Contents GazetteLawSociety

Regulars Cover Story Blooming lawyers News 2 12 The recent flurry of interest in the centenary of Bloomsday paid little attention to Dublin’s legal fraternity, even though this is a thread Viewpoint 8 running through James Joyce’s Ulysses. Brian McMahon gives you the guided tour Letters 11 Tech trends 32 CPD: are you on track? As the continuing professional development cycle reaches its half-way Book reviews 34 16 point, Alison Egan answers the most common queries raised by Briefing 39 practitioners

Council report 39 School of hard knocks Committee A recent English case concerning the expulsion of a secondary school reports 40 18 pupil might have implications for schools in this Practice notes 40 country. Murray Smith has been swotting up Legislation update 41 The sins of the parents Solicitors 22 Last year, the Revenue Commissioners Disciplinary issued 7,000 registered letters in cases Tribunal 42 involving deceased holders of bogus Personal injury non-resident accounts. Julie Burke judgment 44 explains the legal and tax issues that arise in such cases and provides guidelines FirstLaw update 47 for solicitors and their clients Eurlegal 51

Professional Negotiating the obstacles information 57 28 The development of alternative dispute resolution techniques reflects the real or perceived shortcomings of legal negotiations. But perhaps COVER PIC: [email protected] legal negotiations as a particular method of dispute resolution could be enhanced, argues Kevin Liston

Editor: Conal O’Boyle MA. Assistant editor: Garrett O’Boyle. Designer: Nuala Redmond. Editorial secretaries: Catherine Kearney, Valerie Farrell. Advertising: Seán Ó hOisín, 10 Arran Road, Dublin 9, tel: 837 5018, fax: 884 4626, mobile: 086 8117116, e-mail: [email protected]. Printing: Turners Printing Company Ltd, Longford. Editorial Board: Pat Igoe (Chairman), Conal O’Boyle (Secretary), William Aylmer, Tom Courtney, Eamonn Hall, Mary Keane, Ken Murphy, Michael V O’Mahony, Alma Sheehan, Keith Walsh

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. Volume 98, number 8 E-mail: [email protected] Law Society website: www.lawsociety.ie Subscriptions: €57.15

1 Law Society Gazette October 2004 News NATIONWIDE News from around the country DUBLIN LOUTH Annual general meeting Old photos anyone? The annual general meeting of The Bar Room in Dundalk’s new the Dublin Solicitors’ Bar courthouse is being fitted out by Association (DSBA) will be held solicitors with photographs, old in Blackhall Place at 6pm on and new. Niall Lavery, honorary Wednesday 27 October. There secretary of the Louth Bar will be an election for ten places Association, said that it was on the council and nominations important to link the past with will be invited from the floor. the present, particularly in their ‘This is an association of splendid new courts building. Dublin solicitors’, says DSBA ‘The walls of the Bar Room honorary secretary Kevin are already adorned with photos, O’Higgins. ‘It can and does play some of them showing partners an important role in our working Dundalk’s newly refurbished courthouse in firms 50 years ago’, he said. lives. Come along and have your This will become a great way of voice heard’. Continuing education Holiday and Travel Trade Act, looking up what solicitors Planning is hugely important in 1995, the EU distance selling practised in the area over the PIAB: we still have a its own right and increasingly so regulations and finally the years. Local solicitors with major role in conveyancing. An important European Communities (unfair photos and mementos should A recent seminar on the seminar on planning law will be terms in consumer contracts) consider installing them in the Personal Injuries Assessment held at the Westbury Hotel, regulations 1995. Problems and room. He added that it was Board was very well attended. Dublin 2, on Monday 18 pitfalls likely to be encountered important that their new Law Society president Gerard October. Rory O’Donnell, by solicitors will be examined. facilities also reflect the local Griffin attended the meeting. founder and chairman of history of the profession. He told colleagues that it was O’Donnell Sweeney and former ROSCOMMON important that we inform vice-president of the Law The Roscommon Bar MAYO ourselves on the new reality. He Society, will speak on the Association recently welcomed New courthouse also reminded solicitors that we difficulties that arise with Judge Geoffrey Browne to Solicitors in Castlebar have been still have a major role to play in certificates of compliance with District Court area no 4. The getting familiar with their new litigation. planning permission and the area covers a significant region surroundings since their four- building regulations. He will also and includes sittings in court building was opened. ‘We Guardians of the peace talk generally on the precautions Ballaghadereen, Ballyhaunis, now have a courthouse that Five officers and members of the that solicitors should take in Carrick-on-Shannon, Castlerea properly reflects the importance DSBA recently met the senior advising clients on planning and Claremorris. A spokesman of the law and also makes the garda in charge of gardaí in the matters. for the association said that it stressful lives of practitioners greater Dublin area. President The seminar will also be looked forward to a happy and that bit less stressful’, John O’Connor, vice-president addressed by Brendan Slattery of constructive working commented Evan O’Dwyer of Orla Coyne, secretary Kevin Arthur Cox on the Planning Acts relationship with the new judge the Mayo Bar Association. O’Higgins, programmes director in general and the practical and that it wished him good The official opening by John O’Malley, and former implications of buildings erected fortune in his new position. justice minister Michael president James McCourt spoke with no planning permission. Here, too, continuing McDowell was attended by to assistant commissioner Al The final speaker will be Alan professional development is county registrar Fintan Murphy McHugh about issues of Doyle of Barry Doyle & Co, becoming an on-going aspect in and court officials, gardaí and common interest between who will speak on the the working lives of solicitors. solicitors. There was a general Dublin solicitors and the gardaí. prosecution of cases in the High Before year-end, seminars will view that it was necessary that The meeting, which was Court for breaches of be held for local solicitors on there be separate courtrooms for amicable and constructive and environmental law. PIAB, probate, company law the District Court and the for which there was no agenda, A further seminar for the and legal costs. From responses Circuit Court, and also a separ- ranged from the past and present diary is on 8 November at the so far, the association is ate court for family law cases interface between solicitors and Conrad Hotel, Dublin 2, on the confident that local solicitors and, finally, a fourth large court gardaí to the day-to-day role of obligations of suppliers under fully appreciate the importance room available when needed. G solicitors in the criminal justice consumer law. The seminar will of continuing professional system in the protection of the consider relevant extracts from development and realise that it Nationwide is compiled by Pat Igoe, rights of those accused of crime. the Consumer Credit Act, 1995, helps the individual practitioner, principal of the Dublin law firm They also found time to enjoy a the Sale of Goods and Supply of the profession, our clients and Patrick Igoe & Co and chairman of meal. Services Act, 1980, the Package the community at large. the Gazette Editorial Board.

2 Law Society Gazette October 2004 News ‘The best regulation of any profession in these islands’, says McDowell ustice minister Michael source, did not suit any news JMcDowell paid a remarkable agenda and went unreported’, tribute to the excellence of Law said director general Ken Society regulation in an address Murphy. to 300 people at a parchment ‘As the minister clearly ceremony in Blackhall Place on knows’, added Murphy, ‘the 2 September. society’s regulation of the ‘In my view, the regulation solicitors’ profession is a by the Law Society of Ireland is sophisticated, multi-layered, the best regulation of any transparent system that is profession anywhere in these suffused throughout by islands’, the minister declared. external oversight from non- McDowell departed from his lawyer committee members – script to make the comment, one of whom this year is the and repeated his views in director of consumer affairs – conversation with members of and others to guarantee that it the society after the parchment operates in the public interest’. Director general Ken Murphy and justice minister Michael McDowell ceremony. As justice minister, just prior to McDowell’s remarkable tribute to the society ‘Everyone involved in the he has taken a close interest in society’s regulation of the the regulation of solicitors by Eamon Condon. McDowell’s remark was not profession, indeed everyone in the Law Society, and for the Although there were reported in any newspaper the the profession, should take last two years has attended and journalists present to cover the following day. ‘Perhaps not pride in this public declaration spoken at press conferences first-ever speech by a minister surprisingly, this exceptionally of confidence from someone publicising the annual reports for justice at a Law Society strong tribute, from an who is not known for throwing of the independent adjudicator, parchment ceremony, authoritative and well-informed bouquets’.

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3 Law Society Gazette October 2004 News

EMPLOYMENT LAWYERS’ AWARD LAUNCHED Society protests at exclusion The European Employment Lawyers’ Association has inaugurated an annual award of from new legal costs group €5,000, open to law students and practising lawyers of less he Law Society has written heads involved in running a than five years’ standing, ‘who Tto justice minister Michael solicitor’s practice today. aspire to a career in labour and McDowell complaining that ‘Can it really be feared that employment law’. The prize will solicitors have been omitted a single practising solicitor, in a be awarded for an article on an from his newly-established group which already comprises aspect of employment law to group to examine legal costs. 12 individuals, would somehow be delivered to EELA no later McDowell announced the unbalance the group? than 31 December 2004. Terms creation of the new group at ‘Why do you appear to and conditions can be found on the end of last month, saying consider it important that the the EELA website at that he ‘attached the highest group should not contain a www.eela.org. priority to reducing legal costs’. this group to have among its practising solicitor but that it The group is chaired by Paul members a solicitor in private should contain a practising PRACTICE MANAGEMENT Haran, outgoing secretary practice who has first-hand barrister? SEMINAR general of the Department of knowledge of civil litigation ‘We would like the solici- Outsource is running its annual Enterprise, Trade and and the existing system through tors’ profession to be construc- practice management and Employment, and it includes which costs are incurred, tively and co-operatively profitability conference on Friday representatives from the assessed and recovered? Such a engaged in the work of this 19 November in the Law Society. departments of finance and practising solicitor would also group. To this end we would Topics being covered include law justice, IBEC, the Consumers’ have firsthand knowledge of ask that you now appoint a firm management, market Association, Courts Service and the staff, information technol- solicitor in private practice to developments, benchmarking senior counsel John McBratney. ogy and all other cost over- be a member of this group’. profitability, economic outlook, In his letter to the minister, recruiting and retaining key director general Ken Murphy staff, managing your balance said: ‘We cannot understand No more Law Society diaries sheet, growth areas and why there should not be a solic- The Law Society has decided to discontinue the production of both valuation and assessment of itor in private practice as a pocket diaries and the Gazette yearbook and diary. The decision was legal practices. Further details member of this group and I taken reluctantly in the wake of dwindling sales of the products and can be obtained from Outsource write to ask you to review your the advent of electronic organisers and diary functions contained on on tel: 01 678 8490 or at decision in this regard. How most PCs. Pocket and desk diaries are available at most stationers. www.outsource-finance.com. could it be other than helpful to ONE TO WATCH: NEW LEGISLATION Civil Liability and Courts Act, •By delivery in person Provisions brought into effect on If he fails to do so, the court 2004 •By leaving it at the normal 20 September 2004 may draw inferences and This act was signed into law on address or address for service • Most of the provisions apply penalise the plaintiff by denying 21 July 2004 and a few provisions • By sending it by post by only to actions instituted after or reducing legal costs came into effect immediately. A registered letter. the commencement of the • In a personal injuries action, further batch was brought into provision, but there are some the court may direct evidence effect on 20 September 2004 by The PIAB Act, 2003 is amended to exceptions in relation to to be given by affidavit, SI 544/04, which also identified a permit the board to require any swearing a verifying affidavit, although a party’s right to third batch that will come into person, including a minister or giving false evidence and taking cross examine is preserved effect on 31 March 2005. No statutory body, to provide it with fraudulent actions. Changes to (s19) date has as yet been set for the information, and there are other the rules regarding collateral • On appeal of a personal injuries coming into effect of the minor technical amendments benefits in the assessment of case to the Supreme Court, the remaining sections, which deal (ss31 and 32). Chapter 1, part 3 damages and undeclared court may invite persons to with the eventual establishment of provides for the release of income will not apply to causes make submissions in relation a register of personal injury dormant funds of suitors, to be of action accruing before to liability or damages that it actions and valuation of property used for providing, managing and commencement of the relevant considers to be of exceptional for the purposes of court maintaining court buildings. section (s6) public importance, if the action jurisdiction. Section 49 provides for the •A plaintiff in a personal injury is one of a class where such issuing of summonses action is required to write a issues arise. The court may do Provisions brought into effect on electronically, and section 56 letter of claim within two this on its own initiative or if 21 July 2004 provides for an increase in months, or as soon as requested by a party or non- Section 4 provides for service of numbers of High, Circuit and practicable thereafter, stating party. A person may decline to notices. A notice may be served: District Court judges. the nature of the wrong alleged. make submissions, but must

4 Law Society Gazette October 2004 News

WOMEN LAWYERS HOLD Huge increase in trainees THEIR AGM The Irish Women Lawyers’ Association is holding its is ‘a vote of confidence’ annual general meeting on 30 October 2004 at 10am in the he number of trainees of one and two solicitor firms Distillery Building, 145-151 Tentering the profession has around the country taking on Church Street, Dublin. The jumped by 56% in two years, trainees. AGM is open to all members of according to the latest figures And he added: ‘The decision the Irish Women Lawyers’ from the society’s law school. by a firm, particularly a small Association and will be Last month, 555 new students firm like my own, to take on a followed at 11am by a seminar began the professional practice trainee is in part a statement of on work/life balance. This course part 1 in Blackhall confidence in the economic seminar is open to everyone. Place. This compares with 355 future for the firm and for the The entrance fee to the who entered the law school in profession generally. The seminar is €30 for non- 2002. collective effect of these members, €15 for members Speaking at a recent Griffin: ‘no quotas’ decisions is also a substantial and €10 for apprentices, parchment ceremony, Law indication of confidence in the devils and students. Society president Gerry entry to the profession. national economy which should, There is no need to pre- Griffin said that the society Griffin said that this year there perhaps, be recorded in some book. Registration will take had never before experienced had been a surge in the number national economic barometer’. place at 9.45am for the such a huge leap in numbers. association’s annual general ‘The attractiveness of the meeting and from 10.30am for profession, which has been NOMINATIONS FOR LAW SOCIETY ELECTIONS the seminar. high for many years, seems to Nominations for election to the Law Society Council closed on 27 be growing again’, he noted. September. The following is the list of candidates. Peter M Allen, CHANGE OF ADDRESS FOR He pointed out that the Donald Binchy, Anne Colley, Orla Coyne, Colin Daly, Gerard J FIRE BRIGADE society had unreservedly Doherty, Gerard F Griffin, Edward C Hughes, Michael G Irvine, Philip Dublin Fire Brigade has accepted from as far back as M Joyce, James MacGuill, James B McCourt, Simon J Murphy, changed its address for the 1980s that it has no role to Michelle Ní Longáin, Daniel E O’Connor, TC Gerard O’Mahony, John licence renewals, but it play in controlling the P O’Malley, Michael Quinlan, Marie Quirke, John P Shaw and Fiona appears that not every numbers entering the Twomey. There are 21 candidates vying for 16 seats on Council. solicitor is aware of this. The profession and that it did not The successful candidates will be declared at the annual general new address is Dublin Fire operate a quota system or any meeting on 11 November. Brigade, 165/169 Townsend other mechanism to restrict Street, Dublin 2.

do so in writing, giving reasons brought on or after • If a party so requests a court are to be listed before the (s21) commencement, and pending in a personal injuries action, judges concerned, and listed • The book of quantum is to be at the commencement date the court may direct that a thereafter every two months taken into account by a court (s26) witness shall not attend the until judgment is delivered. when assessing damages, but •Offences on indictment warrant trial until he is required to give When listed, the judge must other matters also may be a penalty of a fine up to evidence, and may give indicate when he proposes to considered (s22) €100,000 and/or up to ten directions to prevent him deliver judgment, and the date •Giving false evidence in a years’ imprisonment. On communicating with other is to be registered in the personal injuries action is an summary conviction, the witnesses or receiving register. Note, however, that offence, and this applies to penalty is a fine up to €3,000 information which might have section 46 of the 2002 act has actions brought on or after and/or imprisonment for up to an effect on any evidence he not yet been commenced. commencement of this section, 12 months (s29) might give. This, however, does and pending on the •Interest on legal costs does not not apply to expert witnesses Provisions due to come into commencement date (s25) become payable until either (s54) effect on 31 March 2005 • If a plaintiff is behind false or costs are agreed between the • Section 55 amends section 46 A large number of significant misleading evidence in a parties or they are taxed. of the Courts and Court provisions of the act are due to personal injuries action, the Thereafter, interest will be Officers Act, 2002, which come into effect in six months’ court is required to dismiss the payable at a rate to be provides for the establishment time, and will be summarised in a action unless, for reasons specified from time to time of a register of reserved future issue. G stated by the court in its (s41) judgments in each of the court decision, to do so would result • Sections 42, 43 and 44 jurisdictions (supreme to Alma Clissmann is the Law in injustice being done. This concern administrative matters district). Judgments not Society’s parliamentary and law section also applies to actions for the Courts Service delivered within two months reform executive.

5 Law Society Gazette October 2004

News HUMAN RIGHTS WATCH Degrading treatment in prison Alma Clissmann reports on developments in relation to the practical application of the European convention on human rights ast April, Lord Bonomy of Greece ([2001] 33 EHRR 57). Lthe Scottish Court of In Dougoz, an illegal alien was Session decided in Robert detained for 17 months, pending Napier v The Scottish Ministers his expulsion, in overcrowded ([2004] ScotCS 100) that a accommodation without proper prisoner had been treated in a sleeping facilities (benches but degrading manner contrary to no mattresses). Adjacent washing article 3 of the European and sanitary facilities were convention on human rights (‘no- described as ‘appalling’. The one shall be subjected to court held that the conditions torture or to inhuman or and the inordinate duration degrading treatment or connection with other charges, detention ‘such as to diminish his amounted to degrading punishment’). The decision is including attempted murder. human dignity and to arouse in treatment contrary to article 3. under appeal by the Scottish This was not his first time in him feelings of anxiety, anguish, In Peers, the prisoner could prison authorities. detention. inferiority and humiliation’. He leave his cell during the day. His It has particular relevance in The petitioner complained of awarded him £2,450 as just single cell held two and became this jurisdiction because one of overcrowding, slopping out and satisfaction. He also found a very hot, including at night when the factors that was important an impoverished regime, which violation of article 8. he was locked in. It had minimal to the petitioner’s success was he alleged together combined to On the question of whether ventilation and the prisoner was the absence of in-cell sanitation cause him a severe outbreak of the conditions in the prison badly affected by the heat and and the resulting need to slop eczema and a mental disorder. amounted to degrading airlessness. There was a floor out, which, of course, still exists Two prisoners were commonly treatment, Lord Bonomy toilet in the cell, unshielded by a in some Irish prisons. assigned to cells designed for considered the views of screen, which he and his The Napier decision restates one, the toilet and washing government ministers, cellmate had to use. The court the principle that a sentence of facilities and system for their use inspectors, academic experts and found that the conditions imprisonment extends only to were disgusting, and prisoners international bodies and amounted to degrading treat- the restriction of liberty, that a were usually confined to their concluded: ‘this is an impressive ment in violation of article 3. prisoner’s human dignity must cells for 20 hours out of 24, with body of consistent, informed In Lord Bonomy’s opinion, be respected, that the way his an extremely restricted prog- opinion about the demeaning while the overall conditions in sentence is served should not ramme of activities. The cells nature of slopping out as Peers were worse than those subject him to distress or were badly lit and ventilated. No practised in prisons in the experienced by Napier, in some hardship greater than what is adjustments were made to take United Kingdom, including C respects they were better: there inherent in the deprivation of account of increases in prisoner Hall at Barlinnie, particularly was running water to flush away his liberty and that, given the numbers. when associated with waste and Peers was not practical demands of overcrowding and little time out confined to his cell during the imprisonment, his health and The judgment of cell’. day. He added: ‘it is also notable well-being should be There was little disagreement that the court reiterated that a adequately secured. If Irish between the parties on the Article 3 jurisprudence finding of degrading treatment prisoners follow Mr Napier’s physical conditions, and the The judge considered a number may be made where the lead, it will be very interesting judge’s summary makes riveting of cases decided by the ECtHR conditions give rise to feelings of to see what exactly Irish reading. The judge found that in Strasbourg under article 3, anguish and inferiority which prisoners suffer above and the conditions had an effect on starting with the most recent might foreseeably be capable of beyond their deprivation of the petitioner’s physical and case of Yankov v Bulgaria (11 humiliating and debasing the liberty. mental health, though not December 2003), in which the particular individual and possibly amounting to a mental disorder. principles were summarised. In breaking his physical or moral The facts He found that the petitioner’s that case, the court held that the resistance and does not depend For the 40 days that Robert second attack of eczema, after his forced shaving of a prisoner’s on proof that he was in fact Napier spent on C Hall of request for removal to better hair before his confinement in an subjectively humiliated and Barlinnie Prison in Glasgow, he conditions had been refused, was isolation cell was very likely to debased or that his physical or was a remand prisoner. He had caused by the stress of the living result in a feeling of inferiority, moral resistance was actually failed to show for trial on conditions in the prison. He as his physical appearance was broken’. G charges of assault, robbery and found that the petitioner had changed against his will. Other abduction, and was further suffered from inhuman and cases that the judge found of Alma Clissmann is the Law charged with attempting to degrading treatment and had assistance were Dougoz v Greece Society’s parliamentary and law pervert the course of justice in been subjected to conditions of (6 March 2001) and Peers v reform executive.

7 Law Society Gazette October 2004 Viewpoint McDowell: lawyers ‘should not On 2 September, for the first time ever, a minister for justice addressed a Law Society parchment ceremony. Michael McDowell urged the profession to look to the future with confidence. This is an edited version of his address

am very pleased and custodian of their interests in Ihonoured to have been many situations and, generally, invited to attend this ceremony be the person they trust and to address you on this very implicitly, often at a time of important occasion in the lives great stress and trauma in their and careers of those who are own life. To purport to play such receiving their parchments a role, the solicitor must be a today. In doing so, I think it is person of outstanding integrity, appropriate for me to honesty and competence, acknowledge that the Law because the consequences for Society has always been the client and for society of the committed to the aim of absence of these qualities are educating solicitors of the very serious indeed. highest standard who will Those who need legal compare favourably with services must be able to access lawyers of any other them at the best possible price McDowell: ‘Irish solicitors compare favourably with jurisdiction. lawyers of any other jurisdiction’ for a quality service. This The development of this question has caused concern to modern Education Centre is an continue to abound in all areas central role to play in our the government on a number of example of the commitment of of the law. democratic society through fronts. Among these are the the society in this regard. The advising, representing and legal overheads attending the society has, furthermore, laid Central role facilitating persons in their quest taking or defending of court great stress on the importance For those of you who intend to for justice. Your role means that proceedings, particularly as it of continuing education for practise law, as distinct from clients will take you completely affects personal injuries solicitors, something that can following one of the other into their confidence in relation litigation, and the costs scarcely be overemphasised avenues of work open to to family, personal, business and associated with tribunals of given that new developments qualified solicitors, you have a other matters. You will be the inquiry. The Arbitration Act, 1954: a g On 19 December, it will be the 50th anniversary of the Arbitration Act, 1954. Klaus Reichert makes the case for its speedy repeal and offers some suggestions for avoiding its worst effects

hen does the 1954 determined in, or pursuant 1998 act, otherwise the 1954 courts. If one looks at the WArbitration Act apply? to, the arbitration agreement act applies. UNCITRAL model law, which The answer is found not in the ii) any place where a substantial The 1954 act does not governs international act itself but in the later part of the obligations of the provide a sound legal basis for arbitration here, no such Arbitration (International commercial relationship is to domestic arbitration in Ireland interventionist powers are Commercial) Act, 1998. That act be performed or the place for a number of reasons. conferred upon the courts. contains Ireland’s international with which the subject matter Extensive court Why then should such powers arbitration law, and applies if: of the dispute is most closely intervention in the of intervention continue to be ‘a) The parties to an arbitration connected, or arbitration process is available in the domestic agreement have, at the time of c) The parties have expressly possible. In sections 35 to 40 arbitration context? the conclusion of that agreed that the subject matter of inclusive, extensive powers are Notwithstanding the agreement, their places of the arbitration agreement conferred upon the High Court strong support for business in different states, or relates to more than one to intervene in an arbitration, arbitration that the courts b) One of the following places is country’. such as by case stated and so have shown, the powers situated outside the state in on. The essence of a properly contained in sections 35-40 which the parties have their If any of these tests are passed, functioning arbitration process are a charter for those intent places of business: then the arbitration clause in is that there should be no such on delay, mischief or i) the place of arbitration if the contract is governed by the powers conferred on the obstruction. The courts have

