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legal Yplanner 2002 LawSociety our Gazette Gazette

Regulars Cover Story Papists, porter, and burning bricks News 2 10 Thank God for the English and their funny little ways. Many of their more archaic and unusual laws were finally repealed Letters 7 here in 1962, but some are still in force. Henry Murdoch takes a light-hearted look at this ludicrous legal legacy Tech trends 26

Stockwatch 28 Hats off to Elma Book reviews 35 14 She doesn’t fly, she’s never played rugby, but Briefing 39 new Law Society President Elma Lynch does have the dubious distinction of nearly Council reports 39 being thrown out of court for not wearing Committee the appropriate headgear. Here, she talks to report 42 Conal O’Boyle about her career and her plans for the year Legislation update 43 Practice notes 44 Nothing ventured Annual report 18 Over the last ten years, venture of the Disciplinary capitalists have poured hun- Tribunal 46 dreds of millions of pounds into Personal injury Irish companies. The cake may judgments 49 be getting smaller but, for the Eurlegal 52 right companies, there are still plenty of chances to get a slice. People and Barry O’Halloran reports places 57

Apprentices’ page 60 Neighbourhood watch Professional 22 We used to be taught that the answer to the well-known information 61 question ‘who is thy neighbour?’ was that ‘thy neighbour is all mankind’. But not if you’re a lawyer. Michael Peart explores COVER PHOTO: [email protected] the issues surrounding duty of care in the light of a recent Supreme Court decision

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

The Law Society of Ireland can accept no responsibility for the accuracy of contributed articles or statements appearing in this magazine, and any views or opinions expressed are not necessarily those of the Law Society’s Council, save where otherwise indicated. No responsibility for loss or distress occasioned to any person acting or refraining from acting as a result of the material in this publication can be accepted by the authors, contributors, Editor or publishers. The Editor reserves the right to make publishing decisions on any advertisement or editorial article submitted to this magazine, and to refuse publication or to edit any editorial material as seems appropriate to him. Professional legal advice should always be sought in relation to any specific matter.

Published at Blackhall Place, Dublin 7, tel: 01 672 4800, fax: 01 672 4877. Volume 95, number 10 E-mail: [email protected] Law Society website: www.lawsociety.ie Subscriptions: £45

1 Law Society Gazette December 2001 News Little wins Law Society media award TÉ television reporter Joe other to TP O’Mahony for his RLittle has been named article in America magazine Overall Winner of the Law headlined Abortion and the courts Society’s Justice Media Awards in Ireland. competition. This competition In the Radio category, the aims to reward outstanding Justice Award went to Roisin journalism in the printed or Boyd and Ryan Tubridy of electronic media which RTÉ’s Five-Seven Live for a contributes to the public’s week-long series entitled understanding of the law, the Children in trouble, prompted by legal system or any specific the growing number of court legal issue. cases involving children. Barry Little won the top prize for Cummins of Today FM won a his special Primetime Certificate of Merit for his documentary on the Stardust Overall winner: RTÉ’s Joe Little interview with Kathryn Sinnott, disaster 20 years on. At a the mother of Jamie Sinnott. ceremony in the Law Society’s Award in the Daily action against RTÉ. The Justice Award for Blackhall Place headquarters Newspapers category was Certificates of Merit went Television was presented to last month, Immediate Past- Carol Coulter of the Irish Times to Margaret Rossiter of the RTÉ’s Joe Little for his special President of the Law Society, for her article Want a divorce? Nationalist newspaper in Primetime documentary on the Ward McEllin, presented the First choose your judge, published Tipperary for a very moving Stardust disaster 20 years on. prize to Little, whose report in February. account of a lonely rape also won the broadcast category A Certificate of Merit went victim’s experience during the LawSociety in the Justice Media Awards. As to Justine McCarthy of the week-long trial of her alleged Gazette Overall Winner, he received a Irish Independent for her article attackers, and Tony Galvin of Dublin Crystal vase and a entitled State of disgrace, dealing the Tuam Herald for his article cheque for £1,000. with the state’s approach to the entitled Whistle-blowing on Christmas The winners in each of the Kathryn Sinnott litigation. drunken drivers is not as easy as publication four other categories in the The winner of the Justice it sounds, which appeared in As usual, the Gazette will be competition won a Justice Award in the Non-Daily August of this year. taking a well-earned break Award, comprising a Dublin Newspapers category was In the Magazine category, over the Christmas period, Crystal Joyce plate (and a £500 Jerome Reilly of the Sunday the judges awarded two so there will be no issue in cheque), with the runners-up Independent for an article Certificates of Merit, one to January. Normal publication will resume with a joint receiving a Certificate of Merit entitled Comment is free, but Carol-Anne O’Reilly of January/February issue, (and a cheque for £100). facts cost dear, on the costs of Consumer Choice for an article due out in early February. The winner of the Justice the Beverly Cooper-Flynn libel on bullying in work and the ONE TO WATCH: NEW LEGISLATION Company Law Enforcement and the new filing regime (to come into appointment of an inspector to inves- this to court, which may act as it Act, 2001 effect next March) are expected to have tigate the affairs of a company, and thinks fit, for example by directing This act became law in July, and some a major impact on compliance with the such an inspector may be a member compliance, and, failing that, holding sections have been brought into force rules and corporate governance in gen- of the DCE’s staff. This makes the person in contempt. The section by SI 391/2001 and SI 438/2001. On eral. Any practitioner who advises those sense as such a person may already is also broadened to include 27 November, SI 523/2001 and SI involved in running companies will need have acquired knowledge of a com- accountants, book keepers or taxa- 524/2001 commence those sections to be aware of the provisions of this act. pany’s affairs through preliminary tion advisors along with auditors relating to the office of the new Director Part III of the act deals with the investigations • Section 29 replaces section 19 of of Corporate Enforcement, Paul Appleby. investigation of suspected offences by • Section 22 expands the related com- the Companies Act, 1990 (the sec- The director of corporate enforce- the DCE under the Companies Acts and panies to which an investigation may tion used by the minister to under- ment (DCE) will be an independent per- company investigations under part II of be extended with the permission of take examinations in some high-pro- son appointed for periods of five years, the Companies Act, 1990. The following the court, to include companies with file cases). It extends the power to with an office and staff. He will take are important features: which the company under investiga- examine books and documents of a over the functions of the minister in • Section 14 refers to a table which tion has a commercial relationship company under investigation to relation to investigation and enforce- lists the powers and functions of the • Section 23 amends section 10 of books and documents which may ment of the Companies Acts. The act minister under the Companies Acts the 1990 Companies Act, which contain information about that com- gives the director considerably which are to be transferred to the requires a company under investiga- pany, but which do not belong to that enhanced powers. It tightens up the fil- DCE without amendment tion and its officers and agents to company. It also makes it an offence ing of information in the Companies • Section 19 requires minute books to produce all books and documents to answer questions with false and Office and establishes a Company Law be made available to the DCE on and give all other assistance to misleading information, or to destroy, Review Group on a statutory footing to request to facilitate investigation of a inspectors. It preserves a lien held mutilate, falsify or conceal any book monitor, review and advise the minister company’s affairs by anyone over such books and doc- or document if under notice of an on company law matters. • Section 21 provides that the DCE uments, and, in the event of non- order requiring inspection by the The increased powers of the DCE may apply to the High Court for compliance, the inspector may certify DCE. Costs may be imposed at the

2 Law Society Gazette December 2001 News

STRESS MANAGEMENT FOR New officer team in place LAWYERS A seminar on Time and stress he Law Society has a new management for lawyers will TCouncil and officer team, be held on 1 February 2002 with Dublin solicitor Elma in Blackhall Place. The Lynch taking up the reins of seminar covers stress, office for the next year. Lynch beating burnout, organising was deemed elected to the post your work environment and after serving as senior vice- playing to your strengths. The president last year, while course tutor, Rob Parsons, is Geraldine Clarke was elected a best-selling business author senior vice-president, with Philip and international speaker on Joyce as junior vice-president. management issues. For The following members were further information, see the elected to the Law Society insert in this month’s issue or Council in the recent ballot, call Ruth Browne on tel: with the number of votes (0)29 20442035. received appearing after their names: New officer team: Law Society President Elma Lynch (far left) with Senior LAW SOCIETY OF IRELAND Name Votes Vice-President Geraldine Clarke and Junior Vice-President Philip Joyce RETIREMENT TRUST SCHEME 1. Geraldine Clarke 1,482 Unit prices: 1 November 2. Owen Binchy 1,360 votes received by them appear Connaught: Rosemarie Loftus; 2001 3. Brian Sheridan 1,360 after their names: Munster: Eamon O’Brien. Managed fund: 342.316p 4. John D Shaw 1,286 Name Votes Council members are All-equity fund: 93.485p 5. John O’Connor 1,284 16. Peter Allen 919 elected for two-year terms: the Cash fund: 188.766p 6. Kevin O’Higgins 1,197 17. John Dillon-Leetch 918 sitting Council members who Pension protector fund: – 7. Moya Quinlan 1,183 18. Sean Durcan 895 were deemed elected last year 8. John Costello 1,177 19. Dominic Dowling 886 are: John P Shaw, Anne PRIZE BOND WINNERS 2001 9. Gerard Doherty 1,177 20. Bill Stokes 729 Colley, Keenan Johnson, The winners of the Law 10. Michael Boylan 1,173 21. TC Gerard O’Mahony 289 Michael Peart, Gerard Griffin, Society’s prize bond draw 11. Stuart Gilhooly 1,105 Donald Binchy, Elma Lynch, were: Thomas J Kelly, Co 12. Angela Condon 1,036 As there was only one candidate Patrick O’Connor, Simon Wexford; Mary Twomey, Co 13. Hugh O’Neill 998 nominated for each of the two Murphy, Philip Joyce, James Kerry; Kevin McGilligan, 14. Andrew Dillon 995 relevant provinces (Connaught MacGuill, Orla Coyne, John Dublin; BV Hoey, Drogheda; 15. Thomas Murran 955 and Munster), there was no Fish, James McCourt, Michael Peadar O Maolain, Co Offaly; election and the candidate Irvine, Edward Hughes, Denis McDowell, Dublin; The following candidates were nominated in each instance was James Sweeney and John B Patrick Cody, Co Carlow; and not elected and the number of returned unopposed, as follows: Harte. Michael Cody, Co Carlow.

discretion of the court. A new section require any person there to facilitate cise his powers in response to a 118 of the 1990 act on relevant 19A creates an offence where a per- access, to give the password and to request from abroad, but the DCE authorities, members or employees son who knows or suspects that the help extract information in a visible may decline to assist if there is no of a stock exchange in relation to the DCE is investigating or may investi- and legible form. Anyone obstructing appropriate contribution to costs DCE and imposes a duty to report gate an offence under the a search or seizure of information or • Section 36 extends the duty of a any suspected breach of company Companies Acts destroys or conceals failing to assist is guilty of an offence stock exchange to report apparent law. any documentary evidence that may • Section 31 relates to publication of breaches of section 91 of the relate to the offence. The section information obtained in the course of Companies Act, 1990 (exchange of Other sections of the act relate to also creates a presumption that the investigations. In future, it will the interests in shares) to the DPP and restrictions and disqualifications of person destroying or concealing was decision of the DCE, not the minister, to the DCE, and once the DCE or the directors, and winding up and insolvency aware of the existing or incipient to disclose information under the cri- DPP institutes proceedings, the (expected to come into force early next investigation or the relevance of the teria of section 21 of the 1990 exchange, every officer of the compa- year). The sections relating to improving evidence Companies Act ny concerned and anyone else with compliance with new filing obligations • Section 30 substitutes a new section • Section 32 gives power to the DCE to relevant information is required to are scheduled to come into effect on 1 20 of the 1990 Companies Act. A require banks to give information in give all reasonable assistance in con- March next. General supervisory powers search warrant may now be obtained relation to an investigation under sec- nection with the proceedings over auditors come into effect on 28 on reasonably based suspicion that tion 19 of the 1990 act, whether or • Section 37 extends the duty of a November. Provisions relating to trans- books and documents are held on not the company under investigation stock exchange to report suspected actions involving directors are already in named premises. Such documents is (or was) a customer of the bank. insider dealing to the DPP and to the force, as are a considerable number of may now be held for six months, and This will expose the accounts of DCE, and to give all reasonable amendments to tighten up and facilitate on further application, for a longer other companies or persons to the assistance in connection with any the supervision of companies. G period. The officer named in the DCE in the course of section 19 proceedings search warrant may operate any com- investigations • Section 38 lifts the duty of profes- Alma Clissmann is the Law Society’s puter found on the premises and may • Section 33 permits the DCE to exer- sional secrecy imposed by section parliamentary and law reform executive.

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COMPENSATION FUND Former solicitor Finnegan is PAYOUT The following claim amount was admitted by the new High Court president Compensation Fund r Justice Joseph Finnegan maintenance of the highest Committee and approved for Mhas been appointed standards of conduct within the payment by the Law Society president of the High Court on solicitors’ profession,’ she said. Council at its meeting in the retirement at the end of ‘On a personal level, we are November: Michael P November of Mr Justice delighted to see the second McMahon, 5/6 Upper Frederick Morris. most senior judicial position in O’Connell Street, Dublin 1 – Mr Justice Finnegan, who the state being held by a £43,363. has worked both as a solicitor former solicitor. We wish him and a barrister, was appointed a every success and happiness in PAYBACK TIME FOR US judge of the High Court in his challenging new role’. SUPPORT 1999. He was educated at • Kathryn Delahunt has The Ireland Funds have Synge Street CBS, Dublin, been appointed a judge of the launched an appeal to the The new President of the St Mary’s College, Dundalk, Circuit Court and sat as a Irish business community to High Court Joseph Finnegan UCD, the Law Society and judge for the first time on 3 raise money for the families King’s Inns. He qualified as a called to the Inner Bar in 1990. December. A partner for many of the victims of the 11 solicitor in 1966, practising in Law Society President Elma years in the Dublin law firm of September terrorist attacks Dublin for over a year before Lynch congratulated the new Vincent & Beatty, she qualified in the United States. The becoming assistant secretary of High Court president on his as a solicitor in 1979. She is the funds were created 25 years the Law Society from 1968 to appointment. ‘Like his first female solicitor to be ago and during that time 1972. He practised again as a predecessors, he will play a appointed a Circuit Court have distributed grants solicitor until 1978, when he very special role under the judge and has been assigned to totalling $150 million to was called to the bar. He was Solicitors Acts in the sit in Dublin. hundreds of community groups and charities north and south of the border. The Bertie comes to Blackhall Ireland Funds around the world hope to raise $1 million to provide relief for those affected by the attacks. Anyone wishing to contribute can send a cheque to: the Ireland Funds USA Appeal, 5 Foster Place, Dublin 2. For further information, contact the funds’ director, Kieran McLoughlin, on tel: 01 662 An Taoiseach Bertie Ahern (centre) is greeted on his arrival at 7878 (website: Blackhall Place by the then president Ward McEllin (left) and director www.irlfunds.org). general Ken Murphy Irish take n Taoiseach, Bertie Ahern, Blackhall Place lies within his control of CCBE SOLICITORS TRANSFERRING Awas guest of honour at a constituency of Dublin TO THE BAR dinner in Blackhall Place Central, although it is ‘perhaps Law Society Council member The Bar Council has recently, hosted by then presi- not a typical house in this con- John Fish has been elected announced that solicitors dent of the Law Society, Ward stituency’, he quipped. president of the Council of planning to transfer to the McEllin, writes Ken Murphy. Although an exchange of European Bars and Law bar must submit their The taoiseach was accompanied views on a range of important Societies, the umbrella body applications to the Law by the Minister for Social, issues was very much part of that represents the interests Library Committee between Community and Family Affairs, the evening, it was primarily a of Europe’s legal professions the first Monday in March Dermot Ahern. social occasion with opportuni- before the EU institutions. and the first Monday in May. The occasion represented an ties for levity. For example, Fish, a senior partner in the Applications must be opportunity, which was taken, Ward McEllin to Bertie Ahern: Dublin law firm Arthur Cox, is accompanied by the for the society to brief the ‘I think I have been in Phoenix only the second-ever Irishman appropriate fee. For more taoiseach and the minister on a magazine more often than you to hold this prestigious information, or to obtain a range of issues of concern to have this year, taoiseach’. position. His term of office as copy of the Membership the solicitors’ profession. The Interjection by Dermot Ahern: CCBE president 2001/02 rules for the Law Library, taoiseach is well aware that the ‘But Ward, you don’t have your lasts one year. contact the Bar Council on society’s headquarters at own diary in Phoenix!’. tel: 01 817 5027.

5 Law Society Gazette December 2001 Under the provisions of the National Treasury Management Agency (Amendment) Act, 2000, the management of certain personal injury and property damage claims against the State has been delegated to the ntma. When carrying out its new claims management and associated risk management functions, the ntma is to be known as the State Claims Agency.

The Agency’s mandate is to manage claims with the Please note that legal proceedings aim of minimising the State’s liability. The intention and other correspondence which is to apply best commercial practices with the aim would previously have been of ensuring that State claims are investigated addressed to the Chief State thoroughly and are resolved fairly and cost- Solicitor’s Office should effectively. in future be directed to this address:

The Agency will manage certain claims against the Claims Litigation Unit State, individual Ministers, the Attorney General, State Claims Agency the Commissioner of the Garda Síochána, prison Treasury Building governors, community and comprehensive schools Grand Canal Street and certain other bodies. Excluded from its remit Dublin 2 are cases under the Garda Compensation Acts, cases alleging abuse of children in residential Phone (01) 664 0900 institutions and cases alleging noise-induced Fax (01) 664 0890 hearing loss. In relation to such claims, existing Email [email protected] arrangements will continue to apply. Website www.stateclaims.ie Letters Letters Asking questions of the SMDF

From: Andrew Dillon, Kinsale, be members of the council of at the list of 17 firms of so appointed. I believe that Co Cork the society in accordance with solicitors who are on this panel directors of the SMDF should believe that it is important to the articles of association of the of defence solicitors is of some not benefit in any personal way Ibring to your notice certain company in force as at the date interest. Maurice Curran is a or be seen to benefit in any matters about which you might hereof’. The agreement director, and the firm of Mason personal way other than by not otherwise know. contains other matters which Hayes & Curran is on the receipt of ordinary directors’ The Solicitors’ Mutual need not concern us here. defence panel. Laurence emoluments. Defence Fund Ltd was formed The worrying aspect of this Shields is a director, and the It is unfortunate that, having on or about 11 March 1987. for members of the SMDF is firm of Laurence Shields & had the wisdom to oversee the This, as you know, is an that the board of directors of Company is on the defence setting up of the Solicitors insurance company formed for the company is in effect panel. So is the firm of Michael Mutual Defence Fund, that the purposes of providing controlled by certain members Houlihan & Partners in Ennis; certain members of the professional indemnity of the Council of the Law Patrick Groarke & Company council, certain former insurance to practising Society. In my three years of Longford; Tommy Shaw’s members of the Council and solicitors and members of the sitting on the council during firm, JA Shaw in Mullingar; former presidents have seen fit Law Society. 1995, 1996 and 1997 I never and Geraldine Clarke’s firm, to maintain total control of the In the articles of association heard reference made to the Gleeson McGrath Baldwin. SMDF unto themselves. of the SMDF Ltd, it is stated at appointment or discharge of Other lucky people are the I believe, and it is only an article 14 that the number of directors of the SMDF, nor did office of Bruce St John Blake opinion, that the directors of directors shall not be less than I ever note that the matter was (former president). Other the SMDF should be seven and not more than 11, of listed on the agenda for offices which include former independent of, and outside whom not less than six shall at discussion at all. I am therefore presidents are Augustus Cullen the control of, the Council of the time of their appointment not certain quite who or how & Company, Matheson the Law Society. be members of the Council of directors become elected or Ormsby Prentice, Vincent & The SMDF, like any other the Law Society. chosen by the council of the Beatty, and now Patrick company, has to have an At article 16 it states that the society to sit on the board of McEllin & Company of annual general meeting. I Council for the time being of the SMDF. I am aware that the County Mayo. attended this meeting on one the Law Society shall be following directors appear as of There is a pattern to all of occasion in 1995. I was the entitled by notice in writing 12 October 2001. They are this. There are some excellent only member in attendance under the hand of a duly Maurice Curran (former firms of solicitors on the who was not either a director authorised member of the society president), Elma Lynch defence panel, all of whom or a solicitor on the defence Council or officer of the (current society president), have had some intimate contact panel. It is a pity that none of Incorporated Law Society of Laurence Shields (former with the Council of the Law you who are members go to Ireland lodged at the registrar’s society president), Michael Society but who have not been the AGM to make inquiry how office of the company at any Houlihan (former society either past presidents nor are your defence fund is actually time to appoint any person to president), Patrick Groarke they current SMDF board operated. be a director either to fill a (solicitor), Thomas D Shaw members. Both on principle and as a vacancy or as an additional (former society president) and It is not, in my opinion, matter of economic choice I director or to remove any Geraldine Clarke (current appropriate that members of am not a member of the director from office, however Council member). Now, the the board of directors of the SMDF and therefore have no appointed. only current members of the SMDF should nominate current right to attend AGMs There is then a sidebar Council are Elma Lynch, Larry themselves to benefit from or, for that matter, to make agreement, dated 1987, made Shields and Geraldine Clarke. I being on the panel of defence lawful inquiry about the between the Solicitors’ Mutual assume that Maurice Curran, solicitors. Those people may company from its officers. Defence Fund Ltd and the Michael Houlihan and Tommy think it wholly appropriate, but Those of you who are Incorporated Law Society of Shaw would be regarded as safe it unfortunately leaves a members should begin to take Ireland. In this agreement, it pairs of hands. question mark over the reasons an interest and start asking states at paragraph 5 that the It must be evident that the why such a firm may have been questions. SMDF agrees so far as lies board of directors of the within its power not to amend SMDF gets to nominate which its memorandum and articles firms’ solicitors will be on the without prior notice to and in panel of defence solicitors in High praise indeed consultation with the society. the unhappy event that one of From: Fergal Foley BL about the legal profession after It goes on at paragraph 6 to the members of the company is lease allow me to congratu- the wholly inaccurate attack the state that ‘the company agrees sued for negligence or must Plate director general Ken previous day. It is heartening so far as lies within its power so call on their professional Murphy on his performance on for a barrister to know that to do to ensure that at all times indemnity insurance for the Marian Finucane show there is somebody able to take a majority of its directors shall whatever reason. A quick look recently, setting the record straight up the cudgels in our defence.

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9 Law Society Gazette December 2001 Cover story

Many archaic and bizarre laws were finally repealed in 1962, but some are still in force. Henry Murdoch takes a light-hearted look at some old legislation and comes up with some unusual and oddly enlightening examples

t is just as well for the many ‘popish’ solicitors of popery have been and daily are greatly eluded and and barristers in Ireland today that in 1962 the evaded ...’. Statute Law Revision (Pre-Union Irish Statutes) The 1733 act also went on to prevent any person Act finally repealed (in case there was any from being admitted as a barrister or solicitor if they I doubt) the 1733 act (7 Geo II: cV) which stated married any woman of the ‘popish religion’, or that no person could be admitted as an attorney or permitted their children to be educated as Catholics. licensed to be a solicitor in the Four Courts in Such a person ‘shall henceforth be deemed a papist Papists, porter a

Dublin ‘who hath not been a Protestant from his age of 14 years’. The purpose of the 1733 act is clear from its preamble: ‘Whereas the laws now in force against popish solicitors have been found ineffectual by reason of the difficulty of convicting such solicitors … to the great prejudice of the Protestant interest of this kingdom … and whereas by the means of such popish solicitors, the acts against the growth

10 Law Society Gazette December 2001 Cover story

and disabled from being a barrister ... or solicitor’. which places restrictions on the sale of intoxicating But there was some hope for the repentant, since the liquor on credit, was not concerned with the drinking disability could be removed where the person within of alcohol in small quantities. It was, and remains, an one year of such marriage ‘procure such wife to be enlightening piece of legislation. converted to the Protestant religion’. The Tippling Act 1735 was originally known as An There was no equivocation in the 1733 act. Act to Prevent the Evil arising by the Retailers of Beer, Solicitors and barristers were not only Protestant – Ale, Brandy, Rum, Geneva, Aquavitae, and other they were also male. What a comparison with the Spirituous Liquors, giving Credit to Servants, Day- modern provisions on equality and discrimination in Labourers, and other Persons, who usually work or ply for the Employment Equality Act, 1998 and the Equal Hire or Wages. It was renamed the Tippling Act 1735 Status Act, 2000. in 1962. The act was originally intended to be a The 1962 legislation repealed or amended a whole temporary measure (section 2), but was made a and burning bricks

series of other pre-1922 acts that perpetual measure by a subsequent statute and is (to quote the preamble to the currently in force. statute) ‘may be regarded as The preamble to the act gives a graphic spent or which have ceased to description of its objectives: ‘Whereas many great be in force … or which have, by inconveniences have arisen, and do daily arise, from lapse of time or otherwise, become the credit usually given by retailers of strong beer, unnecessary’. However, a quick trawl ale, brandy, rum … and other spirituous liquors, to would suggest that there are other servants, day-labourers and other persons, by means laws and practices that were not of which … [they] are induced and tempted to resort captured by the 1962 act or too frequently to the houses or shops of the retailers subsequent legislation and of such liquors, where they often drink to excess, and which are curious, thereby frequently run into debt, and lay themselves enlightening or (in some under the temptation of purloining their masters’ cases) of questionable goods to discharge such debts, and do further by that relevance. means destroy their health … and are often thrown Examples relate to granting into gaol, where they lie in a miserable and starving credit on the sale of alcohol, condition, to the ruin of themselves and their burning bricks, marrying a families’. relation, and the facts that ‘guilty’ While effectively dealing with a social problem, does not always mean guilty of the the 1735 act does raise the question as to whether crime charged, that a board of buying a bottle of wine in your local off-licence with directors can be a court, that a ‘seat’ can a credit card this Christmas gives rise to an offence. be a place where you cannot sit, that Dublin can have its own specific powers of arrest, and that Another brick in the wall we still have the trappings of a monarchy even One old law still in force is the prohibition on the though Ireland has been a republic for more than 50 burning of bricks in the city of Dublin as provided by years. the Burning of Bricks (Dublin) Act 1770. This act, originally named An Act to prevent the Pernicious A little of what you fancy Practice of burning Bricks within the City of Dublin, or What does the word ‘tippling’ conjure up? Well, the neighbourhood thereof, was renamed the Burning of ‘tipple’ is defined in a non-legal dictionary as ‘to Bricks (Dublin) Act 1770 by the Short Titles Act, 1962, make a habit of taking alcoholic drink, especially in which confirmed that sections 1, 2 and 3 were small quantities’. However, the Tippling Act 1735, unrepealed sections.

