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W sO c I ety Gazette • Vol 107 No 7 BROWN-BaGGING It FulsOme pRIsON Blues BReaKING Bad? Are ‘plain packaging’ A court has held the State The downturn has led to proposals the start of a liable for injuries sustained in higher numbers seeking slippery trademark slope? a prisoner-on-prisoner assault to exercise break clauses Law Society Law GazetteGazette€4.00 aug/sept 2013 au G /sept 2013

aNONymOus? Law Society of Ireland How the courts can unmask internet users Court Applications under the Companies Acts By Mahmud Samad, BCL, LLM (Cantab), Barrister

The Companies Acts 1963-2012 contain Topics covered in the book include: over 200 court applications, ranging from applications vindicating the rights of • Introduction to corporate litigation minority shareholders to the winding up of • Introduction to Irish companies companies for failure to pay their debts. The • Articles and memorandum of association object of this text is to provide a discussion of every application, focusing not only on • Directors’ duties the applicable legal principles, but on the • Registration of charges procedure involved in issuing and prosecuting • Minority shareholders’ rights and remedies proceedings. This includes discussion of: • Remedies against un-liquidated insolvent companies n the proofs for each application • Compromises and schemes of arrangement Format: Hardback n the necessary documentation (including the content of affidavits, petitions and notices) • Receivership Price: €185.00 + €5.50 P&P for every application • Examinership n service of proceedings • Powers and duties of examiner Pub date: Sep-13 n time limits n defences • Voluntary winding up ISBN: 9781780432229 n costs • Compulsory winding up • Compulsory winding up of insolvent The book guides readers through the steps companies involved in making each court application • Committees of inspection About the author and, as such, serves as a practical and unique • Power and duties of liquidator Mahmud Samad Samad is is a aBarrister-at-Law, Barrister-at-Law, resource to legal practitioners – or indeed having been been called called to to the the Bar Bar in in2007. 2007. anyone else – contemplating litigation under • Examination of certain persons on a He specialisesspecialises in in commercial commercial law, law, with with a a the Companies Acts. winding up strong focus focus on on company company law, law, corporate corporate • Reckless and fraudulent trading and personalpersonal insolvency, insolvency, bankruptcy bankruptcy and and In addition to providing a thorough and up- • Avoiding certain transactions on a debt recovery.recovery. Mahmud Mahmud obtained obtained his his law law to-date analysis of the law (covering statutes, winding up degree from from NUI NUI Galway Galway in in 2006 2006 and and went went rules of court, practice directions and case • Restriction and disqualification of company on toto complete complete an an LLM LLM at at the the University University law from key jurisdictions) and in-depth of Cambridge.Cambridg. In addition toto practising practising as as a a directors discussion of practice and procedure, Court barrister, Mahmud Mahmud has has worked worked with with Herbert Herbert • Company restorations Smith LLP, LLP, a a leading leading international international law law Applications under the Companies Acts contains • Annulling an order of dissolution after firm inin thethe areaarea of ofcommercial commercial litigation. litigation. a generous collection of detailed precedents He isis alsoalso an an accredited accredited mediator mediator and and for specific applications. The precedents are company wound up has workedworked as as a a tutor tutor on on the the mediation mediation based on real applications coming before • Company inspections and inquiries course run run by by Mediation Mediation Forum Forum Ireland. Ireland. the courts and have been contributed by the • Security for costs His publicationspublications to to date date include include numerous numerous author and other legal practitioners. Finally, articles published published in in some some of of Ireland’s Ireland’s each chapter sets out the key amendments to • Applications concerning public leadingleading professional professional legal legal journals. journals. be introduced by the Companies Bill 2012 to limited companies the applications discussed in that chapter. It • Applications concerning the Supervisory is hoped that this will facilitate practitioners Authority under the Companies (Auditing in making a smooth transition once the Bill is and Accounting) Act 2003 enacted into law. • EU Insolvency Regulation

To order this title call +353 1 5009599 or go to PublishingPtember www.bloomsburyprofessional.com se 2013 Law Society Gazette www.gazette.ie Aug/Sept 2013 PRESIDENT’S MESSAGE 1 reinventing legal services

begin this month’s message with a very heavy heart, August, we learned of ‘JDR’, following the passing, at the very untimely age of or judicial dispute resolution. I 62, of Mr Justice Kevin Feeney while on holidays By this process, parties with his family in Ballycotton in Co Cork. Throughout a are encouraged to actively distinguished career at the Bar, and later during his entire participate and enable a judge time on the High Court bench, Kevin represented all that to narrow the issues. They do is good in a lawyer. He treated everyone equally, and with so in good faith and without respect and compassion. I extend my deepest sympathies to prejudice. his wife Geraldine and the entire Feeney family. The process often results Kevin’s passing followed just two weeks after the sad loss in a resolution of the dispute by the Society’s junior vice-president, Stuart Gilhooly, of his earlier than the litigation or father, the distinguished senior council James Gilhooly. Our trial process. The positives deepest condolences also go to Stuart and his family. The cannot be overstated, as the “Endeavouring to fact that Kevin Feeney and James Gilhooly were both guests parties will have been enabled at the Law Society’s annual dinner in Blackhall Place on to move on more quickly. reinvent the 12 July 2013 must cause us all to reflect on the frailty and Their lawyers will have delivery of legal uncertainty of life. been enabled to recover their services is a topic In the July Gazette, I referred to some of the concerns fees and close their that had been expressed at meetings with several bar files quickly too. close to the top of associations. It will come as no surprise to report that most Finally, I warmly welcome the agenda of every of the concerns are shared with our colleagues all around the expansion of the number the world, and that includes the Legal Services Regulation of members of the Supreme law society” Bill – and how, when ultimately implemented, some of its Court and I extend my provisions might be introduced elsewhere. heartiest congratulations to The one thing that is certain is that we cannot, as a Law Ms Justice Mary Laffoy Society or as practitioners, stand still. Practitioners and and Ms Justice Elizabeth Dunne on their recent law societies everywhere are using their best endeavours nominations for appointment to that court. We hope to face up to the challenges of the 21st century. Access to that the expansion of the Supreme Court will speed the justice issues arise everywhere. Endeavouring to reinvent processing of appeals. the delivery of legal services is a topic close to the top of This expansion of the Supreme Court is an interim the agenda of every law society or bar association we have measure to deal with the completely unacceptable delays consulted with. of up to four years in hearing High Court appeals. The answer to the problem is the proposed Court of Appeal. Judicial dispute resolution Ken Murphy served on the working group, chaired by Chief When all practitioners are challenged to find ways of Justice Susan Denham, that in 2009 produced the excellent generating income, we must, for example, examine ways report recommending a Court of Appeal as a necessary of speeding up the resolution of disputes. It may be that part of Ireland’s justice infrastructure. The Society fully some of these changes will be inspired by the judiciary. supports this proposal and, naturally, we urge you to vote in The growing use of alternative dispute resolution is to be support of the measure in the constitutional referendum on welcomed. At a meeting with Canadian judges in Dublin in 4 October 2013. G

James McCourt President 2 contents Law Society Gazette www.gazette.ie Aug/Sept 2013

Law Society Gazette Volume 107, number 7 Subscriptions: €60/€90

Editor: Mark McDermott FIIC Deputy editor: Dr Garrett O’Boyle Art director: Nuala Redmond Society Law Editorial secretaries: Catherine Kearney, GazetteGazette Valerie Farrell

Commercial advertising: Seán Ó hOisín, tel: 086 811 7116, RegularS email: [email protected] 4 News Practitioners’ Handbook; Corruption Law; For professional notice rates (wills, title deeds, employment, miscellaneous), see page 60. and The Last Sting of a Dying Wasp 12 Analysis 45 Reading room: Travel law and holiday Published at Blackhall Place, Dublin 7, 12 News feature: Reforming the litigation books in the Society’s library tel: 01 672 4828, fax: 01 672 4877. family law system Email: [email protected] 14 Human rights watch: The Marie Website: www.gazette.ie 47 Briefing Fleming Supreme Court judgment 47 Council report: 12 July 2013 Printing: Turner’s Printing Company Ltd, 48 Practice notes Longford 16 Comment 53 Regulation: Solicitors Disciplinary Editorial board: Michael Kealey (chairman), 16 Viewpoint: The potential dangers Tribunal Mark McDermott (secretary), Mairéad Cashman, of unrated PI insurers 56 Legislation update: 11 June – Paul Egan, Richard Hammond, Mary Keane, 18 Viewpoint: A case for the abolition 11 August 2013 Aisling Kelly, Tracy Lyne, Patrick J McGonagle, of the Seanad 58 Eurlegal: EU Commission deals Ken Murphy, Andrew Sheridan with Dutch beer cartel The Law Society of Ireland can accept 40 People and places no responsibility for the accuracy of 60 Professional notices contributed articles or statements appearing in this magazine, and any views or opinions 44 Books expressed are not necessarily those of the 44 Book reviews: Irish Probate 64 Captain’s blawg 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. 64 FSC independently certified wood and paper products used by the Law Society Gazette come from ecologically managed forests. Visit: www.fsc.org

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The Law Society Gazette is a full participating member of the Press Council of Ireland and M supports the Office of the Press Ombudsman. R e s c ne This scheme, in addition to defending the free- ycl azi e Mag dom of the press, offers readers a quick, fair and free method of dealing with complaints that they may have in relation to articles that appear on our pages. To contact the Office of the Press Ombudsman go to: www.pressom- budsman.ie or www.presscouncil.ie. 40 43 Law Society Gazette www.gazette.ie Aug/Sept 2013 contents 3

28 36

ad? BReaKING B Blues me pRIsON The downturn has led to FulsO higher numbers seeking GGING It A court has held the State to exercise break clauses la BROWN-Ba

W sOcIety Gazette • Vol 107 No 7 liable for injuries sustained in Are ‘plain packaging’ a prisoner-on-prisoner assault proposals the start of a slippery trademark slope?

€4.00 aug/sept 2013 cover story Law Society GazetteLaw 20 The faceless few The McKeogh case presents an auG/sept 2013 opportunity to examine how court rules have coped with developments in defamation and privacy law in the internet realm. Can maintaining us? anonymity ever trump the freedom to aNONymO report? asks Eva Nagle Law Society of Ireland How the courts can 16 unmask internet users features 24 Book by its cover? 32 Shape of things to come Does the proposal to introduce In the first of two articles, David Rowe plain packaging for cigarette boxes looks at how the Irish legal market has set a precedent for the restriction of changed over the past five years – and rights pertaining to validly registered predicts the shape of things to come intellectual property? Alistair Payne and Amy Lawless unwrap the goods 36 Breaking bad The economic downturn has led to 28 Jailhouse rock higher numbers of landlords and tenants Emma Keane examines the first Irish seeking to exercise ‘break clauses’ within case in which a court held that the State leases. But breaking up is hard to do, can be liable for injuries caused by one as Michael Walsh and Aoife Maeve inmate to another Clarke point out 14

HOW TO REACH US: Law Society Gazette, Blackhall Place, Dublin 7. Get more at lawsociety.ie Tel: 01 672 4828, fax: 01 672 4877, email: [email protected] Gazette readers can access back issues of the magazine as far back as Jan/Feb 1997, right up PROFESSIONAL notices: send small advert details, with payment, to: Gazette to the current issue at lawsociety.ie. Office, Blackhall Place, Dublin 7, tel: 01 672 4828, or email: [email protected]. You can also check out: All cheques should be made payable to: Law Society of Ireland. • Current news • Forthcoming events, including the JUSTICIA COMMERCIAL ADVERTISING: contact Seán Ó hOisín, 10 Arran Road, Dublin 9, network’s EU Criminal Justice Know Your Rights tel: 01 837 5018, fax: 884 4626, mobile: 086 811 7116, email: [email protected] Seminar in the Law Society, on 23 September • Employment opportunities HAVE YOU MOVED? Members of the profession should send change-of-address details to: • The latest CPD courses IT Section, Blackhall Place, Dublin 7, or to: [email protected] … as well as lots of other useful information 4 news Law Society Gazette www.gazette.ie Aug/Sept 2013 Nationwide Compiled by Kevin O’Higgins Golfers swelter at Druid’s Glen Kevin O’Higgins wicklow A ball for has been a Council member On Friday 19 July, the Wicklow T Louth Memorial Cup as Barretstown of the Law Solicitors’ Bar Association overall winner. The ‘closest to The president of the Irish Society since held its annual golf and dinner the pin’ competition was won Solicitors’ Bar Association in 1998 day at the Druid’s Glen Golf by Michael O’Loughlin, while Resort. After a wonderful the prize for longest drive went Britain, Cliona O’Tuama, has round of golf in temperatures to Judge Patrick McCartan. been in touch to inform us that dictated that the sun cream Brian Robinson and Conway that the their 2013 Autumn was as important as your driver, O’Hara (social committee) Ball will be held on Friday DSBA bursary dinner and drinks followed in organised this wonderful 15 November in Claridge’s, the clubhouse. event. A special presentation which proved to be so scheme Winners included John was made to outgoing popular with the ball’s loyal O’Beirne and Rosemary president David Lavelle for his supporters in 2011 and 2012. dublin Gantly, with John O’Beirne exceptional work during his Once again, the beneficiary A DSBA bursary scheme has been being presented with the John tenure. will be Barretstown. Full created. The bursary will contribute details next month. towards FE-1 fees, law school fees, and living expenses. Further details and application forms are available from www.dsba.ie. Will sets Tara on fire! Following the success of recent meath A bird in the golf outings at Elm Park and St hand… Anne’s, the DSBA Golf Society has announced that its final event of monaghan the year (Captain’s Prize) will take Where would you get a line- place on Thursday 12 September up of speakers of the calibre of at Killeen Castle. (Please note that media doyen Charlie Bird, taxing this outing had originally been master Declan O’Neill, DPP scheduled for 5 September.) For Claire Loftus and criminal law those who have already booked expert Dara Robinson other than for the original date, the society in Monaghan? Well, Dublin, apologises for any inconvenience probably, but still… They can caused. If you have already booked also boast the expertise of Judge and cannot make the new date, the Sean McBride, media lawyer golf society will be happy to refund Simon McAleese and James Finn the entry fee. A limited number of of the Wards of Courts Office, places are still available. (From l to r): Ronan O’Reilly, Maire Teehan (former county registrar), Will among others, all of whom will Ryan BL (overall winner), Mary O’Malley (current county registrar), Oliver speak on diverse topics at the Shanley (Meath Solicitors’ Bar Association president) and Elaine Byrne all-day event on 11 October. The Keeping it (honorary secretary and treasurer) venue is the Glencarn Hotel, Castleblayney. Seven CPD points profitable The annual Meath County prize was awarded to Will will be available, including three Registrar’s Golf and Dinner was Ryan BL of Kells. The prize for management, one regulatory and donegal held at Royal Tara Golf Club best lady golfer went to Sheila three general. An excellent CPD seminar during the summer. Elaine Byrne Cooney. All of their speakers are giving is planned for the Radisson says that the weather remained Says Elaine: “A special word of their time freely, with all Hotel, Letterkenny, on Friday bright and sunny. Guests included of thanks goes to our county profits going to the Solicitors’ 27 September, from 9.30am District Court Judge Patrick Clyne, registrar, Mary O’Malley, for her Benevolent Fund. The cost is to 4.15pm. The speakers will Mary O’Malley (county registrar continued support of the event €70 or €110 if attending the include David Rowe and Donal for Meath), Elizabeth Sharkey and to committee members social evening. Certificates of Maher (both from Outsource), (county registrar for Westmeath), Ronan O’Reilly and William attendance will be provided. For John Brennan (O’Leary Maire Teehan (retired county O’Reilly for their help in further details and to reserve Insurances), and David Soden registrar), Oliver Shanley (bar organising this event.” your place, send a cheque and (solicitor). Topics will include association president), James Mary O’Malley has recently your details to Justine Carty, law firm profitability and practice Walsh (past-president), Elaine been nominated as a specialist Barry Healy & Company, Laurel management, negotiating the PII Byrne (honorary secretary and judge of the Circuit Court. The bar Lodge, Hillside, Monaghan, Co renewal, and a conveyancing up- treasurer) and Ronan O’Reilly association wishes her well in Monaghan; DX 34 006; or email: date, with particular reference to (committee member). The overall her new post. [email protected]; or phone property tax. 047 71556. Law Society Gazette www.gazette.ie Aug/Sept 2013 news 5 New In News this month... Supreme 6 Dáil discusses LSR Bill 9 Network initiative for young 7 End to scale costs in solicitors Court judges District Court? 9 An App for That – Noteshelf nominated 8 Mayo courthouse closures 9 EII tax-relief incentive Two serving High Court judges have been nominated by the Doing the business in Westport Government for appointment to the Supreme Court by President Michael D Higgins. They are Ms Justice Mary Laffoy and Ms Justice Elizabeth Dunne. Is there a The appointments follow the passing of the Courts and doctor in the Civil Law (Miscellaneous Provisions) Act 2013, which house? allows for the extra positions. Gabriel Brennan, the Law Society’s The two new appointments eConveyancing Senior Advisor will bring the total number of and Law School course manager, Supreme Court judges to ten, has been awarded a PhD from including the Chief Justice. Nottingham Trent University. “The appointment of these Dr Brennan’s thesis was entitled additional judges will help At the launch announcing the symposium were (l to r): Charlie Gilmartin (Gilmartin An Exploration of the Impact reduce waiting periods by & Murphy Solicitors), Cllr John O’Malley (cathaoirleach, Mayo County Council), of Electronic Conveyancing allowing two divisions of the Mary Robinson (UN Special Envoy for the Great Lakes Region of Africa), Paddy (eConveyancing) upon Management Supreme Court to sit routinely McGuinness (WDC chair) and Prof James J Browne (president of NUI Galway) of Risk in Conveyancing and facilitating additional Transactions. sittings of the Court of Criminal The third annual US/Ireland by the Brehon Law Society of Appeal,” the Government said. Legal Symposium of the Brehon Philadelphia, with the support The proposed establishment Law Society will take place in of the Western Development The low-down of a dedicated Court of Appeal Westport, Co Mayo from 25 Commission and Mayo County to encompass both civil and to 27 September 2013. The Council. Those attending will on ‘down criminal jurisdiction will be put theme is ‘Doing business in the include Irish and American to a referendum on 4 October US/Ireland/Europe – critical lawyers, business consultants under’ 2013. legal issues for US and Irish and businesses operating in both companies’. It will be hosted Ireland and the US. An information event will be held on working and qualifying in Australia and New Zealand DNA database legislation ICDLJ seeks on Thursday 19 September from 6pm to 8pm in the Green Hall Minister for Justice Alan Shatter submissions lecture theatre at Blackhall Place. has said that legislation enabling This event is organised by Career the establishment of a DNA The Irish Community Development Support and is aimed at solicitors database is virtually complete. Law Journal is now accepting considering the move to these Speaking at the launch of Dublin submissions for inclusion in jurisdictions. Rape Crisis Centre’s annual volume 2, issue 2, on the theme of Speakers will include: report at the end of July, Mr ‘housing’. The journal is published • Susan Kealy, an occupational Shatter said that he expected to twice a year by the Northside psychologist specialising in publish the DNA Database Bill Community Law and Mediation career development, in September. It is expected that Centre in Coolock, Dublin. • Hannah Carney, an Irish the database will be operational Articles, book reviews and case solicitor and experienced career by next year. studies should be between 1,500 development coach, The minister said that a DNA or more, which covers rape and and 10,000 words in length. The • Ronan McSweeney, an Irish database would revolutionise the most sexual offences,” he said. deadline for submissions is 12 solicitor working as a lawyer in detection of sex crime in Ireland. “On top of that, people serving September 2013. Australia. “Our database will hold the prison sentences when the If interested, email editor@nclc. DNA profiles of every person legislation is enacted will also ie. To access previous editions Anyone wishing to book a place convicted of any offence that have their profiles put on the of the journal, visit www.nclc.ie/ should email Malgorzata Rola at: attracts a sentence of five years database.” overview/default.asp [email protected]. 6 news Law Society Gazette www.gazette.ie Aug/Sept 2013 Darkness and light as Leinster House discusses LSR Bill The venerable grey stonework of Leinster House gently reflected the bright morning sunlight. It was one of the warmest days of one of the warmest Julys on record, writes Ken Murphy. As the small Law Society delegation strolled across from the Kildare Street gate and then entered the Millennium wing, we could not but notice an unusual lightness of mood among the public representatives who, as they passed each other, cheerily wished colleagues of all parties in various verbal formulations a Justice, Equality and Defence Sinn Féin justice spokesperson “good summer break”. Fianna Fáil justice spokesperson Minister Alan Shatter Niall Collins TD Pádraig MacLochlainn TD Leinster House’s relaxed and rather giddy end-of-summer- term feel on this occasion justice spokesperson, Pádraig and provision of legal clarity” suited to the task of finding the contrasted with the usual air of MacLochlainn. to the independence of right people for the authority. political tension and intrigue, In the early exchanges, Deputy the authority from control There will still be only 11 such as on the occasions when, MacLochlainn complained of the by the Government, the members of the authority, six of a few weeks previously, I had committee being “now engaged minister continued, “has been whom will be lay persons and visited to give separate detailed in a symbolic gathering for influenced by written and verbal five of whom will be nominees briefings to the opposition an hour-and-a-half before the submissions from the Law of the legal professional bodies justice spokespersons on the summer recess” and registered Society, the Dublin Solicitors’ and their close affiliates”. bill whose committee stage was his deep disapproval of the Bar Association, the Bar Council “In terms of the non-lay about to commence. extraordinarily lengthy delay and several other key interested members of the authority, I It was the second-last sitting between completion of the parties from whom we received have borne in mind the fact day before the Dáil was due to bill’s second stage in the Dáil submissions. It therefore meets that there are significantly rise for the summer. Deputies on 23 February 2012 and the most, if not all, of the concerns more solicitors than barristers seemed surprisingly fresh and commencement of the committee that lie behind the similar in the State – a factor of five jaunty, given that most of them stage now on 17 July 2013 – a amendments being put forward to one. First, I have removed had sat until 5am just two nights delay of some 17 months. by the opposition today”. my ministerial entitlement previously, as they sought to It was acknowledged by all to nominate a member of the pass the Protection of Life in involved, however, that even the Balance of power authority. Then, rather than Pregnancy Bill. short time being devoted to the In place of the power of the simply increase the number committee stage of the bill that Government (on the nomination of nominees from the Law Early exchanges day was highly important. It was of the Minister for Justice) to Society, I have chosen to The summer brightness of the proposed to make amendments appoint all of the lay members designate the Legal Aid Board light outside made the lower- that would fundamentally alter of the board (as was provided as an additional nominating ground-floor room, in which the the composition of the proposed for in the bill as published), body and will require it Joint Oireachtas Committee on Legal Services Regulatory the minister’s amendments to nominate a solicitor. In Justice was sitting, seem dim if Authority and, in particular, the now provide that a series addition, I have reduced the not gloomy. Committee chair, manner in which members of that of independent bodies will Bar Council’s nominees from David Stanton TD, was anxious authority would be chosen and nominate the 11 members of the two to one, but I have given to get started as we took our appointed. board. These comprise one each the Honourable Society of places among the journalists and As Minister Shatter put from the Citizen’s Information King’s Inns a nominee as a a handful of others in the public it: “Several of the proposed Board, the Higher Education counter balance, following gallery. amendments to section 8 are Authority, the Competition representations from that Although there were a intended to increase the actual Authority, the Human Rights body.” number of committee members and perceived independence Commission, the Institute present, this first sitting of the of the authority from the of Legal Costs Accountants, Query about veto committee stage of the Legal Government. When the bill was the Consumers Association Niall Collins TD probed this, Services Regulation Bill 2011 was published in 2011, concerns were of Ireland, the Bar Council, saying “the initial concern was dominated by the voices of three raised about the issue of how the the Legal Aid Board and the that the minister, his office individuals, namely Minister members of the new authority King’s Inns, together with two or his successor, when we all for Justice Alan Shatter, the would be appointed and the nominated by the Law Society. move on, would have too much Fianna Fáil justice spokesperson independence of that process.” The minister believed that influence in the appointing Niall Collins, and Sinn Féin’s This “copper-fastening “the nominating bodies are best of members. The minister Law Society Gazette www.gazette.ie Aug/Sept 2013 news 7 has gone some way towards financial climate, there is addressing these concerns. Can absolutely no doubt, in recent he confirm the minister does years, that various solicitors’ An end to scale costs in not have a veto in terms of the practices have found themselves nominees who are being offered in far more difficult financial District Court? by the prescribed bodies?” The times than has been the case Representatives of the Law Society, current jurisdiction in civil matters minister, in response, did so in the past.” He acknowledged unprecedentedly, met with the will now be the responsibility of the confirm. that many solicitors had lost District Court Rules Committee District Court. Pressed by Deputies Collins their jobs as firms contracted on 22 July 2013 to discuss The principles that underpin and MacLochlainn on why he and that more than 1,000 changes to the rules that would be the administration of justice, in insisted on the chairperson young solicitors were necessitated by the major increase civil law terms, in the Circuit of the new authority being unemployed. in jurisdiction of the District Court will need to be followed, in a lay member, and why the “Although the Troika had Court following the enactment of proportionate terms, to ensure that Government had to appoint rightly or wrongly formed the Courts Bill 2013. Of primary the quality of justice in the District that member, the minister the view that legal fees, concern was the need to make the Court is no less than in other responded that he saw this as generally, in some areas had practice of civil law in the District courts. a matter of “public confidence not decreased, I am personally Court both just and economical for The District Court, in civil law in the authority” and that aware, as I am sure the all concerned. matters, has traditionally had only there should be “no lobbying deputies are, of firms that The Law Society delegation the most rudimentary of pleadings. or pressure put on people who have hit hard financial times was led by the president, James This can no longer be the case have only just met each other, and have reduced the charges McCourt, and included junior vice- when the court is given the as the first members of the they issued to clients whom president Stuart Gilhooly, chair of proposed enhanced jurisdiction. authority, to determine who they represent,” the minister the Litigation Committee Eamon Justice requires that fixed scales should chair”. added. He was not suggesting Harrington and director general of legal costs for the parties, as In response to persistent that everyone in the solicitor’s Ken Murphy. The meeting followed has operated up to now in the questioning from Deputy profession was doing terribly on earlier submissions by the Law District Court, must be superseded Collins, the minister well. “There are many who are Society, which had pointed out that by a requirement that legal acknowledged that, in addition not doing well. There are many the proposed change in the upper costs be measured in relation to to the delay in drafting his in difficulties. There are young limit of jurisdiction of the District District Court matters on the same amendments for the committee solicitors who cannot get jobs Court in civil matters was “utterly principles as in all other courts. stage, there had also been at the moment. Providing transformational”. A significant The policy choice, in effect, is delay in producing a regulatory greater competition, new proportion of the Circuit Court’s between justice and scale costs. impact assessment for the business models and new Legal Services Regulation Bill opportunities will benefit not (in principle, it should have just the public, but the legal been produced before the bill profession itself.” commenced its passage through As is usual, none of the A shorter ‘long vacation’? the Dáil). However, he insisted opposition’s amendments were Do you think that the ‘long vacation’ of lines – the two most important factors that this “will be made available accepted by the committee. the Superior Courts should be shorter? were the needs of litigants and in advance of the resumption of They were voted down when At the Law Society’s annual the desirability of increasing the the committee stage after the pressed. Having passed the conference in Killarney last May, throughput of business for solicitors. summer recess”. minister’s draft amendments the Minister for Justice, Equality and Subject to wider consultation, it Echoing a remark made to the first nine sections of the Defence, Alan Shatter, posed the seems reasonable that the Society earlier in the debate by Deputy 123-section bill – although question. should seek: MacLochlainn, Deputy Collins the minister has promised The Law Society Council has 1) The re-naming of the ‘long challenged the minister on numerous additional sections decided to invite views from the vacation’, the opinion that the minister to the bill, such as in relation profession before adopting a final 2) The curtailment to six weeks of appeared to be quoting from to creating options for position on the issue. Please what was formerly known as the a Troika report, to the effect solicitor’s firms to adopt limited email your views to the Gazette ‘long vacation’, that legal fees represent a liability partnerships and editor at: [email protected]. 3) A possible change to the significant drag on the economy limited companies as practice A representative selection will be commencement of what was and competitiveness. The models, in respect of which reported in the next issue. formerly known as the ‘long Fianna Fáil justice spokesperson amendments have not yet been At the Council meeting on 12 July vacation’, expressed contrary views that published – the committee ran 2013, however, a preliminary Review 4) The abolition of the Whit break, “nobody in the legal profession out of time. of Court Sitting Days and Vacations 5) The retention of the Easter and is recession-proof” and that The Dáil record shows that, was received from the Society’s Christmas breaks, and “these people are employers at 11.05am, the committee Litigation Committee. 6) Restructuring to ensure that: who contribute to the economy adjourned after an hour sine This was by no means the first i) Judges are adequately and the community”. die. All who had participated discussion of this seasonal issue resourced, Minister Shatter, however, in or observed this piece at the Society’s Council. Indeed, ii) Judges are allocated non-sitting proceeded to express his of law-making in action more than a decade ago, the Council weeks as necessary, absolute agreement with what headed upstairs slowly and adopted a pro-reform position very iii) Suitable specialist judges are Deputy Collins had said. He out, blinking, into the bright similar to that now suggested by available for urgent business continued: “In the current summer sunlight. the committee, along the following out of term. 8 news Law Society Gazette www.gazette.ie Aug/Sept 2013 Coroner slams closure of Mayo courthouses ‘A single Mayo’s county coroner, market for Patrick O’Connor (who is a past-president of the Law lawyers’ Society) says that the decision of the Courts Service Board conference to close the courthouses in The Directorate General for the Swinford and Ballyhaunis is “a regrettable, retrograde, Internal Market and Services reactionary decision that will, in of the European Commission is the long-term, have profound organising a one-day conference consequences for Co Mayo”. on 28 October 2013 entitled ‘A Mr O’Connor was reacting single market for lawyers: valuing to the 1 July decision of the achievements, tackling remaining Courts Service Board to challenges’ (see http://bit.ly/ approve the recommendation w2HBfr). of its Building Committee to The Brussels conference will close Swinford and Ballyhaunis provide participants with the courthouses. sought to engage with the any court office outside of the opportunity to discuss a variety of “Not only will there be job Courts Service in relation to county town. Of course, this issues of particular interest to the losses in solicitors’ offices,” he the decision taken by it.” may be denied by the Courts legal profession in the context of said, “but there will be a serious The decision to approve Service and, no doubt, it will the single market. economic effect on the entire the closure of court venues state that no decisions have Commissioner Barnier will East-Mayo region, of which in Swinford and Ballyhaunis yet been taken! Such was its open this high-level event, which Swinford has been the principal means that there are now response a number of years ago follows the publication of a study market town for more than 200 only four court venues in relation to the courthouses in on the operation of the EU legal years.” remaining in Mayo, namely: Ballyhaunis and Swinford.” framework applicable to lawyers. The estimated economic Achill, Belmullet, Ballina and He concluded: “A review The study has been carried out impact to Swinford’s economy Castlebar. No court venue now of the decision of the Courts for the European Commission by would be approximately exists in South or East Mayo. Service to close Swinford and the University of Maastricht and €180,000 per annum, he said. Ballyhaunis courthouses is Panteia and can be found at “Offset this against a projected Eleven courthouses closed needed.” http://bit.ly/19ZOOLt. saving, it is understood, to Since the Courts Service the Courts Service of the commenced its review of maintenance of the courthouse court venues in 2000/02, in Swinford of €14,000 per courthouses in Ballinrobe, annum. Who is the winner and Balla, Claremorris, Kiltimagh, European law journal who is the loser?” he queried. Kilkelly, Charlestown, He added that the decision Foxford, Crossmolina and invites submissions looked as though it had been Killala have closed. All of these The Irish Journal for European length 8,000 to 12,000 words), “taken in advance by the are located in South and East Law is pleased to announce its shorter articles (3,000 to 4,000 Building Committee of the Mayo. relaunch in electronic format. words) and analyses of recent Courts Service, who sought a Cases in the former This new departure for the developments (of any length), result and then retrospectively Charlestown District Court journal coincides with the 21st are invited. produced figures to justify the area were transferred across anniversary of its establishment. While submissions on Irish- closure”. the county boundary to Published in print since 1992, European legal issues are of Tubbercurry, Co Sligo (16km ‘Consultation’ away). Cases from Foxford this leading publication on special interest, the journal Challenging the Courts Service and, more recently, Kiltimagh, Irish-European legal issues will welcomes submissions on claim that it had consulted were transferred to Ballina and make its first appearance in all areas of European law. In with court users, including Castlebar respectively. e-journal format in early 2014, addition to the more traditional An Garda Síochána, lawyers, “One can only conclude with one volume to be published form of academic article, Courts Service staff and public that there is now a concerted annually. comment and opinion pieces representatives at national and policy by the Courts Service Under new editorial direction, on European-Irish affairs, with local level, Mr O’Connor said: to centralise all court hearings the journal is now double peer- a legal dimension, will be “The reality is there was no – District and Circuit – in one reviewed and boasts greater welcomed. such consultation.” court venue in Castlebar,” flexibility in the content and Submissions should be sent Submissions had been O’Connor continued. “It style of submissions, as well to: [email protected] invited and made to the Courts appears that the other three as an editorial board that by 1 November 2013 in Word Service. “However, there was remaining courthouses (Achill, comprises both practitioners format, size 12 font, single- no engagement whatsoever Ballina and Belmullet) will and academics. spaced, referencing style-guide with the individuals and bodies, be closed as venues in the Long articles (indicative OSCOLA Ireland. particularly solicitors, who foreseeable future, as will Law Society Gazette www.gazette.ie Aug/Sept 2013 news 9 Nationwide networking there’s an app for that events for young solicitors Noteshelf improves The Law Society is teaming up with bar associations outside of your handwriting the capital to organise an exciting App: noteshelf Price: €3.89 new ‘Network’ initiative for young solicitors. Network’s aim is to Noteshelf is my newest Noteshelf. This app also has a facilitate young practitioners to favourite app for my iPad, ‘type text’ function and allows make contacts and develop their writes Dorothy Walsh. It is typed content to be added to the careers by hearing about others’ basically the best handwriting handwritten notes. Again, this experiences. app of the ones I’ve tried and is a great feature for the likes The initiative is being organised tested (namely, Penultimate of reducing settlement terms to in three regions – Munster, and Notebook+). It is a paid-for writing and having each party Connaught/Donegal and Leinster/ app but, in my view, it is well sign the document. Cavan/Monaghan. Four Network worth the €3.89. There are also various meetings will be held in each Noteshelf allows you to open settings within the app that region annually – a total of 12 notebooks on your iPad and allow you to change the look of meetings countrywide each year. write in them as if you were the paper (stationery includes Each Network event will have writing on a paper pad. I tried yellow legal-pad paper and a guest speaker tell their story. who are qualified for less than it on my original iPad and wide-lined paper). You can add Speakers will not necessarily be six years. Everyone recorded as found it to be excellent, but tags (which can be accessed lawyers but will be locally based qualifying in the previous six was a little worried about how in Evernote and can be used and will have enjoyed significant years and living in the relevant it might perform on the iPad to save notes to Evernote), success in their chosen career. region will be invited. Invitees are Mini. I was not disappointed share your notebook via email, They will speak about their encouraged to attend all Network – it was just as good on the Facebook or Twitter. You can achievements and insights. Each meetings in their region. smaller screen. also add a pass code to the session will provide an opportunity Details of each Network One of the advantages note for added security, add for attendees to meet up with event will be circulated by of Noteshelf is the wrist- pictures, add emoticons (the friends and be introduced to new email to bar associations and protection function, which use of punctuation marks to people. Refreshments will be young solicitors in the autumn. very successfully prevents draw faces that suggest the provided. Further information is available your hand from creating errors tone of an email, such as :-( These meetings are being by contacting Sinead Travers at: where one rests one’s wrist for instance), and change pen organised exclusively for solicitors [email protected]. on your iPad while writing. I colour and density. found, with Penultimate, that Noteshelf is definitely the my wrist resting on the page must-have app for those who would cause the iPad to flick want to use their iPad like a EII tax-relief incentive between screens, mark the page paper note-taking pad – without The Finance Act 2011 introduced where evidence is provided that the or bring up different menus. having to compromise on the Employment and Investment investee company used the capital This is not a problem at all with functionality or form. Incentive (EII) scheme, writes Brian raised for expenditure on research Allen of LK Shields. This replaced the and development. Business Expansion Scheme (BES) The Finance Act 2013 introduced originally introduced in 1984. two changes to the EII scheme: The EII scheme is a tax-relief 1) The extension of the deadline for incentive that provides tax relief to investments under the scheme private investors for investment in to 31 December 2020 (subject certain corporate trades. The to a commencement order by the scheme broadly operates by Minister for Finance), and allowing investments (up to a 2) The extension of the scope of the maximum of €150,000 per annum) scheme to companies involved in for new ordinary shares in qualifying the operation and management companies to qualify as a tax of hotels, guest houses, self- deduction against the investor’s catering accommodation or taxable income. comparable establishments or It offers investors an initial 30% managing property used for such tax relief on their total income. trading activities, provided that A further 11% tax relief will be the company qualifies as a tourist available to investors where it has trading undertaking and has prior been proved that employment levels approval from Fáilte Ireland. (This have increased at the investee has effect in respect of shares company at the end of the holding issued on or after 1 January period (three-year minimum) or 2013). 10 representation Law Society Gazette www.gazette.ie Aug/Sept 2013 news from the law society’s committees and task forces Assisted Decision-Making (Capacity) Bill 2013 PROBATE, ADMINISTRATION AND TRUSTS

