LAW SOCIETY
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Acting as a client’s executor
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LAW SOCIETY On the cover LAW SOCIETY Solicitors may occasionally
Gazette€3.75 July 2008 be asked to act as executor to a client’s will. But there are issues to be considered before setting foot in what Gazette might be shark-infested SHARK-INFESTED waters July 2008 WATERS? PIC: GETTY IMAGES
Acting as a client’s executor Volume 102, number 6 INSIDE: BYRNE STRUCK OFF • FYFFES, PART 2 • MENTAL HEALTH TRIBUNALS • ONLINE LEGAL RESOURCES Subscriptions: €57 REGULARS 5 President’s message 7 News Analysis 14 14 News feature: lawyers’ complicity in war crimes 16 News feature: international commercial arbitration conference 18 Human rights watch: victims’ rights and the principles of justice 18 One to watch: Criminal Law (Human Trafficking) Act 2008 11 Comment 21 21 Letters 22 Viewpoint: Is the Criminal Law (Sexual Offences) Act discriminatory? 48 People and places Book review 55 Clinical Practice and the Law (2nd edition) 56 Tech trends Briefing 58 58 Practice notes 61 Legislation update: 21 May – 13 June 2008 51 62 Solicitors’ Disciplinary Tribunal 64 Firstlaw update 66 Eurlegal: Irish competition law 70 Professional notices 73 Recruitment advertising
Editor: Mark McDermott. Deputy editor: Garrett O’Boyle. Designer: Nuala Redmond. Editorial secretaries: Valerie Farrell, Laura Wipfler. For professional notice rates (lost land certificates, wills, title deeds, employment, miscellaneous), see page 71. 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 JULY 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 CPD details to: IT Section, Blackhall Place, Dublin 7, or to: [email protected] Focus Advanced Advocacy Course from Subscribers to the Gazette should send change-of-address details to: 1-5 September 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 Will you, won’t you? What do you do if the issue of you acting personally as executor of your client’s will comes up? Tom Martyn looks at the issues you should consider and the additional responsibilities of the solicitor executor Breaking up is hard to do 28 Advising on and drafting a prenuptial agreement is fraught with difficulty. Ann FitzGerald looks to the Report of the Study Group on Prenuptial Agreements for marriage guidance Terms and conditions apply 32 When it comes to advertising financial products and services, the ‘usual terms and conditions apply’ – but what about the ‘sneaky ones’? Max Barrett peers at the small print It ain’t what you do... 36 Following last month’s article on the Fyffes case and the tests used in assessing whether a particular piece of 32 information is price sensitive, Conor Feeney looks at a bunch of related issues Far from the madding crowd 40 Now that mental health tribunals have been in operation for the past 18 months or so, it might be useful to examine how they are working out in practice and to reflect upon some aspects of their operation, says Gary Lee Going native 44 There has been a dramatic growth in the availability of Irish legal resources on the internet over the past ten years. What’s remarkable is that so many of these are available free to use from primary and authoritative providers. John Furlong breaks out his surfboard
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 44
www.lawsociety.ie 3 LAW SOCIETY OF IRELAND ESSENTIALS OF LEGAL PRACTICE COURSE 2008
Dates: 5th August to 27th August 2008, Intensive in its nature, it will bring professionals up-to-speed (Monday to Friday) in these areas, in a concise, condensed manner during the Venue: The Education Centre, The Law Society of month of August, a time usually reserved for vacation. Ireland, Blackhall Place, Dublin 7 Upon successful completion of this course (and the in- Times: 9.30am to 4.30pm each day office period – up to a maximum of 6 months), barrister Cost: €2,700 per person candidates are eligible to be entered on the Roll of Solicitors. Who Should Apply: - Barristers (with 3 years experience in practice, whose Course Outline: applications have been pre-approved by the Topics to be covered include: Education Committee) who wish to transfer to the 1. Professional Practice, Conduct and Management solicitor’s profession. 2. Solicitors’ Accounts Regulations - Solicitors who have been out of practice for a number 3. Probate and Taxation of years and are seeking to refresh their knowledge, 4. Conveyancing for the purpose of re-entering practice. - Registered European Lawyers and Qualified Lawyers This course will be delivered through a combination of Transfer Test candidates. lectures and tutorial based teaching and learning - Other legally qualified applicants with the prior methodology. Attendance at all elements is mandatory. approval of the Education Committee.
Aim and Objectives: Contact Details:
This course aims to cover the core essentials of legal practice. For further details please call Alison Egan, The Law Society of Ireland, Topics include Professional Conduct, Solicitors’ Accounts Education Department phone :01 672 4802 Regulations, Conveyancing and Probate/Tax modules. email: [email protected] | website www.lawsociety.ie. An té nach bhfuil láidir ní folair dó a bheith glic!
s the Chinese curse goes: ‘May you live in interesting times’. Change in the general economy provokes change in the legal economy. Colleagues, A therefore, have to respond promptly and flexibly to changing circumstances and tailor their practices to suit their personal requirements and market conditions. To that end, the Society, through its Practice Management Task Force, chaired by Philip Joyce, has been hard at work over the last year, conducting research in order to offer guidance to colleagues who however, was securing the talents of Kevin O’Hara, “Hand on wish not only to rise to present challenges, but also to linguist and psychologist, to lead the course. The heart, I have seize the opportunities that change can present. It is feedback was universally enthusiastic and, in his own intended to present this guidance at seminars inimitable fashion, he has instilled in all of us a sense of to say, I am throughout the country, and I would encourage as fun, confidence and responsibility where the language extremely many of you as possible to attend and benefit from the is concerned. hard work and sound thinking of Philip and his team. Kevin also leads the more advanced CPD Certificate proud of the Continuing on the theme of flexibility and creative in Legal Irish course, geared to equip colleagues to imaginative thinking, I want to bring to your attention an exciting practise through Irish. The feedback there is excellent development from the Law School. As you know, by also. 21st century virtue of Bille na nDlí-Chleachtóirí (An Ghaeilge) 2007, I would also like to bring you up to date with course put shortly to be enacted, the compulsory Irish developments in relation to the Legal Services examinations will be abolished. The Society welcomes Ombudsman Bill. The bill has completed its second together by this development and I am personally in no doubt that reading in the Dáil and we are hopeful that it will get our Law the compulsory, but tokenistic, examinations did more priority for its committee stage. It was striking that, at to damage the language than to preserve it. In its the second stage, concern was expressed by a number School” place, the Society is providing legal practice Irish of deputies that section 5(3), as presently drafted, might courses. The first course for the PPCII students permit a former practising lawyer to be appointed as concluded on 19 June 2008. Hand on heart, I have to ombudsman. The Society readily understands those say, I am extremely proud of the imaginative 21st deputies’ concerns and, for our part, we believe that, in century course put together by our Law School, with the interests of transparency and to build public the support of the Department of Community, Rural confidence, the legislation could be improved to make and Gaeltacht Affairs through Fiontar DCU. Fiontar it plain that the ombudsman cannot be a person who is funded by the department to liaise with Foras na has ever practised as a solicitor or barrister. Gaeilge (which has statutory responsibility for the Congratulations of the month go to colleague Ken creation of new terminology in Irish) and Rannóg an Murray, newly-elected mayor of Midleton. Only a Aistriúcháin (who translate primary legislation into heartbeat away... Irish and accordingly have particular expertise on legal Finally, I wish you an enjoyable summer break and terminology matters). Peig Sayers would undoubtedly good luck to those of you who hope to travel to Croke be spinning at double-time if she could see that the Park in September! G Law School’s Moodle technology is now bilingual and that colleagues have an opportunity to improve their James MacGuill Irish online and with podcasts. The pièce de resistance, President
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Send your news to: Law Society Gazette, Blackhall Place, Dublin 7, or email: [email protected]
■ MEATH PIC: BAUMANN AND MURPHY PHOTOGRAPHY non-jury lists to Cork, in A presentation dinner was held addition to the many other recently to honour Judge John sittings of the High Court in Brophy following his retirement Cork.” The reception was after 16 years of sitting in the attended by judges of the Circuit District Court. Presentations Court, senior and junior counsel, were made also to Judge Tom members of the Courts Service Fitzpatrick as the new sitting and SLA members. judge, Judge Brian McMahon Surprisingly for a proud Cork on his elevation to the High man, Pat did not mention either Court bench, and to Mary the Heineken Cup or the epic O’Malley on her appointment as achievements of Niamh Gunn, a The Southern Law Association (SLA) held a formal reception in the lobby the Meath County Registrar. of the courthouse in Washington St recently to mark the first joint visit to Cork lady who recently and the city by Chief Justice John Murray and President of the High Court deservedly made international ■ DUBLIN Richard Johnson. (L to r): SLA President Pat Mullins, Judge Seán Ó headlines for her work on the Donnabháin (Circuit Court), President of the High Court Richard Johnson, I was delighted to represent the Innocence Project, which led to Chief Justice John Murray, Judge Patrick Moran (Circuit Court) and Judge Dublin Solicitors’ Bar Con Murphy (Circuit Court) the release of Walter Swift from Association (DSBA) at a recent prison after 26 years for a crime weekend in Northern Ireland. Justin’s yacht, somewhere in provision of a new court he did not commit. Walter, For many years now, Dublin has Dublin Bay, followed by complex in Wexford town, while Niamh and famous US attorney had a particular relationship with refreshments in the yacht club. planning for the renovation of Barry Scheck are due to visit the both Liverpool and Belfast. Each Now, is that not a pleasant first! New Ross courthouse is Law Society’s HQ on 16 July. year, one bar association hosts a A special meeting of the underway. In the Circuit Court, weekend in their respective DSBA Council took place Helen advises that there are ■ GALWAY jurisdictions. This year it was recently, examining the role of currently three judges sitting in James Seymour tells me that the Belfast’s turn, and we were based the association currently and the south-eastern circuit, with final seminar in the Galway Bar in the Slieve Donard in the into the next decade. It was eight weeks of sittings in Gorey Association spring series, on picturesque maritime village of regarded by all as a very useful in addition to the scheduled examinership (presented by Newcastle, Co Down. Saturday meeting and was well attended. sittings in Wexford. BDO Simpson Xavier) and was spent on a delightful trek Michael Quinlan is putting mediation, was held recently in through the majestic Mourne together a group to look closely ■ CORK the courthouse. This was follow- countryside, followed in the late at all aspects raised. The Southern Law Association ed by a barbecue in O’Connell’s afternoon by a sumptuous (SLA) held a formal reception at pub in Eyre Square. The series reception and a black-tie event. ■ WEXFORD the courthouse in Washington St enjoyed significant support by It will be Liverpool’s turn next Helen Doyle reports of several recently to mark the presence in paid-up members and con- year and I cannot wait to see get-togethers among Wexford the city of Chief Justice John tributed 15 hours of CPD. The what delights await. colleagues. There was a large Murray and President of the association is currently compiling DSBA members are looking attendance at a recent lively and High Court Richard Johnson. its autumn series and would forward to Justin McKenna’s informative practice SLA president Pat Mullins welcome emailed suggestions to next Probate Committee management seminar. As bar officiated. Both judges took the [email protected]. Finally, meeting, including Jennifer association president, Helen and High Court on Circuit sessions James tells me that the GBA day Tuite, Sonya Manzars, Cedric the secretary John Garahy and, at the conclusion, were at the Galway races is scheduled Christie, Finola O’Hanlon and attended a meeting of Co presented with silver letter- for Monday 28 July 2008 and is Anne Stephenson. While the Wexford’s court users’ group. openers engraved to mark the open to all colleagues turgid matters of discretionary Says Helen: “I am delighted to occasion. “This was the first nationwide. The Galway races trusts, de bonis non grants and report that progress has been time that the Chief Justice and would not have been my gig to section 117 of the Succession Act made with the renovations of President of the High Court had date, but now that ‘the tent’ has will, of course, be parsed and Enniscorthy courthouse. This is gone on circuit together outside gone, maybe this year! G considered, the compensations expected to be back in use by the Pale,” said Pat. “I was for Justin’s hard-working early next year, located within delighted on behalf of the SLA ‘Nationwide’ is compiled by Kevin committee is that the meeting the new civic centre.” to thank the President of the O’Higgins, principal of the Dublin takes place on water, courtesy of Work is in hand for the High Court for the delivery of law firm Kevin O’Higgins.
www.lawsociety.ie 7 LAW SOCIETY GAZETTE JULY 2008 NEWS
Client Care Task Force GUIDANCE TO COLLEAGUES: visits local bar associations JUDICIAL PIC: BRIAN GAVIN, PRESS 22 APPOINTMENTS stablished by the then ADVISORY BOARD Epresident Michael Irvine in 2006, the Client Care Task Colleagues are reminded that Force is aimed at encouraging the utmost care should be solicitors’ firms to deliver a more taken in completing the client-focused service, writes application form to the Judicial Thomas Murran (chairman, Client Appointments Advisory Board, Care Task Force). The task force to ensure that all relevant believes that there are significant information is available when benefits to be secured for their application is being individual practices that are assessed. Utmost care should prepared to implement systems be taken to ensure both and procedures designed to At the client care seminar in Ennis on 18 June were (l to r): Thomas accuracy and completeness. Murran (chairman, Client Care Task Force), Linda Kirwan (Law Society), achieve service excellence. Where a particular answer Carol Kelly (secretary, Clare Bar Association), John Glynn (member of the The task force recently Client Care Task Force) and Oliver Hanrahan (Clare Bar Association) requires further detail to be concluded a series of well- properly understood, or to be received client-care seminars PIC: KEN FINEGAN, NEWSPICS seen in its correct context, that around the country, and is now detail should be supplied. offering to provide a ‘slimmed- Where the form itself does not down’ version to any bar provide adequate space, it is associations expressing an perfectly acceptable to provide interest. This is a combined an addendum sheet. opportunity for bar associations Colleagues should ensure to promote seminars at local that applications are kept up to level, for practices to pursue date and that, in particular, excellence in client care, and for their current practising situation the acquisition of CPD points at is correctly reflected in the a convenient venue. (Bar At the seminar in the courthouse in Dundalk on 5 June were (back, l to r): application form. Legal Thomas Murran (chairman, Client Care Task Force), Fergus Mullen and constraints prevent applicants association enquiries to: Emma Frank McDonnell (both members of the Louth Bar Association). (Front, Cooper, 01 672 4800 or l to r): Donal O’Hagan (president of the Louth Bar Association), John Glynn receiving individual feedback. [email protected]). (member of the Client Care Task Force) and Linda Kirwan (Law Society) HLJ celebrates launch of new 7th volume olume 7 of the Hibernian has an annual distribution of VLaw Journal (HLJ) has just approximately 1,500 copies. The been published. The journal was 2007/08 editorial committee officially launched by Mr Justice comprised TP Kennedy Michael Peart on 28 May 2008 (editorial adviser), Nicholas in the Blue Room of the Law Blake-Knox, John-Hugh Society. Articles in this volume Colleran, Sinead Hayes, Avril address the international legal Mangan, Julia Emikh, Emer personality of the European O’Connor, Erika O’Leary, Union – of huge interest, no Maeve Regan, Rosemary Wall, doubt, to all those who engaged Paul Ryan, Alan Burns, Claire in the recent Lisbon Treaty debate At the official launch of the 2007 edition of the Hibernian Law Journal Hirst and Regan O’Driscoll. – international law in respect of were (l to r): TP Kennedy (director of education, Law Society), Copies of the HLJ may be Nicholas Blake-Knox (editor, Arthur Cox), Mr Justice Michael Peart, terror suspects, child law, obtained by contacting any Julie Clarke (Thomson Round Hall) and John-Hugh Colleran (outgoing competition law, the law of editor, A&L Goodbody) member of the editorial insanity, environmental law, committee. Submissions are now commercial law, and other Nicholas Blake-Knox thanked continued support. He congratu- being accepted for the 2008 pertinent issues. Mr Justice Mr Justice Peart and the lated the editorial committee and edition. Further details may be Peart, who wrote the foreword to assembled authors, academic outgoing editor John-Hugh obtained at www.hibernianlaw the current edition, was glowing referees, the Law Society and the Colleran on their year’s work. journal.com or by emailing in his praise of the journal. Editor sponsors of the journal for their The Hibernian Law Journal [email protected].
8 www.lawsociety.ie NEWS LAW SOCIETY GAZETTE JULY 2008 Government announces new ‘Justice for Victims Initiative’ he government has this issue with the various Tannounced a major new agencies.” legislative package for victims The minister said it was his of crime entitled the ‘Justice for intention to have the Victims Initiative’. The legislation published next initiative will include a new spring. This would take Justice for Victims of Crime Bill, account of several to be drafted and presented to recommendations in the 2007 the Oireachtas early in 2009. Report of the Balance in the The bill will contain Criminal Law Review Group, he measures to: concluded. • Reform the victim impact Responding to the statement mechanism in announcement, the Irish order to grant ‘victim status’ Council for Civil Liberties to next-of-kin in homicide said that the changes proposed cases, by the minister “would • Introduce new mechanisms Justice Minister Dermot Ahern diminish the rights of accused to deal with an acquittal people without improving life where compelling evidence Minister for Justice Dermot delivery of services to support for victims of crime. It is a of guilt emerges after the Ahern said that the package victims,” he said. fallacy that taking liberties acquittal, would also include the “It is my intention to accept from accused persons can • Enable cases to be reopened establishment of a new the recommendations of the enhance the lives of victims. If where an acquittal arises executive office in the commission. I propose to move the government is genuinely from an error in law by a Department of Justice to quickly to implement those interested in advancing the judge, support victims of crime, recommendations. situation of victims, then it • Provide for new prosecutions “focusing on the coordination Furthermore, in regard to the must adopt a rights-based where there is evidence that of delivery of services”. provision of information to approach, including a the original acquittal was victims of crime, this is an statutory charter for victims of tainted by interference with Reconstituted commission important issue and I am asking crime”. (See ‘Human Rights the trial process, including The Commission for the the new commission to address Watch’, p18.) intimidation of witnesses, Support of Victims of Crime and would be reconstituted, with a • Introduce measures to role to distribute funding to restrict unjustified and groups working with crime Essentials of Legal vexatious imputations at trial victims, as well as providing against the character of a general oversight of services Practice course 2008 deceased or incapacitated and promoting awareness. ave you been out of The course will be of victim or witness. In addition, a new Victims of Hpractice for a number of particular interest to barristers Crime Consultative Forum years and are about to return to who wish to transfer to the would be established to the workplace? Do you need a solicitors’ profession. (Such represent victims’ interests, refresher on the essentials of applicants must have three SOLICITORS’ which would liaise with the legal practice? Are you a years’ experience in practice, commission. barrister who wishes to transfer with their applications pre- HELPLINE Speaking at the to the solicitors’ profession? approved by the Education announcement of the package, A new Essentials of Legal Committee.) Upon successful The Solicitors’ Helpline is the minister said that the new Practice course starts on 5 completion of the course (and available to assist every member of the profession with any “framework document” would August 2008 (fee: €2,700). the in-office period – up to a problem, whether personal or look at the supports currently This four-week course will maximum of six months), professional available to victims and outline cover the basics in solicitors’ barrister candidates are eligible how these might be professional conduct, accounts to be entered on the Roll of 01 284 8484 strengthened to ensure that regulations, conveyancing and Solicitors. victims received adequate probate/tax. Intensive in its For further details, contact THE SERVICE IS COMPLETELY CONFIDENTIAL AND TOTALLY assistance in the aftermath of nature, it will bring Alison Egan in the Law School: INDEPENDENT OF THE LAW SOCIETY crime. “It is vital that there is a professionals up-to-speed in a 01 672 4802; email: a.egan@ coordinated approach to the concise, condensed manner. lawsociety.ie.
www.lawsociety.ie 9 LAW SOCIETY GAZETTE JULY 2008 NEWS
■ ORAC ANNUAL REPORT The Office of the Refugee ‘Making the Connection’ Applications Commissioner has published its annual report for olicitors based in the North PIC: BRENDA MCCALLION PHOTOGRAPHY 2007. During the year, a total of SWest got the opportunity to 3,985 applications for refugee ‘Make the Connection’ at a status were received, workshop of the same name in representing a 7% reduction in Sligo on 23 May. The brainchild applications compared with 2006. of the Technology Committee, This is the lowest number of the highly successful ‘Make the applications since 1997. Connection – Internet use for In 2007, ORAC says it made Solicitors’ course was held in “the maximum use possible” of the Sligo Institute of the EU Dublin II Regulation, which Technology. This was a determines the EU state practical workshop aimed at responsible for processing an showing solicitors how to use Members of the Technology Committee in Sligo (back, l to r): John asylum application. In all, 368 the internet to best advantage, Furlong, Tony Brady, Veronica Donnelly (secretary, Technology such determinations were made, to locate free and easy-to-view Committee), Frank Nowlan and Raymond Smith. (Front, l to r): Patrick with some 3,840 sets of legal materials and databases Madigan (chairman) and Angela Denning (registrar, High Court) applicants’ fingerprints being sent (see p44 in this issue). to the EU EURODAC fingerprinting Part 1 of the workshop Courts Service, including the Committee John Furlong system – 468 hits were identified key legal resources legal diary, the High Court (Matheson Ormsby Prentice), confirmed. Processing times for available online. Participants search facility, and the and Angela Denning (registrar, family reunification cases stood learned new information about judgments databases. High Court) gave the at 2.5 months and, for cases content, received practical The committee has workshop. Committee being considered under the Dublin hands-on training, and tips in organised a number of similar chairman Patrick Madigan, II Regulation, 27 days. using electronic recourses. workshops throughout the Tony Brady, Frank Nowlan and Part 2 provided an country and will be running Raymond Smith were also ■ INTERNET MUZZLED opportunity to use the online another one later in the year. present to assist participants Thanks to the change of services available from the Member of the Technology with the workshop exercises. Taoiseach and the publicity surrounding the Lisbon Treaty, one small announcement from the Byrne struck off Roll of EYBA former Minister for Justice seemed to slip through the media Solicitors and fined €1M ELECTS NEW net. On 29 April, the minister isgraced lawyer Thomas PRESIDENT announced that the Justice and DByrne has been struck off Simona Oliskeviciute has Home Affairs Council of the EU the Roll of Solicitors and fined been elected President of the had reached agreement on a new €1 million by the President of European Young Bar measure to combat terrorism. The the High Court, Mr Justice Association (EYBA), a multi- measure is specifically designed Richard Johnson. national association of young to “prevent the use of the On 16 June, making the lawyers. At the 31 May AGM in internet for the dissemination of order, the President of the Belgrade, the EYBA also terrorist information and High Court upheld the elected a new committee, propaganda”. recommendations of the among them two Irish lawyers. Solicitors’ Disciplinary In addition to the president, ■ MOP IS ‘BEST GRADUATE LAW Tribunal that Mr Byrne be the committee comprises: EMPLOYER’ struck off and fined €1 million. immediate past-president, For the second year in a row, The Law Society was also Annalisa Checchi; vice- Matheson Ormsby Prentice has awarded its costs against Mr president, Els Leuftink; been named ‘Best Graduate Byrne. The application to have In separate proceedings the honorary secretary, Ronnie Employer 2008 for Law’ at the Mr Byrne struck off was made same day in the Commercial Neville (Mason Hayes & Graduate Recruiters Awards. by Shane Murphy SC on behalf Court, in which Mr Byrne Curran, Dublin); treasurer, of the Law Society. Byrne’s entered no defence or Mary McKeever (Eugene F ■ RETIREMENT TRUST SCHEME practice at Walkinstown Road, appearance, Mr Justice Peter Collins, Dublin). Executive Unit prices: 1 June 2008 Dublin, was closed down Kelly ruled that Byrne was officers: Gabriella Geatti Managed fund: €5.514270 following an investigation that guilty of fraud in relation to (Rome), Labud Raznatovic Cash fund: €2.848346 began last October. Byrne owes transactions involving six rental (Serbia), and Morten Schwartz Long-bond fund: €1.347073 some €57 million to a number properties in west Dublin, Nielsen (Denmark). All-equity fund: €1.316876 of financial institutions. valued at €2.7 million.
10 www.lawsociety.ie NEWS LAW SOCIETY GAZETTE JULY 2008 Representation issues top the agenda for leaders of four Law Societies
ow law societies can best ALL PICS: LENSMEN ‘Hrepresent their members’ was chosen as the dominant issue for consideration at a recent two-day meeting of the leaders of the 160,000 solicitors in Britain and Ireland in Blackhall Place. The presidents, vice-presi- dents and chief executives of the Law Societies of Ireland, Northern Ireland, Scotland, and England and Wales meet twice a year. Once every two years the meeting is held in Dublin. By coincidence, the meeting this year took place on the day Director general Ken Murphy (centre) putting across the Irish view, with (l to r): Donald Eakin (president, that the ESRI published its Law Society of Northern Ireland), deputy director general Mary Keane, president James MacGuill, report predicting that the Irish and senior vice-president John D Shaw economy would go into recession in 2008 for the first management of their firms and would be a recovery in time, and time in 25 years. The most on developing the legal firms should avoid taking painful impact of this for knowledge and skills required to decisions on the downward solicitors in Ireland has been the compete for work in new areas, slope that would damage their sudden and precipitous decline where opportunities may still be capacity to take advantage of the in property-related legal work. developed. Not all areas of upturn when it comes. Representatives of the other practice would be affected by Although all four societies three jurisdictions confirmed the economic downturn in the updated each other on that the economic position for same way or to the same extent. developments in their regulatory members of the profession in Individual practices must devise systems, the focus for the their own countries was not their own specific plans for their meeting on this occasion was on much better. specific circumstances. learning from each other’s All agreed that it was a time to While the overall situation experiences in seeking to encourage private practitioners certainly gives cause for represent the interests of the to focus more intensively than Andrew Holroyd, president of the concern, the profession must not profession as effectively as ever before on the efficient Law Society of England and Wales succumb to pessimism. There possible in the difficult circumstances that prevail everywhere. One of the best ways of representing the interests of the profession, it was agreed, was to do a good job in regulating it. Public relations strategies, both internal and external to the profession, were discussed, with a view to the four societies learning from the others’ successes and mistakes. Information and insights based on other people’s experiences of essentially the same problems are always valuable – even if only to Scotland was represented by (l to r): Richard Henderson (president, Law Society of Scotland), Ian Smart confirm, once again, that ‘magic (vice-president) and Henry Robson (deputy chief executive) solutions’ simply do not exist.