8 Law Society Gazette October 2004 Viewpoint fear a reform agenda’ In particular, since I am stressed the need for such between solicitors and constantly growing numbers at addressing this gathering, I transparency and recommended barristers can only be practice in both branches of the should say that the Law Society an independent study of costs. defended if it demonstrably profession. I do not expect this engaged in a co-operative way In relation to any reform that delivers a better quality of trend to be reversed. with me when I was preparing may be under consideration and service and a fairer system of the Civil Liability and Courts Bill, which affects your profession, or access on equal terms to Modernisation project and I am grateful for their input in relation to which you can justice, at a cost that is I take this opportunity to on that. I tried to meet the make an input, I will ensure that competitive with any mention a joint project that my society’s concerns in a the society is consulted. As the alternative fused profession department is undertaking, constructive and honest spirit regulatory and representative • There can be no restrictive together with the Law Reform and I appreciated the society’s body for the solicitors’ practices or artificial barriers Commission, to radically approach, which was in a similar profession, the society’s input is in access to or delivery of reform and modernise land law vein. highly valued by me as it is by legal services and conveyancing law. The my government colleagues. • Self-regulation must deliver project, which has been Valued input the highest standards of underway since the start of the Another initiative that I am Key principles professional integrity and year, will repeal over 100 pre- taking is the establishment of a For my part, I believe that there protection for the interests of 1922 statutes – the earliest of group to examine the issue of are a number of key principles clients and the public – which date back to the 13th legal costs. The group will that should guide us in the otherwise there will be a case century. The aim is to replace examine how fees and costs in process of reform and for external regulation. them, where necessary, with a civil litigation arise and are modernisation: modern law of property that calculated, and the group will • There can be no closed shops From what I have been saying will meet the needs of the 21st examine the system in place in • There must be a new up to now, some might century. relation to the taxation of costs. emphasis on cost conclude that the future is To conclude, given the track The group will make transparency, value for doubtful for those receiving record of those of you receiving recommendations for initiatives money and competitive their parchments today! I do your parchments today in or changes in this area that can economic pricing of legal not believe that to be the case. getting to this point, and having lead to or assist in a reduction of services by both branches of Our society is becoming ever regard to the legal and business costs and provide for greater the profession more complex and prosperous. environment that you face, I transparency. A recent report of • Specialisation must be based Our legal system has changed believe that you can look the Denham Committee on on the objective common dramatically over recent decades forward with confidence to the Court Practice and Procedure good – the distinction and this has been reflected in future. G olden opportunity for reform shown a strong support for application to be dealt with, power to determine accepting an appointment, to arbitration and do not readily accepts a reduced sum in jurisdiction, order interim disclose any circumstances that interfere with cases. The settlement. measures of protection, and fix are likely to give rise to problem does not lie with the The arbitrator’s powers the rules of procedure absent justifiable doubts as to his/her judicial attitude to arbitration; expressly conferred by the agreement of the parties, impartiality or independence. rather, it is the delays inherent 1954 act are painfully few in among many others. The 1954 This obligation assists with the in getting an arbitration-related number. Unless the parties to act conspicuously fails in this transparency of the arbitrative application before the court the contract have incorporated regard. process and ensures that the that causes problems. It is quite a set of comprehensive The duties of the parties are on notice of anything easy to imagine how up to 18 arbitration rules into their arbitrator set out in the 1954 that may be of interest to them. months’ delay could be bought agreement, there is little in the act are equally patchy. The The 1954 act fails in this by a party bent on causing 1954 act to assist the arbitrator. 1954 act is silent as to, first, regard. trouble, particularly if that Apart from being given the independence/impartiality; As to the requirement of party has the resources to do so power to administer oaths, second, the requirement to treat equal treatment, this is expressly (and does not mind adverse order specific performance, the parties equally; and, third, set out in article 18 of the costs orders). Such tactics can make interim awards, correct the nature of the award. UNCITRAL model law and is have a profound impact on the slips in awards, and award costs Under the 1998 act, an a mandatory provision that each other party to the arbitration, and interest, nothing else is express requirement is that the side is given a full opportunity who may have less resources present. This is in marked arbitrator is independent or of presenting its case. While it (though a good case), and contrast to the UNCITRAL impartial. This obliges the could be said that an arbitrator rather than wait for the court model law, which includes the arbitrator, in advance of under the 1954 act was under

9 Law Society Gazette October 2004 Viewpoint an implied obligation to ensure alleviate, insofar as is possible, equal treatment, it is quite the situation? Ideally, replace the another thing for it to be set out 1954 act as soon as possible. in stark, statutory terms. Otherwise, perhaps changes Finally, other than directing could be made to the Rules of the an arbitrator to proceed with the Superior Courts dealing with reference and the making of the arbitration applications and place award with all reasonable all arbitration applications (other dispatch, the 1954 act says than those to stay court nothing else. That is in contrast proceedings) immediately in the to the UNCITRAL model law, commercial list of the High which requires the award to be Court, regardless of monetary reasoned. Such a provision value. This would immediately eliminates bare awards, akin to cut off any foot-dragging awarding a sum to one party, or possibilities. As arbitration is an ‘splitting the baby’. A essential aspect of well- fundamental requirement of any functioning commerce, the adjudication process is that each benefits of assigning such side knows exactly why it won, applications to the commercial lost or drew. list would be readily apparent. Parties can help themselves by Keeping up with the Joneses choosing a set of arbitration It is a matter of regret that, rules in their contract. This will while Ireland has a fine not exclude the intervention international arbitration law, it of this process here, it is a matter Northern Ireland and its 1996 powers of the court under has a seriously flawed domestic of urgency that the 1954 act be Arbitration Act, which is a sections 35-40, but the chances statute. As domestic arbitration attended to. Indeed, one can modern and well-formed law. are that it will minimise the risk is the principal day-to-day form look with some envy to What can be done now to of such applications. Also, a good

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10 Law Society Gazette October 2004 Viewpoint set of arbitration rules will being caught up in case stated, wherever they want. Thus, there under the New York convention or confer powers upon the and so on, it is relatively simple would be no need to travel to chapter VIII of the UNCITRAL arbitrator to properly run the to frame one’s contract to take Northern Ireland but, as a model law. arbitration. Apart from the main advantage of Northern Ireland’s matter of law, the arbitration Finally, if one needed to get institutional arbitration rules, Arbitration Act. Thus, two parties would be taking place there. an injunction pending the such as the LCIA, ICC, or from this jurisdiction, who are Indeed, there is no need for any outcome of the arbitration, one ICDR, a very good formula is about to sign a contract to do party to the agreement or the could still go to the High Court found in the UNCITRAL something or other in this arbitrator to have any connection in Dublin to get orders in aid of arbitration rules, which reflect jurisdiction only, can provide for with Northern Ireland. Such an a ‘foreign’ arbitration. much of the UNCITRAL model arbitration to be governed by arbitration agreement could be This is an assured way of law. These rules, while intended Northern Irish law, yet have the framed quite simply. One would definitively getting around the for international arbitration, are substantive rights and not require an arbitrator (or failings of the 1954 act, but only equally useful for straightforward obligations under their contract lawyers) from Northern Ireland serves to emphasise the need to domestic arbitration and can be governed by Irish law. for the arbitration. Again, there overhaul that act as soon as incorporated into a domestic Further, under section 34 of is no impediment in the 1996 NI possible. G contract quite easily. the NI Arbitration Act 1996, the act to any of this. Any award If one wants to exclude arbitrator or the parties can arising from such an arbitration Klaus Reichert is a Dublin-based completely the possibility of decide to hold the hearings would be easily enforceable barrister. Letters Dating the certificate of title From: Patrick Dorgan, chairman practice note Dating of certificate is being delivered to loan funds. of the Conveyancing Committee certificate of title (published in the lending institution, all of It takes little imagination to refer to the letter in the the July issue, page 39). the documents as listed in the see the difficulties that could be IAugust/September issue of There is no question that a third schedule will be available caused if the certificate were to the Gazette (page 12) from Mr solicitor should retain loan to be handed over. be dated after registration was John Lanigan in relation to the funds until registration is This position is agreed with completed, possibly years later, Conveyancing Committee’s completed. By the time the the lenders, and has been so for when the client might have, many years, and the committee unknown to his solicitor, had takes this opportunity to judgments against him, become reiterate again that the proper bankrupt or carried out Start spreading the news date of a certificate of title is unauthorised extensions to the From: JVP Cresswell, Kilternan, Ann Saddlemeyer, published the date of parting with the dwellinghouse. Co Dublin by Colin Smythe in 1979). ne of the earliest plays Can any of your readers Ostaged in the Abbey explain the significance of the Theatre 100 years ago this word ‘removable’ in this con- DUMB AND DUMBERER December was the one-act text? From: Patrick J Cowhey, O’Connor, solicitor, just became Spreading the news by Lady Nowadays, the procedure O’Callaghan Cowhey, Solicitors, the proud father of a new son. I Gregory. for the removal from office of Dun Laoghaire, Co Dublin was just in his room getting a One of the characters in the a member of the judiciary recently received a letter from precedent when I overheard him play is described as a ‘remov- seems to be very complex. Was Ia colleague acknowledging finishing dictation to a bank, and able magistrate’ (see The come- it a simpler matter in Lady receipt of the ‘original he said: ‘Could you please let us dies of Lady Gregory, edited by Gregory’s day? pulmonary summons’. Clearly have the documents as a matter the solicitor in question was of urgency so that we can putting his heart and soul into prepare the contractions’. his work. We have given him the rest of What are words worth? the week off! From: Niall Farrell, Patrick J very surprised as I thought that From: John G Murphy, John A Farrell & Co, Newbridge, Co I had sent it. I duly checked the Sinnott & Co, Enniscorthy, Co Congratulations to John G Kildare file and confirmed that I had. Wexford Murphy, who wins the bottle of returned the call recently of a She apologised for the error he following actually champagne this month. And Isolicitor’s secretary. She want- and, by way of explanation, told Thappened today, 1 congratulations also to Donal ed to know when her office me that ‘it wasn’t actioned in September 2004. My colleague O’Connor, who probably would receive a contract in a my tasks’. What have we at the office here, Donal deserves it more! particular case. I told her I was become?

11 Law Society Gazette October 2004 Cover story

BLOOMThe recent flurry of interest in the centenary of the day on which James Joyce’s Ulysses was set focused on the elements of Dublin society in 1904 from which the book drew its people and places. But little mention was made of Dublin’s legal fraternity, even though it is a thread running through the novel. Brian McMahon gives you the guided tour

ames Joyce’s Ulysses is set in Dublin on 16 When leaving Glasnevin, Bloom briefly meets • James June 1904 and its two principal characters Paddy Dignam’s employer, John Henry Menton, Joyce’s are Leopold Bloom and Stephen Dedalus. solicitor. Ulysses Bloom is the novel’s hero and his journey Thom’s directory, 1904 lists a solicitor named John • Dublin in Jaround Dublin echoes Odysseus’ journey in Henry Menton practising from 27 Bachelor’s Walk. 1904 Homer’s Odyssey. After the funeral, Bloom goes to the offices of the • Legal The novel opens in the Sandycove Martello Evening telegraph in Abbey Street, now gone but encounters in Tower near Dun Laoghaire, and it is on Stephen’s marked by a plaque outside Eason’s. He joins the the book journey back to the city, when he calls into the conversation in which JJ O’Molloy, a once-promising Irishtown house of his uncle, Richie Goulding, that young barrister now fallen on hard times, and MAIN POINTS the first legal reference occurs. Richie Goulding is a Professor MacHugh discuss the prosecution of legal cost drawer who works for the firm Collis and hawkers in the Phoenix Park. Ward, a name to which he adds his own on his legal The Freeman’s Journal of 9 June 1904 reported the costs bag. When Stephen calls, he is sitting in bed prosecution of seven people for hawking wares in places drafting bills for masters Goff and Shapland Tandy. forbidden by public notice before Mr Mahony, divisional Thom’s directory, 1904 shows that the firm of Collis magistrate in the Northern Police Court. The wares were and Ward was located at 31 Dame Street and two of the sold at the site of the murder by the Invincibles of the chief taxing masters then working at the consolidated taxing secretary and under-secretary to the lord lieutenant in office of the Supreme Court were James Goff and 1882, and were postcards memorialising this event. The Shapland Morris Tandy. seven were convicted and fined 2s 6d and costs each.

Cockles and mussels The oul’ triangle Leopold Bloom, after breakfasting at home in Eccles JJ O’Molloy then begins praising the speech of Street, walks across the city to Irishtown to join the Seymour Bushe KC in the Childs murder case. funeral procession of Paddy Dignam. On the When his name is mentioned, the editor confuses journey back across the city to Glasnevin cemetery, him with Charles Kendall Bushe, and Professor Martin Cunningham tells those in the carriage, MacHugh alludes to the scandal that prevented his including Bloom, how Reuben J’s son tried to appointment as a judge. commit suicide by jumping into the Liffey but was Seymour Bushe was one of the foremost barristers of his saved by a workman who was rewarded with a florin. day and a great orator. He was the great grandson of The Irish Worker of 2 December 1911 reported a Charles Kendall Bushe, chief justice of the King’s Bench, very similar incident in which Reuben J Dodd, son of Ireland, from 1822 to 1841. At that time, the King’s Reuben J, jumped into the Liffey and was saved by a Bench and Common Pleas had a chief justice each, workman who, as a consequence, got sick and missed Exchequer a chief baron and Chancery a lord chancellor. work. When his wife sought money from Reuben J, he Seymour Bushe missed judicial appointment because of reluctantly gave her 2s 6d. When Joyce was a child, his involvement in an adulterous affair. In a trial held in father had to sell property to pay off debts to Reuben J, a October 1899, attended by James Joyce, Bushe successfully money lender and costs drawer, starting the family’s defended Samuel Childs of the murder of his 76-year-old descent into poverty. The young Joyce knew the young brother at 36 Bengal Terrace, beside Glasnevin cemetery. Reuben J Dodd but disliked him for obvious reasons. JJ O’Molloy then begins to tell a story about the Reuben J Dodd became a solicitor in 1901. When the famous Chief Baron Christopher Palles, chief judge BBC broadcast this extract from Ulysses in the 1950s, in the Court of Exchequer in 1904, but Dodd successfully sued for defamation, saying he had unfortunately is cut short. The conversation returns jumped into the Liffey after his hat. to oratory, and mention is made of Mr Justice

12 Law Society Gazette October 2004 Cover story ING LAWYERS

13 Law Society Gazette October 2004 Cover story

Fitzgibbon’s style of discourse and his speech to the Ormond Quay Upper in 1904 – when she changes Tr inity College Historical Society. her mind and retraces her steps past King’s, the law In 1904, Gerald Fitzgibbon was a judge of His stationers (then at 36 Ormond Quay Upper), and Majesty’s Court of Appeal. His son would go on to be a smiles credulously at the vice-regal cavalcade. judge of the Supreme Court of the Irish Free State. The cavalcade had earlier passed and been ignored by In the early afternoon, the setting is the National Dudley White BL, who Maurice Healy, in his memoirs, Library of Ireland, where Stephen is setting out his described as a clever mimic and who practised from 29 theory on Hamlet to others in the librarian’s office. Kildare Street in 1904. The cavalcade would later be spotted In the course of the conversation, John Eglington by Gerty MacDowell from outside Roger Greene’s solicitors, refers to Judge Barton’s search for clues that whose offices were at 11 Wellington Quay in 1904. Shakespeare was Irish, and the librarian, just before Leaving the bookshop, Bloom, pondering where to leaving to deal with a query from Bloom, refers to eat, meets Richie Goulding and they go to the Mr Justice Madden’s Diary of Master William Silent. Ormond Hotel. While they are there, George Sir Dunbar Plunkett Barton was a justice of the Lidwell comes in. King’s Bench. He was a cousin of Seymour Bushe and George Lidwell is the solicitor Joyce consulted in his wrote a number of studies of Shakespeare. Dodgson disputes with the publisher of Dubliners, and some of the Hamilton Madden was also a justice of the King’s Bench: consultations occurred in the Ormond Hotel near his office his book was an elucidation of Shakespeare using his at 4 Capel Street. Lidwell advised Joyce that, while knowledge of hunting in the west of England. Ironically, Dublin’s vigilance committee might press for Joyce’s the National Library does not have a copy of that book prosecution for the language used in the story ‘Ivy Day in now but does have many of Madden’s legal works. the committee room’, the advisors to the Crown would not notice the story. The strawberry beds After dining, Bloom leaves the Ormond Hotel and ‘Irish people In the mid-afternoon, while Bloom is browsing in a walks by 12 Ormond Quay Upper, noting that it is bookshop, an elderly lady leaves the Four Courts the address of 24 solicitors, a fact Thom’s directory, are fortunate having heard the cases In lunacy of Potterton, Owners 1904 confirms. that their of the Lady Cairns v the Owners of the Barque Mona, and Harvey v Ocean Accident and Guarantee The rare oul’ times enjoyment of Corporation. At five in the afternoon, Bloom makes his way to Ulysses is This elderly lady is, perhaps, based on the lady Barney Kiernan’s pub on Little Britain Street and litigants famous in the Irish courts prior to 1919 joins the company of the citizen, Alf Bergman, and enhanced by who, though unable to practise as lawyers, could others. When JJ O’Molloy and Ned Lambert enter, the fact that it prosecute cases in which they were concerned. they all discuss the alleged libel of Denis Breen by The Legal diary for 16 June listed In lunacy of publication of ‘U.p:up.’ on a postcard. Breen had is a depiction Potterton to discharge queries and vouch account. travelled with his libel from Collis and Ward to John of a day in The Lady Cairns case concerned a collision between Henry Menton and is sent as a prank to the sub- the two vessels off the Kish Light in March 1904. There sheriff’s office on 20 Ormond Quay Upper. JJ their capital was an application in it on 16 June to fix time and mode O’Molloy cites Sandgrove v Hole (2 KB 1 [1901]) and city’s history, of trial, and the matter was eventually heard from 21 to opines that the words are capable of defaming Breen. 23 June before the King’s Bench. The court, disagreeing Their meaning remains a subject of debate among and Irish with the Board of Trade report, held that the Lady Joyce scholars. O’Molloy then discusses the ‘Canada lawyers are Cairns was to blame for the accident. The action was swindle’ case, first mentioned by him in the Evening dismissed with costs and judgment was entered for the telegraph office, with Ned Lambert and tells him that more fortunate defendant on the claim and their counterclaim. The the accused was remanded. still that this solicitors for the owners of the Lady Cairns were D&T The Freeman’s Journal of 17 June reported the Fitzgerald, a very influential firm in their day. In the prosecution of James Wought, his sweetheart and her depiction scene in the Evening telegraph, it is remarked that they brother before Mr Swift KC in the Southern Police Court extends to used to brief JJ O’Molloy. for obtaining by false pretences £1 from Benjamin Harvey v Ocean Accident and Guarantee Zaretsky, and 10 shillings from Henry Crown, and their Corporation involved a Mr Charles Meade Harvey, defrauding Jacob Cohen of £1 by pretending to be profession’ who purchased life assurance which provided that, if he emigration agents who could arrange passage to Canada. should sustain any bodily injury by accident from an Wought had several aliases, including Richards, Sparks, outward, external and visible means or cause, and die Saphero and Charles & Co. Wought was convicted on 11 solely from the effect thereof, the corporation would pay July, though his co-accused were acquitted, and was his personal representatives £1,000. The unfortunate sentenced to 12 months’ imprisonment with hard labour by man’s body was found floating in the River Lee. On 15 the recorder. June 1904, the appeal of William Harvey, the In the novel, Alf Bergman then recalls the threat of administrator of the estate, from an order of the King’s the recorder to imprison Reuben J for taking a debt Bench following a decision against the estate on a special collection action, and he and Ned Lambert mock the case stated, concluded and judgment was reserved. recorder’s gullibility. The elderly lady travels down the quays and is In 1904, Dublin’s recorder was Sir Frederick Falkiner. about to enter the offices of Reuben J Dodd – at 34 His court was just around the corner from Barney

14 Law Society Gazette October 2004 Cover story

Kiernan’s in Green Street courthouse, and it was there Tobias in the Bridewell. that James Wought was sentenced to 12 months’ hard In fact, Matthew Tobias was not the judge but the labour. Sir Frederick was also chairman of the quarter prosecuting solicitor to the Dublin Metropolitan Police, of sessions, County Dublin. He was known as a poor man’s 4-7 Eustace Street. Indeed, he prosecuted James Wought. judge and his biography records his reputation for Bloom realises his mistake, corrects himself and humanity, though the reputation may have been more for refers to Thomas Wall, chief magistrate of the DMP. gullibility. Dublin, along with other Irish cities of the After leaving the cabman’s shelter, Bloom and time, had a Recorder’s Court. Following independence, its Stephen go to Bloom’s Eccles Street home, where jurisdiction was transferred to the Circuit Court by the the flowing of water from the taps causes mention of Courts of Justice Act, 1924 and the then recorder was the case taken against South Dublin Guardians for appointed to the High Court. the over-consumption of water by Ignatius Rice, Mention is then made of Arthur Courtenay and a solicitor to Dublin Corporation. case before Mr Justice Andrews. Such cases were a common occurrence in then drought- The former was master of the King’s Bench division stricken Dublin. The Freeman’s Journal reports the and the latter a judge of it who was notorious for the corporation’s case against the guardians as adjourned on 7 severity of the sentence he imposed. and as settled on 8 June, with the guardians agreeing to pay 4d per gallon of water in excess of their permitted Take me up to Monto amount. Bloom leaves Barney Kiernan’s in haste and, after Joyce’s Ulysses is enjoyed by millions around the visiting Paddy Dignam’s widow and Sandymount world who know very little of Dublin city or its strand, meets up with Stephen Dedalus in Holles history. Irish people are fortunate that their Street hospital and they end up in Dublin’s notorious enjoyment of Ulysses is enhanced by the fact that it is red light district of Monto. a depiction of a day in their capital city’s history, and Following an altercation with soldiers in the Irish lawyers are more fortunate still that this Monto, Bloom and Stephen walk to the cabman’s depiction extends to their profession. G shelter under the loop line bridge. En route, Bloom warns Stephen of the dangers of the red light Brian McMahon is a solicitor with An Post’s solicitors’ district and, in particular, of winding up before Mr office.

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15 Law Society Gazette October 2004 Education CPD: ARE As the continuing professional development cycle reaches its halfway point, Alison Egan answers the most common queries raised by practitioners

s we near the end of 2004, there are 15 This list is designed to be illustrative, and is not months left to complete the 20-hour exhaustive. These skills are at the very core of how requirement for continuing professional you conduct your professional practice and are development (CPD). The current CPD relevant whether you are dealing with clients or staff. Acycle ends on 31 December 2005. So, you have completed some hours of training to During this cycle, you are required to complete 20 date, but you are not sure how to record them. Does hours of CPD – 15 hours of group study, and five the Law Society provide a form to note hours of hours of self-study. While most practitioners are training for the CPD scheme? aware of their CPD requirement, many do not In May 2003, all solicitors were issued with a realise that 25% of the required time is to be spent personalised CPD record card and explanatory on management and professional development. booklet. Since the implementation of the scheme, Management and professional development is a over 80% of the enquiries have been from broad heading, and can include courses such as: practitioners who need a replacement record card. If •Professional ethics you still need a record card, if you have misplaced •Financial and business management one or never received one, please contact the CPD • Human resource management executive, who will provide it for you. An A4 version • Budget control of the record card can also be downloaded from the • Computer skills CPD section on the Law Society website. • Language training relevant to your legal practice Once you have your record card, it should be •Time and stress management courses completed carefully, noting your hours of attendance •Personal development and practice skills such as at various CPD events. These completed record interviewing, advocacy, mediation, negotiations, cards can be returned to the Law Society by the end communications and client care. of December 2005, on application for your practising certificate. Please do not return record cards to us in December 2004. As the scheme is one of self-certification, the record card is the only form of record that will be accepted. When the record cards are audited, further proof of attendance at courses will be sought. We will then ask for certificates of attendance from providers, or a letter confirming attendance at a course.

How do I fill out the record card? The record card is a small driving-licence-sized record of attendance. Hours spent at training events should be noted by the individual solicitor. At the end of the cycle, the declaration is signed and the record card returned on application for your 2006 practising certificate.

16 Law Society Gazette October 2004 Education

E YOU ON TRACK?

Section A: private study of five hours should be spent on management and Under this heading, hours spent on private or self- professional development. • 20-hour study should be noted. Private study can include requirement such activities as: Section C: group study – general • Cycle ends • Reading the Gazette This section is where hours spent at general CPD 31 December • Reviewing case law courses should be noted. The courses noted here 2005 • Reading new acts or statutes should include lectures, tutorials, workshops, • Your • Distance learning by correspondence or on-line seminars, video-conferenced lectures, and relevant questions learning courses diploma and certificate courses. Under this section, answered •Writing relevant articles. again, note the date of the course, the title, format MAIN POINTS and nature of the seminar and details of the course This list is illustrative only. Note the date of the organiser. Note the total number of hours spent private study, the nature of it, and how many hours under section C. were spent. Simply total the hours spent on private study at the end of section A of the record card. A Signature maximum of five hours only can be spent on private On the last page of the record card, practitioners study. should total the amount of hours spent on each type of activity included in sections A, B and C. This total Section B: group study – management and should not be less than the 20-hour minimum professional development requirement. The record card must be signed by the This heading should note hours spent on practitioner, and dated. Once the card has been management and professional development (group completed, it can then be returned by the end of the events). Group study is defined as a group of three or current cycle, 31 December 2005. more people. Under section B, note the date of the If you have any enquiries about the CPD scheme, seminar/event, the title of the course, and include please contact me in the Law School on 01 672 details of the course organiser. Calculate the amount 4802. There is also a comprehensive CPD section of hours spent at these courses, excluding coffee on the Law Society website at www.lawsociety.ie G breaks, lunch and registration time. Total the amount of hours spent at the end of section B. A minimum Alison Egan is the Law Society’s CPD executive.