Mary Condell (chair of Solicitors for Rights of Persons with Disabilities, to of the law in relation to decision- the Elderly) and Patricia Rickard give effect to the Hague Convention making capacity. It enshrines Clarke (former commissioner of the on the International Protection of the functional test for capacity, Law Reform Commission) write: Adults, and to ensure that there setting out guiding principles for The Law Society, in Currently, the approach to is compliance with constitutional the assessment of capacity that conjunction with Solicitors capacity in Ireland, reflected and human rights standards. must be invoked by every person for the Elderly and supported in an archaic wards-of-court The Scheme of the Mental who makes any intervention in by STEP, have organised a system based on legislation Capacity Bill (as it was then relation to the decision-making conference to take place on dating from 1871, is the status or entitled and which was based on of others, whether that is in a Thursday 12 September. The ‘all-or-nothing’ approach based the bill suggested by the LRC) professional or a private context. content of the new bill will be on a medical assessment of the was published in 2008, but the It creates no less than five outlined, as well as practical individual. detailed bill has only now been categories of ‘interveners’ with tips for using the functional This, however, has not introduced. Meanwhile, it has regard to decision-making, and approach. Attendees will also reflected the research by the been renamed. Its title is now changes the law in relation to have the unique opportunity Law Reform Commission and the Assisted Decision-Making enduring powers of attorney, as of hearing from renowned discussion that has taken place (Capacity) Bill 2013, presumably well as the Mental Health Acts. British experts, where similar since 2003 about updating the as a result of the Joint Oireachtas It is new law that it is legislation has been in force law relating to capacity – not Committee hearings from imperative for every legal and since the coming into operation least so that Ireland can comply interested parties on the bill, other professional dealing with of the Mental Capacity Act 2005, with its international obligations, which took place in early 2012. vulnerable adults to know, about the potential pitfalls and to ratify the UN Convention on the The bill is a complete overhaul understand and put into practice. difficulties for practitioners.

Alternative ADR seminar New VHI undertaking ALTERNATIVE DISPUTE RESOLUTION committee and protocol The ADR Committee is hosting used to determine an array of LITIGATION committee a seminar entitled ‘Alternative dispute areas in England and Alternative Dispute Resolution’ Wales. James Farrell and James The Litigation Committee has providing undertakings, as the on Friday 11 October 2013. This O’Donoghue will address the negotiated a new protocol with usual principles apply to all seminar will provide a practical following areas in relation to VHI Healthcare in respect of undertakings: exploration of two valuable expert determination: solicitors’ undertakings to the • A solicitor should be satisfied but, to date, less commonly • The advantages and VHI, with an implementation that he/she is properly used ADR tools in Ireland, disadvantages of using expert date of 1 August 2013. authorised to give the namely, adjudication and expert determination compared with It is the view of the committee undertaking and will be in a determination. other forms of ADR, that the new protocol is workable position to comply with the Experienced practitioners Tony • Appropriate use, and is in the client’s interest. undertaking, Bingham QC, James Farrell, • Drafting an effective expert The new protocol provides for • If a client requests that Siobhan Kenny and James determination dispute an increased fee of €450 (inclusive the solicitor gives such O’Donoghue will outline the resolution clause, of VAT) to be paid by VHI. undertaking, the solicitor characteristics of each process and • Analysis of the attitude of the The new undertaking should explain to the client the share examples of how they have courts to expert determination, represents an improvement full effect of the undertaking, effectively deployed them. With and because: and adjudication set to become the • Cost issues. • Solicitors will be able to • If a practitioner decides, principal method of determination conclude settlements in after due consideration and in construction contracts, this The venue is Blackhall Place, instances where previously discussion with the client, seminar is timely for practitioners. Dublin 7, on Friday 11 October VHI’s prior approval was that he/she will provide an Tony Bingham will speak of his 2013 from 1.30pm – 5.30pm. required, and undertaking, he/she should experiences as an adjudicator, Fee: €95 (members), €120 (non- • Where a case is settled for be aware of the extent of the while Siobhan Kenny will explain members). CPD hours: 3.5 hours’ a percentage of full value, personal responsibility that this the adjudication provisions in the professional development the payment to VHI of that may entail. Construction Contracts Act 2013, For further information or to percentage of the amount due section by section. book your place, please contact to VHI satisfies the terms of the The new protocol and Expert determination has Colleen Farrell, secretary, ADR undertaking. undertaking can be accessed on some similar characteristics Committee, Law Society of the Litigation Committee’s area to adjudication – but also Ireland, Blackhall Place, Dublin Members are urged to carefully of the Law Society’s website at important differences. It is now 7; email: [email protected]. read the new protocol before www.lawsociety.ie. CAN WE TALK?

There is nothingLaw Societyquite Gazette like www.gazette.ie talking Aug/Sept 2013to someone who has been there.representati LawCareon 11 has over Health Support and 100 volunteers who, collectively, have dealt with a broad variety of personal problems Advice for Lawyers Email filing and the Patents Office Companies including alcoholism,INTELLECTUAL PROPERTY addiction, LAW committee stress and depression. If Billyou 2012 or someone you know 1800 991801 The Intellectual Property Law 124739 opposition…’ The subject line BUSINESS LAW committee needs help thenCommittee call has us received in the complete• BIC: ULSBIE2D. confidence. should not be left blank. Any www.lawcare.ie following information from the emails that contain a blank The Companies Bill 2012 was Patents Office. Notices of opposition should subject line will be delayed published on 21 December The Patents Office is prepared not be filed without including in by the office’s mail system. 2012. The bill consolidates to accommodate the filing the covering email details of the Properly completing the subject the existing Companies Acts and of notices of opposition and making of the payment by EFT or line will also facilitate the email introduces a number of reforms. statement of grounds by email. such other method of electronic being directed to the right It consists of 25 parts and, The requirement in the rules that payment that the office may section in the office. according to the Minister for the notice of opposition has to be accept in the future. · When sending attachments, Jobs, Enterprise and Innovation, CAN WE TALK? accompanied by the prescribed fee please note that there is a is the largest bill in the history of €60 can be accommodated by Guidelines 5MB maximum size limit on of the State. There is nothing quite like talking to someone who has been there. LawCare has over informing the office in the email Note should be taken of the any email with attachments. The Business Law Committee Health Support and used to file the notice that the fee following guidelines regarding Any email with a size greater carried out an initial review of 100 volunteers who, collectively, have dealt with a broad variety of personal problems Advice for Lawyers has been paid by electronic funds email correspondence – that this will be delayed by the the bill to identify any anomalies including alcoholism, addiction, stress and depression. If you or someone you know transfer (EFT). The date of the particularly with regard to office’s mail system. Please use in existing1800 legislation 991801 that have needs help then call us in complete confidence. payment, together with sufficient last-minute filings of notices of file compression software (for simply beenwww.lawcare.ie replicated in the details and a payment reference opposition: example, WinZip), to reduce bill. The committee accordingly number that can be used by the · Email correspondence should the size of the attachment. made a submission to the office to identify the fee payment, be addressed in the first · When paying fees by EFT, it Department of Jobs, Enterprise should be included in the email. instance to the office mail box is essential to include, in the and Innovation in January 2013. The fee can be paid by EFT to (that is: [email protected]) payment instructions, brief The committee has since the office’s bank account at: and not to an individual. details of what the payment is analysed the provisions of • LIVINGUlster Bank, 27 High Street, · The senderON should ensure YOUR for and a payment reference KNEES? the bill in further detail and Kilkenny that the subject line contains number, which will allow the made another submission to • A/C number: 11124739 information regarding office to associate the payment the department in June 2013. CAN WE TALK? • Sort code: 985880 the nature of theCAN email, WE TALK?with the correct case that has Copies of these submissions can • IBAN: IE05ULSB98588011 for example, ‘Notice of been submitted by email. be found on the Business Law There is nothing quite like talking to someone who has been there. LawCare has over Alcoholism, chemical dependence,There is nothing quite like talking stress to someone and who has been emotional there. LawCare hasCommittee’s over pro Healthblems webpage Support at and www. are100 volunteers progressive who, collectively, have dealt with a broad variety of personal problems Health Support and Advice for Lawyers Health Support and 100 volunteers who, collectively, have dealt with a broad variety of personal problemslawsociety.ie. The committee including alcoholism, addiction, stress and depression. If you or someone you know Advice for Lawyers CAN WE TALK? 1800 991801 Advice for Lawyers including alcoholism, addiction, stress and depression. If you or someone youwill know continue to monitor the needs help then call us in complete confidence. illnesses. The ‘Meetearlier1800 991801 your they Colleagues are detected Week’ and in treatedSeptember the easier thewww.lawcare.ie road to recovery. If needsThere help isthen nothing call usquite in complete like talking confidence. to someone who has been there. LawCare has over LIVING ON YOUR KNEES? www.lawcare.ie progress of the bill through the GUIDANCE ANDHealth ETHICS Support and committee 100 volunteers who, collectively, have dealt with a broad variety of personal problemsDáil and will keep the profession 1800 991801 Advice for Lawyers including alcoholism, addiction, stress and depression. If you or someone you know you or someoneThe wonderfulyou1800 weatherknow 991801 during needssuggests thathelp the event thenbe kept callwebsite usat www.lawsociety.ie. in compl informedete confidence. about developments. needs help then call us in complete confidence. Health Support and Alcoholism, chemical dependence, stress and emotional problems are progressive the summer cheeredwww.lawcare.ie us all up! As local: “Organise a group in your To make a search on the The chairman of the www.lawcare.ie Advice for Lawyers we begin the new term, why not particular district or, if you are in homepage: committee delivered a illnesses. The earlier they are detected and treated the easier the road to recovery. If share some of the good mood the city, in the suburbs near you.” • Select the ‘find a firm’ tab at presentation1800 on 991801 the bill at the you or someone you know needs help then call us in complete confidence. with your colleagues by getting He encourages solicitors to make the top of the page, Law Society’swww.lawcare.ie annual conference. involved in a local ‘Meet your the event as ambitious or as simple • Use only the second search The committee also held a Colleagues’ event? This year, the as people wish. “A few solicitors box ‘location’ on the page that seminar in collaboration with Guidance and Ethics Committee inviting a new colleague to join opens, the Law Society’s Professional LIVING ON YOUR KNEES? is promoting a ‘Meet your themLIVING could be perfect,” ON he said. YOUR KNEES? Training team on 17 May 2013, • Enter your exact criteria, Colleagues Week’ during the week SomeLIVING groups might like ON to YOURfor example, KNEES? ‘Dublin 14’ or with the aimHealth of Support demystifying and theAlcoholism, chemical dependence, stress and emotional problems are progressive Health Support and Alcoholism, chemical dependence, stress and emotional problems are progressive nominate a charity of their choice Advice for Lawyers beginningAdvice for15 LawyersSeptember. Theillnesses. idea The earlier they are detected and treated‘Drogheda’. the easier the road to recovery.bill. FurtherIf training events willillnesses. The earlier they are detected and treated the easier the road to recovery. If is to hold anHealth event Support on any and day thatAlcoholism, to benefit chemical from the dependence, occasion. This stress and emotional problems are progressivebe held closer1800 to 991801 enactment of you or someone you know needs help then call us in complete confidence. 1800 991801Advice for Lawyers you orillnesses. someone The you earlier know they needs are detectedhelp then and call treated us in th comple easierete the confidence. road to recovery. If week.www.lawcare.ie Some days might suit better would also encourage colleagues You will be presented with a list the new legislation.www.lawcare.ie 1800 991801 you or someone you know needs help then call us in complete confidence. than others, locally,www.lawcare.ie and might give to support the event. of the firms or other bodies in The committee will also an opportunity of tying in with which solicitors are employed. prepare articles/practice notes other activities in the area. Finding your colleagues It will then be an easy matter for the Gazette at this stage, Brendan Dillon, chairman of the Colleagues in your area can to get the names of individual outlining the key aspects of the Guidance and Ethics Committee, be located on the Law Society solicitors. legislation. G STRESSED?

STRESSED?STRESSED? Health Support and Are you balancingSTRESSED? family and career? Struggling to reach unattainable targets? STRESSED? Advice for Lawyers Working until late at night just to keep abreast of everything? LawCare can help you Are Are you you balancing balancing family family and and career? career? Struggling Struggling to to reach reach unat unattainabletainable targets? targets? Health SupportHealth andSupport and Health Support and Are you balancing family and career? Struggling to reach unattainable targets? Advice forAdvice Lawyers for Lawyers Working Working until until late late at nightat night just just to to keep keep abreastabreast ofof evereverything?ything? LawCare LawCare can can help help you you1800 Advice for991801 Lawyers Workinghelp until yourself. late at night We just offerto keep aabreast free, of independent everything? LawCare and can completel help you y confidential service. 1800 991801 1800 991801 help helpyourself. yourself. We We offer offer a free,a free, independent independent and completely yconfidential confidential service. service. www.lawcare.ie1800 991801 help yourself. We offer a free, independent and completely confidential service. www.lawcare.iewww.lawcare.ie Health Support and Are you balancing family and career? Struggling to reachwww.lawcare.ie unat tainable targets? Advice for Lawyers Working until late at night just to keep abreast of everything? LawCare can help you 1800 991801 help yourself. We offer a free, independent and completely confidential service. NEED A DRINK? www.lawcare.ie NEED A DRINK? If the stress is getting to you, it’s understandable that y ou want to unwind. But alcohol NEED A DRINK? Health Support and can create many more problems than it solves. If you feel you need to cut down, or if Advice for LawyersIf the stress is getting to you, it’s understandable that y ou want to unwind. But alcohol people are annoying you by complaining that you drink too much, why not call our free Health Support1800 and 991801 can create many more problems than it solves. If you feel you need to cut down, or if If the stress is getting to you, it’s understandableNEED that y ou want A to unwind. DRINK? But alcohol Advice forwww.lawcare.ie Lawyers confidential helpline? Health Support and can create many more problems than it solves. If you feel you need to cut down, or if people are annoying you by complaining that you drink too much, why not call our free Advice for Lawyers 1800 991801 people are annoying you by complaining that you drink too much, why not call our free www.lawcare.ie confidential helpline? 1800 991801 www.lawcare.ie confidentialIf the helpline? stress is getting to you, it’s understandable that y ou want to unwind. But alcohol Health Support and can create many more problems than it solves. If you feel you need to cut down, or if Advice for Lawyers 1800 991801 people are annoying you by complaining that you drink too much, why not call our free www.lawcare.ie confidential helpline? NEED A DRINK?

If the stress is getting to you, it’s understandable that y ou want to unwind. But alcohol Health Support and can create many more problems than it solves. If you feel you need to cut down, or if Advice for Lawyers 1800 991801 people are annoying you by complaining that you drink too much, why not call our free www.lawcare.ie confidential helpline? 12 news feature Law Society Gazette www.gazette.ie Aug/Sept 2013

family law: a different view

The Department of Justice held a consultative seminar on reforming the system of justice for family law in early July, where the keynote speakers were the Minister for Justice and Judge Judith Ryan of Australia. Keith Walsh reports

inister for Justice Alan Shatter outlined his the importance of creating awareness for court users of vision for a new structure for the family courts alternative dispute resolution mechanisms. ADR is not a Mat a consultative seminar organised by the panacea, however, as evidenced by the fact that sections 5 Department of Justice at Blackhall Place on 6 July 2013. and 6 of the 1995 act and section 20 of the Guardianship of Solicitors, barristers, court officials, court users and their Infants Act (which deal with the provision of information representatives packed the Presidents’ Hall to contribute and advice regarding ADR) are deemed not to be working to an informed and interactive discussion. in practice. Facilities were needed in the Keith Walsh is a Reform of the family courts is overdue, a courts to be able to refer litigants to anger- member of the Law point emphasised by Minister Shatter when “One of the management courses. Skilled people were Society’s Family he quoted the Law Reform Commission’s potential dangers required to deal with parenting issues and to Law Committee and 1996 report: “The courts are buckling monitor access. practises in Dublin under the pressure of business. Long family of relying on Gerry Durcan SC saw a lack of coherence law lists, delays, brief hearings, inadequate the ‘narrow in the reasons that govern which family law facilities and over-hasty settlements are too court has jurisdiction in certain cases. For often the order of the day ... Judges dealing perspectives’ of example, child abduction must be dealt with with family disputes do not always have the specialist judges by the High Court, while childcare cases necessary experience or aptitude. There is involving the taking of children into the no proper system of case management. Cases is the recent custody of the HSE are dealt with in the are heard behind closed doors, protecting the decision of the District Court. This division did not make privacy of family members but offering little English Supreme sense, he argued. appreciation, criticism, or even realisation, He pointed out that practitioners who of what is happening within the system. Court (re: Prest applied to the Circuit or High Courts in The courts lack adequate support services, v Petrodel Dublin were likely to be heard by a judge who in particular, the independent diagnostic was familiar with family law matters, while the services so important in resolving child- Resources 2013 situation was very different outside the capital. related issues.” 3 WLR), which Minister Shatter pointed out that the The Australian experience situation had not greatly improved since was a good Judge Judith Ryan of the Family Court of 1996. example of the Australia was in favour of a model similar Solicitor Muriel Walls called for delegates to that in place in Australia – namely a two- to be honest about the current system. While family courts court approach, with a lower and a higher case progression and practice directions were applying rules court (see ‘From a land down under’, June a start to reforming the system, they did not Gazette, p36). More complex cases are dealt go far enough. Radical change to the system inconsistent with with in the higher court, and less complex was required, she said. the principles ones in the lower. A great deal of support of law in other is provided to family law courts by way of The voice of the child specialist mediators and counsellors. Judge Michael White pointed out that, while areas” A large number of social workers are on specialist reports on child welfare could be the court staff, and expert evidence is readily ordered by judges in the Circuit and High Courts in available from family consultants. private law proceedings, District Court judges had not Specialist judges are appointed to Australia’s family law yet been granted the power to order reports, except for courts, which adopt a less adversarial approach and employ public law proceedings where a supervision or care order a specific case-management system. Judge Ryan viewed the was being contemplated. In Northern Ireland, Scotland, input of the judge and family law consultants as important and England and Wales, judges could order reports during in progressing cases. proceedings for any reason related to the welfare of the In order to avoid cases moving too much between the child. higher and lower courts, Judge Ryan suggested the need for As chair of the Family Law Development Committee clear legislation delineating the jurisdiction of each court of the board of the Courts Service, Judge White stressed – but it was important to ensure that a case that appeared Law Society Gazette www.gazette.ie Aug/Sept 2013 news feature 13 family law: a different view

“Realistically, without ancillary services being available to the courts, such as family law to be straightforward, but which for a less adversarial approach ensure that court facilities are also subsequently became complex, by the lower court when dealing orders could be made. consultants to proposed to be could be moved to the higher with guardianship, custody The higher court prepare reports, located in the court. and access disputes, childcare would have all the new family law and protection matters. The jurisdiction of the social workers, courthouses. Minister’s proposals minister wondered whether current family Circuit mediators and The Minister for Justice said that there shouldn’t be a greater and High Courts. those skilled in Proposals not his objective was to establish “a emphasis on judge-led pre- Appeals from the lower set in stone dedicated and integrated family trial conferencing, the training court would be heard ADR, reform will The minister court structure that is properly of family law judges in family by the higher court, not easily flow.” said that it was resourced to meet the particular mediation, and the use by judges or possibly by the new his fervent needs of people at a vulnerable of mediation skills to assist in Court of Appeal. The hope to hold time in their lives”. the resolution of issues at judges’ minister wished to ensure that a constitutional referendum in The new structure of the conferences. the specialist ethos of the family 2014 and to have the legislation family courts would consist of The lower court would possess courts would be maintained in place to implement reforms by a lower family court of limited a similar jurisdiction to the where cases were appealed from the end of 2014. jurisdiction, and a higher current family District Court. the higher court to the new The final word goes to Muriel court of unlimited jurisdiction. It could also deal with matters Court of Appeal. Walls, however: “We have had Both courts would be staffed on consent, where no dispute The new family courts are enough talk since 1996 – now we by specialist judges. The arose relating to the upbringing proposed to be located separately need action on reform.” G minister felt strongly that the and best interests of children, from current venues, with “temperament and common where financial matters had been sufficient rooms for private All the papers referred to in sense of judges sitting in the new agreed in judicial separation or consultations, and welfare this article and delivered at the family court [would] be as crucial divorce proceeding, and where and assessment services to consultative seminar are available as their fund of legal knowledge”. the only evidence required support public and private at www.justice.ie/en/JELR/Pages/ He proposed making provision would be the formalities to law proceedings. Mediation WP13000281 14 human rights watch Law Society Gazette www.gazette.ie Aug/Sept 2013

supreme court dismisses assisted suicide appeal

On 29 April 2013, the Supreme Court dismissed the appeal in the case of Marie Fleming v Ireland and the Attorney General. Joyce Mortimer examines the judgment

n 29 April 2013, the disabled as to be unable to complete Article 40.3.2 provides: “The State Supreme Court dismissed the act of suicide without assistance.” shall, in particular, by its law protect as Othe appeal in the case In its submission, the IHRC best it may from unjust attack and, in of Marie Fleming v Ireland and explored the implications of the right the case of injustice done, vindicate the the Attorney General. The central to personal autonomy and dignity life, person, good name and property question was whether the plaintiff, protected under article 40.3.2 of the rights of every citizen.” who was in the final stages of Constitution, and the right to equality The court stated that the appellant Joyce Mortimer is multiple sclerosis and physically protected under article 40.1 of the had sought support for her case in the the Law Society’s incapable of ending her own life, had Constitution, as they affect the right to express right to life. The court stated, human rights a right to assisted suicide. life under article 40.3.2 however, that the right executive The case was heard in the High – which is sought to be to life does not import Court in November 2012. The vindicated through the “The court stated a right to die. plaintiff claimed that the blanket blanket criminalisation Commenting on the ban on assisted suicide breached her of assisted suicide that, while suicide complexity of the case constitutional rights and her rights contained in section had ceased to at hand and the difficult under the European Convention on 2(4) of the Criminal questions of policy, Human Rights. The plaintiff claimed Law (Suicide) Act 1993 – be a crime, ‘the the court stated: “It that section 2(2) of the Criminal Law in circumstances where fact that it has does not … necessarily (Suicide) Act 1993 was incompatible suicide itself is no so ceased does follow that the State with the Constitution. longer criminalised. has an obligation to The High Court rejected her claim, not establish a use all of the means at finding that it was not possible to relax Establishing a constitutional its disposal to seek to the ban on assisted suicide without constitutional right prevent a person in a profound consequences for the law The Supreme Court right’” position such as that in general and that, ultimately, the considered the ‘right of the appellant from Oireachtas was justified in keeping an to commit suicide’, as put forward bringing her own life to an end.” absolute ban in place. The plaintiff by Ms Fleming. The court stated The court held that the difficulty appealed to the Supreme Court. that, while suicide had ceased to be a with this case was that it might be crime, “the fact that it has so ceased impossible to consider the position of Amicus curiae does not establish a constitutional the appellant without also considering Before the Supreme Court, the Irish right”. The court stated further that the position of other similarly situated Human Rights Commission (IHRC) any such right, as was argued by the (but not necessarily identically made written and oral submissions in appellant, would have to be found as situated) persons, whose right to relation to the constitutional right to part of another expressed right of an life might also have to be taken into equality as it applies to individuals in unenumerated right. The appellant, account. the circumstances of the plaintiff, and therefore, had to identify a right to Interestingly, the court left open also the right to autonomy and bodily commit suicide, a right to determine the possibility of future legislation integrity. the time and method of death, and to by the State to deal with cases such The IHRC commented: “The have assistance with the exercise of as that of the appellant, should the stark position highlighted on the facts that right, within the constitution. Oireachtas be satisfied that measures of this case is that, under Irish law, In response, the appellant put with appropriate safeguards could be suicide is not a crime, but assisted emphasis on article 40.3.1, which introduced. suicide is. This equates to a right to provides: “The State guarantees end one’s own life without fear of in its law to respect, and, as far as Right of autonomy criminal sanction in the case of an practicable, by its laws to defend and Mr Brian Murray SC, for the able-bodied person, but not in the vindicate the personal rights of the appellant, submitted that every person case of a person who is so physically citizen.” has the right of autonomy, including Law Society Gazette www.gazette.ie Aug/Sept 2013 human rights watch 15

“The court stated that the appellant had a right of self-determination equal value of each human life.” the Constitution. sought support under Irish law resulting in a right to determine The appellant also sought to The court held might continue, the timing and means of one’s own rely on the European Convention that the appellant for her case in given that the death. on Human Rights and claimed for had made a the express right Supreme Court The court held: “Thus, insofar a declaration of incompatability factual-based appears to have as the Constitution, in the rights under section 5(1) of the European argument, which to life. The court left open the it guarantees, embodies the values Convention on Human Rights is not a basis stated, however, possibility of of autonomy and dignity and Act 2003. The Supreme Court upon which a future legislation more importantly the rights in considered the case of Pretty v constitutional right that the right by the State to which they find expression, do United Kingdom in its decision- may be identified. to life does not deal with cases not extend to a right of assisted making, but ultimately dismissed It stated: “It has import a right to such as that of suicide.” the appeal seeking a declaration of not been the the appellant. The appellant sought to rely incompatability. jurisprudence of die” Unquestionably, on article 40.1, in claiming that The Supreme Court concluded the Constitution the Oireachtas she was treated unequally in that there was no constitutional that rights be identified for a would require guarantees that comparison with people who were right to commit suicide nor to limited group of persons.” measures, with appropriate able to commit suicide without arrange for the determination It is accepted that the right safeguards, would be introduced assistance. of one’s life at a time of one’s to life is a paramount human that would be compatible with The court responded: “It is choosing. The court commented right, requiring strong safeguards upholding the right-to-life difficult to succeed in an equality that it was clear that the appellant protecting any infringements on protections contained within the challenge to a law which applies to was in a most tragic situation; that right. It is open to debate, Constitution – but that might everyone without distinction, and however, the court had to find however, how long the existing well be a Pandora’s Box that it is which is based on the fundamental constitutional rights anchored in absolute ban on assisted suicide unwilling to open. G 16 viewpoint Law Society Gazette www.gazette.ie Aug/Sept 2013

stranger danger?

