage has imparted. The result is that the manner in which the remained popular, divorce has also become more divorce remedy is now operating may bear little common. According to the Central Statistics Office, resemblance to the intention of the legislature that divorce is now the fastest-growing ‘marital status’, passed the original statute. MAIN POINTS with the number of divorced people in Ireland At the time of both the 1986 and 1995 divorce • Divorce – increasing from 35,100 in 2002 to 59,500 in 2006. referenda, many people were concerned that divorce watershed in Undoubtedly, the rise in the number of divorced would leave first families in poverty. The basis for modern Irish legal people also reflects an increasing acceptance of this assumption was unclear. Nevertheless, it and social history divorce within Irish society. Reflecting this greater hindered the development of a debate as to how • Determining proper acceptance of divorce, a recent survey carried out on financial and property issues should be dealt with on provision behalf of The Irish Times revealed that, were a divorce. • High degree of referendum on divorce now to take place, 75% of A list of factors, as set out in the Family Law uncertainty people would vote in favour of it, a substantial (Divorce) Act 1996, have to be assessed and weighed increase on the 50.28% in 1995. The question by the courts in determining proper provision.

28 www.lawsociety.ie FAMILY LAW LAW SOCIETY GAZETTE JAN/FEB 2008

Times have changed since the divorce referenda Despite ten years of practice, it remains a fact that It is now time to formulate a set of principles for most issues are considered in light of the unique and the determination of ancillary reliefs, including all specific facts that exist in each individual case. The maintenance orders, property adjustment orders and divorce system allows considerable discretion, which pension adjustment orders. This would provide creates a very high degree of uncertainty for couples greater clarity and certainty in the determination of contemplating divorce. such orders. In particular, clear principles to guide the determination of what comprises “proper Ancillary relief provision” are needed. The Supreme Court, in the leading T v T case, stated that, on divorce, the courts are obliged to Clean break make “proper provision” for both spouses, taking Despite the determination through the granting of a into account all of the circumstances of each divorce that a marriage has ended and that both particular case. This affords judges considerable parties are free to remarry, there has been little or discretion in dealing with the assets of a marriage. no debate on the obligations owed by one former

www.lawsociety.ie 29 LAW SOCIETY GAZETTE JAN/FEB 2008 FAMILY LAW

THE FAMILY LAW SYSTEM During the divorce campaign, much assistance was pledged by the benefit greatly from the promotion and more widespread use of government of the day to ‘protect from attack’ the institution of mediation and other forms of alternative dispute resolution. This marriage by way of increased financial resources for such services would minimise the number of contested cases ending up in the as marriage-guidance counselling, mediation and improved court courts and also reduce the level of ‘brinkmanship’ that sees many facilities. The government-run Family Mediation Service expanded settlements being reached on the steps of the courts. throughout the country, and the newly established Courts Service While the Courts Service is to be commended for its pilot work embarked on a programme of providing improved court facilities. in increasing the reporting on family law cases in front of the High, Progress in providing support services, however, has been slow. Circuit and District Courts, there remain substantial gaps in the In particular, there is a need for greater coordination between the information available to practitioners, researchers and the general courts and the existing support services. In 1985, the Joint public in relation to the operation of divorce in Ireland. For Committee on Marriage Breakdown reported that “one of the most example, it is difficult to encourage informed public debate on the disturbing aspects” of the court structure was the lack of any proper actual implications of divorce without properly collected, collated in-court service. While improvements have taken place since this and analysed data on issues such as maintenance awards, child report was published, further progress is necessary. In Australia, for custody cases, the treatment of the family home, the duration of example, the Australian Family Court has a large counselling service proceedings and the costs involved in pursuing different attached to it. It is now more than ten years since the publication of approaches. In addition, the lack of information on the majority of the Law Reform Commission’s Report on Family Courts and many of divorce cases, that is, those heard in the Circuit Court, and the its recommendations have yet to be implemented. related matters that are decided in the District Court, represents a In addition to more comfortable, convenient and client-friendly considerable gap in our knowledge of the application of Irish court facilities, both the courts and parties to a divorce would divorce law.

spouse to the other. The law on ‘clean-break’ in to support such agreements, the judiciary should divorce should be reviewed and consideration should retain a wide discretion to vary their terms. be given to the practice in England where, at a minimum, ‘deferred clean-break’ divorce is possible Where the heart is by limiting the time and circumstances under which The judiciary increasingly acknowledge the a receiving spouse can return to the courts to seek contribution of women to the family home, the further provision. psychological attachment of children to the family home and its stabilising influence at a time of intense Prenuptial agreements emotional upheaval in children’s lives. Nonetheless, The increasing use of prenuptial agreements is a of note in this area is the wide-ranging discretion of further indication that couples entering into the judiciary in deciding on the treatment of the marriage want, in the event of divorce, to have family home. Clear principles for the treatment of clarity and certainty in relation to their financial the family home are required in order to give greater matters. Prenuptial agreements are merely a type of predictability to vulnerable and dependent family contract. There is no reason why all such contracts members. should be prima facie unenforceable. A better view would be to permit such contracts, Nullity but make them subject to the general rules and In addition to clarifying the grounds for divorce, there regulations governing contract and the substantive is a corresponding need to assess the grounds for principles governing ancillary relief. With the nullity in Ireland. In particular, there is a need to enactment of the divorce legislation, the path is now review the ground that stipulates the “incapacity to clear for giving effect to the enforceability of enter into and sustain a proper or normal marital prenuptial agreements in limited circumstances. No relationship”, thereby rendering the marriage voidable. longer does article 41 of the Constitution obstruct The evolution of the law of nullity in Ireland is the enforceability of such agreements. The time is somewhat unique, owing to the fact that there was therefore ripe for the matter to be addressed in a no system for the legal dissolution of marriage in comprehensive manner by the legislature. The first Ireland until the introduction of divorce. Thus, the step in this process has already been completed nullity ground was used by many as a means of through the publication of the report of the dissolving their marriage in the absence of divorce. Government Study Group. Legislative action on Now that divorce is available in Ireland, the utility foot of this is now awaited. and operation of this ground must be questioned. The law should be reviewed to allow for the development of prenuptial contracts that are valid Invisibility of children and enforceable to the extent that they support and Many would argue that the striking feature of the foster the interests of children and spouses. It should Irish divorce system is the relative invisibility of be noted, however, that even if the legislature steps children. The child’s perspective is underdeveloped

30 www.lawsociety.ie FAMILY LAW LAW SOCIETY GAZETTE JAN/FEB 2008

and often non-existent in the divorce process, where children are caught in the crossfire. LOOK IT UP In many divorces, custody of and access to the Cases: children of the marriage are more zealously • T v T [2002] IESC 68 contested than the financial settlement. Although often fought over for protracted periods of time, it Legislation: remains the case that children are rarely heard in • Bunreacht na hÉireann, article 41 divorce proceedings in Ireland. A number of • Family Law (Divorce) Act 1996 reasons – some valid and others not – have been postulated for this. Accommodating the Literature: perspective of the child in divorce proceedings is • Law Reform Commission, Report on Family not easy. Our family law system is adult-centred Courts (LRC 52-1996, March 1996) rather than child-centred. Moreover, the child’s views and the welfare of the child are not synonymous. We must consider what works best – divorce were the existing legislation and practice the direct voice of the child, the interpretation of reviewed. experts or a combination of both. In conclusion, we must look back over the first ten years of divorce in Ireland and consider the type Striking characteristic of Irish society that (barely) allowed this relatively In considering divorce legislation and its restrictive legislation to become possible in 1995, at interpretation in the courts, Irish divorce the changes that have occurred since, as well as at proceedings can be seen to have one striking impending national and international developments characteristic: the overwhelming discretionary and trends. powers of the courts to determine cases on the basis In this broad context, we must ask ourselves if this of the unique facts of each. This approach can be legislative regime is one befitting our rapidly seen to have both positive and negative aspects. modernising, rapidly secularising, increasingly global On the positive side, those seeking a divorce have society. Public policy, legislation and the practice of an opportunity to put their specific case, with all its the courts should not wish, nor be allowed, to unique circumstances, to the courts for their become irrelevant or even obsolete to those it consideration. On the negative side, this discretion of purports to serve. With that in mind, we must now the courts has resulted in a high degree of engage in mature and informed debate on the issues uncertainty for those seeking a decree of divorce. It that arise as a result of divorce in 21st century also leaves the judiciary with relatively few guidelines Ireland. G and supports when making decisions in what are often very complex and potentially emotive cases. It Geoffrey Shannon is the Law Society’s deputy director of would therefore be to the advantage of the judiciary, education and the author of Divorce: Law and Practice the legal profession and those seeking the remedy of (Thomson Round Hall, 2007).

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www.lawsociety.ie 31 LAW SOCIETY GAZETTE JAN/FEB 2008 EMPLOYMENT LAW DISPUTED territory

The Ryanair judgment limits the Labour Court’s jurisdiction to issue recommendations as to the standard of terms and conditions in non- unionised workplaces. But it leaves many areas open to further interpretation, writes Maura Connolly

he Supreme Court’s judgment in Ryanair purposes. This principle was tested in the period v Labour Court and Irish Municipal Public leading up to Ryanair in a number of high-profile and Civil Trade Union (IMPACT) cases involving employers such as Ashford Castle considered the jurisdiction of the Labour and GE Healthcare, where the Labour Court T Court to investigate disputes in non- directed the employer to deal with the trade union unionised workplaces. The judgment has effectively for a variety of purposes (including individual slowed the developing trend where the Labour grievance procedures and to agree rates of pay, Court applied the Industrial Relations (Miscellaneous policies and procedures, and working conditions), Provisions) Act 2004 to issue recommendations as to but did not direct trade-union recognition. the standard of terms and conditions to be applied in non-unionised workplaces. The 2004 act Fair procedures strengthened the mechanisms set out in the In the Ryanair case, the Supreme Court analysed the Industrial Relations (Amendment) Act 2001, by which Labour Court’s jurisdiction and imposed limits on the Labour Court could issue recommendations in the ambit of that jurisdiction. While the judgment is these types of workplaces and ultimately issue a of significant interest on the facts and in the context binding determination. With approximately 100 of industrial relations disputes, it may also have cases having come before the Labour Court under wider application to other employment rights MAIN POINTS the 2001 act, the legislation has had a very bodies. In the Supreme Court, Geoghegan J • Jurisdiction of the significant impact to date and has been actively used criticised some aspects of the Labour Court’s Labour Court by trade unions to strengthen their role and practice and procedure on grounds of procedural • Definitions of involvement in non-unionised organisations. unfairness. The Labour Court’s practice of relying ‘collective Many employers, particularly multinational on written submissions in determining factual bargaining’ and employers, prefer to deal directly with employees matters was criticised, and the Supreme Court ‘trade dispute’ and consult with them about business decisions as directed that, where factual matters were in dispute, • Impact on they affect the workforce, choosing not to put in oral evidence should be taken from the employees industrial place formal mechanisms for trade-union concerned. Written submissions are commonly relations practice recognition. While employees have the right to join prepared in the context of Rights Commissioner and procedure and form a trade union, the employer is not legally hearings, Equality Tribunal mediation and obliged to recognise that union for negotiation investigation proceedings, and internal grievance

32 www.lawsociety.ie EMPLOYMENT LAW LAW SOCIETY GAZETTE JAN/FEB 2008

Is it a bird? Is it a plane? No, it’s a typically and disciplinary investigations. The logical preceding the Ryanair case, the employees were not understanding Ryanair implication of the Supreme Court decision is that, directly identified in the Labour Court process and representative accusing while the use of written submissions may continue were represented throughout by the trade union. IMPACT of ‘chickening in these employment rights bodies, whenever factual There is no minimum threshold of employees out’ of talks matters are contradicted, then direct evidence will required to be represented by the trade union as a be preferred. precondition to bringing a claim. The Labour There is an established body of case law, Court’s practice of accepting a statement on behalf beginning with Re Haughey, which sets out the of the trade union that it represented unnamed principles of fair procedures and, in particular, the employees in the workplace concerned was a matter right to test the evidence of witnesses through cross- of concern for certain employers. An employer examination. The effect of the Ryanair case may be could be engaged in a lengthy process under the to extend these fair procedure rights to the more 2001 act without being aware of the significance of informal processes of the Labour Court and other the outcome for it in terms of the numbers affected employment rights bodies. This may have the by the decision. This practice was criticised as unfair additional effect of introducing more lawyers into in the Ryanair case. In a recent case, Castle T these forums, which have long been regarded as the Furniture Limited v SIPTU, the Labour Court home of the union and employer representatives. accepted the evidence of the trade union that it In the series of cases under the 2001 act represented nine out of 18 employees (of which one

www.lawsociety.ie 33 LAW SOCIETY GAZETTE JAN/FEB 2008 EMPLOYMENT LAW

was identified by name) and preferred the direct Labour Court had highlighted the use of the word evidence of the trade union as against the written ‘difference’ as supporting the argument that there submission of the employer, who was unable to existed a trade dispute. attend the hearing. The Supreme Court disagreed that the use of the word ‘difference’ was intended to mean something Labour Court jurisdiction different to dispute. It was stated that the inclusion Under section 2(1) of the 2001 act (as amended by of the word ‘difference’ was intended to indicate the the 2004 act), the Labour Court has jurisdiction (at wider meaning of the expression ‘trade dispute’. the request of a trade union) to investigate and make The Supreme Court also held that the Labour binding determinations on disputes referred to it Court, in determining whether there was a trade where a number of key preconditions are met. As a dispute, should have investigated whether there was preliminary matter in Ryanair, the Labour Court internal machinery for resolving the perceived had to decide whether the preconditions were problem and whether that machinery had been complied with. The preliminary issues were: exhausted. • Whether a ‘trade dispute’ existed, • Whether the existing information and Collective bargaining consultation processes in Ryanair amounted to The evidence before the Labour Court was that, in ‘collective bargaining’, and common with many employers, Ryanair had • Whether the internal dispute-resolution established consultative bodies known as Employee mechanisms had failed to resolve the dispute. Representative Committees (ERCs) and held ‘town Hoist ’em, Mr O’Leary hall meetings’. Ryanair claimed that the existence of The Labour Court decision was judicially reviewed these consultative bodies and processes amounted in in the High Court and then appealed to the effect to collective bargaining, such that the Labour Supreme Court. Court had no right to adjudicate on the dispute. It The Supreme Court emphasised that all of the also argued that no bona fide trade dispute existed preconditions should be satisfied before the Labour between the parties, and it submitted that this was Court had jurisdiction to investigate a dispute. With part of a strategy on the part of the union to compel this increased hurdle, it may be that unions seeking trade-union recognition. a role in workplaces will revert to the established The Labour Court accepted that it could not route of Labour Court investigations under the “The effect direct trade-union recognition against an employer. Industrial Relations Act 1969, which does not require It determined that Ryanair’s communication and such a high threshold. may be to consultation processes did not amount to collective In the cases that have been reported by the extend fair bargaining, using a definition developed by the court Labour Court since the Ryanair decision, the in Ashford Castle v SIPTU. Further, the factual formula adopted seems to be that the parties have procedure background was that the pilots had withdrawn from agreed that the preconditions have been met, so that rights to the the ERC process and, as such, at the time of the the Labour Court has jurisdiction. Other cases referral, there was not an ERC in place for the where jurisdiction was not conceded have not more informal pilots. The Supreme Court held that the unilateral proceeded before the court. For employers who processes of withdrawal from machinery put in place by the have in place effective consultation processes – as employer would not of itself entitle the employees to would be the case in many larger multinational the Labour assert that there was no collective bargaining process companies – the Supreme Court definition of Court and in being. collective bargaining (see below) may prove a bar to The Supreme Court disagreed with the Labour the Labour Court’s jurisdiction. other Court’s approach to whether or not machinery employment existed for collective bargaining negotiations. While Trade dispute it cited the definition of ‘collective bargaining’ as While the term ‘trade dispute’ is not defined under rights developed in the Ashford Castle case, the Supreme the 2001 act, the applicable definition is that set out bodies” Court held that the description of collective in section 3 of the Industrial Relations Act 1946, bargaining processes, while appropriate to a where a trade dispute is defined to include any unionised workplace, was not necessarily applicable “dispute or difference between employers and to a non-unionised workplace: “If there is a workers or between workers and workers connected machinery in Ryanair whereby the pilots may have with the employment or non-employment, or the their own independent representatives who sit terms of the employment, or with the conditions of around the table with representatives of Ryanair employment of any person”. with a view to reaching agreement, if possible, that This is a different definition to that contained in would seem to be ‘collective bargaining’.” the Industrial Relations Act 1990. The Supreme The Supreme Court found that the Labour Court agreed that the relevant definition was that Court’s approach was fundamentally unfair. Ryanair contained in the 1946 act, but disagreed with the officers gave evidence at the hearing to the effect Labour Court’s interpretation in Ryanair. The that the ERC mechanism amounted to collective

34 www.lawsociety.ie EMPLOYMENT LAW LAW SOCIETY GAZETTE JAN/FEB 2008

bargaining. The Supreme Court held that if that persons on whose behalf the union was factual situation was going to be disputed, it should purporting to be acting, and have been done by “sworn or at the very least b) In circumstances where unsworn oral evidence unsworn oral evidence before the Labour Court was given to the court by two company from pilots working in the company”. The Supreme representatives, the court was not entitled to Court held that the Labour Court’s reliance only on disbelieve that evidence without hearing evidence written submissions from the union was unfair. from at least one pilot who was an employee of The unilateral withdrawal of the pilots from the Ryanair. ERC mechanism did not, in the view of Geoghegan J, mean that the process had failed. Without The Supreme Court’s decision will lead to a identifying precisely the parties to the dispute (and complete overhaul of the Labour Court’s practice in particular which pilots were involved in the and procedures and is likely to lead to the necessity dispute), the Labour Court did not have before it for the increased application of the rules of evidence evidence on which it could conclude that the and testing of that evidence where factual matters internal procedures had failed to resolve the dispute. are in dispute. While the full impact of the Ryanair decision for Wider impact future cases brought under the 2001 and 2004 acts Geoghegan J summarised his criticisms of the remains to be seen, it has potential to radically fairness of the procedures adopted by the Labour change the procedures implemented by the Labour Court: Court and other industrial relations and a) The Labour Court should not have permitted employment rights bodies in investigating workplace complete non-disclosure of the identity of the disputes. The Supreme Court has identified as an element of fair process that employees ought to be identified, LOOK IT UP and this may affect the number of referrals made to Cases: the Labour Court in the future. • Ashford Castle v SIPTU [2004] ELR 214 Depending on the outcome of the Labour Court’s • Castle T Furniture Limited v SIPTU, CD/07/248, further deliberations in the re-hearing of Ryanair, if Labour Court Recommendation no 19002, 1 the Supreme Court definition of ‘collective October 2007 bargaining’ is accepted, it is likely that an increasing • GE Healthcare and Services Industrial number of employers will resist intervention by the Professional Technical Union, CD/04/678, Labour Court by pointing to existing information Labour Court Recommendation no 18013 and consultation procedures. Some commentators • Public and Civil Trade Union/Irish Airline Pilots have regarded the lack of a definition of ‘collective Association v Ryanair [2005] 16 ELR 99 bargaining’ as a legal void that will require • Re Haughey, Supreme Court [1971] IR 17 legislation to clarify and posited that other forms of • Ryanair v Labour Court and Irish Municipal Public employee representation, such as works councils and and Civil Trade Union (IMPACT), unreported, other types of employee representative councils, will Supreme Court, Geoghegan J, 1 February 2007 present a rival to the traditional trade unions. • Ryanair v Labour Court and Irish Municipal Public The development of Labour Court jurisdiction and Civil Trade Union [2006] 17 ELR 1 and its intervention in workplaces under the 2004 act has caused concern in some sectors. The Legislation: Supreme Court decision places limits on that • Industrial Relations Acts 1946, 1969, 1990 jurisdiction but leaves many areas of the legislation • Industrial Relations (Amendment) Act 2001 open to further interpretation and consideration. G • Industrial Relations (Miscellaneous Provisions) Act 2004 Maura Connolly is a partner and head of the employment law group at Eugene F Collins Solicitors.