11 Law Society Gazette December 2001 Cover story

The act states: ‘Whereas large quantities of bricks raises all kinds of difficulties when the accused are frequently burned within the city of Dublin, and regains, or claims to have regained, sanity. Good in the neighbourhood thereof, by means whereof the examples of these difficulties can be found in DPP v inhabitants of the said city are grievously annoyed, Gallagher ([1991 SC] 1 IR 31), Application of and the lives of many weakly persons has been lost Gallagher (No 2) ([1996 HC] 3 IR 10), and … for remedy whereof be it enacted … no person O’Halloran v Minister for Justice ([2000 HC] 1 ILRM shall make, or cause to be made, burn, or cause to be 234). burned, any bricks within the distance of two measured miles from the public lamps of the city of When a board of directors is a court Dublin’. The board of directors of the publicly-quoted It is not clear what was in bricks in 1770 that company Bank of Ireland is legally called a ‘court’ as made the burning of them so objectionable. Maybe a result of its establishment by the Bank of Ireland animal dung had something to do with it! Act 1781, as amended in 1791 and 1797, and its charter under these acts. Keeping it in the family Under the bank’s first charter, the members of its The Marriage Act 1537, introduced during Henry court of directors were required to subscribe to the VIII’s reign, sets out the degrees of consanguinity declaration contained in An Act to Prevent the (by blood) and affinity (by marriage) relationships Further Growth of Popery – so that Catholics were within which parties cannot marry. Any marriage in barred from being appointed to the court. This was breach of the prohibited degrees is a void marriage. a source of constant embarrassment to the bank in For example, a man could not marry his its early years, until the charter was subsequently grandmother, grandfather’s wife, wife’s grandmother, amended. father’s sister, mother’s sister, father’s brother’s wife, The bank got itself caught up in the politics of mother’s brother’s wife, wife’s father’s sister, wife’s the day in other ways. When our Dáil and Seanad mother’s sister, mother, stepmother, wife’s mother, were established, a natural home for them and a daughter, wife’s daughter, son’s wife, sister, son’s historical link to the past would have been the daughter, daughter’s daughter, son’s son’s wife, beautiful building known as Parliament House, near daughter’s son’s wife, wife’s son’s daughter, wife’s Tr inity College. This had been the seat of the daughter’s daughter, brother’s daughter, sister’s previous Irish parliament some 120 years earlier, daughter, brother’s son’s wife, sister’s son’s wife, until it was prorogued on 1 August 1800 pursuant wife’s brother’s daughter, and wife’s sister’s daughter. to the Act for Union of Great Britain and Ireland Analogous prohibitions applied to women. 1800. The British government was taking no The only statutory amendments to these chances of another Irish parliament being created, prohibited degrees were made by the Deceased Wife’s so in selling Parliament House to the Bank of Sister’s Act 1907 and the Deceased Brother’s Widow’s Ireland in 1803 for £40,000, they insisted that the Act 1921, under which a man was permitted to deed of conveyance contain a provision requiring marry his deceased wife’s sister and a woman could the bank to sub-divide and alter the chambers (in marry her deceased husband’s brother. These which the Irish House of Lords and the Irish House changes were largely motivated by social conditions of Commons had met), so as to preclude their being arising from wars in which Britain was a participant. used again as public debating rooms. The current While the remaining prohibited degrees are still Banking Hall in Parliament House stands partly in in force, they are now open to challenge following the space previously occupied by the House of the ruling by Mr Justice Smyth in the High Court in Commons. June 2001, in which he granted a declaration that the marriage of Mrs Winnie Kavanagh to her late When is a seat not a seat? aunt’s husband was a valid marriage. In this case, Section 20 of the Intoxicating Liquor Act, 1927 counsel for Mrs Kavanagh had argued that the 1535 provides that a person must not be admitted to a act owed itself to the ‘dynastic difficulties’ of the six- theatre after 9.30pm unless he had previously times-married monarch. engaged and paid for a ‘seat’ in that theatre. This is to prevent a theatre bar being used as a normal bar. Guilty but not guilty? The courts have recently interpreted ‘seat’ as And then we have the ‘special verdict’ introduced including a place of standing (DPP v Tivoli Cinema during the reign of Queen Victoria by the Trial of Ltd, [1999 SC] 2 ILRM 153). Lunatics Act 1883, which is still in force and which provides for a verdict of ‘guilty but insane’. In the rare old times However, this provision has been interpreted by our There are special ‘arrest without warrant’ provisions courts as a verdict of acquittal – that is, of ‘not guilty in the Dublin Police Act 1842 which do not apply by reason of insanity’. outside Dublin, ostensibly because Dublin thieves in The only order which the court may make in the the 1840s were more difficult to apprehend in the case of such a verdict is an order that the accused be city’s narrow alleyways. The act was the subject of a kept in custody until such time as the executive is review in 1997 by the High Court, which held that satisfied that it is safe to release the accused. This it was not contrary to our constitution to have

12 Law Society Gazette December 2001 Cover story different arrest provisions in Dublin from the rest of abolished the distinction between a felony and a the country (Molyneux v Ireland, [1997 HC] 2 ILRM misdemeanour, as the distinction over the years had 241). become blurred. The act also repealed a further series of pre-1922 statutes, which had been replaced King for a day by more modern provisions or which were now Despite the fact that we won our independence redundant or outdated – for example, the Sunday from Britain in 1922 and have been a republic since Observance Act 1695, the Riot Act 1787 (from whence 1949, judges of the Irish superior courts continue to came the phrase ‘reading the riot act’), the Whipping be addressed in the language of the British Acts 1820 and 1862, the Hard Labour Act 1822, the monarchy, for example, ‘My Lord’ or ‘Your Trial of Felonies Act 1836, the South Australia Act Lordship’. Judges in these courts continue to wear a 1842, the Penal Servitude Acts 1857 and 1864, and wig, except when dealing with family law matters. the Garrotters Act 1863. These wigs may have historical importance, but they There are also many old statutes still in force that are relics of a bygone age associated with royal have stood the test of time by providing a good courts. District Court judges do not wear wigs and foundation for their particular area, in some cases neither the quality of justice in their courts nor the being subsequently amended to take account of respect shown to their office suffers. modern and EU requirements. Examples are the Since the Courts and Court Officers Act, 1995, a Perjury Act 1586, the Statute of Frauds 1695, the barrister or solicitor cannot be required to wear a Conveyancing Act 1634, the Registration of Deeds Acts wig in any court. However, most barristers continue 1707 and 1709, the Landlord and Tenant (Ireland) Act to wear a wig out of preference. There are many 1860 – called Deasy’s act – the Partnership Act 1890, reasons advanced for this, including the ‘gravitas’ it and the Sale of Goods Act 1893. These statutes are all may lend to a younger member of the bar. A alive and well today. criminal barrister once jokingly remarked that, in So ‘old’ in law may mean curious, enlightening, criminal matters, the wig was necessary so that the and perhaps even dated, but – like wine – not jury could clearly distinguish between the accused necessarily bad. G and the lawyers. While many old statutes and practices are still in Henry Murdoch is a barrister and author of Murdoch’s force, there has also been considerable updating of dictionary of Irish law and the CD-ROM Murdoch’s the law. For example, the Criminal Law Act, 1997 Irish legal companion. leaders… in the quest for excellence…

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13 Law Society Gazette December 2001 News analysis

New president Elma Lynch talks to Conal O’Boyle about her career and her plans for her year in office

he doesn’t fly, she’s never played rugby, but new Law Society President Elma Lynch does have the dubious distinction of nearly being thrown out of court for S not wearing the appropriate headgear. Back in 1970, if you were a female solicitor, hats were de rigeur for appearances in court. As a newly- qualified solicitor, Lynch kept one in her office. Although the head-covering rule was abolished shortly afterwards, no-one seems to have told the fashion-police in Cork. Lynch reckoned that the judge she was appearing before (who was originally HATSHATS OFFOFF TOTO ELMAELMA

from Dublin) would have little problem with a father was an army officer from west Cork and her bareheaded female solicitor, but first she had to get mother was a civil servant. But she always had an past the Rebel County’s version of the Taliban. interest in the law and was not averse to popping ‘There was a young garda who was on duty’, she down to the Four Courts with her friends during the recalls, ‘and he tapped me on the shoulder and said: summer to see what was going on. Those were the “You’re not going in without a hat”. Now, the case days when you had to make your entertainment, was almost settled, and it didn’t actually matter that before the world switched from black-and-white to much, but my junior counsel had to come out to try colour for most Irish people. to reason with the garda. He pointed out that I was a But the Lemass years of the mid-1960s meant that solicitor and that I was no longer obliged to wear a a booming Ireland needed more solicitors, so Lynch hat in court because the rules had been changed. But opted for law in UCD. Some 31 years later she’s the young garda was having none of it. As I recall, he never regretted a minute of it. ‘It’s been a very said something like: “I don’t care what she wears, fulfilling life for me’, she says. ‘The friends I’ve she’s not going into that courtroom with nothing on made have been as been important as the work I’ve her head”. That was probably about 1972’. done. And I don’t mind taking on something new, Elma Lynch had no particular family links to the some new area of law. I actually find that interesting. law – nor to millinery, for that matter – since her I like it when new areas of work open up’.

14 Law Society Gazette December 2001 News analysis

FF AA

As a young female solicitor in the 1970s, she was The gender profile of the profession has changed unaware of any ‘glass ceiling’ or sex discrimination in utterly too. When Lynch qualified, she was one of the traditionally male legal profession. ‘I never perhaps 20 women in a class of 120 apprentices. In thought there was’, she says. ‘In fact, our male recent years, there have been more female colleagues were probably nicer to us; they seemed apprentices going through Blackhall Place than male delighted to have us around. I don’t think anybody apprentices. ever refused to deal with me because I was a One other change she has noted over the years has woman’. been the decline in deference in court. ‘There was Of course, one reason for that might have been certainly more respect for judges back then’, she says, the development of family law during the 1970s, ‘but that’s not necessarily the case any more. And which, although it was a still a crude instrument, maybe that’s not such a bad thing, because there was became a real growth area for the legal profession. a time when the judges were right even when they ‘Anywhere I worked’, she recalls, ‘none of the men were wrong. And no matter how badly they treated in the practice ever wanted to do family law. I don’t you, you didn’t speak up. But that’s gone, and it’s think they really liked it, nor had that great an right that it’s gone’. aptitude for it. Now, of course, there are many Lynch admits that her own career owes much more running very successful family law practices’. to luck than planning. ‘I’ve always tended to let things

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Legal & General Software 13 Upper Ormond Quay, Dublin 7 News analysis happen rather than worry too much about the future. I’m a very lucky person, but conversely I believe that there is nothing you can do to change your luck’. So FACT FILE far, the lucky streak has stood her in good stead. ELMA LYNCH After qualification in 1970, she worked for two years with her former master, Benedict Daly, in the Occupation: Solicitor (admitted to Roll of Solicitors in 1970). Partner in the Dublin firm Wilkinson & Daly, before joining Dublin law firm Daly Lynch Crowe & Morris Arthur O’Hagan & Sons as an assistant solicitor. Education: Secondary: Loreto Abbey, Rathfarnham, Dublin; third level: BCL Then, in 1978, she rejoined her former master in (Hons) from University College, Dublin the newly-formed firm of Daly and Lynch. When Law Society career: First elected to Law Society Council in 1987. Junior Vice- Daly was appointed to the District Court bench in President 1996, Senior Vice-President 2000, President of the Law Society for 1981, Lynch practised on her own for a while before year 2001/2002. Has served on most of the society’s committees during her her former assistant solicitor Michael Crowe joined 15-year tenure on Council, including finance, registrar’s, conveyancing and as a partner in the firm. Four years ago, the firm criminal law amalgamated with Kenneth Morris, and the new firm of Daly Lynch Crowe & Morris was formed. That firm now practices out of the Corn Exchange on Dublin’s Burgh Quay. Lynch, not surprisingly, find out who did and I’d phone them. But maybe I tends to look after some family law cases, but just had a bit of a hard neck! I suppose it’s regrettable primarily she deals with licensing law, conveyancing that we’ve come to the point where we need a and commercial law matters. structured mentoring programme, but it may be As far as she recalls, the only hard career decision necessary to counteract the feeling of isolation she had to make was whether to rejoin Benedict experienced by some young practitioners’. Daly. ‘I agonised over that for a while’, she admits. As president of the Law Society, Lynch will have a ‘It was a very big step because at the same time I was tough battle on her hands if the government pushes offered a partnership in the firm that I was leaving. I ahead with its plans to introduce a new Personal mean, who knows if I made the right decision or Injuries Assessment Board. But she’s in no mood to not, but my attitude is that it doesn’t matter. I made compromise on such a crunch issue. the decision so I had to go with it. There was no ‘I don’t think it is in the public interest’, she says. point in sitting around thinking about whether I ‘You have to ask yourself why is the government might have had an easier life if I had stayed in a doing this. Is it just to cut solicitors’ fees, is it to bigger firm’. bring insurance premiums down or is it to reduce the It is this same relaxed manner that now sees Elma amount of damages paid out to victims of Lynch as president of the Law Society for 2001/02. negligence? I suspect that in large measure it’s just a She had been a Dublin Solicitors’ Bar Association political football – but ordinary people are going to nominee on the Law Society Council for three or be very badly affected. And I intend to fight it every four years, before standing for election to Council in step of the way’. her own right in 1987. She was somewhat surprised During her term of office, Lynch will be presiding when she found herself elected. ‘I mean, I didn’t over celebrations to mark the 150th anniversary of the actually work that hard, you know. It just fell into granting of the Law Society’s charter. She believes place. I didn’t make a thousand phone calls, asking that this should be an opportunity to reflect on the people to vote for me. It just happened’. profession’s heritage and to reaffirm its commitment During her time on Council, she has sat on the to the most rigorous professional ethics and conduct. registrar’s, parliamentary, law reform, conveyancing, ‘Solicitors have made a great contribution to Irish criminal, premises and public relations committees, society over the years, and we have been able to and the Gazette editorial board, as well as chairing change with the times’, she argues. ‘But the one the Finance Committee two years ago. She also thing that should not change is our fundamental spent some years as a member of the Disciplinary belief that the interests of the client always come Tribunal. Given this track record, it’s no surprise first. Now, that doesn’t mean we can use this as an that she believes the Law Soceity is doing a good job excuse for treating our solicitor colleagues in an in representing its members’ interests, but she does unprofessional way. It means that we are here to feel that there’s always room for improvement. For serve the needs of the public as a whole. We’ve done example, she’s worried that the huge growth in the it marvellously for 150 years, and we have every number of solicitors in recent years may lead to a reason to be proud. As president, I will be corresponding decline in the collegiality that has encouraging my colleagues to reflect on our traditionally been a hallmark of the profession. traditional values and never to lose sight of the code ‘At our recent AGM’, she says, ‘a young female of ethics and conduct that make us a unique solicitor from Kerry stood up to ask whether we had profession. any plans to introduce a mentoring programme for ‘We’re still here after 150 years, so we must be newly-qualified solicitors. She was quite right, and doing something right’. we do need such a programme. I know when I first Elma Lynch. Living proof that you don’t need a qualified, if I didn’t know how to do something, I’d hat to get ahead. G

17 Law Society Gazette December 2001 Business

Over the last ten years, venture capitalists have poured hundreds of millions of pounds into Irish companies, and many of the beneficiaries were small businesses. The cake may be getting smaller but, for the right companies, there are still plenty of chances to get a slice. Barry O’Halloran reports Nothing

• Venture capital investments in small businesses have grown rapidly since the mid- nineties • Investors are more cautious, but good opportunities nce upon a time, for most Irish Venture capital is precisely what it sounds like. still available companies raising capital meant a trip Typically, an investor provides finance for a company

MAIN POINTS • Need for to the bank to ask for a loan. But since in return for a shareholding in it. Instead of joining credible the mid-nineties, investors have been the list of creditors that have to be paid off at some business Oplaying an increasing role in funding point, they share the risk of the business failing. But in plans and small businesses in this country. In fact, venture return, they expect, well, a return. This means that the good capital became one of the buzzwords of the boom – investment’s value should be considerably enhanced management in some quarters you were nobody if you weren’t in within a defined period of time, and possibly that the the process of raising it. stake can be sold at a decent profit if the company

18 Law Society Gazette December 2001 Business g ventured

itself is sold or even floated on the stock market. sector partners were software developers, while 9% The money generally comes from three sources: were in communications technology. Irish institutions and funds, foreign investors, and PriceWaterhouseCoopers/3i puts it at 80%. private individuals. According to the last survey from There were two reasons for this. First, the Irish Venture Capital Association (IVCA), the body technology companies (particularly Internet that represents Irish investors, its members placed £376 companies) became the Holy Grail for investors million with 400 companies in the four years to 31 between 1998 and 2000. Because many of them December 2000. had flotation plans, getting in on the ground floor The report, compiled by law firm Matheson meant there was a possibility of lucrative returns if Ormsby Prentice for the association, shows that Irish and when they went to the stock market. funds and institutions invested £164 million in 144 Second, technology companies have to spend companies last year. This was a considerable increase large amounts of money on research and on the previous year, when £140 million was placed development before they can start generating with 128 businesses. decent levels of revenue. This – and the level of The survey was based on a 100% response from risk involved – means that they are not attractive IVCA members, and the association calculates that the to lenders, but the opportunity of getting a good figures represent over half of all venture capital return at the end of the day makes them more investment activity. A global private equity report suitable for venture capital. produced jointly by PriceWaterhouseCoopers and However, there are fears that since the multinational investor 3i helps to complete the picture. technology bubble has burst (or, depending on It shows that a total of $250 million (or around £217 your point of view, sanity returned to the million*) was invested in Irish companies last year. marketplace), the money is beginning to dry up. It also gives an idea of just how fast the market grew Some of the more pessimistic commentators over the last five years. In 1997, venture capital predicted earlier this year that it could be halved. investment totalled just $43 million (£37 million*), Luckily, they were wrong. meaning that in the three years to 2000, the annual According to Goodbody’s Jim Meates, a recent rate of growth was 55% – well ahead of the global report shows that private equity investment in this average increase for the same period of 35%. country totalled $215 million (£186 million*) so far The main beneficiaries of this investment activity this year. ‘That means that it’s at almost the same were small businesses, many of them at the beginning level as last year’, he says. of what their backers hoped would be long and At this stage, nobody is willing to predict what prosperous careers. Jim Meates, senior associate in law the figures for the full year will look like. MOP’s firm A&L Goodbody’s commercial department, says corporate finance partner, Andrew Doyle, who that while a few of the investments were of the order of worked on compiling the IVCA survey, believes £10 million to £15 million, most were in the £1 million that there has been a slow down, but says it’s to £3 million bracket. The modest amounts themselves impossible to put a figure on it at this stage. Gavin indicate that the businesses involved were small. Bourke of Trinity Capital, a fund that specialises in supporting technology companies at the early Forever blowing bubbles? stages of their development, says that private Technology drove much of the growth. The IVCA individuals and some foreign investors are less estimates that the hi-tech sector mopped up over 70% active than last year. This was foreseen as far back of the funds invested here. More than 71% of as a year ago, but before the World Trade Center companies benefiting from a series of funds operated attack. That event could have a more medium- jointly by Enterprise Ireland and a range of private term impact on the market here, as US investors

19 Law Society Gazette December 2001 Business

may be less willing to invest their money outside about the company’s products, its target market America. and the potential to develop both. ‘It’s important For the moment, the good news is that there is to know the compelling reasons for the corporate cash available for investment in potentially purchaser to buy what the company is offering’, profitable businesses. Shay Garvey of Delta says Bourke. ‘Also, how close the company is to Partners, which this year closed off its euro 90 that marketplace, how well it knows and million (£71 million) equity II fund, recently said understands potential customers, and if it has sold that there are about 500 ‘backable’ companies in products or services to this marketplace Ireland. He added that the quality of businesses previously’. approaching his firm is higher than last year. MOP’s Andrew Doyle says that the people best Investors are not just looking for large placed to draw up the business plan and provide companies or only at the technology sector. A this information are those running the company – glance at the current Enterprise Ireland seed and the management team who will implement the venture capital fund report shows that between plan. Investors regard management as crucial to 1994 and 1999 the state agency and its private the business, and its perceived ability to run the sector partners backed everything from a company and deliver on its targets will be central mushroom grower and distributor to a company to its success in getting funding. that makes machines for removing chewing gum As well as a credible business plan, the from footpaths. That was in addition to a raft of management will need to show that it is on top of technology and communications businesses. things by getting regulatory details right. Jim As a result of the recent shake-up in that sector, Meates emphasises that before a company seeks investors now avoid the consumer-oriented capital, it should ensure that it has a full register of dotcom businesses, and instead focus on those members and directors, and that its annual returns, developing their own products. For instance, accounts and any other documents that should be Bourke says Trinity’s focus is primarily on software filed with the Companies Registration Office are companies that own the intellectual property in actually filed and available. If it’s appropriate, there their products and that sell mainly to the should be complete records of any intellectual corporate sector. He adds that ‘given the risks property owned by the company. involved in investing in early-stage technology ‘When it comes to corporate governance, you companies, it would be important that the really should have your house in order’, Meates company have the potential to realise significant says. ‘You’d be surprised by the number of returns for investors’. companies that do not, and it is one thing that we say to people who come to us looking for advice in The man with the plan this area’. After the investment is secured, So just how do investors judge a company’s investors will want to see that the company has a potential, and how does the company demonstrate properly constituted board that carries out its it? Anyone seeking venture capital has to put business in accordance with the Companies Acts. together a business plan. According to Gavin In some cases, they will appoint a representative Bourke, this should include realistic financial to the board to safeguard their interests. In a projections and details of the actual funding similar vein, some venture capital companies will requirements. He also stresses that in the current provide on-going support and advice to businesses climate companies should be able to show that in which they have invested, particularly if they are they can fund themselves for a period of over two at the early stages of their development or growth. years. The business plan should also have clear details Taking the first steps Assuming that your business clients have drawn up a business plan and have their houses in order, the next question is: where do they go? A variety of SOURCES OF VENTURE CAPITAL institutions and companies are active in the Irish market. These include companies like Trinity, • ACT Venture Capital Ltd, Jefferson House, Eglinton Road, Donnybrook, Dublin which is currently cash-rich (having just raised 4, tel: 01 2600966 funds itself), and Delta, which works largely with • Campus Companies Venture Capital Limited Partnership, Arancoast Ltd, Molesworth House, 8/9 Molesworth Street, Dublin 2, tel: 01 6790818 early-stage funding for technology companies. A • Delta Partners Ltd, ICL Building, South County Business Park, Leopardstown, number of others, such as ACT Venture Capital Dublin 18, tel: 01 294 0870 and Hibernia Capital Partners work with a broader • Enterprise Ireland, Merrion Hall, Strand Road, Dublin 4, tel: 01 857000 range of businesses. ICC, the former state bank, • Hibernian Group plc, Haddington House, Haddington Road, Dublin 4, tel: 01 also has an active venture capital arm. 607 8707 A number of high-profile Irish companies not • ICC Venture Capital, 72-74 Harcourt Street, Dublin 2, tel: 01 415 5555 normally associated with financial services have •Trinity Venture Capital Ltd, Dunleary House, Dun Laoghaire, Co Dublin, tel: 01 also been active in this market, such as Smurfit 2846135 (through Smurfit Venture Investments) and, more surprisingly, Guinness Ireland, which operates a

20 Law Society Gazette December 2001 Business fund in partnership with Ulster Bank. million of the £6 million at its disposal. This fund Julie Sinnamon, manager of investment services places between £30,000 and £500,000 in businesses with Enterprise Ireland, says that those seeking operated by staff, students and graduates of Irish investors either approach venture capital houses colleges. directly or they go to the corporate finance sections The 15 funds are aimed primarily at small and of the various Irish stockbroking houses (which at medium-sized businesses in the early stages of their this stage are all based in Dublin). development. Some of them will provide a second ‘Corporate financiers act as intermediaries’, she round of funding to companies that they have explains. ‘They will first of all talk to the people backed and whose success indicates that they are looking for money and then go out and approach worth taking to the next stage of growth. the people providing the funds with a view to If you or one of your clients is preparing to dip a getting one or a number of them on board – often a toe into the country’s still large pool of venture number of funds will invest in one company’. capital, there is one final thing worth remembering. Enterprise Ireland itself is playing a role in the Valuations have fallen dramatically from the heady venture capital market. Working in partnership with days of 1999 and early 2000. This means that private sector investors, the state agency has venture capitalists are looking for proportionately established and managed 15 funds with a total value larger shareholdings for their money than last year. of euro 90 million (£71 million) since 1995. But it is this that is keeping them interested. Enterprise Ireland provided euro 44 million (£35m), According to Gavin Bourke of Trinity, the more while its partners provided the balance. realistic valuations mean investment opportunities The latest figures available for these funds show are more attractive. ‘For cash-rich venture funds, many of them were not fully subscribed by the end this is a very good time to be investing’, he says. of last year. For example, only £2.95 million of the * $/£ exchange rate calculated at $1.15 to £1. G £7.5 million available from the Alliance investment capital fund was taken up. The campus companies’ Barry O’Halloran is a staff reporter with Business & venture capital fund had committed just over £2 Finance magazine.

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21 Law Society Gazette December 2001 Tor t Neighbourho

We used to be taught in religion class that the answer to the well-known • Glencar question ‘who is thy neighbour?’ was ‘thy neighbour is all mankind’. But for Exploration plc v Mayo County lawyers, the answer must be more circumspect. Michael Peart explores the Council issues surrounding duty of care in the light of a recent Supreme Court • Case law dealing with decision scope of duty of care • Contrast n a legal context, the ‘neighbour principle’ found that Mayo Co Council was negligent in between relates to the category of people to whom we adopting ultra vires the mining ban, he nevertheless English and owe a duty of care, and, if such a duty of care decided that the negligence in question did not give Irish positions exists, whether the loss claimed is one to which rise to any right to damages. In effect, he found that responsibility attaches. while the council had been negligent, it was not in MAIN POINTS I The Supreme Court judgment in Glencar breach of any duty of care owed to the plaintiffs as a Exploration plc v Mayo County Council (unreported, 31 result of which they suffered loss and would be July 2001) affects both of these questions, but mainly entitled to damages. The plaintiffs appealed this the former. The result of the decision clarifies the finding to the Supreme Court. law in this jurisdiction by interpreting the Supreme Court’s earlier decision in Ward v McMaster ([1985] The Supreme Court decision IR 29 HC; [1988] IR 337 SC) in a way that brings The relevant part of the judgment of the chief our law back into line with recent English decisions justice for the purpose of this article is that dealing such as Murphy v Brentwood DC ([1991] 1AC 398), with the ‘neighbour principle’. In other words, the which effectively closed the floodgates that it was question was whether the plaintiff was a body to feared had opened following previous decisions, in which the duty of care was owed and, if so, whether particular Junior Books Limited v Veitchi Company the loss suffered as a result was one which could Limited ([1983] 1AC 520). sound in damages. The chief justice dismissed the appeal, but in doing so set out the history and The facts of the case development of the law, both in this jurisdiction and Before dealing with the Glencar judgment itself, it is in England. useful to outline briefly the facts of the case. As far In order to appreciate the significance of Keane back as 1968, the plaintiffs had been granted ten CJ’s judgment, one must compare the development prospecting licences for exploring for gold deposits of the neighbour principle both in this jurisdiction in an area south of Westport, Co Mayo. Between and in England. Until the late 1980s, there was 1968 and 1992, Glencar spent close to £2 million in much convergence between the two jurisdictions. prospecting for gold under the terms of their However, with the 1991 overruling of previous licences. In 1991, they entered into a joint venture decisions, the law in England was revised. We, with another company, Newcrest Mining Limited, a however, did not follow suit. We now appear to have major Australian gold producer, as further reconverged following the Glencar judgment, not so investment would be required to enable the much by an overruling of Ward v McMaster, but by a encouraging results to be turned into commercial reinterpretation of it. mining production. However, shortly after this joint The starting point is the notorious ‘snail in the venture was set up, Newcrest withdrew from the ginger beer’ case of Donoghue v Stephenson ([1932] project after, it was alleged, the inclusion by Mayo AC 562), so beloved by all students of the law of Co Council in its February 1992 county development negligence. Prior to this case, some contractual plan of a complete mining ban in Mayo. relationship with the tortfeasor was necessary before In subsequent judicial review proceedings, Blayney a claim for damages could succeed. Mrs Donoghue, J found that the inclusion of the mining ban was ultra however, had consumed at least a portion of a bottle vires but adjourned the plaintiff’s damages claim with of ginger beer that she had been given by a friend, liberty to apply. In due course, the damages claim who had bought it in a café. Lord Atkin famously came before Kelly J in the High Court, who found that in spite of the absence of any contractual delivered judgment on 20 August 1998 in which he relationship between the manufacturer of the ginger dismissed the claim for damages. While Kelly J beer in question and Mrs Donoghue, she was

22 Law Society Gazette December 2001 Tor t ood watch

caused by negligent misstatement was for the first time found to be recoverable in damages. For almost the next 20 years, the situation remained that, negligent misstatement apart, pure economic loss was irrecoverable both here and in England.