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ife in today’s world has given Some simple measures can Lrise to a whole range of new be taken to minimise phenomena and our vocabulary technostress: has had to expand as new • Dedicate a set time in your maladies have been identified. day for the task of replying to We are familiar with the concepts email, faxes and voicemails, of desk rage and road rage. Now and resist the temptation to a new term has been coined respond to each new message –‘technostress’, the term used to the instant it arrives. describe what happens to us • Allow yourself to concentrate when we suffer from information on one important task at a overload, brought about by all the time by having a period during technical wizardry purportedly which you turn off the ringer designed to make our lives on your fax, divert your line to easier. voicemail or someone else, In the average day, you might concentrating, inability to that it comes to rule their lives and turn off your email expect to receive information remember things, inability to rather than the other way around. notification message. from the radio, television, fax, relax, and difficulty in getting to Further, the process of • If you develop the habit of phone, voicemail messages, sleep due to the unwelcome emailing documents is so simple writing down those tasks that email and the internet. This presence of too many thoughts that a trend has developed of are lurking in the back of your obliges you to interact with a chasing each other around in distributing vast quantities of mind, you will lighten the load whole range of machines and to your head. information indiscriminately, on your brain and this should process vast quantities of new Email appears to be whereas, in the past, the time help you to focus on the task data. Moreover, this data is responsible for a specific group involved in duplicating the same in hand, or, at night, help in conveyed at a pace that scarcely of problems. Some people are data on paper would have made getting a period of restful allows for thinking time. reporting that, in the process of this impracticable. Hence, people sleep. Technostress, described by embracing email and its are bombarded with information, • Before you send an email to a authors Dr Larry Rosen and undeniable advantages of speed much of which is utterly irrelevant whole raft of people, ask Michelle Weil in their book and immediacy, they find to them. yourself ‘Who really needs to Technostress: Coping with themselves becoming The symptoms described know this?’ Technology@work@home@play as increasingly impatient when above are just as likely to be • Ensure that you look after your “multitasking madness”, results delays are experienced or when experienced by technophiles – physical well-being by getting when you attempt to cope with a they actually come to deal with those who embrace new enough sleep, eating healthily number of tasks at the one time. people directly. Others report technology and the opportunities and taking some form of Although, from the outside, you feeling persecuted by a tool that it presents – as by technophobes exercise. may appear to only be dealing is meant to aid, but to which they – those who struggle to come to • Take short breaks away from with one issue, in fact, your brain feel so attached and beholden terms with the technological your desk during the day and is having to perform a juggling that they can never turn it off, so revolution. perform some simple act to keep all of those other stretching exercises. issues that require attention • Try to maintain a balance in active on a conscious level. The ABOUT LAWCARE your life and ensure that you harder this juggling act becomes, can have some time totally LawCare is an advisory and support service to help the more performance levels free of interruptions to pursue solicitors, their staff and their immediate families to deal decline. The more you get a leisure interest. with health problems such as depression and addiction, and interrupted in the execution of • Leave your mobile phone at related emotional difficulties. The service is free and one task, the harder it can be to home or switched off when entirely confidential. pick up where you left off. you go on holiday. For totally confidential, non-judgemental help, ring freephone Multitasking can lead to people feeling as though they are 1800 991 801 If you simply cannot break free of no longer in control, which is a (9am – 7.30pm weekdays and 10am – 4pm all of the gadgets in your life and major symptom of stress. Other at weekends/bank holidays, 365 days a year. you are feeling the stressful signs of the effects of Web: www.lawcare.ie Email: [email protected] results, then contact LawCare multitasking are difficulty in (see panel for details). G
www.lawsociety.ie 13 LAW SOCIETY GAZETTE JULY 2008 ANALYSIS War crimes – what happens The provision of legal advice aimed at justifying war crimes can amount to a war crime itself, a recent Dublin conference was reminded. Aisling Kelly reports
everal inspiring speakers heads of state can be is sitting to examine the role of and yelling degenerated into Sturned up in Dublin this investigated then why not the senior Bush administration punching, sexual humiliation, June for the Dublin Writers’ lawyers? But what he draws lawyers in promoting brutal stress positions and the Festival, one of whom was our attention to is that it is not aggressive interrogations. use of snarling, biting dogs. Philippe Sands QC, speaking the acts of lawyers who may Various lawyers involved in These are the very same about the US ‘War on Terror’. have (for one reason or advising the president, practices that resulted in the Sands, a well-renowned and another) physically inflicted including John Ashcroft, the famous photographs of the highly regarded international physical or former attorney hooded man and the prisoner- lawyer, shared the floor with mental harm general, have on-a-dog-lead photos, which Paris Review editor Philip that are capable also been invited were taken by the military Gourevitch and spoke about of being to testify – the police themselves. Why would what has taken place in prisons investigated as testimony is due they do that, one might ask? such as Guantánamo Bay and crimes – it is the to be taken over It would be easy to assume Abu Ghraib. act of providing “What the the coming that the grinning, posing Both speakers have recently legal advice that summer months. soldiers just did not know of released books on the two allows those Altstoetter Whether anyone the rules and risks. What is interlinked topics, which reveal things to happen case states will be indicted shocking is that Gourevitch an appalling breakdown of law that is the arising out of indicated the contrary. The and order. potential is that there is these testimonies MPs knew something was Sands began his legal international no distinction is, of course, seriously wrong – they were research with a one-page crime. It is a another matter. taking the photographs, and memorandum from Donald very interesting between the making sure that their Rumsfeld, dated 2 December proposition. person who Theatre of war superiors knew they were 2002, authorising interrogation What the Philip doing so, in a calculated effort techniques forbidden under Altstoetter case interrogates Gourevitch to protect themselves. When the Geneva Conventions. Earlier states is that and the person spoke about the faced with the threat that the that year, in February 2002, there is no how the policies photographs might become the US president had distinction who authorises and laws public, the military sought to pronounced that the Geneva between the man by law an examined by cover up the crimes. Once the Conventions did not cover or woman who Sands played out photographs were leaked, they individuals believed to be interrogates and abusive in the theatre of prosecuted only the low- associated with al-Qaeda and the man or interrogation. war. He spoke ranking soldiers who appeared the Taliban. What makes the woman who about a company in them. Nobody above the decision authorised by authorises by law They are both of reservists – rank of sergeant was ever sent nd Rumsfeld interesting is that it an abusive subject to the 372 to prison; not a single civilian was authored and approved by interrogation. Military Police – interrogator was charged. politically appointed lawyers. They are both investigation” that was charged “That’s how it worked,” Sands examined the role of subject to with holding the Gourevitch explained. “No Bush administration lawyers in investigation. most valuable photo, no crime – the exposé how they removed the legal They are both prisoners in Abu became the cover-up.” For barriers to abusive questioning subject to Ghraib. Instead the soldiers who had sought techniques. prosecution. The of just guarding to protect themselves, the He spoke about the provision of the men, the irony must have been potential impact of the 1947 legal advice aimed at justifying MPs were instructed by breathtaking. Nuremberg case of United war crimes amounts to a war interrogators from military States of America v Josef crime itself. intelligence to “soften them Justifying torture Altstoetter et al, which is the Sands has also recently up”. In the absence of training While there have been authority for the premise that testified before the US House – which would normally have arguments advanced in a lawyers can be investigated, of Representatives Judiciary been provided by a standard variety of arenas to say that prosecuted, and convicted for Sub-Committee on the operating procedure document torture may be justified in committing international Constitution, Civil Rights and – aggressive practices that some extreme situations (the crimes. “So what?” you say – if Civil Liberties. The committee began with sleep deprivation example of the ticking nuclear
14 www.lawsociety.ie ANALYSIS LAW SOCIETY GAZETTE JULY 2008 when lawyers get involved? simply does not generate reliable intelligence. The Geneva Conventions exist because generations of soldiers and politicians realised that humane treatment usually contributes to military and political objectives, not least by prompting grateful prisoners to talk and by undermining support for the enemy. The atrocities at Abu Ghraib failed to generate any significant intelligence, while doing almost irreparable damage to the reputation of an entire nation. The outcome was entirely predictable – in fact, Prisoner abuse at Abu Ghraib: chained to a door, a hooded detainee is forced to balance painfully on boxes our grandfathers could have told us so. G bomb is often cited), there are the one most frequently relied even those at war. clear reasons why it is upon is that it is contrary to But there is a more practical Aisling Kelly is a Dublin-based specifically outlawed by the our sense of what is acceptable and arguably distasteful reason solicitor specialising in criminal Geneva Conventions. Obviously, behaviour among humans, that some put forward. It law.
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www.lawsociety.ie 15 LAW SOCIETY GAZETTE JULY 2008 ANALYSIS ICCA arbitrators visit Fair Over 800 delegates from 51 countries gathered at Croke Park in early June for the world’s largest-ever conference of international commercial arbiters. Tom Rowe reports
verlooking the hallowed ALL PIX: HARRYWEIR.COM gaining non-electoral Oturf of Croke Park, 800 legitimacy for tribunals, thus delegates from 51 countries avoiding the impending crisis. recently gathered for the He points to UN Security world’s largest-ever conference Council plans to adopt due of international commercial process for actions like the arbiters. Hosted by the Bar freezing of countries’ assets as Council and sponsored by an example of how legitimacy many leading solicitors’ firms can be conferred on a process. and the Law Society, the International Council for Changed international Commercial Arbitration landscape (ICCA) held its biennial event The eminent Professor in Dublin from 8-10 June. The Christopher Greenwood of the dates marked the exact 50th London School of Economics is The International Council for Commercial Arbitration held its biennial anniversary of the 1958 New conference in Dublin from 8-10 June widely regarded as an expert on York Convention on Recognition international investment and Enforcement of Foreign transnational power, power recently talked of leaving the arbitration and considers Arbitral Awards, the most beyond the state, and that a arbitration process, but a real himself “one of the usual important international type of global administrative crisis will come in the case of a suspects” at these events. For instrument on arbitration law, law is slowly developing. major western country like the Greenwood, the adage “a treaty currently adopted by 142 International investment US losing in a tribunal over an is a disagreement reduced to United Nations’ member states. tribunals are the manifestation issue like Chinese investment. writing” applies to bilateral The first speaker at the of this power, and the lawyers Kingsbury wants to promote investment treaties (BITs), conference, Professor Benedict involved are now dealing with fair and equitable standards for which make up the majority of Kingsbury of New York problems specific to this tribunal jurisprudence through international investment University’s law school, said method of arbitration. rationality, consistency, legality, agreements. that investor-state arbitration The legitimacy of tribunals is protection of legitimate The international landscape and the treaties from which it a major issue. South Africa and expectations, transparency and has changed enormously over derives are a form of countries in Latin America have due process, as a method of the past decades. To have basic utilities owned by foreigners would have been unthinkable in most countries 30 or 40 years ago, but Greenwood recently looked at his own water, mobile phone and electricity suppliers, and discovered that all are foreign-owned businesses. BITs had a large role to play in this, as breaking down barriers to investment was one of the aims of their creation. The professor went back to the initial expectations for governments that signed up to BITs. The wealthy capital- exporter states wanted to protect their investment through treaties, and negotiated The ICCA conference dates marked the exact 50th anniversary of the 1958 New York Convention on BITs for ‘them’, the capital Recognition and Enforcement of Foreign Arbitral Awards – the most important international instrument on exporters. Now these exporter arbitration law, currently adopted by 142 United Nations’ member states countries are recipients of
16 www.lawsociety.ie ANALYSIS LAW SOCIETY GAZETTE JULY 2008 City investment. The tables have turned, yet the US Senate is still shocked at the idea of being a defendant in a NAFTA case.
Fifty-year-old document Perhaps the most significant development at the conference was on the afternoon of the second day, when Professor Albert Jan van der Berg, the acknowledged authority on the New York Convention, questioned whether that 50- year-old document would last for another 50. He answered in the negative, and introduced a hypothetical draft convention Speakers at the ICCA conference included (l to r): Klaus Reichart BL, An Taoiseach Brian Cowen, for the consideration of the Turlough O’Donnell SC (Chairman of the Bar Council), Colm O hOisin SC, Michael Carrigan (member of the delegates, some of whom began Law Society’s Arbitration and Mediation Committee) and Jerry Carroll (Director of the Bar Council) calling it the ‘Dublin Convention’. Much needed support for While giving all due respect the draft convention came from to the professor, several of the Carolyn Lamm of Washington. subsequent speakers disagreed She believed that van der Berg’s with him. Teresa Cheng SC, of draft eliminated much Hong Kong, held that the ambiguity and contradictory problems in arbitration cases results and would give greater are not due to the inadequacies predictability, resulting in less or ambiguities of the 1958 litigation. She agreed that, convention, but to while the effort to change the interpretations by judges. convention would be great, in Redrafting is not the answer, as 50 years they would look back the risk of states taking the and be glad. opportunity to opt out of the The final words came from new treaty is too great and Donald Francis Donovan of interpretations of the new draft New York, who reminded the would just create new audience of Taoiseach Brian International delegates at the world’s largest ever conference of problems. international commercial arbiters, held in Dublin Cowen’s words on opening Professor Emmanuel the conference, when he said Gaillard believed that there is that a commitment to “no need, no hope and no international arbitration is an danger” of the current INVESTMENT ARBITRATION important part of Ireland’s convention being remade. Like There are 2,300 international financial investment treaties currently national policy; and Attorney Cheng, he believes that 142 in force. These are signed between states that seek inward General Paul Gallagher’s states would never agree to a investment or want the opportunity to invest in other states. speech, where he said that this new convention, as many have These treaties generally come under the remit of the 1958 New commitment originates in Irish developed a defendant mindset. York Convention, which requires courts of contracting states to give culture and Brehon law. For For him, the issues that need to effect to private agreements to arbitrate and to recognise and Donovan, the conference – and be addressed are the enforce arbitration awards made in other contracting states. indeed the development of enforcement of awards and In the event of a dispute, an international investment tribunal international arbitration over getting away from the idea that can be convened, which allows parties from different legal and the last century – is evidence of the site of arbitration is so cultural backgrounds to resolve their disputes. the search for a transnational important. system of justice. G
www.lawsociety.ie 17 LAW SOCIETY GAZETTE JULY 2008 ANALYSIS
Victims’ human rights in the It is possible to enhance the human rights of crime victims without compromising the fundamental principles at the heart of the criminal justice process: a fair trial and the presumption of innocence. Deirdre Duffy argues the case n 19 June, the Minister for considered the recommend- crime victims should focus on • The European Council OJustice announced a new ations of the review group in full protection of victims’ Framework Decision of 15 Justice for Victims Initiative. In its report Taking Liberties: the rights rather than seeking to March 2001 on the standing formulating his proposals, he Human Rights Implications of the dilute the rights of defendants. of victims in criminal drew on certain recommend- Balance in the Criminal Law To this end, the ICCL proceedings – Ireland’s ations of the report of the Review Group Report. It has highlights a number of record in applying the Balance in the Criminal Law concluded that limiting the international human rights standards laid down in this Review Group, published last rights of accused persons in instruments that set out the instrument has been assessed year. Some of the measures fact does little or nothing to standards required of states in by the European proposed in the minister’s serve the plight of victims, affording protection to the Commission in their 2004 initiative include the many of whom find their human rights of crime victims: evaluation report, introduction of appeals against passage through the criminal • European Convention on • Recommendation acquittals, the extension of justice process challenging and Human Rights (incorporated Rec(2006)8 of the circumstances where bad difficult. into Irish law by the committee of ministers to character evidence can be In the ICCL’s companion European Convention on member states on the admitted, and the reopening report, A Better Deal: the Human Rights Act 2003), assistance to crime victims. of cases where a judge makes Human Rights of Victims in the • UN Declaration of Basic an error in law. Criminal Justice System, it is Principles of Justice for Victims At the centre of a victim The Irish Council for Civil argued that commitment to of Crime and Abuse of Power experience is the right to be Liberties (ICCL) has the enhancement of rights for 1985, treated with respect, support ONE TO WATCH: NEW LEGISLATION Criminal Law (Human Trafficking) Offences against the trafficked person; • Sell, offer or expose another Act 2008 The act makes it an offence to: abused his/her authority or took person for sale, or inviting the Minister for Justice, Equality and • Traffic a child for the purposes advantage of the vulnerability of making of an offer to purchase Law Reform Dermot Ahern of exploitation, including sexual the trafficked person to such an another person, recently announced the exploitation, extent as to cause the trafficked • Purchase or make an offer to enactment of the Criminal Law • Sell, offer, or expose a child for person to have had no real and purchase another person, (Human Trafficking) Act 2008 on sale, acceptable alternative but to • Solicit or importune another 7 June 2008. The act deals • Purchase, or invite the making of submit to being trafficked; person in any place for the specifically with the offences of an offer, or making an offer to coerced, threatened or otherwise purposes of prostitution, trafficking in both adults and purchase a child, used force against any person in • Accept, agree to accept a children. The minister described • Exploit a child sexually, whose care or charge, or under payment, right, interest or other the act as a “comprehensive, up- • Take, detain or restrict the whose control, the trafficked benefit from a person trafficked to-date set of criminal offences, personal liberty of a child for the person was for the time being, in for the purposes of prostitution. which will ensure that human purposes of his/her sexual order to compel that person to It is a defence for the defendant traffickers will find Ireland a very exploitation, permit the trafficker to traffic the to prove that he/she did not unwelcoming country to pursue • Traffic a person who is mentally trafficked person; made any know and had no reasonable their evil trade”. impaired for the purposes of payment to, or conferred any grounds for believing that the The main purpose of the act is exploitation, right, interest or other benefit on person in respect of whom the to provide for a series of • Traffic a person for the purpose any person in whose care or offence was committed was a offences for human trafficking, of exploitation if, for the charge, or under whose control, trafficked person. appropriate punishments, and purposes of trafficking, the the trafficked person was, for the procedures in relation to the trafficker coerces, threatens, time being, in exchange for that The offences apply to any person conduct of proceedings and abducts or uses other force; person, permitting the trafficker who commits the offence, persons issues in relation to jurisdiction. deceived or committed a fraud to traffic the trafficked person, who cause those offences to be
18 www.lawsociety.ie ANALYSIS LAW SOCIETY GAZETTE JULY 2008 human rights watch criminal justice system and recognition. In Ireland, PIC: REX FEATURES victims to receive information the Commission for the is dealt with comprehensively Support of the Victims of under article 4 of the Crime distributes funding to European Council Framework organisations that support the Decision. It sets out the right victims of crime and is also of crime victims to information charged with developing a on, among other things, access framework for victims of crime to legal advice, attributes of into the future. Generally, the case, police procedures, victims are supported well court procedures and the role through this system. of witnesses, the sentence imposed, compensation Statutory victims’ support matters, and the dates of agency hearings and their relevance, However, victims would for example, bail, trial, and benefit greatly from the sentence hearings. establishment of a statutory For the most part, Ireland has victims’ support agency that chosen to assume its obligations could oversee all government under this provision by policy relating to the victims maintaining the Victims’ Charter of crime as well as the justice agencies is the accused as ‘their case’ and may and Guide to the Criminal Justice disbursement of funding. provision of information to feel disempowered when they System. However, in its 2004 One of the greatest crime victims. Many victims are kept in the dark about its evaluation report, the European challenges facing criminal consider the prosecution of an progress. The right of crime Commission stated that this
committed, and persons who not citizens or ordinarily resident in incite an Irish citizen or ordinary heard in camera. However, the attempt to commit any of those the state. The act applies to: resident outside the state to verdict, decision and sentence offences. Where the offence is • Irish citizens or ordinary commit an offence outside the shall be pronounced in public. committed by a body corporate and residents who commit an state, Persons who publish or broadcast is proved to have been so offence outside the state, • Persons who attempt any of the any information, including any committed with the consent or • Non-Irish citizens or ordinary above offences. photograph, depiction or other connivance of, or to be attributable residents who commit an representation of the physical to any neglect on the part of, any offence against an Irish citizen Proceedings relating to offences likeness of the alleged victim that person, being a director, manager, outside the state, committed outside the state can be is likely to enable the secretary or other officer or a • Persons who conspire with, or taken in any place in the state, and identification of the alleged victim, person who was purporting to act incite, another person in the the offence may be treated as shall be guilty of an offence. A in such capacity, that person shall, state to commit an offence having been committed in that judge of the court in which as well as the body corporate, be outside the state, place. The act ensures that the rule proceedings for an offence of guilty of an offence and shall be • Irish citizens or residents who of double jeopardy is maintained by trafficking are brought may direct liable to be proceeded against and conspire with, or incite, another ensuring that where a person has in writing that such information punished as if he/she were guilty person outside the state to been acquitted or convicted of an may be published or broadcast in of the offence. commit an offence outside the offence outside the state, he/she such a manner and subject to state, shall not be proceeded against for such conditions as he/she may Jurisdiction • Persons who conspire with, or an offence consisting of the alleged specify. Contravention of such a As a broader global issue, human incite, another person in the acts within the state. direction is also an offence. G trafficking often involves multiple state or outside the state to In an effort to protect the jurisdictions. The act purports to commit an offence against an anonymity of the victims of Elaine Dewhurst is the Law apply to acts committed outside Irish citizen outside the state, trafficking, proceedings for Society’s parliamentary and law the state and by persons who are • Persons who conspire with or offences under this act shall be reform executive.
www.lawsociety.ie 19 LAW SOCIETY GAZETTE JULY 2008 ANALYSIS
action alone does not completely the privacy and protection of and fair procedures. protection of the rights of crime fulfill the obligations imposed some of the most vulnerable A victim’s right to a remedy victims in Ireland. Certain areas under article 4. victims, such as children. encompasses the handing down require an increase in, and better International instruments, as of fair sentences by the courts. use of, resources by the gardaí, Privacy and protection well as the European Court of Judges are constrained by the the courts and other criminal from harm Human Rights (for example, in system of judicial precedent justice agencies. However, as Victims are also entitled to be relation to delay), set out a under which they operate, and demonstrated by the ICCL’s protected from harm and to victim’s right to participate in a must sentence within their report, many improvements are respect for their privacy. These fair and effective criminal discretion on a case-by-case achievable through operational rights are often interrelated process. basis. and ideological changes on the and can be protected by a part of the aforementioned number of simple measures, Victim impact statement Reliable sentencing bodies, as well as the judiciary, such as adequate court facilities This includes the right of a In order to deliver justice to the prosecuting authorities and that allow entry to and exit victim to make a victim impact victims and defendants alike, the wider legal world. At the from the court in a safe and statement. Such statements clear, appropriate and reliable same time, it is possible for the private fashion. Separate serve an important role in the sentencing is essential. In this government to deliver the waiting areas for victims and criminal justice process as a respect, the ICCL’s report human rights of crime victims their families should also be vehicle of contribution for the recommends that a system of without compromising the provided. At present, the victim, which in turn assists the sentencing guidelines should be fundamental principles that lie at Criminal Evidence Act 1992 judge in sentencing. However, introduced to provide direction the heart of the criminal justice allows for the tendering of all aspects of sentencing – for judges while maintaining a process: the right to a fair trial evidence by video-link; including the victim impact degree of flexibility. and the presumption of however, not all courtrooms statement – must be placed in The UN Declaration, the innocence. G are equipped with the the context of the findings of the European Council Framework necessary technology. The court. To achieve this, a Decision and the Committee of Deirdre Duffy is research and ICCL report argues that such statutory framework should be Ministers’ Recommendation policy officer with the Irish facilities are vital in ensuring constructed to develop adequate provide a blueprint for the Council for Civil Liberties.
“As a society, perhaps the most sensitive measurement of our maturity is the manner in which we care for those who are facing the ultimate challenge – the loss of life.”
(REPORT OF THE NATIONAL ADVISORY COMMITTEE ON PALLIATIVE CARE, 2001)
Over 6,000 people use hospice care each year. QUALITY Hospice care involves the total care of patients and their families at the stage in a HOSPICE serious illness where the focus has switched from treatment aimed at cure, to ensuring quality of life. It seeks to relieve the symptoms of illness and cater for a CARE FOR person's entire needs – physical, emotional, psychosocial and spiritual. ALL The demand for hospice care is growing. While the service has expanded in recent years, much more needs to be done to ensure quality end-of-life care for all. Please remember the Irish Hospice Foundation when drafting a will. Irish Hospice Foundation, Morrison Chambers, 332 Nassau Street, Dublin 2 Tel: 01 679 3188; Fax: 01 673 0040 www.hospice-foundation.ie No-one should have to face death without appropriate care and support.
