Contents GazetteLawSociety

Regulars Cover Story Another brick in the wall? President’s message 3 14 For a long time the Irish state behaved as if handicapped children needed no education, but the recent High Court ruling in the News 5 Sinnott case left no doubt about every individual’s constitutional rights in this area. And a proposed appeals system for parents who Letters 8 object to school board decisions could see families turning up at Viewpoint 11 hearings with legal representation in tow. Barry O’Halloran reports Tech trends 30 Briefing 42 Much ado about nothing Council reports 42 18 When does an individual’s day in court con- stitute abuse of the litigation process? And Committee what should lawyers do to defend against reports 44 – and avoid complicity in – such abuse? Practice notes 47 Dessie Shiels highlights one of the haz- Personal injury ards of our litigious society judgments 49 FirstLaw update 52 Live and let die Eurlegal 57 26 Doctors face tough ethical questions when mak- People and ing ‘end-of-life’ decisions for terminally-ill patients. places 63 The legal aspects of this dilemma are also thorny but, as Kieran Doran argues, American precedents for durable powers of attorney Apprentices’ page 66 and living wills could help clarify the position in Ireland and the UK

Professional information 67 Historic day for the solicitors’ profession Cross-examination 72 33 Three years and £5 million pounds later, the Law Society’s new Education Centre is now open for business. In this special feature, we focus on last month’s official opening by President Mary COVER PHOTO BY [email protected]. OUR THANKS TO THE IRISH McAleese WHEELCHAIR ASSOCIATION FOR THE USE OF THE CHAIR

Editor: Conal O’Boyle MA. Assistant Editor: Maria Behan. Designer: Nuala Redmond. Editorial Secretaries: Catherine Kearney, Louise Rose. Advertising: Seán Ó hOisín, 10 Arran Road, Dublin 9, tel/fax: 837 5018, mobile: 086 8117116, e-mail: [email protected]. Printing: Turners Printing Company Ltd, Longford. Editorial Board: Dr Eamonn Hall (Chairman), Conal O’Boyle (Secretary), Mary Keane, Pat Igoe, Ken Murphy, Michael V O’Mahony, Vincent Power

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 4801. Volume 94, number 9 E-mail: [email protected] Law Society website: www.lawsociety.ie Subscriptions: £45

1 Law Society Gazette November 2000 rrr The Ideal Christmas Gift

Leading Cases of the Twentieth Century Leading Cases of the Twentieth Century is a unique It is the ideal present for anyone with an interest in collection of cases that takes you on a journey the law. though the past 100 years. The selected cases are analysed by experts in the relevant fields. Included Leading Cases of the Twentieth Century: are the old and the new, those from home and • Features significant contribution by distinguished abroad, together with the familiar and the unexpect- authors ed. •Offers a unique insight into the most influential cases Leading Cases of the Twentieth Century is the ideal of the 20th century gift this Christmas. Hand-tooled by a master crafts- man this exquisitely bound book is a beautiful addi- • Shows how these influential cases have impact- tion to the library of a friend or colleague this ed on law Christmas. and how the impact will continue into the new mil- lennium As the new century progresses why not take this •Is a fascinating and stimulating collection of opportunity to commemorate the 20th for some one cases special by presenting them with this elegant gift - certain to endure and be appreciated for many Price: £98.00 years to come. ISBN: 1-85800-208-7

43 Fitzwilliam Place, Dublin 2, Ireland Tel: (01) 662 5301 Fax: (01) 662 5302 DX: 109032 Fitzwilliam Email: [email protected] Web: www.roundhall.ie President’s message

The final whistle

he best things come in pairs, they say, and wisdom and experience so it was the case last month. First we had with us: attorney general the official opening of our new Education Michael McDowell, Centre by President Mary McAleese (and Gerard Hogan SC, T you’ll find a photo-record of that event solicitor Michael Farrell, elsewhere in these pages). Then we ran a most suc- Justices Adrian cessful conference on incorporating the European con- Hardiman, John vention on human rights into Irish law. This was the Hedigan and Donal Barrington, Lord Hope of first such conference in this jurisdiction on an issue Craighead, Anna Austin, Professor Bruce Dickson, that is going to impinge on every area of law and Professor Alan Miller and John Bowman. practice. We will, of course, be running other conferences Needless to say, we are the last of the 41 member on this important subject in the months ahead and ‘The states of the Council of Europe to incorporate the I would urge as many of you as possible to attend. convention European convention into domestic law and it is almost The convention really is one of the biggest things impossible to overstate the potential impact that it to hit the practice of Irish law for many years, and really is one of will have here. Criminal law, of course, will be as a profession we have to be ready for it. It’s the the biggest affected, but so too will civil procedures, the right to very least our clients can expect from us. a fair trial, family law, housing, planning, the As this is my final president’s message before I things to hit environment, licensing – you name it, the convention pass the ball to my successor, Ward McEllin, which the practice of touches on it. The right to fair procedures will affect I hope will not be a hospital pass, I’d like to thank public authorities, courts and tribunals, of course, both him and my Junior Vice-President, Owen Irish law for but also disputes on contract, commercial and Binchy, for all their help and support during the many years, insurance matters. year. They certainly helped to lighten my load considerably. and as a A promising start A particular word of thanks must also go to profession we One of the most interesting aspects of the conference director general Ken Murphy and to deputy was hearing how other countries, such as Scotland director general Mary Keane – and to the rest of have to be (which incorporated the convention in May of last the staff in Blackhall Place. For the last year, I have ready for it’ year), have dealt with the issues raised by worked closely with the secretariat there and I can incorporation. We will have to wait to see how our honestly say that the profession is very well served own legislators and judiciary handle the thorny issues by having such a team of committed and talented that are bound to arise, but this was a promising start people working on its behalf. I would also like to to the debate. And I am proud that the Law Society thank Bernard Magee for ensuring that there was should have been first out of the blocks in airing the no golf club in Ireland that he couldn’t find in problems and opportunities that incorporation brings double-quick time. with it. In that regard, I would particularly like to And so that’s it. I have enjoyed my year as thank the society’s Mary Clare Walsh and solicitor president enormously. It has been an honour to James MacGuill for the tremendous energy and serve, and I hope I have represented the profession commitment they put into organising this event and as you would have wished. for making the day such a success. I would also like to take the opportunity to thank Anthony Ensor, all the speakers who came to share their collective President

3 Law Society Gazette November 2000 Annual Conference 2001 MONACO 26-29 April, 2001

If you are thinking of attending the confer - ADVANCE BOOKING FORM ence, avoid disappointment and book now. Advance bookings can be made by forwarding Name: a booking fee of £300 per person travelling Firm: to Mary Kinsella, Law Society, Address: Blackhall Place, Dublin 7. (Tel: (01) 672 4823. Fax: (01) 672 Tel: Fax: 4833 Email: D X : Year of admission to the Roll: Travel options will be available to delegates Names of persons travelling: who would like to travel to Monaco in advance I enclose cheque in the sum of £ of the conference or stay on afterwards. representing booking fee for persons. Note: THE CONFERENCE WILL BE HELD TWO WEEKS AFTER EASTER (EASTER SUNDAY 2001 IS ON 15 APRIL) News

ORDNANCE SURVEY ‘Danger in extending concept COPYING LICENCE The Law Society’s Conveyancing Committee of human rights’, warns AG would like to hear from any solicitors currently using the he attorney general, Michael licence to copy ordnance TMcDowell, has warned survey maps. The committee against discarding the notion of has been invited to a popular sovereignty and preliminary meeting to discuss constitutional autonomy ‘in possible changes in the fees pursuit of a higher order of and arrangements for these human rights’. copyright licences and would Speaking at the recent Law like to get the views of users Society conference on of the licences before making incorporating the European representations. convention of human rights into Irish law, McDowell said: LAW SOCIETY RETIREMENT ‘There is a danger that the TRUST SCHEME concept of human rights will be Unit prices: 1 October 2000 President Anthony Ensor (left) and attorney general Michael McDowell Managed fund: 373.668p extended to cover every political confer before the conference in Blackhall Place or social desideratum. There is All-equity fund: 114.29p constant chorus – thankfully independence and autonomy 1999, Mr Justice Adrian Cash fund:180.719p from a minority of observers – for a new international system Hardiman, Gerard Hogan SC, Pension protector fund: - seeking the wholesale extension of human rights, can we be sure solicitor Michael Farrell and of justiciability to what are that when we need to protect Bruce Dickson, the Northern COMPENSATION FUND termed social and economic ourselves from the abrogation Ireland Human Rights PAYOUT rights’. This, he said, could lead of those rights on an Commissioner. The following claim amount to a weakening of the power of international level that we will Papers delivered at the was admitted by the the executive and legislative have any effective constitutional ECHR conference are Compensation Fund branches of government, with a shelter or defence?’ available on the Law Society’s Committee and approved for corresponding increase in the Other speakers at the website. payment by the Law Society power of the judiciary. conference, which was chaired The society will be holding Council at its meeting in And he concluded: ‘If we by solicitor James MacGuill, another conference on the October 2000: Conor chop down the constitutional included Professor Alan Miller, subject, scheduled for Saturday McGahon, 19 Jocelyn Street, order established with such who discussed Scotland’s 10 February 2001, by which Dundalk, Co Louth – £296.25. difficulty in the first half of the experience with the convention time the bill should at least 20th century and exchange our since its incorporation in May have been published. INNOCENT APPRENTICES? The Law Society is offering apprentices the chance to Courts Service up to speed at last apply for a placement in the Innocence Project in New York ll vacancies in Dublin court dismissal orders will be dealt est in the Courts Service from next year (see the Aug/Sept Aoffices have been filled and with within a reasonable time- other civil servants, with 1,700 issue of the Gazette, page arrangements are in place to fill frame’. He added that there applications coming from 10). The placement is the 20 or so vacancies in provin- had been a great deal of inter- other departments. voluntary and runs from the cial offices, the Courts Service has beginning of June until the end announced. All vacancies in the of July 2001. Applicants are Probate Office have been filled Review of charities law asked to submit a one-page and the service is ‘optimistic’ that harities and voluntary issues which the Law Society’s résumé and a one-page written the current backlog of dealings Corganisations in Ireland Law Reform Committee will submission outlining: why they can now be cleared. In addition, operate under different be looking at in its planned would be suitable for the five extra staff have been assigned structures, from ad hoc groups review of charities law. The placement; how they would to the wards of court office. to corporations to trusts, with a committee would welcome arrange funding; and how they According to Courts Service wide range of financial submissions from solicitors would arrange accommodation chief executive PJ Fitzpatrick: management controls. The whose clients have experienced in New York. (Please note that ‘Arrears in attending to pre- absence of legal protection for difficulties in this area. For the consent of your master is wardship enquiries/applications individuals, issues of insurance, further information, contact necessary to partake in this to register enduring powers of the lack of public accountability the society’s law reform placement.) Applications attorney have been effectively for monies raised and the executive Alma Clissmann on should be sent to Grainne eliminated and it is intended that disbursement of funds on 01 672 4800 or by e-mail: Butler, Law Society, Blackhall all outstanding applications for winding up are some of the [email protected]. Place, Dublin 7.