Over the past five years in Britain, there have been four separate insolvency and run-off issues with unrated insurers in the market. Conor Geraghty urges caution for smaller law firms who might be tempted

lthough all solicitor practices of qualified insurers increased from at that time (or, in the absence of any in Ireland were successful seven to nine. The NPW in 2010 such credit rating, a statement to that A in securing a professional was €45 million – a 50% drop from effect).” indemnity policy for their firm at 2010 to 2012. We believe this to be The Law Society is responsible for last renewal, there remains concern unsustainable in the long term. making sure that any insurer wishing in relation to some qualified insurers The main influence for these to provide PI cover to the profession in the market – and their long-term substantial drops in premium income in Ireland signs up to the minimum Conor Geraghty intentions. has been the entry of unrated terms and conditions via the QIA. is professional It is important to check an insurers to the market. In 2010, These terms do not require any indemnity specialist insurer’s rating when seeking PI UK General entered the market qualified insurer to have a financial (Ireland) at Miller insurance cover: a rating means that for the first time, writing 8% of the security rating – they simply are Insurance Services an insurance company has been premium share, with this percentage required to disclose whether they do LLP through an independent process in rising to 16% in 2011 and falling or don’t. which a rating agency has assessed its to 10% in 2012. Similarly, last year, Having spoken to a number of financial strength. Elite entered the Irish market, firms, we have discovered that there The Irish solicitors’ PI market writing a 10% share of the premium is a general assumption within the has come a long way in the last four but, more significantly, over 20% profession that, should an ‘approved’ years, with written premium for the of the firms in the country. Elite insurer become insolvent and, market fluctuating dramatically: now stand as the leading insurer for therefore, be in a position where it · 2009/10 – €42 million, the Irish profession, cannot honour claim · 2010/11 – €45 million (up 7%), covering over 400 payments, it is down · 2011/12 – €33 million (down firms. “Firms need to to the Law Society to 36%), With over 30% of ask themselves: provide compensation. · 2012/13 – €24 million (down the profession now However, the Society 37%). placed with unrated what is the price has clearly stated in insurer security, it is of peace of previous publications Other significant effects have been important to look at that “the Society is not the market exit of more than five the potential dangers mind?” responsible for policing insurers (including the SMDF, the of insuring with an the financial stability leading PI provider to the profession unrated qualified insurer compared of any insurer. The Society does not in 2009), the introduction of the with an insurer with a financial vet, approve or regulate insurers”. special purpose fund in 2012, and security rating. In other words, a Law Society- claim payment figures for some approved qualified insurer is an long-standing insurers exceeding Financial security ratings insurer, regulated by the Central hundreds of millions of euro. The two major rating agencies for Bank of Ireland, who agrees to Now, in 2012/13, over 30% of insurers are Standard & Poor’s and provide coverage in accordance with firms in the country have opted to AM Best. Under the Law Society’s the ‘minimum terms and conditions’. place their PI insurance cover with ‘minimum terms and conditions’ A direct address from Law Society an unrated insurer. or ‘qualified insurers agreement’ President James McCourt last (QIA), insurers are required to be November also went on to highlight The renewal season transparent about whether they are the function of the Insurance The 2012/13 solicitors’ renewal rated; however, the Society does Compensation Fund (ICF) and its statistics indicate a competitive not stipulate that insurers should purpose of providing a fund from market, providing firms with meet a minimum level of financial which certain liabilities of insolvent significant choice and competitive stability: “No later than ten working insurers could be met. premium terms. Overall, market days following the receipt of a fully premiums reduced by approximately completed proposal form … the Limitations of the ICF 37% from net premium written insurer shall also provide the firm Should an insurer regulated to (NPW) of €33 million in 2011 to with details of any credit rating that conduct business in Ireland become €24 million in 2012. The number it has from any credit rating agency insolvent, Irish policyholders should Law Society Gazette www.gazette.ie Aug/Sept 2013 viEwpoint 17

“The Law Society has clearly stated in previous publications, however, that it is not responsible ‘I’m Spartacus. No, wait, Batman – I’m Batman’ for policing the be able to benefit financial stability average premium insurer they are placing their followed by news in June 2013 from the ICF, of any insurer. The offered by the firm’s PII with. If an unrated that the Latvian commission had should the need rated insurers. insurer quotation is on offer withdrawn all operating licences arise. However, Society does not This statistic compared with a rated insurer of Balva, effectively putting the this compensation vet, approve or is very worrying quotation, consideration must be insurer into run-off. vehicle is subject when you consider given to what guarantees the firm Balva currently holds a 7% to certain regulate insurers” the claims that has that their insurer will be in share of solicitors’ market limitations. insurers have a position to pay claims, should premium in Britain, or over 1,300 There are various restrictions had to pay over the past five they arise. Firms need to ask firms. Depending on how matters placed on the payments that years. The premium levels are themselves: what is the price of develop, firms could potentially can be made out of the fund. unsustainable. Hopefully, what’s peace of mind? be left with no resort but to It is important to bear these happening in the British market replace their policies mid-term in mind when considering the now won’t be visited on the Irish Comparisons with Britain before renewal or, alternatively, protections that may be afforded market. What’s happening in the British drop in to the assigned risk pool to your firm and clients in the The existing premium levels market should be seriously in Britain. event of an insolvency of a and the rate at which they are looked at by Irish firms insured Over the past five years in qualified insurer. Examples of reducing annually are proving to with an unrated insurer. Albeit Britain, there have been four such restrictions include: be a significant barrier to entry a much bigger market, with an separate insolvency and run-off • A cap per claim on the of the market for potential new estimated net premium written issues with unrated insurers in the amount of any payment, rated insurers. of Stg£239 million, there are market – Quinn, Lemma, ERIC which must not exceed 65% The Law Society is parallels and warnings that can and now, more recently, Balva. of the amount due under the in a difficult position, as be drawn from Britain when It is only a matter of time before policy or €825,000, whichever competition law prevents it reviewing the Irish market. evidence of similar issues begins is the lesser, from discouraging firms to It is estimated that 30% of to appear in the Irish market. • No compensation where a purchase cover with unrated Britain’s PI market is placed with To avoid a repeat of the chaos client is a body corporate. insurers. The Central Bank unrated insurers. Ominously, of the 2010/11 renewal season, regulations allow EU-regulated in April 2013, the Solicitors’ firms should look to partner with Potential implications for entities to trade in Ireland Regulation Authority there wrote an insurer and broker they see as the profession through the ‘passport system’ to all Balva Insurance Company a long-term player in the market It is estimated that over 30% – whether they have a financial policyholders, warning them that – not those around to make a of the profession in Ireland is security rating or not. Latvia’s Financial and Capital quick profit from the profession. covered by an unrated insurer. It is up to the brokers and, Market Commission had placed Continuity is key, and a firm On average, unrated insurer more importantly, the firms in a restriction on their passport should be well informed when premium levels are estimated to question to ensure that they that prevented them from writing making the decision as to who be nearly 50% cheaper than the are fully aware of what kind of new business in Britain. This was their insurer will be. G 18 viewpoint Law Society Gazette www.gazette.ie Aug/Sept 2013

‘anachronistic’ seanad should be abolished

In response to a viewpoint piece on the future of the Seanad that was published in the July issue, Martin Lawlor argues that the Seanad has no place in a modern Ireland

ver the last number of the people’s representatives in also subject to scrutiny by the Dáil. months, a number of the person of TDs reflect the It is sometimes argued that we Martin Lawlor is Ocommentators and current composition of Irish society. should retain the Seanad because the managing partner and former members of the Seanad standard of debate in the upper house in Coghlan Kelly have come out in opposition to the Checks and balances is far greater than that of the Dáil. Solicitors, New Ross proposal to abolish the Seanad. One of the arguments being However, we have long since moved and Wexford Their argument is that the Seanad advanced against the abolition from the era of great debates and should be reformed – not abolished. of the Seanad is the doctrine of wondrous oratory. We now live in the Some propose to extend the ‘checks and balances’. However, our era of Facebook, Twitter, email, text electorate to the various panels. Seanad, because of its constitutional messaging, television, radio and live Some want an expansion of its role to lack of power, really has no checks- streaming on the internet. Rarely do provide oversight of EU legislation and-balances role. It law makers have cause – a function the Oireachtas already was not envisaged that to pause for an erudite has, pursuant to the Lisbon Treaty. it would have such a “There are no contribution. Nobody has asked or answered the role. minorities who do The fact of the fundamental question as to why we In relation to the matter is that most need Seanad Éireann or any upper power of amendment, not have a voice, decisions in Ireland house in the first place. there is doubt as to and the people’s are made by the Our current Seanad is based on what the Seanad could government of the day, the 40-member senate proposed in do if the Dáil rejected representatives which is elected by the the 1912 Home Rule Bill by the then an amendment. This in the person of Dáil and answerable government, and which was never happened in connection only to the Dáil (article enacted. It is a British proposal from with the Intoxicating TDs reflect the 28.4(i)). The Dáil a different era. Liquor Bill 1942, where composition of itself is subject to a The first Seanad in 1922 the Dáil amended a Irish society” government-whipped was constructed so as to ensure Seanad amendment majority. The Seanad “representation for groups and and, thereafter, the is also subject to a parties not then adequately Seanad disagreed with the Dáil government-whipped majority, as the represented in Dáil Éireann”. amendment. The political solution Taoiseach of the day nominates 11 This had the practical effect that arrived at was that the Seanad does members of the Seanad to guarantee a almost half of the membership of not insist on its disagreement. In majority in the Seanad. That will not the first Seanad was not Roman other words, the Seanad accepted change with any reform proposal. Catholic, and many belonged to the Dáil’s pre-eminent constitutional It might be better for us to what was called the ‘ex-Unionist’ position. Hardly an example of the concentrate our efforts on reforming community. The framers of the form of checks and balances that the whip system in the Dáil, where Free State constitution envisaged those calling for reform say are real power lies, rather than seeking to a situation where the Unionist possible with a reformed Seanad. reform an advisory body such as the majority in the North would Over half of our legislation now Seanad. ultimately be comfortable with the comes via European treaties. That The current proposal, if passed, will notion of having a say in a bicameral legislation is promulgated by the result in a unicameral chamber. These institution, such as a Seanad clearly European Commission, must be exist where there is no widely perceived designed to represent the interests of passed by the Council of Ministers, need for bicameralism, for example, a homogenous group likely to find where states have their say, and federations or special minorities to itself in a minority in a new Ireland. finally passed by the European be represented. Unicameralism is a However, no such considerations Parliament, where the citizens of feature of countries with a population apply today. There are no minorities Europe have their say through their of less than ten million and a small who do not have a voice, and representatives. Such legislation is geographical area, for example, Iceland, Law Society Gazette www.gazette.ie Aug/Sept 2013 viewpoint 19

‘anachronistic’ seanad should be abolished

“There is no need now and there never was a need for a constitutionally Denmark, Scotland and New role, so the Government could This would be toothless second not be acceptable. Zealand. No case has been made have ‘grabbed power’ long ago. complicated and What is wrong by any of the reformers as to why, A Seanad with no real mandate difficult to manage mini-Dáil in this with the current in Ireland, we peculiarly need from the electorate, and a limited in practice. country” scrutiny and where bicameralism. We do not have constitutional role, is not going For example, it is the evidence that any significant minority whose to prevent a mythical grab for presumably means it is inadequate? interests could be trampled on power. The electorate, of course, that teachers would get to vote There is no need now and by the majority. We do not have ultimately decides who stays and on the Educational Panel – but is there never was a need for a a range of social classes, ethnic who goes. that registered current teachers constitutionally toothless second or regional interests or the sub- Our Supreme Court, the and would they have to be Irish mini-Dáil in this country. We units of a federation. All of the European Parliament and the citizens? What about third-level never needed – and no case has Scandinavian countries – Norway, Council of Ministers would, and students? Would they be entitled been made for – bicameralism. Sweden, Finland, Denmark – have could, prevent such a grab for to a vote on the Educational Other countries of our size have become unicameral from the power. Most importantly, the Panel, and how does one define survived and prospered without 1970s onwards. The world has Dáil, and the electorate to whom ‘third level’? These suggestions a second chamber. There is no not collapsed and democracy has the Government is answerable, are totally impractical. need for further checks and not been trampled upon in these would prevent it – but not the Some reform proposals balances, other than those that we countries. Seanad, reformed or otherwise, envisage scrutiny by the Seanad of currently have in the form of our as it simply does not have that European legislation – something Constitution, the Supreme Court, Straw man role or power. the Oireachtas does anyway. judicial review, the Dáil and a The current abolition proposal Some reform proposals suggest Are those reformers suggesting free press. It is time to pass on has been fancifully described that the existing electorate for that this should rest solely with from this anachronistic creation as a grab for absolute power the five vocational panels be the Seanad and that the people’s of our colonial past and look to by the executive. The Seanad expanded from its current base of representatives in the Dáil should reforms where there is real power clearly has, at best, an advisory councillors to a wider electorate. have no role or say? That would – namely our Dáil. G 20 cover story Law Society Gazette www.gazette.ie Aug/Sept 2013 faceless

Fast facts

> The McKeogh case highlights the contradiction that exists where, in attempting to protect one’s identity and reputation, plaintiffs may necessarily have their identity exposed for the purposes of pursuing>> their action > the case shows that the Irish courts are very willing to grant Norwich Pharmacal orders so that anonymous internet users’ identities can be revealed Law Society Gazette www.gazette.ie Aug/Sept 2013 cover story 21 facelessthe few The McKeogh case presents an opportunity to examine how court rules have coped with developments in defamation and privacy law in the internet realm. Can maintaining anonymity ever trump the freedom to report? asks Eva Nagle

ocial networking websites have become far court action to a greater level than had they decided not more potent than merely being a means of to pursue the action in the first place. Thus, McKeogh posting photos of your holiday online. They presents an opportunity to examine whether and how can be used to create a buzz around a new well court rules relating to identification in court sit business, to organise a protest, or to assist in with developments in privacy and defamation law in the some amateur detective work – which was at internet realm, and to examine whether there is ever Sthe centre of the Irish ‘internet privacy” case of McKeogh an instance where maintaining anonymity may trump Eva Nagle is a v John Doe 1 (User Name Daithii4u) and others. freedom of the press to report these cases. practising barrister It is axiomatic that these uses of social networks such and lecturer as Twitter, Facebook and YouTube have Give it back serious implications for privacy and “It is axiomatic McKeogh concerned an action for defamation law in the online world. Some defamation and breach of privacy. of the contemporary challenges to privacy that these uses of It arose from a case of mistaken law that are posed by such websites are social networks have identification of the plaintiff by an encapsulated in the case of McKeogh. anonymous YouTube user with the In his decision on the plaintiff’s serious implications pseudonym ‘Daithi4U’. The user application to restrain media reporting for privacy and wrongly identified the plaintiff as the of the case, Mr Justice Peart commented person in a video posted to YouTube that that McKeogh had caused a phalanx of defamation law in depicted a young man evading paying “at least a dozen lawyers” to engage the online world” a taxi fare in Dublin in November in “a lengthy (and costly!) debate on 2011. Having brought an application weighty issues such as the right to privacy, the right to on 11 January 2012 for Norwich Pharmacal orders freedom of the press to fairly and accurately report court compelling the revelation of the identities of those who >> proceedings, and the right to an effective remedy”. had wrongfully identified and defamed the plaintiff on The case highlights the contradiction that exists in YouTube, he then made a separate, follow-up application these cases where, in attempting to protect one’s identity (heard on 22 January) to the High Court to prevent and reputation, plaintiffs may necessarily have their newspaper coverage of his case, as he believed this would identity exposed for the purposes of pursuing their perpetuate the defamation. 22 cover story Law Society Gazette www.gazette.ie Aug/Sept 2013 identity be protected. As a result, Mr Justice Peart refused the reliefs sought by the plaintiff.

Supply on demand The internet allows for users to interact and communicate anonymously or through the use of a pseudonym. There are good and bad aspects to this anonymity. As Daly sums it up, “communicating under a pseudonym or anonymously allows individuals to explore their creative side … employees to ‘blow the whistle’ on harmful corporate practices without the fear of retaliation … and consumers to search for information on sensitive topics. On the other hand, anonymity can encourage wrongdoing and, in particular, create a perception that the user cannot be held accountable for his/her actions or words. It can also be used to mask illegal behaviour”. The truth, the troll truth, and nothing but the truth In the McKeogh judgment, Mr Justice Peart commented that, when the Oireachtas This follow-up application was directed of the plaintiff himself was not a matter of enacted the Defamation Act in 2009, it against parties described in the proceedings public interest or concern. He was a private did not confer discretion on the courts as third parties, namely newspapers that citizen and was entitled to privacy under to hear such proceedings other than in had reported on the court proceedings, but Ireland’s constitutional guarantees. public and it “clearly could have done so”. which were not named defendants in the On behalf of the newspapers, it was Could a decision such as McKeogh act as a original proceedings that McKeogh had argued that they were never intended as disincentive to other potential litigants who initiated. They were not served with the the subject of the restrictive injunctive might choose not to pursue a case in order order of 11 January. orders, rather it was internet users and/ to vindicate their rights because, in doing Insofar as the orders made by Mr Justice or service providers who had published or so, they know they would be promptly Peart were binding on “any third party facilitated the publication exposed to the media glare, having notice of the making of the orders”, of the defamatory material and this might do more it was argued, on behalf of McKeogh, that were bound by such “Could a decision harm than good – or at least that the newspapers that had reported on orders. Furthermore, the such as McKeogh might ‘dull’ the protection proceedings were such “third parties” who newspapers were entitled to act as a disincentive of their good name in the had notice of the making of the orders. report on the proceedings first place? It was argued that, in naming McKeogh in a fair and accurate to other potential It must be noted that the in their reporting of the proceedings, the manner as this was in the litigants who might situation may have been newspapers had breached the terms of the public interest, and they different if McKeogh had court orders and had helped to exacerbate were under no obligation to choose not to pursue been a child. Section 45(1)(c) the defamation of the plaintiff. exercise their discretion not a case in order to of the Courts (Supplemental It should be noted that McKeogh had to name the plaintiff in their Provisions) Act 1961 not made a specific application to the court reporting as he had been vindicate their rights provides that justice may be on the earlier date for his identity not to named in the proceedings because, in doing so, administered otherwise than be disclosed in reporting of the case. On in the first place and justice in public in, among other this point, Mr Justice Peart commented must be heard in public. they know they will things, lunacy and minor that “there is something counter-intuitive be promptly exposed matters. about the idea that a person who seeks It don’t pay The plaintiff may have reliefs from the court aimed at vindicating These arguments reveal to the media glare?” been successful in his his good name, by way of damages the plaintiff’s predicament application had he been or otherwise, would seek to do so in the case. As Mr Justice Peart stated, it is able to rely on this provision and had he anonymously”. impossible to ‘unring’ the bell once it has been able to refer to the decision of Abella sounded; that is, the plaintiff had to know J in the recent Canadian cyberbullying Weight of the stone that, in taking these proceedings against case AB v Bragg Communications Inc. In Mr Justice Peart had to weigh the two sides internet users to vindicate his good name, this case, Abella J acknowledged that, of the argument that were put forward this would lead to him being identified in Canada, “the critical importance of on behalf of McKeogh and on behalf of publicly and becoming more widely known the open court principle and a free press the newspapers. Essentially, it was argued than if he had chosen not to do anything has been tenaciously embedded in the on behalf of McKeogh that, while the about trying to protect his good name. His jurisprudence”. However, she also cited newspapers are absolutely entitled to report case was not so exceptional that the court Attorney General of Nova Scotia v MacIntyre, on court proceedings in the public interest would be compelled to exercise its inherent wherein it was acknowledged that “there in a fair and accurate manner, the identity jurisdiction to order that the plaintiff’s are cases in which the protection of social Law Society Gazette www.gazette.ie Aug/Sept 2013 cover story 23 values must prevail over openness”. Here, has been unable to do so, and and the equally privacy-related question of the freedom of the press was outweighed • Whether the public interest favouring accountability for defamation and breaches by the need to protect the privacy of the disclosure outweighs the legitimate of privacy that are perpetrated online is appellant-victim of cyberbullying. interests of freedom of expression and the evolving. McKeogh presents an apt case study In her reasoning, Abella J emphasised right to privacy of the persons sought to of questions of court procedure and the right the “objectively discernable harm” that is be identified if the disclosure is ordered. to an effective remedy that are at play in caused to cyberbullied children rather than this area of the law. The case shows that the the specific harm to an individual child and Electric river pools Irish courts are very willing to grant Norwich that there was an overall public interest in While the court in McKeogh showed itself Pharmacal orders so that anonymous users’ combating this level of cyberbullying in to be willing to pierce the veil of anonymity identities can be revealed. Perhaps the courts society. She stated that “we must consider through the granting of a Norwich Pharmacal could look to the ‘objectively discernable the resulting inevitable harm to children – order, it would be interesting to see if harm’ guide as developed in the Canadian and the administration of justice – if they Irish jurisprudence might benefit from the courts in recent times as well. Wrongdoing decline to take steps to protect themselves introduction of guiding principles, such as that is perpetrated online must be pursued because of the risk of further harm from those set down in Warman in these types of without chilling the legitimate and socially public disclosure”. internet defamation/privacy cases. valuable communications that social media In his blog, Cearta, Eoin O’Dell comments The conflict between online anonymity promotes and celebrates. G that it is “not implausible that an adult victim of cyberbullying might also seek to establish that the objectively discernable Look it up harms of cyberbullying identified by Abella J apply just as much to adults as to children”. Cases: Board, the Minister for Health, the Whether or not an ‘objective discernable • AB v Bragg Communications Inc (Supreme National Drugs Advisory Board, Ireland and harm’-style test, as espoused in AB would sit Court of Canada, 27 September 2012), 2012 the Attorney General [1996] 3 IR 67 easily within Irish privacy and defamation SCC 46 • Totalise plc v Motley Fool Ltd [2001] E.H.L.R. law is up for debate. In AB, the court was • Applause Store Productions Ltd v Raphael 20 following an earlier decision, Warman v [2008] EWHC 1781 (QB); [2008] Info TLR • Warman v Wilkins-Fournier [2010] OJ no1846 Wilkins-Fournier, wherein the court set out 318 (QBD) (England) four considerations, aimed at respecting • Attorney General of Nova Scotia v MacIntyre Literature: the privacy of internet users, that should be [1982] 1 SCR 175 • Daly, Maureen (2013), ‘Is there an considered by courts in deciding whether to • B Doe and R Doe v Commissioners of Inland entitlement to anonymity? A European and order disclosure of the identities of alleged Revenue [2008] 3 IR 328 international analysis’, European Intellectual wrongdoers in the internet context: • Bryce v Barber (English High Court, Property Review (vol 35, • Whether the unknown alleged wrongdoer unreported 26 July 2010) p198) could have a reasonable expectation of • Cairns v Modi [2010] EWHC 2859 (QB) • O’Dell, Eoin (2012) ‘Fighting anonymity with anonymity in the particular circumstances, (QBD) (England) anonymity: open justice and cyberbullying’, • Whether the plaintiff has established • McKeogh v John Doe 1 (User Name Daithii4u) www.cearta.ie a prima facie case against the unknown and others [2012] IEHC 95 • Sullivan, Eugene R (2002), ‘In search of John alleged wrongdoer and is acting in good • Re Ansbacher (Cayman) Limited [2002] 2 IR Doe: piercing the veil of anonymity faith, 517, [2002] IEHC 27 on the internet’, Entertainment Law • Whether the plaintiff has taken reasonable • Roe v the Blood Transfusion Service Review (vol 13, no 1) steps to identify the anonymous party and

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Contact us at 1800 882 231 and mention “LAWSOC” for a 30-day trial. 24 intellectual property Law Society Gazette www.gazette.ie Aug/Sept 2013 Book by its cover? Does the proposal to introduce plain packaging for cigarette boxes set a precedent for the restriction of rights pertaining to validly registered intellectual property? Alistair Payne and Amy Lawless unwrap the goods

he Cabinet recently endorsed Health known logo marks or device marks that are currently used Alistair Payne is a Minister James Reilly’s proposal to on the product packaging will cease to be used in this way partner and head introduce legislation that will severely in the future. The aim of such legislation is to standardise of the intellectual restrict the use of brands on cigarette the appearance of all cigarette packs, which, according to its property group packaging. The issue at stake is whether proponents, will reduce the uptake of smoking. at Matheson in a government should To date, Australia is the only country Dublin Tbe entitled to restrict rights pertaining “The basic that has adopted plain packaging, and the to validly registered intellectual property Irish proposals follow hot on the heels of rights, such that those rights cease to principle is that that legislation. Britain and New Zealand function as intended or to be enforceable, trademark owners have recently opted to put similar proposals and risk being lost altogether. on hold for the time being, pending the Although the plain packaging proposals must either ‘use it availability of conclusive evidence to support arise in the context of the tobacco or lose it’. If marks plain packaging and the outcome of ongoing industry, brand owners and the trademark trade disputes concerning Australia, arising community are extremely concerned about are not used, then from its implementation of plain packaging. the precedential value of this legislation The Irish Government held a very short Amy Lawless they ultimately for other industries. If this proceeds, will public consultation period over the Christmas is a solicitor at it mean that the way is open for a similar cease to be holiday period in the context of the Tobacco Matheson approach in, for example, the fast-food or distinctive of the Products Directive but, to date, there has been alcohol sectors? no proper consultation – and the potential This is the first time that legislation trademark owner’s consequences for trademark owners have so having such a draconian effect has been products” far received relatively little media attention. promulgated in Ireland, and it is an issue that, in its broader context, is deserving of proper A threat to trademarks? public debate. The principal function of a trademark is to guarantee the A ‘plain packaging’ bill would require that cigarettes are origin of a product by enabling consumers to distinguish the sold in standardised packs without featuring any stylised trademark owner’s product from all others. If a trademark trademarks, logos or colours. Nearly all the packaging ceases to be distinctive of the trademark owner’s products, would comprise standardised pictorial health warnings then it ceases to fulfil this or other functions, such as and messages, and the only trademarks remaining on the guaranteeing product quality. The proposed plain packaging packaging would be the brand owner’s house and product provisions prevent a trademark owner from using any marks in very reduced plain font. This means that very well- trademarks on packaging, with the exception of bare house Law Society Gazette www.gazette.ie Aug/Sept 2013 intellectual property 25