Criteria of care After Donoghue v Stephenson, the principles determining the range of the duty of care were at least unclear, no precise definition being decided in England. Much judicial ingenuity was used from time to time to bring otherwise irrecoverable losses within the scope of Donoghue v Stephenson. The concepts of ‘proximity of the parties’ and ‘foreseeability’ were to the forefront, but the question (which arose if the floodgates were not to be opened) was: what limits on recovery still existed, especially following Hedley Byrne v Heller & Partners? Ultimately, in Anns v Merton Borough Council ([1978] AC 728), Lord Wilberforce’s ‘two-stage test’ emerged. The test meant that, provided the necessary proximity exists, only some considerations (such as public policy) ought to deprive a plaintiff of his recovery of loss. This clearly had the potential to extend the scope of the duty of care to a wider range of claimants, particularly in the area of pure economic loss, since there is no mention in Lord Wilberforce’s statement of excluding pure economic loss. It was not surprising that there was no universal acceptance of this formula. Perhaps the high-water mark in this regard came in Junior Books Limited v Veitchi Company Limited, when pure economic loss was found to be recoverable by a plaintiff company against a flooring firm that was sub-contracted by contractors employed by the plaintiff company to carry out work to its factory premises. This was a significant extension beyond what had been previously decided, since the plaintiffs were once-removed from direct contractual relations with the defendants. It should be noted at this stage that it was Junior Books that was entitled to recover damages for negligence. followed in this country in Ward v McMaster, but Following this decision, recovery continued to be more will be said about this later. restricted to claims arising from injury to the person Following the decision in Anns v Merton Borough or injury to property. The position was that, provided Council, there was much judicial disquiet in England, that the necessary ‘proximity’ was established the feeling being that Lord Wilberforce’s ‘two-stage between a plaintiff and a defendant, and that the test’ had been thought to do more than in fact was ‘foreseeability’ of injury was established, recovery of intended by the decision. For example, in Governors damages was possible. ‘Pure economic loss’ – as of Peabody Donation Fund v Sir Lindsay Parkinson & opposed to damages for injury to the person or Company Limited ([1985] AC 210), Lord Keith of property – remained irrecoverable, in general, until Kinkel expressed the view that ‘in determining the decision in Hedley Byrne Limited v Heller & whether or not a duty of care of a particular scope Partners ([1964] AC 465), when pure economic loss was incumbent on a defendant, it is material to take

23 Law Society Gazette December 2001 Tor t

into consideration whether it is just and reasonable Partners have been considered and adopted in our that it should do so’ (emphasis added). courts in a number of cases and unquestionably This view, as we shall see, appeals to Keane CJ in represents the law in this jurisdiction’. his Glencar judgment, in restricting his view of the He also points out that the ‘two-stage test’ scope of the duty of care. This concept was expressed adopted by Lord Wilberforce in the Anns case has by Lord Bridge in Caparo Industries plc v Dickman been thought to be the appropriate test in this ([1989] 1 AER 798; [1990] 2AC 605) as follows: ‘the country, having regard to the decision of the situation should be one in which the court considers Supreme Court in Ward v McMaster. In this regard, it fair, just and reasonable that the law should impose a he refers to the third edition of McMahon and duty of given scope on the party for the benefit of Binchy’s Law of torts. the other’ (emphasis added). That work contains four pages of extremely Ultimately, in Murphy v Brentwood DC, the House detailed commentary and footnotes dealing with the of Lords overruled the Anns decision and all cases virtues of the Ward v McMaster decision, and in flowing from it. In that case, Lord Keith of Kinkel particular with the judgment of McCarthy. It goes stated that, in his opinion, ‘it is clear that Anns did to some lengths to point out that the ‘three-step not proceed upon any basis of established principle, approach’ of McCarthy J is the correct one here. but introduced a new species of liability governed by That approach was that if the proximity and a principle indeterminate in character but having the foreseeability requirements were satisfied, then potentiality of covering a wide range of situations, (provided there was no compelling exemption based involving chattels as well as real property, in which it on public policy) the plaintiff could succeed. The had never hitherto been thought that the law of authors comment that as recently as July 1998 in negligence had any proper place’. Forshall and Fine Arts Collections Ltd v Walsh, He went on to state that he would ‘hold that Anns Barrington J (Lynch and Barron JJ concurring) was wrong decided as regards the scope of any stated that he had ‘no doubt’ that the plaintiff ‘fell private law, duty of care resting on local authorities within the proximity or neighbourhood principle as in relation to their function of taking steps to secure described in the cases of Ward v McMaster and compliance with building bye-laws or regulations and Caparo Industries plc v Dickman’. The authors express should be departed from. It follows that Dutton v puzzlement at the inclusion of Caparo in this Bognor Regis UDC ([1972] 1QB 373) should be sentence, given the fact that it differs from Ward v overruled, as should all cases subsequent to Anns McMaster. which were decided in reliance on it’. But in Glencar, the chief justice carries out an extensive examination of the judgment in Ward v The Irish position McMaster in the High Court (Costello P) and then Having seen the development of the law in England examines the Supreme Court judgments in the same up to the overruling of the Anns ‘two-stage test’, we case, which were delivered by Henchy J and must now look at the situation in Ireland in order to McCarthy J. In effect, he downgrades the ‘three- appreciate the significance of the Glencar judgment stage test’ of McCarthy J to mere dicta. He states in in relation to the scope of the duty of care. this regard: As Keane CJ states in Glencar: ‘The decisions in ‘Since Finlay CJ and Griffin J expressed their Donoghue v Stephenson and Hedley Byrne v Heller & agreement with the judgment of Henchy J and McCarthy J, it is not clear that the observations of the latter in relation to the two-stage test in Anns LORD WILBERFORCE’S ‘TWO-STAGE TEST’ necessarily formed part of the ratio of the decision. Given the far-reaching implications of adopting in Dealing with the scope of the duty of care in Anns v Merton Borough Council ([1978] AC 728), Lord Wilberforce stated the ‘two-stage test’ in the following this jurisdiction a principle of liability in negligence terms: from which there has been such powerful dissent in ‘First, one has to ask whether, as between the alleged wrongdoer and the other common-law jurisdictions, I would not be person who has suffered damage, there is a sufficient relationship of proximity or prepared to hold that further consideration of the neighbourhood, such that, in the reasonable contemplation of the former, underlying principles is foreclosed by the dicta of carelessness on his part may be likely to cause damage to the latter, in which McCarthy J in Ward v McMaster’. case a prima facie duty of caring exists. He then concludes that ‘there is in my view no ‘Secondly, if the first question is answered affirmatively, it is necessary to reason why courts determining whether a duty of consider whether there are any considerations which ought to negative, or to care arises should consider themselves obliged to reduce or limit the scope of the duty, or the class of person to whom it is owed, or hold that it does in every case where injury or the damages to which the breach of it may give rise’. damage to property was reasonably foreseeable, and

24 Law Society Gazette December 2001 Tor t the notoriously difficult and elusive test of Lord Denning had this to say in Dutton: ‘The “proximity” or “neighbourhood” can be said to have damage here was not solely economic loss. It was been met unless very powerful public policy physical damage to the house. If Mr Tapp’s considerations dictate otherwise. It seems to me that submissions were right, it would mean that if the no injustice will be done if they are required to take inspector negligently passes the house as properly the further step of considering whether, in all the built and it collapses and injures a person, the circumstances, it is just and reasonable that the law council are liable; but if the owner discovers the should impose a duty of a given scope on the defect in time to repair it – and he does repair it – defendant for the benefit of the plaintiff, as held by the council are not liable. That is an impossible Costello J at first instance in Ward v McMaster’. distinction. They are liable in either case’. Many would feel that such a plaintiff ought to Established principles recover her losses, yet this is the very case that was This re-examination by the chief justice of the case The chief overruled in Murphy v Brentwood, since Anns had law dealing with the scope of the duty of care, and followed it. If a similar case occurred in Ireland, the test which ought to be applied, is clearly resonant justice’s recovery would have been possible under the Ward of the speech of Lord Keith of Kinkel in Murphy v decision has v McMaster principles, but, following Glencar, one Brentwood. Clearly, the chief justice is of the view that could not be certain of success. Ward v McMaster went too far and departed from left the The so-called floodgates argument is that, by an ‘established principles’. However, there is certainly a judiciary some expansion of the scope of the duty of care, claims of contrary view, namely that confining the resolution an indeterminate class will be extended to an of cases to ‘established principles’ prevents recovery discretion in indeterminate range of people and that an unfair in otherwise deserving cases by refusing to extend the matter by burden will be cast upon local authorities and other the range of cases in which recovery ought to be similar bodies, which presumably these days possible. Some plaintiffs will now be effectively stating that a includes insurance companies. That is the public without a remedy for actual losses suffered through judge ought to policy consideration underlying the restriction of no fault on their part. the scope of the duty of care. The contrary Admittedly, the chief justice’s decision has left the ask whether argument is, of course, that these are the very judiciary some discretion in the matter by stating ‘it is just and bodies who have shoulders broad enough to carry that a judge ought to ask whether ‘it is just and that burden, and in the case of insurance companies reasonable that the law should impose a duty of a reasonable they are paid premiums calculated to meet the given scope on the defendant’, but against this it that the law claims. On the other hand, the deprived plaintiff is must be said that greater uncertainty will now exist in no position to bear the loss. Time will tell as to whether recovery will be possible. After all, should impose whether the judges will use their discretion in a judges vary in the exercise of that discretion. a duty of a way which displays some sympathy for the It should be remembered that in the overruling of unfortunate plaintiff who suffers a loss or whether the Anns decision in Murphy v Brentwood, Lord Keith given scope they will yield to these so-called public policy stated that in doing so ‘it follows that Dutton v on the considerations. Bognor Regis Urban District Council ([1972] 1 QB 373) Finally, dealing with the question of recovery for should be overruled, as should all cases subsequent to defendant’ economic loss, there are ominous signs in the chief Anns which were decided in reliance on it’. The justice’s judgment when he states: ‘we were not Dutton case involved a defective house. The builder invited in the present case to overrule our earlier had built the house, having obtained planning decisions in Siney [referring to Siney v Dublin permission. The defendant’s inspector had inspected Corporation] and Ward v McMaster. I would the foundations during the course of construction, expressly reserve for another occasion the question and had passed them. On completion of the house, as to whether economic loss is recoverable in the builder sold it to a purchaser who, some months actions for negligence other than actions for later, sold it to the plaintiff. Shortly after Mrs Dutton negligent misstatement and those falling within the moved in, the house began to subside because of categories identified in Siney and Ward v McMaster defective foundations. The claim was for the cost of and whether the decision of the House of Lords in repairs – that is, pure economic loss. Lord Denning Junior Books Ltd v Veitchi Company Ltd should be found for the plaintiff, even though she was a followed in this jurisdiction’. subsequent purchaser. He found that the defendant We will watch that space with interest! G council owed a duty of care on the Donoghue v Stevenson principles, namely a duty owed to the Michael Peart is a partner in the Dublin law firm ultimate consumer. Pearts.

25 Law Society Gazette December 2001 Gadgets Tech trends Sing while you’re swinging on’t ask, don’t tell. ten-hour battery and state-of through Apple’s proprietary that the iPod can download an DDownloading music files the art skip protection FireWire connection, and entire CD’s worth of music in from the Internet may be in means that you should be your Mac must have Apple’s just ten seconds. some sort of legal limbo, but if able to listen even while digital music software iTunes Available for around £361.59 you happen to have filled your bungee jumping and it 2. But it is a lot faster than (€450) excluding VAT from the Mac’s hard-drive with your won’t miss a any other MP3 player on Apple Store (www.store.apple.com) favourite tunes, then the new beat. The the market: Apple claims and computer outlets. iPod from Apple will be right downside is the up your street. Weighing in at iPod only only six and a half ounces, this connects to Taxing times new digital music player has a Macintosh 5GB hard disk that hold computers, around 1,000 songs, which is equivalent to 100 CDs. Its

Fat boy slimmed A little orking on a computer f your firm is serious about its company claims that the PC’s Wcan be taxing, but I‘clean desk’ policy, then ‘integrated flat panel design’ belter sometimes that’s no bad thing. maybe it should take a look at screen takes up to 75% less ell, it’s about time Indeed, it’s what you’d hope for the new slimline desk space than standard Wsomeone invented one when searching the new digital NetVista X41 desktop computers. Despite its of these. You know the way resources from the good from IBM. slim appearance, the NetVista your mobile phone waits until people at Tax World, who aim The still manages to pack a punch. you’ve mislaid your charger to impart a wealth of It comes with a Pentium 4 before it runs out of juice? knowledge, including the processor, and – depending on And it always when you need complete text of the Irish tax your specifications – a hard it most? code, legislative and case-law drive of up to 40GB, memory The new precedents in both Ireland in of up to 2GB, powerful 3D Scribble the UK, and concise graphics and 16MB of video keyring commentary. Previously memory. And, if you can get phone available only as the three away with it on work time, the charger bound volumes that collectively 16x DVD with integrated can make up the TaxBook, you can audio and stereo speakers change all that. Designed to now opt for a disk-based should maximise your clip on a keyring and powered version, TaxDisc, which is fully viewing pleasure. by an ordinary 9-volt battery, searchable, or an on-line Available from computer the keyring charger is available version, TaxLive 2001, which is outlets for between for most models of mobile continually updated by the £1,379 (€1,750) and phone, including Nokia, authors. £2,157 (€2,740) Ericsson, Motorola, TaxDisc or a years’ access to excluding VAT, Panasonic, Sony, Siemens and TaxLive will cost about £400 for depending on Sagem. a single user, more for a multi- specifications. Available on-line from user network licence, depending on ScribblePDA.com for around the number of users and options stg£6.95 (€9.50). selected. For further information, contact Tax World at 01 872 8881 or visit their website, www.taxworld.ie.

26 Law Society Gazette December 2001 Gadgets Nowhere to hide from your e-mails now

ired of ringing ‘back to base’ links your mobile phone to originally tailored Tto catch up on your calls your office PCs and converts for the legal after a morning in court? So was your e-mails to text messages profession but is north Dublin solicitor James that can be sent directly to your now taking off among For further information, contact Kennedy of Michael J Kennedy mobile. The service also other disciplines, such as James Kennedy at SmartNote on and Co in Baldoyle – except that includes a calendar function to engineering and consultancy. 01 832 1057, e-mail he decided to do something remind you of scheduled The service costs €100 a year [email protected] or log on to about it. The end result is appointments. According to for single user or €500 a year www.smartnote.ie for a SmartNote, a new service that Kennedy, the service was for multiple users. demonstration. Sites to see

Urban legends (www.snopes.com). You remember that Cross-border business (www.borderbizlaw.com). This site is prediction from Nostradamus that did the rounds following hosted by Monaghan solicitors Morgan McManus and the events of 11 September? Utterly bogus – and this site will provides business law advice to both start-up and mature tell you why. This weird and wacky site is dedicated to businesses on both sides of the border, including advice on verifying or debunking urban legends or stories that sound too insurance, taxation systems, employment law, and planning and good to be true. The perfect place to visit if you want to tell environmental law in both jurisdictions. It also provides links your best friend he’s a bare-faced liar and get away with it. to useful government and state-agency websites.

Dublin Solicitors’ Bar Association (www.dsba.ie). Everything Partnership law (www.partnershiplaw.ie). Practical you need to know about the largest bar association in the information for anyone interested in partnership law, from Dr country but were afraid to ask. Includes details of forthcoming Michael Twomey, author of Partnership law. The site includes events and seminars, information on the association’s helpline, sections on recent developments in this area of law and a and an on-line version of the DSBA newsletter The Parchment. summary of cases from common-law jurisdictions.

27 Law Society Gazette December 2001 Stockwatch Desperately

Uncertain economic times and market volatility may discourage direct investment in shares. But there are products available that may help cushion your investment from risk, writes Michelle O’Keefe

orsening global • Index funds this type of investment will not Weconomic conditions and • Unit trusts/investment trusts. produce the same returns as on-going uncertainty about the direct share investments. possibility of further terrorist Before investing in any of these With-profit bonds can also be attacks have made security an products, however, you should used to provide an annual income overriding concern for many seek independent expert advice, and can be written in trust. people, both in relation to their as product offerings vary Under current legislation, when Michelle O’Keefe: There is investments and to their considerably from institution to you exit a with-profit bond you a variety of investment personal lives. With the institution. must pay tax at the standard rate vehicles available to private downward slide in share prices of 20% plus a 3% exit levy on investors that, in a over the past year, many Unitised with-profit bonds any gains made. However, you balanced portfolio, can help to diversify your capital and investors – particularly older With the on-going volatility in have no further tax liability. reduce your exposure to investors – are reluctant to put the stock market, there is now a risk all their money into the stock huge appetite among Irish Unit-linked funds market. investors for products with Unit-linked funds provide a But you can still find capital guarantees. With-profit simple way for people to make products that provide both bonds allow you to invest in a investments. These are ‘pooled’ capital guarantees and capital range of assets, such as shares, funds where your money is growth over a specified time property, cash and government combined with that of other period, although with a lower gilts, and provide guarantees for investors under the management potential for growth than the repayment of capital at the of a life-assurance or investment might apply to direct end of the investment term. management company. These investment in shares. These These products declare annual funds allow for diversification of include: bonuses that are also holdings across a broad spread of • Unitised with-profit bonds guaranteed, provided the bond investment vehicles, including •Unit-linked funds is held to maturity. shares, cash, gilts and property. •Tracker bonds Recent rates of return on You can also choose from funds with-profit bonds have been in that provide exposure to specific AVERAGE GUARANTEED MANAGED FUNDS the region of 6% gross a year. markets or sectors. PERFORMANCE* However, one particular product Unit-linked managed funds is currently providing a 9.5% are most suited to investors who gross guaranteed rate of return have neither the time nor the 10 yr 83% on the first anniversary for expertise to manage their investment amounts of £50,000 investments and to investors who 5 yr 33% plus – a far cry from current have small amounts of funds but deposit rates. It should be who want maximum exposure to 3 yr 12% noted, however, that this the markets. guarantee only applies if you Take, for example, guaranteed 1 yr 2% hold the bond for the full term. managed unit-linked funds. If these types of products are These provide a capital guarantee 0% 20% 40% 60% 80% 100% encashed early, specified at the end of a specified period *Performance to 16 November 2001. Past performance may not penalties apply. (typically five years), letting you be a reliable guide to future performance. (Source: Moneymate) Another point to bear in participate in the market without mind is that in a rising market any risk to your capital. But in

28 Law Society Gazette December 2001 Stockwatch seeking stability

guarantees at the end of the indices as closely as possible. In product term, while others only the US, index funds are one of AVERAGE MANAGED FUNDS PERFORMANCE* give an 85-90% capital the largest investment vehicles guarantee but allow for higher for private investors and they 200% equity participation with the are becomingly increasingly potential for higher growth. popular in Ireland. These funds 150% Tracker bonds are known as are ‘passively’ managed, which ‘passive’ investments because means that the investment house 100% the rate of return achieved is providing the product does not tied directly to the performance use its own expertise or 50% of one or more stock markets. If judgement to identify shares – the market index has risen by instead, it simply aims to track 0% Managed International General the end of the investment term the performance of the chosen growth equity equity (typically three to six years), index as closely as possible. 3 yrs 5 yrs 10 yrs then you would receive the The difference between an capital guarantee plus a profit index fund and a tracker bond is *Performance to 16 November 2001. Past performance may not be a reliable guide to future performance. (Source: Moneymate) linked to a percentage of the that an index fund is open- market’s index. If the market ended, meaning you can leave falls, you will still get your your money in the fund for as reducing your capital risk, you unit trusts, aimed at restricting capital back at the end of the long as you wish. There are no also reduce your exposure to the excessive exposure and ensuring term. capital guarantees with an index stock market and thus your reasonable diversification and These products are becoming fund, but you benefit from the potential for growth. liquidity. increasingly popular in view of full growth in the market (rather Underlying investments in The main difference between the current market volatility, but than a set percentage of the guaranteed managed funds tend an offshore unit trust and a you should be wary of products growth as is the case with to be in international shares unit-linked fund is that unit- quoting a large potential rate of tracker bonds). Index funds are together with a large proportion linked funds are structured as return. Ideally, this type of regarded as medium-risk in secure investments such as life-assurance policies. investment should only be used products while tracker bonds are cash, gilts and corporate bonds. for a portion of your funds, as considered low risk. The taxation of these funds is Tracker bonds tracker bonds are quite inflexible These descriptions should the same as described for with- Tracker bonds are offered by a and do not allow for withdrawal give an insight into the variety profit bonds. number of investment of capital during the investment of investment vehicles available management companies. They period. to private investors in addition Unit trusts allow you to invest in shares to direct investments in shares. These are pooled investment with little or no risk to your Index funds In a balanced portfolio, these vehicles offering investors the capital. Some of these products These funds also track the types of investments can help opportunity to diversify their provide 100% capital performance of well-known to diversify your capital and holdings though collective reduce exposure to risk. G investments. Professional managers, generally based in the AVERAGE PERFORMANCE OF IRISH UNIT Michelle O’Keefe is a director of large investment houses in the LINKED FUNDS* Davy Stockbrokers’ private clients UK and elsewhere, invest the unit. Please note that investments pooled funds in a variety of asset Type of fund 1 year 3 years 5 years 10 years may fall as well as rise in value. classes, usually concentrating on Managed growth fund -7.39% 16.74% 59.23% 141.88% The information provided here is specific markets or sectors. International equity fund -17.66% 21.81% 57.21% 134.55% intended as a guide only and not as Examples of unit trusts General equity fund -14.39% 16.82% 63.71% 162.13% a substitute for professional tax include specific equity funds, Guaranteed managed fund 2.21% 11.63% 33.47% 83.38% advice. You should consult your tax securities funds, money market *Performance to 16 November 2001. Past performance may not be a advisor for detailed advice about funds, and futures and options reliable guide to future performance. (Source: Moneymate) the rules that apply in your funds. Strict regulations govern individual circumstances.

29 Law Society Gazette December 2001 THE LEADING ACCOUNTS PACKAGE FOR LEGAL FIRMS

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HARVEST SOFTWARE, 15 PARNELL ST WATERFORD TEL 051-872111 FAX 051-872880 E-MAIL [email protected] THETHE GOLDEN GOLDEN PATH PATH TO TO PROFIT PROFIT SORRENTO 2002 Law Society of Ireland Annual Conference 4-7 April, 2002

SPONSORS:

Jardine Lloyd Thompson Ireland Limited Solicitors’ Mutual Defence Fund Limited He has many interests, business and social, outside the law. MESSAGE FROM THE PRESIDENT These include membership of the Advisory Board of the Ireland Fund and his interest in Shannon Development, of which he is Dear Colleague, a former Chairman.

I have pleasure in inviting you to join me at His hobbies include opera, films and swimming; with his wife the Society’s Annual Conference in Joan, he likes to spend his holidays at opera seasons in Sorrento on 4th to 7th April, 2002. Europe and the U.S.A.

The charming city of Sorrento is quaintly positioned along the majestic Amalfi Cyril Forbes coastline. I look forward to meeting you there, for what I hope will be a stimulating Cyril Forbes is Deputy Chairman of Jardine Lloyd Thompson Conference in a truly enchanting location. Ireland Limited, the Irish arm of Europe’s largest owned insur- ance brokers Jardine Lloyd Thompson Group plc. Until 1998 he This year the theme of the Conference will be "Professional was Managing Director of Kennedy Forbes Ltd, the niche cor- Indemnity: When Saying Sorry Isn’t Enough" and you cannot fail porate brokers he set up in 1974, which merged with Jardines. to be impressed by the panel of distinguished speakers who will address a wide range of topics. Cyril has over 35 years insurance experience as both an under- writer and a broker at Lloyd’s and in Ireland. He is an acknowl- We are most grateful to our sponsors - Bank of Ireland, Bank of edged expert in solicitors’ professional indemnity insurance. Ireland Asset Management, Jardine Lloyd Thompson Ireland In 1987 he spearheaded, with the large solicitor firms, the Limited, Solicitors’ Mutual Defence Fund and Osborne introduction of competitive insurance premiums in Ireland for Recruitment for their continued support of the Law Society’s the profession, at the same time as the SMDF started offering Conference and I would ask you to give them your favourable cover. consideration in return. In 1997 he was part of the team advising the influential I thank all of you who have made advance bookings and I hope November Group in London who wanted, and ultimately those who have not yet booked will now do so and look forward obtained, an open market insurance situation for solicitors in to a memorable conference which we hope will be enjoyed by all. England and Wales.