5 Law Society Gazette November 2000 News McDowell hits back: ‘No di

he war of words between the from Director General Ken that present recruitment He points out that barristers TLaw Society and attorney Murphy branding the exclusion policies based on professional are effectively excluded from general Michael McDowell over of solicitors from such posts as specialisation for both solicitors 80% of the legal posts in the ‘barrister-only’ appointments to ‘absurd and utterly indefensible’ and barristers in the state’s legal state, but adds: ‘I believe that the AG’s office rumbles on, with and calling for all legal service operate against the recruitment based on McDowell flatly refusing to positions to be open to both public interest. On the contrary, professional specialisation of the change his recruitment policies branches of the profession, I believe that the present state’s legal service is not at all (see Aug/Sept Gazette, page 3). McDowell says: ‘I cannot accept policies serve the public interest unfairly discriminatory’. In reply to an earlier letter your unsubstantiated assertion very well’. ‘I am quite satisfied that the

LETTER FROM THE DIRECTOR GENERAL 31 July 2000 Dear Attorney General, the quality of the appointees. To them and sets them apart from argument that solicitors should be exclude all solicitors, regardless of solicitors. It is, apparently, eligible for appointment, what is the his is the letter from me which their experience or ability, from irrelevant that experience gained as true reason for excluding them? Is Tyou have been expecting. consideration for these a barrister in the Law Library or on it merely an outdated tradition? Or I complained to you personally in appointments is to exclude more circuit may have been of the most is it simply a form of prejudice – an informal manner shortly after than 80% of the practising lawyers mundane kind. something offensive to solicitors the first appearance recently of in the state. It constitutes As against that, it matters not and highly inappropriate in the newspaper advertisements for third discrimination without objective that a solicitor candidate (if he or Office of the Attorney General? and fourth legal assistant positions justification. It is a restrictive she could be a candidate) might Whatever the motivation for this in the Office of the Attorney practice which is fundamentally have spent decades advising on discrimination is, it clearly operates General with the eligibility for these contrary to the public interest. complex legal matters for highly- against the public interest and positions confined to barristers. I What is it about the work of demanding personal and corporate should be brought to an end now write on behalf of the Law legal assistant in the Attorney clients, might have vast experience forthwith. Society to make that complaint General’s Office which makes of ‘domestic and international law, Accordingly, the society hereby formally and in the strongest solicitors unsuitable? Every other including the law of the European calls upon you to discontinue these possible terms. legal assistant position in the state Union’, indeed could conceivably competitions for third and fourth We both know that there is service of which the society is have written leading textbooks on legal assistant positions in the nothing new about this issue. aware is open to being filled by such subjects or pleaded cases in Office of the Attorney General and Similar recruitments have provoked either a solicitor or a barrister. front of the European Court of to re-advertise them in a manner complaint from the society on many Solicitors are now employed in Justice. All of that would count for which will make them open to occasions in the past. The other sections of the Attorney nothing. solicitors. There are experienced society’s position is simple and General’s Office. Why should a It matters not that since the and able solicitors performing unambiguous. The exchange of solicitor employed in, for example, foundation of the state solicitors difficult legal work elsewhere in the correspondence which I had in late the Chief State Solicitor’s Office or have been appointed and have public service who would be very 1996 and early 1997 with your the Parliamentary Draftsman’s served successfully as judges of interested in applying for these predecessor as attorney general, Section of your own office be not the District Court. It is irrelevant positions. I make this statement Dermot Gleeson SC, made clear even eligible for consideration for that in recent years no less than six advisedly as a number of them have the view of the society that every these legal assistant positions? former solicitors have served with been in contact with me on the position for a lawyer in the public The advertisement says that the distinction as judges of the Circuit subject. This is not an abstract service should be open to all duties of a third or fourth legal Court. It matters not, and perhaps issue. Real people are affected by lawyers and should be filled by the assistant include ‘advisory work here is a special irony, that the it. best candidate regardless of and research in the fields of both Attorney General’s Office is Please note that I am copying whether that candidate is a domestic and international law, currently involved in the preparation this letter to the taoiseach and to solicitor or a barrister. including the law of the European of legislation, due to be published certain other members of the The only test for recruitment to Union, participating in the very soon, which will give effect to government. I will be pointing out to public service lawyer positions, formulation of law at domestic and a government decision, which has them that the continued exclusion including all judicial appointments, international levels and advice on all-party support in the Oireachtas, of solicitors from eligibility for these should be whether candidates have the conduct of litigation in which that solicitors should be made positions is in open conflict with the the experience and ability to do the the state is involved’. eligible for appointment as judges opinion expressed in the Report on job – not whether they come from The only qualifications specified of the High Court and Supreme the Office of the Attorney General one branch of the legal profession in the advertisement are that the Court. A solicitor could, indeed, by the Dáil Select Committee on rather than another. applicant must have practised as a actually be the attorney general. No Finance and General Affairs dated From the society’s point of view, barrister in the state for at least solicitor, however, could possibly be 15 February 1996. I also intend to this has always been a public seven years for the position of third a third or fourth legal assistant in publish this letter in the next issue interest issue. It is in the public legal assistant and at least four the Attorney General’s Office. of the society’s Gazette, together interest that lawyers in the public years for the position of fourth legal The position taken by your office with whatever response to it you service be of the highest calibre assistant. The experience so gained on this matter is, in the view of the would care to make. available. The wider the pool of automatically ensures that these society, absurd and utterly I look forward to hearing from legal talent from which the persons will be capable of indefensible. you. appointment of public service performing the duties required. If, as is clear, there is no lawyers is made, the better will be This, and this alone, distinguishes defence on the merits to the Ken Murphy, Director General

6 Law Society Gazette November 2000 News scrimination in AG’s office’

present recruitment policies reserved for solicitors. I do not should do so is misconceived’. director general, saying that produce the optimal results from intend making it possible to At its meeting on 13 October the merit based approach the state’s point of view’, he appoint barristers to act as 2000, the Law Society Council recommended by the Law adds. ‘Those policies recognise professional solicitors in the considered the letter received Society was the one which truly that solicitors recruited to the state legal service. I do not from the attorney general but represents the public interest. state’s legal service remain intend making barristers eligible remained unconvinced by the professional solicitors and are to be appointed chief state arguments he put forward. It The full text of the exchange of entitled to promotion to senior solicitor or as state solicitors. I unanimously reconfirmed its correspondence between Murphy professional posts which are think that your suggestion that I position as expressed by the and McDowell is reproduced below.