“A range of extremely valuable brands will necessarily be rendered worthless”

and product word marks. This means that other and in the TRIPS Agreement (article 19) provide Fast facts word, logo or pictorial marks may not be used that trademarks may not be cancelled without and, over time, they will cease to be distinctive valid reasons. However, these are unlikely to > A ‘plain packaging’ bill will require that for consumers in relation to the trademark assist trademark owners, as they do not extend cigarettes are sold in standardised packs owner’s products and, ultimately, will cease to to the extraordinary situation where the use of without featuring any stylised trademarks, function as trademarks. the registered mark itself is unlawful. logos or colours The basic principle is that trademark owners The consequence of the plain packaging > This is a seismic shift in trademark law must either ‘use it or lose it’. If marks are not proposals is therefore that trademark owners that flies in the face of>> international treaty used, then they ultimately cease to be distinctive will finally lose their registered rights and obligations under the Paris Convention and of the trademark owner’s products. In order to neither will they be able to rely on being able the Agreement on Trade Related Aspects of ensure that unused marks are not left to clutter to protect the goodwill attaching to these IP Rights up the register, there are provisions in the marks, as this will dissipate through non-use. > The trademark issue has been taken up Trade Marks Act 1996 to enable their removal Overall, the effect of the proposals is broadly in affected countries by international altogether. Provisions in the act (section 51(1)a) similar to the statutory appropriation of organisations date for your diary

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Frank Glennon Ltd trading as “Glennon” and “Glennon Insurances” is regulated by the Central Bank of Ireland Law Society Gazette www.gazette.ie Aug/Sept 2013 intellectual property 27 private land by the State – but, under the plain Irish Constitution or relevant EU law requiring Convention on Human Rights guarantee the packaging proposals, there is no provision the State to receive a proprietary benefit before right to freedom of expression, which extends proposed for the payment of compensation to compensation is payable. to commercial speech. To the extent that plain affected trademark owners. As a result, a range The Irish Constitution obliges the State packaging legislation unduly restricts these of extremely valuable brands will necessarily be to protect property rights. The Charter of rights in relation to products that may otherwise rendered worthless. Fundamental Rights of the EU and the treaties be sold legally, there is a strong likelihood that it This is a seismic shift in trademark law provide similar broad protection to property will be held to be unconstitutional or in breach that flies in the face of international treaty rights. If an Irish court were to find a of the ECHR. obligations under the Paris Convention and deprivation of property rights, As a society, the bigger policy the TRIPS Agreement, quite apart from the as found by the Australian High question must be the extent to fact that, with the exception of Australia, Court, then there could be a “The Irish which we are prepared to permit there is no precedent for such a deprivation very different outcome. Constitution the State to restrict the manner and of private property rights in modern Western Compensation for deprivation extent in which legally available democracies. of property is expressly provided obliges the consumer products – which are Article 7 of the Paris Convention and article for in article 17(1) of the charter, State to protect not subject to special regulatory 15(4) of the TRIPS Agreement provide that and the Supreme Court has regimes (such as pharmaceutical registration should not be based on the nature held that compensation should property rights. products are) – should be marketed of goods. Article 19 of TRIPS provides that a be awarded in circumstances The Charter of commercially? Implicit in this registration may be cancelled for non-use unless where the exercise of property question is the right to register there exist valid reasons. However, article 19 rights is restricted. In the case Fundamental and use trademarks as product does not address cases where the use of the of Re Article 26 and Part V of Rights of the EU identifiers and communicators and mark on lawful goods is prohibited. Article 20 the Planning and Development to be able to rely on the investment of TRIPS states that “the use of a trademark Bill 1999, the Supreme Court and the treaties value of those brands. shall not be unjustifiably encumbered by special held that “a person who is provide similar While manufacturers must take requirements”. compulsorily deprived of his broad protection responsibility for communicating Accordingly, the trademark issue has been or her property in the interests appropriate information and taken up in affected countries by international of the common good should to property health warnings, should the State organisations such as INTA (International normally be fully compensated”. rights” be able to restrict fundamental Trademark Association), MARQUES Compensation payments for rights of communication and (European brand-owners’ association) and deprivation of intellectual property ownership so severely AIPPI (Association Internationale Pour La property rights in relation that they respectively cease to Propriété Intellectuelle), who are similarly to these very valuable trademarks could be have any meaning or value? Maintaining an likely to weigh into the debate in Ireland. extremely substantial and a huge drain on the appropriate balance is the essential function of public purse at a time when the Irish taxpayer a constitution and of international convention Plain packaging in Australia can least afford it. This is all quite apart from obligations. In the case of plain packaging, The equivalent plain packaging proposals any consideration as to whether the restriction there is every reason to believe that the Irish in Australia were recently challenged by a on property rights in the proposed plain Government will have a steep uphill battle on group of tobacco companies, who argued packaging bill satisfies the proportionality test its hands. G that they were entitled to compensation for under the Irish Constitution (article 43.2.2). the deprivation of their trademark rights. Authors’ note: while this article is based on research Section 51(xxxi) of the Australian Constitution Tip of the iceberg? conducted for Philip Morris International, the prohibits the acquisition of property by the There is a real concern that the current opinions expressed are our own. government without just terms. The majority proposals are just the tip of the iceberg. Could of the Australian High Court found that the plain packaging concept be used to restrict plain packaging constitutes a “deprivation” and control the sale of other products that, Look it up of property, but held that, as the state did although legal, have fallen out of favour? not receive any proprietary benefit from the Trademark owners are very concerned that, Cases: deprivation, the measures did not constitute eventually, a similar approach might be taken • British American Tobacco Australasia an acquisition of property under the particular in relation to other products, such as foods or Limited & Ors v Commonwealth of Australia wording of the Australian constitution. alcohol, with a consequentially dramatic effect [2012] HCA 30 As a consequence, the Tobacco Plain Packaging on the value of brands and on the ability of • Re Article 26 and Part V of the Planning Act came into force in Australia on 1 December brand owners to distinguish their products. and Development Bill 1999 [2000] 2 IR 2012. However, it is being challenged before In addition to the technical trademark, 321 the World Trade Organisation on the grounds international treaty, and deprivation of property that it violates the TRIPS Agreement, and also issues, there is a fundamental issue of free Legislation: in private investment treaty arbitration on commercial speech. Should the State be entitled • Agreement on Trade Related Aspects of IP the basis that it constitutes an expropriation to effectively censure any products that we Rights of valuable intellectual property rights. The consume by so severely restricting the manner • Charter of Fundamental Rights of the outcome of these challenges will undoubtedly in which they are packaged or marketed European Union influence the implementation of plain that it becomes difficult for brand owners to • Constitution of Ireland packaging legislation in other jurisdictions. communicate attributes and to differentiate • European Convention on Human Rights However, the constitutional position in their products properly, and for consumers to • Paris Convention Ireland is quite different from that in Australia. distinguish between competing alternatives? • Trade Marks Act 1996 There is no equivalent requirement under the Both the Irish Constitution and the European 28 Bannerprisoners’ rights Law Society Gazette www.gazette.ie Aug/Sept 2013 Jailhouse rock In June, a man was awarded €150,000 for injuries sustained while he was an inmate in prison. Emma Keane examines the first Irish case in which a court has held that the State can be liable for injuries caused by one inmate to another

n Creighton v Ireland and Others, Peter Creighton sued the State and Wheatfield Prison over an incident in 2003 in which he was slashed in the face and body in an unprovoked attack by a fellow inmate. Mr Creighton gave evidence about the “Creighton was attack by his fellow prisoner, who cut and slit his face from his nose and behind his ear into the scalp, then also the first Emma Keane is a I cut his stomach. He claimed the State and the prison barrister practising case in Ireland in failed to take reasonable precautions for his safety and mainly in Dublin to ensure he was not exposed to risk of injury. He also which evidence claimed the system for bringing prisoners from the cells was given by a to receive methadone was dangerous. The defendants denied the claims. prisons expert” The case came before the High Court in 2009, when Mr Creighton was awarded €40,000 by Mr Justice White, who found that there had been a failure on the part of the prison authorities in their duty of care, particularly in the light of two attacks in the previous six months. facilitated the assault, which would not have occurred if The defendants appealed the High Court decision and, the numbers had been kept to four or less. in 2010, the Supreme Court ruled that the case should The judge stated: “When there are systems or be reheard, on the basis, among other matters, that the practices in place which have obvious deficiencies and, first trial judge failed to resolve certain conflicts of fact, at the same time, clearly foreseeable risks to the safety thereby not considering the case on its merits. of prisoners, and when the evidence establishes that these systems or practices are readily remediable, it Failed duty behoves the courts to intervene. In my view, the practice On 14 June 2013, following a re-hearing before Mr of congregating large number of prisoners in Space B Justice O’Neill, Mr Creighton was awarded €100,000 for the purpose of waiting for their methadone is such for the injuries to his face and €50,000 for the injuries a practice and, in my view, the adherence to it breached to his body. The assault was described by the judge the defendants’ duty of care to the plaintiff.” as “extraordinarily vicious”. The judge ruled that the Mr Justice O’Neill also found that the defendants authorities failed in their duty by allowing more than breached their duty by failing to erect netting around 15 prisoners to congregate in an area for receipt of the perimeter yard of the prison, preventing items being methadone. He found that allowing such numbers thrown in from the outside. The judge said that, in all Law Society Gazette www.gazette.ie Aug/Sept 2013 prisoners’Banner rights 29

probability, that is where the knife used in This was the first case in Ireland in which Fast facts the attack came from. The knife used was it has been held by a court that the State described by Mr Creighton as a “kind of can be liable for injuries caused by one > In 2009, the High Court awarded Mr Stanley blade”. It was distinguished from the inmate to another. It is quite incredible Creighton €40,000, finding that there had sort of improvised weapons that could be that, despite the relatively high number of been a failure on the part of the prison made from normal materials found in prison cases taken by prisoners against the State authorities in their duty of care kitchens or bathrooms, such as a razor blade for injuries sustained in an attack while in > In June 2013, following a re-hearing, the judge ruled that the>> authorities failed melted into the end of a toothbrush. custody, Mr Creighton was the first person Mr Justice Fennelly remarked in the to be awarded damages by the High Court in their duty and awarded Mr Creighton decision of the Supreme Court: “The severity for such injuries. €100,000 for the injuries to his face and of the lacerations sustained by the plaintiff The State Claims Agency, which handles €50,000 for the injuries to his body seems at least consistent with the use of an all personal injury actions lodged against > Despite the relatively high number of cases extremely sharp blade.” No weapon was the Irish Prison Service, said it received taken by prisoners against the State for found during a search after the incident. Mr 174 claims relating to the service last year. injuries sustained in an attack while in Justice White in his judgment had referred to Creighton was also the first case in Ireland custody, Mr Creighton was the first person this as “a fact that astounds me”. in which evidence was given by a prisons to be awarded damages by the High Court Winner Outstanding Most Innovative Use Achievement of Technology Networks & Groups 2013 Irish Institute 2013 Irish Institute of Training & of Training & Development (IITD) Development (IITD) Awards Awards

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LSPT ad Gazette Sept 2013.indd 1 13/08/2013 16:23 Law Society Gazette www.gazette.ie Aug/Sept 2013 prisoners’ rights 31

the duty of care

In Casey v Governor of Midlands Prison and recognise the constitutional rights of prisoners Others, Ms Justice Irvine helpfully summarised and their dignity as human beings on the the principles relating to the duty of care owed other hand (Bates v Minister for Justice & Ors by prison authorities: [1998] 2 IR). “(i) Prison authorities are required to take “(iii) In determining what is an appropriate all reasonable steps and reasonable care not to standard of care, regard should be had to expose prisoners to a risk of damage or injury, the hardship that any proposed system might but the law does not expect the authorities impose on prisoners and whether any such to guarantee that prisoners do not suffer system would place an excessive burden upon injury during the course of their imprisonment the prison authorities (Bates v Minister for (Muldoon v Ireland [1988] ILRM 367). Justice & Ors [1998] 2 IR). “(ii) The duty of care owed by prison “(iv) Cases of assault upon prisoners whilst The plaintiff’s case, however, was dismissed authorities to its prisoners must be tested in custody, in general, are likely to be decided in both the High Court and the Supreme in the context of the balance to be struck upon by reference to what should have been Court. between the need to preserve security and anticipated by their custodians (Bates v safety on the one hand, and their obligation to Minister for Justice & Ors [1998] 2 IR 81).” Landmark case Creighton heralds a significant landmark in the pursuit of prisoners’ rights. It is expert. Mr Outram, a retired prison a history of bad behaviour. A bucket of presumed that many cases claiming damages governor from Britain gave expert evidence scalding water was thrown over the plaintiff for assaults by fellow prisoners in custody in the case for Mr Creighton. by Flynn, who had six years previously will now be brought by prisoners against also attacked another prisoner with boiling the State. It remains to be seen, however, Failed cases water. Mr Justice O’Donovan remarked whether many or any of these claims will All previous cases involving prisoners suing that he did not think that because six years succeed. the State for injuries inflicted by other previously, “when he was only 16 years of It is expected that the absolute necessity prisoners have failed for varying reasons. age”, Flynn had attacked another prisoner of evidence by prison experts will continue For example, Muldoon v Ireland with boiling water that “it to be recognised and that they will be involved a plaintiff who was was incumbent on the prison frequently used in these cases. It is hoped serving a prison sentence in “Creighton authorities to deny him that Creighton has put an end to the blanket Arbour Hill. While taking heralds a access to hot water”. The failure of such cases against the State and a break in the recreation judge stated: “To punish an that other meritorious cases will now yard, he was attacked by significant adult prisoner in that way succeed. G another prisoner. The case landmark in for an offence which he was withdrawn from the had committed when only jury, President Hamilton the pursuit a boy would, in my view, be Look it up holding that, while the prison of prisoners’ grossly excessive.” authorities were required to The assault in Bates v rights. It is Cases: take all reasonable steps and Minister for Justice involved • Bolger v Governor of Mountjoy Prison reasonable care not to expose presumed that an appalling combination of [1997] IEHC 172 (12 November 1997) any of the prisoners to a risk scalding, hitting with a heavy many cases will • Boyd and Boyd v Ireland [1993] WJSC-HC of damage or injury, the law object, and cutting with a 1580 does not expect the authorities now be brought blade. The high security • Breen v Governor of Wheatfield Prison “to guarantee that prisoners by prisoners prisoners in question were [2008] IEHC 123 do not suffer injury during the released from their cells • Breen v Ireland [2004] 4 IR 12 course of their imprisonment”. against the State, for breakfast. They were • Casey v The Governor of Midlands Prison In Kavanagh v Governor of claiming damages permitted to make their own and Others [2009] IEHC 466 Arbour Hill Prison, the plaintiff tea. The aggressor in Bates • Creighton v Ireland and Others [2009] was stabbed in the face by for assaults by filled a jug with hot water IEHC 257; [2010] IESC 50; High Court, another prisoner when walking fellow prisoners from the boiler, entered the 14 June 2013 from the recreation hall to plaintiff’s cell, threw the in custody” • Howe v Governor of Mountjoy Prison his cell. Mr Justice Morris hot liquid into the plaintiff’s [2006] IEHC 394 rejected the plaintiff’s claim, face, and carried out the rest • Kavanagh v Governor of Arbour Hill Prison noting that the inmates were “to a very of his attack. Evidence was given by the [1993] WJSC-HC 2336 large extent sexual offenders”, the prison plaintiff in relation to delay by the prison • Muldoon v Ireland [1988] ILRM 367 did not cater “for subversives or terrorist officers in entering his cell. The officers’ • Sage v The Minister for Justice and Others prisoners” and, broadly, the prisoners were evidence in relation to this conflicted with [2011] IEHC 84 “settled, long-term prisoners”. The judge that of the plaintiff. In relation to this, Mr held, therefore, that the system of searching Justice Murphy, giving the judgment for Literature: the prisoners was appropriate to the kind of the Supreme Court, stated: “It is, however, Binchy, William (2009), ‘Prison authorities, prisoner accommodated in Arbour Hill. significant to note that the prison officers attacks on prisoners and the duty of care’, In Bolger v Governor of Mountjoy Prison, were not cross-examined in relation to the 3(4) Quarterly Review of Tort Law 28 the attacking prisoner, named Flynn, had evidence which they gave in this regard.” 32 practice management Law Society Gazette www.gazette.ie Aug/Sept 2013 Shape of things to come

In the first of two articles, David Rowe looks at how the Irish legal market has changed over the past five years – and predicts the shape of things to come

here is little doubt that the past five years • Medium-sized firms with a broad presence in all have seen large changes for Irish law practice areas, and firms in terms of how they do business, • Larger firms driven by commercial work. their profit levels, and how they are managed. The most dramatic changes Commentary on the financial health of the market as a have been the boom-to-bust economy, whole is now largely redundant, due to firms fitting into Tprofessional indemnity insurance issues, the specific market types. David Rowe is withdrawal of credit facilities by the banks, managing director the high level of personal indebtedness “The biggest The little things of Outsource, a following property acquisitions, and The biggest changes over the period have company that clients increasingly demanding more for changes over been in the smaller practice sector. For provides practice less – coupled with transactions taking the period have most, these fall into the one-to-four solicitor management longer and the resultant pressure on been in the category. Turnover may well be down 50% and financial cash flow. For many firms, it has been an to 60% from peak. The Law Society’s management extremely tough period and, as we review smaller practice Annual Report 2011/12 shows that the vast support to Irish it now in 2013, the most positive aspect of sector. For most, majority of practices in the country fall into law firms that period for many is that it appears to this category. The reduction in turnover is be coming to an end. these fall into largely due to the fall-off in litigation work This period has also seen many changes the one-to-four due to the introduction of PIAB in 2004, in law firms – some visible and some less which was then replaced by boom-level so. One of the more discernable changes is solicitor category. conveyancing volumes from 2004 to 2008, that the profession now seems to operate Turnover may well which subsequently nosedived during 2009. in distinct layers, with the largest firms For most private client firms, personal appearing to be in a completely different be down 50% to injury litigation and probate has carried trading world than smaller practices. 60% from peak” them through the last number of years, with Broadly speaking, we can break down evidence of improving conveyancing volumes firms into the following ‘market’ types: more recently, albeit at low pricing. • Private client firms, Financial distress and feelings of despair are widespread • Private client firms with a number of niche-value among small-practice practitioners. The challenge has been practice areas, to make a living – profit above a basic salary becoming • Medium-sized firms concentrating on a number of increasingly rare. However, a sizeable number of practices different niches, have bucked this trend. Law Society Gazette www.gazette.ie Aug/Sept 2013 practice management 33 Shape

Fast facts

> the slow-down of the last five years has had visibly different effects on different parts of the market > one of the more discernable changes is that the profession now seems to operate in distinct layers, with>> the largest firms appearing to be in a completely different trading world than smaller practices > there is now a world of difference between the challenges faced in the larger firms and those of the sole practitioner lawsociety 01/01/1970 01:02 Page 1

ANNUAL LAW FIRM PROFITABILITY & PRACTICE MANAGEMENT CONFERENCE Building for the Future • Are we seeing green shoots for Irish law firms? • Profitability - how do you compare? • Mergers - how they can work? • Buying or selling a firm • How smaller firms can survive - alternate business models • Where are salary levels and are they changing? • Negotiating the PII Renewal • Rebuilding Banking Relationships • Managing cashflow successfully - the lifeblood of a business Key Note Speaker: David Rowe - Managing Director, Outsource Speakers: John Brennan - Director, O’Leary Insurances Donal Maher - Director, Outsource AIB - Regional Business Banking Representative €90 per delegate 2 delegates from the same firm €150 3 delegates from the same firm €200 CPD Credit – 4 hours (3 Management &1 Regulatory) Venues & Dates Dublin - The Davenport Hotel - September 24th & October 8th, 9am to 1pm Cork - The Clarion Hotel - September 25th, 9am to 1pm Limerick - The Savoy Hotel - September 26th, 9am to 1pm Galway - The Courthouse - September 26th, 2pm to 6pm Letterkenny - The Radisson Hotel - September 27th, 2pm to 6pm Kilkenny - Hotel Kilkenny - October 1st, 9am to 1pm In association with local Bar Associations To book please email: [email protected] or telephone: 01 6788490

sponsored by Law Society Gazette www.gazette.ie Aug/Sept 2013 practice management 35 They tend to: as well as precedents and know-how. While this migrate to smaller practices. • Be general practices that also specialise in a was financially challenging (since it was done • Transactional work will recover steadily. specific legal field(s), when turnover and profitability were falling), • Different business structures will emerge. • Have a reputation of getting results for the firms that made the investment are now The traditional, stand-alone, single clients and for having high service standards, reaping the rewards. practice will have to be very special to be • Have invested back into their businesses, The future looks bright for mid-sized profitable. • Are well connected with other professionals firms. Larger firms are likely to become less • Pricing will improve in commercial areas and with institutions in their locality, interested in mid-sized corporate work, and and for complex tendered work. It will • Possess an intolerance of underperformance the current cut-throat pricing on tenders has remain tight in private-client areas. at all levels of staff, already begun to move upwards. Work has • Firms will see fee income improve by up • Are highly motivated – from the owners to also realigned over the period and, for many to 15% annually. support staff – and actively seek new work mid-sized firms, the challenge is to convince • Costs will begin to come under pressure, and new business. institutional clients that a medium-sized law with salaries beginning to move upwards. firm is equipped to do the work • The profession will see Stuck in the middle with you without having to rely on a a shortage of talent in For medium-sized firms, the last five years larger firm. “The profession about three years. An have posed major challenges also. There has, will see a improving market, the large undoubtedly, been a trend of larger corporate Mr Big numbers who have left the clients, who are often the mainstay of mid- In the larger corporate shortage of profession, and current sized firms, migrating to larger firms. This firms, transactional work talent in about low levels of entry to the was driven by selective price reductions in the reduced substantially as lack profession will create these larger firms, the feeling of safety in large firms of confidence and lack of three years. An conditions. (partly because of the professional indemnity funding in the economy took improving market, • Smaller practices will have insurance crisis), and the determination of the a grip. These firms reacted by to look at wider options larger corporate firms to pick up good-quality selectively cutting rates, and the large numbers such as overhead sharing, work from smaller firms where they felt they a new type of advisory work who have left alliances, and mergers as had a wider service to offer. emerged that, while generally the profession, economies of scale become Mid-sized firms came under attack from subject to more competitive more important, smaller firms also, who were operating on pricing, compensated in some and current low • Many services will continue tighter overheads. Much private client work ways for the lack of commercial levels of entry to to be highly price sensitive. has now moved from larger and mid-sized and conveyancing transactions. For such services, processes firms to be the domain of one-to-four solicitor The profile of work in the profession and systems, as well as a practices. the larger firms is a mixture will create these low cost base, will be the While mid-sized firms did face more of international work and determining factors on competition, they have, on average, seen national work, with a very conditions” making a profit or not. turnover fall about 25% over the period. New sizeable proportion of the types of work have emerged, however, which work being international and less affected Brothers in arms they too have participated in. This includes by the slowdown. Larger firms also saw an The slow-down of the last five years has different types of banking work, increased increase in commercial litigation, and while had visibly different effects on different litigation and institutional work, which have this continues, the ability of business to fund parts of the market. There is now a world of helped firms in this area to offset the fall in it appears to be on the wane. Larger firms, difference between the challenges faced in the transactional work and the downward pressure therefore, had to make reasonably significant larger firms and those of the sole practitioner. on their private client work. Additional light adjustments, but not at the same scale as These differences always existed, but have at the end of the tunnel can be seen, due to medium-size and smaller practices. Turnover widened further in recent years. the likelihood that transaction volumes are was broadly unchanged, but achieved in a For some smaller and medium-sized firms, set to increase as banks show increasing signs different mix. The occasional national media survival itself has been an achievement. In of tackling legacy debt problems. There commentary on the financial world within some parts of the country, notably Dublin, is evidence, also, that some semi-state/ which these firms operate confirms to the other larger cities and along the east coast, institutional clients are looking beyond top- average practitioner that they are worlds there are positive signs of better times ahead. rank firms where a mid-sized firm can deliver a apart. Whether any particular firm benefits from quality service at a lower price. this depends on its own competitive armoury Mid-sized firms have also invested heavily I can see for miles – its combination of talent, ability, working in systems over the period. This extends We are set to see even more change over the ethos, systems, type of services the firm is to technology, risk-management systems, next five years than we have over the past five. particularly good at, and the work available accounting and practice-management systems, These changes should include: in its catchment area. • An improving economy, predominantly For other firms, the status quo will not on the east coast, but with some impact be sufficient to earn a living – even if they practice management seminars nationwide. Dublin and surrounding are well equipped. Will the profession see Outsource is running a series of counties are already seeing evidence of this. different models emerge in how law firms are practice management seminars with local • Work will continue to realign, with large run? How will the Legal Services Regulation Bill bar associations throughout the country institution and corporate buyers buying affect the options available? When is a merger in September. Please refer to services from large law firms; medium-size the right answer, and when is it not? These www.lawsociety.ie for updates. corporates from medium-size law firms; questions will be explored in the next issue of and private client services continuing to the Gazette. G 36 landlord and tenant law Law Society Gazette www.gazette.ie Aug/Sept 2013 Breaking

BADThe economic downturn has led to higher numbers of landlords and tenants seeking to exercise ‘break clauses’ within leases. The dearth of relevant judicial decisions in Ireland has led to practitioners looking to England and Wales for guidance. But breaking up is hard to do, as Michael Walsh and Aoife Maeve Clarke point out

Michael Walsh is head of property, break option is a clause within a lease • Service of notice of intention, construction and that confers on the landlord or tenant – • Payment of all monies due, procurement at or both – the right to determine the lease • Vacant possession, and ByrneWallace before expiration of the term. • Compliance with obligations (including repair). Although such clauses have appeared in occupational The current trend in England and Wales is leasesA for some time, they have become “In the case of best examined by focusing on cases within topical in recent years as tenants are Osborne Assets v these categories. As a preface to this analysis, increasingly seeking to exercise their break it is worth noting that the validity of the option as a consequence of the economic Britannia Life Ltd, service of a break option notice will largely downturn. the use of two coats be governed by what the terms of the break The courts in England and Wales regard option state. The case law below indicates a Aoife Maeve the option to break as a privilege to be of paint rather than general tendency of the judiciary in England Clarke is a trainee afforded to the tenant and have therefore three as required and Wales to strictly interpret the wording at ByrneWallace interpreted the conditions of break clauses of each break option. strictly. In the absence of many relevant under the lease judicial decisions in this jurisdiction, deprived a tenant of Clear and unambiguous practitioners are looking to England and his right to break” The notice to terminate must be sufficiently Wales for guidance to advise their clients as clear and unambiguous and leave the to their rights and obligations pursuant to reasonable recipient in no doubt as to the the lease if exercising a break. tenant’s intention to terminate (Mannai Investment Co Ltd In order to validly exercise a break option, tenants must v Eagle Star Assurance). Additionally, the notice must be comply with the conditions provided for within the break served on and by the correct parties, at the correct time, clause. Such conditions commonly require: and as the lease prescribes. If only served by one of two Law Society Gazette www.gazette.ie Aug/Sept 2013 landlord anD tenant law 37