Elma Lynch In 1999 Jardines were appointed brokers to the SMDF, and President now are the largest handlers of solicitors’ professional indem- nity insurance in Ireland – based on their reputation for provid- ing competitive premiums, pragmatic problem resolution and hands-on risk management. BUSINESS SESSION Amongst his directorships, including being a past-Chairman of Professional Indemnity Insurance: the Crafts Council of Ireland, he is currently a director of Dublin Docklands Development Authority. When Saying Sorry isn’t Enough

David Byrne SPEAKERS WILL INCLUDE: David Byrne was appointed European Commissioner for Health Michael Houlihan and Consumer Protection in September 1999. His responsi- bilities include European policy and legislation on food safety, Michael Houlihan is senior partner in Michael Houlihan & the establishment of the European Food Authority, the regula- Partners, Solicitors, in Ennis, Co. Clare. He has been for many tion of genetically-modified organisms in Europe, the response years a panel solicitor to the Solicitors’ Mutual Defence Fund and to the BSE crises, the implementation of the new European a board member of the Fund. Public Health Strategy, developing consumer confidence in internet transactions, as well as representing the interests of He qualified in 1963 and joined his father, the late Ignatius M. European consumers in new policy developments. Houlihan, in the family firm in Ennis and built up an extensive practice in subsequent years. He specialised in personal injury Before becoming European Commissioner, David Byrne was litigation, company law and local government law, but there is Attorney General. In that role, he was one of the negotiators scarcely a branch of the law in which he has not been profes- of the Good Friday Agreement in April 1998 and oversaw the sionally involved. major constitutional amendments required by that Agreement.

He has been closely associated with the Council of the Law After obtaining a Bachelor of Arts at University College Dublin, Society for the past 30 years; he was first elected to the Council he was called to the Irish Bar in 1970, on qualifying as a in 1970 and was elected President in 1982/83. Barrister at Law at the King’s Inns. He was called to the Inner Bar in 1985. He is a Fellow of the Chartered Institute of Michael Houlihan is very well known abroad; he has for many Arbitrators and also an Honorary Member of the American Bar years attended the sessions of the American Bar Association and Association. He was recently conferred with an Honorary the International Bar Association. Fellowship of the Faculty of Public Health Medicine. PACKAGE A – based on Charter Flight - Cost: £685.00/ 870.00 per person sharing n The cost includes return flights (Dublin/Naples/Dublin), taxes, transfers, three nights’ bed and breakfast at the Sorrento Palace, Welcome Reception, Conference Seminar and Gala Banquet. Surcharges could apply in respect of changes in air fares or increases in insurance premiums or VAT/tax rates in respect of the hotel. n Charter Flight 4 April 2002 depart Dublin at 9.00 am arrive Naples 1.00 pm 7 April 2002 depart Naples 6.00 pm arrive Dublin 8.00 pm (All times are local and subject to Air Traffic Control restrictions. However, we are endeavouring to secure later departure and earlier return flight times so that we may facilitate those wishing to travel from Cork, Shannon, etc. Exact times will be detailed in your booking confirmations. The charter flight will be allocated strictly in order of bookings received.) n Those delegates not allocated to the Charter flight will be accommodated on scheduled flights which will incur a supplemental charge and transfer charges.

Note: Connecting flights from Cork, Shannon etc. can be arranged by Sadlier Travel. Please complete relevant section on the reservations form. PACKAGE B – based on Scheduled Flight n Delegates travelling on scheduled flights will travel via various European cities and will have the option of extending their stay subject to airline and hotel availability. n Price will be based on the charter package but will not include airport transfers and may incur airline and hotel surcharges. n Delegates intending to travel on scheduled flights should return a completed reservations form as soon as possible with details of their preferred travel arrangements.

REGISTRATION FEE n Payable by delegates only and not accompanying persons £74.81/ 95.00

BOOKING ARRANGEMENTS n The closing date for receipt of bookings is 18th February 2002. n Please complete the reservations form and return with deposit of £300.00/ 380.00 per person travelling. n Contact Details If you would like any further information please contact any member of the Organising Team: Sarah Ellins (Law Society) Tel: (01) 672 4823 Email: [email protected] Gerry Griffin (Chairman) Tel: (01) 490 1185 James McCourt Tel: (01) 660 6377 Gerry Doherty Tel: (01) 834 4255 Mary Keane Tel: (01) 672 4800 n For information on extending your stay please contact the conference travel agent: Alan Benson/Angela O'Brien, Sadlier Travel, 8-9 Westmoreland Street, Dublin 2. Tel: (01) 670 4880 Fax: (01) 670 4883 Email: [email protected]

CANCELLATIONS n Delegates are advised that cancellations made after 18th February 2002 will be subject to a 100% cancellation charge (full invoiced amount). n Travel insurance will be automatically invoiced at approximately £20.47/ 26.00 (actual cost to be confirmed) per person unless delegates indicate on the reservations form that they have their own insurance and provide the name of the company with whom they are insured. n No contract shall arise until a full deposit has been received and a Booking Form (which will be sent with written confirmation of acceptance of the reservation) has been signed and returned. All delegates will be accommodated in the Sorrento Palace ****. The hotel offers a choice of restaurants, bars and tea lounges, room service, TV, air-conditioning, outdoor swimming pool, tennis courts, boutiques and hair and beauty salon.

SOCIAL PROGRAMME n The conference will open on Thursday evening with a Welcome Reception for all participants. n On Friday an optional all-day tour is available to Positano via hydro-foil boat tour along the Amalfi Coast past Capri and dock in Positano for a 31/2 hour stopover for lunch (not included) and time at leisure. n On Saturday afternoon a half-day tour to Pompeii (tour price includes entrance to Roman ruins) is also available. n The Conference Banquet will be held on Saturday night. Dress – smart informal.

PROGRAMME

THURSDAY, 04 APRIL 2002

Afternoon Arrival at Naples Airport. Transfer to hotel for check-in and conference registration

Evening Welcome Reception for all participants - sponsored by Osborne Recruitment Venue: Sorrento Palace

FRIDAY, 05 APRIL 2002

All day Day tour to Positano departing at 10.00 am Hydro-foil boat trip along the Amalfi coastline. 31/2 hour stop-over in Positano for shopping and lunch (not included). A list of recommended restaurants will be supplied.

Evening At leisure

SATURDAY, 06 APRIL 2002

Morning Conference Business Session – Professional Indemnity: When Saying Sorry Isn’t Enough - sponsored by Jardine Lloyd Thompson Ireland Limited and Solicitors’ Mutual Defence Fund Limited Venue: Conference Centre, Sorrento Palace

Afternoon Half-day tour to Pompeii (2.00 pm – 5.30 pm)

Evening Reception – sponsored by Bank of Ireland Asset Management Conference Banquet and Dancing – sponsored by Bank of Ireland Venue: Sorrento Palace (Dress: smart informal)

SUNDAY, 07 APRIL 2002

Morning Departure Books Book reviews Liber memorialis: Professor James C Brady Oonagh Breen, James Casey and Anthony Kerr (editors). Round Hall Sweet & Maxwell (2001), 43 Fitzwilliam Place, Dublin 2. ISBN: 1-85800-215-X. Price: £98.

rofessor James C Brady was luminaries, such as Chief Justice practitioner and academic alike, Brothers schooling and then Pabove all a gentleman and a Ronan Keane and former who may browse the book Queen’s. Sean, with utmost scholar – an attribution at times Circuit Court judge John confident in the knowledge that realism, referred to the Jim so casually made when someone has Buckley (both of whom would any essay selected may be read many knew and admired in the passed on, but not so in this have known Jim professionally and appreciated for its own final phase of his life in this way: instance. The deep well of during their respective periods intellectual worth in less than an ‘Jim suffered from multiple affection for Jim that was as members of the Law Reform hour. However, common to sclerosis for over 20 years and ... manifested at his obsequies at Commission), Professor John such compilations, some essays he fought it in every way for all University Church, Dublin, in Wylie (of property and have titles clearly designed to that time. He worked right up June 1998 is now reflected in a conveyancing textbooks fame), attract the casual reader, such as to the end at the very limit of more concrete way. This book, Professor Desmond Greer of Grating expectations? The his physical strength. Jim never published in his memory, Queen’s University, Belfast (one protection of legitimate expectations succumbed to self-pity, Jim contains some 20 essays and is of Jim’s third-level alma maters) in European Community law and Brady was a valiant man’. edited by three of his former and Dr Albert Power (the in autochthonous Irish law (Gavin Sean concludes by quoting colleagues from the UCD law director of education and Barrett), “A false, mawkish and from Emerson: ‘a friend may faculty. training at the Institute of mongrel humanity”? The early well be recognised as the The essays address a wide Chartered Accountants in history of employers’ liability in masterpiece of nature’. Many, range of legal topics, most of Ireland and formerly holding a Ireland (DS Greer), or Prayers like Sean, will have lost a which are in the similar position in the Law unanswered: how contract law masterpiece with Jim’s passing, equity/property/succession areas Society). views religion (Paul A but at least now there is the with which Jim himself was It would be inappropriate for McDermott), to mention a few. consolation of having this particularly associated. The a reviewer of such a volume to This Liber memorialis begins memorial volume of essays – essays are all of a high quality, as mention some essays as being in the most appropriate way each of which Jim would have would be expected from the better than others. This book is with the text of the address been delighted to grade A+. G pantheon of essayists who both for those who were delivered at Jim’s funeral mass contributed. The contributors privileged to know Jim – as a by his lifelong friend, Sean Michael O’Mahony is a partner in are mainly members of the UCD perpetuation of his memory – as Ballance, who accompanied Jim the Dublin law firm McCann law faculty but include other well as for every lawyer, legal through his Newry Christian Fitzgerald. Findlaters: the story of a Dublin merchant family 1774-2001 Alex Findlater. A&A Farmer, Beech House, 78 Ranelagh Village, Dublin 6. ISBN: 1-899047-69-7. Price: £35 hardback. his book is a portrayal of generation of Findlaters, differences in Ireland over the that this sensitivity caused the Tmembers of the Findlater modestly states that the three centuries of the family vast majority of Protestants to family, Dublin merchants, at Findlaters were neither history and notes there was a lot keep their heads well below the work and at play, in politics, ascendancy nor peasantry, but of insecurity as the Protestants parapet and refrain from stating religion and business over the were part of the new merchant moved from being part of a any views on church and state, last 175 years. Sir William and professional class of the time, British Isles religious majority even in the privacy of the family. (Billy) Findlater, solicitor, twice first Presbyterian and then to an island minority in Ireland. The author states that the family president of the Law Society, Church of Ireland. An ancestor of This is illustrated by the story kept ‘mum’ about the great brewery proprietor, member of the author, also called Alexander, of the delegation dispatched by power of the Catholic Church in parliament for Monaghan and was in the 1860s the benefactor the General Synod of the the middle of the 20th century the man who endowed the of the Abbey Presbyterian Church of Ireland on 12 May and did not have any strong coveted Findlater scholarship for Church, Parnell Square, known 1922 to enquire of Michael political allegiances. solicitors, is among the as Findlater’s Church. Collins ‘if they were permitted The portrayal of Billy, later Findlaters portrayed in this The book chronicles many to live in Ireland or if it was Sir William, Findlater (born in fascinating book. social issues. The author is desired that they should leave 1824), and a member of the The author, the fifth Irish conscious of past religious the country’. The author states Findlater family who is well-

35 Law Society Gazette December 2001 Contract Law Part of the Butterworths Irish Law Library

By Paul Anthony McDermott Contract Law will appeal to both practitioners and students alike. For students, it sets out the law clearly and explains it in straightforward language. It will appeal to practitioners because it considers every major Irish contract law case and explores in detail practical matters such as construction of contracts, breach of contract and contractual remedies. A comprehensive text on Contract Law ■ Completely up-to-date: Covers recent legislative develop- ments such as the Electronic Commerce Act 2000 and the Distance Selling Regulations 2001 ■ Comprehensive (over 1,000 pages) and indepth treatment of the subject ■ Written in a clear, straightforward style

The Author Paul Anthony McDermott is a well established author having already written two books for Butterworths Res Judicata and Double Jeopardy and Criminal Law (co-author), both of which have been very well received. He is a practicing barrister and lectures

in UCD on this topic and in the

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We like to keep our customers informed of other relevant books, journals and information services produced by Butterworths Tolley or by companies approved by Butterworths Tolley. If you do not wish to receive such information, please tick the box. JB/JF/10-01 Books known to lawyers, is an interest- Billy was elected president of elected to the House of him a knighthood during his ing aspect of the book. Billy was the Law Society in 1877/8. In Commons in 1880 and actively year as president of the Law admitted as a solicitor in 1846, the same year, he endowed the participated in the debates on Society. Sir William was starting his professional career at society with the Findlater Gladstone’s Land Act of 1881 prominently involved in the the beginning of the famine of Scholarship at a cost of and other legislation. Although a Dublin Artisan Dwelling 1845-9. He subsequently approximately £62,000 in staunch liberal, Billy supported Company, was deputy practised on his own account as present day terms (then £1,000) Gladstone, but like most lieutenant of County Dublin William Findlater & Co, and in 1900 added to its value Presbyterians he was not and served for 44 years as a ultimately taking his nephews, by transferring £865, estimated prepared to go down the home member of the Council of the Edward Neptune Blood and at today’s value as £52,000, of rule path. He was out of Law Society. He died in April Adam Lloyd Blood into partner- railway debenture stock to be parliament by the time 1906 at the age of 82. ship. The practice continued held on the same trust as his Gladstone brought in his first This book is easy to read and until 1956, finally closing on the original gifts. The scholarship is Home Rule Bill. In 1896, he was gorgeously produced. Alex death of Ken Lloyd Blood, son currently awarded for the best elected president of the Law Findlater has written a of Adam Lloyd Blood. overall performance in the Society for the second time, handsome and accessible book The author states that Billy professional and advanced apparently despite a resolution which will be enjoyed by started his public career – as courses and is regarded in many passed some 20 years before that anyone who loves Dublin and is many do – in the organisation of senses as the ‘blue ribbon’ of the no-one would be eligible for re- interested in business. G their profession, by becoming a society’s educational awards. election to that office. In 1896, member of the Council of the Billy Findlater became Billy Findlater received a letter Dr Eamonn Hall is company solic- Law Society in the late 1850s. interested in politics and was from the lord lieutenant offering itor of Eircom plc. Contract law in an e-commerce age Simon P Haigh. Round Hall Sweet & Maxwell (2001), 43 Fitzwilliam Place, Dublin 2. ISBN: 1-85800-224-9. Price: £38.

hat first attracted me to and clear way. In his preface, generally with e-commerce invaluable introduction to a Wthis paperback volume the author states that ‘this text regulations. developing area of law. was its title. As one who is still is not meant to be, or to be The author qualified as a Most of us have begun to uninformed about the impact treated as, a direct alternative solicitor in England and Wales conduct business on the of e-commerce on such areas as to any of the weightier tomes in 1995, having worked for a Internet, even if it is only to electronic signatures, distance on the subject. Rather it is large London firm as a purchase a book or a plane selling, offer and acceptance on perhaps to be viewed as an commercial lawyer since 1993. ticket. However, only when we the web, the Unfair contract abridged introduction to the He enrolled as an Irish solicitor read this book do we realise terms directive and so on, this subject, which is handled in a in 1999 and now practises with what an uncertain world we book is obviously a valuable far more detailed way in those the Dublin firm McCann have entered. Judicial educational resource at an works. I have set out the FitzGerald. The experience of interpretation of e-commerce introductory level. guiding principles only’. working in both jurisdictions legislation is in its infancy and It is a short book (342 pages Each chapter contains all the puts him in an excellent will no doubt contribute to a of text) compared to existing basic principles, and refers to position to write a work such as greater understanding of the major works on the law of the leading relevant cases. At this. legislation in due course. In the contract, and that itself has a the end of each section, where His treatment of the subject meantime, this work is an certain appeal, particularly for appropriate, the author matter displays an expertise and excellent and useful source of students and others who do not includes a section dealing with knowledge which enables him knowledge to those as yet necessarily want an in-depth the effect of various pieces of e- to write with authority. Any unburdened by any legal and comprehensive treatment commerce legislation, such as reader of this book will find it knowledge in the area of e- of this area. Having said that, EU directives, the statutory an excellent guide through the commerce. I wholeheartedly however, the book is replete instruments implementing law of contract, and both recommend it. G with case references and deals them, the Electronic Commerce lawyer and non-lawyer will find extensively with all aspects of Act, 2000, and so on. There is the additional material on the Michael Peart is a partner in the contract law in a very readable also an entire section dealing area of e-commerce an Dublin law firm Pearts Solicitors. Company law Catherine McConville. Round Hall Sweet & Maxwell (2001), 43 Fitzwilliam Place, Dublin 2. ISBN: 1-85800-172-2. £11.95 paperback.

his is a basic book on the less than 15 pages. And that’s it. publisher’s Nutshells series, it or we should be, students. In Tlaw for companies. It has a So it is not an attempt to aims to provide ‘a concise and our careers, we dare not stop mere 148 pages of basic push Keane, Courtney or Forde straightforward synopsis’ of learning. We must remain open information followed by a short off the bookshelves. But, taken company law. This it does well. to updating and revision. For six-page index. The list of cases on its stated terms, it is a It is aimed primarily at the many of us who practice cited and of legislation runs to worthy publication. Part of the law student. Practitioners are, company law, not solely, but as

37 Law Society Gazette December 2001 Books

part of general practice, this the company; to exercise due creditors. The statutory duty mention of the most significant book can only be useful. care, skill and diligence (the test since 1990 to have regard to the company legislation since 1990, If you want to check on what is partly objective, mainly interests of the employees is also the Company Law Enforcement a ‘Bell Houses clause’ is, or subjective); and to account to noted. Act, a hugely significant piece of clarify the distinction between a the company for all personal Finally, the 1998 Crindle legislation, enacted earlier this company’s objects and its benefits received as a result of Investments v Wymes case, which year. powers, simple explanations are being a director. went to the Supreme Court, is Yet, on its stated terms, this is in chapter four. Kept awake at Importantly, the chapter on referred to, suggesting a duty a good book. It is a useful primer night by the rule in Foss v directors’ duties does refer to also to certain shareholders in and can only help students of all Harbottle? Go to chapter 10. It’s case law and statutory circumstances of mutual ages towards an understanding of brief, but it’s there. developments, whereby the confidence and trust. The old the sometimes byzantine Chapter 12 on the duties of directors also owe a duty to simple formula that the directors complexities of company law. G the directors is useful. It creditors of the company in only owe a duty to the company reminds us of the basic cases of doubtful solvency and has, in the best legal traditions, Pat Igoe is principal of the Dublin common-law duties of directors insolvency, when the directors’ its own train of exceptions. law firm Patrick Igoe and to act bona fide for the benefit of minds should turn towards the Surprisingly, there is no Company. Murdoch’s Irish legal companion Henry Murdoch. Available from Lendac Data Systems (tel: 01 677 6133). Price: £100 for a personal edition, £210 for a small firm license. liked the Irish legal companion. The hyperlinks throughout Companion would be of particular II found it easy to navigate the text add significant value to use to busy practitioners, allow- and (although I only viewed the product as compared to a ing them to orient themselves some of the entries) the printed book. Another nice quickly in any area of Irish law. G content appeared to be up-to- feature is the inclusion of the full date and useful. The Folio- text of Irish acts and statutory John Mee was dean of the faculty of Views format, which will be instruments which are mentioned law at UCC until October 2000. He familiar to users of the AG’s in the text (and which are is a trustee director of the British and office’s Irish statute book CD- effective searching of the therefore likely to be the most Irish Legal Information Institute ROM, allows quick and dictionary. important). I thought that the (BAILII).

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PROFILE: FIELD OF PRACTICES: Specialists in panish Lawyers Firm focussed eneral Practice, Administra- Court Reporting Son serving the need of the for- Gtive Law, Civil and Commercial eign investors, whether in compa- Law, Company Law, Banking and Medical Cases / Arbitrations ny or property transactions and all Foreign Investments in Spain, Conferences / Board Meetings attendant legalities such as ques- Arbitration, Taxation, Family Law, tions of immigration-naturalisa- International Law, Immigration tion, inheritance, taxation, and Naturalisation, Litigation in all Contact: accounting and bookkeeping, Courts. Hillcrest House, planning, land use and litigation in Dargle Valley, Bray, Co. Wicklow. all Courts. Telephone/Fax: (01) 286 2184 Avda. Ricardo Soriano, 29, or Edificio Azahara Oficinas, 4 Planta, 29600 Marbella, Malaga, Spain 4b Arran Square, Dublin 7 Tel: 00-34-952823085 Fax: 00-34-952824246 Telephone: (01) 873 2378 e-mail: [email protected]

38 Law Society Gazette December 2001 Briefing Report of Law Society Council meeting held on 6 September 2001

Motion: Solicitors’ accounts Patrick O’Connor expressed that the Council would approve the profession from the begin- regulations reservations about adopting the them. ning. ‘That this Council approves the regulations without circulating On a show of hands, the In relation to enforcement, it Solicitors’ accounts regulations them again to the profession. Council overwhelmingly confirmed that a solicitor would 2001’. Mr Doherty said that the approved the draft regulations, not be referred to the Proposed: Gerard Doherty society had gone to a great deal as amended, with two votes Disciplinary Tribunal for fail- Seconded: Owen Binchy of trouble to acquaint every bar being recorded in opposition to ure to attend the required num- association with the contents of their adoption. ber of hours. However, a solici- Gerard Doherty reported that the regulations and had also tor would be referred to the tri- correspondence had been gone a great deal of the way to Continuing professional bunal for falsification of his received from two bar associa- accommodate their concerns. development (CPD) CPD records. tions, two solicitors, the As president of the DSBA, Michael Peart outlined the James MacGuill said that he Institute of Chartered David Martin confirmed that contents of a discussion docu- did not believe the Irish legal Accountants and the Chairman the association believed that ment on CPD. He said that, profession would favour the of the Conveyancing the regulations should be because of increased demands introduction of compulsory Committee in relation to the adopted. The regulations had and pressures, the number of CPD. He believed the system amended draft regulations cir- been circulated to all members, practitioners attending CLE would be open to abuse and culated in July. As a result, a meetings had been held and courses was not as high as it would be pointless unless there small number of further amend- correspondence was entered might be and the CPD propos- was a system of testing and ments were being proposed. into with the society, a special al represented a mechanism to sanctions for non-compliance. These provided: general meeting had been held encourage solicitors to attend. Kevin O’Higgins said he • For an exemption from the and only one voice had been The proposed scheme would would favour some form of requirement to lodge to raised in opposition to the reg- require 12 hours of CPD over a incentives for attendance, per- client account for ulations. two-year period, four of which haps by means of reduced pro- cheques/drafts made out to a Hugh O’Neill said that the could be by means of private fessional indemnity insurance purchaser’s solicitor or society had consulted with its study. premiums. Michael Irvine said endorsed by the client, where members for almost six months The president and the secre- it was the very basis of the the cheque/draft was required and had taken on board all rea- tary of the Law Society of scheme that there was a desire to be paid without delay to a sonable suggestions. At some Scotland outlined the Scottish within the profession for life- vendor in respect of the bal- stage, the consultation had to experience of the introduction long learning and he felt a ance of the purchase price of stop and the society had to of CPD and noted that the majority of the profession the property. The fact that exercise its regulatory function Scottish scheme required 20 would support the proposal. this had occurred must be in order to protect clients’ hours of CPD a year, five of Patrick Casey supported the reflected on the client’s file monies and the compensation which must be in management. proposal, provided there were • That a solicitor was required fund. Simon Murphy con- It operated as an honour-based adequate resources and the to transfer interest from firmed that the Southern Law system, with practitioners com- decentralisation of information, client to office account either Association had unanimously pleting a CDP card. They con- including links between the bar within three months of the approved the regulations at its firmed that a direct benefit associations and the Law date on which it had been most recent meeting. from the introduction of CPD Society library. Orla Coyne said credited by the bank or John Dillon-Leetch said that had been a rejuvenation of the DSBA saw CPD as the way before the end of the he did not believe that further many of the local bar associa- forward, provided there were accounting period, whichever consultation would yield any tions. incentives and clarification in was the later additional meaningful points. While the principal catalyst relation to the nature of any • That, when calculating the Philip Joyce said that the pur- for change in Scotland had sanctions that would apply. total of credit balances due to pose of the regulations was to been the master policy for pro- John Harte said that the ben- all clients, a solicitor could identify, maintain and protect fessional indemnity insurance, efits of CPD should first be not offset debit balances aris- clients’ monies in the hands of there was now a culture of on- promoted to the profession, ing in relation to one client solicitors and they should be going training within the pro- together with a commitment against credit balances relat- approved. James McCourt said fession and an acceptance of and assurances in relation to the ing to another client that any solicitor who wished the benefits of the scheme. At provision of support and ade- • For an extension in the time had been afforded an opportu- the outset, the society had quate resources by the society. period for preparing the six- nity to comment on the regula- introduced CPD only for its Stuart Gilhooly expressed sur- monthly and annual reconcil- tions. The DSBA sub-commit- younger members. However, it prise that there should be any iation statements from one tee was satisfied with the final would strongly recommend its opposition to the proposal. He month to two months. draft regulations and he urged introduction for all members of said that, even if there were a

39 Law Society Gazette December 2001 Briefing small number who didn’t partic- of 12 hours in each two-year report of the task force, which society should concentrate on: ipate wholeheartedly, the vast period, while incentivising any had been chaired by Ward • Publishing a practice man- majority would benefit from the extra hours undertaken. McEllin, and agreed that prac- agement newsletter or sup- scheme. He believed that com- Moya Quinlan queried tice management advice and plement to the Gazette on a pliance should be monitored by whether the question of legiti- information should be provid- biannual basis way of random audit. mate expectation had been con- ed by the Law Society to its • Conducting an annual Edward Hughes noted that sidered, particularly in relation members, that this advice benchmarking survey among associations other than local bar to older members of the profes- should be delivered at a macro the profession associations would also like to be sion. The Council agreed, by 32 level and should be targeted at • Publishing a suite of manage- involved in the provision of votes to 1, that the task force the small to medium-sized ment publications such as the CPD. John Costello queried should proceed to develop its practice and that the society Marketing handbook whether a requirement of 12 proposal with the Council’s sup- should not engage in the provi- • Developing a practice man- hours was sufficient. He believed port in principle for the concept sion of consultancy-type advice agement section on the soci- that topics such as ethics, client of CPD. and should not attempt to ety’s website care and practice management deliver assistance on a one-to- • Expanding the CLE pro- should be covered. Anne Colley Report of the Practice one basis. gramme to include seminars suggested that the society might Management Task Force Given the limited resources on practice management consider sanctioning a minimum The Council approved the available, it was agreed that the topics. Report of Law Society Council meeting held on 5 October 2001 Sympathy mously approved the Solicitors establishment of a charity inde- from the society’s members to The Council observed a Acts, 1954 to 1994 (Euro pendent of the society to pro- date in the current year. minute’s silence in memory of Changeover) Regulations 2001. mote pro bono work within the past president, Gerald Hickey, legal profession. Mr Costello EU directive on money who had died recently. Motion: Pro bono report recorded his appreciation to the laundering On the proposal of John society for its financial contri- John Fish reported that, Motion: Euro changeover Costello, seconded by Michael bution to the charity. The pres- because of the recent tragic regulations Peart, the Council noted the ident noted a letter received events in America, there was On the proposal of Gerard recommendations contained in from FLAC recording its increasing pressure within the Doherty, seconded by Simon the report of the Pro Bono Task appreciation for the £52,240 EU to enact measures of the Murphy, the Council unani- Force, which envisaged the contribution to FLAC received nature contained in the direc-

Diploma courses at the Law Society

Following the successful completion of the first Diploma in commercial law, the Law Society is pleased to announce that Make an early another Diploma in commercial law New Year’s will commence on 9 February 2002 and run resolution … Sign until 7 December 2002. up now for one of The long-running Diploma in applied European the Law Society’s Union law will be offered again from 27 April 2002 until 2 November 2002. diploma courses! Further details and application forms are available now from Michelle Nolan, Information & Administration Executive, at [email protected].

