LAW SOCIETY
Gazette€3.75 March 2008
WINGING IT: Airlines and passenger rights
INSIDE: HOLY GRAIL OF PARTNERSHIP? • CLOSE GUANTÁNAMO • ELECTRONIC TAGGING • YOUR LETTERS
LAW SOCIETY GAZETTE MARCH 2008 CONTENTS
On the cover LAW SOCIETY Over the last 15 years, air travel has changed beyond all recognition, especially in Ireland. But Irish consumers now comprise 16% of all European complainants Gazette about passenger treatment. So will EU regulations help? March 08
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Volume 102, number 2 Subscriptions: €57 REGULARS 5 President’s message 7 News Comment 13 13 Letters 14 Viewpoint: independent immigration appeals process essential
Analysis 18 18 News feature: reform of Bosnia/Herzegovina’s court procedures 21 News feature: landmark mediation decision: costs 9 impact? 22 Human rights watch: immigration and the rights of the child 22 One to watch: misleading advertising regulations 49 People and places Book review 50 Poynings’ Law and the Making of Law in Ireland, 1660–1800
Briefing 51 51 Council report 52 Practice notes 54 Legislation update: acts passed in 2007 12 57 Solicitors Disciplinary Tribunal 58 Firstlaw update 59 Eurlegal: EU public procurement rules 63 Professional notices 69 Recruitment advertising Editor: Mark McDermott. Deputy editor: Garrett O’Boyle. Designer: Nuala Redmond. Editorial secretaries: Catherine Kearney, Valerie Farrell. For professional notice rates (lost land certificates, wills, title deeds, employment, miscellaneous), see page 63. Commercial advertising: Seán Ó hOisín, 10 Arran Road, Dublin 9; tel: 01 837 5018, fax: 01 884 4626, mobile: 086 811 7116, email: [email protected]. Printing: Turner’s Printing Company Ltd, Longford. Editorial board: Stuart Gilhooly (chairman), Mark McDermott (secretary), Paula Fallon, Michael Kealey, Mary Keane, Aisling Kelly, Patrick J McGonagle, Ken Murphy, 49 Philip Nolan.
2 www.lawsociety.ie CONTENTS LAW SOCIETY GAZETTE MARCH 2008
Get more at lawsociety.ie PROFESSIONAL NOTICES: send your small advert details, with payment, to: Gazette Office, Blackhall Place, Dublin 7, tel: 01 672 4828, or email: [email protected]. Gazette readers can access back issues of the ALL CHEQUES SHOULD BE MADE PAYABLE TO: LAW SOCIETY OF IRELAND. magazine as far back as Jan/Feb 1997, right up to the current issue at lawsociety.ie. COMMERCIAL ADVERTISING: contact Seán Ó hOisín, 10 Arran Road, Dublin 9, tel: 01 837 5018, fax: 884 4626, mobile: 086 811 7116, email: [email protected] You can also check out: • Current news HAVE YOU MOVED? Members of the profession should send change-of-address • Forthcoming events, including the Law Society details to: IT Section, Blackhall Place, Dublin 7, or to: [email protected] annual conference, Budapest, 26–30 March Subscribers to the Gazette should send change-of-address details to: • Employment opportunities Gazette Office, Blackhall Place, Dublin 7, or to: [email protected] • The latest CPD courses HOW TO REACH US: Law Society Gazette, Blackhall Place, Dublin 7. … as well as lots of other useful information Tel: 01 672 4828, fax: 01 672 4877, email: [email protected]
FEATURES COVER STORY: 26 Turbulence ahead Advances have been made over the last few years in the area of air passenger rights, but airlines are accused of exploiting the vagueness of the regulations to minimise their obligations. Andrew Fergus fastens his seatbelt Till death us do part 30 According to an 1868 report, good marriage law should combine a maximum of simplicity and a maximum of certainty. So how does current Irish law measure up? Michael McNamara pops the question Game of tag 34 Electronic monitoring of offenders will be an innovation in Ireland once the relevant provisions are commenced, but Tanya Moeller argues that the impact on the right to privacy has not been sufficiently considered Seen and heard 38 Many practitioners dealing with childcare cases are 34 concerned that the functions and powers of the guardian ad litem are in need of urgent reform. “Won’t somebody please think of the children?” asks Katie Dawson Stop the presses 42 New regulatory structures have added new elements to the institutional mix in which issues involving the print media and the law are discussed. Prof John Horgan explains how the new structures will work Partnership – the Holy Grail? 46 Bringing good people up through the ranks is more important than ever in law firms. But are younger lawyers as set on the goal of partnership as their predecessors? David Rowe hunts for treasure
The Law Society of Ireland can accept no responsibility for the accuracy of contributed articles or statements appearing in this magazine, and any views or opinions expressed are not necessarily those of the Law Society’s Council, save where otherwise indicated. No responsibility for loss or distress occasioned to any person acting or refraining from acting as a result of the material in this publication can be accepted by the authors, contributors, editor or publishers. The editor reserves the right to make publishing decisions on any advertisement or editorial article submitted to this magazine, and to refuse publication or to edit any editorial material as seems appropriate to him. Professional legal advice should always be sought in relation to any specific matter. Published at Blackhall Place, Dublin 7, tel: 01 672 4800, fax: 01 672 4877. Email: [email protected] Law Society website: www.lawsociety.ie 42
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PRESIDENT’S MESSAGE LAW SOCIETY GAZETTE MARCH 2008 Cothrom na féine
his is the time of year when the president gets the opportunity to meet extensively with members throughout the country at bar association meetings T and other events. This feedback is essential. Naturally, we hear of the disappointment and, frankly, anger of colleagues at the actions of the few. There is also dissatisfaction that solicitors rarely get public acknowledgement of the excellent work done by the overwhelming majority to the complete satisfaction of their clients in hundreds of thousands of transactions every year. Bad press for lawyers is nothing new and has been a phenomenon for centuries. We cannot allow it to deflect us from the challenges and opportunities that face the profession at this time. I am delighted, therefore, that the overwhelming mood at meetings of colleagues around the country is positive and progressive and focused clearly on what lies ahead.
Exciting option One such recent meeting was the launch of the East Coast Collaborative Lawyers. This group, Finally, a major international conference on “We cannot comprising solicitors and other professionals, is commercial arbitration is being held in Dublin from allow bad press following the lead of colleagues in Cork and Dublin 8–10 June 2008. The Society is pleased to support in providing collaborative justice options for families this conference, which is being brought to Ireland to deflect us in crisis. While not favoured by all, it nonetheless by our colleagues at the Bar. from the provides a new and exciting option, and I am delighted that solicitor colleagues are taking the Rule of Law Project challenges and lead. I was particularly struck by the fact that It is also refreshing to note that, notwithstanding opportunities reference was made at the launch to the presidential any difficulties we have, there is an understanding message in the last Gazette. I was firmly of the view within the profession that the difficulties that face the that such messages are only read by the author. experienced by many of our colleagues abroad are profession” The launch also featured a very inspiring address much greater. I would particularly like to applaud by Mrs Justice Catherine McGuinness, further the work of the Rule of Law Project initiated by underlining the importance of alternative dispute Michael Irvine and Turlough O’Donnell SC. Any resolution mechanisms. solicitor prepared to become involved and give up 2008 looks like it will be a red-letter year for their time to help lawyers in developing countries alternative dispute resolution. First and foremost, should contact [email protected]. the Law Society will be launching its own arbitration Finally, it is time to start training for the Calcutta and mediation schemes and I would strongly Run, which will be held on 17 May. This is the run’s encourage colleagues to support them. tenth anniversary and the ambition this year is to Secondly, there will be an international break the €2-million ceiling in terms of funds conference on collaborative justice held in Cork generated to date for GOAL’s orphanages in Calcutta from 1–4 May, offering Ireland an opportunity to and the Fr Peter McVerry Trust in Dublin. G showcase the talent that is available here to undertake this work, for which there are both James MacGuill domestic and international opportunities. President
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NEWS LAW SOCIETY GAZETTE MARCH 2008 nationwide
Send your news to: Law Society Gazette, Blackhall Place, Dublin 7, or email: [email protected]
■ KERRY law and the elderly. An upcoming Matthew Breslin, president of seminar on the complexities of Kerry Law Society, tells me that VAT on property transactions is the recent initiative of the planned, as well as a social event President of the High Court to in the coming months. roll out non-jury sittings throughout the country, and to ■ MAYO Kerry in particular, has worked The plight of the Ballina District very well. Kerry practitioners are Court Office continues to be a looking forward to none other matter of concern to practitioners than the Chief Justice himself in the town. Dermot Hewson has and the President of the High been to the fore in raising the Court to preside over further profile of the issue, both with sittings in May. local politicians and other In the meantime, there is interested parties. Circuit Judge some concern about the Madrid: possible venue for Kerry’s annual conference Patrick Moran has also lent his courthouse in Tralee being under support and has written directly threat of closure. Local conference. All these seminars with the Sinatra impressionist to the CEO of the Courts practitioners are very keen to will take place in the courthouse belting out all of the great hits Service, PJ Fitzpatrick, asking hold onto their venerable and will be free to practitioners. and an impromptu seisún until him to reconsider the decision to courthouse. Jarleth McInerney is also dawn. close the District Court Office. A seminar in practice organising a sponsored walk in Pat Mullins advises of a Dermot tells me that there has management and on the Connemara on 19 April in aid of conference on mental health law been great support from the enforceability of prenuptial the Crumlin Children’s Hospital. in UCC in April and, District Court Office staff, the agreements by Marie Baker SC is significantly, the forthcoming gardaí, the press and various planned. Furthermore, Matthew ■ DUBLIN European Collaborative Law court users, who shared concern Breslin is currently putting The March CPD seminars will Conference in Fota in May. also on the issue of the proposed together plans for an annual include ‘Advising elderly and transfer of Charlestown District conference abroad, with Madrid vulnerable clients’ as well as ‘The ■ KILKENNY Court area to the Tubbercurry being the most likely venue. new Charities Bill 2007’ and a Owen O’Mahony, president of area. family law seminar on 13 March the bar association in Kilkenny, is Pat O’Connor advises that the ■ WEST CORK on mediation. very proud of the Marble City’s High Court judges who presided President of the West Cork Bar position as a High Court venue. at the recent non-jury sittings Association Richard Barrett is ■ CORK The magnificent courthouse is were very impressed with the very pleased with the recent By all accounts, the recent SLA just about to undergo an facilities in Castlebar and uptake in CPD seminars. In the dinner was a huge success for Pat overhaul, which will put it out of indicated that they would like to pipeline are seminars on current Mullins and his colleagues, with commission for a couple of years, see more cases there. Two more PIAB developments by over 320 practitioners attending. so that a venue for the sessions will be held early in Clonakilty solicitor Jim Brooks Guests included President of the November sittings of the High 2008. and from the land registry on Law Society James McGuill and Court will need to be found. The digital mapping. Donal Eakin, his counterpart in Circuit Court currently sits in ■ MIDLANDS Northern Ireland. the resplendent surroundings of Charlie Kelly of the Midland Bar ■ GALWAY Of course, the SLA event Kilkenny Castle, in the Parade Association has informed me of James Seymour reports that, in would not be the institution it is Tower, with stunning views of the forthcoming visit of the Law the coming months, CPD without the ‘topical song’, the river and its environs, while Society president and director seminars are planned on the Road presented with style and panache the District Court is located at general, as well as the upcoming Traffic Act 2006, recent by Charlie Hennessy and Kieran the Glebe House on Barrack seminars in early April on BER developments on PIAB, and e- McCarthy, assisted on piano (but, Street. certificates and compulsory regis- stamping online, which will take of course, with no involvement tration and first registration. G place on 7 March. On 11 April, whatsoever in the lyrics!) by Pat ■ WEXFORD the association will hold a Dorgan. I am told that nobody Helen Doyle and her bar ‘Nationwide’ is compiled by Kevin practice management seminar was left unscathed and the association colleagues held a O’Higgins, principal of the Dublin and, on 9 May, a family law general entertainment rolled on recent well-attended seminar on law firm Kevin O’Higgins.
www.lawsociety.ie 7 LAW SOCIETY GAZETTE MARCH 2008 NEWS Litigation Committee discusses issues with Courts Service itigation Committee unnamed respondents at this PIAB authorisation. This had Lchairman Stuart Gilhooly point in time (but leaving it been occurring and was very recently met with officials from open that they may be joined in frustrating for practitioners. both the High Court and the the future). Clearly, substantial errors will Circuit Court at separate The Litigation Committee is be treated differently. meetings to discuss matters of of the view that this letter is The chairman subsequently mutual concern. entirely superfluous, but follow- met with representatives of the At a meeting with High ing a full and frank discussion, Circuit Court. He made Court officials, Nuala the High Court is of the firm representations about the McLoughlin and Paula Healy, a view that it is required for self- notification of dates for trial, number of issues were protection purposes. It, there- callovers and the frequency of canvassed. The most pressing fore, will be necessary to provide lists in areas outside Dublin. matter was the requirement for such a letter in all such instances. The Circuit Court has agreed a letter from practitioners in On a more positive note, it that, where cases are added to personal injury cases where was agreed that affidavits of the list after it appears on the Litigation Committee chairman more than one respondent is verification in such cases could Stuart Gilhooly website, parties will be notified included on the authorisation be endorsed on the original individually by email, phone or and not all respondents are personal injuries summons and On a similar note, the High post. In addition, they have named as defendants. The lodged simultaneously, so long Court has agreed that personal agreed that there will be a Central Office requires a letter as the contents of the affidavit injuries summonses will not be prioritisation this year for confirming that the plaintiff is were consistent with this refused because of a minor family-law cases in most venues, not proceeding against the practice. typographical error on the with more court time provided. Committee invites law reform submissions ave you come across improving the law and how it is The committee has already Child Law (March 2006). The Haspects of current law in practised – with great success. produced major reports that full text of all committee day-to-day practice that you The committee has tackled a have identified reforms, such as reports are available online at believe are in need of reform, large range of issues with a view Domestic Violence (May 1999), www.lawsociety.ie. asks Peter Fahy, chairman of the to improving the law for both Mental Health (July 1999), The committee has just Law Reform Committee. practitioners and clients. Its Nullity of Marriage (October completed a new report, Following the establishment work is generally focused on 2001), Adoption (April 2000), Enforcement of Environmental of the Law Reform Committee writing substantive reports on Charity Law (July 2002), Law, which will be published ten years ago, the Law Society areas of law of specific interest Discriminatory Planning shortly, and has also begun a was able to channel energy into to practitioners. Conditions (March 2005), and report on divorce law. The committee is always seeking out new areas for Rule of Law Project gets ‘green light’ examination. With that in mind, it is inviting practitioners n 2007, it was decided that the Law Society and being formulated. When prepared, these will be to submit to it areas of current Ithe Bar Council should jointly undertake to brought to the joint committee for approval. Irish law that might be enhance the rule of law in countries in transition. Once approved, proposals will then be placed considered in need of reform. A joint committee of the two organisations – before Irish Aid to seek appropriate funding. Please submit your consisting of seven people, including the president Any solicitor or barrister may make a suggestions to: Secretary, Law and chairman (for the time being) of the Law proposal, and every solicitor or barrister is Reform Committee, Law Society and the Bar Council respectively – was welcome to join the initiative. Many solicitors Society of Ireland, Blackhall formed. The committee is chaired by Attorney- and barristers have already undertaken work in Place, Dublin 7; or by email to: General Paul Gallagher. overseas aid. The level of interest in the [email protected]. Your Approaches have been made to Irish Aid to professions has been very high, which is most submission should include a ascertain their support for this initiative. A heartening. Anybody who is interested in short summary of the area of positive response has been obtained. Proposals becoming involved should contact: law in need of reform and the on programmes in various countries are now [email protected] for more information. reasons why you believe reform is necessary or desirable.
8 www.lawsociety.ie NEWS LAW SOCIETY GAZETTE MARCH 2008 Time to close Guantánamo’s doors he Law Society of Ireland, grievous affronts to the rule of Tthe Law Society of England law. Yet many governments and Wales, the Canadian Bar remain silent about Association and the Paris Bar Guantánamo Bay. have joined forces in drafting a “We do not deny that some letter calling for Guantánamo of those detained at Bay to be closed. The four Guantánamo may have professional bodies have also committed criminal acts. If so, called for a 21-year-old they should be tried by a Canadian citizen, Omar Khadr, properly constituted court to be repatriated to Canada to operating under rules that face due process under guarantee a fair trial. If Canadian law. Mr Khadr was convicted, they should be aged 15 when he was arrested punished accordingly. But we and is the last Westerner being must not tolerate – nor permit detained in Guantánamo Bay. our respective governments to The letter is being sent to Guantánamo Bay: ‘Staining the concept of justice’ tolerate – the continuing denial President George Bush (who has of the principles underlying the the authority to close profound disrespect for the rule commission solely on the basis rule of law. We have seen the Guantánamo), to Canadian of law,” it states. “Guantánamo of their status as aliens. In result recently in Pakistan of Prime Minister Harper (who can Bay has come to signify effect, US citizens are not continuing further down this negotiate repatriation) and to the injustice for some at the hands subject to its provisions. The road…” leaders of the countries of the of the powerful. The rule of law act criminalises certain conduct The letter concludes: “This respective professional bodies, – that everyone, including for the first time and applies the is no time to be silent. It is time with the hope that such leaders governments, is subject to the law retroactively. It fails to meet for us all, including will try to bring influence to bear law, and that the law itself is the requirements of the Geneva governments, to bring whatever on the US and Canada. neutral and fair – has become Convention Relative to the pressure we can to end the an inconvenient afterthought.” Treatment of Prisoners of War. It inhuman and inhumane ‘Immediate closure’ The combined statement also permits military commissions to treatment of the Guantánamo The letter calls for “the decries the US Military consider coerced statements. It detainees, and the violations of immediate closure of the illegal Commissions Act of 2006, the denies defence counsel access to the principles of the rule of law US prison facility at authority under which the evidence that may be essential there that have stained the Guantánamo Bay”. detainees are held and tried, to a proper defence on the basis concept of justice. Six years “Few governmental saying that it undermines the of national security. after it opened, it is time to operations in democratic rule of law. “The act subjects “Together, these measures, close the doors of countries have shown such a individuals to trial by military and many more, constitute Guantánamo.”
Bar Council to iron out potential All change at the Registry of Deeds fee estimate difficulties nder the provisions of the s some practitioners may representatives of the Law this issue from a solicitor’s URegistration of Deeds and Abe aware from recent press Society and the Bar Council, perspective and, in addition, Title Act 2006, the Property reports, the Bar Council has the new proposals were are reminded of the Registration Authority (PRA) recently issued a ruling to all discussed at length. It was requirement to ensure the was established on 4 members of the Law Library agreed that a number of accuracy of counsel’s fees. In November 2006. requiring the provision of fee practical issues remained to be particular, all practitioners will From 18 March 2008, all estimates in relation to all work determined and that the Bar be aware that counsel must be fees will have to be paid at done, with limited exceptions. Council would engage actually present at a court the Registry of Deeds. The The ruling came into effect on constructively with a small hearing in order to have Revenue Commissioners’ 1 March 2008. From that date, subcommittee of the Law entitlement to a refresher fee. stamp-duty offices in Dublin all barristers will be required to Society in order to iron out any It is the obligation of the Castle and Cork will no longer provide an estimate of their potential difficulties that may solicitor, as well the barrister, stamp the Registry of Deeds fees for any case or transaction arise with this new regime. to ensure that all fee notes registration fee on memorials as soon as practicable. Practitioners will submitted are accurate in this (see practice note, p52). At a recent meeting between understand the importance of respect.
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NEWS LAW SOCIETY GAZETTE MARCH 2008 Immigration Bill concerns PIAB appeal nnecessary and Ken Murphy said: “Such a postponed “Uunjustified” is the provision already exists in he Personal Injuries Law Society’s description of a the rules of court. Its TAssessment Board’s appeal provision in a recently inclusion here is to the Supreme Court against published bill that specifically unnecessary and unjustified. a January 2005 judgment of provides for courts to award It seems designed to Mr Justice John MacMenamin costs against lawyers discourage vulnerable was due to commence on 26 personally if their clients’ people from fully exercising February. However, because judicial review cases are their right to the protection there were not sufficient found “frivolous or of the law.” members of the court available vexatious”. He continued, “Standing to hear the case on that date, The Immigrant Council of up for the rights of vuln- the hearing was postponed. Ireland has also criticised this erable people, particularly The appeal relates to the provision, describing it as where this may be High Court’s finding that “intimidatory”. unpopular, is in the best PIAB’s policy of insisting, The provision is contained traditions of the legal regardless of the applicant’s in the Immigration, Residence Ken Murphy: ‘The legal profession.” wishes, on corresponding and Protection Bill 2008, which profession stands up for the The Society has directly with the applicant rights of vulnerable people…’ was published by the communicated directly to while copying the government at the end of the Minister for Justice, its correspondence to the January. extensively in the media on concerns over this issue and applicant’s solicitor was ultra Law Society criticisms of the day after the bill’s its view that the provision vires and, although it was not this provision were quoted publication. Director general should be withdrawn. necessary to make a finding in this regard, might well represent a breach of the GOOD COMPANY Solicitor sits on applicant’s constitutional rights. Commercial law firm, O’Donnell The original judicial review Sweeney Eversheds, has been Supreme Court proceedings were commenced selected as one of the ‘Best by an applicant to PIAB Companies to Work For in he first practising solicitor named Declan O’Brien. The Ireland’. The prestigious hon- Tever to be appointed a Law Society was joined as an our was announced on 28 judge of the High Court, Mr amicus curiae in the High February by the Minister for Justice Michael Peart, sat for Court and has been so joined, Enterprise, Trade and the first time on the Supreme once again, in the appeal to Employment, Micheál Martin, Court recently. A shortage of the Supreme Court. TD, prior to an awards ceremo- available Supreme Court ny in the Crowne Plaza Airport judges resulted in his being Hotel, Dublin. The list of 50 chosen from among the 36 RETIREMENT TRUST SCHEME companies is selected annually High Court judges to sit with Unit prices: 1 February 2008 by the Great Place to Work Mr Justice Fennelly and Ms Managed fund: €5.466724 Institute from more than 4,000 Justice Macken to hear a case Cash fund: €2.809394 eligible organisations in the on 27 February. to be appointed a judge of the Long-bond fund: €1.398473 country. But the question remains – Supreme Court? And when All-equity fund: €1.271143 who will be the first solicitor will that be?
The essentials of team work SBA AGM he date for the 2nd lawyers. The primary TEuropean Collaborative training sessions will include otice is hereby given that the 144th Annual General Meeting of the Practice Conference, at Fota one-hour talks with two NSolicitors’ Benevolent Association will be held at the Law Society, Island, Cork, titled ‘Meitheal’, hours of training and role Blackhall Place, Dublin 7, on Monday 21 April 2008 at 12.30pm: is looming. play each day. • To consider the annual reports and accounts for the year ended Conference participants Day two’s plenary session 30 November 2007, will have the opportunity to will focus on children in the • To elect directors, hear from some of world’s divorce process. See • To deal with other matters appropriate to a general meeting. most renowned collaborative www.acp.ie for more details.
www.lawsociety.ie 11 LAW SOCIETY GAZETTE MARCH 2008 NEWS
HEALTH ADVICE AND SUPPORT FOR LAWYERS DON’T BE A DEATHBED CONVERT We begin the first of a series of articles about LawCare and the health services it provides to lawyers, their staff and families in Ireland
n 2003, the North Carolina Bar PIC: REX FEATURES studied the death claims from IAssociation published a 1 December 1994 to 30 lifestyle survey based on November 1996. These records research conducted among its revealed that suicide was the members. It makes interesting third leading cause of death reading, not least because what among insured lawyers during the survey establishes is likely this two-year period, ranking to be mirrored elsewhere immediately after cancer and throughout the world. cardiac arrest. It amounted to Some of the most thought 11% of deaths that had occurred. provoking statistics included: In the general population in • 56% of lawyers, when Canada and the USA, the rate questioned, said that they of suicide is in the range of ten would not enter law if they to 14 suicide deaths per had their life over again, nor 100,000 of population. The would they encourage their suicide deaths identified by this children to do so, report into lawyer deaths • 16% of them were having worked out at 69 suicide deaths three to five alcoholic drinks a per 100,000 of the population – day in order to cope with the developing and maintaining the physical or psychological setback nearly six times the rate in the stress in their lives, firm, coupled with only taking before we will actually start to general population. The group • 16.8% of lawyers were using one-third of the available holiday put ourselves and our health and identified as ‘most at risk’ prescription medicine to cope time. End result? Deep well-being first? included ‘lawyers and judges’ with their levels of stress and unhappiness, coupled with Sceptics, no doubt, think to aged 48 to 65. anxiety, physical and mental strain or themselves that agencies like • 15% of lawyers were collapse, leading to a need for LawCare exaggerate the Reason for concern considering suicide up to pastoral care and assistance. incidence of stress/depression, In 1999, research carried out by twice a month, Senator Paul Tsongas of alcohol abuse, suicide and so Johns Hopkins University found • 36% were taking on more Massachusetts once famously on, for the purposes of justifying statistically significant elevations work than they could handle. said: “Nobody on his deathbed its existence. In fact, this is far of major depressive disorders in ever said, ‘I wish I had spent from being the case. For only three of 104 occupations – It is worth noting that, of lawyers more time at the office’.” example, in 1997 a report was lawyers topped the list, suffering who sought assistance, the Doesn’t that say it all about published, based on two years of from major depressive illnesses average billable hours that they the work/life balance we should statistics from the Canadian Bar at a rate of almost four times were expected to complete in a all be striving to achieve, but so Insurance Association – one of higher than non-lawyers sharing year was 1,800, with a further frequently fail to attain? Do we the largest life insurers of the same socio-demographic 258 hours a year of non-billable have to suffer some major lawyers in the world. This report traits. work, for example, marketing, So you can see the reasons administration, business for our concern for those in the development, and client care – ABOUT LAWCARE various areas of legal practice. no wonder they were showing LawCare is an advisory and support service to help They are genuine, well founded signs of cracking! The lawyers solicitors, their staff and their immediate families to deal and not hysterical. Many lawyers who were in the highest need of with health problems such as depression and addiction, and need our help but do not assistance also took only two related emotional difficulties. The service is free and necessarily know where to turn. weeks of holidays a year out of entirely confidential. Please stay alert for any such the 6.4 weeks they were allowed For totally confidential, non-judgemental help, ring freephone lawyers among those with whom to take. you are acquainted – the 1800 991 801 statistics indicate that there is Very clear picture (9am – 7.30pm weekdays and 10am – 4pm likely to be at least one you So, a very clear picture develops at weekends/bank holidays, 365 days a year. know who could benefit from – long hours of chargeable work, Web: www.lawcare.ie being put in touch with LawCare. added to many hours of non- Email: [email protected] We are here for you, 365 days a chargeable work devoted to year.