17 Law Society Gazette October 2004 Education SCHOOL OF

Your school days are not always the happiest days – particularly if you sit on the board of management. A recent English case concerning the expulsion of a secondary school pupil might have implications for schools in this country. Murray Smith has been swotting up

he English case of R (on the application of forthcoming teachers’ ballot but added that L was • Expulsion of L) v Governors of J School ([2003] 1 AER, reinstated on the school roll. students 1012) involved the expulsion of a pupil L later returned to the school, but he was not • Right to from a school, followed by his brought back into mainstream classes; rather, he was education Treinstatement. Threatened with industrial taught and supervised separately and on his own • Relevant action by the teachers, the school set up a regime during the school day by a retired maths teacher who statutes and where he was taught separately from other students. was not a union member. Other teachers set him case law The case eventually came before the House of work, which they marked. He was to stay in the room Lords, based on whether this regime really during the day, except for toilet breaks, and he was MAIN POINTS amounted to ‘reinstatement’. not to speak to or associate with any other pupil The lords found in favour of the school. While (except for another student who joined him, excluded there has not yet been an equivalent Irish case, it is for the same incident and also successful on appeal), possible – given our constitution, statute law, and or any staff member save his supervisor or those who case law – that a similar decision might be reached wanted to visit him. Provisions were made for here. transport to and from school and for lunch. This regime lasted for 30 days, ten before the end Concrete jungle of the Easter term, and 20 before the students went A serious assault, involving pupil L, took place at J on study leave. L sought judicial review of the school’s School. The head teacher expelled him, a decision actions, arguing that this regime was not later upheld by the school’s governing body. L’s ‘reinstatement’. The lords found, by a three-to-two parents then appealed to an independent panel, which majority, in favour of the school. Of the majority ordered his reinstatement. judges, Lord Hobbhouse held: The reasons for that decision were given in Lord ‘It is obvious that a pupil who has committed a serious Bingham’s judgment: disciplinary offence for which he was thought to merit ‘There had been significant deviations from recommended permanent exclusion may, when that solution is found to be investigative procedures; there was concern that other pupils not available, still have to receive special treatment. Trust involved in the incident had not been permanently may have been destroyed; the capacity and inclination to excluded, raising a question whether pupils had been disrupt may be undiminished; the risk of physical injury to treated equally; there were discrepancies and inconsistencies others may still exist. Factors such as these may not in the evidence; the evidence did not suggest that L had unreasonably lead to responses from the teaching staff been involved to the same degree as other excluded pupils; which, unless accommodated, put at risk the education of on the balance of probabilities, the appeal panel concluded some or all of the other pupils of the school’. that L had not been guilty of the specific behaviour of which he had been accused in the head teacher’s letter (kicking the Goodbye, Mr Chips victim several times); permanent exclusion was not an Lord Scott also concluded that the school did appropriate response’. reinstate the pupil, emphasising ‘the facts of the case’, Also, ‘[L] had no record of fixed-term exclusions which was that the end of the school year was and the head teacher believed him normally to be an approaching and the time was imminent for the pupils honest pupil’. to concentrate on their exams. In his opinion, the The teaching staff, through their unions, voted for head teacher’s adoption of the regime was ‘a industrial action short of a strike, refusing to teach or permissible response’. supervise L. The pupil’s parents threatened legal Lord Walker said that one needed to take account action against the school following a meeting between of the teachers’ threat of industrial action, which was them and the head teacher, when he told them of the legal. While calling the regime ‘undoubtedly severe’

18 Law Society Gazette October 2004 Education HARD KNOCKS

and its severity ‘ill-advised’, he rejected the suggestion While the teachers’ action in putting pressure on that it was ‘humiliating or degrading’. He pointed out the governors and head teacher ‘threatened to that the regime was of short duration, that the pupil frustrate the decision of the independent appeal had, on his own admission, participated in serious panel’, the action was ‘in itself lawful’. Also, ‘it was a violence, and that the head teacher and board had risky and irresponsible course … But in the event it acted in good faith. did not, in my view, lead to unlawful action by the He concluded that the decision was ‘not so extreme governors or the head teacher’. or so disproportionate as to go beyond the limits of Bingham and Hoffman made reference to another their managerial and pastoral discretion … I would case heard by the court, P v NAS/UWT ([2003] 1 All take that view even if the teachers had not made their ER, 993). In that case, a pupil at a school was found threat of industrial action’. by teachers to be disruptive in class and violent and

19 Law Society Gazette October 2004 Education CLASS ACT In terms of relevant statutory provisions, section 9 of the Education notification to expel by the educational welfare officer, section 14(5) Act, 1998 contains the provision that recognised schools should: says that sub-section (4) is ‘without prejudice to the right of a board of a) Ensure that the educational needs of all pupils, including those with management to take such other reasonable measures as it considers a disability or other special needs, are identified and provided for appropriate to ensure that good order and discipline are maintained in b) Ensure that the education they provide meets the requirements of the school concerned and that the safety of students is secured’. education policy as determined from time to time by the minister, Section 7(2) of the Equal Status Act, 2000 prohibits discrimination including requirements as to the provision of a curriculum as by an educational establishment in terms of: prescribed by the minister in accordance with section 30. • The admission or conditions of admission of a person as a student • The access of a student to any course, facility or benefit provided Section 29 of the same act says that if a board of management expels • Any other condition of participation in the establishment by a a student or suspends him for a prescribed period, the student (if over student, or 18) or the parents can appeal the decision to the secretary general of • The expulsion of a student from the establishment or any other the Department of Education and Science, where the appeal will be sanction against the student. heard and determined by a committee appointed by the minister. By contrast, while section 14(4) of the Education (Welfare) Act, However, this discrimination only operates on nine grounds: gender, 2000 states that a pupil will not be expelled from a recognised school marital status, family status, sexual orientation, religion, age, disability, before the passage of 20 school days following the receipt of a race and membership of the travelling community.

abusive in the playground. The headmaster directed other educational facilities or institutions with due regard, that he be expelled from the school but the pupil however, for the rights of parents, especially in the matter of appealed to the governors, who directed that he be religious and moral formation’. reinstated. The headmaster instructed the teachers to The pupils also sued the INTO and the members take him back into their classrooms. of that union’s executive committee, looking for an The teachers complained to their union, which injunction to withdraw the directive, saying that it was directed that a ballot on industrial action be held. A part of a conspiracy to deprive them of their case later taken against the union by the pupil led to constitutional rights. the finding that a lawful trade dispute existed, as the In the High Court, McMahon J held for the dispute concerned the teachers’ contractual plaintiffs, saying that the article 42.4 conferred by obligations to teach him and therefore concerned their implication a corresponding right to receive such terms and conditions of employment. education. Also, he held that the INTO directive was an unlawful means of depriving the relevant pupils of ‘The Supreme School around the corner their constitutional right, even if the union’s purpose While there are no Irish cases like R v Governors of J was lawful. He held the state to be in default of its Court held School, there have been judgments regarding the obligation to provide free primary education from 1 that the admission, non-admission, suspension or expulsion of April 1976 to 31 December 1977, before it provided pupils that can illuminate the attitude Irish courts school buses. state’s might take to such a segregationist policy, if practised The INTO did not appeal this ruling, but the first obligation was in this jurisdiction. three defendants did. The Supreme Court held that The first was the Supreme Court case of Eilis the state’s obligation was to ‘provide for’ such to “provide Crowley, Kathleen McCarthy and Others v Ireland, the education, not to supply it, and that the state had for” such Minister for Education, the Attorney General and Others discharged this obligation. The plaintiff’s action ([1980] IR 102). The case arose out of a strike against those three defendants was dismissed. education, not involving all teachers (except one) in three national This case gave rise to others in which former pupils to supply it’ schools in a parish over the appointment of a principal successfully sued the INTO for damages alleging of one of the schools. Not only did the teachers’ union breach of the right to receive primary education, such (the INTO) call a strike, it issued a directive to as Liam Hayes v Ireland, the Minister for Education, the members in the schools adjoining the relevant parish Attorney General, INTO and Others (High Court, not to enrol pupils from the strike-affected schools. [1987] ILRM 651) and Fiona Conway, John Sheehan, After a period, the Department of Education provided and Mary Lou Hurley v INTO and Others (Supreme school buses to bring children from the affected Court, [1991] 2 IR 305). schools to other schools in adjoining parishes. A number of pupils affected by this sued the first Bully for you three parties for failing to properly provide them with While these cases did not relate to the suspension or free primary education, invoking the provisions of expulsion of a pupil, some do. In The State (Derek article 42.4 of the constitution. Smullen and Declan Smullen) v Duffy and Others Article 42.4 states: ‘The state shall provide for free ([1980] ILRM 46), the High Court upheld a primary education and shall endeavour to supplement and principal’s decision, after carrying out an immediate give reasonable aid to private and corporate educational investigation, to suspend a number of pupils who initiative, and, when the public good requires it, provide were involved in a fight outside the school, including

20 Law Society Gazette October 2004 Education the two plaintiffs, one of whom had stolen an iron board of management then, on the evidence bar from the school to use in the fight, and the other provided, decided to expel one and suspend the being wounded in the leg. He informed their mother other for a specified time. that she could appeal the decision to the board of They took a case against the board, alleging that management within a certain period. it acted in violation of fair procedures and, in After discussing the principal’s report, the board advance of the trial of their case, sought an decided to suspend the plaintiffs until the end of the interlocutory injunction for immediate reinstatement school year. The court said that the general scheme in the school until then. of discipline in the draft articles of management and O’Sullivan J ruled against the two, holding that put into practice by the principal and board was ‘fair the balance of convenience favoured the refusal of and wise’. The principal was entitled, after a bona fide their reinstatement. If he were to order investigation, to ‘make an immediate suspension of reinstatement, ‘enormous damage will have been one or more pupils in order to maintain peace and done to the authority and policy of the defendant discipline within the school’. Because a ‘proper and school’. But if he were to refuse the injunction reasonable opportunity’ had been given to the sought, and the plaintiffs eventually won their mother of the pupils to challenge the decision, it case, they will ‘in all probability in the could not be challenged on the basis of unfairness, meantime have had access to appropriate despite the refusal to permit the mother to be legally schooling’. Also, they were not facing represented at the board’s meeting. watershed examinations, and if they Later cases include Student A and Student B v won, ‘their reputations can be Dublin Secondary School (unreported, 25 November vindicated’. 1999). After two pupils were caught using cannabis, In McKenna (a Minor) v O the headmaster told their parents that they had been Ciarain (High Court, expelled as part of the school’s zero tolerance policy unreported, 30 November towards drugs, specified in its code of conduct. In 2001), Ó Caoimh J granted an subsequent meetings, he refused to change his mind, order of mandamus directing although he told the parents that they could appeal the principal of a vocational his decision to the board of governors. While school to readmit a pupil to correspondence and an account of the that school. The applicant and representations made on behalf of both boys was others had initially been passed to the board by the headmaster, no meeting suspended by the principal and took place between either the parents or pupils and then expelled from the school by the board before it confirmed the expulsions. the board of management for The pupils sought from the High Court an smoking cannabis, but the board interlocutory injunction to restrain the school from later decided to reinstate them. The expelling them, alleging a breach of fair procedures principal had refused to comply with and that the severity of the penalty imposed was the direction to reinstate the applicant, disproportionate. even though the VEC endorsed the board’s Kearns J held that one matter was a ‘cause for decision. concern’: the expulsions being put in place before ‘either the students or their parents had an Dangerous minds opportunity of making representations prior to the What could an Irish school do if, after following fair imposition of the most severe penalty to be imposed procedures, it expels a pupil who is violent and by a school … This is an essential element of fair abusive, and reinstatement is then ordered – whether procedures’. He decided to adjourn the matter for a by a court order or by a recommendation of an week in order to allow the plaintiffs and their parents appeals committee to the secretary general – and the to address the board before a final decision was made teachers, via their union, decide after a lawful ballot in terms of penalties. The board could still suspend not to supervise or teach the pupil? Can the school, or expel the plaintiffs, if, after hearing the invoking section 14(5) of the Education (Welfare) Act, submission, it felt that it was the ‘proper and 2000, set up a scheme of segregation similar to that appropriate course of action to adopt’. in the case of R v Governors of J School? It is possible that an Irish court might find in such Teacher’s pot a school’s favour, but only on certain grounds. First, Another case is James Wright and Alexander Wright v all reasonable efforts would need to be taken to keep The Board of Management of Gorey Community School the pupil’s education up to prescribed standards. (High Court, unreported, 28 March 2000). Both Second, the segregation would have to be of a short plaintiffs were suspended from school pending duration. investigation into allegations regarding drugs, Even in the circumstances of the English case, alleged to have been bought by the first plaintiff and J School’s policy was only upheld by a small delivered to the school by the second. The first majority. G plaintiff had previously been suspended for admittedly bringing cannabis to the school. The Murray Smith is a Dublin-based barrister.

21 Law Society Gazette October 2004 Taxation

Last year, the Revenue Commissioners issued 7,000 registered letters on a speculative basis in cases involving deceased holders of bogus non-resident accounts. Julie Burke explains the legal and tax issues that arise in such cases and provides guidelines for solicitors or their clients as personal representatives

n 20 February 2004, the Revenue stated • Taxation of a on RTÉ’s Morning Ireland that: deceased ‘If somebody has not declared their taxes, person’s estate they are liable or their estate is liable for • Tax liability those taxes, and we seek to collect those taxes on bogus O from the estate or those people who have benefited from the non-resident estate – that is the position in a nutshell. This is the case accounts irrespective of when the deceased died or any other • Responsibilities mitigating circumstances’. of the personal This is not an accurate reflection of the legal and representative tax position. Where the account holder is alive, it is

MAIN POINTS usually possible to determine the underpaid tax liability (if any) and the resultant charge to interest and penalties. However, where the original account holder is deceased, the estate fully wound up, assets distributed and (in many cases) the account closed, the position is far from The straightforward and gives rise to a number of very complex legal and taxation issues for both personal representatives and beneficiaries. These issues and the associated practical difficulties arising from a lack of information (as most of the accounts span over a period of 20 years or SINS more) means that such cases are fraught with easily pressurised and frightened by the Revenue. difficulty. These cases will be particularly relevant to The position is made more difficult by the hard- solicitors who have acted as executors in estates line approach currently being adopted by the where the deceased was the holder of a bogus non- Revenue. Very often, beneficiaries or personal resident account and the estate has been fully wound representatives only become aware of the undisclosed up. In such cases, the solicitor/executor will normally account on receipt of a registered letter from the be totally unaware of the existence of such an Revenue. It appears that the Revenue is prepared to account until correspondence is received from a use scare tactics, such as the threat of legal relevant bank or the Revenue. proceedings, to induce payment, irrespective of whether or not it is lawfully entitled to do so. The Who is liable? situation is further exacerbated by the fact that, in The Revenue’s view, published in November 2003, most cases, correspondence from the Revenue is indicates that it ‘will pursue personal representatives and initially being sent to one of the most vulnerable beneficiaries of estates when there has been an groups in our society, namely the elderly, who are underpayment of tax, and will also pursue any further

22 Law Society Gazette October 2004 Taxation

professional bodies in February 2004, the Revenue confirmed that ‘where a personal representative has acted properly in all respects, and all assets in an estate have been distributed when the liability on the account is discovered, they will not seek to initiate proceedings against the personal representative in his or her personal capacity to recover the tax. However, in order to recover tax from a beneficiary, it may be necessary to join a personal representative in proceedings to progress such a claim’. The Revenue statement is of limited benefit to a personal representative where he or she will, of necessity, be joined in any proceedings for the recovery of unpaid tax. Also, a personal representative is likely to experience difficulties in the recovery of the incumbent costs when (as in most cases) the estate is fully wound up. The Revenue has indicated that, irrespective of the various defences available to personal representatives that may exist, its mandate is to collect the underpaid liability. No account will be taken of passage of time, lack of knowledge or intent on the part of the relevant parties. My experience to date indicates that, in many cases, the mere threat of Revenue proceedings has induced payment, regardless of whether or not an enforceable liability exists. Clearly, this may give rise to an exposure for personal representatives in cases where tax, interest and penalties may have been overpaid. It is advisable in these circumstances for all relevant parties to consider what remedies are available to claim a refund.

Key issues for a personal representative There are a number of points that should be noted: • Where an estate is in the course of administration, the personal representative has a legal duty to pay of the the debts of the deceased (including any underpaid PARENTS person who has benefited from the funds in an undisclosed tax liability) with due diligence. Any unpaid tax account (such as a survivor of joint property)’. liability falls to be discharged in accordance with In the Revenue’s opinion, there are no statutory the general rules set out in section 46 of, and the limitations on its right to recover underpaid tax, first schedule to, the Succession Act, 1965. Part 1 of interest and penalties from personal representatives the first schedule sets out the rules as to application or beneficiaries in this type of case under relevant of assets towards payment of debts where the estate legislation. Following discussions with various is insolvent and part 2 of the first schedule sets out

23 Law Society Gazette October 2004 Taxation

the rules where the estate is solvent applicants (in these cases, the Revenue), and the •The assessable person under section 1048 of the onus of proof rests on the person seeking to have Taxes Consolidation Act, 1997 (TCA) is the the conveyance voided (Bryce v Fleming, [1930] IR executor/administrator and not any other person, 376; Re O’Neill, [1989] IR 544; Myers v Duke of such as a beneficiary or a joint account holder with Leinster, [1814] 7 IR Eq R 146). Even where a the deceased conveyance of property is fraudulent and appears • No liability is created or due until such time as an to fall under section 10, section 14 of the 1634 act assessment is raised provides that a conveyance of property will not be •The underpaid tax is a debt due from the estate voided where it is conveyed on ‘good’ and is payable only out of assets of the deceased. consideration to a person with no notice of an Therefore, joint property that passes by intention to defraud creditors (Bryce v Fleming). survivorship does not form part of the estate of the deceased and so is not available to meet the Can the Revenue assess personal representatives deceased’s outstanding tax liabilities at date of in respect of the unpaid income tax, interest and death. As provided in section 10(4) of the Succession penalties on the funds held in the accounts Act, 1965, property to which a deceased is entitled during the lifetime of a deceased person? for an estate or interest that ceases on his death Yes. Section 1048(2) of the TCA imposes a strict does not pass to his personal representatives and time limit on the assessment of executors and does not form part of his assets for the payment of administrators in respect of underpaid tax of the debts, liabilities and any legal right, as defined in deceased. The limit is the same as if the deceased section 45(1) of the act person were still alive, but is restricted to three years • Personal representatives should always ensure that after the year of assessment in which the person died enquiries concerning the entitlement to joint in a case in which the grant of probate or letters of property are made at the beginning of the administration was made in that year, and to two administration period, because in certain cases years after the year of assessment in which the grant joint property can be deemed to be held upon a was made in any other case. resulting trust for the estate and in this instance would be so available for debts (Lynch v Burke, Can the tax time limit in section 1048(1) of the [1995] 2IR 159) TCA be extended? • Section 10 of the Conveyancing Act 1634 provides Sub-sections 1048(2)(a) and (b) provide for an that any conveyance of property (real or personal) extension to the time limit in section 1048(2) of the with intent to ‘delay, hinder or defraud creditors TCA in circumstances where there has been a and others of their just and lawful debts, rights and material error/omission from the Inland Revenue remedies’ is ‘void’ as against any person who is affidavit filed in the estate of the deceased. These prejudiced as a result (Re Moroney, [1887] 21 LR sub-sections extend the time for raising an IR 27). The Revenue Commissioners, being assessment to two years after the year of assessment creditors in respect of unpaid tax on income, could in which the corrected affidavit is delivered. Within apply to the court to have any such conveyance that time, the Revenue may raise an assessment for voided. In order to succeed in having a conveyance which one could have been made on the deceased if voided in this way, it is essential that an intention he were still alive. to defraud creditors be established by the There are certain cases where it may be argued MAJOR QUESTIONS TO CONSIDER • Does the personal representative have a personal obligation to been paid on the income earned on funds contributed to the act, even though the estate is fully wound up? account? • Could he be potentially personally liable for unpaid taxes of the •Are interest and penalties payable in respect of underpaid tax by a deceased? deceased? •Is there a legal requirement to respond to communications from • How can the personal representative determine whether the the Revenue? deceased availed of a tax amnesty in respect of the account? • What is the status of a letter from the Revenue sent to a personal • What are the limitations imposed on the Revenue’s right to representative? recover underpaid tax from the estates of deceased persons or • Is an assessment required prior to discharge of any historic tax from personal representatives or beneficiaries? liability? • Can a personal representative be the subject of a criminal • What is the personal representative’s position if he knew that prosecution by the Revenue in cases of this type? such an account was omitted from the Inland Revenue affidavit • What defences are available to a personal representative where filed in the estate? the estate is fully wound up? • What is the personal representative’s position if a tax claim that • What is the time frame for a response from the Revenue following transpires to be unenforceable or excessive is discharged? the making of a submission? Will the Revenue issue a letter of • How can a personal representative determine whether tax has clearance to personal representatives?

24 Law Society Gazette October 2004 Taxation that the exclusion of an account from the Inland Revenue affidavit will not fall within the category of ‘error or omission’ and in such cases the Revenue is not entitled to extend the initial time limit – for example, where no account existed at date of death and it was not the subject of a prior taxable gift. Where the Revenue is clearly entitled to extend the time limit under this sub-section, the onus will be on the Revenue to require that an additional affidavit be filed for the purposes of capital acquisitions tax to record the funds that existed in the accounts at the date of death. The Revenue is of the view that this gives it the right to re-open the time limit without limitation.

Is the Revenue entitled to recover penalties from the estates of deceased persons? Section 1060 of the TCA permits the Revenue to assess penalties in respect of unpaid tax of a deceased person. However, the case of AP, MP & TP v Switzerland (71/1996/690/8802) held that the penalty for tax Dublin Castle: evasion imposed on the heirs of a deceased person A further protection is afforded to personal home of the under Swiss law was contrary to the European representatives where notice to creditors has been Revenue convention on human rights. Since the convention has published in accordance with section 49(1) of the now been implemented into Irish law by the European Succession Act, 1965. This section protects personal Convention on Human Rights Act, 2003, it can now be representatives from being found personally liable to argued that the Revenue is not entitled to recover persons with claims against the estate (which would penalties in respect of unpaid tax from the estates of include the Revenue) in respect of the assets where, at deceased persons. the time of the distribution, they were unaware of the claim against the estate. What defences are available to personal Section 3(2) of the Statute of Limitations Act, 1957 representatives when the estate is fully provides that: administered and all funds distributed? ‘This act shall not apply to: On the basis that the personal representative acted in a) Any proceedings for the recovery of any sum due in good faith, it can be claimed that the estate has been respect of a tax or duty which is for the time being fully administered in a proper manner known as plene under the care and management of the Revenue administravit. The Revenue should not be able to Commissioners, or interest thereon, or overcome this defence by pleading devastavit, b) Any proceedings for the recovery of any fine, penalty or provided that the personal representative has acted forfeiture incurred in connection with any such tax or bona fide at all times. If he has failed to act properly, duty, or then he may be personally liable. c) Any forfeiture proceedings under the Customs Acts or The effect of successfully pleading plene the acts which relate to the duties of excise and the administravit in the context of the Revenue as a management of those duties’. creditor is that the personal representative will be relieved from liability and the Revenue, as is the case Thus, the limitation periods set out in the statute do with any other creditor, must seek out the not apply in the case of actions taken by the Revenue beneficiaries and request payment from the inherited Commissioners for the recovery of outstanding tax assets or the investment of those assets in the hands liabilities. of the beneficiaries. The equitable remedy of tracing Although the Statute of Limitations Act, 1957 is the assets of the deceased into the hands of the specifically disapplied for the purposes of recovery of beneficiary is a matter that may only be dealt with by unpaid taxes under the TCA, commentators have the courts. The Revenue is likely to be faced with a argued that the Revenue will be subject to time limits number of practical difficulties in making its claim, imposed by section 9 of the Civil Liability Act, 1961, and beneficiaries will be entitled to use equitable which provides that: defences to resist that claim. ‘No proceedings shall be maintainable in respect of any Where the estate is fully wound up and the cause of action whatsoever that has survived against the Revenue is not entitled to extend the time limits, estate of a deceased person, unless either proceedings have then the personal representative should immediately commenced within the normal limitation period and were advise the Revenue of the position and advise it that, pending at the date of his death or are commenced within if sued in respect of underpaid tax, he will be pleading the normal limitation period or within two years after his plene administravit. death, whichever period first expires’.

25 Law Society Gazette October 2004

Taxation

Is there a legal obligation to make a voluntary statement or accounts or wilfully furnishes any incorrect disclosure to the Revenue? information in connection with the tax is liable to a There is no legal requirement on a personal penalty punishable by a fine of €3,000 and/or 12 representative to make an unprompted voluntary months’ imprisonment on summary charge in the disclosure to the Revenue. However, insofar as the District Court or €126,970 and/or five years’ estate is in the course of administration, the onus is imprisonment on trial on indictment in the Circuit on the personal representative to ensure that all Court’. proper tax liabilities of the deceased are discharged It is most unlikely that a personal representative and a letter of tax clearance obtained. will knowingly or wilfully file false tax returns in the A personal representative risks being personally estate of the deceased person, this being the liable for the deceased’s debts, including tax, where standard of proof required for a criminal sanction. he has failed to discharge all known liabilities, all However, caution should be exercised where a proper enquiries having been made and a letter of tax personal representative may act in a dual capacity, clearance obtained prior to distribution. such as where he may have been jointly assessed Where the estate has been fully wound up, the with the deceased taxpayer for income tax purposes position is more complicated. Professional advice or as a joint account holder with the deceased. should be obtained to determine whether there is an It should be noted that if a voluntary disclosure is enforceable liability. If so, it would be prudent to made by a personal representative in relation to an consider making a voluntary disclosure. Having first account and provided it is accepted by the Revenue, obtained agreement/indemnity from beneficiaries, an it is normal practice that an assurance will be given unprompted voluntary disclosure will substantially by the Revenue that the case will not be considered reduce the risk of criminal prosecution and will for investigation with a view to a criminal normally facilitate the minimisation of penalties. prosecution. G

What is the risk of criminal prosecution? Julie Burke is principal of the Dublin firm of JM Section 1078 of the TCA provides that a person Burke Solicitors. She is a fellow of the Irish Taxation who ‘knowingly or wilfully delivers any incorrect return, Institute and editor of the Irish tax review.

To all my colleagues who have referred clients doing business or buying property in SPAIN and PORTUGAL. Please be assured that they are in safe hands with us and our associates. Thank you,

37 Upper Mount Street, Dublin 2, Ireland Phone: 353 1 661 0707 Fax: 353 1 611 4975 www.tommcgrathsolicitors.com [email protected]

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27 Law Society Gazette October 2004 Legal negotiations Negotiating th

The development of alternative dispute resolution techniques to some extent reflects the real or perceived shortcomings of legal negotiations. But perhaps legal negotiations as a particular method of dispute resolution could be enhanced, argues Kevin Liston

raditionally, the parties in adversarial • Alternative litigation, through their legal dispute representatives, determine the form, resolution content and pace of proceedings. The • Legal Ttrial could be described as a private negotiations contest engaged in before a public official. The • Development judge, as arbiter, having heard the competing of the justice testimonies and submissions as presented to the system court, exercises his judicial decision-making

MAIN POINTS authority with a measure of impartial detachment and thereby justice is done. If proceedings are compromised, the settlement may be reached at any time, including on the day fixed for the trial of the action.