40 Law Society Gazette December 2001 Briefing tive. The fate of the directive established, comprising repre- naire had been received by the the District Court bench had would probably be determined sentatives from both the Department of Justice, Equality indicated that they would during the following week and, Society and the Revenue, to and Law Reform, who were require an additional five with the current level of politi- seek to agree such a memoran- dealing with TP Kennedy on judges at a minimum, while the cal will in support of such meas- dum of understanding before the matter. Circuit Court bench had indi- ures, it was likely to be passed. the resumption of audits. The cated a requirement for an society’s representatives on the Increased jurisdictions of additional ten judges. It was Revenue audits: access to working group were John the courts clear that the judiciary could client account information O’Connor, Brian Bohan and Patrick Casey said that the not assume the additional The director general reported Miriam Delaney. However, no impact of the proposed workload without increased on a meeting that had been held final agreement would be increased jurisdictions was a resources. There were similar with the Revenue Commis- entered into without the matter of concern to the mem- difficulties in relation to the sioners on the previous Friday approval of the Council. bers of the Southern Law county registrars and other to discuss the legal position per- Association and there was a court staff. taining to the confidentiality of CCBE view that a more pro-active Gerard Griffin said that, as client account information since Geraldine Clarke reported that approach should be taken on the new jurisdictions were due the judgment in the Miley case. the CCBE had appointed the issue of increased fees and to come into operation on 1 As it was the stated intention of Jonathan Goldsmith, current increased resources. David January 2002, he believed that the Revenue to resume audits of head of the International Martin confirmed that a paper the society should increase its solicitors’ practices in the near Department of the Law Society had been prepared for submis- calls for urgent revision of the future, the meeting had of England and Wales, as its sion to two separate costs draw- District Court fees and a posi- focussed on the desirability of new secretary general. ers seeking advice on the issue tive commitment to the assign- an agreed memorandum of She also reported that the of costs. In relation to back-up ment of sufficient resources. understanding between the EU Commission was conduct- services and additional The director general confirmed society and the Revenue in rela- ing a review of all directives resources, the Litigation that the matter had been raised tion to the confidentiality and relating to the recognition of Committee had liaised with the with the minister, but agreed disclosure issues arising in the diplomas and the right to prac- Courts Service in the prepara- that the society would reinforce course of an audit. tice in other member states. A tion of their submission. its efforts to have the matter A working group had been working paper and question- Patrick O’Connor said that dealt with urgently. G

LAW AGENCY SERVICES ENGLAND & WALES WHERE THERE’S A WILL THIS IS THE WAY… SOLICITORS Established 1825

When a client makes a will in favour of the Society, it would be appreciated if the bequest were stated in the following words: “I give, devise and bequeath the sum of X pounds to the Irish •Fearon & Co specialise in acting for Irish residents in Cancer Society Limited to be applied by it for any of its the fields of probate, property and litigation charitable objects, as it, at its absolute discretion, may decide.” • Each solicitor is available by direct line, fax or e-mail. Conferences can be easily arranged All monies received by the Society are expended within the •Fearon & Co is committed to the use of information Republic of Ireland. technology to help improve both the quality and speed of service for the benefits of all clients both at “Conquer Cancer Campaign” is a Registered Business Name home and abroad and is used by the Society for some fund-raising purposes. • The firm’s offices are within half an hour of London The “Cancer Research Waterloo station and within a short travel from both Advancement Board” Gatwick and Heathrow airports, with easy access from the London orbital M25 motorway allocates all Research • No win, no fee arrangements are available in Grants on behalf of the appropriate cases Society. PHONE NOW FOR A BROCHURE Westminster House 12 The Broadway, Woking, Surrey GU21 5AU England Fax: +44 (0)1483 725807 Email: [email protected] www.fearonlaw.com 5 Northumberland Road, Dublin 4. Tel: (01) 668 1855 LITIGATION PROPERTY PROBATE 15 Bridge Street, Cork. Tel: (021) 4509 918 Martin Williams John Phillips Francesca Nash Tel: +44 (0)1483 776539 Tel: +44 (0)1483 747250 Tel: +44 (0)1483 765634

41 Law Society Gazette December 2001 Briefing Committee report

CONVEYANCING profession, and practitioners can of sale and the requisitions. If the that the revised documents may expect to receive a mail-shot society’s precedent transfer for be purchased from the society As announced in last month’s before Christmas containing a building estates is not available and an order form has been Gazette, the revised conveyanc- sample of each of the society’s before Christmas, it will be included for this purpose below. ing documentation is now revised documents, being the distributed separately in the New available for distribution to the building agreement, conditions Year. Practitioners should note If sending payment after 1 January 2002, please ensure it ORDER FORM is for the euro amount. The Revised Law Society conveyancing documents: new pre-contract checklists (jointly with DSBA) Conveyancing Committee I enclose my cheque for recommends that practitioners Packet Price P&P No ofAmount use the revised documents from £ / € size (incl packets due VAT) £/€ 2 January 2002 onward. It is also Please charge my Requisitions on title 50 £48 £5.50 recommended that practitioners Access Visa (2001 edition) €61 €7 take time to read the explanatory Mastercard Eurocard Conditions of sale 50 £24 £5.50 memoranda accompanying the Credit card number (2001 edition) €31 €7 revised documents so as to fully Building agreement 50 £18 £3 familiarise themselves with the Expiry date: (2001 edition) €23 €3.60 changes made and with the new Signature: Pre-contract 25 £25 £5.50 provisions introduced. check lists Purchase €32 €7 The society, in conjunction Month/year 25 Sale with the Dublin Solicitors’ Bar Association, has published pre- Name: Firm: contract checklists for vendors Address: and purchasers. These can be Telephone: ordered through the society and Please return to Maureen O’Grady, Law Society of Ireland, Blackhall Place, Dublin 7. have been included on the order form. G

OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS CHIEF PROSECUTION SOLICITOR

ractitioners should note that from Monday the 3rd of December 2001 the Pnewly appointed Chief Prosecution Solicitor will act as Solicitor to the Director of Public Prosecutions. Ms. Claire Loftus will take over all functions currently carried out by the Chief State Solicitor on behalf of the Director.

Pending re-location to new premises in January 2002 the Office of the Chief Prosecution Solicitor will be located in: Osmond House, Little Ship Street, Dublin 8. Telephone: 4176100 Fax: 4757160

The relevant rules of court have been amended to reflect this development . All ref- erences in the rules to the Chief State Solicitor in relation to criminal matters involv- ing the Director should be read as referring to the Chief Prosecution Solicitor.

42 Law Society Gazette December 2001 Briefing

LEGISLATION UPDATE: 16 OCTOBER – 19 NOVEMBER 2001 ACT PASSED 2001 for articles 3 and 4; Finance Act, 2001 (amendment to basis, b) a record of leave granted Electoral (Amendment) Act, 1/1/2002 for articles 5, 6 and 7 section 310 of the Taxes to employees in each week by way 2001 of the order Consolidation Act, 1997 so as to of annual leave or in respect of a Number: 38/2001 provide capital allowances in public holiday and payment made Contents note: Amends and Companies (Forms) Order 2001 respect of capital contributions in respect of that leave, c) a week- extends the Electoral Acts, 1992 Number: SI 466/2001 made by non-domestic water users ly record of the starting and finish- to 1999, the European Parliament Contents note: Amends the to local authorities for the purpose ing times of employees, and pro- Elections Acts, 1992 to 1999, the Companies (Forms) Order 1964 (SI of funding new water supply infra- vides for related matters Presidential Elections Acts, 1992 45/1964) by replacing form 47 structure) Commencement date: 1/11/ to 1997, the Local Elections Acts, with form C1 (particulars of a 2001 1974 to 1999, the Referendum charge created by a company incor- Foot and Mouth (Restriction on Acts, 1992 to 1998, the Seanad porated in the state/certificate Movement) (No 6) (Revocation) Safety, Health and Welfare at Electoral (University Members) that the charge was presented for Order 2001 Work (Construction) Regulations Acts, 1937 to 1973, the Seanad registration in the country where Number: SI 470/2001 2001 Electoral (Panel Members) Acts, the property is located) Commencement date: 19/10/ Number: SI 481/2001 1947 to 1972, and provides for Commencement date: 23/10/ 2001 Contents note: Amend the Safety, related matters 2001 Health and Welfare at Work Date enacted: 24/10/2001 Freedom of Information Act, (Construction) Regulations, 1995 Commencement date: Commence- Diseases of Animals Act, 1966 1997 (Prescribed Bodies) (No 4) (SI 138/1995) to give further ment order/s to be made (per (Foot and Mouth Disease) Regulations 2001 effect to council directive s1(9) of the act): 1/11/2001 for (Restriction on Imports from the Number: SI 475/2001 92/57/EEC on the minimum safe- sections 1 to 4, 9, 10, 14, 15, 24, United Kingdom) (No 3) Order Contents note: Prescribe each of ty and health requirements at tem- 26, 28 to 48, 50, 51, 52, 54 2001 the bodies listed in the schedule to porary or mobile construction sites (other than paragraph (k)) and 55; Number: SI 490/2001 the regulations as a public body for Commencement date: 1/1/2002, 1/1/2002 for sections 11, 16, 18 Commencement date: 22/10/ the purposes of the Freedom of with certain exceptions (see regu- to 21, 23, 49, 56 to 58; 2001 Information Act, 1997 by their lation 1 of the regulations) 15/2/2002 for sections 5 to 8, inclusion in paragraph 1(5) of the 12, 13, 25 and 27 (per SI District Court (Fees) (No 2) Order first schedule to the act. Bodies Solicitors Acts, 1954 to 1994 497/2001) 2001 listed include universities, insti- (Euro Changeover) Regulations Number: SI 487/2001 tutes of technology, colleges of 2001 SELECTED STATUTORY Contents note: Sets out in euro higher education, regional authori- Number: SI 504/2001 INSTRUMENTS amounts the fees to be charged in ties and regional assemblies Contents note: Provide for the Circuit Court (Fees) (No 2) Order District Court offices with effect Commencement date: 1/10/ substitution of payments in euro 2001 from 1/1/2002; provides for the 2001 amounts for amounts expressed in Number: SI 486/2001 exemption from fees of certain pro- Irish pounds in regulations made Contents note: Sets out in euro ceedings, including family law pro- Local Government Act, 2001 under the Solicitors Acts, 1954 to amounts the fees to be charged in ceedings. Revokes District Court (Commencement) Order 2001 1994. Revoke Solicitors Acts, Circuit Court offices with effect (Fees) Order 2001 (SI 253/2001) Number: SI 458/2001 1954 to 1994 (Euro Changeover) from 1/1/2002; provides for the Contents note: Appoints Regulations 2001 (SI 460/2001) exemption from fees of certain pro- European Communities 9/10/2001 as the commence- Commencement date: 15/11/ ceedings, including family law pro- (Judgments in Matrimonial ment date for sections 1(1), 1(6), 2001 ceedings. Revokes Circuit Court Matters and Matters of Parental 1(7), 2 to 4, 6 to 8 and 247; (Fees) Order 2001 (SI 252/2001) Responsibility) Regulations 2001 9/10/2001 for section 5(1) and Supreme Court and High Court Number: SI 472/2001 part 1 of schedule 3 to the extent (Fees) (No. 2) Order 2001 Companies (Fees) Order 2001 Contents note: Make provision in specified in the schedule to this Number: SI 488/2001 Number: SI 477/2001 relation to the effect on domestic order (repeals of certain enact- Contents note: Sets out in euro Contents note: Provides for: 1) a legislation of council regulation ments); 1/1/2002 for part 23 amounts the fees to be charged, progressively increasing late filing (EC) no 1347/2000 on jurisdiction (sections 238-242) (transfer of with effect from 1/1/2002, in the fee where an annual return is not and the recognition and enforce- shareholding in Temple Bar Office of the Registrar of the received by the registrar on time; ment of judgments in matrimonial Properties Limited to Dublin Supreme Court, the Central Office, 2) no charge in respect of the reg- matters and in matters of parental Corporation) the Examiner’s Office, the Office of istration of certain documents with responsibility for children of both the Official Assignee in the Companies Registration Office spouses (Brussels II regulation) Organisation of Working Time Bankruptcy, the Taxing Master’s where, in addition to submitting a Commencement date: 23/10/ (Records) (Prescribed Form and Office, the Accountant’s Office, the hard copy, the material is also sup- 2001 Exemptions) Regulations 2001 Office of Wards of Court, the plied electronically to the CRO; and Number: SI 473/2001 Probate Office and District Probate 3) sets out in euro amounts the Finance Act, 2001 Contents note: Require employers, Registries; provides for the exemp- fees payable to the registrar of (Commencement of section 50) in accordance with section 25(1) of tion from fees of certain proceed- companies with effect from Order 2001 the Organisation of Working Time ings, including family law proceed- 1/1/2002. Amends the Number: SI 471/2001 Act, 1997, to keep: a) a record of ings. G Companies (Fees) Order 1997 (SI Contents note: Appoints the number of hours worked by 358/1997) as amended 22/10/2001 as the commence- employees (excluding meals and Prepared by the Law Society Commencement date: 26/10/ ment date for section 50 of the rest breaks) on a daily and weekly Library

43 Law Society Gazette December 2001 Briefing Practice notes

CORRECTION There were a number of errors in the stamp duties table published last month as part of the practice note entitled Conveyancing in euro, and that section of the note should not be used by practitioners. A revised stamp duties table is published below, with apologies for any inconvenience caused

Note: STAMP DUTIES •Transaction certificate amounts are listed in the RESIDENTIAL PROPERTY: NON-RESIDENTIAL PROPERTY: shaded columns. Market value First-time Other Investors Investors Market value buyers owner new 2nd hand Up to €6,350 Exempt • Amounts of stamp duty are occupiers houses/ houses/ €6,351 €12,700 1% calculated rounded down to apartments* apartments €12,701 €19,050 2% the nearest euro. Up to €127,000 Exempt Exempt 3% 9% €19,051 €31,750 3% €127,001 €190,500 Exempt 3% 3% 9% €31,751 €63,500 4% Conveyancing Committee €190,501 €254,000 3% 4% 4% 9% €63,501 €76,200 5% €254,001 €317,500 3.75% 5% 5% 9% Over €76,200 6% €317,501 €381,000 4.5% 6% 6% 9% These rates are progressive, not €381,001 €635,000 7.5% 7.5% 7.5% 9% cumulative. Over €635,000 9% 9% 9% 9% These rates are progressive, not cumulative. * For instruments executed on/after 27/2/01

Voluntary transfers he inherent dangers and legal influence exists, the onus lies on itor who has previously acted relied on arrangements which Tcomplexities which arise when the donee to establish that the for the donor should consider will be affected by what is pro- a solicitor acts for both parties in gift resulted from the ‘free exer- advising the donee, in a situa- posed? Do the proposals con- a voluntary transfer were spelt cise of the donor’s will’: as the tion where the transfer will tradict any previously drawn out with great clarity by the presumption is a rebuttable one impose obligations on the wills or other documents? Supreme Court in its decision in and is a rule of evidence, the donee, to be independently 9) Is the solicitor aware from Carroll v Carroll, Supreme Court, donee must adduce the evidence advised dealings with other members 21 July 1999. Those complexities necessary to rebut it. While the 3) Full instructions must be taken of the family that this proposal create dangers not just for the courts have declined to limit the of all relevant family circum- will surprise other family mem- parties but for the practitioner categories of relationship in which stances and family relation- bers? who acts for both parties. The the presumption will arise, the ships 10) Even if independent advice is Law Society has not decided to more obvious ones are solicitor 4) Full details of the donor’s not required, care must be prohibit acting for both sides, but and client, doctor and patient, other assets must be obtained taken in explaining the conse- great care must be taken. There religious adviser and pupil, to decide whether the donor is quences of the proposed are certain cases where a solici- trustee and beneficiary, as well in a financial position to carry action to both donor and tor may not act for both donor and as intra-family relationships. into effect his/her desire donee. Professional skill and donee, and it is incumbent on the It goes without saying that 5) A decision on the donor’s men- judgement is required in advis- practitioner to appraise him/her- undue influence may actually tal capacity must be taken. ing both parties. This is not self of all the circumstances and exist in an individual case: care Should medical opinion be fulfilled by simply following then make the decision as to must be taken to ensure that this sought? instructions without consider- whether he/she can properly and does not arise. 6) Is the proposal a free exercise ing the appropriateness of professionally continue to act for To assist in reaching the nec- of the donor’s will? what is being undertaken both parties. essary conclusions on aspects 7) Does the donor’s physical sit- 11) A solicitor acting for both can- The Conveyancing Committee such as undue influence, the fol- uation allow the gift to be not be independent of the has prepared this practice note to lowing should be borne in mind: made? What are his/her donee assist those solicitors who may 1) Clients should be seen sepa- future requirements? What will 12) Careful notes of all atten- wish to act for donor and donee in rately his/her future accommodation dances on the parties must be a voluntary transfer and to assist 2) Should either the donor or be? Does the proposal put in kept. Full written advice to the them in reaching the decision as donee be independently jeopardy his/her financial inde- parties must be given on all to whether they can properly do advised? A solicitor who has pendence? Does he/she aspects of the transaction. so. previously acted for a member appreciate the situation? Any documents requiring exe- The presumption of undue of a family and who is asked to 8) Does the proposal imperil the cution must be given to the influence is the first hurdle that act for the first time for a financial independence of parties in advance for perusal must be overcome. The Supreme prospective donor would do other members of the family? and must be read and Court in its decision held that well to have the donor sepa- Have other members of the explained to them. where the presumption of undue rately advised. Equally, a solic- family been made promises or Conveyancing Committee

44 Law Society Gazette December 2001 Briefing

Euro changeover: PPS numbers Probate Office (formerly RSI numbers)

he Probate Officer has Office will have to show euro cur- n making an application for a cation. A form reg 1 must be Tadvised the Probate, rency only. However, an exception Igrant of probate or adminis- completed. Administration and Taxation will be made in the case of tration, there is an obligation to If the applicant is not Irish Committee of the following Revenue affidavits in Irish punts quote a PPS (personal public resident, then the PPS number arrangements regarding the euro which have been passed by the service) number for the will be given to the solicitor as changeover. To facilitate the Revenue Commissioners. deceased and each beneficiary. agent and the application (form changeover to euro display on Practitioners should note, howev- If either the deceased or any reg 1) should be sent via the grants of representation, all er, that the certificate for the High beneficiary does not have a solicitor to Client Identity Revenue certificates for the High Court on these affidavits will only PPS number, then before the Services, Department of Court lodged with papers on or be accepted in euro currency. Inland Revenue affidavit (form Social, Community and Family after 19 November 2001 must To avoid delays, practitioners CA24) is submitted to the Affairs, Gandon House, Amiens show euro or dual currencies. are requested to lodge any docu- Revenue, a PPS number must Street, Dublin 1 and a form of The Revenue Commissioners mentation which they may have be obtained. consent for the PPS number to have agreed to certify in dual cur- prepared in Irish punts as soon If the person for whom a be issued to a third party must rencies from 1 November 2001. as possible. number has to be obtained is be signed by the applicant. From 1 January 2002, all Probate, Administration and Irish resident, then the applica- Solicitors must not take on this papers lodged in the Probate Taxation Committee tions should be made personal- obligation in the case of Irish ly at one of the local offices of resident beneficiaries. the Department of Social, If either the deceased was or Community and Family Affairs. a beneficiary is in receipt of a Practising certificates Proof of identity (long form of state pension, then the pension birth certificate, passport or number is the appropriate num- practising certificate must from the commencement of the full driving licence or other valid ber to quote when making an be applied for before 1 practice year. Assistant solici- A photographic ID, other support- enquiry for a PPS number with February in each practice year tors cannot absolve themselves ing documentation showing Client Identity Services. in order to be dated 1 January from this responsibility by rely- address) will be required to be Probate, Administration and of that year and thereby operate ing on their employers to pro- produced at the time of appli- Taxation Committee as a qualification to practise cure their practising certifi- from the commencement of the cates. practice year. Practitioners should also It is misconduct for a solicitor note that practising for any peri- to practise without a practising od of time without a practising certificate. Any solicitor found certificate could jeopardise to be practising without a prac- their professional indemnity tising certificate will be referred insurance situation. Further- to the Disciplinary Tribunal. more, a break in continuity of Assistant solicitors should practising certificates may dis- note that it is the statutory obli- qualify a solicitor from applying gation of every solicitor to for judicial appointment. ensure that he or she has a PJ Connolly, Registrar of practising certificate in force Solicitors

Entitlement to interest on costs ractitioners should note that in respect of which he seeks Pin a recent case stated from interest. the Circuit Court, the Supreme The court held that costs con- Court considered the question stitute a liability of the unsuc- of whether interest is payable on cessful party from the moment HENRY A CROSBIE costs from the date of the judg- of the decree or judgment, that ment or order awarding them, or they are not payable until quan- BUSINESS CENTRE only from the date of taxation. tified, but that when quantified, While the plaintiff in the case the debt relates back to the date Tel: 01-8363994 argued that, from the moment of of the judgment, with interest Fax: 01-8363997 the judgment, the successful running from that earlier date. [email protected] party is entitled to interest, the Brendan Clarke and Fergus defendants argued that interest McCarthy v Commissioner of an should run only from the date or Garda Síochána, (Supreme Office Suites available dates upon which the successful Court, 31 July 2001, Fennelly J) party has discharged the costs Litigation Committee in Bow Street Friary

45 Law Society Gazette December 2001 Briefing DISCIPLINARY TRIBUNAL AN his is the first annual report nal will decide on the appropri- bunal’s rules. The majority of cant but may not act as an advo- Tof the tribunal under my ate sanction and can by order do complaints which come before cate. chairmanship and it is an oppor- one or more of the following: the tribunal are at the instance Ideally, complaints should tunity I welcome to review the • Advise and admonish or cen- of the Law Society of Ireland, never get to the stage where operation of the tribunal in the sure the respondent solicitor but it is open to members of the clients feel the need to make a year ended 21 May 2001. For • Direct payment of a sum, not public to present a complaint. complaint either to the Law completeness, the report also exceeding £5,000 to be paid The procedure is an adversarial Society of Ireland or direct to covers the period from the date by the respondent solicitor to one and consequently it is a mat- the tribunal. However, as has of the last published report of the compensation fund ter for an applicant to prosecute been stated on many occasions the tribunal – 31 October 1999, •To direct that the respondent a case and for a respondent in the past by my predecessor, up to 21 May 2000. The solicitor shall pay a sum, not solicitor to respond. In this delay and the lack of communi- appointments of the present exceeding £5,000, as restitu- regard, the tribunal is aware that cation form the basis of the members of the tribunal com- tion or part-restitution to any members of the public may find majority of complaints received menced on 22 May 2000 and aggrieved party, without prej- the process of making an appli- by the tribunal. It is of immense these will run for a period of five udice to any legal right of cation to the tribunal an onerous concern that solicitors accept years. The tribunal consists of such party one, but assistance is available instructions to attend to certain ten solicitor members and five •To direct that the whole or from the clerk to the tribunal in matters and subsequently fail to lay members, appointed by the part of the costs of the society relation to completing the forms bring the particular business to a president of the High Court. or of any person appearing leading to an application. At the conclusion. Clients should be The tribunal is an independ- before them, as taxed by a tax- hearing stage, should one be adequately informed of the ent, semi-judicial body and it is ing master of the High Court, directed, the tribunal, which sits progress of their business and wholly independent of the Law in default of agreement, shall in divisions of three (two solici- should have outlined to them Society of Ireland, its offices be paid by the respondent tor members and one lay mem- the main steps which need to be being situated at 32 Manor solicitor. ber), is cognisant of the con- taken. Street, Dublin 7 cerns some lay applicants may The tribunal would urge The tribunal holds inquiries, The tribunal has no power to have when presenting their members of the profession, who as it has done for many years, carry out its own investigations cases, without the assistance of are the subject of a complaint, to regarding complaints alleging and consequently any applica- legal representation, and due respond promptly, fully and conduct tending to bring the tion coming before it must be allowance is given. Indeed, when accurately to the Law Society. profession into disrepute – made by completing the appro- requested, applicants have been Ignoring or misleading the soci- broadly, that is to say unethical priate application form and affi- permitted to be assisted by a conduct, failing to reply to cor- davit, in accordance with the tri- ‘friend’, who may assist an appli- Continued on page 48 ➜ respondence from the Law Society or from clients, or caus- Between 22 May 2000 and 21 May APPLICATIONS FROM Censure, restitution and costs 2 ing unreasonable or persistent 2001, the Disciplinary Tribunal met PREVIOUS PERIOD 70 Censure and fine 3 delay in regard to some aspect of on 27 occasions. During the year 48 Law Society Restitution and costs 1 their clients’ affairs. Where it new applications, alleging misconduct Awaiting prima facie decision 1 Fine 1 has been proven that misconduct against solicitors, were received of At hearing Censure and costs 1 has been established, the tribu- which 20 were direct applications to Misconduct 18 Censure 2 the tribunal from members of the pub- Withdrawn 2 Admonished, restitution lic. The remainder emanated from the Struck out 1 and costs 1 DISCIPLINARY TRIBUNAL Law Society of Ireland. The following Adjourned 22 Advised, admonished and costs 1 Solicitor members is an analysis of these applications: Advised and costs 1 Thomas D Shaw (chairman) Private Advised and admonished 1 Ernest Cantillon NEW APPLICATIONS 48 No prima facie cases found 10 Clare Connellan Law Society Awaiting prima facie decision 1 Fines ranged from £500 to £5,000. Carol Fawsitt Prima facie cases found 6 At hearing Maeve Hayes Awaiting prima facie decision 22 Misconduct 3 Report of the Disciplinary Tribunal Michael Hogan At hearing No misconduct 7 under section 7(3)(b)(ii) of the Donal Kelliher Misconduct 1 Struck out 1 Solicitors (Amendment) Act, 1960 as Geraine O’Loughlin Awaiting inquiry 5 Adjourned 4 substituted by section 17 of the Michael O’Mahony Solicitors (Amendment) Act, 1994 Ian Scott Private Orders made by the Disciplinary Recommendation: Prima facie cases found 4 Tribunal pursuant to section 7(9) of That the respondent solici- Lay members No prima facie cases found 3 the Solicitors Amendment Act, 1960 tor’s practising certificate Mary Conlon Withdrawn 1 as substituted by section 17 of the should be limited in that he Ted Conlon Awaiting prima facie decision 12 Solicitors (Amendment) Act, 1994: should practise under the Denis Murphy At hearing Censure, fine, restitution supervision of a solicitor Paul Kingston No misconduct 1 and costs 3 with at least ten years’ Kristin Quinn Awaiting hearing 3 Censure, fine and costs 4 experience 1