REPLY FROM THE ATTORNEY GENERAL 2 October 2000 Dear Director General, When the position of chief state effective and authoritative direction advertisement which appeared was solicitor was recently advertised to counsel conducting the state’s ‘offensive’ to barristers generally, I refer to your letter of 31 July and was confined to solicitors in litigation and to give the think your members would have I2000 in relation to the position of public or private practice, you made government sound and experienced dismissed his claim. legal assistant in the Office of the no comment, private or public, on analysis and advice on state I am quite satisfied that the Attorney General. the exclusion of barristers from litigation) and long experience of present recruitment policies As you are aware, there has eligibility for appointment to a post acting alone in researching and produce the optimal results from been previous correspondence carrying the highest category of writing opinions (which is a hugely the state’s point of view. Those between my predecessor, Dermot salary in the state’s legal service – important aspect of the workload policies recognise that solicitors Gleeson SC, and you on this topic. that of secretary general. of the office). recruited to the state’s legal I attach a copy of that The policy of recruiting solicitors I cannot accept your service remain professional correspondence for reference. only to the Chief State Solicitor’s unsubstantiated assertion that solicitors and are entitled to As I understand it, the members Office and as state solicitors has present recruitment policies based promotion to senior professional of the Law Society continue to worked well and I believe that the on professional specialisation for posts which are reserved for favour the traditional division of great majority of your members both solicitors and barristers in the solicitors. I do not intend making it practising lawyers into two would support its continuance. I state’s legal service operate possible to appoint barristers to specialist professions. In that think that they would be astonished against the public interest. On the act as professional solicitors in the context, I would point out that the and disappointed were the contrary, I believe that the present state legal service. I do not intend state’s legal service for which I government to appoint a barrister policies serve the public interest making barristers eligible to be have responsibility has four to be chief state solicitor. very well. appointed chief state solicitor or as component parts: I very much doubt and remain to I believe that recruitment based state solicitors. I think that your • The Chief State Solicitor’s Office be convinced that the members of on professional specialisation of suggestion that I should do so is in which 91 professional your society who are practising as the state’s legal service is not at misconceived. solicitors practise and for which state solicitors or in the Chief State all unfairly discriminatory. On the With little rotation in the small no barrister is eligible for Solicitor’s Office support your contrary, solicitors in the state’s numbers of posts as legal appointment stated view that barristers should service, as you well know, are assistant, barristers hoping for a • The network of state solicitors in be eligible for appointment to their given exclusive eligibility for the career in the public service are which there are 32 professional positions or would agree to it. vast majority of positions. It could already at a huge disadvantage solicitors and for which no In the absence of evidence that be easily argued with greater force compared with solicitors. barrister is eligible for the relevant members of your that barristers suffer much more I intend to continue to recruit appointment society would agree to equal discrimination by their exclusion fairly from the two professions on • The Parliamentary Draftsman’s eligibility for all practising lawyers, from the vast majority of posts. the basis of specialisation and, Office in which there are 11 there is an element of ‘what’s mine Despite the numerical imbalance even though this policy results in solicitors and barristers and for is mine, but what’s yours is ours’ in favour of solicitors, I continue to 80% of legal posts being confined which either profession is to the arguments in your letter. support specialised recruitment for to the solicitors’ profession, I am eligible Turning to the recruitment policy professional solicitors which makes satisfied that it would be seriously • 21 legal assistants who act as for the much smaller number of them exclusively eligible for all mistaken in policy, counter- counsel in this office have been legal assistants in the Attorney solicitors’ professional positions as productive in result, and very unfair by tradition recruited from the General’s Office, it has long been state solicitors and in the Chief in practice to accept the proposal practising bar. the view that practice at the bar for State Solicitor’s Office. made in your letter. seven years in the case of a third I do not believe that the director You mentioned the possibility of As you are well aware, it is clear legal assistant and four years in general of the Bar Council would publishing my reply to your letter. If from the foregoing that the vast the case of a fourth legal assistant get or deserve much sympathy if you are doing so, I would be majority of legal positions in the ensures that those appointed have he had written to me demanding obliged if you would publish it in its state’s legal service (approximately qualities and experience vital to the that I re-advertise the recent entirety, as your letter to me when 80%) are closed to barristers. Your successful discharge of their appointment of chief state solicitor published omitted the wider context society has never objected to any duties. on the grounds that some and many of the salient facts in a advertisement which has confined These qualities include intimate barristers in the Attorney General’s manner that I did not consider fair. appointments in the Chief State practical knowledge of the realities Office might have been suitable Solicitor’s Office or as state of litigation and advocacy (which and would like to be considered for Michael McDowell SC, Attorney solicitors to practising solicitors. equips legal assistants to give the job. And if he claimed that the General

7 Law Society Gazette November 2000 Letters Letters

The measure of a man? From: Chris Ryan, Dublin moved to support its members. are officers of the court – respect he demands for ecent articles in the national If a senior counsel was treated whatever that might mean. himself, but the amount of Rnewspapers with regard to in like manner, he would It is up to the Law Society respect he gives and demands the treatment of solicitors in immediately challenge the to meet the presidents of the for others. open court by some judges have judge in open court, sure in the various courts and to point out spurred me to write to the knowledge that the Bar to them the petulant and ill- The Director General, Ken Gazette. Counsel would row in behind mannered members of the Murphy, replies: A minority of judges treat its member and support him. judiciary and the way in which Contrary to what is suggested by solicitors with disdain bordering The Bar Council would make they are treating members of Mr Ryan, in every case of which I on contempt. This conduct has it very clear to the judge the the solicitors’ profession. am aware in which a solicitor has largely gone unchallenged by way in which it expected its Where complaints are sought the support of the Law the representatives of the members to be treated in open substantiated, the member of Society, it has been freely given. solicitors’ profession, but I court, and would demand such the bench should be removed. However, it may be of limited believe that their treatment of respect and treatment for its Their problem seems to stem value. The real problem is the solicitors in open court should members. However, it would from the fact that in their own absence of any proper system for be challenged, not only by the seem that the Law Society is court they are God, answerable dealing with allegations, which individual solicitors but also by not like-minded in its support to no-one. This should change thankfully are rare, of judicial the Law Society. for solicitors. immediately. The bench is fast misconduct. The society is pressing Such conduct does not help Solicitors have been treated to demand respect for their hard in public (see December 1999 solicitors who wish to appear as by some members of the position in the way they are Gazette, page 3) and in private advocates in court. But in spite judiciary as nothing more than addressed and in the way that for such a system to be introduced of the way in which the various messenger boys and they seem people are clothed who appear and awaits the report of the Chief solicitors have been treated, the to believe that they can carry before them. But the measure Justice’s working group, which is Law Society has seemingly not on like this. After all, solicitors of a man is not the amount of promised by year end. DUMB AND DUMBER From: Alex Gibbons, PJ O’Driscoll that this was a misprint meant to Le roi est mort. Jive le roi: The Veni, vidi velcro: I came, I saw, I & Sons, Clonakilty, Co Cork read ‘tenure freehold’. king is dead. No kidding stuck around (ok, another enclose copy from an advert in Posh mortem: Death styles of the exception) Ithe Irish Examiner property From McCann FitzGerald, Dublin: rich and famous Ich bit ein berliner: He deserved it section recently, which a client he following were the winners Pro bozo publico: Support your Zitgeist: The Clearasil doesn’t brought to my attention with Tof a New York magazine local clown (or politician, your call) quite cover it up instructions to make enquiries on contest asking contestants to Monage à trois: I am three years’ E pluribus anum: Out of any group, his behalf. take a well-known expression in old there’s always one asshole ‘Schull, Co Cork. A prime site a foreign language, change a Felix navidad: Our cat has a boat Nomo arigato: No thanks to you with magnificent views over single letter, and provide a Haste cuisine: Fast French food Vive le dufference: Long live Roaringwater Bay and located definition for the new expression. Veni, vidi, vice: I came, I saw, I golfing. close to Schull with all its Harlez-vous français?: Can you partied amenities. 10-year freehold’. drive a French motorcycle? Quip pro quo: Fast retort Alex Gibbons wins the bottle of I thought I had come across a Ex post fucto: Lost in the mail Aloha oy: Greetings; farewell; such champagne this month. new concept in property Idios amigos!: We’re wild and a pain you would never know ownership and a new form of crazy guys! Mazel ton: Tons of luck freehold title, which, in view of Veni, vipi, vici: I came, I’m a very Visa la france: Don’t leave your Send your examples of the wacky, weird and wonderful to the Editor, the location of the property, important person, I conquered château without it Law Society Gazette, Blackhall involved some complicated type Cogito eggo sum: I think, therefore Amicus puriae: Platonic friend Place, Dublin 7, or you can fax us of time-share arrangement with I waffle L’état, c’est moo: I’m bossy on 01 672 4801 or e-mail us at fascinating possibilities for Rigor morris: The cat is dead around here [email protected]. property ownership in West Cork. Respondez s’il vous plaid: Honk if Cogito, ergo spud: I think, As always, the best entry will win Imagine my disappointment you’re Scottish therefore I yam (ok, more than one a bottle of the finest champagne when the auctioneer informed me Que sera serf: Life is feudal letter) that monopoly money can buy.

8 Law Society Gazette November 2000 Letters Registrar’s Committee ‘scrupulously fair’ to solicitors

From: James McCourt, chairman, excessive fees in sections 8 and attempt to impose pre- is not affected by the act. Registrar’s Committee 9 respectively. Mr Deale has conditions on a complainant I would stress that the write as chairman of the mentioned that no regulations before his or her complaint was society does not impose fines. IRegistrar’s Committee of the have been made by the society investigated would be Contributions towards the Law Society, which is the pursuant to these sections. In unsuccessful. Furthermore, all society’s costs in investigating committee having the six years since the act was investigations are handled a complaint are only sought in responsibility for dealing with introduced, the committee has expeditiously. a minority of cases and complaints made against not perceived any need for Mr Deale also suggests that generally only where the solicitors. I refer to the letters rules of procedure which may an excessive fees investigation investigation has been which Julian Deale sent to you be made under sections 8(8) by the society precludes prolonged due to the (August/Sept and October and 9(7). taxation. However, a client who solicitor’s failure to issues) and I would wish to Mr Deale has raised the perceives a bill as being communicate with the society. clarify points which he raised. possibility that a complainant excessive can either apply for The committee utterly The Solicitors (Amendment) might bring a complaint of taxation or bring a complaint to rejects Mr Deale’s view that Act, 1994 gave the Law Society excessive fees merely to delay the society. If the complainant the ‘rules of natural justice are additional powers of payment to the solicitor. is not satisfied following the being absolutely and utterly investigation regarding Although the committee would society’s investigation of a fees and completely ignored’. The complaints, and in particular acknowledge that a complaint complaint, he or she can still committee is well aware of the complaints about inadequate might be so brought, it is apply for taxation. The position rules of natural justice and professional services and entirely satisfied that any of the solicitor vis-à-vis taxation adheres to them scrupulously. Playing fair on practising certificate fees From: Carl J Haughton, Dun employment with another firm seeking recompense that they changes his employment in the Laoghaire of solicitors and we set about are not aware of any such course of the practice year, the recent exchange of securing the employment of an ‘common practice’. practising certificate that has been Apersonnel in our office alternative solicitor. We duly It seems to us to be issued to the solicitor travels with leads us to pen this letter to discharged a proportion of the inequitable and unjust that such him to his new employment. The bring to the attention of the practising certificate fee to the a situation should be permitted question of a refund in relation to members of the profession a firm from where our new to arise and we strongly feel the unexpired portion of the problem which we perceive solicitor came, but could not there should be uniformity practice year is a matter for the exists in relation to the payment secure a refund in respect of throughout the profession in employer and employee. In some of practising certificate fees. the solicitor we lost. dealing with this situation. instances, this particular matter is In January of this year, we We understand from the addressed by the employer in the paid in full for a practising Law Society that it is ‘common Registrar of Solicitors, PJ terms of employment. It is not a certificate for a newly-qualified practice’ that the practising Connolly, replies: matter that the society can be solicitor who was then working certificate fee be apportioned All practising certificates issued by involved in as the employee with us. In June of this year, accordingly, but we are advised the society expire on 31 December solicitor is the holder of a valid that solicitor left for alternative by the firm from whom we are in the practice year. If a solicitor practising certificate. Clarification on stamp duty arrangements From: Brian Gallagher, relation to the transitional secretary for taking the trouble of the Conveyancing Committee. chairman, Conveyancing arrangements provided in the to clarify the interpretation of ‘I can confirm that there was Committee Finance (Number 2) Act, 2000. the relevant section for the an error in the context of my he Conveyancing The letter from Ms profession. previous letter. The statement “ ... TCommittee would like to O’Riordan arose out of Following Mr O’Sullivan’s and provided that the contract is respond to the letter from representations made by me to letter, the secretary of the executed on or before 31 January Pierce O’Sullivan published in the minister for finance seeking Conveyancing Committee, at 2001” should instead read as “ ... the last issue of the Gazette to avoid a situation where the my request, wrote to Ms and provided that the instrument (page 7). Mr O’Sullivan’s letter Revenue would insist on O’Riordan, and she replied to giving effect to the contract is arose out of a letter from formal contracts signed by that letter on the 29 Sept 2000 executed on or before 31 January Hannah O’Riordan, the private both parties. Her letter has in as follows: 2000”. secretary of the minister for fact proved of considerable ‘Minister for Finance Charlie ‘I apologise for any finance, which the assistance to the profession, McCreevy TD has asked me to inconvenience this error may have Conveyancing Committee and I would like to reiterate reply to your letter regarding my caused’. published in the August/ my thanks to the minister for letter of 27 July 2000 addressed Ms O’Riordan’s gracious September Gazette (page 52) in finance and his private to Mr Brian Gallagher, chairman letter clarifies the position.