WILLS, PROBATE & ESTATES

The Law Society is now selling Wills, Probate & Estates, published by the Law Society of Ireland/Oxford University Press. Contact Julianne Ward: email: [email protected] or phone: 01 672 4942 if you wish to order a copy.

www.lawsociety.ie 35 LAW SOCIETY GAZETTE JAN/FEB 2008 COMPANY LAW

In the third article in our series on how a possible economic downturn may affect solicitors, Barry Lyons says that the right knowledge can lead to new business by providing dramatic examinership solutions to the commercial difficulties faced by smaller client companies

y the very nature of the work we do, whether the company is sufficiently robust in terms of: solicitors understand every aspect of • Assets, their clients’ business affairs, from • Contracts, company incorporation to employment • Turnover, B issues, from financing to company • Trading profits, borrowings. This presents a clear opportunity during • Expertise, or times of economic uncertainty for the solicitor to • Potential to warrant the interest of financiers interact with client companies. (investors, lending institutions, asset purchasers) to While it is often true that little insight can be support it by providing financing or acquiring assets offered to a company that it will not already be aware from it. of, there are times when company directors get blind- ed by the predicament their company is facing. When Other questions that should be asked when assessing this happens, very frequently they fail to realise that the likelihood of the survival of the company include: not only are they ‘catching a falling knife’ by following • Is the company likely to survive in whole or in part their money, but that they are doing nothing to resolve as a going concern, or is the company ‘terminally the company’s underlying problems – thereby risking insolvent’? its ultimate survival. Solicitors do themselves no • What are the assets of the company? favours by ignoring sometimes obvious signals about a • What are the liabilities of the company and how are company’s performance because, ultimately, the these liabilities secured? company will fail and the solicitor will lose a client. • Are the assets of the company easily sold? Frequently, solicitors can play a vital role in the • Is the company trading profitably on a current basis recovery of a company by analysing the issues and (without including the historic debt)? proposing solutions within the structure of the • Are the assets (or turnover) sufficiently large to examinership process. This article sets out, in very justify the costs of examinership? general terms, the conditions required for the • What is the staffing position of the company appointment of an examiner and, most particularly, (number of staff and length of service) and what will whether the company is a candidate for the their reaction be to the likely changes following appointment of an examiner. Real-life situations are examinership? described, where companies were in dire difficulties • What is the regulatory position of the company, but were saved by the process of examinership, including licenses, environmental matters, key involving asset disposals, company sales and customer audits, planning permissions, and so on? refinancing. • What is the level of outside investment required to allow a scheme of arrangement to be put to the The likely lads creditors? In assessing whether a company is a candidate for the appointment of an examiner, two criteria should be In my experience, it is very unusual that circumstances employed. First, does the company’s situation comply would not allow the exploration of the examinership with the provisions of the Companies (Amendment) Act option, particularly where the alternative is the MAIN POINTS 1990, as amended by the Companies (Amendment) (No liquidation of the company, the loss of jobs and the • Exploring the 2) Act 1999, which states that the company must be ruin of the promoters. examinership “likely to be unable to pay its debts” and “the court As can be seen from the case studies below, the option shall not make an order [appointing an examiner] breathing space afforded by examinership • Likely candidates unless it is satisfied that there is a reasonable prospect frequently gives companies the ability to succeed in • Life after of the survival of the company and the whole or any the future and: restructuring part of its undertaking as a going concern”. • Relieves a company of an intolerable debt burden, The second criterion to be taken into account is and/or

36 www.lawsociety.ie COMPANY LAW LAW SOCIETY GAZETTE JAN/FEB 2008 Breathing easy

Should’ve gone • Disposes of non-core assets, and/or Between 2004 and 2006, 93% of companies that to Specsavers • Reorganises the company’s structures, and/or went into examinership survived. In the USA, 22% • Enables refinancing, and of insolvent companies applied under the similar • Agrees a scheme of arrangement with their provisions of Chapter 11, with only 2% of Irish creditors (including the Revenue) under the companies seeking the same protection in the same oversight of the High Court. time period.

www.lawsociety.ie 37 LAW SOCIETY GAZETTE JAN/FEB 2008 COMPANY LAW

that Tallaght Stadium, when completed, would be available to the club as its home ground, • Sufficient investment to provide for a scheme of arrangement to pay the company’s creditors and pay for the examinership costs, • New commercial management, and • The approval of the High Court of the proposed scheme of arrangement.

A group of fans put sufficient funds together to enable the examiner to propose the scheme of arrangement to the creditors of the company. A testament to the loyalty of the unsecured creditors was that they agreed to write off their debt by accepting a dividend of 3.5% of the company’s liability to them. Notwithstanding that the FAI sanctioned the club for going into examinership by docking it ten points, resulting in its demotion to the first division, in 2007 it was promoted again and finished fifth in the Eircom League.

Arrested development Prue and David Rudd and Family Ltd was a company with insufficient cash resources that expanded too rapidly and became insolvent. The company had a strong family brand and customer certifications allowing its products to be sold by multiples such as Superquinn and Tesco. These were valuable assets, which took the company years to build and which would be lost if it went into liquidation. The company also had custom-made Seamus had become premises for food processing, and the lease would rather too obsessed In early 2005, Shamrock Rovers Football Club – determine if the company went into liquidation. All with examining his model village one of the most recognisable of Ireland’s soccer clubs value added by the company in complying with – was beset by woes, including: HACCP (food safety) requirements, fitting cold- • Having no home grounds, rooms and so on, would have reverted to the • Having been successfully sued by a former landlord and, therefore, the company was a manager for €25,000, particularly suitable candidate for examinership. • Having filed inaccurate returns to the FAI, A scheme of arrangement was agreed with the thereby jeopardising its future in the league, and company’s creditors, and it successfully emerged • Having liabilities (including Revenue liabilities) in from examinership following investment by a local excess of €2.5 million. butcher who could help exploit the brand while benefiting from the use of the premises. Drop the dead donkey Despite the immeasurable goodwill towards the club, Keeping up appearances there simply were not the resources required to In 2003, Macmine Castle Enterprises Ltd owned resolve matters. However, there was hope: firstly, and operated a slaughterhouse in Enniscorthy. The that the backbone of the club, a community company turned over €15 million per annum selling surrounding the 31 teams playing at all levels, would processed pig meat in Ireland and Britain. Operating assist with its survival; and secondly, a commitment in an industry with significant price fluctuation and from South Dublin County Council that it would tight margins, without any financial management make Tallaght Stadium available to the club in order systems to monitor its exposure or hedge against to provide it with a home ground to generate variations in currency and commodity prices, the revenue. company became insolvent when the commodity A petition for the appointment of an examiner was and currency prices conspired against it. successful and the company was given 70 days to The company petitioned to have an examiner create a rescue package to resolve its problems, appointed in order to give it a chance of survival. As which comprised: part of the examinership, a British company bought • Confirmation from South Dublin County Council shares in the company and the proceeds were used

38 www.lawsociety.ie COMPANY LAW LAW SOCIETY GAZETTE JAN/FEB 2008

to provide for a scheme of arrangement where a It was apparent that, for the company’s survival, 30% dividend was paid to the unsecured creditors, the cash-flow drain of the Mullingar outlet needed LOOK IT UP together with the costs of the examinership. The to be stopped by jettisoning it. However, the trading Legislation: plant was retooled from a pork abattoir to a halal position of the company deteriorated dramatically • Companies sheep and lamb slaughterhouse. The company is still when it was revealed that unpaid VAT, PAYE and (Amendment) Act trading successfully. PRSI were supporting its trade. Radical measures 1990 were required to avoid the Revenue taking • Companies Robin’s nest enforcement action, which would spell the end of (Amendment) (No Denber Forestry Services Ltd provides forestry the company. 2) Act 1999 management services. Customers include Coillte, The company successfully petitioned for the some national parks, and large development appointment of an examiner, whose objectives were to: companies that need industrial landscaping. It is an • Dispose of the Mullingar restaurant – at first it extremely labour-intensive business in which failure appeared that there was a potential purchaser in a to fully complete contracts or any delay in position to take over the lease, but this came to discharging the contract price by the customer will nothing and the lease was surrendered, and result in cash-flow problems. • Attract investment to provide for a scheme of In 2007, the company undertook a number of arrangement for the creditors of the company. jobs for which payment was not immediately forthcoming for a number of reasons. As is typical in Investment was attracted that would provide for the these situations, the directors spent all their valuable scheme of arrangement and discharge the time firefighting and trying unsuccessfully to patch examinership costs. The High Court approved the up the cash-flow deficit. examiner’s proposals for a scheme of arrangement Because the costs of the contracts had been and, as a result, Boccaccio still serves one of the discharged by the company (wages, consumables, finest rombo con patate al forno in Dublin. “Notwithstanding and so on) they simply ran out of money needed to continue to trade. This was notwithstanding Curb your enthusiasm that the FAI significant ongoing contracts, quality customers and Ardmore Technologies Limited is a sanctioned recognition in the marketplace for expertise. The telecommunications company that provides design, company needed time to rectify its cash-flow installation and maintenance services to local the club for difficulties and successfully petitioned for the government, industrial, state and semi-state sectors. going into appointment of an examiner. The breathing space It has significant maintenance contracts and is also afforded by this allowed the directors to: charged with installing local area networks (LANs) examinership • Complete jobs on which a small amount of work for a number of county councils. The company also by docking it remained, so that invoices could issue, launched a broadband internet service in 2005 and • Put an invoice discounting facility in place so that had 350 customers. ten points ... monies could be released to provide for a scheme In late 2007, the company had unforeseen in 2007 it was of arrangement and the costs of the examinership, technical issues regarding three LAN installations. and The difficulties caused delays with payment, which promoted again • Create robust terms and conditions of stalled the projects, leading to cash-flow problems. and finished engagement, including stage payments for future Arising from its difficulties, the company contracts, so that these problems would not occur successfully petitioned to have an examiner fifth in the again. appointed. Eircom League” Given that the provision of (largely) domestic The creditors agreed to take a dividend on the broadband services is non-core to the activities of amount owed to them because, in a specialist the company, it was agreed to sell this business to industry, they would have the opportunity to recoup another company that provides broadband services their loss from future trade with the company. to adjoining areas and use the proceeds of the sale to provide for the scheme of arrangement with the Are you being served? creditors and also to discharge the costs of the Shop to Shop Ltd operates the small but busy examinership. Boccaccio restaurant in Dublin’s Dame Street. In In such circumstances, it is clear that exploring 2005, it opened another restaurant in Mullingar, the examinership option will ultimately be to the with the plan that the management team would benefit of solicitors and their clients, and should be move from one outlet to another. Between traffic, considered by advisors to distressed companies at an the length of the commute and the antisocial hours early stage of deliberations. G involved, insufficient staff monitoring led to wastage problems. Not only was a significant sum expended Barry Lyons is a partner in Lyons Kenny Solicitors and on the fit-out of the Mullingar premises, but it also has acted for the examiner in most of the examinerships began to haemorrhage money, to the extent that it in the state in the past five years, and also for creditors, was jeopardising the Dame Street restaurant. investors and companies seeking court protection.

www.lawsociety.ie 39 LAW SOCIETY GAZETTE JAN/FEB 2008 PRACTICE MANAGEMENT

In the second of a two-part series, Hilary Haydon demystifies the complexities of valuing, buying and selling a solicitor’s practice

ast issue (December 2007, p32), we looked clients and future business development. at the valuation of a practice, tax The extent to which technology is used may be a considerations and past and future useful indicator of the overall quality of a practice. profitability. In this article, we will In the past, a firm that failed to move from L examine assessing the practice fee income, typewriter to word processor might not be long for continuation of practice, and the nature and timing this world! In today’s market, one should assess the of the payment and consideration, all of which are level of computerisation adopted by the practice, essential in determining the ultimate purchase price including accounting systems, time-management of a practice. records and case-management software. The reports A review of the breakdown of the practice fee emanating from these systems will provide essential income over the previous three years is an essential guides to the stability and future potential of the exercise when assessing the valuation of a practice. client base. Practices that have niche market areas of fee-income Another important factor that has a strong sources – for example, professional negligence bearing on future profitability is the size and state of medical claims or quality bank-referred assignments the wills cabinet. Although the timing and amount – can improve the overall assessment of the quality of future income from this source is uncertain, a of work and practice. Similarly, industry well-referenced wills cabinet, giving details of the specialisation – for example, being an advisor to the date of each will and the age of the testator, can be a pharmacy sector – would indeed add considerable very useful pointer to future income from this area, practice value to the overall goodwill assessment. provided that the basic database is well maintained and up to date. This is particularly so where the Quality street solicitor has carried out a yearly review of the The quality of staff is another essential ingredient in cabinet and uses his or her knowledge of the client a valuable practice. A thorough commitment to to estimate the likely value of the estate in each case. client care should be evident in all staff, not just from front-line fee earners. The price that a willing Smarties purchaser would be prepared to pay for a practice A very important factor in arriving at the ultimate should be significantly influenced upwards or purchase price is the amount of assurance the buyer downwards depending on his or her perception of has that the clients will remain and will continue to the quality and commitment of staff. Clearly, a well- prefer new work. Two factors are important here. educated, computerised workforce that is willing to Firstly, the purchaser should include a ‘pay if they adapt to change and move with the current times stay’ clause to protect him from a sudden would exude quality in terms of ability to succeed haemorrhage of clients. This can be achieved by and would greatly assist in creating confidence with including a clause that values goodwill based on an Sweetening THE POT 40 www.lawsociety.ie PRACTICE MANAGEMENT LAW SOCIETY GAZETTE JAN/FEB 2008

Sweetening the deal – quality staff, average of past fees (say, over the last three years) this transition, with their attendance at some of the sweet technology and an average of future fees from the same clients firm’s public relations activities, for example, golf and ‘sticky’ clients. (say, over two years following purchase). This may outings or seminars. Similarly, a marketing letter Mmm, tasty! result in a higher price being paid for the goodwill – from the retiring vendor to clients on a periodic but then a purchaser should not mind paying for basis can assist to create the illusion of stronger what they get, as long as they get what they are continuity in some circumstances. paying for! Other factors affecting the continuation of the Secondly, it is very desirable from the purchaser’s practice are the overall number of clients and the point of view that the vendor should appear (at least average fee per client. A practice with a small in the public eye) to retain a connection with the number of very large clients is much more MAIN POINTS firm. This is obviously impossible where the vulnerable than a practice with a large number of • Assessing purchaser is buying from the personal small clients. Somewhere between these two practice fee representatives of a deceased practitioner, but in extremes lies the optimum mix. However, it income most other situations, some type of ongoing contact should be borne in mind that there are no hard and • Continuation of should be sought. The stronger and more obvious fast rules in this area, and there are exceptions to practice this contact is, the greater the amount the purchaser every rule. • Nature and timing should be willing to pay. In most acquisitions of a practice, the marketing of payment and The inclusion of the retiring practitioner as a of the transaction is often referred to as a ‘merger’ of consideration ‘consultant’ on the headed notepaper can assist with the two firms. This is to be recommended, as many

www.lawsociety.ie 41 LAW SOCIETY GAZETTE JAN/FEB 2008 PRACTICE MANAGEMENT

clients do not like to be thought of as compromise positions, and these will tend to get having been ‘bought’ by another firm. teased out in the negotiations between both parties. However, it is important in these However, it is vital that professional tax advice is instances to ensure that agreement obtained to ensure that both parties understand the allows for marketing in this manner – tax implications of the eventual decision. without the purchaser taking on any liability for any claims or liabilities that Finger of fudge pertain to the vendor prior to the As stated at the outset, there is no definitive, transaction contract closing. scientific and correct value that can be placed on a practice for sale. Everything depends on the precise Selection box circumstances of each case; the nature, age and style Purchasers and vendors may have very different of the practice; and the particular requirements of viewpoints about the nature and timing of the the vendor and purchaser. payment and consideration. At its simplest, the It is vital that the vendor does the necessary vendor will generally want a once-off capital homework and knows exactly what is being offered payment, whereas the purchaser will want to pay for sale and is clear in his or her mind about the over an extended period. These different viewpoints extent (if any) to which he or she is prepared to be may well be linked to differing taxation implications associated with the practice under its new for the vendor and the purchaser. ownership. Tax implications can have a major effect on the The higher the quality of the client base, the nature and timing of the payments. On the one stronger the future involvement of the vendor – and hand, it may very well suit the vendor to pay capital the longer the period of time over which payment gains tax on a capital receipt, but the purchaser will can be expected, the greater the price that can be get no tax relief on the payment other than interest achieved. relief on money borrowed to fund the payment. On A very much lower price will be attainable where the other hand, it may be preferable from the the quality of the client base is poor, where the purchaser’s point of view to make a stream of future vendor will have no future contact (because of payments to the vendor in respect of the latter’s death, emigration, and so on), and where immediate continuing involvement with the practice. payment is required. This approach has obvious benefits for the Finally, it must be reiterated that it is essential for purchaser, including that: purchasers and vendors to secure adequate • The purchaser does not have to find a large professional advice on all aspects of the proposed capital sum, acquisition or sale of a practice. • The vendor is tied to the practice for an agreed In today’s legal world, it is very much a buyer’s number of years, market, whereby potential vendors are trying to • The purchaser will be making the payments out persuade would-be buyers into the market. of the revenues generated by the practice, and Therefore, vendors need to prepare their practice • The purchaser may be able to get tax relief on the for a potential sale and, as such, many of the points payments, which may be charged as consultancy raised here will greatly assist. Planning and fees in the practice account. preparation provide essential keys to both vendor and purchaser. Think like Keano: “Fail to prepare – To obtain these benefits, the purchaser may have to prepare to fail.” G pay a considerably higher price. Conversely, the vendor should be willing to accept a considerably Hilary Haydon is joint managing partner in Hilary lower price where a once-off capital sum is involved Haydon & Company Chartered Accountants (Dublin and and the vendor can walk away from the situation. Cork). He specialises in providing accounting and business Between these two extremes there are a great many development advice to the legal profession.

LastLast year,year, thethe RedRed CrossCross demobilised demobilised 1,0001,000 child child soldiers.soldiers. RightRight now,now, 3300,00000,000 childchild soldiers soldiers are are in need in need of rescue. of rescue. The ThisRed Christmas,Cross is here the to Redhelp Crossinnocent are victims here to ofhelp war. innocentPlease support victims our of work war. in Please many supportcrisis zones our world- work inwide many – by crisis making zones a donation worldwide today. - by making a donation today. FOR CREDIT CARD AND STANDING ORDER DONATIONS CALL 1850 50 70 70 OR GO ONLINE WWW.REDCROSS.IE

42 www.lawsociety.ie COUNTY FOCUS LAW SOCIETY GAZETTE JAN/FEB 2008

WestINTO THE There’s plenty of change in the legal profession in Galway – some of it reflecting the changes in the country as a whole and some of it led by a cabal of ‘young guns’ who think some things could be done better. Colin Murphy rides into the West

farmer came to Galway solicitor James It may be an untypical payment, but Seymour is Seymour last year looking for him to an untypical county bar association president. He is MAIN POINTS sort out a problem involving in his early 30s, is a sole practitioner, and works • Barter payment trespassing heifers. Seymour helped from home in a suburb of Galway. He does house • The Field A resolve the situation and, just before calls and has office hours from 6pm to 11pm on a • Free CPD Christmas, called out to the farm to receive his fee. Sunday evening to facilitate clients who can’t make • Community He left with a box of 30 steaks. it during the week. He keeps his charges low, he service “I think I got paid one of the heifers,” he says, says, and charges a flat rate for conveyancing. “Sometimes you do have to barter.” If some of the ways the profession is responding

www.lawsociety.ie 43 LAW SOCIETY GAZETTE JAN/FEB 2008 COUNTY FOCUS

to increasing competition are through consolidation driven them to take up the mantle of the bar and franchise conveyancing, Seymour is a reminder association together. that there may be another approach: keeping costs Kayanne Horgan, the public relations officer, says low and providing the flexibility demanded in today’s there was a “generational change” a couple of years market. ago. For many years, the association had done little “Like any other business, you’re selling your more than organise an annual ball. In recent years, product to the customer, and you have to cater to even that had lapsed. Last year, they reinaugurated their needs,” he says. the ball and established an annual event at the He didn’t plan it that way: he spent two years Galway Races. (This year’s race event is on 28 July, looking for a job in Galway before deciding to go and the ball is on 29 November – you’ve been given out on his own. It seems to be working, though the plenty of warning!) Law Society isn’t making things any easier for sole “There’s a big drive to get people to know each practitioners, he says. other,” says Seymour. As across the country, the “There’s a perception among sole practitioners profession has seen huge growth in numbers in that their days are numbered, that they’re being recent years. There are now 340 solicitors in 134 pushed into a corner. With the level of regulation firms in Galway city and county (about half are increasing and the specialisation that the Law members of the bar association). Society wants, there’s a perception that the Law “I think I “The big problem we have here is that you could Society doesn’t want to see sole practitioners got paid be a well-established solicitor in Galway and you’d continuing.” walk into the courthouse and you wouldn’t know one of the 10% of the people.” The Field heifers. The committee aims to have 250 of the county’s Over a Friday evening pint in the local legal haunt, solicitors on their books by the end of the year. “We O’Connell’s on Eyre Square (“Many a case has been Sometimes want to make it a proper organisation, to provide a settled here,” he says, “all the insurance companies you have forum for them.” are on the Square”), Seymour describes the peculiar intimacy of a practice that regularly takes him out to to barter” Free CPD! Connemara to visit clients, and even, on occasion, Social activities are one part of that, but there is a on the boat to Inis Mór. more practical incentive also. Starting in February Two brothers came to him for help in selling a and running throughout the year, the association is site. They were Gaelgóirí, bachelors in their 70s, offering a complete course of continuing and lived together in a cottage in Connemara. But professional development (CPD) seminars to its when an older family member left some land to members – for free. them, one received an acre more than the other (not Membership costs €50 and Seymour says the that any of the land was worth much then), and they association can pay for ten hours of seminars spread fell out. They haven’t spoken to each other since. throughout the year from members’ subscriptions. They discussed the sale of their site with Seymour Hotels are willing to give them conference facilities without speaking to each other. at very reasonable rates, and many of the lecturers When they had the basis for an agreement, one are willing to provide their time for free, or for a brother said to Seymour, “I’ll sign. You’d better get Apocalypse cow! nominal fee, on the basis that it’s ultimately good for the other fellow to sign too.” their business also. “John B Keane’s The Field – there’s a lot of that On 8 February, Emer Meeneghan BL is out there,” he says. “The land is a strong force in presenting a seminar, ‘Update on personal injuries people. Families can become very bitter over land and the PIAB’, and, on 27 February, John Costello and wills.” of Eugene F Collins is lecturing on ‘Legal issues He contrasts the nature of working with people in affecting elderly and vulnerable clients’. Later Galway to his previous experience in a Dublin seminars are to be confirmed. commercial firm. “In Dublin, it’s more professional The idea of providing CPD for free didn’t come and clinical. People come in, they want a job done. from the young Turks of the committee, however: it Here, with elderly clients, they may not tell you was suggested at the AGM in December by a senior what it is they want to talk to you about. You have member, Billy Glynn. The committee was to draw it out of them.” immediately persuaded. Despite his relatively young age, Seymour is not The seminars are to be held at 4pm on Fridays, atypical on the Galway Bar Association committee. thus combining the pragmatic incentive of CPD The average age of committee members is between hours with the social one of food and drink with 30 and 35, he says. A number of them studied colleagues afterwards. together at Blackhall, some were even at NUI “It’s a stressful profession,” says David Higgins, Galway together before that, and over half initially the association’s secretary, “and it helps if you worked in Dublin before moving back to Galway. have a rapport outside of work with the people There’s a strong bond there, and it seems to have you’re dealing with.”