12 www.lawsociety.ie COMMENT LAW SOCIETY GAZETTE MARCH 2008 letters
Send your letters to: Law Society Gazette, Blackhall Place, Dublin 7, or email: [email protected] ‘Good Samaritan’ lawyers help bring home baby Misikir From: Therese O’Loughlin, Teach I cradled my children as they they were prepared to take the Mhuire, Cleveragh Road, Sligo sobbed in my arms for their baby case for no fees. Could this be ast October, my husband sister. We had all our legal happening to me – someone Land I and our two young papers and we had been guided showing me the hand of kindness children were about to embark on by the Adoption Board in my darkest hour? an adoption journey to Ethiopia, throughout the whole process – The rest is history. We went to bring home their new six- they never led us to believe that to the High Court, where Judge month-old baby sister. The we might have a problem. We Sheehan said I was legally children were busy preparing knew that the orphanage could entitled to adopt and, within two their rooms and making cards, not hold her indefinitely for us. I weeks, I was in Ethiopia. and their bedtime stories were full felt so helpless. We had invested We are now home with our of talk about the arrival of their so much emotionally and beautiful daughter Misikir. Every sister. The children and I spent physically into this adoption and time I look at her sleeping face I days buying little pink clothes and I had put my children through Peter Finlay SC, who in turn think of those tears I cried for shoes, cleaning cots and buggy vaccines. How could I explain to contacted Daniel Simms (junior her, those days when I thought and preparing our home for the them that their baby sister counsel) and, together, they I’d never get to hold her. arrival of this little Ethiopian wouldn’t be coming home? agreed to take our case for Regularly when I recount the ‘princess’. We were only days I decided to ring a solicitor I minimum fees. However, when story to a friend in front of the away from travelling to meet her had found on the web and who we realised the financial diffi- children, they always pipe up: when news broke from the specialises in adoption – Andrew culties involved – particularly if “Three kind men in Dublin Adoption Board that they had Healy (Beatty & Healy our case failed – we decided not helped mammy bring our baby suspended adoptions from Solicitors) – and I outlined our to proceed. Failure would have sister home.” Ethiopia and that they were case for him. As this stage, the put our family’s entire financial I can now live my life in peace advising people not to travel until orphanage had said that they future in jeopardy. This was a and happiness with my children further notice. As you can would hold our daughter for two soul-destroying moment for me. and husband, thanks to Andrew, imagine, we were heartbroken. more weeks. I forwarded Andrew I replied by email to Andrew Peter and Daniel. They will We pleaded with the Adoption our papers and he replied explaining our decision and the never know the extent of their Board, telling them we had a promptly, telling us that we reasons for it. Within ten kindness. I wish the whole world referral and were days away from would need to get a judicial minutes, the phone rang. It was to know how these kind, travelling, but they weren’t in a review in the High Court. Andrew, saying he had spoken considerate men helped me and position to lift the suspension. Andrew made contact with with Peter and Daniel, and that my family in our hour of need. Press Ombudsman changes appeals timeline From: Professor John Horgan, Press of that decision within which to complainant or by an editor, will all steps of the process, including Ombudsman, Dublin 2 lodge an appeal. This timeline is henceforth be two weeks from any appeal, have been have been reviewing our stated in our original brochure. the date on which the Press completed. There is a simple Iprocedures in the light of the However, given that meetings Ombudsman’s decision has been reason for this, and it is that experience of the first couple of of the Press Council, where all issued. This should help to failure to observe confidentiality, months’ activity and would like appeals are initially discussed, expedite matters and should not particularly where an appeal to notify you of a change that take place only once a month, present any great difficulty, given process has been invoked but not should help to expedite matters this timeline would involve quite that much of the ground will yet completed, could be seriously generally, without affecting the inordinate delays, to the point have been covered already as unfair to an editor, a overall efficiency of our where our desire to provide part of the conciliation process. complainant, or both. procedures. everyone with a speedy This is the same deadline that That said, I would like to As originally envisaged, resolution to complaints would applies to editors’ responses to express my thanks to all for the complainants or editors who be quite frustrated. individual complaints. high degree of cooperation we in wanted to appeal a decision by In the circumstances, the I would also like to reiterate this office have experienced from the Press Ombudsman were to period within which an appeal the importance of confidentiality all concerned since we began our be given six weeks from the date can be lodged, either by a in relation to any complaint until formal operations on 2 January. G
www.lawsociety.ie 13 LAW SOCIETY GAZETTE MARCH 2008 COMMENT
Impartial immigration appeal The government may find itself in breach of the ECHR and the Constitution if it fails to live up to its commitment to provide a visibly independent appeals process for immigrants, writes Hilkka Becker
n the Programme for IGovernment published in June 2007, the government stated that “a fair and strategic immigration policy is an imperative to the sustaining of a strong economy” and specifically welcomed “legal immigrants who come here to work to support Ireland’s development”, promising to “help them to become full and active participants in Irish life”. As a step towards this, it undertook to ensure a “visibly independent appeals process”. The establishment of an independent appeals mechanism to deal with immigration decisions is the only way to ensure access to an effective remedy for migrants seeking to challenge decisions affecting their human rights as protected under the ECHR, in particular articles 3 (prohibition of torture) and 8 (right to family life). The European Court of Human Rights, Strasbourg Currently, people seeking to challenge decisions refusing regarding time limits apply. In notice to the other party and the merits of a case and cannot permission to remain in the other words, the Minister for within a strict time limit of 14 deal with questions of fact. state or permission to enter the Justice does not need to be days from the date on which Unlike an expert administrative state – for example, for the informed in advance of the the person concerned was tribunal, the High Court does purpose of family reunification making of the application and notified of the relevant not have the power to alter or or the preservation of the the application can be made decision. vary an administrative decision. family unit – are effectively within three months, In Chahal v UK ([1997] 23 forced to seek judicial review exceptionally six months, from Effective remedy? EHRR 413), the European of that decision by the High the date of the decision to be It is of grave concern to those Court of Human Rights Court instead of accessing a challenged. However, this is set seeking to defend the human observed that “article 13 [of the more efficient and cost- to change with the coming into rights of migrants and members ECHR] guarantees the effective immigration appeals force of new immigration of their families that already, availability at national level of a tribunal. legislation introduced in even where an application may remedy to enforce the Applications for judicial January. If the provisions of the be made ex parte and within substance of the convention review that do not fall within Immigration, Residency and extended time limits, access to rights and freedoms in the remit of section 5 of the Protection Bill 2008 become law, justice for migrants is limited, whatever form they might Illegal Immigrants (Trafficking) all decisions taken under the in that the High Court, as part happen to be secured in the Act 2000 can currently be made forthcoming legislation will of judicial review proceedings, domestic legal order”. ex parte and the normal rules have to be challenged on is not in a position to review According to the court, “the
14 www.lawsociety.ie COMMENT LAW SOCIETY GAZETTE MARCH 2008 viewpoint process essential effect of this article is thus to exist substantial grounds for an unduly short limitation obligations or of a criminal require the provision of a fearing a real risk of treatment period can, in certain charge against him, within the domestic remedy allowing the contrary to article 3. This circumstances, give rise to a meaning of article 6(1) of the competent national authority scrutiny must be carried out violation of article 6, which convention”. both to deal with the substance without regard to what the provides that everyone is More recently, however, in of the relevant convention person may have done to entitled to a fair and public Juristic and Collegium Mehrerau complaint and to grant warrant expulsion or to any hearing, within a reasonable v Austria (2006), a case brought appropriate relief”. perceived threat to the national time, by an independent and jointly by an applicant for an The court made reference to security of the expelling state.” impartial tribunal established employment permit and his the cases of Klass and Others v Considering the above, cases by law. prospective employer, Germany ([1979-80] 2 EHRR regarding the right to family This is particularly relevant challenging – among other 214) and Leander v Sweden life as guaranteed by article 8 of in the context of the new things – the fact that there had ([1987] 9 EHRR 433), in which the ECHR, the right to immigration bill, which, as been no oral hearing before the it had held that article 13 only freedom of expression outlined above, is set to administrative court against the required a remedy that was “as protected by article 10, and provide that everyone who refusal of the permit, the court effective as can be” in other rights under the seeks to challenge a decision concluded that “article 6 of the circumstances where national convention may not currently made pursuant to the new convention applies to the security considerations did not be adequately dealt with by way legislation will have to do so in proceedings concerning the permit the divulging of certain of judicial review in the High the High Court by way of second applicant’s request for sensitive information. Court, at least where national judicial review, on notice to the an employment permit”. The However, it distinguished these security considerations are not other party and within a strict court confirmed that “article cases from the case at hand, an issue limiting the exposure time limit of 14 days from the 6(1) embodies the ‘right to a stating that “it must be borne of detailed information date of the relevant decision. court’, of which the right of in mind that these cases regarding a case and the In Stubbings v UK ([1997] 23 access, that is, the right to concerned complaints under relevant government’s EHRR 213), the ECtHR held institute proceedings before a articles 8 and 10 of the considerations regarding the that, in order to be in court in civil matters, convention and that their matter. accordance with article 6(1) of constitutes one aspect”. It went examination required the court It is also clear from the case the ECHR, the limitations on to hold that “while this to have regard to the national law of the European court that applied must not “restrict or right may be subject to security claims which had been the independent scrutiny of reduce the access left to the limitations, it must be satisfied advanced by the government”. claims required by article 13 of individual in such a way or to that the limitations applied do In relation to Mr Chahal, the the ECHR does not need to be such an extent that the very not restrict or reduce the court held that “the provided by a judicial authority essence of the right is access left to the individual in requirement of a remedy which and, in that regard, the impaired”. such a way or to such an extent is ‘as effective as can be’ is not establishment of an It is questionable whether that the very essence of the appropriate in respect of a independent Immigration the protection of article 6(1) of right is impaired. Furthermore, complaint that a person’s Appeals Tribunal, as we have the ECHR does extend to a limitation will not be deportation will expose him or seen in Britain, may well be the immigration decisions. Despite compatible with article 6(1) if her to a real risk of treatment most appropriate way of the fact that a decision to it does not pursue a legitimate in breach of article 3, where securing the protection of deport a person can certainly aim and if there is not a the issues concerning national migrants’ rights in Ireland lead to a violation of rights reasonable relationship of security are immaterial”. while at the same time avoiding protected under the proportionality between the According to the court in unnecessary litigation in the convention, the court has means employed and the aim Chahal, “given the irreversible High Court, as well as cases consistently rejected such sought to be achieved”. nature of the harm that might going to the European court. applications as inadmissible. In While it remains to be seen occur if the risk of ill- Maaouia v France ([2001] 33 whether there will be a shift in treatment materialised and the Time limits EHRR 1037), the court the court’s assessment of the importance the court attaches While the ECtHR has concluded that “decisions applicability of article 6(1), to article 3, the notion of an accepted that judicial review regarding the entry, stay and even with regard to decisions effective remedy under article can constitute an effective deportation of aliens do not affecting family life as 13 requires independent remedy for the purposes of concern the determination of protected under article 8, it can scrutiny of the claim that there article 13, it has also held that an applicant’s civil rights or certainly be argued that the
www.lawsociety.ie 15
COMMENT LAW SOCIETY GAZETTE MARCH 2008
words “civil rights and frivolous or vexatious” (section of the ECHR. Provisions similar to those obligations” in article 6(1) 118(7)). The proposed provision proposed in section 118(7) and should be given the broadest This will further limit the goes beyond what is already in (8) of the Immigration, Residence possible meaning, which, in access of migrants and their the Rules of the Superior Courts. and Protection Bill 2008 do not accordance with their context family members to effective Order 99, rule 7, allows for the apply in any other context and and in the light of the object judicial remedies. It is hoped making of wasted costs orders, may act as a deterrent to legal and purpose of the convention, this provision, if enacted, and these apply to both sides representatives, particularly should extend to all legal rights would only be applied to cases and are clearly designed to where they only have 14 days and obligations of the that had no merit whatsoever, prevent solicitors breaching or less to consider the merits individual whether vis à vis such that they should not have their duty to the court. In the of a case. other individuals or vis à vis been brought before the court. words of Finnegan J in Kennedy The provision of access to the state. However, in a situation where v Killeen, “the power of the effective remedies regarding the same provision will not court to make an order under immigration decisions remains Costs against legal apply to respondents’ order 99, rule 7, whether as to a challenge, and the advisors solicitors, even if they had costs as between the solicitor government may well prove to The Immigration Bill sought to defend a decision and his own client or an order be in breach of provisions of introduces the possibility of the taken pursuant to the that the solicitor personally the ECHR as well as the High Court awarding costs legislation on similarly bear the costs awarded against Constitution by not living up against legal representatives in frivolous or vexatious his own client, depends upon to its own commitment to cases where the court forms grounds, this provision seems the solicitor being guilty of provide a “visibly independent the opinion that “the grounds in breach of basic judicial misconduct in the sense of a appeals process”. G put forward for contending fairness guaranteed by article breach of his duty to the court that an act, decision or 40.1 of the Constitution and or at least of gross negligence Hilkka Becker is senior solicitor determination … is invalid or the guarantee of equality of in relation to his duty to the with the Immigrant Council of ought to be quashed are arms as protected by article 6 court”. Ireland.
www.lawsociety.ie 17 LAW SOCIETY GAZETTE MARCH 2008 ANALYSIS Irish lawyers share knowledge Bosnia and Herzegovina is getting hands-on assistance from Irish lawyers to update court procedures. Insider Lynn Sheehan reports on progress
n May 2007, Irish Aid agreed PIC: BORIS SERTIC, HJPC Brako), 16 second-instance Ito fund a project in Bosnia courts (ten in the Federation of and Herzegovina (BiH) under BiH, five in Republika Srpska, the sponsorship of the country’s and one in Brako) together with High Judicial and Prosecutorial a Supreme Court in each of the Council (HJPC). The aim was entities. to assist an already established The standardised Book of working group, comprising Rules will mean that each of local experts, with drafting a these courts will apply the same Book of Rules on Internal Court practices and policies in terms Operations. A team of Irish of a range of issues, including: lawyers (Judge Gerard Griffin, • Registration, numbering, Law Society past president assigning and processing Michael Irvine and Joe McArdle cases, together with BL) travelled to BiH on a guidelines for dealing with number of occasions to case backlogs, participate in the working • Use of information and group sessions. communications technology The Council of the HJPC in session, with President of the HJPC Branko The draft Book of Rules was Peric presiding. Mr Peric is a judge of the Court of Bosnia and Herzegovina. by the courts, including completed in December 2007 Also present is international member of the HJPC, Sven Marius Urke (left) internal policies on the use of and was distributed to all courts email, data storage and in BiH in January for input and Probably the most important will also mean that it is easier internet access, comments on the draft initiative undertaken in this for the HJPC to monitor court • Personnel records of court provisions. It will be presented regard was the establishment of efficiency throughout BiH. The staff, including performance to the HJPC for adoption in the HJPC at state level. assistance of the Irish experts evaluations and attendance March, and it is anticipated that Since the conflict of and the Law Society of Ireland records, it will be in use by the summer. 1992–1995, BiH has been has been invaluable in this • Terms of reference for key divided into two entities, the regard, as it has allowed administrative staff in the Efficient and effective Federation of BiH (principally principles of European and courts, such as, for example, The project was warmly populated by Bosnian Muslims international best practice to be the court secretary, who is welcomed and received in BiH. and Croats) and the Republika reflected in the final draft of the essentially the manager of In terms of the judicial reform Srpska (principally populated by Book of Rules. the court, and process, the time had come for Serbs). In order to establish the • Organisation and the introduction of a book of HJPC, each of the entities had Standardised content management of court rules for courts, which would to transfer competences to the The Book of Rules currently in departments. mean that all courts would be state level of BiH, competences existence in BiH dates back to forced to adopt standardised that politicians have since the 1970s. Each of the courts Irish visit practices in terms of their sought to reclaim. Such across the country has adapted From 2–7 December 2007, a operation. attempts have been severely this Book of Rules to its own delegation from BiH visited In order to establish a fully- criticised by the international requirements, so that there are Ireland in order to gain an functioning judiciary in any community. a variety of versions in use insight into the Irish legal country, it is essential that the Notwithstanding this, the throughout the court system in system and how it operates in courts are independent and time has come for attention to BiH. practice. The delegation accountable prior to the the establishment of an efficient BiH’s court system is quite comprised two first instance introduction of initiatives that and effective court system for complicated, and the variety of judges, a representative of one have the aim of making the BiH. The Irish assistance with versions of the rules in use of the entity ministries of judicial system more efficient the drafting of the Book of Rules further adds to that complexity. justice, a representative of the and effective. will ensure that standardised Currently, there are 48 first- HJPC and the author (an Over the last five years, much court operations are introduced instance courts in BiH (28 in international member of the has been done to make the across the country. This will the Federation of BiH, 19 in HJPC). courts in BiH more make it easier for the court Republika Sprska, and one in The delegation spent the independent and accountable. system to run efficiently, but the independent District of first three days of their visit in
18 www.lawsociety.ie ANALYSIS LAW SOCIETY GAZETTE MARCH 2008 with Bosnia and Herzegovina
Dublin and visited the was rounded off by a visit to meeting the conditions for welcome initiative in terms of Attorney General’s office, the the Circuit Court Office and signing a stabilisation and the provision of similar DPP’s office, the Law Society by sitting in on a case at association agreement in the assistance to other countries in and the Distillery Building of hearing. first half of 2008. Slovenia the future. the Law Library. In addition, currently holds the EU Within such a framework, it the delegation visited the Law Main priority presidency and it will give is hoped that focused advice Reform Commission, the On 21 January, the current particular attention to the and assistance can be given to Courts Service, the Four High Representative to BiH Western Balkans and their countries that are currently Courts and the Glencree met Javier Solana, EU High integration into the EU. tackling issues in the context of Reconciliation Centre. At the Representative for the Projects such as that the establishment of Four Courts, the delegation Common Foreign and Security financed by Irish Aid last year independent and credible legal met with Mr Justice Iarflaith Policy, in Brussels and stressed assist in preparing BiH for EU systems and structures. G O’Neill, Judge Petria that the main priority for this membership. They also assist McDonnell, Judge Gerard year was the country’s EU with the building of Lynn Sheehan, solicitor, was Griffin and Judge Desmond agenda. Earlier in the month, relationships between Ireland appointed as an international Hogan. The delegation spent the High Representative had and the Western Balkans. The member of the High Judicial and the fourth day viewing the informal discussions with joint committee established by Prosecutorial Council of Bosnia newly-renovated court building representatives from EU the Law Society and the Bar and Herzegovina from 2006- in Cork and also met with member states in Slovenia and Council (see p8) is an 2007. She currently works at the Judge Patrick Moran. The day outlined the prospects for extremely important step and a Law Society’s law school in Cork.
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www.lawsociety.ie 19
ANALYSIS LAW SOCIETY GAZETTE MARCH 2008 Landmark mediation decision will impact on costs Mediation before a court action can assist in settlements and is now being encouraged by the courts, writes Gavan Carty
n a recent medical negligence PIC: REX FEATURES balance would be struck if the Icase, Mr Justice Kevin Feeney burden were placed on the directed that the plaintiff and proposing party to show that defendant should engage in there was a reasonable prospect mediation before the trial of the that the mediation would have action due before the court. been successful. This significant judgment was Mr Justice Feeney considered issued in the case of Carmel the arguments in Halsey, but McManus v Liam Duffy and directed that, in this involved a willing plaintiff and jurisdiction, whether mediation an unwilling defendant in an had a reasonable prospect of application for a mediation success should be interpreted as conference. meaning whether the mediation The judge noted that there was likely to “assist”. was no case guidance on section 15 of the Civil Liability and that mediation would result in arguments. Moreover, Implications for costs Courts Act 2004 in this settlement. The particular mediation might reveal It remains to be seen how the jurisdiction. He noted that it interpretation of the word potential strengths and courts will interpret the was an important section and “assist” was important, in that weaknesses of the parties. provisions of section 16(3) of that, where one party did not mediation could determine if the 2004 act. This section wish to mediate, a court could one side’s argument was weak. England’s experience provides that, at the conclusion exercise its power to compel a The word “assist” is a wide Counsel for the plaintiff invited of a personal injuries action, a mediation conference following term, and Mr Justice Feeney the court to consider two court may, having heard an application by either party. was of the view that there was English cases, namely Halsey submissions, make an order considerable merit in taking an and Dunnet v Rail Track Plc directing that if a party failed to Assisting settlement open view on the matter. ([2002] 2AER850). comply with the direction Section 15 of the 2004 act The judge considered the Various aspects of these under section 15(1) to attend a provides that, on request of any appropriate authorities in the cases, as they related to the mediation conference, that party to a personal injuries British jurisdiction and, in McManus case, were considered, party should pay the costs of action, a court may at any time particular, the decision of the including the nature of the the action, or such part of the before the trial of the action Court of Appeal in the medical dispute, the merits of the case, costs of the action that the direct that the parties meet and negligence case Halsey v Milton whether other settlement court directs should be incurred attend a mediation conference Keynes General, NHS Trust methods had been attempted, after giving the direction under if it considers that the holding ([2004] 1 WLR 3002). and the cost of mediation section 15. of a meeting would “assist” in The judge had to decide related to the likely costs of the The issue of costs may not be reaching a settlement. whether the parties were truly action itself, delays in seeking a major factor in low monetary, The court also considered unwilling parties. It was his mediation and the likely success run-of-the-mill cases. However, the language used in section 16 view that they were not in this of the mediation. in significant High Court cases of the act and noted that case, and the fact that the In Halsey, the Court of involving personal injuries or “assist” was different from defendant felt that mediation Appeal held that the burden to medical negligence, a plaintiff “likely” and implied that there was unlikely to succeed did not satisfy the court that mediation can make a cogent argument were benefits to be gained as mean unwillingness to proceed. had no reasonable prospect of pursuant to the provisions of distinct from a likelihood of He also considered the success should not be on the section 16(2) that a recalcitrant reaching a settlement. varying principles as laid down objecting party. The defendant, refusing to engage in It was noted that, in the in Halsey. In McManus, it was fundamental question was a mediation conference, should McManus case, the defendant the judge’s view that mediation whether it could be shown by a face the appropriate sanction in had set out its position in would be of benefit and would proposing party that the costs. G correspondence at an early potentially assist the experts in objecting party unreasonably stage in the proceedings and fully understanding the refused to agree to mediation. Gavan Carty is commercial had stated that it was unlikely differences in each party’s The court judged that a fairer partner at Kent Carty Solicitors.
www.lawsociety.ie 21 LAW SOCIETY GAZETTE MARCH 2008 ANALYSIS
Immigration decisions and A recent Supreme Court decision raises very significant issues in relation to the interaction between human rights and the power of the state, writes Elaine Dewhurst
he decision in Bode v Irish citizen child who may be (a foreign national) to reside in where the executive by an TMinister for Justice, Equality substantially affected by that the state. The decision had been administrative act takes a and Law Reform (unreported, decision, as such considerations made under the IBC/05 Scheme, decision that affects an [2007] IESC 62) displays a can be taken into account in the an administrative scheme set up individual and it is alleged that number of anomalies in Irish statutory provisions surrounding by the minister to allow parents such legislation or decision is law in relation to the status of deportation. Thirdly, in making of children born in the state contrary to constitutional or parents of Irish-born children. administrative decisions, the before 1 January 2005 to claim legally-protected rights of the The decision focused in executive is under no obligation residency on the basis of their individual, it is a matter for the particular on the Irish Born to assist an applicant in Irish-born child. The scheme courts to hear and determine Child Scheme 2005 (IBC/05 remedying a defect in their provided that the parent must that dispute. Scheme) and the balance to be application once the closing date provide evidence that they have Denham J in the Supreme struck between the right of the for applications has expired. met certain conditions, including Court noted that the state has executive to control Finally, the court held that there that they have been in continuous the power to control the entry, immigration, and the rights of is no stand-alone right to apply residence in the state. The father residency, and exit of foreign the child to family and private to the minister for residency and in Bode had been refused nationals. This power is an life under the Constitution and that statutory procedures under residency on the basis that he had aspect of the executive power under the European Convention the Immigration Act already exist not been continuously resident in exercised by the minister on on Human Rights. to adequately examine the rights the state. behalf of the state. This The Supreme Court held that of the applicant under the inherent power includes the the decision-making powers of Constitution and the Executive decisions right to establish an ex gratia the executive were not subject to convention. The Supreme Court held that, as scheme such as the IBC/05 review by the courts, where the the minister’s decision did not scheme, which was established decision does not impact on the The facts in Bode have any effect on the applicant, as a measure to assist certain applicant or on their The case involved an application the decision was not subject to non-nationals. The court held constitutional and convention by a child (an Irish-born citizen) review by the courts. This is in that the effect of a refusal by the rights. Secondly, in making such and her parents to review the stark contrast to the opinion of minister did not impact on the decisions, the executive does not decision of the minister to refuse Ms Justice Finlay Geoghegan in applicant, as the applicant have to consider the rights of the permission to the child’s father the High Court, who held that, would be in the same position ONE TO WATCH: NEW LEGISLATION European Communities certain circumstances. The Definitions trader in order to promote the (Misleading and Comparative regulations will be influential in A comparative marketing supply of a product. This Marketing Communications) preventing unfair competition and communication is defined as any definition has the potential to Regulations 2007, SI no 744 of will provide traders with an form of representation made by a cover a much broader range of 2007 additional cause of action in trader that explicitly or by circumstances than that cases of passing off and implication identifies a competitor envisaged by the original These new regulations on trademark infringement. of the trader or a product offered directive, providing a much higher misleading and comparative The regulations perform a by such a competitor. The level of protection to traders marketing communications have threefold function: definition of ‘representation’ is against unfair competition. expanded the scope of unfair • Supplementing the Consumer very broad and includes any oral, competition law in Ireland. The Protection Act 2007, written, visual, descriptive or Prohibitions regulations seek to protect • Revoking the Misleading other representation by a trader, The regulations prohibit two types traders against misleading Advertising Regulations 1988, including any commercial of commercial practice: marketing communications and and communication, marketing or • Misleading marketing the unfair consequences thereof. • Implementing the Misleading advertising and any term or form communications, and They also prohibit comparative and Comparative Advertising of a contract, notice or other • Certain prohibited comparative marketing communications in Directive (2006/114EC). document used or relied on by a marketing communications.
22 www.lawsociety.ie ANALYSIS LAW SOCIETY GAZETTE MARCH 2008 human rights watch the rights of the child as they had been prior to their separate to the functions of the application. They were still minister under the Immigration entitled to have the minister Act 1999, as amended, in consider their constitutional and relation to deportation. In convention rights under making a deportation order, the statutory deportation minister must comply with the proceedings. Immigration Act and, in particular, section 3, which lists Constitutional rights the criteria to be considered by The assertion that the minister the minister in deciding in the IBC/05 Scheme should whether to make a deportation have considered the order. Under the case law, the constitutional and convention minister is required to take into rights of the applicant was, account constitutional and according to the Supreme convention rights at this stage. Court, misconceived. Once Therefore, to enforce such again, this conflicts with the considerations during the High Court decision, where Ms IBC/05 Scheme was not Justice Finlay Geoghegan necessary or appropriate. considered the rights of the child under the Constitution Unfair procedures and convention to be relevant gave rise to very different the scheme were left in exactly In the High Court, Ms Justice issues under the scheme. The considerations and obligations the same position both before Finlay Geoghegan held that citizen child is central to the for the respondent. and after the scheme, there was there had been unfair scheme. The High Court held The Supreme Court did not no interference with their con- procedures under the scheme. that the fact that the scheme agree. The IBC/05 Scheme was stitutional or convention rights. The applicant in this case had was addressed only to parents of an administrative scheme with The fact that the applicant not received a letter informing citizen children distinguished it very clear criteria. These failed in the scheme does not him of the omission of certain fundamentally from a scheme criteria were applied to the mean that his constitutional or documents in his application and addressed to non-nationals with applicant, and he failed to meet convention rights would never giving him time to reply, which no such citizen family link, and the criteria. As the applicants to be considered. The scheme is other applicants under the
Misleading marketing the trader’s motive for the • Is misleading as described in other distinguishing marks, communications commercial practice; the nature regulation 3 (as described products, activities, or A marketing communication will of the trader’s commercial above), circumstances of a competitor, be misleading if it in any way practice and the legal rights of • Is misleading under sections • For products with designation (including in its presentation): the trader to whom the product 43-46 of the Consumer of origin, does not relate to • Deceives, or is likely to is supplied, and Protection Act 2007, products in each case with the deceive, the trader to whom it • By reason of its deceptive • Does not compare products same designation, is addressed or whom it nature, it is likely to affect the meeting the same needs or • Takes unfair advantage of the reaches in relation to a trader’s economic behaviour or intended for the same reputation of a trademark, number of factors, including, for any reason it injures or is purpose, trade name, or other among others, the existence or likely to injure a competitor. • Does not objectively compare distinguished marks of a nature of the product; the main one or more material, relevant, competitor or of the characteristics of the product; Prohibited comparative verifiable and representative designation of origin of a the price of the product; the marketing communications features, which may include competitor’s products, need for any part replacement, A comparative marketing price, • Presents goods or services as servicing or repair; the extent communication will be prohibited • Discredits or denigrates the imitations or replicas of goods of the trader’s commitment; if it: trademarks, trade names, or services bearing a
www.lawsociety.ie 23 Notice for Practitioners
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scheme had received. The of the deportation order, such as applicant of a refusal by the parents’ presence in the state minister’s omission was unfair to the birth of an Irish-born child. minister under the IBC/05 and their parents’ ability to the applicant in this case. The minister would then be Scheme. Most significantly, the provide for them by working The Supreme Court held that under a duty to consider the new applicant’s status was “in limbo” and creating a stable there was no obligation on the information to determine pending deportation proceedings. environment in which the child minister to send a letter to the whether to revoke the They had no right or entitlement may develop. A balance between applicant informing him of the deportation order. As there is a as an individual to be in the state the interests of the child and the omission and giving him time to statutory process in place, there is and, importantly, they are not community must be considered, reply. The minister was merely no need for further procedures to allowed to work. but this would necessarily required to consider the allow an applicant to make a Secondly, the Supreme Court involve the respondent in a application within the ambit of stand-alone application for did not take account of the rights consideration of the rights of the scheme. As the applicant residency. of the child who was an applicant the child. The failure of the would be in the same position in the proceedings and who respondent to do that in this both before and after the Questions raised would also be affected by the case constituted an interference minister’s decision, there were no The Supreme Court decision refusal of the minister. The High with the right to private life serious consequences arising raises a number of questions in Court was of the opinion that the under article 8, for which there from the refusal. In such cases, relation to the status of parents of ineligibility of the applicant to was no justification. the minister was not acting Irish-born children in particular, work affected the ability of the An application has been filed unfairly in refusing to consider and administrative schemes in applicant to provide for the in the European Court of additional material after the general. Firstly, to hold that the citizen child and to rear and Human Rights in this case and a closing date. decision-making power of the educate the child with due regard decision on admissibility is being executive is not subject to review for their welfare. The grant of considered. It is presumed that Right to apply where there is no impact on the residency to the parent of the the applicants will rely on articles The Supreme Court considered applicant presupposes that there Irish-born child is of immediate 8 and 14 of the convention. It that there was no right to make a was no effect on the benefit to the life of the citizen will be interesting to see how the stand-alone application for constitutional or convention child. European Court of Human residence to the minister. It held rights of the applicant in the case. Thirdly, a recent decision of Rights will deal with this delicate that the appropriate process The Supreme Court based this the European Court of Human balance between the right of the within which to consider issues assertion on the fact that the Rights, Liu and Liu v Russia, state to control immigration and relating to constitutional or applicant would have their confirms the fact that article 8 the rights of the applicant and convention rights was under constitutional and convention of the convention imposes a child to family and private life. It section 3 of the Immigration Act rights considered at a later date positive obligation on the state is hoped that the decision, if 1999 relating to deportation. under deportation proceedings. in immigration cases to ensure admitted, will finally confirm the There is provision in the act for However, there is no guarantee that the enjoyment of rights is status of Irish-born children and an application to revoke a that the state would take “practical and effective”. The their parents in Ireland. G deportation order. The applicant deportation proceedings against child in this case is of such an could at this stage notify the the applicant. In the High Court, age that their effective exercise Elaine Dewhurst is the Law Society’s minister of any altered it was found that there were of their right to a private life in parliamentary and law reform circumstances since the making significant consequences for the the state is dependent on their executive.