20 www.lawsociety.ie COMMENT LAW SOCIETY GAZETTE JULY 2008 letters
Send your letters to: Law Society Gazette, Blackhall Place, Dublin 7, or email: [email protected] PII and the use of non-standard documents From: Patrick W McGonagle, take priority’. This is, of course, Patrick W McGonagle & Co fine as far as it goes, but, in effect, Solicitors, Swords, Co Dublin while not reading through the full refer to the above and attach a undertaking you have been asked Icopy of a letter that I received to sign, it could be that you are from the Solicitors’ Mutual taking on more onerous Defence Fund, which may well obligations by just using this be of interest to the profession. wording. The reality is that the A number of years ago, the undertaking should be furnished Law Society and the lending in the agreed Law Society/ institutions came together to lending institution format. agree a standard certificate of Thank you for bringing this to title and solicitor’s undertaking. Law Society and the lending position by the insertion of the our attention, and it may well Over the last number of years, a institutions some years ago. You words ‘See full Law Society merit a note in a newsletter later number of lenders have deviated seem to have adopted this undertaking attached, which shall this year.” from that agreed format and have insisted on the use of their pre-printed forms of under- Press Ombudsman’s addendum to takings and certificates of title. Apart from the absolute ‘no-frills process’ nuisance that this causes in raising a plethora of different From: Professor John Horgan, conclusion of our processes. It is In brief, complainants who documents to be completed, I Press Ombudsman, Office of the also open to them to approach approach my office directly in was concerned as to whether or Press Ombudsman, 1, 2 and 3 the office through their legal the initial stages (which of course not we were covered by our Westmoreland Street, Dublin 2 representatives, should they so does not exclude the possibility insurance for the use of non- am gratified by the response to wish. However, the fact remains that they might take legal advice standard documents. I brought Imy recent article in the Gazette that, in the present climate, before doing so), can do so in this to the attention of the fund outlining the form and functions newspapers that receive letters the expectation that the and, as a result, received the of my office and of the Press from solicitors will, in most newspaper or periodical’s legal attached letter. Council (March 2008, p42). cases, refer them directly to their department will generally not I think it is quite clear that However, I felt that it might be a own legal departments, need to become involved, and the fund is stating that we good idea to add a PS for the regardless of whether these that our action on their should insist on the use of the benefit of solicitors in particular. letters involve potential legal complaint will not be delayed by standard documents, and it is As I made clear in my article, actions or are simply a request the addition of another layer of my intention to use this letter complainants who decide to go for a complaint to be considered process. in all future cases. I believe, to the Office of the Press and, if necessary, adjudicated by Solicitors are welcome to however, if the profession is Ombudsman retain complete my office. This will inevitably contact me informally for further advised of this and, as a group, freedom to take legal action on prolong what was intended to be information on this or any other insist on the use of the standard foot of their complaint at the a simple, no-frills process. aspect of our procedures. documentation, then this issue could be resolved very quickly. Dwelling house relief closed off Extract from reply of the Solicitors’ From: Sara McDonnell, Richard advance, closes off the partner will pay gift tax on that Mutual Defence Fund: “There is H McDonnell Solicitors, Ardee, ‘dwelling house relief’ (CA10) transfer. This can obviously no doubt in our view but that Co Louth available to an unmarried have very considerable tax you should insist on the use of wonder are your readers couple sharing a house – from consequences. the standard agreed form of Iaware of section 116 of the 20 February 2007, a person I would be much obliged if undertaking and certificate of Finance Act 2007, which, with receiving a half share in a you would draw your readers’ title, which was agreed by the no warning to practitioners in dwelling house from his/her attention to this.
www.lawsociety.ie 21 LAW SOCIETY GAZETTE JULY 2008 COMMENT
Are we criminalising
It may be argued that the DPP’s discretion regarding prosecution creates uncertainty in the law for teenagers who engage in consensual sex, says Edel Kennedy he acquittal of Mr K by a convention-compliant and on illustrates that substantial • Distinctions on the basis of Tjury at the Dublin Circuit our courts to interpret and grounds for justification will be religion, Criminal Court in April in apply statutory provisions or required in instances of a • Distinctions on the basis of respect of a charge of sexual rules of law in a compatible gender bias. The justification nationality, assault of a 13-year-old girl manner. argument may fail if the • Distinctions between reopened the public debate on Section 5 of the Criminal differential treatment does not legitimate and illegitimate the defence of mistake as to age Law (Sexual Offences) Act 2006 pursue a legitimate aim or if children, and led to renewed calls for a states: “A female there is not a • Distinctions on the basis of referendum on the issue of child under the reasonable sex and sexual orientation. child protection. Of even age of 17 years relationship of greater significance to shall not be proportionality While contracting states enjoy considerations regarding future guilty of an between the a margin of appreciation in legislative reforms in this area is offence under means used and deciding whether, and to what the High Court challenge this act by reason “In a move to the aim sought. extent, differences justify a launched in April by a Donegal only of her different treatment in law, this teenager to the Criminal Law engaging in an prevent the Criminalisation margin of appreciation differs (Sexual Offences) Act 2006. act of sexual criminalisation of teenage according to the circumstances, The teenage male was intercourse.” fathers the subject matter and the charged with the statutory rape The 15-year-old of motherhood, The explanatory background. Taking such of a 14-year-old girl in 2006, male will the memorandum to factors into account, it may be when he was aged 15. The challenge the the 2006 considered that the majority of High Court case will challenge non-availability of criminalisation legislation stated states in the Council of Europe section 5 of the Criminal Law this defence to of teenage that section 5 only criminalise sexual conduct (Sexual Offences) Act 2006 on him under the was being between minors where the age- the basis that it constitutes a 2006 act as a fathers has not introduced gap is greater than two years. breach of article 14 of the breach of article concerned the “primarily to Germany’s laws do not European Convention on Human 14 of the ECHR. protect females criminalise consensual sex Rights by its discrimination on Article 14 legislature and in the age group between young people less than grounds of gender. In addition, provides that the has resulted in who might be 18 years of age. These other the case will also seek to enjoyment of pregnant”. It states’ laws are based upon the challenge the 2006 act on the convention rights a further may be argued same objectives as that of the grounds that the decision of the shall be secured discrimination that, in a move 2006 act, namely to protect DPP to prosecute the young without to prevent the children and to prevent girls male represents a breach of his discrimination against young criminalisation of from prosecution. It may be right to privacy, enshrined “on any ground males” motherhood, the found, however, that the 2006 under article 8 of the such as” sex, criminalisation of act has utilised disproportionate convention. religion, teenage fathers measures in the circumstances language, “birth has not in the pursuit of those same Gender discrimination or other status”. concerned the objectives. The European Convention on While article 14 legislature and It should also be noted that Human Rights has been ratified permits difference has resulted in a the judgment in the CC case by Ireland and is binding on the in treatment, this differential further discrimination against contained numerous references state. The convention is given treatment is only permitted young males. The ECHR to the gender inequality aspect effect in Irish law by virtue of where there is a reasonable and has adopted a strict approach in the 1935 provision. The the ECHR Act 2003. It places a objective justification for such in relation to certain grounds accused argued that there was duty on the organs of the state treatment. The case of Petrovic of prohibited discrimination “discrimination on grounds of to act in a manner that is v Austria (27 March 1998) such as: sex arising from the fact that,
22 www.lawsociety.ie COMMENT LAW SOCIETY GAZETTE JULY 2008 viewpoint teenage fathers?
where two persons engaged in PIC: REX FEATURES stated that the government may consensual sexual intercourse, legislate to protect against the only the male appears to be exploitation of the young, the guilty of a criminal offence”. 2006 act encompasses non- Such observations by the court exploitative acts by consensual in that instance would suggest teenagers also. It remains to be the potential acceptance of the seen whether an offence gender bias argument in the prescribed in statute is upcoming High Court case, due “necessary” and to the fact that gender “proportionate” to a legitimate differentiation continued in the aim, such as the protection of 2006 act. Moreover, it is health and morals, if it is so unclear whether the same claimed. differences of capacity and of The Joint Oireachtas social function that may have Committee recommended that applied to the 1935 act can the age of consent be lowered apply to the phraseology of the to 16 years of age to reflect 2006 act. modern realities. This recommendation may be Private and family life considered by the High Court, A breach of article 8 of the and most likely by the Supreme ECHR will also be claimed in Court, when examining the the High Court challenge. impact of the convention Article 8 offers general arguments. The convention is protection of a person’s private frequently described as a living and family life, home, and instrument, which means that correspondence from arbitrary the extent to which the interference by the state. convention’s rights will be However, the right to privacy is protected will depend upon a qualified right and state society’s values and modern interference is permitted where realities at any one time. The it is deemed to be justifiable outcome of challenges raised in and where the interference the upcoming High Court case satisfies certain criteria. • Acting for the prevention of the risk of prosecution is will provide insight as to Permitted state interferences disorder or crime, sufficient to constitute an whether the Irish legislation include instances where it is • Acting for the protection of interference with article 8. has duly reflected today’s found to be: health or morals, Furthermore, it may be argued society by legitimate, • In accordance with the law, • Acting for the protection of that the DPP’s discretion reasonable and proportionate • In the interest of legitimate the rights and freedoms of regarding prosecution creates means. G objectives as per article 8(2), others. uncertainty in the law for and teenagers who engage in Edel Kennedy is a trainee solicitor • Necessary in a democratic The Criminal Law (Sexual consensual sexual intercourse. with Dublin law firm Partners at society. Offences) Act 2006 gives legal The absence of a stated policy Law and is the author of the basis to any claimed on the part of the DPP not to Gazette articles ‘Age-old problem’ The legitimate objectives as set interference. However, no prosecute in such circumstances (October 2005), which highlighted out in article 8(2) are: provision in the 2006 act may be deemed sufficient to the significant legal issues in this • Acting in the interests of protects young teenagers who constitute a violation of the area, and ‘The hand that robs the national security, public engage in consensual sexual Donegal teenager’s rights. cradle’ (July 2006), which focused safety or the economic well- conduct from prosecution. The While the case of Dudgeon v on the defence of mistake as to age being of the country, fact that a person is exposed to UK ([1981] 4 EHRR 146) and the Mr A judgment.
www.lawsociety.ie 23 What do you do when the issue of you acting personally as executor of your client’s will comes up? Tom Martyn looks at the issues you should consider and the additional responsibilities of the solicitor executor
WILL YOU,
here are occasions when the issue of generally prevails. The choice of executor is, more MAIN POINTS acting as an executor of a will arises for often than not, obvious. If it isn’t, then consider the • Acting as an solicitors. When it does, there are issues following: executor of a will you need to weigh up before you agree • Is it better to appoint someone who will benefit • Issues to weigh T to act. This article guides you through under the will? The practical reason is that they up before agreeing the main points you need to consider when you are will have more interest in finalising the estate to act asked to act as executor and when you have been promptly. • Steps to take at appointed to act as executor. • It is better to choose an executor who is likely to the point of taking Testators are pretty much free to appoint whoever outlive the testator. instructions they wish to act as executors. When you advise a • Consider choosing more than one executor. In the client on their choice of executor, common sense case of certain types of trusts, a second trustee is
24 www.lawsociety.ie COVER STORY LAW SOCIETY GAZETTE JULY 2008
WON’T YOU?
essential. It is prudent to consider having a second • It may be perceived by the testator that the executor in any case. solicitor will be more objective and impartial in • The executor should preferably be resident in the dealing with the estate. Bear in mind, though, that state. a solicitor can apply that objectivity and impartiality in the advice they give to a lay Remember – the acceptance of the appointment is executor. optional at the hand of the appointee. • There may be potential conflicts in the administration of the estate that would cause Should I, as a solicitor, act as executor? strain on a lay executor. There are occasions when the question of a solicitor • There may be vulnerable beneficiaries of the acting as a professional executor arises: estate. There may be minor children or a
www.lawsociety.ie 25 LAW SOCIETY GAZETTE JULY 2008 COVER STORY
ACTING AS A PROFESSIONAL EXECUTOR If you do agree to act, there are steps you should take at the point of Unusually in testamentary matters, if the will provides that it is the taking instructions: partners of the firm that are to act, then that will be interpreted as the • Include a charging clause in the will to enable you (or a partner of partners at the time the will was made – not at the date of death. If the the firm) to charge for the time spent on the administration of the partners are all in their ’80s and the testator is in his ’40s, an obvious estate. difficulty is created. Make sure in those circumstances that it’s the • Ensure that you (or any of your partners) do not witness the will. partners at the date of the testator’s death. • As in all matters, keep a careful note of your attendances surrounding the making of the will and the reasons for your appointment. If you EXAMPLE OF A CHARGING CLAUSE: are being appointed instead of a more obvious lay executor, record I DECLARE that any of my executors who is engaged in a profession carefully the testator’s reasons for appointing you. shall be entitled to be paid fees for work done by him, or his firm, on • In larger offices, have an office policy on solicitors acting as the basis that he were not one of my executors but employed to act on executors. Does the firm insist on a particular partner being behalf of my executors. appointed? Is it an individual solicitor that is appointed, or the firm? If partners of the firm are being appointed, consider the following If an individual is being appointed, should that solicitor notify a appointment: partner in the firm of the intention to appoint him or her? I HEREBY APPOINT the firm of solicitors practising under the style of Sue and Grabbit of Easy Street as executors and trustees of my will, It is vital that you include a charging clause if you wish to be paid for with the proviso that it shall be the partners of the said firm at the date your work in the administration of an estate. You also should consider of my death who shall be entitled to act as my executor. what the testator is looking for and draft accordingly. Does he want you Be especially careful if you are appointed executor and the testator personally to act as executor? Does he want the partners of your firm has specific provisions concerning their funeral arrangements. These to act? If the latter, does he want the partners at the time when the will need to be made known to the persons who will be dealing with the was drawn up – or at the date of the testator’s death – to act? testator’s funeral arrangements.
significant benefit passing to a charity. progress of the administration of the estate, often on • The estate may be complicated. It may include a an informal basis. This can put an extra burden on large or dispersed set of assets that will lead to the solicitor who is acting as executor. difficulties in their collection and disposal. Conflict – there are a number of potential points • The testator may have a long relationship with, “Many of the of conflict. Remember that you will probably have and has relied on, the solicitor, and wants the advised the testator for a considerable period prior solicitor to act. difficulties to their death. On their death, that relationship • Banks and accountancy practices offer to act as reported to the changes in degree only, as you are now acting in the professional executors, so there is no reason why administration of his estate. If a lay executor is a solicitor should not offer that same service to Law Society by appointed, your responsibility is to advise and assist their clients. way of the executor in the proper administration and distribution of the estate. If you are acting as Think twice complaint in executor yourself, you are personally stepping into There are also good reasons, however, why you probate cases the testator’s shoes in a way you did not do when should think twice before you act: the testator was alive. The change in the Communication – many beneficiaries will seek could be avoided relationship is very fundamental, and you need to to get information from the executor on the if the solicitor consider this change carefully. kept the Administering the estate LOOK IT UP Where you have been appointed executor, and the beneficiaries Cases: testator dies, there are particular matters you need • Learoyd v Whiteley (1886 33 Ch D) informed of the to have regard to: • Rojack v Taylor and Another, High Court, 10 progress of the Costs – one of your first steps as a solicitor February 2005 [2005] IEHC 28 advising a lay executor is to agree costs for administration administering the estate. You will typically agree Legislation: on a regular these costs with the executor, and then inform the • Solicitors (Amendment) Act 1994, section 68 residuary beneficiaries of the will of the agreement. • Taxes Consolidation Act 1997 basis” After all, these are the people who will ultimately be responsible for paying the bill. Literature: Where you are the appointed executor, you • Brian Spierin, The Succession Act 1965 and cannot agree fees with yourself. For the purposes of Related Legislation: A Commentary (Dublin: section 68 of the Solicitors Act, a client includes a Butterworths, 2003) beneficiary under a trust, will or intestacy. It follows, therefore, that you must inform the
26 www.lawsociety.ie COVER STORY LAW SOCIETY GAZETTE JULY 2008
residuary beneficiaries of the proposed charges. This is true of all administrations. In Britain, the Office for Supervision of Solicitors states that, in general, it will not entertain a complaint about fees where there is a lay person acting as executor, but will investigate the complaint where the executor is a solicitor. The position in Ireland is different, in that a residuary beneficiary is a client within the meaning of section 68. The point, nonetheless, is reinforced that your obligations where you are executor are more onerous. Communication – many of the difficulties reported to the Law Society by way of complaint in probate cases could be avoided if the solicitor kept the beneficiaries informed of the progress of the administration on a regular basis. Ideally, the letter should inform the beneficiary of what has happened to date and that a further update will be furnished within a period of time. This is true of every administration, but particularly one where the informal point of contact with the lay executor does not exist. It may also reduce the incidence of beneficiaries contacting you for updates. Additional liabilities – be aware of the added responsibility that comes with being executor. You will personally swear the Revenue affidavit – any error in it will be yours. As executor of the estate, you have a secondary liability for any tax due in the administration of the estate. This is a mantle you adopt when you volunteer to act as executor. Under section 1047 of the Taxes Consolidation Act 1997, the executor is personally responsible for any pre-death income tax arising to the testator. It is settled law that a professional executor has a higher duty of care than a lay executor (Learoyd v Whiteley). Independent legal advice – generally, as the solicitor acting in an administration, it is your role Swimming lessons can to advise the executor. In this case, you are the be a useful skill when acting as executor for executor. Take care, therefore, when the your clients beneficiaries come looking for advice from you. It may be prudent to encourage them to seek independent advice at the outset of the estate, and Mr Spierin’s commentary reinforces the administration. need for a professional executor to be particularly Brian Spierin, in his book The Succession Act conscious of his role and function as executor. 1965 and Related Legislation: A Commentary, stated that he was of the opinion that it would be Consider this imprudent for an executor, particularly a In summary, if you have acted for the testator, and professional executor, to advise a beneficiary of then act advising the executor of your late client’s their right to take a section 117 claim against an estate, the change in role is a subtle one. Where you estate. act as the executor of the estate, your role has In Rojack v Taylor and Another, Judge Quirke changed more acutely. You should be aware of these quoted Mr Spierin’s view with approval. In that changes and ensure that you are ready to meet the case, the executor was the daughter of the testator, new challenges. G who unsuccessfully sued the solicitor for alleged breach of duty in failing to advise her of her right Tom Martyn is a partner in the Sligo law firm to make such a claim. McDermott, Creed & Martyn and is a member of the The case illustrates the potential for conflict Law Society’s Probate, Administration and Trusts that arises where an executor is a beneficiary of an Committee.
www.lawsociety.ie 27 LAW SOCIETY GAZETTE JULY 2008 FAMILY LAW Breaking up IS HARD TO DO Advising on and drafting a prenuptial agreement is fraught with difficulty. Ann FitzGerald looks to the Report of the Study Group on Prenuptial Agreements for marriage guidance
n a survey reported by KPMG Accountants in certain procedural requirements and also to allow a November 2007, almost half (47%) of private court to vary the agreement. business owners were reported as being The report recommended the following: “concerned about the impact of divorce or a 1) That an express statutory provision be made to I family dispute on their businesses”. Of those recognise PNAs by introducing a new section questioned, nearly two-thirds (64%) of the 16(2)(a) of the Family Law Act 1995 and a new respondents said they had not taken any measures to section 20(3)(a) of the Family Law (Divorce) Act protect those who would eventually inherit the 1996. At present, section 20(3)(a) of the 1996 act business from them. provides for the court to have regard to the terms of It is clear that the business community is concerned any separation agreement that has been entered that well-managed succession arrangements are put in into by the spouses and still in force. The report place to protect both business owners and their recommends that a new section be inserted to employees in the event of the marriage breakdown of allow the court to have regard to a PNA. This a primary shareholder. There is no reason why a would, in turn, allow a court to examine and limited prenuptial agreement (PNA) could not answer scrutinise a PNA, which is subject to different these concerns in appropriate cases. Postnuptial considerations than a separation agreement, and agreements may also be appropriate, so that well- therefore an additional separate provision should organised, hard-working members of the public can be made to provide for same. provide for the possible eventuality of a separation or 2) The study group recommends that no amendment divorce, while also ensuring that the other spouse is be made to section 16(2) of the Family Law Act protected and provided for within the law. 1995 or section 20(2) of the Family Law (Divorce) Act 1996. These sections deal with the various Study group recommendations factors to be considered by the judge in exercising PNAs and their legal status in Ireland has been his or her decisionmaking power on separation or considered fully in the Report of the Study Group on divorce. In the opinion of the study group, the Prenuptial Agreements submitted to the Minister for inclusion of a PNA as one of the factors would not Justice in April 2007. The report reviews the law, represent a sufficiently transparent way of showing both in Ireland and elsewhere, puts the arguments whether or what weight had been attached to the for and against their recognition, and makes useful agreement. It would place the execution of such an MAIN POINTS and timely recommendations. In addition, it reviews agreement on a par with factors such as the age of • Report of the all the recent Irish case law on ‘proper provision’ and the parties, the duration of the marriage, and so on. Study Group on ‘finality’ and how these might impact on the 3) Given the provisions of section 113 of the Prenuptial enforcement of PNAs. It is written in clear, concise Succession Act 1965, it is possible that a PNA might Agreements and forthright language. legally provide for the division and distribution of • Drafting a It sets out that PNAs are reckoned to be assets in the event of the death of one of the prenuptial enforceable in Ireland, but should be open to variation spouses. Thus, as a result of the passage of time or agreement by a court in exercise of its discretion – both at judicial other intervening events, it is possible that a • The use of separation and more particularly on the making of a spouse could suffer hardship in the event of death, questionable divorce. The study group took the view that a PNA where the provisions of a PNA were enforced that clauses would be recognised and recommended legislation included a renunciation of the legal right share of both to clarify the legal position and to improve the surviving spouse on death. Section 113 is not
28 www.lawsociety.ie FAMILY LAW LAW SOCIETY GAZETTE JULY 2008
much used at present, but legislation in this field is carefully followed for a valid PNA to come into likely to increase the number of PNAs and effect. The group recommends that the Family Succession Act renunciations. Law Act 1995 and the Family Law (Divorce) Act The study group recommends that a statutory 1996 be amended to include a definition of a provision should be introduced providing for the PNA, so that, for an enforceable agreement, it court to have an opportunity to review the must be in writing, signed and witnessed, made renunciation on similar terms as section 15A of after each party has received separate legal advice, the 1995 act or section 18 of the 1996 act and to with full disclosure of financial information, and make provision for a surviving spouse, executed by both parties not less than 28 days notwithstanding the existence of a waiver, and that before the intended marriage. the court have the power to make provision for a surviving spouse where the existence of a PNA Drafting a prenuptial agreement might give rise to an injustice. Otherwise, the There is little doubt that advising on and drafting a provisions in section 15A of the 1995 act and PNA is fraught with difficulty. In the first place, section 18 of the 1996 act, whereby a spouse can there is uncertainty surrounding its enforceability. In seek provision out of the estate of a deceased the case of a short marriage, it will almost certainly spouse, only applies in cases of marriage be of persuasive power if the reasonable formalities breakdown and not otherwise. are fulfilled in its drafting and if each of the parties 4) The study group recommends that certain had independent legal advice with reasonable formalities and procedural requirements must be financial disclosure. Arguably, if the terms of the
www.lawsociety.ie 29 LAW SOCIETY
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agreement are fair, it is more likely to be enforced and ‘balance sheet’ on breakdown, but with a proviso that to satisfy the ‘proper provision’ test for each spouse. the asset cannot be sold. This is a big thing to be asked of the unfortunate Some company lawyers have also devised a so- solicitor advising a client. If the marriage survives, you called ‘poison shareholding clause’ to protect a will probably never hear from the client again. If it family business built up over many decades. breaks down, the solicitor may end up as a witness in Whether such devices will stand the test of close court in relation to disclosure and the timing of the judicial examination remains to be seen. Whether agreement. Further, it may be unwise or impossible disclosure should be provided by ‘affidavit of means’ for either solicitor involved in the PNA to act for may also require consideration. either party on the separation or divorce if the validity So-called ‘sunset clauses’ also are an option to of the PNA is an issue raised by either party. consider, whereby a PNA could provide for a review The result is that, both in the US and Australia, of the agreement to be carried out after a specified many family lawyers refuse to draw up PNAs, given period, for example, two or five years, with the that the risk of a negligence action is high and the possibility that the agreement would expire after a benefit to the lawyer in financial terms would be small further stated period. Whether such a clause would in comparison. be recognised in Ireland remains to be tested. The study group did not favour the use of sunset clauses. Sunset clauses There is a pressing need for reform to make such There is a demand for such agreements and, in certain agreements fully recognised and enforceable within limited cases, you may find that, as a practitioner, the framework of the existing family law legislation. drafting such an agreement is advisable. A PNA may Failure to legislate will result in more couples opting be adapted to suit the needs of the particular case – for for cohabitation as opposed to marriage, which example, to protect property for children of a first renders at least one of the parties in a very weak marriage. A PNA can be a useful tool to protect long- position legally in the event of breakdown. This established assets where there are other assets available position does not serve the public well. G to provide for the spouse. A clause could be included, for example, to protect a pre-existing business asset, Ann FitzGerald is senior partner at FitzGerald whereby the value of it will be added to the couple’s Solicitors.
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www.lawsociety.ie 31 LAW SOCIETY GAZETTE JULY 2008 CONSUMER PROTECTION
TERMS CONDITIONS When it comes iven the extent to which the general concerned with housing loans by mortgage lenders, to advertising public in Ireland is exposed to makes certain incidental provision in respect of advertisements for financial products advertisements for housing loans. The provisions of financial and services, one might expect there to part IX do not operate separately from the provisions be a single statute that would address contained in part II. Thus, an advertisement that services, the G the difficulties that inappropriate and unregulated publicises credit for a housing loan will be subject to ‘usual terms financial advertising presents. Instead, there are a the requirements contained in the stated parts of the number of key laws and codes that overlap to a greater 1995 act. The Consumer Credit Act requires that and conditions or lesser extent in the provision they make regarding prominent warnings be included in financial apply’ – but financial advertisements. This article briefly considers advertisements, information documents, application the swathe of law, regulation and self-regulatory codes forms and approval documents, which now form an what about the that must be navigated by a person minded to publish increasingly substantial portion of such documents. ‘sneaky ones’? a financial advertisement in Ireland. Anybody wishing to publish a credit advertisement The first port of call for anyone publishing a should also be aware at all times of the prohibition Max Barrett financial advertisement in Ireland relating to credit is on advertising credit to minors, contained in part X peers at the the Consumer Credit Act 1995. Part II of that act is of the 1995 act. Breach of this prohibition, as well as concerned with the advertising and offering of other advertising provisions of the Consumer Credit small print financial accommodation. Part IX of the act, which is Act, is a criminal offence.