9 Law Society Gazette November 2000

Viewpoint Misunderstanding the Good Friday agreement

With the peace process in Northern Ireland lurching from crisis to crisis, Austen Morgan, a member of David Trimble’s legal team during the Good Friday negotiations, shines a unionist light on the main points of this increasingly-fragile agreement

he Belfast agreement of 10 cite this as a reason for being in conceded in 1971 that the TApril 1998 – on which I the ‘no’ camp. Missing entirely North could vote to join the have written a practical legal has been the ideological and Republic. It was 1998 before an text – is widely misunderstood. intellectual case for Trimble Irish government could It is an international agreement unionism. subscribe to the principle of between the UK and Irish consent. states, variously incorporated in A nation once again The new article 3 of Northern Irish and Irish law. I Three characterisations of the Bunreacht na hÉireann (article 2 have come to conclude that the Belfast agreement have been has little legal effect) contains failure of the legal communities fermenting: a weakening of the provision for separate votes. in both parts of Ireland to give North’s constitutional position Institutions. The next three that agreement a fair within the UK; a major all- sections of the Belfast agreement professional wind has not Ireland institutional advance; are dominated by the Northern helped the Irish peace process. and the centrality of Ireland assembly and executive This Belfast agreement unspecified rights. committee. Devolution in 1920 Austen Morgan: private law comprises two texts: the multi- implications in the Good Friday Nationalist Ireland has been lasted until 1972; the party agreement and the agreement telling itself that it has made a Sunningdale arrangement British-Irish agreement signed structural advance beyond the barely five months in 1974. It by Tony Blair and Bertie 1998. In Northern Ireland, a 1920-22 partition settlement. remains to be seen whether the Ahern. The multi-party 71% ‘yes’ vote obscured a In reality, the Belfast agreement Stormont assembly, with checks agreement, with the British- seriously split unionist is located firmly within that and balances, will survive until Irish agreement annexed, is the community. The 94% vote in settlement, which saw the legal its next scheduled election in political face of the Belfast the Republic (on a 56% creation of a new state in 26 of 2003. agreement. Its legal face is the turnout) to amend article 29 of Ireland’s 32 counties. Strand Two, the British-Irish agreement, with Bunreacht na hÉireann showed Constitution. The most North/South Ministerial the multi-party agreement as little nationalist concern about important change brought Council, is a great deal less annex 1. articles 2 and 3. Nevertheless, a about by the first two sections ‘green’ than Sunningdale. The The Belfast agreement proper place for Catholics in the of the Belfast agreement has six implementation bodies – has to be interpreted according North became transmogrified been the end of the Irish created by treaty – represent a to the 1969 Vienna convention culturally into joint territorial claim, as explained in ceding of Irish, as well as UK, on the law of treaties. authority/sovereignty, and even the 1990 McGimpsey case. The sovereignty. The legal text comprises: 1) a transition to a united Ireland. UK affirmed the principle of All-Irelandism is balanced, international obligations of Whenever Gerry Adams or consent in the 1921 Anglo-Irish unlike in 1973, with Strand (mainly) the UK, but also the Seamus Mallon said something treaty (which was not, of Three. The British-Irish Irish state, some of which was, or was not, in the Good course, an international Council – a Trimble require domestic legislation; 2) Friday agreement, Ian Paisley agreement). And British prime contribution – promises to unite political rhetoric (new and Robert McCartney would minister Edward Heath all the peoples of these islands. beginning, partnership, equality The 1985 Anglo-Irish agreement and mutual respect, self- has given way to a British-Irish determination, parity of esteem, NOTE ON TERMINOLOGY Intergovernmental Conference, birthright) of little or no legal The Belfast agreement is so called for the same reason as in which the NI assembly effect; and 3) implied general the Dublin convention on EU asylum applications is named leaders have observer status in principles of international law, after the city where it was signed in 1990. London-Dublin dealings. such as legality. The government of Ireland, in municipal and Rights. The next section of international law, would appear to have created a 26- the agreement is entitled Rights, Four green fields county ‘Ireland’. The question of state nomenclature was safeguards and equality of The cultural appropriation of not resolved by the Belfast agreement, also referred to as opportunity. In this regard, it is the Good Friday agreement the Good Friday agreement. worth noting that the anti-state began almost immediately in human rights community in

11 Law Society Gazette November 2000 ORDER YOUR COPY OF THE LAW SOCIETY YEARBOOK & DIARY N O W A N D

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Northern Ireland was not as The Patten report. This should be released. In influential as it claims. The report – which broadly domestic Irish law, however, Human Rights Act 1998 was accepted the chief constable’s there is no such passing through Westminster, reform agenda – stoked inter- requirement. This and the two anti- communalism in the North. hypothetical case turns on discrimination directives, Nationalist Ireland was excited the relationship between based on article 13 EC of the by Patten’s liquidation of UK international and municipal 1997 Amsterdam treaty, will state symbols, which may well law: articles 15.2.1 and 29.6 determine equality provisions destroy the agreement. of Bunreacht na hÉireann, I in both parts of Ireland. Meanwhile, the two Sinn Féin submit, provide the answer. The forthcoming ministers, acting on official incorporation of the European legal advice, have used Lawyers in both parts of convention on human rights into purported royal prerogative Ireland, particularly solicitors Irish law is attributable, powers to disregard the on the front line, should be through the Belfast agreement, sovereign’s designated days for alert to the private-law to the Trimble unionists. flying the union flag. implications of the agreement, ‘From terrorism to especially in the area of North- democracy’ is a more The sash my father wore South co-operation. Officials in appropriate theme for this part Given that the agreement only both administrations give every of the agreement, given that it entered into force on 2 did not secure leave from impression of not also deals with decommis- December 1999, cases in the UK House of Lords, understanding how the sioning, security, policing, Dublin and Belfast have been largely because of the implementation bodies operate justice and prisoners. The few but not unimportant: difficulty of proving IRA legally. G Belfast agreement (though few • Denis Riordan’s attempt to breaches of its ceasefire in must believe it) does provide stop the 1998 referendum judicial review Austen Morgan is a barrister in for ‘the decommissioning of all was rejected, a sovereign •Finally, there is the case of London and Belfast. His book The paramilitary arms’ by 22 May people being able to amend the McCabe four (which has Belfast Agreement: a practical 2000. And the Patten report its constitution conditionally yet to be mounted in legal analysis is published on 16 on policing is not part of this • The Williams’s case in Dublin). Under the Belfast November (http://www. legal text. Belfast on prisoner releases agreement, these IRA men austenmorgan.com).

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13 Law Society Gazette November 2000 Cover story Another

The state has always been a slow learner when it comes to education rights for the disabled, but the recent High Court ruling in the Sinnott case was certainly a tough lesson in constitutional law. And with more and more parents prepared to go to court to fight for their rights, the w education litigation is shaping up to be a growth area, as Barry O’Halloran reports

ork solicitor Ernest Cantillon admits • The key that he was surprised by some of the elements of reaction to the recent High Court the Sinnott judgment (4 October) which laid to judgment explained C rest any doubts that the state has a • The Edu- constitutional obligation to provide free primary cation Act, education. Cantillon, who acted for Kathryn Sinnott, 1998 the woman who took the case on behalf of her •Increasing autistic son Jamie, says the law has been clear for the education- last seven years. related ‘There is a constitutional right to free primary litigation in education; that should be plain to anyone. The the UK constitution states it quite clearly’, he says. ‘I find it MAIN POINTS very surprising that the department of education should have tried to maintain otherwise’. If anyone should know, it’s Ernest Cantillon himself. In 1993, he took the landmark O’Donoghue case to the Supreme Court, which declared beyond any doubt that handicapped people have a right to free primary education.