protected trademark or trade or High Court for an order The court may order that the Where such prohibited conduct is name, or prohibiting the trader from trader: promoted by a code of practice or its • Creates confusion among engaging in or continuing to • Desist from engaging in code owner, a trader or other person traders (i) between the trader engage in a misleading marketing misleading marketing may apply to the Circuit Court or who made the comparative communication or a prohibited communications or prohibited High Court for an order prohibiting marketing communication and marketing communication. marketing communications, the code owner from such promotion a competitor or (ii) between The court may, after a • Publish a corrective statement, or requiring the code owner to the trademarks, trade names, consideration of all the interests at the trader’s own expense withdraw or amend the code, as the other distinguished marks, involved, including the public and in any manner that the court considers necessary to goods or services of the trader interest, make such an order court considers appropriate, prevent such promotion. The court who made the comparative without proof of any actual loss • Comply with other terms and is free to impose any terms and marketing communication and or damage on the part of the conditions that the court conditions that it considers those of a competitor. trader against whom the order is considers appropriate. There is appropriate on the code owner. G sought or any intention or no provision for damages Remedies negligence on the part of the made in the regulations, but Elaine Dewhurst is the Law The trader or other person may trader against whom the order is this may well fall under this Society’s parliamentary and law make an application to the Circuit sought. category. reform executive.
www.lawsociety.ie 25 LAW SOCIETY GAZETTE MARCH 2008 COVER STORY
Great advances have been made over the last few years in the area of air passenger rights, but airlines are accused of exploiting the vagueness of the regulations to minimise their obligations. Andrew Fergus fastens his seatbelt TURBULENCE
he airline industry has changed beyond laws of that third country. A national enforcement all recognition in Europe over the past body is to be set up in each member state to ensure 15 years, nowhere more so than in compliance by the airlines. Ireland. The EU-driven liberalisation of T the marketplace, particularly in The aviator loosening the grip of the flag carriers, has led to an Compensation payments are only to be made in the explosion of new entrants into the market. This event of a passenger being involuntarily denied proliferation of new airlines has led to fierce boarding, or when a flight is cancelled and the competition within the sector, resulting in ever- consumer is not given adequate warning and offered lower prices and ever more people choosing to rerouting. However, the air carrier is not obliged to travel by air. An unintended, though perhaps pay this compensation if the cancellation is caused unsurprising, consequence of this increasingly by ‘extraordinary circumstances’ that could not have competitive environment has been the steadily been avoided, even if all reasonable measures had worsening industrial relations between airline been taken. ‘Extraordinary circumstances’ are management and staff, leading to a rise in strike nowhere defined in the regulation, but recital 14 of action. Recently, passengers have also had to the preamble sets out a non-exhaustive list of contend with increased security measures and examples of such circumstances. These include threats, often leading to delays and cancellations. political instability, unsafe meteorological Fortunately, the protections afforded to passengers conditions, security risks, unexpected aircraft have also undergone changes over the last number shortcomings and strikes affecting the operation of of years. Consumers are principally protected by EC the air carrier. Air traffic control decisions out of the Regulation 261/2004, which establishes common hands of the airlines that lead to cancellations and rules on compensation and assistance to airline delays despite any reasonable measures that could be passengers when denied boarding or when a flight is taken also constitute an ‘extraordinary circumstance’. delayed or cancelled. This protection is The only other guidance on this issue comes from supplemented by the Montreal Convention, an the opinion of Advocate General Sharpston in SAS v international treaty to which the EU acceded Kramme, where he said that, for an aircraft’s concerning, among other things, the liability of air withdrawal for technical reasons to constitute an carriers in the event of delays. extraordinary circumstance, both the technical problem and the unavailability of a replacement Those magnificent men aircraft must be extraordinary in the light of past The regulation entered into force on 17 February experience. In other words, the problem must be 2005. It details the type of assistance that must be one that does not typically occur on that type of offered to passengers in the event of a delay, airplane or has not previously occurred on the cancellation, denied boarding or downgrading. The particular aircraft in question. Whether the MAIN POINTS regulation is designed to reduce these problems and unavailability of a replacement is extraordinary will • Protecting rights to introduce standardised levels of compensation and depend on the extent to which this could have been of air passengers assistance for affected passengers. It applies to all foreseen by an air carrier making reasonable • Compensation passengers departing from an airport in a member provision, in the light of past experience, for the and assistance state and also to passengers departing from an replacement of aircraft withdrawn from operation as • Hostile reaction airport in a third country to a member state on a a result of technical problems. While the AG’s of airlines European Community carrier, unless they have opinion is not binding, the court follows it in the already received such assistance as required by the vast majority of cases.
26 www.lawsociety.ie COVER STORY LAW SOCIETY GAZETTE MARCH 2008 PIC: GETTY IMAGES
AHEAD
www.lawsociety.ie 27 LAW SOCIETY GAZETTE MARCH 2008 COVER STORY
The compensation levels to be paid by the airline direct relationship with Regulation 261/2004, but are set out in article 7 of the regulation and range does supplement its protections. The convention from €250 to €600, depending on the length of the applies to “all international carriage of persons, flight. This compensation may be reduced by 50% baggage or cargo by aircraft for reward. It applies in the event that passengers are offered equally to gratuitous carriage by aircraft rerouting to the final destination and they performed by an air transport undertaking.” arrive within a set time of their original While it does not specifically cover arrival time. cancellations, under article 19, an air carrier is liable for damage caused by Memphis belle flight delays unless it can prove it took The level of assistance to be all reasonable measures or it was rendered under the impossible to do so. In the case of regulation is set out damage caused by delay, article in article 8, ‘the 22 limits the liability of air right to carriers to 4,150 Special reimbursement Drawing Rights (€4,565), or rerouting’, unless the act causing and article 9, ‘the damage was right to care’. intentional or Where article 8 applies, that is, in the reckless. Article 29 case of cancellation or denied boarding, goes on to say that passengers are to be offered a choice any action for “The court between the reimbursement of any damages in the pointed out unused portion of their ticket carriage of passengers, together with a return flight to however founded, can only that delay, the point of departure at the be brought subject to the cancellations earliest opportunity, or rerouting conditions and limits of liability set to the final destination under out in the convention. and denied comparable transport conditions Montreal also addresses the issue of boarding can at the earliest opportunity or at jurisdiction. Insofar as it concerns the the passenger’s convenience. subject matter of this article, an action cause two Article 8 only applies with regard to for damage must be brought, at the types of delay where it is more than five option of the plaintiff, in the territory of hours, and then passengers are only one of the states party to the convention, damage” entitled to the reimbursement and either before the court of the domicile of return flight element. the carrier or of its principal place of Article 9 is the other limb of business, or where it has a place of assistance, the right to care. This help is business through which the contract has to be offered to passengers whose flights been made, or before the court at the are cancelled, delayed or who are place of destination. This seems to be at involuntarily denied boarding. It states variance with provisions of European law, that passengers shall be offered free meals principally Regulation 44/2001 on and refreshments in reasonable relation to jurisdiction, which allows a consumer to the waiting time. It also stipulates that, bring proceedings against a party in the where a stay of one or more nights is courts where the consumer is domiciled. necessary, hotel accommodation and transfers However, it also stipulates in article 71 that must be provided. Passengers are also to be “this regulation shall not affect any offered telecommunications facilities free of conventions to which the member states charge, for example, access to telephone are parties and which in relation to calls, faxes or emails. particular matters, govern jurisdiction”. In any event, the EU is bound by such an Executive decision international treaty by article 300(7) EC, and The Convention for the Unification of Certain Rules for European Court of Justice (ECJ) case law in this International Carriage by Air was signed in Montreal area has made it clear that such treaties prevail over on 28 May 1999. The EU has acceded to the any provisions of secondary community law. convention and it became part of European law on Therefore, a plaintiff taking a case to enforce 28 June 2004. The convention was incorporated Montreal Convention rights may not be able to take into Irish law by the Air Transport and Navigation that case in his home country. This could lead to the (International Conventions) Act 2004. It updates and situation where a passenger suing to enforce rights replaces the Warsaw Convention. Montreal has no under both the regulation and the convention may
28 www.lawsociety.ie COVER STORY LAW SOCIETY GAZETTE MARCH 2008
have to bring two separate cases in two different jurisdictions. The impact of this anomaly on Irish consumers is slightly mitigated by the dominance of Ryanair and Aer Lingus in the Irish aviation market.
Battle of Britain The regulation received a hostile reception from the airline industry: the validity of the British implementing rules was challenged by means of a judicial review in the English High Court. The court referred a number of questions on the regulation to the ECJ. The Grand Chamber of the ECJ delivered its judgment on these questions on 10 January 2006 in IATA v Department of Transport. Customer service Essentially, the airlines argued that articles 5, 6 and Montreal Convention only applied to the latter type of with a smile 7, that is, those headed ‘delay’, ‘cancellation’ and damage and the community act to the former, and ‘denied boarding’, were inconsistent with the core thus there was no inconsistency. European principles of legal certainty and proportionality, and that they were not supported by Snakes on a plane any adequate reasoning. The airlines also asserted Great advances have been made over the last that the regulation was inconsistent with the number of years in the realm of air passenger rights. Montreal Convention. The introduction of Regulation 261/2004 and the The court rejected all of these arguments and accession of the EU to the Montreal Convention have upheld the validity of the regulation. The court placed a greater onus on airlines to respect the rights stated that the articles were sufficiently precise and of their customers. They have also levelled the clear to be valid. The issue of inconsistency with the playing field somewhat for passengers taking on the Montreal Convention was raised on the basis of a airlines. However, the evidence suggests that airline “Irish purported conflict between articles 19, 22 and 29 of compliance with these measures has been consumers the convention and the regulation regarding the incomplete at best. The airlines stand accused of liability of the carrier and the extent of exploiting the vagueness of the regulation with have been compensation for damage. The court pointed out respect to definitions in order to minimise their disproportion- that delay, cancellations and denied boarding can obligations, often through an over-zealous use of the cause two types of damage. Firstly, there is the ‘extraordinary circumstances’ defence and defining ately hit, “damage that is identical for every passenger, redress effective cancellations as delays. It seems that many comprising for which may take the form of standardised and airlines have yet to adapt to this new landscape of immediate assistance, for example meals or passenger rights and continue to operate as of old. 16% of all accommodation”. Secondly, there are individual Irish consumers have been disproportionately hit, complaints damages suffered by a passenger that are inherent in comprising 16% of all complaints across Europe, that person’s reason for travelling, which requires a while complaints against Irish carriers are 24% of across Europe, case-by-case assessment. The court felt that the the total, according to the European Consumer while Centre Network’s 2006 report. These numbers represent a significant jump on those of a year complaints previously. against Irish LOOK IT UP In the absence of an alternative dispute resolution Cases: procedure in Ireland, many consumers who carriers are • Case C-396/06, Kramme v SAS, opinion of AG complain about their treatment are left with no 24% of the Sharpston, 27 September 2007 option but to go to court. Claims related to delay, • IATA v Department of Transport (Britain) [2006] 2 cancellation or denied boarding would be dealt with total” CMLR 20 as an ordinary breach of contract claims. While many consumers can avail of the small claims Legislation: procedure, other cases will belong in the District or • Air Transport and Navigation (International Circuit Courts. The recent high-profile industrial Conventions) Act 2004 relations problems within the airline industry and • Convention for the Unification of Certain Rules for the problems that can follow in terms of International Carriage by Air (Montreal cancellations and delays, coupled with a growing Convention) awareness on the part of consumers of their rights, • EC Regulation 261/2004 make it likely that we shall see many more such • Regulation 44/2001 on jurisdiction cases in the coming months. G • Warsaw Convention Andrew Fergus is a practising barrister.
www.lawsociety.ie 29 LAW SOCIETY GAZETTE MARCH 2008 MARRIAGE LAW
“A good general marriage law ought to embrace the maximum of simplicity and the maximum of certainty,” declared the 1868 Report of the Royal Commission on the Laws of Marriage. So how does current Irish law measure up? Michael McNamara pops the question
f the desirable criteria for good marriage law Impediments to marriage are listed in section 2(2) are indeed maximums of simplicity and of the act: certainty, then it is fair to say that the • The marriage would be void by virtue of the commencement of part 6 of the Civil Marriage Act 1835, as amended by the Marriage IRegistration Act 2004 on 5 November 2007 (Prohibited Degrees of Relationship) Acts 1907 and considerably simplifies the law relating to marriage 1921, in Ireland, but not without uncertainties. • At least one of the parties to the marriage is Under section 46(1)(a)(i) of the 2004 act, both already married, parties are required to give notice in writing to the • At least one of the parties to the intended registrar not less than three months prior to the date marriage will be under the age of 18 years on the of the marriage. date of solemnisation of the intended marriage An exemption from this requirement may be and an exemption from the application of section obtained from the High Court or the Circuit Family 31(1)(a) of the Family Law Act 1995 in relation to Court, to be “exercised by a judge of the circuit in the marriage was not granted under section 33 of which either of the parties to the intended marriage that act, concerned ordinarily resides or carries on any • The marriage would be void by virtue of the profession, business or occupation or where the Marriage of Lunatics Act 1811, or place at which the marriage concerned is intended to • Both parties are of the same sex. be solemnised is situate”. Similar provisions for exemptions were introduced Thus the 2004 act introduced for the first time into by the Family Law Act 1995. However, in a the Irish Statute Book the common law requirement significant number of cases, exemptions were that marriage be between a man and a woman, and TILL DEATH obtained from judges not fitting the description the impediment of bigamy. outlined in the act, and thus the exemptions were In the years between the law’s enactment and the invalid for want of jurisdiction. The Family Law commencement of part 6, the statutory prohibition (Miscellaneous Provisions) Act 1997 was introduced to on a marriage between a woman and the brother of remedy this. However, as the 1997 act refers her former husband during the lifetime of that specifically to the 1995 act, the relevant provisions of former husband – contained in the Deceased Wife’s which have been repealed by the Civil Registration Sister’s Marriage Act 1907 – was found to be an Act, it would not appear that this remedying unjustified restriction on the constitutional right to provision has survived the commencement of the marry by Laffoy J in O’Shea and O’Shea v Ireland. new law. How I met your mother King of Queens Once the civil preliminaries have been completed to MAIN POINTS In all cases, even where an exemption to the three- the satisfaction of the registrar, he or she shall • Notification month notification requirement is granted by the complete a marriage registration form, valid for six requirements appropriate court, the couple is required to attend at months, in relation to the intended marriage, • Solemnisers of a registrar’s office not less than five days before the without which it cannot be solemnised. marriages date of the wedding to complete the remaining civil The marriage registration form, signed by each of • Places and times preliminaries, that is, sign a declaration that there is the parties to the marriage, the two witnesses to the • Canon law no impediment to the marriage and present other marriage, and the person who solemnised the evidence as required by the registrar. marriage, must be returned to the registrar within a
30 www.lawsociety.ie MARRIAGE LAW LAW SOCIETY GAZETTE MARCH 2008 PIC: REX FEATURES US DO PART month. Whereas previously it was the responsibility solemnise a marriage, but only where the following of solemniser of the marriage to do so, it is now the requirements, declared to be substantive responsibility of the parties to the marriage to requirements for marriage, are met: return the form. • Both parties to the marriage are present, • Two persons professing to be 18 years or over are Married, with children present as witnesses, The 2004 act replaces the previous and varied • The place where the solemnisation takes place is formalities for solemnisation of marriage by open to the public, Catholic priests, Church of Ireland clergy, • The solemniser is satisfied that the parties to the Presbyterian ministers, solemnisers of church marriage understand the nature of the marriage buildings used for public worship and registered by ceremony and the declarations made by the An tArd-Chláraitheoir, appointed registrars of parties to the marriage in the presence of each marriage, and the registration of marriages by other, the registered solemniser who is registering officers of the Religious Society of solemnising the marriage, and the two witnesses Friends and secretaries of synagogues in respect of to the solemnisation, to the effect that he or she Jewish marriages, described in Shatter’s Family Law does not know of any impediment to the as “complex and obscure, being contained in a marriage, and to the effect that they accept each labyrinth of statutes stretching from 1844 to 1972”. other as husband and wife, and Instead, part 6 of the 2004 act provides for a • The form of the ceremony has been approved by register of solemnisers with the exclusive right to An tArd-Chláraitheoir, includes and is in no way
www.lawsociety.ie 31 LAW SOCIETY GAZETTE MARCH 2008 MARRIAGE LAW
ARE YOU FAMILIAR WITH THE CANON? Some members of the clergy are understood to have had concerns A particular question would arise as to the civil status of a Catholic about the new law and the functions of religious solemnisers. On the marriage where one of the parties only had the intention to marry for other hand, many were also happy to be relieved of the previous civil a limited time. If proven, this would lead to a decree of nullity in responsibilities, especially of verifying that neither party was already in a canon law due to lack of due discretion in consent and, possibly, valid marriage – an easier function to perform years ago when both inability to enter into and sustain a normal marital relationship. Nor parties were probably from the same parish, or at least the same would it be saved by the common law definition of marriage, the county, than now, when both parties could be from different countries, classic exposition of which was given in Hyde v Hyde as “the neither of them Ireland. That requirement still prevails in canon law. voluntary union for life of one man and one woman to the exclusion An interesting question arises as to the civil status of a religious of all others”. The Irish courts have demonstrated a willingness to marriage not carried out in accordance with the requirements of the follow the approach of canonical tribunals in granting decrees of relevant religious community. In the case of the former, there is an nullity on the grounds of inability to enter into and sustain a normal Irish case, Ussher v Ussher, in which it was held that that the mere marital relationship in RSJ v JSJ. However, when looking at the issue fact that there was only one witness did not preclude the existence of of consent, the courts have tended to confine themselves to the a valid civil marriage, although it was accepted that the marriage was existence of duress, in the absence of which there has been a not valid according to canon law. It was held that the presence of two reluctance to look beyond the presumption that parties intended their witnesses was not a requirement of the common law. Therefore, it vows of perpetuity. Moreover, more recently, in PF v GO’M (orse GF), would appear that a marriage that was not carried out in accordance an increased reluctance to grant decrees of nullity on expanded with the requirements of the relevant religious community would still grounds was demonstrated by the Supreme Court in the light of the be a valid civil marriage once the requirements laid down in section availability of the remedies of judicial separation and divorce, both of 51 of the 2004 act are met. which, unlike nullity, are clearly defined by statute.
inconsistent with the declarations by the parties, enactment to be considered in accordance with the and, in the case of a registered solemniser who is law: it must be both accessible and foreseeable. not a registrar, is recognised by the religious body Thus, the granting of an unfettered discretion to of which he or she is a member. interfere with the exercise of a protected right would be incompatible with the convention. ‘Religious body’ is defined in section 45 as “an In this regard, the lack of criteria by which An organised group of people, members of which meet tArd-Chláraitheoir is to grant or withhold approval regularly for common religious worship”. The for the form of the ceremony under section 51(3)(a) application of this requirement of common religious and the provision whereby An tArd-Chláraitheoir “Barron J held worship may produce problematic effects, as it may may cancel the registration of a solemniser “for any possibly be contrary to the proscription of other reason” under section 55 may hinder their that the discrimination based on the ground of religious application in practice. essential profession, belief or status contained in the It is interesting to note in this regard that the Constitution and the inclusive definition of religion Islamic community have registered two solemnisers, ingredients of adopted by the courts in cases such as Quinn’s notwithstanding a previous case, Conlan v Mohamed, a common law Supermarket v Attorney General and Conway v in which Barron J held that the essential ingredients Independent (Newspapers) Ltd. The European Court of a common law marriage were not present in an marriage were of Human Rights has also adopted a very broad Islamic marriage, as it was potentially polygamous. It not present in definition of religion, encompassing a very wide is also perhaps noteworthy that there are Buddhist range of religions and beliefs, including the right solemnisers registered, although common religious an Islamic not to believe. The European Convention on Human worship is not a requirement of Buddhism, though it marriage, as it Rights and the jurisprudence of the European Court does regularly occur. of Human Rights was introduced into Irish law by was potentially the European Convention on Human Rights Act 2003, The war at home polygamous” which requires all state bodies to act in compliance A marriage may be solemnised at a time and place with the convention. chosen by the parties with the agreement of the registered solemniser, subject to the requirement The good life that the marriage ceremony be open to the public. Article 12 of the convention concerns the right to Where the registered solemniser is a registrar, the marry, providing that “men and women of approval of the HSE is also required, and this is to marriageable age have the right to marry and to be determined by reference to such matters as may found a family, according to the national laws be specified by the Minister for Health. governing the exercise of this right”. Religious solemnisers will be bound by their In cases such as Sunday Times, the court has respective liturgical and canonical requirements, established two major requirements for an which in the case of the Catholic Church would
32 www.lawsociety.ie MARRIAGE LAW LAW SOCIETY GAZETTE MARCH 2008
almost always require that weddings take place in a church or chapel. LOOK IT UP Provisions regarding places and times at which Cases: civil marriages may be conducted have generated • Cassidy v Minister for Industry and Commerce [1978] IR 297 most public comment. The Minister for Health has • Conlan v Mohamed, unreported, High Court, Barron J, 25 July 1986 specified, among other things, that the venue in • Conway v Independent (Newspapers) Ltd [1999] 4 IR 484, [2000] 1 ILRM 426 which the ceremony room is situated must conform • Hyde v Hyde and Woodmansee [1886] LR 1 P&D 130 to all the requirements of any venue open to the • Leontjava v Director of Public Prosecutions [2004] 1 IR 591 public in respect of planning permission and • O’Shea and O’Shea v Ireland [2006] IEHC 305 certificate of fire safety, must meet all relevant • PF v GO’M (orse GF) [2001] 3 IR 1 health and safety requirements, must be accessible to • Quinn’s Supermarket v Attorney General [1970] IR 1 all, in particular to people with disabilities, and must • RSJ v JSJ [1982] ILRM 263 be a fixed structure – thus precluding marriages • Sunday Times v United Kingdom, 26 April 1979, 2 EHRR 245 being solemnised in the open air, a tent, marquee or • Ussher v Ussher [1912] 2 IR 445 other temporary structure, or a private dwelling. Whether this delegation of the matters to which Legislation: reference must be made complies with the • Civil Registration Act 2004, part 6 ‘principles and policies’ test most recently refined by • Deceased Wife’s Sister’s Marriage Act 1907 the Supreme Court in Leontjava remains to be seen. • European Convention on Human Rights Assuming that it does, as it is essentially an • European Convention on Human Rights Act 2003 administrative matter, it could also be rendered • Family Law (Miscellaneous Provisions) Act 1997 invalid by virtue of its being considered to be an • Family Law Act 1995 unreasonable use of delegated powers, as occurred in • Marriage (Prohibited Degrees of Relationship) Acts 1907 and 1921 Cassidy v Minister for Industry and Commerce, which • Marriage Act 1835 was recently endorsed in Leontjava. • Marriage of Lunatics Act 1811 • Marriages Act 1994 (Britain) Terry and June It is difficult to see how the introduction of the Literature: requirement of ‘fixed structure’ is intended by the • Registrar General’s Guidelines (Britain) act. Furthermore, its effect is to differentiate • Report of the Royal Commission on the Laws of Marriage, no 1216 (1868) between those partaking in religious and civil (British Parliamentary Papers, 1867-68) marriages, which may constitute discrimination on • Shatter, Alan (1997) Shatter’s Family Law (Dublin: Butterworth’s) the basis of religion. Under the European convention, it would have been open to the legislature to introduce similar requirements for all marriage venues in the interests of public safety, but understood that the current practice is to solemnise it chose not to. civil marriages only during normal HSE working While the British equivalent, the Registrar hourse, that is, 9-5, Monday to Friday. As this has General’s Guidelines, contains similar provisions been explained in the media by HSE representatives precluding outdoor civil marriages, authority is to be dictated by the availability of resources rather delegated to do so by section 46A of the Marriages than any fixed policy, it most probably is Act 1994, concerning “approval of premises”. The unassailable. G Civil Registration Act 2004, by contrast, contains no mention of premises. Michael McNamara is a barrister on the South Western While the minister does not specify any matters Circuit who has taught on UL’s MA programme in civil regarding time to which the HSE is to refer, it is and canon law.