44 www.lawsociety.ie COUNTY FOCUS LAW SOCIETY GAZETTE JAN/FEB 2008 PIC: COLIN MURPHY

Galway’s haul: James Seymour (GBA president), Kayanne Horgan (PRO), He points out that social events are particularly Tom’s son, Cairbre, is treasurer of the bar Tom O’Donnell (John C valuable to those solicitors who don’t deal in association. O’Donnell), David Higgins litigation: “Litigators meet people in court. If you’re O’Donnell tells a story of a client who came to (treasurer) doing conveyancing, you don’t meet your him with a financial problem. There not being many colleagues.” banks in the West in those days, this man had chosen to hide his money in some rocks in an old ‘Browning’ points fort. But when he went to withdraw it, the rats had All three agree that the profession has got more got there first. There wasn’t much legal recourse for challenging in recent times. that. James Seymour summarises the challenges: He recalls that, when he started in the 1960s, “People are more demanding: they want lower fees, memorials had to be written out in longhand in they’re not afraid to question you, and there’s a Indian ink on special parchment paper, and briefs higher level of regulation.” were prepared on special brief paper, which was David Higgins says: “A client will walk in the much larger than normal paper, and required a door and say: ‘I want to see my solicitor right now.’ special typewriter. But they’ll ring ahead to see their dentist or There were 25 to 30 solicitors in Galway then. It doctor.” took three to six moths to get a land registry folio or Kayanne Horgan, who works in a five-solicitor map. When the court sat in Galway, about one-third firm (large, by the county’s standards) in the village of proceedings were in Irish. In Connemara, 90% of of Headford, has had similar experiences, but puts a court business was in Irish. The gardaí gave all their different spin on it. evidence in Irish, as they were paid extra to do so. “You have people coming in off the street with a When he joins us, O’Donnell greets David query – it could be a consumer rights question. Higgins as Gaeilge, and he says he does still talk to They might have bought a toaster and it broke – and some colleagues and clients in Irish, but its use has you talk to them about it and maybe write them a diminished greatly. letter, and you wouldn’t charge for it. That’s the “You’re more likely to hear Polish or Latvian than way it should be. It’s good for you in the Irish in court now,” says Kayanne Horgan. community.” There’s plenty of change in the legal profession in Tom O’Donnell remembers the days when Galway – some of it reflecting the changes in the “people put on their good suit to come in and see a country as a whole and some of it being led by a solicitor”. O’Donnell qualified 40 years ago and is cabal of young guns who think some things could be the second in three generations of lawyers. His done better. But there’s plenty of tradition there yet, father, John C O’Donnell, set up the firm, and and they seem to value that too. G

www.lawsociety.ie 45 LAW SOCIETY GAZETTE JAN/FEB 2007 PEOPLE AND PLACES I:LNMNPIC: LENSMEN PIC: LENSMEN

Past presidents and Council members of the Law Society gathered on 17 January to celebrate the Outgoing President’s Dinner, held in honour of Philip Joyce. (Front, l to r): Frank O’Donnell, Judge Gerard Griffin, President James MacGuill, Philip Joyce, Moya Quinlan, Bruce St John Blake and Anthony Collins. (Back, l to r): Elma Lynch, Andy Smyth, Geraldine Clarke, Michael Irvine, Laurence K Shields, Patrick O’Connor, Owen Binchy and Michael V O’Mahony

Attending a special dinner held at Blackhall Place in honour of Paul Callan SC were (back, l to r): Law Society Director General Ken Murphy, Donal Branigan, Turlough O’Donnell SC, senior vice-president John D Shaw, Donal P O’Hagan and Eamon Coffey BL. (Front, l to r): past president Moya Quinlan, Mr Justice Matthew Deery, Paul Callan SC, Law Society President James MacGuill, Mr Justice Donal Barrington and deputy director general Mary Keane

Celebrating the launch of The Superior Courts of Law: Official Law Reporting in Ireland, 1866- 2006, by Dr Eamonn Hall, solicitor, were (back, l to r): Brian Murray SC (chairman of the Law Reporting Council of Ireland) and Ken Murphy (director general of the Law Society and ex-officio The former chief clerk of Cork Circuit Court, member of the council). (Front, l to r): Michael McDowell SC (former chairman of the council), Sam Gill, presents past president of the Law Chief Justice John Murray (ex-officio member of the council) who spoke at the launch, Dr Eamonn Society Philip Joyce, with a copy of his CD, Hall (author and former chairman of the council) and Maurice Collins SC (vice-chairman) Circuit Court Draft Order Precedents

46 www.lawsociety.ie PEOPLE AND PLACES LAW SOCIETY GAZETTE JAN/FEB 2007

Southside solicitors convene at the yacht club olicitors from Dun celebrating 100 years of legal PICS: ROGER KENNY PHOTOGRAPHY SLaoghaire, Blackrock, practice serving the community Dalkey, Monkstown and of Dun Laoghaire and its Stillorgan gathered for the environs. At least three annual Southside Solicitors’ generations of the family were black-tie dinner in the Royal St present, including a very George Yacht Club recently, sprightly Mr Montgomery writes Kevin O’Higgins. senior, all of 97 years. Special Pioneered masterfully by host- guests included Judges for-life Justin McKenna, this Gilligan, Quirke and Lavin, marked the 23rd year of the local Judge Claire Leonard, event, at which the guest President of the Law Society speaker was one of our own, James MacGuill, director Judge Michael Peart, who was general Ken Murphy, President very well received. of the Human Rights It was a special night for the Commission Maurice Thomas Montgomery & Co is celebrating 100 years of serving the local firm of Thomas Manning and DBSA President community of Dun Laoghaire and its environs. Three generations of the Montgomery & Co, which was Michael Quinlan. family are represented here, including Mr Montgomery senior (97 years)

Solicitors and trainee solicitors from Partners at Law, The Blackrock contingent were well represented at the Dun Laoghaire Southside Solicitors’ function

‘TRIBES’ PHOTOS: DEIRDRE LANGAN BALL

he Galway Bar Association T(GBA) held its annual ball on 1 December 2007 in the Meyrick Hotel, Eyre Square, Galway. In all, 170 members Guests at the GBA ball included The new committee of the Galway Bar Association attended. The night began (l to r): Judge Raymond Groarke, county (back, l to r): Cairbre O’Donnell, Louis Burke, James with a cocktail reception, registrar Marian Higgins-Chambers, Seymour and Rob Meehan. (Front, l to r): Kayanne kindly sponsored by Irish Judge Geoffrey Browne, Judge Mary Fahy Horgan, Elizabeth Cazabon, Ailbhe Burke and and Judge Gerard Keyes Yvonne Francis Distillers. Following the meal, everyone strutted their stuff on the dance floor to the lively to what has been a very and her committee. The to its generous sponsors, sounds of The Conquerors. productive year for outgoing committee would like to Ulster Bank and Irish The ball was a fitting end GBA president Ailbhe Burke convey its sincere appreciation Distillers.

www.lawsociety.ie 47 New VAT on Property Regime

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Birds of a feather flock together at Mount Falcon ball! he annual ball of the Mayo The association, now in its The guest of honour was were made, save a few words of TSolicitors’ Bar Association 102nd year, had a full house of President of the High Court Mr welcome from the president of took place in the magnificent legal diners, dancers and guests Justice Richard Johnson, the association, Pat O’Connor of surroundings of the recently present, which is now regarded accompanied by his wife Nuala. Swinford. An enjoyable and refurbished Mount Falcon as one of the main annual social President of the Law Society memorable night, even if a little Country House Hotel, Ballina, events for the legal profession in James MacGuill was also present. past the usual bedtime for some, on 8 December. the West of Ireland. By tradition, no speeches was the unanimous verdict.

(Back, l to r): John Guerin (chairman, Belfast Solicitors’ Association), (Back, l to r): Michael Quinlan (president, DSBA), Mr Justice Richard Donal T Eakin (president, Law Society of Northern Ireland), Judge Johnson (president of the High Court), Pat O’Connor (president, MSBA), Geoffrey Browne, James MacGuill (president, Law Society of Ireland), Paul O’Connor (dean, Faculty of Law, UCD), Dermot Hewson Mrs Gillian O’Connor, and Michael Quinlan (president, DSBA). (Front, l to (vice-president, MSBA) and John O’Connor (past president, DSBA). r): Mr Justice Richard Johnson, Judge Mary C Devins, Pat O’Connor (Front, l to r): Nollaig Browne, Paddy O’Connor, Nuala Johnson and (president, Mayo Solicitors’ Bar Association) and Mrs Pat Eakin Gillian O’Connor

(Back, l to r): Marc Loftus, Caroline Barry, Tony O’Connor SC, Samantha Geraghty, Edel McCool, Judge Bernard Brennan and John O’Connor. President of the MSBA Pat O’Connor with his brothers John O’Connor (Front, l to r): Patsy Murphy, Minister of State Dr Jimmy Devins, Pat (Law Society Council member) and Tony O’Connor SC O’Connor (president, MSBA), and Judge John Garavan PIC: MAXWELLS

Get swinging for Friends in Ireland Kildare’s business community and glamorous personalities turned out in force recently at the Newbridge Silver Restaurant to launch the Curragh At the launch of two new law degrees at NUI Maynooth were (l to r): Golf Classic, which takes place next May, in support of Friends in Ireland. Dr Robert Galavan (NUI Maynooth), Attorney General Paul Gallagher SC, The charity has built and established orphan-housing/feeding centres as Professor John Hughes (president, NUI Maynooth) and Dr Neil Maddox well as day and health-care centres in South Africa. (L to r): Jacinta (NUI Maynooth) O’Brien, Marian Finucane and Geraldine Molloy of the Law Society

www.lawsociety.ie 49 CALCUTTA RUN 2008 JOIN IN OUR 10 YEAR ANNIVERSARY Saturday 17th May Fun run/walk at Blackhall Place Be one of the 1,500 solicitors, staff and friends to help reach our 10 year target of €2 million for Goal’s Orphanages in Calcutta and the Peter McVerry Trust’s projects for homeless boys in Dublin. IT’S NEVER TOO EARLY Here is the first four weeks’ brisk walk/jog programme to enjoying the Calcutta Run (target 80 min) WEEK 1, 11 FEBRUARY 1. Walk 30 min 2. Walk 30 min, jog 3-5 min 3. Walk 30 min, jog 3-5 min WEEK 2, 18 FEBRUARY 1. Walk 20 min, jog 5-7 min, walk 10 min 2. Walk 20 min, jog 5-7 min, walk 15 min 3. Walk 25 min, jog 7 min, walk 10 min WEEK 3, 25 FEBRUARY 1. Jog 5 min, walk 25 min, jog 5 min 2. Jog 5 min, walk 25 min, jog 7 min 3. Walk 20 min, jog 7-10 min, walk 10 min WEEK 4, 3 MARCH 1. Walk 30 min, jog 7-10 min 2. Jog 7-10 min, walk 30 min, jog 5-7 min 3. Jog 7-10 min, walk 30 min, jog 5-7 min Always make sure you are warmed up before you jog!

OUR TARGET IS €2 MILLION. YOUR TARGET IS €150. GET INVOLVED, GET HEALTHY, GET YOUR FAMILY AND FRIENDS INVOLVED. For a sponsorship card, see our website www.calcuttarun.com or phone 01 672 4846 OBITUARY LAW SOCIETY GAZETTE JAN/FEB 2007

Eugene Carey 1955-2007

he death of Eugene Carey sportsman and played hurling Ton 5 December 2007 has and rugby, with some success in deprived the Irish legal his younger days. community of one of its best- He was a man of boundless known and most colourful energy, charm and characters. A native of Mallow, determination. He was a Co Cork, and a past pupil of St wonderful raconteur and Colman’s College, Fermoy, he storyteller, and many of his was apprenticed to the firm of colleagues will remember with David J O’Meara & Sons, fondness his fund of Mallow, and qualified as a exaggerated legal tales. solicitor in 1977. On qualifying, He will be deeply missed by he worked with Wolfe Collins the many clients he loyally & O’Keeffe, Solicitors, in served over many years and by Skibbereen and Bantry. He his loyal staff. returned to his native Mallow Eugene was diagnosed with in 1982, where he joined the cancer in January 2007. He did firm of Richard Moylan & not let this interfere with his Company. He set up his own practice in 1995 and specialised in work or enjoyment of life. He continued to work in his practice litigation, especially road traffic cases. His drive and ingenuity until his passing on 5 December 2007. He bore his illness frequently won him ‘hopeless’ road traffic cases in the District bravely and with great humour. Court. He loved the cut and thrust of District Court practice Eugene will be sadly missed by his wife Betty, and by his and such practice encompassed most of the 26 counties. children, Emer, Brian and Myles, his mother Maureen, his He had a deep love of sport, in particular golf, the GAA and siblings Maura and Milo, and by his legion of friends. G his beloved Manchester City. He held the position of runaí of Mallow GAA Club at the time of his death. He was a keen NC

www.lawsociety.ie 51 Legal Aid Board Training in Collaborative Law/Practice

The Legal Aid Board is delighted to announce that Pauline Tesler is once again coming to Ireland to carry out training in Collaborative Practice for lawyers engaged in family law. Already there are about 250 lawyers in Ireland who have received this training and who are resolving cases collaboratively. Pauline will give a two day basic training course aimed at those who have not received training in the process before. Details of the course are as follows: TWO DAY BASIC TRAINING COURSE: Dates: 28 and 29 April 2008 Venue: Radisson SAS Royal Hotel, Golden Lane, Dublin 8 Time: 9.15am to 5.15pm Course fee: €300 The fee for the course is significantly discounted from the actual cost and will include lunch and light refreshments. The discount is part of the Legal Aid Board’s commitment to the collaborative process as a means of resolving family disputes. An application form is available on the Board’s website (www.legalaidboard.ie) or by contacting Killian McCarthy at 01 6441905 or kjmccarthy@ legalaidboard.ie. Completed applications should be forwarded to Killian at Training Unit, Legal Aid Board, 47 Upper Mount Street, Dublin 2, DX 139, with a cheque payable to “Legal Aid Board”. Numbers are likely to be limited and places on the course will be allocated on a first come, first served basis. For those of you wondering what Collaborative Practice is about - it is a dispute resolution model that involves a commitment on the part of clients and solicitors to: (i) negotiate a settlement that is fair, (ii) round table meetings involving both the solicitors and the clients, and (iii) a commitment on the part of the solicitors that they will not go to Court on behalf of their clients (other than to rubber stamp a settlement). An information leaflet on the process is available on the Board’s website.

RECRUITMENT

PENSIONS – DUBLIN FULL-TIME/PART-TIME PSL – DUBLIN LITIGATOR – DUBLIN The successful candidate will be advising on a broad Our client is one of Ireland's leading law firms and they The successful candidate will join a leading UK Law range of public sector and international and domestic currently have openings for Professional Support Firm in its recently opened Dublin office. The successful companies on pension schemes and employee share Lawyer. The role will ideally suit a qualified solicitor candidate will need to be able to work under minimal plans. Applicants should have preferably gained experi- with experience in banking/corporate/commercial con- supervision in a small team. H/she will be working for ence in a large or medium size practice. €70-80K veyancing who is interested in moving into a challenging numerous major insurance companies. €65K+ legal position with a better work/life balance. €Neg BANKING – DUBLIN IN-HOUSE – TELECOMS – DUBLIN Leading commercial law firms and financial institutions CORPORATE – DUBLIN Leading international telecoms company urgently are currently looking for banking solicitors of various Top 10 law firm requires a corporate lawyer. This job requires a commercial lawyer to join its in-house legal experiences and skills. Previous experience working in- has a varied workload of M&A, VC, securities and pri- team based in its Dublin HQ. Providing legal advise house in a bank or in a reputable private practice need- vate equity. Good skills in drafting and negotiating com- across all commercial divisions of the company ed. €Neg mercial documents required. This firm offers great including IT, Regulatory and Contract Negotiation. opportunities for career development. €70-100K €80-100K PROBATE – DUBLIN A well known commercial law firm is now looking to IP – DUBLIN IN-HOUSE – FUNDS – DUBLIN recruit a solicitor with good experience and a genuine Niche commercial practice outside the Top 5 is looking Securities division of international bank is looking to interest in Probate. Successful person will ideally have for an IT/Intellectual Property specialist to work closely recruit an investment funds lawyer who has experience competed the STEP Diploma or Diploma in Estates and with its corporate team in developing further its IT/TP of advising on legal aspects of corporate, project and Trusts. €75K+ function. It works with biotech, software and manufac- funds matters. €70-80K turing companies. €60K+ COMMERCIAL CONVEYANCING – DUBLIN IN-HOUSE – PHARMACEUTICAL – DUBLIN Senior Commercial Conveyancing solicitor with relevant TAX – DUBLIN International pharmaceutical company requires a com- years experience in commercial conveyancing needed. Top 5 law firm seek an AITI qualified solicitor with practi- mercial lawyer with experience in commercial contract The successful candidate will have experience in large cal experience in corporate taxation aspects of inward negotiation and a good understanding of patent/ deal commercial transactions advising investors, devel- investment projects, M&A and real estate investments. intellectual property. €80-100K opers and financial institutions. €80K+ €Neg

Contact: John Cronin, LL.B, Solicitor, PRC Recruitment on 01-6139510 or [email protected] STUDENT PAGE LAW SOCIETY GAZETTE JAN/FEB 2007 student spotlight Viewing the architecture of Northern politics istory is made more than it unapologetic view of the His told, and what is chosen conflict from the Republican to be told is chosen by the perspective. Concluding the victors, writes Fergal Mawe. But tour at the Bobby Sands as the Law Society motto says, memorial, we ventured into veritas vincet (truth conquers). Belfast’s city centre. So, will the actions of the Blackhall students who travelled No mere masons? to Belfast on 11 January 2008 This trip showed students a be remembered in the future? reality that exists on our A group of over 70 students doorstep. In post-Celtic Tiger from Cork and Dublin ventured Ireland, it can be easy to forget to Belfast for what was expected what happened prior to the to be an entertaining weekend Good Friday Agreement. It’s also away. It turned into a cross- easy to overlook how people border peace-building tour continue to cope with the ever- involving Cork and Dublin law present divisions and tensions. students, members of the PSNI, Sir Walter Scott once said: “A UUP, SDLP and an ex-IRA One of Belfast’s famous murals, on the Falls Road lawyer without history or prisoner group. literature is a mechanic, a mere Gaelic football proved to be for the Northern Ireland Bar at who had campaigned for it for working mason; if he possesses the dough in this peace Queen’s University. He was over 30 years never to be some knowledge of these, he dividend’s cake. A high-spirited subsequently called to the forgotten. may venture to call himself an game against the PSNI ended in Northern Bar in 1976 and the After Stormont, we headed architect.” In this light, we a draw, in the spirit of diplomacy. Bar of Ireland in 1984. During for the Falls Road, where we must all begin to discover the Present at the match and dinner his uplifting talk, he met with an ex-IRA prisoner history and truth that are afterwards were John McAllister commented on how the group. We were given a visible, if we will only stop to and Basil McCrea, MLAs for the progress towards peace was like historical walking tour of the take a look. Ulster Unionist Party. Rome – neither being built in a area – being told from the Thanks to David Galvin and day – and he called for those outset that it would be an all who attended. G Stormont tour Saturday saw a tour of the historic Stormont complex, after which we met SDLP MLA Alban McGuinness. Alban read

Shaking hands before the match A word from our sponsors...

www.lawsociety.ie 53

BOOK REVIEW LAW SOCIETY GAZETTE JAN/FEB 2007 books

Principles of Irish Property law

Fiona de Londras. Clarus Press (2007), Griffith Campus, South Circular Road, Dublin 8. ISBN: 978-1-905536-09-2. Price: €95.