Judicial case management and ADR In all the major common-law jurisdictions, two particular developments in recent years have had a significant impact on civil litigation – namely, judicial case management and the availability of alternative dispute resolution systems. Lord Woolf in the UK has defined judicial case management as: ‘the court taking the ultimate responsibility for progressing litigation along a chosen track for a pre-determined period during which it is subjected to selected procedures which culminate in an appropriate form of resolution before a suitably experienced judge. Its overall arbitration processes, arbitration having been purpose is to encourage settlement of disputes at the criticised for being litigation by another name. As a earliest appropriate stage; and, where trial is method of dispute resolution, arbitration has been unavoidable, to ensure that cases proceed as quickly around for centuries. as possible to a final hearing which is itself of strictly ADR is generally understood nowadays to refer to limited duration’. methods of resolving disputes other than litigation or Successful judicial case management helps to legal negotiations. ADR continues to take on a eliminate unnecessary delay, drift, confusion and growing importance and to be given increasing complexity in civil proceedings and enables the cost recognition both by legislators and by the courts in of proceedings to be independently monitored. the major common-law jurisdictions. ADR has also The range of, and the demand for, alternatives to developed in many continental European countries. litigation have expanded greatly in recent years. The In England and Wales, under the Civil procedure concept of alternative dispute resolution, commonly rules (CPR), the main body of which came into force known as ADR, began to develop initially in the on 26 April 1999, the courts have, in the discharge of United States about 25 years ago as an attempt to their judicial case-management function, encouraged avoid the shortcomings of the litigation and the use of ADR. Under the new rules, a failure to

28 Law Society Gazette October 2004 Legal negotiations the obstacles

Trevor suddenly realised that the negotiations seriously consider the possibility of ADR procedures clients the possibility of engaging in mediation as an weren’t going well when encouraged by the court to do so can, in due alternative to contentious family law proceedings. In course, be relevant to the issue of costs. relation to proceedings in the new Commercial Furthermore, ADR is now considered to be at the Court (see panel, page 30), a judge may, on heart of today’s English justice system, in which application to the court or by his own motion, litigation has to some extent come to be seen as the adjourn the proceedings for up to 28 days to option of last resort. facilitate a reference of the dispute to mediation, conciliation or arbitration. The court cannot compel Legislative provisions for ADR the parties to engage in ADR, but an unjustified Provision for ADR, particularly in the form of failure to give it due consideration may have costs mediation, has been made in various pieces of Irish implications. Section 15 of the Civil Liability and legislation in recent years. In the area of family law, Courts Act, 2004 will, when the section becomes it is provided for in the Judicial Separation and Family operative, enable a court in a personal injuries action Law Reform Act, 1989, the Family Law (Divorce) Act, (upon the request of any party to the proceedings) to 1996 and the Children Act, 1997. Each act imposes a direct the parties to attend a mediation conference legal obligation on solicitors to discuss with their with a view to attempting to settle the proceedings.

29 Law Society Gazette October 2004 Legal negotiations

One possible explanation is that legal negotiations THE COMMERCIAL COURT are not seen by lawyers as a dispute resolution SI no 2 of 2004, constituting order 63A of the Rules of the Superior Courts, which system with an identity that is separate from that of came into effect on 12 January 2004, established the Commercial Court as a new litigation. This is hardly surprising, given that legal division of the High Court. Rules 14 and 15 make provision in appropriate cases for negotiations frequently constitute an attempt to the judicial case management, in the form of a case-management conference, of compromise proceedings and frequently take place commercial proceedings. The case-management conference is chaired and at the door of the court. regulated by a judge. The general purpose of such conferences, as set out in rule 14(7), is ‘to ensure that proceedings are prepared for trial in a manner which is Gratuitous confrontation just, expeditious and likely to minimise the costs of proceedings’. Every case, There is undoubtedly an interconnection between whether the subject of case management or not, has a pre-trial conference at which litigation and contentious legal negotiations, and the judge establishes what steps remain to be taken in preparation for the trial. sometimes it is necessary to have legal proceedings instituted because of the other party’s preceding failure to deal in earnest or at all with the matters in Section 16 provides that a party who fails to comply dispute. Nonetheless, there is a fundamental with the court’s direction may at the conclusion of difference between adversarial litigation and legal the proceedings be penalised in costs. negotiations. Adversarial litigation constitutes a contest inter partes. The purpose of legal Legal negotiations negotiations, on the other hand, is to achieve a In a landscape in which sweeping changes are taking consensual outcome to the dispute. However, this place (see panels), relatively little attention has been essential difference between litigation and given, at least in Ireland, to how legal negotiations as contentious legal negotiations can be obscured when a method of dispute resolution might be enhanced. aspects of the litigation process make an Indeed, the development of ADR to some extent unfavourable impact on the negotiations. For reflects the shortcomings, real or perceived, of legal example, if the negotiations take place in an effort to negotiations. But is it not somewhat curious that compromise proceedings, they may be conducted mediators and other ADR specialists who are not against a background of diametrically opposed and lawyers should by choice be called upon to help mutually incompatible one-sided assertions of fact in resolve disputes for which there are legal remedies? relation to past events having been set out in the Surely, lawyers ought to be better equipped than pleadings. When negotiations take place against such non-lawyers at bringing about the settlement of such a confrontational background, the adoption of disputes? But perhaps ADR specialists have acquired extreme bargaining positions is more likely, with the a particular expertise with which lawyers as legal result that the goal of a consensual outcome to the negotiators are by and large unfamiliar. Perhaps legal negotiations will be more difficult to achieve. negotiations as a particular method of dispute But even before the possibility of a consensual resolution could be enhanced by lawyers developing resolution of the issues has been explored, it would a greater awareness of the strengths of various ADR seem – perhaps because of the presence of the systems. adversarial mindset – that parties are often So why is there relatively little attention given to unwittingly positioned for a contest. It is not unusual legal negotiations as a method of dispute resolution? for a solicitor’s initial letter of claim to conclude with a paragraph such as this: ‘We hereby inform you that our client holds you fully ALPHABET SOUP: PIAB AND PRTB responsible for the loss and damage that he has sustained. More radical recent ADR developments have taken place with the establishment of We now call on you within the next 14 days to admit the Personal Injuries Assessment Board (PIAB) and the Private Residential liability for the said loss and damage and to compensate Tenancies Board (PRTB). PIAB was established as a statutory body following the our client in full, failing which proceedings will be coming into force on 28 December 2003 of the Personal Injuries Assessment Board instituted against you without further notice’. Act, 2003. As is now well known, the principal function of PIAB is to assess the An initial letter of claim that is perceived by its compensation to be paid in respect of civil personal injuries claims (and damage to recipient to be gratuitously confrontational and property claims if caused by the same wrong) in any case in which there are no which makes no reference to a desired or possible legal issues, including that of liability. The act applies to most categories of civil consensual outcome to the matters in dispute is not action other than civil actions arising from medical negligence (and a further limited conducive to the creation of a favourable negotiating number of categories). environment. The Private Residential Tenancies Board, also a statutory body, has recently been established pursuant to the Residential Tenancies Act, 2004. The act makes Frame of reference provision for a new dispute-resolution service in relation to all disputes between Litigation as a means of resolving legal disputes landlords and tenants of dwellings to which the act applies. The service, when part involves an elaborate process. Legal negotiations, in 6 of the act becomes operative, will be provided through the PRTB and will comprise contrast, do not have a given procedural and mediation or adjudication and tenancy tribunal hearings. The PRTB’s dispute- regulatory framework. In view of the fundamental resolution function will, by and large, replace the role currently exercised by the difference between the two and the influence of the courts in relation to such disputes. adversarial mindset, legal negotiations, in my view, would benefit from having their own framework.

30 Law Society Gazette October 2004 Legal negotiations

Furthermore, in as much as there are certain procedural differences in litigation depending on the PRE-ACTION PROTOCOLS nature of the claim, there ought to be differences in In England and Wales, in addition to the changes brought about by the development the make-up of the negotiating framework of judicial case management and by the promotion of ADR, another area of change depending on the nature of the matters in dispute. that has made a significant impact on the handling of contentious civil cases is the An independent framework for legal negotiations establishment under the CPR of what are called pre-action protocols for particular composed of a process and set of ground rules would areas of civil litigation. Pre-action protocols are codes of sensible practice that the result in a higher rate of settlement, and also better parties are expected to follow as soon as the possibility of litigation has been quality and speedier settlements. A negotiation identified. These codes are designed principally to promote meaningful negotiations process could be designed, where appropriate, to by endeavouring to ensure, first, the prompt exchange of relevant information and, promote a problem-solving approach to the issues. second, the making of realistic offers to settle before the commencement of Problem solving usually involves the development of proceedings. There are now pre-action protocols in force in various areas of settlement options and the search for a creative and litigation, such as in the areas of personal injuries, professional negligence and imaginative resolution of the matters in dispute. judicial review. Under the CPR if, as a result of one party not complying with the Option development is a valuable exercise when applicable protocol, proceedings are commenced that otherwise would not have there is, as with a typical family law case, more than been necessary, or costs are incurred that otherwise would not have been one way of resolving the issues in dispute. incurred, the court will try to put the other party into the position he would have The establishment of an independent negotiation been if the protocol had been complied with. According to the Civil procedure (white framework ought to give rise to progressive book) 2003 (Sweet & Maxwell, London), new litigation post-CPR has reduced by developments in the justice system designed to 80% in the High Court and by 25% in the County Court. promote legal negotiations. Take, for example, disclosure of documents as an area of dispute resolution in which such developments might take Some of the legislative changes that have taken place. Orders for discovery are currently only place in Ireland recently have not been welcomed by available in the course of on-going proceedings. It is the legal profession. However, changes in the not possible to bring an action for discovery manner in which legal negotiations might be simpliciter. But if an independent framework for legal conducted could, with the support of court rule- negotiations gave rise in due course to the making committees, be shaped to a large extent by availability of an action for discovery in the context the profession itself. At the root of such changes of on-going structured legal negotiations, parties should be, firstly, the idea of legal negotiations in might, in appropriate cases, agree to provide in the appropriate cases being promoted as the preferable ground rules for the negotiations that, in the event first option in the resolution of legal disputes and, of the negotiations running into difficulties over the secondly, the idea of the lawyer as a problem issue of disclosure of documents, the issue could be solver. G referred to the court. The position would then be that, following the expeditious judicial determination Kevin Liston is the managing solicitor of the Gardiner of the issue, negotiations could promptly be Street Law Centre, Dublin, and author of the forthcom- resumed. Currently, if such difficulties arise, a full- ing Family law negotiations, to be published by scale action is required. LexisNexis.

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31 Law Society Gazette October 2004 Gadgets Tech trends Projecting the right image

f making machine has a footprint slightly brightness of the lamp to Ipresentations smaller than the average optimise on-screen imaging’). is part of your magazine, so it won’t take up And, like most projectors these job, then you much room on your desk. The days, it can be used with a might be PT-LM1E projects 1,200 wireless remote control and can interested in lumens of brightness, also be used to play DVDs and the new promising sharp, crisp images videos. multimedia PT-LM1E (Panasonic claims that it uses The PT-LM1E costs around projector from Panasonic. ‘artificial intelligence’ to €1,200 and is available from Weighing in at just 1.6kg, the ‘instantaneously adjust the office suppliers nationwide. Picture perfect scanning of your old snaps

e haven’t featured a infrared process. high-quality images direct from Wscanner on these pages Canon’s new your 35mm slides and negatives for a while, so what better FARE level 2 – up to six frames in one way to make up for it by technology can operation. If you care about introducing you to the recolour faded your photographs and you’re new CanoScan 5200F. films and correct thinking of buying a scanner, This flatbed scanner grainy films, then look no further than this. from Canon claims to be generating perfect scans The CanoScan costs around €225 able to automatically even from damaged film. The (including VAT). For more remove dust and scratch CanoScan 5200F features a high information, contact Canon on tel: marks from film being capacity, built-in 35mm film 01 205 2496 or visit scanned, using an advanced adapter unit so you can capture www.canon.ie. Of peckers and wood ollowing the abrupt end of more ‘human’ technology. Fhis naval career, the Duke of While that may sound like Wellington’s flagrantly gay Nordic nonsense, the idea has younger brother, Edmund, was taken off and the company’s redeployed to the British East products are now being Indies, with a stern warning distributed all over the world. ringing in his ears: ‘Keep your SWEDX supplies normal and hat on at all times, young man, flat-screen monitors, keyboards for woodpeckers are plentiful in and mice (including wireless these parts’. Ignoring this mice), and televisions all advice, Edmund received embedded in ash, beech or regular concussions and earned sapele, a native Scandinavian from his men the affectionate wood. nickname ‘peckerhead’. Had he SWEDX’s products are lived to the ripe old age of 357, distributed in Ireland by the he would surely have marvelled Drogheda-based firm ECM, at the prospect of a computer who can be contacted on tel: made out of wood. Since 2000, 041 983 4111 or e-mail: SWEDX has been building and [email protected]. developing computer hardware To see the full that is embedded in natural range of wood. The Swedish company SWEDX’s believes that people are tired of products, visit plastic and want to turn to a www.swedx.com.

32 Law Society Gazette October 2004 Gadgets Mixing business with pleasure

otorola has a smart new Communicator, the hinged has a camera, a colour screen much it will cost. Mmobile device coming mobile phone with the and a speakerphone. Not For further information, call your way in the next couple of QWERTY keyboard that has surprisingly, for such a cutting- Motorola on tel: 01 797 1000 or months. The company describes dominated the top end of this edge device, it uses the latest visit www.motorola.com. the MPx 220 as ‘the ultimate market for a number of years. Wi-Fi, Bluetooth and Java device for globe-trotting The MPx weighs just over six technology. No, I don’t professionals and busy people ounces and is a cross between a know what that means who want to stay connected laptop computer and a mobile either. Motorola says without compromising style or phone. It boasts all the usual that the MPx will be high-tech phone features’. We’d telephony, e-mail and word- available in the final probably call it a classy processing functions that you’d quarter of this year, alternative to the Nokia expect from a PDA, and it also but can’t yet say how Sites to see

Blogging thoughts (http://belmontclub.blogspot.com). This is Comedy news (www.bobfromaccounting.com). One of the many what’s known as a web log, or ‘blog’ – an on-line diary of sorts, comedy ‘news’ sites on the web, this one is, like all the others, a where people post their opinions, thoughts and occasional rants matter of personal taste. Stories include ‘Liberal accuses last for anyone, if they can be bothered, to see and comment on. friend of being fascist’, ‘Palestinians finally run out of rocks’, This example is more thoughtful and intelligent than most: it is and ‘Bush challenges NASA to put man on sun within decade’. serious journalistic commentary and analysis, frequently The site itself says: ‘Bobfromaccounting is comedy. If you are updated, on the on-going situation in Iraq. offended, get over it!’

Political chicanery (www.impeachblair.org). Some British MPs The game of (desk-bound) kings (www.isc.ro). Ever wanted to want to impeach Tony Blair for misleading them over the meet new people and impress them with your command of justification for invading Iraq. This site supports them, and vocabulary, but never got around to buying those tickets to includes a legal opinion on the impeachment process by Peru? Well, now you don’t even have leave your desk. This is Rabinder Singh QC and Prof Conor Gearty. All in all, it seems the ultimate, real-time, on-line scrabble site. Log in, search for to be less of a serious attempt to impeach the PM than it does someone who wants a game, and wordsmith away for a time- an attempt to get him to answer questions that the Speaker period you yourself set. Of course, it could be a load of might otherwise over-rule. hyperbolics.

33 Law Society Gazette October 2004 Books Book reviews Evidence Ruth Cannon and Niall Neligan. Round Hall Sweet & Maxwell (2002), 43 Fitzwilliam Place, Dublin 2. ISBN: 1-85800-276-1 (paperback), 1-85800-306-7 (hardback). Price: €74 (paperback), €149 (hardback).

The law of evidence in Ireland (second edition) Caroline Fennell. LexisNexis (2003), 26 Ormond Quay Upper, Dublin 7. ISBN: 1-85475836-5. Price: €99.35.

Irish laws of evidence John Healy. Thomson Round Hall (2004), 43 Fitzwilliam Place, Dublin 2. ISBN: 1-85800-380-6 (paperback), 1-85800-381-4 (hardback). Price: €120 (paperback), €198 (hardback).

t is fortunate to be asked to may be divided into two parts. On following, referring to the case Ireview three excellent recent the one hand, there is evidence of Trimbole v Governor of Irish books on evidence at the obtained in breach of the Mountjoy Prison ([1995] ILRM one time. It shows the growing constitution. Such evidence is 465 at 484). research and analytical skills of normally inadmissible. On the ‘Finlay CJ (Henchy, Griffin, the young lawyers and law other hand, there is evidence Hedermann JJ concurring): teachers with which this obtained in breach of statute or the I am satisfied that from those country is blessed. common law. Such evidence is decisions (State (Quinn) v Ryan, It is difficult to find time to normally admissible, subject to a (1965) IR 70; People (AG) v read law books and to evaluate discretion on the part of the trial O’Brien, (1965) IR 342; People v them. Having received these judge to exclude it. Madden, (1977) IR 336; People v books at the end of July, it was ‘… Evidence obtained as a result Lynch, (1982) IR 64) certain obviously expected that I of a direct and conscious breach of principles can be deduced. They are: should take them on my constitutional rights is The courts have not only an holidays. I did not, as I was automatically excluded under Irish inherent jurisdiction but a positive working almost full time law in the absence of extraordinary duty: during the time allowed for excusing circumstances. This rule i) To protect persons against the problem. I had a look at her first review. It was fortunate that my was first developed in the context of invasion of their constitutional edition and she has certainly work during that period related real evidence in People (Attorney rights improved the quality of her to a matter where a central General) v O’Brien ([1997] IR ii) If invasion has occurred to restore book. issue was unconstitutionally 336)’. as far as possible the person so Chapter 11 of Mr Healy’s obtained evidence. Perhaps In the space of less than 20 damaged to the position in which Irish laws of evidence deals with unfairly, I have assessed the pages, the authors give a clear he would be if his rights had not evidence obtained merits of the three books and concise statement of the been invaded, and unconstitutionally and illegally. basically with regard to this law, which I found very helpful. iii)To ensure as far as possible that The first portion of that chapter problem. I did so in respect of It was a well thought-out persons acting on behalf of the is headed ‘The exclusionary rule’ their content, citation of case exposition. executive who consciously and and reads as follows. law, and the comments of the Fennell’s The law of evidence in deliberately violate the ‘The judgment of Walsh J in authors on the state of law. Ireland deals with the issue at constitutional rights of citizens do People (Attorney General) v Cannon and Neligan deal chapter 4, page 116: not for themselves or their O’Brien, the Supreme Court’s first with this matter, starting at ‘The yardstick by which the Irish superiors obtain the planned authoritative analysis on the page 232 (chapter 15): courts determine admissibility of results of that invasion. matter, has become the locus ‘Unlawfully obtained evidence illegally obtained evidence is The classicus for determining the People (AG) v O’Brien. The ‘… I am satisfied that this principle admissibility of evidence obtained in search warrant used in The of our law is of wider application violation of a constitutional right of People (AG) v O’Brien contained than merely to either the question of the accused. an error in relation to the name of the admissibility of evidence or to ‘The courts in exercising the the street. The search was deemed the question of the punishment of judicial powers of government of the illegal – so incorporating a persons for contempt of court by state must recognise the paramount discretion on the part of the trial unconstitutional action’. position of constitutional rights and judge to admit or exclude the This got you to the central must uphold the objection of an evidence. A distinction was drawn issues. Again, Ms Fennell accused person to the admissibility at by the court between “mere devotes 20 pages to the subject his trial of evidence obtained or illegality” which could facilitate but, I would have thought, less procured by the state or its servants admissibility, and a breach of clearly than Cannon and or agents as a result of a deliberate constitutional rights which would Neligan from a general and conscious violation of the exclude evidence’. practitioner’s view. Her approach constitutional rights of the accused Later in that chapter, in is more academic, which was in a person where no extraordinary paragraph 4.33, there is the way helpful to my particular excusing circumstances exist, such as

34 Law Society Gazette October 2004 Books the imminent destruction of vital Isn’t it wonderful to have reading, footnotes and the case have these wretched bars on evidence or the need to rescue a such well-presented and text in its appendices. them. However, they are all victim in peril’. researched books? All of them Incidentally, all three deal likely to be under €100, and so In the 25 pages that follow, have good indices. Each covers extensively with ‘hearsay’. cheaper than a counsel’s the author deals with both the subject matter extensively Reading them shows how a opinion! Also, I find a client is unconstitutionally obtained and it really is a matter of simple rule has been clouded by very impressed if you give him a evidence and illegally or choice or taste in coming to a exceptions and ‘refinements’. In photocopy of a few pages of a improperly obtained evidence. judgement which is the best. practice, I think the rule has a book about his problem – I Also, in the appendix, he gives I think Cannon and Neligan strong tendency to depend on suppose that is in breach of the texts of the leading is the clearest but the shortest. the ‘chancellor’s foot rule’ or copyright! Even lawyers are now judgments, such as O’Brien, Fennell’s has a strong academic non-rule! in a tangled web in dealing with Shaw, Buck. In his footnotes and bent that is useful in the many Buy all three and compare the law. G the end of the chapter, he gives grey areas – I frankly admit after them on a particular subject. I a large number of references 40 years to still not fully know as an author that it is Robert Pierse is partner in the and further reading, which I will understanding ‘hearsay’ and its important that young authors be Kerry law firm Pierse & have to tackle some time in the ramifications. Healy is encouraged to continue. I don’t Fitzgibbon and is the author of future. particularly useful for its further know the prices, as they only Road traffic law (2004). Constitutional law (second edition) Michael Forde. FirstLaw (2004), Merchant’s Court, Merchant’s Quay, Dublin 8. ISBN 1-904480-19-5 (hardback), 1-904480-15-2 (paperback). Price: €130 (hardback), €90 (paperback).

unreacht na hÉireann 1937, some way incompatible with the ‘excellent’. One of the gifts of Bas amended, proscribes acts constitution. In one sense, the the writer is his ability to provide by government that are judges are the trustees of the comparative analysis with other inconsistent with the constitution; their words hold national constitutions and constitution. Hence, in a sense, sway. international conventions. Judge governmental action may As the constitution itself does Walsh’s introduction to the book depend on an interpretation of not provide for how it is to be reads as well today as it did when the constitution. The sovereign interpreted, we look to the it was first written in 1987. will, in terms of amendment of judges and scholars – the In his preface to his second the constitution, rests with the interpretation of the constitution edition, Dr Forde submits that of the constitution of Ireland. people. is based on principles that are, in he has been emboldened by His book is lucid, eloquent and The power of the state in effect, external to the experience and so has become impressive – a book of enormous Ireland is under the law. As the constitution. Hence, the somewhat critical of the authority. Extensively constitution is a written importance of judicial decisions, outcomes or reasoning in many researched, Dr Forde SC fleshes document regulating, among commentary and critical analysis. cases. Whether or not we agree out the main judgments, other things, the powers of the This is where Dr Michael Forde, in all instances with Dr Forde’s concepts and relevant debates state, somebody must interpret the author, makes a significant analysis is not a matter of that govern the fundamental law the constitution in a definitive contribution to the concern: what is of significance of Ireland. G sense. Who interprets the understanding of our is the critical eye of the author in constitution? The judges. So fundamental law. relation to the interpretation of Dr Eamonn Hall has been chief cases are brought before the Mr Justice Brian Walsh, in his the fundamental law of the land. examiner of constitutional law at judges arguing, among other foreword to the first edition, Dr Forde has written a the Law Society of Ireland since things, that the state has acted in describes Dr Forde’s book as balanced and insightful analysis 1982. Jordan’s Irish company secretarial precedents Liam Brazil, Paul Egan and Paula Phelan. Jordan Publishing (2004), 21 St Thomas St, Bristol, England. ISBN: 8-85308-844-6. Price: stg£110.

his is not a book that you will even if you only have half-a- is life after death for a company if 409. But the procedure is Tbring home for the weekend dozen corporate clients. Especially it’s done right. more complicated if the to read. A page-turner it is not. if you only have a half dozen If a company has been struck company is more than 12 But it is a book that every corporate clients. off within the previous 12 months off the register. This solicitor who does company work Written by practitioners for months, the Companies requires an application to the should have. It may be primarily practitioners, this 494-page (Amendment) (No 2) Act, 1999 High Court. The precedents aimed at accountants, auditors volume provides precedents provides the procedure required are all there. and company secretaries, but is across the range of functions of a for restoration to the register of This is now a well-established also extremely valuable (indeed, I company from incorporation to companies. The precedent publication. Of the three authors would say necessary) to solicitors dissolution and beyond. Because, forms for filing with the registrar of this edition, Paul Egan and with a company law practice – unlike for natural persons, there of companies follow from page Liam Brazil are solicitors and the

35 Law Society Gazette October 2004

Books third, Paula Phelan, is a precedents that apply solely to pages. But there is a health This third edition is more chartered secretary; all are with public limited companies. warning – ‘great care should be important than ever. This is Mason Hayes & Curran, It is important to bear in mind taken to ensure that any because its precedents, minutes Solicitors, in Dublin. that this is not a legal textbook or proposed transaction falls within and drafts of forms take into The authors do not offer their professional advisor. the exemptions’. account the important changes work as a textbook on private Nevertheless, the authors do The book’s chapters start with introduced by the Companies limited companies. They advise on when the precedents explanations on, and the forms (Amendment) (No 2) Act, 1999 specifically say that it is not. Its are applicable and the various required in, incorporation of a and the Company Law Enforcement aim is ‘to provide precedents to precise statutory timescales. company. The authors then go Act, 2001. Of course, the 2001 cover situations faced by a Dip into, say, page 170 and through the various secretarial act established the Office of the company secretary or there are precedents on the and procedural requirements and Director of Corporate professional advisor in relation to delicate issue of financial the forms and time deadlines that Enforcement, which has the management of a limited assistance by a private company apply across a wide range of extensive and intensive powers to company’. It is a precise for the acquisition of its own issues. These include alterations enforce company law, including objective. And one that is well shares. The explanatory to the memorandum or articles criminal sanctions. achieved. introduction starts with the of association, share allotments, If you do company law, you Precedents are of limited use if obvious point that there is a strict increases in share capital should have this book – and the it is not explained when and how prohibition on a company borrowing and debentures, CD-ROM that comes with it. to use them. This the authors do providing any financial help for annual returns, dividends, As American Express might say, with short notes and explanatory the purchase of their own shares. directors and their appointment, don’t draft a precedent guides. The authors also make The section 60 procedure is dismissal, re-election and so without it. G clear that they do not attempt explained clearly and well and the forth, meeting of shareholders precedents for complicated precedents are listed on page 172 and then winding-up and Pat Igoe is principal of the Dublin situations nor do they cover and are provided in the following dissolution of a company. law firm Patrick Igoe & Co. Sanctuary in Ireland: perspectives on asylum law and policy Ursula Fraser and Colin Harvey (eds). Institute of Public Administration (2004), 57-61 Lansdowne Road, Ballsbridge, Dublin 4. ISBN: 1-904541-04- 6. Price: €35.

