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On the cover LAW SOCIETY From mugging decoy on the mean streets of Boston, to boss of the body charged with overseeing the efficiency and effectiveness of the gardaí – it’s been an interesting Gazette career for Kathleen O’Toole, and she tells us all about it December 2008
PIC: LENSMEN
Volume 102, number 10 Subscriptions: €57 REGULARS 5 President’s message 6 News Analysis 12 12 News feature: Justice Media Awards 2008 14 News feature: annual human rights conference 16 News feature: what the Regulation of Practice Committee is all about 18 Human rights watch: the role of the amicus curiae 18 One to watch: new rules on recording court proceedings 12 Viewpoint 22 Are the proposed measures on gangland crime useful? 44 People and places 49 Parchment ceremony photographs 56 Student spotlight Book review 58 A Night at the Inns and Other Stories Briefi ng 59 59 Council report, 7 November 2008 60 Practice notes 14 66 Legislation update: 21 October – 17 November 2008 68 Solicitors Disciplinary Tribunal 69 Firstlaw update 71 Eurlegal: recent developments in European law 72 Professional notices 77 Recruitment advertising Editor: Mark McDermott. Deputy editor: Dr Garrett O’Boyle. Designer: Nuala Redmond. Editorial secretaries: Valerie Farrell, Laura Wipfler. For professional notice rates (lost land certificates, wills, title deeds, employment, miscellaneous), see page 73. 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), Paul Egan, Richard Hammond, Simon Hannigan, Michael Kealey, Mary Keane, 48 Aisling Kelly, Patrick J McGonagle, Ken Murphy.
2 www.lawsociety.ie CONTENTS LAW SOCIETY GAZETTE DECEMBER 2008
Get more at lawsociety.ie PROFESSIONAL NOTICES: send your small advert details, with payment, to: Gazette Offi ce, 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 You can also check out: 837 5018, fax: 884 4626, mobile: 086 811 7116, email: [email protected] • Current news • Forthcoming events, including CPD seminar HAVE YOU MOVED? Members of the profession should send change-of-address (three hours’ group study) on management details to: IT Section, Blackhall Place, Dublin 7, or to: [email protected] and professional development, 12 December, Subscribers to the Gazette should send change-of-address details to: Blackhall Place Gazette Offi ce, Blackhall Place, Dublin 7, or to: [email protected] • Employment opportunities • The latest CPD courses HOW TO REACH US: Law Society Gazette, Blackhall Place, Dublin 7. … as well as lots of other useful information Tel: 01 672 4828, fax: 01 672 4877, email: [email protected]
FEATURES COVER STORY: 24 Uncharted waters Just over two years into her new job, Kathleen O’Toole speaks with Colin Murphy, in a two-part interview, about her role as chief inspector of the Garda Inspectorate Probable cause 28 In the second of two articles on legal liability for hospital- acquired infections, Rody O’Brien looks at recent Irish cases on causation in medical negligence cases and breach of statutory duty in Britain Chain gang 32 The new president of the Law Society, John D Shaw, is the third generation of his family to wear the chain. Mark McDermott asks him about the main challenges facing him during his term of office Do not go gentle... 35 Many solicitors deal with elderly clients on a regular basis, and must be alert to the possibility of pressure on the client 35 and the existence of financial abuse, says James Cahill – especially if that client is dependent in any way A good job of work 38 For those looking to move to the next stage of their career – or start on a new one – the challenges can be daunting, particularly in these straitened times. In the first of a series of such articles, Aoife Coonagh gives some valuable tips on preparing your CV in order to get to the interview stage Footballers of the world unite! 41 ...you have nothing to lose but your seven-figure salaries and gold-plated Bentleys! Stuart Gilhooly slums it at the FIFpro annual congress and reports on the latest initiatives by sport’s most powerful union
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] Website: www.lawsocietygazette.ie 41
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Learning to adapt to major change
his is my first message as your new president, and I want to commence by paying tribute to my predecessor, James MacGuill. I have worked closely with TJames over the last year, which can, with some degree of certainty, be said to have been one of the most turbulent years for the Law Society in recent times. The profession owes a great debt to James for downturn does provide some opportunities to retrain “The skills the manner in which he handled the Lynn and and reskill. James MacGuill will assume a new role, Byrne controversies, and it will be hard to match his as chairman of the Practice Management Task Force. that we all enthusiasm and energy, not to mention his linguistic This, together with the other advisory committees, have can skills. I have a lot of work to do on my Irish! will be working hard on your behalf during the year We are facing very tough economic times to try and make you aware of new opportunities and be brought involving, very sadly for the first time in decades, a to present different ways in which you can develop to bear in significant level of unemployment in the profession. your practice. No firm and no solicitor, from the trainee right up many areas to those who are long qualified, is immune from the Annual conference in Ireland of the law, recession, and we are facing a period of substantial With this in mind, I have also taken the decision adjustment. not to hold our annual conference in Bilbao as and the legal planned. Instead, I hope to shortly announce profession Antidote to excess details of a conference in Ireland – venue and date As a practising solicitor in a country firm, I know the to be confirmed – with an emphasis on practice has shown realities of having to pay the overheads, but it is very management in a recession. itself in the important to keep matters in perspective. The skills I am encouraged by the many individual messages that we all have can be brought to bear in many areas of support I have received from practitioners all over past to be of the law, and the legal profession has shown itself the country who recognise the difficulties facing flexible and in the past to be flexible and able to adapt to major us. I look forward to meeting as many of you as changes. possible during my year, and if you have any ideas or able to adapt In my first speech to the Council as president, I suggestions that you think could be of benefit to the to major referred to Voltaire, the great French philosopher, profession, please do not hesitate to drop me a line or who, as an antidote to excess, recommended the give me a call. changes” virtues of diligence, order and moderation. This is advice that we could usefully heed in these times. John D Shaw It is also important to understand that the President
www.lawsociety.ie 5 LAW SOCIETY GAZETTE DECEMBER 2008 NEWS nationwide
Send your news to: Law Society Gazette, Blackhall Place, Dublin 7, or email: [email protected]
CORK ALL PICS: JOHN IRONSIDE It has been a busy time for the incoming SLA president, Mortimer Kelleher. We heartily congratulate Mortimer on his succession. By all accounts, the AGM in early November was attended by close to 200 members. A lively discussion followed on work/life balance and the committee (comprising Joan Byrne, Raymond O’Neill, Terry O’Sullivan, Eamonn Murray and Mortimer) collated the various questionnaires. An analysis of the results will be At the Society of Young Solicitors autumn conference in Seafield Golf and Spa Hotel on 7-9 November 2008 published later. were (l to r): Mark O’Shaughnessy, Craig Sowman, Tom O’Byrne, Emer Carey, Orla O’Leary and Devilla Lannon The SLA annual conference took place at the end of in attendance. There was also on practice management issues On 9 December next, the September in Nice, where the a message of congratulations for the current commercial DSBA council will hold their acknowledged organisational to John from Taoiseach Brian environment, including service monthly meeting in Dun skills of Deirdre Foley were Cowen. and interaction with clients, Laoghaire, where a reception much appreciated. The business practice development and in the St George Yacht Club session included talks by Judge WATERFORD marketing, and the sustainability has been arranged on our Con Murphy, Patrick Dorgan Waterford Law Society con- of the practice through behalf by Justin McKenna, to and Mortimer Kelleher. tinues to have a busy schedule, succession planning. The which all local colleagues will be with a keen interest in the seminars, organised by Paddy invited. MIDLANDS election of officers at the AGM Kelly of McKeever Rowan, have A special function to celebrate at the end of November. been expertly facilitated by John GALWAY the election of John D Shaw as President Morette Kinsella, Loughran of People in Mind Collaborative law has president of the Law Society secretary Rosie O’Flynn and and Ken Greene of Greene 6 arrived west of the Shannon. was hosted by the Midland treasurer Valerie Farrell and Partners. Current partnership Pauline Tesler, an experienced Bar Association. Those in committee are happy to wrap up issues were also dealt with in American attorney qualified attendance included Supreme a very busy two-year term. a recent seminar by Michael in the discipline, was invited Court judges Susan Denham The society has just Twomey and Anne Neary, and to Galway to train family law and Hugh Geoghegan, Judge concluded its CPD programme Michael O’Connor and his tax practitioners in this approach. Abbott of the High Court and and is very proud to have team from William Fry gave a The course trained a further 30 Judge Desmond Hogan of the provided 19 CPD points in very enlightening seminar on lawyers in this process, adding Circuit Court. County registrars Waterford at a very reasonable the new VAT regulations. to those who had previously Elizabeth Sharkey (Westmeath) overall cost. It was my great pleasure trained in collaborative law. and Verona Lambe (Offaly) The society also continues (along with my council Galway solicitors trained in and Garda Superintendent to nurture and develop its colleagues) to host a black-tie the practice have recently John Gantley and Law Society relationship with WIT law dinner in honour of all of our formed a group known as director general Ken Murphy students, with the officers and High Court judges and our Galway Collaborative Law also attended. members recently attending a Dublin-based Circuit judiciary. Practitioners. See www. Charlie Kelly, president debate ‘that this house would We were privileged to have over collaborativelawgalway.ie of the MBA, remarked that legalise cannabis’. 45 judges in attendance and and www.acp.ie for details of it was a measure of the high about 50 other colleagues drawn participating solicitors. G esteem in which John Shaw is DUBLIN from the litigation departments held by his colleagues that so Seminars have been held on of the larger firms. My grateful ‘Nationwide’ is compiled by Kevin many distinguished guests and costs and file management, and thanks to Geraldine Kelly for all O’Higgins, principal of the Dublin members of the profession were there was a trilogy of seminars her work in organising the event. law fi rm Kevin O’Higgins.
6 www.lawsociety.ie NEWS LAW SOCIETY GAZETTE DECEMBER 2008 Third-generation Shaw makes Law Society history papers were rejected because or the first time in the they were received after the close Fhistory of the Law Society, of poll. The number of valid three generations of one family papers was 2,959. now hold the distinction of having worn the chain of Overall results president. John D Shaw has The results were as follows: started his presidential term for • James MacGuill (1,469) the year 2008/09, with effect • Donald Binchy (1,452) from Friday 7 November 2008. • John P Shaw (1,420) John’s father, Thomas D Shaw, • James B McCourt (1,330) was president of the Law Society • Michael Quinlan (1,305) in 1988, while his grandfather, • Maura Derivan (1,290) Dermot P Shaw, held the office • Gerard J Doherty (1,283) in 1956. • Michelle Ní Longáin (1,272) John (age 44) is a partner • Simon Murphy (1,243) at the law firm JA Shaw & • Brendan J Twomey (1,238) Co Solicitors, Mullingar, Co • Patrick Dorgan (1,160) New Law Society President John D Shaw, with Senior Vice-President Westmeath. He will serve a for 2008/09 Gerard J Doherty (left) and Junior Vice-President • Daniel E O’Connor (1,152) one-year term as president of James B McCourt • Barry MacCarthy (1,130) the 12,000-strong solicitors’ • Dara Robinson (1,128), and profession until November 2009. Yvonne. He has one brother and to his father Tom, he qualified • Gerard O’Donnell (1,018). Gerard J Doherty has been four sisters. Married to Eileen, as a solicitor in 1989 and has elected senior vice-president they have two children, Caoimhe practised in JA Shaw & Co since Brendan J Twomey, Dara for 2008/09, while James B (12) and Patrick (10). then. Robinson and Gerard O’Donnell McCourt becomes junior vice- John was educated in CBS He became a member of the were elected to Council for the president. Mullingar primary school and Council of the Law Society in first time. Clongowes Wood College, Co 1992. He is currently a member Westmeath background Kildare. He graduated with a of the Property Registration Provincial elections John is a native of Mullingar BCL law degree from University Authority (formerly the Land As there was only one candidate and is the eldest son of Tom and College, Dublin. Apprenticed Registry). nominated for each of the two relevant provinces (Ulster and Council election results Leinster), there was no election The count of election ballot and the candidate nominated Joint bank accounts papers was conducted and results in each instance was returned declared on 31 October 2008. unopposed. Margaret M Mulrine and older clients In all, 3,092 members voted in was elected for Ulster and he Guidance and Ethics all, the mistaken belief that all the elections, of which 79 ballot Andrew J Cody for Leinster. TCommittee has been joint bank accounts pass to the reviewing the current guidance survivor of the account after the available to solicitors acting on death of the original depositor. Lawyers’ Rugby World Cup 2009 behalf of older clients who may “This is not correct,” she be vulnerable to pressure from says. “It all depends on the he Law Society of Scotland is hosting the Lawyers’ Rugby World others. It is hoped that, over intention of the depositor when TCup in Edinburgh from 6-8 May 2009. Rugby-playing the coming months, a series of the account was opened. The lawyers from all over the world will be taking part. practice notes relevant to this banks must play their part in Further details and rules can be found at: topic will be published. ensuring that the money passes www.lawscot.org.uk/rugby. Registration of The first practice note is in accordance with law and interest closes on 31 December 2008. on the topic of joint bank with the original depositor’s To register a team or find out more accounts (see page 63). Patricia wishes. The banks must have about the rugby tournament, contact: Rickard-Clarke, a member of appropriate systems in place Law Society of Scotland, tel: +44 the group reviewing the matter, to ensure that the depositor’s (0) 131 476 8360, e-mail: rugby@ is hopeful that the practice wishes are recorded when the lawscot.org.uk. note will clear up, once and for account is opened.”
www.lawsociety.ie 7 LAW SOCIETY GAZETTE DECEMBER 2008 NEWS A code of practice for family law PIC: LENSMEN he Law Society has launched kept separate where possible, Tits new Family Law Handbook it continues. The client should – effectively a code of practice be told that the welfare and for family law. It says that interests of the child are solicitors should be mindful of paramount. Solicitors should the best interests of the family also be aware that the interests as a whole and of children in of the child and those of their particular. client may not always coincide. Director General Ken In addition, the other party’s Murphy says that, while the strengths as a parent should be code of practice is not legally stressed. binding, breach of it could Up to now, guidelines for amount to misconduct if it solicitors practising family were serious and had serious law comprised of two or three consequences for the client – pages that had been compiled depending on the facts of the some 12 years ago. In mid case. It would be up to the 2007, the Society’s Family Law Solicitors’ Disciplinary Tribunal Committee decided that, given to decide how far short of the the significant growth in family required standard the conduct law, the guidelines should be might fall. updated. The handbook, which was Launching the booklet, Mrs launched on 13 November Justice Catherine McGuinness 2008 at Blackhall Place, said that it was “valuable, stresses that solicitors should practical and, importantly, advise, negotiate and conduct ethical”. matters in order to help the “In no other aspect of law parties settle their differences is the ethical stance of lawyers as speedily and amicably more important,” she said. as possible. “You should “Litigation concerning children encourage the attitude that At the launch of the new Family Law Handbook were (l to r): should never be treated as a the dispute is not a contest in John D Shaw (president), Mrs Justice Catherine McGuinness, Family Law battlefield. The casualties in Committee member Sinead Kearney, and Ken Murphy (director general) which there is a winner and such a contest can only be the a loser, but rather that it is a children.” search for fair solutions,” it inflaming the dispute, on other parties and on their The Family Law Handbook is states. and consider the effect all own clients. Issues relating to being distributed to all members Solicitors should avoid correspondence could have children and finance should be of the profession.
Regulation Department moves to George’s Court he Law Society’s Regulation the Law Society’s headquarters TDepartment has relocated at Blackhall Place. from Blackhall Place to new Meetings of the Society’s three accommodation at George’s main regulatory committees – the Court, George’s Place, North King Regulation of Practice Committee, Street, Dublin 7. The department the Complaints and Client moved to its new offices on 1 Relations Committee and the December 2008. Professional Indemnity Insurance The Society has taken a lease Committee – will all be held in the on a newly-constructed office new premises. premises in George’s Place, The rest of the Society’s which is on the northern side of representative and educational Smithfield and some three or four activities will remain in the Regulation’s new premises at George’s Court, Dublin 7 minutes’ walk from the gates of Blackhall Place building.
8 www.lawsociety.ie NEWS LAW SOCIETY GAZETTE DECEMBER 2008 Society explores virtual reality
t the Law Society’s recent PIC: LENSMEN The conference A‘Virtual reality’ conference, concluded with two practical an attentive audience heard demonstrations of soon-to-be- newly inaugurated president launched elements that will John Shaw emphasise the form part of the e-conveyancing importance that the Society process. Mick O’Hanlon from attaches to the introduction the Revenue Commissioners of electronic conveyancing. In demonstrated prototypes of what was his first public function the Revenue Commissioners’ on taking office, the president new electronic stamping reiterated both the Society’s system. This system is due to commitment to e-conveyancing be implemented in mid to late through the work of its task 2009. It will replace the existing force, and his own personal method of ‘die stamping’ on support, underpinned by his paper documents with a virtual membership of the Property stamping process completed and Registration Authority. paid online. ‘Virtual reality – towards the electronic conveyance’ looked Speakers at the ‘Virtual reality’ conference included (l to r): Gabriel E-discharge and the PRAI at a number of the technical Brennan, then chair of the Technology Committee Patrick Madigan (Jnr), The Property Registration aspects of e-conveyancing, as Russell Bourke (head of strategic development, Irish Payment Services Authority’s new e-discharge Organisation), Eamonn Keenan (Technology Committee) and John King well as some of its component (head of legal services, Registers of Scotland) system was outlined by parts. Over 80 delegates heard information systems solicitor Eamon Keenan manager John O’Sullivan emphasise the changes that the and demonstrated by Peter technical process will require McHugh, the PRAI’s electronic from practitioners, including a services manager. This system, need to consider the practical which will launch in early 2009, use of electronic or digital will provide for the electronic signatures. Gabriel Brennan, the discharge of charges on Law Society’s e-conveyancing registered title upon request by project manager, explained the relevant lending institution the manner in which any new and following a verification process would deal with standard check by the PRAI. A key conveyancing steps from element of the new system is start to finish. Using the Law the level of security checks Society’s guide, eConveyancing: and verification that is built in Back to Basic Principles, Gabriel – an element that will have to illustrated the key role of the reflected in all components of electronic hub through which any e-conveyancing system. the process would operate. Attendees at the conference On the topic of digital were provided with an Jim Heney (Technology Committee) makes a point at the conference, signatures, John King, head of interesting insight into the watched by Mick O’Hanlon (e-stamping, Revenue) and a member of legal services at the Registers the audience technical concepts relevant of Scotland, explained how to e-conveyancing and that office has incorporated and purchaser. Russell Bourke, per capita was twice the EU demonstrations of a number them into its e-registration head of strategic development average, with a per-capita value of practical steps being system (ARTL). Solicitors use at the Irish Payment Services per cheque of over ten times taken to achieve it. In his a client authorisation or special Organisation, presented some the EU average!) A number of concluding remarks, chair of the mandate and a smart card issued telling statistics on what he developments, including the Technology Committee Paddy by the Registers of Scotland called Ireland’s love affair with impact of the Payment Services Madigan further commended to authenticate documents for the cheque and other forms Directive and the work of the the Law Society’s support for a registration on their clients’ of paper payment. Ireland National Payments Strategy working system that will provide behalf. continues to be one of the Group, should deliver a basis greater efficiency for the Part of any new process will heaviest users of paper-based for substantial movement away profession and, consequently, have to provide for electronic payments in Europe. (In from paper transactions to lower costs in a challenging funds transfer between vendor 2006, the Irish use of cheques electronic funds transfer. conveyancing environment.
www.lawsociety.ie 9 LAW SOCIETY GAZETTE DECEMBER 2008 NEWS
HEALTH ADVICE AND SUPPORT FOR LAWYERS CONTROLLING YOUR DRINKING hristmas is the time of year While drinking: Cwhen even the most cautious • Drink a long soft drink first, among us suddenly seizes upon • Drink halves rather than pints, the opportunity to ‘eat, drink and singles rather than doubles, be merry’. The number of calls ordinary beer rather than received by LawCare from people strong beer, concerned about their alcohol use • Drink more diluted drinks – is higher in January and February spirits with mixers, shandy than at any other time of the year, rather than beer, as people begin to worry about • Drink low or no-alcohol beers their seasonal excesses. and wines, Most alcohol treatment centres, • Drink at the pace of the including Alcoholics Anonymous, slowest drinker in your group, work on the principle of lifelong • Alternate between alcoholic abstinence ‘a day at a time’. and non-alcoholic drinks, They reason that alcoholics are, • Time yourself, for example, by definition, unable to control only drink one unit every 30 their drinking and, once they have Before drinking: your cash card at home, minutes. that first drink, they cannot stop. • Eat something before you • Don’t drink in places where you • Practice refusing drinks, The solution is never to take go out, have previously drunk heavily, • Avoid rounds, but if they are that first drink. Our experience at • Go out later, • Take alcohol-free drinks with you unavoidable, don’t buy yourself LawCare would seem to support • Take less money and leave to parties and friends’ houses. one on your round, this. • Go home when you have In some cases, however, reached your limit. controlled drinking may be of ABOUT LAWCARE use in preventing a more serious LawCare is an advisory and support service to help Enjoy the Christmas season – addiction developing. If you solicitors, their staff and their immediate families to deal but in moderation. If this doesn’t recognise that you are someone with health problems such as depression and addiction and work for you, it does not mean who has a tendency to overindulge related emotional diffi culties. The service is free and that you can never escape on occasion, then reviewing entirely confi dential. your pattern of drinking. If you your drinking behaviour may be For totally confi dential, non-judgemental help, ring freephone genuinely want to address the of considerable value. Try using amount you are drinking, then ring these controlled drinking skills on 1800 991 801 LawCare for totally confidential, each occasion that you drink. If (9am – 7.30pm weekdays and 10am – 4pm non-judgemental help: you find reason to be concerned at weekends/bank holidays, 365 days a year. 1800 991 801 (9am – 7.30pm about your alcohol intake, call Web: www.lawcare.ie Email: [email protected] weekdays and 10am – 4pm at LawCare for further advice. weekends/bank holidays). G Human Rights Essay Prize he Law Society of Ireland should be typed and be CPD focus on recession Tis pleased to announce the approximately 2,000 – 3,500 PD Focus extends a Details of the full programme third annual Human Rights words in length. Entries may Csincere thanks to members and the CPD Focus Skillnet Essay Prize. All law students, be co-authored. Three prizes for supporting CPD Focus Scheme for 2009 are now including trainee solicitors and will be awarded: a first prize of training events during 2008. available on the website: barristers, are invited to submit €1,000, and two second-place Conscious of the fact that www.lawsociety.ie/cpdfocus. an essay identifying a particular prizes of €500 each. Prize- 2009 will be a difficult year for Remember, membership aspect of human rights law winning and shortlisted essays everyone, it will be offering a entitles you to a 30% discount that they believe will have may be published in the Law range of courses that will help on all CPD Focus training importance in the application or Society Gazette. in times of recession including: events. interpretation of Irish law. Information about marking, • Insolvency, For further information, They should briefly explain prizes and eligibility are • Redundancy, contact a member of the the current understanding of available on the Law Society • Dismissals, CPD Focus team on email: law in this area and outline website’s Human Rights • Career planning, and [email protected] or tel: their argument for the influence Committee page at www. • Debt collection. 01 672 4802. of human rights law. Entries lawsociety.ie.
10 www.lawsociety.ie NEWS LAW SOCIETY GAZETTE DECEMBER 2008 10% drop in number of new applications to Disciplinary Tribunal
he Solicitors Disciplinary is evident from the findings TTribunal has published of the tribunal that some its annual report, covering respondents find themselves the period 1 January to 31 unable to be open and frank in December 2007, writes tribunal their responses and dealings chairman, Francis D Daly. with their clients and the While there has been a Law Society, and indeed have welcome 10% decrease in the shown a disregard for the number of new applications Society’s complaints process. made to the tribunal in the Such behaviour is of serious year under review, there concern to the tribunal because, has been an increase in the if regulation is to be effective, number of complaints arising members of the public have from the administration of to be confident that it works estates and delays on the part properly and fairly. of respondent solicitors in attending to conveyancing Adequate resources procedures. The tribunal is mindful of A continuing flow of the many problems facing applications arising out of solicitors in the daily conduct a failure to ensure that an of their practice. Nevertheless, accountant’s report was and causing or allowing to be to charge an additional fee to it is a matter for solicitors to furnished to the Law Society caused the procurement of the client. Further, the fact ensure that they have adequate within the prescribed time also further monies as fees from a that a client may have paid resources to ensure they are fit arose in the year under review. client, notwithstanding that the the additional sum is not to cope with the pressures and Fines ranging from €500 respondent was not entitled in a bar to finding that it was responsibilities of practice. The to €5,000 were imposed on the circumstances to procure improper or misconduct in tribunal have had to consider respondents. The tribunal has such solicitor-and-client fees. circumstances where the client the ability of some solicitors reminded solicitors, especially The tribunal recognises that was misinformed about his to cope with the difficulties those who are newly qualified a solicitor is entitled to be paid entitlements. associated with private practice and are setting up in practice for work done and should draw Every solicitor has a duty and, on occasions, have deemed for the first time, of the a bill of costs for the totality to reply promptly, fully and it appropriate to recommend importance of keeping properly of that work. However, if a accurately to correspondence to the President of the High written-up books of account solicitor is paid in full by the and communications from Court that the respondent and ensuring that the proper other party, he is not entitled the Law Society. However, it concerned should not be resources are in place to ensure permitted to practise as a sole compliance with all aspects of practitioner or in partnership. the accounts regulations. The concept of service, not just to the individual client but Breaches of section 68 to society, is inherent in the A number of cases involving legal profession. To maintain alleged breaches of section 68 confidence in this concept, it of the Solicitors (Amendment) is imperative to ensure that Act 1994 were heard during the highest possible standards this review period. Allegations are scrupulously enforced. included breaching section 68(6) In this regard, the tribunal is by failing to ensure that there conscious of its role under the was furnished to a client a bill Solicitors Acts and recognises the of costs as prescribed by the onerous responsibility it has to provisions of the said section; ensure that the interests of the agreeing or causing to be agreed public are safeguarded and that the party-and-party costs of confidence is maintained in the a client without the client’s disciplinary process and in the knowledge and authority; legal profession.