An indictment of the state ‘Before O’Donoghue, the attitude seems to have been that handicapped people were uneducable, which is an appalling approach for any civilised society. It’s like saying that education is only for the blonde, blue-eyed Aryans’, he says. ‘O’Donoghue clearly set out the position and the Sinnott case re- established it. It’s not like the people who have been campaigning on behalf of handicapped children have been doing it on any kind of mistaken basis’. Jamie Sinnott was diagnosed with autism before his first birthday. Mr Justice Robert Barr found that despite Irish and US experts’ recommendations that

14 Law Society Gazette November 2000 Cover story brick in wall? the child go through various special programmes, he had had no more than two years of meaningful education in this country. In a 70-page judgment that strongly criticised the state’s failure to provide for the by-now 23-year-old man, Barr ruled that it had failed to honour its constitutional obligations. He awarded Sinnott £200,000 in damages for breach of his constitutional rights, and gave a further £55,000 in secondary damages to his mother. He ordered the state to provide Sinnott with primary education for as long as it could be shown that he would benefit from it. The judge declared that Sinnott’s story was an ‘indictment of the state and cogently illustrates that it has failed to participate actively and meaningfully in the provision of appropriate services for him and those like him over the years’. According to Ernest Cantillon, the judgment contains a number of key points that clarify the law in this area. The first is that the state must pay damages to anyone whose constitutional right to a free education has been breached. ‘You need to establish that the child has not received an education and that, if he had, he would be functioning at a higher level’, he explains. ‘In Jamie’s case, we had evidence showing him being taught to speak, and we were able to produce expert witnesses who testified that he would have made progress if that had continued. He has now lost that ability. ‘His mother brought him to a special school in America. They got him to speak and sent him home with a programme that they

15 Law Society Gazette November 2000 Cover story

most dramatic moments in the 29-day hearing. THE SINNOTT CASE: KEY POINTS The judge ordered a department official, who was • Damages will be awarded for breach of the state’s obligation to provide giving evidence, to leave the court and return the free primary education next day with all the documentation relating to the • The state must take an integrated, cross-departmental approach to the state’s decision to appeal the High Court’s decision provision of free primary education in the earlier O’Donoghue case. • The state cannot meet its constitutional obligations partially At the time, the then finance minister, Bertie • It is permissible for the state to contract out its obligation to service Ahern, and the education minister, Niamh providers, but that does not mean it can abdicate its responsibility to Breathanach, maintained that they were only them appealing to the Supreme Court in an effort to • Primary education is not age-related and can be continued past the age clarify the law. According to Cantillon, what the of 18 if this will benefit the plaintiff court discovered in the course of the Sinnott • Secondary damages can be awarded to any party affected by the hearing was that the state was simply appealing the state’s breach of its obligation to provide free secondary education. O’Donoghue decision in an effort to avoid the inevitable expense generated by providing free education to the handicapped and those with recommended should be followed, but it was just special needs. ignored. The people from the first organisation Another important element of the Sinnott ruling saw him 16 weeks later, and it was clear that he is that the constitutional right is not age-related. was functioning at a lower level than when they ‘We tend to think of it being limited to children had last seen him’. aged between four and 12’, says Cantillon. ‘But The second key point in Barr’s ruling is that the primary means basic, and it does not matter if state must take an integrated, cross-departmental someone is 12, 42, or 62, as long as they are going approach to education. Cantillon points out that to benefit from it’. Jamie Sinnott would have needed access to a There was some debate over this issue. In the number of therapists, including speech and O’Donoghue case, O’Hanlon J agreed that age was physiotherapists. But, under the current system, not really an issue, but seemed to indicate that the the department of education employs some constitutional guarantee ended once the child had therapists, healthcare institutions employ others, reached 18. Sinnott clears up that point for once while the health boards employ still more. This and for all. left Kathryn Sinnott in a situation where she had In a new development, Barr ruled that anyone to traipse from one agency to another in order to else affected by the state’s failure to honour its guarantee her son the treatment he needed. obligation to provide a plaintiff with free education The effect of the High Court ruling means that will be entitled to secondary damages. Cantillon there has to be a one-stop-shop for people in points out that in a case such as Jamie Sinnott’s, it Jamie Sinnott’s situation. The judge urged the is clearly foreseeable that the plaintiff’s mother state to review its existing administrative structures would also suffer. and to develop an improved system of delivering The state has three weeks from 1 November to services to those in need. appeal the High Court ruling. Ernest Cantillon is His third point follows neatly on from this. He unsure of what way the wind will blow, but he does said that the state cannot partially meet its believe that his firm will probably receive notice of constitutional obligations: its services have to be of the state’s intention to go to the Supreme Court an acceptable standard. In a linked area, the judge within a few days of that date. ruled that it was permissible for the state to contract out its obligations to professional bodies Leave those kids alone and organisations, in Sinnott’s case these were the Similar problems relating to children with special Brothers of Charity and the Cork-based Cope needs have opened up a new area of education Foundation. But he stressed that this did not allow litigation in Britain, as have more routine issues the state to abdicate its responsibility. such as gaining admission to schools in the first As Ernest Cantillon puts it: ‘They cannot say place, or the decision to expel students. And it now that “we passed him on to the experts and they are looks likely that Irish school boards of dealing with him so it’s not our fault”. There has management could find themselves being cross- to be supervision and they have to get the examined by lawyers acting for irate parents. resources’. Around the same time that Barr delivered his In the most strongly-worded section of his judgment, it emerged that the Department of judgment, Barr pulled no punches in criticising the Education was considering an appeals mechanism state for failing to respect the rule of law and for expelled and suspended students that could meeting its constitutional obligations. Attacking its allow them, or rather their parents, access to legal obstruction and obduracy, he made it clear that representation. It’s not clear at this stage if lawyers people like the Sinnotts should not have to come could find themselves going back to school to take to court in an effort to uphold their rights. up cudgels on behalf of pupils who feel that they This part of the ruling sprang from one of the have been wronged. Currently, parents can go to

16 Law Society Gazette November 2000 Cover story the school’s board of management or trustees if eventually happen here. Official estimates show that they feel that their child has been wrongly by the end of this school year, close to 100,000 suspended or expelled. British parents are likely to appeal primary and Section 29 of the Education Act, 1998 gives secondary school board decisions to refuse admission parents the right to appeal certain decisions made to their children. by a school board, or someone acting on its behalf, This will mark a considerable increase on last to the department’s secretary-general. The year, when 85,900 such appeals were taken. In the legislation also provides that the minister for 1997/98 school term, 77,000 parents challenged education will establish one or more independent decisions. committees to hear and determine these appeals, The appeals system, and legislation running at the and that he should lay down procedures for the rate of one act a year, have combined to open up the hearings. area to both branches of the English legal profession. Kathryn Sinnott While the act is two years’ old, it seems that the According to the Education Law Association government is only now considering how this (ELAS), a body established ten years ago to provide appeals system might be structured. Three weeks guidance in this area, there are around 50 barristers ago, education minister Michael Woods confirmed practising regularly in this field. This may seem like to the Dáil that draft procedures had been drawn very few, but 20 years ago there were none at all, up. ‘At the same time, planning is underway in the while finding a lawyer with any knowledge of department for the putting in place of the education practice would have been extremely necessary structures to ensure that the appeals difficult ten years ago. system can operate effectively’, he said. One of the things that sparked parents into action In line with legislative requirements, his staff are was a 1994 code of practice for children with special now discussing these proposals with the so-called needs. This insisted that British education ‘education partners’, namely, school patrons and authorities, which are responsible for administering management organisations, teachers’ unions and the system in each region, involve parents in the staff associations, and national parents’ bodies. The ‘Parents – decision-making process and led to conflict between final shape of the appeals system will be or students these bodies and parents. determined by this consultation process, which the According to a recent report in the Guardian minister is obliged to follow. aged 18 and newspaper, education authorities have used ‘every Initial media reports suggested that parents – or over – could procedural device to minimise the number of students aged 18 and over – could have the right to children officially “statemented” for special legal representation. This would mean that lawyers have the right provision’. The reason is simple: the more children acting on their behalf would be able to question a to legal with special needs that have to be catered for, the management board’s decisions, perhaps even higher the cost. But the inevitable result has been introducing school, medical and psychological representation’ more parents challenging these decisions at special reports to support their case. But the legislation needs tribunals. And an increasing number are itself stresses that these hearings should be turning up with a solicitor or brief in tow. conducted with a minimum of formality. At the The same report revealed that of the 1,200 same time, a spokeswoman for the department of parents who attend special needs tribunals every education maintains that there is still all to play for. year, one-in-five are now bringing legal ‘We are going through the consultative process representation with them. Just two years ago, the with the education partners, and there is nothing comparable figure was 120, or one-in-ten. definite decided yet’, she says. ‘Nothing has really The English courts are increasingly turning their been ruled in or out’. attention to state neglect of children’s’ educational A similar system has been operating in Britain rights. In a judgment that does not sound too for several years and, even though this was also dissimilar to some of Mr Justice Barr’s statements in intended to be semi-formal, parents are now using the Sinnott case, the UK Court of Appeal earlier this legal muscle in the hope of getting school boards year ruled that a tetraplegic child needed to see things their way. While the education system physiotherapy to get education. And in a more across the water has been in a parlous state for dramatic ruling two months ago, the British House years, at least it provides a clue about what could of Lords awarded a 26-year-old woman stg£45,650 arising from the London borough of Hillingdon’s failure to diagnose her dyslexia. Whether the Irish courts will go this far remains WHAT THE CONSTITUTION SAYS to be seen. But, as Ernest Cantillon says, the Article 42.4 O’Donoghue and Sinnott cases make the constitutional ‘The state shall provide for free primary education and shall endeavour to position of handicapped and, by extension, all supplement and give reasonable aid to private and corporate educational children clear. Let’s hope the state has learned its initiative, and, when the public good requires it, provide other educational lesson. G facilities or institutions with due regard, however, for the rights of parents, especially in the matter of religious and moral formation’. Barry O’Halloran is a staff reporter with Business and Finance magazine.