32 www.lawsociety.ie CONSUMER PROTECTION LAW SOCIETY GAZETTE JULY 2008
ASAI CODE OF STANDARDS The Code of Standards for Advertising, Promotional and Direct Marketing in Ireland is published by the Advertising Standards Authority for Ireland (ASAI). The authority was established by the advertising industry as an independent self-regulatory body seeking to promote the highest standards of advertising, promotional marketing and direct marketing. Its Code of Standards is based on principles established by the International Chamber of Commerce, which require that all marketing communications “be legal, decent, honest and truthful”, “be prepared with a sense of responsibility to consumers and to society”, and “respect the principles of fair competition generally accepted in business”. The code comprises a series of general and then sector-specific rules that are intended to ensure that marketing communications do not mislead or cause general offence. An entity seeking to advertise financial products and services in Ireland cannot generally avoid encountering the code in practice. Any person who considers that a marketing communication has breached the code may institute a complaint before the ASAI. Alternatively, the authority may itself investigate matters that it identifies as part and of its own compliance-monitoring programme. APPLY Under section 135 of the Consumer Credit Act (as provisions are covered in section 44, which makes amended), the Central Bank and Financial Services specific provision relating to misleading competitors or Authority may, if it considers it expedient to do so, causing product confusion through marketing or give a direction to any mortgage agent on the matter advertising. Sections 55(1) and (3) of the Consumer and form of any advertisement or information Protection Act identify numerous prohibited commercial document published or displayed by or on behalf of practices, some of which are of interest in the context the agent in relation to a housing loan. At the time of of financial advertisements. A trader who contravenes MAIN POINTS writing, two such directions have issued and contain a section 55(1) or (3) of the 2007 act is guilty of an • Financial significant level of detail that must be included in offence. advertisements – financial advertisements. Under section 135(3) of the The European Communities (Misleading and key laws and Consumer Credit Act, a mortgage agent must comply Comparative Marketing Communications) Regulations codes with a section 135 direction. Failure to do so is a 2007 implement the Misleading and Comparative • Unfair, misleading, criminal offence. Advertising Directive. The general purpose of the aggressive and regulations is to protect traders from misleading prohibited I don’t want it marketing communications and prohibited comparative practices Part 3 of the Consumer Protection Act 2007 is concerned marketing communications of other traders. • Broadcasting with unfair, misleading, aggressive and prohibited Though the regulations do not seek to benefit legislation commercial practices. Misleading commercial practice consumers directly, an indirect benefit to consumers
www.lawsociety.ie 33 LAW SOCIETY GAZETTE JULY 2008 CONSUMER PROTECTION
arises. The term ‘marketing communication’ is size and prominence as to be clearly legible (linked defined in regulation 2(1) of the regulations as “any to the relevant part of the main copy, where form of representation made by a trader in appropriate) (chapter 7, paragraph 6). connection with a trade, business or profession in order to promote the supply of a product”. Like it, love it, need it Regulation 3 prohibits traders from engaging in Although Irish broadcasting legislation is not directed at a “misleading marketing communication”. financial product and service providers, it is, Regulation 4 prohibits traders from engaging in a nonetheless, of practical interest to them – not least in “prohibited comparative marketing that such legislation determines whether and when communication”. Under regulation 5, the principal broadcast advertising by such providers will be allowed. remedy for a trader who believes himself to have At the time of writing, a Broadcasting Bill has been been adversely impacted by a misleading marketing initiated before the Seanad and it is anticipated that this communication, or a prohibited marketing bill will make significant amendments to the current communication, is to apply for a Circuit or High broadcasting regime, including the dissolution of the Court order prohibiting the offending trader from Broadcasting Commission of Ireland and the engaging or continuing to engage in the offending Broadcasting Complaints Commission and their communications. replacement by a new Broadcasting Authority of Ireland. It is not anticipated at this time that there will be Consume me significant changes to the General Advertising Code and The Consumer Protection Code, published by the Financial Regulator, is the most significant non- legislative measure concerned with the LOOK IT UP advertisement of financial services in Ireland. It has been adopted pursuant to, among other provisions, Legislation: section 33S(6) of the Central Bank Act 1942. The • Betting Act 1931 significance of this is that a breach of the code • Broadcasting Act 2001 constitutes a ‘prescribed contravention’ for the • Broadcasting Bill 2008 purposes of section 33AN of the Central Bank Act “There are a • Building Societies Act 1989 1942, punishable in the first instance by the number of key • Central Bank Act 1942 Financial Regulator, pursuant to the sanctions • Central Bank Acts regime established by part IIIC of the 1942 act. laws and codes • Consumer Credit Act 1995 The Consumer Protection Code is wider in scope that overlap to a • Consumer Protection Act 2007 than the Consumer Credit Act 1995. Its definition of • Copyright and Related Rights Act 2000 who constitutes a ‘consumer’ is considerably wider, greater or lesser • Credit Union Act 1997 and its focus is broader than consumer credit. That extent in the • Data Protection Acts 1988 and 2003 said, there is a degree of overlap between the two • Equal Status Act 2000 measures. In this regard, the Financial Regulator provision they • European Communities (Distance Marketing of has stated that it does not seek in the Consumer make regarding Consumer Financial Services) Regulations 2004 Protection Code to duplicate any warning statement • European Communities (Misleading and Comparative requirements already contained in the Consumer financial Marketing Communications) Regulations 2007 Credit Act – compliance with the relevant advertisements” • Investor Compensation Act 1998 requirement of the Consumer Credit Act being • Markets in Financial Instruments and Miscellaneous deemed to constitute compliance with the Consumer Provisions Act 2007 Protection Code in this regard. • Misleading and Comparative Advertising Directive The Consumer Protection Code comprises seven • Sale of Goods and Supply of Services Act 1980 chapters. Although chapter 7 is expressly concerned • Television without Frontiers Directive with advertising, there are provisions relevant to • Trade Marks Act 1996 advertising in various other chapters. Perhaps one • Trustee Savings Bank Act 1989 of the more visible results of the code has been a • Unit Trusts Act 1990 general expansion of the advisory text and warnings contained in financial advertisements. Literature: This is attributable in part to the requirements in • Advertising Standards Authority for Ireland, Code of the code that all warnings required by the code be Standards for Advertising, Promotional and Direct prominent – that is, in a box, in bold type and “of a Marketing in Ireland, www.asai.ie font size that is larger than the normal font size • Broadcasting Commission of Ireland, General used throughout the document or advertisement or Advertising Code and Children’s Advertising Code, information document” (chapter 2, paragraph 6) – www.bci.ie and that the design and presentation of an • Financial Regulator, Consumer Protection Code, advertisement allow it to be clearly understood, www.financialregulator.ie with small print and footnotes being of sufficient
34 www.lawsociety.ie CONSUMER PROTECTION LAW SOCIETY GAZETTE JULY 2008
the Children’s Advertising Code, adopted under section the Credit Union Act 1997, the Data Protection Acts 19 of the Broadcasting Act 2001, by the Broadcasting 1988 and 2003, the European Communities (Distance Commission of Ireland. The codes are directed at Marketing of Consumer Financial Services) Regulations broadcasters, but are of practical significance for 2004, the Equal Status Act 2000, the Investor financial product or service providers in that their Compensation Act 1998, the Markets in Financial provisions will be applied by broadcasters in Ireland to Instruments and Miscellaneous Provisions Act 2007 (and any radio or television advertising that providers may other MiFID legislation), the Sale of Goods and Supply seek to broadcast. of Services Act 1980, the Trade Marks Act 1996, the Trustee Savings Bank Act 1989, and the Unit Trusts Act Lean on me 1990, in each case where and as amended from time to Consistent with the principle of home-state time – and the amendments have been manifold. supervision established under the Television without There is an increasingly complex tapestry of law, Frontiers Directive – whereby television stations are regulation and self-regulation applicable to the obliged to conform with the rules laid down in the publication of financial advertisements in Ireland. jurisdiction in which they are licensed – prominent Indeed, the abundance of legal, regulatory and self- foreign television broadcasters such as the BBC, regulatory requirements now applicable to the Channel 4, ITV and Sky TV are not required to publication of financial advertisements makes comply with the terms of the BCI’s General Advertising compliance with those requirements a significant Code. At the time of writing, alleged breaches of the challenge for financial product and service General Advertising Code and/or the Children’s providers generally. With enforcement of the Advertising Code are investigated and decided by the requirements becoming ever more rigorous, it is a Broadcasting Complaints Commission. challenge that such providers cannot afford to The above measures are general measures that ignore or fail to meet. G affect advertising. There is also an array of law and regulation that makes incidental provision as to Dr Max Barrett is head of legal at National Irish Bank advertising, including, but not limited to, the Betting and the author of Financial Services Advertising: Law Act 1931, the Building Societies Act 1989, the Central and Regulation (Clarus Press, 2008). Any views Bank Acts, the Copyright and Related Rights Act 2000, expressed in this article are entirely personal.
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www.lawsociety.ie 35 LAW SOCIETY GAZETTE JULY 2008 COMPANY LAW it ain’t whatwhat youyou Following last month’s article on the Fyffes case and the tests used in assessing whether a particular piece of information is price sensitive, Conor Feeney looks at another bunch of related issues
ast month’s article looked at the tests used the hypothetical impact of the information on the in assessing whether a particular piece of market against certain factors already in the market. information is price sensitive. It addressed, Denham J found that this approach was not provided in particular, the tests employed by the for in the statute and that it involved making “an L courts in Fyffes v DCC and analysed their arbitrary choice” from the “myriad factors at play in relevance under the new statutory regime provided the market”. Denham J concluded that “the by the Market Abuse (Directive 2003/6/EC) Regulations information disclosed a risk, and bad news for Fyffes, 2005. This article deals with three other issues and this was not altered by making it generally arising from Fyffes: available to the market. Other information, including • Can the court look at the information standing the ‘offsets’, was already in the public domain.” alone, or can it ‘offset’ the potential impact of the Fennelly J further explained: “The very notion of information against other market factors? offset supposes that there is something to ‘offset’. It • Can a post-disclosure market event be of suggests a balancing of one influence against evidential value in assessing price sensitivity? another. If the effect of the [internet] venture was to • Can a statutory claim of insider dealing be counteract or to cancel the effect of the ‘bad news’, it defeated by a fundamental incongruity in the would still have materially affected the price.” plaintiff’s position? There is no reference to the ‘offsetting’ of factors in the new statutory test provided under the Market ...it’s the way that you do it Abuse Regulations. However, it is submitted that this So, must the court look at the information standing process is a legitimate step in applying the alone, or can it ‘offset’ the potential impact of the reasonable investor test and that the Supreme Court information against other market factors? While decision in this regard might be distinguished as only Laffoy J in the High Court found that the information applying to the old test under section 108(1) of the was “unquestionably bad news about Fyffes’ trading Companies Act 1990. and earnings performance in the first quarter” and was of a type and quality that was potentially price True confessions MAIN POINTS sensitive, she refused to accept that this was the end of Under the ‘market effect’-based approach employed • Insider trading and the matter and went on to hold that the negative by the Supreme Court, the question to be answered is manipulation of impact of the information would have been ‘offset’ by whether the piece of information is a factor having an price-sensitive certain factors that negated the price sensitivity of the effect – whether positive or negative – on market information information. For instance, she found that the price. As Fennelly J emphasised, in this approach • Measuring price reasonable investor would have concluded that the there is no requirement to balance the influence of the sensitivity in impact of the information would have been offset by information against any other market factor and the insider dealing the prospects of a merger or a major acquisition, as effect of the information can be looked at in isolation. claims well as the potential of an internet-based venture that By contrast, under the reasonable investor test • High Court and was being pursued by Fyffes and had been the main required by the Market Abuse Regulations, which was Supreme Court driver of the share price. analysed in last month’s article, the question is approaches The Supreme Court rejected Laffoy J’s approach whether the information would have been likely to in this regard. It held that the court could not ‘offset’ have been used by the reasonable investor as part of
36 www.lawsociety.ie COMPANY LAW LAW SOCIETY GAZETTE JULY 2008 dodo......
Does the difference between the judgments the basis of his investment decisions, taking into formulation of the reasonable investor test. of the High and Supreme account the various other factors at play in the Support for such an approach under the new Courts suggest a market that are influencing the price of the relevant regime might be found in the related Market Abuse banana split? instrument. In this test, a process of offsetting is Rules, which have been adopted by the Financial essential if one is to assess whether a piece of Regulator. Rule 5.3 of those rules requires an issuer, information would have been positively put to use by when conducting the reasonable investor test, to take the reasonable investor in his decisions and would account of the fact that “the significance of the have formed part of the basis of those decisions. It is information” will vary depending on “recent not enough that it would have been a mere factor developments” and “market sentiments”. Further, the going into the mix. In this way, despite the fact that a issuer must account for “any other market variables piece of information is found to be objectively likely to affect” the financial instrument in the negative news about the issuer of shares, the court circumstances. Further support is to be found in the may find that, when offset against other stronger first recital in Commission Directive 2003/124/EC, factors playing on his mind, it would nevertheless one of the implementing directives for the Market not have been used by the reasonable investor in his Abuse Directive, which states that, in assessing whether investment decisions in relation to that issuer. information would have been used by the reasonable investor in making his investment decisions, one must I heard a rumour “take into consideration the anticipated impact of the The above argument is based on the formulation of information in light of … any other market variables the reasonable investor test as set out in the likely to affect the related financial instrument”. regulations. As discussed in last month’s article, Of course, it remains to be seen how the courts there is a potentially significant difference of will approach this issue under the Market Abuse emphasis between that formulation and the one Regulations. Clearly, much will depend on the view employed by Laffoy J, which focused on what taken of the applicability of the reasonable investor would have impacted on the judgement of the test and its formulation. However, it is reasonable to reasonable investor, rather than what would have conclude that, given the change in the law affected been used by him in his investment decisions. It by the regulations, the question of offsetting would would appear that the process of offsetting lends at the very least be a live issue in any future claim of itself even more readily to the new statutory insider dealing.
www.lawsociety.ie 37
COMPANY LAW LAW SOCIETY GAZETTE JULY 2008
Can a post-disclosure market event be of between, on the one hand, Fyffes’ assertion that, on evidential value in assessing price sensitivity? receipt of the trading reports in question, the A crucial aspect of Laffoy J’s judgment in alleged insider dealer, Mr Flavin, had in his Fyffes was her decision to exclude the possession price-sensitive information and, on the evidence of the market reaction to a profit other hand, the fact that Fyffes did not consider at that warning given by Fyffes between four and six time that the very same information triggered its duty weeks after the share sales that were the subject of of disclosure under the listing rules of the Irish Stock the insider dealing claim. The judge held that a post- Exchange, which employed essentially the same test for disclosure market event was only of evidential value if: price sensitivity as section 108(1) of the 1990 act. 1) There was parity of information between the alleged In addition, DCC highlighted other apparently price sensitive information and the information that “Extreme contradictory actions on the part of Fyffes, such as the was the subject of the post-disclosure market event, caution will be purchase of a congratulatory bottle of champagne for and Mr Flavin. DCC did not pursue an estoppel argument 2) The market conditions were the same on the date of exercised before in their final submissions to the court, but rather the alleged insider dealing and the date of the post- such evidence is argued that Fyffes’ conduct was evidentially significant disclosure market event. in the determination as to whether the information in allowed to be a issue was price sensitive. In the end, having concluded Laffoy J refused to allow the profit warning to be used determinative that the information was not price sensitive, Laffoy J as a proxy, as she found that it failed to satisfy both was not required to deal with this issue; however, she elements of that two-part test. factor in a claim did state that, if the statute could accommodate such a of insider fundamental incongruity, it would seem to be “at Robert De Niro’s waiting variance with fairness and justice”. The Supreme Court unanimously held that the High dealing” The Supreme Court acknowledged this fundamental Court had erred in excluding this evidence and found incongruity, but found that it did not affect its finding it to be of evidential value in assessing the price of insider dealing. Finnegan J held that, given that the sensitivity of the information in issue. The court test to be applied was an objective one, the subjective favoured a more relaxed attitude to the use of a appreciation of Fyffes’ directors was not determinative subsequent market event as a proxy or comparator in on the issue of price sensitivity but merely went “into assessing the price sensitivity of a piece of information. the mix of evidence available as showing that The two pieces of information were not required to be LOOK IT UP experienced, responsible executive and non-executive identical. Any differences in the information and the Cases: directors of a public company had reached that market conditions would be matters affecting the • Fyffes plc v DCC plc, appreciation”. weight afforded to the evidence, rather than requiring S&L Investments Ltd, Fennelly J suggested that the fundamental its exclusion. James Flavin and incongruity was a quirk that arose from the unusual Given the importance placed by the Supreme Court Lotus Green Ltd nature of the proceedings, in which the plaintiff was in Fyffes on the evidence of the market reaction to the (Supreme Court, 27 not a disgruntled shareholder, but rather the company profit warning, and the fact that the Market Abuse July 2007 [2007] that had issued the shares that were the subject of the Regulations do nothing to restrict such evidence, it IESC 36; High Court claim. It would seem that this is liable to arise again, as would seem that the use of evidence of a post- (Laffoy J), 21 section 33(1) of the Investment Funds, Companies and disclosure market event as a proxy in assessing price December 2005 Miscellaneous Provisions Act 2005, which governs liability sensitivity will be a key factor in any future claim of [2005] IEHC 477) for insider dealing under the Market Abuse Regulations, insider dealing. Again, support can be found in specifically provides for a remedy for issuers such as Commission Directive 2003/124/EC, which states, in Legislation: Fyffes. It was open to the legislature to condition the the second recital, that “ex post information may be • Commission Directive availability of relief under the new legislative regime by used to check the presumption that the ex ante 2003/124/EC reference to the conduct of the plaintiff, but, once information was price sensitive”. • Companies Act 1990 again, it chose not to do so. The more permissive, weight-based approach of the • Investment Funds, Supreme Court will thus apply. However, it should be Companies and Do not disturb pointed out that, while the court will not automatically Miscellaneous It is clear that the Market Abuse Regulations have thrown exclude such evidence by reason of differences in Provisions Act 2005 wide open many of the issues dealt with by the courts information or market conditions, the Fyffes judgments • Market Abuse in assessing price sensitivity in Fyffes. If another plaintiff emphasise that extreme caution will be exercised Directive with the stomach and the resources to bring an insider before such evidence is allowed to be a determinative (2003/6/EC) dealing claim ever appears again, the courts will have to factor in a claim of insider dealing. • Market Abuse address these issues and bring clarity to the question of (Directive price sensitivity. More than most other areas of law, this Really saying something 2003/6/EC) is one that desperately needs clearly defined principles Can a statutory claim of insider dealing be defeated by Regulations 2005 (SI if it is to have its intended effect and influence the a fundamental incongruity in the plaintiff’s position? In 342 of 2005) activities of those dealing in the market. G her judgment, Laffoy J found that there was “an • Market Abuse Rules inherent incongruity in reason and common sense” Conor Feeney is a Dublin-based barrister.
www.lawsociety.ie 39 LAW SOCIETY GAZETTE JULY 2008 MENTAL HEALTH FarFar fromfrom thethe Now that mental health tribunals have been in operation for the past 18 months or so, it might be useful to examine how they are working out in practice and to reflect upon some aspects of their operation, says Gary Lee
he Mental Health Act 2001 established the by tribunals. While patients are detained pursuant Mental Health Commission “to promote, to admission or renewal orders, a review by a encourage and foster the establishment tribunal is mandatory, the tribunal having to and maintenance of high standards and consider the case within 21 days of the making of T good practices in the delivery of mental the order. If the order is revoked by the psychiatrist health services and to take all reasonable steps to prior to the review, the patient may elect to have his protect the interests of persons detained in approved or her detention reviewed. centres” (‘approved centre’ being defined as a In addition to referring the matter to a tribunal, registered “hospital or other in-patient facility for the commission must arrange to have the patient the care and treatment of persons suffering from examined by an independent psychiatrist and must mental illness or mental disorder”). also assign a legal representative (usually a solicitor) The main sections of the act became operative on to represent the patient concerned (unless he or she 1 November 2006. These provide the procedures to proposes to engage one). admit and detain persons suffering from a ‘mental disorder’ (as defined by section 3 of the act), together The power to extend duration with the automatic review of the detention by a Procedures are determined by the tribunal. However, mental health tribunal. it has to make provision for certain matters provided for by the act, such as the requirement that sittings Involuntary admissions be held privately. Typically, although not exclusively, a spouse or The legal representative and witnesses are entitled relative will apply to a registered medical to the same privileges and immunities as in a court. practitioner (RMP), usually the person’s GP, for a The tribunal has the power to direct any person recommendation to have the person involuntarily whose evidence is required to appear before it and to admitted to an approved centre. The RMP then produce “any document or thing in his or her examines the person within 24 hours and, if possession or power specified in the direction”. A satisfied that the person is suffering from a mental person who disobeys any such direction or a person disorder, may then proceed to make a who does something that would amount to a recommendation that the person be involuntarily contempt of court “shall be guilty of an offence” and admitted. liable to a fine of up to €1,500 or 12 months’ Within 24 hours of such an admission, an examination has to be carried out by a consultant psychiatrist of the staff of the hospital concerned. If that psychiatrist is satisfied that the person is TRIBUNAL MEMBERS suffering from a mental disorder, he or she can Mental health tribunals consist of three members: make an involuntary admission order (which can a) A consultant psychiatrist, last up to 21 days) for “the reception, detention and b) A practising barrister or solicitor who has had not MAIN POINTS treatment” of the person. Once this order is made, less than seven years’ experience as a practising • Mental health the person becomes a ‘patient’ within the meaning barrister or solicitor ending immediately before tribunal of the act, and the commission is notified. such appointment, who shall be the chairperson procedures and The commission then refers the matter to a of the tribunal, and hearings mental health tribunal (chaired by either a solicitor c) One shall be a person other than a person • Involuntary or barrister) for review. referred to in paragraphs (a) or (b) or a registered admission It is the patient’s detention that is reviewed by medical practitioner or a registered nurse. • Extending the the tribunal. The patient’s psychiatrist may also duration of an make subsequent orders providing for further As noted, it is the function of the barrister or admission order periods of detention – such subsequent orders are solicitor to chair the tribunal. known as renewal orders. These are also reviewed
40 www.lawsociety.ie MENTAL HEALTH LAW SOCIETY GAZETTE JULY 2008 MADDINGMADDING crowdcrowd
Things ain’t what they used to be: the bad old days of the imprisonment or both. 15(1), is to confer upon the tribunal the power to ‘Bedlam’ Asylum Prior to the hearing, the tribunal members extend the duration of an admission order for up to consider the independent psychiatrist’s report and 28 days. However, as Mr Justice Sheehan held in JB the hospital records. v Director of the Central Mental Hospital and Others, Legal submissions regarding procedural matters section 18 does not operate to extend the duration of and any motions for adjournments are usually heard renewal orders. at the outset of the hearing. Regarding Adjournments are not granted in the absence of a adjournments, the tribunal can adjourn to a date compelling reason, given that the patient’s liberty is within the 21-day period during which the decision at stake and that he or she may continue to be is to be given. Section 18 allows the tribunal to detained for the duration of any such adjournment. extend the period “for a further period of 14 days As regards the hearing, in my view, given the and thereafter [the period] may be further extended paternalistic nature of the act and in order not to by it by order for a period of 14 days on the undermine the doctor/patient relationship, it should application of the patient if the tribunal is satisfied be inquisitorial rather than adversarial. However, the that it is in the interest of the patient”. act is silent on this. The effect of this provision, together with that of It has become the practice to hear the evidence of
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(ii) The reception, detention and treatment of the LOOK IT UP person concerned in an approved centre would be Cases: likely to benefit or alleviate the condition of that • JB v Director of the Central Mental Hospital and person to a material extent.” Others, High Court, 15 June 2007, [2007] IEHC 201 The tribunal can affirm the admission order if it is “satisfied that the patient is suffering from a mental Legislation: disorder and • Mental Health Act 2001 i) That the provisions of sections 9, 10, 12, 14, 15 and 16, where applicable, have been complied with, or Literature: ii) If there has been a failure to comply with any such • Law Society Law Reform Committee, Mental provision, that the failure does not affect the Health: The Case for Reform (July 1999) substance of the order and does not cause an • O’Neill, Ann-Marie (2005), Irish Mental Health Law injustice.” (Dublin: FirstLaw) If not so satisfied, the tribunal shall revoke the order Website: and direct that the patient be discharged from the • Mental Health Commission – www.mhcirl.ie approved centre concerned. According to the commission, there were 2,248 hearings in 2007, of which 256 resulted in admission the responsible consultant psychiatrist (RCP) first, orders being revoked. followed by that of the patient and any other person It should be noted that tribunals also review who may be called. proposals to transfer patients to the Central Mental Hospital. Evidence considered The tribunal’s decision, together with written Essentially, the tribunal considers evidence to decide reasons, is given “as soon as may be” to the patient, whether or not a patient has a mental disorder, which his or her legal representative, the RCP and “any the act defines as “a mental illness, severe dementia other person, to whom in the opinion of the tribunal or significant intellectual disability where such notice should be given”. The tribunal has a a) Because of the illness, disability or dementia, there relatively short period of time in which to draft the is a serious likelihood of the person concerned decision – in practice, it is usually delivered within an causing immediate and serious harm to himself or hour or so following the hearing. herself or to other persons, or The reasons for the decision should be written in b) (i) Because of the severity of the illness, disability such a way as to make it accessible for the patient, or dementia, the judgement of the person and it should exhibit a certain degree of sensitivity concerned is so impaired that failure to admit the towards him/her. Once the decision is delivered, the person to an approved centre would be likely to tribunal, in my opinion, is functus officio. G lead to a serious deterioration in his or her condition or would prevent the administration of Gary Lee is a solicitor and a chairperson of mental health appropriate treatment that could be given only by tribunals. The views of the author are not necessarily those such admission, and of the mental health tribunal.
www.lawsociety.ie 43 LAW SOCIETY GAZETTE JULY 2008 INFORMATION TECHNOLOGY
GOINGThere has been a dramatic growth in the availability of Irish legal resources on the internet over the past ten years. What’s remarkable is that so many of these are available free to use from primary and authoritative providers. John Furlong breaks out his surfboard
re you a ‘digital native’ or a ‘digital immigrant’? Of the 11,000 solicitors currently on the roll, almost half (5,150) qualified after 1997 and must be assumed to be digital natives – those who grew up with digital technology, including the internet. It is fair to A assume that the rest of the profession can be termed ‘digital immigrants’ – people who grew up without digital technology but have adopted it in some form or another. Within the digital immigrant population there are likely to be different levels of experience and ability in using technology – including the internet. The 2006 Technology Committee survey of the profession indicated almost universal access by firms to the internet, with 80% of this through broadband connections. However, it is not possible to identify whether this follows through to a high usage rate by individual solicitors. A high usage rate and understanding of the benefits of the internet are vital if the profession is to maximise the benefits and efficiencies that are available from internet use. The last ten years have seen a dramatic growth in the availability of Irish legal resources on the internet. What is more remarkable is that so many of these resources are available free to use from primary and authoritative providers.