rish asylum law and policy has practical supports available to and bring us through the acknowledged need for Imoved from an international asylum seekers. Cathryn Costello development of the tests by complementary protection for law study of little interest to the ably condenses many of the EU which decisions are judged. They those at risk who do not qualify majority to a hotly-debated, fast- laws and policies as they affect also find that special provisions on refugee grounds. Peter moving political and legal topic Ireland. The setting for the designed to speed up the O’Mahony reminds us that in Ireland. Asylum law is based analysis of law and practice is conclusion of asylum claims in certain categories of asylum in international human rights then the fundamental, fact slow them down. Similarly, seekers – victims of torture, law. It is applied by each state universal human right to seek in her contribution on children, women – may need individually but, in particular in asylum. accelerated procedures, Siobhan particular support. He is one of the European Union, states take This law and policy has been Mullally finds that such the contributors who reminds us many decisions collectively. This shaped in many ways. The procedures actually divert that integration of refugees is book of essays by distinguished courts, public perception, the resources into appeals and court crucial for the well-being of the authorities in their field is a media, administrative action, applications. whole society. measured and reflective look at government directives, co- Progress has been made in This book is useful and several aspects of Irish law and operation with the UN High constructing an asylum system. informative. The perspectives of practice. Commissioner for Refugees and Pia Prutz Phiri, the UN High contributors differ, but all The book sets out the the work of NGOs have all Commissioner for Refugees’ approach the topic from a framework in which asylum law affected the asylum law and representative, credits Irish human rights perspective. This operates. Colin Harvey explains policy we have today. One essay government support for the makes the book a good point of the international law context, is correctly devoted to the role of UNHCR generally and finds the reference and a valuable supplemented by Suzanne Egan’s judicial review, the primary Irish asylum system to be a contribution to the debate on essay on the European Court of access route of asylum seekers to functioning one, performing asylum law and policy, recently Human Rights. The Irish legal the courts. Siobhan Stack BL more efficiently than a number started, but set to continue. G framework is set out by Ursula and Bill Shipsey SC discuss the of other EU asylum systems. Fraser and is complemented by particular approach to judicial Knotty problems remain. Ursula Noeline Blackwell is principal of the Peter O’Mahony’s article on the review required in asylum cases Fraser highlights the widely Dublin law firm Blackwell & Co. Law Society Bushmills Millenium Malt ¥ 25 years old €130 (plus €17 postage and packaging) ¥ First come, first served. Only one bottle per member Contact Alan Greene, Bar Manager, Law Society of Ireland, Blackhall Place, Dublin 7. Tel: 01 6724919, e-mail: [email protected]

37 Law Society Gazette October 2004

Briefing Report of Law Society Council meeting held on 3 September 2004 Motion: Education regulations to be approached directly by together with newspaper cover- by the authority in its recent ‘That this Council approves the insurance companies and should age and correspondence from meetings with the society. Solicitors Acts, 1954-2002 (appren- warn their clients of the dangers members of the profession. By ticeship and education) (recogni- inherent in such approaches. way of press release and without Special task force to review tion of qualifications) regulations Examples were given of any consultation, the professional indemnity 2004 and that the Council regula- instances where settlement Competition Authority had pub- insurance tions be amended to delegate the cheques were offered to accident lished guidelines that purported The Council approved the implementation of these regulations victims ‘on their doorstep’ within to ‘resolve any potential conflicts appointment of a new task force, to the Education Committee without days of their accident and before of interest in relation to the legal with the following terms of refer- reference to the Council.’ the insured had even completed a representation of those attending ence: Proposed: Donald Binchy form detailing the circumstances before the authority’. ‘To fundamentally review the law Seconded: Stuart Gilhooly surrounding the accident. It was Deep concerns were expressed and policy underlying the provision of noted that vulnerable people by a number of Council members professional indemnity insurance to Donald Binchy explained that the could be pressurised to accept set- in relation to any attempts to solicitors in Ireland, having regard to purpose of the regulations was to tlement amounts that made no restrict freedom of choice of legal best practice in other jurisdictions and introduce a regulatory structure allowance for future losses or for representation. including an examination of the cur- to deal with applications to the pension entitlements. The view was expressed that rent regulations, procedures and sys- society, following the decision of It was noted that public state- no other state authority would tems, and to make recommendations the European Court of Justice in ments by the society on the mat- seek to impugn the integrity of a arising from such review’. the Morganbesser case, which ter would probably be charac- solicitor in this manner and that The Council approved the required the society to give terised as self-interest, but it was the notice issued by the membership of the task force, as appropriate recognition to voca- agreed that these types of accusa- Competition Authority was a col- follows: Joe Brosnan (chairman), tional training already undertaken tions were inevitable in any case. lective smear against the profes- James MacGuill, Michael Irvine, by trainee solicitors within the sion. There were strong views Ken Murphy, Mary Keane, John EU to the extent that that train- Appointment of society that any person who was subject Elliot and Rosemary Fallon, with ing was equivalent to the voca- representatives to scrutiny by the Competition the power to co-opt. It was con- tional training undertaken by The Council approved the nomi- Authority was entitled to have the firmed that the task force would trainee solicitors in Ireland. The nation of Patrick Dorgan, chair- legal advisor that he or she also retain independent profes- Council approved the regula- man of the society’s wished. However, it was agreed sional expertise. tions, as circulated. Conveyancing Committee, as the that the society could assure the society’s representative on a authority that any complaint Conference on the law of New procedures being adopted working group established by the about a solicitor acting in a con- privacy by insurance companies minister for justice, equality and flict of interest situation would be Stuart Gilhooly outlined the pro- The Council noted the contents law reform to review the auction- thoroughly investigated by the gramme for a special conference of a newspaper article published eering profession. society. on the law of privacy, being on 29 August 2004, which indi- The Council approved the organised by the society’s PR cated that a named insurance nomination of Eamonn Hall and Personal Injuries Assessment Committee, which would be held company had introduced a new Malachy J O’Kane to serve on a Board on 9 October 2004. G policy whereby it had ceased to sub-committee working with the The Council congratulated Ward deal with solicitors in relation to National Archives Advisory McEllin, chairman of the PIAB LAW SOCIETY personal injury claims, even Council to develop a standard Task Force, together with Roddy OF IRELAND where solicitors were on record protocol for the transfer of docu- Bourke, Michael V O’Mahony, and proceedings had issued, and ments and records from solicitors’ Stuart Gilhooly and Aidan ON would deal only with claimants offices to the National Archives. O’Reilly for the preparation of themselves. The Council approved the the guidelines and precedents on E-MAIL The Council discussed the appointment of Andrew Cody as PIAB, which were of immense Contactable at [email protected] dangers for accident victims one of the society’s representa- assistance to the profession. inherent in direct approaches by tives on the Law Clerks Joint Individual mail insurance companies, where Labour Committee. Study on competition in the addresses take the form: claimants would clearly be placed solicitors’ profession by the [email protected] in an unfair bargaining position. Competition Authority notice Competition Authority Several Council members concerning legal representa- The Council noted, with AND expressed the view that solicitors tion approval, the contents of a sup- ON THE should act to protect the interests The Council discussed a notice plementary submission to the of their clients, should inform issued by the Competition Competition Authority, which WEB www.lawsociety.ie their clients that they were likely Authority on 4 August 2004, addressed each of the issues raised

39 Law Society Gazette October 2004 Briefing Committee reports PROBATE, certificate. The facility is secure 488 223 or e-mail: oldonogh@ certificate (TCC) with an expiry ADMINISTRATION AND and may only be accessed with the revenue.ie. Queries on tax clear- date after 30 November 2004. TAXATION permission of the person who ance in individual cases should be Where a solicitor’s TCC has an holds the tax clearance certificate. addressed to the relevant local expiry date on or before 30 Revenue on-line tax The taxpayer may give permission Revenue district office. November 2004, and he/she clearance facilities to confirm his or her tax clearance Probate, Administration and wishes to have his/her name On-line application for tax status by quoting the customer Taxation Committee retained on the criminal legal aid clearance certificates number and tax clearance certifi- panel(s) for the panel year com- Arrangements have been intro- cate number. mencing 1 December 2004, appli- duced to allow taxpayers to apply CRIMINAL cation must be made to the on-line for a tax clearance certifi- Transfer of tax clearance function Revenue Commissioners for a cate. This facility is available to local Revenue districts Criminal justice (legal aid) (tax new TCC. through the Revenue’s website Local Revenue districts now deal clearance certificate) regula- Practitioners may apply for a www.revenue.ie/services/taxclear- with the processing of tax clear- tions 1999: retention of name TCC through the Revenue’s on- ance.htm. The Revenue will con- ance applications. The contact on criminal legal aid panel for line application facility at www. tinue to accept written applica- names, addresses and telephone the panel year commencing revenue.ie/services/taxclearance.htm. tions. numbers of the various Revenue 1 December 2004 Those wishing to apply in writing districts are available on the Rev- A solicitor who wishes to have should contact their local On-line verification facility enue website at www.revenue.ie. his/her name retained on the legal Revenue district office (details of Using this new procedure, it is Queries regarding on-line tax aid panel(s) beyond 30 November which are at www.revenue.ie) for possible to confirm electronically clearance facilities may be direct- 2004 must submit to the relevant an application form (TC1). that a person holds a tax clearance ed to Olive Donoghue, tel: 061 county registrar(s) a tax clearance Criminal Law Committee

PRACTICE NOTE TAXATION OF SETTLEMENTS AND AWARDS IN EMPLOYMENT CASES rom 4 February 2004, an exemp- connected (as defined by section 2) The employer will have to decide Where there is a settlement an Ftion from income tax compensa- 10 of the Taxes Consolidation if the claim is valid employer must: tion paid to an employee or former Act, 1997) of a claim which, had 3) The employer will have to be sat- a) Keep copies of the agreement employee under employment protec- it been made to a relevant isfied that the claim would be and the statement of claim for a tion legislation is available, in limit- authority, would have been a one likely to succeed period of six years from the day ed circumstances. This is provided bona fide claim and if it had not 4) The employer must determine on which the payment is made, for in section 7 of the Finance Act, been settled would be ‘likely to what amount is reasonable. and 2004, which inserts a new section have been the subject of a rec- What is meant by ‘reasonable’ is b) The employer must make copies 192(A) into the Taxes Consolidation ommendation, decision or deter- the sum that would be awarded available for inspection by the Act, 1997. mination’ by a ‘relevant authori- by a rights commissioner, the Revenue Commissioners when The exemption only applies ty’. The amount of any settle- director of equality investiga- requested. where: ment cannot exceed the maxi- tions, the Employment Appeals a) The settlement or award relates mum award possible under a rel- Tribunal or the Labour Court. If The legislation specifically provides to a ‘relevant act’. This means evant act dealing with employ- the case is in the Circuit Court or that a payment, however employment legislation which ment law by a relevant authority High Court, even though they described, in respect of remunera- contains provisions for the pro- (other than the Circuit Court or have higher possible levels of tion including arrears of remunera- tection of employees’ rights and the High Court) compensation which can be tion, will be and continues to be entitlements or where there is an e) The compensation must not awarded, the maximum which will taxable. obligation for employers towards relate to loss of salaries or be exempt for tax purposes is A number of issues have been their employees wages or to the loss of office or that which would be granted by a identified arising out of the new leg- b) The compensation is paid in change in function of an employ- rights commissioner, the director islative provisions which the socie- accordance with a recommenda- ee. For example, the new relief of equality investigations, the ty believes will require discussion tion, decision or determination of will not apply in unfair dismissal Employment Appeals Tribunal or with/clarification from the a rights commissioner, the Equal- claims. Existing reliefs are not the Labour Court Revenue. The society’s Probate, ity Tribunal, the Employment affected. 5) The employee must put their Administration and Taxation Appeals Tribunal, the Labour claim in writing Committee representatives on the Court, the Circuit Court, or the Settlements between an employer 6) An employer and the employee Revenue Tax Administrators’ High Court (a ‘relevant authority’) and an employee will not get the must enter into a written settle- Liaison Committee will take these c) The payment is paid in accor- exemption unless additional paper- ment matters forward. dance with a settlement arrived work is put in place. This will apply 7) The parties must not be ‘con- A detailed article on the applica- at under a mediation process even where both parties are repre- nected’ within the provisions of tion of the new provisions and their provided by legislation which con- sented. section 10 of the Taxes effects for practitioners will appear tains provisions for protecting the There are certain steps which the Consolidation Act, 1997. In prac- in the next issue of the Gazette. rights of employees employer must put in place, namely: tice, this restriction is unlikely to Probate, Administration and d) There is a written settlement 1) The employer will have to investi- apply except in cases of family- Taxation Committee/Employment between persons who are not gate the case fully owned companies. and Equality Law Committee

40 Law Society Gazette October 2004 Briefing LEGISLATION UPDATE: 17 AUGUST – 24 SEPTEMBER 2004

Details of all bills, acts and 37 and 84 of the District Court tions under section 48 of the Rules of the Superior Courts statutory instruments since Rules 1997 (SI 93/1997) to pro- Transport (Railway Infrastructure) (Personal Injuries Assessment 1997 are on the library cata- vide for applications under vari- Act, 2001 Board Act, 2003) 2004 logue at www.lawsociety.ie ous sections of the Children Act, Commencement date: 9/10/ Number: SI 517/2004 (members’ and students’ areas) 2001 2004 Contents note: Amend orders 4, with updated information on the Commencement date: 14/10/ 22, 41 and 52 of the Rules of the current stage a bill has reached 2004 Employment regulation order Superior Courts by the insertion of and the commencement date(s) (Law Clerks Joint Labour new rules to make provision for of each act. District Court (estreatment of Committee) 2004 applications under the Personal recognisances) Rules 2004 Number: SI 522/2004 Injuries Assessment Board Act, SELECTED STATUTORY Number: SI 535/2004 Contents note: Made by the 2003 INSTRUMENTS Contents note: Amend schedule Labour Court on the recommen- Commencement date: 10/8/ Circuit Court Rules (Personal B of the District Court Rules 1997 dation of the Law Clerks Joint 2004 Injuries Assessment Board Act, (SI 93/1997) by the addition of Labour Committee; fixes statutory 2003) 2004 form 27.6B (warrant of distress) minimum rates of pay and regu- State Airports Act, 2004 Number: SI 542/2004 and the substitution of new forms lates statutory conditions of (Dublin appointed day) order Contents note: Insert new rules 27.7 (notice of application for war- employment for certain workers 2004 in orders 5, 15, 36 and 64 of the rant of execution) and 27.8 (war- employed in solicitors’ offices Number: SI 531/2004 Circuit Court Rules 2001 (SI rant of execution), in order to facil- Commencement date: 10/9/ Contents note: Appoints 1/10/ 510/2001) to prescribe Circuit itate the estreatment of recogni- 2004 2004 as the Dublin appointed day Court procedures in respect of sances for the purposes of section 9(6) of applications under the Personal Revoke: SI 411/2003 European Communities (life the act. As provided for in section Injuries Assessment Board Act, Commencement date: 9/10/ assurance) framework (amend- 9(6), this is the date with effect 2003 2004 ment) regulations 2004 from which the principal objects of Commencement date: 16/9/ Number: SI 543/2004 Aer Rianta, as set out in section 2004 District Court (Personal Injuries Contents note: Amend article 45 23 of the Air Navigation and Assessment Board Act, 2003) of the European Communities (life Transport (Amendment) Act, Civil Liability and Courts Act, Rules 2004 assurance) framework regulations 1998, shall include an additional 2004 (commencement) order Number: SI 526/2004 1994 (SI 360/1994) in order to object to do all things as are nec- 2004 Contents note: Amend the extend from 15 to 30 days the essary to give effect to the Number: SI 544/2004 District Court Rules 1997 (SI period (which commences on the restructuring of Aer Rianta and its Contents note: Appoints 20/9/ 93/1997) by the insertion of new date of issue of the policy) within memorandum of association shall 2004 as the commencement date rules in orders 7, 39 and 53 and which a policyholder may cancel a be amended accordingly for the following sections of the the insertion of a new order 46C, life assurance policy act: sections 1, 5, 6, 8, 19, 21, in relation to applications under Leg-implemented: Dir 2002/65 Taxi Regulation Act, 2003 22, 25, 26, 29, 39, 41, 42, 43, the Personal Injuries Assessment Commencement date: 9/10/ (part 2) (establishment day) 44, 54 and 55; appoints 31/3/ Board Act, 2003 2004 order 2004 2005 as the commencement date Commencement date: 8/9/2004 Number: SI 523/2004 for sections 7, 9, 10, 11, 12, 13, Residential Tenancies Act, 2004 Contents note: Appoints 1/9/ 14, 15, 16, 17, 18, 20, 23, 24, District Court (railway (establishment day) order 2004 2004 as the establishment day 27, 28 and 40 of the act infrastructure) Rules 2004 Number: SI 525/2004 for the purposes of part 2 of the Number: SI 534/2004 Contents note: Appoints 1/9/ act (establishment of the com- District Court (children) Rules Contents note: Insert a new order 2004 as the establishment day mission for taxi regulation) G 2004 90A ‘railway infrastructure’ in the for the private residential tenan- Number: SI 539/2004 District Court Rules 1997 (SI cies board under part 8 of the Prepared by the Law Contents note: Amend orders 33, 93/1997) to provide for applica- Residential Tenancies Act, 2004 Society Library wwwwww.lawsociety.ie.lawsociety.ie Have you accessed the Law Society website yet?

41 Law Society Gazette October 2004 Briefing SOLICITORS DISCIPLI

These reports of the outcome of Solicitors Disciplinary Tribunal inquiries are published by the Law Society of Ireland as provided for in section 23 (as amended by section 17 of the Solicitors (Amendment) Act, 2002) of the Solicitors (Amendment) Act, 1994

In the matter of David R On 29 April 2004, the Solicitors Goldsmith Terrace, Quinsboro practice at Lindos, Mount Burke, solicitor, practising Disciplinary Tribunal found that Road, Bray, Co Wicklow, and in Venus Road, Rathfarnham, under the style and title of the respondent solicitor was the matter of the Solicitors Acts, Dublin 16, and in the matter of David R Burke & Company at guilty of misconduct in his prac- 1954 to 1994 [4354/DT349] an application by the Law 24 Main Street, Dungarvan, tice as a solicitor in that he had: Law Society of Ireland Society of Ireland to the Co Waterford, and in the a) Allowed a surplus to arise in (applicant) Solicitors Disciplinary Trib- matter of an application by the the client account of €251,476 Gerard Murphy unal and in the matter of the Law Society of Ireland to due to the existence of deposit (respondent solicitor) Solicitors Acts, 1954 to 2002 the Solicitors Disciplinary interest of €126,306 and the [2586/DT408] Tribunal and in the matter of solicitor’s own funds of On 26 May 2004, the Solicitors Law Society of Ireland the Solicitors Acts, 1954 to 2002 €146,623 in the client account Disciplinary Tribunal found that (applicant) [6151/DT410] reduced by debit balances the respondent solicitor was James P O’Neill Law Society of Ireland totalling €21,453, as high- guilty of misconduct in his prac- (respondent solicitor) (applicant) lighted in the report of the tice as a solicitor in that he had: David R Burke Law Society’s accountant a) Failed to attend at the On 6 May 2004, the Solicitors (respondent solicitor) dated 7 November 2002 Compensation Fund Disciplinary Tribunal found that b) Allowed client balances con- Committee meeting of 5 July the respondent solicitor was On 17 June 2004, the Solicitors taining a large element of 2001 despite being requested guilty of misconduct in his prac- Disciplinary Tribunal found that solicitor/client fees undrawn to do so and failed to explain tice as a solicitor in that he had: the respondent solicitor was and unpaid third party outlay his non-attendance at the a) Failed to respond to the soci- guilty of misconduct in his prac- to arise, as highlighted in the meeting ety’s correspondence and in tice as a solicitor in that he failed report of the Law Society’s b) Failed to apply for a practising particular letters of 27 March to file his accountant’s report for accountant dated 7 November certificate for the year 2002 in 2002, 2 May 2002, 17 May the year ended 30 June 2002, in 2002 a timely manner 2002, 17 June 2002, 31 July breach of regulation 21(1) of the c) Had undischarged third party c) Failed to file evidence of hav- 2002, 19 August 2002, 27 Solicitors’ accounts regulations 2001 outlay totalling €300,315 as ing professional indemnity November 2002, 5 December (SI no 421 of 2001), in a timely set out in the report of the Law insurance cover in place for the 2002, 6 January 2003, 30 manner or at all. Society’s accountant dated 7 year 2002 in a timely manner January 2003, 20 February The tribunal ordered that the November 2002, and subse- or at all 2003 and 27 March 2003 in a respondent solicitor: quently paid out a total of d) Failed to file an accountant’s timely manner or at all a) Do stand advised €408,910 to third parties. report for the year ended 30 b) Failed to comply with the b) Pay a sum of €500 to the com- April 2001 in a timely manner notice served on him pursuant pensation fund The tribunal ordered that the or at all. to section 10 of the Solicitors c) Pay the whole of the costs of respondent solicitor: (Amendment) Act, 1994. the Law Society of Ireland as 1) Do stand admonished The tribunal ordered that the taxed by a taxing master of the 2) Pay a sum of €500 in respect respondent solicitor: The tribunal ordered that the High Court in default of of the findings of misconduct a) Do stand admonished respondent solicitor: agreement. at (a) above; pay a sum of b) Pay the sum of €500, to be a) Is hereby censured €500, in respect of the finding paid to the compensation fund b) Pay a sum of €2,500 in respect In the matter of Patrick of misconduct at (b) above; pay in relation to the findings of of each of the findings of mis- Mann, solicitor, practising as a sum of €2,000 in respect of misconduct at (a), (b) and (d) conduct, that is, €5,000 Patrick Mann & Company at the finding of misconduct at above c) Pay the whole of the costs of 25, 26 and 27 Ashe Street, (c) above c) Pay a sum of €1,000 to the the Law Society of Ireland as Tralee, Co Kerry, and in the 3) Pay the whole of the costs of compensation fund in relation taxed by a taxing master of the matter of an application by the Law Society of Ireland and to the finding of misconduct at High Court in default of the Law Society of Ireland to of any person appearing before (c) above, and agreement. the Solicitors Disciplinary them as taxed by a taxing mas- d) Pay the whole of the costs of Tribunal and in the matter of ter of the High Court in the Law Society of Ireland as In the matter of Joseph the Solicitors Acts, 1954 to default of agreement. taxed by a taxing master of the Traynor, solicitor, and Seamus 2002 [3806/DT432] High Court in default of Mallon, solicitor, practising as Law Society of Ireland In the matter of Gerard agreement. Traynor Mallon Solicitors and (applicant) Murphy, solicitor, carrying on in the matter of an application Patrick Mann practice under the style and In the matter of James P by the Law Society of Ireland (respondent solicitor) title of Gerard Murphy at 1 O’Neill, solicitor, carrying on to the Solicitors Disciplinary

42 Law Society Gazette October 2004 Briefing NARY TRIBUNAL

Tribunal and in the matter of respect of client funds as of 30 d) Allowed the client bank the second-named respondent the Solicitors Acts, 1954 to 2002 November 2002 in the sum of account to be overdrawn on a solicitor, Seamus Mallon, do [5554-3936/DT417] €126,167, increasing as of 31 number of occasions, as set out stand censured Law Society of Ireland December 2002 to €250,693 in paragraph 2.14 of the inves- b) The first-named respondent (applicant) b) Allowed this deficit to so arise tigating accountant’s report solicitor, Joseph Traynor, pay Joseph Traynor in the practice of withdrawing dated 7 February 2003 to the compensation fund a (first-named respondent costs from the client account e) Allowed debit balances on the sum of €3,000 in respect of solicitor) in round sum amounts and client ledger to occur on the each of the charges, that is, a Seamus Mallon failing to record these with- client ledger account, as set total of €15,000 (second-named respondent drawals in the ledger accounts out in the investigating c) The second-named respon- solicitor) of the clients concerned in accountant’s report dated 7 dent solicitor, Seamus Mallon, breach of regulation 12(1) of February 2003 and in partic- pay to the compensation fund On 10 June 2004, the Solicitors the Solicitors’ accounts regula- ular paragraph 2.15 to 2.19 a sum of €1,000 in respect of Disciplinary Tribunal found the tions 2001 thereof. The existence of each of the charges, that is, first-named respondent solicitor c) Failed to keep proper books of debit balances on the client €5,000 and the second-named respon- account in breach of regula- ledger is in breach of regula- d) The first-named respondent dent solicitor guilty of miscon- tion 12(1) of the Solicitors’ tion 7(1) and 7(2) of the solicitor and the second- duct in respect of the following accounts regulations 2001, there- Solicitors’ accounts regulations named respondent solicitor complaints set out in paragraph by masking the deficit which 2001. pay the whole of the costs of 14 of the affidavit of Patrick was not readily apparent from the Law Society of Ireland as Joseph Connolly, sworn 7 August the books of account that were The tribunal ordered that: taxed by a taxing master of the 2003, in that they: presented to the investigating a) The first-named respondent High Court in default of a) Allowed a deficit to arise in accountant solicitor, Joseph Traynor, and agreement. G