www.lawsociety.ie 11 LAW SOCIETY GAZETTE DECEMBER 2008 ANALYSIS Supreme Court judge
This year’s Justice Media Awards had everything – deserving winners, sporting losers – and a highly controversial speech from Mr Justice Adrian Hardiman. Mark McDermott reports on a night packed with drama
he winner of the overall and the cowman [sic] should Taward in this year’s be friends” – the farmer being Justice Media Awards is in this instance the lawyer; the Cormac O’Keeffe of the cowman, the journalist. Irish Examiner, for his three- Quickly substituting the word part series ‘Inside Ireland’s ‘cowman’ with ‘cowgirl’ – a prisons’. Earlier, Cormac term he largely stuck with for had won the Justice Media the remainder of his speech – Award in the daily newspapers the judge’s comments drew the category for the same article. ire of the female and male legal Day 1 of his excellent and affairs journalists present. thought-provoking series “There are, it seems to set out the facts on the me, two reasons for what I prison system, looking at see as the inadequate and issues of overcrowding, uninformative reporting of the protection, violence, contraban courts,” Judge Hardiman said. d-smuggling and high Overall award winner Cormac O’Keeffe of the Irish Examiner receives “The first is an unwillingness his specially-commissioned Dublin Crystal trophy from President of the committal numbers. Day 2 Law Society John D Shaw and Director General Ken Murphy to come to grips with detail. brought readers a typical day in Not surprisingly, the result of the life of Wheatfield Prison, never gave up’ – the story of to the reasons behind the judge’s a court case often depends on placing the spotlight on several the exoneration of Walter Swift sentences in Athy District matters of detail. A witness of its inmates who agreed to be after 26 years in prison for a Court. will often omit to present the interviewed for the piece. Day crime he didn’t commit. vital detail of his evidence in 3 looked at alternative solutions A Justice Media Award went The farmer and the cowgirl… its forefront, or to emphasise to prison, presenting less costly to journalist Maria Rolston, Earlier in the evening, Mr it particularly. Often the vital options for the state and more of their sister newspaper, the Justice Adrian Hardiman of detail will be buried in a mass successful outcomes for prisoner Evening Echo, for her series the Supreme Court presented of other material, be presented rehabilitation. His three-part ‘Community service – an what transpired to be a highly- out of sequence or perhaps investigation was described by exploration’, described by the controversial speech. Heavily only emerge in the course of the judges as being very well judges as “an example of a critical of the way the media painstaking cross-examination. researched and written. regional newspaper leading the reports court cases, the judge All too often, details of this Cormac’s award made it nationals”. Her colleague Ann expressed the hope that the sort are simply missed by something of a clean sweep for Murphy of the Evening Echo legal profession and the world journalists covering a case, the Irish Examiner and its parent won a certificate of merit in the of journalism might forge with the result that the verdict group, Thomas Crosby Media. same category for her three-part closer links through a more is presented quite outside the In all, the group picked up the series ‘Justice for juries’. Kieron professional approach to the context of the evidence that led overall award, two Justice Media Wood of the Sunday Business coverage of court matters. to it and thereby appears rather Awards and five certificates of Post took a certificate of merit From his own perspective, inexplicable, when no adequate merit – making it a clear leader for his article ‘Laws on sexual he said that he often felt that attempt is made to explain it. among the nation’s newspaper violence and guns must be “the sentiments of suspicion and “Just as the conduct of court media. codified’. grievance” were inherent in the proceedings is a matter of Among its prizes, the Irish Chris Fingleton of the Kildare relationship between the legal importance rightly entrusted Examiner won two certificates Nationalist – also a Thomas profession and journalists. In an to skilled professionals, so the of merit in the daily newspaper Crosby Media publication attempt at humour that fell flat, proper reportage of cases in category, including one for – won a certificate of merit Mr Justice Hardiman resorted which there is a major public Conor Ryan for his article ‘Rape for his ‘Reports from Athy to a metaphorical analogy interest is a task for a skilled – public attitudes – national District Court’. Chris’s reports inspired by the words of a professional… survey’; a second for Vicki Maye were concise and laced, where Rogers and Hammerstein song “A good deal of the time of the same newspaper for her appropriate, with humour, and from the musical Oklahoma, of any judge in the superior article ‘The Irish intern who gave some fascinating insights exhorting that “The farmer courts is spent after court hours,
12 www.lawsociety.ie ANALYSIS LAW SOCIETY GAZETTE DECEMBER 2008 wrangled by ‘cowgirls’ PICS: LENSMEN
Winners in this year’s Justice Media Awards 2008 celebrate in the Council Chamber at the Law Society’s headquarters in Blackhall Place
writing the judgments whose to my great disappointment, or Joshua Rosenberg. One is so trenchantly insists on its scope and detail can be seen that this can no longer be said, not entitled to require media constitutional right to be critical from the collected volumes of because many organs of the coverage, but if it occurs, it of others, will not object to the the Irish Reports … we write media, including some of the should surely be of reasonable occasional critique of itself.” the judgments for the public most important, are unable standard… Taking the podium, Law so that they, advised by the or unwilling to engage in the “I have indeed been Society Director General media, can see that the system process at all… expressing these criticisms Ken Murphy offered a ‘right of administration of justice is a “It is no exaggeration to say in one form or another since of reply’, which was taken up logical, rigorous, developing and that legal reporting in Ireland 2002,” he concluded. “I am by legal affairs editor of the humane one. I have to confess, has yet to find its Des Cahill sure that the media, which Irish Independent Dearbhail McDonald. She countered, saying that the media did a very OTHER AWARD WINNERS good job of reporting court The Justice Media Award in the Sunday Newspapers Examiner staff photographer Denis Minihane for his cases – quite often in difficult category went to Mark Tighe of the Sunday Times for beautifully evocative photos of Walter Swift, which and pressurised situations. Mr his article ‘How many solicitors would it take to weed accompanied the story by his colleague Vicki Maye Justice Hardiman, she said, out the dodgy ones?’ of Swift’s release. had ignored the very good Emer Connolly of the Clare People won a Declan Carty and John O’Donovan of Newstalk’s work done by the media in certificate of merit for her special investigation ‘Legal column’ on Late Night Live won the Justice informing the public, despite ‘Juvenile crime in County Clare’ in the Regional Media Award in the National Radio category. judges’ use of arcane and often Newspaper category. In the Local Radio category, a Justice Media impenetrable language. She In the Court Reporting for the Print Media Award was presented to Radio Kerry’s Deirdre Walsh argued that members of the category, Carl O’Brien of The Irish Times won a of Kerry Today for ‘Laura’s story’. judiciary could do more to make Justice Media Award for his series of articles: ‘Inside The winner of the Justice Media Award in the their rulings more accessible the Children’s Court’. category for TV Features and Documentaries was and comprehensible to members In the same category, a certificate of merit was Trevor Birney and Ruth O’Reilly of Below the Radar of the public. Her comments awarded to Carol Byrne of The Clare Champion for Productions for their programme ‘The devil in the earned her a standing ovation. her article ‘Former doctor faces deception charges, detail’, broadcast on Prime Time in January 2008. The judge’s comments – and as patients’ families claim promises of cure’. A certificate of merit was presented to Rita O’Reilly Dearbhail McDonald’s reply In Court Reporting for Broadcast Media, John and Sam Gleeson of RTÉ News and Current Affairs’ – were covered first in The Cooke of Clare FM won a Justice Media Award for his Prime Time for their programme on victims’ rights. Irish Times by Carl O’Brien on coverage of the ‘Lying Eyes/Ennis Hitman’ case. A second certificate of merit was presented Wednesday 26 November, and The winner of the Justice Media Award in the to Brian O’Donovan of TV3 for the programme were subsequently aired on Joe Legal News Photo of the Year category went to Irish ‘Undercover Ireland: the drugs trade’. Duffy’s Liveline programme and RTÉ’s Drivetime. G
www.lawsociety.ie 13 LAW SOCIETY GAZETTE DECEMBER 2008 ANALYSIS Human rights conference examines This year’s Human Rights Conference looked at the impact of the European Convention on Human Rights Act 2003, writes Elaine Dewhurst
n Saturday 8 November by increasing financial pressures O2008, over 300 people on the state. The Law Society is attended the sixth annual committed to ensuring current Human Rights Conference, practices are kept under critical hosted by the Irish Human review, and this conference will Rights Commission and the assist in highlighting the dangers Law Society’s Human Rights facing human rights in the Committee. The conference current economic climate and examined the impact of the the importance of maintaining European Convention on Human and developing existing Rights Act 2003 on Irish law protections to the fullest extent.” through a series of plenary and Echoing this sentiment, Dr parallel sessions. Maurice Manning, president Since the inception of of the Irish Human Rights the 2003 act, there have Commission, concentrated on been a number of important the important role to be played developments in Irish law. by the commission “as the only The rights protected by the independent statutory body convention touch on every that monitors the compliance aspect of daily life, and the of the organs of the state with Attending the amicus curiae session were (l to r): Eilis Barry BL, Colin Daly interpretation, use and effect and Des Hogan the European Convention on Human of those rights on the judicial, Rights”. Dr Manning continued: legislative and executive arms of up different areas of human development and maintenance “An important aspect of the government have implications rights for discussion and debate. of a just and democratic society. 2003 act is that state officials for everyone in Ireland. Recent This is even more true during must now act in compliance declarations of incompatibility A just and democratic society difficult economic times, where with the convention. From the by the courts, although under Opening the conference, the there is a real danger that IHRC’s perspective, it must appeal, have great significance newly elected president of the the rights of citizens and, in be notified in cases where for changes to Irish law that may Society, John D Shaw, described particular, the most vulnerable declarations of incompatibility be required as a result and open human rights as “crucial to the sectors of society, will be eroded are sought under the act and can track such declarations where they are made by the courts. Following the first declaration of incompatibility in the recent Foy case in the High Court, involving the human rights of a transgendered person, now the subject of an appeal, the IHRC reviewed the international human rights standards as set out in the ECHR and concluded that Irish law does not conform to the standards relating to the rights of transgendered people and recommended the introduction of amending legislation.”
Excellent contributions The first plenary session of the conference benefited from the excellent contributions Participants at the immigration law session at the Human Rights Conference, held at Blackhall Place of Donncha O’Connell (law
14 www.lawsociety.ie ANALYSIS LAW SOCIETY GAZETTE DECEMBER 2008 impact of ECHR Act in Ireland ALL PICS: LENSMEN lecturer at NUI Galway), Ms Justice Mary Finlay- Geoghegan of the High Court, and Northern barrister Karen Quinlivan on the theme of the impact of the 2003 act on Irish law, including an assessment of the act and its use in the Irish courts. A comparison between the use of the convention in Northern Ireland and the South was also examined. The middle session included contributions from 18 of Ireland’s most eminent practitioners and academics in the area of human rights, in parallel sessions that discussed the impact of the 2003 act on the right to a fair trial and an At the conference were (l to r): Judge Tom O’Donnell, Karen Quinlivan BL, John D Shaw (president of the Law Society), Ms Justice Mary Finlay-Geoghegan, Michael Kealey (William Fry), Maurice Manning and effective remedy, immigration Donncha O’Connell (NUIG) law, criminal law, family law and privacy and the role of an amicus included four trainee solicitors – curiae. The parallel sessions Cliodhna Murphy and Doireann proved very popular among O’Brien (both of McCann delegates, as they allowed them FitzGerald), Katie Mannion to delve more deeply into (Brophy Solicitors), and Grainne the application and impact of Murphy (BCM Hanby Wallace) particular provisions of the – and the IHRC’s enquiry and convention in various areas of legal officer, Gerry Finn. legal practice. In closing the conference, The afternoon plenary both IHRC chief executive session took the opportunity Éamonn Mac Aodha and to examine the practical use Colin Daly, chairperson of of the 2003 act in litigation the Society’s Human Rights and also the relevance of the Committee, referred to the ECHR to the wider public large attendance as an indication service and community. The of the growing interest in the Participants at the criminal law session were (l to r): Dara Robinson, conference heard interesting application of the convention Claire Loftus and Michael O’Higgins SC commentary on this theme from Michael Farrell (Free Legal in Irish law and its impact Advice Centres), Ceri Goddard on the further protection of (acting director of the British human rights in Ireland. The Institute of Human Rights) and conference had one of the Rosalind McKenna (Amnesty highest levels of attendance ever International). recorded. The organisers hope The afternoon parallel to build on this success in the sessions were also ably attended future. The papers from the by five conference rapporteurs, conference are available on the who reported expertly on the websites of the IHRC (www. proceedings of the sessions and ihrc.ie) and the Law Society provided interesting feedback on (www.lawsociety.ie). G the impact of the 2003 act on the work and lives of the conference Elaine Dewhurst is the Law Society’s delegates and speakers in Attending the conference were (l to r): Éamonn MacAodha, Ceri Goddard, parliamentary and law reform each session. The rapporteurs Rosalind Higgins and Michael Farrell executive.
www.lawsociety.ie 15 LAW SOCIETY GAZETTE DECEMBER 2008 ANALYSIS Promoting confi dence in the The Regulation of Practice Committee seeks to maintain confidence in the solicitors’ profession through the promotion of best practice in all aspects of solicitors’ work, says Michael Quinlan
he overall function of the the standard of bookkeeping, prepare a report. A copy of A contentious report may TRegulation of Practice • Directing that a practice be this report is sent to the firm identify an emergency situation, Committee is to provide for reinvestigated earlier than investigated. A non-contentious usually where substantial client the protection of solicitors’ would be usual, for example, report indicates that the firm monies are found to be missing, clients and the public within the after 12 to 18 months instead has been given a ‘client bill of and often with falsified books of framework of the Solicitors Acts, of the typical five years, health’ and usually only occurs account to hide the deficit. This through the enforcement of all • Levying a contribution where there are adequate client results in an emergency meeting provisions of the Solicitors Acts towards the costs of the funds, properly maintained and of the committee. and regulations and all other investigation, up-to-date books of account, There is a common relevant legislation. • Attaching conditions to a and well-maintained files and misconception that This article focuses on the practising records. correspondence arising in the main work of the committee, certificate in A contentious aftermath of an accountant’s which is to provide for the force, report indicates investigation invariably spells safeguarding of clients’ monies, • Referring a that there are ‘bad news’ for the solicitor and through the monitoring of solicitor to the issues of concern that any indications of desired compliance by solicitors with, independent and may include improvement signify that the and the enforcement of, the Solicitors “There is suggestions for solicitor is ‘in difficulty’ with Solicitors’ Accounts Regulations Disciplinary a common improvements. the Society. This is very far and by the promotion of proper Tribunal, The report is from being the reality, and accountancy standards and • Applying to the misconception forwarded to the the perception that it is so can practice in the maintenance High Court that firm, which is give rise to considerable and of solicitors’ accounts. The for an order given 14 days to needless stress of the part of committee has a policy of prohibiting a correspondence respond. solicitors. Ordinarily, between seeking to maintain confidence solicitor from arising in the The report and a quarter and a third of all in the solicitors’ profession, contravening firm’s response accounts investigations result through the promotion of the Solicitors aftermath of an are then in a solicitor being required to best practice in all aspects of Acts or accountant’s considered at attend before the committee. solicitors’ practices. regulations, the next The other most important • Applying to the investigation meeting of the Serious cases function of the committee – High Court invariably spells committee, Serious cases may result in namely, maintenance of the to suspend which, on the the committee referring the compensation fund – was a practising ‘bad news’ for basis of the solicitor to the independent described in detail by John certificate, and the solicitor” information Solicitors Disciplinary Tribunal. O’Connor, the immediate past • Applying to the before it, will Tribunal hearings are held chairman of the committee, in High Court determine in public and its findings are last month’s Gazette (p14). for a freezing whether or not published in the Gazette. In order against a to interview cases of serious misconduct, Structure and powers solicitor’s bank the principal or a further referral may occur The committee is comprised accounts. partners of the to the President of the High entirely of solicitors, two-thirds firm. Court. Sanctions may be of whom must be members The procedure followed at A contentious report that more severe if the solicitor has of the Society’s Council. meetings of the committee identifies serious issues will previously been found guilty of However, this requirement will is non-adversarial, and the require the principal or partners misconduct. be repealed on 1 January 2009. outcome of cases depends on of the firm to attend a meeting Emergency situations, where The committee also has two the seriousness of the regulation of the committee. The report there has been dishonesty and non-solicitor observers who breaches. Only matters of is sent to the firm, which is clients’ monies are at significant participate at meetings but do serious concern are pursued in given 14 days to respond, risk, may result in the Society not vote. The committee sits the High Court. together with a letter notifying applying to the High Court for in two divisions to consider the principal or partners of an order to freeze the firm’s individual cases. Accounts investigations their required attendance at a bank accounts and the solicitor’s The powers of the committee Immediately following an meeting of the committee to personal accounts, suspend the include, but are not limited to: accounts investigation, the discuss the report and the firm’s solicitor’s practising certificate, • Issuing a warning to improve investigating accountant will response. and take immediate steps to
16 www.lawsociety.ie ANALYSIS LAW SOCIETY GAZETTE DECEMBER 2008 work of the profession
secure the firm’s files. Such solicitor chooses to have legal accountant’s report. by the report. It is a situation usually ultimately representation, then it is advised For most solicitors, in the interest of the solicitor results in a solicitor being struck that the solicitor consult with attendance for interview by the to cooperate with the off the Roll of Solicitors. their legal representative as committee is not, nor ought it committee to ensure swift soon as possible to allow their be, a portentous experience. rectification of identified Legal representation legal representative to be fully The solicitor should come regulation breaches. G A solicitor required to attend briefed before their attendance prepared to address the before the committee is at the committee and to have an investigating accountant’s report Michael Quinlan is the new entitled, but not obliged, to opportunity for input into the and have a plan of action to chairman of the Regulation of be legally represented. If the response to the investigating resolve the problems identified Practice Committee.
www.lawsociety.ie 17 LAW SOCIETY GAZETTE DECEMBER 2008 ANALYSIS
Promoting human rights In a seminal case in 2003, the Supreme Court recognised the value of the amicus curiae function and confirmed its place in the Irish judicial system, writes Betsy Keys Farrell
t has been a long-standing for Refugees to appear as amicus which amici may participate. the nature of the assistance or, Ipractice of courts in common- curiae in an asylum case. In The court retains full power more particularly, the issues the law jurisdictions to consider doing so, the court adopted the over the procedures and is amicus proposes to address. the views of non-parties when principles enumerated in its obliged to protect the primacy The position of the amicus it is in the interest of justice sister common- of the parties, is different from that of an to do so. The amicus curiae – or law jurisdictions, so that any intervener, in that it is not a ‘friend of the court’ – has been where the nature potential burdens party per se and has no rights of recognised as an important tool of amici has been “A measured on the parties, appeal or entitlement to adduce in the administration of justice. the subject of approach to such as delay evidence. The amicus should not This is particularly the case extensive judicial or additional duplicate the arguments already when human rights are being discussion. Most hearing amicus costs, are not before the court; instead, it considered. However, in Ireland significantly, the submissions disproportionate is expected to bring to the until recently, the participation court confirmed to the benefits court’s attention information of amici has been rare and the the inherent will promote the derived from the or arguments that the parties position uncertain. In 2003, jurisdiction to administration intervention. would not otherwise canvass, so in the seminal case of HI v appoint an amicus In this regard, long as it does not widen the lis Minister for Justice, Equality and curiae in those of justice in the burden is on between the parties. Law Reform ([2003] 3 IR 197) cases where the course the applicant to In the case of statutory the Supreme Court recognised it appears the demonstrate the bodies, the applicant must the value of the amicus curiae court might be of protecting appropriateness demonstrate a legal capacity to function and confirmed its place assisted in the human rights” of intervention. act as amicus. This is evidenced in the Irish judicial system. determination of An application for by the participation of the Irish the issues before leave to appear Human Rights Commission and Principles of amicus curiae it. as amicus must the Equality Authority as amici In the first case of its kind in Implicit in the court’s articulate the bona fide interest in cases asserting fundamental Ireland, the Supreme Court inherent jurisdiction is of the applicant, the extent human rights. Whereas the granted leave to the United the complete discretion to to which the applicant is in a Human Rights Commission Nations High Commissioner determine the parameters within position to assist the court, and has a specific statutory function ONE TO WATCH: NEW LEGISLATION Rules of the Superior Courts 29 in the Four Courts and is due record of the proceedings other than the Courts Service (Recording of Proceedings) to be rolled out in the Central concerned made by any one or or a person authorised on its 2008 (SI no 325 of 2008); Criminal Court and the High Court more means, including, without behalf, shall make a record of Circuit Court Rules (Recording Family Law Court in November. limitation: proceedings, otherwise than by of Proceedings) 2008 (SI no 354 Certain courts around the a) Any shorthand or other note, written or shorthand notes (Rules of 2008) country, including courts in Trim, whether written, typed or of the Superior Courts, order 123, From 10 September 2008, digital Roscommon, Letterkenny, Bray, printed, and rule 8; Circuit Court Rules, order and other non-manual means Cork, Naas, Donegal town and b) Any sound recording or other 67A, rule 7). of recording, in addition to Portlaoise, are scheduled to go recording, capable of being shorthand recording, have been live before Christmas. reproduced in legible, audible What is to be recorded? introduced in criminal and civil or visual form, approved by the The new rules provide that any proceedings. The Courts Service Definition of ‘record’ court.” party may make or cause to be News (October 2008) reported A ‘record’ is defined (Rules of the made a record of the proceedings that digital audio recording Superior Courts, order 86, rule Who may record proceedings? of any trial or hearing, with the has already gone live in Circuit 1; Circuit Court Rules, order 67A, Unless otherwise specified in the permission of the court and Criminal Courts 15, 23, 25 and rule 1) as “a contemporaneous order or by the court, no person, subject to any direction of the
18 www.lawsociety.ie ANALYSIS LAW SOCIETY GAZETTE DECEMBER 2008 human rights watch through amici curiae
under section 8 of the Human Rights Commission Act 2000 to appear as an amicus when leave is granted, the Equality Authority Act does not have a similar provision. Nevertheless, the Supreme Court, in Doherty v South Dublin County Council ([2006] IESC 57), found an implicit power to intervene that is incidental and consequential to the Equality Authority’s expressed statutory powers. The Doherty case is instructive for other statutory bodies that might want to consider their potential role as amicus curiae, even in the absence of specific statutory authority for the function. United Nations High Commissioner for Refugees Antonio Guterres
Public-interest law Principles of natural justice within a wider ambit, thus illuminate the issues and inform In matters with a public law – whereby a court must assure demonstrating the potentially the final decision. Public- dimension, where the outcome itself that it is properly informed far-reaching and penetrating interest organisations and will have ramifications beyond of all relevant matters – will effects the judgment is likely to entities working on the ground the individual interests before militate in favour of an amicus have. For example, evidence of may be better equipped to the court, the amicus has a critical application when cases of systemic practices, socio-legal provide this type of information role to play by giving a voice general public interest are to be research and other data that than the main parties in to non-parties whose interests decided. An amicus is in a better demonstrate in more concrete the case. This approach is may be indirectly affected by the position to contextualise the terms the effects of impugned exemplified in the judgment judgment. individual facts of the case policy or statute can further of the ECtHR in the case of
court. This shall include a record of: in accordance with the permission evidence as required by the record of the proceedings at • The oral evidence, and directions of the master/ Superior Court Rules, order 36, the trial (which shall contain all • The judge’s charge and county registrar. Records shall rule 44. submissions made by counsel in directions to the jury, and the include: In the case of criminal trials, the course of the trial, including submissions and requisitions • Any oral evidence, the Courts Service will make opening and closing speeches made to the judge and his • Any speech or submissions by records, and this will include to the jury and any submissions rulings thereon, counsel or solicitor, submissions by counsel in the made in mitigation of sentence) • In a case tried by a judge without • The master’s/county registrar’s course of the trial, including or of such part thereof as a jury, the judge’s judgment judgment or ruling (unless opening and closing speeches the registrar may require. The (unless it is a written judgment) written) (Rules of the Superior to the jury and any submissions transcript shall be typewritten (Rules of the Superior Courts, Courts, order 123, rule 3; made in mitigation of sentence. or printed and certified by the order 123, rule 2; Circuit Court Circuit Court Rules, order 67A, In cases before the Court of transcript writer to be a complete Rules, order 67A, rule 2). rule 4). Criminal Appeal, the transcript and correct transcript of the whole writer will furnish to the registrar, of such record, or of the part Hearings by the master/county In such cases, the master need at the registrar’s request, a required (Rules of the Superior registrar may similarly be recorded not take down or preserve the transcript of the whole of the Courts, order 86, rule 14(2);
www.lawsociety.ie 19 • Refurbished offices OFFICE ranging from 45m2 - SUITES 223 m2 • Located on the red LUAS TO LET Line directly opposite 4 MARY’S ABBEY, Capel Buildings DUBLIN 1 • 3 minutes walk from The Four Courts
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“As a society, perhaps the most sensitive measurement of our maturity is the manner in which we care for those who are facing the ultimate challenge – the loss of life.”
(REPORT OF THE NATIONAL ADVISORY COMMITTEE ON PALLIATIVE CARE, 2001)
QUALITY Over 6,000 people use hospice care each year. Hospice care involves the total care of patients and their families at the stage in HOSPICE a serious illness where the focus has switched from treatment aimed at cure, to ensuring quality of life. It seeks to relieve the symptoms of illness and cater for a CARE FOR person’s entire needs – physical, emotional, psychosocial and spiritual. ALL The demand for hospice care is growing. While the service has expanded in recent years, much more needs to be done to ensure quality end-of-life care for all. Please remember the Irish Hospice Foundation when drafting a will. Irish Hospice Foundation, Morrison Chambers, 332 Nassau Street, Dublin 2 Tel: 01 679 3188; Fax: 01 673 0040 www.hospice-foundation.ie No-one should have to face death without appropriate care and support. ANALYSIS LAW SOCIETY GAZETTE DECEMBER 2008
Christine Goodwin v UK (11 July 2002), where the submissions of the independent human rights organisation Liberty were heavily relied upon by the court. For obvious reasons, individual litigants are not likely to focus their arguments beyond those required to achieve the specific reliefs requested. For strategic reasons, they may choose to emphasise certain arguments over others. Nevertheless, the vindication of fundamental human rights, by its nature, will have a broader impact – thus it is important that all issues arising are fully ventilated. The amicus can assist the court by offering submissions on those legal issues that might not attract the same level of attention from the parties, but are nevertheless significant. This European Court of Human Rights, Strasbourg may also involve bringing to the court’s attention non-binding European Convention on Human burden on the court and groups may possess particular legal sources and other relevant Rights, the court is mandated parties alike and underscores expertise and information that material that will persuasively to consider the ever-increasing the need for increased would be useful to the courts support the interpretation and jurisprudence of the European participation of amici curiae in when they are called upon to application of the principles at Court of Human Rights. By appropriate cases. adjudicate on human rights- issue. extension, this includes the Since the incorporation of related matters. A measured international instruments the ECHR into Irish law and approach to hearing amicus ECHR and other sources of ‘soft the Supreme Court’s decision in submissions will promote the The integration of international law’ on which the ECtHR HI, there has been a significant administration of justice in the human rights norms into the might rely when interpreting increase in the number of course of protecting human domestic legal system brings an the convention. In addition, cases that raise complex issues rights. G increased level of complexity emerging legal trends in other concerning human rights. to the court’s decision-making jurisdictions, including Council Organisations and entities Betsy Keys Farrell is a practising process. Following on from of Europe members, may be whose efforts are focused on solicitor and a member of the Law the incorporation of the relevant. This places a greater specific issues and vulnerable Society’s Human Rights Committee.
Circuit Court Rules, order 67A, be transcribed and included in the The Supreme Court also has hearing of any cause or matter or rule 3). book of appeal to be lodged by the power, before or during the any hearing by the master/county A judge also has the power, the appellant. There is provision hearing of an appeal, to direct registrar shall bear the cost of during the course or at the made in the new rules for a party that any part of the record of the the production of the record and conclusion of a trial or hearing, to cause any additional part of proceedings, which has not been any transcript required. However, to direct that a transcript of the the record to be transcribed and included in the book of appeal, there is provision for the judge/ record be made available to him included in the book of appeal, but should be so included (Rules of master/county registrar to certify at the public expense or to be the party will bear the cost of this. the Superior Courts, order 123, after the trial or hearing that, furnished to any party applying However, if the Supreme Court, rule 6(2)). in his opinion, it was expedient for the record at the expense of immediately after the appeal, The Supreme Court or the court that the proceedings or any part that party (Rules of the Superior certifies that, in its opinion, it was may require the production of a should have been so recorded Courts, order 123, rule 5; Circuit expedient or desirable that the record in a manner it so requires or a transcript produced. In such Court Rules, order 67 A, rule 6). transcript or such additional part (Rules of the Superior Courts, cases, the cost shall be part of of the record should have been order 123, rule 7). the costs in the cause. G Appeals and transcripts lodged with the books of appeal, In the case of an appeal, only the party will be granted the costs Who bears the costs? Elaine Dewhurst is the Law such part of the record as the (Rules of the Superior Courts, The party making or causing to Society’s parliamentary and law parties agree to be relevant shall order 123, rule 6(1)). be made a record at a trial or reform executive.
www.lawsociety.ie 21 LAW SOCIETY GAZETTE DECEMBER 2008 COMMENT
New crime provisions
The murder of Shane Geoghegan in Limerick provoked outrage in both the public and political arenas. Diarmuid Griffin asks whether recent proposals will be effective he public have once again provision allowing for the use This has been evident in the application will need to be Tvoiced their concern over of surveillance by the gardaí proliferation of extensive arrest drafted so as not to offend the violent gang crime in Ireland without authorisation by a and detention provisions over current understanding of the and have called for something judge in cases of exceptional the last number of decades. absolute exclusionary rule. to be done. So what have urgency for a period of up to 14 The adoption of a legal It is impossible to predict politicians come up with, and days. Evidence and information framework for the use of whether these measures will will their proposals be effective? gathered through the use of this surveillance by the gardaí is to result in a greater number of The political response surveillance may be disclosed in be welcomed cautiously. But prosecutions or convictions has been to put forward new criminal trials. the legislation will necessarily of those involved in gangland legislative provisions designed A High Court judge is to require appropriate limits on crime. to tackle organised crime and be appointed to review these the use of surveillance while the apparent ability of those powers and report ensuring the The man with the golden gun involved in such crime to evade to the taoiseach protection of the The Minister for Justice has the criminal justice system. In on any relevant citizenry’s human also proposed to introduce this instance, the suggested matter he or she rights and civil new provisions to deal with the provisions address the use of deems necessary. “If the minister liberties. licensing of firearms in the yet covert surveillance to aid in the The minister wishes to The protection to be published Criminal Justice investigation and prosecution of explained that of the right to (Miscellaneous Provisions) Bill. In criminals, and new legislation these proposals further restrict privacy – an particular, Mr Ahern plans to dealing with the licensing of formalise firearms, he unenumerated ban the licensing of handguns firearms. procedures right in the and to place further restrictions Justice Minister Dermot that the gardaí is empowered Constitution and on applications for the renewal Ahern published the heads of a already use in to do so under a right explicitly of handguns already licensed. draft Surveillance Bill to provide the investigation guaranteed under Provisions dealing with a legislative framework for the of suspected section 29 of article 8 of the the licensing of firearms are use of covert surveillance by offences, the 2006 act. A European Convention spread over numerous pieces of the gardaí. The minister said namely, the use on Human Rights legislation, dating back to the that the “bill is evidence of the of a variety of new legislative – is of crucial Firearms Act 1925. Possession government’s serious intentions surveillance provision is importance here. of a firearm is illegal unless it in ensuring that the security techniques. While there is has been licensed by a garda forces of the state have every As only the not needed to an absence of superintendent and, from possible advantage … so that heads of the achieve this Irish case law in 1972-2004, the gardaí operated they can effectively thwart the bill have been relation to police a stringent practice in the activities of those involved in published to goal” surveillance, licensing of firearms. However, serious crime”. date, it is difficult ECHR case from 2004 onwards, this to give any law indicates practice was called into question I spy detailed analysis that, as long as by a number of judicial review The draft bill proposes that a – however, there there is a legal proceedings in the High Court, member of An Garda Síochána are a couple of points of import. basis for surveillance and resulting in the gardaí adopting can make an application to a The draft bill is not directed sufficient safeguards (such as a more liberal approach to judge for the authorisation of specifically at organised or judicial oversight), there will the licensing of firearms, in the use of covert surveillance in gangland crime, but at all be no violation of article 8. particular handguns. the investigation of an arrestable arrestable offences. Public Thus, the provision to allow These proposals are unusual, offence. This authorisation concern about these issues in the gardaí to carry out surveillance in that they do not appear to can last for up to three months past has been used to justify the for 14 days without judicial acknowledge recent reform in and may be renewed for a implementation of draconian authorisation may be vulnerable the area and are not specifically further three months by order criminal justice legislation to challenge. Furthermore, targeted at gangland crime. of a judge. It also contains a without appropriate safeguards. the legislation and its practical Part 5 of the Criminal
22 www.lawsociety.ie COMMENT LAW SOCIETY GAZETTE DECEMBER 2008 viewpoint not a panacea
Justice Act 2006 has already introduced a new framework for licensing. Unfortunately, many of its provisions have yet to be brought into force by the minister. It makes no sense to introduce new measures when provisions in the 2006 act have yet to be activated. Further, with a view to achieving the goals outlined by Mr Ahern, the then Minister for Justice, Brian Lenihan, signed an order in February of this year restricting the type of firearms and ammunition that can be licensed. The order states that all other firearms, other than those listed in the order, are restricted firearms. Thus, the restriction of firearms is already in place and if the minister wishes to further restrict firearms, he is empowered to do so under section 29 of the 2006 being used by those involved in for Justice, Michael McDowell, the public, who usually look act. A new legislative provision organised or gangland crime. to tackle serious gangland crime at gangland crime from the is not needed to achieve this and to address the imbalance in outside in. Dealing effectively goal. The 39 steps the criminal justice system. The with those who commit violent Garda Commissioner There appears to be a great legislation was also interpreted crime of this nature is an almost Fachtna Murphy recently stated deal of confusion surrounding by some as a ploy to boost the impossible task. However, if that he has no power to issue the legislative provisions and profile of the minister prior there is a lesson to be learned guidelines on the licensing of judicial decisions in the area of to the general election. In any from our attempts to tackle this firearms and handguns. This firearms legislation. Rather than event, the act was not equipped kind of crime since the death of is a strange statement to make, introduce further piecemeal to deal with what McDowell Veronica Guerin and Detective because section 31 of the act provisions, the area needs to stated it would achieve and, Garda Gerry McCabe in 1996, empowers the commissioner, be codified to ensure that a incidentally, he went on to lose it is that there are limits to what with the consent of the restrictive approach to the his seat in that election. legislation alone can achieve. minister, to issue guidelines to licensing of firearms is adopted. Perhaps the public are more A renewed government superintendents on the practical This will probably have little discerning on criminal justice commitment to fund and application of the Firearms Act or no effect on gangland crime, issues than politicians assume. implement the Limerick 1925-2006 and the conditions but it may impact on incidences This does not appear to have Regeneration Plan, which attached to applications for and of firearm-assisted suicide and occurred to the opposition, who aims to transform the city’s the authorisation of firearms. firearm-related deaths and have not produced anything of most deprived areas at a time This section was brought into injuries. significance that would inspire of scant resources, would be force in August 2006. In March 2007, I wrote confidence in a fresh approach. evidence of the government’s Finally, new provisions a ‘Viewpoint’ piece for the The sense that the murder true commitment to tackle that deal with the licensing Gazette (p14) on the provisions of Shane Geoghegan could the cycle of violence in those of firearms will in no way contained in what is now have happened to anyone in communities. G tackle the circulation of illegal the Criminal Justice Act 2007. the wrong place at the wrong firearms in the state. It is these That piece of legislation was time generated a great feeling of Diarmuid Griffin lectures in criminal non-licensed firearms that are proposed by the then Minister fear and powerlessness among law at the NUI Galway.