www.lawsociety.ie 33 LAW SOCIETY GAZETTE MARCH 2008 HUMAN RIGHTS Game of
TAGElectronic monitoring of offenders will be an innovation in Ireland once the relevant provisions are commenced. In her winning human rights essay – on which this article is based – Tanya Moeller argues that the impact on the right to privacy has not been sufficiently considered
racking the geographical movements of a they can also apply to have the court order varied. certain person – electronic monitoring – The acts require that the court or the Minister for is governed by the Criminal Justice Acts Justice need to consider different matters in the 2006 and 2007. Sophisticated technology making of an order or decision for electronic Tmay enable this form of surveillance to monitoring. In addition, the acts provide for an intrude into the private life of a person at previously enforcement mechanism by way of arrest warrant. unprecedented levels. It is therefore necessary to In the context of the right to privacy, it is more consider the impact of electronic monitoring on the interesting that the provisions concerning the right to privacy. convicted offender on the one hand, and the person The acts allow electronic monitoring to record charged with a criminal offence on the other, are the movements of a person in three ways. Firstly, his very similar. This has important consequences for movements may be restricted simpliciter – that is, the evaluation of the constitutionality of electronic absolutely, without qualification. Secondly, he may monitoring. be required to remain at, or stay away from, a specific place during temporary release by virtue of British bulldog a direction from the Minister for Justice. Thirdly, he Looking at the technology that facilitates electronic may be required to remain or reside at a particular monitoring in England and Scotland can shed light MAIN POINTS location or refrain from attending at a place by on how such surveillance may be put into operation • Electronic virtue of a court order while he is on bail. The latter here. There are three main types. The home-based monitoring applies in case he is appealing a conviction in the scheme is by far the most commonly used in England. • Three ways of District Court to the Circuit Court, or if he is A tag is fixed on the body and it sends a signal to a monitoring charged with a serious offence. receiver that is installed in the home. As a result, the • Right to privacy In this way, electronic monitoring will directly tagged person must remain within the family home, • Related apply to both convicted offenders and people inside the signal radius of the receiver unit. constitutional remanded on bail. However, it will also apply By contrast, satellite monitoring has the person issues indirectly to affected third parties. They are, carry both tag and receiver, which calculates its therefore, required to give their prior consent, and location by means of global positioning system
34 www.lawsociety.ie HUMAN RIGHTS LAW SOCIETY GAZETTE MARCH 2008 PIC: REX FEATURES
“It’s an ankle Rolex, I tells ya!” (GPS) and relays this information to a monitoring home-based system would allow for implementation of centre. In real-time surveillance, any movements the relevant legislation in part, once a feasibility test is would appear as location trails on a computer screen carried out. Like in England, this type of electronic map, detailing which street and in what direction monitoring is likely to be most prevalent here. the person is moving. Satellite surveillance is not fully operable yet, but may be so in the future. Sardines Finally, voice recognition depends on the storage The right to privacy is an unenumerated right under of voiceprints in a central computer. The presence article 40.3 of Bunreacht na hÉireann. A surveillance of the person in a particular place can then be tag can be seen as a form of interfering with the checked by scheduled telephone calls. “right to be let alone”, as defined in Kennedy v The former Minister for Justice indicated that the Ireland, which prohibited the interception of private
www.lawsociety.ie 35 LAW SOCIETY GAZETTE MARCH 2008 HUMAN RIGHTS
to privacy, even if no private conversations where overheard. The tag cannot record communication or HOME ALONE images of the person, but it can monitor his The home-based system intrudes into the family home for technical as well as whereabouts at any requisite time in any area, operational reasons. In England, the tag must be fitted on a person at home constrained only by the limitations inherent in the because that is where the receiver unit is installed and tested, and the type of technology employed. equipment requires maintenance visits. Regular phone calls will also check on Furthermore, electronic monitoring can interfere the presence of the person at home in case of small-scale alerts. These can be with the private life in the family home, which is triggered by minor signal failures caused by ordinary activities, such as the entwined with the inviolability of the private person taking a bath. dwelling (article 40.5) and the right to private Besides these physical intrusions, living with an electronic tag can create property (article 43). pressures for the household, especially for women, who traditionally have greater The right to privacy is not unqualified. According family responsibilities at home. A study by the National Audit Office in England to Norris v Attorney General, it is restricted by showed that tagged women commit substantially more breaches than tagged considerations such as state security, public order, men. Childcare becomes problematic if the tagged parent cannot collect or morality or other “essential components of the discipline children because they are confined to the house, and there can be common good”. However, the doctrine of difficulties in emergency situations. Moreover, the relatives or partners of tagged proportionality, as developed by the Irish courts, persons often observe a curfew with them. requires that the state must impair a constitutional Satellite monitoring may be less intrusive into the private life of the family right as little as possible and in proportion to its home because the receiver is carried on the body, but the visibility of the tagging objective. The Criminal Justice Acts 2006 and 2007 equipment on a person can lead to family embarrassment. In England, one in apply electronic monitoring to the convicted ten monitored persons were recalled to court or reported for a possible recall to offender and to a person remanded on bail. It also prison because his or her relatives withdrew their consent to electronic affects third parties. The constitutionality of monitoring. electronic monitoring in the context of privacy depends on the category of person this surveillance is applied to. communications where this was deliberate, Arguably, the least harm is caused to a convicted conscious and unjustifiable. It can also be seen as a offender because the common law has typically type of watching and besetting, which in X v Flynn required such a person to accept a limitation to his was established to be a means of violating the right personal rights, which arises from the imposition of
36 www.lawsociety.ie HUMAN RIGHTS LAW SOCIETY GAZETTE MARCH 2008
his sentence. His criminal record could require him to be monitored to discourage further crimes. LOOK IT UP However, it is not clear if electronic monitoring Cases: does, in fact, prevent criminal activity. Pilot • Kennedy v Ireland [1987] IR 587 schemes in Scotland did not increase perceptions of • Norris v Attorney General [1984] IR 36 public safety or reduce the custodial remand • Scott v Spain (1997) 24 EHRR 391 population in any significant way. The Home • X v Flynn (19 May 1994) HC Office was also sceptical, observing that it was “likely to be the access that offenders on curfew Legislation: had to training, employment, housing and family • Bail Act 1997 life that helped them to reconnect with society and • Criminal Justice Act 2006 reduce their offending” rather than electronic • Criminal Justice Act 2007 monitoring. Moreover, a tagged person can simply ignore or remove the tag while committing an Literature: offence. It would therefore not be unreasonable to • Law Reform Commission, Report on Privacy, question the imposition of electronic monitoring, Surveillance and the Interception of even on a convicted offender. Communications, LRC 57-1998 • National Audit Office (Britain), The Electronic Stuck in the mud Monitoring of Adult Offenders: Report by the The second target group are people who are Comptroller and Auditor General, HC 800 remanded on bail and who still enjoy the Session 2005-2006 (1 February 2006) presumption of innocence. An interference with • Scottish Executive, Tagging Offenders: The Role their personal rights during criminal prosecution of Electronic Monitoring in the Scottish Criminal must be carried out very carefully. For example, Justice System, www.scotland.gov.uk/ the European Court held that pre-trial detention consultations/justice/toem-03.asp can only be justified by “specific indications of a • Scottish Executive Social Research, An genuine requirement of public interest, which, Evaluation of the use of Electronic Monitoring as notwithstanding the presumption of innocence, a Condition of Bail in Scotland, June 2007 outweigh the rule of respect for individual liberty” • Shute, Satellite Tracking of Offenders: A Study of (Scott v Spain). A similar justification would have the Pilots in England and Wales, July 2007 to be made for the case of electronic monitoring but, given the lack of evidence for its success in the prevention of crime, it cannot fulfil the “genuine requirement of the public interest”. Moreover, it was noted above that the relevant policymakers will have sufficient time to consider provisions governing the monitoring of persons the probable impact of electronic monitoring on the pre- and post-conviction in the Criminal Justice Acts right to privacy and plan the implementation of such 2006 and 2007 are quite alike. If this legislative surveillance accordingly. similarity causes the person who is presumed Comparisons with Britain can be helpful, not only innocent to suffer from the same intrusive in suggesting the type of technology most likely to surveillance as the person who is found guilty, the be used here, but also in measuring its performance proportionality of the activity would be put in in the prevention of crime. The lack of evidence for doubt. the success of electronic monitoring calls the Finally, electronic monitoring indirectly affects constitutionality of this new measure into question. third parties. While it is accepted that the The promise of the former Minister for Justice that prosecution of criminal offences commonly has an a feasibility test will be carried out prior to full impact on a family, electronic monitoring should be introduction is of some comfort, but is insufficient. regarded as unique in the regularity and length at Authoritative studies should establish whether this which it intrudes into the family home. These type of surveillance would indeed enhance intrusions can be explained by the circumstantial compliance of the tagged person with court orders, misfortune of being related to the monitored and thereby reduce crime – or whether it will create individual, but they cannot be excused. They a chaotic monitoring system that unjustifiably appear to be inherently disproportionate. intrudes into family homes and generates needless litigation. G Blind man’s buff Pending the commencement of the relevant Tanya Moeller holds a European Master’s degree in provisions in the Criminal Justice Acts 2006 and human rights and democratisation from the University of 2007, a precise prediction on the operation of Padua and has worked for the Irish Council for Civil electronic monitoring in Ireland cannot be made. Liberties. She is currently a trainee solicitor with Michael This should be seen as an advantage, as J Staines & Company.
www.lawsociety.ie 37 LAW SOCIETY GAZETTE MARCH 2008 FAMILY LAW
BOTH SEEN and HEARD Many practitioners dealing with childcare cases before the courts are concerned that the functions and powers of the guardian ad litem are in need of urgent reform. “Won’t somebody please think of the children?” asks Katie Dawson
or many years, the old adage that ‘children nature of such cases, the court has increasingly should be seen and not heard’ was a sought to avail of the knowledge of an independent common feature of the Irish legal system. expert in child welfare and protection, namely the This position has, of course, changed in guardian ad litem. F recent years, with both the legislature and The legislature first made provision for the courts placing increased emphasis on the rights of appointment of a GAL in public law proceedings in children to be heard and represented in proceedings the Child Care Act 1991. Section 26(1) provides that affecting their welfare. One area where practitioners “the court may, if it is satisfied that it is necessary in have seen significant developments in recent years is the interests of the child and in the interests of in the area of child welfare/protection. The Child Care justice to do so, appoint a guardian ad litem for the Act 1991 allows the District Court to appoint a child”. guardian ad litem (GAL) in childcare proceedings. Unfortunately for practitioners, nothing Twelve years after this provision became fully further is written in that act or subsequent operational, many practitioners who deal routinely legislation that clarifies the role and functions of with these cases in the District Court are concerned the GAL in childcare cases. Presumably, section that the role, functions and powers of the GAL are ill 20 on the Child Care (Amendment) Act 2007 will defined, under legislated and in need of urgent change this position. Section 20, which came into redress. effect on 23 July 2007, sets out the functions of MAIN POINTS the Children’s Acts Advisory Board (CAAB), • Rights of children In whose interests? formerly the Special Residential Services Board. to be heard and In Ireland, applications for care orders (s18), interim The second of these functions is to “publish represented in care orders (s17) or supervision orders (s19) are guidance on the qualifications, criteria for proceedings made in the District Court and are legislated for appointment, training and role of any guardian ad • Role and under the provisions of the Child Care Act 1991. In litem appointed for children in proceedings under functions of the these proceedings, the District Court undertakes an the act of 1991”. guardian ad litem inquiry as to what is in the best interests of the child. While the publishing of clear guidelines on the in childcare The Health Service Executive (HSE) sets out a case role and functions is a welcome development – cases for why the child should be removed from the care indeed CAAB has already sought representations in • Shortcomings in of its parents, often calling a number of expert relation to this – it is unclear when such guidelines the present witnesses in support of their application. Parents will will actually be published or what statutory basis system often strenuously oppose such applications, arguing they will have. There are some matters, such as the • Proposed reforms that the state is unjustifiably interfering with their issue of dual representation for children in these constitutional rights as a family. Given the emotive cases, presently prohibited under section 26 of the
38 www.lawsociety.ie FAMILY LAW LAW SOCIETY GAZETTE MARCH 2008 PIC: GETTY IMAGES
1991 act, which cannot be satisfactorily addressed by the various options available to the court and a means of CAAB guidelines. Similarly, it is unclear recommendation as to the appropriate order to be what legal redress such guidelines would give made. Best practice in Ireland seems to follow this practitioners representing parties either opposing model. the appointment of a particular GAL or seeking the removal of the GAL appointed. In such What’s wrong? circumstances, it might have been preferable if the A number of criticisms of the present system have legislature had gone further and amended section 26 been set out in a large number of reports and articles, of the 1991 act itself. and are repeated below. For practitioners In doing so, the legislature could have given representing a GAL in childcare proceedings, or consideration to sections 41 and 42 of Britain’s indeed representing one of the other parties to the Children’s Act 1989. In England, the GAL’s role proceedings, the continuing lack of legislative involves an investigation into all the aspects of the guidelines in this area is a growing problem. Under child’s life and family. Such investigations involve current legislation: interviews with the child and other members of the • Where a GAL is appointed, a child cannot have child’s immediate and extended family, along with separate legal representation (dual representation). social workers and other care professionals involved If a child wishes to avail of separate legal in the case. When the GAL has concluded the representation, than the GAL appointed must be investigation, he/she provides a report, or series of discharged, reports, for the court, setting out the child’s wishes, • There is limited guidance as to when a GAL
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should be appointed or what remedies might be available if any of the parties do not agree with the LOOK IT UP GAL appointed. While it might not be advisable to Legislation: allow any party to the proceedings to automatically • Child Care (Amendment) Act 2007 veto the appointment of a particular GAL, • Child Care Act 1991 circumstances might arise where a party might • Children’s Act 1989 (Britain) have a legitimate reason for opposing the • United Nations Convention on the Rights of the Child appointment of, or seeking the removal of, an appointed GAL, Literature: • There are no guidelines under the act as to who • Bainham, Andrew, Children: The Modern Law, 3rd edition (Bristol: Jordan, 2005) should be appointed as a GAL, what qualifications, • Capita Consulting Ireland in association with the Nuffield Institute for Health, skills or knowledge are necessary and/or preferable Review of the Guardian ad litem Service (March 2004) to being appointed, nor are there any directions as • Nestor, Jim, The Law of Childcare (Blackhall Publishing 2004) to how appointments should be vetted, • Ombudsman for Children, Report of the Ombudsman for Children to the UN • There are no guidelines under the act clearly Committee on the Rights of the Child (April 2006) defining the specific role of GALs or the duration • Shannon, Geoffrey, Child Law (Thomson Round Hall, 2005) or nature of the GAL’s task, including, for example, whether they need to provide a report or whether should be appointed, along with the requirement that the role ends once proceedings are concluded, a GAL provide the court with a written report(s). In • The powers of a GAL are not outlined under the compiling such reports, a GAL should have the right act and there is no guidance on whether the GAL to examine, take copies of, and use in evidence, should have access to HSE and third-party reports materials and documentation held by the HSE and or files. other relevant agencies. A formal, mandatory selection process should be introduced, applying to all In a number of recent cases, parties to the current GAL practitioners and any individual seeking proceedings have sought to ‘suggest’ what to be considered for appointment as a GAL. The documentation a GAL can have access to, ‘comment’ minimum qualifications and experience required to upon how a GAL report to the court may be allow for an individual’s appointment as a GAL presented, or ‘remark’ upon what information such a should be clearly defined in order to ensure that all report can contain. It is clear that allowing other GALs have the requisite level of knowledge and parties to the proceedings to define the role, functions experience in the area of child welfare/protection. and powers of a GAL is not compatible with a court Furthermore, in addition to any guidelines process seeking to ensure that the rights of the child published by CAAB, the legislature should amend are given paramount importance. section 26 of the 1991 act, firstly to set out the role, One obvious concern for practitioners operating functions and powers of the GAL and, secondly, to under the current system is that if a child becomes a provide for dual representation in public-law cases. party in the proceeding, any GAL appointed must be The powers of the GAL should be defined so that the discharged from the case. This provision suggests GAL is recognised as an independent officer of the that, as a GAL performs the same role in representing court, with the ability to bring specific matters to the a child’s interests as a lawyer directly representing that court’s attention. Furthermore, an amended section child, a child does not need both. Clearly that is not 26 could make reference to any additional guidelines, the case. The role of the GAL is not to act as an to be published by CAAB in respect of the operation ‘advocate’ for the child’s wishes. As such, the of the GAL system. prohibition on ‘dual representation’ contained in the It is clear that the role of the GAL in public law 1991 act should be removed if Ireland is to fully proceedings is a developing one and that the adhere to the principles set out in article 12 of the appointment of GALs, who in most cases avail of UNCRC. separate legal representation, is likely to become a more regular occurrence. In the absence of necessary What to do? legislation and statutory guidelines, childcare cases In circumstances where District Court childcare cases continue to be heard in the District Court. For are becoming increasingly acrimonious and lengthy (a practitioners, the current system remains wholly recent childcare case where the HSE applied for care unsatisfactory. The guardian ad litem is a welcome orders ran for a total of 57 days at hearing in the development in the area of Irish childcare law. It must District Court), it is clear that legislation and/or now be hoped that the legislative amendments and statutory guidelines are required to define the role of guidelines are put in place to ensure that the system the GAL, and indeed the manner in which these operates in a manner that best protects the interests childcare cases are run. of the children that the GAL is appointed to While it is not the author’s purpose to make represent. G recommendations to CAAB, guidelines should be drafted on the specific circumstances in which a GAL Katie Dawson is a Dublin-based barrister.
www.lawsociety.ie 41 LAW SOCIETY GAZETTE MARCH 2008 MEDIA LAW STOP the presses
The new Press Council and ombudsman add new elements to the institutional mix in which issues involving the print media and the law are discussed. The ombudsman, Prof John Horgan, indicates how the new structures will work and explores some of the legal implications
he recent establishment of new press newspapers that had commissioned their research regulatory structures is the result of a was able to tell them with any certainty how many complex interplay of forces going back at defamation actions they had faced in any given least two decades, and the effect of the new period – or what these had cost. T structures is still difficult to predict with Together with this has come the realisation that a any certainty. In this context, it is perhaps more helpful major factor undermining the credibility of the print to tease out the intentions behind the structures than media generally has been the absence of to suggest scenarios that the courts, and indeed the intermediate solutions for problems caused by legislature, might alter at any given moment. articles that might cause offence for a wide variety of The key element of the new structures is their reasons, but that might not involve defamation in independence from both government and the industry. the strict sense. The system of readers’ This is a necessary precondition both of their representatives, instituted briefly by some acceptability and their effectiveness. This is not self- newspapers in the wake of the Boyle/McGonagle regulation; it is independent regulation. Although the report, was an early and unsuccessful attempt to Press Council and the Office of the Press Ombudsman plug this accountability gap. are non-statutory bodies, they may be formally The new structures – funded by, but independent recognised by the Minister for Justice under the of, the industry – have a direct relationship both to provisions of the defamation legislation currently en problems of defamation and those of readers’ route through the Oireachtas, and this will give their grievances generally, as well as providing a new and MAIN POINTS statements certain necessary protection under law. substantial measure of public accountability. • Effective In relation to defamation, it will evidently continue independent I love trouble to be the case that there will occasionally be regulation of It is incontestable that the experience of the print publication of some statements about people who will newspapers media in relation to defamation has been a key driver feel, quite justifiably, that monetary compensation – • Print media of this innovation. Since the Boyle/McGonagle and substantial monetary compensation at that – is the response to report on press freedom and libel, commissioned by only remedy acceptable to them. It is difficult to see defamation National Newspapers of Ireland and submitted to the that the Press Ombudsman or the Press Council • Court Law Reform Commission, it has been clear that the would have any substantial role in such a situation. consideration of episodic and somewhat disorganised response of the roles of Press industry to this perennial problem was inadequate. Ace in the hole Council and Indeed, those familiar with that report will remember If a plaintiff feels that a decision in his favour by the ombudsman the authors’ astonishment that none of the ombudsman or council will strengthen his legal
42 www.lawsociety.ie MEDIA LAW LAW SOCIETY GAZETTE MARCH 2008
position, he of course has the option to make a Press Ombudsman, the Press Council, and the Code formal complaint to the ombudsman in the first of Practice for Newspapers and Periodicals as relevant in instance. However, if the publication concerned any discussion of the professional standards and feels that this is merely a proxy battle, it is likely to behaviour of journalists and editors embroiled in a dig its heels in, and the end result may not affect the defamation action. court’s decision either way. Conversely, if there is a feeling that a conciliatory response will enhance the Absence of malice publication’s defence, the plaintiff’s advisers may It is worth noting that, while people have the option well advise him to forego this option. The absence – of instituting legal proceedings or complaining to at this point – of experience of the operation, either the ombudsman, they cannot ride both horses at the of these new structures or of the courts’ same time. If legal proceedings have been instituted, interpretation of the new legislation after it has been the ombudsman will not examine the issue passed, makes prediction hazardous. concerned until those proceedings have been What is also unknown is whether the courts will, completed or withdrawn. In this context, we would in the future, consider the respective roles of the not regard a solicitor’s letter to a publication as
www.lawsociety.ie 43 LAW SOCIETY GAZETTE MARCH 2008 MEDIA LAW PIC: GATTY IMAGES agreement of the person affected by the article to make the approach on his behalf.) The new structures offer the possibility of quick, fair and free redress by an independent ombudsman or by a Press Council with a lay majority. If the person who is the subject of the offending article chooses to retain his solicitor as his agent in the matter, then of course costs will be involved, but this is not essential. And no respondent’s costs are involved. In all cases, complainants must demonstrate that the offending article is in breach of one or more of the sections of the industry’s new Code of Practice.
Citizen Kane The hope embodied in the new structures, whether in reference to defamation or other issues, is twofold. It is that readers will feel more empowered to make their grievances known, and to expect a reasonable response from their newspapers, and that editors and journalists will feel less constrained by ‘legal proceedings’, but, in fairness to the the culture of defensiveness that (conditioned in publication, we would expect a complainant to large part by our old libel regime) traditionally gave suspend exchanges between his solicitor and the confrontation priority over conciliation and editor concerned until the conclusion of the compromise. ombudsman’s procedures. This is a common-sense The basic premise of the new structures is that approach that will, I hope, have the effect of the closer to source the problem can be resolved, enhancing the attractiveness of our procedures as a the better it is for all concerned. Our procedures, first option, not least because they are risk-free, cost- therefore, generally require complainants to contact free, and expeditious. the editor of the relevant publication first, and to Defamation apart, however, many solicitors will lodge a formal complaint with us only if this initial have had experience of clients who are exercised approach has been unsuccessful. The incentive for about statements made about them in the media, but editors to solve the problem at this stage hardly whose chances of succeeding in a classic defamation needs elaboration. action are not closely related to the intensity of their Failing that, our structures and procedures come feelings on the matter. Some defamation actions are into play. also brought by plaintiffs who feel, with regret, that The case officer in my office is effectively the first this is the only course of action open to them, but port of call for all complainants and handles all cases who are not interested, primarily or at all, in up to the penultimate stages of the conciliation monetary compensation. process. If that conciliation process has been Practitioners whose clients fall into these effective, the final agreement between complainant categories have nothing to lose by recommending an and newspaper is effectively ratified by me as initial approach to the Press Ombudsman. ombudsman. (Incidentally, although in such cases a solicitor is If the conciliation process has not been effective, it technically a third party, he can be considered as the falls to the ombudsman to decide on the merits of the complainant on the basis that he has the express case, except in cases where the ombudsman decides to THE INSIDER There are a number of sections in the Code of Practice that represent allow the drawing of practical conclusions in complex situations. another important step towards the effective independent regulation Under the new structures, the ultimate decision on what does or of newspapers and towards providing expeditious and cost-free does not constitute justifiable harassment or intrusion into an redress for members of the public. These are in the areas of privacy individual’s private life no longer rests solely with an editor or an and harassment. individual journalist. In the absence of legal proceedings, that Up to now, however, the definition of what constitutes intrusion or decision now falls to be made by the Press Ombudsman or, in certain harassment, and what constitutes the public interest, has been one cases, by the full Press Council. Likewise, there is now, in the Code that has effectively been the prerogative of journalists and their of Practice, a formal definition of what is in the public interest. It may editors. The courts, of course, also have a role – but recourse to the not satisfy the purists and it needs to be fleshed out in due course by courts is expensive, that role is not often tested, and the ways and decisions of the new institutions, but it offers a common-sense occasions on which it has been tested have rarely been such as to benchmark to which anyone can sensibly relate.
44 www.lawsociety.ie MEDIA LAW LAW SOCIETY GAZETTE MARCH 2008
refer a case to the full Press Council for determination. Although there is an understanding LOOK IT UP that cases referred to the council by the ombudsman Literature: will be those of some complexity or importance, there • Boyle, Kevin and Marie McGonagle, A Report on is no requirement on the ombudsman to refer all such Press Freedom and Libel (Dublin: National cases to the council, nor any expectation that he will. Newspapers of Ireland) Indeed, he is completely independent of the council in • Code of Practice for Newspapers and Periodicals, relation to any decision he may take on referrals. available at www.presscouncil.ie It is quite possible, at the end of the day, that either the ombudsman or the council will find, in a case in which conciliation has not proved possible, that the Some of these are definitional, and I have already newspaper concerned has made an adequate, non- referred to them. Others relate to the possible monetary offer of redress. On the other hand, if the impact of decisions by the Press Ombudsman or the complainant believes that the newspaper’s offer is Press Council on court proceedings held after the inadequate, and the ombudsman or council agrees, the conclusion of the ombudsman’s or council’s newspaper will be required to publish our decision involvement. It is not possible to speculate with due prominence, where it will be available for realistically about this particular area in advance of discussion and comment by the general public and, the passage of the Defamation Bill and some indeed, by that newspaper’s rivals and competitors. experience of its consequences, but it is something People who believe that this is an inadequate sanction that may assume some significance at a later date. should perhaps canvass the views of editors and Nor have I dealt with some other aspects of the Code journalists on the matter! of Practice, such as the importance of press freedom and the protection of journalistic sources, not least All the president’s men because this would require a quite different and Determinations by the ombudsman are not necessarily equally lengthy article. the end of the matter. Depending on the way the There are, I would add finally, important positives decision has gone, either the complainant or the about this initiative. It has the active support of newspaper has the option of appealing a decision by journalists, editors and proprietors of newspapers, to the ombudsman to the council. In line with the a degree that would have been unthinkable even five common practice in other regulatory agencies that years ago. It has received a welcome, albeit cautious have an appeals system, such appeals must generally and provisional, from government. Public show and state reasonable grounds, such as the expectations are as yet limited, and this is in a sense emergence of significant new information or of a better than a crisis of expectations that might be procedural issue. It follows that there is no further difficult to manage. For the future, we will have to appeal against a determination that has been made wait and see. I trust that members of the legal either in the first instance, or on appeal, by the profession will share with me and the council a council. willingness to wait and evaluate the evidence before If the complainant is still dissatisfied, he or she coming to any definitive conclusions. G always retains the option of legal proceedings. As with all new institutions, there are grey areas. Prof John Horgan is the Press Ombudsman.
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www.lawsociety.ie 45 LAW SOCIETY GAZETTE MARCH 2008 PRACTICE MANAGEMENT
PARTNERSHIP:
In mid-size and larger law firms, bringing good the Holy people through the ranks is e have seen more changes in the but, since then, it has been increasingly difficult to environment in which Irish law sell a legal practice as the market tightens. Today’s more important firms operate in the past three buyer is looking more closely at the style of the than ever. This years than perhaps in the practice, the client base, the staff and the systems previous 20. The pace of change and technology in operation within the firm. involves W is increasing, and many firms have had to change the Practices are currently selling at a significant attracting the way they operate. It is no longer sustainable to run discount to the levels being achieved two years ago, an old-style firm with little or no management – and in some cases are not selling at all. For the right people, increased management and better systems are a smaller firm and the single practitioner, this is keeping them, feature of all today’s progressive firms. deflating: a lifetime’s work transferred to another High salaries and bonuses have had a further party for a relatively small sum. and having subtle effect on the way partnerships work. The The best succession plan in a small firm is to attractive proprietors of today’s firms are senior lawyers who grow your own successor. An individual coming worked throughout their careers with partnership as through a practice is in a better position to hold partnership an unquestioned goal. Many of today’s young onto the client base and knows the strengths and arrangements in lawyers are equally ambitious, but a significant weaknesses of the practice. percentage has focused on work/life balance and In mid-size and larger firms, bringing good place. David does not wish to achieve the holy grail of people through the ranks is more important than Rowe hunts for partnership. Often these young lawyers are the most ever. This involves attracting good people, retaining talented in a firm, and the perceived lack of drive them as solicitors, and having partnership treasure and ambition in this group is a major concern for arrangements in place that are seen as attractive. existing equity partners. Many senior equity partners There is no buy-in to partnership any more in mid- attribute this to high salaries and good bonuses, size and larger firms; partnership is earned on merit. thereby lessening the hunger for partnership. Temple of doom Raiders of the lost ark There have been fundamental changes in the way Succession planning is a key part in the continuing that partnership profit-sharing has operated in the success of any firm. Partners will grow old together past five years. The traditional model of agreed unless there is an infusion of new ideas, new services percentages for equal profit-sharing has been MAIN POINTS and fresh impetus from a younger generation. gradually eroded, particularly in mid-size and larger • Succession Without this, a partnership eventually declines. firms. These firms are increasingly looking at planning Many smaller firms and single practitioner firms putting between 10% and 20% of their profits aside • Profit sharing have no succession plan in place, having relied on for a partner performance pool. This works well if it • Consolidation of the fact that they have built an asset (the firm) and is fair and objective. If it is not, it is an unmitigated firms that this asset can be disposed of on retirement. disaster. This was true up to approximately 18 months ago In these firms, both the spread of profits between
46 www.lawsociety.ie PRACTICE MANAGEMENT LAW SOCIETY GAZETTE MARCH 2008
Grail?
Indiana Jones doesn’t work with partners ... but then, he’s still searching for that Holy Grail the top and the bottom of the profit-sharing after all, the partners are the firm’s greatest assets. mechanism has narrowed, and the length of time Being a partner in today’s law firm is a different that it takes to get to the top of the profit-sharing proposition to that of a couple of decades ago. mechanism has shortened. This has been a response There are huge advantages to partnership. These to pressure from newer entrants within the include the opportunity to build the business partnership, who argue that a partner is at peak together in a supportive environment, drawing from contribution levels during their 30s and 40s and the each others’ strengths, the mutual respect culture profit share should reflect this. that many firms have managed to preserve, the opportunity to share successes with others and the The last crusade ability to concentrate on one or two areas of work, Firms are now increasingly managing their partners’ and hence become an expert or specialist beyond performance levels. This is often done by what the general practitioner can hope to achieve. conducting annual appraisal-type reviews, similar to There are downsides to being a partner too. The those for other staff. This often breaks a traditional larger firms have, of necessity, become more comfort zone, but it is also good management – corporately managed, and some partners within
www.lawsociety.ie 47 LAW SOCIETY GAZETTE MARCH 2008 PRACTICE MANAGEMENT
COME TOGETHER There is currently a consolidation upwards in the average firm size in Ireland. This is because bigger firms are more competitive and they share the burdens of management and different areas of expertise with greater ease. Different partners inevitably have different strengths, and having a mix of attributes across a firm means the firm can play its individual partners to their strengths. Many firms are currently considering a merger, and it is inevitable that firm size will increase in a more competitive environment. Well thought-out and strategically intelligent mergers work well, and there are many examples of good mergers in the Irish market. The critical issue in choosing a new merger are that the personalities get on, that the business mix is right, that the new partners share a common objective, and that the cultures within the firms are compatible. This does not mean that both firms need be the same – indeed, many mergers work because the mix is different in each firm. “Howdy, pardner”
“Partners will them would say that the sense of fun goes when you ‘Partner’ should no longer be regarded as grow old get to a certain size. The expectations of you and synonymous with ‘owner’. ‘Partner’ should instead the fact that you are expected to be a manager as describe the firm’s role models: those individuals together unless well as a lawyer do not always sit easily. who represent the best the firm has to offer, who there is an With the pace of change accelerating, the role of other staff admire, on whom today’s newly qualifieds the partner is changing: it has become that of a seek to model their careers, and to whom clients infusion of new business manager and a business winner. instinctively turn for advice. ideas, new After today’s partners will come a new generation ‘Partner’ is a statement about aspiration and – more women than men – with aspirations that no ambition – the ideal of what we’d like to be. services and longer begin and end with becoming a partner. The A strong partnership is the most rewarding space fresh impetus lifestyles and needs of this new generation are to be in, both financially and supportively. In fact, it challenging traditional partnership models and is the only space to be in. G from a younger cultures. generation” The reasons for this are easy to understand. The David Rowe is a legal graduate and a chartered careers of today’s senior partners started when a accountant and was formerly finance director with MOP. firm was a club. Now every successful firm is run as His firm, Outsource, provides hands on financial a business. Law firms – like any other – have to be management and business advice to a wide range of Irish well managed or they don’t survive. law firms.