46 Law Society Gazette December 2001 Briefing NNUAL REPORT 2000/2001 Principal grounds on which professional misconduct was found Civil actions after the applicant’s first consulta- cific bequest to him and wherein he of the solicitors’ profession • Delaying in prosecuting a civil action tion with the respondent solicitor. was appointed as joint executor of the • Failing to answer correspondence of complainants Contrary to the applicant’s express will; from the society both in respect of the • Settlement cheque, when received, instructions, the case was never society’s request for an explanation was the property of the client and brought to trial. Practising certificate of the matter and in respect of inform- should have been given to him and • Failing to apply for a practising certifi- ing the society of what progress was not lodged to the solicitor’s client Communication with clients cate and practising as a solicitor with- being made in respect of a client’s account • Failing to communicate or to answer out a practising certificate in contra- transaction • Solicitor had authority to negotiate a correspondence from clients vention of the provisions of the •Misleading the society in the investi- settlement but there was no evidence • Causing a complainant extreme dis- Solicitors Acts, 1954 to 1994 gation of a practice by denying that he he had authority to conclude a settle- tress and inconvenience through fail- had benefited as a beneficiary in the ment ing to deal with a complaint in a time- Professional indemnity insurance will of any other client when this was • Solicitor had no authority to pay ly manner • Failing to file evidence that profes- not the case client’s funds without the client’s con- • Failing to keep complainant informed sional indemnity insurance cover had sent of all offers and the settlement of a been effected pursuant to the provi- Solicitors’ accounts regulations • Deliberately misleading clients over a case sions of section 4(a) of statutory breaches sustained period of time in regard to instrument no 312 of 1995 • Failing to file an accountant’s report the filing of a cross appeal in the Conveyancing since commencing practice in breach Supreme Court and submitting false • Failing to advise the society as per its Regulatory body: Law Society of Ireland of regulation 21(1) of the Solicitors’ documentation in support of these request of the date of re-lodgment of • Failing to attend meetings of the accounts regulations 1984 in a time- assertions a deed of transfer of the complainant Registrar’s Committee despite being ly manner or at all • Misleading a colleague acting on in the Land Registry together with the requested to do so behalf of a complainant dealing number, the subject matter of •Refusing to comply with a direction of Section 55 •Misleading complainants in relation to the complaint to the society the Registrar’s Committee pursuant •Practising as a solicitor and acting in the conduct of their civil proceedings • Delaying in completing a conveyanc- to section 8(1) of the Solicitors a transaction for a purchaser in • Using solicitor’s fees as an induce- ing transaction (Amendment) Act, 1994 that an breach of section 55(1) of the ment to persuade a client from a cho- • Through a delay in processing part of indemnity bond be obtained in Solicitors Act, 1954 and section sen course of action and was not act- the transaction relating to the respect of the title to a former client’s 56(1) of the Solicitors (Amendment) ing in the client’s interest in this exchange of land put a client’s inter- property, which bond was necessitat- Act, 1954 regard est in serious jeopardy ed by the inadequate services provid- • Refusing to discharge costs notwith- • Acting in the transfer of property from ed to the client Undertakings standing a certificate by the taxing one party to another without advising • Bringing the society’s regulatory role •Breaching an undertaking not to nego- master of the High Court that party, that he, the solicitor, could in respect of the solicitors’ profession tiate a joint deposit receipt until •Failing to have a settlement, in which end up owning the property (which he into disrepute by showing a flagrant receipt of confirmation from a solicitor minor parties were involved, ruled in subsequently did) and without advis- disregard for the direction of the colleague, the recipient of the said the High Court and failing to have ing him to obtain independent legal Registrar’s Committee undertaking, that the premises the monies in the client account lodged in advice • Failing to comply with an undertaking subject matter of the transaction had court in accordance with the solici- • Unilaterally altering or causing to be given to the registrar’s meeting to been completed save for certain tor’s obligations as an officer of the altered a deed of transfer after it had write to a complainant on the day fol- repairs specified in a written under- court been executed by the vendor of prop- lowing the meeting and to furnish a taking • Acting in a conflict of interest situa- erty without the knowledge, authority copy of the letter to the society • Failing to disclose to a solicitor col- tion by accepting instructions when or consent of the vendor and his solic- • Failing to comply with an undertaking league the negotiation of a joint none of the exceptions as set out at itor given to the Registrar’s Committee to deposit receipt despite receiving let- paragraph 1.3 of the Guide to the pro- • Subsequently in a letter to the ven- procure a duplicate land certificate ters from a solicitor colleague which fessional conduct of solicitors in dor’s solicitor enclosing a copy of the • Misrepresenting the situation to the referred to the monies remaining on Ireland appear to apply altered deed specifically did not draw society in a letter where he denied he joint deposit pending completion of • In a conflict of interest situation giving his attention to the unilateral alter- was practising as a solicitor certain works as per the undertaking assurances to a client that it should ations • Obstructing and inhibiting the soci- given be possible to reach agreement with •Causing serious delay in completing a ety’s investigation of a complaint • Accusing a solicitor colleague in a let- another party which should preclude conveyancing transaction for a client •Breaching an obligation to furnish a ter of pursuing a personal agenda the need for the client to seek inde- • Through delay in processing part of file and documents the subject matter without instructions from the clients pendent legal advice and which result- the transaction relating to the of the complaint pursuant to a notice in seeking compliance with an under- ed in the client not proceeding to seek exchange of land put a client’s inter- under section 10(1) of the Solicitor’s taking such independent legal advice at that est in serious jeopardy (Amendment) Act, 1994 •Failing to make any attempt to comply time • Severely prejudicing a client by refus- • Obstructing and frustrating the soci- with the terms of an undertaking • In a conflict of interest situation con- ing to procure a bond ety’s statutory power to provide a notwithstanding the direction of the tinuing to act for one party by entering remedy to a client arising out of the Registrar’s Committee on 2 April an appearance to proceedings initiat- Probate inadequate service to that client 1998 ed by that party • Drawing up a will for a client in which • Failing to reply to correspondence • Failing to comply with an undertaking • Failing to act promptly on the advice he (the solicitor) was named as resid- from the society in a timely manner or given to a colleague to furnish a dis- from counsel to institute proceed- uary legatee and executor and bene- at all charge of a building society charge ings for negligence and a breach of fited in that estate and failing to • By ignoring correspondence showed a • Failing to comply with an undertaking duty against a colleague and recov- advise the testator to seek independ- serious disregard for the society’s given to discharge a judgment mort- ery of the purchase price; a civil bill ent legal advice complaint handling procedure and for gage and to furnish a discharge of was issued more than five years •Preparing wills for a client with a spe- the society itself as a regulatory body same to a colleague.

47 Law Society Gazette December 2001 Briefing

➜ Continued from page 46 tribunal has considered matters tion, the tribunal sits in divi- arrangement with any person of conflict in relation to civil sions comprising two solicitor whom the solicitor knows, or ety is particularly damaging to proceedings where they found a members and one lay member. upon reasonable enquiry should the profession. The tribunal has solicitor guilty of misconduct in Under section 3 of the have known, is a person who is taken a very serious view of con- that he, in a conflict of interest Solicitors (Amendment) Act, 1960 acting or has acted in contraven- duct which shows a disregard for situation, continued to act for as amended by the Solicitors tion of section 55 or 56 or section the society’s complaint handling one party by entering an appear- (Amendment) Act, 1994, miscon- 58 (which prohibits an unquali- procedure and for the society ance to proceedings initiated by duct includes: fied person from drawing or itself as a regulatory body of the that party. • The commission of treason preparing certain documents), as solicitors’ profession. I would also like to record my or a felony or a misde- amended by the Solicitors A number of complaints relat- thanks to the members of the meanour (Amendment) Act, 1994 of the ing to breaches of undertakings tribunal for their participation • The commission outside the Solicitors Act, 1954 or section came before the tribunal. As it is and hard work during the year. state of a crime or an offence 2 of the Solicitors the duty of solicitors to comply The Disciplinary Tribunal is which would be a felony or a (Amendment) Act, 1998, or with professional undertakings, constituted under the provisions misdemeanour if committed ii) Accepting instructions from any solicitors should ensure that of the Solicitors Acts, 1954 to in the state such person to provide legal serv- they never give an undertaking 1994 and its powers are largely • The contravention of a provi- ices to any other person’. in circumstances where they confined to receiving and hear- sion of the Solicitors Acts, 1954 cannot perform it. ing complaints of professional to 1994 or any order or regu- The procedures before the tri- Some of the foregoing misconduct against solicitors. lation made thereunder bunal are formal and as the out- grounds of misconduct arose as a The tribunal consists of ten • Conduct tending to bring the come of a hearing may affect the result of solicitors attempting to solicitor members and five lay profession into disrepute. livelihood of a solicitor, the tri- continue acting in a conflict of members, who are appointed by bunal requires a high standard interest situation. Solicitors the president of the High Court. However it should be noted that of proof. In this regard, the tri- should be mindful of their posi- Under section 16 of the Solicitors the Solicitors (Amendment) Bill, bunal has available an informa- tion in such cases and should be (Amendment) Act, 1994, the lay 1998 has further extended the tion leaflet and other documen- guided by paragraph 1.3 of A members are nominated by the definition of misconduct to tation to assist members of the guide to professional conduct of solic- minister for justice to represent include the following: public when making an applica- itors in Ireland. It is not only in the interests of the general pub- ‘In the course of practice as a solicitor tion to the tribunal. G conveyancing transactions that lic. For the purpose of hearing i) Having any direct or indirect conflict of interest can arise. The and determining any applica- connection, association or Thomas D Shaw, chairman

LEGAL COSTS ACCOUNTANTS LOWE REDMOND SPECIALISING IN & ASSOCIATES Independent Advice to Carmichael House Solicitors and 60 Lower Baggot Street their clients Dublin 2 Pensions, Investments, Phone: 01 202 4930 and Protection Fax: 01 285 1723 Discount entry terms available DX 109031 Fitzwilliam on 31 Jan Pension Deadline (Dublin) Contact Alan Morton PhD, QFA Moneywise Moneywise Financial Planning 16 Fitzwilliam Square, Incorporating Ltd. is regulated by Dublin 2 LOWE KILKELLY & ASSOCIATES the Central Bank Tel. 6788011 of Ireland as an Salthill, Galway Authorised Adviser [email protected] DX 4027 Galway-Kiltartan

48 Law Society Gazette December 2001 Briefing

Personal injury judgments

Road traffic accident – car skidded on patch of ice on public road – water on road – absence of drain to collect water flowing onto road – whether formation of ice on road foreseeable – liability of local authority and adjoining landowner – alcohol consumption – speed – failure to wear seat belt – actuarial evidence – conflict over assess- ment of damages for future pecuniary loss – annual loss of earnings – method of calculation to ensure that the plaintiff was not over-compensated – medical inflation – how to provide net annual loss out of both capital and income – assumed ‘real’ rate of return – application of ‘discount rate’ to lump sum award

CASE Brendan McEneaney v Monaghan County Council and Coillte Teoranta, High Court, judgment of Mr Justice Philip O’Sullivan of 26 July 2001. THE FACTS n the evening of Sunday 13 riageway, the hard shoulder, the to the lower part of his body. to the design and maintenance OFebruary 1994, Brendan soft shoulder, through a fence There was evidence that it of the road and, in particular, McEneaney, then aged 22 years and eventually hit a tree. While would be extremely difficult for because, at the bend in question, of age, decided to celebrate the the car was out of control, it him to look after himself from a the council had failed to provide eve of St Valentine’s Day with went through a turn of approxi- wheelchair, and he had become a ‘french drain’ which would his girlfriend Maeve mately 180 degrees so that the depressed and had manic have collected water which McCaughey. He collected Ms impact with the tree occurred at episodes on and off since the seeped from the slope on the McCaughey between 6pm and the right-hand rear corner of accident. His mental health adjoining lands onto the road, 7pm, having travelled some 12 the car. Mr McEneaney was would require close manage- thereby creating a localised haz- miles to her home. They went found facing down some ten feet ment involving observation and ard. It was argued that it was to a hotel in Castleblayney, Co away from the car and, it monitoring of medication. He foreseeable that on a night such Monaghan, and later to a pub appeared, had been catapulted could, in certain circumstances, as that of the accident, a patch and back again to the hotel backwards out through the rear drive a car, but there was evi- of black ice would form in cir- where there was a disco. Both window. His passenger, Ms dence that a low percentage of cumstances which would not be left the disco after 1am. McCaughey, was found hanging paraplegic patients ever predictable to the driver of a car. It was a cold night and Mr by her seat belt, the car having returned to meaningful The road had been realigned McEneaney set off to drive Ms come to rest on its left-hand employment and, given Mr in 1965 but had just been resur- McCaughey to her home, trav- side. Mr McEneaney was not McEneaney’s additional psy- faced in the months prior to the elling in the Monaghan town wearing his seat belt. chosis, this made the prognosis accident and indeed some of the direction. As they were travel- Brendan McEneaney sus- worse. cones associated with those ling, he had to slow down to tained very serious injuries as a works were still in place on the pass through a line of cones result of the accident. His spinal The case against Monaghan night of the accident. In rela- which he did without difficulty cord had been severed between County Council and Coilte tion to Coillte Teoranta, it was and then resumed his speed the fifth and sixth thoracic ver- Teorante argued that its lands which travelling in a northerly direc- tebrae, resulting in complete Mr McEneaney sued Mon- adjoin the road contained chan- tion on the newly surfaced paralysis below the level of the aghan County Council as the nels which facilitated the flow national road between nipples of his chest with the body responsible for the road of water onto the road, and it Castleblayney and Monaghan inevitable tragic paraplegia, loss and Coillte Teoranta whose was claimed by Monaghan town. He approached a ‘fast’ of all sensation and useful move- lands adjoined the road where County Council that Coillte elevated bend and his car sud- ment below this level, loss of the accident occurred. In rela- had a duty under section denly went out of control, hav- control of bladder and bowel tion to Monaghan County 76(5)(b) of the Roads Act, 1993 ing skidded on a patch of ice, function, loss of sexual sensation Council, it was argued that the to take reasonable steps to pre- travelled across the centre of the and continuing vulnerability to council had been negligent and vent such water flowing onto road, across the oncoming car- injury, including pressure sores in breach of its duty in relation the public highway.

49 Law Society Gazette December 2001 Briefing THE JUDGMENT ’Sullivan J set out the facts. limit, but was within the design purchase this annuity, a ‘multi- 0% should be considered in this OHe referred to an applica- capacity of the road and, there- plicand’ is used which is, in context. It was also argued with tion to the court that the case fore, but for the ice there would effect, the annual loss of earn- regard to general damages in against Coillte Teoranta be dis- have been no accident. Breach ings or the annual cost of care, cases of ‘catastrophic’ injury missed and referred to evidence of a speed limit could, of itself, as the case may be. An assump- that the guideline figure of of Paul Womeril, a forensic amount to contributory negli- tion is then made as to the num- £150,000 established by the engineer, who gave evidence as gence. The judge held that a ber of years a plaintiff would, Supreme Court in June 1984 in to the ‘design speed’ of the road driver of a car at 10 miles an apart from the accident, have Sinnott v Quinnsworth Limited in wet conditions. The engineer hour in excess of the maximum worked or during which he or and Others ([1984] IRLM 523) said it was basic engineering to national speed limit without she would need to be cared for. was the equivalent of a figure provide a ‘french drain’ to pro- appropriate excuse was guilty of However, merely to multiply today of between £230,000 and tect the road and he was not sur- a want of care for his own safe- the one figure by the other £600,000. Evidence on these prised to discover that ice had ty in that he thereby incurred would greatly over-compensate matters was given by Moore formed, once water was permit- the enhanced risk that the con- a plaintiff. Accordingly, to avoid McDowell, senior lecturer in ted onto the road, given the sequences of any unforeseeable over-compensation the courts economics, University College type of weather on the night of accident would be worse by rea- apply a ‘discount rate’ in order Dublin, and Desmond Peelo, the accident. He said that given son of this excess speed. to arrive at a lump sum which, chartered accountant with the problem, there should have Accordingly, by reason of the taking into consideration inter- experience as a non-executive been manual and mechanical excessive speed, Mr est and capital, would provide as director of a fund-managing spreading of salt and a warning McEneaney was guilty of con- close as possible the net annual company. sign, but the fundamental defect tributory negligence and must loss out of both capital and O’Sullivan J stated that on 15 was the lack of the drain. accept one third of the fault for income so that at the end of the March 2001 the nominal O’Sullivan J held that in the the accident, and, accordingly, relevant expected period of loss, redemption yield on Irish gov- absence of a drain to collect the damages would be reduced by there would be nothing left. ernment securities was between water flowing onto the road at that amount. The ‘discount rate’ applied is 4.5% and 5.2%. The judge the point of the accident, it was In relation to the seat belt stated to represent the assumed assumed that Eurozone infla- foreseeable that ice would form issue, it was accepted that Mr ‘real’ rate of return after infla- tion was likely to be in the in conditions which would cause McEneaney had been propelled tion and net of tax on the capi- range of 2% to 3% in the medi- a hazard. This constituted a backwards through the rear tal invested. Readers are um term, and was of the opin- breach of duty owed by window, ending up face-down- referred to an article by ion that the prospective ‘real’ Monaghan County Council to wards some ten feet away from Professor Niamh Brennan of rate of return on Irish govern- Mr McEneaney which amount- his car. There was evidence that UCD and John Hennessy, ment securities was in the range ed to negligence. The case if a seat belt had been worn, it BL, Forensic accounting and the of 1.5% to 3.2% with a mean against Coillte Teoranta was would not have prevented Mr calculation of personal injury dam- value of 2.4%. Reference was dismissed. McEneaney being thrown out ages, in the Bar review, made to the House of Lords of the car. Accordingly, the September 2001, and to Dr PM case of Wells v Wells ([1998] Alcohol, speed and failure to judge held that Mr McEneaney White’s book Irish law of dam- 1AC 345), where it was held wear a seat belt was not guilty of contributory ages for personal injuries and death that a plaintiff’s damages should Monaghan County Council negligence by his failure to wear (Butterworths 1989). be calculated on the basis of submitted that there had been a seat belt. In relation to the computa- minimum risk exposure. contributory negligence on the tion of damages, traditionally a Accordingly, it was argued the part of Mr McEneaney under Actuarial issues, the ‘multi- 4% discount rate was used by appropriate ‘real’ rate should be three headings: he had con- plier’ and the ‘discount rate’ actuaries in computing future the ‘real’ rate of return on long- sumed too much alcohol on the I offer some general observa- losses or costs to allow for so- term government debt paper in night, he drove too fast and he tions before returning to the called ‘real’ growth. It was respect of which historical evi- failed to wear a seat belt. The judgment of O’Sullivan J. The argued in the McEneaney case dence and the generality of eco- judge dealt with each of these in usual issue arose about the that this was excessively opti- nomic opinion indicated a ‘real’ turn. amount of earnings that Mr mistic and resulted in the rate of return of around 2%. Although Mr McEneaney McEneaney would have earned under-compensation of plain- The judge noted it was had consumed alcohol, the had there been no accident. tiffs. It was contended that the remarkable that the only Irish judge considered that the The assessment of damages for figure should be closer to 2%. case dealing with the appropri- amount of alcohol consumed future pecuniary loss is an O’Sullivan J considered the ate ‘multiplier’ (as it is called) did not impair Mr McEneaney’s imprecise process. The conven- issue of the specific cost of was the decision of Hamilton J judgement or ability to drive. tional approach is to assess the future medical care and appli- (as he then was) delivering the The issue of speed, however, amount notionally required to ances. It had been submitted High Court judgment in Cooke was relevant. The judge stated be laid out in the purchase of an that the cost of these had v Walsh ([1983] ILRM 429), that the probability was that Mr annuity which would provide increased historically at 3% a where he concluded that the McEneaney was travelling at the annual amount needed for year in excess of the general rate appropriate calculation should approximately 70 miles an hour. the whole period of loss. To of inflation and that an actuari- be based on a ‘real’ interest That was in breach of the speed assess the amount required to al ‘discount’ figure of closer to yield of 2.5%. O’Sullivan J con-

50 Law Society Gazette December 2001 Briefing sidered he must approach the tain the level of general damages sidered that having regard to future loss of earnings in any assessment of the sum required at the nominal value indicated the very large sums to be award- given case. The judge stated to produce the appropriate by the Supreme Court in Sinnott ed to Mr McEneaney under the that he saw no basis for reduc- annuity for Mr McEneaney over would be to reduce it substan- headings of ascertainable loss, ing the figure which he allowed the next 39 years (his expected tially in real terms having regard he would award £75,000 for for future loss of earnings in the lifespan), and he must do so on to inflation measured by refer- pain and suffering to the date of McEneaney case. the basis that it would yield a ence to the consumer price the trial and £125,000 for pain O’Sullivan J referred again to reasonable, secure and reliable index. The view had been and suffering in the future, the evidence of economist stream of annual funding (com- expressed in that case that unless being amounts in both cases Moore McDowell, to the effect prising income and capital) and, there were particular circum- very considerably less than he that the cost of future medical to that end, the investment of stances which would suggest would have assessed had he care would be likely to rise at a the award should be as risk free otherwise, general damages been considering them on their rate of 3% in excess of the gen- as reasonably possible. The should not exceed the sum of own. eral rate of inflation. In those judge considered that the appro- £150,000. O’Sullivan J stated The judge then referred to circumstances, the judge stated priate discount rate for general that the equivalent of £150,000 the decision of the Supreme that while the amount for future calculation purposes should be for general damages as deter- Court in Reddy v Bates ([1984] care was very significant indeed, 2.5%. mined in Sinnott v Quinnsworth ILRM 197), where it was held he considered that he must act (This was significant, as pre- Limited in today’s money would that in calculating future loss of on the evidence. The only miti- viously a discount rate of 4% be £300,000. The judge stated earnings, account should be gating impact of this significant had been used by actuaries in that if he erred in this figure, he taken of the fact that at the time element of this aspect of an computing the so-called ‘real’ considered he did so on the side of assessment of the relevant award from the point of view of rate of interest in order to deter- of ‘conservatism’, especially if he award there had been a high Monaghan County Council mine a fair lump sum to ensure compared the income which rate of unemployment not only arose in the context of the prin- that a plaintiff would not be £150,000 would have yielded in in Ireland but in Great Britain ciples established by the over-compensated.) June 1984 (at say 10%) with that and in most member states of Supreme Court in Cooke v In the context of the decision which £300,000 would yield (at the EEC (as it then was). The Walsh, whereby the court would of the Supreme Court in Sinnott 4%) some 17 years later. The judge stated that the numbers of assess general damages by refer- v Quinnsworth ([1984] ILRM judge, however, stated that he redundancies and closures of ence to the proposed sub- 523) in relation to general dam- could not accept that a para- firms led to the conclusion that awards in relation to ascertaina- ages and the cap of £150,000, plegic, such as in the present there was no longer any safe or ble loss. The judge did this by O’Sullivan J referred to the evi- case, was in the same category as guaranteed employment. That reducing the general damages dence of economist Moore a quadriplegic. was a fact of which juries (and which he awarded to Mr McDowell, who testified in the In the circumstances of the now judges) should be required McEneaney in relation to pain McEneaney case that to main- McEneaney case, the judge con- to take into account in assessing and suffering in the past and in the future to a figure of £75,000 for pain and suffering in the Having regard to all the factors and evidence rate: £527,743 past and a figure of £125,000 set out in the judgment, O’Sullivan J awarded • General damages for pain and suffering in for pain and suffering in the Brendan McEneaney the following damages: the past: £75,000 future, which he stated was con- • Past special damages (which were agreed): • General damages for pain and suffering in siderably less than he would £137,726 the future, £125,000. have awarded had he considered • Future costs of house modifications (which these general damages on their were agreed): £40,500 Total damages were £3,574,369. Having own. • Loss of earnings in the future: £400,000 regard to the finding that Mr McEneaney was This case is under appeal to • Cost of care in the future: £2,224,000 guilty of contributory negligence and must G • Insurance at an agreed rate of 2%: £44,400 accept one third of the fault for the accident, Mr the Supreme Court. • Costs of medical aids and appliances, taking McEneaney’s decree was reduced to the sum into account inflation of 3% over the general of £2,382,913. This case has been summarised by

THE AWARD solicitor Dr Eamonn Hall. EXCELLENCE IN REPORTING SINCE 1954

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51 Law Society Gazette December 2001 Briefing Eurlegal

News from the EU and International Law Committee Edited by TP Kennedy, director of education, Law Society of Ireland Public procurement: recent Irish developments

he purpose of this note is to tract. The notice provided in the view that the minimum cri- also believed it was an objec- Tbriefly review four recent this regard that applicants teria specified in the question- tive criterion as it was capable Irish developments in the field would be required to complete naire had not been met and did of objective assessment and of public procurement: a pre-qualification question- not invite the Whelan Group to application. Furthermore, • The Whelan Group case in the naire, which requested informa- submit a tender. there was a rational basis for it. High Court, which (unsuc- tion concerning the applicant’s The Whelan Group chal- Finally, it was transparent cessfully) sought a review of a financial and economic standing lenged that decision on the because every potential tender- public contract award by and technical knowledge and basis that it infringed principles er who was notified of the Clare County Council (judg- ability. of EU public procurement law, requirement had to comply ment of 9 March 2001) The questionnaire provid- particularly those that prohibit with it. • The commencement by the ed, among other things, ‘that discrimination, inequality of Kelly J noted that the EU European Commission of the minimum relevant experi- treatment, lack of transparency directive in question, the Public infringement proceedings ence shall be judged on the and lack of proportionality. works directive (93/37/EEC), against Ireland regarding the contractor’s record during the The Whelan Group sought a did not set out the specific Blanchardstown Civic Centre period 1995 to 1999 inclusive. series of declarations from the technical or economic criteria (March 2001) Evidence of that record shall High Court (presumably, that were to be applied in the • The establishment of an elec- be furnished, with the attached although not stated, under the context of the restricted proce- tronic tenders portal in Ire- pre-qualification question- European Communities (review dure. However, the directive land, www.e-tenders.gov.ie naire. The contractor shall, as procedures for the award of public did recognise (in article 22) the (23 March 2001) a minimum, have satisfactorily supply and public works contracts) use of minimum conditions as •The decision of the informa- completed: roadworks project, regulations, 1992-1994) to the a basis for selecting candidates tion commissioner in case value exceeding £10 million effect that the council was in using the restricted procedure. 98188 Mark Henry and the excl VAT for any one individ- breach of its obligations and These minimum conditions Office of Public Works (25 June ual project.’ furthermore sought an order could be of an ‘economic and 2001). The questionnaire provided removing the requirement that technical nature’. In his view, that any applicant that did not a contractor should have com- therefore, ‘as evidence can be The Whelan Group case comply with the specified mini- pleted one individual project to sought as to the value of works The case of Whelan Group mum of pre-qualification crite- the value of £10 million. performed by the contractor in (Ennis) Limited v Clare County ria set out in the questionnaire In his judgment of 9 March the preceding five years it Council ([2001] IEHC 33, 9 would be excluded from further 2001, Kelly J held that the must be the case that the value March 2001) involved a chal- consideration. Whelan Group was not entitled of those works can be used as a lenge by the Whelan Group to The Whelan Group obtained to the reliefs which it sought minimum condition, provided the tendering procedure adopt- a copy of the pre-qualification and dismissed the proceedings. of course that there is an ed by Clare County Council in questionnaire and returned it, He was satisfied that the cri- objective and non-discrimina- respect of major road improve- duly completed, to the council. terion in question was included tory basis for choosing such a ment works planned for the In its replies it stated it had car- on the advice of an expert criterion. In my view there is Newmarket-on-Fergus area of ried out road and bridge works standing committee, which in this case both an objective County Clare (the ‘proposed for the county councils of Cork, took the view that the criterion and non-discriminatory basis works’). Limerick and Offaly to the was necessary having regard to for choosing the criterion’. In February 2000, Clare value of £11.9 million. The the financial and technical com- He rejected the suggestion County Council published a council discovered on examin- plexity of the project. that the criterion did not relate contract notice in the official ing the questionnaire that the Furthermore, it was taken in to technical ability. journal and in an Irish newspa- Whelan Group had not in fact accordance with the practice Finally, Kelly J was satisfied per in respect of proposed carried out an individual project determined by the National that the criterion ‘did not suf- works whose value was estimat- to the value of not less than £10 Roads Authority. focate genuine competition’. ed at £25 million. The notice million. The largest contract As the criterion applied to all Although the Whelan Group made it clear that the council value of works carried out had a potential contractors, Kelly J was excluded because of its was adopting the restricted pro- tender price of £3.9 million. could not see how it could be inability to comply with the cedure for the award of the con- On that basis, the council took said to be discriminatory. He criterion, Kelly J believed that