www.lawsociety.ie 23 LAW SOCIETY GAZETTE DECEMBER 2008 COVER STORY
MAIN POINTS • Subway robberies • Police academy • Inspectorate’s role
24 www.lawsociety.ie COVER STORY LAW SOCIETY GAZETTE DECEMBER 2008 Uncharted WATERS She’s come a long way from her days as a mugging decoy on the streets of Boston. Just over two years into her new job, Kathleen O’Toole speaks with Colin Murphy, in a two-part interview, about her role as Chief Inspector of the Garda Inspectorate
ate one night in the early 1980s, a young woman was waiting for a train at a deserted subway station in Field’s Corner, Boston. A group of five men entered the station. She muttered to herself nervously. They sized her up, Lmoved towards her. She braced herself. They surrounded her. One drew a knife. They threatened her. She said something to them, and there was a sudden commotion. Moments later, she was holding one of the men up against the wall and was pointing a gun at another. The other three in the gang fled, disoriented. They ran straight into the arms of the woman’s backup officers – colleagues in the Boston Police Department. Kathleen O’Toole, now the Chief Inspector of the Garda Síochána Inspectorate, was in her early years in the force and had been allocated to decoy work. “My job was to get robbed on the subways every day, for a while,” she says. She would go out with a backup team, wired so that they could hear her – though often they wouldn’t be able to see her from their hiding point – and she wore no earpiece, so couldn’t hear them. The safer alternative to standing in deserted subway stations, waiting to get robbed, was riding on the subway at rush hour, waiting to get pickpocketed. Either way, she loved it. “I got a great sense of satisfaction in knowing I prevented someone else from being robbed. It gave me a greater empathy for victims of crime. I was well trained, I was armed, I had backups, and it was still terrifying from time to time. It gave me a much greater appreciation of the trauma crime victims suffer.” Did that trauma ever dwell with her? “I was lucky. I always reacted as I’d been trained to react. I was never seriously injured PICS: LENSMEN on the job. The reality of it never set in until afterwards. But two months later, I’d wake up in the middle of the night and say, ‘Oh my God, that was really a close call’!” Did it ever get to be too much – did she ever consider leaving?
www.lawsociety.ie 25 LAW SOCIETY GAZETTE DECEMBER 2008
“Oh, no way!” she says, laughing. She glows at was a deputy superintendent, equivalent to deputy the memory of it. “And you know what? If I had commissioner in the gardaí. She later served in the the opportunity to go back there and do it again Massachusetts’ governor’s cabinet, as Secretary of tomorrow, I would.” Public Safety, and then joined the Patten Commission on policing in Northern Ireland and became the first Establishing credibility female police commissioner in Boston in 2004. In Kathleen O’Toole was a law student in Boston in July 2006, she moved to Dublin to become the head “I thought the late 1970s, working in sales for an electronics of the newly-created Garda Inspectorate. Sitting in a distributor by day to pay for her classes by night, fine Georgian office overlooking St Stephen’s Green, I’d have a lot when a friend suggested they sit the police test under a large framed photo of her father-in-law, also tougher road together. She thought it would be good test-taking a Boston police officer, she seems utterly at home. experience. When, some months later, that test (Which may be appropriate, as home is an apartment ahead,” she ultimately led to the offer of a position, she initially just above the office.) says about dismissed it. Her friends in law told her it would be “I thought I’d have a lot tougher road ahead,” she great experience, and ultimately dared her to do it. says about taking up the job first. “I thought there’d taking up the She joined up and was sent to the police academy, be a lot more resistance to an outsider, particularly a job first. “I which “resembled a marine corps boot camp”. “It woman. Happily, that hasn’t been the case.” was still a military-type training model. Most of the Clearly, this is – in part at least – down to her thought there’d instructors were former marines.” demeanour. She jokes with the Gazette’s photographer be a lot more But Kathleen O’Toole was a keen sportswoman, about being a reluctant model and exchanges good- and she thrived. “I was in it for a few months when natured banter with her staff, who call her Kathy. resistance to I realised I’d found my calling.” She did her year in When the interview gets underway, she talks for an outsider, training, then a year on probation, then her time on two hours with a combination of a nerdy interest in the beat in downtown Boston. Women comprised policy detail and a radiant enthusiasm both for her particularly a a small portion of the force then, but she had no subject and for communicating it. She manages to woman. Happily, problems. “I think I’ve always anticipated the worst, be personable without being impolitic; passionate but I never encountered the resistance I thought without being sentimental. Her first action upon her that hasn’t I would.” Offering oneself up as a potential knife arrival, she says, was to do a nationwide tour, visiting been the case” victim can’t have harmed her chances of being taken “countless” garda stations to “talk to the people on the seriously by her more macho colleagues, however. front lines and in the communities they serve”. “It’s a business where one has to establish credibility early in one’s career, out there in the field, where our Charting her own course lives do depend on one another. During my early “The inspectorate’s role,” she says, “is so loosely days as a patrol officer, a decoy officer, I was able to defined in the legislation, it’s really been an establish my credibility as a hard-working, front-line opportunity to chart our own course here.” She has police officer.” ranged widely in her three reports so far (there are a She moved up quickly. By the age of 32, she further three currently in the pipeline) and has met SPOT THE DIFFERENCE! The inspectorate’s role is consistently confused with that of the receiving and dealing with all complaints made by members of the Garda Ombudsman – both bodies having been set up under the same public concerning the conduct of members of the Garda Síochána”, as legislation, the Garda Síochána Act of 2005. In Kathleen O’Toole’s stated on its website, www.gardaombudsman.ie. The three ombudsman words: “The inspectorate is a body that advises the Minister for Justice commissioners are Justice Kevin Haugh, Carmel Foley and Conor Brady.) on policing, benchmarks the Garda Síochána against international “Because there’s confusion, we often get calls here [from the best practice, and makes recommendations to promote effectiveness public] and we refer them to the ombudsman,” says Kathleen O’Toole. and efficiency in the police. Our role is modernisation and reform – “No sooner were we set up here when some woman arrived with a it’s not investigating cases of wrongdoing.” (The Garda Síochána placard, wanting to protest, and we said, ‘Here’s the address of the Ombudsman Commission, to give it its full title, is “responsible for ombudsman’!”
26 www.lawsociety.ie LAW SOCIETY GAZETTE DECEMBER 2008
with broad acceptance from both the Department of into the home of that young person and said, ‘Look, Justice and the garda representative organisations. Of we’re concerned’. her 134 recommendations so far, just one has been “Often, you had a single mother just trying to rejected: in her third report, she recommended that make ends meet. We said, ‘What can we do to help superintendents outside Dublin should have their you to keep this young person out of harm’s way this District Court prosecution role delegated to their local summer? Does he need a job? Does he need a literacy inspectors. This idea was originally brought to her by programme? Do the younger people need summer the superintendents themselves, she says. camp? Do you need additional social services?’” “It’s great that they visit the court,” she says, “but they have to spend a day or two preparing, and then a Relentless enforcement day in court, and they just don’t have the time to do the “Okay, there are some of these gang members that rest of the job.” are beyond hope at this stage – we’re not going The garda superintendent’s position is “one of the to rehabilitate them, so good, tough, relentless most crucial in the organisation”, she says. “People enforcement is the only thing that will work in those out there in the community look at the local ‘super’ instances – but I think we need to focus on the next as being their police chief. He has to be visible, has generation and help develop them.” to be out and about in the community, has to attend This is the approach she advocates for dealing with community meetings and lead the community policing situations such as those in Limerick. She refers to agenda. Being locked up in the courthouse [makes that former Dublin city manager John Fitzgerald, who is impossible].” behind the blueprint for the regeneration of deprived As anyone who’s ever attended the District Court areas of Limerick city. will know, it’s not just garda superintendents who “John Fitzgerald is absolutely on track. The spend an inordinate amount of time in court. The police alone are not going to resolve the problems in halls and benches of the courts seem to be cluttered Limerick. It has to be a multidisciplined, collaborative with uniformed gardaí, many waiting to attend minor approach. Prevention and intervention are more proceedings in cases involving them. Kathleen O’Toole important than enforcement.” similarly hopes this will ultimately be dealt with. One In the week of this interview, Justice Minister of the inspectorate’s ongoing studies is on ‘resource Dermot Ahern proposed a ban on handguns as one allocation’, concentrating on the primary resource of response to gangland gun crime. Kathleen O’Toole uniformed officers, and this issue will come under that. would “absolutely” support such a ban. “In the Dublin Metropolitan region, they’ve piloted a “I have always been anti-handgun. I’ve had to ‘court presenters’ scheme, so that a sergeant appears on respond to those horrific calls of teenagers shot and behalf of the Garda Síochána, up to the point where the killed or injured in inner-city neighbourhoods. I think testimony is actually required, so you don’t have people any major city police chief in the US would be.” hanging around court all day – a waste of resources.” She is, she says, a “civil libertarian”, and on issues And where those resources are ultimately being such as guns and surveillance – also in the news missed, she says, is on the streets, where she is a strong recently as a result of new measures being proposed advocate of high-visibility, community-oriented for the use of evidence in court obtained through policing. She tells a Boston story to illustrate her those means – she believes a balance must be struck approach to policing. “In the spring of 2005, I called between civil liberties and crime fighting. But in the the gang unit in and said, ‘Find me the 1,000 young US, on the guns issue, that balance has been missed. people in this city who are most likely to pull a trigger She cautions about relying on the argument that or be the victim of a violent crime this summer, and most gun-owners are law-abiding. “A lot of guns that let’s see what we can do in advance to prevent that from are used in the commission of crime in the States – happening’.” and I suspect that that trend will develop here, if there The unit worked with the schools, probation, aren’t controls – are guns that are stolen from their social services and the health service. “Everybody rightful owners.” G came together, because we’re accustomed to working together,” she says. “We focused on those families Part 2 of this interview will be carried in the Jan/Feb 2009 issue, facing the biggest challenges. In over 850 cases, we got out on 6 February.
www.lawsociety.ie 27 LAW SOCIETY GAZETTE DECEMBER 2008 MEDICAL NEGLIGENCE PROBABLE In the second of two articles on legal liability for hospital-acquired infections, Rody O’Brien looks at recent Irish cases on causation in medical negligence cases and breach of statutory duty in Britain
wo recent and instructive decisions of is ‘yes’, would it weaken the defence that the plaintiff the Irish courts on causation in medical acquired the infection prior to being admitted to negligence cases are Philp v Peter Ryan the hospital? The plaintiff might have a better case and the Bon Secours Health System and Quinn in pleading ‘lost chance’ or ‘material contribution’. T(minor) v Mid Western Health Board & anor. As neither of those were pleaded in this case, the In Philp, the plaintiff was negligently diagnosed as decision of the court was based on the traditional ‘but suffering from acute prostatitis. He had an aggressive for’ test of causation. form of prostate cancer. There was breach of duty and The plaintiff argued for a modified approach to subsequent injury. On the balance of probabilities, proof of causation on the particular facts of this case. even without the negligence, the court heard that the The Supreme Court examined the cases of McGhee plaintiff would have gone on to suffer the injury. v National Coal Board and Wilsher v Essex Area Health Mr Justice Peart held that the plaintiff was Authority. This quote from Mr Justice Kearns could deprived of the opportunity of seeking alternative be very instructive of any future direction of the treatment, which might have been of benefit, as a Supreme Court in deciding on causation in hospital- result of the defendant’s negligence. This is referred acquired infection cases: to as the doctrine of ‘loss of chance’. He awarded “Wilsher suggests that it is less open to a court the plaintiff damages to the extent of the plaintiff’s to relax the onus of proof in relation to causation reasonably held belief that his life was shortened and where the condition brought about by negligence the stress this caused the plaintiff. is multi-factorial or is capable of being triggered In the Supreme Court decision in Quinn, the for a variety of reasons or by a variety of agents. plaintiff was born on 4 May 1990 with severe brain Conversely, where only one reason or agency can be damage attributable to a condition subsequently identified, a court may more readily make good any diagnosed as periventricular leukomalacia (PVL). Her evidential shortfall to draw an appropriate conclusion, claim in the High Court was that she should have notably when scientific and medical science is been delivered not later than week 35 of gestation, incapable of providing the requisite information. in which case all or substantially all of the brain Such an approach may also be more appropriate damage that occurred would have been avoided. The to cases where the negligence or breach of duty defendants conceded that the management of the precedes the injurious event, particularly where the pregnancy had been negligent and that the plaintiff injury falls in shortly afterwards and is thus clearly should have been delivered earlier than she was. proximate to it. A difficulty may obviously arise in The defendants contended that the plaintiff’s injury cases where the injurious event occurs first and there was as a result of an acute episode that occurred is then negligence, whether by way of misdiagnosis between weeks 28 and 30. They argued that the or delay in providing appropriate treatment. In the outcome would not have been any different had she latter situation, the injury or some of it will in many been delivered at any earlier time than she was. Mr cases have already occurred to a greater or lesser Justice O’Sullivan held that the plaintiff had failed to degree, so that the negligence may perhaps better be establish, on the balance of probability, that she would characterised as giving rise to the ‘loss of chance’ or MAIN POINTS have avoided her catastrophic injuries had she been ‘loss of an opportunity’ of avoiding most, or at least • Legal liability for delivered by the 35th week of gestation. a significant part, of the ensuing damage. It must be damage sustained In the Supreme Court appeal, Mr Justice Kearns said that there is a dearth of Irish authority on the as a result of very interestingly wondered why, with such a case, topic of ‘loss of chance’, which perhaps explains why hospital-acquired ‘lost chance’ or ‘material contribution’ to the injury the plaintiff’s advisers steered clear of it at trial.” infections were not pleaded. • Recent decisions Relaxing the rules on causation? of the Irish courts Modified approach to proof In analysing this quote, the first sentence could be • Breach of Would the Supreme Court be open to the argument interpreted as saying that, where there is more than statutory duty of ‘lost chance’ or ‘material contribution’ in cases one cause of injury or damage, the traditional ‘but concerning hospital-acquired infections? If the answer for’ test of causation will apply. This type of scenario
28 www.lawsociety.ie MEDICAL NEGLIGENCE LAW SOCIETY GAZETTE DECEMBER 2008 CAUSE
With fingernails like that, you too would linger over may be seen in verdicts of coroner’s courts here, it is claimed that, once the defendant knew of the your choice of scissors where a hospital-acquired infection is stated by the existence of the infection, they were negligent in coroner to be one of the causes of death. The next treating it. In such cases, Mr Justice Kearns seems to two sentences could be interpreted as saying that, be saying that it is open to the plaintiff to claim under in cases of hospital-acquired infection, where it is the doctrine of ‘loss of chance’, and one could then claimed that the infection was acquired as a result of conclude, if one accepts this interpretation, that the the negligence of the defendants, a court might relax Supreme Court might be open to such a claim. the rules on causation where the medical evidence Mr Justice Kearns agreed with the trial judge when was inconclusive. This is an argument open to a the trial judge stated: plaintiff in the appropriate circumstances, based on “I am left, therefore, with two mutually an interpretation of this part of Mr Justice Kearns’ inconsistent bodies of evidence, neither of which judgment. The last three sentences may be applicable wholly and satisfactorily resolves the issues in in the type of hospital-acquired infection cases where the case. It is not for me, following Finlay CJ in
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LOOK IT UP Cases: [2006] EWHC 3652 (QB) Legislation: • Anderson v Milton Keynes General • Philp v Peter Ryan and the Bon Secours • Control of Substances Harmful to Health NHS Trust and another [2006] All Health System [2004] IEHC 77 Regulations 2002 (Britain) ER(D) 175 • Quinn (Minor) v Mid Western Health Board • Controlled Substances Hazardous to • McGhee v National Coal Board [1973] and another [2005] IEHC 19 Health Regulations 1999 (Britain) 1 WLR 1 • Wilsher v Essex Area Health Authority • Safety, Health and Welfare at Work Act • Ndri v Moorefields Eye Hospital NHS Trust [1988] AC 1074 2005
the authority cited above, to set myself up as a regulations were intended to protect.” determining authority in regarding these specialist The judge interpreted the intention of the issues, nor do I attempt to do so. I am unable in legislation as to protect employees and others in this case, however, by the application of common the workplace and from workplace-type harmful sense and a careful understanding of the logic and substances. He concluded: likelihood of events, to reach a conclusion that the “It is clear, in my view, from the whole structure of evidence adduced by the plaintiff establishes her the regulations, that patients in a hospital are not to case on the balance of probabilities. I am unable to be included amongst the persons to be protected … It conclude, that is, that on the balance of probabilities is, in my view, inconceivable that it was the intention that had the plaintiff been delivered by the 35th week of Parliament to impose absolute liability in the of gestation, she would have been spared all or a circumstances of this case…” significant part of her injuries. In that event, I must The equivalent legislation in this jurisdiction is the dismiss her claim.” Safety, Health and Welfare at Work Act 2005. We await a pronouncement from our courts on a claim of breach Causation – breach of statutory duty? of statutory duty as causation in a hospital-acquired “It would With plaintiffs finding causation a very difficult infection case. It would indeed be a new departure indeed be a new hurdle to overcome in hospital-acquired infection in personal injury litigation if the courts here were cases, the focus of their claims has, very recently to accept the proposition that liability to patients departure in in Britain, been on breach of statutory duty by the for hospital-acquired infections was as a result of personal injury defendant hospitals. The Control of Substances Harmful breaching a statute intended to protect employees or to Health Regulations 2002 require employers to control others in the workplace. litigation if the exposure to substances that can put people’s health at courts here risk. It defines the substances as those used at work, No precedent such as chemicals, fumes and dust. It also includes There is a great deal of complexity in establishing were to accept biological agents like bacteria and micro-organisms. and defending cases involving hospital-acquired the proposition There is an interesting recent case in Britain on these infections. There is no precedent yet from the courts regulations in a medical negligence case. In Ndri v in this jurisdiction on legal liability in hospital- that liability Moorefields Eye Hospital NHS Trust, the plaintiff had a acquired infection cases and the applicable test to to patients for cornea graft at the defendant hospital. The tissue was use to establish causation. The decisions in the infected with bacteria and, as a result, she developed neighbouring jurisdiction are instructive, and some hospital-acquired endophthalmitis and lost sight in the eye. This was a are of persuasive authority. infections was very rare but known risk of cornea transplant surgery. For hospital acquired-infection cases, we saw that She claimed against the hospital in negligence and there are generally two types of claims. The first type as a result of for breach of statutory duty (Controlled Substances is that the infection was acquired in the hospital as a breaching a Hazardous to Health Regulations 1999). Her claim failed in result of the negligence of the hospital. The second is negligence, but it is the second heading that we are that, after the infection was acquired, the hospital was statute intended particularly interested in here. The High Court judge negligent in diagnosing and treating it. We saw in the to protect (Sir Douglas Brown) stated: recent Supreme Court decision in Quinn the various “I turn to breach of statutory duty. This is an alternative approaches the court might entertain to employees or interesting, perhaps ingenious attempt to fix the the plaintiff’s attempt to establish causation. This is others in the defendant with absolute liability. If Mr Whitfield’s a complex area of law. It will remain so at least until submissions are correct, then there must be that there is clear authority given on the issues by our workplace” result, and a crucial precedent would have been courts. G created in personal injury litigation. They are, however, not correct … the claimant must show the Rody O’Brien is a practising barrister and a guest lecturer in law damage he or she suffered fell within the ambit of in the Royal College of Surgeons. The author expressly divests the regulation, namely, that it was of the type that himself of any responsibility for the accuracy of the contents of this the legislation was intended to prevent and that the work, which are not intended to be relied upon in the absence of claimant belonged to the category of persons the proper legal advice.
www.lawsociety.ie 31 LAW SOCIETY GAZETTE DECEMBER 2008
The new president of the Law Society, John D Shaw, is the third generation of his family to wear the chain. Mark McDermott asks him about the main challenges facing him during his term of office
Does your presidential lineage place an extra you’re aware of, you really have no idea what might burden of responsibility on your shoulders? be coming down the tracks towards you. Each week, “I suppose a little bit. I mean if you’re following in each month, is going to bring something different, the footsteps of your father and your grandfather, something new. It’s not daunting, though, as you are particularly when they both were regarded as surrounded by a very good team. You take advice, you successful presidents, there is a certain amount of ‘you consult, you make your decisions, you do your best.” don’t want to let the side down’ about it. You always hope that your year is going to go well. If your grandfather were still alive, what advice “I wouldn’t call it a burden, though. I’ve never would he offer you? found working in the Law Society a burden. I think “It’s changed so much since 1956. I think it’s a totally if you did, you could never have stuck at it this long, different kind of profession. When he was president, because it does take quite a while to become president. he probably knew most of the people in his law People have often asked me why I do it, or how I stick directory personally. It was a much smaller profession. it, and the answer has always been the same: I actually, They didn’t have issues like the compensation fund. It genuinely, have enjoyed my time on Council. I’ve made didn’t exist back in 1956. It was a totally different style MAIN POINTS some great friends here and I’ve learned an awful lot.” of practising law. Nowadays, you have a profession of • Third-generation close to 9,000 practising solicitors, and 12,000 on the president Has your dad given you any advice about the role? roll. It’s impossible to know everybody. You really are • Major goals “The only advice that my father and any of the past talking about a different animal in terms of the Law • Dealing with the presidents have given to me – and it’s always been Society and its membership. So I think any advice recession uniform – is just to enjoy it. You know, all you can he might have given me, quite honestly, would be of do is do your best. While there are a few things that limited value perhaps.”
32 www.lawsociety.ie INTERVIEW LAW SOCIETY GAZETTE DECEMBER 2008
THE CHAIN GANG Was becoming president something that was with the profession, explaining why we believe this spoken about when you were a young solicitor? model of representation and regulation is the best “No, never. In fairness, I have to say my father never model for us. We have done a lot of research in even suggested I become a solicitor – never mind presi- the past few years. We’ve looked at the models in dent of the Law Society! It was very much left to me.” England and across the world. Quite honestly, we’ve seen the mistakes that have been made elsewhere, What are your major goals for the year? and we’re determined not to repeat them here. It’s “There are certain issues that just come down the a very complex area – I think more complex than tracks at you that you have to deal with. The clear one people realise. It’s not simply a matter of separating at the moment is the state of the economy. I wouldn’t representation and regulation. That, in my opinion, have seen such a sudden and severe recession coming is too simplistic. I think that there’s a lot more to it, 12 months ago – I don’t think anybody did. If you had and it would be a mistake for the profession to try and asked me 12 months ago what I thought was going to disown regulation. I don’t think, first off, it’s actually be the major issue of my year, I probably would have possible. Quite apart from the fact that you’re always said the legal services ombudsman.” going to be saddled with the cost of regulation, no matter what happens.” How do you think the profession is going to deal with that? Given the recession, how can the Society help “I am very confident that members of the profession members deal with it? will see the ombudsman as being a good move for “Obviously, we are limited in a sense in what we can them and for the public. We do have a job to do in do. We can’t directly influence economic conditions terms of having a calm and informed conversation in the country. And I suppose the real major issue
www.lawsociety.ie 33 LAW SOCIETY GAZETTE DECEMBER 2008 INTERVIEW
A SLICE OF Most influential person in your personal or working life? charity concert recently and have recorded a couple of CDs. “My father, due to his skills as a lawyer and with people.” “We’ve done a backing track for a Joe Dolan single that will be LIFE out for Christmas – a version of ‘O Holy Night’. It’s quite a nice Best movie of all time? recording and I think it’s going to be a big sell-out this Christmas, “At Christmas, it would have to be It’s A Wonderful Life. It always what with Joe’s first anniversary coming up on St Stephen’s Day. catches me in the throat. There’s also something special about It might just catch the public imagination.” The Godfather.” Alternative job or profession? Favourite band or type of music? “For a brief time, when I was in school, I thought I’d like to be an “I love a bit of everything, I have very eclectic tastes, including Neil architect. I was hopeless at spatial relationships and physics, Young, Tom Waits and Frank Sinatra. Anything from classical to rock however. I failed the aptitude test in spatial relationships. But I do really. I also sing in the Mullingar Cathedral Choir. We did a local love architecture and buildings.”
is the effective collapse of the property market in spending the next 20 or 30 years concentrating solely terms of activity. I do still think you will see stronger on CAT planning, CAT returns and CAT whatever! activity returning at some stage, but unfortunately it’s Much as I enjoyed it, I was glad to get back to the impossible to say when. In the meantime, it’s certainly mix of general practice. One of the things I very causing a cash-flow difficulty for firms. There is just much enjoyed doing was being in the District Court. simply very little activity in the market. We certainly I think it’s very important that solicitors get a chance need to look at the profession’s excessive dependence to actually stand up in court and present something, on the traditional core areas – conveyancing, probate even if it’s only once or twice. and litigation. These are all areas that are going to “I suppose I became slightly disillusioned with undergo – if not already – substantial change in the litigation as my career developed. It was time “I know what next five to ten years. consuming and I didn’t particularly enjoy the “In conveyancing, you have got e-conveyancing adversarial aspect of it. I didn’t mind the District members of coming down the track. There has been downward Court, funny enough, but the Circuit Court and High the profession pressure for many years, and it’s not an area of law Court just didn’t grab me. So I concentrated more that can sustain the profession on its own, as it might and more on property, conveyancing and probate. are going have done in the past. Litigation likewise – there is What with the property boom, I became more and through – a substantial move now towards alternative dispute more a property conveyancing solicitor, albeit with resolution. The Society has to be more active in quite an amount of commercial work. the ordinary promoting mediation, arbitration and collaborative “In terms of the effect of the economic downturn, practitioners. law. This is certainly something we will be looking at I am speaking directly from first-hand experience, during the year. and I know what members of the profession are ‘Full-on’ “We are going to establish a task force, to be going through – the ordinary practitioners. ‘Full-on’ conveyancing chaired by Council member Liam Kennedy, which conveyancing is an important part of their business will examine the various models of alternative and I feel the pain, believe me.” is an important dispute resolution available for business disputes. part of their The task force’s primary objective will be to identify Any doubts about your career choice? opportunities for the profession. “None. I mean, everybody has a bad day, you know. business and I “In addition, there are opportunities in tax planning In general, it is a stressful job and one that takes it out feel the pain, and estate planning as a result of the enormous amount of you a lot of the time. Ricky Gervais once said that of wealth that has been generated in this country. some days you’re the statue, and some days you’re the believe me” So there is still plenty of work for solicitors. Many pigeon. You always have to remember that! solicitors have diversified and are becoming specialised “The only regret I feel, perhaps, is that I could in certain areas of law. I think that, increasingly, this is possibly manage the old work/life balance a bit better, going to be the way forward.” but that’s easier said than done. I’m very lucky. I live in a town where I live close to my office. Nowadays, Do you specialise in any area of law yourself? many solicitors don’t get to see their kids because “When I started off, I had quite an interest in tax, and they’re working so hard. It’s very easy to get sucked tax law in particular. I was keen on estate planning into that kind of lifestyle when everything is booming. and what was then still fairly novel, the Capital Perhaps the downturn will give people time to take Acquisitions Tax Act 1976. stock of what they’re doing, to look at the direction “I quickly realised, I suppose, that when you get they’re going in, to retrain and reskill if needs be, and into a speciality, particularly tax, the focus becomes to try and get some balance back into their lives if narrower and narrower, and I just couldn’t see myself that’s what’s required.” G
34 www.lawsociety.ie PROFESSIONAL ETHICS LAW SOCIETY GAZETTE DECEMBER 2008
Do not go gentle...