48 www.lawsociety.ie PEOPLE AND PLACES LAW SOCIETY GAZETTE MARCH 2008 PIC: LENSMEN
Can we build it? James Kinch, a solicitor who contributes regularly to ‘Eurlegal’ Law Society and Bar Council summit meeting in the Gazette, has been awarded Pictured at a meeting of the Joint Consultative Committee of the Law Society of Ireland and the Bar Council in a Distinction and the Nael G Blackhall Place on 21 February 2008 were (back, l to r): Philip Joyce, Paul O’Higgins SC, Stuart Gilhooly, Bunni Medal in his postgraduate Gerard Doherty, Deputy Director General Mary Keane and David Nolan SC. (Front, l to r): Ken Murphy (director diploma in construction law and general), John D Shaw (senior vice-president), James MacGuill (president), Turlough O’Donnell SC (chairman of contract administration from TCD the Bar Council), Michael Collins SC (vice-chairman) and Jerry Carroll (director)
Northern lights Rebels strike! Two past presidents of the Law Society were admitted to the roll of President James MacGuill with trainees from the ‘Rebel County’, who solicitors in Northern Ireland at a ceremony on 15 February (l to r): defeated their Dublin counterparts in the National Client Counselling past president Philip Joyce, past president Michael Irvine, the Lord Chief Competition, giving them the opportunity to represent Ireland at the Justice Sir Brian Kerr, President of the Law Society of Northern Ireland international final in Bangalore, India, in April. The Law School in Cork T Donald Eakin, and John Kerr (son of the Lord Chief Justice) was represented by Jennifer Keane and Marie Gavin
Cáca milis agus madra rua... Outstanding achievement for MOP Walter P Toolan & Sons, Solicitors, of Ballinamore, Co Leitrim, has won Matheson Ormsby Prentice has received an ‘Outstanding achievement the ‘Best eco-friendly building’ award at the recent Local Authority award’ at the Irish Institute of Training and Development’s National Managers’ Association (LAMA) Awards 2008. At the awards ceremony Training Awards 2008 in the ‘Indigenous companies (250+ employees)’ were (l to r): William Ireland (chairman of LAMA), Sinead Guckian (Leitrim category. (L to r): Jackie Robinson-Adams, Mark Hyland, Valerie Byrne, County Council), Gabriel Toolan, Minister for the Environment John Christine Ryder, Kevin Hannigan, Jackie Brennan, Lisa Farrelly, Kelly Gormley TD, and Sharon Ní Bheoláin (awards host) Simon and Norella Broderick
www.lawsociety.ie 49 LAW SOCIETY GAZETTE MARCH 2008 BOOK REVIEW books Poynings’ Law and the Making of Law in Ireland, 1660–1800 James Kelly. Four Courts Press (2007), Malpas Street, Dublin 8. ISBN: 978-1-84682-078-6. Price: €55.
e are now in the 86th been crowned Edward VI in This book is particularly Wyear of our independent Dublin with the support of interesting in a lawyerly way in legislature. It is therefore hard Gearóid Mór and others, and its detail of this 140-year to imagine a situation where subsequently in 1492 by a period up to the Act of Union the Dáil could not sit without similar Irish-supported claim by and its focus on the legislative the prior consent of a foreign Perkin Warbeck. Many will function and its key authority, and even then could recall Lambert and Perkin personalities, both in Dublin not pass legislation without its simply as two naïve and tragic and London, and the varying prior approval. That, in a figures, but the reality is that subject matters of the bills nutshell, would have been the their abortive regal assertions being ‘negotiated’, whether effect of Poynings’ Law (1494) if were for three centuries to have ultimately rejected or passed. it still applied today. a profound impact on our All the time, the reader is The junior cert answer to the legislative history, as this conscious of what is going on question: ‘What was Poynings’ scholarly study demonstrates. outside the ‘precincts’ Law?’ is that it was a notable Poynings’ Law ordained, as throughout the same period; example of how the English the author summarises, firstly, not least the Battle of the crown sought to strengthen its that no parliament could legally Westminster commenced and Boyne (1690) and the resultant lordship of Ireland by be convened without the prior was so to continue up to 1922. inter-religious tensions, which controlling the ability of the communication from the King’s The year 1660 was, of are reflected in the nature of Irish parliament to pass laws for Lieutenant and Privy Council of course, a year of huge the bills presented – revenue- Ireland – an early example of Ireland of “the causes and significance in English history, raising, indemnities for the what later became the norm of considerations” requiring such with the restoration of the military and anti-‘popish’ England’s control of its colonies an assembly, and the monarchy and Charles II, measures being, for this around the world. James Kelly’s certification under the great seal marking the end of the two- reviewer, the most notable. book, however, provides a much of England by the King in decades-long Cromwellian Dr Kelly, head of the History more sophisticated answer to Council that the reasons interlude. An extended Department, St Patrick’s that question. proffered were acceptable; and, interpretation of the law was at College, Drumcondra, is to be Sir Edward Poynings would secondly, the law directed that that time negotiated, which complemented in producing a probably have been a mere “acts” communicated from the permitted Irish work of real value that fills a footnote on the pages of Irish Council in Ireland could only parliamentarians to draft bills gap in an important aspect of history if it were not for ‘10 become law if they were “with the advice of” the Irish our history. His other more Henry VII, Chap 4’ passed at deemed “good and expedient” Council and to transmit same recent books show his particular the end of 1494 by the Irish by the King in Council. to the English Council for 18th century interest – Sir parliament of the day, which act The law, in its manner of consideration and, if certified Edward Newenham, MP was long-titled: “... an act that application, went through a as approved, a session of the (1734–1814): Defender of the no parliament be holden in this number of manifestations Irish Parliament would be Protestant Constitution (2004) land until the acts be certified during the long period from consented to by the English and The Liberty and Ormond into England”. Poynings had 1494 to 1782 when, for the Council – the consequence Boys: Factional Riot in 18th been sent to Ireland by Henry short time up to the Act of being that the Irish Council, as century Dublin (2005). The St VII to take over as the King’s Union in 1800, Grattan’s an executive body, controlled Patrick’s ‘stable’ is certainly now Deputy from Gearóid Mór Parliament had legislative the Irish legislative function. producing winners, Poynings’ Fitzgerald, essentially to reduce independence. Dr Kelly, having A further concessionary Law following immediately on the country to greater outlined what transpired with interpretation of the law the success of Dr Diarmaid obedience to London and to the law during the period of manifested itself by 1695, Ferriter’s Judging Dev: A avoid a repetition of the legislative dependence from whereby it became sufficient Reassessment of the Life and challenge from Anglo-Irish 1494 to 1660, focused his for “heads of bills” to be Legacy of Eamon deValera. G leaders to the Tudor dynasty detailed examination on how transmitted to London for that had initially occurred in the law was applied between approval, leaving the details to Michael V O’Mahony is past 1487, when Lambert Simnel, a 1660 and 1800, when direct be filled out by the Irish president of the Law Society of pretender to the throne, had legislative rule from Parliament itself. Ireland.
50 www.lawsociety.ie BRIEFING 51 G MARCH 2008 MARCH www.lawsociety.ie report Aspects of the submission prior to circulation of the prac- prior to circulation of pro- tice note to the solicitors’ fession. Certificate in legal Irish James O’Sullivan reported that it was intended to provide a certificate in legal Irish, to commence at the Law School in April 2008. Oireachtas Committee on the Constitutional Amendment on Children Moya Quinlan reported that the Family Law Committee was preparing a submission to the Oireachtas Joint Committee on the Constitutional Amendment on Children. The proposed scope of the amendment to the Constitution related to (a) a recognition of the natural and imprescriptible rights of chil- dren; (b) the protection of the best interests of children in pro- ceedings concerning custody, guardianship and access; (c) the protection of the best interests of children in the care and adoption system; and (d) the protection of children in the criminal justice system. would be discussed with the Criminal Law Committee, and the draft submission would be circulated for discus- sion by the Council at its February meeting. . A you can sign up by visiting the members’ website at section on the Law Society’s Click on the ‘New e- www.lawsociety.ie. zine for members’ in the left-hand section You menu bar and follow the instructions. which will need your solicitor’s number, can be obtained by emailing the records department at: [email protected]. LAW SOCIETY GAZETTE council (Irish Language) Bill 2007 (Irish Language) Bill letter from the president of letter from the president seeking Conradh na Gaeilge support for two the Society’s to the proposed amendments bill was noted. The Council agreed that the Society should emphasise its policy to support and promote the use of the Irish language wherever possi- ble, but believed that the approach being promoted by government was the correct one. It was agreed that there might be benefit in a meeting between the Society and Conradh na Gaeilge to discuss the positive contribution that the Society could make to the work undertaken by Conradh. Practice note on solicitors’ terms and conditions of engagement The Council approved a prac- tice note on solicitors’ terms and conditions of engagement, which had been prepared by the Guidance and Ethics Committee. The Council noted that the terms and con- ditions of engagement had been forwarded to the National Adult Literacy Agency (NALA) to obtain its approval for the content in terms of readability and the use of plain English. Once approved by the Council, a certificate of plain English would be obtained from NALA Rules of the entitled judges Legal Practitioners The Law Society’s e-zine is the legal The Law Society’s newsletter of the solicitors’The profession. e-zine issues once every two months and brings news and information directly to your computer screen in a brief and easily- If you’re not receiving digestible manner. the e-zine, or have opted out previously and would like to start receiving it again, The Council noted that this It was noted that the or vexatious, the court could or vexatious, the court a part of direct that the costs or the costs of the proceedings the legal should be borne by representative of the applicant. was the first occasion on which a provision of this nature, which related to one group of clients (that is, migrants) and one group of lawyers (that is, legal representatives for migrants), had been contained in legislation. The Council agreed that the provisions were unnecessary and heavy-hand- ed, particularly given that order 99 of the Superior Courts to levy costs in any type of legal proceedings where they regarded the application as frivolous or vexatious. Immigrant Council of Ireland had similar concerns and had expressed the view that the pro- visions could be intimidatory, particularly for smaller law firms, and could create another barrier to justice for migrants. It was agreed that the Society’s concerns should be communi- cated to the Minister for Justice, Equality and Law Reform. Language) Bill 2007 Legal Practitioners (Irish The Council reiterated its sup- port for the Immigration,
and, in particular, subsec- and, in particular,
The Council noted the wide
your e-zine? Are you getting Are Protection Bill 2007 The Council considered the content of the Immigration, Residence and Residence and Protection Bill 2007 tions 99(7) and (8), which pro- vided that, where a court formed the opinion that a judi- cial review brought on behalf of an immigrant was frivolous range of agenda items discussed at the meeting. The president noted that it had provided a valuable opportunity to receive feedback from the profession and to correct some of the mis- information promulgated by the media in recent weeks. Meeting of presidents, secretariesand PROs of bar associations director The president and on general briefed the Council sec- the meeting of presidents, bar asso- retaries and PROs of ciations, which had been held on 10 December 2007. It was noted that meetings of the Society with the presidents, secretaries and PROs of bar associations were a routine exercise but, on this occasion, had been held on a different date than normal. The media had chosen to represent the meeting as a ‘crisis’ meeting. this was not the case. However, Law Society Council meeting, 18 January Council meeting, Law Society 2008 , all and printed on the solic- . 18 March 2008 In the event that any of these In the event that any of details change in the future,details change in the please ensure that the account- ants are as soon as notified possible. From Litigation Committee Revenue are ceasing to accept Registry of Deeds fees in rela- tion to memorials from 18 March 2008 memorials should be sent directly to: Registry of Deeds, Kings Inns, Henrietta Street, Dublin 7, together with the appropriate fee. Landlordtenant and Assault Building contract False imprisonment Defamation Probate, Administration and Trusts Committee See below a suggested See below a suggested 7) OF CASE DURATION 8) Dated to be avoided or any further notes Signed Solicitor plaintiff/defendant Date Solicitor’s address format that the accountants will requirefrom each firm of solici- tors who wish to receive funds electronically. In anticipation of this impact, as the majority of fees in respect of memorials are currently paid directly to the Registry of Deeds. change and to ensure that the stamping of memorials pre- sented to Revenue offices is finalised before the operative date of the new fees order, Date: Phone no: I confirm bank details are that the following correct: Full name of solicitor’s firm: Name and address of bank: Sort code: Account no: Signed: Date: Phone NOTICE OF TRIAL OF A REVENUE STAMP The accountants can only The accountants can (TO BE PRINTED ON SOLICITOR’S HEADED NOTEPAPER) in the post. In addition, on each in the post. In addition, is occasion that a payment made, a remittance advice have advising that the funds bank been lodged to the account will be issued. make EFT payments where the payment is due to the solicitor’s firm, on as their system is based the bank details of suppliers. If a payment is made to an individual client ‘care of’ the solicitors, they will continue to issue cheques. to a memorial may be paid directly to the Registry of the fee alternatively, Deeds or, may be paid through Revenue by having a stamp impressed on the memorial. The payment method by means of a Revenue stamp will cease This under the new fees order. change will have limited , is to be completed and attached to all notices of trial for the Dublin Circuit, is to be completed and attached to all notices Court. Debt collection Breach of contract MARCH 2008 MARCH notes be payable only High Court (if applicable) has been informed CESSER OF PAYMENT OF REGISTRY OF DEEDS FEE BY MEANS OF REGISTRY CESSER OF PAYMENT Record no TITLE 1)2)3) No outstanding particulars on either side 4) All discoverywith (both sides) dealt 5) Proofs advised Up-to-date reports available (where applicable) Matter not subject to application to transfer to the 6) TYPE OF CASE Personal injury ELECTRONIC FUNDS TRANSFER: REQUIREMENTS FROM SOLICITORS FUNDS TRANSFER: REQUIREMENTS ELECTRONIC evenue by the Property Registra- he Office he of of Accountants the Court of Justice (‘the Currently, the fee in relation Currently, This will ensure that the Practitioners should note that the Dublin Circuit Court Office a notice, in the form has advised that set out below itor’s headed notepaper R T tion Authority (PRA) that a new Registry of Deeds fees order is expected to be introduced shortly. Under the new fees fees will order, directly to the PRA by cash, cheque or electronically. DUBLIN CIRCUIT COURT: INFORMATION TO ACCOMPANY NOTICES OF TRIAL TO ACCOMPANY DUBLIN CIRCUIT COURT: INFORMATION accountants’) have set out their accountants’) have set requirements from for solicitors the introduction of electronic for pay- funds transfer (EFT) ments out of court funds to solicitors. funds will be lodged directly to the designated account and will be available for immediate with- drawal. This will also eliminate the risk of a cheque getting lost www.lawsociety.ie LAW SOCIETY GAZETTE practice
BRIEFING 52 BRIEFING 53 The pilot scheme will operate MARCH 2008 MARCH Society’s website (www.lawsoci- Society’s website section of the – ‘News’ ety.ie area),members’ Four the Courts’ desk (leaflet available), and the Criminal Law Committee 01 672 (leaflet available – tel: 4800). for approximately threeto six re-months, with an operational who view in April 2008. Members in have comments/suggestions relationoperation of the to the system should forward to same Service,Mr Ciaran Nevin, Prisons at [email protected]. www.lawsociety.ie Criminal Law Committee (no let- or email us at 250 are tax deductable. € LAW SOCIETY GAZETTE plain text only on the second-last working on the second-last the proposedday prior to Emails must date of link-up. be in terheads, sketches, dia- oth- grams, attachments) as erwise be quar- the email will antined. fromappointment by email the prison authorities. 2) Receive confirmation of Detailed information on the pro- cedures for arranging video-con- ferencing and on the sessions, video-conferencing scheme gen- is available from the erally, 150 sponsorship so we can reach our target 150 sponsorship so we can reach our € www.calcuttarun.com May 2pm th NOTICE 2 million. After the run/walk join in the fun with a monster 2 million. € [email protected] Consultations areConsultations reserved arrange a video-conferenc- To by email to the prison author- ities at legalvisits@irishpris- ons.ie, not later than 3.30pm 75. There be no charge will for from the sources referred to below.) The fee in 15-minute slots. respectpayable to solicitors in of conferencing sessions during is the period of the pilot scheme € the use of the conferencing the pilot suite for the period of scheme. must: ing session, practitioners 1) Request a video consultation Saturday 17 th celebrating 10 years keeping kids off 10 years keeping celebrating the streets
Sponsorship cards are available from our website
For more information, contact your firm’s Calcutta Run representative or visit www.calcuttarun.com For more information, contact your firm’s
ith effect from Wednes- day 20 February 2008,
So sign up now and bring your family along for this really fun day out donations over So sign up now and bring your family along for this really fun day out donations 300k to help us reach our 10 year target of
2pm-4pm, 2.30pm-4pm. CALCUTTA RUN 2008 RUN CALCUTTA As it’s our 10th anniversary we hope to make it the best yet! All you have to do to take part is get fit enough anniversary we hope to make it the best yet! our 10th As it’s try to raise a minimum of to run, jog or walk the scenic 10k and € Every finisher is a winner and makes a huge difference to the lives of kids in Calcutta and Dublin and Every finisher is a winner and makes a huge difference for them. remember a great day out for you can make a great difference barbeque, musical entertainment, activities for children and lots lots more. See our website for a training barbeque, musical entertainment, activities for children and lots lots more. programme to help you prepare for your run / walk (target 80 minutes). W VIDEO-CONFERENCING WITH PRISONERS IN CLOVERHILL: PILOT SCHEME CLOVERHILL: IN WITH PRISONERS VIDEO-CONFERENCING
solicitors may avail of video-con- solicitors may ferencing linked to facilities Cloverhill Remand Prison by way the Law of facilities located in roomsSociety’s consultation in the Four Courts. The video-con- ferencing will be avail- facilities the fol- able to practitioners at lowing times: • 10am-12 noon, Monday-Friday: • Thursday: 10am-12 noon, (Information regarding consulta- tions at other times is available 1 25/ 21/ 7/3/ Garda Defence ) (per SI ) (other 25/10/2007 21/4/2007 7/3/2007 ); part 7 (ss41- 36/2007 24/2007 6/2007 ) (per SI 204/2007); Defence Act 1954 Act 2007 (Amendment) Act 2007 2007 Offences) (Amendment) 2007 Criminal Procedure Number: Date enacted: Commencement date: 10/2007 Defence (Amendment) Act Number: Date enacted: Commencement date: 4/2007 for part 1 (ss1-3, ‘Preliminary’) and for ss6 to 9, 12, 14 to 17, 31 to 34 and 65 (per s1(3) of the act). Commencement order(s) to be made for all other sections (per s1(2) of the act). All com- mencement dates are subject to the saving and transitional provisions set out in schedule 1 (per s3 of the act); 7/5/2007 for section 71 (inserts a new s240A, ‘Courts Martial Rules Committee’, into the Act 1954 24/9/2007 for s70 (substitutes a new subsection 240(1) relat- ing to rules of procedure in the Criminal Law (Sexual Number: Date enacted: Commencement date: 660/2007) 1925 to 2006’ 43, ‘Amendment of Síochána Act 2005’ (ss45-60, than s41); part 9 than ‘Miscellaneous’) (other s57); schedule 2; 1/7/2007 15 and for s3; ss6, 9, 10, 14, 18; part 4 (ss28-32, in ‘Inferences to be drawn certain circumstances’); s57 and schedule 1 (per SI 236/2007) 4/ 9/7/ 5/3/ 9/5/ Com- Commence- Firearms Acts 4/12/2007 9/7/2007 5/3/2007 9/5/2007 21/4/2007 ). ’ Sea Fisheries Acts 39/2007 4/2007 29/2007 19/2007 2007 Rights (Amendment) Act (Amendment) Act 2007 Act 2007 Date enacted: Commencement date: 2007 Commencement date: 12/2007 Copyright and Related Number: Date enacted: Courts and Court Officers Number: Date enacted: Commencement date: 2007 Criminal JusticeNumber: Act 2007 Date enacted: Commencement date: 2007 for part 8 (‘Amend- ments to the 2003 and 2006 Consumer Protection Number: Date enacted: Commencement date: mencement order(s) to be made (per s1(2) of the act): 1/5/2007 for all sections of the act, except ss48 and 49 (which deal with surcharging) (per SI 178/2007); 1/5/2007 appointed as the establish- ment day for the National Consumer Agency (per SI 179/2007) ment order(s) to be made for all other sections (per s1(2) of the act): 18/5/2007 for part 1 (other than s3); part 2 (ss5- 23, ‘Amendment of enact- ments relating to bail’) (other than ss6, 9-15, 18 and 19); part 3 (ss24-27, ‘Sentencing’); parts 5 (s33, ‘Misuse of drugs’) and 6 (ss34-40, ‘Amendment of ) 21/ Com- Com- (these Electronic ’) and the 21/4/2007 8/5/2007 21/2/2007 32/2007 22/2007 26/2007 2/2007 Comhairle Act 2000 Act 2007 (Miscellaneous Provisions) Act 2007 Gaeltacht Affairs Regulation (Amendment) 2007 Number: Date enacted: Commencement date: mencement order(s) to be made (per s1(2) of the act): 15/5/2007 for all sections, other than ss9 and 21; 1/7/2007 for s9; 15/5/2007 for s21, except in relation to s32(2) and (6) of the Commerce Act 2000 Community, Rural and 2/2007 for s3 (change of name from Comhairle to Citizens Information Board). Commencement order(s) to be made for all other sections (per s10(3) of the act): 30/3/2007 for all other sec- tions, other than s4 (insofar as it relates to the insertion of paragraph (bb) in section 7(1) of the Communications Number: provisions will be brought into force when the necessary commencement order is made) (per SI 224/2007) Date enacted: Commencement date: to be mencement order(s) the act): made (per s1(4) of 3 and 4, 23/7/2007 for ss1, 2, part 3 (ss14-21, ‘Consequen- to tial and other amendments Children Act 2001 schedule (per SI 509/2007) Number: Date enacted: Commencement date: and s5 (per SI 141/2007) Number: Citizens Information Act 18/ 21/ legislation update legislation Acts passed in 2007 Acts passed 7/4/ MARCH 2008 MARCH Com- Com- 21/12/2007 7/4/2007 10/4/2007 21/4/2007 9/4/2007 12/2007 21/2007 15/2007 13/2007 41/2007 Act 2007 Act 2007 (Amendment) Act 2007 Child Care (Amendment) Carbon Fund ActNumber: 2007 Date enacted: Commencement date: 2007 Building ControlNumber: Act 2007 Date enacted: Broadcasting (Amendment) Number: Date enacted: Commencement date: 4/2007 for all sections of the act (per SI 158/2007) Commencement date: mencement order(s) to be made (per s61(3) of the act): 31/8/2007 for all sections of the act other than section 30 (per SI 591/2007) mencement order(s) to be made (per s1(3) of the act) Asset Covered Securities Number: Date enacted: Commencement date: Appropriation ActNumber: 2007 Date enacted: Commencement date: 12/2007 Details of commencement dates updated to 15/2/2008. acts and Details of all bills, since statutory instruments cata- 1997 are on the library logue – www.lawsociety.ie (members’ and students’ infor- areas) – with updated stage mation on the current a bill has reached and the commencement date(s) of each act. www.lawsociety.ie LAW SOCIETY GAZETTE
BRIEFING 54 BRIEFING 55 10/ 9/7/ 1/1/ Com- Com- Com- 26/11/2007 31/10/2007 7/5/2007 9/7/2007 10/4/2007 13/3/2007 MARCH 2008 MARCH www.lawsociety.ie 25/2007 33/2007 16/2007 7/2007 38/2007 37/2007 Act 2007 2007 (Amendment) Act 2007 Miscellaneous Provisions (Ministers of State) Act Finance Agency Agency Act 2007 Instruments and 2007 Functions) Act 2007 mencement order(s) to be made (per s1(3) of the act) 4/2007 mencement order(s) to be made (per s1(2) of the act): 16/4/2007 for part 1 (ss1-3, ‘Preliminary and general’) and part 2 (ss4-6, ‘Share transfer’) of the act (per SI Number: Date enacted: Commencement date: Ministers and Secretaries Number: Date enacted: Commencement date: 2007 National Development Number: Date enacted: Commencement date: National Oil Reserves Number: Date enacted: Commencement date: Number: Date enacted: date: Commencement SI 793/2007) 2008 (per Markets in Financial Number: Date enacted: Commencement date: to be mencement order(s) the act): made (per s2 of 1/1/2008 for s25 and 1/11/2007 for all other sec- tions, other than ss5, 8 and 19 (per SI 730/2007). The act already provides that ss5 and 8 come into operation on 1/11/2007. 1/2/2008 for s19 (per SI 782/2007) Medical Practitioners Act Local Government (Roads 19/ 22/ 21/ Civil LAW SOCIETY GAZETTE ) (per SI Health Act 19/2/2007 22/2/2007 21/12/2007 Civil Registration 1/2007 3/2007 42/2007 ; (e) the following , item 1 of part 4 of , item 1 5 of schedule , and part (Amendment) Act 2007 Provisions) Act 2007 (Amendment) Act 2007 certain amendments to the certain amendments of InformationFreedom Act 1997 itemising certain schedule 2, to the amendments 2004 amend- 2, itemising certain ments to the Act 2004) 1, part schedules: (i) schedule 2; (iii) 2; (ii) schedule 2, part (except schedule 2, part 3 2, part 4 item 3); (iv) schedule schedule (except item 1); (v) 2, part 2, part 6; (vi) schedule 7 (per SI 226/2007). 15/5/2007 appointed as the establishment day for the Health Information and Quality Authority under the act (per SI 227/2007). 6/6/2007 for ss8(1)(d) and 9 and for certain sections in parts 9 (ss70-78, ‘Inspections and investigations’) and 10 (ss79-80, ‘Offences’) – see SI 262/2007 for details (per SI 262/2007). 5/11/2007 for (a) section 105, insofar as it relates to the amendments referred to in part 5 of sched- ule 2 to the act, and (b) part 5 of schedule 2 to the act (these provisions amend the Registration Act 2004 735/2007) Commencement date: 2/2007 for ss10 and 11; com- mencement order(s) to be made for all other sections (per s12(3) of the act) Number: Date enacted: Health Insurance Number: Date enacted: Commencement date: 2/2007 Health (Miscellaneous Number: Date enacted: Commencement date: 12/2007 Health (Nursing Homes) (SI 9/7/ Com- Com- (per SI (per SI European , item 3 of Stamp Duties Stamp Duties 21/4/2007 9/7/2007 10/4/2007 23/2007 31/2007 17/2007 Fisheries Act 2007 tion 19(2) of the act, being tion 19(2) provisions of sec- given to the (as construed with tion 19(1) to the reference (IncomeCommunities Relief Tax in Corporate for Investment – Business Expansion Trades Capital Scheme and Seed 2007 Scheme) Regulations 613/2007). 1/10/2007 for 613/2007). 1/10/2007 qualifi- s109, subject to certain amends cations. Section 109 part 6 (‘Special provisions secu- relating to uncertificated rities’) of the Consolidation Act 1999 649/2007). 3/12/2007 for sec- tion 104(1), which inserts a new s81C (farmers’ relief from stamp duty in certain circum- stances) into the Consolidation Act 1999 783/2007) Date enacted: Commencement date: mencement order(s) to be made (per s3 of the act): 15/5/2007 for the following provisions of the act: (a) part 1 (except the definition of ‘designated centre’ in s2(1) of that part and except s2(2) of that part), part 2 (except ss8(1)(c) and (d), 9 and 11 of that part), parts 3, 4, 5, 6, 11 and 12; (b) ss40, 43 and 44 of part 7; (c) s104(2) and (3) of part 15; (d) s105 of part 15 (except for the purposes of part 1 of schedule 2, itemising certain amendments to the Act 1991 Child Care part 3 of schedule 2, itemising Health Act 2007Number: Finance (No 2) Number: Act 2007 Date enacted: Commencement date: 2007 Foyle and Carlingford Number: Date enacted: Commencement date: mencement order(s) to be made (per s2 of the act) 21/ 18/ 1/1/ 10/4/ 10/4/ 21/4/2007 2/4/2007 5/3/2007 10/4/2007 10/4/2007 18/2007 11/2007 5/2007 14/2007 9/2007 2007 Electricity Market) Act 2007 (Amendment) (Single 2007 Provisions) Act 2007 Finance Act 2007Number: Date enacted: Date enacted: 2007 for part 1 (ss1-56, ‘Income tax, corporation tax and capital gains tax’), except where otherwise expressly provided in part 1 (per s130(9) of the act); 2/4/2007 for other sections of the act, except where otherwise expressly provided for or where there is provision for the making of a commence- 19(1) is Section ment order. commenced by SI 614/2007, resulting in retrospective effect, as per the dates in sec- European Communities Act Number: Commencement date: Commencement date: 4/2007 Commencement date: Number: Date enacted: 6/2007 for ss1, 2, 3, 6, 7, 8, 12, 13, 16 and 20 of the act; 18/6/2007 for ss9 and 10, except insofar as those sec- tions relate to the single elec- tricity market committee (per SI 287/2007); 1/11/2007 for all other sections of the act, including ss9 and 10 insofar as these sections are not already in operation (per SI 731/2007) Date enacted: Electricity Regulation Number: Commencement date: Electoral (Amendment) Act 2007 Number: Education (Miscellaneous Date enacted: Commencement date: Commencement 2007 8/5/ Com- Pensions ) of the to specify G 8/5/2007 14/5/2007 Prepared by the Prepared Law Society Library 30/2007 28/2007 a contravention of a contravention 2007 Pensions Act 2006 Pensions Act 1990 Pensions Act Act 1990 warrant the appli- which will a fine (per SI cation of for s9 632/2007); 26/9/2007 (b), (other than paragraphs of that (e)(i), (g)(i) and (i) section) (per SI 702/2007); and (c) 27/9/2007 for ss21(b) and 24 (per SI 699/2007); (per SI 1/11/2007 for s14 749/2007) the sections of the the sections Commencement date: 2007 Statute Law Revision Act Number: Date enacted: Water Services Number: Act 2007 Date enacted: Commencement date: mencement order(s) to be made (per s3 of the act): 31/12/2007 for certain provi- sions of the act, including the repeal of enactments set out in the schedule to SI 846/2007 (per SI 846/2007). See SI for details. 30/ ), and (c) 30/3/2007 8/2007 (per SI 181/2007); Pensions Act 2007 Number: Date enacted: date: Commencement Social Welfare and all sections of the 3/2007 for 8, 9, 14, act, other than ss5, 34 to 18, 20 to 25, 27, 28 and 37, for which commence- be made ment orders are to act): (per s1(4) of the and 3/4/2007 for s35(a)(ii) s35(c)(ii) (iii), 5/4/2007 for for and (iii) and 6/4/2007 s35(b)(ii) (per SI 146/2007); 28(b), 1/5/2007 for ss5, 8 and 3/5/2007 for ss22 and 23, and 7/6/2007 for s28(a) (per SI 219/2007); 27/4/2007 for s37 insofar as it relates to: (a) part 1 of schedule 2; (b) part 2 of schedule 2 (except inso- far as it relates to s3A of the Pensions Act 1990 part 3 of schedule 2 of the and Pensions Act Social Welfare 2007 22/5/2007 for s18; 6/6/2007 for ss25(1), 35(b)(i), (c)(i) and (d) and 36; 4/7/2007 for s20 (per SI 256/2007); 5/6/2007 for s34 (per SI 268/2007); 17/9/2007 for s37 and part 2 of schedule 2 insofar as these provisions amend section 3A (as inserted by s39 of the Law Reform and Social Welfare 11/ 8/5/ Var- 8/5/2007 20/12/2007 11/7/2007 26–30 March 2008 Budapest 40/2007 27/2007 34/2007 ) (per SI 370/2007); Prisons (Visiting Committees) Prisons (Visiting DATES FOR YOUR DIARY FOR DATES Matters) Act 2007 Redundancies and Related (Exceptional Collective 2007 Date enacted: Commencement date: ious – see act Commencement date: Number: Number: Date enacted: Roads Act 2007Number: Date enacted: Commencement date: 7/2007 Social Welfare Act 2007 Protection of Employment Act 1925 1/10/2007 for s38 (‘Payment by prisoners for requested services’) (per SI 650/2007) ‘Preliminary and general), part ‘Preliminary ‘Requirements 4 (ss17-29, construction and relating to of prisons’), part 5 extensions ‘Inspector of pris- (ss30-32, part 6 (ss33-43, ons’) and than ‘Miscellaneous’) (other (per SI ss33, 34, 38 and s42(a)) for part 180/2007); 1/10/2007 3 (ss11-16, ‘Prison discipline’) s3(3) of and s42(a) (repeal of the 11/ MARCH 2008 MARCH Com- Com- 31/3/2007 11/7/2007 21/4/2007 10/2007 20/2007 35/2007 at Ovation, tel: 01 280 2641 €1,145 per person sharing. Package price for bookings: reception and gala dinner. and gala dinner. reception from Dublin orfrom Cork, four The Law Society of Ireland of Hungary. The conference of Hungary. Annual Conference 2008 will Annual Conference nights’ accommodation at the take place in Budapest, capital package includes return flights package includes return five-star Hilton Hotel, welcome For information or more go to to register, www.lawsociety.ie orwww.lawsociety.ie Anna Keating phone (Amendment) Act 2007 Assessment Board www.lawsociety.ie Prisons Act 2007Number: Date enacted: Commencement date: mencement order(s) to be made (per s1(2) of the act): 1/5/2007 for part 1 (ss1-3, Pharmacy Act 2007Number: Date enacted: Personal Injuries Number: Date enacted: Commencement date: 7/2007 Commencement date: mencement order(s) to be made (per s1(2) of the act): 22/5/2007 for the following provisions of the act: part 1 (other than s4); part 2 (ss5-9, ‘The Pharmaceutical Society of Ireland’); part 3 (ss10-12, ‘The council of the society’); s18 (‘Regulation of retail pharmacy businesses’); s76 (‘Codes, rules and regula- tions’); schedule 1 (per SI 243/2007) 153/2007); 1/8/2007 for all 153/2007); (per SI other sections 565/2007) LAW SOCIETY GAZETTE