his book has much to subsequent gifts, overreaching, succeeds, but at some cost to Tcommend it. Written to indemnity covenants, legal her own cherished principle of appeal to the student reader, it severance of a joint tenancy, and ‘proportionality’. is sufficiently clear, hotchpot. Certain stylistic glitches jar. comprehensive and well A further strength is the clear Non-academic phrases like referenced to also benefit the exposition of important recent ‘stymie’, ‘hassle-free’, ‘roll out’ practitioner. It is, furthermore, case-law developments: animus and ‘tweaked’ sit uncomfortably right up to date, featuring the possidendi in adverse possession, alongside more straitened first coverage in a full-length the duties of due diligence of a scholarly usages such as work of the Residential Tenancies receiver over mortgaged ‘reneger’ (for the act of Act 2004, the Registration of property, and ongoing reneging), ‘percentile’ and ‘the Deeds and Title Act 2006 and the refinements in the licence/lease trespass paradigm’ (oh, please!). Land and Conveyancing Law distinction controversy. There is also the consistent Reform Bill 2006. In some places, however, rendering of ‘mortis’ in donatio De Londras steers a careful treatment is sketchy. Is it right mortis causa as ‘mortus’ and path, in the context of the 2006 to equate actual notice with several typos through which one bill, between the law as it is and actual knowledge? What about Succession Act 1965. ploughs with care. A footnote the law as it is likely to be. sections 12 and 13 of Deasy’s Like any writer, Fiona de about detainees in Guantánamo Inevitably, this obliges some Act? Worth more than a Londras has her biases. These Bay in an effective section on curtailment of conventional footnote, surely? A little more focus on the role of the family rights of residence seems to coverage – notably the common on intestacy would have been outside marriage and the land have strayed from another text law remainder rules and rules welcome. But there are rights of those in same-sex altogether. against remoteness, although compensations: a useful analysis relationships. A reader alien to Matters perhaps to be the rule against perpetuities is of the problems emerging in these enthusiasms must make considered for her second well dealt with. recent case law about the rights allowances. Even so, do we edition, which the author is well The author is obviously a of a judgment mortgagee really need the exact same poised to write once the Land capable teacher and often regarding co-owned registered quotation twice, twinned with and Conveyancing Law Reform displays a welcome tendency to land; the use of section 7 of the comparable commentary each Bill 2006 has been enacted. explain a technical proposition Family Home Protection Act 1976 time, from the European Meanwhile, land lawyers and fully and then summarise its to vitiate the right of a Court of Human Rights those who aspire could usefully salient features. Her treatment mortgagee to possession; her decision in Karner v Austria? acquire this commendable first of fee simple subject to a caveat about the enforcement of Admittedly, de Londras in her edition. G condition is a good instance of positive covenants by and introduction extols the virtue of this. She also makes regular and against successors of registered treating human rights law as Albert Power is author of effective use of examples, not land; and the underappreciated pervasive across traditionally Intangible Property Rights in least in the barring of the entail, perils of section 121 of the ‘stand-alone’ topics. She Ireland.

www.lawsociety.ie 55 40, € had 2,036, which € G Gazette team for their had been awarded fee for 2008 at or 2% on the fee payable in or 2% on the fee payable 2007. represented an increase of represented an increase Gazette Gazette Gazette Stuart Gilhooly reported that the second prize in the annual Periodical Publishers’ Assoc- in the iation of Ireland Awards, category of ‘business-to- business specialist magazine’. This was the second year in a row that the achieved this prestigious result. The Council congratulated editor Mark McDermott and the excellent work during the course of the year. force on practice man- Task agement Philip Joyce reported that the task force had been established to examine the changing nature of practice and its effect on the recoverability of costs. One of the functions of the task force was to ensure that solicitors understood their cost base and obtained reasonable remunera- tion for the services they pro- vided. The task force would seek to obtain comparable information from other juris- dictions and would also seek views from the profession through the e-zine. The IBF representatives had system the lenders already system the lenders finance operated in relation to motor and leasing loans for already cars. As this precedent the existed for such a register, Society had asked the IBF if it could be adapted for residential mortgage lending. agreed to consider the propos- in al and respond. The IBF, turn, had proposed certain changes to the agreed terms of letter of the standard solicitor’s undertaking. The Society was considering these and would respond to the IBF during the course of the following week. Meeting of presidents, secretaries and PROs of bar associations The president noted that the annual meeting of presidents, secretaries and PROs of the local bar associations would be While it held on 10 December. had been branded in the media as a ‘crisis’ meeting, this was not the case, and it would deal with the usual full range of top- ics, in addition to which each bar association had been invit- ed to suggest topics for the agenda. Practising cert fee 2008 Gerard Doherty reported that the Finance Committee had fixed the practising certificate into a separate , would proceed Civil Law (Miscellaneous Civil Law (Miscellaneous THRIVING GENERAL PRACTICE The second bill would This would be similar to the would abolish the existing pre- would abolish the existing qualification Irish examinations a com- and replace them with PPCI pulsory course on the and an optional course on the PPCII. involve the removal of part II of the Provisions) Bill Provisions) Bill through committee stage dur- ing the following week. Report on meeting with the Irish Banking Federation John D Shaw briefed the Council on a meeting between the Society and the Irish Banking Federation. He said that it had been a very cordial and cooperative meeting. Among the proposals the Society had put to the IBF was that the lending institutions might establish a register of loans. The proposal was that, in cases where the lenders actually advanced funds on the they security of a property, should keep an electronic reg- ister indicating that a particu- lar sum was advanced on the security of that particular property or address. legal services bill, to be pub- lished in early 2008. The third bill, containing the remainder of the Contact David Rowe, Managing Director, Outsource, Contact David Rowe, Managing Director, Civil report JAN/FEB 2008 JAN/FEB phone 01-678 8490 or email [email protected]. NORTH CORK SOLICITORS PRACTICE FOR SALE PRACTICE CORK SOLICITORS NORTH into three separate Provisions) Bill 2006 council Civil Law (Miscellaneous The director general reported that the government, at the ini- tiative of the Minister for Justice, Equality and Law Reform, had decided to divide what was currently the Law (Miscellaneous Provisions) Bill 2006 bills. The first bill would deal with the Irish language and Council members represent- of ing the Law Society Northern Ireland the The Council approved Cooper, appointment of James Rory McShane Joe Donnelly, and John Pinkerton as members of the Council for 2007/2008, representing the Law Society of Northern Ireland. Appointment to the Judicial Appointments Advisory Board The Council approved the appointment of the president, James MacGuill, as the Society’s nominee on the Judicial Appointments Advisory Board for a three-year term beginning on 15 January 2008. The Council expressed its apprecia- tion to the outgoing nominee, Laurence K Shields, who had served the Society and the pro- fession in an exemplary manner in this capacity for many years. www.lawsociety.ie LAW SOCIETY GAZETTE Law Society Council meeting, 7 December 2007 7 December Council meeting, Law Society

BRIEFING 56 BRIEFING 57 effec- and requisi- JAN/FEB 2008 JAN/FEB www.lawsociety.ie Taxation Committee notes Finance Act 2007 Where a practitioner is advis- Conveyancing Committee with his acquisition from the first supply then the vendor, would fall within the provision. if it is the case that the Similarly, subpurchaser develops the property in connection with his acquisition from the purchaser, then the second supply would fall within the provision. what is not free from However, doubt is the scenario where the subpurchaser develops the property in connection with his acquisition of the property, and whether this could bring the first supply within the provision. While there is a case to be made that the first supply is not supply in this latter a VATable scenario, to avoid risk, the ven- dor may wish to seek confirma- tion from the Revenue that sec- tion 4(5) does not apply. ing on the sale of undeveloped land, it would be prudent to ascertain the relevant surround- ing transactions and, if neces- sary, confirm with the Revenue that section 4(5) does not apply. Requisitions on Title CERTIFICATES RPT CLEARANCE ractitioners are reminded that residential property tax clearance certificates are no LAW SOCIETY GAZETTE P longer required in sales of residential property. Section 118 of the Notes for tion 16.11 will be revised accordingly. tion 16.11 will be revised accordingly. tively abolished the clearance certificate scheme for sales completed on or after 1 February 2007. This applies both to contracts dated on or after 1 February 2007 or contracts dated prior to 1 February 2007 where the sale is to be completed on or after 1 February 2007. The committee is currently reviewing the standard practice Revenue’s states: “Subsection For VAT purposes, a subsale purposes, For VAT (5) provides that where site is a with an sold in connection agreement develop that site to is tax- then the sale of the site provi-able. The purpose of this sion is to prevent artificial sepa- treatment of the sale of rate VAT a site when it is in fact connect- ed to a development of that site. The sale of an undeveloped site which is not directly linked to an agreement to develop the site is not covered by this section and is not taxable.” a supply of is treated as, firstly, the property from the vendor to a the purchaser and, secondly, supply of the property from the purchaser to the subpurchaser. where property the Obviously, in question is developed, and in the position is clear- net, the VAT where the proper- cut. However, ty is undeveloped, the subsale must be considered in the con- text of section 4(5). If it is the case that the purchaser devel- ops the property in connection Guidance Conveyancing Committee Revenue has confirmed that there is a Practitioners should note that a floor For larger houses or apartments, a cer- continuing requirement for a floor area com- pliance certificatein the case of new hous- es or apartments a floor area having of 125 square metres or less. area compliance certificate includes a requirement to meet certain building stan- dards and will not issue automatically on proof of floor area only. tificate of floor area by a qualified architect, engineer or surveyor is also still required. FINANCE (NO 2) ACT ply of those goods made in ply of those goods made the course or furtherance of business, and goods in the said immovable shall, notwithstanding sub- section (1), be deemed to be a disposal of an interest in immovable goods to which this section applies.” By way of example, this cap- c) The disposal of the interest one can read this as Essentially, saying that where landowner A disposes of undeveloped land to purchaser B and, in connection with that disposal, B enters an agreement with a taxable per- to develop son, say a builder, that land, then the disposal by A to B is chargeableto VAT, notwithstanding that A had not developed the land and that it may well be undeveloped at time of disposal. tures site disposals by a landowner where the purchaser enters a contract with a builder to build a house on the site and the builder is on the site under licence from the landowner. VAT Act – NEW HOUSES OR APARTMENTS

2007 , as amended, states: enerally, practitioners treat enerally, a disposal of an interest in

ractitioners will be aware that the Revenue has published an online VALUE ADDED TAX – UNDEVELOPED PROPERTY TO VAT CHARGEABLE TAX ADDED VALUE Section 4(5) of the in the said immovable goods shall be deemed to be a sup- the interest in the said immovable goods shall, in relation to that disposal, be deemed to be a taxable per- son, REVENUE GUIDE TO THE

G P guide to the above act, which is available on the Revenue website, www.revenue.ie. It should be noted that the stamp duty exemption for all first-time purchasers of a new house/apartment occupied as the purchaser’s only or principal place of resi- dence is subject to compliance with cer- tain conditions. These conditions are not immediately apparent on the first page of the online guide, and it is necessary to click on the links in order to establish what these conditions are. property as not chargeable to if the propertynot been has VAT October developed after 31 there is an 1972. However, is exception to this rule, and VAT chargeable where the disposal is related to development of the property. b) The disposal of the interest “Where a person disposes of an interest in immovable goods to another person and in connec- tion with that disposal a taxable person enters into an agree- ment with that other person or person connected with that other person to carry out a development in relation to those immovable goods, then: a) The person who disposes of 1972 (SI 20/11/ in rela- European Appoints Appoints Implement SI 731/2007 SI 774/2007 SI 848/2007 Firearms Act 1925 Order 2007 Remaining Provisions) Regulations 2007 (Commencement of Investment in Transferable Marketing Communications) Order 2007 Electricity Market) Act 2007 (Undertakings for Collective (Misleading and Comparative (Commencement) (No 4) (Amendment) (Single lation of oil and gas fired boil- lation of oil and gas fired regula- ers after 31/3/2008 (per tion 3 of the regulations) Directive 2006/114/EC on mis- leading and comparative adver- tising. Revoke the Communities (Misleading Advert- ising) Regulations 1988 2007 European Communities Number: Contents note: 1/11/2007 as the commence- ment date for ss4, 5, 11, 14, 15, 17, 18 and 19 of, and the schedule to, the act. Appoints 1/11/2007 as the commence- ment date for ss9 and 10 of the act, insofar as these sections are not already in operation. European Communities Number: Contents note: 134/1988). Commencement date: Criminal Justice Act 2006 Number: Contents note: Electricity Regulation 1/1/2008 as the commence- ment date for s38 of the act. Section 38 amends section 9 of the tion to the registration of a person in the register of firearms dealers. (SI Var- , as 1/7/ Health emis- to pro- 2 Amend the Amends and Social Welfare 20/12/2007 SI 854/2007 40/2007 2007 (Amendment) Regulations Building Regulations Number: Contents note: Building Regulations 1997 497/1997) in relation to new dwellings by the substitution of a new part L (conservation of fuel and energy) in the second schedule to the 1997 regula- tions in order to set higher thermal performance standards with the aim of achieving at least a 40% reduction in ener- gy use and related CO Social Welfare ActNumber: 2007 Contents note: extends the Consolidation Act 2005 for amended, to provide of social increases in the rates assistance insurance and social in payments and improvements the family income supplement and widowed parent grant. Provides for an increase in the weekly earnings limit below which PRSI is not payable and an increase in the income ceil- ing above which PRSI contri- butions are not payable by employed or optional contrib- utors. Amends the Contributions Act 1979 vide for an increase in the weekly and annual exemption thresholds for the health con- tribution levy. Date enacted: Commencement date: ious – see act SELECTED STATUTORY INSTRUMENTS sions. Commencement date: 2008, subject to transitional arrangements in certain cir- cumstances; regulations L2(e) and L3 shall apply to the instal- 4/12/ 1/1/ , the Trans- 21/12/ Medical and the Corporate ( Gives statu- Provides for 4/12/2007 as if they were and the . 26/11/2007 21/12/2007 Health 38/2007 42/2007 provided that the . Date enacted: Commencement date: 2007 Functions) Act 2007 Provisions) Act 2007 port (Railway Infrastructure) Act 2001 Date enacted: Contents note: the transfer of functions in relation to non-national roads and the national vehicle driver file (NVDF) from the Minister for the Environment, Heritage and Local Government to the Makes Minister for Transport. necessary amendments to the Local Government Act 1998 Roads Act 1920 Commencement date: 2008 (per SI 793/2007) tory effect to establishment orders made under section 3 of the Practitioners Act 2007 Local Government (Roads Number: Contents note: Bodies) Act 1961 acts of the Oireachtas. The Health (Corporate Bodies) Act 1961 Minister for Health and Children could establish bod- ies by order to perform func- tions in relation to the provi- sion of a health service. There are currently 19 such bodies in existence (listed in the explanatory memo to the bill). Amends the establishment orders of eight of these bodies, as set out in schedule 1 of the act. Amends the Health Act 2004 Date enacted: Commencement date: 2007 Health (Miscellaneous Number: legislation update legislation Copy- 17 November ’07 – 16 January ’07 – 16 17 November ’08 JAN/FEB 2008 JAN/FEB 21/12/ ; makes Appropriates , and makes 21/12/2007 Amends the 41/2007 39/2007 to provide that the Central Fund (Permanent 2007 Rights (Amendment) Act Minister for the Environment, Heritage and Local Govern- ment may make regulations establishing a publicly funded public lending remuneration scheme to remunerate authors for the lending of their copy- right works by public libraries in accordance with Directive 92/100/EC, and provides for related matters. Copyright and Related Number: Contents: right and Related Rights Act 2000 Appropriation ActNumber: 2007 Contents note: to the proper supply services and purposes sums granted by the Provisions) Act 1965 Details of all bills, acts and Details of all bills, since statutory instruments cata- 1997 are on the library logue – www.lawsociety.ie (members’ and students’ infor- areas) – with updated stage mation on the current and the a bill has reached of commencement date(s) each act. ACTS PASSED provision in relation to deferred surrender to the cen- tral fund of certain undis- charged appropriations by ref- erence to the capital supply services and purposes, as pro- vided for by section 91 of the Finance Act 2004 provision in relation to finan- cial resolutions passed by Dáil Éireann on 5/12/2007. Date enacted: Commencement date: 2007 www.lawsociety.ie LAW SOCIETY GAZETTE

BRIEFING 58 BRIEFING 59 1/1/ Make 15/12/ Appoints Implement (SI 61/2003) (SI 37/2003), Prepared by the Prepared G JAN/FEB 2008 JAN/FEB Solicitors (Contin- www.lawsociety.ie Law Society Library SI 798/2007 SI 846/2007 SI 807/2007 2007 2007 Regulations 2007 (Packaging) Regulations (Commencement) Order Professional Development) Waste Management Number: Contents note: Directive 94/62/EC on pack- aging and packaging waste, as amended by Directive 2004/12/EC. Replace the Management (Packaging) Waste Regulations 2003 as amended. Commencement date: 2007 for articles 19 and 33 (1); 31/3/2008 for all other articles (per article 3 of the reg- ulations) Water Services Act 2007 Number: Contents note: 31/12/2007 as the commence- ment date for certain provi- sions of the act, including the repeal of enactments set out in the schedule to the order – see SI for details. Number: note: Contents for the required provision of number of hours continuing professional in the development (CPD), being specified time cycles, as a undertaken by a solicitor granted prerequisite to being a practising certificate. of Provide for the certifying the hours of CPD undertaken and pro- to the Law Society the regu- vide that a breach of lations may be found by the Solicitors Disciplinary Trib- unal to be misconduct. Revoke the uing Professional Development) Regulations 2003 subject to exceptions in par- ticular circumstances. Commencement date: Solicitors (Continuing 2008 to 1/1/ Pensions European Appoints Appoints Appoints Appoints LAW SOCIETY GAZETTE ) of the act: SI 749/2007 SI 843/2007 SI 782/2007 SI 761/2007 . Central Bank Act 1997 (No 2) Order 2007 2007 2007 Act 2007 (Commencement) 2007 832/2004). date: Commencement 2008 (Commencement) Order (Commencement) Order Miscellaneous Provisions (Commencement) Order 2002 (Section 43) Act 2007 (Section 14) Instruments and 2006 (Certain Provisions) Number: Contents note: 1/11/2007 as the commence- ment date for s14 of the act. This provision relates to the state pension qualified adult allowance. Pensions (Amendment) Act Number: Contents note: 31/12/2007 as the commence- ment date for s43 of the act. Section 43 inserts new ss59D, 59E and 59F into the Act 1990 Social Welfare and Pensions Markets in Financial Number: Contents note: 1/2/2008 as the commence- the act. ment date for s19 of V of Section 19 amends part the provide for the authorisation and regulation of non-deposit- taking lenders by the Irish Financial Services Regulatory Authority. Patents (Amendment) Act Number: Contents note: 13/12/2007 as the commence- ment date for the following sections (arising from the revision of the Patent Convention ss2(b), (c), (d) and (e); 3, 4, 5, 11, 13, 14, 17; 29(a), (b), (c)(i) and (d); 31(a), (b) and (d); 33, 35. by 60 (SI (SI 600 1/1/ 1/1/ € € 60 to Health Health Amend € Amend the Provide for SI 825/2007 SI 837/2007 SI 824/2007 Health (Out-Patient by raising from 66 the charge for atten- 660. Exemptions, includ- € € 90 in any calendar month. 65 and the maximum amount 65 and the maximum mencement of part 6 (in rela- mencement of that act on tion to marriage) (per SI 736/2007). 5/11/2007 2007 2007 2007 (Amendment) Regulations (Amendment) Regulations Health Services Regulations Number: Contents note: the refund of the amount by which expenditure on pre- scribed medicines or medical and surgical appliances exceeds € Replace article 6 of the Services Regulations 1972 88/1972) and revoke the Services Regulations 2005 Contents note: Charges) Health (In-Patient 2005 Regulations 1987 and for in- raising the daily charge patient services from Health (Out-Patient Charges) Number: Contents note: the Charges) Regulations 1994 and 2005 to dance at accident and emergency or casualty departments, where a medical practitioner has not referred the person concerned. The charge shall not apply where such attend- ance results in hospital admis- sion. Exemptions, including medical card holders and hardship provision, continue to apply. Commencement date: 2008 Number: Health (In-Patient Charges) € of 12 payable in any period consecutive months from ing medical card holders and hardship provision, continue to apply. Commencement date: 2008 to 19/12/ . This European Appoints Appoints Amend the Stamp Duties ) as regards (SI 211/2003), Civil Registration Act SI 735/2007 SI 783/2007 SI 832/2007 , coinciding with the com- Order 2007 104(1)) Order 2007 UCITS Directive (Commencement) (No 3) (Commencement of Section Regulations 2007 Contents note: 5/11/2007 as the commence- ment date for: (a) s105, insofar as it relates to the amendments referred to in part 5 of schedule 2, and (b) part 5 of schedule 2 to the act. These provisions amend the Health Act 2007 Number: 2004 allows a farmer to claim relief from stamp duty where the farmer sells farmland and pur- chases farmland in order to hold- consolidate that farmer’s ing and where both the sale and purchase of farmland occur within 18 months of each to The relief applies other. instruments executed on or after 1/7/2007 and on or before 30/6/2009. Number: Contents note: 3/12/2007 as the commence- ment date for s104(1) of the act. Section 104(1) inserts a new s81C into the Consolidation Act 1999 Finance Act 2007 Number: Securities) (Amendment) note: Contents (Under- European Communities Collectivetakings for Investment Securities) in Transferable Regulations 2003 as amended by the Communities (Undertakings for Collective Investment in Transferable 2003 (Amendment) Regulations Securities) effect to (SI 212/2003), to give imple- Directive 2007/16/EC 85/611 menting Directive ( the clarification of certain defi- nitions. These definitions relate to the eligible assets in which UCITS may invest. Commencement date: 2007 2,000 to the 1,500 to the € € ) of the G (SI 421 of 2001). of clients and the public. that The tribunal ordered compensation fund, as the Law Society of Ireland of taxed by a taxing master of the High Court, in default agreement. The tribunal ordered that admonished, compensation fund, the Law Society of Ireland as taxed by a taxing master of the High Court, in default of agreement. the respondent solicitor: a) censured, Do stand b) Pay a sum of c) whole of the costs of Pay the In the matter of Patrick Moran, a solicitor of 2 Square, Dublin 2, Westland and in the matter of the Solicitors Acts 1954-2002 [10159/DT97/06] Law Society of Ireland (applicant) Patrick Moran solicitor) (respondent On 27 November 2007, the Solicitors Disciplinary Trib- unal found the respondent solicitor guilty of misconduct in his practice as a solicitor in that he failed to ensure that there was furnished to the report Society an accountant’s for the year ended 31 December 2005 within six months of that date, in breach of regulation 21(1) of the Solicitors’ Accounts Regulations 2001 the respondent solicitor: a) Do stand advised and a) Pay a sum of a) Pay the whole of the costs of and Solicitors’ (SI 421 of 2,500 to the € Solicitors’ Accounts for the protection Solicitors (Amendment) Act 2002 Solicitors’ Accounts Solicitors Acts 1954-2002 THE SERVICE IS COMPLETELY CONFIDENTIAL AND THE SERVICE IS COMPLETELY SOCIETY OF THE LAW INDEPENDENT TOTALLY 01 284 8484 compensation fund, as the Law Society of Ireland of taxed by a taxing master of the High Court, in default agreement. was furnished to the Society report for the an accountant’s year ended 28 February 2006 within six months of that date, in breach of regulation 21(1) of the Regulations 2001 2001), in a timely manner or at all, showed disregard for his statutory obligations to com- ply with the Accounts Regulations showed disregard for the statutory obligation Society’s to monitor compliance with the Regulations the respondent solicitor: a) censured, Do stand b) Pay a sum of c) whole of the costs of Pay the John In the matter of Fetherstonhaugh, a solicitor practising as Fetherston- haugh Solicitors, Patrick Street, Mountmellick, Co Laois, and in the matter of the [3270/DT07/07] Law Society of Ireland (applicant) John Fetherstonhaugh solicitor) (respondent On 22 November 2007, the Solicitors Disciplinary Tribunal found the respondent solicitor guilty of misconduct in his prac- tice as a solicitor in that he: a) Failed to ensure that there b) Through his conduct, (SI Solicitors’ 2,000 to the € Solicitors Acts [4316/DT16/07] November 2005, 19 Decem- 1 ber 2005, 19 January 2006, February 2006, 20 February 28 2006, 27 February 2006, 3 March 2006, 24 April 2006, 8 May 2006, 24 May 2006, June 2006. compensation fund, the Law Society of Ireland, including witnesses’ expens- es, as taxed by a taxing master of the High Court in default of agreement. The tribunal ordered that The tribunal ordered that the The tribunal ordered respondent solicitor: a) Do stand censured, b) Pay a sum of c) Pay the whole of the costs of In the matter of Ciaran R Callan, a solicitor previously practising as Callan & Company Solicitors, River Bank House, Dodder Park Drive, Dublin 14, and in the matter of the 1954-2002 Law Society of Ireland (applicant) Ciaran R Callan solicitor) (respondent On 22 November 2007, the Solicitors Disciplinary Tribunal found the respondent solicitor guilty of misconduct in his prac- tice as a solicitor in that he failed to ensure that there was fur- nished to the Society an accoun- report for the year ended tant’s 30 April 2006 within six months of that date, in breach of regula- tion 21(1) of the Accounts Regulations 2001 421 of 2001), in a timely man- ner or at all. JAN/FEB 2008 JAN/FEB Solicitors HELPLINE SOLICITORS’ [6919/DT79/ Solicitors (Interest on Solicitors (Interest ); of capital acquisitions for and on behalf of a named beneficiary; Copy statement of account, Society’s correspondence Society’s during the investigation of the complaint and, in partic- letters of 1 the Society’s ular, September 2005, 19 October 2005, 10 November 2005, 21 on monies held by him in the named estate, which monies were due for payment to the named beneficiary pursuant to the provisions of SI 372 of 2004 ( Clients’ Monies) Regulations 2004 ing documentation relating to the administration of the estate of a named person and requested by the Society: i) The section 68 letter, ii) A copy of the bill of costs, iii) iv) Copy receipt for payment Solicitors DisciplinarySolicitors Tribunal Solicitors (Amendment) Act 1994 These reports Solicitors Disciplinaryof the outcome of inquiries are of by the Law Society published Tribunal Ireland as provided the by section 17 of 23 (as amended for in section www.lawsociety.ie c) Failed to respond to the In the matter of Patrick J In the matter of Patrick carrying Gillespie, a solicitor the style on practice under and and title of P Gillespie Solicitors, of Bury Company, and Street, Ballina, Co Mayo, in the matter of the b) for interest Failed to account Acts 1954-2002 06] Law Society of Ireland (applicant) Patrick J Gillespie solicitor) (respondent On 18 October 2007, the Solicitors Disciplinary Tribunal found the respondent solicitor guilty of misconduct in his prac- tice as a solicitor in that he: a) Failed to furnish the follow- LAW SOCIETY GAZETTE