Many solicitors deal with elderly clients on a regular basis. They must be alert to the possibility of pressure on the client and the existence of financial abuse, says James Cahill, especially if that client is dependent in any way
ver the past number of years, the in their lives. They then seek the advice of a solicitor mistreatment of the elderly has been to assist them. highlighted. Stories of physical abuse Most older people are extremely independent of patients in nursing homes were and capable of arranging their affairs, provided they MAIN POINTS Oshocking. More recently, the debate have access to the right information. However, many • Mistreatment of surrounding the proposed withdrawal of medical are dependent on others and this may make them the elderly cards for the over 70s gave insights into the hardships vulnerable to abuse. Anyone can become dependent • Psychological and suffered by many elderly. because of failing health, whether physical or mental. financial abuse Solicitors deal with elderly clients on a regular Isolation, perhaps following the death of significant • Solicitors’ role basis. The reality is that many older people are at a family members or friends, can also be a factor. and Law Society stage where they wish to dispose of assets or organise Solicitors are well placed to ensure that, when they guidelines their affairs. They often find themselves making deal with an elderly client, that client is protected – bigger decisions than have previously been necessary especially if they are dependent in any way.
www.lawsociety.ie 35 LAW SOCIETY GAZETTE DECEMBER 2008 PROFESSIONAL ETHICS
HSE ADVERTISING CAMPAIGN The HSE advertising campaign encouraged older people a power of attorney, to protect themselves with the following advice: • Ask for more time if needed, • Seek independent financial and legal advice, • Think about options. • Know your rights, • Where possible, stay active within your community • Conduct your own financial affairs as much as and keep in regular contact with friends and family, possible, ensuring your legal and financial matters • Maintain independence, are in order, • Ask questions: do not be fobbed off, • Plan ahead and make your wishes known in relation • Speak out – let somebody know if you are being to assets, abused, • Make sure you understand any documents you are • Be suspicious and vigilant, asked to sign, and any transactions, such as creating • Be awkward if necessary. “Elder abuse has been Sometimes abuse is obvious. Sometimes it is subtle. by the statistics. They know that financial abuse of the defined as Elder abuse has been defined as “a single or repeated elderly also includes fraud, exploitation or pressure act, or lack of appropriate action, occurring within in connection with disposals of real property and are ‘a single or any relationship where there is an expectation of trust, aware of difficulties occurring in relation to cash, repeated act, which causes harm or distress to an older person, or bank accounts, grants and benefits. Solicitors may violates their human and civil rights”. sometimes see pressure being exerted when a will is or lack of We understand physical abuse. However, there being made. appropriate are many other forms of abuse. For instance, Sometimes, exasperated family members try to psychological abuse includes threats of harm or take the decision away from the older person because action, abandonment, refusal to facilitate contact with others, they simply do not agree with the wishes of the occurring humiliation, intimidation or coercion. It also includes elderly person, or believe that their affairs are not depriving a person of their right to make decisions being organised to the best advantage of the next within any about themselves and their affairs. generation. relationship Abuse is not always motivated by malice. It may be Sometimes elderly clients are brought to the motivated by concern. For instance, family members solicitor at a time of crisis – for instance, when a where may decide that ‘they know best’ when decisions are parent is moving from a family home to a nursing there is an being made about where an older family member home. They are brought to a solicitor if there is fear should live. A typical example would be where that the older person is losing mental capacity, even expectation pressure is put on an older person to move from a though that person might still be capable of making of trust, family home to an apartment or granny flat, when this many important decisions and will continue to retain is not necessarily the only option. some capacity. If the elderly person is the client, the which causes The older person’s circumstances may be such that solicitor must ensure that, regardless of family wishes, harm or they believe that they have no choice in the matter no decision is acted upon unless it is the free decision because of their dependency for their needs. Solicitors of the client. distress to an will be familiar with the client who is reluctant to As with any form of abuse, a wide range of people older person, oppose their family’s wishes, although the solicitor may be involved in carrying out financial abuse. explains that decisions being made may be against Perpetrators may be relatives, paid care workers, or violates their best interests. Certain phrases are often heard, volunteers, neighbours, friends and associates. their human such as “I don’t have a choice – they are very good to Solicitors have encountered the neighbour who is me,” or a fearful “Where would I be without them?” intent on getting the client’s land. The elderly can and civil also be victims of financial abuse at the hands of rights’” Financial abuse tradesmen, professionals, financial institutions or In a recent HSE survey of over 1,500 cases reported other organisations. within a 15-month period, psychological abuse was the most common type of abuse reported. However, HSE advertising campaign a fifth of the reported cases related to financial abuse. The HSE has organised an advertising campaign The survey showed that the average person had a to raise awareness of elder abuse. It employs senior very limited understanding of what might be involved caseworkers dedicated to coordinate services for the in financial abuse. They presumed that it referred elderly, and to coordinate the response to allegations mainly to actual theft of cash from a person’s home. and concerns about all forms of elder abuse. Some people were aware that it might also include the The campaign focuses on financial abuse. The HSE control of a person’s pension book and the theft of the is aware that, unlike in the case of physical abuse, it can pension. only play a limited role in protecting the elderly from The prevalence of financial abuse surprised many. financial abuse. The HSE believe that protections Solicitors, however, would be unlikely to be surprised must be put in place in a much wider context than the
36 www.lawsociety.ie PROFESSIONAL ETHICS LAW SOCIETY GAZETTE DECEMBER 2008
health services it provides to the elderly. Be awkward With this in mind, the HSE sought advice and if necessary, says the HSE support from agencies that they believed might be best placed to respond to the problem on a continuing basis. These included the: • Department of Social and Family Affairs, • National Consumer Agency, • Financial Services Ombudsman, • Law Reform Commission, • Law Society of Ireland, • Irish Bankers’ Federation, • Financial Regulator, • Money Advice and Budgeting Service, • An Garda Síochána, two clients of a firm are in conflict – the solicitor • Irish League of Credit Unions. must refuse to act for one, or possibly both. The solicitor must be alert to the possibility of All were requested to take initiatives to ensure that pressure on the client and the existence of financial staff are trained to deal with services to the older abuse. They must know: client. It was recommended that there should be a • How to recognise it, code of practice within organisations for dealing with • How to probe for it, all vulnerable people. • How to address it. The problem of isolation leading to vulnerability was highlighted. It was noted that there are many The solicitor must fully advise the client of the organisations in the wider community that can help consequences of any particular decision. They should to keep older people in contact with others: Citizens’ also explain that the decision must be made in the Information Board, Meals on Wheels and Seniors’ context of the legal rights and needs of immediate and Helpline. extended family members who may be affected, but who may have been overlooked, to provide for the Law Society response client’s own needs. The Law Society, when approached by the HSE, If, following independent advice to all parties, the saw an opportunity to undertake a project to give disposition of assets by the elderly person that was guidance to solicitors to assist them in dealing with originally proposed does not happen as planned, elderly and vulnerable clients. Relevant practice or as quickly as planned, it is likely that, if and notes, some already published by the Society, are now when a different arrangement is eventually put in being reviewed for republication, with a changed place, it may well be the more satisfactory outcome, emphasis, where necessary. particularly for the elderly person. It is intended to publish a number of practice notes Each practice note will address the issue of mental to include: capacity. It is now well established that there are • Joint bank accounts (see practice note, p63 of this different tests for different situations, and solicitors Gazette), must inform themselves on this issue. (The heads of a • Wills, Mental Capacity Bill have been published, and the Law • Enduring powers of attorney, Society will issue guidelines on this legislation when • Equity release schemes. enacted.)
The traditional role of the valued ‘family solicitor’, Solicitors’ role taking instructions from more than one member of Solicitors can have a general role in encouraging the family may not be tenable – in many cases, the clients to organise their affairs, and to review them solicitor is liaising with both the elderly person who is regularly, so that the result will be that satisfactory disposing of assets and family members or unrelated arrangements are in place to ensure provision is made persons who may be the recipient of the assets or who for their future needs. may have some interest in the situation. The solicitor In their early or middle years, everyone hopes, or must be alert to the fact that there may be a conflict even presumes, that when they get older they will be of interest between the parties, no matter how well- among those elderly who maintain good health and intentioned all may be. all their faculties, work as long as they please and stay The practice notes will highlight the essential fully in control of their own affairs. The reality will question that every solicitor must ask: ‘Who is the be different for many. Solicitors can play their part in client?’ If the solicitor is clear about who his or her protecting this important group of clients. G client is, and acts in the best interests of that client, there can be no conflict of interest for the solicitor. If James Cahill is chairman of the Guidance and Ethics there is a conflict, then – as with all situations where Committee.
www.lawsociety.ie 37 LAW SOCIETY GAZETTE DECEMBER 2008 CAREER DEVELOPMENT
A GOOD JOB OF WORKWORK For those looking to move to the next stage of their career – or start on a new one – the challenges can be daunting, particularly in these straitened times. In the first of a series of articles, Aoife Coonagh gives some tips on preparing your CV in order to get to the interview stage
n the current times, there is increasing pressure on fewer trainees. on candidates to get shortlisted for interviews, The first impression you make, therefore, is critical. let alone actually get the job. Candidates are Your curriculum vitae or application form and cover finding it more difficult to get to the interview letter are the first impression potential employers Istage than before – clearly, there’s no shortage will get. They use the CV and application form to of skilled people out there willing to fight for good screen and select the best candidates for interview. positions, especially with the current economic At interview, they will probe and question the difficulties. information you have supplied to find out if you can The legal profession is no different. Whether really do the job and what skills you will bring to the you’re an experienced lawyer coming from, say, a firm. Some firms use other tests and group interviews conveyancing background and now considering other to assess skills as well. We will cover these in other options, or you’ve completed your traineeship and articles. MAIN POINTS have not been kept on, or you’re a graduate seeking Either way, you need to put your very best foot • Getting called to a traineeship, you face strong competition for the forward at the outset; otherwise you may not get past interview available positions. the first round for the opportunity of an interview. • First impressions Winning a place on the prized graduate traineeships are critical is becoming more competitive. The larger Dublin The job for you? • Matching yourself and London firms can afford to be choosier due to the The first step is to be sure that this is the job for you. to the job increase in the number and quality of those applying You need to find out as much as you can about the for secure positions, while many firms will simply take job and the firm. Talk to whoever you can, including
38 www.lawsociety.ie CAREER DEVELOPMENT LAW SOCIETY GAZETTE DECEMBER 2008
people who’ve dealt with the firm before. Read what A final issue to consider for anyone applying for a you can, including specialist publications, newspapers, traineeship, or any role, is whether this is the career for the website and the annual statement, among other you? Again, find out as much as you can and consider information, to try to find out the vital details. your options. Discover the ethos, the clients, the areas of expertise, the size and nature of the work. Ask yourself if this is What are they looking for? the sort of place where you want to work. The question that I receive from clients on an almost You also need to find out about the job itself. What daily basis, whether legal or not, is: “What are they will you be expected to do if you get the job? What looking for?” Employers, consciously or unconsciously, will you need to know? A typical issue that we come have a series of criteria in mind as to what they’re across is of a solicitor moving from a back-office looking for in a candidate – broadly speaking, a list role into direct dealings with clients. You should be of qualities or skills. The job ad or the website is the clear on what will be involved. Clearly, this kind of first place to look. Often there will be a list of essential information can be found from the above-mentioned qualifications, experience, legal skills, other skills, sources. However, there is another highly effective competencies, and bodies of knowledge, among other source – the firm itself. Ring up, or even arrange to requirements. You need to identify and analyse this list, meet, someone from the firm to get your bearings as this will inform your preparation for the application. on these issues. If you are not sure that the role is If there’s a job description, it will be important to suited to you, you’ll find it hard to prove yourself to a consider what’s needed to fulfil these tasks. If there is potential employer. no information available, or indeed no independent
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source, then it’s vital to consider what you understand required in the role, for example: “In 2006, I increased the job to entail, and thus what is needed in terms of revenue to the firm by €30,000 by focusing on clients’ your skills and qualities to do such a job. needs and introducing new services to them, such as A, You should come up with a short list. Typically, B, and C.” a solicitor will need some (although this is certainly The ‘profile’ section is completely optional. It is the not an exhaustive list) of the following: experience, section where you outline the main selling points that such as ‘five years’ experience of probate’; analytical make you a suitable candidate. These may be particular skills, which are needed in, say, analysing contracts; areas of experience or achievement. You might discuss interpersonal skills in dealing with colleagues and what makes you suitable for the particular firm, clients; and so on. There will, of course, be others. what you can provide, and the types of positions you Some will be specific to the position that you’re going would be suitable for, among other qualities. You may for and others will be more general. Either way, you also want to highlight the skills that you will bring. must ensure that you cover the essential criteria on Education can be useful, too, in displaying particular your application form or CV. personal skills, especially if you don’t have much work experience. Some candidates prefer to Getting it on paper tackle this in their covering letter. “So,” you say, “I understand all that. The ‘interests’ and ‘achievements’ But how does it work in an actual “The first sections should be specific and relevant. application?” Don’t claim interests or successes Normally, applications take two forms: impression in areas you cannot back up at the a CV or an application form (or perhaps you make, interview. both). In both cases, you have to show the So, make sure that you give all the required skills, qualities and criteria, and therefore, is necessary information on your CV prove your suitability and motivation for critical. and answer all parts of the application the role. form – and don’t leave anything out. The first sections of a CV, ‘personal Your curriculum Similarly, don’t invent items for your details’ and ‘education’ (see panel, left), vitae (CV) or CV or make up experience – you will be should be short and factual: your name, caught out! contact details, and email address. application Interviewers are not interested in your form and cover Layout and spelling age, whether you’re married to Mary, Finally, the layout is important, or that you’ve two children. In the letter are the particularly for CVs. Think about ‘education’ section, clarity and accuracy first impression your reader. Make it easy to read using is key – include specific course details, clear sections and headings. Use bullet dates, subjects, grades, project work and potential points, bold, small caps, and paragraphs STRUCTURE qualifications achieved. employers – where necessary – to achieve this. OF A CV The main body of the CV, and indeed Remember that it should not be too the area where the links are made most will get” long, although there’s no hard and fast There is no fixed easily, is in your work experience. When rule. You don’t want to bore the reader, structure to a CV, outlining a previous position, you need to so two to four pages is appropriate. but it should include give the name of the firm, dates and job Remember, too, attention to detail some or all of the title. Then give a comprehensive overview of what you is a key skill for lawyers. Thus spelling and clear, following sections: did, not just a list of generic responsibilities. Tell them concise, correct language are vital. I know for a fact • Personal details, exactly what was involved and what you did. Don’t just that a shoddy CV with typos and mistakes will end up • Education, say “I worked in family law”. Try to link what you’ve in the bin; likewise, generic CVs and applications. Each • Experience, done to the individual tasks and requirements of the application needs to be tailored to the individual firm. • Achievements, job you’re going for. In describing your role, show Remember, your CV and application form are the • Profile, where you’ve used or developed key skills, such as “I part of the recruitment and selection process where • Other interests, established excellent relations with clients using good you have complete control. Don’t get screened out • Skills, and interpersonal skills, even in emotional legal situations”. before the interview because of a bland generic CV, or • Referees. This reinforces the fact that you have these skills and because the ‘find and replace’ feature in Word didn’t further allows the interviewer to ask targeted questions find and replace all instances of the firm’s name. Put Simply put, you to test these skills. the time into carefully editing and proofreading to get need to make a It is also useful to link personal achievements to the content right. link between the these criteria. Coming up with achievements can This will be the first step towards moving on to the information contained sometimes be difficult for solicitors – clearly the next stage of your career or starting out on a new one. in these sections measure of success is not merely winning or losing Good luck! G and the skills already cases. Think about those achievements you are discussed. most proud of and then identify the skills you used Aoife Coonagh is head of career development services at to succeed. Ideally, these should relate to the skills Carr Communications.
40 www.lawsociety.ie SPORTS LAW LAW SOCIETY GAZETTE DECEMBER 2008
Footballers of the world unite! You have nothing to lose but your exorbitant salaries and gold-plated Bentleys! Stuart Gilhooly slums it at the FIFpro annual congress and reports on the latest initiatives by sport’s most powerful union
id you ever feel like a Chloe handbag? must-have accessory.” Having got over the indignity I did. Once. When Fran Gavin, the then of being objectified so crassly, I’ve been to a few general secretary of the Professional congresses now and he was right: nobody’s anybody Footballers’ Association of Ireland without their briefs by their side. D(PFAI), first asked me to act for the Acting for Ireland’s footballers, of course, is not footballers of the League of Ireland, he asked me all champagne and caviar. Like many of the poorer if I would attend the annual FIFpro congress with football jurisdictions, the League of Ireland struggles him. “Everyone brings their lawyer with them. It’s a to fill its grounds and, consequently, to pay the already
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shared among members. It also provides much-needed finance for the unions’ activities out of their share of the players’ image rights from computer games. The organisation has been in existence for over 40 years, but has recently come to prominence due a number of high-profile court cases and their player awards, which are threatening to become the premier individual awards in world football. This year, its annual congress brought us to sunny Santiago in Chile from 6-9 November. Taking one for the team – as usual – I agreed to accompany current PFAI general secretary Stephen McGuinness to provide the much-needed legal support. FIFpro don’t tend to do things in half-measure, so it came as only a mild surprise to find that our first engagement was to meet with the Chilean head of state, President Michelle Bachelet. I can confirm that things have changed much for the better since Pinochet’s day, and the remarkable President Bachelet seems to have the country under control, even if her first touch isn’t great. She certainly seemed well happy to be presented with a signed personalised shirt from Cristiano Ronaldo, the current FIFpro world player of the year. After this, it was down to business – and believe me, this was no junket. Three full days of work, the first of which ended at eight o’clock in the evening, left us too tired for a drink (ok, well maybe one or two). Much of FIFpro’s best work has been in the legal sphere in supporting national unions in protecting player’s rights. While the case of Jean Marc Bosman, who created the significant precedent of a player becoming a free agent at the end of his contract, is the most celebrated of these cases, much of the work behind the scenes has been less noticed by the general public.
From each according to his ability In Chile, we heard about the Webster decision, which has the potential to be nearly as significant as Bosman. The professional In this case, Andy Webster, the Hearts player, footballer’s must- have accessory very modest salaries of its players. In many ways, being wished to move to Wigan Athletic and claimed that (plus girl) boss of the union of footballers in Ireland is much article 17 of the FIFA transfer regulations allowed harder than being head of a a large but richer one him to buy out the remainder of his contract. After such as England, France, Spain or Italy. For instance, a protracted dispute – which has been heroically in England, the union doesn’t deal with many of the fought as far as the Court of Arbitration for Premiership footballers, as they all have their own Sport by the Scottish PFA, led by former Rangers well-paid lawyers. and Motherwell star Fraser Wishart and former Well, I can confirm that this lawyer is not in the Hibernian striker Tony Higgins – Andy Webster well-paid category. Much of the work is done for the finally got his wish, buying out his contract for as love of the game and a desire to ensure that the players little as stg£150,000. are treated fairly by clubs who occasionally see them This has now opened the door for players under as commodities that can be tossed out as soon as their 28 to buy out their contracts if three years of the sell-by date has passed. contract have expired and, if over 28, where two years have passed. They must also be moving to another Commodity fetishism football jurisdiction. In the era of hugely inflated FIFpro is the world union for soccer players and transfer fees, this could yet have a significant effect on brings together the unions of 40 countries, providing player movement. a network whereby the diverse problems of other On a similarly controversial note, the remarkably countries and the solutions they have found can be ambitious (and very naïve) plan by FIFA president
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Sepp Blatter to limit the number of foreigners significant payment in respect of these rights by who can play in any given game was discussed. computer game companies. This is in return for Known colloquially as the ‘six-plus-five rule’, FIFA indemnity by the individual player unions in the event announced that they wish bring in a rule that, in any that any player seeks to assert these rights. The quid given game, six players on the pitch must be citizens pro quo is that member unions of FIFpro receive an of the country in which they play. Unsurprisingly, the annual royalty payment, which is then used by the European Commission have completely rubbished unions for the benefit of the players in that country. this idea and, while FIFpro supports the idea in There is no doubt that FIFpro has, as a brand, principle, it recognises that it has virtually no prospect gained increased recognition over the past few of success without the commission’s backing. years, and this is in no small measure down to the One of the most notorious cases of recent years success of its player-of-the-year award. It is the Many professional involves the Romanian striker, Adrian Mutu, who cost only international award voted for by the players footballers value big, over €20 million when he signed for Chelsea in 2003. and is seen as more prestigious and worthwhile as a fun bags The striker had been only moderately successful at consequence. Not surprisingly, Cristiano Ronaldo the club when he tested positive for cocaine. This has succeeded Kaka as the 2008 FIFpro player of the resulted in a seven-month ban from football and year, and the team of the year, while named along drove Chelsea to terminate his contract. He has predictable lines, reads like a who’s who of English since made a successful return to football in Italy, and Spanish football. Unfortunately, no League of but Chelsea sued him for the cost of the transfer fee Ireland players made the cut... paid to him. The Dispute Resolution Chamber has So, after three gruelling days in 30-degree heat in ordered that Mutu must pay Chelsea €17.5 million. Santiago, we returned to Ireland, emboldened and FIFpro quite rightly regard this punishment as grossly enlightened as we always are by the organisation, excessive and have, through their legal team, appealed enthusiasm and dynamism of FIFpro. As long as the this decision to CAS. players of the world continue to be represented by this group, they needn’t worry that the credit crunch To each according to his needs is going to bite them too hard. G It’s not all bad news, though. The worldwide image rights of the players have been the subject of much Stuart Gilhooly is the solicitor for the Professional Footballers’ negotiation within FIFpro, and there has been a Association of Ireland.
www.lawsociety.ie 43 LAW SOCIETY GAZETTE DECEMBER 2008 PEOPLE AND PLACES PIC: JASON CLARKE PHOTOGRAPHY PIC: LENSMEN
Labour Day The leader and other elected representatives of the Labour Party were The Minister for Justice, Equality and Law Reform was the guest speaker special guests for dinner at the Law Society on 3 November 2008 (front, at the parchment ceremony on 23 October 2008. (L to r): John D Shaw l to r): Douglas Mill, Eamon Gilmore TD, then president of the Law Society (then senior vice-president), Ken Murphy (director general), Minister for James MacGuill, Pat Rabbitte TD and Joanna Tuffy TD. (Back, l to r): Philip Justice Dermot Ahern, James MacGuill (then Law Society president), and Joyce (past-president), Ken Murphy (director general), Donald Binchy (then Mr Justice Richard Johnson (President of the High Court) junior vice-president) and John D Shaw (then senior vice-president) Courts Service CEO praises Law Society uring his 20 November your presidents, committees and not think of a single proposal by the support given by Dparchment ceremony speech your director general for support or change that the service the Law Society, though its to newly qualified solicitors, for our initiatives to reform and had sought to implement that representatives on the relevant the CEO of the Courts Service, improve the was frustrated or prevented court rules committee, to the PJ Fitzpatrick, complimented courts. I always found from proceeding. This amply new case progression regime the profession’s “openness and collaboration and a willingness illustrated the openness and for family law proceedings in willingness to embrace change to make those initiatives work willingness of solicitors and the Circuit Court. “Solicitors and modernisation equal to any in the interests of litigants, the legal system generally can – and, I believe, will – play a other profession I know”. the public and practitioners to embrace change and vital role in making this regime “Over the past ten years, I alike.” In his ten years at the modernisation. a model for the further case and my colleagues have had helm of the Courts Service, Mr Mr Fitzpatrick said that progression initiatives currently many occasions to approach Fitzpatrick said that he could he was also very encouraged in development.” PIC: LENSMEN
At a dinner held in his honour on 20 November at Blackhall Place, the Chief Executive of the Courts Service, PJ Fitzpatrick, was joined by past-presidents and senior executives of the Law Society, including (back, l to r): Owen Binchy (past-president), Mary Keane (deputy director general), Laurence K Shields (past-president), Gerard Doherty (senior vice-president), Ken Murphy (director general), James MacGuill (past-president), and Pat O’Connor (past-president). (Front, l to r): Judge Gerard Griffin (past-president), PJ Fitzpatrick, John D Shaw (President of the Law Society), Brendan Ryan (Courts Service) and Noel Rubotham (Courts Service)
44 www.lawsociety.ie PEOPLE AND PLACES LAW SOCIETY GAZETTE DECEMBER 2008 Thinking globally and acting locally aw Society Director General and representation of the legal LKen Murphy has been profession can be improved. elected vice-president of the At its most recent annual International Institute of Law conference, the CEOs of law Association Chief Executives societies and bar associations – (IILACE). All previous vice- with almost a million members presidents have proceeded around the globe – discussed to become president of this such issues as: worldwide association of chief • Effective strategic planning executives of law societies and for law societies, bar associations. • Public relations and the legal In his final address to the profession, Law Society Council, outgoing • The affordability of legal president James MacGuill services, described Murphy’s achievement • Competition and regulatory of this office as “no small honour reviews of the profession in for Ireland”. different jurisdictions, The members of the newly-elected executive of IILACE (back, l to r): Don Murphy was previously the • Gender issues, Deya (Law Society of East Africa), Retha Steinmann (Law Society of chair for four years of CEEBA • Stress in the profession, and Namibia), Jan Martin (Law Society of South Australia), Raymond Ho (Law Society of Hong Kong). (Front, l to r): Ken Murphy (vice-president of IILACE) (Chief Executives of European • Emerging national and and John Hoyles (Canadian Bar Association, president of IILACE) Bar Associations) and is the only international issues in one of the 25 CEEBA members professional indemnity mistakes that have been made CEEBA, with potentially 60 on the executive of the world insurance. elsewhere and both identifying law society CEOs from every body. and adopting emerging best continent. “The first item on IILACE meets once a year, “The problems and pressures on practice,” said Murphy. the agenda will be ‘How to help but its executive is in conference- the profession are remarkably He is also looking forward the legal profession to survive call contact once a month to similar all over the world. to next October when he will the recession’. The recession for share information and ideas on We can all learn from each host in Dublin the first ever lawyers is a global phenomenon how the education, regulation others’ experiences, avoiding joint conference of IILACE and also,” he remarked ruefully.
The Kilkenny Bar Association held its AGM on 4 November 2007 in the Kilkenny Rivercourt Hotel, with special guests James MacGuill (president, Law Society) and Ken Murphy (director general) in attendance. (Back, l to r): Brian Kiely, Michael Lanigan, Tim Kiely, Laurie Grace, Conor Bass, John G Harte (Jnr) and Kieran Boland. (Middle, l to r): Tony Canny, Katie Gilhooly, Martin Crotty, Emer Foley, Tom Walsh, Yvonne Blanchfield, David Dunne, Jane Harte, Padraig Butler, Mary Molloy, Eugene O’Sullivan, Celine Tierney, John B Harte, Sarah Brophy, John Fitzgerald and Susan O’Donnell. (Front, l to r): St John Donovan, Sonya Lanigan (secretary, KBA), Ken Murphy, James MacGuill, Owen O’Mahony (president, KBA) and John G Lanigan
www.lawsociety.ie 45 LAW SOCIETY GAZETTE DECEMBER 2008 PEOPLE AND PLACES Spanish armada
he Tipperary Solicitors’ Bar the Cortes was voting on a new TAssociation (TSBA) held its prime minister. The TSBA annual conference in Madrid called in on the Irish Embassy, from 3 to 5 October 2008. The where it was entertained by group of 24 solicitors was led by Ambassador Gunning, who gave TSBA President John Spencer. an interesting talk on Spanish- The conference was organised Irish relations. by subcommittee members The group also learned about Brendan Hyland, Billy Gleeson the main differences between and Marcella Sheehy. the Spanish and Irish legal The group visited the Cortes systems from international Generales (General Courts) or counsel and member of the legislature in Spain, where they Spanish Bar Association, Ralph had their picture taken (right) in Smith, who spoke on the the Chamber of Deputies – the topic of ‘Legal surprises for an site of an attempted military English-speaking lawyer doing coup on 23 February 1981 while business in Spain’.
Attending the recent CPD Focus Annual Property Law Conference were (l to r): John O’Sullivan (PRA), Michael O’Connor (partner, William Fry), Attracta O’Regan (head of CPD Focus), Gabriel Brennan (project manager, First ‘Legal Irish’ conferring eConveyancing Task Force), Michelle Nolan (communications executive, At the recent conferring for the CPD Focus Certificate in Legal Irish were CPD Focus), Majella Egan (McCann FitzGerald) and Deirdre Fox (back, l to r): Peter McGarry, Pól Ó Murchú, James MacGuill, Alan McCrea, (Deirdre Fox & Associates) Declan Duggan, Leachlain Ó Catháin, John Dolan and Kevin O’Hara. (Front, l to r): Michelle Nolan, Rita Hamilton, Attracta O’Regan, Mr Justice Adrian Hardiman, Deirdre Thompson and Áine Sheehan
Calcutta Run hands over €340,000 to worthy charities At the handing-over of the Calcutta Run cheque for €340,000 to GOAL and the Fr Peter McVerry Trust on 25 November 2008 were (front, l to r): Lisa O’Shea, John D Shaw (President of the Law Society), Minister Peter Power (Minister of State at the Department of Foreign Attending the recent CPD seminar on bullying, harassment and Affairs with responsibility for Overseas Development Aid), and Anne Marie stress were (l to r): Patrick Groarke (Groarke and Partners, Solicitors, Connolly. (Back, l to r): Cillian MacDomhnaill (director of finance), James Longford), Barbara Joyce (Law Society), Joanne Hyde (O’Donnell Sweeney MacGuill (past-president), Michael Irvine (past-president), John O’Shea Eversheds), Kevin Langford (Arthur Cox) and Dr Abbie Lane (consultant (founder and CEO of GOAL), Pat Doyle and Mick Barr psychiatrist, Dublin County Stress Clinic)
46 www.lawsociety.ie PEOPLE AND PLACES LAW SOCIETY GAZETTE DECEMBER 2008 ALL PICS: DEE BAUMANN
At the AGM of the Southern Law Association (SLA) held on 5 November in Court Chambers, Cork, were senior members of the SLA, seen here with then Senior Vice-President of the Law Society John D Shaw, SLA President Patrick Mullins, President of the Law Society James MacGuill and director general Ken Murphy
SLA President Patrick Mullins (left), seen here with President of the There was a very strong turnout for the SLA AGM Law Society James MacGuill and director general Ken Murphy PIC: PROVISION PHOTOGRAPHY
The Southern Law Association recently hosted a lunch for solicitors from Cork city and county who have been qualified for 50 years or more. (Back, l to r): Finbarr MacCarthy, Dermot Moloney, Gerard Murphy, Tony Neville, Brian Russell and Patrick J O’Driscoll. (Front, l to r): John Russell, Dermot J O’Meara, Patrick Mullins (president, SLA), Edward O’ Driscoll and Jack Phelan
www.lawsociety.ie 47 LAW SOCIETY GAZETTE DECEMBER 2008 PEOPLE AND PLACES SYS Conference really sparkles! ALL PICS: JOHN IRONSIDE
Alina Prendergast, Micheál Grace (both SYS), Kate Coughlan (Brightwater Recruitment), Niall Pelly, Victoria Clarke, Donogh O’Donovan, Simon Hannigan (all SYS), John Shaw (president of the Law Society), Eileen Moloney (Brightwater Recruitment) and William McAuliffe (SYS)
oor weather, challenging Finally, Junior Vice-President of Pgolf, and the prospect of the Law Society James McCourt very late nights failed to deter encouraged young solicitors members of the Society of Young to build connections with the Solicitors (SYS) from attending Society and to get involved by the autumn conference on 7 airing their views. November 2008. Brave Saturday golfers Ballymoney, Co Wexford, who had chosen to battle the was the venue for this year’s elements won well-deserved conference. The modest façade respite from the poor weather of the Seafield Hotel provided conditions at the 19th! The a deceptive front to a spacious, highlight of the weekend was modern interior – the perfect undoubtedly the gala ball. setting for a weekend of catching SYS’s special guest for the up with colleagues and building evening was the newly-elected At Seafield Golf and Spa Hotel on 7-9 November 2008 were (l to r): Denise Fanning, Paul Diggin, Aoife Costello, Becky Coyle, Hilary Ryan and new friendships. president of the Law Society, Tríona Ryan The conference proper started John D Shaw. This year’s ball on Saturday and was presided had extra sparkle in the form of over by SYS chairperson a magnificent lady’s pendant as Simon Hannigan. There was top prize for the evening’s draw, an interesting mix of topics. kindly sponsored by Boodles Kate Coughlan of Brightwater of Grafton Street, Dublin. The Recruitment gave an update on prize sparkler was won by Ita the resilient legal recruitment Robinson – congratulations! market during these difficult Socialising, dancing and times for the profession. Deirdre chatting continued right Finn (William Fry) advised through to breakfast time for attendees how to save on their the hardiest of SYS-ers. Thanks tax bills by making the most to Brightwater Recruitment for of personal tax reliefs. Mason, its continuing strong support Hayes & Curran’s Ronnie of the society (it has been SYS’s Neville shared his unique and headline sponsor for the past frank insight into the daily life ten conferences), and to the Adding glamour to the recent SYS conference were (l to r): Ciara Cullen, of being a partner – extreme other sponsors, law firms and, of Jennifer McCarthy, Jude Wrixon, Elaine Keane and Susan O’Leary multi-tasking sprang to mind! course, the delegates.