BRIEFING 56 57 BRIEFING land. Solicitors ), that the G Solicitors and amended by Solicitors (Amendment) MARCH 2008 MARCH www.lawsociety.ie (as substituted by section Solicitors (Amendment) Act Solicitors (Amendment) ) of the On 22 October 2007, the On 22 October 2007, FIELD OF PRACTICES: eneral Practice, Administra- Civil and Commer- tive Law, imposed in regard to their imposed in regard of the findings in respect respondent solicitor. Court President of the High 8 of ordered, pursuant to section the 1960 18 of the Act 1994 section 9 of the (Amendment) Act 2002 respondent solicitor shall not be permitted to practise as a sole practitioner or in partnership, that he be permitted only to as an assistant solicito/r practise under the direct control and supervision of another solicitor of at least ten years standing, to be approved in advance by the Law Society of Ireland. cial Law, Company Law, Banking Company Law, cial Law, and Foreign Investments in Spain, Arbitration, Taxation, International Law, Family Law, Litigation in all Courts. G ABOGADOS LAW SOCIETY GAZETTE Avda. Ricardo Soriano, 29, Avda. www.berdaguerabogados.com SPANISH LAWYERS SPANISH [email protected] PROFILE: TWENTY YEARS ADVISING CLIENTS Tel: 00-34-952823085 Fax: 00-34-952824246 00-34-952823085 Tel: IN REAL ESTATE TRANSACTIONS IN SPAIN IN REAL ESTATE Web site: Web manner or at all, in the enquiries set out letter of 7 October Society’s or at 2005 in a timely manner all. panish Lawyers Firm focused on serving the need of the Solicitors (Amendment) Act 2002 e-mail: Edificio Azahara Oficinas, 4 Planta, 29601 Marbella, Malaga, Spain e) the specific Failed to reply to that the The tribunal ordered such Law Society do bring in respect finding of the tribunal solicitor of the respondent before the High Court, together with the report of the tribunal to the High Court, which report includes the opinion of the tribunal as to the fitness or otherwise of the respondent solicitor to be a member of the solicitors’ profession, having regard to their findings and recommendations in respect of the sanction that should be RAFAEL BERDAGUER foreign investors, whether in company or property transac- tions and all attendant legalities such as questions of inheritance, taxation, accounting and book- keeping, planning, land use and litigation in all Courts. S 2,268.75 for time that he to the complainant in a timely to the complainant in a having received same manner, paid in April 2005 and only March the complainant in 2006, 11 months later, 6 section 10 notice dated timely February 2006 in a having only furnish- manner, on ed his file to the Society 3 May 2006, complainant fees of € allegedly spent in dealing with her complaint to the Society, letters of 8 September 2005, 16 September 2005, 20 October 2005 and 6 December 2005 in a timely b) to comply with a Failed c)the Attempted to charge d) Failed to reply to the Society’s 18,000 € Solicitors [4354/DT
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Publication of advertisements in this section is on a fee basis and does not represent by the Law Society of Ire an endorsement Solicitors DisciplinarySolicitors Tribunal This report Disciplinary outcome of a Solicitors of the inquiry Tribunal of Ireland by the Law Society is published as provided the by section 17 of 23 (as amended for in section On 8 February 2007, the Solicitors Disciplinary Tribunal found the respondent solicitor guilty of misconduct in his practice as a solicitor in that he: a)a Failed to pay over THE HIGH COURT 2007 No 32SA Gerard In the matter of practising solicitor, Murphy, Solicitor, as Gerard Murphy, Terrace, at 1 Goldsmith and in Wicklow, Co Bray, the matter of the Acts 1954-2002 66/06] Law Society of Ireland (applicant) Murphy Gerard solicitor) (respondent (Amendment) Act 1994 Ltd (defen- , G the plaintiff’s husband in a car husband in a the plaintiff’s collided accident where his car of with a truck and the contents propelled the load on the truck extensive forward, causing sought to injuries. The plaintiff of claim amend the statement after receiving details of particu- lars from the defendant. A motion was heard on that basis. The defendants opposed the motion on the grounds of delay, that the new claim would be statute barred, and that an inspection of the van was carried out. sought The amendment raised a new issue in the action, which was not raised by the plaintiff but by the defendant in its plea of negligence and con- was tributory negligence. Time extended to deliver a reply that would deal, in terms of the over- loading of the vehicle, with a plea of negligence and contribu- tory negligence against the plaintiff. v Allen (plaintiff/respondent) Irish Holemaster dant/appellant) Supreme Court, 27/7/2007 [FL14322] , . This information is taken from awareness legal current FirstLaw’s service, published every day on the internet at www.firstlaw.ie. , part 4 Civil Liability Act [FL14350] , arising out of the death of McGovern J refused the McGovern J refused Civil Liability Act 1961 Rules of the Superior Courts mendment of a statement of claim application, holding that the application, holding a doc- applicants’ mother signed that she ument confirming in wished to include her children her asylum application. of Furthermore, the concerns the applicants’ parents in rela- tion to their children were raised before the Refugee Applications Commissioner and the Refugee Consequently, Appeals Tribunal. there was no reason why the applicants ought to have been treated separately from their the first- parents. Further-more, named respondent was not obliged, when making the to consider deportation order, the applicants separately. Z(Z), Z(G) and Z(S) (A minor suing by his next friend and ZZ) (applicants) v father, Minister for Justice, Equality and Law Reform (respondent) High Court (McGovern J), 26/6/2007 Practice and procedure A – – claim arose pur- The plaintiff’s suant to the 1961 TORT , by way of judi- certiorari REFUGEE AND ASYLUM LAW cial review, quashing the recom- cial review, mendations of the second- named respondent that the applicants be refused asylum. They also sought an order of prohibition and an injunction restraining their deportation. The applicants arrived in this state with their parents and, their claim related to essentially, a failure of the respondent to consider their applications for asylum separately from their parents’ application. Supreme Court, 27/7/2007 [FL14329] Deportation – whether the Judicial review ought to have given respondents separate consideration to the minor status. applicants’ claims for refugee The applicants applied for an order of foot of an order under section foot of an order under was an 14 of the act, which The applicant admission order. with was detained in accordance The law and in his own interest. appeal was dismissed. v MD (applicant/appellant) of St Clinical Director and Hospital Brendan’s Miriam Gannon (respondents) News fromIreland’s online legal awareness service Compiled by Bart Daly for FirstLaw MARCH 2008 MARCH update Mental Health Act . The court held that the CONSTITUTIONAL LAW CONSTITUTIONAL Mental health law – order – renewal Admission order were procedures whether the correct – no adopted in the circumstances detention without independent – review 2001 The applicant had a history of contact with the psychiatric services due to his affliction with schizophrenia. In March 2007, he was admitted as a voluntary patient and later left. His family had concerns for him in April and a recommendation was made to involuntarily admit him. The argument was one as to procedures adopted and the general scheme of the act, where no person shall be detained without independent review. Having been detained on an a renewal order admission order, was made without his knowledge a few days before the Mental to sit to was due Health Tribunal review his original detention in the hospital. Issues were raised by the applicant as to the exact date that the renewal order became effective, and the lawful- ness of his detention as a result. detention the tribunal was reviewing was the detention on www.lawsociety.ie LAW SOCIETY GAZETTE firstlaw
BRIEFING 58 BRIEFING 59 MARCH 2008 MARCH www.lawsociety.ie The standstill period should The communication of the legal clusion of a contract (which the clusion of a contract (which directive notes is a serious obstacle to effective judicial protection for the tenderers concerned, namely those ten- derers who have not yet been definitively excluded), the directive provides for a mini- mum standstill period of at least ten calendar days from the day following the date on which the contract award decision is sent to the tenderers and candi- dates concerned, during which the conclusion of the contract in question is suspended. give the tenderers concerned sufficient time to examine the contract award decision and to assess whether it is appropriate to initiate a review procedure. shall be deemed to Tenderers be concerned if they have not yet been definitively excluded. An exclusion is definitive if it has been notified to the tender- ers concerned and has either been considered lawful by an independent review body or can no longer be subject to a review procedure. Candidates shall also be deemed to be con- cerned if the contracting authority has not made avail- able information about the rejection of their application before the notification of the contract award decision to the tenderers concerned. award decision to each tenderer and candidate concerned shall be accompanied by a summary of the relevant reasons as set (Case eur LAW SOCIETY GAZETTE Alcatel Remedies Directives Alcatel Austria and [1999] ECR I–7671), Tenderers are already afford- Tenderers been There has, however, sonal and material scope of sonal and material Directives 2004/18/EC and 2004/17/EC. ed a degree of protection under the current and as a result of C-81/98, Others which held that the laws relat- ing to the review procedures of the award of public supply and public works contracts must be interpreted as meaning that member states are required to ensure that the contracting decision, prior to authority’s the conclusion of the contract as to the bidder with which it will conclude the contract, is in all cases open to review in a procedure whereby an appli- cant may have that decision set aside if the relevant conditions are met (notwithstanding the once the contract possibility, had been concluded, of obtain- ing damages). some uncertainty as to how these provisions apply in prac- tice and considerable criticism of the fact that these provisions do not address some of the most serious breaches of procurement such as the illegal direct law, award of public contracts with- out competition and the misuse of framework agreements. Minimum standstill period In order to address the absence of a period allowing an effective review between the decision to award a contract and the con- to cover and the News fromthe EU and International Affairs Committee Remedies Directives Remedies Directive Remedies Directives The directive seeks to add allow the results intended by the community legislature to be the direc- attained. In particular, tive seeks to strengthen national review procedures in cases of illegal direct awards. Public pro- curement is a cornerstone of the internal market and accounts for some 16% of EU GDP. Member states have 24 months within which to implement the directive. Review procedures The ance with the principles of ance with the principles non-discrimina- transparency, tion and equal treatment and that guarantee that tenders are assessed in conditions of effec- tive competition. essential clarifications to the existing new remedies for public contracts that fall within the scope of the substantive EU directives on public procurement, Directive 2004/18/EC (works, supplies and services contracts in the classical sector) and Directive 2004/17/EC (works, supplies and services contracts in the trans- energy, sectors of water, port and postal services). The new directive notes that, according to ECJ case law, member states should ensure that effective and rapid reme- dies are available against deci- sions taken by contracting authorities and contracting entities as to whether a particu- lar contract falls within the per- Edited by TP Kennedy, Director Law Society of Ireland of Education, Edited by TP Kennedy, 1989 and Remedies Directive Remedies Directives
new directive that amends the existing public pro-
The new directive followed The objectives of Directive new Public procurementPublic – A extensive consultations with all major stakeholders in the public procurement process, including lawyers, which revealed that legal remedies that can be intro- duced at a stage before a public contract is actually concluded are not sufficiently effective in all member states and should therefore be strengthened. EU law on public procurement aims to increase competition and transparency in order to create opportunities for all EU busi- nesses and better value and services for the higher-quality taxpayer: contracts should be awarded on the basis of objec- tive criteria that ensure compli- 2007/66/EC of 11 December 2007 are to provide clear and effective procedures for seeking redress in cases where bidders consider contracts to have been unfairly awarded, so as to ensure that contracts ultimately go to the best tender and, as a conse- quence, make businesses and citizens more confident that public procurement procedures are being conducted in a fair and competitive manner throughout the EU. curement (Council Directives 89/665/ EEC of 21 December 92/13/EEC of 25 February 1992) has recently been formal- ly adopted by the Council of Ministers and the European Parliament. A review procedure should A review procedure Member states may also pro- review procedures include pro- review procedures to take inter- vision for powers with the aim of im measures the alleged infringe- correcting preventing further ment or the interests con- damage to aside or cerned, either to set of deci- ensure the setting aside or the sions taken unlawfully, persons awarding damages to harmed by an infringement. any per- be available at least to had an son having or having a particu- interest in obtaining had been lar contract and who by an or risks being harmed alleged infringement. vide that the body responsible for the review procedures may take into account the probable consequences of interim meas- ures for all interests likely to be harmed, as well as the public interest, and may decide not to grant such measures where their negative consequences could exceed their benefits. A decision not to grant interim measures prejudice shall not, however, any other claim of the person seeking such measures. In rela- tion to the allocation of powers member to deal with the review, states may confer powers on separate bodies responsible for different aspects of the review procedure. Intention to seek review Where a member state requires a person intending to use a review procedure to inform the contracting authority or con- tracting entity of that intention, the directive provides that, in such cases, it is necessary to make it clear that this should not affect the standstill period or any other period to apply for review. state when a member Further, requires that the person con- cerned has first sought a review with the contracting authority it is neces- or contracting entity, sary that this person should have a reasonable minimum period within which to refer to the competent review body before In order to prevent serious The principle of ineffective- sons relating to a general inter- sons relating points out that est, the directive in the effec- economic interests contract may only tiveness of the as overriding rea- be considered exceptional circum- sons if, in would stances, ineffectiveness conse- lead to disproportionate economic quences. However, to the interests directly linked shall not contract concerned reasons constitute overriding interest. relating to a general the costs Such interests include in the resulting from the delay the execution of the contract, launch- costs resulting from the ing of a new procurement proce- dure, the costs resulting from the change of the economic operator performing the con- tract and the costs of the legal obligations resulting from the ineffectiveness. infringements of the standstill obligation and automatic sus- pension, which, the directive notes, are prerequisites for effective sanc- effective review, Contracts tions should apply. that are concluded in breach of the standstill period or auto- matic suspension should there- fore be considered ineffective in principle if they are com- bined with infringements of Directive 2004/18/ECDirective 2004/17/EC, to the or extent that those infringements have affected the chances of the tenderer applying for review to obtain the contract. ness may be inappropriate in the case of other infringements of formal requirements. In such cases, member states should have the flexibility to provide for alternative penal- ties. It is for the member states to determine the details of alternative penalties and the rules of their application. Requirements for review procedures Member states are to ensure that the measures taken for the purpose of providing effective Where a contract is so deter- In such cases, alternative In relation to overriding rea- contract award decision and to contract award it is appropriate assess whether a review procedure. to initiate award decision is When the them, the tenderers notified to given the relevant should be for information that is essential review. them to seek effective to The same applies equally that candidates, to the extent or the contracting authority in entity has not made available about the due time information rejection of their application. Illegal direct awards ineffec- The directive regards tiveness as the most effective way to restore competition and to create new business opportu- nities for those economic opera- tors who have been deprived illegally of their opportunity to compete. A contract resulting from an illegal direct award should therefore, in principle, be considered ineffective. The inef- should not fectiveness, however, be automatic but should be ascertained by or should be the result of a decision of an inde- pendent review body. mined to be ineffective, the con- tract will have to be tendered again, this time in accordance with the appropriate rules. National courts may only decide that these contracts remain in force if the review body finds, after having examined all rele- vant aspects, that overriding reasons relating to a general interest require that the effects of the contract be maintained. remedies that are effective, proportionate and dissuasive must be applied, which may entail the shortening of the duration of the contract or the imposition of fines on the con- tracting authority – an award of damages where the scope of cancellation of contractual obligations that still have to be performed has been limited constitute would not, however, an appropriate remedy. MARCH 2008 MARCH (OJEU) (a Official Journal In order to combat illegal out in article 41(2) of Directive out in article subject to the 2004/18/EC, of article 41(3) of provisions and a precise that directive, the exact standstill statement of pursuant to period applicable, of the transposing provisions national law. Derogations from the stand- still period mem- Article 2(b) provides that by way ber states may provide, stand- of derogation, that the apply still periods shall not 2004/18/ where (a) Directive pub- EC does not require prior lication of a contract notice in the notice of the contracting intention to con- authority’s clude the contract is, however, required to be published in the OJEU in accordance with arti- cle 3a and a standstill period of ten days to be applied before concluding the contract. A sim- ilar procedure applies where member states have invoked the derogation from the stand- still period for contracts based on a framework agreement and a dynamic purchasing system – the requirements are set out in article 2d(5)); (b) the only ten- derer concerned is the one who has been awarded the contract and there are no candidates concerned; and (c) in the case of a contract based on a frame- work agreement as provided for in article 32 of Directive 2004/18/EC and in the case of a specific contract based on a dynamic purchasing system as provided for in article 33 of that directive. awards in respect of which a standstill derogation had been invoked, member states are to ensure that such contracts are ineffective, in accordance with articles 2(d) and 2(f) of the directive, where applicable. Relevant information The standstill period should give the tenderers concerned sufficient time to examine the www.lawsociety.ie LAW SOCIETY GAZETTE
BRIEFING 60 BRIEFING 61 MARCH 2008 MARCH Freeport plc v , 11 October G www.lawsociety.ie The court found it was not In addition, the measure did member state concerned. unreasonable for a member state to take the view that com- pulsory retirement, as a worker reaches the age-limit provided may be appropriate and nec- for, essary to achieve the legitimate aim of promoting full employ- ment by facilitating access to the labour market. not unduly prejudice the legiti- mate claims of workers subject to compulsory retirement. The national legislation is not only based on a specific age, but also takes account of the fact that the persons concerned are entitled to financial compensa- tion by way of a reasonable retirement pension at the end of their working life. Case C-98/06, dures are not judicial in char- dures are not reasons for their written acter, must always be decisions in such a case, given. Further, must be madeprovision to whereby guarantee procedures measure any allegedly illegal body or taken by the review the exer- any alleged defect in cise of the powers conferred of judi- on it can be the subject anoth- cial review or review by or tri- er body that is a court of bunal within the meaning and article 234 of the treaty the con- independent of both and the tracting authority review body. LITIGATION James Kinch is a senior executive solicitor in the law department of Dublin City Council. Olle Arnoldsson 2007. Mr Arnoldsson is an employee of a company that has, since 1996, carried out ‘factory shop’ retail-centre development projects through- LAW SOCIETY GAZETTE The ECJ considered that The promotion of a high level Member states enjoy broad ly exclude the possibility that it may be justified. other elements, taken from the general context of the measure concerned, may enable its un- derlying aim to be identified for the purposes of judicial review as regards its justification. The court inferred from the context in which it was adopted that the measure was aimed at regulat- ing the national labour market, in particular purposes of for the checking unemployment. of employment is one of the ends pursued both by the EU and the EC. Such an aim, in principle, could be regarded as “objectively and reasonably” justifying a difference in treat- ment on grounds of age. discretion in their choice, not only to pursue a particular aim in the field of social and employ- but also in the def- ment policy, inition of measures capable of achieving it. The national meas- ures may not go beyond what is “appropriate and necessary” to achieve the aim pursued by the ing of interim measures, the set- ing of interim of decisions taken ting aside or the awarding of unlawfully to be determined damages are the Similarly, law. by national of a contract consequences are being considered ineffective national to be determined by in partic- law – national law may, provide for retroactive can- ular, obli- cellation of all contractual of the gations or limit the scope cancellation to those obligations that still have to be performed. Enforceability of decisions ensure Member states are to that decisions taken by bodies responsible for review proce- dures can be effectively enforced. Where bodies responsible for review proce- Mr de la Villa arguedthe that The legislation provides that, The court then considered Except where the directive his contribution base. notification to him amounted to a dismissal and took proceed- ings in the Spanish courts. The Spanish courts referred a num- ber of questions to the ECJ on the interpretation of Directive 2000/78. The ECJ held that the Spanish legislation fell within the scope of the directive. when a worker reaches the age fixed for compulsory retirement, this leads automatically to the termination of his employment relationship. It thus establishes rules relating to “employment and working conditions, includ- ing dismissals and pay” within the meaning of the directive. whether there were possible justifications for the difference in treatment. The legislation was part policy of a national aiming to promote better acc- ess to employment by means of better distribution of work between the generations. The fact that the legislation does not formally refer to an aim of that kind does not automatical- review body from making a review body of whether the prior assessment In as such, is admissible. review, the directive states this regard, states may provide that member shall end either that this period has taken when the review body for a decision on the application on a interim measures, including the con- further suspension of or when clusion of the contract, taken a the review body has of the decision on the merits the appli- case, in particular on of an cation for the setting aside unlawful decision. provides for member states to ensure that a contract is consid- ered ineffective by a review body in specified instances, the exer- cise of powers such as the grant- Félix Palacios RECENT DEVELOPMENTS IN EUROPEAN LAW RECENT DEVELOPMENTS Mr de la Villa worked for Spanish law treats compul- , 16 October 2007. Directive EMPLOYMENT However, seeking review However, Case C-411/95, Cortefiel from 1981 as organi- In 2005, he sational manager. was notified of the termination of his contract of employment, as he had reached the compul- sory retirement At this age. date, he had completed the periods of employment neces- sary to draw a retirement pen- sion under the social security scheme amounting to 100% of sory retirement in col- clauses lective agreements as lawful – where they provide as sole requirements that workers must have reached retirement age (65 years) and fulfilled other social security conditions for entitlement to a contributory retirement pension. 