BRIEFING 60 BRIEFING 61 Rules of the [FL14291] provide for the , High Court, JAN/FEB 2008 JAN/FEB www.lawsociety.ie Mr Justice Peart enlarged update Employment Appeals Tribunal Employment Appeals (respondent) 2005 Charleton J, 20/6/2007, 601 JR, 602 JR Delay Enlargement of time for delivery of statement of claim – Residential – no Board Institutions Redress plenarystep taken to progress summons as difficulty with service and inexcusable delay – inordinate – state of mind of the plaintiff. The plaintiff was seeking to extend time for enlargement of the delivery of the statement of claim. This was already refused by the Master of the High Court. The proceedings con- cerned damages for personal physical abuse, sexual injury, abuse, false imprisonment, inconvenience and expense suf- fered by the plaintiff as a result of the actions of the seventh defendant, who was a Catholic priest. The plaintiff was resident at BA during the years 1971-1977. The plaintiff pursued a claim under the Residential Institutions Redress Board and received an award for the period 1971 to 1977, but the content of the statement of claim related to the time after 1977. The plain- solicitor had difficulty in tiff’s serving the proceedings on the seventh-named defendant. No evidence of effort to locate the seventh-named defendant was given, but the Superior Courts making of an application for substituted service. the time for the delivery of the statement of claim, finding PRACTICE AND PROCEDURE . The Redundancy Protection of LAW SOCIETY GAZETTE firstlaw , despite the fact that this Charleton J quashed the of the respondent regarding claims redundancy payment appli- brought by two of the former employees, who cant’s to these were the notice parties applicant proceedings. The receive a claimed that it did not fair hearing from the respon- dent, as the respondent deter- mined the issue of redundancy payments having regard to the provisions of the Act Work) Employees (Part-Time 2001 act was not referred to by any of the parties in their written submissions. Both parties before the respondent centred their submissions on the inter- pretation of the Payments Acts 1967-2003 parties initially agreed that the case should proceed by way of written legal submissions only, but later requested an oral hearing, which was denied. decisions of the respondent, holding that the respondent fell into error in basing its deci- sion on a remedy created by an act to which none of the parties had referred, and in respect of which the respondent may not ever have had jurisdiction to determine, and in failing to hear evidence on a point of determination as to objective justification (for treating part- time employees in a less favourable manner compared to full-time employees) on which the parties would have been entitled to call evidence. the decisions of Consequently, the respondent regarding the payment of redundancy pay- ments to the notice parties ought to be quashed. Galway-Mayo Institute of (applicant) v Technology Compiled by Bart Daly for FirstLaw Courts , Supreme audi alteram [FL14286] by way of judicial News fromIreland’s online legal awareness service . whether the applicant certiorari It was held that it is not nec- EMPLOYMENT LAW Practice and procedure the defence Negligence on behalf of could be – whether expert evidence – adduced at a later stage of Justice Act 1924. The appellant was charged with a single offence of rape. The complainant did not make a complaint for two years. The second trial convicted the appellant of the offence. Issues arose as to whether the appel- lant could form the view that certain medical evidence that was available at the time of the trial should have been put in issue by the defence at the time of trial. essary to assert negligent con- duct of the defence at the trial when the appellant was unsuc- cessful at trial. It is not open to an appellant to hold back on a point of substance for tactical reasons and then seek to deploy the point in a later appeal. The court refused to admit the expert evidence that was sought to be adduced by the applicant. v People (DPP) (respondent) O’Regan (appellant) Court, 30/7/2007, 43/07 [FL14299] Judicial review – Fair procedures partem – certiorari – Redun- dancy Payments Acts 1967- 2003 – a fair hearing from the received respondent The applicant sought an order of review quashing two decisions McMenamin J, 30/3/2007, 2005 1242 JR , High Court, McMenamin J held that CRIMINAL LAW judicial review was to be grant- ed by way of prohibition in relation to the charges at address A but not in relation to address B. O’B(C) (applicant) v Director of Public Prosecutions (res- pondent) Judicial review of prejudice Whether the degree there was established – whether – absence was prosecutorial delay whether of essential witness – other potential witness- were there – whether es, evidence and records was sufficient proximity and there gravity to discharge the onus of proof – whether exceptional and unfair circumstances existed to put the applicant on trial. The complaints in question were initiated on the basis of allegations made by the same complainant. The applicant faced a total of six charges of indecent assault and gross indecency against the appli- cant. The first four charges were alleged to have taken place at address A and the other two charges were expect- ed to have taken place at address B. The complainant alleged that, as a young person, he was abused by the applicant on a number of occasions. Issues arose over a potential witness, who the applicant said lived with him at address A, but later died. The applicant claimed he would have been an essential witness, given the par- ticular prejudice that would have arisen from the descrip- tion of the house that he shared with the deceased, including habits as the applicant’s described by the complainant. G , High Court, [FL14280] Dunne J held that the inter- Dunne J, 16/7/2007, 2006 380 SP The defendants were married The defendants separated. Family but were now were instituted law proceedings first and second- between the that ordered named defendants transfer to that the respondent benefi- the applicant his entire It cial interest in the premises. that was intended by the parties affect the the order would not in the interest of the plaintiff arose instant proceedings. Issues where in relation to priority com- legal proceedings had the lands menced in respect of mortgage prior to the judgment to and whether it was entitled The property rank in priority. adjustment order was made in favour of the second-named respondent and was made by consent in circumstances where the plaintiff was not given an opportunity to make represen- tations on whether an order could be made. ests of the second-named defen- dant ranked in priority to that of the plaintiff. The order sought was refused. Dovebid Netherlands BV Phelan, (plaintiff) v William trading as the Phelan Partner- ship, and Denise O’Byrne (defendants) , This information is taken from awareness legal current FirstLaw’s service, published every day on the internet at www.firstlaw.ie. . The plain- 402.60. Judgment € Family Law Act 1995. Feeney J held that the court Feeney J held that the 173,994.40 plus costs to the grounds that the proceedings grounds that the scope of the fell within Brussels Regulation that the proceed- tiff alleged not a civil or com- ings were within the mercial matter meaning thereof. the had jurisdiction to entertain proceedings. The proceedings were not civil or commercial. body The CAB was a public that a pri- bringing proceedings bring. vate individual could not Bureau Criminal Assets v L (plaintiff/respondent) (JWP) (defendant/ applicant) High Court, Feeney J, 24/5/2007, 2006 14 CAB [FL14298] Property adjustment order Judgment mortgage against the of the first-named defen- interest dant – whether family law proceed- of other ings effected the interest pro- parties – legal priority where of the ceedings commenced in respect land prior to the judgment mort- gage – The plaintiff had obtained judg- ment against the first-named defendant in the sum of € amount of was registered in December 2005 against the interest of the first-named defendant. The first defendant was joint owner of the fee simple interest in the lands and premises in question. PROPERTY LAW – civil or Proceeds of Brussels Regula- Budapest 26–30 March 2008 [FL14306] DATES FOR YOUR DIARY FOR DATES applicable – , Supreme Court, The court held that the The court held that 20/7/2007 Jurisdiction – Criminal Assets Bureau Brussels Regulations empanelment, whether the empanelment, cause any diffi- incident would of the jurors culties. One the deceased’s reported that himself familiar brother made on two occasions. with him to The judge drew attention the this matter and excluded brother and his wife deceased’s and from the court building from the streets surrounding course the building during the of the trial. the inci- cumulative effect of have led dents involved would appeal to an unfair trial. The was allowed and a retrial ordered. of Public Prosecutions Director (applicant) v Mulder (respon- dent) criminal claim – public authority – corrupt enrichment – planning permission – private individual instituting proceedings – whether court had jurisdiction – whether article 1 of the tion Crime Act 1996. The plaintiff sought an order pursuant to s16(B)(2) of the Proceeds of Crime Act 1996 directing the defendant to pay monies that had allegedly been corruptly enriched. The defen- dant sought to set aside an order for service on the JAN/FEB 2008 JAN/FEB at Ovation, tel: 01 280 2641 €1,145 per person sharing. Package price for bookings: reception and gala dinner. and gala dinner. reception , High Court, Peart J, , High Court, Peart five-star Hilton Hotel, welcome Conference 2008 will take place Conference in Budapest, capital of Hungary. in Budapest, capital of Hungary. The conference package includes The conference four nights’ accommodation at the For or information more go to to register, www.lawsociety.ie orwww.lawsociety.ie Anna Keating phone The Law Society of Ireland Annual The Law Society of Ireland return flights from Dublin or flights from return Cork, that, even if the plaintiff had that, even reasonable dispatch acted with of her claim on the conclusion Redress Board, the through the case would lie in justice of the an enlarge- favour of allowing delivery. ment of time for inordi- Although the delay was nate, it was not inexcusable. BA, L(L) (plaintiff) v FXIS, and Minister for Education Justice, Science, Minister for Reform,Equality and Law and the LC, Ireland CDA, TF, Attorney General (defen- dants) 16/5/2007,[FL14279] 2001 9906P Judicial review brother in Reaction of deceased’s empanelment of courtroom before the jury – familiarity attempts with a juror – whether a fair trial would ensue – discharge of a jury – questioning jury as to the events – intimidation of a juror. There was inappropriate inter- action with the jury at or in connection with the trial of the accused. Issues arose when, at the arraignment stage of the trial, and on pleading accused’s not guilty to murder but guilty shouting from to manslaughter, the public gallery was heard. Before the swearing of the jury, a garda identified a man who was the brother of the victim, who said in the courtroom that he reacted on seeing his sister’s husband, who strangled her. after The judge asked the jury, www.lawsociety.ie LAW SOCIETY GAZETTE

BRIEFING 62 BRIEFING 63 JAN/FEB 2008 JAN/FEB www.lawsociety.ie legal one time, and this right will be one time, and this right states. rotated among member European The President of the by Commission will be ‘elected’ a majority of MEPs following a nomination by the European Council. (The European role is currently Parliament’s limited to approving the nomi- nee of the European Council.) in the council Voting Qualified majority voting (QMV) in the council will be extended to an additional 44 areas – removing the require- ment of unanimity and the pos- sibility of national vetoes in these areas (which mostly concern the freedom, security and justice issues discussed below). A new QMV system will come into operation in 2014 that will require a double majority of (a) 55% of member states (15 of the current 27) and (b) member states representing 65% of the population in order to EU’s adopt a provision. This is lower than the current majority level of approximately 74%. In prac- tice, member states rarely hold votes on EU legislation, prefer- ring instead to proceed by means of compromise and consensus. National parliaments and citizens The treaty provides national parliaments a role in oversee- ing the work of the EU, which includes a right to raise con- cerns about proposals to the commission. In order to meet- improve transparency, ings of the Council of Ministers will be open to the public. eur LAW SOCIETY GAZETTE The treaty provides for a A new permanent post of Nevertheless, the position parliament and the council parliament and the and jointly adopt legislation, the ordi- this will now become adopting nary procedure for legislation. ceiling on the number of MEPs (751), with a lower limit of six and upper limit of 96 for any one member state. Ireland will have 12 MEPs. European Council The treaty formalises the Euro- pean Council as an EU institu- tion. The council (meetings of EU heads of state and govern- ment) gives political direction to the EU and is currently organ- ised on an informal basis. President of the European Council has also been created the role rotates (currently, between member states every six months.) The president will be elected by the member states for a term of two-and-a-half years (renewable once). The functions of the president will include chairing meetings of the council and representing the EU abroad on certain matters. comes with no executive powers and the current system of rotat- ing national presidencies will continue in an amended form for the Council of the EU (sometimes also called the Council of Ministers), which will remain a separate institution. European Commission The number of commissioners will be reduced. From 2014, two thirds of member states may nominate a commissioner at any , Lisbon will be European . Treaty of Lisbon Treaty Treaty on the Treaty EC Treaty News fromthe EU and International Affairs Committee specifically foresees that Lisbon Treaty The distinction between the The distinction between The European Union will The treaty confirms that the European Union and the European Union is to be European Community dropped, and the envisages that the EC will merge with the EU so that in the future a single entity, European Union, will exist. In addition to amending the exist- ing treaties, the new treaty pro- vides that the renamed the Functioning of the European Union. have legal personality that will allow it to conclude interna- tional agreements and join international organisations, where its member states unani- mously agree. The Treaty the EU will sign the Convention on Human Rights which will allow the European Court of Human Rights to control the compliance of EU acts with the convention. European Union is not autho- rised to act beyond the compe- tences conferred on it by mem- ber states and the policy areas over which the EU has compe- tence are specifically identified in the European Parliament The role of the European Parliament is enhanced by the application of the ‘co-decision’ legislative procedure to 50 new areas, giving the parliament equal status to the council in these legislative procedures, where its role had previously been limited to a consultative one. Under co-decision, the Edited by TP Kennedy, Director Law Society of Ireland of Education, Edited by TP Kennedy, ) . The new ). Broadly, Treaty of Lisbon , also known sets out the Treaty of Rome Treaty and the back- sets out the rules EU Treaty (the Treaty on European Treaty

(the Treaty of Lisbon Treaty

EU Treaty t the December European in Council summit Reform Treaty EC Treaty This article provides a brief It is seen as necessary to

A The rules governing policy areas, such as the common foreign and security policy and police and judicial cooperation in criminal matters, in relation to which EU member states coop- erate but have not pooled sov- ereignty. of the European Community, which is a supranational organisation in which member states have pooled sovereignty in relation to certain issues. The the and the Union Reframing the EU there are two sepa- Currently, rate entities governed by the EC Treaty explanation of the most signifi- cant changes envisaged by the Reform Treaty ground to these changes. amend the current treaty struc- ture in order to enable EU institutions to function effec- as the EU has greatly tively, expanded in recent years, both in terms of the number of its member states and the policy areas within its remit. as the treaty (together with a number of protocols and declarations) will amend the existing EU and EC treaties rather than replace them, and adopts some of the changes envisaged by the now defunct constitutional treaty. Lisbon, EU leaders signed the Lisbon, EU leaders signed new The post is designed to The treaty also provides for the Council of Ministers of Foreign Affairs. The new posi- tion is a development on the role currently undertaken by Javier Solana, who represents the Council of the EU but is not in charge of the European external policy Commission’s portfolios. increase the coherence between the different strands of EU policies that have an external element and hence the combined impact of these poli- cies. The new treaty also con- tains a new chapter on external action by the EU and requires member states to take deci- sions unanimously under this chapter. a European External Action Service to support the full range of the external policies of the EU and its member states – as well as the external dimension of internal policies – in a more effective and The European coherent way. External Action Service will assist the high representative and will work in cooperation Ireland has chosen to opt The treaty also foresees the a member state may request that the ordinary legislative procedure is suspended if it considers that a draft directive would affect fundamental aspects of its criminal justice system. out of the legislative proce- dures in this area, but it may opt in on a case-by-case basis. Ireland will append a declara- tion to the treaty stating its intention to opt in whenever possible. Ireland will review its opt-out three years after the treaty comes into force. establishment of a European office to public prosecutor’s combat fraud against the EU. External policy The new post of High Representative of the Union for Foreign Affairs and Security Policy will be created. The high representative will be appointed by the European Council and will be a European commissioner and a vice-president of the commis- sion. He or she will also chair , this Treaty of Lisbon Treaty The issues covered by this The treaty also provides that Watch those salutes there, lads: it might be misconstrued...Watch cedures. However, this will not cedures. However, bind non-participating mem- ber states. Freedom, security and justice Under the policy area will change from being a matter for intergovern- mental cooperation to being a matter within the supranation- al competence of the EU. In future, the ordinary EU leg- islative procedure will apply and legislative acts and actions will be subject to the scrutiny of the European Court of Justice (ECJ). policy area include judicial cooperation in criminal mat- ters, the mutual recognition of judgments, the definition of criminal offences and sanc- tions, police cooperation, bor- der checks, and a common immigration policy and asylum system. The treaty states that this shall not affect member states’ responsibilities with regard to the maintenance of law and order and the safe- guarding of internal security. JAN/FEB 2008 JAN/FEB A citizens’ initiative proce- www.lawsociety.ie dure provides that a million cit- izens from different member states may petition the com- mission to bring forward a new legislative proposal. Ratchet clause The treaty provides for a sim- plified revision procedure for treaty provisions relating to internal policies and action of the EU. This will enable some changes to the treaties to be made in future by member states acting unanimously and with the approval of all nation- the al parliaments. However, competences of the EU cannot be increased by this procedure and substantive changes to the treaties will require the con- vention of an IGC and the usual ratification process, case includes which in Ireland’s a referendum. Enhanced cooperation Where at least nine member states would like to take collec- tive action inside the union framework, they will be able to use enhanced cooperation pro- LAW SOCIETY GAZETTE