48 www.lawsociety.ie PARCHMENT CEREMONIES LAW SOCIETY GAZETTE DECEMBER 2008 cDowell, Rory McIntyre O’Brien, Geraldine McKenzie, or, Claire O’Doherty, John Paul O’Donoghue, Normaor, O’Donovan, ith, Alannah Smyth, Susan Walsh, Claire Whelehan, John Williams ith, Alannah Smyth, Susan Walsh, aw Society Ken Murphy were guests of honour at the 29 May 2008 e Carney, Olwyn Cassells, Brenda Caulfi eld, Barbara Clear, Gina Cleary, eld, Barbara Clear, Olwyn Cassells, Brenda Caulfi e Carney, , Colin Hayes, Aidan Healy, Ciaran Healy, Elena Hernandez Fernandez, Ciaran Healy, , Colin Hayes, Aidan Healy, ed solicitors at the presentation of their parchments on 29 May 2008 Newly qualifi Ruth Hicks, Deborah Hutton, Laura Kehoe, Ciara Kennedy, George Kennedy, Aoife Marrinan, Claire McAndrew, Hugh McCabe, Timothy M Aoife Marrinan, George Claire McAndrew, Kennedy, Ruth Hicks, Deborah Hutton, Laura Kehoe, Ciara Kennedy, Andrew Croughan, Orla Farrell, David Fitzgerald, Noeleen Foley, Sinead Gormley, Deirdre M Griffi n, Scarlett Griffi n, Niamh Gunn n, Scarlett Griffi DeirdreAndrew M Griffi Sinead Gormley, Croughan, Orla Farrell, David Fitzgerald, Noeleen Foley, Eamonn McKeogh, Melanie Morris, Barry Laoise Ni Chonaill, Ruth Niland, Bronach O’Connell, Rosanne O’Conn Claire Murphy, Murphy, Mary O’Loughlin, Peter O’Toole, Fionnuala Power, Kevin Power, Muireann Reedy, Eleanor Ryan, Laura Shannon, Anne Smith, Aoife Sm Muireann Reedy, Kevin Power, Mary Fionnuala Power, O’Loughlin, Peter O’Toole, Mr Justice Bryan McMahon, President of the Law Society James MacGuill, Niamh Gunn (guest speaker) and Director General of the L parchment ceremony for newly qualifi ed solicitors: Jennifer Beggs, Mary T Blake, Grace Boland, Elaine Breen, Nicola Byrne, Maev parchment ceremony for newly qualifi
www.lawsociety.ie 49 LAW SOCIETY GAZETTE DECEMBER 2008 PARCHMENT CEREMONIES ranigan, Síne Brennan, Anna Broderick, Ciara Brogan, Dineen, Patrick Donaghy, Laura Fannin, Garret Farrelly, Dineen, Patrick Donaghy, Alva Linnane, John Lunney, Aoife Malone, Marianne Marron, Alva Linnane, John Lunney, r), and Director General of the Law Society Ken Murphy were ia O’Brien, Michael O’Connor, Katie O’Dea, Maureen O’Hara, ia O’Brien, Michael O’Connor, tte Vahey, Caitríona Walsh, Stephanie Walsh, Tracey Wilkinson, Tracey Stephanie Walsh, Caitríona Walsh, tte Vahey, Martha Wilson, Richard Young ed solicitors at the presentation of their parchments on 20 June 2008 Newly qualifi guests of honour at the 20 June 2008 parchment ceremony for newly qualifi ed solicitors: Denise Bohan, Catherine Boner, Eimear B ed solicitors: Denise Bohan, Catherine Boner, guests of honour at the 20 June 2008 parchment ceremony for newly qualifi Nessa Browne, Daragh Burke, Clara Cassidy, Deirdre Coleman, Sabrina Comerford,Nessa Browne, Daragh Burke, Clara Cassidy, Marie Cullen, Julia Kate Cremins, Rita Crowley, Claire McGrath, Ruth Milne, Elaine Morrissey, Marie-Therese Mulcahy, Fíona Murphy, Aileen Murtagh, Aoife Nash, Mar Fíona Murphy, Aoife Nally, Marie-Therese Mulcahy, Claire McGrath, Ruth Milne, Elaine Morrissey, Kenneth Fitzgibbon, John Flynn, Catherine Foley, Emma Guinan, Clodagh Harvey, Dara Hayden, Ruth Heavy, Shane Kelly, Emily Lee, Shane Kelly, Emma Guinan, Clodagh Harvey, Dara Hayden, Ruth Heavy, Kenneth Fitzgibbon, John Flynn, Catherine Foley, President of the High Court Mr Justice Richard Johnson, President of the Law Society James MacGuill, Moya Quinlan (guest speake Michael O’Leary, Gillian O’Shea, Jane O’Sullivan, Pamela Potterton, Thomas Sheridan, Jamie Sherry, Antoine Marie Therese Kelly,
50 www.lawsociety.ie PARCHMENT CEREMONIES LAW SOCIETY GAZETTE DECEMBER 2008 Deirdre O’Connell, Deirdre O’Doherty, Griana O’Kelly, r, Cabrini McCarrick, Donna McCarthy,r, Simon McElwee, John Gallagher, Trina Galvin, Sarah Hall, Olive Heneghan, Trina John Gallagher, immons, Mark Smith, Mary Rosemary Trayers, Crona Winston Wall, emiah Breen, Mary Audrey Colleran, Sharon Cooney, Casserly, iety James MacGuill, and Director General of the Law Society Ken Murphy ed solicitors at the presentation of their parchments on 24 July 2008 Newly qualifi Gillian Joyce, Claire Kennedy, Dalippe Lalloo, Ian Lavelle, Gavin Lawlor, Gemma Lyons, Paul Madden, Lynne Martin, Dalippe Lalloo, Ian Lavelle, Gavin Lawlor, Gillian Joyce, Claire Kennedy, Sandra McAlee Patrick Cunningham, Paul Dempsey, Michelle Diamond-Kelly, Emma Falsey, Ciara Feighrey, Cormac Foley, Daniel Forbes, Orla Gahan, Cormac Foley, Ciara Feighrey, Emma Falsey, Michelle Diamond-Kelly, Patrick Cunningham, Paul Dempsey, were guests of honour at the 24 July 2008 parchment ceremony for newly qualifi ed solicitors: James Beesley, Cillian Bredin, Jer ed solicitors: James Beesley, were guests of honour at the 24 July 2008 parchment ceremony for newly qualifi Aoife McMahon, Thomas McNamara, Aisling Meehan, Esther Morrissey, Sarah Jane Murphy, Ewan Murtagh, Sarah Jane Murphy, Sinead Neilan, Rachel Nolan, Aoife McMahon, Thomas McNamara, Aisling Meehan, Esther Morrissey, Judge Michael C Reilly (Inspector of Prisons), President of the High Court Mr Justice Richard Johnson, President of the Law Soc Susan O’Leary, James Phelan, David Quinn, Emmet Quish, Aoife Raftery, Emma Roulston, Robert Richard Scannell, George Sadlier, S
www.lawsociety.ie 51 LAW SOCIETY GAZETTE DECEMBER 2008 PARCHMENT CEREMONIES nan Walsh, Frances Walsh nan Walsh, len, Leanne O’Loughlen, Eoghan O’Regan, Fiona O’Reilly, len, Leanne O’Loughlen, Eoghan O’Regan, Fiona O’Reilly, Verry and Director Trust) General of the Law Society Ken Murphy erald, Aaron Flynn, Pauline Gallagher, Ailis Garvey, Helen Gaynor, Ailis Garvey, Helen Gaynor, erald, Aaron Flynn, Pauline Gallagher, Burke, Emer Butler, Rachel Carroll,Burke, Emer Butler, Mark Cockerill, Danielle Conaghan, Kinsella, Raymond Lambe, Sarah Lipsett, Si nead Lynch, Eilis McCabe, ed solicitors at the presentation of their parchments on 31 July 2008 Newly qualifi Patrick O’Riordan, Deaglan O’Siothchain, Niall O’Sullivan, Andrea Reynolds, Gerardine Ryan, Cian Smith, Paul Majella Ty Elaine McCarthy, Isibeal McCoy, Caroline McEvoy, Anna Neary, Ciara O’Logh Aisling Nic Aoidh, Stephanie Niland, Kerrie Caroline O’Connor, McEvoy, Elaine McCarthy, Isibeal McCoy, Catherine Conroy, John Crean, Laura Daly, Catherine Day, Alan Del Rio, Patrick Delaney, Lisa Devlin, Aisling Feeney, Ryan Fitzg Lisa Devlin, Aisling Feeney, Alan Del Rio, Patrick Delaney, Catherine Day, John Crean, Laura Daly, Catherine Conroy, President of the High Court Mr Justice Richard Johnson, President of the Law Society James MacGuill, Fr Peter McVerry (Peter Mc were guests of honour at the 31 July 2008 parchment ceremony for newly qualifi ed solicitors: John Barrett, Niamh Boland, Jerry were guests of honour at the 31 July 2008 parchment ceremony for newly qualifi Aideen Goggin, Sharon Hayes, Jean Hourigan, Peter Johnston, Christine Kane, Geraldine Kearney, David Kelly, Roisin Kenny, Lisa Roisin Kenny, David Kelly, Aideen Goggin, Sharon Hayes, Jean Hourigan, Peter Johnston, Christine Kane, Geraldine Kearney,
52 www.lawsociety.ie PARCHMENT CEREMONIES LAW SOCIETY GAZETTE DECEMBER 2008 ney, Dianne McMahon, Jillian Mills, Elaine A Morrissey, Ian Murray, Ian Murray, Dianne McMahon, Jillian Mills, Elaine A Morrissey, ney, esford, Fiona Buckley, Martinesford, Fiona Buckley, Burke, Keith Grace Burns, reen Dennehy, William Dillon Leetch, Clare Dowling, Hilaryreen Dennehy, Duggan, mmission) and Director General of the Law Society Ken Murphy were oanne Page, Sinead Power, John Quinn, Ian Ryan, Roisin Scullion, oanne Page, Sinead Power, rdre Hughes, Fintan Jackson, Carol Kelly, Veronica Kelly, Eleanor Keville, Kelly, Veronica rdre Hughes, Fintan Jackson, Carol Kelly, ed solicitors at the presentation Edel Sheerin, Craig Sowman, Mary Townsend, Lisa Tumilson, Ciara Tunney, Aoife Walsh Aoife Walsh Ciara Tunney, Edel Sheerin, Craig Sowman, Mary Lisa Tumilson, Townsend, of their parchments on 28 August 2008 Newly qualifi guests of honour at the 28 August 2008 parchment ceremony for newly qualifi ed solicitors: Daniel Barry, Iseult Beatty, Anna Ber ed solicitors: Daniel Barry, Iseult Beatty, guests of honour at the 28 August 2008 parchment ceremony for newly qualifi Robert O’Beirn, Aidan O’Brien, Maeve O’Connor, Roisin O’Donoghue, Fleur O’Driscoll, Áine O’Dwyer, Edel O’Kelly, Orla O’Leary, J Robert Edel O’Kelly, Roisin O’Donoghue, Fleur O’Driscoll, Áine O’Dwyer, O’Beirn, Aidan O’Brien, Maeve O’Connor, Emma Cafferky, Alma Campion, Jerilynn Carroll, Karol Corcoran, Sarah Coughlan, Judith Curtin, Justine Carty, Gina Conheady, Mau Gillian Fitzgibbon, Aimee Gallagher, Edward Geoghegan, April Gilroy, David Halford Fitzpatrick, Ciaran Haran, Tima Harnett, Edward Dei Geoghegan, April Gilroy, Gillian Fitzgibbon, Aimee Gallagher, Mr Justice Garrett Sheehan, President of the Law Society James MacGuill, Prof Maurice Manning (president of the Human Rights Co Emily King, Timothy Leddin, John Magee, Dermot Marah, Ciaran Markey, Andrew Massey, Brendan McDonald, Alan McGill, Laura McIner Andrew Massey, Emily King, Timothy Leddin, John Magee, Dermot Marah, Ciaran Markey,
www.lawsociety.ie 53 LAW SOCIETY GAZETTE DECEMBER 2008 PARCHMENT CEREMONIES a Murphy, Majella Ní Ghallchóir, Orlaith Ní Bhroin, Majella Ní Ghallchóir, a Murphy, lly Anne Boyle, Angela Brennan, Gareth Byrne, Susan Byrne, Mary Florence Loric, Jarrett, Catherine Keane, Daniel Kiely, ilín Duggan, Joseph Durkin, Laura Farrelly, Stiofán Fitzpatrick, ilín Duggan, Joseph Durkin, Laura Farrelly, ivan, Karina O’Sullivan, Fiona Ormond, Mark Quinn, Louise Smith, General of the Law Society Ken Murphy were guests of honour at the ed solicitors at the presentation Sean Smith, David Sweeney, Emma Tivy, Ciara Treacy, Michelle Treacy, Grainne Whelan Michelle Treacy, Ciara Treacy, Emma Tivy, Sean Smith, David Sweeney, of their parchments on 10 September 2008 Newly qualifi Siobhán McCarthy, Kevin McElhinney, BarrySiobhán McCarthy, Kevin McElhinney, McGettrick, Eoin McManus, Anne McSharry, Theres Brendan Michael Colgan, Ciara Millar, Ciara Gaffney, Kevin Gaffney, Susan Gannon, Paul Hannon, Frazer Hanrahan, Sally-Anne Hinfey, Marianne Hourihane, Justin Hughes, Ciara Gaffney, Kevin Gaffney, Susan Gannon, Paul Hannon, Frazer Hanrahan, Sally-Anne Hinfey, Victoria Byrne, Emer Carey, BryanVictoria Byrne, Emer Carey, Coen, Hugh Cummins, Federica Curcuruto, Elizaveta Donnery, Keira Dowling, Fionnuala Doyle, Co 10 September 2008 parchment ceremony for newly qualifi ed solicitors: Laura Armah-Kwantreng, Fiachra Baynes, Alison Bearpark, Sa 10 September 2008 parchment ceremony for newly qualifi Mr Justice Kevin Feeney, President of the Law Society James MacGuill, Director General of FLAC Noeline Blackwell, and Director Mr Justice Kevin Feeney, James John Paul O’Brien, Marcus Ó Buachalla, Karl O’Connor, Timothy O’Hanrahan, Mark O’Shaughnessy, Irene O’Shea, Joanne O’Sull Timothy O’Hanrahan, Mark O’Shaughnessy, James John Paul O’Brien, Marcus Ó Buachalla, Karl O’Connor,
54 www.lawsociety.ie PARCHMENT CEREMONIES LAW SOCIETY GAZETTE DECEMBER 2008 ona McDonald, David McElroy, Aine McGuigan, Patrick McHugh, ona McDonald, David McElroy, hman, Karen Reidy, Ivana Rubino, Jane Staunton, Niamh Tierney, Ivana Rubino, Jane Staunton, Niamh Tierney, hman, Karen Reidy, n Bergin, Faye Bohan, Jennifer Brennan, John Brick, Louis Burke, lity and Law Reform Dermot Aherne, and Director General of the Paul Gillick, Marie Gormley, Ciara Hanratty, Naoise Harnett, Sarah Hayes, Ciara Hanratty, Paul Gillick, Marie Gormley, Stephanie Tierney, Olivia Treston, Justin Walsh Olivia Treston, Stephanie Tierney, ed solicitors at the presentation of their parchments on 23 October 2008 Newly qualifi President of the High Court Mr Justice Richard Johnson, President of the Law Society James MacGuill, Minister for Justice, Equa Theresa Howlett, Mairtín Kearney, Mark Ludlow, Seamus Maher, John Martin, Seamus Maher, Theresa Howlett, Mairtín William McAuliffe, Mark Ludlow, Le Kearney, Niall McCarthy, Louise McDarby, Law Society Ken Murphy were guests of honour at the 23 October 2008 parchment ceremony for newly qualifi ed solicitors: Carol An Law Society Ken Murphy were guests of honour at the 23 October 2008 parchment ceremony for newly qualifi Niamh Muldoon, Yvonne Murphy, Aine Murray, Eamonn O’Hanrahan, Aoife O’Neill, Attracta O’Regan, Geraldine O’Sullivan, Suhaila Ot Aine Murray, Niamh Muldoon, Yvonne Murphy, Grattan Butler, Joann Carson, Claire Casey, Pamela Cheevers, Finbarr Coughlan, Derek Gately, Kevin Geraghty, Michelle Geraghty, Kevin Geraghty, Pamela Cheevers, Finbarr Coughlan, Derek Gately, Joann Carson, Claire Casey, Grattan Butler,
www.lawsociety.ie 55 LAW SOCIETY GAZETTE DECEMBER 2008 STUDENTS’ PAGE Proud of their cool Cork jerseys!
he official unveiling of the Another game took place on TLaw Society of Ireland’s 15 November, which saw the Cork football jerseys took place 2008 PPCI Dublin students on 8 November in Garryduff, travelling to Cork to play Cork. The jerseys have been their Southern counterparts sponsored by student sponsor – fielding both men’s and favourites, Brightwater. The women’s teams. Brendan game saw 2007 PPCI take on O’Sullivan was men’s captain 2008 PPCI, with the latter being and Niamh O’Connor was victorious on the day. women’s captain. 88 hockey caps for Cork trainee – and counting! o date, John Jermyn has of opportunities to me, travel with the appointment of a new T88 caps playing hockey with being one. South African coach. Things Ireland’s national team. Now “In the last couple of years, are quiet, with the occasional a trainee on the 2008 PPCI in we have travelled to countries friendly, such as against Cork, he talks to the Gazette such as New Zealand, Australia, Argentina in October 2008 and about playing for Ireland. South Africa and China. Scotland in November. Things “I originally started playing “Last season I played for the should pick up approaching hockey because I attended Dutch side HGC and we were August 2009 with the European Ashton School, Blackrock, beaten finalists in the European B Division in Cardiff and the Cork, where it was the primary Hockey League – hockey’s World Cup qualifier. sport. I won my first cap equivalent of the Champions “As I said, despite the against Belgium in 2002. League in soccer. Hockey occasional missed nights out Despite some of the is one of the main sports in and the constant travelling to disadvantages of playing at Holland and is played as a Dublin for weekend training this level, such as missing the professional game. sessions, I wouldn’t change it for class trip to Kenmare and “At the moment, on the the world and look forward to a having to miss class nights out, Irish scene, we are going few more years of involvement hockey has opened up a lot Cork trainee John Jermyn through a transitional period at this level.”
56 www.lawsociety.ie STUDENTS’ PAGE LAW SOCIETY GAZETTE DECEMBER 2008 student spotlight In their founder’s footsteps ast July, 12 Arthur Cox ‘Marigolds’ and began stripping Ltrainees filed away their and washing the clinic. We PPCII manuals, dusted down repainted the exterior of the their backpacks, pleaded with building, the porch, two wards their bank managers and and the doctor’s surgery. We travelled to southern Zambia filled in the cracks and holes and to assist in a renovation project. inserted new vents and windows. They coordinated their efforts We also cleaned all the beds with Slí Eile, a Jesuit-based and purchased new bedding and young adult initiative that mattresses. promotes the concepts of action While the days were tiring, for justice and self-development. the evenings were spent around Involvement with Slí Eile was the campfire, cooking in a way Do unto others… the Arthur Cox trainees who travelled to Zambia were particularly fitting, as the firm’s (l to r): Ciara O’Donovan, Niamh Dillon, Michael Gill, Iseult Ní Ghallchoir, that brings new meaning to the founder, Arthur Cox, had a Martin Cooney, Peter Callanan, Michael Keaveney, Louise Howard, Aisling phrase ‘one-pot cooking’. longstanding affiliation with Burke, Derek Hegarty, Tara Creegan and Deirdre O’Mahony We would like to thank the Jesuits – in his later years, everyone who assisted us, he became a priest and joined a school a day. They also seek to Here we spent one week including our friends in Blackhall Jesuit mission in Zambia where achieve a level of self-sufficiency renovating a health clinic, which Place and all in Arthur Cox he ministered until his death in and have developed a successful is extremely important in a rural who supported our fundraising 1965. Ciara O’Donovan takes up bakery and farm. During our area that suffers greatly from efforts. We raised approximately the story: time there, we painted a number AIDS. In Zambia, one in nine €12,000, all of which went On our arrival, we set up of buildings and took breaks to adults are HIV positive, while towards the building materials camp in the small town of play with the children, many the average life expectancy is 41. used in our renovation project Mwandi. There, a Scottish of whose parents have died The clinic is vital to the effort to and in donations to the orphan couple, Keith and Ida Waddell, from AIDS-related illnesses. educate people about the spread and vulnerable children centre. have set up a very successful The opportunity to spend of AIDS and in providing anti- Some of the fund went towards orphan and vulnerable time with the children was an retroviral drugs. Unfortunately, hiring a cleaner for the clinic, children project. Through this unforgettable experience. due to lack of state funding, the to assist in its upkeep and also programme, children of the Having found our feet, we clinic was in a very poor state of towards the purchase of a solar town are provided with one left Mwandi and travelled to the repair. Against this backdrop, we panel to bring much needed meal and at least three hours of small rural village of Masese. donned our oldest clothes and electricity to the clinic. G
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www.lawsociety.ie 57 LAW SOCIETY GAZETTE DECEMBER 2008 BOOK REVIEW books A Night at the Inns and Other Stories
Henry Murphy. Blackhall Publishing (2008), 33 Carysfort Avenue, Blackrock,rock, CCoo DDublin.ublin. ISBNISBN:: 978978-1-84218-145-4.-1-84218-145-4. PPrice:rice: €14.95. enry Murphy SC has now All these cases are reported in a de forceforc . Judge Fleming was Hsurpassed himself as a jovial style. In the libel action, wwearingeari a tennis shirt, the raconteur with wit, humour and the courtroom is packed as ccolourolou of which was closest much hilarity when recounting tightly as the plaintiff’s skirt. ttoo VaVann Gogh’s Sunflowers than the continued fictional career The plaintiff is asked whether the ddressr code of Donnybrook progression of Dermot she experienced something of TeTennis n n i Club. Unfortunately, McNamara BL in his third book a conversion on the road to DerDermot’sm tennis is not brilliant. of short legal stories. Damascus. Her reply, that she HiHiss ““serve had never been the The stories commence was never in Damascus, has bbedrockedro of my game. Indeed, with annual Mass for the legal the courtroom in convulsions. my ggamea didn’t have a bedrock profession in early October – During the hearing, the silks arere in ananyy identifiable sense.” where “male members of the dropping in and out of the casee TheTh book reveals how Bar, whose theology is unlikely like characters in a play. DerDermotm applies his skill in to be over-influenced by Vatican In another case, when sidessidesteppingt awkward remarks II, pack the altar, while their Dermot’s witness, a professor, from opponents in court. This leader shakes the thurible with suggests that he might start nightnight on the town is an earlyearly is nonott surprising, as his creator gusto”. at the beginning, he received birdbird in thethe FiFitzwilliamtzwilliam ffollowedollowed and aauthor was also adept at Dermot’s career has now a judicial rap on the knuckles byb a requiemi iin theh CConcert sidesteppingid opponents on the taken off, so that he receives from Judge Pilkington: Hall. The Ivory Tower seemed rugby field. three types of mail – “the small “Certainly not, Professor. That like his sort of address. He is the Henry Murphy is the Irish envelope through which he sort of thing might be fine for proud possessor of a razor-sharp John Mortimer and Dermot can feel the staple securing academia, but down here we mind and likes nothing better McNamara is his Rumpole. the cheque, the new set of have a day’s work to do. Cases than to be surrounded by lever- This book will make a instructions and the dreaded to hear, lists to clear, real lives to arch files on reported cases. wonderful present for Christmas reminder, distinguishable from sort out. What chance would we People are not his forte, and or birthdays. G the cheque only by the absence have if we all started everything he has been heard to say that of a staple”. at the beginning?” “the Four Courts would be a far John Costello is the head of the private The reported cases include Unlike Judge Pilkington, better place without witnesses”. client department at Eugene F Collins a libel action, a defective car Judge Humphries has never The Annual Bar Tennis and is a Council member of the Law and a personal injuries action. been in a pub. His idea of a Tournament is also a tour Society.
58 www.lawsociety.ie BRIEFING 59 4,700 € G www.lawsociety.ie DECEMBER 2008 DECEMBER report 8,200. Regrettably, it also 8,200. Regrettably, € to appeared that matters would get worse before they got bet- 2010 and the premia for ter, were unlikely to improve. He noted that it was intended to publish an article in the next is- sue of the e-zine advising mem- bers to consider their choice of insurer carefully. Finance Finance The chairman of the Doherty, Committee, Gerard some reported that, despite certificate fall-off in practising students, numbers and PPCI and the both the Law Society their Law School would achieve commit- budgets for 2008. The tee continued to monitor the staff pension scheme and the Education Centre Fund invest- as they had both ments closely, been affected by the financial turmoil. Mr Doherty noted that the recommended budget and practising certificate fee for 2009 would be a matter for decision by the Council at its December meeting. Professional indemnity insurance The chairman of the PII Com- mittee, Niall Farrell, reported that insurance premia were in- creasing significantly for 2009 and the standard SMDF premi- um was increasing from LAW SOCIETY GAZETTE GAZETTE SOCIETY LAW council council Legal Services Ombuds- would be enacted in THE SERVICE IS COMPLETELY CONFIDENTIAL AND THE SERVICE IS COMPLETELY SOCIETY INDEPENDENT OF THE LAW TOTALLY 01 284 8484 CONSULT A CONSULT The Consult a Colleague helpline is available to assist every member of the profession with any problem, whether personal or professional COLLEAGUE ment to the bye-laws to providement to the bye-laws to ofthat: “A copy of the accounts onthe Society shall be posted website and a com- the Society’s prehensive and user-friendly of the ac- report and summary ofcounts sent to each member than 31the Society by not later May in the following year.” Relocation of the Society’s Regulation Department The director general reported that the relocation of the So- Regulation Department ciety’s Court was on time to George’s and on budget. It was intended to invite the Minister for Jus- tice, Equality and Law Reform to attend the official opening of the premises. Parchment ceremony speech by minister The president briefed the Council on the parchment speech delivered by the Min- ister for Justice, Equality and Law Reform on 23 October, during which he had praised the Society for its “progressive approach”. He had indicated that the man Bill and he had paid the New Year personal tributes to the presi- dent and director general for their effective representation on behalf of the profession. The senior vice-president, and it was incumbent on the and it was incumbent could to Society to do what it assist them in their difficulties. the So- While there was little the ciety could do to influence there was economic conditions, could a great deal that solicitors them- do to retrain and reskill up-turn selves for the inevitable Professional in the economy. development would be a major and theme for the coming year, ad- he had asked the Society’s visory committees to promote strategy of ‘Excel- the Society’s lence in Representation’ and to make an extra special effort in the coming year to take steps to assist colleagues. and the jun- Gerard Doherty, ior vice-president, James Mc- Court, then took office and expressed their support for the Council and the president for the coming year. Report of the Complaints Force Review Task The chairman of the task force, Joe Brosnan, outlined the sali- ent features of the task force’s report to the Council and ad- dressed questions raised by Council members. He noted that, while there had been no belief that there was any fun- damental problem with the existing complaints-handling system, the review had been conducted because of a desire to maximise efficiency and performance. The report was adjourned to the December Council meeting for further discussion. Outcome of the 2008 AGM The Council noted that, at the annual general meeting held on the previous evening, the mem- bers had approved an amend-
Mr Shaw noted that the Mr Shaw was then formally
7 November 2008 7 November Law Society Council meeting, meeting, Council Society Law major challenge facing the So- ciety and the profession was the current difficult economic conditions. Many solicitors and their clients were struggling, appointed as president. He said that he was deeply conscious of the trust being placed in him and he had been greatly en- couraged by the many individ- ual messages of support. He ac- knowledged his pride to be fol- lowing in the footsteps of many great presidents, including his who was in attend- Tom, father, ance. He paid tribute to James MacGuill, “whose indefatigable commitment and ideal- energy, ism, combined with a powerful intellect, meant that he never gave it less than his best shot”. He also expressed the Society’s wife, Lisa, gratitude to James’s who supported and son, Conor, James throughout his year of office. Taking of office of president Taking and vice-presidents The outgoing president, James MacGuill, thanked the Coun- cil, director general and staff for their practical help and sup- port during his year of office. He acknowledged that it had been a year of dramatic change on many fronts, which required extraordinary effort on the part of a great number of people to enable the Society to cope. He wished the incoming president, every success in John D Shaw, the year ahead. New Council members its new The Council welcomed Ger- members – Gail Enright, ard O’Donnell, Dara Robinson, and Keith Brendan Twomey them well – and wished Walsh for their term of office. 50 will € John Elliot, Registrar of Solici- tors and Director of Regulation accessed in the members’ areaaccessed in the members’ solici- of the website using the tor’s surname and reference you may Alternatively, number. request a form to be emailed at to you by phoning the Society 01 672 4800. If you are ceasing practice If you are intending to cease practice in the coming year, please notify the Society ac- cordingly before in writing on or 1 February 2009. Correspondence from the Society An application form for obtain- ing a practising certificate, to- gether with an application form for membership of the Society, will issue to all solicitors on the Roll of Solicitors, irrespective of whether or not they are cur- rently practising. Acknowledgement of application forms Please note that it is not the Society’s policy to acknowledge receipt of application forms as received. Duplicate practising certificate an increasing number Recently, of solicitors have requested a duplicate practising certificate for the purpose of presenting their practising certificate to the firm’s reporting accoun- tant. With effect from 1 Janu- ary 2009, a fee of be payable in respect of each duplicate practising certificate issued for any purpose. Continuing Professional Development (CPD) The application form includes a section regarding completion of, or exemption from, the ten- hour CPD requirement (section must complete this sec- E). You tion, but please do not send in your CPD record card with the application form. If you are an employed solicitor Solicitors who are employed should note that it is the statu- tory obligation of every solicitor who requires a practising cer- tificate to ensure that he or she has a practising certificate in force from the commencement Employed solicitors of the year. cannot absolve themselves from this responsibility by relying on their employers to procure their practising certificates. However, it is the Society’s recommenda- tion that all employers should pay for the practising certificate of solicitors employed by them. Some of your details are al- ready on the application form The practising certificate appli- cation form will be issued with certain information relating to each solicitor’s practice already completed. What can you access on the website (www.lawsociety.ie)? The application form for a prac- tising certificatebe avail- will able on the Society’s website. can print out a blank form You complete the alternatively, or, form on-screen and print out the form for signing and return- ing to the Society with the ap- propriate fee. The form can be to Solici- Please note that, again dur- The Regulation of Practice or part II of this section to be completed in order for the Soci- ety to process your application. What happens if you apply late? Any applications for practising certificates that are received af- ter 1 February 2009 will result in the practising certificates being dated the date of actual receipt by the Registrar of So- licitors, rather than 1 January 2009. There is no legal power to allow any period of grace under any circumstances what- soever. ing 2008, a number of solicitors went to the trouble and expense of making an application to the High Court for their practising certificate to be backdated to 1 January because their practis- ing certificate application was received after 1 February. Committee is the committee of the Society that has respon- sibility for supervising compli- ance with practising certificate requirements. A special meet- ing of this committee will be held on 12 February 2009 to consider any late or unresolved applications for practising cer- tificates. At this meeting, any practising solicitors who have not applied by then for a prac- tising certificate consid- will be ered for referral forthwith to the Solicitors Disciplinary Tribunal and will be informed that the Society reserves the right to take proceedings for an order under section 18 of the tors (Amendment) Act 2002 prohibit them from practising illegally. notes DECEMBER 2008 DECEMBER
PRACTISING CERTIFICATE 2009: NOTICE TO ALL PRACTISING SOLICITORS NOTICE TO ALL PRACTISING 2009: CERTIFICATE PRACTISING Why you need a practising Why you need a practising certificate criminal It is misconduct and a offence a solicitor (other for full-time than a solicitor in the service of the state) to practise without a practising certificate. Any solicitor found to be prac- tising without a practising cer- tificate is liable to be referred to the Solicitors Disciplinary Tribunal. When you must apply A practising certificate must be applied for on or before 1 Feb- ruary in each year in order to be dated 1 January of that year and thereby operate as a qualifi- cation to practise from the com- It is a mencement of the year. legal requirement for a practis- ing solicitor to deliver or cause to be delivered to the Registrar of Solicitors on or before 1 Feb- ruary 2009 an application in the prescribed form, duly completed and signed by the applicant so- together with licitor personally, the appropriate fee. The onus is on each solicitor to ensure that his or her application form and fee is delivered by 1 February 2009. Applications should be delivered to the new address of the Regulation Department of the Society at: George’s Court, George’s Place, North King Street, Dublin 7. Section D of the application form a considerable num- Each year, ber of application forms are returned to solicitors who omit to complete section D, which relates to investment business services or investment advice. It is necessary for either part I www.lawsociety.ie LAW SOCIETY GAZETTE GAZETTE SOCIETY LAW practice
BRIEFING 60 Req- BRIEFING 61 document, Taxation Committee Taxation Conveyancing Committee, www.lawsociety.ie DECEMBER 2008 DECEMBER uisitions on Title tion. Since the new legislation tion. Since effectcame into on 1 July 2008, requisition 16A is ob- is now entirely solete. As VAT a matter to be addressed pre- contract, it is not proposed to replace requisitions 16A in the late at document, as it is too requisitions to address stage Therefore, the question of VAT. requisitionis now being 16A removed from the printed and this will be reflected in the next print-run of the document. subcommit- The Society’s VAT tee is currently on the working format of a set of pre-contract this will be enquiries, and VAT published in due course to the profession.