2000/78 established a general framework for equal treatment in employment. It aims to com- bat certain kinds of discrimina- tion, including discrimination on grounds of age. SA de la Villa v Cortefiel Servicios shortly before the end of the shortly before the end period minimum standstill effect of should not have the depriving the body responsible of the for review procedures to act, in minimum time needed to extend the stand- particular, of still period for the conclusion it is the contract. In the event, an inde- necessary to provide for pendent minimum standstill period that should not end before the review body has taken a decision on the application. This should not prevent the the conclusion of the contract, the conclusion that that person in the event to challenge the should wish of reply from the reply or lack authority or con- contracting tracting entity. res judica- res judicata G An interpretation of the rele- EC acts arevalid, they do not to themselves have jurisdiction declare acts invalid. That such the EC jurisdiction is vested in courts, and such acts become definitive unless properly chal- lenged by their respective addressees.A recipient of aid of a that has been the subject the com- negative decision by ques- mission cannot call into tion the lawfulness of that deci- sion before the national courts by challenging the national measures taken to implement that commission decision. vant Italian legislation that laid down the principle of – which precludes the open- As a result of the primacy of must not be applied insofar as its application prevents the recovery of state aid granted in breach of EC law that has been found to be incompatible with the common market in a com- mission decision that has become final. ing of a second set of proceed- ings or the examination of mat- ters that could have been raised in earlier proceedings but were not – could result in effects being attributed to a decision of a national court that exceeded the jurisdiction of the national court in question. Such an inter- pretation could frustrate the application of community law insofar as it would make it impossible to recover state aid that had been granted in breach of EC law. national courtsEC law, must give full effect to its provisions and – if necessary – refuse, of their own motion, to apply any provision of national law that is contrary to those provisions of Therefore, the relevant EC law. Italian law seeking to lay down the principle of ta , res at the Four Courts LAW SOCIETY ROOMS LAW Ministero dell’ a company that had , in such circumstances. 6(2) expressly provides for a is case in which an action brought solely in order to remove the party sued from the jurisdiction of the court that in his would be competent case. Thereno such express is provision in article 6(1). The of articletest for the application 6(1) is that there is a sufficient claims connection between the to hear to make it expedient and determine them together, to avoid the risk of irreconcil- able judgments resulting from separate proceedings. Case C-119/05, STATE LIABILITY STATE In 1999, the Administrative The courtasked was Lucchini dell’Artigianato v Lucchini SpA The ECJ pointed out that, although national courts have occasion to consider whether Industria, del Commercio e applied for the aid in 1985, obtained final judgment in the national courts that it was enti- tled to the aid for which it had applied. In obtaining judgment, it had not referred to the appli- cable EC law nor to the com- mission’s decision. Court of Lazio declared that, as the national court’s decision had become final, the Ministry of Industry – which had revoked the decree granting the aid and had called on Lucchini to repay it on foot of the commission’s decision – could not revoke the payment of the aid. whether EC law precludes appli- cation of the principle of judicata 18 July 2007. In 1990, the commission declared all state aid applied for under an Italian law as incompatible with the common market. MARY BISSETT OR PADDY CAULFIELD BISSETT OR PADDY MARY Réunion as having been The case was referredThe case was to the The court held that the ques- It is for the national court to relationship with that company). Thus, article 6(1) should not be the two actions applied, as were not connected. an ECJ. It was asked whether obli- action based on a disputed gation on the part of a company a conse- to make a payment as quence of an undertaking given by an undertaking that is nei- ther a representative nor an can be agent of the company considered contractual in as nature. tion rested the premise on that article 6(1) does not apply where actions brought against a number of defendants before the courts for the place where any one of them is domiciled have different legal bases. It pointed out that it was not apparent from the wording of article 6(1) that the conditions laid down for application of that provision include a requirement that the actions brought against different should defendants have identical legal bases. assess whether there is a suffi- cient connection between the different so that they claims should be heard together to avoid the risk of irreconcilable judgments result from separate proceedings. It distinguished its earlier decision in The Swedish court also The ECJ indicated that article FOR BOOKINGS CONTACT FOR BOOKINGS CONTACT TEL: 668 1806 decided in a different legal and factual context. asked whether the application of article 6(1) presupposes that the action was not brought against a number of defendants with the sole object of ousting the jurisdiction of the courts of the member states where one of the defendants is domiciled. Européenne MARCH 2008 MARCH eet at the Four Courts M At a meeting between Mr At a meeting between The shop in Sweden is In February he 2003, out Europe. Freeport acquired a those projectsnumber of from these was One of the company. a project is Kungsbacka, Sweden. Arnoldsson and the managing directorFreeport, of it was agreedhe would receive that a fee Stg£500,000 success Some when this shop opened. Freeport weeks later, con- firmed the agreement in writ- ing, but added three conditions fee. He to payment of the accepted those conditions. One of these provided that the payment he would receive would be made by the company that was to become the owner of the Kungsbacka site. Freeport sent Mr Arnoldsson written confirmationof the revised agreement. owned by a Swedish company, Freeport Leisure (Sweden) AB. It is owned by a wholly owned subsidiary of Freeport plc. Arnoldsson asked both Freeport and Freeport AB to pay his fee. Freeport refused AB as it was not a party to the agreement and did not exist when the agreement was concluded. brought an action in the Swedish courts against both companies, claiming the pay- ment of his fee with interest. He brought this action against Freeport, relying on article 6(1) of Regulation 44/2001. Freeport argued that it was not established in Sweden and that the claims were not so closely connected as to confer jurisdic- tion on the Swedish courts. Freeport argued that the claim against it was contractual in nature, whereas that against Freeport AB was tortious (as Arnoldsson had no contractual www.lawsociety.ie LAW SOCIETY GAZETTE
BRIEFING 62 PROFESSIONAL NOTICES LAW SOCIETY GAZETTE MARCH 2008
LOST LAND CERTIFICATES LAW SOCIETY
Registration of Deeds and Title Acts Gazette 1964 and 2006 An application has been received from PROFESSIONAL NOTICE RATES the registered owners mentioned in the schedule hereto for an order dis- RATES IN THE PROFESSIONAL NOTICE SECTION ARE AS FOLLOWS: pensing with the land certificate issued in respect of the lands specified in the • Lost land certificates – €138.50 (incl VAT at 21%) schedule, which original land certifi- cate is stated to have been lost or inad- • Wills – €138.50 (incl VAT at 21%) vertently destroyed. The land certifi- • Title deeds – €138.50 per deed (incl VAT at 21%) cate will be dispensed with unless noti- • Employment/miscellaneous – €138.50 (incl VAT at 21%) fication is received in the registry with- in 28 days from the date of publication These rates will apply from Jan/Feb 2008 to Dec 2008 of this notice that the original certifi- cate is in existence and in the custody HIGHLIGHT YOUR NOTICE BY PUTTING A BOX AROUND IT – €33 EXTRA of some person other than the regis- tered owner. Any such notification ALL NOTICES MUST BE PAID FOR PRIOR TO PUBLICATION. CHEQUES SHOULD BE should state the grounds on which the MADE PAYABLE TO LAW SOCIETY OF IRELAND. Deadline for April Gazette: certificate is being held. 19 March 2008. For further information, contact Catherine Kearney or Valerie Farrell on Property Registration Authority, tel: 01 672 4828 (fax: 01 672 4877) Chancery Street, Dublin 7 (Published 7 March 2008)
Regd owner: John Gaskin; folio: 184F; 11668F/41664; lands: plot of ground Killester, district of Killester and city land of Coolmine and electoral divi- lands: Ballydarton and barony of situate in the townland of of Dublin; Co Dublin sion of Blanchardstown-Coolmine Idrone East; Co Carlow Riverstown and barony of Regd owner: Francis Keogh and and barony of Castleknock; Co Regd owner: Patrick Keogh Barrymore in the county of Cork; Constance Keogh, 25 Mount Dublin (deceased); folio: 1726F; lands: Co Cork Drummond Square, Harold’s Cross, Regd owner: Martin Joseph Gibsey; Aclare and Myshall and barony of Regd owner: Daniel Joseph Guerin; folio: DN155702F; Co Dublin folio: 28716F; lands: townland of Forth; Co Carlow folio: 54696F; lands: plot of ground Regd owner: Roisin Sullivan and Philip Keernaun and barony of Clare; Co Regd owner: John William James; situate in the townland of Rathduane Sullivan, 54 Seagrange Road; folio: Galway folio: 7972F; lands: Tankardstown and barony of Muskerry West, in the DN46728L; Co Dublin Regd owner: Hans H Hoppe; folio: and barony of Rathvilly; Co county of Cork; Co Cork Regd owner: John Carlin (one undivid- 3712F; lands: townland of Dooros 1 Carlow Regd owner: Francis Diver and ed /100 share); folio: DN112530F; (Ross By) and barony of Ross; Co Regd owner: Anthony Shields, 81 Margaret Diver, West End, Ardara, lands: property known as no 55 Galway Edgewood Lawn, Blanchardstown, Co Donegal; folio: 5548 and 5737; Prospect Avenue, Rathfarnham, situ- Regd owner: Thomas O’Halloran; Dublin 15; folio: 5369F; lands: lands: Drumbaran; Co Donegal ate in the townland of Newtown and folio: 8359F and 56131F; lands: Portaliff; Co Cavan Regd owner: Donal Campbell and barony of Uppercross; Co Dublin townland of Carrowmoreknock and Regd owner: John Joseph Murphy and Darina Campbell, Speenogue, Bart, Regd owner: Killian Banks (99 undivid- Freeheen Island and barony of 1 Johannah Murphy, Uragh, Co Donegal; folio: 55967F; lands: ed /100 share); folio: DN112530F; Moycullen; Co Galway Swanlinbar, Co Cavan; folio: 2400; Speenoge; Co Donegal lands: property known as no 55 Regd owner: Tom Quinton; folio: lands: Uragh, Commas; Co Cavan Regd owner: Pierce Bermingham and Prospect Avenue, Rathfarnham, situ- 75125F; lands: townland of Regd owner: Annie McKiernan, Nancy Boyle; folio: DN46232L; ate in the townland of Newtown and Knockaunnagat and barony of Leitra, Corlough, Bawnboy, Co lands: property situate in the town- barony of Uppercross; Co Dublin Dunmore; Co Galway Cavan; folio: 1050; lands: Leitra; Co land of Ballycragh and barony of Regd owner: Joseph O’Keeffe and Anna Regd owner: Patrick Whyte (as tenant- Cavan Uppercross; Co Dublin O’Keeffe; folio: DN37185L; lands: in-common of one undivided half Regd owner: Patrick O’Donoghue and Regd owner: Bernadette Brennan (49 property situate in the townland of share); folio: 53000; lands: townland 1 Frances O’Donoghue; folio: undivided /50 share(s)); folio; Templeogue and barony of of Knockroe, Killimor, 14227F; lands: townland of DN23718F; lands: property situate Uppercross; Co Dublin Cloonsheecahill, Cappanasruhaun Ballyconnoe South and barony of in the townland of Kilbogget and Regd owner: Gearoid Clarke and Edel and barony of Kilconnell; Co Burren; area: 0.164 hectares; Co barony of Rathdown in the county of Clarke; folio: DN61007L; lands: Galway Clare Dublin; Co Dublin property situate in the townland of Regd owner: William Brophy and Regd owner: Martin Reddington and Regd owner: Mohamed Taha (one Castleknock and barony of Eileen Brophy; folio: 16309F; lands: 1 Colette Reddington; folio: 16608F; undivided /50 share); folio: Castleknock; Co Dublin townland of Clievragh and barony of lands: townland of Crag and barony DN23718F; lands: property situate Regd owner: Hugh Ignatius Byrne; Iraghticonnor; Co Kerry of Tulla Lower; area: 10.927 in the townland of Kilbogget and folio: DN3526F; lands: property sit- Regd owner: Patrick Dineen and hectares; Co Clare barony of Rathdown in the county of uate in the townland of Ballystruan Hannah M Dineen; folio: 28736F; Regd owner: Seamus Barry (deceased); Dublin; Co Dublin and barony of Coolock; Co Dublin lands: townland of Camp and barony folio: 35035; lands: plot of ground Regd owner: Industrial Development Regd owner: Teresa McKenna; folio: of Corkaguiny; Co Kerry situate in the townland of Agency (Ireland) (statutory corpora- DN1153; lands: property situate in Regd owner: Terry Egan; folio: 7531F; Dromderrig and barony of Kinsale tion); folio: DN134874F; lands: the townland of Coolquoy Common lands: Carrahane Lower and barony in the county of Cork; Co Cork property situate in the townland of and barony of Nethercross; Co of Clanmaurice; Co Kerry Regd owner: John Joseph Cronin Fortunestown and barony of Dublin Regd owner: Timothy Murphy and (deceased); folio: 699; lands: plot of Newcastle; Co Dublin Regd owner: John O’Rourke and Sheelagh Murphy; folio: 7189F; ground situate in the townland of Regd owner: Deirdre Mille-Kavanagh; Antoinette O’Rourke; folio: lands: townland of Barrow and Ballyard and barony of Barrymore folio: DN56583F; lands: property DN130190F; lands: a plot of ground barony of Trughanacmy; Co Kerry in the county of Cork; Co Cork situate on the east side of the known as 9 Whitechapel Road, Regd owner: John O’Connor; folio: Regd owner: Denis Dooley; folio: Malahide Road in the parish of Blanchardstown, situate in the town- 19856F; lands: townland of
www.lawsociety.ie 63 Co late of late of late of Main Co Wexford Co Wexford Co Wexford Co Wexford Co Wexford Wicklow Dernamuck, Knockanarrigan, folio: 6348; Donard, Co Wicklow; lands: townland of Clonshannon Upper; and barony of Talbotstown Co Wicklow Redcross, Co Ballinvalley, folio: 8811F and 9073; Wicklow; lands: townland of Ballinvally Upper (ED Ennereilly) in the barony of Arklow in the electoral the cottage division of Ennereilly, thereon situate in the townland of Ballinvally Upper (ED Ennereilly), known as Ballinvalley Upper, in the Arklow, Woodenbridge, barony of Arklow in the electoral division of Ennereilly; 23022; lands: Quanstown and 23022; lands: Quanstown barony of Forth; 9115; lands: Coolnastudd and 9115; lands: Coolnastudd barony of Gorey; The 17949; lands: Ballymacoonoge, Ballagh and barony of Ballaghkeen South; and folio: 21271; lands: Tullycanna barony of Bargy; folio: 6785, 6786, 8355, 2583F; folio: 6785, 6786, 8355, lands: Ballynamona and barony of Ballaghkeen North; Doyle, Stephen (deceased), Sixmilebridge, Co Clare, Woodpark, and 9 Scamore House, Shannon, Drumgeeley Hill, Shannon, Co Clare, any who died on 6 June 2007. Would person having knowledge of a will made by the above-named deceased, or if any firm is holding same, please contact Solicitors, John Casey & Company, Bindon Street, Ennis, Co Clare; tel: 065 682 8159, fax: 065 682 0519 Elwood, Patricia (deceased), Street, Kiltimagh, Co Mayo, who died 6 any person December 2007. Would having knowledge of a will made by the above-named deceased please contact Solicitors, Main Gilmartin & Murphy, Street, Kiltimagh, Co Mayo; tel: 094 938 1204, fax: 094 938 1226 Regd owner: Kathleen Hoxey, Regd owner: Paul Janzen of Merlin Park Regional Hospital, Galway, and formerly of 195 Bohermore, who died on 17 January 2008. Galway, any person having knowledge of Would a will made by the above-named deceased please contact Emerson & Solicitors, 1 St Francis Street; Conway, tel: 091 562 531, fax: 091 566 808 Finn, Francis (deceased), Regd owner: Bridget Murray; folio: Regd owner: Bridget Murray; Regd owner: John McCarthy; folio: Regd owner: John McCarthy; folio: Regd owner: Peter Breen; Regd owner: Louise Mary Ennis; Regd owner: Elizabeth Mary Curran; Regd owner: Elizabeth Mary Co Co Co Co Co WILLS Co Westmeath Co Westmeath Co Waterford Co Waterford Co Westmeath Co Tipperary Co Sligo Co Westmeath 1705F; lands: plot of ground situate in the townland of Headborough and barony of Coshmore and Coshbride in the county of Waterford; lands: plot of ground situate in the townland of Shanakill in the barony of Upper Third in the electoral division of Rathgormack in the county of Waterford; Waterford Parkanham Hall Road, Castlepollard, Co Westmeath; folio: 11618; lands: Kinturk Demesne, Auburn Heights, Athlone, Co folio: 5198; lands: Westmeath; Collegeland; Glasson, Athlone, Co Westmeath; folio: 3724; lands: Rath; Westmeath Merville Road, Stillorgan, Co 12 J Holloway, Dublin, and Vincent Road, Clondalkin, Co St Brigid’s Dublin; folio: 19045; lands: Creaghduff; Lenamore, Co Longford; folio: 12466; lands: Corrydonnellan; Westmeath nellan, Rathowen, Co Westmeath; folio: 19158; lands: Corrydonnel- lan; 2197; lands: townland of Blackcastle and barony of Eliogarty; Tipperary Breda Barron; folio: 12728; lands: plot of ground situate in the town- (2), (5) lands of (1), (4) Toberagoole, Pilltown, (3) Garrananaspick, in the barony of Decies-within-Drum in the county of Waterford; Waterford (deceased); folio: 7543; lands: plot of ground situate in the townland of Moyng and barony of Decies-with- in-Drum in the county of Waterford; Pauline Carney; folio: 13585F; Pauline Carney; folio: and lands: townland of Buninna area: 0.46 barony of Tireragh; hectares; townland Healy; folio: 17561; lands: Srannagh and of Lissaneeny, Tirerrill; Clooskirt and barony of Co Sligo of 141L; lands: townland Gortmaloge and barony of Iffa and Offa East; Regd owner: John Murphy; folio: Regd owner: John Skehan; folio: 2396; Regd owner: Desmond Dalton, Regd owner: Hans Eric Ehlers, 35 Rath, Regd owner: James Lowry, 23 Regd owner: Alfred Palmer, Regd owner: John Ross, Newport, Regd owner: John Ross, Corrydon- Regd owner: John Commins; folio: Regd owner: Mortimer Barron and Regd owner: Michael Coyne Regd owner: Eamon Carney and Regd owner: Eamon Carney and Eileen Regd owner: John P Healy folio: Regd owner: Gerard Carroll; Co Co Co Co Co Mayo Co Offaly Co Meath Co Mayo Co Limerick Co Offaly Co Meath Co Meath Co Longford Co Mayo Co Roscommon Co Mayo Co Roscommon Farrell, Kilbride, Mulhuddart, Co Dublin; folio: 23546F; lands: Ballymacarney; Co Louth; folio: Dromin, Dunleer, 10753; lands: Deenes; 18207; lands: Annamult and barony of Shilleogher; lands: Cloghan Demesne, Gortarevan, Clonahenogue and barony of Garrycastle; 624F; lands: Knockdrin and barony of Warrenstown; Niland; folio: 28136F; lands: town- land of Kiltaugharaun, Knockalinsk and Creggarve and barony of Kilmaine; 33839F; lands: townland of Murrisk demesne and Bellatalleen and barony of Murrisk; Newtowncashel, Co Longford; folio: 4127F; lands: Cloonmee, Longford Louth; Dromin, Drogheda, Co folio: 3050; lands: Rathescar; Louth lands: John P Creighton; folio: 7372; barony townland of Gortgarve and of Gallen; area: 3.497 hectares; Mayo lands: townland of Carrowbeg and barony of Burrishoole; Mary McQueeney; folio: 44695; lands: townland of Hazelhill and barony of Costello; area: 0.0177 hectares; Annie Keegan, Tenelick, Colehill, Annie Keegan, Tenelick, lands: Co Longford; folio: 10582; Tennalick; Miriam O’Grady; folio: 33980F; Miriam O’Grady; of Rathcahill West lands: townland of Glenquin; and barony Limerick of Kilglass and lands: townland barony of Coshlea; Co Roscommon Regd owner: Noel A Farrell and Anne Regd owner: John Michael Taaffe, Regd owner: Robert Harper; folio: Regd owner: Denis Kelly; folio: 4344F; Regd owner: James Anderson; folio: Regd owner: Richard Niland and Brid Regd owner: Mary Needham; folio: Regd owner: Michael Casey, Clonmee, Regd owner: Michael Casey, Taaffe, Regd owner: John Michael and Regd owner: Michael J Higgins Regd owner: John Jeffers; folio: 2617F; Regd owner: Michael McQueeney and Regd owner: Kathleen Keegan and Regd owner: Regd owner: John Walsh; folio: 11266; folio: John Walsh; Regd owner: lands: townland of Carrow Beg and barony of Boyle; area: 4.2391 hectares; Pamela Earley; folio: 12876F; lands: townland of Ballypheasan and barony of Balintober South; area: 0.0530 hectares; and Mary Kate Doherty; folio: 33221; lands: townland of Drummad and barony of Frenchpark; area: 1 acre; Regd owner: Paul Kelly; folio: 30942; Regd owner: Michael Earley and Regd owner: James Joseph Doherty Co Co Kerry Co Kerry MARCH 2008 MARCH Co Laois Co Leitrim Co Kilkenny Co Leitrim Co Limerick Co Kerry Co Kerry Co Kerry Co Kildare Co Limerick Co Kilkenny Co Kilkenny Co Kilkenny (deceased); folio: 9495F; lands: townland of Barnakyle and barony of Pubblebrien; Ballakiltyfea, Cloone, Carrick-on- Shannon, Co Leitrim; folio: 13519; lands: Bellakiltyfea; Joachim Adam, c/o Brittons, Solicitors, Ballyshannon, Co Donegal; folio: 12751, 2457F and 13249; lands: Drumany (O’Brien); Co Leitrim Limited; folio: 27842F; lands: town- land of Bohereen and barony of Clanwilliam; humman, Carrick-on-Shannon, Co Leitrim; folio: 10544; lands: Drumhumman; lands: Ballykenneen Upper and barony of Tinnahinch; Murphy, Mary O’Flynn, Ellen Murphy, Hogan, Una Mary O’Neill; folio: 1605; lands: Reviewfields and barony of Shillelogher; Kilkenny folio: 5297F; lands: Park View, Kilmakevoge, Glenmore and barony of Ida; 3247; lands: Baunfree and barony of Kells; 15083; lands: Aughatubbrid or Chatsworth and barony of Fassadinin; (deceased); folio: 5263; lands: Filbuckstown, known as Dourane and Road, Mooncoin, Waterford barony of Iverk; Baltracey, Maynooth, Co Kildare; Maynooth, Baltracey, of folio: 8882F; lands: townland Baltracey (Ikeathy and Oughterany and By) in the barony of Ikeathy division Oughterany in the electoral of Balraheen; Cantillon; folio: 19469; lands: town- Cantillon; folio: 19469; lands: and land of Knockenagh South barony of Iraghticonnor; folio: 37636F; lands: townland of folio: 37636F; lands: townland barony Kilcolgan Upper and Iraghticonnor; 22870F; lands: townland of 22870F; lands: and barony of Derrylahan Glanarought; 10646F; lands: townland of Ross and 10646F; lands: barony of Trughanacmy; Croogorts and barony of Croogorts Trughanacmy; www.lawsociety.ie Regd owner: Patrick McCarthy Regd owner: Denis O’Grady and Regd owner: John Francis Keating, Regd owner: Giesela Adam and Heinz Regd owner: Cealtra Developments Regd owner: Patrick Earley, Drum- Regd owner: Patrick Earley, Regd owner: Anne Carroll; folio: 7810; Regd owner: Mary Fahy, Mary Regd owner: Mary Fahy, Regd owner: Margaret O’Doherty; Regd owner: John Cunningham; folio: Regd owner: Michael McGrath; folio: Regd owner: Catherine Delahunty Regd owner: Thomas Reilly (deceased), Regd owner: Thomas Reilly Regd owner: Albert Schumacher- Regd owner: Donnacha Finucane; Regd owner: Donnacha Regd owner: John P O’Sullivan; folio: Regd owner: Regd owner: Patricia O’Shea; folio: Regd owner: LAW SOCIETY GAZETTE
PROFESSIONAL NOTICES 64 PROFESSIONAL NOTICES LAW SOCIETY GAZETTE MARCH 2008
Fletcher, Anne (deceased), late of 30 McFaul, Teresa (widow) (deceased), Celbridge: newly refurbished period Donnybrook, Dublin 4. Montpellier Hill, Dublin 7, who died late of Ardmore, Muff, Co Donegal. property set out in six modern office Take notice that Paula Daly intends on 20 January 2008. Would any person Would any person having knowledge of suites. Located on main street in excel- to submit an application to the county having knowledge of a will made by the a will made by the above-named lent trading location. All units have registrar for the county of the city of above-named deceased please contact deceased, who died on 4 August 2006, own front-door access and share a pri- Dublin for acquisition of the freehold Smyth & Son, Solicitors, 30 Magdalene please contact Messrs Patrick J vate, secure parking area for 14 cars. interest of the aforesaid property, and Street, Drogheda, Co Louth; tel: 041 O’Doherty & Co, Solicitors, Bridge Contact: Coonan’s; tel: 01 628 8400 or any party asserting that they hold a 983 8616, fax: 041 983 5194 Street, Carndonagh, Co Donegal; tel: visit our website, www.coonan.com superior interest in the aforesaid prem- 074 937 4129 ises (or any of them) are called upon to Heath, Kathleen (deceased), late of St Seven-day ordinary publican’s furnish evidence of the title to the Joseph’s Hospital, Ennis, Co Clare, and Murphy, Phyllis (otherwise Annie licence for sale. Contact MD White aforementioned premises to the below late of 3 Central Building Abbey Street, Philomena) (deceased), late of Reask & Co, Solicitors, Carndonagh, Co named within 21 days from the date of Ennis, Co Clare, and Knockliscrine, House, Carlanstown, Kells, Co Meath. Donegal; ref: PW/T.1855; tel: 074 937 this notice. Barefield, Ennis, Co Clare, who died on Would any person having knowledge of 4102, fax: 074 937 4313, email: In default of any such notice being 17 August 2007. Would any person hav- a will being made by the above-named [email protected] received, Paula Daly intends to proceed ing knowledge of a will made by the deceased, who died on 20 April 2002 at with the application before the county above-named deceased, or if any firm is Woodlands House, Nursing Home, Thinking of retiring? Dublin north. registrar at the end of 21 days from the holding same, please contact John Navan, please contact Oliver Shanley & Shannons of Swords have acquired date of this notice and will apply to the Casey & Company, Solicitors, Bindon Company, Solicitors, 62/63 Academy adjoining premises. They now wish to county registrar for the county of the Street, Ennis, Co Clare; tel: 065 682 Street, Navan, Co Meath, tel: 046 909 acquire a solicitor’s practice or takeover city of Dublin for directions as may be 8159, fax: 065 682 0519 3200 or fax: 046 902 9937 a retiring solicitor’s caseload/clientele. appropriate on the basis that the per- Reply in confidence to Vincent sons beneficially entitled to the superi- Kenny, Denis (deceased), late of 57 Spillane, James (otherwise Jimmy) Shannon at 01 840 1780 or or interest including the freehold rever- Lohunda Park, Clonsilla, Dublin 15, (deceased) (farmer), late of [email protected] sion in each of the aforesaid premises who died on 26 January 2008. Would Derrygrinagh Middle (otherwise are unknown or unascertained. any person having knowledge of a will Derrygranaugh), Bantry, Co Cork, Date: 7 March 2008 made by the above-named deceased farmer, who died on 10 January 2008. Wanted: Irish Law Times Signed: Richard Black Solicitors (solicitors please contact Richard Black, Solicitors, Would any person having knowledge of Reports. Do you have an archive for the applicant), Beechfield House, Beechfield House, Clonee, Dublin 15; a will being made by the above-named of Irish Law Times Reports dating Clonee, Co Meath tel: 01 825 3400 deceased please contact Elizabeth back to 1867 that you would con- Murphy, solicitor, Wolfe & Co, sider selling? If so, please email In the matter of the Landlord and Kiernan, Denis (deceased), late of 19 Solicitors, Market Street, Skibbereen, [email protected] Tenants Acts 1967-1994 and in the Deravaragh Road, Crumlin, Dublin Co Cork; tel: 028 21177, fax: 028 21676, matter of the Landlord and Tenant 6W, who died on 7 December 2007. email: [email protected] (Ground Rents) (No 2) Act 1978: an Would any person having knowledge of ARE YOU: under pressure? application by Pairc An Chrocaigh a will made by the above-mentioned Timothy, Patrick (deceased), late of too busy? overworked? Teoranta deceased please contact Michael Hayes Corgarva, Creggs, Co Galway, who DO YOU: need help to clear Take notice that any person having an & Co, Solicitors, 1 Sundrive Road, died on 19 December 1984. Would any a backlog and/or to provide interest in the freehold estate in the fol- Dublin 12; tel: 01 492 2332, fax: 01 492 person having knowledge of a will made broader services to existing lowing property: all that and those the 2540, email: [email protected] by the above-named deceased please clients without increasing premises situate off Drumcondra Park contact Ann O’Leary & Co, Solicitors, and formerly known as 24A overheads? Leavy, Christopher Joseph Millennium House, Main Street, Drumcondra Park in the parish of Saint (deceased), late of 4 Del Val Avenue, Tallaght, Dublin 24; tel: 01 427 1000, Experienced, reputable solicitor George and city of Dublin, showed Co Dublin, and ‘Arno’, 79 Terenure fax: 01 427 1001, email: info@ with own practising certificate and coloured blue on the map annexed to Road East, Dublin 6. Would any person johnolearysolicitors.com insurance available to undertake said deed. having knowledge of a will made by the litigation, commercial, employ- Take notice that Pairc an Chrocaigh above-named deceased please contact ment and family law work for Teoranta intends to submit an applica- solicitors’ firms. Lacy & Associates, Solicitors, Main MISCELLANEOUS tion to the county registrar for the Street, Blanchardstown, Dublin 15; tel: Short term, temporary, project county of the city of Dublin for the 01 821 3540, fax: 01 822 1033 or consultancy basis. Confiden- acquisition of the fee simple interest in London solicitors will be pleased to tiality guaranteed. the aforesaid property, and any party Lynch, Flannan (otherwise Flan) advise on UK matters and undertake Caroline O’Reilly BCL, Dip asserting that they hold a superior (deceased), late of 65 Creagoun, agency work. We handle probate, liti- E Comm. Email: info@oreilly interest in the aforesaid property is Tobertaiscaun, Ennis, Co Clare, gation, property and company/com- legal.ie, mobile: +353 87 051 called upon to furnish evidence of title national-school teacher, who died on 26 mercial. Parfitt Cresswell, 567/569 6526, tel/fax: +353 1 849 4226 to the aforementioned property to the June 2007. Would any person having Fulham Road, London SW6 1EU; DX below named within 21 days from the knowledge of a will made by the above- 83800 Fulham Broadway; tel: 0044 date of this notice. named deceased please contact Seamus 2073 818311, fax: 0044 2073 814044, In default of any such notice being Monaghan & Co, Solicitors, Teeling email: arobbins@parfitts. co.uk TITLE DEEDS received, the applicant, Pairc an Street, Sligo; tel: 071 913 8572, fax: 071 Chrocaigh Teoranta, intends to proceed 913 8573, email: seamusmonaghan@ English qualified solicitors – is your with the application before the county gmail.com client buying or selling property in the In the matter of the Landlord and registrar at the end of 21 days from the UK or Northern Ireland? We hold cur- Tenants Acts 1967-1994 and in the date of this notice and will apply to the McEvoy, James (deceased), late of rent practicing certificates and insur- matter of the Landlord and Tenant county registrar for the county of the The Cottage, Loughill, Co Limerick, ance in the three jurisdictions of (Ground Rents) (No 2) Act 1978 and city of Dublin for directions as may be who died on 19 February 2007. Would Ireland, N Ireland and the UK. With in the matter of no 28 Airfield appropriate on the basis that the per- any person having knowledge of the large volumes of Irish clients buying Court, Donnybrook, Dublin 4, and sons beneficially entitled to the superior whereabouts of a will made on 20 April property in the UK, we can act as agent in the matter of an application of interest including the freehold reversion 2005 by the above-named deceased or take matters on referral. Contact Paula Daly (‘the applicant’) in each of the aforesaid property are please contact Michael B O’Donnell, Catherine Allison & Co, 6 Roden Take notice that any person having any unknown or unascertained. solicitor, Rathkeale, Co Limerick; tel: Place, Dundalk, Co Louth at 042 932 interest in the freehold estate of the fol- Date: 7 March 2008 069 64600, fax: 069 64749 0854 or [email protected] lowing property: 28 Airfield Court, Signed: Reddy Charleton & McKnight