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43 Law Society Gazette October 2004 Briefing Personal injury judgment

Road traffic accident – negligence – liability – apportionment of damages – road signs at junction – duty of road authority to warn motorists of dangerous junction – whether liability on road authority in context of road signs and whether the road authority is liable to maintain adequate warning signs on roads CASE Colm Carey v Warren Mould and County Council of the County of Donegal, High Court, judgment of Mr Justice Michael Peart on 20 April 2004. THE FACTS olm Carey, a builder in his erected a ‘stop’ sign on the minor stated, Mr Carey was travelling These signs and markings had Cearly 60s, was driving to his road close to the point at which along the main road. Warren been placed at this point by home near Buncrana, County the road meets the main road. Mould was travelling towards Mr Donegal County Council in Donegal. This was about 1pm on This was to alert drivers on the Carey on what he thought was a order to alert drivers that they the date in question. Mr Carey minor road to stop in order to let straight road. are required to stop in order to knows the road intimately and traffic on the main road continue As the ‘stop’ sign was facing allow others pass along the main had driven that way regularly along the main road, as Mr the wrong way, Mr Mould con- road in front of them. over a great number of years. Carey was doing on the date of tinued straight ahead through Warren Mould and Donegal Mr Carey was on a main road the accident. However, it appears the junction. However, there was County Council agreed on an that veers to the right. There is in some way that the ‘stop’ sign evidence that 100 metres back on amount of damages in respect another road, a minor road, had been interfered with, as a the road that Warren Mould was Mr Carey’s injuries. So the only which meets the main road. result of which it was not facing travelling, there was in place a issue for the judge was whether Warren Mould was travelling in the intended direction on the yellow sign on the left with Warren Mould or Donegal along the minor road towards date in question but had instead words in black informing a driv- County Council was liable to Mr the junction, travelling towards been turned 180 degrees in the er that there was a ‘stop’ sign 100 Carey or whether both of them Colm Carey. wrong direction. metres ahead. There was also a were liable and to what degree Donegal County Council had On the date of the accident, as white stop line at the junction. there was liability between them. JUDGMENT OF THE HIGH COURT eart J gave judgment on 20 the wrong way he would, and accident. She confirmed that the Donegal County Council PApril 2004. He summarised should have, realised that he had ‘stop’ sign was turned around submitted that, by placing the the facts and stated that Mr an obligation to yield to Mr the wrong way, but she also gave ‘stop’ sign at the junction, it had Mould had accepted that Mr Carey and stop at the junction. evidence that the white ‘stop’ fulfilled its statutory obligation Carey was entitled to proceed There was evidence that Mr line on Mr Mould’s side of the to alert the public to the necessi- along the main road. Mould was travelling at 25 miles junction was partially faded to ty to stop. The council submit- Mr Mould argued that the an hour and that there was no the extent that, immediately ted that there was no statutory council was liable because the evidence that he slowed in any after the accident, she contacted obligation to place white lines sign was not facing in the correct way as he came to the junction, somebody by telephone at the on the road and that, in addition, direction and there was no other so the council submitted he was council to tell them about it. it placed a yellow warning sign at sufficient warning to him that he liable for the accident. Garda Wallace also stated that a position about 100 metres back was obliged to stop at the junc- On the other hand, Mr Mould she personally typed a letter to from the junction. It maintained tion to allow Mr Carey to pass stated that he lived in Northern the council informing them of that even if some person by along the main road. Mr Mould Ireland and was on holidays in the problem with this junction. whatever means had turned that did accept that the yellow sign the area at the time and was not The council denied ever receiv- ‘stop’ sign around the other way, placed 100 metres before the familiar with the junction. He ing the letter. Garda Wallace then the yellow sign ought to junction was in place on the stated he did nothing wrong had not produced a copy of the have been sufficient to alert Mr date, but he accepted very fairly, since the sign was facing the letter to the court, but she was Mould to the necessity of stop- according to the judge, that he wrong way and he argued that sure she had sent the letter. Peart ping at the junction. did not see it. the yellow sign was not sufficient J observed that whether the let- The council also submitted Donegal County Council to alert him to the necessity of ter was sent or not, he was satis- that Mr Mould in any event submitted that if Mr Mould had stopping at the junction. fied that the garda was of the should have slowed as he been keeping a proper lookout, Peart J also referred to evi- opinion that the road marking approached the junction even if he would have seen that sign and dence from Garda Wallace, who was somewhat faded because of he did not appreciate that he even if the ‘stop’ sign was facing was called to the scene of the age. needed to halt or stop at it.

44 Law Society Gazette October 2004 Briefing

Donal Kelleher, an engineer in The council had a statutory obli- ing was partly faded at the date of Nevertheless, the judge believed the employ of the council, gave gation, according to Peart J, to the accident according to the evi- that Mr Mould ought to have evidence that there was no histo- maintain a safe road system. dence of Garda Wallace, which seen it, and if he had, he might ry of accidents at the junction and While the council could not be the judge accepted. have possibly realised that he was that the priority of the roads at expected to be automatically The consulting engineer on at a junction at which he was this junction had remained aware of every occasion on which behalf of Mr Mould had suggest- required to stop and give way to unchanged for many years. It had a sign is turned around the wrong ed a number of ways in which a Mr Carey. been suggested to the engineer way, perhaps by mischief, the junction such as this one could be The judge was satisfied that, that a better method of fixing the road authority retained an overall improved and made safer. He was while Mr Mould was at fault, he ‘stop’ sign would be to place bolts responsibility to ensure that the of the view that, without the was at fault to a much lesser through the sign and the pole roads are safe and that all traffic ‘stop’ sign, this was a hazardous extent than Donegal County (supporting the sign) to ensure users are aware of potential dan- junction and that some sort of Council, whose duty it was to that it could not be turned gers, including people such as Mr island design could be placed at secure the safety of the roads. around in another direction. The Mould, a tourist, who would not the junction. He also suggested The judge was particularly mind- engineer was of the view that be familiar with a potentially dan- that at the ‘stop’ sign there could ful of the fact that Mr Mould was placing a bolt through the sign gerous junction such as that also be white lettering on the a tourist and therefore complete- and the pole, as suggested, would involved in this accident. The road itself saying ‘stop’. He fur- ly unfamiliar with the junction. in fact result over time in weath- judge was satisfied that this junc- ther suggested that the council The council was in a position to er damage through corrosion and tion was (on the date in question), should have placed a larger type ensure the safety of this junction this would affect adversely the even ignoring the fact that the of yellow warning sign, indicating to a much greater degree than clarity and efficiency of the sign ‘stop’ sign was facing the wrong the need to stop at the junction was the case, such as the manner in the future. way, an inherently hazardous which would not be subject to the suggested by the consulting engi- Peart J stated that what was junction and one requiring that possible hazard of being turned neer for Mr Mould. Having said not in doubt was that Mr Carey very clear warnings be apparent the wrong way around by acci- that, the judge expressed sympa- was completely blameless for the to any road user, particularly one dent or otherwise. thy for the council, which cannot accident. As far as Mr Mould was such as Mr Mould, who was a vis- Peart J was satisfied that the reasonably and fairly be expected concerned, Peart J was satisfied itor to the area. council had fulfilled the letter of to be aware of the fact that some that he was not travelling at an Peart J noted that it was an its statutory obligation by erect- person has turned the sign excessive speed as he proceeded unfortunate fact of everyday life ing the ‘stop’ sign at the junction. around so that it ceases to serve towards the junction. However, that signs such as a ‘stop’ sign can However, that was not the full the purpose for which it was he was satisfied that the yellow become turned in the wrong extent of the road authority’s intended. sign placed 100 metres back from direction for whatever reason. obligations to the public. First, In all the circumstances, the the junction was placed there for No doubt this was why the coun- this was an inherently dangerous judge found Mr Mould liable to a purpose, which was to give an cil felt it was desirable to give junction requiring special steps to the extent of 15%, as he ought to early warning to a driver that he road users an early warning of the be taken in order to ensure as far have at least seen the yellow sign. was approaching a junction at junction by placing the yellow as possible that an accident did It was there and he ought to have which he was required to stop. sign 100 metres back from the not happen. In recognition of at least noted it and have been on Mr Mould very fairly accepted junction. However, the judge this, the road authority (council) the lookout. Donegal County that he did not remember seeing stated that it was clear to him that went further than a statutory Council was liable to the extent that sign. If he had seen it, the the council could not have obligation by providing a white of 85% for Mr Carey’s damages judge was satisfied that he would regarded that yellow sign alone as stop line at the junction and a yel- because the junction created a at least have been aware of the an adequate warning to a road low warning 100 metres back greater hazard than ought to have junction and the need to stop. user such as Mr Mould to stop at from the junction. However, the been the case on the day in ques- The judge stated that the fact the junction. Hence, the fact that white line was partially faded and tion. G that Mr Mould failed to observe it placed the ‘stop’ sign and also the yellow sign (as was evident the yellow sign did not absolve the white ‘stop’ line at the junc- from the photographs) was not a This judgment was summarised by the county council from blame. tion itself. The white line mark- large and unmissable type of sign. solicitor Dr Eamonn Hall.

FOR BOOKINGS CONTACT MARY BISSETT OR PADDY CAULFIELD TEL: 668 1806 Meet at the Four Courts LAW SOCIETY ROOMS Courtat the Four Courts

45 Law Society Gazette October 2004

Briefing Update

News from Ireland’s on-line legal awareness service Compiled by Flore Bouhey for FirstLaw

COMPANY CONSTITUTIONAL appellant’s sentence years’ imprisonment, holding The applicant was charged on 11 that: Solicitors, trusts Habeas corpus March 2000 with murder, assault, 1) The decision by this court in Clients – duties of solicitor to client Order for production – infant son producing a weapon capable of the case of DPP v Stephen Kelly – right to documents – company law removed from custody of mother by inflicting serious injury in a man- applied to the present case. – partnerships – trustees – entitle- father – mother seeking order for ner likely to intimidate, assault The approach to sentencing in ment of client to see files in posses- production of son – whether order for with intent to rob, and producing this case displayed the same sion of solicitor – motion to adduce production should be granted – an article capable of inflicting error in principle as that iden- additional evidence – form of proce- Bunreacht na hÉireann 1937, serious injury likely to intimi- tified in the decision of the dure – Rules of the Superior article 40.4 date. The applicant was subse- appeal of Stephen Kelly, Courts 1986, order 3, rule 19, The respondent removed his quently acquitted of murder but accordingly the principles set order 38 infant son from the custody of was convicted of manslaughter out in the judgment of DPP v The defendant solicitors acted as the applicant, who was the child’s and sentenced to ten years’ Kelly applied to this case solicitors in various transactions mother, following an argument imprisonment. The charges 2) The correct approach was to carried out by the plaintiff both between them. The parties were arose out of a number of inci- consider the background of as trustee and for other partner- not married to each other. The dents that occurred on 11 March the applicant, the nature of ships. The plaintiff purported to applicant sought an order for the 2000, when the applicant was the crime committed and the appoint Ivor Fitzpatrick & Co to production of the child under returning from a party with some mitigating factors. The be its solicitors. The plaintiff article 40.4 of Bunreacht na hÉire- friends. The applicant was just offence should be regarded as initiated proceedings by way of ann. The respondent resisted the under 16 years of age when he being in the most serious cat- special summons, claiming an application on the basis that the committed the crimes and he had egory of manslaughter order that the defendant solici- applicant, admittedly, drank alco- consumed a substantial amount because a weapon was used tors deliver up all documents hol heavily and would be unfit to of alcohol on the night in ques- and the attack was brutal. pertaining to the plaintiff. properly care for the child. tion. The applicant was arrested However, the weapon had not Smyth J made the order. The Peart J directed that the child on 11 March 2000 and he pro- been carried by the applicant, defendants appealed. By notice be returned to the applicant on vided the gardaí with an account he did not play the leading of motion to the Supreme her undertaking that she not of the night that was apparently role in the attack, and the Court, the defendants also abuse alcohol, holding that the substantially truthful. When sen- appellant did not have an sought to adduce additional evi- applicant was the sole custodian tencing the applicant, the trial intention to kill or cause seri- dence relating to whether a part- of the child since the parties were judge indicated that he consid- ous injury. The mitigating ner in the defendant solicitors not married to each other. Even ered that where an innocent life factors included the appel- was a director of the plaintiff. though the court had an inherent was taken the appropriate sen- lant’s youth, the fact that he The Supreme Court jurisdiction to take any step tence was 20 years. However, the had no previous convictions (Denham, Murray and appropriate to ensure that the judge took into account the fact and the fact that he had McCracken JJ) dismissed the child’s welfare was not compro- that the applicant was previously offered a plea to manslaughter appeal and refused the motion to mised, the concerns expressed of good character, was of tender 3) The mitigating factors were adduce additional evidence, about the applicant’s ability to age, had certain learning difficul- very weighty. But for those holding that the plaintiff was properly care for the child did ties, co-operated with the gardaí factors, the appropriate sen- entitled to inspect the originals not exist to any degree at the and was not the ring leader tence would have been 14 of all documents relating to time of the application, which and/or prime mover on the par- years’ imprisonment. How- transactions carried out on its required that custody be taken ticular night. The trial judge also ever, in the circumstances, the behalf which were in the hands from the applicant. considered a report that stated appropriate sentence was one of the defendants and was enti- G(E) v D(D), High Court, Mr that the applicant was of border- of ten years. tled to copies of all such docu- Justice Peart, 9/7/2004 line ability and a psychological DPP v Stephen Aherne, Court ments. A bare trustee was enti- [FL9461] report that outlined the fact that of Criminal Appeal, 5/7/2004 tled to copies of all documents the applicant had frequently [FL9444] created by its own solicitor relat- described the amount of alcohol ing to transactions carried out in CRIMINAL he had consumed. Judicial review, larceny its name by that solicitor. The Supreme Court Prohibition – whether the appli- Bayworld Investments v Appeal, manslaughter (Hardiman, Laffoy, Quirke JJ) cant’s right to a fair trial had been McMahon O’Brien and Appeal against sentence – error in set aside the conviction and prejudiced by the failure of the gar- Downes, Solicitors, Supreme principle – whether the trial judge imposed the appropriate sen- daí to seek out and preserve video Court, 13/7/2004 [FL9440] erred in principle in imposing the tence, which was one of ten evidence

47 Law Society Gazette October 2004 Briefing

The applicant was charged with Murder, provocation, declined to recharge the jury on that there must at least be an an offence contrary to section 2 self-defence any of the points raised either explanation when an applicant of the Larceny Act 1916, as Appeal against conviction – murder for the prosecution or the seeking leave to appeal wishes amended by section 9 of the – provocation – self-defence – defence. The applicant applied to raise a point that was not Larceny Act, 1990. Brendan whether the trial judge erred in his for leave to appeal against his raised by him or on his behalf Duffy was also charged with the charge to the jury conviction for murder. in the court of trial same offence. On 11 April 2002, On 12 December 2002, the The Court of Criminal 4) In circumstances such as Judge Malone directed that a applicant was convicted of mur- Appeal (Hardiman, O’Donovan, occurred in this case, where security videotape for the night der. Subsequent to the trial, Gilligan JJ) allowed the appeal, the accused is professionally in question be made available to grounds of appeal were submit- quashed the conviction and represented, consideration Mr Duffy. However, it emerged ted and the applicant gave notice ordered a retrial, holding that: must be given to the duty of that the relevant tape was no of application for leave to appeal. 1) Having regard to the evidence defence counsel in those cir- longer available and, according- Subsequently, the applicant’s summarised before the court, cumstances. Neither the cases ly, an unopposed order for pro- solicitor lodged two further the defence at the trial cited nor the code of conduct hibition was made in favour of grounds of appeal. The first had discharged the evidential of the Bar of Ireland dealt Mr Duffy by the High Court on additional ground was that the burden that lay upon them with the situation where the 10 March 2003. The applicant court erred in law by failing to to raise self-defence. The trial judge misinterpreted the was granted leave to seek judicial leave the question of provoca- evidential burden of raising law in the defendant’s favour. review by way of an order of tion before the jury. The second the defence of self-defence There was no authority for prohibition preventing her trial additional ground stated that the was not a heavy one. It the proposition that defence on the said charge, on the trial judge erred in law in failing involved the accused being counsel was obliged to make a grounds that her right to a fair to direct the jury adequately on able to point to evidence of requisition that would disim- trial had been violated by the the burden and standard of proof some sort suggesting the pres- prove the client’s position at failure of the gardaí to obtain on the prosecution in respect of ence of the elements of self- trial and/or preserve the aforemen- negativing the issue of self- defence 5) The conduct of defending tioned video tape. The applicant defence raised by the applicant. 2) Prosecuting counsel was cor- counsel at the trial was not further submitted that she was However, it was accepted by rect in the fundamental requi- open to criticism. The trial entitled to an order of prohibi- counsel on behalf of the appli- sition that he made. The jury judge had received all appro- tion on the basis of equality cant that the ground relating to should have been told to con- priate assistance from the before the law as contained in provocation was not arguable, sider, not only whether there prosecution and was under no article 40.1 of the constitution, having regard to the decision of was evidence that a situation misapprehension. Defence as her co-accused had been DPP v Mark Cronin (CCA, unre- of self-defence had arisen, but counsel very properly granted prohibition on the same ported, 16 May 2003). whether the defendant had or refrained from criticising or grounds. The applicant did not give had not employed more force casting doubt on what the Kearns J refused the applica- evidence at his trial. However, in self-defence than was rea- prosecution had said. Defence tion, holding that: the prosecution proved as part of sonably necessary, and counsel was not under any 1) The applicant failed to show its case certain statements made whether he had used more duty, either to the court or to or demonstrate how the by him to the gardaí. From those force than was reasonably his client, to do more in the absence of the video material statements, it appeared that the necessary, but no more than circumstances of this case. might conceivably prejudice deceased man had produced the he honestly believed to be Richard O’Carroll v DPP, her trial or create a real risk of knife and that the two men wres- necessary. In the latter event, Court of Criminal Appeal, an unfair trial tled around with the knife and they should have been told 6/7/2004 [FL9450] 2) The omission of the gardaí to the deceased got stabbed. There that the appropriate verdict obtain and preserve the video was evidence from the state was manslaughter. The jury Sentencing was not of such significance as pathologist at the relevant time were left with an erroneous Rape – leniency of sentence – to warrant the making of a which supported the applicant’s view of the role of self- whether exceptional circumstances prohibition order given the version of events. The trial judge defence, one overly justifying departure from normal existence of the identification in his charge to the jury stated favourable to the accused. AG custodial sentence – Criminal evidence and the fact that the that, if they were to find self- v Christopher Dwyer ([1972] IR Justice Act, 1993, section 2 applicant had admitted com- defence, then they had to find 416) followed The respondent pleaded guilty mitting the offence the accused not guilty. On the 3) The court was required to to a single charge of rape and 3) The applicant had delayed in following day, counsel for the consider whether the appli- was sentenced to three years’ seeking the relief. In the con- DPP raised certain requisitions cant could be said to have detention. At the time of sen- text of video evidence, delay on the charge. He drew the adopted the charge actually tencing, the respondent had had a special meaning derived attention of the trial judge to the given by failing to make rele- already spent almost two months from the short life expectancy case of AG v Christopher Dwyer vant requisitions on it, on the in detention and the judge sus- of video surveillance material. ([1972] IR 416). Counsel for the basis that it misstated the law pended the entire balance of the O’Callaghan v the Judges of the defence did not comment specif- in a manner overly favourable sentence. The DPP applied pur- Dublin Metropolitan District ically on that submission but to him, and thereby max- suant to the provisions of section Court and the DPP, High simply stated that he was in the imised his chances of total 2 of the Criminal Justice Act, Court, Mr Justice Kearns, court’s hands in that regard. acquittal. There was ample 1993 for a review of the sen- 20/5/2004 [FL9479] However, the trial judge authority for the proposition tence.

48 Law Society Gazette October 2004 Briefing

The Court of Criminal The applicant was convicted of confusion – Social Welfare Hardiman and Geoghegan JJ) Appeal refused the application, manslaughter. The trial judge in (Consolidation) Act, 1993, sec- dismissed the appeal and holding that while a sentencing his sentencing stated that, where tion 271 affirmed the High Court order judge in a rape case must a knife was used and a life was There was a difference between with variations, holding that the approach his deliberations on taken, the minimum sentence one Michael Walsh and the order should expressly state that the basis that normally a custo- upon trial and conviction was 20 plaintiff, his employer, as to the decision of the appeals office dial sentence will be imposed, he years. whether his contract was a con- be set aside and the decision of was not precluded from examin- The Court of Criminal tract of service or a contract for the deciding officer restored, ing the particular circumstances Appeal allowed the appeal and services. A deciding officer in that the case that Mr Walsh was of the case to consider whether replaced the sentence with a sen- the Department of Social and an independent contractor was such circumstances were so tence of eight years, holding that Family Affairs determined that so overwhelming that it was not exceptional as to justify depar- the trial judge erred seriously in Mr Walsh was employed under open to the appeals officer to ture from the norm. The trial principle. Positing a minimum a contract for services. arrive at the conclusion that she judge was correct in identifying sentence was totally wrong in Mr Walsh appealed that deci- made. the present case as one in which principle, no matter what the sion to an appeals officer and Castleisland Cattle Breeding there were exceptional circum- offence or what the circum- the decision was overturned. Ltd v Minister for Social and stances. It was an isolated event stances. The sentence imposed The plaintiff requested the Family Affairs, Supreme committed by a 15-year-old who was excessive. chief appeals officer to review Court, 15/7/2004 [FL9432] G was trying to come to terms with DPP v Dillon,Court of the decision, but he simply indi- his homosexuality. Criminal Appeal, 17/12/2003 cated that he could find nothing The information contained here DPP v D(G), Court of [FL9127] erroneous in the decision. The is taken from FirstLaw’s Legal Criminal Appeal, 13/7/2004 plaintiff appealed under section Current Awareness Service, [FL9380] 217 of the Social Welfare published every day on the internet EMPLOYMENT (Consolidation) Act, 1993, at www.firstlaw.ie. For more Sentence – appeal – minimum sen- requesting an order that Mr information, contact bartdaly@ tence for manslaughter where knife Appeal, contract law Walsh was an independent con- firstlaw.ie or FirstLaw, Merchant’s used – whether trial judge erred in Contract of service or contract for tractor. Court, Merchant’s Quay, Dublin principle – whether sentence exces- services – appeal from decision The Supreme Court (Den- 8, tel: 01 679 0370, fax: 01 679 sive of appeals officer – procedural ham, Murray, McGuinness, 0057.