or LAW SOCIETY GAZETTE GAZETTE SOCIETY LAW The current recommended Requisitions on Title ‘Taxation Committee’, scroll Committee’, ‘Taxation to the item on the committee rele-page, and click on the updated vant link) and will be as necessary. Practitioners should ensure to use the lat- est version and should copy and attach it to the printed contract document or insert it in their template document as appropriate. 2. Requisition 16A previously legisla- applied to the old VAT formcondition will of special the Con- be available on both page veyancing Committee’s Committee’s and the Taxation on to page on the website (log the members’ area and click in turn on ‘Society committees’, ‘Conveyancing Committee’ document REQUISITIONS ON TITLE ON REQUISITIONS It has therefore been decid- This change in wording will months, the amended wordingmonths, the condition should of the special be provided to the profession website. on the Law Society’s practitioners can In this way, access the current recom- mended wording at all times out-of- and the risk of using will date printed documents extent be minimised to the possible. special ed to amend the text of condition 3 in the Society’s Conditions of Sale to read as follows: “(3) At- tach/insert the current recom- special mended format of VAT condition (available on www. amended as ap- lawsociety.ie), propriate.” be reflected in the next print- run of the document. VAT: CHANGES TO STANDARD CONDITIONS OF SALE AND OF SALE CONDITIONS TO STANDARD CHANGES VAT: Conditions of Sale Conditions 1. will be awarePractitioners that therebeen a number have of changes to the wording of the stan- special condition 3 of dard Law Society contract for year, sale, since May of this follow- in anticipation of and ing the introduction of the new legislation that came into VAT effect on 1 July 2008. It has Convey- become clear to the Commit- ancing and Taxation tees that the wording of this special condition will contin- ue to evolve and change as the practical application and interpretation of the new leg- islation develops over time. It seems clear to the committees that, rather than run the risks inherent in changing the text of the special condition in the printed document every few Litigation Committee Taxation Committee Taxation The eBrief also sets out Submit evidence of the terms upon which the de- posit was paid and retained, and Certify that such deposits were not applied to any oth- er taxable supply. the opportunity his or to place her full claim before the Injuries Board and achieve the fairest possible award, attendance is in the claimant’s best interests. amount is refundable, interest calculated fromwill be paid, to which the taxable period(s) the claim relates (that is, the deposit period in which the was forfeit cancella- or the tion charge was paid) up to the date of the refund pay- ment. In relation to claims for refunds, also the Revenue who points out that taxpayers had previously reduced their or cor- liability for income tax poration tax, in order to take for accounted account of VAT on retained deposits, will also need to adjust their income tax/corporation tax liability for the relevant period arising from the repayment of any VAT. in orderto avoid hav- However, ing to reopen previous income tax/corporation tax returns, in such a case where a refund of is sought by on deposits VAT the amount of the a taxpayer, repayment (plus any rel- VAT evant interest) sought should be reduced by the amount of any additional income tax or corporation tax liability. that, when making a refund claim, claimants should: • • amending . While reaffirming VAT Act VAT As a result above leg- of the The eBrief subsequently simply ensure that a claimant is aware that, in those circum- stances, the Injuries Board can only assess the claim with the benefit of the medical records available. Therefore, in order to ensure that the claimant has supplier to the customer. Con- the customer. supplier to wherethe customer sequently, the is an accountable person, claimed amount that may be as an input credit shall be re- duced accordingly. Revenue islative amendments, published eBrief no 49/2008, on the in which they advised and change in Revenue policy procedures that have arisen as a result of measures in the Finance Act 2008 the that there is no change in the treatment of a de- existing VAT posit when it is initially paid, and elaborating on the posi- tion with respect to forfeited deposits, the Revenue further provided in the eBrief that a charge levied by a supplier when a customer makes a can- cellation (and consequently a supply does not take place) is also to be treated as falling by outside the scope of VAT virtue of it being regarded as compensation and not a pay- ment in respect of a taxable supply. deals with claims for a refund previously accounted of VAT for in prior years on forfeited deposits and cancellation charges. According to the eBrief, such claims should be submitted to the relevant local district tax office, and the nor- mal statutory four-year period applies. In addition, where an NOT A SUPPLY FOR VAT FOR SUPPLY NOT A The Law Society’s Taxa- The Law leg- The amendments in the That supply does not sub- sequently take place owing to a cancellation by the cus- tomer, The cancellation is recorded as such in the books and re- cords of the supplier, The deposit is not refunded and to the customer, No other consideration, ben- efit or supply is provided to the customer by any person in lieu of the refund of that amount, Where the above applies, for VAT purposes. for VAT a resulttion Committee (as made of the above ECJ case) representations to Revenue to legislation. amend the VAT whereislation now mean that, on VAT a supplier accounts for an amount received by way of a deposit from a customer be- fore the goods or the supply of services deposit to which the relates and: • • • • then the supplier may in turn liability for the reduce their VAT taxable period in which the de- posit is forfeit by the amount accounted originally of the VAT for on the deposit. the consideration on the origi- nal invoice issued to the cus- tomer is deemed to be reduced to nil, and a document (to be treated as if it were a credit note) detailing the reduction is required to be issued by the tance of attendance. The com- mittee recognises that there will always be certain circum- stances in which clients cannot or will not attend. A solicitor is not responsible for the non-at- tendance of a client but should ). (sec- VAT Act VAT Société DECEMBER 2008 DECEMBER RETAINED DEPOSITS AND CANCELLATION CHARGES CHARGES AND CANCELLATION DEPOSITS RETAINED INJURIES BOARD: ATTENDANCE AT MEDICAL APPOINTMENTS AT INJURIES BOARD: ATTENDANCE ), which provides Finance Act VAT Act VAT ( tions 101 and 102) con- tions 101 his year’s The change arises as a re-The change arises as Prior to this case, the Irish he Litigation Committee reminds practitioners of T that VAT is not payable on de- that VAT posits retained the event of in a customer’s cancellation. sult of a European Court of was Justice (ECJ) case that 2007 handed down on 18 July treatment concerning the VAT ( of hotel deposits While the judgment concerned the hotel industry, the principle laid down applies to all depos- its received before the supply of goods and services takes place, and subsequently the supply does not take place as a result of a customer cancel- lation, resulting in the deposit being forfeited. Revenue had published guid- ance that such cancellation charges were subject to VAT at 21%. Furthermore, the Irish government even went a step further and had observations submitted to the ECJ on its behalf that such cancellation charges were subject to VAT. Fortunately, the ECJ disagreed and ruled that, wherea cus- tomer exercises the cancella- tion option available to them and forfeits their deposit, then such compensation does not constitute a fee for a service and forms no taxable amount Thermale d’Eugénie-les-Bains 1972 tains an amendment to sec- tains an amendment tions 17 and 19 of the T their obligations to their client in that, when a medical appoint- ment is received, the claimant should be informed of the ap- pointment and of the impor- www.lawsociety.ie LAW SOCIETY GAZETTE GAZETTE SOCIETY LAW
BRIEFING 62 BRIEFING 63 3 of the deceased, unless the of the deceased, unless relationship the ac- between as count holders was such to raise the presumption of was advancement, which not rebutted. www.lawsociety.ie Intention to make a gift DECEMBER 2008 DECEMBER If the documenta- 2 2. to make 2.1. If a client wishes a gift, then theremust be clear an in- evidence to indicate such to look tention. The first place for that intention is in the docu- mentation by which the trans- fer is effected. If those docu- ments themselves disclose the transferor’s intentions, then extraneous evidence is not admissible. Give an immediate gift to in the joint account holder, which case there is an im- mediate transfer of the legal interest in the account but there is also an transfer of a beneficial interest, or the original ac- Alternatively, count owner wishes to enjoy the benefit (income) of the joint account during his or her lifetime and then for the benefit to pass to the sur- vivor on his/her death, in which case there is an im- mediate transfer of the legal ownership in the account with an intention to confer a beneficial interest in the account to the survivor on the death of the original ac- count owner, 2.2. Where a client wishes to transfer an account into the joint names of him/herself and that of another person in order to either: • • tion is neutral as to intention, then clear evidence of proof to make a gift is essential. In such a case, the onus of rebut- ting the implications of a re- sulting trust by evidence rests on those claiming to be benefi- cially entitled by survivorship to the monies standing to the accounts in which they were named as joint creditors. LAW SOCIETY GAZETTE GAZETTE SOCIETY LAW The named joint account The named joint account au- holder (agent) only has in the thority over the funds account to the extent agreed hold- by the original account er (principal). There may of agree-course be a specific ac- ment between the joint the count holders as to how but account should be used, this is not usually the case. if the account was However, opened for convenience then any withdrawal only, from the account should be purely for the care and main- tenance of the principal. (The agreement referred to is of course distinct from the contract entered into with the financial institution as to the operation of the account and the rights of the joint holders against the financial institution.) If the principal becomes mentally incapacitated, the relationship of agent and principal ends. If the princi- pal becomes mentally inca- pable, then the operation of the joint account automati- cally comes to an end, and the accounts fall to be op- erated either by an attorney under an enduring power of attorney that has been registered, if there is one, or alternatively by the com- mittee of the ward if ward- ship proceedings have been instigated. On the death of the princi- pal, the funds in the joint account pass on a resulting trust to the estate of the principal and not to the sur- viving joint account holder, who has no beneficial inter- est in the account. This can also be stated thus: on the death of the principal (origi- nal account holder) there is a presumption of a resulting trust in favour of the estate legal nature ‘agency’ ac- of an count: • • • Is there to an intention make a gift? Does the presumption of ad- vancement apply? Resulting trust • • a cli- A solicitor should advise of the ent of the implications funds in access to and use of account an account by a joint each depending on holder, of the above circumstances. There that, is clear evidence particularly, older people who are opening joint accounts do not always fully understand the nature of the transaction being undertaken. 1. 1.1. Usually at a time when older people are particularly vulnerable – for example, when being admitted to hos- pital or long-term care, or they may simply be physically infirm and unable to access services directly – they are encouraged to transfer their bank accounts into the joint names of them- selves and some other person. They are encouraged to do this ‘for their convenience’, and the arrangement is to facilitate the second account owner to operate the account on their behalf. A solicitor should ad- vise a client that, in such circumstances, the joint ac- count holder merely becomes an agent for the older person. While the legal interest in the account is transferred into joint names to facilitate the arrangement, there is no intention to transfer any ben- eficial interest, therefore the presumption of a resulting trust arises. In such a case, on the death of the original the proceeds account holder, of the account revert on a re- sulting trust to his or her es- tate and do not pass by sur- vivorship to the joint account holder. 1.2. A solicitor should advise any joint account holder of the 1 JOINT BANK ACCOUNTS – GUIDELINES FOR SOLICITORS FOR – GUIDELINES BANK ACCOUNTS JOINT
(September 2002).
inancial abuse is a inancial abuse widespread concern” – ring an account into joint names simply for the con- venience of the original ac- count holder? Is the reason for transfer- For example: Does the presumption of a resulting trust arise? Is there an intention to make a gift? Does the presumption of ad- vancement apply?
One particular aspect of fi- “F • A. Transferring an account A. Transferring into joint names In advising a client on the legal implications of the transfer of bank accounts into the joint names of the older person (who is the original account owner and who has provided the funds in the account) and the name of another person, the following points should be fully discussed with the client: • • • nancial abuse that has been identified is the misuse and abuse of joint bank accounts. Older people are often encour- aged to add the name of a family member or carer to their bank account ‘for the conve- nience’ of the older person. So- licitors should be aware of the legal implications of the trans- fer of a bank account into joint names and advise a client on the different rules that can ap- depending on the intention ply, of the original account holder. Protecting our Future: Report Group on El- of the Working der Abuse The group recommended that pro-health, legal and financial the fessionals should develop skills needed to recognise, ad- dress financial and minimise A abuse against older people. 2008 HSE research study on frailty elder abuse found that to and dependence amounted over 60% of reasons for elder abuse. 7 8 The Probate Office also may Where the only asset in the If there is no clear inten- it is proved Where, however, One party reposes trust and confidence in the other or is somehow vulnerable to influ- ence, and tation to the estate of a jointtation to the estate of ex- account holder is being tracted, therea requirement is for the personal representative to make a return to the Rev- and toenue Commissioners complete a form CA24, which raises a veryquestion specific with regard to any property that of thewas in the joint names (or oth- deceased and another ers) at the date of death. raise questions where it is on notice of property held in joint names. estate is a joint bank account, and it appears that it may not be necessary to extract a grant of representation to the estate of a deceased, it is particu- larly important for solicitors to ensure that the personal rep- resentative is fully advised of the legal position with regard to property held in joint names. tion of evidence to make a gift, then the equitable principle of the presumption of a resulting If there is an trust will apply. argument to the contrary, then the onus of rebutting the pre- sumption of a resulting trust lies with the surviving joint ac- count holder. D. Undue influence If it is clear that no gift was intended and the proceeds of the joint account revert on a resulting trust to the estate of the original account owner, then the question of undue in- fluence does not arise. that a gift was intended, then the further arise question may as to whether the original ac- count owner was induced by undue influence into making the gift. The presumption of un- due influence may arise where: • or frustrate the 6 both parties should enjoy ac- the benefit of the joint acount, that is, to confer gift on the joint account ofholder either at the date the opening of the account origi- or on the death of the nal account holder? If the transfer is from hus- toband to wife or father of thechild, is it the intention transferor to benefit (make a gift to) wife or child? A solicitor who is advising • A client should be advised that the agreement with regard to the reason (intention) for putting the account into joint names should preferably be in writing. A client should be also advised of the distinction be- tween any agreement between the joint account holders them- selves and any contractual agreement between the finan- cial institution and the joint ac- count holders that will set out the requirements with regard to the operation of the joint account and the rights of the joint account holders against the bank. C. Administration of estate On the death of the original it is extremely account holder, important that the true inten- tion for the opening of any joint account is ascertained. in the administration of an es- tate should make sure that full enquiries are made and that there is no attempt to either facilitate fraud Where a grant of represen- wishes of the deceased. A so- licitor should advise a personal representative of an estate of the duty of full disclosure of all assets and, where assets were in the joint names of the de- ceased and some other person or persons, the duty to make full enquiries and disclosure with regard to the intention of the deceased with regard to as- sets held in joint names. Succes- . A solicitor should advise the Is it a joint account for the original account owner’s with the joint benefit only, account holder merely acting as agent for the principal? Is it a joint account where there is an intention that Father [transfers property]Father [transfers to a child. aA solicitor should advise If there is an intention to client of the likely taxation con- sequences if the presumption of advancement does arise. B. Financial institutions in advising a client A solicitor, of the legal implications of transferring accounts into the joint names of the client and that of another person, should, in addition, inform the client of the need for the client to clearly confirm the intention with re- gard to the joint account to the financial institution. The con- firmation of intention should distinguish the type of joint ac- count it is intended to have: • • • The presumption of advance- respectment does not apply in of a transfer of property from it doeswife to husband, and not apply if property is trans- ferred from to child. mother add theclient who wishes to child toname of his wife or his doesa joint account, but who not wish the presumption of of the advancement to apply, necessity to clearly document his intention not to confer any benefit with regard to the ac- count to his spouse or child. In which case, the presumption of resulting trust and, will stand on his death, the proceeds of the relevant account will be an asset in his estate. allow the presumption of ad- then the vancement to apply, client should be advised of the possible need to review his will and should also be advised of the provisions of the sion Act 1965 In 5 DECEMBER 2008 DECEMBER
that of the death of 4 viz Husband [transfers prop- erty] to a wife, a clear intention must be indi- a clear intention intention to make cated of an at the time of the a gift either in joint names or, transfer into the alternative, to an intention a contin- make a gift subject to gency, the donor. 2.3. There be taxation may of these implications in either alternatives, and client and donee should accordingly be ad- advised to obtain taxation vice. 2.4. In such circumstances, where there is a clear inten- tion by the client to make a gift with regard to a joint account, a solicitor should advise the client of the impact this could have on the provisions of the client’s will, if they have made one. 2.5. In circumstances where a gift was intended, the question of undue influence may still arise. 3. Presumption of advancement 3.1. The relationship between the account holders may be such as to give rise to a pre- sumption of advancement. www.lawsociety.ie LAW SOCIETY GAZETTE GAZETTE SOCIETY LAW other words, are if accounts transferrednames, into joint the relationship of the account holders may be such as to give rise to the presumption of ad- vancement – the transaction being treated as an intention to make a gift unless it can be shown that the original account holder intended otherwise. If a presumption of advancement is established, that may neutr- alise the imposition of a result- ing trust in favour of the estate of the deceased, and the sur- viving account holder may be- come entitled to the proceeds of the account. 3.2. The relationships that can give rise to a presumption of advancement are limited to the following: •
BRIEFING 64
So- BRIEFING 65 [1999] 4 IR. and to the memo- G
Gazette www.lawsociety.ie DECEMBER 2008 DECEMBER randum to all solicitors from the then Chief Justice (Hamilton CJ), dated 22 December 1994, relating to section 72 of the licitors (Amendment) Act 1994 (copies can be downloaded from the ‘statutory declarations information’ webpage). of jurat for a statutory declara- tion is available for download and this can be easily ‘cut and pasted’ into current precedent documentation. Alternatively, and more conveniently in terms of space, practitioners can use a specific form if of jurat, it can be anticipated by whom the statutory declaration will be taken and received and the means of identification of the declarant that will be required by the person taking and receiv- ing the declaration. These spe- cific forms be of jurat can also downloaded from the members’ area of the website. Affidavits The 2008 act does not alter the existing arrangementsfor the completion of affidavits. In regard to the administration of oaths by practising solicitors, practitioners are referred to the practice note contained in the June 2005 issue of the Soci- ety’s able as a constructive trustee assistance in the for dishonest breach of trust or fiduciary duty law for the older (“Finance and issue 31, client”, Tolley’s/STEP, June 2008, at H1.8). (2003 edition). can arise not only for individuals but also for undertakings that facilitate a dishonest scheme. of older client”, Tolley’s/Society and Estate Practitioners, Trust also issue 31 at A5.41. See Carroll v Carroll This latter case also raises the question of the ‘improvidence of the transaction’. 7 form See question 8 of CA24 8 Liability for dishonest assistance 9 See “Finance and law for the Eu-
[1990] 1IR HC version of the , thereby amend- [1995] 2IR 159. [2007] EWHC 1169 LAW SOCIETY GAZETTE GAZETTE SOCIETY LAW Word Standards Of- in Public . Lynch v Burke to make a statutory declaration abroad will now have a range of processes available to him/ her. Changes to penalties for mak- ing false declarations Section 51 of the 2008 act sub- stitutes section 6 of the 1938 act, as amended by section 26 of the fice Act 2001 ing the offence and penalties for making a false declaration. New standard form of jurat Section 52 of the 2008 act substitutes the schedule to the 1938 act (which set out the text of the original standard form of jurat) to reflect the change introduced by section 49 of the 2008 act relating to the identification of the declarant by means of a “relevant docu- ment”. How to download precedent standard forms of jurat Practitioners should log on to the members’ area of the So- ciety’s website and click on the link to ‘precedents for practice’ in order to access the ‘statu- tory declarations information’ page. A new combined standard form at p6. Lynch v Burke that may arise wherethat may arise real property either by way of a is owned jointly, – wherejoint tenancy the right of survivorship on a ten- applies – or ancy in common, where the right of survivorship does not apply. Sillet v Meek Ch. ment is now viewed as somewhat anachronisticand some query the whether it contravenes ropean on Human Convention Rights someone who assists another in committing a fraud may be li- 4 2 3 See presumptionThe of advance- 5 6 In the case of equitable fraud, Committee 9 Guidance and Ethics Section 49 of the 2008 act hensive and independent legalhensive and all aspects of theadvice about transaction. tion clause) of the statutory declaration: either (a) that the declarant was personally known to the person taking and receiv- ing the statutory declaration, or (b) the declarant was identi- fied by another person who was personally known to the person taking and receiving the statu- tory declaration. retains these two alternatives and adds a third alternative. The proposed declarant can now establish his/her iden- tity by reference to a “relevant document” containing a pho- tograph of the declarant, and this means of identification is then attested to in the jurat. A “relevant document” means a valid passport, iden- a national tity card or a document equiva- lent to a passport, a refugee travel document or a travel document issued by the Min- ister for Justice, Equality and Law Reform. Making of statutory declara- tions outside the state Section 50 of the 2008 act in- sertsthe 1938 section 3A into act and provides for the making of statutory declarations out- side the state. A person who needs, for Irish law purposes, to joint bank accounts that are personal property. They are not intended to deal with issues In the alternative, whether Footnotes 1 These guidelines are limited or not undue influence is estab- or not undue improvi-lished, the issue of the maydence of the transaction trans- arise, in which case the on theaction may be set aside grounds of its improvidence. CHANGES TO STATUTORY DECLARATIONS CHANGES TO STATUTORY Civil . This Statutory amend the 52 of the
Law (Miscellaneous Provi- ections 49 to
The transaction in questionThe transaction explanation. calls for an S The parties therefore do not in any special rela-need to be tionship, and the transaction of ‘mani- does not have to be donor. fest disadvantage’ to the Once a presumption of undue then be- influence has arisen, it doneecomes a matter for the to rebut the presumption and enteredto show that the donor with fullinto the transaction knowledge of the advantages and thisand disadvantages – will generally turn on whether the donor has had compre- • New additional means of iden- tification Section 49 of the 2008 act amends section 2 of the 1938 act as to the means by which the proposed declarant iden- tifies himself/herself to the person taking and receiving the statutory declaration. The 1938 act originally provided for two alternatives set out in the jurat (that is, the attesta- The changes The effectsthe of each of amending sections contained in the 2008 act are summarised below. sions) Act 2008 statutory provisions relating to statutory declarations originally provided for in the Declarations Act 1938 note summarises the changes, section by section, and pro- vides practitioners with infor- mation about how to download precedent standard forms of ju- rat from the Society’s website. These changes are effective from 20 July 2008. There are no changes to the existing posi- tion relating to the swearing (or affirming) affidavits. of 1/11/ Passports 1/11/ : (a) s33 In accordance Appoints SI 414/2008 , prescribe the periods Public Health (Tobacco) Public Health (Tobacco) SI 404/2008 Foreign Affairs to refuse to is- Foreign Affairs to refuse The sue or to cancel a passport. mat- regulations also prescribe regarding ters of procedure and the the making of appeals decision-making process. Commencement date: 2008 Passports (Periods of Regulations 2008 Validity) Number: Contents note: with section 9(1) of the Act 2008 of validity for different types of passports. Commencement date: 2008 Public Health (Tobacco) Act 2002 (Commencement) Order 2008 Number: Contents note: 1/7/2009 as the commence- ment date for the following provisions, all save one of which were inserted or amend- ed by the (Amendment) Act 2004 (inserted by s5 of the 2004 act); (b) s35 (inserted by s6 of the 2004 act); (c) s36 (inserted by s7 of the 2004 act); (d) s37 (in- serted by s8 of the 2004 act); (e) s38(2), (4), (6), (7), (8), (9), (10) and (11) (inserted by s9 of the 2004 act); (f) s39 (as amended by s10 of the 2004 act); (g) s42 (inserted by s13 of the 2004 act); (h) s43 (inserted by s4 of the 2004 act) and (i) s44. These provisions relate to the prohi- bition on advertising and spon- sorship of tobacco products and of certain marketing practices and assertions in relation to tobacco products, the establish- ment of a register of retailers of tobacco products, and offences relating to the sale by retail of tobacco products. Pass- Appoints , other than Gives the Gives the In accordance , prescribe time SI 453/2008 SI 459/2008 SI 412/2008 SI 413/2008 Number: Contents note: force of law to the agreement Vietnam, between Ireland and avoidance 10/3/2008, for the the pre- of double taxation and with vention of fiscal evasion income. respect to taxes and out in the The agreement is set schedule to the order. Exchange of Information Matters and Relating to Tax Relief (Tax- Double Taxation es on Income) (Isle of Man) Order 2008 Number: Contents note: force of law to the tax infor- mation exchange agreement and the agreement for afford- ing relief from double taxation with respect to certain income of individuals and establishing a mutual agreement procedure in connection with the adjustment of profits of associated enter- prises between Ireland and the Isle of Man, 10/3/2008. The agreements are set out in the schedule to the order. Passports2008 (Com- Act mencement) Order 2008 Number: Contents note: 1/11/2008 as the commence- ment date for all sections of the Passports Act 2008 s14(8) and (9), which deal with consent in writing by a guard- ian of a child to the issue of a passport to the child. Passports (Appeals) Regulations 2008 Number: Contents note: with section 19(15) of the ports Act 2008 limits for the making and de- termination of appeals against decisions by the Minister for Criminal provides Appoints . These sec- Section 6(1) Gives the force SI 416/2008 SI 425/2008 SI 401/2008 SI 463/2008 Credit Institutions (Finan- Credit Institutions) Order 2008 Number: Credit (Financial Institutions Support) (Specification of In- stitutions) (No 2) Order 2008 Number: Contents note: of the cial Support) Act 2008 that the Minister for Finance may provide financial support in respect of covered liabilities of any credit institution or sub- sidiary that the minister may The institu- specify by order. tions named in these two orders are specified for the purposes of section 6(1) of the act. Criminal Evidence Act 1991 (Section 16(1)(b)) (Com- mencement) Order 2008 Number: Contents note: 15/10/2008 as the commence- ment date for section 16(1) (b) and section 19, insofar as it relates to the reference in it to section 16(1)(b), of the Evidence Act 1992 tions relate to the admissibility of video-recorded statements by a person under 14 years of age as evidence at a trial. Relief Double Taxation Income) (Republic on (Taxes of Macedonia) Order 2008 Number: Contents note: of law to the agreement be- tween Ireland and the Republic of Macedonia, 14/4/2008, for the avoidance of double taxa- tion and the prevention of fis- cal evasion with respect to taxes and income. The agreement is set out in the schedule to the order. Relief (Taxes Double Taxation on Income) (Socialist Repub- lic of Vietnam) Order 2008 21 October – 17 November 2008 – 17 November 21 October DECEMBER 2008 DECEMBER Mental legislation update legislation 30/10/ , sets out The scheme, Confirms that were not inval- 30/10/2008 19/2008 SI 411/2008 Credit Institutions (Finan- Credit www.lawsociety.ie Details of all bills, acts and Details of all bills, since statutory instruments cata- 1997 are on the library logue – www.lawsociety.ie ar- (members’ and students’ informa- eas) – with updated stage a tion on the current the com- bill has reached and of each mencement date(s) act. ACT PASSED Mental Health Act 2008 Number: Contents note: certain unexpired and expired renewal orders for involuntary detention under the Health Act 2001 id by reason of the wording and layout of the Mental Health prescribed forms Commission’s signed by a consultant psychia- trist. Provides that replacement renewal orders, in respect of the unexpired renewal orders referred to above, will issue within five working days of the passing of this act, and provides for related matters. Date enacted: 2008 SELECTED STATUTORY INSTRUMENTS Credit Institutions (Financial Support) 2008 Scheme Number: Commencement date: Contents note: made pursuant to section 6(4) of the cial Support) Act 2008 an enabling framework for the Minister for Finance to guaran- tee, for the period 30/9/2008 to 29/9/2010, the covered liabili- ties of a covered credit institu- tion or subsidiary that the min- ister may specify by order. Credit Institutions (Financial Support) of (Specification LAW SOCIETY GAZETTE GAZETTE SOCIETY LAW