Free availability There are a number of key elements that have contributed to the wide and free-to- use availability of Irish legal materials. Some are obvious milestones, while others might be overlooked. Aside from the initial publication of the Irish Statute Book in 1997, and the establishment of institutes such as BAILII (the British and Irish Legal Information Institute) and IRLII (the Irish Legal Information Initiative), other developments have also substantially promoted the development of internet access. Not least of these was the enactment in 1998 of the Freedom of Information Act. The MAIN POINTS act not only set out the ground rules for government bodies and agencies to make • Legal information materials available (including legal information), but also confirmed governmental initiatives thinking that, as far as possible, national resources (inclusive of legal materials) • Positive impact should be made available to citizens – the latter including the legal sector! We of the Freedom of moved from an era of official secrets and narrow protection of assets to one where a Information Act positive and proactive stance was taken in making them available. • Legislation, This is now clear in 2008, where legislation, regulations, case law and official regulations, case commentaries are readily available – once a legal researcher knows where to look. law and official We have seen the provision of more and more materials on a free-to-use basis commentaries through the internet. It makes sense for providers to make materials available easily available through an internet website – it is low-cost in terms of publishing, and access by end users is immediate and universal. This has been accompanied by subscription
44 www.lawsociety.ie INFORMATION TECHNOLOGY LAW SOCIETY GAZETTE JULY 2008 NATIVE
Osama suddenly discovered the limitations of his camel-powered notebook
www.lawsociety.ie 45 LAW SOCIETY GAZETTE JULY 2008 INFORMATION TECHNOLOGY
and other arrangements for access to official databases a High Court case from its early listing in the legal (most notably the Revenue Commissioners’ ROS diary, continuing through the High Court search service, the Companies Registration Office online system to track documents filed and orders made database and the Property Registration Authority’s throughout the course of a case, and ending with the ‘Land Direct’ service). access to any written judgment. “In 2008, In effect, a practitioner can now access, on a free- The Courts Service judgments database was legislation, to-use basis, the most recent case law of the superior preceded by the availability of cases through BAILII courts, all of the legislation of the state, virtually all of (and its sister service IRLII), which now holds regulations, the regulatory material contained in statutory decisions of the High Court, Supreme Court and case law and instruments, and an array of downloadable forms and Court of Criminal Appeal from 1997 onwards. BAILII official commentaries. is also intent on providing access to notable Irish official decisions from earlier years. In addition, of course, Courts and courts decisions commentaries BAILII also provides free access to decisions of courts One of the most remarkable transformations since the within the other jurisdictions of these islands – are readily late 1990s has been the more ready availability of England and Wales, Scotland, and Northern Ireland, available – decisions of the superior courts in electronic format. It as well as providing easy-to-use access to decisions of is now possible, through the Courts Service website, the Courts of Justice of the European Communities. once a legal to access decisions of the High Court from 2004 Legislation researcher onwards, Supreme Court and Court of Criminal Appeal (both from 2001 onwards). Supreme Court One of the earliest starting points in the progress to knows where decisions are normally available on the day of, or the free availability of legal resources was the publication to look” day after, judgment is delivered. The higher volume of in 1997 of the Irish Statute Book on CD-ROM. Eleven High Court cases results in a delay in their availability, years later, all of our primary legislation – the acts of but significant progress has been made in providing the Oireachtas of the state from 1922 onwards – is access in a timely manner. In addition, through the available through the online Irish Statute Book. This is Courts Service website, it is also possible now to track further complemented by the legislation directory – available also on the Irish Statute Book website – which enables users to identify whether or not provisions of QUICK TIP FOR SEARCHING THE legislation have been amended or appealed by later legislation. This is a significant requirement when GAZETTE ARCHIVE ONLINE advising clients on legislation. • Key this into google, selecting the ‘pages from Ireland’ option and including the The service provided through the Irish Statute Book inverted commas: “Law Society Gazette” and “your search term” (for example, service is augmented by materials available through “personal injury summons”). the Houses of the Oireachtas website. Here, all • In most cases, the relevant Gazette hits should be among the first results primary legislation enacted since 1997 is available in returned. PDF format. PDF versions of acts of the Oireachtas • Then open the PDF file of that issue and use the search facility (represented by are facsimiles of the original document and can often a picture of binoculars in Adobe Acrobat) to look for the key words you want. be much easier to navigate, particularly when the • Try it with “trunk monkey”, for fun! legislation is lengthy. The Oireachtas website also provides a chronological history of its life as a bill for
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46 www.lawsociety.ie INFORMATION TECHNOLOGY LAW SOCIETY GAZETTE JULY 2008
each statute enacted since 1997. This enables research to be carried out on the various amendments made to LOOK IT UP a bill during its parliamentary progress. • BAILII: www.bailii.org • Companies Registration Office: www.cro.ie Statutory instruments and regulations • Courts Service judgments database: Again, the Irish Statute Book is the main depository of http://www.courts.ie/Judgments.nsf/Webpages/ statutory rules and orders from 1922 to 1947, and HomePage thereafter to statutory instruments from 1947 to the • Courts Service: www.courts.ie present day. As a result of the ‘Better Regulation’ • Department of Justice: http://www.justice.ie/ initiative, a procedure was established last year to also • European Union: http://europa.eu/ provide access on a more contemporaneous basis to • House of the Oireachtas: www.oir.ie recently published statutory instruments. At present, • Irish Statute Book: www.irishstatutebook.ie the additional service is available on the Irish Statute • IRLII: www.irlii.org Book website and allows access to statutory • Land Registry: http://www.landregistry.ie/eng/ instruments made during 2007 and 2008 in PDF • Law Reform Commission: http://www.lawreform.ie/ format. It is also worth noting that both BAILII and • Property Registration Authority: www.prai.ie IRLII also provide access to all of the acts of the • Revenue Commissioners: www.revenue.ie Oireachtas and to the text of most statutory instruments. Statutory instruments are produced in high volumes acceptance and use of the internet by all legal each year. Unfortunately, they are not always practitioners. immediately available on the services above. The key initiative looming ahead, of course, is Frequently, the most likely place to find a recent “We will see electronic conveyancing, which is likely to be in place statutory instrument may be the appropriate within the next within the next five years. This will see a transition departmental website. from paper-based transactions to ones that rely on 12 months the virtual procedures, culminating in the transfer of Official commentaries introduction of electronic documents as the basis for the conclusion of Under section 16 of the Freedom of Information Act a conveyancing transaction. It is highly probable that 1997, all of the prescribed agencies and governmental e-stamping by this will be linked to the introduction of e-registration bodies are required to publish a manual, setting out the Revenue – a system whereby electronic copies of documents the basis on which they administer the law. These will be filed with the Property Registration Authority manuals can be extremely useful to practitioners, as Commissioners. to complete a transfer of title. To allow all this to they set out the practice of law and the basis on which This will happen, we will see within the next 12 months the particular regulations and provisions are administered. introduction of e-stamping by the Revenue The FOI requirements have also encouraged some transform the Commissioners. This will transform the manner in departments and agencies to make available useful manner in which documents are stamped by allowing for the material, such as downloadable forms, for example. virtual stamping of electronic documents. The old which green-dye system is set to be replaced by a system of The future documents are virtual stamping and certification. Over the next few years, there will be a greater What does all this mean for the legal practitioner? proportion of ‘digital natives’ than ‘digital immigrants’ stamped by Firstly, there needs to be an awareness that so much engaged in the provision of legal services. It will no allowing for the material is available currently to make day-to-day legal longer be sufficient to provide access solely to practise a lot easier and more cost efficient. Secondly, depositories or databases of information. End users virtual practitioners need to familiarise themselves with what who regularly book airline tickets or cinema tickets stamping of is currently available so that they can grapple with the will also demand the same level of interactive service changes looming ahead. online from government departments and agencies. electronic There is little doubt that, in the next five years, we There is no doubt that the same agencies and documents” will see increasing electronic or virtual interaction departments are well aware of this, and a number of between the legal profession and various government developments will see a movement from the mere agencies and bodies. It is only a matter of time until provision of information online to greater interaction we will be conducting a lot of our business online in a with the profession. In fact, this is already happening more efficient and cost-effective manner for both our with the Revenue Commissioners’ ROS online clients and ourselves. Those who prevaricate and service, allowing for the online filing of tax returns ignore these changes will be neither digital natives (often on the basis of a beneficial arrangement such as nor digital immigrants, but will be set to lose out – as later filing deadlines). This interaction will be digital dinosaurs. G significantly developed in the next few years through a number of key initiatives. Ultimately, these initiatives, John Furlong is director of legal resources and education if they are successful, will see the development of an at Matheson Ormsby Prentice, Dublin, and a member of effective ‘e-legal sector’. This will demand a greater the Law Society’s Technology Committee.
www.lawsociety.ie 47 LAW SOCIETY GAZETTE JULY 2008 PEOPLE AND PLACES 50 years serving the profession he annual ‘golden oldies’ Matthews, John O’Connor and Tevent of the Dublin David Walley. A ’58er and past Solicitors’ Bar Association took president of the DSBA, Johnny place on 19 June in the Four Hooper, is recovering from a Seasons hotel, writes Kevin recent illness – we wish him a O’Higgins. Michael Quinlan speedy recovery. and council members John Colleagues with over 50 years O’Malley, Helene Coffey, legal service: Tommy Bacon, Pauline O’Donovan and Liam David Bell, Eileen Bourke, Fitzgerald hosted the event for William Bradshaw, Judge John colleagues who qualified in Buckley, Fionbarr Callanan, 1958. Margaret Callanan, Gerard Moya Quinlan and her son Michael Quinlan, DSBA president The guests were warmly Charlton, Fintan Clancy, welcomed by DSBA President Brendan Fitzgerald, Eithne Michael Quinlan. Guests Flanagan, Norman Grusan, included Judges Peter Michael Hayes, Gordon Smithwick and Timothy Henderson, Johnny Hooper, Crowley; Enda Marren, Noel Joan Kelly, Patrick Kilroy, Tanham and William Young; Judge Thelma King, Sean and a number of past presidents O’Ceallaigh, Colm Price, of the DSBA: Orla Coyne, Moya Quinlan, Stanley Siev, Gerry Doherty, Brian Andy Smith, Frans Handrik Gallagher, Ruadhán Killeen, van der Lee and Richard Justin McKenna, Vivian Woulfe. Margaret Callanan, Mary Nolan and John O’Connor
Margaret Callanan, Fionnbar Callanan, Gerry Charleton, Enda Marren Colm Price and Sean O’Ceallaigh and Fintan Clancy
There was a great turnout for the annual DSBA ‘golden oldies’ event on 19 June in the Four Seasons Hotel
48 www.lawsociety.ie PEOPLE AND PLACES LAW SOCIETY GAZETTE JULY 2008 PIC: LENSMEN
Meeting of the home law societies Attending the meeting of the four home law societies at Blackhall Place from 23-24 June 2008 were (back, l to r): Alan Hunter (chief executive, Law Society of Northern Ireland), Barry Finlay (junior vice-president, Law Society of Northern Ireland), John D Shaw (senior vice-president, Law Society of Ireland), Paul Marsh (vice-president, Law Society of England and Wales), Mary Keane (deputy director general, Law Society of Ireland), Desmond Hudson (chief executive, Law Society of England and Wales), Ian Smart (vice-president, Law Society of Scotland), Henry Robson (deputy chief executive, Law Society of Scotland), and Ken Murphy (director general, Law Society of Ireland). (Front, l to r): Donald Eakin (president, Law Society of Northern Ireland), Andrew Holroyd (president, Law Society of England and Wales), James MacGuill (president, Law Society of Ireland) and Richard Henderson (president, Law Society of Scotland)
PIC: ADRIAN BUTLER, THE LIMERICK LEADER
Enthusiastic Munster reception! Law Society President James MacGuill and director general Ken Murphy visited the Limerick Bar Association on 20 May 2008 for an enthusiastic discussion on topical issues. (Front, l to r): Marese Quinlisk, Eileen Whelan and Julianne Kiely. (Back, l to r): Liam Moore, Conor Delaney, Paddy D’Alton, Shaun Elder (president of the Limerick Bar Association), James MacGuill, Ken Murphy, Ger O’Neill and Rob Alfa
The Norwegian Bar Association recently celebrated the 100th anniversary of its foundation. It invited many representatives of other national Bars and Law Societies to Oslo as guests to help it mark the occasion. Among those photographed attending a function in the City Hall of Oslo, where the Nobel Peace Prize is conferred every year, were (above left): Lisa MacGuill, James MacGuill and Andrew Holroyd (President, Law Society of England & Wales) and (above right): Ken Murphy, Yvonne Chapman and William H Neukom (President, American Bar Association)
www.lawsociety.ie 49 LAW SOCIETY GAZETTE JULY 2008 PEOPLE AND PLACES Casting far and wide in Mayo ver 30 solicitors and Obarristers turned out for the 17th annual Lawyers’ Fishing Club weekend on Lough Mask in mid May. There they enjoyed some great fly-fishing out of Cushlough Bay, Ballinrobe, Co Mayo. Top prize went to Martin Foulds of Ernst & Young (Britain), who is a member of the Lawyers’ Fishing Club of England. The top legal eagle Over 30 solicitors and barristers enjoyed a two-day trip to Lough Mask for the 17th annual Lawyers’ had three trout for 4.5lbs on Fishing Club weekend claret bumble and mayfly patterns. Second place went to Dublin barrister Garnet Orange who had two trout for 2.5lbs. Almost half the group consisted of legal colleagues from Northern Ireland and England and Wales, making the event quite an international gathering of angling solicitors and barristers. Due to the success of the weekend, the legal fishing Michael O’Byrne (O’Byrne Law, Kells) and Marc Marc Bairead (Edenderry), Noel Phoenix (Belfast), fraternity plans to return to Bairéad (Nevin O’Shaughnessy, Edenderry) share barrister Peadar Ó Maoláin (Moycullen) and Peter Ballinrobe and Lough Mask in advice at the recent lawyers’ fishing weekend in Matthison (London) make landfall at Devinish the future. Ballinrobe, Co Mayo Island, Lough Mask
Dublin solicitor Simon McAleese (left) and Nick Fenton (Lisburn) about to Father and son – solicitor Jim Orange (Dublin) and his barrister son head out from Cushlough Bay for a day’s fly-fishing Garnet prepare for a peaceful day’s fishing on Lough Mask
50 www.lawsociety.ie PEOPLE AND PLACES LAW SOCIETY GAZETTE JULY 2008 Hottest ticket in town! he hottest ticket in town on between Ireland and Lesotho. T6 June was an exclusive red- The biggest struggle facing carpet private viewing of Sex Lesotho today is the prevalence and the City at Cineworld of the HIV/AIDS pandemic, Dublin, in aid of ACARA the stark consequences of Lesotho Build Project. The which are 180,000 orphans – viewing was hosted by Jeanne with over 200,000 children Boyle & Co Solicitors. having lost at least one parent. Dublin’s elite descended on The ACARA Lesotho Build Parnell Street’s Cineworld Project is part of a five-year theatre for a flood of pink commitment to provide cosmos, champagne, music and funding to assist in the high heels. It was difficult to education and safety of the At the red-carpet event were (l to r): Jessica Fergus (Lavelle Coleman), Nessa Gardiner (Lennon Heather) and Aisling Bergin (Croskerrys) tell whether there were more children of Lesotho by building labels in the movie or in the and furnishing schools, medical audience, as style was very centres, houses and halfway much the menu du jour! houses for orphans at high risk. The Lesotho Ambassador to For further information on Ireland, Mrs Mannete Ramaili the project, email: info@ attended and acknowledged the acara.ie or: jeanne@jboyle special relationship shared solicitors.ie.
Organiser of the charity event, Jeanne Boyle (Jeanne Boyle & Co), Tony Boyle (Sigma Wireless, project corporate sponsor), Mannete Ramaili (Lesotho Ambassador to Ireland) and Colette O’Sullivan (ACARA Lesotho Build Project)
Melanie Bailey (Michael Finucane), Declan Moloney (John Lanigan & Nolan) and Hilary Lynch
Victoria O’Brien (GE Legal Department) and Marie-Louise Heavey (Matheson Ormsby Prentice) were at Sex and the City
Jeanne Boyle (Jeanne Boyle & Co) and Melanie Bailey Marguerite Walsh (McAleese) and Louise Walsh (Matheson Ormsby (Michael Finucane) Prentice) were out in style at the Sex and the City viewing
www.lawsociety.ie 51 LAW SOCIETY GAZETTE JULY 2008 PEOPLE AND PLACES Golden jubilee for Phibsborough eán Ó Ceallaigh celebrated S50 years’ practice as a solicitor in Phibsborough, Dublin, with a gala ball at Blackhall Place on 14 June. Seán O Ceallaigh and Co comprises sons Ruairi and Cormac (solicitors), Aodhagan (law clerk) and Seán’s daughter Roisin (accountant and office manager). Graham Jones (partner) joined the firm in 2005. Seven other staff members greatly assist in the daily running of the firm. A branch office opened in Ashford, Co Wicklow, in 2004, and in Dundrum in 2006. Seán Ó Ceallaigh, his family, partners and staff celebrate 50 years in Phibsborough PIC: LENSMEN PIC: LENSMEN
European Court of Human Rights appointment Dr Ann Power SC was appointed as a judge at the ECtHR in January. Home and away At a dinner held in her honour at Blackhall Place on 13 June 2008 were President of the Law Institute of Victoria, Tony Burke, was a recent (front, l to r): Mr Justice John Hedigan, Judge Ann Power and James visitor to Blackhall Place, where he met with Law Society President MacGuill (Law Society president). (Back, l to r): Maura Butler, Alma James MacGuill Clissmann, Eamonn MacAodha and Siobhan Phelan
Divorce Law and Practice launched The longest day… At the launch in the Royal Irish Academy of Geoffrey Shannon’s new The Blackhall Builders are fund-raising for their trip to Zambia in July, book Divorce Law and Practice were (l to r): Mrs Justice Catherine where they will assist Habitat for Humanity to build houses for the McGuinness (president of the Law Reform Commission), Geoffrey underprivileged. On the longest day of the year, 38 trainees braved the Shannon (author), Catherine Dolan (commercial manager, Round Hall), slopes of Carrontouhill in inclement conditions on a sponsored climb, and Minister for Finance Brian Lenihan earning them almost €2,800 in sponsorship
52 www.lawsociety.ie PEOPLE AND PLACES LAW SOCIETY GAZETTE JULY 2008 Anyone for World Cup cricket? o one can deny that the NIrish cricket team put in an incredible performance in its first ever World Cup in the West Indies in 2007 – which saw it qualifying for the Super 8 stages. Irish lawyers who play the game might like to follow in their heroes’ footsteps by representing their country in the Lawyers’ Cricket World Cup, to be held in Cambridge in July and August 2009. In all, 12 international teams will take part: Australia, the Bar of England and Wales, English solicitors, India, Ireland (hopefully), Kenya, New Zealand, Pakistan, South Africa, Sri Lanka, West Indies – and one other. The inaugural tournament, held in Hyderabad, India, You too could seek to emulate Jeremy Bray’s performance at last year’s ICC Cricket World Cup during the Christmas and New Year period last year was a huge in Cambridge – college email: quintonnewcomb@ We might have seen the success, with many games being accommodation will be onepaper.co.uk. demise of ‘The Tent’ at the shown on several Indian TV available at a reasonable rate The organisers are on the Galway Races, but corporate stations! during the tournament. A small lookout for sponsorship and hospitality is de rigeur for number of ‘must attend’ events are likely to be able to provide cricket. Any firms interested in Oval appearance? are being organised, which are publicity throughout all of the entertaining clients on a The 2009 event holds out the likely to be based at the college, participating nations. This corporate basis should email exciting prospect of the final but will include one at the includes, of course, the fast- Quinton as soon as possible. In being staged at the Oval Royal Courts of Justice and/or developing Indian market. addition, the Irish team will (dependant upon funding), the one of the Inns of Court in “We believe there may – as require a kit, so firms interested Lords Nursery Ground London. there was last time – TV in getting their branding on (dependant upon availability coverage in India,” says shirts would want to move as and funding), or Fenners (a Formal invitation Quinton. fast as a Shoaib Akhtar ball! pitch fit for test-playing sides in A formal invitation will go to any event). Matches will be 35 those countries that have expres- overs per side and all but the sed a willingness, and ability, to final will be played on very enter a side approximately 13 high-standard Cambridge months prior to the tournament. college pitches. A formal response will be sought The rules of the tournament within one month of the dictate that each member of a invitation being sent out. country’s 17-man squad must be Given the (real) Irish team’s a qualified and practicing lawyer. excellent World Cup debut – It is also proposed that a remember Jeremy Bray’s minimum number will be above century against Zimbabwe and a certain age in order to the team’s defeat of the world’s encourage some consistency fourth-ranked Pakistan on St across the teams. The Patrick’s Day? – it would be a tournament is played at a good real shame if Ireland could not standard, but in a very friendly be involved in the Lawyers’ spirit, with the emphasis very Cricket World Cup 2009. much on mixing and socialising. Anyone interested should Teams will be accommodated contact Quinton Newcomb,
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3L_PZ5L_PZ BOOK REVIEW LAW SOCIETY GAZETTE JULY 2008 books
Clinical Practice and the Law (2nd edition) Simon Mills. Tottel Publishing (2008), Fitzwilliam Business Centre, 26 Upper Pembroke St, Dublin 2. ISBN: 978-1-84592-786-8. Price: €65.
he publication of the second 2004, which has changed the formal offers, is largely Tedition of Simon Mills’ basis for both the prosecution ignored. That said, there are Clinical Practice and the Law is and defence of clinical comprehensive chapters on welcome. Dr Mills is qualified as negligence cases in this consent and on clinical both a solicitor and a medical jurisdiction, would have been negligence and helpful quick doctor. His book is not intended expected. For example, reference guides in these solely for practitioners of although the act is referred to chapters that outline the basics medicine, but for those from in the annotated notes, direct of consent and explore the whatever clinical or non-clinical references to it are limited to elements of negligence, discipline who are interested in explanations of sections 7 and including the defences open how the law interacts with 12, which cover the limitation when a claim of negligence has clinical practice. Dr Mills says period and the fact that been made. that his book is predominantly proceedings must now be Overall, this text is useful to concerned with the subject of initiated by way of personal both the medical practitioner ‘legal medicine’. It covers a wide injuries summons. For and the legal practitioner; range of topics, from clinical example, there is no mention however, on balance, it would negligence and health in the frameworks with the everyday of sections 15 and 16, which objectively be a more useful workplace to coroners and the practice of the various clinical allow for court-ordered text for the medical aftermath of death. disciplines. However, from a mediation and which have practitioner. G The book aims to give a legal practitioner’s point of recently been invoked comprehensive view of the view, more concentration on successfully. Equally, section Fiona Barry is a partner in interaction of law and legal the Civil Liability and Courts Act 17, which deals with making William Fry. CONSULTATION ROOM HIRE RATES ■ €45 for one hour if payment on the spot and used before 4pm ■ If invoiced €60 for one hour (if greater than 1 hour, €45 per hour) ■ €60 for 2 hours ■ €200 per day
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No laptop? Simply use the internet kiosks in the Four Courts consultation room office.
The Law Society’s partners in this initiative TEL: 01 668 1806 are GlobalAirNet International Ltd.
www.lawsociety.ie 55 LAW SOCIETY GAZETTE JULY 2008 GADGETS tech trends
Read all the technology news here first, in your glorious Gazette. Or not, as the case may be Technostress: a new hope echnostress? Isn’t that the might come up Tburning rage you feel when with. you see yet another compilation However, if album of ‘Ibiza anthems’ making fun of advertised on TV? No wait, it’s something that a supervillian – yeah, that’s it. is mentioned He’s the guy who fought seriously elsewhere Batman, right? Uses the on these pages leads gamma-amplified output of you to think that the streamed binary code to left hand doesn’t know weaken the structural fabric of what the right hand is buildings and harnesses the doing, then rest assured. mystical power of the evil The left hand does indeed genius Wikipedia to stun you know what the right hand is into thinking you actually know doing – and it’ll make you go stuff. blind. But, like the previously So look away now if you are unheard of ‘desk rage’ (not plagued by the symptoms of included in the lexicon of the ‘technostress’ – which, as far as eminently sensible compilers of we can gather, is like regular “quickly and easily”. Perhaps – the OED) and the woefully stress with added electricity – if you’re a double-jointed conceptually inadequate because all these products will 24mm deep, and apparently ambidextrous midget. ‘cyberterrorism’ (don’t get me allow you to work on your offers the communications, Those with big Irish sausage started), it appears that holliers and it’ll just be rubbing multimedia and performance fingers might be better waiting ‘technostress’ actually exists in salt into your functionality of a conventional for the worldwide deployment the real world. See p11 if you psychocyberwounds (see? We notebook PC. of the currently Korean-only don’t believe me. It’s like can make up words, too!). Running Microsoft Windows Samsung SPH-P9000 (left). something that the now fugitive First up we have the rather XP Tablet Edition and 1GB of Now this looks really cool. It’s and penniless nifty Samsung Q1 Ultra (above), system memory via an Intel a folding PC-alike that’s shaped Dr Hanson which they claim to be one of Stealey Processor and with a like a PDA, with Windows XP, a Koch, the smallest and lightest mobile QWERTY keyboard, touch 30GB hard disk, 256MB of formerly of PCs available. It’s a mere screen, mouse button and an RAM, a 5” display, a 1GHz the Bremer 690g and is less that eight-way mouse/joystick, the CPU, WiMAX (WiFi’s big Institut für Q1 has wireless and bluetooth brother, and not supported here Unechte und connectivity as standard, with a yet), CDMA EV-DO (meaning Unsinnige twin array microphone that lets you can use it as a phone too), Forschung, you make calls over the web. It and a 1.3MP camera. It also has video-chat webcam (0.3 measures 143x94x29mm and megapixel) and a 1.3 megapixel weights 580g. ‘Mobile digital video/still camera. convergence technology’, Its most novel feature to our they’re calling it now. This one eyes is the miniature, split has a realistically sized keyboard, which QWERTY board, bluetooth, Samsung an MP3 player, and the claims to be keyboard folds up when not in “compact and use, so it can be used like a comfortable”, more traditional tablet PC. allowing you to Check ’em out on input text www.samsung.com.