JUST PUBLISHED SPORT AND THE LAW By Dr Neville Cox and Alex Schuster, BL

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49 Law Society Gazette October 2004

Briefing Eurlegal News from the EU and International Affairs Committee Edited by TP Kennedy, director of education, Law Society of Ireland

The revised Brussels II regulation (part 2)

he revised Brussels II will including the local authority/ Tbring about a fundamental Part 1 of this article appeared in the Eurlegal section of last month’s health board, to make submis- change in the procedure for Gazette (page 49) and considered the scope of the revised Brussels sions within three months of the dealing with intra-EC member II. It also examined the new rules governing jurisdiction and proroga- date of the notification so that state child-abduction cases, even tion of jurisdiction. the court can consider the ques- though the 1980 Hague conven- Part 2 of this article on the revised Brussels II examines the new tion of custody (article 11(7)). tion will continue to apply. At procedure that will apply to intra-EC member state child-abduction Where a court is not already their council meeting of 29 cases. It also considers, among other things, the limited availability seised in the child’s state of November 2002, the EU justice of the principle of forum non conveniens, the removal of intermediate habitual residence, the court or ministers addressed the relation- steps to the recognition of access judgments, and the voice of the central authority that receives ship between the revised Brussels child in the revised Brussels II. the information must notify and II and the 1980 Hague convention invite the parties to make sub- on the civil aspects of international missions. If neither parent files child abduction (1980 Hague con- been made to issue a judgment order what is provided by custody or access proceedings vention). It was agreed that the on custody without delay, and, in statute. In fact, undertakings are within three months of notifica- courts in the state of the child's doing so, the child must be unknown in the civil law system. tion, the child will be left in the habitual residence are to have heard unless it is inappropriate state to which he or she has been jurisdiction to make rulings on because of his age and maturity. Return of the child removed. The child will also custody and access rights (see This mirrors obligations arising Significantly, as regards the remain in the state to which he article 10 of council regulation under article 6 of the 1950 return of the child, a court can- or she has been removed if, fol- 2201/2003). The exception to European convention for the protec- not refuse to return a child lowing custody proceedings in this is where the child has been tion of human rights and funda- unless the person who requested the state of the child’s habitual living with the non-custodial mental freedoms (ECHR) and the return of the child has been residence, custody is awarded to parent for over a year and the article 12 of the 1989 UN con- given an opportunity to be heard the abducting parent. custodial parent has made no vention on the rights of the child. (see article 11(5) of the revised If there are custody proceed- request for his or her return. Article 11(3) of the revised regu- Brussels II). This may lead to an ings, and should the order Recital paragraph 17 in the lation provides that the court increase in oral evidence in child involve the return of the child, it revised regulation provides that shall, unless exceptional circum- abduction cases. Under article will take precedence over a non- the 1980 Hague convention will stances make this impossible, 11(6), if a court issues an order return order made under article continue to apply in child abduc- issue its order no later than six for non-return under article 13 13 of the 1980 Hague conven- tion cases, but will be comple- weeks after it is seised of the of the 1980 Hague convention, the tion.3 An abducting parent mented by article 11 of the application (see articles 11 and court must send a copy of the would not be in a position to revised regulation.1 13 of the 1980 Hague convention). court order on non-return and a challenge the recognition of Under the revised Brussels II, Article 11(4) provides that a transcript of the proceedings as such an order, as the order the courts of the requested mem- non-return order pursuant to well as any other relevant docu- comes within the automatic ber state can continue to refuse article 13(b) of the 1980 Hague ments to the competent court in recognition procedure provided to return a child by invoking the convention cannot be made if it is the member state where the for in article 42. An order for the defences provided by the 1980 established that adequate child was habitually resident return of a child made under Hague convention. Article 11(1) arrangements have been made to immediately before the wrongful article 11(8) of the revised provides that paragraphs 2 to 8 of protect the child after his removal or retention. The latter Brussels II is recognised and article 11 will apply when dealing return.2 This will have little court must receive all the men- enforceable in another member with applications for the return impact in common law jurisdic- tioned documents within one state without any declaration of of a child ‘wrongfully removed or tions where undertakings have month from the date of the non- enforceability and without any retained in a member state other been used effectively for some return order. opportunity for the recognition than the member state where the time to ensure measures are The court seised of the case in of such an order to be chal- child was habitually resident taken in order to protect the the member state where the lenged. The only requirement immediately before the wrongful child after return. It will, howev- child was habitually resident necessary to avail of this expedit- removal or retention’. er, bring about a fundamental immediately before the wrongful ed recognition is that the judg- Article 11(2) requires the change in the civil law member removal or retention is expected ment be certified in the member court to which an application has states, where a judge may only to notify and invite the parties, state of origin to make sure that

51 Law Society Gazette October 2004 Briefing it has satisfied the minimum riage annulment. Each of these availability of the principle of second court to accept jurisdic- grounds of procedural fairness applications/actions is consid- forum non conveniens. This tion within six weeks ‘of their (article 42(2)). The court in the ered to be the same cause of preclusion has the potential to seisure’. member state where the child was action, although – unlike article cause difficulty and could result Article 15 is a useful provi- habitually resident before the 11 of the current regulation – in the custody/access issue being sion, allowing for the transfer of wrongful removal or retention the revised Brussels II does not considered in a jurisdiction other a case to a court of another must also take into account ‘the use this term. It merely refers to than that in which a child member state on the ground of reasons for and evidence underly- divorce, legal separation or mar- resides. Article 15 of the revised forum conveniens, though it is far ing the (non-return) order issued riage annulment. Where a case Brussels II is a welcome provi- too narrowly drawn. It is to be pursuant to article 13 of the 1980 might potentially be taken in sion, facilitating a court with regretted that the drafters of the Hague convention’. Article 42 either or any of two or more jurisdiction under the regulation revised Brussels II have not, in places a premium on the removal states, article 19 of the revised to transfer the case to a court in large measure, addressed the of all intermediate steps to the Brussels II must be considered. another member state better concerns expressed by family law recognition of judgments. Article 19, unlike articles 11(1) placed to hear the case, and is practitioners on the lis pendens The provisions on the rights of and (2) of the current regulation, similar to articles 8 and 9 of the rules, which have created a ‘first the child in this part of the no longer contains discrete pro- 1996 Hague convention. This pro- come, first served’ principle. revised regulation are very much visions addressing competing vision is significant in that it, for This will continue to make speed to be welcomed, though stop matrimonial proceedings bet- the first time in an EC instru- of the essence in Brussels II appli- short of requiring necessary pro- ween the same parties, which do ment on jurisdiction, facilitates cations. The danger then is that cedural changes in the member and do not involve the same discretion. It allows for the the parties to a transnational states’ domestic law. cause of action. It provides that transfer of a case, in whole or in marital breakdown will be lured In summary, the effect of this when proceedings relating to part, from the court having juris- into a ‘race’ to see who can get to section of the revised regulation divorce, legal separation or mar- diction to a court of another court first. Article 19(1) of the will, in my opinion, be to change riage annulment have already member state with which the revised regulation provides that the application of the 1980 Hague been commenced in the courts child has a particular connec- where the same action is taken in convention within the EU. It will of one member state, a court in a tion, where the court seised of the courts of two or more coun- allow courts in the member states different member state must the case is satisfied that the court tries, all but the first court to be to which the child has been ‘stay its proceedings until such of the other member state seised of the case must stay pro- abducted to make non-return time as the jurisdiction of the ‘would be better placed to hear ceedings pending the first court’s orders, but leave the courts of the court first seised is established’. the case’ and that this would be decision. That first court thus child’s habitual residence to make Article 19(3) provides that the in the best interests of the child. has exclusive jurisdiction in the final orders requiring the return court second seised must decline Where the court seised is so sat- case. The revised regulation is of the child. In effect, this jurisdiction in favour of the isfied, it may stay proceedings on quite inflexible in this regard approach undermines mutual court first seised. It is to be a forum conveniens basis or it may insofar as matrimonial proceed- trust between the member states noted that article 15 of the invite the court of another mem- ings are concerned, with article and will do little to promote co- revised regulation, which to a ber state to assume jurisdiction. 15 only allowing the transfer of operation between the courts of limited degree allows a court The transfer can be requested by jurisdiction to another member the member states. having jurisdiction under the either a spouse or on the court’s state, ‘by way of exception’, While it is the case that the regulation to transfer jurisdic- own initiative or ‘upon applica- where it is in the best interests of 1980 Hague convention is not tion to another member state, tion from a court of another the child. Instead of encouraging being ‘communitarised’ by the attempts to mitigate the worst member state with which the conciliation and mediation, the revised Brussels II, it must be excesses of the strict lis pendens child has a particular connec- limited availability of ‘one of the acknowledged that a different rule outlined above. tion’. Article 15(1) makes clear most civilised of legal princi- regime will apply to abduction that any transfer will only arise ples’4 will prompt parties to liti- within member states and outside Transfer to a court better ‘by way of exception’ and is more gate earlier to secure jurisdiction such states. This is regrettable, in placed to hear the case confined than the analogous in their home state. This mili- that it will change the dynamic When, in a matter with which the provision in the 1996 Hague con- tates against the recent statutory and operation of the 1980 Hague revised Brussels II is concerned, a vention. The necessary connec- provisions in Ireland encourag- convention within the European court’s jurisdiction has been tion for a case to be transferred is ing parties to engage in media- Union. While the revised Brussels invoked, it is generally not open confined in article 15(3) to: tion and other forms of alterna- II will, in reality, take precedence to that court to deny a hearing on •A member state in which the tive dispute resolution. where the child is within the EU, the grounds that another forum child had a formal habitual the 1980 Hague convention applies may be more appropriate. residence or is a national, or Access where the child is outside the EU Provided that the court has lawful •A member state in which one Section 4 of the revised regula- (article 60(e)). This should make jurisdiction (under the above- of the spouses having parental tion will bring about fundamen- for some interesting forum shop- mentioned rules) to hear the case, responsibility is habitually tal changes to access rights, the ping by personal litigants. it must proceed with the hearing resident, or most significant of which is the of the case, save in very limited •A member state in which ‘pro- removal of the need of ‘exe- Lis pendens circumstances. perty of the child is located’. quatur’.5 The removal of all the The revised Brussels II applies in One notable feature of the intermediate steps to the recog- civil proceedings relating to current regulation is the absence Articles 15(4) and 15(5) set down nition of access orders was an divorce, legal separation or mar- of discretion caused by the non- strict time limits and require the agreed objective at the European

52 Law Society Gazette October 2004 Briefing

Council meeting at Tampere in and provided the essential elements responsibility, pronounced by a tion of a judgment if it is irrec- Finland in October 1999. Article of this judgment are respected’. court of a member state, whatev- oncilable with a later judgment 41 is, in part, the realisation of As with the current regula- er the judgment may be called, of the member state in which the objective to create a common tion,7 the revised Brussels II takes including a decree, order or recognition is sought. Article judicial area and incorporates precedence over the 1980 decision’. 23(g) inserts an additional elements of the French proposal European custody convention. Article 49 of the revised regu- ground of non-recognition for for adopting a council regulation Application to enforce any cus- lation provides for the recogni- parental responsibility judg- on the mutual enforcement of tody order made in a member tion and enforcement of an ments that mirrors article judgments on rights of access to state will be made under the order for costs and expenses. 23(2)(f) of the 1996 Hague con- children. In particular, article revised Brussels II. The opportu- Similarly, recognition and vention. It provides that a judg- 41(1) provides that an access nity for member states to enter enforcement will apply to ‘docu- ment placing a child in care, judgment that has been certified reservations under articles 17 ments which have been formally either institutional care or foster in the member state of origin is and 18 of the 1980 custody con- drawn up or registered as care, in another member state to be treated for enforcement vention reduced its potential. authentic instruments and are (other than one seised of the purposes as if it were handed Reservations will not be possible enforceable in one member state application) will only be recog- down in the member state of under the revised Brussels II. and also agreements between the nised if the authority facilitating enforcement. such a placement has adhered to Significantly, article 41(2) the procedure outlined in article provides that the judge of origin 56. For example, the authority should only issue a certificate must first consult with the cen- where all the parties and the tral authority or other compe- child (having regard to his or her tent authority in the member age and maturity) have been state where the placement is to given an opportunity to be take place. heard. Where a judgment is given in default, certain special Central authorities considerations apply. The per- Article 53 requires each member son defaulting must have been state to establish a central served ‘with the document (insti- authority to which central tuting proceedings) or with an authorities from other member equivalent document in suffi- states or holders of parental cient time and in such a way as to responsibility will be able to enable that person to arrange for It should be noted that, unlike parties that are enforceable in request co-operation or assis- his or her defence’. A judge can- seeking enforcement under the the member state in which they tance with the application of the not refuse to issue a certificate, 1980 Hague convention, appli- were concluded’ (article 46 of revised Brussels II. Such co-oper- however, where the person cants seeking to enforce a cus- the revised regulation). ation or assistance is broadly defaulting has accepted the deci- tody order under the revised defined in article 55 and is to be sion unequivocally. regulation will not automatically Defences to recognition of a provided free of charge (article With respect to rights of receive free legal aid. In short, judgment in a matrimonial 57(3)). It includes both facilitat- access, the revised regulation the means test and merits test matter ing communications between applies not merely to access will apply (see article 50). Article 22 of the revised Brussels courts, administrative authorities orders made during matrimonial II details the grounds upon and agreement between holders proceedings but generally. The Recognition which a judgment relating to a of parental responsibility. The access provisions of the revised One of the most common prob- divorce, legal separation or mar- foregoing will be complemented regulation apply to not only par- lems when dealing with foreign riage annulment shall not be by the European Judicial ents but also grandparents and divorce, separation and parental recognised. The ECJ has taken a Network in civil and commercial those in loco parentis. Article responsibility judgments is how very narrow and restrictive matters,10 which will facilitate 48(1) of the revised regulation is to enforce them. This is an area approach to these defences.9 judicial co-operation between a welcome provision and mirrors of law that has been very sensi- Indeed, as previously stated, the the member states in cross-bor- article 11(2) of the 1980 tive to Ireland due to its specific very existence of any of the der family issues. European convention on the custody socio-cultural implications. As in grounds of non-recognition of children and on restoration of cus- the current regulation, the seems at odds with the EC The voice of the child in the tody of children.6 It provides: revised regulation provides that objective of removing all obsta- revised regulation ‘The courts of the member state of a judgment given in the courts of cles to the recognition of judg- Brussels II makes little reference enforcement may make practical one member state is to be recog- ments. to children and is confined to arrangements for organising the nised in all other member states parental responsibility in respect exercise of rights of access, if the nec- without any special procedure.8 Recognition of parental of the natural and adopted chil- essary arrangements have not or Article 2(4) of the revised regula- responsibility judgments dren of both spouses (see articles have not sufficiently been made in tion defines judgment as ‘a In parental responsibility cases, 3(2)(b) and 15(2)). The status of the judgment delivered by the courts divorce, legal separation or mar- article 23(e) of the revised the child in the revised regula- of the member state having jurisdic- riage annulment, as well as a Brussels II provides that in such tion is, however, significantly tion as to the substance of the matter judgment relating to parental cases a court can refuse recogni- enhanced. To this end, the hear-

53 Law Society Gazette October 2004 Briefing ing of the child plays an impor- which is compounded by the fact the parties’ case. 2 See section 4 and annex IV of tant role in the application of the that section 28 of the One unfortunate matter is that the revised Brussels II, which revised regulation. This is a wel- Guardianship of Infants Act, 1964, a comprehensive family law reg- require a judge in the request- come departure from the current as introduced by section 11 of the ulation was not negotiated on ed member state, in ordering mere affirmation of the ‘best Children Act, 1997, has not yet this occasion to cover all aspects the child’s return, to include in interests’ principle. In particular, come into force. In public law of child and matrimonial juris- any certificate issued details of article 11(2) requires the child to cases, while section 26 of the diction. As it now stands, issues any protective measures in be heard during child abduction Child Care Act, 1991 allows for of status and matrimonial juris- favour of the child to be taken proceedings ‘unless this appears the appointment of a guardian ad diction will be dealt with by dif- to ensure the protection of the inappropriate having regard to litem, the practical reality is that ferent regulations. The revised child after its return to the his or her age or degree of matu- the absence of a legal infrastruc- Brussels II is therefore unlikely to member state of habitual resi- rity’ (see also article 42(2)(a)). ture for the operation of the achieve the uniformity realised dence. Also, article 36 of the This is in line with article 13 of guardian ad litem has led to a by the original Brussels convention. 1980 Hague convention. the 1980 Hague convention, which reluctance to engage children in This is, in part, due to the fact 3 Article 11(8). The justification allows a court to refuse to return decisions regarding their own that the conditions that heralded advanced for this approach has a child if the child objects to future. the success of the original Brussels been that the main objective of being returned, having regard to While the revised Brussels II convention are no longer present. the 1980 Hague convention is, the age and maturity of the child. establishes the general right of Indeed, reaching agreement in after all, that the state of a Article 41(2)(c) establishes the the child to be heard in family the future will be more difficult, child’s habitual residence is the child’s status in access proceed- proceedings, child-consultation in that a number of features of jurisdiction best equipped to ings: ‘the judge of origin shall procedures remain an issue of the family law systems in the adjudicate on any dispute issue the certificate only if … the national law. This is to be regret- newer member states do not relating to the child and not child was given an opportunity to ted and will result in the nature appear to be compatible with the the state to which the child has be heard, unless a hearing was and extent of the child’s right to family law systems of the original been abducted. considered inappropriate having be heard being dependent on the member states. It will now 4 Lord Goff describing the prin- regard to his or her age or degree member state in which he or she require consensus among 24, ciple of forum non conveniens in of maturity’. is habitually resident. The vul- possibly 25, European member Airbus Industries GIE v Patel The child is to be heard in nerable position of the migrant states. and Others ([1998] 2 All ER accordance with the arrange- child arising out of the divergent 257 at 271). ments detailed in article 11 of child-consultation procedures Footnotes 5‘Exequatur’ means an interme- EC council regulation 1206/ between the member states 1 ‘(17) In cases of wrongful diate measure whereby a court 2001 of 28 May 2001 on co- should be addressed in advance removal or retention of a decree is given enforceable operation between the courts of of the seven-year review of the child, the return of the child quality. the member states in the taking revised regulation required should be obtained without 6 ‘[T]he competent authority of of evidence in civil or commer- under article 65. This would delay, and to this end the the state addressed may fix the cial matters. While, according to ensure greater uniformity Hague convention of 25 conditions for the implemen- recital 19, it is left to member between member states and have October 1980 would continue tation and exercise of the right states’ discretion to provide a a significant impact on honour- to apply as complemented by of access taking into account, framework for representing the ing not only the terms but also the provisions of this regula- in particular, undertakings interests and wishes of the child, the spirit of article 12 of the 1989 tion, in particular article 11. given by the parties on this this discretion must be exercised UNCRC. The courts of the member matter’. in a manner compatible with the state to or in which the child 7 See article 37 of council regu- provisions of the 1989 United Extended scope has been wrongfully removed lation 1347/2000, OJ L160/19. Nations convention on the rights of Considering the controversy that or retained should be able to 8 Article 21(1). Recognition is the child (UNCRC). Research accompanied the introduction of oppose his or her return in restricted to the dissolution of commissioned by the European the current regulation, it is sur- specific, duly justified cases. the marriage bond (that is, Forum for Child Welfare in prising that these new develop- However, such a decision annulment, legal separation or 2001, which took the form of a ments have attracted so little could be replaced by a subse- divorce), article 2(4). comparative analysis of the attention. The greatly extended quent decision by the court of 9 See, for example, case C- implementation of article 12, scope of the expression ‘parental the member state of habitual 414/92, Solo Kleinmotoren UNCRC in six EU countries – responsibility’ is to be welcomed, residence of the child prior to GmBH v Boch ([1994] ECR Austria, Greece, the as is the limited availability of the the wrongful removal or 2237), decided in the context Netherlands, Ireland, Italy and principle of forum non conveniens. retention. Should that judg- of the comparable provision in Britain – identified significant The revised Brussels II is likely to ment entail the return of the the Brussels convention. shortcomings and divergent age- increase transfrontier judicial co- child, the return should take 10 Council decision of 28 based restrictions in giving effect operation and represents a more place without any special pro- May 2001 (2001/470/EC), to the right of the child to be equitable balance between plac- cedure being required for applicable since 1 December heard in family law proceedings. ing a premium on ease of access recognition and enforcement 2002. G The findings highlight the to the courts of other member of that judgment in the mem- absence of an automatic right for states at the expense of whether ber state to or in which the Geoffrey Shannon is the Law the child to be heard in private the court with first jurisdiction is child has been removed or Society’s deputy director of educa- law proceedings in Ireland, the most appropriate venue for retained’. tion.

54 Law Society Gazette October 2004 Briefing Recent developments in European law EURO purpose was that the transition to Commission argued that this itoring authority. The bonus/ the euro should take place with- ‘bonus/malus’ system infringed malus system is a means of sub- Case C-19/03, Verbraucher- out affecting obligations already the principle of freedom to set sequent personalisation of the Zentrale Hamburg eV v O2 entered into. It follows that the premium rates established by premium, which concerns only (Germany) GmbH & Co OHG, 14 regulation only sets out minimum directive 92/49 (the third non-life- variation of the insurance premi- September 2004. Regulation rules in relation to rounding. The insurance directive). It brought um and leaves insurers absolute- 1103/97 on the introduction of rules were not intended to be infringement proceedings, argu- ly free to determine all the com- the euro provides that monetary exhaustive in relation to interme- ing that the national rules are ponents in the price calculations amounts to be paid or accounted diate computations. Thus, the contrary to the directive as they for the vehicle insurance. The ECJ for, when converted, are to be court concluded that a tariff such result in the establishment of did not accept the arguments of rounded up or down to the near- as the per-minute price does not systems having automatic and the commission. It looked to its est cent. O2 operates a mobile constitute an amount to be paid compulsory effects on premium previous case law, where it had telephone network in Germany. In for accounted for within the mean- rates. France argued that there held that the principle of freedom 2001, it converted its price-per- ing of the regulation. There is no was still overall freedom to set to set rates implies the prohibi- minute tariffs from German practical reason why this tariff the final price of premiums. It tion of any system of prior or sys- marks into euro and rounded must be rounded to two decimal contended that the directive con- tematic notification or approval of them to the nearest cent. places. tained no provision establishing the rates that an insurance under- Verbraucher-Zentrale, a consumer an absolute principle of freedom taking intends to use in its deal- association, took the view that INSURANCE to set rates that would extend to ings with policyholders. The court this rounding practice resulted in the manner in which the cost of found that, while the an increase in O2’s prices. It Cases C-346/02 and C-347/02, insurance is calculated. Nothing bonus/malus systems had argued that the per-minute price Commission of the European in the directive would therefore effects on the amount of premi- should not be rounded in such a Communities v Grand Duchy of preclude the inclusion in the ums, they did not result in the way under the 1997 regulation, Luxembourg and Commission of method of calculating insurance direct setting of the premium as that price was only an inter- the European Communities v premiums of a mandatory coeffi- rates by the state, as insurance mediate amount, not an amount French Republic, 7 September cient that has no effect on the ini- companies remain free to set the to be paid or accounted for. The 2004. In France and Luxembourg, tial level of premiums and affects amount of the basic premium. ECJ, in deciding whether the con- national rules require insurance their alterations only in a very These systems cannot be equat- cept of ‘monetary amounts to be companies to include in motor small way. Luxembourg made ed with a system of approving paid or accounted for’ included insurance contracts a system similar arguments. It argued that premium rates that is contrary to per-minute prices used as the under which policyholders are its regulations did not require the the principle of freedom to set basis for calculating charges to placed on a premium scale premium scales of insurance rates. The ECJ therefore held that consumers, looked at the objec- according to their accident companies to be notified in it was not possible to uphold the tives of the regulation. Its chief record. The European advance to a supervisory or mon- arguments of the commission. G Keep your magazines safe with a

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55 Law Society Gazette October 2004 Irish WHERE THERE’S A WILL Stenographers THIS IS THE WAY…

Ltd When a client makes a will in favour of the Society, it would be appreciated if the bequest were stated in the following words: Director: Sheila Kavanagh “I give, devise and bequeath the sum of X euros to the Irish Experts in Cancer Society Limited to be applied by it for any of its charitable objects, as it, at its absolute discretion, may decide.” Overnight Transcripts All monies received by the Society are expended within the Specialists in Republic of Ireland. Court Reporting “Conquer Cancer Campaign” is a Registered Business Name Medical Cases / Arbitrations and is used by the Society for Conferences / Board Meetings some fund-raising purposes. The Contact: “Cancer Research Advancement Hillcrest House, Board” allocates all Research Dargle Valley, Bray, Co. Wicklow. Grants on behalf of the Society. Telephone/Fax: (01) 286 2184 or 4b Arran Square, Dublin 7 5 Northumberland Road, Dublin 4. Tel: (01) 231 0500 Telephone: (01) 873 2378 15 Bridge Street, Cork. Tel: (021) 4509 918 Web: www.cancer.ie

For more details please contact Paddy Barrett, Manager, The Donkey Sanctuary, (Dept LSG), Liscarroll, Mallow, Co. Cork. Telephone (022) 48398 Fax (022) 48489 Email [email protected] Website www.thedonkeysanctuary.ie Donkeys are part of Ireland's heritage and have worked tirelessly UK Registered Charity No. 264818 and patiently for man over the years. Sadly, many of these animals, now no longer needed, are neglected and suffer as a consequence.

Hegarty is one such donkey who had been left to wander around a quarry and found his way into factory buildings. He was nearly bald as a result of an untreated lice infestation and his feet were in need of urgent attention. He was moved by our Welfare Officers to a local livery, being unfit to undergo the journey back to the Sanctuary. Here he began to receive urgent farriery treatment for his feet and medical attention for his lice and general health. He is now unrecognisable as the undernourished and poorly donkey that was taken in and continues to thrive in our care.