17 Law Society Gazette November 2000 Litigation Much ado abo When does a person’s day in court constitute abuse of the litigation process? And what steps should lawyers take to defend against – and avoid complicity in – such abuse? Dessie Shiels highlights one of the hazards of our litigious society

s everybody who has anything to exercised only sparingly (see, for example, DK v AK do with the law well knows, the [1993] ILRM 710; O’Neill v Ryan [1993] ILRM 557; path of the law is strewn with Ta ssan Din v Banco Ambrosiano [1991] 1 IR 569; and examples of open and shut cases Fagan v McQuaid, unreported, High Court, 12 May ‘A which, somehow, were not; of 1998). Thus, Murphy J in Looney v Bank of Ireland unanswerable charges which in the event were ([1996] 1 IR 157) said that ‘a balance must be struck completely answered; of inexplicable conduct which between a person’s right of access to the courts and was fully explained; of fixed and unalterable the right of other persons to be protected against an determinations that, by discussion, suffered a abuse of their rights’. The jurisdiction is essentially a change’. means of qualifying the constitutional right to litigate, These comments, made by Megarry J in the case and therefore is limited to only the clearest cases. of John v Rees ([1970] 1 Ch 345 at 402), aptly The defence lawyer should not lose sight of the illustrate the uncertainty which is the norm in fact that, in seeking to have a plaintiff’s proceedings modern litigation. Unfortunately, that uncertainty is struck out, he is seeking to deprive that plaintiff of often heightened for a defence lawyer when he is his right to litigate in respect of those proceedings. faced with proceedings which may or may not In such circumstances, it will always be the case that succeed – but which also may or may not be justified. the courts will place the onus firmly on the Recognising this reality, the courts have reserved the defendant to show that the plaintiff should be right to strike out proceedings which are abusive of deprived of that right. What is certain, however, is the litigation process. For the defence lawyer, this is that the constitutional right to litigate is not to be welcomed. absolute and where a defendant can satisfy the court The courts have repeatedly held that the that the plaintiff’s proceedings are abusive, they will jurisdiction to strike out proceedings must be be struck out.

18 Law Society Gazette November 2000 Litigation out nothing The jurisdiction to strike out abusive proceedings action struck out on the basis of order 19, rule 28. consists of both the inherent jurisdiction of the In such circumstances, he should always claim for an • The court’s jurisdiction to courts and their jurisdiction under order 19, rule 28 order striking out the plaintiff’s claim pursuant to strike out of the Rules of the Superior Courts. As a starting point, the inherent jurisdiction of the court. The advantage proceedings the jurisdiction should be understood as essentially here is that where a defendant brings such a strike- • Counter- involving a two-stage test, namely: out motion, he is not limited in his arguments to the claiming for • Has the plaintiff disclosed a cause of action? and pleadings themselves as is the case under order 19, abuse of • Can that cause of action succeed? rule 28. Instead, the defence may introduce evidence process by way of affidavit relating to the issues in the case. •Effective use A third test is often said to exist, namely whether So, in McCabe v Harding ([1984] ILRM 105), in of discovery proceedings are frivolous or vexatious. So Costello J circumstances where ‘the relief claimed by the and Isaac Wunder in DK v AK held that since the court’s inherent defendants could not have been granted under order orders jurisdiction to strike out proceedings ‘exists to ensure 19, rule 28’, an order was instead granted pursuant that an abuse of the court’s process does not take to the inherent jurisdiction of the court. MAIN POINTS place’, then ‘if it is established by satisfactory The defence lawyer should also be aware that the evidence that the proceedings are frivolous or courts are willing to exercise, on occasion, the vexatious or if it is clear that the plaintiff’s claim inherent jurisdiction of the court so as ‘to preserve a must fail, then the court may stay the action’. While proper discipline in the conduct of litigation’ such a test does exist in a literal sense under the (O’Flaherty J in the case of O’Neill v Ryan [1993] wording of order 19, rule 28, the reality is that its ILRM 557). The potential use of the inherent existence independently of the ‘cannot succeed’ test jurisdiction in this way should not be is tenuous at best. If a cause of action is frivolous or underestimated, since, for example, it will often be vexatious, then that essentially means that it is based the case that a defendant will be faced with a on insufficient grounds and therefore cannot plaintiff who is less than forthcoming about the basis succeed. Thus, in Farley v Ireland and Others on which he is bringing proceedings. (unreported, Supreme Court, 1 May 1997), Murphy This was the situation in the case of Kelly v Cullen J properly held that to maintain an action which has (unreported, Supreme Court, 27 July 1998), where no prospect of success would be vexatious. the court disallowed the plaintiff’s appeal against the striking-out of his negligence claim against a doctor. Dubious claims The court was scathing in its criticism of the way in This jurisdiction under order 19, rule 28 differs from which the proceedings were handled. Barron J that of the inherent jurisdiction of the courts, in that criticised in particular the originating letter of claim in the latter the proceedings may be struck out issued by the plaintiff, which he described as before the pleadings are delivered (Barry v Buckley containing ‘standard O’Byrne letter provisions’, but [1981] IR 306). The jurisdiction of the courts under which made no reference to the nature of the order 19, rule 28 is somewhat lacking in real value. injuries sustained by the plaintiff or of any other The jurisdiction to strike out is intended to restrict material matter. In Barron J’s opinion, it was ‘a good the instances of abusive actions which come before example of the inadequacies of the modern approach the courts, but it is quite easy for a party with a to personal injuries actions’ and begged the question dubious claim to present it in such a way as to escape of how a defendant could be expected to admit being caught by the rule. The potential effect of liability for the consequences of some alleged action order 19, rule 28 is further undermined by the case when details of such matters were not brought to his of Sun Fat Chan v Osseous Ltd ([1992] 1 IR 425) and attention. To this effect, the judge stated that the approved in Ennis v Butterly ([1996] 1 IR 426), where it was held that the court should be slow to exercise the jurisdiction to dismiss an action on the basis that WHAT THE SUPERIOR COURT RULES SAY on admitted facts it cannot succeed. To this effect, Order 19, rule 28 provides that: ‘The court may order any pleading to be McCarthy J pointed out that ‘if the statement of struck out, on the ground that it discloses no reasonable cause of action claim admits of an amendment which might, so to or answer and in any such case or in the case of the action or defence speak, save it and the action founded on it, then the being shown by the pleadings to be frivolous or vexatious the court may action should not be dismissed’. order the action to be stayed or dismissed, or judgment to be entered Essentially, therefore, a defendant will be faced accordingly as may be just’. with an uphill battle in trying to have a plaintiff’s

19 Law Society Gazette November 2000 Litigation

discovered in a separate matter, champertous REASONABLE AND PROBABLE CAUSE proceedings, improper applications for judicial In considering whether the plaintiff has acted without reasonable or review, and proceedings for contempt of court or probable cause, the court will apply an objective test in considering the proceedings invoking the court’s supervisory power facts and the applicable legal principles. The plaintiff’s belief in the merits over its own officers. of the case will not usually be considered by the court when deciding if there was reasonable and probable cause. A counterclaim for damages? His belief may, however, be of relevance when the court considers any Where a motion to strike out fails – or where the legal advice he received. defence lawyer considers that it is unlikely to As a matter of course, the court should consider first whether the legal succeed – then he should consider making a advice given was correct (see Abbot v Refuge Assurance [1961] 3 AER counterclaim for damages for abuse of process. The 1074), but it should then also consider whether the plaintiff has misled fact that a motion to strike out proceedings is not his legal advisers in any way. In such circumstances, it may be that the brought will not be fatal to a defendant’s proceedings cannot be said to have been maintained with reasonable and counterclaim. It may be that matters were not clear probable cause if the action has been maintained on the basis of incorrect enough in the early stages for that relief to be facts. obtained. To this effect, McCarthy J in Sun Fat In the case of Crofter Properties Ltd v Genport Ltd (unreported, High Chan v Osseous Ltd commented that ‘experience has Court, 15 March 1996), McCracken J held that once ‘there was any shown that the trial of the action will identify a reasonable and probable cause to institute proceedings, they cannot variety of circumstances not entirely contemplated constitute an abuse of process’. That statement was made in the context at earlier stages in the proceedings; oftentimes, it of a case where the plaintiff had sued for breach of a number of may appear that the facts are clear and established, covenants in a lease and the defendant had counterclaimed that the but the trial itself will disclose a different picture’. proceedings as a whole were an abuse of the process of the court. While In the case of Dorene Ltd v Suedes (Ireland) Ltd McCracken J found that there was not reasonable and probable cause to ([1981] IR 312 at 333-4), the reasons why the issue proceedings in relation to two of the covenants, in his view this did plaintiff’s action could be said to have been not mean that the entire proceedings had been issued without reasonable maintained maliciously only came to light after and probable cause. counsel’s advice was received by the plaintiff. The Dorene case sets out that a claim for damages at common law will lie for the institution or doctor’s insurer’s criticism of the originating letter ‘A solicitor is maintenance of a civil action if it can be shown that of claim as being ‘disgraceful’ was ‘more than the action was instituted or maintained without justified at the time and became even more so by an officer of reasonable and probable cause, maliciously, and that the failure to be supplied with the details requested’ the court and the claimant has suffered actual damage. subsequent to the originating letter. Misleading one’s legal advisers will strengthen a The court’s inherent jurisdiction to strike out therefore owes defendant’s claim for damages for abuse of process proceedings so as to prevent an abuse of process in the court a (see Murphy v Kirwan [1994] ILRM 293 at 297), for civil proceedings further extends to cases where, the reason also that it will go some way towards notwithstanding that the traditional doctrines of res duty not to establishing the malice of the plaintiff. Indeed, it is judicata and issue estoppel are inapplicable, the abuse its difficult to envisage a situation where a plaintiff who circumstances are such that the issue or prosecution deliberately misleads his legal advisers could not be of proceedings would be vexatious or oppressive as processes’ said to be acting maliciously. amounting to an attempt to re-litigate a case which In relation to damage, the plaintiff should try to has already in substance been disposed of by earlier establish actual damage or otherwise show that the proceedings (see Ashmore v British Coal Corp [1990] impugned action is one which the law regards as 2 AER 981). This aspect of the court’s inherent causing damage. The claimant for damages for jurisdiction to prevent abuses of its process is abuse of process should inform the abusing plaintiff sometimes referred to as ‘the double jeopardy rule’ of any damage he is likely to suffer. So in the Dorene or ‘the collateral attack principle’. case, the defendant’s solicitor gave full details of a It has been considered recently in the case of substantial offer which the client was prevented McCauley v McDermott ([1997] 2 ILRM 486), where from accepting by the lis pendens and proceedings Keane J found the issue between the defendant and issued by the plaintiff. This is likely to counter any the third party to be res judicata and also that the pressure which a plaintiff who is persisting with defendant’s issuing of third-party proceedings was abusive proceedings may be trying to exert on a an abuse of process since the ‘only reason’ for defendant. instituting those proceedings was ‘to circumvent the One other important issue arises for a defendant final and conclusive judgment of the Circuit Court’. bringing proceedings for abuse of process, namely, Keane J made it clear that he would have struck out whether he can bring his claim against the plaintiff’s the third-party proceedings even if he hadn’t been solicitor also. In the recent Supreme Court decision able to find that they were res judicata. of Moffit v Bank of Ireland and Another (unreported, There are also other forms of proceedings which Supreme Court, 19 February 1999), Lynch J can amount to an abuse of process, namely delayed described such a scenario as being ‘untenable’. The proceedings, proceedings grounded on documents case involved a claim for damages against Bank of