56 www.lawsociety.ie GADGETS LAW SOCIETY GAZETTE JULY 2008
The spy who technostressed me ou never know when you The personal video recorder Ymight need to do some (right) has a colour monitor and black ops. Well, you probably speaker and 32MB of internal do, and the answer is probably memory, which can be expanded ‘never’. All the same, these by inserting a more powerful might be a handy thing to have memory card, and the ability to in your drawer for when that time and date stamp all niggling insurance or tort case recordings. turns awkward. If the glasses don’t do it for What we have here is a (damn you – which is likely, unless you ugly) pair of glasses with an happen to be Austin Powers – integrated digital camera hidden you can choose from cameras in the frame, giving colour built into ties, baseball caps, pictures and clear audio, all books, shoulder bags, and recorded on to a supplied personal brooches. Don’t forget to and video recorder. So whatever you include the “high capacity the wireless look at is what gets filmed. battery for body-worn cameras” transmitter/receiver kit. With so many hidden camera possibilities, you’re spoilt for choice. Sure why not use them all simultaneously, to be sore eyes’). Still – stick them on sure to be sure? your expenses or as a tax The downside is that they all deductible. You never know cost the euro equivalent of when that Brockovich moment around a grand (from Spycatcher might come along. Yeah, you do. of Knightsbridge – see ‘Sites for ’Cause you’ve sold your soul. SITES FOR SORE EYES
No, Mr Bond, I expect you to buy (www.spycatcheronline. Flying without wings ... no, wait! (www.westlaw.ie). Given the co.uk). You’ve seen the video-recording glasses; now feast your mag that’s in it, with an article on online legal resources, it seems eyes on the rest of the stuff this site has to offer. From body appropriate to include this site. It claims to offer the most armour to computer monitoring and from tracking devices to comprehensive and authoritative Irish online legal research telecom encryption and night-vision equipment, you’ll be amazed. service, giving you access to an extensive collection of content, We’re intrigued by their ‘anti-terrorism equipment’ and including full-text case law reports dating back to 1867, ‘nuclear/biological/chemical protection’ offerings. The former consolidated and annotated legislation, access to a unique includes ‘bomb-jamming equipment’ and devices for looking under collection of journals, and a daily updated current awareness your car, while the latter includes gas masks and Geiger counters. service. It’s a subscription service, but offers free trials. Give it a All very le Carré, don’t you know. go. We’re honest brokers. Honest.
www.lawsociety.ie 57 or . (See the Gazette Committees Mental Health Mental Health Terms and individual repre- to the patient. obliges persons making best interests .) ? S INSTRUCTIONS OR BEST ’ .) The solicitor’s duty is, the patient’s instructions Conveyancing and Taxation also circulatedwith this (July 2008) edition of the Practitioners should treat the Section 4 of the LIENT ed will be made by the commis- sion in accordance with the scale approved by the commis- sion and the Department of Finance. (See the Mental Health Commission’s and can also be downloaded from the Society’s website at www.lawsociety.ie. suggested special condition with particular care, as it has not been possible to test it in prac- tice. It is possible that, when a body of experience of the new developed, the system has VAT special condition will be adjust- ed to take account of it. however, to give however, sentation C INTERESTS 2005 whether their role is to act in the patient’s Questions will be raised as to whether solicitors representing patients should act in accordance with Mental Health Commission web- for relevant site at www.mhcirl.ie High Court post-com- judgments, mencement of the Mental Health Legal Aid Scheme Conditions Pursuant to the Act 2001 Act 2001 has for solic- based on a not a new role General Conditions of document at the next avail- Mental Health Act 2001 To assist practitioners, the To tion will be incorporated into the tion will be incorporated Society’s sary mental capacity to enter into a contract for legal servic- es and also to understand the nature and implications of the transaction in which they were involved. If, during the course of it became clear such a retainer, that the client no longer had the mental capacity to continue to or to instruct the solicitor, understand what was being done on his/her behalf, the solicitor had an obligation to terminate his/her services. N EW ROLE The Sale subcommittee has also pre- pared an explanatory memoran- dum with regard to the new Special Condition 3, which is able print run and the revised contract will thereafter be called Pending the ‘2008 edition’. this, it is suggested that the new Special Condition 3 be pho- tocopied and inserted in con- tract documents in substitution for the old Special Condition 3. now created itors, which is contract for legal services between a solicitor and a client The with full mental capacity. main issue that solicitors must be aware of is that solicitors’ contracts for legal services will be with the commission and that payment for the services provid- , an Quality , solici- General General . The (1 June 2008). and can also be GUIDELINES FOR SOLICITORS duct of the clients’ cases before the tribunals. Since the patients may not raise concerns about the performance of their legal representatives, solicitors have an obligation to ensure that proper standards are main- the commis- tained. However, sion has published its Gazette Committees to review the new on property regime has now VAT prepared a new Special Condition 3 for the Practitioners should note ETAINER AND REPRESENTATION The right to liberty is a consti- (revised) edition has now been amended to take account of the changes. A copy of the new Special Condition 3 is circulated with this (July 2008) edition of the Since the enactment of the Mental Health Act 2001 Mental Health Act 2001 downloaded from the Society’s website at www.lawsociety.ie. special condi- that the new VAT Conditions of Sale Conditions of Sale 2001 tutional imperative. Under the Representatives Assurance Directions for Legal tors are in a new and evolving situation. In the past, solicitors were advised that, before they could accept instructions from a client, they had to be satisfied that that client had the neces- involuntary admission will now automatically trigger a referral to a tribunal. R JULY 2008 JULY notes REPRESENTATION AT MENTAL HEALTH TRIBUNALS: HEALTH MENTAL AT REPRESENTATION he new regime for VAT on he new regime for VAT propertycame into opera- he following guidelines are intended to assist solicitors Practitioners are notified that Most of those involved in this The Law Society is keen to NEW VAT SPECIAL CONDITION FOR LAW SOCIETY CONDITIONS OF SALE CONDITIONS OF SOCIETY LAW CONDITION FOR SPECIAL NEW VAT T tion on 1 July 2008. tion on 1 July that Practitioners should note issues in relation to a prop- VAT erty transaction can be extremely complex. Failure to system cor- apply the new VAT rectly could result in serious and unexpected financial conse- quences for a party to a sale. If on in doubt, an expert on VAT property should be consulted. the subcommittee set up by the and Conveyancing Taxation T who are involved in the represen- tation of patients before Mental Health Commission (‘the com- mission’) tribunals. The tribunals review all involuntary admissions of patients to hospital or psychi- atric units. If the detention is not lawful, the patient will be dis- charged. area of work will be members of the commission’s panel and would therefore have fulfilled the selection criteria for membership of the panel (see below). Since representation of patients before the tribunals is not exclusive to panel members, these guide- lines will also be of assistance to other solicitors. ensure that patients’ represen- tatives maintain the highest possible standards in the prepa- ration, presentation and con- www.lawsociety.ie LAW SOCIETY GAZETTE practice
BRIEFING 58 BRIEFING 59 * Task Force JULY 2008 JULY www.lawsociety.ie Further information about the site at www.mhcirl.ie. Mental Health Commission web- ative Panel is available from the Mental Health Legal Represent- solicitors who act as representa- tives for patients before the to mental health tribunals ensurethey are that appropri- ately covered. S Capacity Task Force. lished by the Mental Health and 1.3m, and now been revised and is pub- Mental Health and Capacity Legal Aid Committee). It has certificate from the Law Society of Ireland in the case of a solicitor or be currently Law subscribing to the Library, Ireland, in the case of a barrister, nity insurance to cover an individual claim of up to € barrister who has had no less than three years’ experience as a practising solicitor or ending immediately barrister, before application. Committee, Family Law and Civil Society (Guidance and Ethics Subcommittee of the Law 2007 by the Mental Health ELECTION CRITERIA published in January/February *This practice note was first The selection criteria for mem- The selection criteria bership of the legal representa- tives panel were: • hold a current practising To • have professional indem- To • be a practising solicitor or To At the time of application and at all times throughout their tenure, the legal representative must be practising. Any law firm who wished to participate in the scheme was requested to pro- vide the above details for each legal representativewho pro- posed to provide legal services on behalf of the firm the under scheme. All solicitors had to undergo a qualifying interview. LAW SOCIETY GAZETTE Where the solicitor feels it is Solicitors who are concerned 2003/6150). The starting point aremust be that all solicitors client’s under a duty to keep the affairs confidential. However, there are certain to exceptions which are mainly statu- this duty, tory cases where exceptions or that the client has consented information may be disclosed. There are also extremely rare cases where it may be neces- sary to disclose information without the client’s consent when a client discloses to the solicitor that they intend to do serious harm or to themselves to somebody else. essential and is in the client’s best interest to disclose infor- mation confided in him/her by the client, the solicitor should first try to obtain the client’s agreement to disclosure.the If client does not agree, but the solicitor still feels it is neces- sary to disclose the information, then the solicitor should inform the client that he intends to do so and discuss with the client whether he/she, the solicitor, should cease to act. at any time about their own posi- tion on any matter of conduct should contact the Guidance and Ethics Committee helpline. The solicitor will be assisted so that he/she can make an informed professional judgment on the particular matter. T ROFESSIONAL INDEMNITY INSURANCE RAINING FOR SOLICITORS It would be essential for all The commission provides train- ing for solicitors on the panel and there is also a requirement for solicitors to keep their skills updated by undergoing relevant and appropriate training as required, in order to keep abreast of developments in the area. Solicitors who are not on the panel should themselves voluntarily undertake similar training. P . duty of It is for when acting for , High Court no Catherine Martin the solicitor decides arethe solicitor decides appropriate or practicable to consult in the prepara- tion of the case, and which any action or deci- sion with regard to the detention and treatment of the patient was made can be achieved in a man- ner less restrictive of that person’s liberty. • Whether the purpose for The solicitor should avoid an It is acknowledged that there in general, the solici- The solicitor should prepare the evidence on behalf of the patient as in any other case, defending primarily the patient’s liberty and right to treatment in the least restrictive setting. overly collaborative approach with the tribunal, leading to too easy an agreement to detention in the best interests of the patient. are no hard and fast rules or correctsome of the answers to ethical and other questions raised in representing patients who are detained under the ONFIDENTIALITY confidentiality people whose capacity is impaired (see One particular that rais- matter es ethical and conduct issues concerns the solicitor’s Mental Health Act 2001 Attorney General Legal Aid Board, Ireland, and the and Diarmuid Doorley v The tor’s role is to act on the patient’s instructions, advocat- ing the patient’s views and wishes, even if these may be considered by the solicitor to be bizarre or contrary to the patient’s best interests. the tribunal to decide, on the basis of the evidence before it, from the patient and from all the professionals purporting to act in the patient’s best interests, whether the statutory criteria set out in the 2001 act are met. C However, However, will Mental Health , this might include encouraged to participate as fully as possible in the decisionmaking process, and present wishes and feelings and the facts that he or she would consider important, ple/professionals whom patients detained under the wishes that should be repre-wishes that should be A sented to the tribunal. accor- solicitor should act in dance with the patient’s in tak- instructions. However, ing those instructions, the solicitor must determine whether or not the patient is capable or not capable of giv- ing clear instructions. Mental Health Act 2001 patient’s best interests, regard should be had to the following: • be The client should • known past The person’s • of other peo- The views a realistic assessment of the likelihood of the patient being discharged, or advice about possible steps towards dis- charge, but the client patient has the right not to accept that advice. Act 2001 2) It is recognisedthat some decisions under the act to act in decisions under the best interestspatient. of the roleThe solicitor’s to is limited client’s best inter- acting in the ests in terms of legal representa- best tion. What is in a patient’s interests matter for the pro- is a the solici- fessional judgement of the taking into consideration tor, following points: 1) the patient’s views or It is duty to act “in the best inter- ests of the client” at all times. This includes a requirement to give the clients their best advice. In cases coming within the pro- visions of the not have the mental capacity to give clear instructions to their solicitor. 4) In deciding what is in the 3) All solicitors have a general G respect of a deposit paid in advance of a supply of goods or services, and that transaction is subsequently cancelled by the then, if the deposit is customer, not refunded, the supplier will now have to issue a credit note to the customer refunding the VAT originally imposed on that deposit. The supplier may in turn reduce their tax liability for the taxable period in which the can- cellation of the deposit arose by refunded the same amount of VAT to the customer. (unreported), she Taxation Committee In a more recent case heard 3V Transaction Services Business Law Committee three forms B5 and allowing new forms B5 to be substituted containing the correct informa- tion. She further directed that orderan attested copy of her be placed on the CRO file. by Laffoy J on 28 January 2008, Thus, where a registered Companies Limited v the Registrar of ordered that the register of companies be rectified by the removal therefrom of a form B5 containing erroneous informa- tion and the substitution of a new form correct B5 containing information. She directed that a copy of her order be placed on the CRO file in relation to the Judge Laffoycompany. allowed the company to dispense with the requirementnotice to give to creditors and was satisfied that the mistake could not have had a material adverse effect on creditors. formamount B5 overstates the of a company’s issued share capital, the mistake cannot be corrected adminis- by a simple trative act of the CRO. The mis- take can only be corrected by order Court. of the High (unre- Air France Air France The Society’s Taxation The amendment in the legisla- subject to VAT. The ECJ disagreed subject to VAT. and ruled that, where a customer exercises the cancellation option available to them and forfeits their deposit, then such compen- sation does not constitute a fee for a service and is not a taxable purposes. amount for VAT Committee (as a result of the above ECJ case) made represen- tations to Revenue that the VAT legislation be amended. tion now means that if, for exam- in ple, a supplier charges VAT The CRO has taken the view The CRO has taken the respect of any errors in its own register and corresponding error any statuto- or omission in ry filing. 72 that, because of the section prohibition on reductions of issued share capital, it was jus- section tified in not accepting 122(5) notifications where reg- istration of the notification would result in a reduction of sharethe company’s issued capital as recorded on the CRO view of the CRO The register. has been bolstered by the deci- sion of Laffoy J in case, Judge Laffoy invoked the inherent jurisdiction of the High Court to correct an error in three forms B5 that had been registered in 2001. She made an order reciting that the forms B5 registered con- in 2001 tained erroneous information and that the court was satisfied that the creditors of the compa- ny in question were on notice of the application and none of them objected to the making of the orders She directed sought. that the register of companies be rectified by removing the Registrar of Companies Aircraft Leasing Limited v ported, 2007). In the . permits a SUPPLY FOR VAT PURPOSES FOR VAT SUPPLY Companies Act 1963 Most difficulties arise, how- laid down applies to all deposits received before the supply of goods and services takes place the supply and, subsequently, does not take place as a result of a customer cancellation, resulting in the deposit being forfeited. Prior to this case, the Irish Revenue had published guidance to the effect cancella- that such tion charges were subject to VAT at 21%. Furthermore, the Irish government even went a step fur- ther and had observations submit- ted to the ECJ on its behalf that such cancellation charges were tered For the most documents. part, errors can be corrected in filing practice by the company an up-to-date return, recording the correct information. For example, a new form B10 (change in directors and/or secretary or in their particulars) can be filed where a director’s or the name was misspelt wrong address on was supplied the initial B10. Incorrect infor- returnmation on an annual is frequently corrected by the fol- lowing year’s return being accu- rately completed. in the context of share ever, capital, because of section 72 of the Companies Act 1963 In the considered opinion of Section 122(5) of the company to correct an error in its own register of members “without application to court” and to give notice to the regis- trar within 21 days if the error or omission also occurs in any document forwarded by the company to him. the CRO, the necessary impli- cation of section 122(5) is that, outside this particular scenario, an application to court by the company is necessary in (sec- JULY 2008 JULY , even , to pro- RECTIFICATION OF THE REGISTER OF COMPANIES OF THE REGISTER RECTIFICATION ). Finance Act RETAINED DEPOSITS AND CANCELLATION CHARGES NOT A DEPOSITS AND CANCELLATION RETAINED Société Thermale VAT Act 1972 Companies Act 1963 his year’s his year’s he Companies Registration Office given a (CRO) has While the judgment concerned T T tions 93 and 94) contains an useful clarification of its posi- useful clarification correctiontion on the of errors in documents presented to it for filing. Where errors in docu- ments come to light before reg- is usu- istration, the document ally returned CRO to the by the and a correctedpresenter, ver- for filing sion can be submitted Because of the on the register. CRO, backlog situation in the documents may have ‘received’ period status for a considerable if a of time and, generally, ‘received’ contains document an error that comes to light before registration, be it can amended and resubmitted by the company in question. This does not apply to submissions made pursuant to section 99 of the The change arises as a result The position is different d’Eugénie-les-Bains www.lawsociety.ie LAW SOCIETY GAZETTE the hotel industry, the principle vide that VAT is not payable on vide that VAT deposits retained in the event of a customer’s cancellation. of a European Court of Justice (ECJ) case, which was handed down on 18 July 2007, concern- treatment of hotel ing the VAT deposits ( those having ‘received’ status, as a section 106 application to the High Court would be neces- sary if amendment were required to be made to any of the prescribed particulars. where an error in a submission comes to light after registra- tion. The registrar has no statu- tory power to make amend- ments or corrections to regis- amendment to sections 17 and 19 of the
BRIEFING 60 BRIEFING 61 . , (SI 4/6/ 4/6/ and the Pensions European Pensions Act JULY 2008 JULY (SI 237/1980) Give effect to Prepared by the Prepared Appoints 14/4/ G Law Society Library www.lawsociety.ie SI 84/2008 SI 164/2008 of ‘defined contribu- European Communities Social Welfare Act 2008 Social Welfare and sections 30 and 31 Family Law Act 1995 Regulations 2008 Order 2008 (Directive 2005/36/EC) 2008 (Establishment) Order 2000 109/2000), as amended. Commencement date: 30 and 31) (Commencement) Nurses and Midwives Act 2008 (Sections 26, 29, Professional Qualifications of Section 29 makes miscellaneous amendments to the 1990 make technical amendments to the Family Law (Divorce) Act 1996 consequent on an respectively, amendment made by section 29 to the definition in the Act 1990 tion scheme’. Social Welfare and Pensions Number: Contents note: 2008 as the commencement date for sections 26, 29, 30 and 31 of the Recognition of the Number: Contents note: Directive 2005/36/EC on the recognition of professional qualifications, as amended by Directive 2006/100, insofar as these directives relate to the professions of nursing and mid- Revoke the wifery. Communities (Recognition of General Nursing Qualifications) Regulations 1980 and the (Recognition of General Nursing Qualifications) Regulations 1983 (SI 20/1983). Commencement date: 2008 , as LAW SOCIETY GAZETTE , and Finance Appoints Opticians Implement Pre-Hospital : Appoints . Section 26(1) (SI 97/1997), Appoints 1/6/ National Social Work Opticians Act 1956 SI 159/2008 SI 153/2008 SI 166/2008 . Section 29 provides Regulations 2008 (Directive 2005/36/EC) Contents note: 27/5/2008 as the commence- of the ment date for section 26(1) Finance Act 2007 from relates to the taxation, and gains 1/8/2008, of profits arising from stallion stud fees. (Commencement) Order Social Care Professions) 29) Order 2008 Fisheries Act 2007 Qualifications (Health and (Commencement of Section amended by the (Amendment) Act 2003 amend the Qualifications Board (Establish- 1997 ment) Order as amended, and the Council Emergency Care Foyle and Carlingford Number: Recognition of Professional Number: Finance Act 2007 Number: Contents note 1/6/2008 as the commencement date for section 29 of the Act 2007 for the mid-Shannon corridor tourism infrastructure invest- ment scheme. Contents note: 2008 as the commencement date for part 1 (sections 1-4), part 3 (sections 5-33), and schedule 2 of the act. Contents note: Directive 2005/36 on the recog- nition of professional qualifica- tions, as amended by Directive 2006/100/EC, insofar as these directives relate to certain health and social care professions, and provide for related matters. Amend the 22/5/ 4/6/ 27/5/ European Implement Give effect to Pharmacy Act (Ire- SI 160/2008 SI 167/2008 SI 157/2008 . Revoke the legislation update legislation Regulations 2008 Profession of Pharmacist) the form of consent by a person the form of consent by and the aged 14, 15 or 16 years, parent or consent of his or her of a sam- guardian, to the taking C ple from him or her; appendix by a par- is the form of consent ent or guardian of a person aged less than 14 years to the taking of a sample from him or her. Commencement date: 2008 26(1)) Order 2008 Qualifications Relating to the Regulations 2008 21 May – 13 June 2008 21 May (Commencement of Section (Recognition of Professional (Cross-Border Mergers) Number: Finance Act 2007 Directive 2005/56/EC on cross-border mergers of limited liability companies. The regula- tions provide a framework whereby limited liability com- panies may engage in a cross- border merger. Commencement date: 2008 European Communities Number: Contents note: Directive 2005/36/EC on the recognition of professional qualifications, as amended by Directive 2006/100/EC, insofar as these directives relate to the profession of pharmacist. Amend the land) 1875 Communities (Recognition of Qualifications in Pharmacy) Regulations 1987 to 2004. Commencement date: European Communities Number: Contents note: 2008 as if 20/5/ Amend the Gives statutory 20/5/2008 9/2008 SI 154/2008 (SI 130/1992) by the sub- 2008 Act 2008 (Amendment) Regulations (Confirmation of Orders) Evidence) Act 1990 (Corporate Bodies) stitution of new appendices A, B and C to those regulations. Appendix A is the form of con- sent by a person aged 17 years or over to the taking of a sample from him or her; appendix B is Contents note: Criminal Justice (Forensic Evidence) Act 1990 Regulations 1992 Number: Criminal Justice (Forensic Number: SELECTED STATUTORY INSTRUMENTS Local Government Services Contents note: effect to establishment orders made under section 3 of the Local Government Services (Corporate Bodies) Act 1971 they were acts of the Oireachtas. There are seven such corporate bodies, listed in the explanatory memorandum to the bill. Amends the estab- lishment orders of two of these bodies, as set out in the schedule to the act, and provides for related matters. Date enacted: Commencement date: 2008 ACT PASSED 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 a mation on the current the com- bill has reached and of each mencement date(s) act. , 550 € Solicitors 2,000 to the € ) of the towards the costs of the towards the costs direc- investigation, which meet- tion was made at the and ing of the Complaints Client Relations Committee on 20 September 2006, section 10 notice in relation to the production of the files and documents, pursuant to section 10 of the 16 June 2006, 4 July 2006, 16 June 2006, 4 July 3 20 July 2006 and November 2006, that direction of the Society the solicitor pay (Amendment) Act 1994 served on the respondent solicitor by registered letter dated 19 October 2006. compensation fund, the Law Society of Ireland as taxed by a taxing master of the High Court in default of agreement. his client, the executor of the d) Failed to comply with the c) Failed to comply with the The tribunal ordered that the respondent solicitor: a) Do stand censured, b) Pay a sum of c) Pay the whole of the costs of In the matter of Ambrose Steen, a locum solicitor who previously carried on prac- House, Trimgate tice at Tara Street, Navan, Co Meath, and in the matter of the Solicitors Acts 1954-2002 [2851/DT44/07] Law Society of Ireland (applicant) Ambrose Steen solicitor) (respondent On 10 April 2008, the Solicitors Disciplinary Trib- unal found the respondent solicitor guilty of misconduct in his practice as a solicitor in that he: a) with Failed to communicate (Statutory 500 to the € 9,208.73, despite 5,362.74 and in the € € Solicitors’ Accounts Solicitors (Amendment) Act 2002 The tribunal ordered that compensation fund the Law Society of Ireland as taxed by a taxing master of the High Court in default of agreement. to a named barrister in the sum of sum of being requested to do so on numerous occasions, correspondence in Society’s the investigation of this complaint and, in particular, letters to the the Society’s respondent solicitor dated 12 May 2006, 1 June 2006, practice as a solicitor in that he practice as a solicitor there was failed to ensure that an furnished to the Society report for the year accountant’s within ended 31 March 2006 date, in six months of that 21(1) of breach of regulation the Regulations 2001 2001), in Instrument no 421 of all. a timely manner or at the respondent solicitor: a) Do stand censured, b) Pay a sum of c) Pay the whole of the costs of In the matter of Ambrose Steen, a locum solicitor who previously carried on prac- House, Trimgate tice at Tara Street, Navan, Co Meath, and in the matter of the Solicitors Acts 1954-2002 [2851/DT11/07] Law Society of Ireland (applicant) Ambrose Steen solicitor) (respondent On 10 April 2008, the Solicitors Disciplinary Trib- unal found the respondent solicitor guilty of misconduct in his practice as a solicitor in that he: a) fees due Failed to discharge b) Failed to respond to the Solicitors Acts 1954- [4399/DT47/07] 250 to the compensation The tribunal made an order: the respondent solicitor, solicitor to pay the sum of € fund, solicitor to pay 25% of the costs of the Law Society of Ireland as taxed by a taxing master of the High Court, in default of agreement. itors, 14 Herbert Street, itors, 14 Herbert matter Dublin 2, and in the of the 2002 Law Society of Ireland (applicant) J Davis William solicitor) (respondent Solicitors On 10 April 2008, the found the Disciplinary Tribunal respondent solicitor guilty of misconduct in his practice as a solicitor in that he had, up to the date of the swearing of the grounding affidavit (on Society’s 22 June 2007), failed to comply with the undertaking given by client him to the complainant’s by letter dated 25 September 2000 and failed to do so despite requests for compliance with the said undertaking. a) Admonishing and advising b) the respondent Directing c) Directing the respondent In the matter of Cornelius J Noonan, a solicitor practising under the style and title of Cornelius J Noonan at Newcastlewest, Co Limerick, and in the matter of the Solicitors Acts 1954-2002 [1553/DT18/07] Law Society of Ireland (applicant) Cornelius J Noonan solicitor) (respondent On 10 April 2008, the Solicitors Disciplinary Tribun- al found the respondent solici- tor guilty of misconduct in his JULY 2008 JULY admonished, the Law Society of Ireland as taxed by a taxing master of the High Court in default of agreement. undertaking dated 1 March 2005 to discharge both EBS mortgages (including arrears thereon) as of that date and to furnish the vacate/dis- charge release as soon as same came to hand in a having only timely manner, furnished same on 5 February 2007, undertaking dated 1 March 2005 to encash the joint PIP with EBS and to pay over one-half thereof to the com- plainants as soon as same was received in a timely manner, correspondence in Society’s a timely manner or at all. Solicitors DisciplinarySolicitors Tribunal Solicitors (Amendment) Act 1994 Reports of Solicitors Disciplinary of the outcomes are inquiries Society of Ireland published by the Law Tribunal as provided of the by section 17 23 (as amended for in section www.lawsociety.ie The tribunal ordered that the respondent solicitor: a) Do stand advised and b) Pay the whole of the costs of In the matter of William J William J of Davis, solicitor, Solic- Davis & Company, In the matter of Brian In the matter of Grogan, a solicitor practising & as Brian Grogan at Main Solicitors, Company, Dublin, Street, Lucan, Co of the and in the matter Solicitors Acts 1954-2002 [3291/DT45/07] Law Society of Ireland (applicant) Brian Grogan solicitor) (respondent On 8 April 2008, the Solicitors found Disciplinary Tribunal the respondent solicitor guilty of misconduct in his practice as a solicitor in that he: a) with an Failed to comply b) to comply with an Failed c) Failed to reply to the LAW SOCIETY GAZETTE