Fast facts

> Break options are the subject of strict judicial interpretation in England and Wales > awareness and full compliance with break-option conditions>> are necessary for breaks to be effective > those drafting break clauses should take note of the judicial position as a guide to break-option negotiations at the outset > advance negotiations prior to the exercise of the break could mitigate against risks associated with strict compliance 38 landlord and tenant law Law Society Gazette www.gazette.ie Aug/Sept 2013 vacant possession, the court held that the tenant ought to have moved everyone out of the premises on the termination date and returned the keys, and made arrangements later to re-enter to complete the outstanding works. In the earlier case of John Laing Construction Limited v Amber Pass Limited, the tenant had vacated the premises, but had left security barriers and a security guard in place to deal with vandalism and trespass problems that the landlord had repeatedly expressed concerns about. The court assessed whether vacant possession had been given objectively and held that the tenant had clearly expressed his intention to terminate the lease and that the presence of the barriers and guard were not a hindrance to the landlord, who could occupy the premises without difficulty. Tenants should remove all chattels from the premises and return the keys to the landlord co-tenants (Prudential Assurance Co Ltd v so invalidated the break option, regardless on the vacant possession date. If outstanding Exel UK Ltd & Anor), or on only the landlord of the fact that it requested confirmation repairs are likely to remain on the break date, when the lease requires service, also, on that the apportioned payment was correct. tenants can enter into advance negotiations the management company (Hotgroup Plc v In Canonical UK Ltd v TST Millbank LLC, the to remain on as licensee to complete the Royal Bank of Scotland Plc), the notice will be tenants did pay the full quarter’s rent, but remaining works. deemed invalid. However, in the recent case failed to pay the break penalty as required of Siemens Hearing Instruments Ltd v Friends under the lease. They argued, unsuccessfully, Compliance with obligations Life Ltd, the failure to use the prescribed that the balance of the quarter’s rent could be Where compliance with conditions precedent notice wording, although held to be non- attributed to this payment. to exercising a break exist, compliance with compliant with the break clause, was not held Practitioners should therefore advise repair obligations cases have resulted in some to automatically render the notice invalid. tenant clients to assess the sums due under harsh outcomes for tenants. In Osborne Assets the lease carefully, paying v Britannia Life Ltd, the use of Payment of all monies due particular attention to interest two coats of paint rather than Depending upon the provisions of the lease, on prior late payments and “The test three as required under the this condition may encompass not only rent, the break penalty sum. Where of material lease deprived a tenant of his but also a sum paid as a break penalty, interest a break date falls within a right to break. Also, in Kitney v on previous late payments, and insurance quarter rent period, tenants compliance was GLC Properties and West County and related service charges. The harshness should be advised to pay the held to be an Cleaners v Saly, seemingly of this condition precedent is evident in the full quarter’s rent and enter trivial breaches were held not cases of Avocet Industrial Estates LLP v Merol negotiations later for a refund objective one, to fulfil the obligation to repair. Ltd & Anor and PCE Investors Ltd v Cancer of the overpayment, as was assessed by the In these cases, strict Research UK. In Avocet, the tenant’s failure successfully argued in Marks compliance was required – to pay the outstanding sum of Stg£130 and Spencer Plc v BNP Paribas ability of the and nothing short of exact accrued as interest on previous late payments Securities Services Trust landlord to re-let compliance would suffice. invalidated the tenant’s right to break, despite Company (Jersey) Ltd & Anor. Where the lease requires only the tenant’s contention that it was not aware or sell the property material compliance, minor of any outstanding sums and had not received Vacant possession without delay or breaches subsisting at the any notice from the landlord demanding The meaning of vacant extra expenditure” break date will not invalidate payment of any such sum. The apparent possession was outlined in the the tenant’s right to break. In failure of the landlord to inform the tenant of case of NYK Logistics (UK) Ltd Fitzroy House Epworth Street this outstanding sum did not estop him from v Ibrend Estates BV, where the court stated Ltd v Financial Times Ltd, the test of material subsequently claiming the notice was invalid, that the property must be “empty of people compliance was held to be an objective one, as it could not be proven on the balance of and that the purchaser is able to assume and assessed by the ability of the landlord to re- probabilities that the landlord knew of the enjoy immediate and exclusive possession, let or sell the property without delay or extra tenant’s mistaken belief before the end of the occupation and control of it”. In this case, expenditure. Here, the tenant had spent over break date. two days prior to the termination date, Stg£1 million on repair, and the landlord had Where a break date falls partway through outstanding repairs remained and the tenant continuously rejected invitations to inspect a quarter, unless the lease provides for the proceeded to retain workmen on site for a the works or comment on them. The court contrary, tenants are required to pay the further six days. held that the extent of outstanding repairs full quarter’s rent in advance, even though The landlord successfully argued that the totalling Stg£20,000 would not deter a – if their break is valid – they won’t be in break was invalid, as vacant possession wasn’t potential tenant and, as such, the tenant was possession of the premises for the full period. delivered in time. As the break was only held to have materially complied with the In PCE Investors, the tenant’s failure to do conditional upon payment of monies due and repair obligations. Law Society Gazette www.gazette.ie Aug/Sept 2013 landlord and tenant law 39 If you find your tenant client in the approach in that jurisdiction. may take a more ‘equitable’ approach. For unfortunate position of having to strictly Until a more relevant case falls to be example, practitioners may wish to note comply with repair obligations as a condition determined by the Irish courts, practitioners Edward Lee & Co (1974) Ltd v N1 Property precedent to the break, the settlement may use the above decisions as guidance Developments Ltd, where the High Court agreement approach adopted by the tenants when advising clients, not only with regard to adopted a more equitable approach to notice in Legal & General Assurance Society Ltd v the exercise of break options, but also when requirements in the context of a surrender. Expeditors International (UK) Ltd is advisable. drafting and negotiating break options. However, the prudent approach will be to err The agreement released the tenant from It should be said that the Irish courts on the side of caution. G its repair obligations under the lease and was required only to keep the premises in no worse state or repair then it was when Look it up a schedule of dilapidations was drawn up. Tenants who have to materially comply with Cases: · Legal & General Assurance Society Ltd v repair obligations are advised to employ a · Avocet Industrial Estates LLP v Merol Ltd & Expeditors International (UK) Ltd [2007] surveyor to assess the remaining works and Anor [2011] EWHC 3422 (Ch) EWCA Civ 7 invite the landlord to assess the premises prior · Canonical UK Ltd v TST Millbank LLC · Mannai Investment Co Ltd v Eagle Star to the break date. [2012] EWHC 3710 (Ch) Assurance [1997] AC 749 · Edward Lee & Co (1974) Ltd v N1 Property · Marks and Spencer Plc v BNP Paribas Definitive ruling awaited Developments Ltd [2013] IEHC 162 Securities Services Trust Company (Jersey) The only reported Irish decision on break · Fitzroy House Epworth Street Ltd v Ltd & Anor [2013] EWHC 1279 (Ch) clauses is In the Matter of Citi Hedge Fund Financial Times Ltd [2006] 1 WLR 2207 · NYK Logistics (UK) Ltd v Ibrend Estates BV Services Ltd v Companies Act 1963 to 2012 & · Hotgroup Plc v Royal Bank of Scotland Plc [2011] EWCA Civ 683 Anor, where a break clause that was expressed [2010] EWHC 1241 (Ch) · Osborne Assets v Britannia Life Ltd [1997] to be strictly personal to the original tenant · In the Matter of Citi Hedge Fund Services · PCE Investors Ltd v Cancer Research UK was held not to be capable of assignment to Ltd v Companies Act 1963 to 2012 & Anor [2012] EWHC 884 (Ch) the original tenant’s successors in title. It is [2013] IEHC 287 (21 June 2013) · Prudential Assurance Co Ltd v Exel UK Ltd difficult to extrapolate from this case alone · John Laing Construction Limited v Amber & Anor [2009] EWHC 1350 (Ch) whether the Irish courts are likely to follow Pass Limited [2004] 2 EGLR 128 · Siemens Hearing Instruments Ltd v Friends their counterparts in England and Wales. · Kitney v GLC Properties (1984) 272 EG Life Ltd [2013] EWHC (Ch) [2013] All ER The judgment, however, does appear to 786 (D) 188 (Jul) be consistent with the strict interpretation

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www.taxinstitute.ie [email protected] +353 1 663 1748 40 people and places Law Society Gazette www.gazette.ie Aug/Sept 2013 Law Society Annual Dinner 2013 P ic S: lensmen photographic agency

President James McCourt, his wife Barbara Cotter and barrister Kieron Wood

At the Law Society’s annual dinner at Blackhall Place on 12 July 2013 were (l to r): Circuit Court Judge Mary Ellen Ring, Colonel John Sperrin, Defence Forces, Supreme Court Judge Frank Clarke, Minister for Communications, Energy and Natural Resources, Pat Rabbitte TD and Director General Ken Murphy

Attorney General Máire Whelan SC, president James McCourt and Circuit Court Judge Gerard Griffin

Director of FLAC Noeline Blackwell, Law Society executive Junior vice-president Stuart Gilhooly (MC for the evening), Chief Justice Susan Denham, President of Colleen Farrell and Chair of the Family and Child Law the Law Society James McCourt and senior vice-president John P Shaw Committee Carol Anne Coolican

President James McCourt, Director of Public Prosecutions Claire Loftus and Chair of the Fine Gael Parliamentary Party Charlie Flanagan TD, President of the Deputy DPP Barry Donoghue State Solicitors’ Association Frank Nyhan and Council member Brendan Twomey Law Society Gazette www.gazette.ie Aug/Sept 2013 people and places 41

Junior vice-president Stuart Gilhooly, president James McCourt, Supreme Court Circuit Court Judge James O’Donoghue, Chair of the Probate, Administration and Judge Elizabeth Dunne, High Court Judge Michael Peart and senior vice-president Trusts Committee Tom Martyn, President of the Circuit Court Raymond Groarke John P Shaw and Circuit Court Judge Keenan Johnson

Senior vice-president John P Shaw, who hails from Clare, and past-president John Council member Geraldine Kelly, past-president John D Shaw, Attorney General D Shaw, from Westmeath Máire Whelan SC and DSBA vice-president Keith Walsh

Legal Aid Board CEO Moling Ryan and Bar Council Chairman David Nolan SC

Law Society of Northern Ireland President Michael Robinson and Law Society of Scotland President Bruce Beveridge in deep conversation 42 people and places Law Society Gazette www.gazette.ie Aug/Sept 2013 Advising the farmer

At the recent Law Society Skillnet Seminar ‘Advising the farmer’ On the steps of the Law Society of Scotland headquarters in Edinburgh, following a meeting of on 21 June, held in Killarney’s INEC, were (front, l to r): John the leaders of the law societies of Ireland, Northern Ireland, Scotland, England and Wales are Galvin (president, Kerry Law Society), Jane O’Halloran (secretary, (l to r): Ken Murphy (director general, Law Society of Ireland), Michael Robinson (president, Killarney Bar Association), Eoin Binchy (conference chairperson), Law Society of Northern Ireland), Richard Palmer (vice-president, Law Society of Northern Conor Myles (Killarney Bar Association) and Pat Sheehan Ireland), Lucy Scott-Moncreiff (president, Law Society of England and Wales), Des Hudson (treasurer, Killarney Bar Association). (Back, l to r): Lorna Larkin (chief executive, Law Society of England and Wales), Bruce Beveridge (president, Law Society of (vice-secretary, Killarney Bar Association), Padraic Courtney, Scotland), Lorna Jack (chief executive, Law Society of Scotland), Alistair Morris (vice-president, Bernadette Cahill, Anne Stephenson, Tim O’Leary, Katherine Law Society of Scotland), Alan Hunter (chief executive, Law Society of Northern Ireland) and Kane and Michelle Nolan. The event was hosted by Killarney Bar James McCourt (president, Law Society of Ireland) Association in conjunction with Kerry Law Society.

Disability Law Summer School focuses on ‘voice and choice’ The fifth International Disability Law Summer School was held at NUI Galway from 17 to 22 June. The largest such summer school in the world, its focus is on the UN Convention on the Rights of Persons with Disabilities. Over 100 delegates from 38 countries attended. The theme was on securing a voice and advancing choice for persons with disabilities by means of the UN Convention. The keynote speaker was Professor Rannveig Traustadottir, from the University of Iceland, Reykjavik. Other speakers at the week- long event included Minister of State for Health Kathleen Lynch, Attorney General Ms Máire Whelan and Mr Justice John McMenamin.

The 12th edition of the Hibernian Law Journal (HLJ) was launched at the Law Society’s headquarters by Mr Justice Michael Peart on 16 July 2013. Established in 1999, the HLJ is one of Ireland’s most respected legal journals and is co-ordinated by trainee and qualified solicitors. Members of the editorial committee who attended the official launch on 16 July 2013 included (from l to r): Dannie Hanna, Naomi Barker, Chris Bollard, Carol Eager, Doireann O’Byrne, Donal Hamilton (editor-in-chief) Mr Justice Michael Peart, TP Kennedy (editorial advisor and director of education, Law Society) Jennifer O’Sullivan, Ciara Brady, Eltin Ryle and Thomas Ryan. Law Society Gazette www.gazette.ie Aug/Sept 2013 people and places 43 Former Attorney General speaks on the art of government P ic : J oe H anley

Kerry Law Society welcomed the former attorney general Paul Gallagher to the first CPD course in its autumn/winter programme on 22 August. Those attending were treated to illuminating commentary on the art of government. Mr Gallagher was welcomed by John Galvin (chairman, Kerry Law Society), Pat Mann (president) and Dave Ramsey (vice-president)

P ic : J ason C larke hotography Judge Durcan honoured P ic : F rank D olan

Niall Collins, Fianna Fáil’s spokesperson on justice and equality, was the guest speaker at the Law Society’s parchment ceremony on 4 July. He is seen here with President of the High Court Nicholas Kearns Mayo solicitors held a dinner in honour of Judge Patrick Durcan at Newport House on 29 May. Judge Durcan, a former solicitor, was appointed District Court judge in February 2012. (Front, l to r): Ann Toal, Sheila Ryan, Judge Taking the plunge Patrick Durcan, Sara Horan and Gerard Morahan. (Middle, l to r): John Morahan, Caitriona Moran, Bob McArdle, Karen O’Malley, Helena Boylan and James Hanley. (Back, l to r): James Ward, Dermot Morahan, Fintan Morahan, Michael Browne and David Scott

Legal firm Eugene F Collins and Smith & Williamson (accountants and investment managers) joined forces recently to take the plunge at the Forty Foot in Dun Members of the Family and Child Law Committee hosted a highly Laoghaire to raise funds for Our Lady’s Hospice and Barnardos. Swapping their successful child law forum at Galway Courthouse on 25 July for Galway business suits for swimsuits were Doug Smith, Terry Leggett, David Hackett, practitioners. (From l to r): James Seymour (president, Galway Bar John Olden, Mark Walsh and Barry O’Neill (all Eugene F Collins), Ceddy Cruess Association), Sinead Kearney, Keith Walsh, David Higgins, Donagh Callaghan, Shane O’Reilly, Jonathan Sheahan, John Fisher and Paul Wyse (all McGowan, Carol Anne Coolican and Colleen Farrell Smith & Williamson) 44 book reviews Law Society Gazette www.gazette.ie Aug/Sept 2013 Irish Probate Corruption Law Imelda Higgins. Round Hall (2012), www.roundhall.ie. Practitioners’ ISBN: 978-1-8580-066-97. Price: €195. Corruption Law is the first Irish modernise and clarify Irish law on Handbook legal textbook to focus on this area bribery and corruption, and the Karl Dowling and Robert as a dedicated topic. It examines Protected Disclosures in the Public Grimes. Round Hall (2013), (and contextualises) the principal Interest Bill, which will improve www.roundhall.ie. ISBN: 978-1- Irish legislation in this area, which protection for whistleblowers 8580-068-57. Price €225. has changed significantly over in both the public and private the last two decades. While the sectors. The enactment of this This is a really useful book. textbook is theoretical in parts, legislation will mean that sections The authors intend this book this is due to the low level of of Corruption Law will need to to complement the existing From a narrow perspective, enforcement of Ireland’s corruption be updated. In the meantime, literature in the subject area; it one could consider that – aside laws to date and the consequent however, it is a much-needed is not intended to compete with from being up-to-date – there is dearth of relevant resource for practitioners who are or replace those weighty tomes. little distinctly new to be found in Irish jurisprudence. increasingly being asked to advise Instead, its intent is to provide the book. Such a conclusion would The extraterritorial reach of on this developing area of the law. information and analysis with a entirely miss the very pioneering the anti-corruption law regimes distinctly practical focus. point of the book to distil statutes, in other jurisdictions, in particular Katie Byrne is an associate at Comprising 15 chapters, it draws cases, practice directions and Britain and the US, results in Irish A&L Goodbody. together the disparate nuggets of rules to a clear and practical level. practitioners being increasingly knowledge across a wide panoply of The authors have undertaken an asked to advise on Irish corruption topics. Of particular benefit to many enormous service to practitioners law by international corporations practitioners will be the innovative by drawing together, in one user- that, by default, have in place anti- inclusion of chapters relating friendly book, all the essential corruption policies. Corruption (or to enduring powers of attorney knowledge for a practitioner across rather, anti-corruption) is therefore and wards of court. The detailed a very wide-range of allied topics. rapidly developing as a corporate consideration of the processes Previously, to gain the same level compliance issue in this jurisdiction for creating and subsequently of comprehension, a practitioner and, against this backdrop, registering an enduring power would have had to delve into a Corruption Law will serve as a useful of attorney, together with the number of distinct books and/or point of reference for practitioners process for applying for wardship access a number of websites, but advising on the main legal areas and dealing with post-application now they need only keep this book of an effective anti-corruption issues, are very helpful as an on their desk. strategy. As the author notes, there aide-memoire for the experienced are significant legislative changes practitioner and as a clear guide for Richard Hammond is partner in coming down the tracks, including the less experienced practitioner. Hammond Goode, Mallow. the proposed new Criminal Justice (Corruption) Bill, which will simplify,

The Last Sting

of A DyingIncluding Wasp The Last Sting of a Dying Wasp

The Termination of Lethal Injection and Other Forms of Capital Punishment Gerard O’Keeffe. Original Writing (2012), www.originalwriting.ie. ISBN: 978-1-78237-014-7. Price: €35 (incl P&P). the hook of the aforementioned relatively easily online, but this is leader – Iran, Yemen, North novella. The author, a well-known a compact and useful volume for Korea and Saudi Arabia, and now-retired West Cork solicitor, those who prefer the feel of a real many others who do not take the hopes soon to extend the story into book. same view as Europe that judicial a full-length novel. There is real meat in the killing is an idea whose time has However, the short story chapter on the USA. Two-thirds come and gone. amounts to less than a tenth of the of the states still execute – lethal Perhaps a suitable epigram In part a novel but primarily a treatise on the Death Penalty in Ireland together with the Death Penalty worldwide with particular emphasis on the United States of America together with a two and a half hour DVD on inter alia the execution protocol. book. The remainder consists of a injection being the sole remaining on the subject matter might be All net profits of the book and DVD go to DeafHear (Services for the Deaf & Hard of Hearing). review of the history, operation and legal method. Discussion on the taken from the light-hearted, if Gerard O’Keeffe, Solicitor philosophy of the death penalty, philosophy of capital punishment not a little macabre, chapter of notably dwelling on Ireland, the in the USA expands into a critique ‘last words’: John Spenkelink, a This rather oddly titled volume is USA and China, respectively, for of US penal policy generally, prisoner in Florida, is reported part fiction – a short story, set in a reasons of local history, controversy, including the privatisation of to have said: “Them without the futuristic, US-dominated Ireland, and sheer volume. It is an accessible prisons, conditions for those capital gets the punishment.” where the death penalty has been overview of a topic that has divided incarcerated, the ever-expanding Famous last words indeed. G restored as part of a package to world opinion for many years. prison population, and the terrible pay off the national debt – and The author credits Wikipedia with social costs. Japan, Belarus, and the Dara Robinson is a criminal defence part non-fiction, being a discourse much of the material, and most of USA share the practice with China solicitor at Sheehan and Partners in on capital punishment, hung on the subject matter can be found – by a vast margin the market Dublin. Law Society Gazette www.gazette.ie Aug/Sept 2013 reading room 45

Dreadlock holiday THOMSON REUTERS ROUND HALLTM Travel law and holiday litigation is a growing area of interest for members. With this in mind, the library has compiled a list of relevant books and articles

Mairead O’Sullivan is · ‘Advertising Standards Authority – executive assistant librarian misleading advertising – tour operators’, at the Law Society International Travel Law Journal (2008, 2, ix-xii) · ‘All change for Rome II’ (Assessment of damages for overseas accidents: Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to Holidays abroad and ‘staycations’ have non-contractual obligations)’, International never been more popular than in recent Travel Law Journal (2008, 4, 161-166) REUTERS/Bobby Yip years. Unfortunately, the downside of · ‘Damages in holiday law cases’, Law Society travel can often involve accidents abroad, Gazette (2003, 97(2), 43, 45) disputes with tour operators and difficulties · ‘Considering the standard of care for involving package holidays. If members are tourists’, International Travel Law Journal interested in borrowing any of the following (2008, 3, 135-142) books on the subject, or ordering any of the · Danaher, Gerry, ‘Accidents abroad and the COMMENTARY articles listed, please contact the library at assessment of damages’, Bar Review (2012, ON WESTLAW IE [email protected]. The usual charges 17(5), 109-113) will apply. · ‘Holiday law – sun, sea, sand and COMPLETING solicitors’, Law Society Gazette (1998, Books: 95(27), 18-20, 22) THE PICTURE · Buttimore, Jonathan, Holiday Law in · ‘High and Wild Ltd v Travel Counsellors Plc’, Ireland (Blackhall Publishing, 1999) International Travel Law Journal (2008, 3, Books Available Now · Crowther, Sarah (ed), APIL Guide to 110-113) on Westlaw IE: Accidents Abroad (Jordans, 2013) · ‘Practical guide to package holiday law CIVIL PROCEDURE IN THE · Doherty, Bernard, Colin Thomann, and contracts’, Journal of the Law Society of SUPERIOR COURT and Katharine Scott, Accidents Abroad: Scotland (1994, 39(6), 199-200) 3rd Edition – Delany and Mcgrath International Personal Injury Claims (Sweet · ‘Recent developments in aviation and & Maxwell, 2009) travel law’ (key cases and legislative THE LAW OF CREDIT AND SECURITY · Grant, David and Stephen Mason, Holiday reform). Shipping & Transport International Mary Donnelly Law (5th ed; Sweet & Maxwell, 2012) (2012, 9(2), 34-37) · nelson-Jones, John and Peter Stewart, A · ‘Recent developments in Italy concerning THE LAW OF PERSONAL INJURY Practical Guide to Package Holiday Law and the regulation of tour guides’, International Jennings, Scannell and Sheehan Contracts (3rd ed; Tolley Publishing, 1993) Travel Law Journal (2008, 4, 174-180) …and many more! · Saggerson, Alan et al, Saggerson on · Salih, Gulderen, ‘First among equals’ Travel Law and Litigation (5th ed; Wildy, (Accidents – choice of law – EC law – Simmonds & Hill Publishing, 2013) foreign jurisdictions.), Legal Executive (2009, February, 39) SEE IT. BELIEVE IT. Articles: · Scaife v Falcon Leisure Group (Overseas) Ltd · ‘Accidents abroad’, Personal Injury (case note [2007] IESC 57), International Compensation (2009, Mar, 9-10) Travel Law Journal (2008, 2, 55-60; CALL: 1800 50 90 34 · ‘Accidents abroad: sports injuries damages; package holiday; personal EMAIL: [email protected] sustained on holiday’, Personal Injury injuries) VISIT: westlaw.ie Compensation (2010, Apr, 8-9) · Petts, Tim, ‘Accidents abroad: the French · ‘Advertising Standards Authority – connection’, Personal Injury Brief Update Law airlines – misleading advertising – tour Journal (2007, 1(3), 56-59 operators’, International Travel Law · ‘Tour guides: a legal perspective’, Journal (2008, 4, xxvii-xxxi) International Travel Law Journal (2008, 3, · ‘Advertising Standards Authority – First 125-134) Choice Holidays (Advertising Standards · ‘Tour operators fail to overturn Authority; beaches; brochures)’, imposition of APD – the saga continues’, International Travel Law Journal (2008, 3, International Travel Law Journal (2008, 4, xxiii) 181-186) G 53°20’52”N 6°15’35”W

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Reversed Process VersionReversed Process Version

M&K_LSG/LD 91X123 AW.indd 1 24/02/2011 16:40

        Law Society Gazette www.gazette.ie Aug/Sept 2013 council report 47 briefing Law Society Council meeting 12 July 2013 Motion: online practising of the Legal Services Regulation to the Litigation Committee, Cutbacks in the justice system certificate applications Bill, which would be commenced and a meeting with taxing master The Council discussed concerns “That this Council approves the So- in the Dáil on the following O’Neill had been arranged for 30 about cutbacks in the justice sys- licitors Acts 1954 to 2011 (Prac- Wednesday 17 July. The amend- July. tem generally and the negative tising Certificate) (Amendment) ments clarified the proposed impact on staff resources arising Regulations 2013.” composition of the board of the Increased court jurisdictions from the recruitment embargo. Proposed: Martin Lawlor Legal Services Regulation Au- The Council discussed the pro- Public servants who were retiring, Seconded: Garry Clarke thority as comprising one nomi- posed increase in jurisdictions of were on sick leave, or on holidays The Council approved amending nee from each of the Citizens’ the courts and the concerns ex- were not being replaced, and some regulations to introduce online Information Board, the Higher pressed in the president’s letter judges could not be provided with practising certificate applications, Education Authority, the Com- to the minister that the proposed support staff. At a time when court which would replace the ‘wet sig- petition Authority, the Human increase, without a correspond- and other State fees were increas- nature’ on the online form with Rights Commission, the Institute ing increase in court resources, ing, staff numbers were reducing a declaration, removing the need of Legal Costs Accountants, the would result in inevitable delays. and those employed in the justice for solicitors to print the form, Consumers Association of Ire- An article in The Irish Times of system were working very hard to sign a visible copy, and submit it land, the Bar Council, the King’s that morning indicated that the try to provide a service with very to the Society. The requirement Inns, a solicitor nominee of the Law Society, the Irish Brokers’ limited resources. As a conse- for solicitors to log into the mem- Legal Aid Board, and two nomi- Association and Dorothea Dowl- quence, delays were increasing in bers’ area of the Society’s website nees of the Law Society. ing were all agreed that the pro- many court and State offices. in order to access the form would posal was a bad one. However, it act as an extra identity verification Delays in taxation of costs was unclear whether the minister Council election dates 2013 system. The Council noted that The Council noted a response would change his mind. An atten- The Council approved Monday online applications would benefit from the minister to the presi- dant issue in the District Court 23 September 2013 as the final the profession by offering a sim- dent’s letter seeking the appoint- was the scale of costs. The Society date for receipt of nominations for pler, easier and more streamlined ment of a third taxing master. was of the view that an increase the Council election and Thurs- method of applying for a practis- The minister’s letter had con- in jurisdiction to €15,000 should day 31 October 2013 as the close ing certificate. cluded that “in view of the pend- mean that the District Court of poll date. ing changes in this area, it is not should be regarded as a court of Legal Services Regulation Bill proposed to appoint a third tax- full pleading. This position would New VHI undertaking The Council noted the contents ing master at this time”. Eamon be put forcefully by the Society to The Council approved a revised of the minister’s committee stage Harrington noted that the matter the District Court Rules Commit- form of VHI undertaking for dis- amendments to sections 2 to 20 was one of considerable concern tee and the minister. semination to the profession. G