BRIEFING 64 BRIEFING 65 (the Treaty represents G ). JAN/FEB 2008 JAN/FEB www.lawsociety.ie Treaty of Lisbon Treaty The new treaty also includes A full text of the treaty doc- forms of energy, and the pro- and forms of energy, interconnection of motion of A protocol to energy networks. makes some minor the treaty to the 1957 amendments the European Atomic Establishing Energy Community Euratom Treaty Solidarity and civil protection pro- A new solidarity clause its mem- vides that the EU and in a ber states shall act jointly member spirit of solidarity if a terrorist state is the object of a a natural attack or the victim of or man-made disaster. (Decisions on action involving defence implications must be taken by the council acting unanimously.) an article on civil protection, which aims to encourage coop- eration to improve the effec- tiveness of systems for prevent- ing and protecting against nat- ural or man-made disasters. Ratification? The the next step in the European project. It needs to be ratified by all member states, and ratifi- cation by Ireland will require a referendum, which is due to be held during 2008. If it is rati- fied, it is envisaged that the treaty will enter into force on 1 January 2009. umentation can be viewed at www.reformtreaty.ie. David Geary is head of EU, com- petition and regulatory law at Eugene F Collins, Solicitors, Dublin. article on Court LAW SOCIETY GAZETTE at the Four Courts LAW SOCIETY ROOMS LAW the same legal Treaty of Lisbon EC Treaty the coordination of pro- the coordination research. grammes and Environment treaty amends the The new current environmental policy to environmental policy cli- include the need to combat sus- mate change and affirm as objec- tainable development tives of this policy. Energy as a The treaty includes energy objec- specific policy area, the ensuring tives of which include the EU the functioning of energy market, the security of the promotion energy supply, of energy efficiency and saving, the development of renewable MARY BISSETT OR PADDY CAULFIELD BISSETT OR PADDY MARY Treaty of Treaty prohibits par- EU Charter of Fundamental Rights contains other innova- SOME OTHER CHANGES introduces a small number of new EU policy areas, including administrative cooperation and sport.tourism, space policy, This section of the • the In addition to the changes outlined above, • It accords the Lisbon the tions. For example, Agency European Defence basis. (EDA) is given a treaty by The EDA was established 2004, and the member states in this. The Ireland participates in to assist purpose of the EDA is to member states in relation defence matters, for example, promoting the harmonisation of operational needs and effec- tive procurement methods, and “which might lead to a com- “which might should the mon defence, Council so decide”. European article 29.4.9 of the At present, Irish Constitution in a common ticipation defence. FOR BOOKINGS CONTACT FOR BOOKINGS CONTACT TEL: 668 1806 eet at the Four Courts value as the treaties. lectual property rights. or communities and non-confessional organisations provides for an open, transparent and regular dialogue with them. a specific reference health. to mental ic interest (that is, public services) to oblige member states to specify that the conditions under which these operate include economic and financial conditions. own choosing and provides for a right of withdrawal. ber state’s rights for breach of the EU’s rules and values. so as to ensure that accession takes place only when a candi- date country is fully ready to meet the demands of membership. • A new article provides a treaty basis for the protection of intel- • A new article on respect for churches and religious associations • The treaty amends the existing article on public health to include • It amends the provisions relating to services of general econom- • The treaty provides that member states remain in the EU by their • It further develops the right of member states to suspend a mem- • The treaty introduces new provisions with regard to enlargement (the M includes a ends with EC Treaty EU Treaty Lisbon Treaty The new treaty states that The These new arrangements These new national security remains the sole responsibility of each member state. The opening article on the common security and defence policy will be amended to state: “The com- mon security and defence poli- cy shall include the progressive framing of a common union This will lead to defence policy. a common defence, when the European Council, acting so decides.” The unanimously, corresponding article in the current ‘catch-all’ article) is excluded. Defence The European security and defence policy will be brought more clearly into the EU framework, but will remain subject to special decision- making arrangements based on intergovernmental coopera- tion and falls outside the remit of EU legislative acts. The European Commission, European Parliament and ECJ have very limited roles in rela- tion to this policy area. In addition, the use of article 308 of the current new article on humanitarian the aid operations and foresees creation of a European Aid Humanitarian Voluntary Corps. for external relations will for external specific decision- respect the in the area making procedures secu- of common foreign and rity policy (see ‘defence’, below). with the diplomatic services of with the diplomatic states. the member land. ious places within that other ious places within that used by member state, can be the purchaser regarding a claim under the contract relating to all at the the deliveries – if need be, plaintiff’s choice – before the court of one of those places of performance. The ECJ held that it could. The court held that this interpretation resulted in a forum that could be anticipated by the parties to the contract. The court having jurisdiction to hear all the actions based on the contract for the sale of goods is that in the area of the principal place of delivery,must be which determined of eco- on the basis nomic criteria. In the absence of determining facts for establish- ing the principal place of deliv- ery, the plaintiff may sue the defendant in the court for the place of delivery of its choice. G FIELD OF PRACTICES: eneral Practice, Administra- Civil and Commer- tive Law, cial Law, Company Law, Banking Company Law, cial Law, and Foreign Investments in Spain, Arbitration, Taxation, International Law, Family Law, Litigation in all Courts. G ABOGADOS Avda. Ricardo Soriano, 29, Avda. www.berdaguerabogados.com SPANISH LAWYERS SPANISH [email protected] PROFILE: TWENTY YEARS ADVISING CLIENTS Tel: 00-34-952823085 Fax: 00-34-952824246 00-34-952823085 Tel: IN REAL ESTATE TRANSACTIONS IN SPAIN IN REAL ESTATE Web site: Web panish Lawyers Firm focused on serving the need of the e-mail: Edificio Azahara Oficinas, 4 Planta, 29601 Marbella, Malaga, Spain undertook to deliver goods to various retailers of Color Drack in Austria. A dispute arose over an alleged contractual obligation on the part of Lexx to take back unsold goods and to reimburse broughtthe price to Drack. Drack Austria. an action against Lexx in The Austrian court accepted of arti-jurisdiction on the basis cle 5(1) of regulation 44/2001 Article(the contract exception). 5(1)(b) provides that, if there is a dispute concerning the delivery of goods, the place of perform- ance is where the goods were or should have been delivered. The Austrian appeal court referred a question to the ECJ. It asked whether article 5(1)(b) could be interpreted as meaning that a seller of goods domiciled in one member state who delivers goods to a purchaser domiciled in another member state, at var- RAFAEL BERDAGUER foreign investors, whether in company or property transac- tions and all attendant legalities such as questions of inheritance, taxation, accounting and book- keeping, planning, land use and litigation in all Courts. S Color Drack , 3 May 2007. Regulation on the free to agree on the law applica- ble to their circumstances, if the with choice is demonstrated “reasonable certainty”. Non-con- out of tractual obligations arising family relationships, matrimonial property issues and succession rights are from excluded the reg- ulation. From 1 July 2007, Denmark has opted in to the (Regulation 1348/2000). Case C-368/05, and Commercial Matters Extrajudicial Documents in Civil Service of Judicial and Vertriebs GmbH GmbH v Lexx International Color Drack is an Austrian com- pany and Lexx is a company They established in Germany. entered into a contract for the sale of goods under which Lexx JAN/FEB 2008 JAN/FEB Rome II on choice to distinguish it from RECENT DEVELOPMENTS IN EUROPEAN LAW EUROPEAN IN DEVELOPMENTS RECENT Rome I Regulation JURISDICTION Regulated by the Solicitors Regulation Authority of England and Wales Authority of England and Regulated by the Solicitors Regulation In July 2007, a new regulationIn July 2007, on choice of law in tort (Regulation intro-EC no 864/2007) was duced. The regulation will apply from 11 January 2009. This has become known as the It sets out a general rule that Publication of advertisements in this section is on a fee basis and does not represent by the Law Society of Ire an endorsement the www.lawsociety.ie LAW SOCIETY GAZETTE Regulation of law in contract. non-con- the law applicable to a out of tractual obligation arising a tort is the law of the state in which the damage occurs, irre- spective of the state in which the event giving rise to the damage took place. For situations where the tort is manifestly more con- nected with another state, the regulation provides for specific rules to allow courts to treat indi- vidual cases in the most appro- The partiespriate way. are also

BRIEFING 66 PROFESSIONAL NOTICES LAW SOCIETY GAZETTE JAN/FEB 2008

LOST LAND CERTIFICATES LAW SOCIETY

Registration of Deeds and Title Acts Gazette 1964 and 2006 An application has been received from PROFESSIONAL NOTICE RATES the registered owners mentioned in the schedule hereto for an order dis- RATES IN THE PROFESSIONAL NOTICE SECTION ARE AS FOLLOWS: pensing with the land certificate issued in respect of the lands specified • Lost land certificates – €138.50 (incl VAT at 21%) in the schedule, which original land • Wills – €138.50 (incl VAT at 21%) certificate is stated to have been lost Title deeds – €138.50 per deed (incl VAT at 21%) or inadvertently destroyed. The land • certificate will be dispensed with • Employment/miscellaneous – €138.50 (incl VAT at 21%) unless notification is received in the These rates will apply from the Jan/Feb 2008 issue and subsequently registry within 28 days from the date of publication of this notice that the original certificate is in existence and HIGHLIGHT YOUR NOTICE BY PUTTING A BOX AROUND IT – €33 EXTRA in the custody of some person other than the registered owner. Any such ALL NOTICES MUST BE PAID FOR PRIOR TO PUBLICATION. CHEQUES SHOULD BE notification should state the grounds MADE PAYABLE TO LAW SOCIETY OF IRELAND. Deadline for March Gazette: on which the certificate is being held. 20 February 2008. For further information, contact Catherine Kearney or Valerie Farrell Property Registration Authority, on tel: 01 672 4828 (fax: 01 672 4877) Chancery Street, Dublin 7 (Published 1 February 2008) Regd owner: Patrick J Howard; folio: 47603F; lands: plot of ground situate townland of Ballyclogh and barony Section 49. Regd owner: Ambrose 29355; lands: townland of Caherrush in the townland of Ballymichael and of Orrery and Kilmore in the county Quilty, Creggyconnell, Co Sligo; folio: and barony of Ibrickan; area: 1 rood, barony of Muskerry West in the of Cork; Co Cork 18527; lands: Creggyconnell; Co Sligo. 3 perches; Co Clare county of Cork; Co Cork Regd owner: James O’Leary; folio: In the matter of the Registration of Title Regd owner: Daniel Melody and Mary Regd owner: Elizabeth Murphy 3574; lands: plot of ground situate in Act 1964 and in the matter of an appli- Melody; folio: 11171; lands: town- (deceased); folio: 55108; lands: plot the townland of Mashanaglass and cation by Joseph Finnegan for registra- land of Cratloemoyle and barony of of ground situate in the townland of barony of Muskerry East in the tion as owner with an absolute title; Bunratty Lower; area: 20.934 Slip and barony of Bantry in the county of Cork; Co Cork application no: AP/DC/D2006WR0 hectares; Co Clare county of Cork; Co Cork Regd owner: O’Mahony Bros Limited; 11064B. Regd owner: James Brosnan Regd owner: Patrick F Murphy and folio: 41769/49176; lands: plot of To whom it may concern (and in par- (deceased); folio: 32049 and 32051; Mary P Murphy; folio: 50230; lands: ground situate in the townland of ticular the next of kin of the above- lands: plot of ground situate in the plot of ground situate in the town- Douglas and barony of Cork in the mentioned Ambrose Quilty): take townland of Curraheen and barony land of Maulnagrough and barony of county of Cork; Co Cork notice that Joseph Finnegan of of Duhallow in the county of Cork; Muskerry West in the county of Regd owner: Joan O’Shea and Denis M Creggconnell, Rosses Point, Co Sligo, Co Cork Cork; Co Cork O’Shea; folio: 9614F; lands: plot of has lodged an application under section Regd owner: Mary Buckley (deceased); Regd owner: Patrick O’Connor; folio: ground situate in the townland of 49 of the above act to be registered as folio: 50231; lands: plot of ground 4790; lands: plot of ground situate in Adamstown and barony of full owner with an absolute title of the situate in the townland of Curraclogh the townland of Mullenroe and Kerrycurrihy in the county of Cork; above-mentioned folio lands. The map and barony of Muskerry West in the barony of Muskerry West in the Co Cork may be inspected at the Property county of Cork; Co Cork county of Cork; Co Cork Regd owner: Claire Quain; folio: Registration Authority, Setanta Regd owner: Richard Griffin (deceased); Regd owner: Aiden O’Donovan and 10091F; lands: plot of ground situate Centre, Nassau Street, Dublin 2. folio: 3946L; lands: plot of ground Elaine O’Donovan; folio: 70729F; in the townland of Derryleigh (ED All persons objecting to such regis- situate to the south of Long Lane in lands: plot of ground known as no 1 Bealock) and barony of Muskerry tration are hereby required to file their the parish of St Anne’s Shandon in College Park, situate to the north of West, in the county of Cork; Co objections in writing, duly verified, the county borough and city of Cork; Ashe Street in the townland of Cork within one calendar month from the Co Cork Scartagh and barony of Carbery East Regd owner: Jeremiah Rohan; folio: date of publication of this notice. In the Regd owner: Michael Landers; folio: (East Division) in the county of 34338F; lands: plot of ground situate absence of objection or in the event of 1974L; lands: plot of ground situate Cork; Co Cork in the townland of Ballynacorra West any objection not being sustained, reg- in the townland of Youghal Lands Regd owner: Joseph O’Donovan and barony of Imokilly in the county istration will be effected. and barony of Imokilly in the county (deceased); folio: 16512L; lands: plot of Cork; Co Cork Date: 1 February 2008 of Cork; Co Cork of ground known as the ground floor Regd owner: Rochestown Auto Centre Regd owner: John Joseph McCarthy; plan of retail unit known as nos 6 and Limited; folio: 8943F; lands: plot of Regd owner: Patrick Byrne; folio: folio: 45765/45770; lands: plot of 7 The Quay’s, situate in the parish ground situate in the townland of 2375F; lands: Ballynsboley and ground situate in the townland of and town of Passage West in the Monfieldstown and barony of Cork barony of Idrone East; Co Carlow; Ballinlough and barony of Carbery county of Cork; Co Cork in the county of Cork; Co Cork Co Carlow West (East Division) in the county of Regd owner: Michael O’Driscoll; folio: Regd owner: John Sheehan; folio: Regd owner: Patrick O’Reilly, Cork; Co Cork 40280; lands: plot of ground situate 92310F; lands: plot of ground situate Cullighan Upper, Belturbet, Co Regd owner: Michael Murphy; folio: in the townland of Knockan- in the townland of Ballineadig and Cavan; folio: 1177; lands: Drumgart; 5664; lands: plot of ground situate in namaurnagh and barony of Carbery barony of Muskerry East in the area: 9.2875 hectares; Co Cavan the townland of Ballincrossig and West (East Division) in the county of county of Cork; Co Cork Regd owner: Frank Hassett; folio: barony of Cork in the county of Cork; Co Cork Regd owner: John Spillane; folio: 14621; lands: townland of Moyriesk Cork; Co Cork Regd owner: Gerard O’Keeffe and 13365F; lands: plot of ground situate and barony of Bunratty Upper; Co Regd owner: Denis Murphy and Eileen O’Keeffe; folio: 18698F; in the townland of (1) Lisheenowen, Clare Hannah Mary Murphy; folio: lands: plot of ground situate in the (2) Dromboy North, and barony of

www.lawsociety.ie 67 Co Co Limerick Co Limerick Co Co Co Co Co Limerick Co Offaly Co Mayo Co Louth Limerick 4034F; lands: townland of Ballynamona and barony of Smallcounty; Warren); folio: 2698F; lands: town- Warren); of land of Glenosheen and barony Coshlea; Corgrig 27113; lands: townland of and barony of Shanid; 10990F; lands: Knockdromin and barony of Connello Lower; Co Meath Regd owner: Michael O’Donovan; folio: Regd owner: Eamonn O’Malley and Regd owner: Cola Fox (formerly Cola Regd owner: Cola Fox (formerly folio: Regd owner: MJ and Ita Kehoe; folio: Regd owner: Charles Hanley; Co Mayo Co Mayo Co Limerick Co Limerick Co Mayo Co Offaly Co Co Co Co Co Kerry Co Kerry Co Kerry 14766F; lands: Ardanew and town- land of Gilbertstown, Longwood, Enfield, Co Meath; Meath 13274; lands: Ballymacwilliam and barony of Warrenstown; folio: 13579; lands: Rathscanlon and barony of Gallen; Eileen Govern, 7 Beechmount Crescent, Navan, Co Meath; folio: 4131F; lands: Balreask Old; lands: Clonagh and barony of Ballycowen; 5851F; lands: townland of Behybaun and barony of Tirawley; Coghlan; folio: 17721F; lands: town- land of Carrowbaun and barony of Burrishoole; Aughnacliffe, Co Longford; folio: 12253; lands: Aughnacliffe; Longford Bay Estate, 14 Willowdale, Dundalk, Co Louth, and Geraldine Muirhev- 30 Drive One, Ayres, namore, Dundalk, Co Louth; folio: 416L; lands: Marshes Lower; lands: townland of Carrowbeg and barony of Murrisk; Longford Moatfarrell, Co Longford; folio: lands: Moatfarrell; 8951F; 904F, Louth Dundalk, Co Louth; folio: Kilcroney, 3366; lands: Kilcroney; MacNamara, Paul Gerard MacNamara; folio: 9430F; lands: electoral divi- parish of St Patrick’s, sion of Abbey B; Siobhan O’Malley; folio: 32579F; Siobhan O’Malley; folio: and lands: townland of Gouldavoher Pubblebrien; Regd owner: Ailin Cagney; folio: Regd owner: Antoinette Dunne; folio: Regd owner: Patrick and Mary Smith; Regd owner: Michael Govern and Regd owner: John Brynt; folio: 8835; Regd owner: Catherine McGinley; folio: Regd owner: John Coghlan and Kate Regd owner: Mr Richard Culhane, Regd owner: Martin Ayres, Regd owner: Stephen Joyce; folio: 142L; Regd owner: Paul Kenny, Drumnacross, Regd owner: Paul Kenny, Regd owner: Brendan Kieran, Regd owner: Anne Theresa Regd owner: Anne Co Galway Co Galway Co Laois Co Kerry Co Kilkenny Co Limerick Co Dublin Co Kildare Enright; folio: 28011; townland of Corgrig and barony of Shanid; Limerick Fitzgerald; folio: 32987F; lands: townland of Killonan and barony of Clanwilliam; 12429; lands: Darbyshill and barony of Crannagh; 9830F; lands: Coolederry and barony of Portnahinch; Ryevale Lawns, Leixlip, Co Kildare; Ryevale folio: 4115F; lands: townland of Leixlip and barony of North Salt; Kildare Duignan, of site no 3 Oldtown Heights, Sallins Road, Naas, Co Kildare; folio: 26750F; lands: north- west of the Naas/Johnstown Road in the urban district of Naas, being part of the townland of Monread South and barony of Naas North, shown as plan(s) 493M edged red on the reg- istry map (OS map ref(s) 3509/17, 3509/18); 8432; lands: townland of Gortroe and and barony of Knocknagashel West Trughanacmy; DN53019L; lands: property known DN53019L; lands: property in the as 60 Gulistan Cottages, situate district of parish of St Peter, Rathmines; Ballybritt 37675F; lands: townland of and parish of St Nicholas; Galway 9142F; lands: townland of and Cloonavihony and Windfield barony of Killian; 432F; lands: townland of Eighterard and barony of Moycullen; area: 2.0683 hectares; 8519F; lands: townland of Cloghscolta and barony of Galway; Co Galway 56521; lands: townland of Carrowmoneash and barony of Dunkellin; area: 0.7183 hectares; Galway and lands: townland of The Wood barony of Corkaguiny; 21746F; lands: townland of Doonryan and Gortnacarriga and barony of Magunihy; 24556; lands: townland of Shinnagh and barony of Magunihy; Regd owner: John Enright and Bridget Regd owner: Eamon Flynn and Marion Regd owner: Michael Dowling; folio: Regd owner: Matthew Dunne; folio: Regd owner: Treacy Cagney of 57 Regd owner: Treacy Delaney and Declan Regd owner: Tanya Regd owner: Joseph O’Sullivan; folio: Regd owner: Mary MacMahon; folio: Regd owner: Mary MacMahon; folio: Regd owner: Damien Bergin; Regd owner: Michael Conway; folio: Regd owner: Margaret Kelly; folio: Regd owner: Martin Mannion; folio: Regd owner: Brian J O’Higgins; folio: Regd owner: Anne Coles; folio: 42189F; Regd owner: Cornelius Counihan; folio: Regd owner: Patrick Doyle; folio: Co Co Co Co Co Co Dublin Co Dublin Co Dublin Gretta O’Sullivan; folio: DN71140L; lands: property situate in the town- land of Old Orchard and barony of Rathdown; DN3812; lands: property known as no 15 Albert Park, situate on the west side of the said park in the borough of Dun Laoghaire in the townland of Bullock and barony of Rathdown; Dublin undivided half share); folio: DN76453F; lands: property known as 42 Highfield Road, situate in the parish of Rathfarnham and district of Rathmines; property situate in the townland of property situate in the townland Burrow and barony of Nethercross; Co Dublin as 79474L; lands: property known on the flat 21, New Square, situate Row north-west side of New Luke and Square in the parish of St district of South Central; Dublin and Lorraine Conneely; folio: DN130108L; lands: property being apartment 42, Block 2, fourth floor of Belmont Hall, situate at Parnell Street/Middle Gardiner Street in the parish of St George and district of North Central in the city of Dublin; Co Dublin DN87847F; lands: property situate to the north side of the Grand Canal in the town and parish of Clondalkin in the townland of Ballymanaggin and barony of Uppercross; Dublin DN33156L; lands: (1) property situ- ate to the west side of Bayside Boulevard North in the parish of Kilbarrack, district of Howth, (2) property being a garage on the west side of Kilbarrack, district of Howth; Co Dublin Mahon; folio: DN17814; lands: property situate to the east of Sandymount Road in the district of Pembroke and city of Dublin; Dublin and Mona Mavourneen Walsh folio: DN21342F; lands: Walsh; property situate in the townland of Balally and barony of Rathdown; Dublin (one undivided half share); folio: DN76453F; lands: property known as 42 Highfield Road, situate in the parish of Rathfarnham and district of Rathmines; Regd owner: Frank O’Sullivan and Regd owner: Miriam Ryan; folio: Regd owner: Miriam Ryan; Regd owner: Charles Quinlan (one Regd owner: Jane Dever; folio: Regd owner: Jane Dever; Regd owner: Liam Ebbs and Ray Ebbs Regd owner: Patrick Jordan; folio: Regd owner: Joanna Kelly; folio: Regd owner: Elizabeth Charlotte Regd owner: William Arthur St George Regd owner: William Regd owner: Eleanor Marie Quinlan Co Co Co Co JAN/FEB 2008 JAN/FEB Co Dublin Co Cork Co Cork Co Donegal Co Dublin Co Dublin Co Dublin share); folio: DN129336F; Co Cork Co Donegal share); folio: DN64671F; lands: 3 / 3 1 / 1 DN31668L; lands: property situate – Walls to the north side of Yellow Swords Road, in the parish and town of Malahide situate in the townland and barony of Walls of Yellow Coolock; ed Goladoo, Barnesmore, Co Donegal; folio: 448; lands: Corracramph, and Tirhugh; Tawnawully Helen O’Neill; folio: DN39346F; lands: property known as 181 Millbrook Lawns, situate to the east side of the Old Bawn Road in the town and parish of Tallaght; Dublin Buckley; folio: DN85638F; lands: property situate in the townland of Cornelscourt and barony of Rathdown; DN1782; lands: property situate in the townland of Murphystown and barony of Rathdown; Lawell, Loughanure, Annagry, Co Lawell, Loughanure, Annagry, Donegal; folio: 42954F; lands: Loughanure; Donegal Cunningham and Donald Henry Cunningham, Port-a-Carraig, Shroove, Greencastle, Co Donegal; folio: 1918F; lands: townland of Shroove and barony of Inishowen East; lands: plot of ground situate in the lands: plot of ground situate of townland of Cullen and barony Kinalea in the county of Cork; situate to 214F; lands: plot of ground from the east of the road leading the parish Douglas to Monkstown in in the and town of Passage West county of cork; situate in 4374; lands: plot of ground and the townland of Ballysimon county of barony of Duhallow in the Cork; Cork Cork (1) Barretts, (2) Barrymore, in the (1) Barretts, county of Cork; 31697F; lands: plot O’Sullivan; folio: in the townland of of ground situate barony of Muskerry Dromanallig and county of Cork; in the West lands: property situate in the town- land of Burrow and barony of Nethercross; ed www.lawsociety.ie LAW SOCIETY GAZETTE Regd owner: Seamus J Cullen; folio: Regd owner: Mary Clarke (one undivid- Regd owner: James Patrick Martin, Regd owner: Christopher Boyle and Regd owner: Kevin Buckley and Aine Regd owner: Maureen Butler; folio: Regd downer: Sean Lawell and Deirdre Regd owner: Eileen Veronica Regd owner: Liam Webb; folio: 461F; Regd owner: Liam Webb; folio: Regd owner: Aileen Gilleran; folio: Regd owner: Patrick O’Regan; Regd owner: John O’Sullivan and Joan Regd owner: Regd owner: Mary Clarke (one undivid-