20 Law Society Gazette November 2000 Litigation

Ireland’s solicitor on the basis that he had arranged will not be at all comfortable in revealing their legal for an allegedly false affidavit to be sworn and filed advice because of the professional ethics on the bank’s behalf. Lynch J said: ‘People are implications involved. entitled to the assistance of lawyers in maintaining actions and lawyers are entitled to render such Isaac Wunder orders assistance. The fact that such actions may prove to Where the circumstances of a case are such that a be unsustainable when tested in court renders the defence lawyer considers that the plaintiff may issue litigant liable for the consequences, but not the more abusive proceedings after the immediate lawyer’. proceedings have been struck out or determined, Likewise, Keane J stated that where a solicitor then he should apply to the court for an ‘Isaac ‘merely acts on his instructions’, no cause of action Wunder’ order. The order gets its name from the will arise against him as he is ‘merely discharging case of Wunder v Hospitals Trust (1940) Ltd his professional duties to the client he is acting for’. (unreported, Supreme Court, 24 January 1967 and The proceedings against the solicitor were struck 22 February 1972), where the court held that it had out as disclosing no cause of action. The blanket jurisdiction to restrain the institution of denial by the Supreme Court of a right of action proceedings without the leave of the court. against a solicitor who acts for a client who brings The Wunder case involved a plaintiff who abusive proceedings is somewhat unsatisfactory. A claimed that he had a winning ticket for a 1948 solicitor is an officer of the court and therefore sweep run. He had not, however, made any claim owes the court a duty not to abuse its processes. until 1962, and eventually claimed that he had Whether a solicitor should owe a duty to a destroyed the ticket in the mistaken belief that it defendant in any given case should was not the winning ticket. The fact that Mr probably turn on the solicitor’s degree Wunder’s claim was not well received by the court of knowledge. For instance, it is was summed up by Kenny J’s comment that ‘it is arguable that if the solicitor is difficult to imagine a more unlikely story’. In aware that the proceedings these circumstances, the court decided that Mr which his client is bringing Wunder would be permitted to issue a are abusive, then he should plenary summons but that no further steps be liable. were to be taken without the leave of the court. It pointed out that an intention to Procedural advantage produce evidence did not amount to The defendant to abusive evidence, and ruled that until such time as proceedings may also be Mr Wunder had evidence that he was the able to claim a significant procedural advantage. Where a defendant counterclaims for damages on EFFECTIVE USE OF DISCOVERY the grounds that proceedings are Discovery may also be used to good effect by abusive of the process of the court, a defendant in order to establish ‘agreed facts’. he may then be able to get discovery of In bringing a striking-out motion, it is imperative that all the plaintiff’s legal advice. In other the defendant ensures he will not be caught out by the words, by counter-claiming the defendant may be plaintiff producing some evidence of which he was unaware. This able to defeat a claim of legal professional privilege is obviously a risk if he decides to bring a motion to strike out before the in seeking discovery. In Murphy v Kirwan, the pleadings have closed. A practical example might be where a plaintiff is Supreme Court held that if a defendant could claiming ownership of land on the basis of unclear documentary title establish viable and plausible allegations of abuse of (there might be possessory title or contracts involved) and who might process, then he was entitled to discovery of the possibly produce more evidence of title at any stage before the close of plaintiff’s legal advice. It was not necessary in the pleadings. In such a case, it might seem to a defendant that his seeking such discovery to establish any allegation motion to strike out will succeed on the basis of, for example, a jus tertii of abuse of process as a matter of probability. (right of a third party), but on bringing the motion it might fail because the Essentially, as Mr Justice Peter Kelly plaintiff produces some further evidence of title. commented during a lecture at the Law Society, This is a good example of a situation where a motion to strike out can ‘documents evidencing the giving of legal advice be very tentative in that it relies on a single argument. In such a may be discoverable in circumstances where the situation, and especially because of the Barry v Buckley ([1981] IR306) motivation of the recipient of such legal advice is decision that there must be ‘agreed facts’, it is crucial to the success of relevant to the issues to be tried in an action such the motion that the defendant ensures, as far as possible, that there are as one for abuse of process’. This procedural agreed facts. In the example given, the defendant could go a long way advantage will probably be of greatest use in towards establishing agreed facts by seeking discovery of all the circumstances where the plaintiff has misled his plaintiff’s documents of title. A letter from the plaintiff’s solicitor or the legal advisers. Obviously, if a plaintiff’s legal use of a discovery order of the court should be enough to bind the advisers have been misled but, on discovering this, plaintiff. have nevertheless persisted with the claim, they

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Doctors face many tough ethical questionsLive when and making ‘end-of-life’ decisions for terminally-ill patients. The legal aspects of this dilemma are also thorny but, as Kieran Doran argues, American precedents for durable powers of attorney and living wills could help clarify the position here

t some point in their careers, many doctors will face the ethical and legal dilemmas related to ‘end-of-life’ decisions by or on behalf of terminally- A ill patients. Within some specialities this is part of the daily clinical workload and it is unfair that, even with the best professional or local guidelines, doctors and other healthcare professionals should have to make such decisions in the absence of a clear legal framework. The recent acquittal of English GP Dr David Moore on the issue of ‘mercy killings’ serves to highlight one extreme of a continuum which ranges from physician-assisted suicide through withdrawal of life support to a joint decision with a patient to cease treatment which might prolong life but reduce its quality. The withdrawal of treatment from a patient was an issue addressed by the Ethics Committee of the British Medical Association (BMA) in a report published last June (Withholding and withdrawing life-prolonging medical treatment: guidance for decision-making, BMJ Books, 1999). It took the position that current proposals to withdraw treatment such as artificial nutrition and hydration require legal review, but the courts have not specified what ought to happen in the case of patients with serious conditions of dementia or a very severe stroke. This position, the BMA Ethics Committee argues, leaves doctors in an area of legal uncertainty, which is open to legal challenge.

Mercy killings and assisted suicides In Ireland, there has been no case in relation to mercy killings, though there is a distinction made between mercy killings and assisted suicide. In the case of In Re Ward of Court ([1995] 2 ILRM 401), however, Mr Justice Hamilton stated that the ‘court can never sanction steps to terminate life’. In addition, the Irish Medical Council has stated categorically that deliberately causing the death of a patient is considered professional misconduct

26 Law Society Gazette November 2000 Medico-legal

(Medical Council: A guide to ethical conduct and behaviour, fifth edition, 1998). While the lack of clarity in English and Irish law on this issue potentially places doctors in legal jeopardy, this is not the case in all jurisdictions. In let die the state of Illinois in the USA, there is a legislative framework which, even if not immediately applicable here, would provide a useful starting point for discussion about systems which may remove healthcare professionals from this invidious position. In Illinois, the judicial concept of durable power of attorney and living wills are used in tandem with the Illinois Healthcare Surrogate Act to ensure that doctors have a clear framework within which to make ‘end-of-life’ decisions. In Illinois, competent adults have the right to make decisions about their healthcare. The state courts have recognised this right, even where a person has become incapacitated through injury or illness. So, in effect, there is a legal right to accept or refuse any medical care, including life-sustaining treatment. In order that patients can make these decisions, they have the right to be adequately informed about their medical condition, possible treatment alternatives, likely risks and benefits of all clinical options, and any implications for their overall health and medical prognosis. Illinois law now requires that patients be informed of their right to execute an advance directive, which can help ensure that their wishes are complied with, even in the event that they are no longer capable of making or communicating such personal decisions.