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Contact: Clodagh Doyle • Contact colleagues by email who have listed something of interest. 0868159431 / 012548070 Email: [email protected] www.placelift.ie Visit www.lawsociety.ie/solicitorlink 48 practice notes Law Society Gazette www.gazette.ie Aug/Sept 2013 briefing Practice notes notice Notice to all solicitors: Ten steps to business growth undertakings guidance and ethics committee From the volume of complaints the ferral to the Solicitors Disciplinary Law Society continues to receive Tribunal. The tribunal can make a 1) Encourage everyone in the firm 5) Build on local knowledge. Be- from lending institutions, it is clear recommendation to the High Court to promote the business. Solici- come more active in local and that there are still numerous over- to strike a solicitor off the Roll of tors are not natural sales people regional organisations. Look in due solicitors’ undertakings. Many Solicitors, and a number of solici- and shy away from selling them- front of you; new opportunities of these undertakings go back some tors have been struck off the roll for selves and their products. Lead may be very local. considerable time, and many can be breach of undertaking. In all cases, by example from the top down – 6) Recognise that finding new cli- easily complied with. Some solici- a complaint to the Law Society will principals/partners, fee-earners ents is priority work. Finding tors have files in their offices that impact negatively on the solicitor’s and support staff. new clients should be viewed as have not been completed because practice, at the very least in terms 2) Identify and assess your custom- having the same priority as ac- stamp duty has not been paid, appli- of management time and the risk of er profile. Who are currently tually working on a file. Do not cations have not been made to the an increase in the cost of profes- your best clients? What kind of say “I am really busy now and I Property Registration Authority, or sional indemnity insurance. relationship do you have with don’t have time to look for new ancillary issues such as certificates The Law Society therefore urges them and how can you improve clients”. Make time. of compliance with planning per- all solicitors to check whether they that relationship? How can you 7) Review your website. Your web- missions have not been addressed. have any overdue undertakings to ask them about their needs? site may be the only way that Unfortunately, too many solicitors lending institutions and, if there 3) Have a marketing plan. A mar- prospective clients who are not are only attending to these issues are any, to comply with those un- keting plan gives focus to your known to you can learn about after a complaint has been made. dertakings as a matter of urgency. efforts to increase business. It your services. Many of them The experience of the Law Soci- All firms should keep a register of cannot be made up of gener- may never have previously used ety’s investigating accountants is undertakings for ease of identifying alities. For example, it is not the services of a solicitor’s firm. that many solicitors have outstand- and complying with overdue under- enough to state that you will Review accessibility to the web- ing balances on the client ledger, takings. In the case of firms that do take part in a networking event, site, prominence and search- representing stamp duty and reg- not have a register at the present take a potential client for lunch, engine priority. Identify areas istration fees. It is the view of the time, the Law Society recommends write an article or make a pre- where further or updated mate- Law Society that if solicitors were that a register is drawn up. sentation. The plan should be rial is needed. to review their client ledgers on Please ensure that when a letter specific. Identify the network- 8) Make sure the services you de- a regular basis and take action to of enquiry is received from a lend- ing opportunity, the person you liver are user-friendly. If you are clear these balances, it would lead ing institution, a response is given will bring to lunch and when easy to do business with, your to fewer complaints about overdue within a reasonable time to reduce that will be, the publication for current clients are more likely undertakings. the chances of a complaint to the which you will write an article, to recommend you to others, A breach of an undertaking is Law Society. and the group to whom you will and to return in the future. a matter of professional miscon- John Elliot, make a presentation and the Keep language with your clients duct, and failing to comply with Registrar of Solicitors topic you will address for them. straightforward and succinct an undertaking can result in a re- and Director of Regulation 4) Make cross-selling part of your and avoid legalese. The service interaction with your clients. you deliver must match your Remind your clients of all the marketing blurb. You may not services you offer. For example, have the opportunity to deliver Complaints by solicitors about if you are handling a personal something different and unique matter for a client, you may wish to other solicitors’ firms, but financial institutions to give the client a brochure tai- you can demonstrate that you conveyancing committee lored to the work you could do deliver what you do, well. The Conveyancing Committee but that, because many sectors are for them in their business. If 9) Encourage your clients to rec- is aware that many solicitors have regulated, it is often difficult to you come across something that ommend you. If you have done had difficulty in making complaints pinpoint who to contact. The com- you think might be of interest a good job for a client, encour- about lending institutions and about mittee has been advised that, if its to a client, email it to them, or age your client to tell others. the manner in which they deal with members are unsure of where to go, phone, or write to them to in- 10)Seek feedback from your cli- solicitors on various matters. Part of they can send their concerns to the form them of the matter. They ent. Never underestimate a this difficulty has been that it is not team at nppfeedback@centralbank. may be interested in legislation good follow-up and feedback easy to identify by whom and what ie. This is the section that is deal- that will affect them and also in system, to ensure your client section in the Central Bank are ing with the national payment plan relevant upcoming events. The is satisfied with the work you solicitors’ complaints considered. project. They have indicated that simple question to the client, “Is have done. If they are not sat- Following recent enquiries, the they may not be able to deal with there anything else we can help isfied, it is most important that committee has been advised that solicitors’ query directly, but they you with?”, before the client you know about this and have the Financial Regulation section will be able to locate the right per- departs your office might yield an opportunity of correcting of the Central Bank is the section son or section in the Central Bank surprising results. the matter. that regulates credit institutions, to refer solicitors to. Law Society Gazette www.gazette.ie Aug/Sept 2013 practice notes 49 briefing Sales of property where NAMA is the chargeholder conveyancing committee Practitioners have sought guid- Sale approved – next steps by from the vendor’s solicitor that: to the relevant security or their be- ance as to the practices to be ad- vendor’s solicitor (i) a NAMA standard release or ing the appropriate party to release opted where a property in sale is A practitioner acting for a vendor discharge format has been used; same any further. the subject of a charge or mort- should obtain a copy of the con- (ii) in the case of a partial release, gage that has been transferred to ditions imposed by NAMA or a that only the relevant property in Confirmation of compliance with NAMA (NAMA-charged prop- participating institution in relation sale is included; (iii) that the ven- commercial conditions erty) pursuant to the National As- to the sale from the vendor. They dor’s solicitor has been instructed In advance of completion, the set Management Agency Act 2009 should then contact the relevant so- by the vendor or the vendor’s sell- vendor’s solicitor should obtain a or where a property is subject to licitor in NAMA or the participat- ing agent/surveyor/engineer (who copy of the confirmation given to a charge or mortgage granted di- ing institution dealing with the mat- should be named) that any maps the vendor by NAMA or the par- rectly in favour of NAMA. In that ter (if not known, the vendor should appended to the release properly ticipating institution that the com- respect, it should be noted that all confirm this with their NAMA con- identify the property in sale; (iv) mercial conditions (other than the such transfers were made to Na- tact) who will issue confirmation of that the vendor’s solicitor has been payment of the net sale proceeds) tional Asset Loan Management the terms on which a release will be instructed by the vendor or the have been complied with. Limited (a ‘NAMA group entity’ provided (this will be done by way vendor’s selling agent/surveyor/ Practitioners are advised to deal for the purposes of the NAMA of a standard terms of release letter). engineer (who should be named) with any legal conditions (other Act) and not to NAMA itself. As that any relevant rights or ease- than those that can only be dealt such, all discharges and releases Contract terms ments that are necessary for the with at completion) in advance of will be executed by National As- In view of the foregoing, practitio- remainder of the property (insofar completion so that, ideally, the only set Loan Management Limited ners should discuss with the vendor as it is secured in favour of NAMA) outstanding condition by comple- (NALM). the advisability of entering into a have been reserved over the prop- tion should be the furnishing of the contract for sale prior to obtaining erty in sale. net sale proceeds to NAMA or the Approval of proposed sale by NAMA approval or to the inserting As practitioners will be aware, participating institution. NAMA of a provision making the contract the transfer of ownership of A vendor of NAMA-charged prop- conditional upon the obtaining of charges to NAMA occurs pursu- Letter of confirmation from erty will require the prior approval such approval. ant to the operation of the NAMA NAMA (or a participating instit- of NAMA before proceeding with NAMA has advised that it will Act without the need for a formal ution) for completion purposes any proposed sale. Applications for require that proceeds are to be split instrument in writing to be regis- On satisfaction of the above, such approval should be made by separately to allow net sale proceeds tered in either the Land Registry NAMA or the participating institu- the vendor to their usual contact in be paid directly to the participat- or the Registry of Deeds, although tion will issue a letter addressed to NAMA or the relevant participat- ing institution or NALM. A prac- NAMA are working with the the vendor’s solicitor and, if known, ing institution dealing with their titioner advising a vendor should Land Registry office of the Prop- the purchaser’s solicitor (the letter NAMA loans. include a special condition in the erty Registration Authority with a of confirmation) confirming that, Such applications should, contract allowing for any necessary view to entering the ownership of on receipt by NAMA or the par- among other things, set out the split of the sale proceeds to facilitate charges (which are registered as ticipating institution of the net sale net proceeds of sale that NAMA the foregoing, if a requirement. burdens and have been transferred proceeds, they will furnish a release can expect to receive on comple- to NALM) on a subsidiary register in the agreed format, executed by tion of the sale after deduction of Approval of release maintained under section 8(b) of NALM. taxes and professional and other The deed of discharge or release the Registration of Title Act 1964, as Where a participating institu- costs (the net sale proceeds), with of the relevant charge or mortgage amended. tion is the primary contact for a a breakdown of those proposed should be prepared in advance Where a release relates to se- vendor, NAMA have confirmed deductions. These must all be ap- of completion of the sale by the curity that NALM has acquired that the participating institution is proved of by NAMA. NAMA may vendor’s solicitor. In that respect, (rather than security it has taken authorised to act on its behalf in also set out other conditions that NAMA has developed a suite of in its own name), it is the practice relation to the matters set out in must be adhered to on a case-by- template discharges and releases of NAMA to insert a recital in the this practice note. However, as all case basis (the commercial condi- (which have been approved by the release dealing with the transfer of releases will only be executed by tions). This will include confirma- Property Registration Authority) ownership of the relevant security NALM, they must ultimately all be tion that NAMA’s policy in relation that must be used in all cases. The (being released) to NALM, pur- presented to and executed within to sales being on an arm’s-length vendor’s solicitor should contact suant to the NAMA Act. Of spe- NAMA itself. basis to non-connected parties has the relevant solicitor in NAMA or cific import to practitioners is that As NAMA is a State body and been adhered to (section 172 con- the participating institution dealing NALM certifies, pursuant to sec- a participating institution is acting dition). Compliance with the sec- with the matter to obtain a copy of tion 108 of the NAMA Act, that the for and on behalf of NAMA (in ac- tion 172 condition will be a matter the relevant template, when con- relevant security (being released) cordance with the NAMA Act) in for either the vendor’s selling agent tracts are in place and in advance of is an ‘acquired bank asset’ for the relation to these matters, the com- or, if appointed, a receiver. Ven- completion. purposes of the NAMA Act. Prac- mittee is of the view that practitio- dors of NAMA-charged property In approving a release prepared titioners should note that, once so ners acting for both vendors and are made aware of terms of this by a vendor’s solicitor, NAMA’s certified by NALM, they do not purchasers should accept a letter policy directly by NAMA. solicitor will require confirmation need to investigate NALM’s rights of confirmation from NAMA or a 50 practice notes Law Society Gazette www.gazette.ie Aug/Sept 2013 briefing

participating institution for com- appendix 1 pletion purposes. NAMA expects 1 that this will apply in the vast ma- Terms of release letter – on participating institution (PI) notepaper jority of sales in which it involved [Address to vendor’s/borrower’s so- the Vendor; (who should be named) that any and, in particular, residential sales. licitors] ii) Our approval of the draft Deed relevant rights or easements Other than in exceptional circum- [Date] of Discharge or Release (the which are necessary for the stances, as set out below, practitio- [Borrower connection NAMA ID and Release), prepared by your remainder of the property (inso- ners should not require that NAMA vendor/borrower’s name (the Ven- firm. [This should be in a NAMA far as it is secured in favour of or a participating institution furnish dor)2] standard format, which we can NAMA) have been reserved over an executed release (regardless of [Description of property being sold/ provide to you on request, sub- the Property; and whether it is to be held on trust released] (the Property) ject to your clarifying whether ti- iv) That you are satisfied that the or subject to the vendor’s solici- tle is registered or unregistered security from which the Property tor’s undertaking or otherwise) in Dear Sirs for that purpose];4 and is to be released is set out in the advance of compliance with the We refer to the proposed sale of the iii) Payment by your firm of the draft Release. conditions set out in the letter of above Property and the approval agreed Net Sales Proceeds of confirmation. previously issued by us to the [insert amount] to us5 in accord- Yours faithfully6 In line with the above, NAMA Vendor in that respect (the Ap- ance with the Approval have advised that they will no lon- proval). We are acting as service Footnotes ger issue executed releases to be provider to National Asset Loan we will furnish you with the agreed 1. Include the PI’s standard NAMA held on trust or subject to an un- Management Limited (NALM) and form Release, duly executed by strapline. This letter should be dertaking by a vendor’s solicitor in are authorised to issue this letter on NALM. adapted by the PI, as appropri- advance of completion and receipt its behalf. Please note that, in approving the ate, for sales outside of ROI. by it of the net sale proceeds. As you may be aware, the Prop- Release, we will require your con- 2. This will need to be adapted for In exceptional cases, NAMA erty is the subject of security which firmation that: Receiver sales. have advised they will facilitate has been transferred to National i) only the Property is included; 3. Note: this should include compli- ‘three-way’ closings by arranging Asset Loan Management Limited ii) That you have been instructed ance with s172(3) per Guidance that a solicitor acting for NAMA or (NALM, a ‘NAMA group entity’) pur- by the Vendor or the Vendor’s 2011 35. a participating institution be avail- suant to the National Asset Manage- selling agent/surveyor/engineer 4. ROI and NI sales only. able at completion to exchange an ment Agency Act 2009. According- (who should be named) that any Insert details of the PI’s account executed release on receipt of the ly, any discharges and/or release maps appended to the Release into which the proceeds should net sale proceeds by way of bank will be executed by NALM. properly identify the Property; be lodged, if known. draft or e-transfer only. This will We confirm that, subject to: and 5. Insert PIs usual sign-off for NAMA apply for high value sales and, while i) compliance with all conditions iii) That the you have been instruct- related matters. NAMA has not specified any de included in the Approval,3 as ed by the Vendor or the Vendor’s 6. Insert PIs usual sign-off for NAMA minimis, it is expected that this will confirmed in writing by us to selling agent/surveyor/engineer related matters. only arise in significant commercial transactions or sales of particularly appendix 1B valuable properties. NAMA has confirmed it will also facilitate a Agreement to furnish release1 – on participating institution (PI) notepaper2 ‘three-way’ closing where it is join- Address to vendor’s/borrower’s so- erty is the subject of security Footnotes ing in as mortgagee in the deed of licitors and, if known, purchaser’s which has been transferred to 1. Note: as this agreement to provide assurance, which accordingly must solicitors] National Asset Loan Management the executed release is condition- be furnished to the purchaser’s so- [Date] Limited (NALM, a ‘NAMA group al only on the provision of the net licitor on completion. NAMA will [Borrower connection NAMA ID and entity’) pursuant to the National sale proceeds, it should be pro- confirm its position in this regard vendor/borrower’s name (the Ven- Asset Management Agency Act vided if any other commercial or on a case-by-case basis. All of the dor)3] 2009. Accordingly, any discharges legal conditions are outstanding requirements set out above will ap- [Description of property being sold/ and/or release will be executed by (unless it is agreed with the bor- ply in these cases too. released] (the Property) NALM. rower’s solicitors that such condi- Releases will be executed under We confirm that, subject to pay- tions remain in this letter. seal by NALM in the usual format Dear Sirs, ment by your firm of the agreed Net 2. Include the PI’s standard NAMA for a limited company. We refer to the proposed sale of Sale Proceeds of [insert amount]) strapline. This letter should be the above Property and the ap- to us4 in accordance with the Ap- adapted by the PI, as appropriate, NAMA’s interest in unregistered proval previously issued by us to proval, we will furnish you with the for sales outside of ROI. lands the Vendor in that respect (the Ap- agreed form Release, duly execut- 3. This will need to be adapted for Practitioners should be aware that proval). We are acting as service ed by NALM. receiver sales. there is currently no ‘searchable’ provider to National Asset Loan It is in order to furnish a copy 4. Insert details of the PI’s account means of establishing whether a Management Limited (NALM) and of the enclosed to the purchaser’s into which the proceeds should be mortgage or charge granted to a are authorised to issue this letter solicitor. lodged, if known. participating institution over un- on its behalf. 5. Insert PIs usual sign-off for NAMA registered lands has been trans- As you may be aware, the Prop- Yours faithfully5 related matters. ferred to NAMA. The committee Law Society Gazette www.gazette.ie Aug/Sept 2013 practice notes 51 briefing has made enquiries of NAMA as general banker’s and statutory ob- mation from participating insti- has been transferred to NAMA. to whether it would be possible ligations of confidentiality, they tutions that the relevant security Therefore, unless the practitioner to provide some notification of cannot confirm their ownership (or being released has not transferred is specifically on notice otherwise the fact of a transfer against the otherwise) in relation to any partic- to NAMA. Notwithstanding the (for example, their client has in- relevant entry on the Register of ular security (or property provided foregoing, but having regard to structed them that the relevant se- Deeds for that mortgage or charge. as security) directly to any person, the separation of the participating curity has transferred to NAMA), However, given the significant without the written consent of the institutions’ NAMA loan manage- it is not necessary to seek any ad- exercise that this would entail, in- relevant debtor. ment functions from their non- ditional verification in that respect volving resources on both NAMA’s NAMA functions, the committee in accepting a release or discharge and the Property Registration Au- Releases by participating considers, at this juncture, that it is from a participating institution. thority’s part, the committee has institutions of non-NAMA charged unlikely that a participating insti- If or when matters change, the been advised that this is simply not property tution could incorrectly continue committee will issue further rec- practicable. NAMA have also ad- The committee is aware that some to act as the party beneficially en- ommendations as may be neces- vised that, arising from both their practitioners are seeking confir- titled to a mortgage or charge that sary. Anti-money-laundering measures and existing clients A number of queries seeking further measures’ in section 32(3) – a term solicitors from 15 September 2003 sise the need for acquiring and/ information and clarification have that was not clarified or expanded (SI 242 of 2003). or updating CDD information in been received by the Society fol- upon elsewhere in the 1994 act –- respect of existing clients, stating lowing the publication of the eZine along with the non-retrospective Criminal Justice (Money (at page 21): “Designated persons article of March 2013 entitled ‘AML application of the provisions, led Laundering and Terrorist must carry out CDD before es- – no exemption for existing clients’. to the widely accepted interpreta- Financing) Act 2010 tablishing a business relationship The intent of the article was tion that existing or known clients A different approach to the preven- with a customer. In effect, desig- to broadly remind members that, were excluded from the statutory tion of money laundering is evident nated persons should have reliable where a firm provides an AML regu- requirement of taking reasonable in the Criminal Justice (Money Laun- CDD information for an existing lated service, they must carry out measures to establish the identity dering and Terrorist Financing) Act customer prior to carrying out any statutory AML client due diligence of clients. This interpretation arose 2010. This act repealed the relevant service for such a customer. Desig- (CDD). It had come to the attention from the particular manner of money-laundering sections of the nated persons should monitor their of the Law Society that some firms implementation of the AML pro- 1994 act and introduced a compre- dealings with existing customers, mistakenly believed that, if a client visions contained in the 1994 act hensive statutory AML regime in keep CDD information up to date was an existing client or was per- (sections 31, 32, 57, 57A and 58), their place. In contrast to the 1994 as warranted by the overall knowl- sonally known to the solicitor, then whereby the general elements of act, the 2010 act sets out in exten- edge the person has of the cus- there was no need to carry out any the statutory requirements were set sive detail what measures must be tomer, the nature of the business AML CDD at all (that is, any of the out in the 1994 act, but the details taken in carrying out statutory mea- relationship, and the risk of money four general CDD duties, including of how to implement the require- sures of what is now termed ‘cus- laundering or terrorist financing.” verification of identity). ments were set out in non-legally tomer due diligence’ – see sections As there is no exemption in the This note is intended to comple- binding Money-Laundering Guid- 33 to 39 of the 2010 act. 2010 act (either by way of explicit ment the eZine article – to clarify and ance Notes issued by the Money- In respect of the statutory re- provision or otherwise) from the reiterate in greater detail that there Laundering Steering Committee quirement of ‘identification and application of AML CDD to ‘exist- is no exemption for existing clients (MLSC), which was chaired by the verification of customers and bene- ing clients’ or to those clients per- from the AML statutory regime. Department of Finance. ficial owners’, there is no exemption sonally known to the solicitor, the The Guidance Notes for Financial for existing or personally known Society believes that solicitors are The Criminal Justice Act 1994, Institutions issued in May 2003 by clients contained in the detailed obliged under the 2010 act to un- as amended the MLSC clearly stated at para- steps set out in sections 33 to 39 or dertake AML CDD (the four stan- In the Criminal Justice Act 1994, as graph 36: “A credit institution is elsewhere in the 2010 act. In further dard obligations of CDD, includ- amended, there was no explicit pro- not expected to retrospectively contrast to the relevant provisions ing identification and verification) vision stating that existing clients establish the identity of persons of the 1994 act, there are clearly in relation to these clients. This were exempt from the AML require- who were already customers on defined exemptions from the iden- means that, for all new instructions ments of the 1994 act. Section 32 the 2 May 1995. Credit institutions tification requirements in respect relating to AML regulated legal of the 1994 act set out the statutory should, however, note that, on the of a ‘specified customer or specified services, even where the client is AML obligations to be undertaken good practice principle of ‘know product’ to be found in the 2010 personally known to the solicitor by designated bodies and, in respect your customer’, it is expected that act, all of which are listed in detail or the solicitor may have acted for of the identification of clients, sec- they will be aware of who it is they in section 34, that is, simplified the client in the past, AML CDD tion 32(3) stated: “A designated body are dealing with as customers.” CDD – but none of these exemp- should be applied. shall take reasonable measures to This approach was generally ac- tions relate to ‘existing’ or person- establish the identity of any person cepted across all relevant sectors of ally known clients. The Society’s guidance notes for whom it proposes to provide a designated bodies subject to these The guidance notes issued by for solicitors (in relation to the service of a kind mentioned in sub- obligations, including solicitors. the Department of Finance in Feb- 2010 act) section (2) of this section.” The AML statutory regime as set ruary 2012 for credit institutions The guidance set out at paragraph The use of the term ‘reasonable out in the 1994 act was applied to in respect of the 2010 act empha- 3.9 (referring only to the ongoing 52 practice notes Law Society Gazette www.gazette.ie Aug/Sept 2013 briefing monitoring process and verification Generally, keeping identification licitor to limit any potential expo- family circumstances, business ca- of identity on a risk-sensitive basis material up to date means that so- sure s/he may have under the 2010 reer, physical appearance, and so for existing clients who were previ- licitors may have to review it when act, there should be identification on). Verification is the means by ously exempt from identification) taking new instructions from a cli- evidence on file to support this: which a solicitor establishes that relates to the immediate period ent if there is a gap of over three “The general principle is that this information is correct based of time after the commencement years between instructions or if a solicitor should establish satis- on evidence provided by the client of the 2010 act on 15 July 2010. the firm receives information of a factorily that he is dealing with a or obtained by the solicitor inde- At that point in time, there may change in identity details (see para- real person or organisation (natu- pendently of the client. Chapters have been ongoing AML regulated graphs 3.10 to 3.13 and 5.44 to 5.47 ral, corporate or legal) and obtain 5 and 6 of the Society’s guidance transactions that had started before of the Society’s guidance notes). identification evidence sufficient to notes provide detailed guidance the 2010 act commenced (between In respect of the verification of establish that the client is that per- in respect of both aspects of this September 2003 and July 2010), identity obligation, the Society’s son or organisation.” statutory obligation. and which involved clients falling guidance notes offer practical guid- Identification is a process by Finally, as a matter of best prac- within the old exemption of being ance to solicitors at chapters 5 and which a solicitor obtains informa- tice and risk management, the personally known or ‘existing’. For 6. As stated in the guidance notes at tion from the client to establish Society is of the view that solici- this very specific type of transac- paragraph 6.5, the basic underlying who the client is. Besides the basic tors ought to identify all clients to tion, it was considered that the on- principle is that the solicitor must identification documentation such whom they wish to provide any going monitoring of the legal ser- be satisfied that the client (individ- as a passport, other supporting legal service. Chapter 6 of the vice that was in the process of being ual or corporate entity) is who they identity information can be accu- Society’s guidance notes provides provided would generally prove say they are and, in order for a so- mulated over time (for example, guidance in this respect. sufficient. The majority of these kinds of AML regulated transac- tions (commenced prior to July Ulster Bank’s requirement for priority search 2010) are presumably completed by this time. It is not intended that ret- in commercial mortgage lending rospective verification of identity conveyancing committee of this category of ‘existing client’ The Conveyancing Committee committee had sought confirma- the committee’s view is that there should be undertaken for past and has received queries from solici- tion from the bank that the matter should not be a bank requirement completed transactions, nor would tors on the requirement by Ulster would no longer be an issue once for a priority search as an auto- it be necessary. Bank for a priority search to be the above commercial undertak- matic requirement in every case However, if such a client carried out in commercial mort- ing would no longer be given but, and that it is a judgement call for (deemed ‘existing’ on the basis of gage lending cases. The query despite protracted correspon- each individual solicitor to make past provision of legal services or initially arose before commercial dence to the bank, the committee in each case. This position applies a client who is personally known) undertakings by borrowers’ so- has not received this assurance. whether the solicitor is a panel so- should approach the firm for fur- licitors to borrowers’ banks were In order to clarify the matter licitor acting for the bank or oth- ther services within an AML regu- prohibited at the end of 2010. The for conveyancing practitioners, erwise. lated legal service area, AML CDD measures are necessary, including the statutory duty to identify and IBRC (in special liquidation): execution verify the identity of such clients. This means that: of vacates/releases/discharges 1) If a client is personally known to conveyancing committee the solicitor, AML CDD should nonetheless be applied to the cli- The Conveyancing Committee has of a mortgage/full redemption should expect to see in the above ent, including the requirement received several queries from so- relating to unregistered title, a sealed documents is: for identification and so on, licitors about what they should ex- solicitor should write in to IBRC 2) If a client is categorised as exist- pect IBRC (in special liquidation) in the usual way requesting a va- The COMMON SEAL of IRISH ing because legal services were to provide in terms of deeds of re- cate. BANK RESOLUTION CORPO- previously provided to them at lease/discharge/vacates, including • If the property concerned has RATION LIMITED (IN SPECIAL a time before 15 July 2010, and in terms of how those documents registered title, IBRC will issue LIQUIDATION) was affixed to this this client later seeks further legal should be executed. Following en- an e-discharge in the usual way. DEED and this DEED was DELIV- services, AML CDD should be quires made by the committee with • If what is involved is a partial ERED applied, including the require- IBRC, the following has been con- release, a borrower’s solicitor [Kieran Wallace]/or ment of verification of identity. firmed to the committee. would need to liaise with the rel- [Eamon Richardson] Depending on when legal ser- IBRC has a process in place for evant business division at IBRC, As special liquidator vices were previously provided dealing with requests for discharg- for example, in a restructuring of to the client, identification and es/releases/vacates, and so on, and borrowings case, and so on, as If practitioners are experienc- verification may be carried out it also has a process in place for these matters are dealt with on a ing any difficulties with obtaining for the first time or previously having such documents sealed by case-by-case basis. sealed releases, discharges, or va- obtained identification material the special liquidator: cates, they should advise the com- may have to be updated. • If there is a straight discharge The execution block that solicitors mittee. G Law Society Gazette www.gazette.ie Aug/Sept 2013 regulation 53 briefing Solicitors Disciplinary Tribunal Reports of the outcomes of Solicitors Disciplinary Tribunal his accounting records, proper cember 2010, which deficit was inquiries are published by the Law Society of Ireland as provided books of account that showed due or partly due to the with- for in section 23 (as amended by section 17 of the Solicitors the true financial position in drawal of client moneys from (Amendment) Act 2002) of the Solicitors (Amendment) Act 1994 relation to the respondent so- one or more client accounts licitor’s transactions with clients without authority and not for In the matter of John F Condon, In the matter of Patrick Neli- moneys and/or with moneys the benefit of clients, in con- a solicitor practising as McMa- gan, solicitor, practising as Pat- transacted by the respondent travention of regulation 7(1) of hon & Tweedy Solicitors, Mer- rick Neligan, Solicitors, Main solicitor through the client ac- the Solicitors’ Accounts Regulations chant’s House, 27-30 Merchant’s Street, Maynooth, Co Kildare, count, in breach of regulation 12 2001 to 2006 (SI 421 of 2001 as Quay, Dublin 8, and in the mat- and in the matter of the So- of the Solicitors’ Accounts Regula- amended), and/or ter of the Solicitors Acts 1954- licitors Acts 1954-2011 [2705/ tions, and/or b) Created debit balances on client 2008 [3127/DT09/10] DT37/12] g) Failed to prepare balancing ledger accounts, in contraven- Law Society of Ireland (applicant) Law Society of Ireland (applicant) statements at the due dates, tion of regulation 7(2)(a) of the John F Condon (respondent Patrick Neligan (respondent in contravention of regulation Solicitors’ Accounts Regulations, solicitor) solicitor) 12(7)(a) of the Solicitors’ Accounts and/or On 28 September 2010 and 14 On 19 February 2013, the Solici- Regulations, and/or c) Withdrew monies from client April 2011, the Solicitors Disciplin- tors Disciplinary Tribunal found h) Failed to account for interest to accounts other than as permit- ary Tribunal sat to consider a case the respondent solicitor guilty of clients on monies held, in con- ted, in contravention of regu- against the respondent solicitor. misconduct in his practice as a so- travention of regulation 7(4) of lation 8(4) of the Solicitors’ Ac- The tribunal found the respondent licitor in that he: the Solicitors’ Accounts Regula- counts Regulations, and/or solicitor guilty of misconduct in his a) Created a deficit of in or around tions, and/or d) Withdrew monies from the cli- practice as a solicitor in that he: €108,000 to arise on the client i) Failed to account for interest to ent account that were not prop- a) Failed to respond to repeated account on or around 30 April named clients in contravention erly due to the solicitor at the letters and calls from two named 2011, which deficit was due or of regulation 7(4) of the Solici- time, in contravention of regu- persons in a timely manner or at partly due to the withdrawal tors’ Accounts Regulations, and/or lation 11(3) of the Solicitors’ Ac- all, of client moneys from one or j) Failed to account for interest on counts Regulations, and/or b) Failed to take any steps to dis- more client accounts without a sum of £11,250.00 (€14,285) e) Transferred monies to and from abuse said parties of their belief authority and not for the benefit owing to an untraced beneficia- client ledger accounts to hide that he was dealing with the mat- of clients, in contravention of ry of an estate, in contravention debit balances and clear over- ter for them and on their behalf regulation 7(1) of the Solicitors’ of regulation 7(4) of the Solici- drawn fees, in contravention of since 19 April 2000, Accounts Regulations 2001 to 2006 tors’ Accounts Regulations. regulation 9 of the Solicitors’ Ac- c) Allowed the complainants’ solici- (SI 421 of 2001 as amended), counts Regulations, and/or tors to think he was proceeding and/or The tribunal ordered that the re- f) Failed to maintain, as part of with the stamping of the docu- b) Created debit balances on client spondent solicitor: his accounting records, proper mentation when he was taking ledger accounts totalling in or a) Do stand censured, books of account that showed no steps to do so, around €7,594.63 on or around b) Pay the sum of €3,000 to the the true financial position in d) Failed to reply satisfactorily to 30 April 2011, in contravention compensation fund, relation to the respondent so- the Society’s correspondence of regulation 7(2)(a) of the Solici- c) Pay the whole of the costs of licitor’s transactions with clients and, in particular, the Society’s tors’ Accounts Regulations, and/or the Society, as taxed by a taxing moneys and/or with moneys letters of 19 February 2009, 4 c) Created a further deficit of master of the High Court in de- transacted by the respondent March 2009, 11 March 2009 and €2,069.46 on a named client ac- fault of agreement. solicitor through the client ac- 15 May 2009 in a timely manner count, which is unrecorded and count, in breach of regulation 12 or at all, not included in the deficit at (a) In the matter of John Feran, of the Solicitors’ Accounts Regula- e) Failed to respond satisfactorily to above, in contravention of regu- solicitor, formerly practising as tions, and/or numerous letters from the com- lation 11(3) of the Solicitors’ Ac- principal of Feran & Co, Solici- g) Created incorrect balancing plainant. counts Regulations, and/or tors, Constitution Hill, Droghe- statements that did not reflect d) Created a further deficit of da, Co Louth, and in the matter the true position in respect of On 22 January 2013, a separate di- €2,231.82 on a named client ac- of the Solicitors Acts 1954-2011 client monies, in contravention vision of the tribunal ordered that count, which is unrecorded and [2677/DT39/12[ of regulation 12(7)(a) of the the respondent solicitor: not included in the deficit at (a) Law Society of Ireland (applicant) Solicitors’ Accounts Regulations, a) Do stand censured, above, in contravention of regu- John Feran (respondent solicitor) and/or b) Pay a sum of €5,000 to the com- lation 11(3) of the Solicitors’ Ac- On 26 February 2013, the Solici- h) Created incorrect entries in the pensation fund, counts Regulations, and/or tors Disciplinary Tribunal found cash book that did not reflect c) Pay a sum of €1,000 as restitu- e) Withdrew monies from client the respondent solicitor guilty of the date upon which client mon- tion to a named party, accounts other than as permit- misconduct in his practice as a so- ies were received and lodged, d) Pay a contribution of €4,000 ted, in contravention of regu- licitor in that he: in contravention of regulation towards the whole of the costs lation 8(4) of the Solicitors’ Ac- a) Created a deficit of in or around 20(1)(a) of the Solicitors’ Accounts of the Society, including witness- counts Regulations, and/or €33,053.40 to arise on the client Regulations, and/or es’ expenses. f) Failed to maintain, as part of account on or around 31 De- i) Failed to maintain a journal with 54 regulation Law Society Gazette www.gazette.ie Aug/Sept 2013 briefing a narrative explaining the trans- permitted to practise as a sole d) Failed to attend a meeting of the stamping of the deed, fers between different client practitioner or in a partnership, Regulation of Practice Commit- c) Misled his clients, ledger accounts, in contraven- that he be permitted only to tee on 21 May 2009, despite be- d) Misled his clients’ new solicitor, tion of regulation 20(1)(d) of the practise as an assistant solicitor ing required to so attend, e) Failed to reply to correspon- Solicitors’ Accounts Regulations. in the employment and under e) Allowed an estimated overall def- dence from the Society, the direct control and supervi- icit to arise on the client account f) Failed to attend a meeting of the The tribunal ordered that the re- sion of another solicitor of at of €58,771, as of 30 April 2009, Complaints and Client Rela- spondent solicitor: least ten years’ standing, to be f) Failed to stamp deeds on time, tions Committee when required a) Do stand censured, approved in advance by the So- incurring substantial interest to do so. b) Pay a sum not exceeding €5,000 ciety, and penalties on late stamping of as a contribution towards the b) The respondent solicitor pay deeds in question, The tribunal ordered that the mat- whole of the costs of the Society. the whole of the costs of the g) Transferred stamp duty funds to ter go forward to the High Court, Society, to be taxed by a taxing his office account from the client and the President of the High In the matter of Patrick McCar- master of the High Court in de- account, ostensibly as fees, Court, on 8 April 2013, made the thy, solicitor, formerly practis- fault of agreement. h) Failed to discharge third-party li- following orders: ing as McCarthy & Co, Second abilities in two matters, amount- a) That the name of the respon- Floor, Building 1000, City Gate, The President of the High Court, ing to €32,074, dent solicitor be struck from the Mahon, Cork, and in the matter on 8 April 2013, made the follow- i) Used €3,090 of the monies for Roll of Solicitors, of the Solicitors Acts 1954-2011 ing orders: third-party liabilities referred to b) That the Society do recover the [7748/DT131/10 and High a) That the name of the respon- above to pay legal costs drawers’ costs of the proceedings before Court record no 2013/39 SA] dent solicitor shall be struck fees. the High Court and the costs of Law Society of Ireland (applicant) from the Roll of Solicitors, the proceedings before the So- Patrick McCarthy (respondent b) That the Society do recover the The tribunal ordered that the mat- licitors Disciplinary Tribunal as solicitor) costs of the proceedings before ter go forward to the High Court, against the respondent solicitor, On 27 January 2011, the Solicitors the High Court and the costs of and the President of the High to be taxed in default of agree- Disciplinary Tribunal found the the proceedings before the So- Court, on 8 April 2013, made the ment. respondent solicitor guilty of mis- licitors Disciplinary Tribunal as following orders: conduct in his practice as a solici- against the respondent solicitor, a) That the name of the respondent In the matter of Brian Johnston, tor in that he: to be taxed in default of agree- solicitor be struck from the Roll a solicitor formerly practising as a) Failed to comply with his so- ment. of Solicitors, Brian Johnston & Co, Solicitors, licitor’s undertaking to a lend- b) That the Society do recover the 79 Park Street, Dundalk, Co ing institution, dated 3 Decem- In the matter of Patrick McCar- costs of the proceedings before Louth, and in the matter of the ber 2007, up to the date of the thy, solicitor, formerly practis- the High Court and the costs of Solicitors Acts 1954-2008 [6927/ swearing of the Society’s affida- ing as McCarthy & Co, Second the proceedings before the So- DT95/11 and High Court re- vit, Floor, Building 1000, City Gate, licitors Disciplinary Tribunal as cord no 2013/60 SA] b) Failed to reply to correspon- Mahon, Cork, and in the matter against the respondent solicitor, Law Society of Ireland (applicant) dence from the lending institu- of the Solicitors Acts 1954-2011 to be taxed in default of agree- Brian Johnston (respondent tion, [7748/DT144/11 and High ment. solicitor) c) Failed to reply to correspon- Court record no 2013/40 SA] On 11 April 2013, the Solicitors dence from the Society, Law Society of Ireland (applicant) In the matter of Patrick McCar- Disciplinary Tribunal found the d) Failed to attend meetings of the Patrick McCarthy (respondent thy, solicitor, formerly practis- respondent solicitor guilty of mis- Complaints and Client Rela- solicitor) ing as McCarthy & Co, Second conduct in his practice as a solici- tions Committee, On 5 July 2012, the Solicitors Floor, Building 1000, City Gate, tor in that he: e) Misled the Society in repre- Disciplinary Tribunal found the Mahon, Cork, and in the mat- a) Failed to comply within a rea- senting to the Society that respondent solicitor guilty of mis- ter of the Solicitors Acts 1954- sonable time or at all with an documents had been sent to the conduct in his practice as a solici- 2011 [7748/DT120/11 and High undertaking given by him dated Property Registration Authority tor in that he: Court record no 2013/41 SA] 31 January 2006, whereby he when they had not, a) Breached regulation 12(1) by Law Society of Ireland (applicant) undertook to procure a deed of f) Failed to discharge the contri- failing at all times to maintain Patrick McCarthy (respondent partial discharge, bution towards the costs of the proper books of account, solicitor) b) Failed to reply adequately or investigation of the complaint of b) Breached regulation 12(2)(a) On 5 July 2012, the Solicitors at all to the complainant’s cor- €550, as directed by the Com- by failing to maintain books of Disciplinary Tribunal found the respondence and, in particular, plaints and Client Relations account that showed the true respondent solicitor guilty of mis- letters dated 18 May 2009, 21 Committee, up to the date of financial position in relation conduct in his practice as a solicitor July 2009, 13 August 2009, 14 the swearing of the Society’s af- to his transactions with clients’ in that he: May 2010 and 1 October 2010. fidavit. moneys, a) Failed to stamp and register a c) Breached regulation 7(2)(a) by deed of conveyance in a timely The tribunal ordered that the mat- The tribunal ordered that the mat- allowing debit balance to arise manner or at all, ters go forward to the High Court ter go forward to the High Court on client ledgers in circumstanc- b) Severely prejudiced his clients by and, on 10 June 2013, Mr Justice with the recommendation that: es other than permitted by this allowing interest and penalties O’Neill made the following or- a) The respondent solicitor not be subsection, to accrue in relation to the non- ders: Law Society Gazette www.gazette.ie Aug/Sept 2013 regulation 55 briefing a) That the name of the respon- of 15 November 2004 and 31 b) That the respondent solicitor in a timely manner or at all, and dent solicitor shall be struck May 2005 and in circumstances do pay the Society the costs of in particular to all or some let- from the Roll of Solicitors, where loans the subject of those the proceedings before the High ters dated 27 April 2010, 29 June b) That the respondent solicitor undertakings remained out- Court and the costs of the pro- 2010, 26 July 2010, 10 August do pay the Society the costs standing. ceedings before the tribunal, to 2010 and 1 September 2010, of the Solicitors Disciplinary be taxed in default of agreement. e) Failed without reasonable ex- Tribunal to include witness ex- The tribunal ordered that the re- cuse to attend a meeting of the penses, to be taxed in default of spondent solicitor: In the matter of Adam A Suzin, Complaints and Client Rela- agreement, a) Do stand censured, a solicitor formerly practising as tions Committee on 22 Septem- c) That the respondent solicitor b) Pay a sum of €2,000 to the com- Adam A Suzin & Co, Solicitors, ber 2010, as required by letter do pay to the Society the costs pensation fund, 6 Keon’s Terrace, Longford, Co from the Society dated 10 Sep- of the High Court proceedings, c) Pay a contribution of €2,000 Longford, and in the matter of tember 2010, to be taxed in default of agree- towards the whole of the costs the Solicitors Acts 1954-2008 f) Failed without reasonable ex- ment. of the Society, to include witness [10064/DT103/11 and High cuse to attend a meeting of the expenses. Court record no 2013/59SA] Complaints and Client Rela- In the matter of Sean McGlynn, Law Society of Ireland (applicant) tions Committee on 27 October formerly practising as Sean Mc- In the matter of Francis McAr- Adam A Suzin (respondent 2010, as required by order of the Glynn & Co, Solicitors, Suite dle, solicitor, formerly practis- solicitor) High Court dated 18 October 41, Town Centre, Justice Walsh ing as McArdle & Associates, On 10 April 2013, the Solicitors 2010, Road, Letterkenny, Co Done- Solicitors, 10 Roden Place, Disciplinary Tribunal found the g) Failed without reasonable ex- gal, and in the matter of the Dundalk, Co Louth, and in respondent solicitor guilty of mis- cuse to attend a meeting of the Solicitors Acts 1954-2008 [5520/ the matter of the Solicitors Acts conduct in his practice as a solici- Complaints and Client Rela- DT35/12] 1954-2008 [2472/DT12/11] tor in that he: tions Committee on 14 Decem- Law Society of Ireland (applicant) Law Society of Ireland (applicant) a) Failed to pay stamp duty to a ber 2010 as directed by the com- Sean McGlynn (respondent Francis McArdle (respondent named firm of solicitors, either mittee on 27 October 2010, solicitor) solicitor) at all or in a timely manner, to h) Failed without reasonable ex- On 11 June 2013, the Solicitors On 13 November 2012, the Solici- enable the firm to comply with cuse to attend a meeting of the Disciplinary Tribunal found the tors Disciplinary Tribunal found their undertaking to a named Complaints and Client Rela- respondent solicitor guilty of mis- the respondent solicitor guilty bank, tions Committee on 16 Febru- conduct in his practice as a solici- of misconduct in his practice as a b) Failed to comply with outstand- ary 2011 as directed by the com- tor in that he: solicitor in that, up to the date of ing matters, either at all or in mittee on 14 December 2010. a) Failed to honour an undertak- referral of this matter to the tribu- a timely manner, to enable a ing given to a named financial nal, he: named firm of solicitors to com- The tribunal referred the matter institution, dated 15 November a) Failed to comply with his under- ply with their undertaking to a to the High Court and, on 8 July 2004, on behalf of named clients taking dated 23 October 1997 to named bank, 2013, Mr Justice O’Neill made the in respect of a loan advanced to a named bank in a timely man- c) Permitted and/or had knowl- following orders: his clients, whereby he under- ner or at all, and/or edge of the fact that two un- a) That the name of the respon- took to register a mortgage over b) Failed to reply to one or more dertakings came into being in dent solicitor be struck from the a property in Letterkenny, Co letters from that bank in a timely respect of the same property at Roll of Solicitors, Donegal, and to furnish title manner or at all, notwithstand- the same time, without taking b) That the respondent pay the So- documents and mortgage deed ing his undertaking to them. any or any sufficient steps to ciety the costs of the High Court to the financial institution, alert the solicitors and/or the proceedings and the costs of b) Failed to honour an undertak- The tribunal ordered that the mat- financial institutions involved to the proceedings before the So- ing given to the same financial ter should go forward to the High the situation, licitors Disciplinary Tribunal to institution, dated 31 May 2005, Court and, on 24 June 2013, the d) Failed to respond to correspon- include witness expenses, to be on behalf of the same clients in President of the High Court made dence from the Society, either taxed in default of agreement. G respect of a loan advanced to his the following orders on consent: clients, whereby he undertook a) That the respondent solicitor be to register a mortgage over the restricted from practice as a sole same property in Letterkenny, practitioner or in a partnership, Co Donegal, and to furnish title that he be permitted only to consult a colleague documents and mortgage deed practise as an assistant solicitor to the financial institution, in the employment and under c) Released the balance sale pro- the direct control and supervi- 01 284 8484 ceeds of the property in Let- sion of another solicitor of at terkenny, Co Donegal, to his least ten years’ standing, to be The Consult a Colleague helpline is available clients in circumstances where approved in advance by the So- to assist every member of the profession with he had failed to put in place ciety (said order to be stayed un- any problem, whether personal or professional the financial institution’s secu- til such time as the respondent The service is completely confidential and rity over that property in ac- solicitor obtains a new practic- totally independent of the Law Society cordance with his undertakings ing certificate), 56 legislation update Law Society Gazette www.gazette.ie Aug/Sept 2013 briefing Legislation update 11 June – 11 August 2013 Details of all bills, acts and statutory instruments since 1997 Gives effect to Council Direc- cable to acute in-patient services in are on the library catalogue – www.lawsociety.ie (members’ and tive 2013/1/EU of 20/12/2012 public hospitals and applies charg- students’ areas) – with updated information on the current stage on nomination procedures to the es to all private in-patient services European Parliament and for that in public hospitals. Provides for a bill has reached and the commencement date(s) of each act. purpose amends the European related matters. All recent bills and acts (full text in PDF) are on www.oireachtas.ie Parliament Act 1997; amends the Commencement: 1/1/2014 for and recent statutory instruments are on a link to electronic Electoral Act 1992, the Referendum sections 13, 15, 16, 17; commence- statutory instruments from www.irishstatutebook.ie Act 1994, the Electoral Act 1997, ment orders to be made for other the Planning and Development Act sections, as per s2 of the act acts passed Criminal Law (Human Trafficking) 2000 and the Local Government Central Bank (Supervision and Act 2008 to fully comply with the Act 2001, and provides for related Health Service Executive Enforcement) Act 2013 criminal law provisions of Direc- matters. (Governance) Act 2013 Number: 26/2013 tive 2011/36/EU, which replaces Commencement: Commence- Number: 23/2013 Further provides for the regulation Council Framework Decision ment orders required for parts 4, 5 Provides a framework for a new and supervision of financial service 2002/629/JHA; provides that the and 7 as per s1(7) of the act governance structure and associ- providers and financial services; commission of a human trafficking ated new administrative structures further provides for the enforce- offence by a public official shall be European Union (Accession of that are designed to: (i) make the ment of financial services legisla- treated as an aggravating circum- the Republic of Croatia) (Access Health Service Executive (HSE) tion; provides for the protection stance for sentencing purposes, as to the Labour Market) Act 2013 more directly accountable to the of persons reporting breaches; required by the directive; defines Number: 21/2013 Minister for Health, who in turn is amends and extends the Central the term ‘forced labour’, as used Provides for the employment in accountable to the people through Bank Acts 1942-2010 and certain in the Criminal Law (Human Traf- Ireland of nationals of the Re- the Oireachtas; (ii) help prepare other acts and statutory instru- ficking) Act 2008, and provides for public of Croatia, further to the the service delivery and funding ments, and provides for related related matters. treaty concerning the accession systems for the next phase of the matters. Commencement: 9/8/2013 as of the Republic of Croatia to the health reform programme; and Commencement: 1/8/2013, ex- per s5(2) of the act European Union done at Brussels (iii) facilitate further changes in re- cept for section 72 (per SI on 9/12/2011. This treaty was rati- sponsibilities that achieve greater 287/2013) Courts and Civil Law (Misc- fied by Ireland on 21/9/2012 and integration and less duplication in ellaneous Provisions) Act 2013 was due to be ratified by all 27 EU relation to national support func- Construction Contracts Act 2013 Number: 32/2013 member states by the end of June tions. Amends the Health Act 2004 Number: 34/2013 Amends the Civil Liability and 2013. Therefore, entry into force to abolish the board and CEO Regulates payment and certain Courts Act 2004 and the Child Care and accession of Croatia to the EU structure of the HSE and to pro- other matters under construction Act 1991 to alter the in camera is due to take place on 1/7/2013. vide for a directorate to be the new contracts and provides for related rule in order to introduce greater Commencement: 1/7/2013 for governing body for the HSE in matters. transparency in the administration all sections place of the board, headed by a di- Commencement: Commence- of family and child care law by al- rector general; provides for further ment order(s) required as per s1(2) lowing press access to the courts Further Education and Training accountability arrangements for of the act in family and child care proceed- Act 2013 the HSE, and provides for related ings, subject to certain restrictions Number: 25/2013 matters. Criminal Justice Act 2013 and prohibitions, including a strict Provides for the establishment Commencement: 25/7/2013 for Number: 19/2013 prohibition on the publication of of a body known as an tSeirb- all sections (per SI 275/2013) Amends the Criminal Justice (Mon- any material that would lead to hís Oideachais Leanúnaigh agus ey Laundering and Terrorist Financ- the identification of the parties or Scileanna (SOLAS), under the Houses of the Oireachtas ing) Act 2010 to provide for the children involved. Amends various aegis of the Department of Edu- (Inquiries, Privileges and cessation of mobile communica- enactments for the purpose of in- cation and Skills; provides for the Procedures) Act 2013 tions services where necessary for creasing the monetary jurisdiction dissolution of An Foras Áiseanna Number: 33/2013 the aversion of serious threats, and limits of the Circuit Court and Saothair (FÁS) and the transfer of Provides for the exercise by provides for related matters. District Court in personal injuries its functions to SOLAS; repeals either house or both Houses of Commencement: Commence- actions and other civil proceed- the Labour Services Act 1987; and the Oireachtas (or by a commit- ment order(s) required for part 2 ings. provides for related matters. tee of either house or both houses) as per Commencement: 31/7/2013 for Commencement: Commence- of a power to conduct an inquiry s1(3) of the act part 8 (per SI 286/2013); com- ment orders required as per s1(2) into specified matters within mencement orders required for of the act existing constitutional parameters; Criminal Law (Human other sections provides for matters relating to Trafficking) (Amendment) Health (Amendment) Act 2013 compellability, privilege and pro- Act 2013 Electoral, Local Government Number: 31/2013 cedure in the houses (and in com- Number: 24/2013 and Planning and Development Amends the Nursing Home Support mittees of either house or both Extends the scope of exploit- Act 2013 Scheme Act 2009 and the Health Act houses); and provides for related ative activities criminalised by the Number: 27/2013 1970. Increases the charges appli- matters. Law Society Gazette www.gazette.ie Aug/Sept 2013 legislation update 57 briefing Commencement: Commence- the repeal and amendment of Commencement: Commence- an offence of intentional destruc- ment order(s) required as per those statutory provisions by ment order(s) to be made as per tion of unborn human life; to s1(2) of the act the Land and Conveyancing Law s4(2) of the act amend the Health Act 2007; to re- Reform Act 2009. Also provides peal sections 58 and 59 of the Of- Housing (Amendment) Act for the adjournment of actions Prison Development (Confirm- fences Against the Person Act 1861; 2013 for repossession in certain cases ation of Resolutions) Act 2013 and to provide for matters con- Number: 22/2013 relating to the principal private Number: 28/2013 nected therewith. Amends section 31 of the Hous- residence of the borrower, where Confirms the resolutions of Dáil Commencement: Commence- ing (Miscellaneous Provisions) Act it is considered by the court that Éireann and Seanad Éireann un- ment order(s) required as per s1(2) 2009 relating to local authority the matter could be resolved by der section 26 of the Prisons Act of the act rents so that the enactment can recourse to the Personal Insolvency 2007 approving the development be brought into operation in an Act 2012. of a new prison in the city of Cork Social Welfare and Pensions effective sequence. Commencement: 31/7/2013 on a site adjacent to the existing (Miscellaneous Provisions) Act Commencement: 2/7/2013 for for sections 2 and 3 (per SI prison. 2013 all sections 289/2013) Commencement: 23/7/2013 Number: 20/2013 Amends and extends the Social Land and Conveyancing Law Ministers and Secretaries Protection of Life during Welfare Acts, the Civil Registration Reform Act 2013 (Amendment) Act 2013 Pregnancy Act 2013 Act 2004, the Pensions Act 1990, Number: 30/2013 Number: 29/2013 Number: 35/2013 and provides for related matters. Provides that certain statutory Amends the Ministers and Secretar- An act to protect human life Commencement: Commence- provisions apply to mortgages ies (Amendment) Act 2011 to make during pregnancy; to make provi- ment order(s) required for ss3, created prior to the commence- provision for Government expen- sion for reviews at the instigation 8, 15, 22(b), 26-29 and 34, as per ment of the Land and Convey- diture ceilings and ministerial ex- of a pregnant woman of certain s1(5) of the act G ancing Law Reform Act 2009 penditure ceilings for each of the medical opinions given in re- (1/12/2009), notwithstanding following three financial years. spect of pregnancy; to provide for Prepared by the Law Society Library