PROFESSIONAL NOTICES 68 PROFESSIONAL NOTICES LAW SOCIETY GAZETTE JAN/FEB 2008

Regd owner: Thomas Hogan; folio: townland of Shanballyedmond and knowledge of a will made by the above- O’Donnell, Mary (deceased), late of 3 1210F; lands: Gortarevan and barony barony of Owney and Arra; Co mentioned deceased please contact Carrigeen Park, Waterford City. Would of Garrycastle; Co Offaly Tipperary Gartlan Winters, Solicitors, 56 Lower any person having knowledge of the Regd owner: Peter Lyons; folio: 8252; Regd owner: John F Halpin (deceased); Dorset Street, Dublin 1; tel: 01 855 whereabouts of any next of kin of the lands: Raheenglass and barony of folio: 3096L; lands: plot of ground 7434, fax: 01 855 1075, email: above-named deceased please contact Eglish; Co Offaly situate in the townland of [email protected] Gerard Halley, MM Halley & Son, Regd owner: Maurice O’Regan and Ballythomas and barony of Solicitors, 5 George’s Street, Waterford; Mary O’Regan, 3 St Mary’s Road, Upperthird in the county of McNamara, Nicholas (orse tel: 051 874 073 Edenderry, Co Offaly; folio: 10823; Waterford; Co Waterford Raymond) (deceased), late of 21 lands: part of the lands of Edenderry Regd owner: Laurence Hackett, Meadowcourt, Clane, Co Kildare, wid- O’Neill, Richard (deceased), late of in the barony of Coolestown, proper- Castletowngeoghegan, Co ower, who died on 9 March 2007 at 21 Douglas Nursing Home and formerly ty known as 3 St Mary’s Road, Westmeath; folio: 2360; lands: Meadowcourt, Clane, Co Kildare. Killacloyne, Carrigtwohill, Co Cork, Edenderry, Co Offaly; Co Offaly Castletown; Co Westmeath Would any person having knowledge of retired farmer, who died on 3 Regd owner: Padraig Gribben; folio: Regd owner: James Foley; folio: 22612; a will made by the above-mentioned November 2007. Would any person 13043; lands: townland of lands: Saintkiernans and barony of deceased please contact Patricia having knowledge of a will made by the Barnacawley and barony of Shelburne; Co Wexford O’Donnell, solicitor, unit 6, College above-mentioned deceased please con- Frenchpark; area: 4.3579 hectares; Regd owner: Christopher Galvin; folio: Way, Kilcock Road, Clane, Co Kildare; tact Eoin C Daly & Co, Solicitors, 38 Co Roscommon 17965; lands: Borehovel and barony tel: 045 861 114, fax: 045 868 147, South Mall, Cork; tel: 021 427 5244, Regd owner: John Nevin; folio: 1727F; of Ballaghkeen North; Co Wexford email: [email protected] fax: 021 247 5243 lands: townland of Lack and Kilbarry Regd owner: William and Catherine and barony of Ballintober North; Co Quaid; folio: 11404F; lands: Killelan Maher, Patricia (deceased), late of 20 O’Shea, Joseph (deceased), Roscommon and barony of Ballaghkeen South; Beauvale Park, Artane, Dublin 5, who Mountfead, Mountrath, Co Laois, Regd owner: Michael Kenoy and Anna Co Wexford died on 27 October 2006. Would any who died on 12 February 2000; May Kenoy; folio: 14542; lands: Regd owner: Daniel Quigley and Eileen person having knowledge of the where- O’Shea, Thomas (deceased), townland of Mullaghmore and Quigley; folio: 9689; lands: Donard abouts of the will dated 7 May 1997 Mountfead, Mountrath, Co Laois, barony of Boyle; area: 16.1166 and barony of Bantry; Co Wexford made by the deceased please contact who died on 16 March 2001; O’Shea, hectares; Co Roscommon Regd owner: Hazel Douglas, Cherrylin, Niall Gaffney, Gaffney Halligan & Co, Thomas (deceased), Mountfead, Regd owner: John Farrell; folio: 13266; Quill Road, Kilmacanogue, Co Solicitors, Artane Roundabout, Mountrath, Co Laois, who died on lands: townland of Newtown Wicklow; folio: 6541; lands: town- Malahide Road, Artane, Dublin 5; tel: 27 February 1961. Would any person Farragher and barony of Ballymor; land of Kilmacanogue South and 01 831 2470, fax: 01 831 5726 having knowledge of any will made by area: 13.3290 hectares; Co barony of Rathdown; Co Wicklow any of the above-named deceased Roscommon Regd owner: Angela Ford and Devin Martin, Anne (deceased), late of 46 please contact Cahill & Company, Regd owner: Garrett Carter; folio: Ford of The Dew Inn, Glenealy, Co O’Daly Road, Drumcondra, Dublin 9, Solicitors, Abbeyleix, Co Laois; 18216F; lands: townland of Lecarrow Wicklow; folio: 9736F; lands: town- who died on 13 October 2007. Would tel: 057 873 1246/873 1220, fax: 057 and barony of Carbury; area: 0.2960 land of Coolnakilly and barony of any person having knowledge of a will 873 1480 hectares; Co Sligo Newcastle; Co Wicklow made by the above-named deceased Regd owner: Mary Herbert; folio: Regd owner: Joseph McMahon; folio: please contact Maguire McClafferty, Quigley, Mary (deceased), late of 178 1944F; lands: townland of Muckduff 1431F; lands: situate in the townland Solicitors, 8 Ontario Terrace, Portobello Collins Avenue East, Donnycarney, and barony of Tireragh; Co Sligo of Ballinacarrig Upper in the barony Bridge, Dublin 6; tel: 01 491 0010, fax: Dublin 5. Would any person having Regd owner: Maureen Scanlan; folio: of Ballinacor North and county of 01 491 0011, email: solicitors@ knowledge of a will being made by the 20021; lands: townland of Wicklow; Co Wicklow maguiremclafferty.ie above-named deceased, who died 14 Knockmoynagh, Kilcreevin and Regd owner: Charles Philip Walker, November 2007, please contact Newpark and barony of Corran; Co Ballinglen, Arklow, Co Wicklow; Neligan, Winifred (deceased), late of O’Leary Maher, Solicitors, 191 Howth Sligo folio: 1057F; lands: townland of 43 Lennox Street, Dublin 8. Would any Road, Killester, Dublin 3; tel: 01 833 Regd owner: Michael and Joan Hally, Ballinglen and barony of Ballinacor person having knowledge of a will made 1900, fax: 01 833 4991 Middlequarter, Newcastle, Clonmel; South; Co Wicklow by the above-named deceased, who died folio: 31774; lands: townland of on 1 December 2007, please contact Sheridan, Eugene (deceased), late of Middlequarter and barony of Iffa and Michael J Kennedy & Co, Solicitors, 50 Beaumont Drive, Churchtown, Offa West; Co Tipperary WILLS Parochial House, Baldoyle, Dublin 13; Dublin 14, retired telecom supervisor, Regd owner: John Moylan; folio: 12476; tel: 01 832 0230, email: info@mjksolici- who died on 1 April 2006. Would any lands: townland of Ballycrine and tors.ie person having knowledge of a will made barony of Ikerrin; Co Tipperary Glacken, Mary (deceased), late of by the above-mentioned deceased Regd owner: Patrick Mullally; folio: Glackenstown, Wilkinstown, Navan, O’Connor, Denis (deceased), late of please contact Stephenson, Solicitors, 15885F (part 9105); lands: townland Co Meath, who died on 25 September Tominearly, Clonroche, Enniscorthy, 55 Carysfort Avenue, Blackrock, Co of Gortnasculloge and barony of 2007 at Glackenstown, Wilkinstown, Co Wexford. Would any person having Dublin; tel: 01 275 6759, email: Slievardagh; Co Tipperary Navan, Co Meath. Personal representa- knowledge of a will executed by the [email protected] Regd owner: Patrick and Anne Ryan; tive: John Glacken. Would any person above-named deceased, who died on 28 folio: 2687F; lands: townland of having knowledge of a will made by the October 2007, please contact Messrs Walsh, Maureen (deceased), late of 4 Tullow and barony of Owney and above-named deceased please contact Peter G Crean & Co, Solicitors, Mill St Kinnith’s View, Athboy Road, Arra; Co Tipperary Oliver Shanley & Co, Solicitors, 62-63 Wood, Carrigduff, Bunclody, Co Ballivor, Co Meath (formerly of 3 Regd owner: James Morrissey; folio: 36 Academy Street, Navan, Co Meath; tel: Wexford Larkfield Avenue, Dublin 6, and 5 Co Tipperary; lands: townland of 046 909 3200, fax: 046 902 9937 Maple Wood, Tallaght, Co Dublin), Lisnamoe and barony of Upper O’Connor, Patrick (deceased), late of who died on 27 September 2007. Ormond; Co Tipperary Hoban, Margaret (widow) 21a Coolgreaney Road, Arklow, Co Would any person having knowledge of Regd owner: Timothy O’Neill and (deceased), late of Alzheimer’s Care Wicklow. Would any person having a will made by the above-named Mary O’Neill; folio: 36491; lands: Centre, Highfield Hospital, Swords knowledge of the whereabouts of a will deceased please contact Brady & Co, townland of Newport and barony of Road, Whitehall, Dublin 9, and former- made by the above-named deceased, Solicitors, High Street, Trim, Co Owney and Arra; Co Tipperary ly of 2 Russell Avenue, Jones’s Road, who died on 13 January 2007, please Meath; tel: 046 943 1034, fax: 046 943 Regd owner: John Carey, Sheila Carey, Drumcondra, Dublin 9, who died on 26 contact Cooke & Kinsella, Solicitors, 6693, email: philbradysolicitors@ Teresa Carey; folio: 24404F; lands: June 2003. Would any person having Wexford Road, Co Wicklow eircom.net

www.lawsociety.ie 69 : an and in and in the Landlord and Landlord Landlord and Tenant Landlord and Tenant Landlord Take notice that the applicant intends notice that the applicant Take In default of any such notice being matter of the matter of the (No 2) Act 1978 (Ground Rents) by Gregory Barry, application O’Connor Elizabeth Jordan, Joan Schedule: 89 and and Anne Barry. 4 89A Sandymount Road, Dublin having an notice that any person Take of the interest in the freehold estate here- property described in the schedule to (the premises). the county to submit an application to for the registrar for the city of Dublin interest in acquisition of the freehold asserting the premises, and any parties in the that they hold a superior interest are called premises (or any of them) title to the upon to furnish evidence of premises to the below named within 21 days from the date of this notice. received, the applicant intends to pro- ceed with the application before the county registrar at the end of 21 days from the date of this notice and will apply to the county registrar for the city 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 reversion in each of the premises are unknown or unascertained. Date: 1 February 2008 Signed: Daly Lynch Crowe & Morris (solic- itors for the applicant), The Corn Exchange, Dublin 2 Burgh Quay, In the matter of the Acts 1967-1994 Tenant matter of the (Ground Rents) (No 2) Act 1978 the matter of an application by Rialto Foodmarket Limited and in the mat- ter of the properties known as num- bers 455 and 457 South Circular Road (formerly known as numbers 155 and 157 respectively), Rialto, Dublin 8, in the city of Dublin notice that any person having an Take interest in the freehold estate or any intermediate interests in the properties known as numbers 455 and 457 (for- merly known as numbers 155 and 157) South Circular Road, Rialto, in the city of Dublin held as follows: (a) as to 455 (formerly 155) South Circular Road, Rialto, Dublin 8, in the city of Dublin, held under indenture of lease dated 3 February 1936, made between James Stewart of the one part and Henry Rudge of the other part (hereinafter called the ‘Rudge lease’) for the term of 500 years from 5 October 1933 at a yearly rent of IR£20, subject to the covenants and conditions therein con- tained; and (b) as to 457 (formerly 157) South Circular Road, Rialto, Dublin 8, in the city of Dublin, held under inden- ture of lease dated 28 February 1936 and made between James Stewart of the and in 125k € situate at and in the and in the Landlord and Landlord and Landlord Landlord and Tenant Landlord Take noticeTake that Charles O’Neill, In default of any such notice being Storage unit for sale Storage unit 8; Street, Dublin James’s – long lease, fully fitted plus VAT or out. Email: [email protected] tel: 087 263 2909 Tenant Acts 1967-2005 Tenant matter of the 1978 (Ground Rents) (No 2) Act by the matter of an application Noble, Charles O’Neill, Michael Conor Clarkson and Freida O’Neill Any person estate or having a freehold any intermediate interest in all that and those piece or parcel of ground with the house and premises thereon, formerly known as Struanhill but now known as Colmcille, together with the gate lodge and stable, coach house and garage thereon, situate at Delgany in the coun- (hereinafter referred to as ty of Wicklow ‘the property’), being the lands com- prised in a certain indenture of lease dated 21 October 1946 between Eileen O’Donnell of the one part and James S Edge of the other part for a term of 890 years from 25a yearly March 1946 at rent of £39.4s.3d. Michael Noble, Conor Clarkson and Freida O’Neill, being the persons cur- rently entitled to the lessees’ interests in intend to apply to the the property, county registrar for the county of of the free- for the acquisition Wicklow hold interest and all intermediate inter- and any party ests in the property, asserting that they hold a superior inter- est in the property is called upon to fur- nish evidence of title to same to the below named within 21 days from the date of this notice. received, the said Charles O’Neill, Michael Noble, Conor Clarkson and Freida O’Neill intend to proceed with the application before the county regis- trar at the end of 21 days from the date of this notice and will apply to the coun- ty registrar for the county of Wicklow for directions as may be appropriate on the basis that the person or persons ben- eficially entitled to the superior interests including the freehold reversion in each of the aforesaid premises are unknown or unascertained. Date: 1 February 2008 Signed: O’Sullivan & Associates (solicitors for the applicants), 10 Herbert Street, Dublin 2 In the matter of the Acts 1967-1994 Tenant In the matter of the 450 € TITLE DEEDS law agents, law 250 each. All in work- € box no 11/08 Four transcriber tape units with Branch office client list for Branch office sale, Donabate/Swords area The well-established branch office, client list (and, if required, existing lease on favourable terms in well-established location) of a Dublin city centre solicitors firm is for sale. Might suit start-up practice or as a ‘bolt on’ to existing practice in the area. Apply in con- fidence to handheld microphones; three typist units headphones, foot pedal and play- ers; one Olympus handheld recorder; one remote control handheld micro- Usual price phone with speaker. Articles for sale: dictaphone machines (tape). each, will sell for due to transfer to digi- Selling ing order. tal. Contact John on tel: 086 366 7412 & Co, Ashford Temple researchers and investigators. Usual range of services provided. Specialist investigations in most areas of civil and company law matters, including obtain- All assign- ing evidence as necessary. ments undertaken and or validated by legal personnel. 29 Buckingham Village, Dublin 1; tel/fax: 01 855 4844, mobile: 087 278 0467, email: thomaspphelan@ eircom.net Grand Canal Docks office available. Grand Canal Docks office Solicitor with 1,500 square feet of space has two offices available for office share arrangement in new Grand Canal Docks area behind Ove Arup Building. The unit faces the waterfront with natu- two space includes ral light. Available offices and shared use of part of an open-plan area. The offices are modern and built to the latest specifications with a phone system and internet connection already in place. Might suit sole practi- tioner with support staff. Contact Donal; mobile: 087 230 8408 – is your JAN/FEB 2008 JAN/FEB will be pleased to overheads? too busy? overworked? clients without increasing Caroline O’Reilly BCL, Dip Short term, temporary, project Short term, temporary, ARE YOU: under pressure? DO YOU: need help to clear broader services to existing a backlog and/or to provide or consultancy basis. Confiden- tiality guaranteed. E Comm. Email: info@oreilly legal.ie, mobile: +353 87 051 6526, tel/fax: +353 1 849 4226 Experienced, reputable solicitor with own practising certificate and insurance available to undertake litigation, commercial, employ- ment and family law work for solicitors’ firms. MISCELLANEOUS London solicitors advise on UK matters and undertake handle probate, litiga- agency work. We tion, property and company/commer- cial. Parfitt Cresswell, 567/569 Fulham Road, London SW6 1EU; DX 83800 Fulham Broadway; tel: 0044 2073 818311, fax: 0044 2073 814044, email: [email protected] English qualified solicitors client buying or selling property in the hold cur- UK or Northern Ireland? We rent practicing certificates and insurance in the three jurisdictions of Ireland, N large volumes Ireland and the UK. With of Irish clients buying property in the UK, we can act as agent or take matter on referral. Contact Catherine Allison & Co, 6 Roden Place, Dundalk, Co Louth, at tel: 042 932 0854 or email: [email protected] www.lawsociety.ie LAW SOCIETY GAZETTE