BRIEFING 66 BRIEFING 67 Taxes Taxes 9/10/ (inserted Finance Act Finance Act Lists, in ac- Lists, in Prepared by the Prepared SI 399/2008 Law Society Library www.lawsociety.ie DECEMBER 2008 DECEMBER ), those energy-efficient ), those energy-efficient G Number: note: Contents the provisions cordance with 285A of the of section 2008 Consolidation Act 1997 Consolidation 46 of the by section 2008 cost will products whose capital capi- be eligible for accelerated the tal allowances and specifies used energy-efficiency criteria for in- to determine eligibility lists. clusion on those product Commencement date: . SSOCIATION Vari- Tel: 842 6444. Contact: Amanda A ARDS 100. € LAW SOCIETY GAZETTE GAZETTE SOCIETY LAW 107 per pack) : € ( (SI 504/2006). The (SI 504/2006). CARD
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tions 2006 include the sub- amendments a new regulation 97 stitution of guarding, lighting relating to in connection with and signage works on roads, construction footpaths and cycle tracks. Commencement date: for the ous – see SI 6/7/2009 97 (as substituted regulation by SI per amendment made 130/2008 to SI 504/2006) Consolidation Act Taxes 1997 (Accelerated Capital Allowances for Energy Efficient Equipment) Order 2008 ENEVOLENT FORM Card B MESSENGER OF PEACE
INSIDE
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Amend the SAMPLE OF OVERPRINTED TEXT WILL BE FAXED FOR CONFIRMATION BEFORE PRINTING. packet of 50 cards. 100, pack(s) of card B @ € SEND ORDER FORM AND CHEQUE TO: REETING each 100 (including overprinting of your firm’s name). Minimum order 50 cards. G SI 423/2008 € OLICITORS S the prohibition on advertising the prohibition of tobacco and sponsorship of certain market- products and and assertions in ing practices tobacco products, relation to of a register the establishment products, of retailers of tobacco the sale and offences relating to by retail of tobacco products. Health and Welfare Safety, (Construction) at Work (Amendment) (No 2) Regulations 2008 Number: Contents note: at Health and Welfare Safety, (Construction) Regula- Work Card A ADORATION OF THE MAGI Peter Paul Rubens
: THE
payable to Santry Printing Ltd € HRISTMAS OF Association, whose needs are particularly acute at Christmas time Association, whose needs are particularly
With Best Wishes for Christmas and the New Year This is an opportunity to support the work of the Solicitors’ Benevolent This is an opportunity to support Appoints Appoints relating to Public Health Public Health AID
C SBA Christmas Cards, Santry Printing Ltd, Unit 5, Lilmar Industrial Estate, Coolock Lane, Dublin 9. 7.00 for postage and packaging for N € I SI 405/2008 Public Health (Tobacco) Act Public Health (Tobacco) I enclose cheque for Each card sold in packets of 50 costing DX: Tel: Fax: Add Text to be overprinted: Firm: Contact: Address: I wish to order pack(s) of card A @ ), 10, 13 and 14. These sec- ), 10, 13 and 14. These tions amend or substitute new tions amend or substitute sections in the Act 2002 (Tobacco) Public Health (Tobacco) (Tobacco) Public Health Act 2004 (Amendment) Order(Commencement) 2008 Number: note: Contents 2002 1/7/2009 as the commence- following ment date for the sections of the (Amendment) Act 2004 (Tobacco) as it re- ss5, 6, 7, 8, 9 (insofar (4), (6), lates to subsections (2), of s38 (7), (8), (9), (10) and (11) of the
, Solicitors’ Ac- 2,000 to the € G
for the protection of for the protection of Solicitors’ Accounts Regu- Through his conduct, showed Through his conduct, showed 21(1) of the counts Regulations 2001 disregard for his statutory ob- disregard for his statutory the ligations to comply with Solicitors’ Accounts Regulations for the and showed disregard statutory obligation Society’s with to monitor compliance the lations clients and the public. Do stand censured, Pay a sum of the Law Society of Ireland, as taxed by a taxing master of the High Court in default of agreement. compensation fund, Pay the whole of the costs of
b) a) b) c) The tribunal ordered that the respondent solicitor: Solicitors (Amendment) Act 2002) of the (Amendment) Act Solicitors Solicitors Acts 1954-2002 Failed to ensure there was furnished to the Society an report for the accountant’s year ended 31 March 2007 within six months of that date, in breach of regulation [5132/DT47/08] Law Society of Ireland (applicant) Niall Sheerin solicitor) (respondent On 23 September 2008, the Solicitors Disciplinary Tribunal found the respondent solici- tor guilty of misconduct in his practice as a solicitor in that he: In the matter of Niall Sheerin, In the matter of Niall as Niall a solicitor practising Solici- Sheerin & Company, Street, tors, at 17 North King matter of Dublin 7, and in the the a) 5,000 to the € in particular to the letters in particular to the so- sent to the respondent on 23 licitor by the Society 2004, March 2004, 28 April 2006, 17 May 2004, 16 June 2006, 4 July 2006, 13 July 26 July 2006, 28 September 2006, 2006 and 19 October client’s Failed to register her Pay the sum of the Law Society of Ireland, as taxed by a taxing master of the High Court in default of agreement. title to property at a named title to property at a location in Co Mayo in a timely manner or at all. Do stand censured, compensation fund, Pay the whole of the costs of a) b) c) c) The tribunal ordered that the respondent solicitor: So- DECEMBER 2008 DECEMBER [7083/ Failed to respond adequately or at all to correspondence from the complainant, Failed to respond to the So- correspondence, and ciety’s Solicitors DisciplinarySolicitors Tribunal Reports Disciplinary of Solicitors of the outcomes inquiries are of Ireland by the Law Society published Tribunal as provided 17 of the amended by section in section 23 (as for 1994 (Amendment) Act Solicitors www.lawsociety.ie a) b) In the matter of Jacqueline In the matter of Jacqueline prac- M Durcan, a solicitor tising as Durcans Solicitors Spencer at 1 Hazel Grove, Co Mayo, Park, Castlebar, the and in the matter of DT23/07] Law Society of Ireland (applicant) Jacqueline M Durcan solicitor) (respondent On 16 September 2008, the Solicitors Disciplinary Tribunal found the respondent solicitor guilty of misconduct in her prac- tice as a solicitor in that she: licitors Acts 1954-2002 LAW SOCIETY GAZETTE GAZETTE SOCIETY LAW
BRIEFING 68 BRIEFING 69 www.lawsociety.ie DECEMBER 2008 DECEMBER update The Supreme Court held
Practice and procedure – refusal Appeal from High Court to failure to dismiss proceedings for of action cause disclose a reasonable plan- of leave to review – refusal ning decision. to The defendant appealed against the Supreme Court an order of the High Court refusing an application to dis- miss proceedings related to a planning law dispute. It was alleged that the defendant had engaged in fraud and that the decision of the High Court was procured by fraud and whether the proceedings merited dis- missals. that the action was doomed to failure and disclosed no cause of action and was frivolous and vexatious. The appeal would be allowed and the action dis- missed. The facts allegedly concealed from the trial judge with fraudulent intent would not have been material. Kenny (plaintiff/respondent) v The Provost, Fellows and High , [FL15127] LAW SOCIETY GAZETTE GAZETTE SOCIETY LAW firstlaw McMenamin J granted an Compiled by Bart Daly for FirstLaw the grant of planning permis- the grant of planning sion. The applicant contended to that the condition sought benefit deny the applicant the of devel- of an exempted class fur- opment. The applicant An Bord ther contended that provide Pleanála had failed to reasons for the condition. order of judicial review and re- mitted the matter to An Bord Pleanála, holding that, having regard to the unusual eviden- tial features, the reason given for the condition was insuffi- cient to comply with the statu- tory duty of An Bord Pleanála. There was an obligation to state reasons for the condition and in a man- cogently, clearly, ner as to eliminate a reasonably held doubt as to whether there a mis- had been an error in law, understanding or other unlaw- ful basis for the condition. v An Bord (applicant) Weston Pleanála (respondent) Court, Mr Justice MacMe- namin, 14/3/2008
– failure to – failure Supreme , [FL15128] News from Ireland’s online legal awareness service ultra vires PLANNING AND ENIRONMENTAL LAW an employment agreement ter- an employment agreement notice. minable on reasonable v Sheehy (appellant/plaintiff) and Moriarty (respon- Ryan dents/defendants) Court, 9/4/2008 provide reasons – proportionality – provide reasons Planning and Development Act 2000 – Planning and Develop- ment Regulations 2001 – Eu- ropean Convention on Human Rights Act 2003. The applicant was a registered company with unlimited liabil- It sought to challenge an ity. imposition by An Bord Pleaná- la of a condition imposed on a decision to grant planning per- mission. It alleged that the con- dition that had been imposed was unlawful and sought orders removing such condition from Planning permission – whether condition Judicial review imposed was unlawful – whether condition The Supreme Court dis- EMPLOYMENT LAW missed the appeal, holding that the High Court judge was cor- rect in her view that the appel- lant was employed pursuant to Redundancy Permanent – and pensionable – whether the appellant’s tenure employment was terminable on notice. reasonable employ- The appellant, whose secretary ment as diocesan with the respondent was termi- nated by reason of redundancy, claimed that Ms Justice Carroll of the High Court misdirected herself in law in arriving at the conclusion that the appellant’s contract of employment was terminable on reasonable no- that the ap- tice and, further, pellant had been given reason- able notice by the respondent. The appellant argued that her employment was permanent and pensionable and essentially could not be terminated until she reached retirement age. G
High Court, rstlaw.ie. , [FL15056] MacMenamin J held that the MacMenamin and raised contractual condi- and raised agreement.tions of the in extensive plaintiff engaged the arbitration efforts to avoid Her delay led to taking place. to their the defendants acting of her detriment. On the basis lost the conduct, the plaintiff degree right to rescind. A high on the of imprudence existed bids part her agents to induce to be at the auction, sufficient relief a bar for rescission. The The sought would be refused. by sale had not been rescinded with the plaintiff in accordance the contract. Kiely (plaintiff) v Delaney (defendant) Mr Justice MacMenamin, 14/3/2008 This information is taken from awareness legal current FirstLaw’s service, published every day on the internet at www.fi PROPERTY LAW PROPERTY Equity – right of way – ar- Sale of land auction – general bitration – – estoppel – rescission condition – entitled whether plaintiff vendor of the agreement. to rescission sell landThe plaintiff agreed to An issueto the defendants. The way. arose as to a right of land ben- folio stated that the The way. efited from a right of accessright of way provided defendantto a main road. The on the ba- signed the agreement the rightsis of the existence of evidence Subsequently, of way. suggested that the right of way did not exist and the defendant sought compensation. Arbitra- tion between the parties was entered to resolve the matter, but the attitude of the plaintiff to arbitration was impugned as uncooperative. The plaintiff sought to rescind the agreement 10,000 for loss 10,000 for € Law Society of Ireland, Blackhall Place CONTACT OUR CATERING MANAGER [FL15070] Supreme Court, , The Supreme Court held The Supreme Court condition subsequently dete- condition the appellant made riorated and claim, again alleg- a subsequent In 2004, he ing loss of earnings. was awarded of consortium, but the second of consortium, but the was dis- loss of earnings claim his inabil- missed on account of claim ity to succeed on a second The issue for loss of earnings. of arose as to the interpretation The the jurisdiction for awards. the award applicant alleged that made was provisional. provide that the act did not of the for provisional awards type claimed by the appellant. There was no such jurisdic- tion for a court to exercise. The High Court was correct in find- ing that a bar to a future claim then existed. F(J) (appellant) v Minister (re- for Health and Children spondent) 10/4/2008 DECEMBER 2008 DECEMBER Prestigious premises designed by Thomas Ivory • Available to soliciors’ families and friends to soliciors’ Available Thomas Ivory • Prestigious premises designed by Full catering and bar services for up to 200 people • Private grounds with extensive car parking Tel: 01 672 4800, fax: 01 672 4801, e-mail: [email protected], website: www.lawsociety.ie Supreme Attractive location for photographs, both inside and outside • Centrally located and easily accessible , in elegant Blackhall Place in elegant Blackhall [FL15068] 5,000 for loss of € Wedding ceremony and reception Wedding ceremony Hepatitis C Compensa- PRACTICE AND PROCEDURE www.lawsociety.ie Appeal – award Hepatitis C Tribunal of earningshusband and wife – loss of wife – deterioration in condition second loss – loss of consortium – – first of earnings claim rejected for loss claim as bar to second claim of earnings – statutory interpreta- tion – Act 1997. tion Tribunal The appellant sought to appeal a question of law to the High Court and then to the Supreme Court as to a claim made before the Hepatitis C Compensation In 1997, the appellant Tribunal. was awarded earnings incurred on account of the illness of his wife. Her Scholars of the University of Scholars of College (de- Dublin, Trinity fendants/appellants) Court, 10/4/2008 LAW SOCIETY GAZETTE GAZETTE SOCIETY LAW
BRIEFING 70 BRIEFING 71 G
www.lawsociety.ie DECEMBER 2008 DECEMBER legal to investigate whether the mini- to investigate whether by themum conditions imposed a drivingdirective for obtaining Inlicence have been satisfied. consequence, the possession of a driving licence issued by one member state has, as a rule, to be regarded as constituting proof that its holder fulfilled those conditions when that li- cence was issued. However, when a a member state may, person has been the object of a measure within its territory withdrawing his driving licence and prohibiting any application for a new licence for a given pe- riod, refuse to recognise a new licence issued by another mem- ber state during that period of prohibition. It may not refuse to recognise a new licence issued by another member state fol- lowing the expiry of any period in which the person concerned is forbidden to apply for a new licence, on the ground that the licence holder has not satisfied the necessary conditions in that first state for the issue of a new licence following the withdrawal of a previous licence. For reasons member of road traffic safety, states may apply their national provisions on the restriction, suspension, withdrawal or can- cellation of driving licences to any licence-holder having nor- mal residence in their territory. This right may only be exer- cised by reason of some conduct of the person concerned after he has obtained a driving licence issued by another member state. The sole residence condition for it is in- ensures road safety, dispensable if observance of the condition of fitness to drive is to be monitored. eur LAW SOCIETY GAZETTE GAZETTE SOCIETY LAW when the licence is issued, thewhen the licence is issued, normalholder must have his of theresidence in the territory Thestate issuing the licence. holder must pass a test of skills and behaviour and a theory test and must meet certain medical standards. Several German na- tionals had their driving licenc- es withdrawn in Germany for driving under the influence of alcohol or narcotic drugs. They went to the Czech Republic in 2004 and 2005 to obtain Czech driving licences. Some of them were resident in Germany when they obtained these licences. In anyone whose licence Germany, has been withdrawn for driving under the influence of alcohol or drugs must provide the com- petent authorities with a medi- cal-psychological report estab- lishing that the grounds that had justified the withdrawal are no longer valid. The German authorities refused to recogn- ise the validity of these Czech driving licences in Germany, as such reports had not been presented. These were adminis- trative decisions that were then challenged before the German courts. Those courts referred questions to the ECJ about the extent of member states’ right to refuse to recognise in their territory driving licences issued by other member states. The ECJ held that, as a general rule, every member state must recog- nise, without any prior formal- driving licences issued by ity, another member state, even if the latter does not impose the same requirements regarding the medical examination that makes it possible to obtain a li- cence. It is for the issuing state Peter Funk v Stadt Steffen Schubert v , Matthias Zerche and News from and International Affairs the EU Committee , and , 26 June 2008. Directive FREE MOVEMENT OF PERSONS The national court must thenThe national court must facts al- ascertain whether the and assessleged are established evidencethe sufficiency of the the em- put forward to support claims that it has not ployer’s infringed the principle of equal treatment. Public statements by which an employer lets it be known that, under its recruit- it will not recruit ment policy, any employees of a certain eth- nic or racial origin are sufficient for the purpose of the directive to give rise to a presumption of the existence of a recruitment policy that is directly discrimina- The court finally looked at tory. sanctions. The directive requires that the member states provide effective, proportionate and dis- suasive sanctions, even where there is no identifiable victim. They may consist, in particular, in a finding of discrimination by the national court in conjunc- tion with an adequate level of in an order that the publicity, employer cease the discrimina- tory practice, or in an award of damages to the body bringing the proceedings. Joined cases C-329/06, C-343/ 06 and C-334/06 to C-336/06, v Land Baden- Arthur Widemann Württemberg Chemnitz Mit- Seuke v Landkreis Manfred tweida Erzgebirg- Mittlerer Landkreis skreis 91/439 provides that driving li- cences issued by a member state are to be given mutual recogni- tion. According to the directive, Edited by TP Kennedy, DirectorLaw Society of Ireland of Education, Edited by TP Kennedy, Centrum voor
, 10 July 2008. Feryn is a EMPLOYMENT
Case C-54/0-7, Recent developments in European developments Recent law en voorgelijkheid van kansen racismebestrijding v Firma Feryn NV company that specialises in the installation of garage doors. The applicant brought an ac- tion before the Belgian labour courts seeking a declaration that Feryn had applied a dis- criminatory recruitment policy. A director of that company had made a public statement that his company was seeking to employ garage door installers but could not take on immigrants owing to the reluctance of its custom- ers to give such persons access to their homes during the instal- lation work. The ECJ was asked whether such statements, made by an employer in the context of a recruitment process, con- stitute discrimination if there is no identifiable complainant who considers himself to be the victim of it. The court looked to directive 2000/43 on imple- menting the principle of equal treatment between persons, ir- respective of racial or ethnic ori- gin. It held that the absence of an identifiable complainant does not permit the conclusion that there is no direct discrimination within the meaning of the direc- tive. Such statements are likely to strongly dissuade some appli- cants from applying for the post. Thus, the statements constitute direct discrimination in respect of recruitment within the mean- ing of the directive. The court held that, in a situation such as this, it is for the employer to prove that it has not infringed the principle of equal treatment. Co Co Kil- Co Kerry Co Laois Co Limerick Co Kerry Co Kerry Co Kilkenny Co Kilkenny Co Kerry owner: Sean MacCarthaigh, Co Limerick owner: Deirdre Forde of 21 owner: Mayor, Aldermen and owner: Mayor, owner: Michael J Flynn; folio: owner: Thomas Noel Malone; Co Limerick
folio: LK381L; lands: townland of in the barony of John’s St Mary’s C; ena Birdthistle; folio: LK24539F; lands: in the townland of Wood- park in the barony of Clanwilliam; Co Limerick LK16049F; lands: townland of St in the barony of Limer- Patrick’s ick; LK3069F; lands: townland of Sug- arhill in the barony of Glenquin; Co Limerick phonsus Hickey; folio: LK8471, LK11055; lands: townland of Inch St Laurence North in the barony of Clanwilliam; Burgesses of the Borough of Kil- kenny; folio: 12313; lands: Archer- street Lot in the barony of Shillel- ogher; 12156F; lands: Grange Lower in the barony of Gowran; kenny 2314F; lands: Luffany in the bar- ony of Ida; Mary Nolan (deceased); folio: 4206F; lands: Rathmoyle in the barony of Cullenagh; KY51957F; lands: townland of KY51957F; lands: townland Magu- Shinnagh in the barony of nihy; KY24438F; Ltd; folio: KY24680F, Em- lands: townland of Reenroe, in Emlaghnamuck laghmore West, the barony of Iveragh; folio: KY20222F; lands: townland of of Doonmanagh in the barony Corkaguiny; Miceal O’Ruairc and John J Walsh, Miceal O’Ruairc and John J Walsh, folio: GAA Club; of St Mary’s KY22522; lands: in the townland of Caherciveen and in the barony of Iveragh; Walshestown Abbey, Newbridge, Newbridge, Abbey, Walshestown Co Kildare; folio: 43220F; lands: (Con- townland of Walshestown nell By) and barony of Connell; Co Kildare tracey, Donadea, Co Kildare; fo- tracey, lio: KE574Fl; lands: in the town- land of Baltracey (Ikeathy and Oughterany By) in the barony of Ikeathy and Oughterany in the electoral division of Balraheen; Kildare Regd owner: John and Philom- Regd owner: Ross Flanagan; folio: Regd owner: Richard O’Shaughnessy; Regd Regd owner: James Gerard Al- Regd owner: Lance O’Brien; folio: Regd owner: Seamus Freyne; folio: Regd owner: Anthony Nolan and Regd Regd owner: Executive Golf World World Regd owner: Executive Golf Galvin; Regd owner: John P and Mary Regd Regd Regd owner: John Moriarty of Bal- Regd Co Co Co Co Co Co Gal- Co Co Dublin Co Galway Co Dublin Co Galway Co Dublin owner: James J Collins (de- owner: Joseph Monks; folio: owner: Brian Doherty; folio: owner: Michael J Murphy; fo- owner: Michael owner: William Joseph Power; owner: William Co Galway
ceased); folio: 16276 and 1650F; lands: townland of Aille in the barony of Galway; 34531; lands: townland of Crega- clare and Lackan (Dunkellin By) in the barony of Dunkellin; Galway folio: 16125F; lands: townland of folio: 9260; lands: townland of Ballyscully in the barony of Lei- trim; area: 12.9499 hectares; Galway 20540; land: townland of Mullagh- in more East, Mullaghmore West the barony of Tiaquin; way 26372; lands: Drumcrow; Donegal 5589; lands: certain lands at Kil- rush, Rush, Co Dublin, being part of the townland of Rush and the barony of Balrothery East; Dublin Sean Kennelly; folio: DN95547F; lands: property situate in the town- land of Cooldrinagh and barony of Newcastle; Kilnamanagh and barony of Up- and Kilnamanagh percross; lands: property lio: DN96410F; townland of College- situate in the barony of Newcastle; land and the Co Dublin situate DN8762; lands: property and in the townland of Killalane barony of Balrothery East; Dublin lands: a ham; folio: DN12609F; north plot of ground situate in the Lane in the parish side of Skelly’s of Artane and district; lands: ion Ltd; folio: DN4113L; east side property situate on the of Swords Road in the townland of Santry and barony of Coolock; Co Dublin owner: Ann Hussey; folio: owner: John Enright; folio: Regd owner: Mary Roche; folio: Regd owner: Galway City Council; Regd owner: Jarlath Dempsey; folio: Regd Regd Regd owner: Eimear Hennessy and Regd Regd Anna Halpin; folio: Regd owner: Gra- Regd owner: Myra Margaret Un- Regd owner: Larkhill Credit Regd
62843F; lands: townland of Cul- leen in the barony of Clare; areas: 0.2300 hectares; Mairead Loughrey; folio: 32100F; lands: townland of Donaghpatrick in the barony of Clare; area: 2.671 hectares; Ballybaan Beg in the barony of Galway; area: 0.4734 hectares; Galway Regd owner: Cyril Loughrey and Regd Regd Co Co Co Cork Co Dublin Co Cork Co Cork Co Cork Co Dublin Co Dublin Co Cork Co Cork Co Cork Co Dublin Co Dublin owner: Patrick Allen; folio: owner: Terence and Noreen and Noreen owner: Terence
folio: 27297; lands: plot of ground folio: 27297; lands: plot of Foildar- situate in the townland of rig and barony of Bear; folio: DN7327, DN7330; lands: property situate in the townland of Ballybrack and barony of Rath- down; Maples-Nitoi; folio: 121153F; New lands: 19 Millcourt Avenue, Nangor Road, situate in the town and parish of Clondalkin; Dublin DN2461; lands: property situate in the townland of Damastown and barony of Balrothery; 26163; lands: plot of ground situ- ate in the townland of Curra (ED Kinure) and the barony of Kinalea in the county of Cork; ate in the townland of Maughana- townland ate in the barony of Bantry in clea and the Cork; the county of folio: 3143L; lands: Marie Kehoe; situate in the town- plot of ground and bar- West land of Carraigaline in the county ony of Kerrycurrihy of Cork; (deceased); folio: 28235F; lands: (deceased); folio: 28235F; Clifton plot of ground known as 6 Anne’s- Road, in the parish of St B) in Shandon (ED Montenotte the county of Cork; folio: 43927; lands: plot of folio: 43927; lands: of ground situate in the townland Coolflugh and barony of Muskerry in the county of Cork; 100587F; lands: plot of ground situate in the townland of Lacken- darragh and barony of Dunhallow in the county of Cork; 13067; lands: 19 Dodsboro Cot- tages, Lucan, Dublin; and Lucy Irene Hilliard; folio: DN7724L; lands: property situ- ate on the west side of Ballymun Drive, in the parish of Glasnevin and district of Glasnevin; Dublin DN16941F; lands: property situ- ate in the townland of Bluebell and barony of Uppercross; Byrne; folio: DN20014F; lands: property situate in the townland of Oldbawn and barony of Upper- cross; folio: DN46085L; lands: Walsh; property situate in the townland of Regd owner: Aidan Kehoe and Anne- Regd owner: Regd owner: Jeremiah O’Riordan Regd owner: Jeremiah Regd owner: Donnacha O’Liathain; Regd owner: Donnacha Regd owner: Adrienne McCarthy; Regd owner: Adrienne Regd owner: Laurence Lenehan; Regd owner: George Nitoi and Carol Regd owner: Maura O’Connor; folio: Regd owner: John Linehan; folio: Regd owner: Margaret Bevan; folio: Regd Regd owner: Patrick Hilliard Regd owner: Noel Connolly; folio: Regd and Anne Regd owner: James Walsh DECEMBER 2008 DECEMBER Co Co
LOST LAND CERTIFICATES www.lawsociety.iewww.lawsociety.ie LAW SOCIETY GAZETTE GAZETTE SOCIETY LAW Co Clare
Co Cork Co Clare Co Clare
Swellan, Cavan, Co Cavan; folio: 1872; lands: Habsborough; Cavan 29143; lands: in the townland of Kilkerin in the barony of Clonder- law; 2444F; lands: in the townland of in the barony Ballaghafadda West of Islands; area: 0.2478 hectares; Co Clare 20527F; lands: in the townland of Doolough in the barony of Ibrickan; area: 19.997 hectares; Co Clare 6372; lands: in the townland of Derrynacarragh in the barony of Islands; O’Gorman; folio: 27249; lands: in Ross, Car- the townland of Fodry, rowmore South, Kilnaha North, in the barony of Moyarta, Ibrick- an; Eileen Buckley; folio: 51658; lands: plot of ground situate in known the parish of Rathcooney, Park, Lotabeg, as 5 Saint Joseph’s Mayfield, and in the county of Cork; lio: 43555F; lands: plot of ground situate in the townland of Chet- wynd and barony of Cork; Cork O’Mahony (deceased); folio: 57543; lands: plot of ground situ- 72 72 Regd owner: Thomas Duignan, (published 5 December 2008) Regd owner: James V Malone; folio: folio: Regd owner: Edmond Walsh; Regd owner: Gerard Moloney; folio: Regd owner: Mary Leahy; folio: Regd owner: Patrick and Margaret Regd owner: Donal Buckley and cery Dublin 7 Street, Property Registration Authority, Chan- Property Registration Authority, being held. grounds on which the certificate is such notification should state the other than the registered owner. Any other than the registered owner. and in the custody of some person the original certificate is in existence date of publication of this notice that the registry within 28 days from the with unless notification is received in The land certificate will be dispensed been lost or inadvertently destroyed. inal land certificate is stated to have specified in the schedule, which orig- specified in the schedule, tificate issued in respect of the lands tificate issued in respect of order dispensing with the land cer- order dispensing with the tioned in the schedule hereto for an tioned in the schedule hereto from the registered owners men- from the registered owners An application has been received An application has been 1964 and 2006 Registration of Deeds and Title Acts Title Registration of Deeds and Regd owner: Mervyn Sweetnam; fo- BRIEFINGPROFESSIONAL NOTICES Regd owner: John (orse) Sean BRIEFINGPROFESSIONAL NOTICES 73 73 : – available small to me- . Genuine en- Gazette in confidence Dublin law firm with www.lawsociety.iewww.lawsociety.ie 33 EXTRA DECEMBER 2008 DECEMBER All enquiries to Sreenan € box no 90/13 CHEQUES SHOULD
box 90/12 office on tel: 01 672 MISCELLANEOUS
Outsourcing: experienced staff and extensive prece- dents available for legal work on con- tract basis. Direction from principals in relation to client contact respected and assured. Files can be actioned on a project or retainer basis. Suitable to firms reducing overheads or pres- surised by expanding caseloads. Con- tact for purchase: Wanted dium-size solicitors’ practice in the North East area. If interested, please contact & Company Solicitors, Kenmare; tel: 064 664 2656, fax: 064 664 2658 quiries only, which will be treated in quiries only, the strictest of confidence space Furnished office Ul- floor, Top to let mid-November. ysses House, Foley Street, Dublin 1. The space consists of three individual offices, a meeting room and open space. Excluding the common ar- eas, the net space is approx 700 sq ft. Close to all public transport: beside Bus Áras and IFSC. Adja- Connolly, cent to LUAS – five minutes to Four suitable for small pro- Courts. Very and are flexible fessional firm. Terms service charge is incorporated in the rent. Please contact: James Staines at or 087 273 5934 for fur- [email protected] ther details – intoxicating liq- Full off-licence uor licence (spirits, beer and wine) – for sale. late late late late Gazette Deadline for Jan/Feb 144.50 (incl VAT at 21.5%) 144.50 (incl VAT at € LAW SOCIETY GAZETTE GAZETTE SOCIETY LAW – 144.50 (incl VAT at 21.5%) 144.50 (incl VAT at € – Co Co WILLS 144.50 per deed (incl VAT at 21.5%) 144.50 per deed Lalor, Margaret (deceased), Lalor, of Boherard, Clough, Ballacolla in the county of Laois. Would any person having knowledge of a will executed by the above-named deceased, who died on 6 March 2007, please contact James E Solicitors, Cahill & Company, Market Square, Abbeyleix, Co Laois; tel: 057 873 246 or 057 873 1220, email: donalwdunne@ securemail.ie Moran, Winifred (deceased), would any person having knowl- edge of the whereabouts of a will made by the above-named Winifred Moran, dated 5 November 1990, of Rathcabbin, Roscrea, St Kieran’s, and formerly of Co Tipperary, Redwood, Lorrha, Nenagh, in the please contact county of Tipperary, James J Kearns & Sons, Solicitors, Portumna, Co Galway; tel: 090 974 1003/41212, fax: 090 974 1298 Quinn, Margaret (deceased), of 33 Island Road, Upstreet, Kent, Co and Annagh, Tourlestrane, Sligo, who died on 15 March 1971 Hospital, Sligo, having at St John’s made a will on 20 May 1969 at Kent any person hav- in England. Would ing knowledge of a will made by the above-named deceased please contact Henry Kearins & Co, So- licitors, 14 Lord Edward Street, Sligo; tel: 071 914 5348, fax: 071 914 6622, email: valeriekearins@ eircom.net € Co – 144.50 (incl VAT at 21.5%) 144.50 (incl VAT at € – Co Wexford Employment/miscellaneous Lost land certificates Wills Title deeds Co Wexford