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Diploma ad half page Gazette Sept 2013.indd 1 28/08/2013 14:21 58 eurlegal Law Society Gazette www.gazette.ie Aug/Sept 2013 briefing Eurlegal Edited by TP Kennedy, Director of Education Going Dutch: breweries fined in cartel beer case Late last year, the Court of Jus- tice of the European Union (CJEU) upheld decisions of the General Court largely affirm- ing a 2007 European Commis- sion decision fining the brewers Heineken NV and Bavaria NV for their involvement in a cartel in the Dutch beer sector (judg- ments of 19 December 2012 in Case C-445/11P, Bavaria NV v Commission and Case C-452/11P, Heineken Nederland BV and Oth- ers v Commission). These deci- sions mark the end of a long road. Article 101 of the Treaty on the Functioning of the European Union (TFEU), formerly article 81 of the EC Treaty, prohibits agree- ments between undertakings, de- cisions by associations of under- takings, and concerted practices that have the object or effect of restricting competition in the EU. Price-fixing, market-shar- ing and other forms of cartels between competitors are seen as the most serious infringements of competition law. Further to AB InBev’s leni- representatives of the commis- commercial conditions in the on- ency application, the commis- sion and national competition trade channel, such as loans to Dawn raids sion undertook dawn raids in authorities. retailers. Evidence of handwritten In 1999, following a dawn raid the Netherlands in March 2000. notes taken at unofficial meetings on the Belgian-based headquar- Over four years later, the com- Operation of the cartel was discovered. According to the ters of AB InBev (at the time mission opened formal legal pro- Evidence uncovered during the commission, these documents pro- known as Interbrew) focusing on ceedings and issued a statement commission’s investigations re- vide proof of the dates and places a possible abuse of a dominant of objections (SO) to AB InBev, vealed that the four beer companies when and where the meetings took position, the commission opened Heineken, Grolsch and Bavaria had held numerous multilateral and place, confirming statements pro- an investigation regarding car- for their alleged involvement in bilateral meetings involving the vided by AB InBev under the leni- tel activity on the Belgian beer a cartel. Each brewer (with the highest levels of management, in- ency programme. market. On foot of this, AB In- obvious exception of AB InBev) cluding board members, managing Bev came forward and provided objected to the commission’s directors and national sales manag- Fines imposed information under the commis- preliminary findings. The SO is ers. According to the commission, In an April 2007 decision, the sion’s leniency programme re- a formal step in commission in- meetings were conducted secretly commission found that AB InBev, garding alleged anti-competitive vestigations into suspected vio- under the guise of codenames such Heineken, Bavaria and Koninkli- practices in France, Luxem- lations of EU competition rules. as ‘working group on agenda’ and jke Grolsch NV had infringed arti- bourg, Italy and the Nether- In the SO, the commission in- ‘Catherijne consultation’. The cle 101 TFEU by participating in a lands. This leniency programme forms the parties concerned in commission found that, at these cartel on the market for beer in the encourages participants to pro- writing of the objections raised meetings, the brewers involved al- Netherlands from early 1996 to vide the commission with ‘in- against them. The parties can located customers and coordinated late 1999. On the basis of the com- side information’ on cartels and then examine the documents in prices/price increases of beer in the mission’s leniency programme, AB grants the applicant immunity the commission’s investigation Netherlands in both the on-trade InBev was granted total immunity from or significant reductions in file, reply in writing, and request and off-trade channels. In addition, from fines, as it had informed the fines, provided it cooperates fully an oral hearing to present their the commission held that the brew- DG Competition of the existence with the investigation. comments on the case before ers occasionally coordinated other of the cartel, provided crucial doc- Law Society Gazette www.gazette.ie Aug/Sept 2013 eurlegal 59 briefing umentation, and cooperated fully sion for the Grolsch group, ap- commercial conditions relating to other party to the proceedings. with the investigation. pealed the commission’s decision the loans to retailers. In doing so, The CJEU rejected this argument Due to the strong position of the on the grounds that it had not the court stated that the commis- and held that the rights of defence brewers on the Dutch beer mar- directly participated in the alleged sion must produce corroborating of both brewers had not been in- ket, the nature of the article 101 infringement. It argued that it was evidence where the accuracy of a fringed, as Heineken and Bavaria infringement, and the fact that the employees of its wholly owned leniency applicant’s statements is had not proven that such access cartel affected the entire territory subsidiary, Grolsch Beirbrouweriji being challenged. The commis- would have assisted their respec- of the Netherlands, the commis- Nederland BV, who attended most sion had sought to rely on various tive defence. All other pleas were sion categorised the infringement of the meetings at issue. After a handwritten notes uncovered dur- also dismissed. committed by the brewers as ‘very review of documentation of the ing the dawn raids. However, the serious’, noting that it had the ob- meetings available to the com- court found that this evidence was Lessons learned ject of, among other things, fixing mission, the court concluded that capable of being interpreted differ- The commission decision, allied prices, thereby restricting compe- there was insufficient evidence ently. to the judgments of the General tition and affecting trade between to establish the direct liability of Secondly, it held that the ad- Court and the CJEU, send a clear EU member states. Koninklijke Grolsch NV. ministrative procedure was un- message to organisations that car- In calculating the fines, the com- The court then dealt with the reasonably long and that the fixed tels will not be tolerated in the mission took into account the ex- issue of parental liability for ac- reduction of €100,000 per brewer, European Union. The decisions of tent of the markets for beer, the tions of subsidiaries. CJEU juris- as granted by the commission, was the General Court provide guid- size of the companies involved, prudence states that, where a par- not sufficient. However, the court ance on the circumstances under and the duration the cartels oper- ent company holds 100% of the did not go so far as to annul the which a commission decision may ated. The commission applied dif- issued share capital of a subsidiary fine, given that, notwithstanding be partially annulled. Where the ferential treatment to the brewers that has committed an infringe- the long delay, the rights of the de- administrative process or inves- involved in order to take account ment of EU competition rules, fence were not adversely affected. tigation is deemed to have been of their effective economic capacity there is a rebuttable presumption Consequently, the General Court unreasonably long, fines must be and thus the impact of their anti- that the parent company exercises held that the reduction should be reduced accordingly. The court’s competitive conduct. In calculating influence over the conduct of its increased to 5% of the fine. As a views should thus encourage the the starting amount, the commis- subsidiaries and is therefore jointly result, the court lowered the fines commission to conduct its inves- sion considered sales figure from and severally liable. However, the imposed on Heineken and Bavaria tigations in a more expeditious 1998, the last full calendar year court found that the commission to €198 million and €20.71 mil- manner. of the infringement. To ensure a had made no reference to any lion respectively. The General Court followed sufficient deterrent effect, an ad- link between the two companies, previous jurisprudence on paren- ditional 2.5 multiplier was applied thus denying Koninklijke Grolsch Appeal to the CJEU tal liability for competition law to Heineken’s starting amount, in NV any opportunity to rebut Despite the reduction in fines, infringements. The commission view of its financial strength. Fines this presumption. The court fur- both Heineken and Bavaria ap- must therefore give detailed rea- are generally increased by 10% for ther found that the commission pealed the decision of the General sons for imputing liability on a each year of the infringement and had failed to set out the reasons Court to the CJEU. The brewers parent company for the behaviour by 5% for each six-month period for attributing the conduct of its had argued that they were treated of its subsidiaries. Where the sub- or period of less than a year. As the subsidiary to Koninklijke Grolsch unfairly in comparison to the com- sidiary is 100% owned by the par- cartel continued for three years and NV and in fact had not referred to panies fined for their participation ent company, this must be outlined eight months, the starting amount the name of the subsidiary in the in a Belgian beer cartel uncovered in the SO before any presumption for each brewer was thus increased SO. For this reason, the General prior to AB InBev’s leniency appli- may arise. The commission can- by 35%. Court declared the decision of the cation regarding the Dutch cartel. not simply equate one company to As it had been over seven years commission void insofar as it con- The CJEU determined that the the other. Moreover, the General since the initial dawn raids, the cerned Koninklijke Grolsch NV’s circumstances that were the sub- Court, exercising its supervisory commission accepted that the pro- participation in the cartel and an- ject of the commission’s decision role, has again demonstrated its cess had been unduly long and, nulled the €31.6 million fine. in respect of the Dutch beer cartel willingness to amend the commis- accordingly, reduced the fine im- Heineken and Bavaria appealed could not be compared to those sion’s cartel fines. posed on each of the brewers by to the General Court on several of the Belgian beer cartel and, as Finally, potential fines and – in €100,000. The commission ul- grounds, including violation of the such, the principle of equal treat- certain jurisdictions such as Ireland timately fined Heineken €219.2 principles of good administration ment had not been infringed. The – jail sentences are not the only million, Bavaria €22.8 million and and due process, lack of evidence, court found that every cartel is dif- penalties cartel participants may Grolsch €31.6 million, a total of and the length of the procedure. ferent and thus the relevant fines face. In June 2013, the commission €273 million. Each company ap- The General Court refused to an- should reflect the specific and sin- proposed a package of measures pealed the commission’s decision nul the decision, but reduced the gular characteristics of the relevant aimed at making it easier for cartel to the General Court, formerly the fines imposed on Heineken and cartel. Heineken and Bavaria also victims to seek financial compen- Court of First Instance. Bavaria for two reasons. claimed that their respective right sation through the courts. G Firstly, it found that the com- of defence had been breached by Appeal to the General Court mission had not provided suf- the commission’s refusal to give Cormac Little is a partner and head Koninklijke Grolsch NV, the ad- ficient evidence with respect to access to the information refer- of the Competition and Regulation dressee of the commission’s deci- the occasional coordination of enced in the SO provided by an- Unit in William Fry. 60 Professional notices Law Society Gazette www.gazette.ie Aug/Sept 2013 notices

Wills Rates Archer, Michael Ernest (de- ceased), late of 10 The Park, Quin, Ennis, Co Clare, formerly of 45 Professional notice rates Latimer Avenue, East Ham, Lon- rates in the Professional notices section are as follows: don E6 2LQ, England. Would any • Wills – €147 (incl VAT at 23%) person having knowledge of any • Title deeds – €294 per deed (incl VAT at 23%) will made by the above-named de- • Employment/miscellaneous – €147 (incl VAT at 23%) ceased, who died on 2 March 2013, please contact John C O’Donnell Highlight your notice by putting a box around it – €33 extra & Sons, Solicitors, Atlantic House, 39 Prospect Hill, Galway; tel: 091 All notices must be paid for prior to publication. Cheques should be made 561 128, fax: 091 561 481, email: payable to Law Society of Ireland. Deadline for October Gazette: 18 September 2013. [email protected] For further information, contact the Gazette office on tel: 01 672 4828 (fax: 01 672 4877)