www.lawsociety.ie 65 :an : an and in the Landlord and Landlord Landlord and Tenant Landlord Take notice that Fiona Fitzgerald Take In default of any such notice being (Ground Rents) (No 2) Act 1978 (Ground Rents) Fiona Fitzgerald application by an that any person having notice Take freehold estate or any interest in the of the fol- intermediate interest therein those the lowing property: all that and particularly plot of ground being more (part 2) of described in the first schedule dated 4 an indenture of assignment Leitway April 2003 made between Fitzgerald Homes Limited and Fiona that and and herein described as “all ground as is those that plot or piece of with a red more particularly delineated hereto”, verge line on the map attached under an being part of the premises held November indenture of lease dated 19 Hardwicke 1974 made between and Ellen Limited of the one part Adelaide Ronan of the other part for all the unexpired residue of the term of 700 years from 8 November 1893 and made between Bridget Emily Redmond of the one part and Hugh Joseph Smith of the other part, subject to the yearly rent of £10 per annum, payable by equal half- yearly payments. intends to submit an application to the county registrar for the city of Dublin for the acquisition of the freehold inter- and any est in the aforesaid property, party or parties asserting that they hold a superior interest in the aforesaid premises are called upon to furnish evi- dence of title to the aforementioned premises to the below named within 21 days from the date of this notice. received, Fiona Fitzgerald intends to proceed with the application before the county registrar at the end of 21 days from the date of this notice and will apply to the county registrar for the city of Dublin for directions as may be appropriate on the basis that the person beneficially entitled to the superior interest including the freehold reversion in the aforesaid remises are unknown or ascertained. Date: 7 March 2008 Signed: McEvoy Partners (solicitors for the applicant), Connaught House, Burlington Road, Dublin 4 In the matter of the Acts 1967-1994 Tenant matter of the (Ground Rents) (No 2) Act 1978 application by LeitwayLimited Homes notice that any person having an Take interest in the freehold estate or any intermediate interest therein of the fol- lowing property: all that and those the plot of ground together with the dwellinghouse and premises now erected thereon and known as no 35 Donnybrook, Belmont Avenue, Dublin, formerly known as no 1 Stella Dublin, being part of the Terrace, premises held under indenture of lease and and in the Landlord and Landlord and Landlord : acquisition of Landlord and Tenant Landlord Landlord and Tenant (Ground and Tenant Landlord Take notice that Ann Farrar intends Take In default of any such evidence being or persons beneficially entitled to the or persons beneficially including the fee sim- superior interests the aforesaid premises are ple in each of unknown or unascertained. Date: 7 March 2008 (solicitors for Signed: Millett and Matthews Baltinglass, Co the applicant), Main Street, Wicklow In the matter of the (Ground Rents)Tenant Act 1967 the Rents) (No 2) Act 1978 said act of fee simple (section 4 of the 1967) in the any person having any interest To following property: all that messuage situate at dwelling house and premises county of Main Street, Baltinglass in the map delineated on the Wicklow, annexed to the indenture of lease dated 20 September 1932 between Henry the Honourable James Tollemache, Cecil Stanhope Alfred Tollemache, and Newcomen Tollemache Lyonel Eustace Bowles of the one part and Kathleen Kitson of the other part for the term of 99 years from 29 September 1930, subject to the yearly rent of £15 per annum and thereon coloured red, together with the right of way on the premises coloured green on the said map, at present in the occupation of on foot and with John and Ann Farrar, horses, carts, carriages and other vehi- cles along the lane, lettered ‘C’, ‘D’, ‘E’, and ‘F’ on the said map. to submit an application to the county for registrar for the county of Wicklow the acquisition of the fee simple in the and any party assert- aforesaid property, ing that they hold a superior interest in the aforesaid premises (or any of them) to the leasehold interest created by the said indenture of lease dated 20 September 1932 are called upon to fur- nish evidence of title to the aforemen- tioned premises to the below named within 21 days from the date of this notice. adduced, Ann Farrar intends to proceed with the application before the county registrar at the end of 21 days from the date of this notice and will apply to the county registrar for the county of Place, at 3 Wentworth Wicklow for directions as may be Wicklow, appropriate on the basis that the person or persons beneficially entitled to the superior interests including the fee sim- ple in each of the aforesaid premises are unknown or unascertained. Date: 7 March 2008 Signed: Millett and Matthews (solicitors Baltinglass, for the applicant), Main Street, Co Wicklow In the matter of the Acts 1967-1994 Tenant matter of the and Landlord and Landlord : acquisition of Landlord and Tenant (Ground and Tenant Landlord Take notice that Ann Farrar intends Take In default of any such evidence being Tenant (Ground Rents)Tenant Act 1967 the Rents) (No 2) Act 1978 fee simple (section 4 of the said act of 1967) any person having any interest in the To following property: all that messuage and plot of ground together with the ash pit thereon situate near to the Main Street in the town of Baltinglass in the Upper and barony of Talbotstown as more particular- county of Wicklow, ly delineated on the map annexed to the indenture of lease dated 22 March 1949 between Eustace Bowles, John Count of de Salis, and Richard Bertram Verdin the one part and Henry Harmon of the other part for the term of 81 years from 29 September 1948, subject to the year- ly rent of £1 per annum and thereon coloured red. to submit an application to the county for registrar for the county of Wicklow the acquisition of the fee simple in the and any party assert- aforesaid property, ing that they hold a superior interest in the aforesaid premises (or any of them) to the leasehold interest created by the said indenture of lease dated 22 March 1949 are called upon to furnish evidence of title to the aforementioned premises to the below named within 21 days from the date of this notice. adduced, Ann Farrar intends to proceed with the application before the county registrar at the end of 21 days from the date of this notice and will apply to the county registrar for the county of Place, at 3 Wentworth Wicklow for directions as may be Wicklow, appropriate on the basis that the person reversion in the aforesaid premises are unknown and unascertained. Date: 7 March 2008 Signed: Patrick White & Co (solicitors for the applicant), 25 Fitzwilliam Square, Dublin 2 In the matter of the and and in the MARCH 2008 MARCH Landlord and Landlord Landlord and Tenant Landlord Take notice that Eilis Reilly, being notice that Eilis Reilly, Take In default of any such notice being matter of the (Ground Rents) (No 2) Act 1978 in the matter of an application by Eilis Reilly Any person having a freehold estate or any intermediate interest in all that and those that part and parcel of the town and lands of Delgany known as East Hill, Delgany Road, Greystones, Co containing two acres, three Wicklow, roods and 17 perches late Irish Plantation Measure, equivalent to four acres, two roods and 24 perches British Imperial Standard Measure, measured and bounded on the north and west by part of the lands of Kindlestown and on the south and east by the road leading from Delgany to Greystones, the sub- ject of an indenture of lease dated 24 May 1837 between Mary Baker Keoghoe and Eliza Keoghoe of the one part and Robert Lumsden of the other part for a term of 999 years at a rent of £11.15s.5d. the person currently entitled to the lessees’ interest under the said lease, intends to apply to the county registrar for the acqui- of the county of Wicklow sition of the freehold interest and all intermediate interests in the aforesaid properties, and any party asserting that they hold a superior interest in the aforesaid property is called upon to fur- nish evidence of their title to same to the below named within 21 days from the date of this notice. received, Eilis Reilly intends to proceed with the application before the county registrar at the end of Wicklow 21 days from the date of this notice and will apply for such directions as may be appropriate on the basis that the person or persons beneficially entitled to the superior interests including the freehold (solicitors for the applicant), 12 Fitzwilliam Place, Dublin 2 In the matter of the Acts 1967-2005 Tenants www.lawsociety.ie LAW SOCIETY GAZETTE
PROFESSIONAL NOTICES 66 PROFESSIONAL NOTICES LAW SOCIETY GAZETTE MARCH 2008
dated 19 November 1974 made In default of any such notice being between Hardwicke Limited of the received, the Provost, Fellows and one part and Ellen Adelaide Ronan of Scholars of the College of the Holy and the other part for all the unexpired Undivided Trinity of Queen Elizabeth residue of the term of 700 years from 8 near Dublin intend to proceed with the November 1893 and made between application before the county registrar Bridget Emily Redmond of the one at the end of 21 days from the date of part and Hugh Joseph Smith of the this notice and will apply to the county other part, subject to the yearly rent of registrar for the city of Dublin for £10 per annum, payable by equal half- directions as may be appropriate on the yearly payments. basis that the person or persons benefi- Take notice that Leitway Homes cially entitled to the superior interest, Limited intends to submit an applica- including the freehold reversion in the tion to the county registrar for the city property, are unknown or unascer- of Dublin for the acquisition of the free- tained. hold interest in the aforesaid property, Date: 7 March 2008 and any party or parties asserting that Signed: Macaulay Graham Judge (solici- they hold a superior interest in the tors for the applicants), 26 Lower Hatch aforesaid premises are called upon to Street, Dublin 2 furnish evidence of title to the afore- mentioned premises to the below In the matter of the Landlord and named within 21 days from the date of Tenant Acts 1967-2005 and in the (Ground Rents) (No 2) Act 1978:an In the matter of the Landlord and this notice. matter of the Landlord and Tenant application by Dublin Institute of Tenant (Ground Rents) Acts 1967- In default of any such notice being (Ground Rents) (No 2) Act 1978 and Technology 1984: notice of intention to acquire received, Leitway Homes Limited in the matter of an application under Take notice that any person having fee simple (section 4) intends to proceed with the application section 15 of the Landlord and any interest in the freehold interest of To: Ms Ellen Noonan, East Douglas, before the county registrar for the city Tenant (Ground Rents) Act 1967 the following property: all that and Cork; and Joseph O’Donovan of Dublin for directions as may be All that and those that part of the prem- those the lands more particularly (deceased), c/o Mr Patrick Dorgan, appropriate on the basis that the person ises known as 7a Sussex Mews, Sussex described in an indenture of lease Coakley Maloney, Solicitors, 49 South or persons beneficially entitled to the Terrace, Dublin 4, being the rear part of dated 9 July 1924, between Reginald Mall, Cork; and Irish Life and superior interest including the freehold premises 151 Upper Leeson Street in Dashwood Tandy of the one part and Permanent plc, c/o Ms Darina White, reversion in the aforesaid premises are the county of the city of Dublin. The Andrew J Cullen of the other part, as A&L Goodbody, Solicitors, IFSC, unknown or ascertained. applicants: Conor Davitt and Frank all that messuage or tenement known North Wall Quay, Dublin 1; and all Date: 7 March 2008 O’Hagan, as trustees of the E O’Hagan as 35 New Bride Street, as more par- persons concerned. Signed: McEvoy Partners (solicitors for the Discretionary Will Trust. ticularly shown on the plan endorsed 1. Description of land to which this applicant), Connaught House, Burlington Take notice that the applicants have on these presents together with all notice refers: that part of the Shell Road, Dublin 4 submitted an application to the county rights, easements and appurtenances Service Station, Douglas, Cork City, registrar of the county of Dublin for the to the said premises belonging or being “all that and those piece or plot of In the matter of the Landlord and acquisition of the freehold interest in usually held or enjoyed therewith, sit- ground being part of the lands of Tenant (Ground Rents) Acts 1967- the aforesaid premises, held pursuant to uated in the Parish of St Peter and Douglas in the parish of Carrigaline in 1994: notice of intention to acquire a lease dated 14 December 1840 and city of Dublin and now occupied by the barony and county of Cork, con- the fee simple made between Henry Read of the first Dublin Institute of Technology under taining in all one-and-one-half roods To: any person or persons for the time part and Robert Chambers of the sec- the lease for a term of 99 years from statute measure approximately, which being entitled to or having an interest in ond part. 1 January 1924, subject to the yearly lands are more particularly delineated the freehold or a leasehold estate in the Take notice that any party asserting rent of £15. on the map” endorsed on the sublease property now known as 30 South that they hold a superior interest in the Take notice that the applicant, dated 17 August 1953 and made Cumberland Street, in the city of aforesaid premises are called upon to Dublin Institute of Technology, intends between (1) Ellen Noonan and (2) Dublin, being the property demised by furnish evidence of title to the afore- to submit an application to the county Denis Noel O’Mahony, Patrick Vincent a lease dated 27 April 1948 and made mentioned premises to the under- registrar for the county of the city of O’Mahony, Michael Kevin O’Mahony between Evaline A Chitty, Phoebe named solicitors within 21 days from Dublin for the acquisition of the free- and Daniel Joseph O’Mahony and Stephenson and Cecelia Davis of the the date of this notice. hold interest in the aforesaid property, thereon coloured yellow, a copy of one part and Susan Dunne of the other In default of any such notice being and any party or parties asserting that which map is attached hereto. part for the term of 35 years from 1 received, the applicants intend to pro- they hold a superior interest in the 2. Particulars of applicant’s lease or November 1945, subject to the yearly ceed with the application before the aforesaid property are called upon to tenancy: sublease dated 17 August rent of £30. county registrar at the end of the said furnish evidence of title to the afore- 1953 made between (1) Ellen Noonan Take notice that the Provost, Fellows period of 21 days from the date of this mentioned premises to the below and (2) Denis Noel O’Mahony, and Scholars of the College of the Holy notice and will apply to the county reg- named within 21 days from the date of Patrick Vincent O’Mahony, Michael and Undivided Trinity of Queen istrar for the county of Dublin for this notice. Kevin O’Mahony and Daniel Joseph Elizabeth near Dublin, being the per- directions as may be appropriate on the In default of such notice being O’Mahony for a term of 97 years from sons entitled under sections 8-10 of the basis that the persons beneficially enti- received, the applicant intends to pro- 25 March 1953 at a rent of £50 Landlord and Tenant (Ground Rents) (No tled to the superior interest including ceed with the application before the (€63.49 modern-day rent) per 2) Act 1978, to purchase the fee simple the freehold reversion in the aforesaid county registrar for the county/city of annum, payable in equal half-yearly intend to submit an application to the premises are unknown or unascer- Dublin for directions as may be appro- instalments on 25 March and 29 county registrar for the city of Dublin tained. priate on the basis of the person or per- September each year of the term. for the acquisition of the freehold inter- Date: 7 March 2008 sons beneficially entitled to the superior Take notice that Topaz Energy est in the aforesaid property, and any Signed: Lyons Kenny Solicitors (solicitors for interest including the freehold rever- Limited (formerly known as Irish Shell party asserting that they hold a superior the applicant), 57 Fitzwilliam Square, sion in the above premises are unknown Limited), Registered Office: Topaz interest in the aforesaid property (or Dublin 2 or unascertained. House, Beech Hill, Clonskeagh, Dublin any of them) are called upon to furnish Date: 7 March 2008 4, being a person entitled under evidence of title to the aforementioned In the matter of the Landlord and Signed: Arthur Cox (solicitors for the appli- section 9 of the 1978 (no 2) act, propos- premises to the below named within 21 Tenant Acts 1967-2005 and in the cants), Earlsfort Centre, Earlsfort Terrace, es to purchase the fee simple in the land days from the date of this notice. matter of the Landlord and Tenant Dublin 2 described in paragraph 1.
www.lawsociety.ie 67 and in and in the Landlord and Landlord Landlord and Tenant Landlord Take notice that Halifax Taverns notice that Halifax Take In default of any such notice being thereabouts, in depth from front to rear thereabouts, in feet, four inches, and in on the north 48 to rear on the south depth from front six inches or thereabouts, side 41 feet, and 120 Upper Church situate at 119 city of Dublin and being Street in the by an indenture of the property demised June 1861 and made lease dated 20 Healy between John Batson and Robert from 1for the term of 200 years May rent of 34 1861, subject to the yearly on pounds sterling and to the covenants conditions the part of the lessee and therein contained. an applica- Limited intends to submit for the city tion to the county registrar of the free- of Dublin for the acquisition property hold interest in the aforesaid that they and that any party asserting the aforesaid hold a superior interest in furnish evi- property are called upon to dence of title to the aforementioned property to the below named within 21 days from the date of this notice. Limited received, Halifax Taverns intends to proceed with the application before the country registrar at the end of the 21 days from the date of this notice and will apply to the county reg- istrar for the city of Dublin for direc- tions as may be appropriate on the basis that the person or persons beneficially entitled to the superior interest includ- ing the freehold reversion in the afore- said property are unknown or unascer- tained. Date: 7 March 2008 (solicitors for Signed: Cusack McTiernan the applicant), 6 Fitzwilliam Place, Dublin 2 In the matter of the Acts 1967-2005 Tenant matter of the (Ground Rents) (No 2) Act 1978 the matter of an application by Oliver Harrington and Mary Harrington for all their and in Landlord and in the Landlord and Landlord , not just qualified solicitors. Landlord and Tenant Landlord EMPLOYMENT , intend to submit an application to , intend to submit In default of any such notice being In default of any such notice under sections 9 and 10 of the under sections and Rents) (No 2) Act (Ground Tenant 1978 for the city of the the county registrar for the acquisition of county of Dublin and any intermedi- the freehold interest the aforesaid premises, ate interests in asserting that they hold and any parties aforesaid a superior interest in the furnish evi- premises are called upon to dence of title to the aforementioned within 21 premises to the below named days from the date of this notice. to pro- received, the applicants intend before the ceed with the application of 21 days county registrar at the end and will from the date of this notice for the city apply to the county registrar such direc- of the county of Dublin for on the basis tions as may be appropriate beneficially that the person or persons includ- entitled to the superior interest ing the freehold reversion in the afore- said premises are unknown or unascer- tained. Date: 7 March 2008 Signed: Maples and Calder (solicitors for the Dublin 2 Green, applicant), 75 St Stephen’s In the matter of the Acts 1967-2005 Tenant matter of the (Ground Rents) (No 2) Act 1978 the matter of the property situate at nos 119 and 120 Upper Church Street in the city of Dublin: an appli- Limited cation by Halifax Taverns notice that any person having an Take interest in the freehold estate of the fol- lowing property: all that and those the hereditaments and premises known as nos 119 and 120 Upper Church Street in the city of Dublin, with yards and appurtenances belonging thereto con- taining in breadth in front to Church Street on the east side 34 feet, eight inches or thereabouts, in breadth in the rear on the west 45 feet, four inches or For Law Society members to advertise Log onto the new expanded employment recruitment register on the members’ area of the Law Society website, www.lawsociety.ie, recruitment Murphy, or contact Trina at the Law Society’s administrator, Cork office, tel: 021 422 6203 or email: [email protected] FREE RECRUITMENT REGISTER and in the Landlord and Landlord and in matter legal staff requirements Landlord and Tenant (Ground and Tenant Landlord superior interest in the land, and superior interest in the land, brance, with the notice of intention to with the notice of intention acquire the fee simple. Take notice that the applicants, Dr Take reversion in the land, reversion in the and your reversion in the land, i) to the next The person entitled ii) The owner of any such incum- Tenant Acts 1967-2005 Tenant d) of the person to be served The name Date: 7 March 2008 for the appli- Signed: Arthur Cox (solicitors formerly Energy Limited, cant, Topaz Centre, known as Irish Shell Ltd), Earlsfort Dublin 2 Earlsfort Terrace, In the matter of the of the Rents) (No 2) Act 1978 matter of premises known as 93 Leinster Road, Rathmines, Dublin 6 notice thatTake any person having an interest in the freehold estate of the fol- lowing property: all that and those the dwelling house and premises known as 93 Leinster Road, Rathmines, in the city of Dublin, being a portion of the hered- itaments and premises held under an indenture of lease dated 20 March 1855 and made between Patrick Dempsey of the one part and Patrick Kerr of the other for a term of 143 years from 25 March 1855 at a yearly rent of IR£9.9.0 and subject to the covenants and condi- tions therein contained. Ciaran Conor Twomey, Bill Twomey, Lorcan Barry Twomey, Twomey, Miriam Siobhan Trainor, Twomey, and Bronagh Sparrow (the Twomey ‘applicants’), being the persons entitled acts to acquire the fee simple in the land acts to acquire require you to give me, described above, after the service of within one month you, the following infor- this notice on mation: a) your nature and duration of The b) on The nature of any incumbrance c) The name and address of: and sub- LOCUM MARCH 2008 MARCH Landlord and Landlord Landlord and Landlord or seeking to employ a locum solicitor.
that part of the Shell
: notice requiring information Ms Ellen Noonan, East Douglas, Log onto the new self-maintained locum recruitment register on the or members’ area of the Law Society website, www.lawsociety.ie, recruitment Murphy, contact Trina at the Law Society’s administrator, Cork office, tel: 021 422 6203 or email: [email protected] For Law Society members seeking a position as a locum solicitor FREE
RECRUITMENT REGISTER lease dated 17 August 1953, made between Ellen Noonan (lessor) and Patrick Vincent Denis Noel O’Mahony, Michael Kevin O’Mahony O’Mahony, and Daniel Joseph O’Mahony (lessees). Energy Limited, notice that Topaz Take House, with a registered office at Topaz Beech Hill, Clonskeagh, Dublin 4, being a person entitled under the above Date: 7 March 2008 Date: 7 March Cox (solicitors for the appli- Signed: Arthur Energy Limited, formerly cant, Topaz Shell Ltd), Earlsfort Centre, known as Irish Dublin 2 Earlsfort Terrace, of the In the matter Rents) Act 1967 (Ground Tenant (Ground Rents) (No 2) Act Tenant 1978 from a lessor To: O’Donovan Cork; and Joseph Dorgan, (deceased), c/o Mr Patrick Solicitors, 49 South Coakley Maloney, Life and Mall, Cork; and Irish White, Permanent plc, c/o Ms Darina Solicitors, IFSC, A&L Goodbody, Dublin 1; and all per- Quay, North Wall sons concerned. which this Description of land to notice refers: Service Station, Douglas, Cork City, being “all that and those piece or plot of ground being part of the lands of Douglas in the parish of Carrigaline in the barony and county of Cork, contain- ing in all one-and-one-half roods statute which lands are measure approximately, more particularly delineated on the map” endorsed on the sublease dated 17 August 1953 and made between (1) Ellen Noonan and (2) Denis Noel O’Mahony, Patrick Vincent O’Mahony, Michael Kevin O’Mahony and Daniel Joseph O’Mahony and thereon a copy of which map is coloured yellow, attached hereto. lease: Particulars of applicant’s in the matter of the www.lawsociety.ie LAW SOCIETY GAZETTE
PROFESSIONAL NOTICES 68 PROFESSIONAL NOTICES LAW SOCIETY GAZETTE MARCH 2008
Any person having a freehold estate or may be appropriate on the basis that the superior interest including the any intermediate interest in all that and the person or persons beneficially enti- NOTICE TO THOSE freehold reversion in each of the afore- those that piece or parcel of land for- tled to the superior interests including PLACING RECRUITMENT said premises are unknown and merly known as number 4 Salana Villas, the freehold reversion in the aforesaid ADVERTISEMENTS IN THE unascertained. Clonliffe Road, in the parish of Saint premises are unknown and unascer- LAW SOCIETY GAZETTE Date: 7 March 2008 George and the county of the city of tained. Please note that, as and from the Signed: Paul A Ferris & Co (solicitors for Dublin, and now known as 191 Date: 7 March 2008 August/September 2006 issue of the applicant), Suite 227 The Capel Clonliffe Road, Drumcondra, Dublin Signed: Murray Flynn Maguire (solicitors the Law Society Gazette, Building, Mary’s Abbey, Dublin 7 9, the subject of an indenture of lease for the applicant), 12-16 Fairview Strand, NO recruitment advertisements dated 13 September 1882 between the Dublin 3 will be published that include Working Man’s Benefit Building references to years of post- RECRUITMENT Society of the first part, William Hall of In the matter of the Landlord and qualification experience (PQE). the second part and William Riordan of Tenant Acts 1967-2005 and in the The Gazette Editorial Board has the third part for a term of 189 years matter of the Landlord and Tenant taken this decision based on legal from 1 May 1882 at a rent of £4.10s per (Ground Rents) (No 2) Act 1978 and advice, which indicates that such Available to work in multi- annum. in the matter of James Kelly: appli- references may be in breach of role capacity in medium to Take notice that Oliver Harrington cation for fee simple in property at the Employment Equality Acts large firm. Law degree and Mary Harrington, being the per- Goldenbridge, Inchicore, Dublin 8 1998 and 2004. (University of Manchester, sons currently entitled to the lessees’ Take notice that any person having any 1985). Experienced in dealing interest under the said lease, intend to interest in the freehold estate of the fol- with the public. Returning to apply to the county registrar of the lowing property: all that and those that workforce. Experience includes county of Dublin for the acquisition of plot of ground being part of the lands the aforesaid property, and any party legal work. Interests include the freehold interest and all intermedi- of Goldenbridge, Inchicore, in the city asserting that they hold a superior inter- family law. Contact: Jane Heyn, ate interests in the aforesaid properties, of Dublin, which said lands are more est in the aforesaid premises (or any of 2 Clyde Road, Ballsbridge, and any party asserting that they hold a particularly described and delineated them) are called upon to furnish evi- Dublin 4; tel: 01 660 3057 or 085 superior interest in the aforesaid prop- on the map attached to a deed of dence of the title to the aforementioned 739 3366 erty is called upon to furnish evidence assignment dated 31 December 1991 premises to the below named within 21 of their title to same to the below and made between UDT Bank Ltd of days from the date of this notice. named within 21 days from the date of the first part, James Kelly of the second In default of any such notice being Trainee solicitor seeks new training this notice. part and Ranisse Properties Limited of received, the applicant, James Kelly, contract (Dublin area). Enthusiastic In default of any such notice being the third part, and thereon outlined in intends to proceed with the application and hardworking trainee seeks transfer received, the said Oliver Harrington red and referred to as the sold land. before the county registrar at the end of of training contract. Experience in the and Mary Harrington intend to pro- Take notice that James Kelly, the 21 days from the date of this notice and areas of residential conveyancing, civil ceed with the application before the applicant, intends to submit an applica- will apply to the county registrar for the litigation and family law. Available to Dublin county registrar at the end of tion to the county registrar for the county of the city of Dublin for direc- commence employment in April 2008. the 21 days from the date of this notice county of the city of Dublin for the tions as may be appropriate on the basis CV available on request. Enquiries by and will apply for such directions as acquisition of the freehold interest in that the persons beneficially entitled to email: [email protected]
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