BRIEFING 62 BRIEFING 63 Solicitors’ (SI no 421 5,000 to the € JULY 2008 JULY John Elliot, 08/09 G www.lawsociety.ie Law Society of Ireland Diplomas Mary’s 7, be Dublin Abbey, struck off the Roll of Solicitors. access the members’ area, you will need to log in using your surname and solicitor number.) Litigation Committee The tribunal ordered that The tribunal ordered compensation fund, the Law Society of Ireland as taxed by a taxing master of the High Court in default of agreement. Law Society of Ireland Registrar of Solicitors, misconduct in his practice as a misconduct that he had breached solicitor in of the regulation 21(1) Accounts Regulations failing to ensure that of 2001) in furnished to the there was report Society an accountant’s ended covering his financial year six 30 November 2005 within that is by 31 months thereafter, May 2006. the respondent solicitor: a) Do stand censured, b) Pay a sum of c) Pay the whole of the costs of 08/09 Law Society of Ireland Diplomas LAW SOCIETY GAZETTE Solicitors [100484/ 08/09 Law Society of Ireland Diplomas Diploma in Corporate Law and Governance (NEW) Foundation Diploma in Legal Practice (NEW) Diploma in Employment Law (New Online) & Estate Planning (STEP) Cork Certificate in Trust Diploma in Family Law (video link to Cork) District Court Certificate (Online) Certificate in Judicial Review (Online) Litigation Diploma in Commercial Property Diploma in Commercial Diploma in Finance Law Diploma in Legal French Certificate in Legal German in either the members’ or pub- lic areas to access the infor- mation, or go to the ‘News’ section on the members’ home page. (In order to the Law Society of Ireland as the Law Society taxing master of taxed by a in default of the High Court agreement. Courses for 2008/09 include: ‰ ‰ ‰ ‰ ‰ ‰ ‰ ‰ ‰ ‰ ‰ ‰ High Court made on Friday 23 May 2008, it was ordered that the name of Michael Lynn, solic- formerly Capel practising as itor, Unit 5, The Capel Buildings, Law, In the matter of Canice M In the matter as Egan, a solicitor practising Canice M Egan & Company Clon- at 9 Sarsfield Street, and in mel, Co Tipperary, the matter of the Acts 1954-2002 DT58/07] Law Society of Ireland (applicant) Canice M Egan solicitor) (respondent On 17 April 2008, the Solicitors the found Disciplinary Tribunal respondent solicitor guilty of NOTICE 3,500 to the € as Capel Law, Unit 5, The Capel as Capel Law, Dublin Buildings, Mary’s Abbey, 7, and in the matter of the the co-executor in the estate, the co-executor served upon tion 10 notice September 2006 him on 13 having manner, in a timely his file to the only produced High Society following a Court application, estate administration of the in a timely manner, of fees that he had deducted in a timely manner. compensation fund, the Supreme and High Courts, Circuit Courts, and District Courts, visit www. Click on ‘Society lawsociety.ie. committees’ and ‘Litigation’ e)comply with a sec- Failed to f) to progress the Failed g)to refund the balance Failed that the The tribunal ordered respondent solicitor: a) Do stand censured, b) Pay a sum of c) Pay the whole of the costs of Solicitors Acts 1954-2002 notice that, by orders of the Take 5,000 € Complete the application form in the Diploma New Court Fees Orders from 7 July 2008 Diploma Programme oners should note
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THE HIGH COURT 2007 no 50SA 2008 no 32SA In the matter of Michael Lynn, a solicitor previously practising P Court Fees Orders come into effect from 7 July 2008. view the new orders for To c) fees of Deducted b) to the Failed to respond d) Deducted such fees without Murray CJ) the evi- Per The Supreme Court dis- fair trial, which took prece- dence over the right of the public to have the accused prosecuted, ed by the right to trial with reasonable expedition was the right to limit the possi- bility that the defence would be impaired, provided an alibi for the applicant, their absence would not prejudice the defence so as to applicant’s justify prohibiting the trial, independent forensic evi- dence implicating an accused, a court, in consid- ering whether there was a real risk of an unfair trial and whether it should prohibit the trial, was entitled to take that fact into account, dence of the bloody hand- granted to apply for judicial granted to apply for had been review were that there preju- prosecutorial delay that to a right diced the applicant’s fair trial. It was contended, that among other things, witnesses because most of the had died during the period of defence had the accused’s delay, been impaired. The respondent contended that there could be no prejudice to the accused, as his bloody handprint at the crime scene was strong forensic evidence that would be the major evidence at the trial. The applicant appealed to the Supreme Court. The applicant further argued that pretrial pub- licity since then had also preju- diced his right to a fair trial. missed the appeal, holding that: • to a An accused had a right • One of the interests protect- • As none of the witnesses • In a trial where there was •( , and South County [FL15189] and in breach of , High Court, Mr ultra vires , made pursuant to the Hanna J held that the bye- Constitution of Ireland 1937 article 15.2.1 of the Constitution. laws did not exceed the legal or constitutional framework in which the respondent operat- ed. They were designed for a specific purpose. The requisite powers to so act had been dele- gated to the local authority and the broad powers given to the local authority encompassed a wide range of governance. Clarke (applicant) v South Dublin County Council (respondent) Justice Hanna, 7/3/2008, 2006 no 39 JR Delay Right to fair trial – application to further prosecution of restrain of and strength offences – nature evidence to be used in pros- forensic ecution – whether exceptional fac- – of relief tor justifying refusal by whether accused prejudiced prosecutorial delay – whether real and substantial risk of unfair trial should be granted – whether relief – articles 38.1 and 40.3. The High Court refused to grant an injunction restraining the further prosecution of the The applicant for murder. grounds upon which leave was The applicant was prosecuted for the offence of consuming which liquor in a public place, applicant was denied. The alleged that the of Dublin (Prohibition Consumption of Intoxicating Liquor in Public Places) Bye-Laws 2001 Local Government Act 1994 used to prosecute the applicant, were CRIMINAL LAW – [FL15166] ultra vires South County – Local Government – article 15.2.1 of the . , Supreme Court, Civil Liability Act 1961 The Supreme Court dis- The Supreme Court of the had to be approached in the context of the Constitution. The word “vindicate” used in article 40.3.2 thereof had to be construed, if possible, in a manner that connoted an appropriate response to an “injustice”. The process that was intended to be a vindication for an injustice required (a) a judicial process that (b) featured a determination of liability and (c) a pronouncement of liability. constitutional rights was as much a matter of civil – including tort – law as a mat- ter for the criminal or regu- The statutory latory law. form of action brought by the plaintiff was the only legal step capable of provid- ing vindication for an alleged injustice. delegated legislation – bye-laws – council powers – public drinking – denial of offence – local authori- ties’ power – Act 1994 Public order – Judicial review Dublin (Prohibition of Consumption of Intoxicating Liquor in Public Places) Bye Laws 2001 Constitution The High Court refused that The High Court refused application. The defendant Supreme appealed to the Court. that: missed the appeal, holding 1) construction of part IV The 2) The vindication of personal v Grant (plaintiff/respondent) Ltd Roche Products (Ireland) & Others 7/5/2008, 248/05 News fromIreland’s online legal awareness service Compiled by Flore Bouhey for FirstLaw update JULY 2008 JULY Civil Liability Constitution of , article 40.3.2. , from the defendant , section 48 – CONSTITUTIONAL LAW CONSTITUTIONAL www.lawsociety.ie firstlaw Act 1961 for the wrongful death of his son due to what he alleged was his pharmacologically induced suicide by taking the defen- product. The defendant, dant’s to offered in an open letter, pay the plaintiff the full statu- tory value of the claim plus the costs of the action, to be taxed in default of agreement. The plaintiff refused that offer. The defendant applied to have the proceedings stayed or struck out pursuant to the inherent jurisdiction of the court on the basis that there could be no further tangible benefit to the plaintiff by pur- suing the action once the offer had been made and that the proceedings constituted, an abuse of process. thereafter, Abuse of process – restraint Practice and procedure jurisdic- of proceedings – inherent – tion to strike out proceedings for access to courts – legal remedy vindication of personal constitu- tional rights – wrongful death – action brought by dependants – whether any tangible benefit to be obtained from pursuing action after offer of damages – whether claim abuse of process – whether striking out claim would breach plaintiff’s constitutional rights – Civil Liability Act 1961 (No 41) Ireland 1937 Article 40.3.2 of the Constitution provides, among other things, that “the state by its laws shall, in particular, … in the case of injustice done, vindicate the life … of every citizen”. The plaintiff sought damages, pursuant to section 48 of the LAW SOCIETY GAZETTE
BRIEFING 64 BRIEFING 65 , High JULY 2008 JULY www.lawsociety.ie G Herbert J held that the sen- Medical negligence to proper- – failure of duty Breach – a cardiotocograph ly interpret delay in deliveryof – negligence to con- midwife – delay of parents sent to form of delivery. suing The plaintiff infant, claimed through his parents, on the damages for negligence for their part of the defendants him dur- treatment and care of to act at ing labour and failure in critical moments, resulting The irreversible brain injuries. that the defendants alleged undue delay in delivering the plaintiff was solely caused by refusal to permit a the mother’s particular form of delivery. ior midwife was negligent and in breach of duty for not calling a doctor and for turning off oxytocin and delivering the plaintiff at the earliest point in time. The plaintiff was deprived of the opportunity of being delivered without irre- The fail- versible brain injury. ure to adequately inform the parents as to the dangers of not having a particular form of delivery was negligent. The parents would have consented had they been adequately informed, and the brain injury suffered resulted in the cerebral dysfunction of the plaintiff. Fitzpatrick (a minor) (plain- tiff) v National Maternity Hospital (defendant) Court, Mr Justice Herbert, 7/3/2008, 2002 no 14742 P [FL15233] Areone you of them? TORT , This information is taken from awareness legal current FirstLaw’s service, published every day on the internet at www.firstlaw.ie. LAWYERS Free and Confidential Health Support Support Health Confidential and Free and AdviceLawyers for LAW SOCIETY GAZETTE www.lawcare.ie their relationship withchildren. their Freephone 991801 1800
86% of lawyers say long are hours damaging [FL15162] The Supreme Court dis- The Supreme Court order was invalid on the basis order was not been signed by that it had in daily charge the psychiatrist but rather by of the applicant, who travelled a psychiatrist from Cork and sporadically in the who had been involved appli- initial treatment of the held cant. The High Court 15 that the phrase in section both of the act encompassed applicant doctors. The Supreme appealed to the Court. that missed the appeal, holding defi- the absence of a statutory nition of the expression “the consultant psychiatrist respon- sible for the care and treatment of the patient” was deliberate. Given the lack of statutory def- inition, it was a question of fact to determine whether the doc- tor who signed the order fell within the description in sec- tion 15 of the 2001 act when he As both doc- signed the order. tors fell within the description and a renewal order signed by either would have been valid, it was immaterial to attempt to work out which might come within the definite article if one was to attach literal adher- ence to it. Given that the 2001 act was relevant to the question of the detention or release of patients who are potentially dangerous to themselves and/or the public, it would be wrong to give the legislation an interpretation that would leave it in doubt as to who would be entitled to sign a renewal order. M(M) (applicant/appellant) v of the Central Clinical Director Mental Hospital (respondent) Supreme Court, 7/5/2008, 081/2008 HELPING , Mental provides, Mental Health Act Freephone 1800 991801 • www.lawcare.ie www.lawcare.ie • Freephone 1800 991801 [FL15178] ll 00 44 1268 771333 , s15. LAWYERS LAWYERS
Dunne J held that it was rea- Dunne J held MENTAL HEALTH MENTAL
Health Act 2001 among other things, that “the period [of detention] … may be extended by … a renewal order … made by the consult- ant psychiatrist responsible for the care and treatment of the patient concerned”. The respondent had made a return justifying the detention of the applicant pursuant to a renew- al order under section 15 of the 2001 act. The applicant submitted that the renewal Section 15(2) of the patibility accordingly. patibility accordingly. constitutional for a sonable and to be able to housing authority possession of a rapidly recover reasons. Any dwelling without judicial abuse was subject to provided ade- which review, district quate safeguards. A to judge had no jurisdiction its merits. conduct a hearing on of The European Court Human Rights had established apprecia- that a wide margin of a state in tion was afforded to resources allocating housing inter- and balancing conflicting ests in this regard. The reliefs sought would be refused. (applicant) v Dublin Leonard City Council (respondent) High Court, Ms Justice Dunne, 31/3/2008, 2007 no 916 JR Detention – statutoryRenewal order inter- and phrases – – words pretation for “the psychiatrist responsible of patient” – and treatment care – purposive interpretation validly order whether renewal made – 2001
kk ? t , ee c h u b g t . i www.lawcare.ie/volunteers www.lawcare.ie/volunteers uu European n oo o o Housing Act Housing Act t y ) prohibiting a t ll Could You Help? ee If this is you please ca l nn i m i [FL15213] and articles 3, 6, 8, o for a lawyer in need based on their own experience. own experience. based on their for need a lawyer in W ss u h . The applicant alleged , as amended, is incompatible LawCare needs more volunteers. People who could care who could more volunteers. People needs LawCare European Convention on Obiter dictum print, in its unchallenged print, in condition, and unexplained exceptional fac- was itself an was capable of tor that general issue of deciding the that was guilt the accused’s pub- unaffected by delay or licity, criminal trial could not be criminal trial could media adopted to punish the as for prejudicial publicity, laws the contempt of court vehicle were the appropriate to use for that purpose. LANDLORD AND TENANT •( Human Rights Act 2003 1966 under obligations with Ireland’s the The applicant tenant was a heroin addict living with an addict son and was alleged by her local authority to have been in breach of her housing agreement so as to warrant summary possession proceed- ings being brought to recover possession, pursuant to sec- tion 62 of the 1966 that the summary possession procedure contained in sec- tion 62 was incompatible with section 5 of the Convention on Human Rights Act 2003 13 or 14 of the ECHR, and sought a declaration of incom- Housing Human rights – local authority – summary possession demand – ten- of housing agree- ant in breach ment – whether the Rattigan (appellant/applicant) v Rattigan (appellant/applicant) DPP (respondent/respon-dent) Supreme Court, 7/5/2008, 353/2006 . Some of the The authority’s record on The authority’s In addition, the transparency recent market studies under- taken by the authority (in par- on the the eight studies ticular, professions) were, in terms of their breadth and scope, new, “depoliticised” merger “depoliticised” new, was to regime, the aim of which “take merger control out of the doubt, political arena”. Without the Competition Authority’s operation of the merger-control regime – particularly its techni- cal expertise in terms of eco- nomic analysis – deserves recognition. merger control (95% of trans- actions cleared at phase 1; 5% involving phase 2 investiga- tions; and around 0.5% of noti- fied deals blocked) is very much in line with international best practice. of the existing merger regime, and the Competition Author- efforts to clearly articulate ity’s its rationale in each determina- tion, help achieve consistency, predictability and, ultimately, fairness in applying merger- control laws, thereby enhancing the credibility and effectiveness enforcement. of merger-control Advocacy it is appropriate to Equally, recognise the Competition ongoing efforts to Authority’s keep competition in the fore- front of economic policy in Ireland. Competition Author- ity advocacy clearly played an important role in bringing about the repeal of the Groceries Order Third, the heating-oil prose- Authority did not appear to cap- Authority did not appear success italise fully on its earlier in, and experience from, the heating-oil case in the subse- quent Ford dealers’ case. As mentioned, the Ford dealers investigation has, to date, result- ed in the prosecution of one trade association employee. The apparent failure to prosecute any of the car dealers involved (that is, those who might have been expected to have profited from any price fixing) suggests that the experience and lessons learned from the earlier investigation may not have been put into effect. That said, those issues seem now to have been over- come by Competition Authority enforcers. On foot of the Citroen dealers investigation, one conviction has already been secured, while charges exist against seven other individuals and five other dealerships. cutions (that is, 17 of the 19 con- victions) were taken on foot of legislation predating the 2002 a certain extent at least, act. To that suggests that the major chal- lenge to successful competition law enforcement may be as much operational as the law itself. Against that background, recent Competition Authority calls for amending legislation to further increase enforcement powers (including for “tough new penal- ties” for obstruction) may be viewed with some scepticism. Merger control Another key reform of the 2002 statute was the adoption of a 160,000 and three jail € What are the results? In The headline statistic masks a First, of those 19 convictions, Second, the Competition any member of staff” – and any member of staff” notable included a number of statutory presumptions against defendants, with a view to eas- ing the prosecution burden. many ways, it has been an impressive start by the Since Competition Authority. 2002, 19 criminal convictions have been obtained against companies and individuals for cartel offences. Fines totalling around sentences (of respectively, six sentences (of respectively, months, 12 months and three months, albeit all suspended) have been imposed by the an that’s courts. Undoubtedly, impressive outcome. Indeed, the convictions are reportedly the first successful criminal car- tel prosecutions across Europe. number of possible concerns, however. 17 were obtained in respect of one cartel investigation – the heating oil case in the west of Ireland. Of the two remaining prosecutions, one arose out of an investigation of various Ford and resulted in the car-dealers prosecution of one party only (an employee of the dealers’ trade association on an ‘aiding and abetting’ charge), while the other came about on foot of the ongoing investiga- authority’s tion into an alleged price-fixing cartel among various Citroen In other words, car-dealerships. in five years, only three cartels have been brought to book. JULY 2008 JULY News fromthe EU and International Affairs Committee Director Law Society of Ireland of Education, Edited by TP Kennedy, legal Competition Act eur 2 million in 2002 to 5 million today. The 5 million today. € – was heralded by € In addition, Irish legislators t is five years now since Irish t is five years now since for the competition law was, www.lawsociety.ie Has Irish competition legislation competition Has Irish delivered on its promises? third time in a decade, funda- mentally revised. The revised statute – the 2002 enforcers as “a substantial step forward in the development of a strong and proactive compe- tition policy in Ireland”. In tandem, funding for the Competition Authority – primary competition Ireland’s law enforcement agency – was significantly increased, from around nearly question now being asked (including by department offi- is have the cials), however, 2002 policy innovations deliv- ered results? Cartel enforcement A primary aim of the 2002 act the (according to Mary Harney, sponsoring minister at the time) was to “toughen up on hard- core competition offences”. that end, the statute Towards increased the maximum jail sen- tence for offences from two to five years, the stated aim being to “send the clearest possible signal that blatantly anti-con- sumer activities such as price fixing will not be tolerated in this country”. dramatically upgraded the inves- Competition Authority’s tigation powers – so-called “dawn raids” (surprise searches) can now be carried out at the homes, as well as the businesses, or manager of any “director, LAW SOCIETY GAZETTE I
BRIEFING 66 BRIEFING 67 – increased JULY 2008 JULY www.lawsociety.ie G Significant challenges be sure, the core changes To implemented by the Competition Act sanctions for hard-core viola- tions and the adoption of an independent merger regime – were the right policy choices. As the Competition Authority com- has itself noted, however, petition law enforcement con- tinues to encounter “significant challenges”, and a key enforce- ment priority – achieving a consistent record of successful prosecutions – has yet to be realised. Philip Andrews is a partner in and Philip Andrews co-head of the Competition, Regulated Markets, and EU Law Group of McCann FitzGerald. LAW SOCIETY GAZETTE Tel: (01) 881 5727 Tel: Fax: (01) 672 4890 this month's Gazette. CPD FOCUS training event by E-mail: [email protected] and e-learning courses on-line at You can obtain information on any You contacting the CPD FOCUS team at: Website: www.lawsociety.ie/cpdfocus Website: Check out our full range of training events www.lawsociety.ie/cpdfocus or browse through www.lawsociety.ie/cpdfocus the CPD FOCUS brochure which is enclosed with The key issue in both cases, tion, the Supreme Court held that the authority had “failed to provide a convincing analysis of activities as being anti- ILCU’s competitive”. in other words, was the clear and fatal lack of evidence cor- roborating the Competition assertions and the- Authority’s ories. This suggests that addi- tional time should be spent stress-testing the strengths and weaknesses of cases internally, before a decision is taken to prosecute a case. Investigations of anti-competitive behaviour are complex and require spe- cialist knowledge of economics This and competition law. complexity requires a strong focus on quality control. , in which EU competition law is a bit like a tennis match. Er, what? Er, EU competition law is a bit like a tennis match. ILCU – taken by the BIDS In in Similarly, undoubtedly resulted in disap- pointing outcomes for the Competition Authority. Competition Authority against an association of beef produc- ers on foot of industry rational- isation plans – the High Court held that the authority had “failed to demonstrate by cred- ible evidence that the objec- tionable features of the as a arrangements are likely, to have matter of probability, appreciable anti-competitive effects”. the Competition Authority sought to require the Irish League of Credit Unions to share services and facilities with another representative associa- ILCU case – have – the BIDS LAW SOCIETY OF IRELAND LAW 10 Hours CPD per annum is the new requirement - Are you on track? - Are 10 Hours CPD per annum is the new requirement THE CPD CLOCK IS TICKING! THE ANNUAL CPD CYCLE ENDS ON 31 DECEMBER 2008 The two major civil In addition, the authority enforcement cases taken since the coming into force of the Competition Act Tackling monopolies Tackling Another stated Competition Authority priority – tackling monopolisation and other market restrictions via civil enforcement – remains, how- as much a challenge ever, today as it did five years ago. clearly needs to enhance the clearly needs to enhance status and role of competition policy in the eyes of the public. the apparent pri- In particular, ority enforcement focus on trade associations and other forms of collective representa- tion needs to be properly explained. One of the most important roles of a competi- tion authority is to educate business and consumers about the benefits of competition. extremely challenging. It is a extremely responsible offi- credit to the those studies have cials that to the analyti- been completed achieved. cal standard Authority studies Competition play an and submissions clearly important role in influencing how- policymakers. In future, with a view to ensuring ever, in appropriate use of resources and the competition regime the scope of limiting delay, to be such studies might need more focused. case and the BRIEFING LAW SOCIETY GAZETTE JULY 2008
Recent developments in European law cannot be prosecuted again for pay its employees at least the His application was rejected on CRIMINAL the facts dealt with in the sen- remuneration required by a col- the basis that the Versor- Case C-297/07, Staatsanwalt- tence of the military tribunal. The lective agreement. The ECJ found gungsanstalt regulations make schaft Regensburg v Klaus sentence given in absentia was a that the provisions at issue were no provision for such an entitle- Bourquain, opinion of Advocate judgment with the force of res incompatible with the EC directive ment in the case of surviving life General Ruiz-Jarabo, 8 April judicata. This remains the case concerning the posting of work- partners. The German court 2008. Klaus Bourquain was a even though the penalty was not ers. The rate of pay provided for asked the ECJ whether this German citizen who enlisted in enforceable at any time in the by the collective agreement was refusal could be seen as discrim- the French Foreign Legion, past. not fixed according to one of the ination prohibited by Directive deserted, and fled to the German procedures laid down by the 2000/78 on equal treatment in Democratic Republic. He was directive. Germany has a system employment and occupation. The tried in absentia by a French mili- EMPLOYMENT for declaring collective agree- aim of that directive is to combat tary tribunal in Algeria in 1961. Case C-346/06, Dirk Rüffert v ments to be of universal applica- discrimination on grounds of sex- The court found that, while trying Land Niedersachsen, 3 April tion but had made no such decla- ual orientation. The directive to desert, he shot dead another 2008. The law of Lower Saxony ration in respect of the collective does not cover social security German soldier in the Foreign on the award of public contracts agreement here in question. This and social protection schemes Legion who was trying to prevent provides that they may be award- collective agreement only covers whose benefits are equivalent to his escape. He was found guilty ed only to undertakings that a part of the construction sector. pay within the meaning of EC law. and sentenced to death. undertake in writing to pay their The relevant German law only The court was asked to deter- According to the code of military employees at least the remunera- applies to public contracts, to the mine whether the survivor’s pen- justice that was then applicable, tion prescribed by the applicable exclusion of private contracts, sion at issue could be classified the sentence would not have collective agreement. The con- and the collective agreement has as pay. The ECJ pointed out that been enforced if he had reap- tractor must also undertake to not been declared universally the occupational pension peared, but a new trial would impose that obligation on the applicable. The ECJ found that scheme has its origin in a collec- have had to be held and the subcontractors and to monitor the restriction on the freedom to tive agreement on employment, imposition of any penalty would their compliance with it. Non-com- provide services resulting from the objective of which was to have depended on the outcome pliance with that undertaking trig- the obligation to pay employees supplement the social security of that new trial. In 2002, the gers the payment of a contractual the remuneration laid down by benefits payable under the Public Prosecutor in Regensburg penalty. A German company, the collective agreement is not national legislation. The scheme brought proceedings against him Objekt und Bauregie, undertook justified by the objective of ensur- is funded exclusively by the work- in order to try him in Germany for to pay employees working on the ing the protection of workers. It ers and their employers, without the crime committed in Algeria. Göttingen-Rosdorf prison build- had not been established that any state financial involvement. The 1961 sentence was not ing-site the wages specified in the protection resulting from The retirement pension by refer- enforceable in France, as the the collective agreement for build- such a rate of pay is necessary ence to which the survivor’s pen- sentence was time-barred – ings and public works. A Polish for a construction sector worker sion is calculated concerns only France had abolished the death subcontractor was paying its 53 only when he is employed in the a particular category of workers penalty and had passed a law workers only 46.57% of the pre- context of a public-works contract and its amount is dependent on proclaiming an amnesty in scribed minimum wage. A formal and not when he is employed in the period of the worker’s mem- respect of events in Algeria. The finding to that effect was made the context of a private contract. bership and how much he has German court was uncertain and a notice was issued against paid in contributions. The sur- whether new criminal proceed- the person primarily responsible. Case C-267/06, Tadao Maruko v vivor’s pension derives from the ings could lawfully be com- Following a criminal investigation, Versorgungsanstalt der deuts- employment relationship of the menced. It asked the ECJ to give the works contract was terminat- chen Bühnen, 1 April 2008. In deceased partner and must a ruling on the application in the ed. Land Niedersachsen required 2001, under German law, Mr therefore be classified as pay. Schengen Area of the principle of Objekt und Bauregie to pay a con- Maruko entered into a registered The court then turned to consid- ne bis in idem. In accordance tractual penalty of €84,933.31 life partnership with a designer er whether there had been dis- with this principle, a person (1% of the contract amount) for of theatrical costumes. His part- criminatory treatment. Germany whose trial has been finally dis- breach of its undertaking con- ner had been a member of the has reserved marriage solely to posed of in one state in the cerning rates of pay. The case respondent scheme since 1959. persons of different sex. It has Schengen Area may not be pros- was appealed to a higher region- This institution is responsible for established the life partnership, ecuted for the same acts in al court. That court asked the managing old-age insurance for the conditions of which have another such state when, in par- ECJ to decide whether the free- theatrical professionals from the gradually been made equivalent ticular, the penalty can no longer dom to provide services pre- German theatres and for related to those applicable to marriage. be enforced. On this basis, cludes a statutory obligation survivors’ benefits. Mr Maruko’s The provisions of the respon- Advocate General Ruiz-Jarabo requiring a contractor in a public- life partner died in 2005 and he dent’s regulations restrict entitle- took the view that Mr Bourquain works contract to undertake to applied for a widower’s pension. ment to survivor’s pensions to