52 Law Society Gazette December 2001 Briefing the stipulation was proportion- lished an electronic public sec- ate, had a rational basis, and was tor tender portal, www.e-ten- applied objectively. Therefore, ders.gov.ie, as part of the gov- it did not in his opinion offend ernment’s action plan against the requirements of Implementing the information community law. society in Ireland. In particular, The case has been appealed the portal is intended to con- to the Supreme Court, but has tribute to the development of not been heard as yet. e-procurement in Ireland. This case confirms that, The website is intended to under Irish law, it is open to provide (as an interim meas- contracting authorities to set ure) a central source for all minimum criteria to be met by Irish public sector procure- potential tenderers at the pre- ment opportunities. The site qualification stage, provided displays, on a daily basis, all they are: public sector procurement • In compliance with the rele- opportunities currently being vant directive and EC law advertised in the official jour- generally nal and national and local • Applied in an objective man- press. There is no charge to ner local authorities for using • Rational the website, which is also •Proportionate freely available for use by the • Non-discriminatory public. As such, it is intended •Transparent to reduce the financial and administrative burdens EC proceedings against incurred by local authorities in Ireland tendering public sector con- In March 2001, the European tracts. Commission sent a formal While the website princi- request (in the form of a ‘rea- pally displays prior indicative soned opinion’) to Ireland in notices and contract notices, it respect of the award of contracts also provides, where available, for the construction of a civic associated tender documents centre at Blanchardstown, which can be downloaded by County Dublin, in an alleged potential tenderers. There is breach of the Public works direc- also an archive of ‘closed tive. In particular, the European opportunities’ and contract Commission took the view that award notices and a database the contracting authority, Fingal of public sector organisations. County Council, used a number This site also provides back- of selection criteria that are not ground information on pro- among the authorised criteria curement rules and guidelines, listed in the directive. including EU directives and Ireland had two months after national guidelines. receipt of the reasoned opinion Where applicable, the obli- to provide a response. It is gation to publish relevant understood that Ireland did notices in the official journal reply and the European continues to apply and Commission was satisfied with requests for tenders must con- the response. Apparently, the tinue to be provided in a paper infringement was not as serious format if a potential tenderer as the commission had believed insists on it, notwithstanding and, in any event, Ireland gave that an electronic copy is undertakings that the infringing available to download from practice would not be continued the site. in future. The establishment of this website is a welcome develop- Establishment of electronic ment and anticipates forth- public sector portal coming changes in EU public On 23 March 2001, the procurement law, which will Department of Finance estab- make provision for, among

53 Law Society Gazette December 2001 Briefing other things, electronic means the original decision or direct ments revealing detailed remains confidential after of procurement by contracting that access be granted to some information about a compa- the award of the contract authorities. or all of the records in question. ny’s current pricing strategy and the public interest lies This particular decision of or about otherwise unavail- in protecting that informa- Freedom of Information Act, the information commission able product information may tion from disclosure 1997 related to a request made under also be regarded as commer- 3) No tender-related records In June 2001, the information the act to the Office of Public cially sensitive information, are subject to release or commissioner established under Works (OPW) to view all even following the conclusion exemption as a class and the Freedom of Information Act, information and documenta- of a tender competition each record must be exam- 1997 issued a lengthy and tion relating to a tender com- •Tender prices and private ined on its own merits in detailed decision on the appli- petition for army vehicles con- information generally qualify light of the relevant cir- cation of the act to public pro- ducted by the OPW. For rea- as commercially sensitive cumstances. curement in Ireland. sons of space, it is not proposed information The act establishes a general to consider the decision in • When a contract is awarded, In arriving at these views, the right of access to records of detail. Instead, a summary of successful tender information information commissioner had public bodies subject to a num- the current views of the infor- loses confidentiality with regard to the confidentiality ber of exceptions. The excep- mation commissioner on the respect to a) price and b) the provisions of the Irish guidelines tions of most relevance to pub- application of the FOI act to type and quantity of the on public procurement, the lic procurement are confiden- public procurement in Ireland goods supplied. Moreover, Department of Finance notice tial information (section 26) is provided below: the public interest also no 9 on FOI and public pro- and commercially sensitive • Public bodies are obliged to favours the release of such curement, and the EC Supplies information (section 27). These treat all tenders as confiden- information, subject to cer- directive, as well as United States exceptions may be waived by tial, at least until the time tain exceptions: and Australian case law in this the public body, following con- that the contract is awarded 1) Other successful tender area. The decision is welcome sultation with affected third •Tender prices may be trade information which is com- from the point of view of pro- parties, where there is a public secrets (for the purpose of mercially sensitive may viding greater clarity for both interest in disclosing such the ‘commercially sensitive remain confidential and public sector bodies and poten- records. In the case of where a information’ exception) dur- disclosure in the public tial tenders on the impact of the request for access to records ing the currency of a tender interest ordinarily will not act on public procurement in made under the act is refused, competition, but only in be required Ireland. G the requester may appeal the exceptional circumstances 2) Unsuccessful tender infor- decision to the information would historic prices remain mation which is commer- John Gaffney is an associate with commissioner, who may uphold trade secrets. Tender docu- cially sensitive generally the Dublin law firm William Fry.

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54 Law Society Gazette December 2001 Briefing Ratification of Madrid protocol om Kitt, minister of state at can designate Ireland, thereby cation or registration possible that there will be greater Tthe Department of Enter- rendering the need for a separate •The applicant must indicate volume of overseas trade-mark prise, Trade and Employment on Irish application obsolete. the goods and services in applications as more and more 24 July 2001 signed statutory It will be possible to apply for respect of which protection of countries accede to the protocol, instrument 346 of 2001, thereby an international registration of a the mark is claimed in accor- which could have an adverse ratifying the protocol relating to trade mark under the Madrid pro- dance with the Nice classification effect leading to delays in the the Madrid agreement concerning tocol through the Irish Patent (7th edition) examination of domestic applica- the international registration of Office. Through a single applica- • Priority from a national appli- tions. trade marks. Irish trade-mark tion based on either an Irish cation may be claimed in The second problem is the applicants and owners will from trade-mark application or a regis- accordance with the Paris con- question of trade-mark searching. 19 October 2001 have access to tration, it will be possible to vention Searching for trade marks under an additional system of interna- obtain registration in the desig- • The international bureau will this international system will be tional trade-mark registration, nated countries. The internation- notify each country in which difficult because of the volume of namely the Madrid agreement pro- al trade-mark registration system protection has been requested trade marks to be searched against tocol as administered by World is useful for registering trade- (whether in the international and because broad statements of Intellectual Property Organi- mark rights in a wide variety of application or subsequently). goods and services will make it sation (WIPO) from Geneva.1 countries in a simple and more Each designated country has hard to analyse the results. It will The text of the protocol was cost effective manner than filing the right to refuse protection, be very difficult to ascertain the adopted at Madrid on 28 June national applications. within the time limits specified bona fides of an application or to 1989 and it is the latest in a series in the protocol. Ireland has otherwise ascertain the trade- of efforts since the 1890s to set up The main facts specified an 18-month rejec- mark owner’s intention to use the an effective and popular system • In order to file an internation- tion period mark. for the international registration al application, the person in • The registration period of an Neither of these concerns are of trade marks. The Madrid agree- whose name the basic applica- international registration is ten insurmountable. As the Madrid ment itself was signed at the diplo- tion or registration stands years. It may be renewed for protocol will ultimately replace the matic conference convened in must be a national of the con- further periods of ten years on Madrid agreement and is expected Madrid on 14 April 1891. tracting state in which such payment of the prescribed fees. to become a truly international However, the Madrid agreement application was filed or regis- centralised application and regis- failed to attract widespread mem- tration was obtained, or be The advantages of Madrid pro- tration system, not acceding it bership, notably the United domiciled, or have a real and tocol membership would leave Ireland isolated and States, United Kingdom and effective industrial or commer- • Simple and flexible system out of step with international Japan. Therefore in order to cial establishment in the con- • One application/registration developments. Ireland’s eventual attract a larger membership, tracting state instead of several ratification of the Madrid protocol WIPO sought to devise a new • An application for internation- • Subsequent designation of sta- will save Irish business enterprises system for the international regis- al registration must designate tus. For example, it is possible time and expense by providing a tration of trademarks – the one or more countries in to extend the international reg- more streamlined system for reg- Madrid protocol. The Madrid proto- which the mark may be pro- istration to include countries as istration and maintaining their col is a convention that parallels tected. Further countries can they become members of the trade marks internationally. G the Madrid agreement but remains be designated subsequently. A Madrid protocol independent of the agreement. It country may be designated • Unlike other systems of inter- Gary Rice is a partner and Yvonne will ultimately replace the Madrid only if that country and the national trademark registration, Kelly is an apprentice solicitor with agreement and is expected in time country of origin are both such as the Community Trade the Dublin law firm Beauchamps. to become a truly international party to the protocol treaty Mark, refusal in a designated centralised trade-mark applica- • The international application country will only affect that Footnote tion system. must be presented on the form country and will not prevent 1 The Community Trade Mark is Ireland’s ratification of the prescribed by the regulations. registration in other territories. administered by the Office for Madrid protocol has two conse- The office of origin must cer- Harmonisation of the Internal quences. The first is that appli- tify that the particulars appear- Ratification of the Madrid protocol Market from Alicante, Spain, cants can register trade marks in a ing in the international appli- does however also raise a number and has been in force since 1996. number of countries from cation correspond to the par- of concerns. The first is the It is ‘unitary’, which means that Ireland. Secondly, applicants in ticulars, at the time of the cer- administrative burden to be borne CTM registrations are valid for other Madrid protocol countries tification, in the national appli- by the local patents office. It is the whole European Union. EXPERTS COMPANYCOMPANY FORMATIONFORMATION FAST • FRIENDLY • EFFICIENT • COMPETITIVE PRICES • MEMBERS OF EXPRESS SERVICE PHONE CARMEL OR RITA ON 01 672 4914/6 (FAX: 672 4915) or e-mail: [email protected]

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55 Law Society Gazette December 2001 Briefing Recent developments in European law BRUSSELS CONVENTION seriously injured. His action against the origin of the funds and had per- LITIGATION First Choice was contractual. He suaded Sayo to invest them in a Co-defendants argued that they were liable for his project to develop a golf course in Taking of evidence Article 6(1) of the Brussels conven- injuries under an express contractual Gran Canaria. It transpired that this In June 2001, a regulation was tion provides that co-defendants may term and that there was an implied golf course project did not exist and adopted on co-operation between be sued in the domicile of any one of term that the resort would be safe of that these individuals were trying to national courts in the taking of evi- them. Case189/87 Kalfelis v hazards and that security staff would defraud Sayo and his Japanese dence in civil and commercial pro- Schröder ([1988] ECR 5565, be properly trained and supervised. associates. Casio argued that Sayo ceedings. This will come into effect affirmed in subsequent cases) His claim against Aparta was in tort and his associates were construc- from 1 July 2004 and will apply established that the claims must be for negligence in relation to the tive trustees of its money. As between all the member states of so closely connected that it is expe- behaviour of its staff and the lack of Kaiser, Patel and others had also the EU with the exception of dient to hear and determine them lighting, fencing and warning. Lloyd been informed that the funds were Denmark. It will allow a civil court in together to avoid the risk of irrecon- LJ for the English Court of Appeal Casio’s, it argued that they were one state to request a court in cilable judgments resulting from sep- was inclined to hold that there was a also constructive trustees owing another state to take evidence in its arate proceedings. However, matters ‘substantial connection’ between the Casio a fiduciary duty. Tuckey LJ state. Such a request is to be made were somewhat complicated by a two actions, sufficient for article held that a constructive trust claim the in official language of the place judgment of the ECJ in C-51/97 6(1). Apart from the existence of the based upon dishonest assistance is where the evidence is to be taken Reunion Européenne SA v contract, the facts on which the within the scope of article 5(3). He and in a prescribed form. Any appro- Spliethoff’s Bevrachtingskantoor BV claims were based were identical. held that the harmful event took priate means can be used for the and the Master of the Vessel However, given the decision in place in England. The act of dishon- transmission of these requests. Alblasgracht V002 ([1998] ECR I- Reunion Européenne, the court est assistance was the use of the The requested court is to acknowl- 6511). Much of the case turned on decided to refer the matter to the account in England and it was thus edge the request and is given 90 the application of article 5(3) to ECJ. The Court of Appeal has asked the place of the event giving rise to days to execute the request. Article international transportation. the ECJ to rule on whether in a claim damage. The place where damage 10 provides that a videoconference However, one of the questions against one defendant in contract, a occurred was outside the jurisdic- or teleconference can be request- referred to the ECJ concerned the second defendant against whom tion. ed. There are a number of grounds application of article 6(1). In its judg- there is a claim in tort can be joined for refusing a request where a per- ment, it considered the nature of the to the action, where there is a con- CONTRACT son claims the right to refuse to connection required for article 6(1). nection between the two claims of give evidence or is prohibited from It held that ‘two claims in one action such a nature that it is expedient to The European Commission has doing so by the law of the request- for compensation, directed against hear the claims together in order to adopted a communication launching ed state or where the request falls different defendants and based in avoid the risk or irreconcilable judg- a broad debate on the problems fac- outside the scope of the regulation. one instance on contractual liability ments resulting from separate pro- ing the internal market, given the Article 17 allows a court in one and in the other on liability in tort or ceedings. divergences between national laws state to take evidence directly in delict cannot be regarded as con- of contract. The communication another state on request to the cen- nected’. This judgment is troubling Tor t focuses on the need for EU action in tral body in the state concerned. as, if followed, would appear to con- Recently the question of classifica- this area. It sets out four different The parties to the proceedings may tradict decisions of English and Irish tion of a constructive trust claim options for improvement and is be requested to bear the fees of courts applying Kalfelis, where these based on dishonest assistance has intended as the basis for a broad experts and interpreters and other courts allowed claims in contract and arisen in the context of the Brussels consultation of business interests, specified costs. To ensure proper tort to be heard by the one court. convention. Did it fall within the spe- legal practitioners, consumer groups implementation of the regulation, The matter has arisen squarely cial jurisdictional rules for torts, and academics. The four proposed the commission is required to pre- before the English courts and been delicts and quasi delicts (article options are: pare and maintain a manual setting referred to the ECJ for a final inter- 5.3)? In such a case, the courts of • Let market forces deal with any out: pretative ruling in Watson v First the place where the harmful event problems that may exist • The courts on a state by state Choice Holidays and Flights Limited occurred can take jurisdiction. In • Identify the elements common to basis which will undertake the and Anor, 25 June 2001, CA (unre- Casio Computer Co Ltd v Sayo and most national contract law rules execution of such requests ported). An English plaintiff took an Ors, 11 April 2001, CA (unreported), and use them as a guideline for • The central body in each state action against an English travel com- the English Court of Appeal consid- national legislations when draw- responsible for supplying informa- pany, First Choice, and joined a ered the matter. The case was a ing up legislation or for use by tion, resolving difficulties and Spanish hotel company, Aparta, as complex one involving the fraudulent national courts and arbitrators in dealing with applications under an additional defendant. Aparta transfer of funds. Sayo was a man- their decisions article 17 applied to have the proceedings ager of Casio, a Japanese company. • Review and amend all relevant • The technical means available by against it set aside on the basis that With the assistance of others in legislation to simplify it and courts for receiving requests the English courts had not jurisdic- Japan he got control of US$30 mil- improve its quality under the regulation tion to hear the claim against it. The lion of Casio’s funds, which he was •Create a new legal instrument at • The languages in which requests plaintiff had been on a package holi- to invest on company purposes. EU level in the area of contract. may be accepted in various states day organised by First Choice. He US$25 million was lodged to an • Any bilateral arrangements facili- stayed in a hotel complex owned by account in London, controlled by an The consultation period is to last tating the taking of evidence Aparta. One night he visited another Isle of Man company, OVM. The until 15 October 2001. Given the rad- which are compatible with the reg- part of the resort at the invitation of president of OVM was a Mr Kaiser. ical nature of the communication and ulation. another guest. He was denied This money was subsequently trans- its potential impact on national law, access and was chased away by a ferred to an account in the Channel the consultation period may be As between member states, the reg- security guard. He ran away, jumped Islands in the name of another Isle extended. The European Council at ulation supersedes any other bilater- over a low wall, not observing a drop of Man company of which a Ms Patel its meeting in Laeken is expected to al or multilateral agreement between of some 20 metres on the other side was a director. Kaiser, Patel and oth- take a decision as to the follow up of these states relating to the subject of the wall to a road. He fell and was ers appear to have been aware of the communication. matter of the regulation. G

56 Law Society Gazette December 2001 People and places

Law Society entertains the top brass

Seated (left to right) then president Ward McEllin, Tánaiste and Seated (left to right) Taoiseach Bertie Ahern, then president Ward Minister for Enterprise, Trade and Employment Mary Harney, and McEllin, and Minister for Local, Community and Family Affairs Dermot then senior vice-president Elma Lynch. Standing are (left to right) Ahern. Standing are (left to right) then senior vice-president Elma deputy director general Mary Keane, then junior vice-president Michael Lynch, registrar of solicitors PJ Connolly, the chairman of the Irvine, director general Ken Murphy and special advisor delegation committee David Martin, director general Ken Murphy to the tánaiste, John O’Hara and deputy director general Mary Keane

Charity case The Galway Bar Association and the Western Bar raised £23,000 for the Burren Chernobyl Project in a charity run from Clifden to Galway on 30 June. Pictured at the presentation of the cheque are (left to right) Lots of competition Rosemary Finlay, the organiser of the event, Theresa Flynn of the Burren Pictured at the recent launch of Competition law and practice are the Chernobyl Project, Mike Ryan, president of the Galway Bar Association, author Vincent Power, partner and director of A&L Goodbody’s EU and Brother Liam O’Meara with Sergi from Belarus, Judge Moran, Geraldine competition law unit, Tánaiste Mary Harney and Frank Riordan, senior Costello and Judge Harvey Kenny partner at A&L Goodbody SOLICITORS’HELPLINE The Solicitors’ Helpline is available to assist every member of the profession with any problem, whether personal or professional. The service is completely confidential and totally independent of the Law Society. 01If you require advice for284 any reason, phone: 01 284 84848484

57 Law Society Gazette December 2001 People and places

Nasty or Nice? Pictured at the recent Hibernian law journal lecture entitled ‘Post Nice or anti-Nice’ are (left to right) former attorney general John Rogers, Vincent Power, partner in A&L Goodbody, and Gráinne de Burca, Roscommon purpose professor of European law at the European University Pictured at the AGM of the Roscommon Bar Association in September are (seated, left to Institute, Florence right) Peter Jones, president of the association, Law Society Director General Ken Murphy, then president of the society Ward McEllin, Padraig Kelly and Marie Connellan. Standing are (left to right) Harry Wynne, John V Kelly, Con Harlow, Rebecca Finnerty, Alan Gannon, Terry O’Keefe, Jonathan Wynne and Gerard Gannon

Rights here, right now Pictured at the recent conference organised by the Law Society’s Employment and Equality Law Committee in association with the National Disability Authority, entitled Legal and social rights of the 50 years in practice disabled: implications of the equality legislation, are At a dinner hosted recently by the Mayo Bar Association for a number of solicitors who have (left to right) Brian Miller of the National Disability been in practice in the county for 50 years were (seated) Mayo bar president James Cahill Authority, Minister of State Mary Wallace, Judge and then president of the Law Society Ward McEllin, and (standing, left to right) Rosemary Declan Budd, president of the Law Reform Loftus, Don Shiels, Patrick U Murphy, Mary King, John Gordon, Kevin Loftus, Judge Carroll Commission, and Brian Sheridan of the society’s Moran, and county registrar Fintan Murphy Employment and Equality Law Committee

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58 Law Society Gazette December 2001 People and places JUSTICE MEDIA AWARDS 2001

Cyclical trends Joe Little Carol Coulter Vincent Crowley of the Dublin law firm Collins Crowley & Co, Ercus Stewart SC, and Justin McKenna of Dublin firm Partners at Law pictured at a charity cycling event for Goal

Roisin Boyd and Ryan Tubridy Jerome Reilly

Pictured with Law Society Director General Ken Murphy and immediate past president Ward McEllin at the Justice Media Awards ceremony in Blackhall Place in November were: RTÉ’s Joe Little, who won the over- Every day I write the book: all award and also the television category; Carol Coulter of the Irish Times who won the daily newspaper Gazette advertising manager Seán category; Roisin Boyd and Ryan Tubridy of RTÉ’s Five-Seven Live who won the radio category; and Jerome Ó hOisín presents the all-new Reilly of the Sunday Independent who took the honours in the non-daily newspaper category Gazette yearbook and diary to Law Society President Elma Lynch

Southern comfort The Law Society’s then president Ward McEllin and director general Ken Murphy flank Patrick Casey, president of the Southern Law Association, at the association’s AGM in Cork last month

59 Law Society Gazette December 2001 Apprentices’ page

SADSI

Solicitors Apprentices Debating Society of Ireland It’s the end of an era

ubject to the agreement of to bring an end to this medieval One of the proposed ‘trainee solicitors’. It is hoped Sthe minister for justice, the terminology has finally been amendments to the Solicitors Acts that the new classification will terms ‘master’ and ‘apprentice’ ratified by the Education provides for former ‘masters’ to reflect a more egalitarian and are to become labels of the Committee of the Law Society be known as ‘training solicitors’ 21st century working past. A submission by SADSI and by Law Society Council. and ‘apprentices’ to be known as environment.

Code of Three month conduct credit The Education Committee of s recommended by the Law Society has ASADSI, a code of extended the allowance on conduct for training and the two-year apprenticeship trainee solicitors can now be period to four months (a introduced. The Education change from three months) in Committee of the Law respect of the periods Society, following an apprentices may have spent amendment to regulation 4 in a solicitor’s office before of the 1997 Solicitors Acts Pictured at the training session in employment and equality law in the commencement of the regulations, now has the the Labour Court on 8 October are Ann Brady, Joe Power, Paul PPC1. power to prescribe this. This Lamon, Michael Considine and Colm McKeown. Kieran O’Mara of is mirrored in the indentures O’Mara Geraghty McCourt, Madeline Reid of the Office of the Director of Equality Investigations, and Hugh O’Neill, registrar of apprenticeship, where of the Labour Court, presided over the event, and we are very both the training and trainee grateful for their assistance. Many thanks also to Terence Indentures of solicitors covenant to abide McCrann of McCann Fitzgerald apprenticeship by the terms of the code of conduct. rainee solicitors wishing to Tchange apprenticeships should be aware that a specific John Edmund form of assignment, form 5, has been introduced in the Doyle Memorial 2002 Solicitors Acts regulations, Debate which includes a provision for any conditions preceding the Commiserations to change that may be directed by SADSI’s Ronan Fehily and the Education Committee. Willy Fogarty, who were beaten by the King’s Inns team in arguing the motion ‘That this house would Bowing out elect its judges’. We look his is the final Gazette page forward to a less formal re- Tof the SADSI committee match in the near future! for 2001. I would like to take Anyone without prior this opportunity, as auditor, to experience who is thank all the committee for On a high note interested in participating The February 2000 PPC2 ball was held on 6 September in the their hard work and relentless in a maiden speakers Shelbourne Hotel. Fine wining and dining were the order of the night, good humour during the year. debate should contact followed by a spot prize bonanza, and dancing ’til the wee hours. The I would also like to thank the night was a resounding success and rounded the course off on a high SADSI’s debating co- Law Society staff and, note. The organising committee (pictured, left to right) were Alison ordinator, Louise Rouse, Hodge, Madeleina Loughrey-Grant, Shane Bourke, and Mary Kelleher, all particularly, TP Kennedy and tel: 01 618 0000. of McCann Fitzgerald. They would like to thank the Law Society, Ulster Michael Peart for their Bank and Rochford Brady for their generous support courtesy and generosity.