• • • • These rates will apply from January 2009 until further notice from January 2009 until further These rates will apply owner: Quest Contracting Co Wicklow owner: William Tanner and Tanner owner: William owner: Joan O’Connell, of 6 owner: John Doyle (otherwise owner: Patrick Swan (deceased) LAW SOCIETY
HIGHLIGHT YOUR NOTICE BY PUTTING A BOX AROUND IT – HIGHLIGHT YOUR NOTICE BY PUTTING and Pauline Swan; folio: 23842F; lands: Ramstown in the barony of Shelburne; folio: 848; lands: Dawn Tanner; Hilltown in the barony of Forth; Co Wexford John Joseph Doyle); folio: 3398F; lands: Shelbaggan, barony of Shel- bourne; Kilronan Court, Saint Lawrence Road, Clontarf, Dublin 3; folio: 5785F; lands: townland of Black- ditch, known as 10 Seacourt, Blackditch, Newcastle, in the bar- ony of Newcastle, in the electoral division of Newcastle Lower; Wicklow Waterford Limited; folio: 25936F; lands: plot of ground situate in the townland of Ballygarran and barony of Gaul- tiere in the county of Waterford; Co Waterford 820F; lands: plot of ground situate in the townland of Clashanahy and barony of Decies-Within-Drum in the county of Waterford; RATES IN THE PROFESSIONAL NOTICE SECTION ARE AS FOLLOWS: NOTICE SECTION ARE RATES IN THE PROFESSIONAL owner: Terence Aiden Hayes; Aiden Hayes; owner: Terence Regd Regd Regd Regd Regd owner: Barry F Finnegan; folio: Regd
21 January 2008. For further information, contact the 21 January 2008. For further information, 4828 (fax: 01 672 4877) BE MADE PAYABLE TO LAW SOCIETY OF IRELAND. BE MADE PAYABLE TO LAW SOCIETY ALL NOTICES MUST BE PAID FOR PRIOR TO PUBLICATION. ALL NOTICES MUST BE PAID FOR PRIOR PROFESSIONAL NOTICE RATES NOTICE PROFESSIONAL Gazette Gazette lands: townland of Eadestown South and Eadestown Hill and the Upper; Barony of Talbotstown Wicklow folio: 12099; lands: situate in the townland of Kilcavan Lower, barony of Shillelagh and county of Wicklow; Regd owner: Peter Kelly; folio: 7828; Regd Co Co Co Co Tip- Co Tipper- Co Roscom- Co Tipperary Co Tipperary Co Louth Co Limerick Co Longford Co Longford Co Mayo Co Roscommon Co Sligo Co Roscommon owner: John Clarke; folio owner: Frank Czerski (de- owner: Frank Czerski owner: Percy Hanly; folio: owner: Gerard Fallon; folio: owner: Martin T McLough- owner: Mathew Farrell; folio: owner: Michael Caplis Junior; owner: Aidan and Mary Walsh; owner: Aidan and Mary Walsh; owner: Paula Moran; 1 Old Fair
folio: LK48048F; lands: townland townland lands: folio: LK48048F; in the barony of of Baunacloka Pubblebrien; Balli- Soran Lower, Jacinta Byrne, folio: 185F; nalee, Co Longford; lands: Soran; Mayo lin; folio: 39385; lands: townland Burri- of Salvia in the barony of shoole; tricia Sharkey; 101 Cherrybrook, tricia Sharkey; 101 Cherrybrook, 4964F; Ardee, Co Louth; folio: lands: Stonylane; folio: ceased) and Bozena Czerski; of Gar- 13955F; lands: townland ryduff in the barony of Carra; 2004F; lands: Townsparks in the 2004F; lands: Townsparks barony of Philipstown Lower; Offaly 5518F; lands: townland of Ard- mullan, part of Carrick, Castlesa- mpson, in the barony of Athlone South; folio: 8385F lands: townland of folio: 8385F lands: townland West- Aghagower, Knockrooskey, port, in the barony of Burrishoole; Co Mayo Green, Dunboyne, Co Meath; fo- lio: 28266F; lands: Dunboyne; Meath 14223F; lands: townland of Doon in the barony of Roscommon; area: 8.025 hectares; mon 1762F; lands: Ashbrook, Knockna- Clogger- Bellmount, barnaboy, nagh; (deceased); folio: 136L; lands: townland of Calry in the barony of Sligo; TY10838F; lands: townland of in the barony of Burgagery West Iffa and Offa East; Ryan; folio: TY5218F; lands: Ryan; townland of Rathcloheen in the barony of Clanwilliam; perary lands: folio: 39919 Co Tipperary; townland of Cooleen and barony of Owney and Arra; ary ceased); folio: 5931; lands: plot of ground situate in the townland of Knockboy (ED Seskinan) and barony of Decies-Without-Drum; Co Waterford Regd owner: Sean Maguire and Regd owner: Regd Regd owner: Adrian Sharkey and Pa- Regd owner: Regd Regd Regd Regd Regd Regd Regd Regd owner: Charles Nicholson Regd owner: Helen O’Connor; folio: Regd owner: Patrick and Theresa Regd Regd owner: Annie Coffey (de-
and
and in the and in the
Landlord and Landlord Landlord and Landlord
Landlord and Ten- Landlord Landlord and Tenant and Tenant Landlord Take notice that Keavy Lalor in- notice that Keavy Take In default of any such notice being Take notice that Edward Heazle Take In default of any such notice being matter of the matter of the Rents) (No 2) Act 1978 ant (Ground of no 5 Airfield and in the matter Dublin 4, Court, Donnybrook, of an application and in the matter of Keavy Lalor (‘the applicant’) having notice that any person Take estate of any interest in the freehold 5 Airfield the following property: no 4. Court, Donnybrook, Dublin Tenant Acts 1967-1994 Acts Tenant to the tends to submit an application of the county registrar for the county of city of Dublin for the acquisition aforesaid the freehold interest of the assert- properties, and any party inter- ing that they hold a superior (or any est in the aforesaid premises to furnish of them) are called upon aforemen- evidence of the title to the tioned premises to the below named within 21 days from the date of this notice. received, Keavy Lalor intends to pro- ceed with the application before the county registrar at the end of 21 days from the date of this notice and will apply to the county registrar for the county of the city of Dublin for di- rections as may be appropriate on the basis that the persons beneficially en- titled to the superior interest includ- ing the freehold reversion in each of the aforesaid premises are unknown or unascertained. Date: 5 December 2008 Black (solicitors for the Signed: Richard applicant), Beechfield House, Clonee, Dublin 15 In the matter of the In the matter of the In the matter Tenant Acts 1967-1994 Tenant matter of the (Ground Rents) (No 2) Act 1978 in the matter of an application by Edward Heazle Any person having any interest in the freehold estate of the property known as number 30 Lower Grange in the city of Waterford. intends to submit an application to the county registrar for county of the for the acquisition city of Waterford of the freehold interest of the afore- said premises, and any party assert- ing that they hold a superior inter- est in the aforesaid premises (or any of them) are called upon to furnish evidence of the title to the aforemen- tioned premises to the below named within 21 days from the date of the publication of this notice. received, Edward Heazle intends to proceed with the application before the county registrar at the end of 21 days from the date of the publication
and in the
Landlord and Landlord Landlord and Ten- Landlord
Take notice that Pairc an Chro- Take In default of any such notice be- In the matter of the In the matter 1967-1994 Acts Tenant matter of the Rents) No 2 Act 1978 ant (Ground of the lands and and in the matter at Jones Road, premises situate known as 51 Dublin 3, formerly an Jones Road (Russell Terrace): Chrocaigh application by Pairc an Teoranta notice that any person having Take estate or an interest in the freehold property any superior interest in the Jones Road formerly known as no 51 held un- (formerly Russell Terrace), dated 16 der indenture of sublease Mau- May 1866 and made between part, Rob- rice Butterly of the first part and ert Erskine of the second of the third part for Thomas Wall 25 March the term of 300 years from as “all that 1866 and therein described and those that piece or plot of ground situate on the East side of the Street Road in the or Road called Jones’s Parish of Saint George and County of Dublin containing in front to the said Street or Road sixty feet or therea- bouts in breadth in the rere sixty feet or thereabouts in depth from front to rere on the North side one hundred and thirty seven feet or thereabouts and in depth from front to rere on the South side one hundred and thirty seven feet or thereabouts bounded on on the by Jones’ Road and the West North and South by land now in the possession of the said Maurice But- terly and on the East by other land called Loves Charity in the possession of the said Maurice Butterly”. intends to submit an caigh Teoranta application to the county registrar for the county of the city of Dublin for the acquisition of the fee simple inter- and any est in the aforesaid property, party asserting that they hold a supe- rior interest in the aforesaid property is called upon to furnish evidence of title to the aforementioned property to the below named within 21 days from the date of this notice. ing received, the applicant, Pairc an to pro- intends Chrocaigh Teoranta, ceed with the application before the county registrar at the end of the 21 days from the date of this notice and will apply to the county registrar for the county of the city of Dublin for directions as may be appropriate on the basis that the person or persons beneficially entitled to the superior interest including the freehold rever- sion in the aforesaid property are un- known or unascertained. Date: 5 December 2008 Signed: Reddy Charlton McKnight (so- licitors for the applicant), 12 Fitzwilliam Place, Dublin 2 Lease dated 12 June 1843, made Lease dated 12 June 1843, made Lease dated 12 June 1843, made Lease dated 12 June 1843, made All of said leases demised for a notice that the applicant, Take In default of any such notice being feet wide at the least from the north the north feet wide at the least from premises west angle of said demised called Belle to the opening or street Street”. Parsons Hoey of between William Kenny of the one part and William the other part, subject to the yearly rent of stg£1.3s.4d. of the one between Anthony Lyster Kenny of the other part and William part, subject to the yearly rent of one peppercorn, if demanded, for the first three years and thereafter £3.10s. between Lancelot Fisher of the first of the second part, Laurence Walker Kenny of the third part and William part, subject to the rent of stg£10. between Elfrida Lady Neville of the of the second first part, Higott Tench Kenny of the third part and William part, subject to the yearly rent of one peppercorn, if demanded, for the first three years and thereafter stg£1.3s. term of 500 years from 1 May 1843. Dublin City Council, intends to submit an application to the county registrar in the county of Dublin for the acquisition of the freehold inter- and any est in the aforesaid property, party asserting that they hold a supe- rior interest in the aforesaid property is called upon to furnish evidence of title to the aforesaid property to the below named within 21 days of this notice. received, the applicant, Dublin City Council, intends to proceed with the application before the county regis- trar at the end of 21 days from the date of this notice and will apply to the county registrar for the county/ city of Dublin for directions as may be appropriate on the basis that the persons or persons beneficially enti- tled to the superior interest includ- ing the freehold reversion in the aforesaid property are unknown and unascertained. Date: 5 December 2008 O’Keeffe, Dublin City Signed: Terence Quay, Council, Civic Offices, Wood Dublin 8 (law agent and solicitor for the applicant)
35 an an : € DECEMBER 2008 DECEMBER and in the and in the
OWNER RETIRING Landlord and and Landlord GALWAY CITY GALWAY for copies of tender documents. for copies of tender documents. All enquiries in writing only please. All enquiries in writing only Contact Martin J Landlord and Tenant and Tenant Landlord Please contact: KJ Rooney & Co Solicitors, KJ Rooney & Co Solicitors, Please contact:
Colonial Buildings, Eglinton Street, Galway, Colonial Buildings,
Solicitor’s practice for sale by tender practice for sale Solicitor’s
TITLE DEEDS www.lawsociety.iewww.lawsociety.ie in The Capel Building, Dublin 1 – in The Capel Building, Luas and convenient to Four Courts, in- city centre. Communal amenities lifts, meet- clude kitchen, bathrooms, car park- ing rooms, shower facilities, Price ing and impressive foyer. Call Pat on psf. Flexible lease terms. 087 243 0027 bookkeeping services, Westside specializing in solicitors’ accounts. Experienced bookkeeper available to maintain and update accounts – on site. Professional references available. Contact: Michelle Ridge @ Westside Bookkeeping; mobile: 087 293 0347, email: [email protected] Full seven-day intoxicating liquor licence for sale. Kearns & Co, Solicitors, 1 Devon Place, The Crescent, Galway; tel: 091 589 219, fax: 091 589 193, email: [email protected] (Ground Rents) (No 2) Act 1978 application by Dublin City Coun- cil in the matter of the properties at 51 and 52 Lower Sean McDer- mott Street in the city of Dublin notice that any person having Take an interest in the freehold estate in the properties now known as 51 and 52 Lower Sean Mc Dermott St, in the city of Dublin, and described in the four indentures of lease (details of which are set out below) as “all that and those that plot or parcel of ground situate on the west side of Buckingham Street next adjoining to and on the north side of Lower Gloucester Street in the parish of Saint Thomas and county of the city of Dublin containing in front to Buckingham Street one hundred and twelve feet of building ground the same number of feet in the rear and extending in depth from Buck- ingham Street to the flank wall of the houses and premises called Glouces- the free together with ter Terrace use of a lane to be laid out fifteen matter of the In the matter of the Acts 1967-2005 Tenant Small office suite (950sq ft) to let Small office LAW SOCIETY GAZETTE GAZETTE SOCIETY LAW 74 BRIEFINGPROFESSIONAL NOTICES 74 and
land. 75 75 and in the and in the
BRIEFINGPROFESSIONAL NOTICES Landlord and Landlord Landlord and Ten- Landlord Landlord and Tenant (Ground and Tenant Landlord Take notice that the applicant, Take www.lawsociety.iewww.lawsociety.ie ant (Ground Rents) Act 1967 ant (Ground In the matter of the matter of the In the 1967-1994 Acts Tenant matter of the the Rents) (No 2) Act 1978 Rents) (No 2) matter of premises situated at matter of Co West- Mullingar, Castle Street, premises meath, being part of the an ap- known as the Ritz Cinema: plication by Darragh Caffrey having notice that any person Take estate of, any interest in the freehold inter- or any superior or intermediate premis- est in, the hereditaments and in the town es situate at Castle Street barony of Moyashel of Mullingar, of West- and Magheradernon, county property meath, being part of the Cas- now known as the Ritz Cinema, and part of the tle Street, Mullingar, of property held under an indenture between lease made 16 March 1870 James O’Brien and others of the one part and Patrick McCormack of the other part for the term of 200 years from 29 of September 1869, should so- give notice to the under-signed licitors. intends to apply to Darragh Caffrey, the county registrar for the county of for the acquisition of the Westmeath DECEMBER 2008 DECEMBER FIELD OF PRACTICES: eneral Practice, Administra- tive Law, Civil and Commer- G cial Law, Company Law, Banking and Foreign Investments in Spain, Arbitration, Taxation, Family Law, International Law, Litigation in all Courts. ABOGADOS www.berdaguerabogados.com Avda. Ricardo Soriano, 29, LAW SOCIETY GAZETTE GAZETTE SOCIETY LAW SPANISH LAWYERS [email protected] TWENTY YEARS ADVISING CLIENTS PROFILE: Web site: IN REAL ESTATE TRANSACTIONS IN SPAIN Take notice that Brian Hade, Noel Hade, Noel notice that Brian Take being In default of any such notice e-mail: Tel: 00-34-952823085 Fax: 00-34-952824246 Griffin and John Lyons intend to sub- Lyons Griffin and John to the county reg- mit an application city of Dublin at Áras Uí istrar for the 7, for Dublin Quay, Dhálaigh, Inns of the freehold inter- the acquisition interests in est and all intermediate that any and property, the aforesaid the fee party asserting that they hold interest in simple or any intermediate called upon the aforesaid property are to the be- to furnish evidence of title 21 days low named solicitors within from the date of this notice. Griffin received, Brian Hade, Noel to proceed intend and John Lyons the said with the application before of 21 days county registrar at the end and will from the date of this notice for apply to the said county registrar directions the city of Dublin for such the basis as may be appropriate on that the person or persons benefi- cially entitled to the intermediate in- terest including the fee simple in the aforesaid property are unknown or unascertained. Date: 5 December 2008 Signed: Padraig O’Donovan and Com- pany (solicitors for the applicants), Abber- Tallaght, High Street, ley Law Centre, Dublin 24 panish Lawyers Firm focused on serving the need of the Edificio Azahara Oficinas, 4 Planta, 29601 Marbella, Malaga, Spain RAFAEL BERDAGUER foreign investors, whether in company or property transactions and all attendant legalities such as questions of inheritance, taxation, accounting and bookkeeping, planning, land use and litigation in all Courts. S six and made between Percival Albert Percival Albert made between six and one part and Elizabeth Jones of the of the other part” and MacNaughton red and, secondly, thereon coloured land adjoining the first “the piece of and forming a way or named premises Road, Rath- passage into Charlestown particularly shown mines, and more green, on the said map and coloured in the par- all of which premises are barony of ish of Saint Peter and the Dublin to Upper Cross and county of unto hold the premises first described day of Sep- the lessee from the first hundred tember one thousand nine of two and twenty five for the term to hold hundred and fifty years and unto the premises secondly described fifth day of the lessee from the twenty hundred March One thousand eight of the and sixty nine for the residue thirty three term of one hundred and term up to years and for such longer and ending the first day of Septem- ber two thousand one hundred and twenty five as the lessor may hereafter be able to give, yielding and paying thereforth during the said term of two hundred and fifty years the yearly rent of twenty five pounds”, being the properties also comprised in folios 56604L and 56605L of the register of leaseholders county of Dublin. and
and in the
Landlord and Landlord Landlord and Tenant and Tenant Landlord Regulated by the Solicitors Regulation Authority of England and Wales Publication of advertisements in this section is on a fee basis and does not represent an endorsement by the Law Society of Ire Publication of advertisements in this section Tenant Acts 1967-1994 Tenant Road,in the matter of 7A Oakley in the mat- Ranelagh, Dublin 6, and Hade,ter of an application by Brian and John Lyons Noel Griffin having notice that any person Take estate or an interest in the freehold any intermediate interest of the fol- lowing property: all that and those “all that piece or plot of ground and the dwelling house thereon known situate at Park House as Wellington Oakley Road Rathmines and more particularly described on the map indorsed on an indenture of lease dated the nineteenth day of April one thousand nine hundred and seventy In the matter of the 1978 (Ground Rents) (No 2) Act of this notice and will apply to the will apply to notice and of this for the county of the county registrar as may for directions city of Waterford on the basis that the be appropriate entitled to a su- persons beneficially including the freehold perior interest aforesaid premises are reversion in the unknown or unascertained. Date: 5 December 2008 (solicitors Signed: Peter O’Connor & Son House, Adelphi for the applicant), Wyse Waterford Quay, matter of the and in and in
Landlord and and Landlord In default of such notice being In default of aforesaid property are called upon to are called upon property aforesaid of title to the afore- furnish evidence to the solicitors mentioned premises named below within for the applicant the date of this notice. 21 days from applicant, Maura Mc- received, the with the intends to proceed Carthy, regis- application before the county at the end trar for the county of Cork this notice of 21 days from the date of registrar and shall apply to the county directions for the county of Cork for the basis as may be appropriate on benefi- that the person or persons interest cially entitled to the superior of the including the freehold interest or aforesaid property are unknown unascertained. Date: 5 December 2008 (solic- Signed: Carroll Kelly & O’Connor itors for the applicant), 90 Marlborough 4 Road, Donnybrook, Dublin In the matter of the Acts 1967-2005 Tenant the matter of an application by and Heuston Property Trading Development Company Limited notice that any person having Take any interest in the freehold estate or any intermediate interests in the fol- lowing property: all that and those the premises comprised in the lease dated 7 April 1919 between Sarah Crozier and Herbert Charles Cro- zier of the one part and A&B Taxis 1.27) and € 25 each, in aid of the Solicitors € Members are invited to a buffet Members are Blackhall lunch at the Law Society, Place, on 7 February 2009 and 28 February 2009 on the occasion of the home Six Nations rugby matches against France and England. at Tickets Benevolent Fund, can be obtained from Maria Hoey and can be ordered by post or by email will entitle Tickets to [email protected]. lunch, glass of wine members to a buffet and shuttle bus to Croke Park. Numbers are limited to 100 and will be provided on a ‘first basis. come, first served’ and
Take notice that Maura McCarthy, notice that Maura McCarthy, Take Keaymore, situate in the parish of in the parish situate Keaymore, and barony of West Kilmacabea Division) in the Carbery (East an application by county of Cork: Maura McCarthy any person or persons notice that Take in the freehold es- having any interest interest of the fol- tate or the superior and lowing property: dwellinghouse thereto, premises with forge attached Keaymore, being part of the lands of Kilmacabea situate in the parish of (East Carbery and barony of West Cork, held Division) in the county of late by Julia O’Donoghue, deceased, an in- of Keaymore, Co Cork, under lease dated denture of reversionary between 14 April 1938 and made Margaret Johanna Callaghan and called Frances Callaghan (therein and Julia ‘the lessors’) of the one part ‘the les- O’Donoghue (therein called the term of see’) of the other part, for 99 years from 25 March 1938, subject to the yearly rent of £1 ( subject to the covenants and condi- tions therein contained. of 7 Grangebrook Close, Rathfarn- ham, Dublin 16, in the city of Dub- lin, intends to submit an application to the county registrar for the county of Cork for the acquisition of the freehold interest and any intermedi- ate interest in the aforesaid property, and any party or parties asserting that they hold a superior interest in the and in the
Landlord and Landlord Law Society Landlord and Tenant and Tenant Landlord Rugby lunch at the Rugby lunch the basis that the person or persons beneficially entitled to such superior interest including the freehold rever- sion in the aforementioned property are unknown or unascertained. Date: 5 December 2008 Signed: Liam F Coghlan & Co, Solicitors, (off Ballycasheen Upper ‘Woodhaven’, Co KerryHazelwood Drive), Killarney, In the matter of the Tenant Acts 1967-2005 Tenant matter of the in the matter of a dwellinghouse and premises with forge attached thereto, being part of the lands of (Ground Rents) (No 2) Act 1978 DECEMBER 2008 DECEMBER 087-6521135 References available. Principal of In-House Law Firm.Principal of In-House Solicitor & Accredited Mediator.
[email protected] Contact: Caroline Murphy BCL DBS, Legal Consultancy ServicesLegal Consultancy your may be solution. Cost and tax efficient.solution. Cost and Provided by former Partner Practice and in Private Temporary Litigation, Mediation/ADR and and Litigation, Mediation/ADR Temporary
HIRING CHALLENGES? CHALLENGES? HIRING In default of any such notice be- www.lawsociety.iewww.lawsociety.ie ing received, the applicant 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 for such the county of Westmeath direction as may be appropriate on freehold interest and all intermedi- ate interests in the above-mentioned any party asserting that and property, they hold an interest superior to the applicant in the aforesaid property are called upon to furnish evidence of title to same to the below-named so- licitors within 21 days from the date hereof. LAW SOCIETY GAZETTE GAZETTE SOCIETY LAW 76 BRIEFINGPROFESSIONAL NOTICES 76 BRIEFINGPROFESSIONAL NOTICES 77 77 .
Employment Working Working Highly motivated, www.lawsociety.iewww.lawsociety.ie DECEMBER 2008 DECEMBER cation experience (PQE) for all their legal end of 21 days from the date of this end of 21 days from the registrar notice and will apply to said be appro- for such directions as may person or priate on the basis that the to all persons beneficially entitled including superior interests up to and are the fee simple in the said property unknown and unascertained. Date: 5 December 2008 Fry the (solicitors for Signed: William applicant), Fitzwilton House, Wilton Place, Dublin long hours, worried about dif- ficult and tedious files? Expe- rienced travelling locum solici- now general practitioner, tor, available full time or part time. CV and references available on request. Please contact Sean, mobile 086 320 7180 Cannot afford a solicitor on Cannot afford a continuing basis? RECRUITMENT Post-PPCI trainee solicitor seeks to complete training contract from March 2009. hardworking individual with good experience in many areas and excel- lent skills. All locations and fields of practice considered. Contact Paul on 087 977 1716 . 2004 NO recruitment advertisementspublished will be , not just qualified solicitors. , EMPLOYMENT and LAW SOCIETY GAZETTE GAZETTE SOCIETY LAW Gazette
Editorial Boardthis decision based on legal advice, has taken NOTICE TO THOSE PLACING RECRUITMENT THOSE PLACING NOTICE TO Gazette and Take notice that Joseph O’Reilly, notice that Joseph O’Reilly, Take In default of any such notice being Log onto the new expanded employment recruitment register on the members’ area of the Law Society website, www.lawsociety. ie, or contact Trina Murphy, recruitment administrator, at the Law Society’s Cork office, tel: 021 422 6203 or email: [email protected] For Law Society members to advertise ADVERTISEMENTS IN THE LAW SOCIETY GAZETTE ADVERTISEMENTS LAW IN THE FREE Please note that, as and fromPlease note 2006 issue of the the August/September Law Society that include referencesthat include of post-qualifi to years Equality Acts 1998 The referenceswhich indicates that such may be in breach of the RECRUITMENT REGISTER in the matter of an application by in the matter of an application Joseph O’Reilly in the Any person having any interest fee simple estate or any intermediate the he- interest in all that and those known as reditaments and premises in the 52 Upper O’Connell Street, and city of parish of Saint Thomas lease dated Dublin, the subject of a between 28 February 1916 made John Hunt of the one part and Frank Chambers of the other part William (with an endorsement thereon dated 3 May 1934 made between Thomas Hunt of the one part and The Carl- ton Cinema (Dublin) Limited of the other part), for a term of 250 years from 2 January 1914, subject to the yearly rent of £265 thereby reserved. being the person entitled to the les- intends interest in the said lease, see’s to apply to the Dublin county regis- trar at Áras Uí Dhálaigh, Inns Quay, Dublin 7, for the acquisition of the fee simple estate and all intermedi- and ate interests in the said property, any party asserting that they hold the fee simple or any intermediate inter- est in the aforesaid property is called upon to furnish evidence of their title so- thereto to the under-mentioned licitors within 21 days from the date of this notice. received, the said Joseph O’Reilly in- tends to proceed with the application before the said county registrar at the and in the
Landlord and Landlord
locum Landlord and Tenant and Tenant Landlord staff requirements Take notice that that the appli- notice that that Take In default of any such notice be- sac in possession of the lessors and of the lessors and sac in possession feet 10 inches which measuring 11 are more particularly said premises in the delineated on the map drawn thereon fold of these presents and in the coloured red and are situate of Dublin parish of St Paul and city of Dub- otherwise county borough lease for a lin”, and held under the December term of 99 years from 1 yearly rent 1918 and subject to the of £15 thereby reserved. and cant, Heuston Property Trading Limited, Development Company to intends to submit an application county of the county registrar for the of the city of Dublin for acquisition the freehold interest and all superior interests in the aforementioned prop- and any party asserting that they erty, hold a superior interest in the afore- said property are called upon to fur- nish evidence of title to the property to the below named within 21 days from the date hereof. ing received, the applicant, Heuston Development and Property Trading Company Limited, intends to pro- ceed with the application before the county registrar at the end of 21 days from the date of this notice and will apply to the county registrar for the county of the city of Dublin for di- rections as may be appropriate on the basis that the person or persons beneficially entitled to the superior interest including the freehold in the property are unknown and unascer- tained. Date: 5 December 2008 Signed: Kilroys Solicitors, 69 Lower Lee- Dublin 2 son Street, In the matter of the Tenant Acts 1967-2005 Tenant matter of the (Ground Rents) (No 2) Act 1978 LOCUM email: or seeking to employ a locum solicitor.
Limerick.
Company, UNIQUE
River Front, Limerick city Howleys Quay,
FOR SALE PRACTICE PRACTICE
Norman O’Leary & OPPORTUNITY Phone: 061 401111 SOLICITOR’S SOLICITOR’S Mícheál Ó Laoide FCA [email protected] Contact (principals only) to: Contact (principals only) Chartered Accountants Log onto the new self-maintained locum recruitment register on the members’ area of the Law Society website, www.lawsociety. ie, or contact Trina Murphy, recruitment administrator, at the Law Society’s Cork office, tel: 021 422 6203 or email: [email protected] For Law Society members seeking a position as a FREE
RECRUITMENT REGISTER Limited of the other part (herein- after called ‘the lease’) and therein described as “all that piece or plot of ground situate at the rear of Nos 27, 27A, 28 and 29 Parkgate Street and adjoining the garden at No 25 Montpellier Hill aforesaid now in the occupation of the said Sarah Cro- zier bounded on the North side by premises and measuring the lessor’s 180 feet 6 inches on the South- and premises west by the lessor’s measuring 121 feet 4 inches on the South by part of the lessee’s premises behind no 28 Parkgate Street and by the premises Nos 27 and 27A Parkgate Street and meas- uring 63 feet 6 inches on the East by premises in the possession of the les- sors and by the Lucan Dairy premises and measuring 30 feet 6 inches and by a passage or cul de on the West solicitor