68 www.lawsociety.ie BRIEFING 69 2 p&p JULY 2008 JULY € magazine G www.lawsociety.ie Swedish beer. The courtSwedish beer. pointed price differenceout that the two is virtuallybetween the the same before taxation as after it (a litre of 12.5% costing of wine a litreover twice the price of of beer). The court found that the that commission had not shown the difference between the price of strong beer and the price of that wine in competition with differ-beer is so slight that the applica- ence in the excise duty ble to those products in Sweden is likely to influence consumer the Consequently, behaviour. court dismissed the commis- sion’s action. 10 plus Gazette € logo in gold on the front Gazette LAW SOCIETY GAZETTE , Blackhall Place, Dublin 7. € 7 for orders of between five and ten binders) € lightest and the least expensive lightest and the basis of a com- varieties. On levels of taxation parison of the in relation strength, to alcoholic strengtha wine with an alcoholic taxation of 12.5% is subject to per percentage of alcohol by vol- ume, which is approximately 20% higher per litre than that on the competi- beer with which it is in tion. Wine that is in competition with strong beer is subject to the higher taxation. However, court considered that the fact that wine is taxed more heavily is not liable to influence this mar- ket and does not have the effect of affording indirect protection to MONTH/YEAR Law Society Gazette BINDER Please return to Please send me magazine binders at (special p&p rate of I enclose my cheque for Please charge my Access VisaCredit card number Expiry date: Mastercard Eurocard Name: Address: Telephone: Signature: Solve your storage problems a new-style with and spine. 7 APPLIES) binder. Each easy-to-use binder takes a year’s worth of issues and is binder. finished in blue leatherette with the € commission took the view that commission this difference in treatment is liable to afford indirect protection to beer (mainly produced in of wine Sweden) to the detriment (mainly imported from other EU states). It brought an action against Sweden before the ECJ for failureto fulfil its EC law pointed obligations. The ECJ areout that wine and beer capa- needs ble of meeting identical extent, and thus, to some for they can be substituted The comparison each other. between beer and wines must be with those wines that are most accessible to the public – the 2 POST AND € 10 PLUS € , 8 April Commission of
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Gazette Keep your magazines safe with a Keep your magazines EACH BINDER COSTS PACKAGE (FOR ORDERS OF BETWEEN FIVE AND TEN (FOR ORDERS PACKAGE OF RATE BINDERS, A SPECIAL POSTAGE To order your magazine binder, please fill in the form. order your magazine binder, To Case C-167/05, surviving spouses. As this is the life partnerscase and since are the latter aredenied the pension, thus treated than less favourably surviving spouses. This less favourable treatment is direct discrimination on grounds of sex- ual orientation. Kingdom of Sweden the European Communities v beer and wine differently. The excise duty on alcohol treats 2008. Swedish legislation on Co Co Co Mayo Co Meath Co Limerick Co Kilkenny Co Laois Co Kildare Co Limerick Co Limerick Co Louth Co Limerick Co Kildare Co Kilkenny Co Co Co and Moone; at-law) and Stephine O’Halloran of (insurance company executive) Naas, Co East, Donadea, Timahoe town- Kildare; folio: 40506F; lands: East and barony of land of Timahoe Clane; lands: Marie Hudson; folio: 11428F; of Ennisnag and barony Shillelogher; barony of 6664; lands: Coolagh and Tinnahinch; Limited; folio: 6462F; lands: town- land of Gouldavoher and barony of Pubblebrien; area: 31 acres, 22 perches; 24957; lands: townland of Gouldavoher and barony of Pubblebrien; 16697; lands: Ballyrowragh, barony 16697; lands: Ballyrowragh, of Ida; (part 1633); lands: townland of and barony of North Coonagh West Liberties; 22859; lands: townland of Castleroberts and barony of Coshma; John McParland, c/o McDonough and Matthews, Solicitors, 14 Jocelyn Street, Dundalk; folio: 5366; lands: Redcow; Louth folio: 15392F; lands: townland of Carrowmore South and Drum or Knocktemple and barony of Carra; Co Mayo Kilernan, Kilmaine, Co Mayo; folio: MY11004; lands: townland of (1) Killernan, Kilmaine, county of Mayo, area: 25 acres, 3 roods, 34 perches; (2) Caherwidaun, Kilmaine, county of Mayo, area: 10 acres, 1 rood, 36 perches; Meath Kells, Co Meath; folio: 12458; lands: Calliaghstown; Mary Shevlin; folio: LH8739F; lands: property known as Dunaney, situate in the townland of Togher, Salterstown and county of Louth; Co Louth Anne McQuaid, 56 Kenyon Street, folio: 325, Nenagh, Co Tipperary; 593; lands: Drummullagh; Place, Kells, Co Meath; folio: Parks; 20182F; lands: Town Declan McDermott, 24 Cherry Regd owner: Philip Fennell (barrister- Regd owner: Philip Fennell Hudson and Regd owner: Christopher folio: Regd owner: Brendan Scully; Regd owner: Dineen and Company Regd owner: James Kilgallon; folio: Regd owner: Andrew Murphy; folio: Regd owner: Andrew Murphy; Regd owner: Ann Healy; folio: 20720 Regd owner: William O’Neill; folio: Regd owner: William Regd owner: Patrick McParland and Regd owner: Christopher Concannon; Regd owner: Eamon Rattigan, Boolies, Regd owner: Thomas Duffy, Regd owner: Michael Shevlin and Regd owner: Edward McQuaid and Regd owner: James Kiernan, Kenliss Regd owner: Josephine Dowds and Co Dublin Co Co Donegal Co Galway Co Dublin Co Galway Co Kerry Marian Hennigan, Drumaville, Marian Hennigan, folio: 33783F; Malin, Co Donegal; lands: Drumaville; Kelly & Co, Solicitors, Market Kelly & Co, Co Donegal; House, Buncrana, folio: 28375; lands: Stranacorcagh; Co Donegal King, 6 Glentow Road, Whitehall, Dublin 9; folio: DN49756L; Dublin sit- folio: DN11220; lands: property uate in the townland of Palmerston Lower and barony of Uppercross; Co Dublin DN Emily O’Connor; folio: as 82382L; lands: property known Village apartment no 13, Block 1, Square Apartments, situate in the town and parish of Tallaght; Dublin DN80973L; lands: property situate in the townland of Loughlinstown and barony of Rathdown; Dublin folio: DN18482L; lands: property situate to the north of Griffith in the parish of Clonturk, Avenue district of Drumcondra; McLean; folio: DN147160F; lands: Co Dublin Regd owner: Michael Hennigan and Regd owner: Regd owner: Liam O’Kane, c/o CS Regd owner: and Marie Regd owner: John King Clancy; Regd owner: Eileen Angela and Regd owner: Eamonn O’Connor Regd owner: Quinnsworth; folio: Regd owner: Joseph W O’Connell; Regd owner: Alan McLean and Angela Co Galway Co Co Co a plot of ground known as site no 1, Ballycullen, Parklands Avenue, Firhouse and situate in the townland of Ballycragh and barony of Uppercross; Limited; folio: DN1418F; lands: a plot of ground situate to the west of Finglas Road in the parish of Glasnevin, district of Finglas and county borough of Dublin; Dublin DN9212; lands: property situate in the townland of Ballybrack and barony of Rathdown; lands: townland of Laurencetown, Killevny and Oghil More and barony of Longford; Anne Grenham; folio: 8034F; lands: townland of Kilgarve and barony of Moycarn; 27335; lands: townland of Ballynew (Ballynahinch By) and Cleggan and barony of Ballynahinch; folio: 12639; lands: townland of Cloonmore and barony of Trughanacmy; Hobardstown, Moone, Co Kildare (trader); folio: 6016F; lands: town- land of Belan and barony of Kilkea Regd owner: Chadwicks Dublin folio: Regd owner: Thomas Walsh; Regd owner: John Daly; folio: 51846; Regd owner: Edward Grenham and Regd owner: Cornelius Mullen; folio: Council; Town Regd owner: Tralee Regd owner: John Cogan (Junior) of Co Cork Co Cork Co Cork Co Cork Co Cork Co Cork Co Clare Co Cork Co Cork Barry; folio: 3341; lands: plot of ground situate in the townland of Garraun North and barony of Barretts in the county of Cork; Cork lands: plot of ground situate in the townland of Gortavallig and barony Division), in (West of Carbery West the county of Cork; 53307F; lands: plot of ground situ- ate to the south of Model Farm in the city of Road of St Finbar’s Cork; 49833; lands: plot of ground situate in the townland of Shean Upper and barony of Muskerry East, in the county of Cork; Dorothy Jennings (as tenants-in- common of equal shares); folio: 43673F; lands: plot of ground situ- ate in the townland of Desert and barony of Carbery East (East Division) in the county of Cork, Cork 10094F; lands: plot of ground situ- ate in the townland of Shanagarry South and barony of Imokilly in the county of Cork; Limited; folio: 61925F; lands: plot of ground situate to the north side of Chapel Street in the townland of Gully and barony of Kinalmeaky in the county of Cork; Orla Kingston; folio: 2362F/ 17966F; lands: plot of ground situ- ate in the townland of Ballea and barony of Kerrycurrihy in the coun- ty of Cork; (deceased); folio: 22701F; lands: plot of ground situate in the townland of Carrigaline Middle and barony of Kerrycurrihy in the county of Cork; Co Cork (deceased); folio: 1078; lands: town- (deceased); folio: and barony of land of Whitegate 0.5909 hectares; Leitrim; area: Clare Lenihan; folio: and Ann Theresa of 16603F; lands: townland of Glendine South and barony Ibrican; folio: Josephine Dolores Broderick; situate 48863; lands: plot of ground and in the townland of Ballyandrew county of barony of Fermoy in the Cork; situ- 86597F; lands: plot of ground ate in the townland of Ballycatoo the coun- and barony of Imokilly in ty of Cork; Regd owner: John L Barry and Abina Regd owner: John L Barry Regd owner: James Daly; folio: 41476; Regd owner: Rory Finnegan; folio: Regd owner: Denis P Forrest; folio: Regd owner: John Jennings and Regd owner: Stephen Pearce; folio: Regd owner: Old Chapel Enterprises Kingston and Regd owner: William Regd owner: Florence O’Connell Regd owner: Patrick Goonane Regd owner: Thomas Joseph Lenihan Regd owner: and Regd owner: John Broderick folio: Regd owner: Mary Buckley; Co Co JULY 2008 JULY Co Carlow Co Carlow Co Carlow Co Clare Co Clare Co Cavan Co Clare Co Clare (deceased); folio: 5982F; lands: townland of Ballynagleragh and Lower; area: 0.4930 barony of Tulla hectares; folio: 12793F; Christina Ryan; lands: townland of Breaffy North and barony of Ibrickan; area: 0.2150 hectares; folio: 17365F; lands: townland of Kildoorus and barony of Tulla Lower; 226640; lands: townland of Glencolumbkille South and barony of Burren; area: 6 acres, 3 roods, 1 perch; Marcella Higgins, Moylett, county of Cavan; folio: 8059F; lands: Moylett; Kathleen Clarke, Lisnahederha, Cavan; folio: county of Virginia, 20793F; lands: Lisnahederna; Cavan folio: 2409F; lands: Ballymoon and barony of Idrone East; 4469F; lands: Coolasnaghta, Rathnageeragh, Knockendrane, and barony of Idrone East; Milligan and Dorothy Joan Milligan, Regaskin, Cavan; folio: 1575F; lands: Killyvanny; Cavan folio: 509F; lands: Carrickslaney and Drummin and barony of Forth; Co Carlow now revised to 6746F; lands: and barony of St Tinnahinch Mullins Lower; LOST LAND LOST LAND CERTIFICATES Regd owner: Mary Melleney and Regd owner: Patrick Gerard Ryan Regd owner: John Raymond Conlon; Regd owner: Mary Teresa Burke; folio: Burke; Regd owner: Mary Teresa Regd owner: Eugene Higgins and Regd owner: Cornelius Clarke and Regd owner: Michael Sheill (deceased); folio: Regd owner: John Tracey; Alexander Regd owner: William Regd owner: Christopher O’Brien; Registration of Deeds and Title Acts of Deeds and Title Registration 1964 and 2006 has been received from An application owners mentioned in the the registered dispens- schedule hereto for an order issued in ing with the land certificate in the respect of the lands specified land certifi- schedule, which original lost or inad- cate is stated to have been land certifi- vertently destroyed. The unless noti- cate will be dispensed with with- fication is received in the registry publication in 28 days from the date of certifi- of this notice that the original the custody cate is in existence and in the regis- of some person other than Any such notification tered owner. which the should state the grounds on certificate is being held. Chancery Property Registration Authority, 4 July 2008) Dublin 7 (published Street, Regd owner: John Gahan; folio: 2235, www.lawsociety.ie LAW SOCIETY GAZETTE
PROFESSIONAL NOTICES 70 PROFESSIONAL NOTICES LAW SOCIETY GAZETTE JULY 2008
Park, Clones, Co Monaghan; folio: 11035F; lands: Clonkeen (Cole); Co LAW SOCIETY Monaghan Regd owner: Matthew Hogan; folio: 487F; lands: Brownstown, Rahenny, Gazette and barony of Clonlisk; Co Offaly Regd owner: John R Caulfield; folio: 1782F; lands: townland of Knockroe PROFESSIONAL NOTICE RATES (ED Castlereagh) and barony of Castlereagh; Co Roscommon RATES IN THE PROFESSIONAL NOTICE SECTION ARE AS FOLLOWS: Regd owner: Michael O’Grady and Ann O’Grady; folio: 2646F; lands: • Lost land certificates – €138.50 (incl VAT at 21%) townland of Kilcolman and barony • Wills – €138.50 (incl VAT at 21%) of Costello; Co Roscommon • Title deeds – €138.50 per deed (incl VAT at 21%) Regd owner: Tadhg Hayes and Adele • Employment/miscellaneous – €138.50 (incl VAT at 21%) Hanevy; folio: 37931F; lands: town- land of Glengar and barony of These rates will apply from Jan/Feb 2008 to Dec 2008 Kilnamanagh Upper; area: 3.8300 hectares; Co Tipperary HIGHLIGHT YOUR NOTICE BY PUTTING A BOX AROUND IT – €33 EXTRA Regd owner: Denis Hyland (deceased); folio: 2248; lands: plot of ground sit- ALL NOTICES MUST BE PAID FOR PRIOR TO PUBLICATION. CHEQUES SHOULD BE uate in the townland of Kilmanahan MADE PAYABLE TO LAW SOCIETY OF IRELAND. Deadline for Aug/Sept Gazette: and barony of Glenahiry in the county of Waterford; Co Waterford 20 August 2008. For further information, contact Valerie Farrell or Laura Wipfler on tel: Regd owner: Stafford-Miller (Ireland) 01 672 4828 (fax: 01 672 4877) Limited, now known as Block Drug Dungarvan Limited; folio: 3902L; lands: plot of ground situate in the Would any person having knowledge same, please contact Gallagher Shatter MISCELLANEOUS townland of Clogherane and barony of the whereabouts of any will made by Solicitors, 4 Upper Ely Place, Dublin of Decies without Drum in the the above-named deceased, who died 2; tel: 01 661 0317, fax: 01 661 1685, London solicitors will be pleased to county of Waterford; Co Waterford on 7 April 2008, please contact Legal email: [email protected] advise on UK matters and undertake Regd owner: Leo Phelan and Marie Support Services, Solicitors, Main agency work. We handle probate, liti- Phelan; folio: 9203F; lands: plot of Street, Sixmilebridge, Co Clare; tel: Murphy, Denis (deceased), late of gation, property and company/com- ground situate in the parish of St 061 713 767, fax: 061 713 642, email: Ballygibbon, Blarney, Co Cork, who mercial. Parfitt Cresswell, 567/569 John’s Without P, known as Tara, 66 [email protected] died on 7 June 2008. Would any person Fulham Road, London SW6 1EU; DX Saint John’s Park, in the city of having knowledge of a will made by the 83800 Fulham Broadway; tel: 0044 Waterford; Co Waterford Cullen, Stephen (deceased), late of 1 above-named deceased, or if any firm is 2073 818311, fax: 0044 2073 814044, Regd owner: David Cassidy, Patrick Moylaragh Lodge, Balbriggan, Co holding the same, please contact email: arobbins@parfitts. co.uk Cassidy and Josephine Cassidy; folio: Dublin, who died on 4 May 2008. Coakley Moloney Solicitors, 49 South 30007F; lands: Goreybridge and Would any person having knowledge Mall, Cork; tel: 021 427 3133, fax: 021 Full seven-day intoxicating liquor barony of Gorey; Co Wexford of a will made by the above-named 427 6948, email: [email protected] licence for sale. Contact Emerson & Regd owner: Brian Kenyon and deceased please contact Denis Conway, Solicitors, 1 St Francis Street, Thelma Kenyon; folio: 4340F; lands: McSweeney, Solicitors, Grand Canal McGurgan, Maureen (deceased), Galway; tel: 091 562 531/565 093 Ballyhow Lower, barony of House, 1 Upper Grand Canal Street, late of Bough, Rathvilly, Co Carlow. Shelmaliere East; Co Wexford Dublin 4; tel: 01 676 6033, fax: 01 661 Would any person having knowledge Merger opportunity: long-estab- Regd owner: Edward Reilly, 5723, email: info@denismcsweeney. of a will made by the above-named lished Dublin city-centre solicitors’ Bloomfield, Mullingar, Co com deceased, who died on 6 March 2008, practice with significant expanding Westmeath; folio: 7004F; lands: please contact O’Gorman Begley client base seeks merger with like- Lynn; Co Westmeath Casey, Michael (deceased), late of 6 Solicitors, Kincora, Athy Road, minded progressive legal practice. Regd owner: Christopher Austin, Doris Street, Ringsend, Dublin 4, who Carlow; tel: 059 914 0999, fax: 059 913 Principals only to: Dominick Tighe, Monilea, Mullingar, Co Westmeath; died on 23 April 2007. Would any per- 3095 KSi Faulkner Orr, KSi House, 10 folio: 3877; lands: Clonkill; Co son having knowledge of a will made Whitefriars, Aungier Street, Dublin 2; Westmeath by the above-named deceased please Kelly, John (otherwise Sean) Joseph tel: 01 418 9970, email: Dominick. Regd owner: Martha O’Byrne and contact Madigans Solicitors, 167 (deceased), late of 94 Haddington [email protected] Gerard O’Reilly; folio: 10278; lands: Lower Kimmage Road, Dublin 6W; Road, Ballsbridge, Dublin 4, retired townland of Kilboy and barony of tel: 01 492 1111, fax: 01 492 1348, delivery man, who died on 7 August Arklow; Co Wicklow email: [email protected] 2007. Would any person having knowl- TITLE DEEDS Regd owner: Patrick Doran, Tomacork, edge of a will made by the above- Carnew, Arklow, Co Wicklow; folio: Carson, Mary (deceased), late of 18 named deceased please contact In the matter of the Landlord and 11776; lands: townland of Lissadel Court, Crumlin, Dublin 12. Wilkinson & Price Solicitors, South Tenant (Ground Rents) Acts 1967- Cronyhorn Lower and barony of Would any person having knowledge Main Street, Naas, Co Kildare; tel: 045 2005 and in the matter of the appli- Shillelagh; Co Wicklow of a will made by the above-named 897 551, fax: 045 876 478, email: cation by Martin Morris: notice of Regd owner: Laurence Carroll, Mary deceased, who died on 30 May 2008, [email protected] intention to acquire the fee simple Campbell, Ann Mannine and John please contact Cullen and Company, Take notice that any person having an Carroll; folio: 10528; lands: town- Solicitors, 86/88 Tyrconnell Road, Perry, Rita (deceased), late of 7 interest in the freehold estate of the land of Roundwood and barony of Inchicore, Dublin 8, tel: 01 453 6114 Maplewood Greens, Springfield, property situate on the south side of Ballinacor North; Co Wicklow Tallaght, Dublin 24. Would any person Market Street in the town of Hume, Thomas (deceased), late of having knowledge of a will made by the Mountmellick in the parish of 108 Mulvey Park, Dundrum, Dublin above-named deceased, who died on 4 Rosenallis, barony of Tinnahinch, in WILLS 14, who died on 22 March 1980. May 1992 at St James’ Hospital, the county of Laois, being part of the Would any person having knowledge Dublin, please contact John O’Leary & property comprised in folios 1128L of Barry, George (deceased), late of 12 of a will made by the above-named Co, Solicitors, Millennium House, the register of leaseholders, Co Laois, Sion Road, Glenageary, Co Dublin. deceased, or if any firm is holding the Main Street, Tallaght, Dublin 24 and held under indenture of lease
www.lawsociety.ie 71 and and in the Landlord and Landlord Landlord and Tenant Landlord for all their Take notice that Emir Donnelly, notice that Emir Take being In default of any such notice or any intermediate interest in all that or any intermediate premises at Centaur and those the of a yearly the subject Street, Carlow, dated in or about tenancy agreement the estate of Kathleen 1908 between of the one part Douglas, deceased, Robinson of the other and Philip part. entitled to being the person currently said interest under the the tenant’s intends to apply to the yearly tenancy, county of county registrar of the of the free- Carlow for the acquisition inter- hold interest and all immediate and any ests in the aforesaid property, a superi- party asserting that they hold property is or interest in the aforesaid of their called upon to furnish evidence with- title to same to the below named this notice. in 21 days from the date of Donnelly received, the said Emir intends to proceed with the applica- tion before the Carlow county regis- trar at the end of the 21 days from the date of this notice and will apply for such direction as may be appropriate on the basis that the person or per- sons beneficially entitled to the super interests including the freehold rever- sion in the aforesaid premises are unknown and unascertained. Date: 4 July 2008 Signed: PJ Byrne & Co (solicitors for the applicant), Athy Road, Carlow In the matter of the Acts 1967-1994 Tenant matter of the (Ground Rents) (No 2) Act 1978 in the matter of an application by Sheila Magennis and in the matter of the property known as 40 Fair Street, Drogheda, Co Louth This notice is directed to any person or persons having an interest in the freehold estate or any intermediate interests of the property known as 40 and and in the , not just qualified solicitors. Landlord and Landlord Landlord and Tenant Landlord EMPLOYMENT Take notice that Sean Harte and Take In default of any such notice being east by a laneway or passage, said east by a laneway forming portion of the demised plot formerly situate lands of Ballybough, of Coolock and county in the barony now situate in the city of Dublin but and more particularly of Dublin the map hereon described in thereon coloured red. endorsed and submit an Marie Harte intend to registrar for application to the county Áras Uí the city of Dublin at Dublin 7, for Dhálaigh, Inns Quay, inter- the acquisition of the freehold interests in est and all intermediate that any the aforesaid property and hold the fee party asserting that they interest in simple or any intermediate called upon the aforesaid property are to the said to furnish evidence of title solici- property to the below-named the date of tors within 21 days from this notice. received, Sean Harte and Marie Harte intend to proceed with the application before the said county registrar at the end of 21 days from the date of this notice and will apply to the said county registrar for the city of Dublin for such directions as may be appropriate on the basis that the person or persons beneficially entitled to the intermediate interests, including the fee simple, in the afore- said property are unknown or ascer- tained. Date: 4 July 2008 Signed: TJ Brabazon & Co (solicitors for the applicants), Brighton House, 29 Fairview Strand, Dublin 3 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 Emir Donnelly Any person having a freehold estate For Law Society members to advertise Log onto the new expanded employment recruitment register on the members’ area of the Law Society website, www.lawsociety.ie, recruitment Murphy, or contact Trina at the Law Society’s administrator, Cork office, tel: 021 422 6203 or email: [email protected] FREE RECRUITMENT REGISTER and and in the legal staff requirements Landlord and Landlord Landlord and Tenant Landlord apply to the county registrar for Co apply to the as may be appro- Laois for directions basis that the person or priate on the entitled to the persons beneficially including the freehold superior interest aforesaid property are reversion in the unascertained. unknown and Date: 4 July 2008 Co (solicitors Garty & Signed: Vincent Square, for the applicant), O’Connell Mountmellick, Co Laois In the matter of the Acts 1967-1994 Tenant 6 Fairview in the matter of no the matter Strand, Dublin 3, and in Harte of an application by Sean and Marie Harte notice that any person having an Take or any interest in the freehold estate the follow- intermediate interests of ing property: all that and those the dwelling house and premises former- Terrace, ly known as no 6 St Michael’s but now known as no 6 Fairview Strand, being portion of the heredita- ments comprised in and demised by indenture of lease dated 30 April 1906 between John Joseph Donnelly of the of the other one part and John Ward part (hereinafter ‘the lease’) for a term of 200 years from 25 March 1906, at the annual rent of £22, subject to the covenants and conditions therein contained, and therein described as all that and those that plot of ground containing in situate at Fairview, breadth in front to Fairview Strand Road 103 feet, 4 inches or there- abouts, in the rear in depth from front to rear on the west side 60 feet, 8 inches or thereabouts, and in depth from front to rear on the east side 86 feet or thereabouts, bounded on the south and west by premises in the possession of the lessee, on the north by Fairview Strand Road and on the matter of the 1978 (Ground Rents) (No 2) Act LOCUM JULY 2008 JULY or seeking to employ a locum solicitor.
the sale. client base.
second office Box no 60/08 Well established Well Lease included in FOR SALE PRACTICE PRACTICE Ideal opportunity for SOLICITORS solicitor starting out or fee income by way of a fee income by way of Log onto the new self-maintained locum recruitment register on the or members’ area of the Law Society website, www.lawsociety.ie, recruitment Murphy, contact Trina at the Law Society’s administrator, Cork office, tel: 021 422 6203 or email: [email protected] For Law Society members seeking a position as a locum solicitor solicitor wanting to growsolicitor wanting to FREE Clare/Limerick City area
RECRUITMENT REGISTER www.lawsociety.ie LAW SOCIETY GAZETTE Take notice that Martin Morris Take In default of any such notice being dated 14 November 1918, made between Christopher Samuel Bailey, Thomas Cosby Bailey, Wellesley Andrew Bailey and Alfred Graham Bailey of the one part and Thomas Scott of the other part for the term of 99 years from 25 March 1918 at the annual rent of £16. intends to submit an application to the county registrar for Co Laois for the acquisition of the freehold interest and any in the aforesaid property, party or parties asserting that they hold a superior interest in the afore- said property are called upon to fur- nish evidence of title to the aforemen- tioned property to the below named within 21 days from the date of this notice. received, Martin Morris 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 PROFESSIONAL NOTICES 72 PROFESSIONAL NOTICES LAW SOCIETY GAZETTE JULY 2008
Fair Street, Drogheda, in the county In the matter of the Landlord and of Louth, held under an indenture of Tenant Acts 1967-2005 and in the NOTICE TO THOSE PLACING RECRUITMENT underlease made on 11 August 1951 matter of the Landlord and Tenant ADVERTISEMENTS IN THE LAW SOCIETY GAZETTE between Mary Bellew of the one part (Ground Rents) (No 2) Act 1978 and and Henry Sweeney of the other in the matter of an application by Please note that, as and from the August/September 2006 issue of the Law Society Gazette, NO recruitment advertisements will be published part. Tadgh Lynch and Mary Ann Lynch that include references to years of post-qualification experience (PQE). Take notice that Sheila Magennis (otherwise Merlyn Lynch) intends to submit an application to Take notice that any person having The Gazette Editorial Board has taken this decision based on legal advice, the county registrar for the county of any interest in the freehold estate of which indicates that such references may be in breach of the Employment Louth for the acquisition of the free- the following property: all that and Equality Acts 1998 and 2004. hold interest in the aforesaid proper- those the plot of ground in the village ty and that any party asserting that of Glanmire on which Linneylime Take notice that Tadgh Lynch and Date: 4 July 2008 they hold any superior interest in the Killan and Oldstable are now stand- Mary Ann Lynch (otherwise Merlyn Signed: Aidan M Deasy & Co (solicitors aforesaid property are called upon to ing, in the possession of William Lynch) intend to submit an application for the applicant), 34 Upper Fitzwilliam furnish evidence of title to the said Phair Esq and by him demised to Mr to the county registrar for the county Street, Dublin 2 property to the below-named solici- Bury and the next lately in the posses- of the city of Cork for the acquisition tors within 21 days from the date of sion of John Martin, bounded on the of the freehold interest in the aforesaid this notice. north and west by premises in the property, and any party asserting that RECRUITMENT In default of any such notice being possession of Mr Bateman, on the they hold a superior interest in the received, Sheila Magennis intends to east by David Draddy’s holdings and a property or any of them are called North West/Sligo solicitor, 20+ proceed with the application before house in the possession of Miss Alicia upon to furnish evidence of title to the years’ experience in general practice, the county registrar at the end of 21 Martin, and on the south by the road aforementioned property to the below principally litigation, conveyancing, days from the date of this notice and commonly called the Grand Road named within 21 days from the date of family law; Step International will apply to the county registrar for from Cork through the village of this notice. Diploma; currently employed with the county of Louth for directions as Glanmire, which said premises are In default of any such notice being commercial firm overseas, seeks part- may be appropriate that the person or situate, lying and being in the parish received, the applicant intends to pro- time position October ’08. Email: persons beneficially entitled to the of Rathcooney and North Liberties of ceed with the application before the [email protected] or tel: superior interest including the free- the city of Cork, held under inden- county registrar for the county of the 0044 762 449 2541 hold interest in the aforesaid proper- ture of lease dated 25 February 1837, city of Cork for directions as may be ty are unknown or unascertained. John Martin of the one part and John appropriate under the basis that the Solicitor with excellent experience Date: 4 July 2008 Arnold of the other part for a term of person or persons beneficially enti- in litigation and other areas of gen- Signed: Branigan & Matthews (solicitors 200 years from 25 March 1837 at the tled to the superior interest including eral practice seeks immediate position for the applicant), 33 Laurence Street, yearly rent of £4, since adjusted to the freehold reversion in the property in Cork area. Please contact 087 050 Drogheda, Co Louth £3.75. are unknown and unascertained. 5647
Publication of advertisements in this section is on a fee basis and does not represent an endorsement by the Law Society of Ireland.
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Tel: 00-34-952823085 Fax: 00-34-952824246 e-mail: [email protected] Regulated by the Solicitors Regulation Authority of England and Wales Web site: www.berdaguerabogados.com
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