60 Law Society Gazette December 2001 Professional information

LOST LAND situate in the Townland of CERTIFICATES Darcystown and Barony of LawSociety Balrothery East; Co Dublin Gazette Registration of Title Act, 1964 Regd owner: Kathleen Russell; Folio: An application has been received from DN99989F; Lands: Property in the registered owners mentioned in the Townland of Coolatrath East ADVERTISING RATES the schedule hereto for the issue of a and Barony of Nethercross area; land certificate as stated to have been Co Dublin Advertising rates in the Professional information section are as follows: lost or inadvertently destroyed. A new Regd owner: Dorothy Keys; Folio: ¥ Lost land certificates Ð £30 plus 20% VAT (£36) certificate will be issued unless notifi- DN74236L; Lands: Property ¥ Wills Ð £50 plus 20% VAT (£60) cation is received in the registry with- known as no 7 Orchard Terrace, ¥ Lost title deeds Ð £50 plus 20% VAT (£60) in 28 days from the date of publication upper Grangegorman, situate in ¥ Employment miscellaneous Ð £30 plus 20% VAT (£36) of this notice that the original certifi- the parish of Grangegorman and cate is in existence and in the custody north-central district; Co Dublin HIGHLIGHT YOUR ADVERTISEMENT BY PUTTING A BOX AROUND IT Ð £25 EXTRA of some person other than the regis- Regd owner: Niall Glynn and Breda All advertisements must be paid for prior to publication. Deadline for tered owner. Any such notification Glynn, 26 Arnold Park, January/February Gazette: 18 January 2002. For further information, contact should state the grounds on which the Glenageary, Folio: 97026F; Co Catherine Kearney or Nicola Crampton on 01 672 4828 (fax 01 672 4877) certificate is being held. Dublin (Register of Titles), Central Office, Land Regd owner: Gregory Geoghegan; Registry, Chancery Street, Dublin Folio: DN77595L; Lands: and 16 perches; Co Galway Regd owner: Thomas Nethercott (Published 7 December 2001) Property being Unit 21, First Regd owner: Francis and Mary and Teresa Nethercott Floor, Palmerstown Centre; Co Dorgan; Folio: 11779; Lands: (deceased); Folio: 14145; Lands: Regd owner: John Brady; Folio: Dublin To wnland of Kinard West and Do Townland of Ballybrown and 5047F; Lands: Aghnadaragan; Regd owner: Francis and Mary and Barony of Corkaguiny and Do; Barony of Pubblebrien; Co Area: 0.908 acres; Co Cavan Melia; Folio: DN31117F; Lands: Co Kerry Limerick Regd owner: Patrick Kilkelly; Folio: Property situate in the Townland Regd owner: David Joy (deceased); Regd owner: John P Ryan 1496; Lands: Townland of Rossalia of Clonsilla and Barony of Folio: 13866; Lands: Townland of (deceased); Folio: 2135; Lands: and Corranroo and Barony of Castleknock; Co Dublin Gortnaskarry (part) and Barony of Townland of Crehaun and Burren; Area: 7.6105 hectares and Regd owner: Sean Keeley; Folio: Dunkerron North; Area: 53.38 Barony of Coonagh; Co 8.4377 hectares; Co Clare DN43201F; Lands: Property situ- acres; Co Kerry Limerick Regd owner: Edmond Lyons; Folio: ate in the Townland of Regd owner: Thomas B Fitzgerald; Regd owner: Kathleen McNamara; 768F; Lands: Known as the Taylorsgrange and Barony of Folio: 29448; Lands: Townland of Folio: 2744L; Lands: Townland To wnland of Monfieldstown situate Rathdown; Co Dublin Banna Mountain in Barony of of Shannabooly and Barony of in the Barony of Cork; Co Cork Regd owner: Mary Bonnie Cummins; Banna Mountain; Co Kerry North Liberties; Co Limerick Regd owner: Denis Calnan (deceased) Folio: DN125328F; Lands: Regd owner: Leaf Ireland Limited; Regd owner: Marie Copues; Folio: and Veronica Calnan; Folio: 45899; Property known as 17 Balkill Park, Folio: 7559; Lands: Townland of 4427F; Lands: Townland of Lands: Known as the Townland of Howth, situate to the west of Kilcock and Barony of Ikeathy and Askeaton and Barony of Connello Grillagh situate in the Barony of Barglass Road; Co Dublin Oughterany; Co Kildare Lower; Area: 1.3 acres; Co Carbery East (east division) and the Regd owner: Kevin Peakin; Folio: Regd owner: Liam Butler; Folio: Limerick County Cork; Co Cork DN1048L; Lands: Property 11990; Lands: Carmagh (parts); Regd owner: Thomas Croghan; Regd owner: Neil Durning, Peter known as 52 Mount Prospect Area: 7.343 acres; Co Leitrim Folio: 8502; Lands: Cloondara; Durning, Patricia Kilgour and Avenue situate on the north side of Anne Coates; Folio: 29825; Lands: the said avenue in the parish and Aghavannen Near; Area: 0.3096 district of Clontarf; Co Dublin hectares; Co Donegal. As tenants Regd owner: Hibernian Trustee NORTHERN DUBLIN SOLICITORS’ in common of a one quarter share Company Limited; Folio: IRELAND PRACTICE OFFERS each DN4182; Lands: Property situate AGENCY WORK Regd owner: William Nicholl; Folio: on the north and south sides of SOLICITORS 9954, 9963; Lands: Ballynahone Crumlin Road, north and south IN NORTHERN We will engage in, (part); Area: 81.315 acres; Co sides of Raphoe Road, west side of IRELAND Donegal Windmill Road in the parish and and advise on, Regd owner: The County Council of district of Crumlin; Co Dublin all Northern Ireland- * All legal work undertaken the County of Dublin; Folio: Regd owner: James McDermott; related matters, on an agency basis DN912; Lands: Property situate in Folio: DN938; Lands: Property particularly personal * All communications to clients the Townlands of Clondalkin and situate in the Townland of injury litigation. through instructing solicitors * Consultations in Dublin if required Yellowmeadows and Barony of Borranstown and Barony of Consultations where Contact: Séamus Connolly Uppercross; Co Dublin Balrothery West; Co Dublin. convenient. Moran & Ryan, Solicitors, Regd owner: Shinko Microelectronics Regd owner: Enzo Farinello; Folio: Fee sharing Arran House, Ireland Limited; Folio: DN5666F; Lands: Property situ- envisaged. 35/36 Arran Quay, Dublin 7. DN38806F; Lands: Property situ- ate in the Townland of Knocklyon ate to the east side of Blessington and Barony of Uppercross; Co OLIVER M LOUGHRAN Tel: (01) 872 5622 road in the parish and town of Dublin Fax: (01) 872 5404 Tallaght, property situate in the Regd owner: Enzo (Orse Vincenzo) & COMPANY Townland of Killinarden and Farinella; Folio: DN36763L; 9 HOLMVIEW TERRACE, e-mail: [email protected] Barony of Uppercross and property Lands: Property situate in the OMAGH, CO TYRONE or Bank Building, Hill Street situate to the south of the Tallaght Townland of Knocklyon and Phone (004428) 8224 1530 Newry, County Down. bypass in the town of Tallaght; Co Barony of Uppercross; Co Dublin Fax: (004428) 8224 9865 Tel: (0801693) 65311 Fax: (0801693) 62096 Dublin Regd owner: John William Burke; e-mail: E-mail: [email protected] Regd owner: The County Council of Folio: 10221; Lands: Townland of [email protected] the County of Dublin; Folio: Rinville East and Barony of DN8763; Lands: a plot of ground Dunkellin; Area: 33 acres, 3 roods

61 Law Society Gazette December 2001 Professional information

Michael Sheil & Associates, Mescal, Jane, of The Weirs, Tuam, Solicitors, Temple Court, Temple Co Galway and formerly of Killernan, Road, Blackrock, County Dublin Dunsallagh, Ennis, Co Clare. Would any person having knowledge of a will Kelly, Hugh F (deceased), late of 28 made by the above-named deceased Oliver Plunkett Avenue, Dun who died on 18 May 1999, please Laoghaire, Co Dublin. Would any contact TA O’Donoghue & Son, WILLSEARCH MISSING person having knowledge of a will Solicitors, Tuam, Co Galway, tel: 093 made by the above-named deceased 24414 who died on 31 July 2001, please con- HEIRS TRACED tact Maguire McNeice & Co, Reynolds, Thomas (deceased), late of Solicitors , 2 Main Street, Bray, Co Northbrook Hotel, Northbrook Road, Wicklow, tel: 01 286 2399, fax: 01 Ranelagh, Dublin 6 and 187 Clonliffe 282 9428 Road, Drumcondra, Dublin 3. Would Title Research any person having knowledge of a will Kelly, William, 32 Hazelwood executed by the above-named +44 (0)20 7549 0900 Avenue Bay Estate, Dundalk, Co deceased who died on 15 April 2001, Fax: +44 (0)20 7549 0949 • DX: 53347 Clerkenwell Louth, and formerly of Clondra, Co please contact Anne Greene, Solicitor, Email: [email protected] • www.title-research.com Longford. Would any person having 58 The Palms, Roebuck Road, Dublin notice of a will being made by the 14, tel & fax: 01 283 1484 Area: 19.1937; Co Longford WILLS above named, please contact Regd owner: Patricia Faughey; Folio: Connellan Solicitors, 3 Church Seery, Francis Joseph (Frank) 6906; Lands: Edenagrena; Area: Boylan, Maureen, 19 Lawnswood Street, Longford tel: 043 46440, fax: (deceased), late of Newforest, 0.475 hectares; Co Louth Park, Stillorgan, Co Dublin. Would 043 46020 Kilbeggan, Co Westmeath, formerly Regd owner: Thomas Grimes; Folio: any person having knowledge of a will of 7 Riverview Cottages, Julianstown, 17903; Lands: Townland of being made by the above named, Martin, John (deceased), late of 6 Drogheda, Co Meath, and 3 Drumneen and Barony of Mayo; please contact Bergin, Burke & Ryan, Bloomfield Avenue, South Circular Hampton Place, Balbriggan, Co Area: 20.902 hectares; Co Mayo Solicitors, 63 Mary Street, Dublin 1, Road, Dublin 8. Would any person Dublin. Would any person having Regd owner: Margaret Bye; Folio: tel: 01 878 0320, fax: 01 878 0233 having knowledge of a will made by knowledge of a will made by the 3047, 17963; Lands: Donore and the above-named deceased please above-named deceased who died on 7 Lionsden; Area: 78.9 acres and Carmody, Patrick (deceased), late of contact Barry Healy & Company, September 2001, please contact NJ 9.2625 acres; Co Meath Cloughkeating, Patrickswell, Co Solicitors, ‘Laurel Lodge’, Hillside, Downes & Co, Solicitors, Mullingar, Regd owner: John Murray; Folio: Limerick. Would any person having Monaghan, tel: 047 71556, fax: 047 Co Westmeath, tel: 044 48646, fax: 20551; Lands: Clonycavan; Co knowledge of a will executed by the 71557 044 43447 Meath above-named deceased who died on 8 Regd owner: Bridget McBennett; February 2001, please contact Folio: 19096; Lands: Aghakista; Culhane, Judge & Co Solicitors, The Co Monaghan Square, Newcastle West, Co SOLICITOR URGENTLY REQUIRED Regd owners: Patrick Joseph Bell and Limerick, tel: 069 62969, fax: 069 Florence Bell; Folio: 6468F; 62396 Overseas Contract Lands: Srah and Barony of Ballycorran; Co Offaly Daly, Bill (otherwise known as Established general practice in the Turks & Caicos Islands seeks Regd owner: Patrick Joseph Moore William), late of 32 Homefarm Road, solicitor for immediate position. Minimum requirement – 5 years (deceased); Folio: 7248; Lands: Drumcondra, Dublin 9. Would any PQE. Details of salary, etc. available on request. Please reply in Moyclare and Barony of person having knowledge of a will strictest confidence to [email protected] or to: Garrycastle; Co Offaly executed by the above-named Regd owner: Comhlucht Siuicre deceased who died on 12 March 1992, FINBAR F DEMPSEY & COMPANY Éireann Teoranta; Folio: 18952 please contact Doyle Hanlon, and 3782F; Lands: Commons and Solicitors, 6 Richmond Road, PO Box 70 Ballycarrane and Barony of Drumcondra, Dublin 3, tel: 01 836 Grand Turk Eliogarty; Co Tipperary 9300, fax: 01 836 7474, e-mail: jere- Turks & Caicos Islands Regd owner: Liam Dwyer (deceased); [email protected] Ph: 649-946-2245. Fax: 649-946-2758 Folio: 2689; Lands: Farranmac- brien and Barony of Ormond Doogan, Sheila (deceased), late of Lower; Co Tipperary Meenderrynasloe, Annagry, County Regd owner: Michael Moylan; Folio: Donegal. Would any person having 16600; Lands: Dary and Barony of any knowledge of a will executed by HIRE EXPERIENCE Ormond Lower; Co Tipperary the above-named deceased who died Regd owner: Maja Hein; Folio: 8314; on 5 October 1980, please contact I am retiring from private practice to act as a freelance Lands: Roughan and Barony of Patrick J Sweeney & Co, Solicitors, consultant solicitor. I am looking for challenging, Ormond Lower; Co Tipperary Dungloe, Co Donegal short-term and/or part-time assignments in general Regd owner: Helena Kane; Folio: practice, practice administration, or other wise, as 12926, 12927; Lands: Ranaghan; Fitzpatrick, Margorie (otherwise Area: 65.9125 acres; Co Margaret M Fitzpatrick) late of 8 required. I am totally flexible, mobile and computer Westmeath Castlecourt, Killiney Hill Road, literate. Regd owner: Reverend Martin Killiney, County Dublin and formerly Esmond Reilly Clancy, Patrick Sullivan, John of 4 The Maples, Monkstown Valley, Kilbride, James Ryan, James Monkstown, County Dublin. Would Solicitor, 4 Orchard Rise, Stamullen, County Meath. Brennan and Liam Collins; Folio: any person having knowledge of a will Telephone: 01 841 6022. Fax: 01 841 6024 6024; Lands: Carnew and Barony made by the above-named deceased Mobile: 087 256 1925. E-mail: [email protected] of Shillelagh; Co Wicklow who died 24 July 2001, please contact

62 Law Society Gazette December 2001 Professional information

Twohig, Timothy (deceased), late of Dublin-based solicitor available for premises (or any of them) are called 14 Ashe Street (formerly Mill Street), part-time position. PQE in conveyanc- EYE INJURIES AND upon to furnish evidence of title to Clonakilty, County Cork. Would any ing, family, probate, and litigation. OPHTHALMOLOGICAL the aforementioned premises to the person having knowledge of a will Reply to Box no 101 NEGLIGENCE below named within 21 days from executed by the above-named the date of this notice. deceased who died on 21 January Solicitor – very reliable. Would like to Mr Louis Clearkin ChM, FRCS, In default of any such notice 1961, please contact McCarthy & Co, hear from another solicitor with a view FRCOphth, DO, MAI, MEWI being received, Maureen Solicitors, 10 Ashe Street, Clonakilty, to partnership, Cork city or county. Consultant Ophthalmic Surgeon McElhinney intends to proceed with Co Cork, tel: 023 33348, fax: 023 Reply to Box no 102 the application before the county 33105 Experienced expert witness in registrar at the end of 21 days from Experienced locum solicitor with ophthalmological personal the date of this notice and will apply Walsh, Edmond P (Ned), late of experience in all areas of law seeks injury, medical negligence and to the county registrar for the Lower Kilmona, Grenagh, Co Cork. locum work. South Western region civil litigation County/City of Dublin for direc- Would any person having knowledge preferred. Reply to Box no 103 tions as may by appropriate on the of the whereabouts of the original will Renuntiabo, 8 Rose Mount, basis that the person or persons ben- dated 20 April 1994 or any subse- Oxton, Wirral, Merseyside, eficially entitled to the superior quent will of the above-named MISCELLANEOUS L43 5SW interest, including the freehold deceased who died on 23 April 2001, secretary: +44 (0) 151 6047047 reversion are unknown or unascer- please contact McCarthy and fax: +44 (0) 151 6047152 tained. McCarthy, Solicitors, Premier Northern Ireland solicitors provid- e-mail: [email protected] Date: 22 October 2001 House, Main Street, Ballincollig, Co ing an efficient and comprehensive Signed: John P Redmond & Company Cork, tel: 021 487 0550 legal service in all contentious/non- (solicitors for the applicant), Marshalsea contentious matters. Dublin-based Publican’s ordinary seven-day Court, 22/23 Merchant’s Quay, consultations and elsewhere. Fee licence for sale. Reply to Cornelius Dublin 8 EMPLOYMENT apportionment. ML White, Solicitors, Sheehan & Co, Solicitors, 2 Alma 43-45 Monaghan Street, Newry, Place, Monkstown, Co Dublin, tel: 01 In the matter of the Landlord and General practice: solicitor County Down, tel: 080 1693 68144, 230 3570, fax: 01 230 3573 Tenant (Ground Rents) Acts, 1967 - required, Dublin 7. Mainly for civil fax: 080 1693 60966 1994 and in the matter of the litigation (plaintiff work), also some Landlord and Tenant (Ground probate work: Newly qualified. Northern Ireland agents for all con- TITLE DEEDS Rents) (No 2) Act, 1978 and in the Woods & Company, 41 Arran Quay, tentious and non-contentious matters. matter of 149 D, E, and F North Dublin 7, contact: Godfrey Hogan, Consultation in Dublin if required. Fee James Boothman (deceased). Would Strand, Dublin: an application by tel: 01 872 2022, e-mail: sharing envisaged. Offices in Belfast, any person knowing the whereabouts David and Rita Harris [email protected] Newry and Carrickfergus. Contact of deeds to the property of the late Take notice that any person having Norville Connolly, D&E Fisher, James Boothman at 39 Whitebarn any interest in the freehold estate of Solicitor required – PQE desirable. Solicitors, 8 Trevor Hill, Newry, tel: Road, Churchtown, Dublin 14, the following property: 149 D, E, Salary commensurate with experi- 080 1693 61616, fax: 080 1693 67712 please contact Hinkson, Solicitors, and F, North Strand in the City of ence. Please reply with CV to Jim Field’s Corner, Churchtown, Dublin Dublin. Houlihan, Desmond A Houlihan & London solicitors will advise on UK 14, tel: 01 296 3211, fax: 01 296 3213 Take notice that David Harris and Son, Solicitors, Birr, Co Offaly matters and undertake agency work. All Rita Harris intend to submit an areas. Corporate/private clients. Ellis In the matter of the Landlord and application to the country registrar Part-time locum solicitor required & Fairbairn, 26 Old Brompton Road, Tenant (Ground Rents) Acts, 1967 - for approximately 12 weeks, early to South Kensington, London SW7 3DL, 1994 and in the matter of the mid January on 2/3 day week (must tel: 0044 171 589 0141, fax: 0044 171 Landlord and Tenant (Ground include Wednesdays). Experience in 225 3935 Rents) (No 2) Act, 1978: an applica- District Court, litigation and con- tion by Maureen McElhinney, for- veyancing essential. Reply in writing Northern Ireland solicitors. Will merly of 17 Moncks Place but now J. DAVID O’BRIEN to Patricia Holohan & Co, 5 The advise and undertake NI-related mat- of 45 Woodview Grove, Steeples, Timmons Hill, Dublin ters. All areas corporate/private. Blanchardstown, Dublin 15 ATTORNEY AT LAW Road, Navan, Co Meath Agency or full referral of cases as pre- Take notice that any person having 20 Vesey St, Suite 700 ferred. Consultations in Dublin or else- any interest in the freehold estate of New York, NY, 10007 Locum solicitor required for office where if required. Fee sharing envis- the following property: All that and in Naas, Co Kildare, to cover mater- aged. Donnelly Neary & Donnelly, 1 those the yard adjoining Number 10 Tel: 001212-571-6111 nity leave. Must be experienced in Downshire Road, Newry, Co Down, Leslie Buildings, formerly Leslie Fax: 001212-571-6166 conveyancing and litigation. Mid tel: 080 1693 64611, fax: 080 1693 Place, rear of Avondale Road, Email: [email protected] January 2002. Reply in writing to 67000. Contact KJ Neary Phibsborough, in the parish of Hanahoe & Hanahoe, Solicitors, 16 Grangegorman and City of Dublin, PERSONAL INJURY ACCIDENT North Main Street, Naas, Co Kildare Personal injury claims, employment, presently in the occupation of the CASES family, criminal and property law spe- lessee as tenant from the lessors and CONSTRUCTION Solicitor with PQE practising cer- cialists in England and Wales. Offices more particularly delineated and RAILROAD tificate and savvy available for locum in London (Wood Green, Camden described in the map thereof there- MARITIME position. Divorce and personal injury Town and Stratford), Birmingham and unto annexed and thereon coloured AVIATION work in Dublin area preferred, tel: 01 Cardiff. ‘No win, no fee’ available for red. CAR/BUS/TRUCK 660 5893, mobile: 087 671 3671 accident and employment claims, legal Take notice that Maureen MEMBER AMERICAN AND NEW aid for family and criminal cases. McElhinney intends to submit an YORK STATE TRIAL LAWYERS Galway solicitor is interested in Contact Levenes Solicitors at Ashley application to the country registrar ASSOCIATIONS undertaking District Court agency House, 235-239 High Road, Wood for the County/City of Dublin for Enrolled as Solicitor work in the city and surrounding Green, London N22 8HF, tel: 0044 20 the acquisition of the freehold inter- in Rep of Ireland, England areas for out-of-town solicitors. 8881 7777. Alternatively e-mail us on est in the aforesaid properties and & Wales Please reply in strictest confidence to [email protected] or visit our website any party asserting that they hold a Box no 100 at www.levenes.co.uk superior interest in the aforesaid

63 Law Society Gazette December 2001 Professional information for the County/City of Dublin for matter of the Landlord and Tenant this notice and will apply to the and James Mooney of the one part the acquisition of the freehold inter- (Ground Rent) Acts 1967-1984: county registrar for the County/City and Richard Moore of the other part est in the aforesaid properties and any notice of intention to acquire the of Dublin for directions as may be were demised unto the said Richard party asserting that they hold a supe- fee simple appropriate on the basis that the per- Moore for a term of 200 years from rior interest in the aforesaid premises To any such person or persons for son or persons beneficially entitled 16 January 1840 subject to the yearly (or any of them) are called upon to the time being entitled to the interest to the superior interest, including the rent of seven pounds and ten shillings furnish evidence of title to the afore- in the freehold estate of the follow- freehold reversion in the property, sterling and subject to the convenants mentioned premises to the below ing property: The premises known as are unknown or unascertained. and conditions on the part of the les- named within 21 days from the date 25 Leeson Park, Dublin 4 in the Date: 6 November 2001 see therein contained. of this notice. County of the City of Dublin. Signed: A&L Goodbody (solicitors for the Take notice that Cathal McHugh, In default of any such notice being Take notice that the executors of applicant), International Financial Eamonn McHugh and Martin received, David Harris and Rita the estate of Miss Maeve Molloy, Services Centre, North Wall Quay, Kinsella intend to submit an applica- Harris intend to proceed with the deceased, being persons entitled Dublin 1 tion to the country registrar for the application before the county regis- under the provisions of sections 9 County/City of Dublin at Áras Uí trar at the end of 21 days from the and 10 of the Landlord and Tenant In the matter of the Landlord and Dhálaigh, Inns Quay, Dublin 7, for date of this notice and will apply to (Ground Rents) (No 2) Act, 1978 Tenant (Ground Rents) Acts, 1967 - the acquisition of the freehold interest the county registrar for the intend to submit an application to 1994 and in the matter of the in the aforesaid property and any County/City of Dublin for directions the county registrar for the Landlord and Tenant (Ground party asserting that they hold a supe- as may by appropriate on the basis County/City of Dublin for the acqui- Rents) Act, 1978 and in the matter rior interest in the aforesaid property that the person or persons beneficial- sition of the freehold interest in the of purchase of freehold estate of are called upon to furnish evidence of ly entitled to the superior interest, aforesaid property and any party property situate at 4 Fairview, title to the aforementioned premises including the freehold reversion, are asserting that they hold a superior Clontarf, Dublin 3: an application to the below named within 21 days unknown or unascertained. interest in the aforesaid property (or by Cathal McHugh, Eamonn from the date of this notice. Date: 24 October 2001 any of them) are called upon to fur- McHugh and Martin Kinsella trad- In default of any such notice being Signed: Kevin Gaffney of Gaffney nish evidence of title to the afore- ing as McHugh Kinsella & Co, received, Cathal McHugh, Eamonn Halligan & Co (solicitors for the appli- mentioned premises to the below Accountants, Garadice House, 3-4 McHugh and Martin Kinsella intend cant), Artane Roundabout, Malahide named within 21 days from the date Fairview, Clontarf, Dublin 3 to proceed with the application before Road, Artane, Dublin 5 of this notice. Take notice that any person having the county registrar at the end of 21 In default of any such notice being an interest in the freehold estate of days from the date of this notice and In the matter of the Landlord and received, the executors of the estate the property known as 4 Fairview, will apply to the county registrar for Tenant (Ground Rents) Acts, 1967 - of Miss Maeve Molloy, deceased, Clontarf, Dublin 3, held under an the County/City of Dublin for direc- 1994 and in the matter of the intend to proceed with the applica- indenture of lease dated 15 July 1839 tions as may by appropriate on the Landlord and Tenant (Ground tion before the county registrar at and made between Jane Mooney, basis that the person or persons bene- Rents) (No 2) Act, 1978 and in the the end of 21 days from the date of Philip Mooney, Elizabeth Mooney ficially entitled to the superior inter- est, including the freehold reversion, are unknown or unascertained. Date: 9 November 2001 LAND REGISTRY Signed: Sean Meaney & Company, Cork Road, Waterford Solicitors, Riversdale House, 139 Lower Drumcondra Road, Dublin 9 The Irish Legal Recruitment Specialists

TO WHOM IT MAY CONCERN www.benasso.com In the matter of the Landlord and Tenant (Ground Rents) Acts, 1967 - Re: Estate of Patrick Daly, deceased Benson & Associates 1989: notice of intention to acquire and Re. Lands of Curraghverara, County Limerick. is a niche consultancy, the fee simple All that and those the dwellinghouse Application for first registration by John Reardon specialising in the Reference No. P4242/98 and garden situate at Upper Main recruitment of high Street, Borrisoleigh and County of calibre lawyers for Tipperary in the possession of Maeve TAKE NOTICE that John Reardon of Baskethill, Bane and Patrick Bane, held under a Pallasgreen, County Limerick has applied to be registered private practice, yearly tenancy at a yearly rent of as owner in fee simple of part of the Townland of commerce and £2.50. Curraghverara in the Barony of Clanwilliam County of industry. Take notice that we, Maeve Bane Limerick containing 3.84 hectares more particularly shown and Patrick Bane, both of Upper on the map lodged with the application and which may be Main Street, Borrisoleigh, Thurles, For information on the Co Tipperary, being persons whom inspected in this office. services we provide as well we believe to be entitled under sec- Any objection to such registration must be filed in writ- as current vacancies, please tion 3 of the Landlord and Tenant ing in this office and duly verified within one calendar visit our website or contact (Ground Rents) Act, 1967, propose to month of the date of publication of this notice. Michael Benson (BCL) or purchase the fee simple in the land and premises described in paragraph In the absence of a valid objection being received within Annaleen Sharkey (LLB) in one. that time registration will proceed. strictest confidence, at: And further take notice that such Dated the 30th day of November, 2001. application shall be made before the Brian Kelly Carmichael House, county registrar on 21 January 2002 Examiner of Titles 60 Lower Baggot Street, at Clonmel Courthouse, Clonmel, Co Land Registry Dublin 2, Ireland Tipperary. T +353 (0) 1 670 3997 Date: 21 November 2001 Cork Road F +353 (0) 1 670 3998 Signed: James J Kelly & Son (solicitors E [email protected] Waterford. for the applicants), Patrick Street, Templemore, Co Tipperary

64 Law Society Gazette December 2001