PROFESSIONAL NOTICES 70 PROFESSIONAL NOTICES LAW SOCIETY GAZETTE JAN/FEB 2008

superior interest in the property known Publication of advertisements in this section is on a fee basis and does not SOLICITORS as all that and those the premises and represent an endorsement by the Law Society of Ireland. dwellinghouse erected thereon, situate RETIRING, at Croughtamore in the parish of St UNITED STATES LAWYERS DUBLIN: Finbarr, barony of Cork and county of Kleeman, Abloeser & DiGiovanni, P.C. is a prominent Established Practice Cork, and commonly known as U.S. law firm that specializes in providing the following ‘Antoni’, no 47 St Finbarr’s Park, Cork, wishes to talk to Solicitors legal services in the United States: being part of the hereditaments and thinking of retirement 1 Travel law: Representing foreign visitors seriously premises comprised in and demised by with a view to an injured in the United States an indenture of lease dated 25 2 Personal injury litigation in the United States outright or phased November 1936 between Kennedy take-over of their case O’Callaghan, William O’Callaghan, Contact Michael Kleeman, Esq., at load/clientele James Power and Joseph Power of the (toll free) 00-800-221-56970 or by Reply in confidence one part and Joseph Kennedy of the e-mail at [email protected] to Finnian G. Doyle of other part for a term of 74 years from 25 For more information about our law firm visit Doyle & Co. March 1937 (except the last day there- our website at www.kleemanlawfirm.com 123 Cabra Road, of), subject to the yearly rent of one Dublin 7. shilling and to the covenants and condi- O’Callaghan and William O’Callaghan Chapelizod, barony of Castleknock and Tel: 0l-838 3388 or tions on the part of the lessee therein of the one part and Hannah Callan of city of Dublin, held by the applicant [email protected] contained. the other part for a term of 74 years under an indenture of lease dated 9 Take notice that Joseph Kennedy from 25 March 1937 (except the last day December 1694 and made between Sir intends to submit an application to the thereof), subject to the yearly rent of John Temple of the one part and one part and Margaret L Stewart of the county registrar for the city of Cork for one shilling and to the covenants and Richard Winstanley of the other part other part (hereinafter called ‘the the acquisition of the freehold interest conditions on the part of the lessee for a term of 500 years from 30 Stewart lease’) for the term of 500 years and any intermediary interest in the therein contained. September 1694. from 1 October 1933, subject to yearly aforementioned property, and any party Take notice that Thomas Declan Take notice that James P Mulroy of 1 rent of IR£20 and also subject to the or parties asserting that they hold a Callan and Elizabeth Callan intend to Matson Lodge, Ballymakenny Road, covenants and conditions therein con- superior interest in the aforesaid prop- submit an application to the county reg- Drogheda, in the county of Louth, tained. erty are called upon to furnish evidence istrar for the city of Cork for the acqui- intends to submit an application to the Take notice that Rialto Foodmarket of title in the aforementioned property sition of the freehold interest and any county registrar for the city of Dublin Limited intends to submit an applica- to the below named within 21 days of intermediary interest in the aforemen- for the acquisition of the freehold inter- tion to the county registrar for the the date of this notice. tioned property, and any party or parties est in the aforesaid property and that county of Dublin at Áras Uí Dhálaigh, In default of any such notice being asserting that they hold a superior inter- any party asserting that they hold a Inns Quay, Dublin 7, for the acquisition received, Joseph Kennedy intends to est in the aforesaid property are called superior interest in the aforesaid prop- of the intermediate interests in the proceed with the application before the upon to furnish evidence of title in the erty are called upon to furnish evidence aforesaid properties, and any parties county registrar at the end of the 21 aforementioned property to the below of their title to the aforementioned asserting that they hold the fee simple days from the date of this notice and will named within 21 days of the date of this premises, through the solicitors for the or any intermediate interests in the apply to the county registrar for the city notice. applicant named below, within 21 days aforesaid properties are called upon to of Cork as may be appropriate on the In default of any such notice being from the date of this notice. furnish evidence of title to the said basis that the person or persons benefi- received, Thomas Declan Callan and In default of such notice being properties to the below-named solicitor cially entitled to the superior interest Elizabeth Callan intend to proceed with received, the applicant, James P Mulroy, within 21 days from the date of this including the freehold reversion in the the application before the county regis- intends to proceed with the application notice. aforesaid premises are unknown or trar at the end of the 21 days from the before the county registrar for the city In default of any such notice being unascertained. date of this notice and will apply to the of Dublin at the end of 21 days from the received, Rialto Foodmarket Limited Date: 1 February 2008 county registrar for the city of Cork as date of this notice and shall apply to the intends to proceed with the application Signed: John Henchion & Co (solicitors for may be appropriate on the basis that the county registrar for the city of Dublin before the county registrar at the end of the applicant), The Bakehouse, Waterloo person or persons beneficially entitled for directions as may be appropriate on 21 days from the date of this notice and Road, Blarney, Co Cork to the superior interest including the the basis that the person or persons ben- will apply to the county registrar for the freehold reversion in the aforesaid eficially entitled to the superior interest city of Dublin for directions as may be In the matter of the Landlord and premises are unknown or unascertained. including the freehold interest of the appropriate on the basis that the person Tenant Acts 1967-2005 and in the Date: 1 February 2008 aforesaid property are unknown or or persons beneficially entitled to the matter of the Landlord and Tenant Signed: John Henchion & Co (solicitors for unascertained. intermediate interests, including the fee (Ground Rents) (No 2) Act and in the the applicant), The Bakehouse, Waterloo Date: 1 February 2008 simple in the aforesaid properties, are matter of an application by Thomas Road, Blarney, Co Cork Signed: Donal Branigan & Co (solicitors for unknown or unascertained. Declan Callan and Elizabeth Callan the applicant), 5 Laurence Street, Date: 1 February 2008 and in the matter of the property In the matter of the Landlord and Drogheda, Co Louth Signed: Joseph T Mooney & Company known as no 33 St Finbarr’s Park, Tenant Acts 1967-2004 and in the (solicitors for the applicant), 23 Upper Glasheen Road, Cork matter of the Landlord and Tenant In the matter of the Landlord and Mount Street, Dublin 2 Take notice that any person having an (Ground Rents) (No 2) Act 1978 and in Tenant Acts 1967-1994 and in the interest in the freehold estate or any the matter of the premises known as matter of the Landlord and Tenant In the matter of the Landlord and superior interest in the property known 10C Chapelizod, Dublin 20: an (Ground Rents) (No 2) Act 1978 and in Tenant Acts 1967-2005 and in the as all that and those the premises and application by James P Mulroy the matter of the part of the lands matter of the Landlord and Tenant dwellinghouse erected thereon, situate This notice is directed to any person or and premises of Callary in the half (Ground Rents) (No 2) Act and in the at Croughtamore in the parish of St persons having any interest in the free- barony of Rathdown and county of matter of an application by Joseph Finbarr, barony of Cork and county of hold estate of the following property: all Dublin, situate at Deerpark Road, Kennedy and in the matter of the Cork, and commonly known as no 33 St that and those the premises known as Mount Merrion, in the county of property known as ‘Antoni’, no 47 St Finbarr’s Park, Cork, being part of the 10C Chapelizod Road, Dublin 20, pre- Dublin: an application by Flanagan’s Finbarr’s Park, Glasheen Road, Cork hereditaments and premises comprised viously known as the Majestic Cinema of Buncrana Limited Take notice that any person having an in and demised by an indenture of lease and then the Oriel Cinema, situate in All that and those that piece or plot of interest in the freehold estate or any dated 14 May 1938, between Kennedy the village of Chapelizod, parish of ground being part of the lands of Mount

www.lawsociety.ie 71 and in and in the Landlord and Landlord Landlord and Tenant Landlord In default of any such notice being In default of any such notice notice that the applicant, John Take In default of any such notice being Company Limited (trading as St Company Limited intends to submit Athletic FC) Patrick’s to the county registrar for an application the city of Dublin for the the county of the freehold interest of the acquisition of and any party aforesaid properties, they hold a superior inter- asserting that premises (or any of est in the aforesaid furnish evi- them) are called upon to dence of the title to the aforementioned solicitors premises to the below-named this notice. within 21 days of the date of Company received, Newtownheath with the Limited intends to proceed registrar at application before the county the date of the end of the 21 days from 27this notice and will apply on February for the 2008 to the county registrar for direc- county of the city of Dublin on the basis tions as may be appropriate beneficially that the person or persons includ- entitled to the superior interest ing the freehold reversion in each of the aforesaid premises are unknown or unascertained. Date: 1 February 2008 Signed: Sheehan & Co (solicitors for the Dublin 2 Street, applicant), 1 Clare In the matter of the Acts 1967-1994 Tenant matter of the (Ground Rents) (No 2) Act 1978 the matter of the property known as the plot of ground at Kilmainham, formerly known as 26-27 Kilmainham Lane: an application by John Ryan of 15 Glenmaroon Road, Palmerstown, Dublin 20 notice that any person having any Take interest in the freehold estate of the fol- lowing property: all that and those the property known as plot of ground at Kilmainham formerly known as 26-27 Kilmainham Lane, in the city of Dublin, held under an indenture of lease dated 24 October 1905 (hereinafter called ‘the lease’) and made between Jane Sophia Joseph Beatty of the first part, William Beatty of the second part and Robert Spendlove and Sarah Ann Spendlove of the third part for a period of 300 years from 29 September 1905, subject to a yearly lease of £20 thereby reserved. intends to submit an application to Ryan, the county registrar for the county/city of Dublin for the acquisition of the free- hold interest in the aforesaid properties, and any party asserting that they hold a superior interest in the aforesaid premis- es (or any of them) are called upon to furnish evidence of title to the aforemen- tioned premises to the below named within 21 days from the dated of this notice. received, the applicant intends to pro- ceed with the application before the county registrar at the end of 21 days , and and in the Landlord and Landlord Landlord and Tenant Landlord Take notice that the applicants, notice Take being In default of any such notice notice that Newtownheath Take Darren Fay and Keith Fay, intend to Keith Fay, Darren Fay and to the county reg- submit an application city of Dublin at Áras Uí istrar for the 7, for the Dublin Quay, Dhálaigh, Inns the freehold interest in the acquisition of party assert- and any aforesaid property, hold a superior interest in ing that they upon to the aforesaid property is called the aforesaid furnish evidence of title to within 21 property to the below named days from the date of this notice. Fay and received, the applicants, Darren to proceed with the intend Keith Fay, registrar application before the county end of the 21 for the city of Dublin at the and will days from the date of this notice for the city apply to the county registrar as may be of Dublin for directions the person appropriate on the basis that to the or persons beneficially entitled the freehold superior interest including reversion in the aforesaid property are unknown and unascertained. Date: 1 February 2008 Signed: Lacey & Associates (solicitors for the Blanchardstown, applicants), Main Street, Dublin 15 In the matter of the Acts 1967-2005 Tenant matter of the (Ground Rents) (No 2) Act 1978 in the matter of an application by Newtonheath Company Limited, at 125 having its registered office Emmett Road, Inchicore, Dublin 8 Athletic (trading as St Patrick’s Football Club) noticeTake any person having any that interest in the freehold or leasehold estate of the following property: all that and those the premises demised by an indenture of lease of 28 February 1958, John made between Sarah O’Reilly, Michael O’Reilly and Mary O’Reilly, Magaharn, as lessors of the one Teresa part, and Martin Dunne, Joseph Cronin, Bartholomew Cummins, and Denis as lessees of the other part, and Ward, therein described as known as all that and those that piece or plot of ground situate on the east side of certain lands then in the occupation of the lessees and known as Richmond Park, Kilmainham, in the parish of St James, formerly in the barony of Coolock and county of Dublin, but then in the city of Dublin, which said property was more particular- ly shown on the map drawn on the said lease, being a strip of land with a stand erected thereon at Richmond Park, Inchicore, Dublin 8, which said lands were held by the lessors under the said indenture of lease together with other lands from Arthur Hart Guinness under an indenture of lease made on 16 April 1856 between Arthur Hart Guinness as lessor and Anthony Murphy as lessee. : an and in the Landlord and Landlord Landlord and Tenant Landlord Take notice that Tom Ryan and Ann Ryan notice that Tom Take In default of any such notice being 1.27 thereby reserved and the ber 26, Lower Rathmines Road, situate ber 26, Lower of St Sepulchre, parish of in the barony city of Dublin, which are St Kevin and indenture of lease dated 8 held under: (1) made between Hilda December 1953, of the one part and Mina Evelyn Kerr of 885 of the other part for a term Wine September 1953 subject to years from 29 (2) inden- an annual rent of £17.10.00; September ture of head-lease dated 3 Christopher 1841 and made between of the one part and Ralph Edward Wall Frances Nash McDermott and for a term McDermott of the other part 1841, sub- of 1000 years from 25 March should ject to the yearly rent of £7.03.0, to the under- give notice of their interest signed solicitors. intend to submit an application to Ryan county of the the county registrar for the of the city of Dublin for the acquisition intermediate freehold interest and any interests in the aforesaid premises, and any party asserting that they hold a supe- rior interest in the aforesaid premises is called upon to furnish evidence of title to the said premises to the below named within 21 days from the date of the notice. and Ryan received, the applicants, Tom intend to proceed with the Ann Ryan, application before the city registrar at the earliest opportunity and will apply to the county registrar for the county of Dublin for directions as may be appro- priate on the basis that the person or persons beneficially entitled to the supe- rior interest including the freehold reversion to the said premises are unknown or unascertained. Date: 1 February 2008 Collins & Co Collins, Tom Signed: Tom (solicitors for the applicants), 132 Terenure Road North, Dublin 6W In the matter of the Tenant Acts 1967-1994 Tenant matter of the (Ground Rents) (No 2) Act 1978 application by Darren Fay of 2 Blackwood Close, Ongar Chase, and Keith Fay of 8 Dublin15, Ongar, Mount Symon, The Rise, Clonsilla, Dublin 15 notice that any persons having an Take interest in the freehold estate or any superior interest in the property known as ‘Clonad’, 1 College Road, Castleknock, Dublin 15, being the prop- erty demised by indenture of lease dated 4 August 1967 and made between Gallagher Group Limited of the first second part Keaney of the part, Terence Marie Gaynor of the third and Virginia part for a term of 900 years from 25 March 1965, subject to the yearly rent of € covenants on the part of the lessee and conditions therein contained. :an , intends and in the JAN/FEB 2008 JAN/FEB Landlord and Landlord Landlord and Tenant Landlord Landlord and Tenant Landlord In default of any such notice being Take notice that the applicants, Take to submit an application to the county registrar for the county of Dublin for the acquisition of the freehold interest and any intermediate interest in the aforesaid and any party asserting that property, they hold a superior interest in the said aforesaid premises or any of them are called upon to furnish evidence of title to the aforementioned premises to the below named within 21 days from the date of this notice. of Buncrana received, the said Flanagan’s Limited 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 county reg- istrar for the county of Dublin for such directions as may be appropriate on the basis that the person or person benefi- cially entitled to the superior interest including the freehold reversion in the aforesaid premises are unknown or are unascertained. Date: 1 February 2008 Signed: CS Kelly & Co (solicitors for the applicant), Market House, Buncrana, Co Donegal In the matter of the Acts 1967-1994 Tenant matter of the (Ground Rents) (No 2) Act 1978 Ryan and Ann application by Tom Grove, Terenure, Ryan of 12 Wasdale Dublin 6 notice that any person having an Take interest in the freehold or any superior interest in the property known as num- (Ground Rents) (No 2) Act 1978 Merrion, otherwise Callary, situate in the Callary, Merrion, otherwise Rathdown and county of half barony of the cinema or theatre and Dublin, with thereon, which premises offices erected delineated, measured (be are particularly or less) and described on the same more drawn on these presents the map or plan edged red together with and are thereon lessors and the right in common with the similar right all other persons having a resorting (including all persons lawfully and for to the said premises) at all times or with all purposes whether on foot to pass horses, carts, carriages or motors the road or and repass over and along premises avenue adjoining the said not intend- (which said road or avenue is and all other ed to be hereby demised) communi- roads or avenues of the lessors called ‘the cating therewith (hereinafter to The premises’), which were demised for a term of Deerpark Cinema Limited subject 250 years from 25 March 1953, to the yearly rent of stg£435 and subject to the covenants and conditions therein contained on the part of the lessee to be observed and performed. of Buncrana Limited, being Flanagan’s the lessee entitled under sections 8, 9 and 10 of the www.lawsociety.ie LAW SOCIETY GAZETTE

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from the date of this notice and will they hold a superior interest in the RECRUITMENT apply to the county registrar for the aforesaid premises, which may have NOTICE TO THOSE county/city of Dublin for directions as formed part of a trust known as the PLACING RECRUITMENT may be appropriate on the basis that the Burton Estate Trust, are called upon to ADVERTISEMENTS IN THE person or persons beneficially entitled furnish evidence of title to the afore- LAW SOCIETY GAZETTE SOLICITORS’ LOCUM to the superior interest including the mentioned premises to the below Please note that, as and from the SERVICE freehold reversion in the aforesaid named within 21 days from the date of August/September 2006 issue of Solicitor with extensive experi- premises are unknown or unascertained. this notice. the Law Society Gazette, ence will consider contracts (both Date: 1 February 2008 In default of any such notice being NO recruitment advertisements short and long term) in Galway Signed: McGonagle Solicitors (solicitors for received, the said applicants intend to will be published that include (city and county), Clare, Mayo, the applicant), 13 Upper Ormond Quay, proceed with the application before the references to years of post- Limerick and North Tipperary qualification experience (PQE). Dublin 7 county registrar at the end of 21 days areas. Fully computer literate. from the date of this notice and will The Gazette Editorial Board has Full CV and references available. In the matter of the Landlord and apply to the county registrar for the city taken this decision based on legal Contact: Denise Ryan, Seawood Tenant Acts 1967-1994 and in the of Dublin for directions as may be advice, which indicates that such House, Mountscribe, Kinvara, matter of the Landlord and Tenant appropriate on the basis that the person references may be in breach of Co Galway; email: oscarbana- (Ground Rents) (No 2) Act 1978: an or persons beneficially entitled to the the Employment Equality Acts [email protected], mobile: 087 application by Sheila Angela superior interest including the freehold 1998 and 2004. 240 9750, tel: 091 638922 O’Byrne, Marianne Clegg, Davinia reversion in the aforesaid premises are Wilson, Edward O’Byrne, Sheelagh unknown or unascertained. O’Byrne, Daniel O’Byrne, Kevin Date: 1 February 2008 undersigned solicitors. Gore & Grimes solicitors are seeking O’Byrne and Clodagh O’Byrne (‘the Signed: Matheson Ormsby Prentice (solici- Take notice that the applicants, to recruit commercial solicitors with said applicants’) tors for the applicants), 70 Sir John Christopher Garry and Geraldine Garry, experience in the areas of M&A, pri- Take notice any person having an inter- Rogersons Quay, Dublin 2; ref: intend to apply to the county registrar vate equity and general commercial est in the freehold estate of the following BDO/ck/647475/2 for the city of Dublin for the acquisition matters. Successful applicants will be property: all that and those part of the of the freehold interest and all interme- required to advise generally on and to premises demised by lease dated 17 In the matter of the Landlord and diate interests in the above-mentioned draft commercial agreements, terms March 1880 between William Tenant Acts 1967-1994 and in the property, and any party asserting that and conditions etc. We are seeking Fitzwilliam Burton and Robert B Close, matter of the Landlord and Tenant they hold an interest superior to the strong individuals with excellent com- one part, and Edward Melia, other part, (Ground Rents) (No 2) Act 1978 and in applicants in the aforesaid property are munication skills and the necessary therein described as “all that and those the matter of premises situate at 6/7 called upon to furnish evidence of title to experience. Please send applications to part of the lands of Clondalkin marked Granby Place in the parish of St same to the below-named solicitors Brian O’Neill, Gore & Grimes, by twenty four on the estate map situate in Mary and city of Dublin: an applica- within 21 days from the date hereof. email: [email protected] the barony of Uppercross and county of tion by Christopher Garry and In default of any such notice being Dublin containing … twenty six perches Geraldine Garry received, the applicants intend to pro- Part-time locum solicitor required late Irish Plantation measure or there- Take notice that any person having any ceed with the application before the for Galway city centre general practice abouts now lately in the occupation of interest in the freehold estate of, or any county registrar at the end of 21 days from end of February to October 2008. James Donough with the dwellinghouse superior or intermediate interest in, the from the date of this notice and will Experience in conveyancing and pro- thereto belonging or usually enjoyed hereditaments and premises situate at apply to the county registrar for the city bate essential. Please reply to therewith”, and thereunder held for one 29 Asgard Park in the townland of of Dublin for such directions as may be [email protected] or Emerson & year from 21 September 1879 and Howth, barony of Coolock and county appropriate on the basis that the person Conway, Solicitors, 1 St Francis Street, thereafter from year to year. of Dublin (which said premises held or persons beneficially entitled to such Galway Take notice that the said applicants under an indenture of lease dated 26 superior interest, including the freehold intend to submit an application to the July 1974 made between Michael reversion, in the aforementioned prop- Locum solicitor: general practitioner county registrar for the city of Dublin Murray & Company Limited of the one erty are unknown or unascertained. experienced in all areas of law willing to for the acquisition of the freehold inter- part and Christopher Garry of the other Date: 1 February 2008 assist in busy solicitor’s firm on a full- est in portion of the aforesaid property, part for a term of 500 years from 25 Signed: Sheehan & Co (solicitors for the time or part-time basis. Reply to box and any party or parties asserting that March 1961), should give notice to the applicant), 1 Clare Street, Dublin 2 no 10/08 FREE LOCUM FREE EMPLOYMENT RECRUITMENT RECRUITMENT REGISTER REGISTER For Law Society members seeking a position as a For Law Society members to advertise for all their locum solicitor or seeking to employ a locum solicitor. legal staff requirements, not just qualified solicitors.

Log onto the new self-maintained locum recruitment register on the Log onto the new expanded employment recruitment register on members’ area of the Law Society website, www.lawsociety.ie, or the members’ area of the Law Society website, www.lawsociety.ie, contact Trina Murphy, recruitment or contact Trina Murphy, recruitment administrator, at the Law Society’s administrator, at the Law Society’s Cork office, tel: 021 422 6203 or Cork office, tel: 021 422 6203 or email: [email protected] email: [email protected]

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