The Donkey Sanctuary at Liscarroll, Co. Cork provides a refuge for mistreated, neglected or unwanted donkeys throughout the country. Professional information

LOST LAND Regd owner: Gary and Patricia Ann CERTIFICATES Kingston; folio: 80085F; lands: LawSociety plot of ground known as 8 Mount Gazette Registration of Title Act, 1964 Pleasant Road in the parish of St An application has been received from Nicholas and county borough of the registered owners mentioned in Cork; Co Cork ADVERTISING RATES the schedule hereto for the issue of a Regd owner: James Christopher Advertising rates in the Professional information section are as follows: land certificate as stated to have been Hegarty; folio: 30395; lands: plots lost or inadvertently destroyed. A new of ground being part of the town- ¥ Lost land certificates Ð €46.50 (incl VAT at 21%) certificate will be issued unless notifi- land of Clashadoo in the barony of ¥ Wills Ð €77.50 (incl VAT at 21%) cation is received in the registry with- Carbery West (West Division) and ¥ Lost title deeds Ð €77.50 (incl VAT at 21%) in 28 days from the date of publica- county of Cork; Co Cork ¥ Employment miscellaneous Ð €46.50 (incl VAT at 21%) tion of this notice that the original Regd owner: Florence and Katherine certificate is in existence and in the McAuliffe; folio: 83766F; lands: HIGHLIGHT YOUR ADVERTISEMENT BY PUTTING A BOX AROUND IT Ð €30 EXTRA custody of some person other than plots of ground being part of the All advertisements must be paid for prior to publication. Deadline for November the registered owner. Any such notifi- townland of Kishkeam Upper in Gazette: 22 October 2004. For further information, contact Catherine Kearney cation should state the grounds on the barony of Duhallow and coun- or Valerie Farrell on tel: 01 672 4828 (fax: 01 672 4877) which the certificate is being held. ty of Cork; Co Cork (Register of Titles), Central Office, Land Regd owner: David and Mary Registry, Chancery Street, Dublin O’Regan; folio 25565F; lands: known as 29 Seagrange Road situ- Jacinta Fahy; folio: 51216F; lands: (Published 8 October 2004) plots of ground known as 63 ate on the east side of Seagrange townland of Mountain West and Halldene Drive, being part of the Road in the parish and district of barony of Dunkellin; Co Galway Regd owner: John Carolan, townland of Ballinaspig More in Baldoyle; Co Dublin Regd owner: John and Margaret Finternagh, Bailieborough, Co the barony of Cork and city of Regd owner: Damien Harris; folio: Gilchreest; folio: 23019; lands: Cavan; folio: 25568; lands: Cork; Co Cork DN40912L; lands: property situ- townland of (1) Aille, (2) Limehill Finternagh; area: 2.9440 and Regd owner: Nora Gertrude Reilly; ate to the west of Cooley Road in and barony of (1) and (2) Leitrim; 13.7795; Co Cavan folio: 1195; lands: plots of ground the parish and district of Crumlin; area: (1) 4.3377 hectares, (2) Regd owner: the Urban District being part of the townland of Co Dublin 0.3718 hectares; Co Galway Council of Ennis; folio: 19752; Scartagh in the barony of Carbery Regd owner: Robert Nelson; folio: Regd owner: Michael Hackett; folio: lands: townland of Drumbiggil and East (East Division) and county of DN32201L; lands: property 5589; lands: townland of Parkmore barony of Islands; Co Clare Cork; Co Cork known as 7 Tibradden Drive, and barony of Galway; area: 2 Regd owner: Gerard Murray and Regd owner: Rosaleen Tonson Rye; being part of the townland of acres, 3 perches; Co Galway Catherine Murray; folio: 5468F; folio: 43053F; lands: plots of Kilnamanagh and barony of Regd owner: Stephen McDonagh and lands: townland of Tullyglass and ground being part of the townland Uppercross; Co Dublin Rita Doyle; folio: 2769L; lands: barony of Bunratty Lower; Co of Farnanes in the barony of Regd owner: Ciaran Ryan; folio: townland of Townparks and Clare Muskerry East and county of DN78425F; lands: property situ- barony of Galway; Co Galway Regd owner: Cyril Jones and Patricia Cork; Co Cork ate to the north side of Coolock Regd owner: Mairead Murphy and Jones; folio: 6856F; lands: town- Regd owner: Anne Walsh and Lane in the parish of Santry and Jarlath Collins; folio: 39895F; land of Breaffy South and barony Thomas Walsh; folio: 36896; district of Coolock West; Co lands: townland of Rinmore and of Ibrickan; area: 0.1873 hectares; lands: plots of ground being part of Dublin barony of Galway; Co Galway Co Clare the townland of Kilcullen South in Regd owner: Colum Ryan and Emer Regd owner: Patrick John Tully, Regd owner: Martin Murrihy; folio: the barony of Muskerry East and McGrath; folio: DN139817F; Derrymullan, Ballinasloe, Co 23695; lands: townland of Seafield county of Cork; Co Cork lands: a plot of ground known as Galway; folio: 9031; lands: town- and barony of Ibrickan; Co Clare Regd owner: John Paul Kelly, site no 263 Woodstown Village, land of Derrymullan and barony of Regd owner: William Henry Irwin; Kiltown, Killygordon, Co Ballycullen Road, situate in the Clonmacnowen; area: 7.3335 folio: 27071; lands: townland of Donegal; folio: 22133, 38226; townland of Ballycullen and hectares; Co Galway Knockagroagh and barony of area: 8.1515 hectares, 5.344 barony of Uppercross, shown as Regd owner: John Hanley (deceased); Burren; area: 2.7973 hectares; Co hectares, 3.035 hectares, 5.0990 plan A1WJR; Co Dublin folio: 46575; lands: townland of Clare hectares of the lands of Regd owner: Carmel Donnelly; folio: Ballinphuil and barony of Clare; Regd owner: Margaret Healy; folio: Killygordon and 6.964 of the lands DN99920F; lands: property situ- area: (1) 5.2507 hectares, (2) 17311F; lands: situate to the north of Kiltown; Co Donegal ate in the townland of Knocklyon 8.5565 hectares, (3) 4.7904 side of Curraheen Road in the Regd owner: Ling Au Yeung; folio: and barony of Uppercross; Co hectares, (4) 1.7806 hectares; Co parish of St Finbar’s and county DN71263L; lands: property being Dublin Galway borough of Cork, being part of the unit no 107 on the 1st level at Dun Regd owner: Esther Mooney; folio: Regd owner: Martin Halloran; folio: townland of Ballinaspig More in Laoghaire Shopping Centre, situ- 37516F; lands: property situate to 6348F; lands: townland of the barony of Cork and county of ate to the east of Marine Road in the south of the Grand Canal in Corranellistrum and barony of Cork; Co Cork the parish of Monkstown and bor- the town of Clondalkin; Co Moycullen; area: 0.4502 hectares; Regd owner: Bridget Roche and Mary ough of Dun Laoghaire; Co Dublin Co Galway Cassidy; folio: 55211; lands: plots Dublin Regd owner: Kieran Murphy and Regd owner: John Brosnahan; folio: of ground situate to the east of Regd owner: Damien Byrne; folio: Anne Murphy; folio: DN197L; 1111F; lands: townland of Wilton Road in the parish of Saint DN2988; lands: property situate in lands: property known as no 19 Coumduff and barony of Finbar’s being part of the townland the townland of Drishoge and Saint Ita’s Road on the south side Corkaguiny; Co Kerry of Ballinsapig Beg in the barony of barony of Balrothery West; Co of the said road in the parish of St Regd owner: Michael Costello; folio: Cork and county of Cork; Co Dublin George and district of Glasnevin; 15894; lands: townland of Garrane Cork Regd owner: James Dore; folio: Co Dublin West and barony of Trughanacmy; Regd owner: Timothy and Johanna DN6617F; lands: property situate Regd owner: Mark Doyle and Sinead Co Kerry Cronin; folio: 20862; lands: plots in the townland of Palmerstown Timmins; folio: DN96328F; lands: Regd owner: Derek and Adrienne of ground being part of the town- Upper and barony of Uppercross; property situate in the townland of Gilmer; folio: 19057F; lands: land of Garryhankard in the Co Dublin Ballyowen and barony of townland of Simmonstown and barony of Kinalea and county of Regd owner: Noel and Marie Ennis; Newcastle; Co Dublin barony of South Salt; Co Kildare Cork; Co Cork folio: DN51496L; lands: property Regd owner: Michael Greene and Regd owner: Jeremiah O’Reilly; folio:

57 Law Society Gazette October 2004 STANHOPE STREET LAW SCHOOL FE1 EXAMINATION S

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40044; lands: townland of Coole Solicitors, 97 Upper Georges Street, and barony of Owney and Arra; Co Dun Laoghaire, Co Dublin (ref: ABACUS Tipperary 0039390001.JH); tel: 01 280 6971; fax: Regd owner: Ciaran Godkin and 01 280 1558; e-mail: jhooper@hoop- BOOK KEEPING SERVICES Therese Godkin; folio: 12214F; erco.ie lands: plots of ground situate at SPECIALITY: LEGAL ACCOUNTS Cleaboy in the parish of Trinity McDonagh, Louis (otherwise without division, Cleaboy and Luke) (deceased), late of Dawros, WHY USE ABACUS: county borough of Waterford; Co Tourlestrane, Ballymote, Co Sligo. Best practice procedure, ie Law Society rules Waterford Would any person having knowledge Fast effective service Regd owner: Anthony and Aine of a will made by the above named Audit experience O’Meara, 29 Petiswood Manor, deceased, who died on 17 August Trouble shooting Mullingar, Co Westmeath; folio: 2004, please contact Rochford, Could your practice do with a shake up, or 18589F; lands: Petiswood; Co Gallagher & Co, Solicitors, Could your book keeper do with a helping hand? Westmeath Tubbercurry, Co Sligo; tel: 071 918 For further information, please contact Fleur@ Regd owner: Desmond Tallon; folio: 5011; fax: 071 918 5650 042-9382157/086-8147270/[email protected] 5155F; lands: Killisk and barony of Ballaghkeen South; Co Wexford O’Donnell, Mary (deceased), late of Regd owner: Icekin Mouldings 19 North Summer Street, Dublin 1. 11813; lands: (1) Kilmurray, (2) Tirawley; area: (1) 3 acres, 2 roods, Limited; folio: 6485F; lands: town- Would any person having knowledge Rathculliheen and barony of (1) Ida 8 perches; (2) 7 acres, 2 roods, 29 land of Burgagr More and barony of a will made by the above named and (2) Kilculliheen; Co Kilkenny perches; (3) 880 acres, 20 perches of Talbotstown Lower; Co deceased, who died on 2 March 2003, Regd owner: Ellen Feely, Carrow- (one undivided fourth part); Co Wicklow please contact Coleman and noona, Largydonnell, Co Leitrim; Mayo Regd owner: Joseph Keenan; folio: Company, Solicitors, Main Street, folio: 19533; lands: Carrownoona, Regd owner: Thomas Quinn; folio: 4737; lands: townland of Togher Ballinrobe, Co Mayo; tel: 09495 Kelloges, Largydonnell, and 19513F; lands: townland of (1) More and barony of Ballinacor 42202; fax: 09495 42219 Largydonnell; area: 6.2802, 2.3522, Castlecarra, (2) Burriscarra, (3) North; Co Wicklow 1.6819 and 136.8621; Co Leitrim Glengary Island and barony of (1), Ryan, Michael (deceased), late of 12 Regd owner: Katie B Fowley, (2) and (3) Carra; area: (1) 58.397 Rathdown Avenue, Terenure, Dublin Dunkelly, Leckaun, Co Leitrim; hectares, (2) 0.751 hectares, (3) WILLS 6W. Would any person having any folio; 11687; lands: Ballynaboll; 0.654 hectares; Co Mayo knowledge of a will made by the above area: 19.3844; Co Leitrim Regd owner: Mary Albina Roche; Ahern, Brenda (deceased), late of named, who died on 26 June 2004 at Regd owner: Robert Hayes, Farnham folio: 183R; lands: townland of Main Street, Ennistymon, Co Clare. Our Lady’s Hospice, Harold’s Cross, Street, Cavan; folio: 5223; lands: Moat and barony of Costello; area: Would any person having knowledge Dublin 6 West, please contact Donal Tents; area: 7.790 hectares; Co 9.4974 hectares; Co Mayo of a will executed by the above named T McAuliffe, Solicitors, 57 Merrion Leitrim Regd owner: Catherine, Clare and deceased, who died on 16 May 2004, Square, Dublin 2; tel; 01 676 1283; Regd owner: Thomas and Breda Ann Moore, 74 Carlingford Road, please contact Chambers & Company, fax: 6619459 Condon; folio: 5030L; lands: town- Drumcondra, Dublin; folio: 9965; Solicitors, Parliament Street, land of Ballincoloo and barony of lands: Ballybin; area: 0.661 Ennistymon, Co Clare Scanlon, Joseph (deceased), late of Smallcounty; Co Limerick hectares; Co Meath 36 Moeran Road, Walkinstown, Regd owner: Joan McEnery; folio: Regd owner: Anthony M O’Shea; Condon, Patrick Oliver (deceased), Dublin 12. Would any person having 1224; lands: townland of folio: 9296; lands: Tullamore and late of 21 Gardenrath Close, Kells, Co knowledge of a will made by the above Ballynahown and barony of barony of Ballycowan; Co Offaly Meath. Would any person having any named deceased, who died on 20 Glenquin; Co Limerick Regd owner: Thomas Smyth; folio: knowledge of a will made by the above March 2002, please contact Mary Regd owner: Thomas Moylan; folio: 3852; lands: Townparks (with the named deceased, who died on 26 April Cowhey & Co, Solicitors, Main 20916; lands: townland of Bunkey building thereon situate on the 2004, please contact Thornton, Street, Maynooth, Co Kildare; tel: 01 and barony of Clanwilliam; Co west side of Main Street in the Solicitors, 52 O’Connell Street, 628 5711; fax: 01 628 5613; e-mail: Limerick town of Philipstown and barony of Limerick; tel: 061 315 543; fax: 061 [email protected] Regd owner: Kevin O’Callaghan, 1 Philipstown; Co Offaly 315 503 Elm Grove, Bay Estate, Dundalk, Regd owner: John Cox; folio: 15975; Co Louth; folio: 3361L; lands: lands: townland of Ballyglass and Crotty, Thomas (deceased), late of 1 MISCELLANEOUS Marshes Lower; Co Louth barony of Ballintober South; area: Coolagh Road, Crotty’s Cross, Regd owner: John Eaton (deceased) 3 acres, 2 roods, 10 perches; Co Dungarvan, Co Waterford. Would Northern Ireland solicitors provid- and Josephine Eaton (deceased); Roscommon any person having knowledge of a will ing an efficient and comprehensive folio: 8870; lands: townland of Regd owner: John Hurley; folio: made by the above named deceased, legal service in all contentious/non- Hazelhill and barony of Costello; 31918; lands: townland of who died on 9 May 2004, please con- contentious matters. Dublin-based area: 0.0519 hectares; Co Mayo Derrylahan and barony of tact Ronan Daly Jermyn, Solicitors, 12 consultations and elsewhere. Fee Regd owner: Dermot Gallagher and Moycarn; area: 8.3516 hectares; Co South Mall, Cork apportionment. ML White, Solicitors, Sonia Gallagher, Lurga, Charles- Roscommon 43-45 Monaghan Street, Newry, Co town, Co Mayo; folio: 37118F; Regd owner: Andrew Carnegie and Kelly, William John (deceased), Down; tel: 080 1693 68144; fax: 080 lands: townland of Lurga Upper Miriam Harte; folio: (1) 4210F and county council employee, died 23 May 1693 60966 and barony of Costello; area: (2) 14297; lands: townland of 1980; Kelly, Jane (deceased), house- 0.2620 hectares; Co Mayo Clooneen and barony of Tireragh; wife, died 26 November 1998; and Northern Ireland agents for all con- Regd owner: Michael O’Malley; folio: area: (1) 0.3540 hectares and (2) Kelly, Thomas William (deceased), tentious and non-contentious matters. 46898; lands: townland of Keel 0.3850 hectares; Co Sligo bus conductor, died 26 June 2004. All Consultation in Dublin if required. East and barony of Burrisoole; Regd owner: Henrietta Patricia late of 153 Hill View, Pottery Road, Fee sharing envisaged. Offices in area: 0.1037 hectares; Co Mayo Spence; folio: 23105; lands: town- Kill o’ the Grange, Dun Laoghaire, Belfast, Newry and Carrickfergus. Regd owner: Michael Walshe land of Carrowdough and barony Co Dublin. Would any person having Contact Norville Connolly, D&E (deceased); folio: 9253; lands: of Carbury; area: 0.1163 hectares; knowledge of the whereabouts of wills Fisher, Solicitors, 8 Trevor Hill, townland of (1) Ballycastle and (2) Co Sligo made by the above named deceased Newry; tel: 080 1693 61616; fax: 080 and (3) Glenulra and barony of Regd owner: Patrick Cody; folio: please contact Hooper & Company, 1693 67712

59 Law Society Gazette October 2004 Professional information

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agency work. We handle probate, lit- igation, property and company/com- NORTHERN mercial. Parfitt Cresswell, 567/569 IRELAND Fulham Road, London SW6 1EU; SOLICITORS DX 83800 Fulham Broadway; tel: 0044 2073 818311; fax: 0044 2073 816723; e-mail: arobbins@ We will engage in, parfitts.co.uk and advise on, all Northern Ireland- Office to let. New, state-of-the-art related matters, particularly personal injury offices in Capel Building beside Four litigation. Courts, approximately 2,000 sq feet with cat 6 cabling, raised access Consultations where floors, suspended ceiling, air condi- convenient. tioned, dramatic entrance foyer, car parking options. €35 psf. Available January 2005; tel: 087 243 0027 for OLIVER M further information LOUGHRAN SPANISH LAWYERS Solicitor’s practice for sale & COMPANY North Dublin city area. Well- established sole practitioner. RAFAEL BERDAGUER 9 HOLMVIEW TERRACE, Contact Owen McGinley & Co, ABOGADOS OMAGH, Accountants; tel: 01 601 2751 or CO TYRONE e-mail: [email protected] TWENTY YEARS ADVISING CLIENTS IN REAL ESTATE TRANSACTIONS IN SPAIN Phone (004428) 8224 1530 Fax: (004428) 8224 9865 PROFILE: FIELD OF PRACTICES: e-mail: Solicitor’s practice required. panish Lawyers Firm focused eneral Practice, Administra- [email protected] Dublin city or north county Dublin. Son serving the need of the for- Gtive Law, Civil and Commercial Might suit retiring solicitor. eign investors, whether in compa- Law, Company Law, Banking and Immediate purchase or phased ny or property transactions and all Foreign Investments in Spain, arrangement. Contact Jim Harnett, attendant legalities such as ques- Arbitration, Taxation, Family Law, England and Wales solicitors will Accountant; tel: 01 660 3855 tions of inheritance, taxation, International Law, Litigation in all provide comprehensive advice and accounting and bookkeeping, Courts. undertake contentious matters. Practice for sale – Co Tipperary. planning, land use and litigation in Offices in London, Birmingham, Enormous potential. Fee income dou- all Courts. Cambridge and Cardiff. Contact bled in last two years. Mainly con- Avda. Ricardo Soriano, 29, Levenes Solicitors at Ashley House, veyancing and family law. No reason- Edificio Azahara Oficinas, 4 Planta, 29600 Marbella, Malaga, Spain 235-239 High Road, Wood Green, able offer refused. Principal retiring. London 8H; tel: 0044 2088 17777; Reply in confidence to box no 81/04 Tel: 00-34-952823085 Fax: 00-34-952824246 fax: 0044 2088 896395 e-mail: [email protected] To let – 4/5 Usher’s Court, Usher’s Web site: www.berdaguerabogados.com London solicitors will be pleased to Quay, D6. Superb ground-floor office advise on UK matters and undertake accommodation close to the Four

60 Law Society Gazette October 2004 Professional information

Courts; c 172 sq m with parking. from the date of this notice and will them) are called upon to furnish evi- Preferably minimum two years’ PQE. Benefits from a modern office fit-out. apply to the county registrar for the dence of title to the premises to the Replies to Sean A Mahon & Co, Available on flexible lease terms. city of Dublin for directions as may be below named within 21 days of the Solicitors, Market Street, Roscommon Lambert Smith Hampton; tel: 01 676 appropriate on the basis of the person date of this notice. 0331 or persons beneficially entitled to the In default of any such application Hard-working legal executive/legal superior interest including the freehold being received, the applicant intends to graduate (first class honours) with reversion in the premises is unknown proceed with the application before three-and-a-half years’ conveyancing, TITLE DEEDS or unascertained. the county registrar at the end of 21 probate and family law experience with All that and those the hereditaments days from the date of this notice and eight FE1s and first Irish examination In the matter of the Landlord and and premises known as Clarendon, 46 will apply to the county registrar for passed. Able to work on own initiative. Te nant Acts, 1967-1994 and in the Te renure Road East, Rathgar, Dublin the city of Dublin for directions as may Available to start immediately. All areas matter of the Landlord and Tenant 6. be appropriate on the basis that the considered; tel: 087 945 4734 (Ground Rent) No 2 Act, 1978: an Date: 8 October 2004 person or persons beneficially entitled application by Dermot Rickard Signed: John Glynn & Co, Solicitors, Law to the superior interest are unknown Locum solicitor required: Limited Chambers, The Village Square, Tallaght, or unascertained. Mullingar, general practice, four/ Take notice that any person having an Dublin 24 Schedule: 19, 21, 23 and 25 six months, start January 2005, experi- interest in the freehold estate of the Grantham Place; 23, 24 and 25 ence required. Contact Sally-Ann property described in the schedule In the matter of the Landlord and Grantham Street; 49 Synge Street. O’Donnell or Paddy Crowley at 044 hereto (‘the premises’). Te nant Acts, 1967-1994 and in the Date: 8 October 2004 408 87/8 or send CV to JJ Macken, Take notice that the applicant matter of the Landlord and Tenant Signed: Daly, Lynch Crowe & Morris Bishopsgate Street, Mullingar, Co intends to submit an application to the (Ground Rents) (No 2) Act, 1978: an (solicitors for the applicant), The Corn Westmeath county registrar for the city of Dublin application by D O’Sullivan Graphic Exchange, Burgh Quay, Dublin 2 for the acquisition of the freehold Supplies Limited (the applicant) Solicitor required for busy West of interest in the premises, and any par- Take notice that any person having an Ireland practice. Enquiries to ties asserting that they hold a superior interest in the freehold estate of the RECRUITMENT O’Malley & Co, Chartered interest in the premises (or any of property described in the schedule Accountants, Chapel Street, Castlebar, them) are called upon to furnish evi- hereto (‘the premises’). Apprenticeship required: all areas Co Mayo dence of title to the premises to the Take notice that the applicant considered. A dynamic, personable, below named within 21 days from the intends to submit an application to the hard-working, individual with excel- Experienced solicitor required for date of this notice. county registrar for the city of Dublin lent references available for immediate conveyancing and probate. Excellent In default of such notice being for the acquisition of the freehold start. Strong academic background salary for this senior position. Apply in received, the applicant intends to pro- interest in the premises, and any parties including honours law degree. All writing to Thomas Noonan of 2 ceed with the application before the asserting that they hold a superior eight FE1s and first Irish exam passed. Bedford Place, Navan, Co Meath or e- county registrar at the end of 21 days interest in the premises (or any of Extensive work experience with IT mail: ThomasNoonan@noonan- skills. Tel: 087 904 2256 son.com

Sligo – enthusiastic assistant solici- Mature energetic law clerk wishes to tor required for busy but friendly return to employment in Dublin. legal practice in Sligo town. Mainly Extensive experience in civil litigation, st conveyancing with some other work. criminal proceedings, road traffic 21 Century Excellent salary and working condi- offences and court attendances; tel: 01 tions for suitable applicant. Immediate 837 3194 any time business in start. Please reply with CV to box no Whyth not use this prestigious premises, designed by Thomas Ivory, 76/04 Solicitor with interest in specialis- 18 Centuryfor entertaining clients and staff? ele- ing in taxation required for capital Assistant solicitor required for busy tax department. You will primarily be north Dublin office. Apply with CV to engaged in CAT, CG stamp duty work Patrick W McGonagle & Co at patm- for both personal and corporate tax [email protected] or fax: 01 840 1616 clients. Position commensurate with experience. CVs to Sancha Mulcahy, Experienced family and conveyanc- Deloitte, Earlsfort Terrace, Dublin 2; ing solicitor with ten years’ PQE e-mail: [email protected] seeks a move to a part-time position in the Cork city/county area (commuting Solicitor with commercial and/or distance from Cork city). Please reply financial services experience Exclusive 18th Century venue catering for up to 200 people to box no 80/04 required to be involved in general Centrally located and easily accessible structuring of tax-based projects and Private grounds with extensive car-parking Full catering and bar services available Experienced solicitor required for provision of stamp duty advice. Would commercial and residential conveyanc- suit newly-qualified or solicitor with ing and housing estate to work with one/two years’ PQE. CVs to Sancha Christmas parties young rapidly expanding and dynamic Mulcahy, Deloitte, Earlsfort Terrace, Christmas lunches practice. Excellent salary and prospects Dublin 2; e-mail: [email protected] Annual dinners Retirement parties for right candidate. Apply in writing to BBQs principal. Catherine Allison & Co, Solicitor required for senior position. Family days Solicitors, 15a Margaret Street, Three to five years’ post-qualification Newry, Co Down, BT34 1DE; e-mail: experience preferable. Conveyancing, [email protected]; tel: 00353 42 litigation, family law, probate and gen- CONTACT THE CATERING MANAGER 9320854 eral practice. Reply in strict confidence Tel: 01 672 4800, fax: 01 672 4801 E-mail: [email protected], website: www.lawsociety.ie to Hughes Kehoe & Co, Bridge Street, Full time solicitor required. Must Tullamore, Co Offaly; e-mail: hugh- Law Society of Ireland, Blackhall Place have conveyancing experience. [email protected]

61 Law Society Gazette October 2004 Recruitment

IS YOUR FIRM LOOKING FOR THE BEST LEGAL STAFF? Look no further!

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Talk to Sean O hOisin about your advertising needs on 01 837 5018, 086 811 7116 or e-mail: [email protected].

62 Law Society Gazette October 2004 Recruitment “Before beginning, plan carefully” Marcus Tullius Cicero

Meghen Group is regarded as the leading legal agency in the Irish market. We offer a tailored service, which meets the specific, and often subtle, demands of the legal industry. Our consultants profit from a wealth of experience and have filled a number of high profile positions in recent months. Our client relationships have developed and matured over the years and we are entrusted with a number of positions on a sole agency basis. Meghen Group’s commitment to your job search ensures you have access to decision makers in law firms, confidentiality, effective introductions and control of negotiations.

PRIVATE PRACTICE IN-HOUSE

Commercial Commercial Property Top tier firm is looking for a senior commercial lawyer with strong Global communications company is looking for a commercial M&A transaction experience. Working with an impressive client property lawyer with 0-2years PQE. With strong drafting and base this role will offer excellent career progression for the right negotiating skills this role offers a great lifestyle change and person. 3-5 years’ PQE Ref: CR1290 excellent benefits. 0-2 years’ PQE. Ref: CR1298

Banking and Finance Funds/Hedge Funds Top tier firm requires an experienced solicitor with knowledge A leading investment company is looking for a strong and of syndicated lending and project finance transactions. Ref: successful funds lawyer with significant Hedge Fund knowledge. CR1299 3-5 years’ PQE. Ref: CR1293

Funds Company Secretary Top tier firm requires fund expertise with multi jurisdictional Global leader is looking for a manager to lead its client experience and wide product knowledge. Advising fund promoters relationship team. 5 years experience at a senior level is and knowledge of Irish Investment fund law essential. 4 years’ + required + full ICSA accreditation. Ref: CR1294 PQE. Ref: CR1292 Compliance Commercial Property/Banking Global financial company requires a high academic achiever to Top tier practice is looking for a strong commercial property join its compliance division. You will be looking to work in the solicitor with established bank relationships. You will be used to finance industry and have some knowledge of financial regula- working on high value property deals and be looking to progress tions. 6 mnth – 2 years’ PQE. Ref: CR1285 your career. 3 years’ + PQE. Ref: CR1296

Residential Conveyancing PARTNERS A chance to progress your career in this mid size practice, some development experience required. 3 years’ PQE. Ref: CR1291 With recent success in partner placements we are able to give an informative and discreet consultation for partners considering Technology their future. This prestigious client requires solicitor with experience in software licensing, IP, Data Protection and E-Commerce. 3 years’ + PQE. Ref: CR1297 LONDON

Cork – Commercial Our strong reciprocal relationship with a leading London Legal Reputable practice is looking for an experienced commercial Recruiter ensures we can assist you in your London search. Our solicitor. You will need excellent experience in commercial Dublin consultant has extensive experience from within the transactions, drafting and agreements. 2-3 years’ PQE. Ref: London market and can offer you an informed consultation CR1281 regarding relocation.

View our website for further roles available www.meghengroup.com Your details will not be forwarded to any third party without your prior consent

Contact Clare Reed on T: (01) 433 9022 F: (01) 433 9090 E: [email protected]

97 Lower Baggot Street Dublin 2 T: (01) 433 9000 www.meghengroup.com