LAW SOCIETY GAZETTELAW 101 No 3 • Vol April 2007 LAW SOCIETY Gazette€3.75 April 2007 ASBOs:ASBOs: Law Society of Ireland More trouble than they’re worth? INSIDE: COSTS REPORT REACTION • CRIMINAL JUSTICE BILL 2007 • EMPLOYEE MANAGEMENT • YOUR LETTERS How can I reduce my research time whilst ensuring the sources I need are the most accurate and Q:authoritative available? LexisNexis® Butterworths Online A: Be confident that the legislation, case law and procedures you are searching originate from the most reliable and up-to-date sources. LexisNexis® Butterworths Online Service gives you immediate access to the most in-depth and trusted library of content, including: Halsbury’s Law, All England Law Reports, Stone’s Justices’ Manual, Civil Court Practice and EF&P. For further information, please call Gary Harkin on +44 (0)28 9185 9095 or e-mail [email protected] 0307-015 LM/DC © LexisNexis Butterworths 2007 0307-015 Gazette Ireland.indd 2 6/3/07 2:52:09 pm LAW SOCIETY GAZETTE APRIL 2007 CONTENTS On the cover LAW SOCIETY ASBOs are now here. But is there a possibility that, if not carefully applied, they could they lead to unjust convictions or hinder a person’s right to a Gazette fair trial? PIC: GETTY IMAGES April 2007 Volume 101, number 3 Subscriptions: €57 REGULARS 4 President’s message 7 News Comment 12 12 Letters 14 Viewpoint: Criminal Justice Bill – the Gazette debate continues Analysis 16 16 News feature: legal costs reform 19 News feature: focusing on client care 20 Human rights watch: therapeutic abortion 8 20 One to watch: Criminal Justice Act 2006 41 People and places Student spotlight 44 They talk the talk Book reviews 45 Principles of Irish Torts, Competition Law and Reflections on Law and History Briefing 48 48 Practice notes 53 Legislation update: 18 January – 20 March 2007 55 Solicitors Disciplinary Tribunal 9 56 Solicitors’ Benevolent Association annual report 57 Firstlaw update 59 Eurlegal: recent developments in European law 59 Professional notices 65 Recruitment advertising Editor: Mark McDermott. Deputy editor: Garrett O’Boyle. Designer: Nuala Redmond. Editorial secretaries: Catherine Kearney, Valerie Farrell. For professional notice rates (lost land certificates, wills, title deeds, employment, miscellaneous), see page 61. 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), Pamela Cassidy, Paula Fallon, Michael Kealey, Mary Keane, Aisling Kelly, Patrick J McGonagle, 44 Ken Murphy, Philip Nolan, William Prentice. 2 www.lawsociety.ie CONTENTS LAW SOCIETY GAZETTE APRIL 2007 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 Society’s details to: IT Section, Blackhall Place, Dublin 7, or to: [email protected] annual conference in Cannes on 11 April Subscribers to the Gazette should send change-of-address details to: • Employment opportunities Gazette Office, Blackhall Place, Dublin 7, or to: [email protected] • 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 Suffer the children Unless the much-heralded new ASBO provisions are used with great discretion, they could lead to unjust convictions or hamper a person’s right to a fair trial. John Noonan reads you your rights Voyage of discovery 28 It is not sufficient for an applicant for discovery to establish that the documents sought are relevant and assume that the court will conclude that they are also necessary. Emily Marie Egan maps the changes On the right track 31 Under 30s – also referred to as ‘Generation Y’ – regard work very differently to their parents’ generation. Adapting to this is no mean feat for any manager, but Paul Davis has the scoop, daddio Saving grace? 28 34 We’re all familiar with the residency requirement for SSIAs – if anyone is not resident in Ireland for more than three years, they lose the benefit of the SSIA uplift. But is this a breach of a person’s right to freedom of movement under EU law? Frank Mitchell grabs his passport Buy and sell 38 Profit maximisation is the watchword of any business, and in relation to property development, this means getting the greatest sale price in totality for a completed development. Mel Ferguson turns the first sod 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 34 www.lawsociety.ie 3 LAW SOCIETY GAZETTE APRIL 2007 PRESIDENT’S MESSAGE Questions raised new legal costs n 1 March last, the Report of the Legal forced to the conclusion that a lot of work needs to Costs Implementation Advisory Group be done. Traditionally, the Society has not (IAG report) was published. The group emphasised the business side of life in practice. This consisted of Desmond Miller as will have to change. Up until now, it has been Ochairman, with Garrett Cooney SC difficult for a solicitor to properly assess what he or (retired), Maurice Curran (solicitor), John Cronin she needs to charge in order to maintain a viable (Department of Justice, Equality and Law Reform), practice and, as a result, inconsistencies have arisen. Brian Evans (chartered accountant), Prof Mary We have to be sure that the cure will not be worse Lambkin (School of Business, UCD) and Noel than the disease. Rubotham (director of reform and development, It is certainly the practice in other professions Courts Service). The report analyses how legal costs that work done is based on daily or hourly rates, should be prepared, assessed and enforced in the and supported by appropriate and vouched future. It has, as a central tenet, the conclusion that documentation. However, there are professions and “solicitors and barristers should be obliged to have occupations that have not adopted this practice. in place a proper system of time-recording and that There is a strong view that, where work is charged bills in relation to legal costs should, as appropriate, for in this way, it will lead to an escalation in costs. be supported by time records”. The report says that it is not possible to determine the extent to which this may occur and the costs Work to do implications. The profession will readily see that, if this practice The present system of adjudication of costs is of charging for one’s services is implemented, it will based on the taxing masters with four support staff, a result in a substantial change in the way many, if not total of six. It is proposed in the new system that a the vast majority, of legal offices operate. It will, of legal costs regulatory body be established, with three course, also have an effect on the way members of of the part-time members appointed by government, the Bar calculate their fees. In the foreword to the together with necessary report staff. They will be report, the chairman expresses the view that “time supported by an appeals adjudicator, two senior recording may be challenging, but we are satisfied assessors, six junior assessors and four clerical that it will lead to greater efficiency and administrative staff. It will be seen, therefore, that transparency”. the new system will call for a radically increased The profession will welcome any steps that can staff. be taken to provide a simplified method of assessing costs, and the goal of greater transparency is an Equality of arms excellent objective in itself. The report does not The IAG has recommended that the regulatory costs state that, as a result of its recommendations, legal body should provide guidelines for costs that would costs are likely to be reduced. There are aspects to be kept up to date, and it recognises the fact that the the report that give rise to concern. practice of taking cases on a ‘no foal, no fee’ basis If we examine our own systems and the way we provides access to justice and that this risk should be educate solicitors in relation to costs, we will be taken into account in the formulation of guidelines. 4 www.lawsociety.ie PRESIDENT’S MESSAGE LAW SOCIETY GAZETTE APRIL 2007 by report In relation to solicitor and client costs, it states that no party will be bound by guidelines and that parties will be free to enter into agreements with their lawyers as they see fit.