Cooney, Annette (née Gleeson) (deceased), late of 30 Townholme Clare. Would any person hav- Road, Dublin 4; tel: 01 660 8955, ing knowledge of a will made by Crescent, Hanwell, London W7 ing knowledge of a will executed fax 01 660 8877, email: info@ the above-named deceased please 2HA and formerly of 120 Lynwood by the above-named deceased, acforde.com contact her daughter Maeve at Park, Ballysimon, Limerick who who died on 6 November 2012, email: [email protected] died on 25 June 2012. Would any please contact Kerin Hickman & O’Donnell, John (deceased), person having knowledge of any O’Donnell, Solicitors, 2 Bindon late of 6 Greenfield Place, Harolds Reilly, Pascal (deceased), late will executed by the above-named Street, Ennis, Co Clare; tel: 065 Cross, Dublin 6W, who died on 27 of Grange, Dunsany, Co Meath. deceased, please contact Alex 682 8712/682 8466, fax: 065 684 November 2012. Would any per- Would any person having knowl- O’Neill, Solicitors, 22 Barrington 0243, email: [email protected] son having knowledge of any will edge of a will made by the above- Street, Limerick, tel: 061 313 844, executed by the above-named de- named deceased, who died on 3 email: [email protected] Folley, Brian (deceased), late ceased please contact Business and August 2012, please contact Fabian of The White Cottage, Gallows Commercial Solicitors at 32 Lower Cadden & Co, Solicitors, Main Cox, Nuala (née O’Donnell) (de- Hill, Tallow, Co Waterford, for- Leeson Street, Dublin 2; tel 01 708 Street, Dunshaughlin, Co Meath; ceased), late of St Brendan’s Vil- merly of 20C Hargrave Park, 8471, email: law@businesslawyers. DX 80003 Dunshaughlin; tel: 01 lage, Mulranny, Co Mayo, and for- London N19 5JL, who died on ie 825 0299, fax: 01 825 0612, email: merly of Apartment 5, Parklands, 4 July 2013. Any solicitor hold- [email protected] James Street, Westport, Co Mayo. ing or having knowledge of a Flaherty, Mary (deceased), late Would any person having any will made by the above-named of Inis Meáin, Árainn, Co na Gail- Walsh, Anna (deceased), late knowledge of the whereabouts of deceased please contact Regina limhe, who died on 28 October of 61 Johnstown Grove, Dun any will made by the above-named Forrest, solicitor, Messrs Healy, 2012. Would any person having Laoghaire, Co Dublin, who died deceased, who died on 3 October Crowley & Company, Solicitors, knowledge of the whereabouts of on 7 May 2012. Would any person 2012, please contact James Cahill, West Street, Tallow, Co Wex- any will made by the above-named having knowledge of the where- Cahill & Cahill, Solicitors, Ellison ford; tel: 058 56457, email: info@ deceased please contact O’Carroll abouts of any will made by the Street, Castlebar, Co Mayo; DX healycrowleysolrs.com & Company, Solicitors, 19A Mer- above-name deceased please con- 33002 Castlebar; tel: 094 902 5500, chants Road, Galway; tel: 091 565 tact John Nolan & Co, Solicitors, fax: 094 902 5511, email: solicitor@ Griffin, Patrick (deceased), late 516, email: ocarrollsolicitors@ 11 Parliament Street, Dublin 2; jamescahill.com of 6 Muckross Park, Perrystown, eircom.net tel: 01 677 0743, fax: 01 679 8420: Dublin 12, who died on 5 July email: [email protected] Deegan, Maurice Laurence (de- 2013. Would any person having O’Halloran, Fr Joseph A (de- ceased), late of 38 O’Carroll Vil- knowledge of a will (or docu- ceased), late of Cregannamore, title deeds las, Cuffe Street, Dublin 2. Would ments relating to a will) made by Oranmore, Co Galway, who died In the matter of the Landlord any person having knowledge of the above-named Patrick Grif- on 30 November 2012. Would any and Tenant (Ground Rents) Acts a will made by the above-named fin please contact Bernadette person having knowledge of a will 1967-2005; premises: 16 San- deceased, who died on 3 Febru- Walsh at 086 242 1650 or email: made by the above-named deceased dymount Road, Sandymount, ary 2013, please contact Eamonn [email protected] please contact William F Semple & Dublin 4; applicant: Louis Pres- Carney of Carney McCarthy, Company, Solicitors, Lough Corrib ton Solicitors, 1 Clonskeagh Square, Noon, Patrick (deceased), late House, Waterside, Galway; tel: 091 Notice to any person holding any Dublin 14; tel 01 269 8855, email: of 46 Whitehall Road West, 567 373, fax: 091 567374, email: legal estate in the above premises: [email protected] Crumlin, Dublin 12, who died on [email protected] take notice that the above applicant 31 May 2013. Would any person intends to apply to the county reg- Evans, Margaret (deceased), having knowledge of a will ex- Ó Liatháin, Claire (deceased), istrar in the county of the city of late of 14 Beech Drive, Mullingar, ecuted by the above-named de- late of 38 Whitethorn Road, Clon- Dublin for acquisition of any such Co Westmeath, and also of Ennis ceased please contact AC Forde skeagh, Dublin 14, who died in legal estate in the aforesaid prem- Road, Newmarket-on-Fergus, Co & Co, Solicitors, 14 Landsdowne May 2013. Would any person hav- ises, and any party asserting that Law Society Gazette www.gazette.ie Aug/Sept 2013 Professional notices 61 notices they hold a superior interest in the per O’Connell Street and 75A, 75B Date: 6 September 2013 the term of 61 years after the death aforesaid premises is called upon to and 75C Parnell Street, for a term Signed: McCann FitzGerald (solici- of the longest lived of them, sub- furnish evidence of the title to the of 150 years from 1 February 1938, tors for the applicant), Riverside One, ject to the yearly rent of £3.6s.8d, below-named within 21 days from subject to the yearly rent of £110”. Sir John Rogerson’s Quay, Dublin2 and the covenants on the part of the date of this notice. In default Take notice that Percy Nominees the lessee to be performed and of such notice being received, the Limited, being the entity now hold- In the matter of the Landlord the conditions therein contained, applicant intends to proceed with ing the said property, intends to and Tenant Acts 1967-2005 and should give notice of their interest the application before the county submit an application to the county in the matter of the Landlord to the undersigned solicitors. registrar after the period of 21 registrar for the city of Dublin for and Tenant (Ground Rents) (No Take notice that Noel Galvin days from the date of this notice the acquisition of the freehold sim- 2) Act 1978, and in the matter and Maurice Galvin intend to sub- and will apply to the said county ple estate or any intermediate inter- of the dwellinghouse, garden mit an application to the county registrar for directions as may be ests in the aforesaid property, and and premises lately occupied registrar for the county of Mayo appropriate on the basis that the any party asserting that they hold by Maurice Galvin, deceased, for the acquisition of all superior persons beneficially entitled to the a superior interest in the aforesaid at Abbey Street, Ballinrobe, Co interests in the aforesaid property, superior interest in the premises property (or any of them) are called Mayo: an application by Noel and any party asserting that they are unknown or unascertained. upon to furnish evidence of the title Galvin and Maurice Galvin hold an interest therein is called Date: 6 September 2013 to the aforementioned property to Take notice that any person having upon to furnish evidence of their Signed: Thomas O’Reilly & Co (so- the below-named solicitors within a superior interest in the following title to the undersigned solicitors licitors for the applicant), 20 Sandy- 21 days from the date of this notice. property: the plot of ground to- within 21 days from the date of mount Green, Dublin 4 In default of any such notice be- gether with dwellinghouse stand- this notice. ing received, the applicant intends ing thereon and garden, lately In default of any such notice In the matter of the Landlord to proceed with the application occupied by Maurice Galvin, de- of interest being received, Noel and Tenant Acts 1967-2005 and before the county registrar at the ceased, at Abbey Street, Ballinrobe, Galvin and Maurice Galvin in- in the matter of the Landlord end of 21 days from the date of this Co Mayo, being the land demised tend to proceed with the applica- and Tenant (Ground Rents) (No notice and will apply to the county by a lease dated 11 February 1858 tion before the county registrar at 2) Act 1978 and in the mat- registrar for the city of Dublin for made between Henry Augustus the end of 21 days from the date ter of an application by Percy directions as may be appropriate on Dillon of the one part and George of this notice and will apply to the Nominees Limited in respect the basis that the person or persons Francis Roughan of the other part county registrar for the county of of the property known as num- beneficially entitled to all superior from 1 November 1857 for the Mayo for such directions as may ber 36 Upper O’Connell Street interests up to and including the fee term of the natural lives of George be appropriate on the basis that and 75A, 75B and 75C Parnell simple in theTMG aforesaid Advert property 91x123mm_FA.pdf are Francis 1 Roughan, 27/05/2013 Teresa Roughan16:41 the person or persons beneficially Street, Dublin unknown or unascertained. and Catherine Roughan and for entitled to all or any of the superior Take notice that any person having an interest in the freehold interest of the following property: all that and those part of the heredita- ments and premises comprised in and demised by indenture of lease dated 11 January 1949 between Richard Burke and Kevin Burke of the one part and Edward Man- C gan and Michael Mangan of the other part, and therein describedM as “all that and those the building Y plots and premises situate in Up- per O’Connell Street and ParnellCM Street in the parish of Saint Thom- as and the city of Dublin, whereonMY the dwelling known as number CY36 Upper Sackville Street, demised by the said lease of the 4 AugustCMY

1898 formerly stood fronting ParK - nell Street, formerly Great Brit- ain Street, and Upper O’Connell Street, formerly Upper Sackville Street, respectively known as num- bers 36 and 36A Upper O’Connell Street and 75A, 75B and 75C Par- nell Street and which said premises are now known as number 36 Up- 62 Professional notices Law Society Gazette www.gazette.ie Aug/Sept 2013 notices

interests in the above property are Take notice that Pangrove Lim- immediate rear thereof) and In the matter of the Landlord unknown or unascertained. ited intends to submit an applica- also nos 20, 21 and 22 Lower and Tenant Acts 1967-2005 Date: 6 September 2013 tion to the county registrar for O’Connell Street (all of which and, in particular, the Landlord Signed: Martin & Galvin Solicitors the county/city of Dublin for the now form part of Clerys De- and Tenant (Ground Rents) (No (solicitors for the applicants), Teeling acquisition of the freehold inter- partment Store) in the parish of 2) Act 1978, and in the mat- Street, Sligo est in the aforesaid properties, and Saint Thomas and city of Dublin ter of an application by OCS any party asserting that they hold Any person having any interest Properties Limited, having its In the matter of the Landlord the superior interest in the afore- in the fee simple estate or any in- registered office at Fitzwilton and Tenant Acts 1967-2005 and said premises (or any of them) are termediate interest or interests in House, Wilton Place, Dublin 2, in the matter of the Landlord called upon to furnish evidence of all and singular the hereditaments relating to the premises known and Tenant (Ground Rents) (No the title to the aforesaid premises and premises known or formerly or formerly known as no 25 2) Act 1978 and in the matter of to the below named within 21 days known as nos 18 and 19 Lower Lower O’Connell Street (which Pangrove Limited from the date of this notice. O’Connell Street (including nos 1, now forms part of Clerys De- Take notice that any person having In default of any such notice 2 and 3 Sackville Place at the im- partment Store) in the parish of any interest in the freehold estate being received, Pangrove Limited mediate rear thereof) and also nos Saint Thomas and city of Dublin of the following property: numbers intends to proceed with the appli- 20, 21 and 22 Lower O’Connell Any person having any interest 1 and 2 Dartmouth Place, Dublin cation before the county registrar Street (all of which now form part in the fee simple estate or any in- 2, being part of the property more at the end of 21 days from the date of Clerys Department Store) in the termediate interest or interests in particularly described in an inden- of this notice and will apply to the parish of Saint Thomas and city of all and singular the hereditaments ture of lease dated 16 December county registrar for the county/ Dublin, held under a lease dated and premises known or formerly 1858 made between Henry Read city of Dublin for directions as may 18 August 1919 made between (1) known as no 25 Lower O’Connell of the one part and John Rooney be appropriate on the basis that Kate Price, (2) Mary Catherine Street (which now forms part of of the other part for 200 years the persons beneficially entitled Evans and (3) Clery & Company Clerys Department Store) in the from 25 March 1858, subject to the to superior interest including the Limited for a term of 700 years parish of Saint Thomas and city of yearly rent of £8, and an indenture freehold reversion in each of the from 1 May 1919, subject to the Dublin, held under a lease dated of lease dated 24 June 1880 made aforesaid premises are unknown or yearly rent of £324 (€411.40). 18 October 1852 made between between Teresa Rooney of the unascertained. Take notice that OCS Properties (1) Thomas Nowlan and (2) Peter one part and Peter Lannery of the Date: 6 September 2013 Limited, being the body entitled Paul McSwiney and George Dela- other part for 200 years from 25 Signed: Reddy Charlton (solicitors for to the lessee’s interest in the said ny for a term of 839 years from 29 March 1858, subject to the yearly the applicant), 12 Fitzwilliam Place, lease, intends to apply to the coun- September 1852, subject to the rent of £4 and to the covenants and Dublin 2 ty registrar for the city of Dublin yearly rent of £80 (now €101.58), conditions therein. for the acquisition of the fee simple subsequently adjusted to £76.9.0 In the matter of the Landlord estate and any intermediate inter- (€97.07). and Tenant Acts 1967-2005 and, est or interests in the said property, Take notice that OCS Properties in particular, the Landlord and and any party claiming that they Limited, being the body entitled TO LET Tenant (Ground Rents) (No 2) hold the fee simple or any such in- to the lessee’s interest in the said SOLICITOR’S OFFICE UNIT Act 1978, and in the matter of an termediate interest in the aforesaid lease, intends to apply to the coun- application by OCS Properties property is called upon to furnish ty registrar for the city of Dublin Limited, having its registered evidence of their title thereto to for the acquisition of the fee simple office at Fitzwilton House, Wil- the under-mentioned solicitors estate and any intermediate inter- ton Place, Dublin 2, relating to within 21 days from the date of ests or interest in the said property, the premises known or formerly this notice. and any party claiming that they known as nos 18 and 19 Lower In default of any such notice be- hold the fee simple or any such in- O’Connell Street (including nos ing received, the said OCS Prop- termediate interest in the aforesaid 1, 2 and 3 Sackville Place at the erties Limited intends to proceed property is called upon to furnish OLYMPIA HOUSE, with the application before the evidence of their title thereto to 62/63 DAME ST. DUBLIN 2 said county registrar at the end of the under-mentioned solicitors • Prime city centre location Solicitor with capital to invest 21 days from the date of this notice within 21 days from the date of • c.200 sq. ft. single room and wishes to purchase practice in and will apply to the said registrar this notice. shared use of fine conference room for such directions as may be ap- In default of any such notice be- • 2nd floor in stylish building Dublin. Would suit a €150K propriate on the basis that the per- ing received, the said OCS Prop- • Six solicitors’ firms and DX station per annum turnover practice in building plus where the Principal is son or persons beneficially entitled erties Limited intends to proceed • High quality finish willing to stay on and mentor to all superior interests up to and with the application before the • ALL OVERHEADS INCLUDED for a period of time. including the fee simple in the said said county registrar at the end of • Reasonable rent property are unknown and unas- 21 days from the date of this notice • Recently refurbished (BER D2) Reply in strict confidence to: certained. and will apply to the said registrar David Rowe at Outsource CONTACT: Date: 6 September 2013 for such directions as may be ap- HASSETT & FITZSIMONS [email protected] Signed: William Fry (solicitors for the propriate on the basis that the per- 01 6773591 (Emmet) 086 2566758 applicant), Fitzwilton House, Wilton son or persons beneficially entitled Place, Dublin 2 to all superior interests up to and Law Society Gazette www.gazette.ie Aug/Sept 2013 Professional notices 63 notices including the fee simple in the said and will apply to the said registrar Duff, then deceased) and (2) Nich- property are unknown and unas- for such directions as may be ap- olas Walsh. certained. propriate on the basis that the per- Take notice that OCS Prop- Is your client interested Date: 6 September 2013 son or persons beneficially entitled erties Limited, being the body in selling or buying a Signed: William Fry (solicitors for the to all superior interests up to and entitled to the lessee’s interest or 7-day liquor licence? applicant), Fitzwilton House, Wilton including the fee simple in the said interests in the said term or terms Place, Dublin 2 property are unknown and unas- demised or sub-demised as afore- If so, contact Liquor certained. said intends to apply to the county In the matter of the Landlord Date: 6 September 2013 registrar for the city of Dublin for Licence Transfers and Tenant Acts 1967-2005 Signed: William Fry (solicitors for the the acquisition of the fee simple and, in particular, the Landlord applicant), Fitzwilton House, Wilton estate and any intermediate inter- Contact and Tenant (Ground Rents) (No Place, Dublin 2 est or interests in the said property, 0404 42832 2) Act 1978, and in the mat- and any party claiming that they ter of an application by OCS In the matter of the Landlord hold the fee simple or any such in- Properties Limited, having its and Tenant Acts 1967-2005 and, termediate interest in the aforesaid registered office at Fitzwilton in particular, the Landlord and property is called upon to furnish of 150 years from 29 September House, Wilton Place, Dublin 2, Tenant (Ground Rents) (No 2) evidence of their title thereto to 1905, and subject to a yearly rent relating to the premises known Act 1978, and in the matter of an the under-mentioned solicitors IR£45 and to the covenants and or formerly known as no 26 application by OCS Properties within 21 days from the date of conditions therein, and in an in- Lower O’Connell Street (which Limited, having its registered this notice. denture of sub-lease dated 1 Sep- now forms part of Clerys De- office at Fitzwilton House, Wil- In default of any such notice be- tember 1928 and made between partment Store) in the parish of ton Place, Dublin 2, relating to ing received, the said OCS Prop- Clare Mary Barry, Raymond Bar- Saint Thomas and city of Dublin premises adjoining 5 Earl Place, erties Limited intends to proceed ry, Alexander Barry, Gwendoline Any person having any interest being the premises immediately with the application before the Barry, Muriel Barry and Clare in the fee simple estate or any in- adjoining the south side of the said county registrar at the end of Barry of the one part and Annie termediate interest or interests in premises known or formerly 21 days from the date of this notice Mary Bannon of the other part for all and singular the hereditaments known as 5 Earl Place, located and will apply to the said registrar a term of 99 years from 14 Febru- and premises known or formerly at the rear of nos 24, 24 and 26 for such directions as may be ap- ary 1928, and subject to a yearly known as no 26 Lower O’Connell Lower O’Connell Street (all of propriate on the basis that the per- rent IR£70 and to the covenants Street (which now forms part of which now form part of Clerys son or persons beneficially entitled and conditions therein. Clerys Department Store) in the Department Store) in the par- to all superior interests up to and Take notice that Domenico parish of Saint Thomas and city of ish of Saint Thomas and city of including the fee simple in the said Morelli intends to submit an appli- Dublin, held under a lease dated 16 Dublin property are unknown and unas- cation to the county registrar for July 1803 made between (1) Andria Any person having any interest certained. the county/city of Dublin at Áras Gibbons and (2) Patrick King for a in the fee simple estate or any in- Date: 6 September 2013 Uí Dhálaigh for the acquisition of term of 999 years from 29 Septem- termediate interest or interests in Signed: William Fry (solicitors for the the freehold interest in aforesaid ber 1803, subject to the adjusted all and singular the hereditaments applicant), Fitzwilton House, Wilton property, and any party asserting yearly rent of £42.15.0 (€54.28). and premises immediately adjoin- Place, Dublin 2 that they hold a superior interest Take notice that OCS Properties ing 5 Earl Place, being the prem- in the aforesaid property are called Limited, being the body entitled to ises immediately adjoining the In the matter of the Landlord upon to furnish evidence of the ti- the lessee’s interest in the said lease south side of the premises known and Tenants Acts 1967-1994 tle to the aforementioned property dated 14 July 1934, intends to ap- or formerly known as 5 Earl Place, and in the matter of the Land- to the below named within 21 days ply to the county registrar for the located at the rear of nos 24, 24 lord and Tenant (Ground Rents) from the date of this notice. city of Dublin for the acquisition and 26 Lower O’Connell Street (No 2) Act 1978 and in the mat- In default of any such notice be- of the fee simple estate and any (all of which now form part of ter of application by Domenico ing received, Domenico Morelli intermediate interest or interests Clerys Department Store) in the Morelli intends to proceed with the appli- in the said property, and any party parish of Saint Thomas and city of Take notice that any person hav- cation before the county registrar claiming that they hold the fee Dublin, held under a lease dated ing any interest in the freehold for the county/city of Dublin for simple or any such intermediate 31 January 1811 made between (1) estate of the property known as directions as may be appropri- interest in the aforesaid property George Duff and (2) Luke Duff for 92 Terenure Road North, Teren- ate on the basis that the persons is called upon to furnish evidence a term of 882 years from 25 March ure, Dublin 6W, being the prop- beneficially entitled to the supe- of their title thereto to the under- 1811, subject to the adjusted yearly erty more particularly described rior interest including the freehold mentioned solicitors within 21 rent of £20.0.6 (€25.43) and also in an indenture of lease dated 24 reversion in each of the aforesaid days from the date of this notice. purportedly demised or sub-de- March 1906 and made between premises are unknown or unascer- In default of any such notice be- mised for the residue of the said Helena Diana Maud Mary Hilling, tained. ing received, the said OCS Prop- term at the same adjusted yearly Charles Eyre Coote Townsend, Date: 6 September 2013 erties Limited intends to proceed rent as aforesaid by a deed dated Robert Norman Thompson and Signed: Gaffney Halligan & Compa- with the application before the 4 December 1830 made between Robert Massy Dawson Saunders ny, Solicitors (solicitors for the appli- said county registrar at the end of (1) John McDonnell and Eleanor of the one part and Patrick Joseph cant), Artane Roundabout, Malahide 21 days from the date of this notice Duff (executors of the said Luke Barry of the other part for a term Road, Artane, Dublin 5 64 captain’s blawg Law Society Gazette www.gazette.ie Aug/Sept 2013

wild, weird and wacky stories from legal ‘blawgs’ and media around the world Translator jailed over exam cheats A Chinese translator in Birmingham has been jailed for helping 200 learner drivers cheat on theory exams, the Daily Mirror reports. Peter Hui was approved by the Driving Standards Agency (DSA) to translate multiple-choice questions in Mandarin for foreign applicants – but he was also providing the answers for a fee. At Birmingham Crown Court, Hui was sentenced to 12 months in prison. Police believe the illegal practice made him up to £100,000. Mafia kids made offer they can’t refuse DSA officials became suspicious when the number of A judge in southern Italy is In recent years, Judge Di Bella’s “Our objective is to show these prospective drivers choosing to pioneering a programme to help court has been dealing with young men a different world from the be represented by the 55-year- children of mafia bosses to escape the sons of mafiosi who he had one they grew up in,” he says. “If old interpreter increased a life of crime – by taking them sentenced as juveniles back in the you are a boy whose father, uncle or rapidly. An investigation away from their parents at the first 1990s. Last year, he decided to try grandfather is a mafioso, then there’s revealed that Hui aided more sign of trouble, reports the BBC. to tackle the problem. no-one who can set rules – and we than 200 candidates to pass by “We needed to find a way to “This always starts with a court provide them with a context.” agreeing a cheat code, which break this cycle that transmits case,” says Di Bella. “When these The hope is that when these involved him saying “Shi”, the negative cultural values from father children are accused of bullying, youngsters go back home Mandarin for “Yes”, before to son,” says Roberto di Bella, of vandalising cars or police cars, permanently, at the age of 18, they reading out the answer he president of the juvenile court in and families do nothing, then we will chose not to follow in their believed was correct. Reggio Calabria, southern Italy. intervene. fathers’ footsteps.

Flash-for-cash crash backlash Motorists are being warned of a Death-ray terror plot car insurance scam where criminals flash their lights to let other drivers foiled by G-men out of a junction, then crash into Two men have been charged release said. If convicted, each them deliberately, the BBC reports. in a court in Albany, New faces up to 15 years in prison, It’s a new take on ‘crash-for-cash’ York, in a bizarre plan to use a a $250,000 fine and five years incidents, where criminals slam home-made death ray to target of supervised release. on the brakes so that the victim is “enemies of Israel” with lethal The device created by forced to rear-end them. But ‘flash- x-ray radiation, reports CNN. the defendants was deemed for-cash’ is more cunning, because Glendon Scott Crawford inoperable and not a threat to it often comes down to the innocent (49) and Eric Feight (54) were the general public. driver’s word against the criminal’s company for loss of earnings, then arrested after an undercover that they flashed their lights to let they put in fake bills for vehicle operation by the Albany FBI them out. storage, recovery, repairs, and Joint Terrorism Task Force. Each ‘accident’ can net the gangs replacement car hire. They were charged with tens of thousands of pounds in a Detective Inspector Dave conspiracy to provide variety of ways. Firstly, they put Hindmarsh says it’s a growing material support to terrorists. in false personal injury claims for problem. “Financially, it costs The suspects intended whiplash, sometimes including insurers £392 million a year – that to use the device to harm claims for people who were not impacts on motorists, as it’s an and kill enemies of Israel, a even in the car. Added to that, extra £50 to £100 on every person’s Department of Justice news they might charge the insurance premium.” HRM_LSG_08_13_03:Layout 1 27/08/2013 13:46 Page 1

worth your weight HRM Recruit’s Legal Selection Team brings superb practice and in-house opportunities to outstanding legal talent in Ireland and overseas.

banking (3 Years Relevant Experience) In-House | Ref JS01 property/banking In-House | Ref JS02 Within this major financial institution you will advise lending teams and assist In joining this corporate entity you will advise on all aspects of loan portfolios with a variety of legal project work. These roles will require a significant degree of including: new facilities and associated security, enforcement options, planning legal input in a range of areas including: transactions, restructuring of loans, and implementation, material transactions and issues post enforcement, and enforcement options, lease reviews and management of litigation. Suited to advice on corporate and personal insolvency. The opportunities afford successful professionals who wish to develop their expertise in a fast paced, rewarding candidates insightful industry exposure to these portfolios. Expertise in environment. Applicants must be professionally qualified lawyers. Expertise in commercial banking/property and restructuring is required, a proven track record banking law is preferred but property/conveyancing experience is also relevant. providing legal advice on significant transactions with 3 years relevant experience.

funds (4 Years Relevant Experience) Top Tier Firm | Ref BD01 corporate (5 Years Relevant Experience) Top Tier Firm | Ref BD04 In a highly competitive market, this industry leading team continues to dominate Dominating the deals by both value and volume this corporate department, at the the Irish funds landscape attracting and retaining both the best clients and the upper end of the top tier, deals with a wide range of work including M&A, high best talent in Dublin. Consistently ranked as the number one adviser to the asset profile FDI into Ireland, takeovers, privatisations, JVs, corporate reorganisations in management industry in Ireland, the team advises major institutional clients addition to advising on ongoing corporate, company law and governance issues across the spectrum of UCITs and alternative products. The firm’s transparent for multinationals in Dublin. Typically solicitors in the team deal with a management structures and bonus system along with its unique partnership combination of transactional work in addition to ongoing advisory work for clients track programme are all reasons why this firm have attracted solicitors from of the firm. Progressive, collegiate, down to earth and high achieving are the every other top 5 firm in the last twelve months. hallmarks of this group.

litigation (6 Years Relevant Experience) Top Tier Firm | Ref BD02 ip & it (7 Years Relevant Experience) Top Tier Firm | Ref BD05 This litigation department allows you the option of either remaining a generalist, Across all areas of IP and IT, this firm not only leads in the independent rankings or if you prefer will support you in focusing in a specialist area of litigation; a rare for Ireland but has also maintained its lead over the competition for international choice in the top tier. In joining this team, you will deal with cutting edge work and clients in a legal services market which has seen considerable change in Commercial Court litigation, ADR & Mediation, advising a blue-chip client base recent years. The firm’s client list is an enviable who’s who of the global on some of the most high profile, public interest litigation matters in Ireland. technology, pharma, IT and web-based household brand name corporations. The Solicitors in the team are supported in developing their client facing and team, which has recorded significant year on year revenue growth over the last marketing skills and if you feel you are ready to run a negotiation or meeting five years, provides a full service advisory and contentious offering to its clients alone, the partners will be keen to encourage you. across the IP/IT bandwidth.

banking (4 Years Relevant Experience) Top Tier Firm | Ref BD03 insolvency (2 Years Relevant Experience) Top Tier Firm | Ref BD06 Tier one in every head of banking law; in joining this team you will act for both In joining what is widely regarded as the top insolvency group in Dublin you will borrowers and lenders across a broad range of domestic and international advise a corporate client base which includes insolvency practitioners, creditors, corporate banking matters. If you wish to develop an expertise in one of the firm’s bondholders, directors & shareholders on both contentious and non contentious niche practice areas such as aviation finance, structured finance or debt capital corporate recovery & insolvency matters. The team’s deal sheet includes every markets, the partners will fully support you. The firm, which enjoys a major administration and liquidation which has taken place in Ireland in recent commanding position at the upper end of the top tier, acts both as lead counsel years. Admired in Dublin not only for the depth of its technical expertise, the team on the major domestic transactions and Ireland counsel on global deals. is also highly regarded for its pragmatic, calm and solution oriented approach.

For a confidential discussion on any of these opportunities, or other non-advertised positions please contact: Bryan Durkan James Steele Principal Consultant Legal Selection Legal Selection Consultant t: +353 1 632 1852 t: +353 1 632 1881 e: [email protected] e: [email protected]

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For more information please visit our website or contact Michael Benson bcl. solr. in strict confidence at: Benson & Associates, Suite 113, The Capel Building, St. Mary’s Abbey, Dublin 7. T +353 (0) 1 670 3997 E [email protected]