Power of attorney for healthcare A power of attorney allows the patient (the principal) to delegate to another person (the agent) the power to make any healthcare decision that the principal would ordinarily be entitled to make. The scope of the power given to the agent can be as broad or narrow as the principal wishes it to be, while it grants the agent a wide-ranging decision-making power that the principal may limit, if he wishes. The • Lack of law in Illinois does not, however, require that this clarity puts particular form be used. doctors in This agency relationship created by the power of legal attorney also protects the rights of third parties jeopardy should the principal become incompetent. The agent • Durable will have final decision-making authority, even over power of that of a court-appointed guardian. But a court may attorney and intervene when it is proven that the agent is not living wills • The Illinois acting for the principal in accordance with the terms Healthcare of the power of attorney. Surrogate The agent cannot accept payment. A replacement Act may be appointed in the event that the named agent

MAIN POINTS cannot or will not serve. The patient must inform

27 Law Society Gazette November 2000 Medico-legal

those that ‘serve only to postpone the moment of DEFINITIONS IN THE ILLINOIS LEGISLATION death’. Procedures to ease pain, or the provision of In relation to the term ‘qualifying condition’, the Healthcare Surrogate Act artificial means of feeding and hydration, are not has a lot of important definitions. considered to be ‘death-delaying procedures’ for the Terminal condition refers to an illness or injury for which there is no purposes of a living will. The patient must inform the reasonable prospect of cure or recovery, death is imminent, and the physician of the existence of the living will, and if the application of life-sustaining treatment would only prolong the dying latter does not wish to comply with the provisions of process. this document he must inform the patient, who may Permanent unconsciousness refers to a condition that, to a high then transfer to another doctor. In addition, the degree of medical certainty: patient may revoke the will by destroying it or •Will last permanently, without improvement indicating orally or in writing that he is terminating • Is a condition in which thought, sensation, purposeful action, social it. If the patient is pregnant, and death-delaying interaction, and awareness of self and environment are absent, and procedures would allow foetal development to the • Is a condition in which initiating or continuing life-sustaining treatment, point of live birth, the living will cannot be effective. in light of the patient’s medical condition, provides only minimal If the patient has both a living will and an agent with medical benefit. power of attorney for healthcare, then the living will does not take effect unless the agent is not available. Incurable or irreversible condition refers to an illness or injury for which If there is no advance directive executed, decisions there is no reasonable prospect of cure or recovery, or that will ultimately regarding patient healthcare will have to be made by cause the patient’s death even if life-sustaining treatment is initiated or someone else, and may place additional burdens on continued. In addition, it inflicts severe pain or otherwise imposes an the patient’s family or physician. In the event that the inhumane burden on the patient, and life-sustaining treatment, in light of patient lacks the ability to make decisions and suffers the patient’s medical condition, provides only minimal medical benefit. from a terminal disease, permanent unconsciousness Decisional capacity means the ability to understand and appreciate the or an incurable or irreversible condition, a healthcare nature and consequences of a decision about forgoing life-sustaining surrogate may be chosen to make life-sustaining treatment, as well as the ability to reach and communicate an informed decisions on his behalf. In Illinois, this latter decision in the case. This is determined by the attending physician. arrangement is given legal expression through the Forgoing life-sustaining treatment means withholding, withdrawing or Healthcare Surrogate Act. terminating all or any portion of life-sustaining treatment in the knowledge that the patient is likely to die. The Healthcare Surrogate Act Life-sustaining treatment is defined as any medical treatment, The Illinois Healthcare Surrogate Act defines the procedure or intervention that in the judgement of the attending circumstances under which decisions to terminate physician would not be effective to remove the ‘qualifying condition’ or life-sustaining treatment may be made, without would only serve to prolong the dying process, including assisted judicial involvement, by surrogate decision-makers on ventilation, renal dialysis, surgery, blood transfusions, and the behalf of patients lacking decisional capacity. The act administration of drugs, antibiotics, artificial nutrition and hydration. establishes the priority by which ‘surrogate decision- makers’ may be identified and their authority to forgo life-sustaining treatment on behalf of a patient if he the physician of this agency relationship. Although has a ‘qualifying condition’ and lacks ‘decisional there is no duty to act, an agent must keep a record of capacity’. How are these terms interpreted under the all decisions made on his authority. This appointment act? may be terminated at any time, either orally or in First of all, ‘surrogate decision-maker’ refers to an writing, but modifications can only be made in writing. adult who has the capacity to make decisions and is available to act in this capacity upon reasonable Living wills request. He must be willing to make decisions about The living will allows patients to outline their wishes life-sustaining treatment on behalf of a patient who regarding death-delaying procedures should they lacks ‘decisional capacity’, and is diagnosed as become terminally ill. Because a living will is a statutory suffering from a ‘qualifying condition’. The surrogate creation, the law must be clearly followed in order for it decision-maker can be selected in the following order to be legally effective. The living will is provided in a of priority: specific form, but does not require the use of that • The patient’s guardian particular version. It may also be activated by any • The patient’s spouse person who is able to make his own decisions and who • Any adult son or daughter is at least 18 years old, but it will not be operative until •Either parent the individual in question is in a terminal condition. A • Any adult brother or sister terminal condition is defined as ‘an incurable and • Any adult grandchild irreversible condition which is such that death is • The patient’s guardian of the estate imminent and the application of death-delaying •A close friend. procedures serves only to prolong the dying process’. Once the patient is in this irreversible state of The big picture health, the living will can say that no ‘death-delaying So how does this whole legal framework operate in procedures’ should be undertaken. Such procedures are practice in Illinois? It would be instructive to examine

28 Law Society Gazette November 2000 Medico-legal the policy adopted in the Chicago-based hospital authorised to seek the withdrawal or withholding of Rush-Presbyterian-St Luke’s Medical Center. appropriate artificial hydration. A doctor must document the existence of a The option of implementing advance directives ‘qualifying condition’ on the hospital’s Healthcare such as durable powers of attorney and living wills Surrogate Act physician certification form, including the should be seriously considered. It is a constructive cause and nature of the condition in question. approach to legally recording the patient’s wishes Whether or not the patient has one or more of the prior to undergoing any hospitalisation or course of ‘qualifying conditions’ and lacks ‘decisional capacity’ medical treatment. These can be filed in the patient’s has to be noted. A note must also be made of the medical records, and can be used as an irrefutable cause, nature and duration of this lack of ‘decisional record of the patient’s true wishes. In addition, these capacity’, which is to be made to a reasonable degree legal instruments can be operated in conjunction of certainty by the physician. A formal identification with legislation similar to that adopted in the state of of the surrogate decision-maker is required, along Illinois, namely the Healthcare Surrogate Act. If with documentation of his or her decision, as well as adopted in England or in Ireland, these instruments the substance of any discussion conducted with the would further eliminate legal uncertainty. This patient’s agent. would prioritise and protect patients’ wishes through The patient must be informed of the identity of the the implementation of advance directives, while decision-maker and the nature of any decision that having in place a contingency whereby those closest has been made. Any such decision can be reversed if to them can make decisions regarding medical the physician believes that the surrogate is not acting treatment in the event of medical and mental in accordance with his or her responsibilities, or is incapacity. unable to do so for reasons of conscience or other While there are no perfect solutions to this ethical consideration. There has to be a concurring imperfect situation, a framework based on the physician in relation to the finding of a ‘qualifying Illinois model would at least spare all concerned the condition’, and that second doctor’s opinion must be legal uncertainty which can confound the efforts of reached through a clinical examination, as well as a doctors, relatives and patients to determine what is determination that the patient lacks ‘decisional best in the most difficult of circumstances. G capacity’. All the relevant documentation has to be filed in the patient’s medical records. For new-born Kieran Doran is an apprentice with Gannon & Liddy babies, the healthcare surrogate decision-maker is not Solicitors.

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29 Law Society Gazette November 2000 Gadgets Tech trends By Maria Behan

Not-so-idiot For the disk jockeys in your firm box ith an increasing amount designed to address by allowing Wof legal information several people simultaneous ired of what’s on TV? You stored in CD-ROM format, access to disks stored in a central Tcan expand the possibilities solicitors’ firms need to be able repository. The server provides with the new 14-inch Black to access and share access to information stored in Diamond NetSET from information on disks easily. both CD-ROM and DVD Mitsubishi. It operates as a Passing disks from desk to desk format. The CDS7 houses seven plain-vanilla boob tube until can mean lost or damaged disks and is priced at £1,595; the you whip out the keyboard disks – or, even uglier, a tug- 14-disk capacity CDS14 runs to trickily concealed in the remote of-war over vital £2,050; both are available from control and, hey presto, you’re information. These are Sandyford Office Solutions on 01 using your sleek silver set to precisely the problems the 294 3367, e-mail: surf the net or send and receive Avantis Cdserve+ was [email protected]. e-mails. And you can send the rug rats on-line in good conscience, since the NetSET The smart money’s on the cat features a ‘Net Protector’ system that lets parents lock ong the province of science out material that’s unsuitable Lfiction, the intelligent house for kiddies. Available from is well on its way to becoming a electronics outlets, priced £349. reality, thanks to the Secant Cardio home automation system. It won’t dump you out of bed and into the shower or even brush you teeth for you, but a remote control system does allow you to turn on the unit which ties into the alarm coffee pot, or almost any other system and allows control of household device, while you’re lighting, heating and many still lolling in bed. You can also appliances is available for about access the system remotely, for £3,700; the price varies based instance, calling home from the on the size of house and degree office to play the radio for your of customisation required. cat or turn on the heating so Contact IT Distributors on 01 the house is nice and toasty 413 9684 for further when you get home. A basic information. Your computer’s best friend? illed as ‘PC companions’, once you’re back at the ranch, voice memos. When the Bthe pocket computers in you can synchronise functions time finally comes to goof Hewlett-Packard’s Jornada 540 such as calendars, ‘to-do’ lists off, you can use your pocket series are designed for and address books with your computer to listen to professionals who want to store desktop or notebook PC. And audiobooks, play MP3 songs and access business and Jornada lets you take Microsoft or curl up with an e-book. personal info wherever they Office documents with you, The Jornada 545 comes with might find themselves. The since it runs pocket versions of 16 MB of memory and costs Jornada lets you input fresh Word and Excel. You can also about £470 at computer and information like contact names surf the web and stay in touch electronics outlets, while the 548 and phone numbers while via e-mail, not to mention has 32 MB and will cost you’re out and about. Then, recording and playing back around £550.

30 Law Society Gazette November 2000 Gadgets Ready for your close-up?

he video cameras in technology. They also feature during night shoots (or other TSony’s Digital 8 swivel-screen LCD displays low-light conditions). The Handycam range do double that give you a pretty good DCR-TRV320 is available for duty as digital still cameras, preview of the images you’re about £850 from Sony Centres thanks to something Sony capturing and an infrared and other camera and electronics likes to call ‘memory stick’ system that will come in handy outlets. Sites to see

Hieros Gamos (http://www.hg.org). Billing itself as ‘the FirstLegal (www.firstlegal.ie). Claiming to be ‘Ireland’s first on- comprehensive law and government portal’, this site offers line legal service’, this site links a network of solicitors from everything from timekeeping to audio seminars to a powerful different areas of law with those who are interested in getting search engine that whips through 11,000 law and government legal information on topics ranging from buying an apartment sites to find the information you need. As its explanatory write- to making a will. Solicitors may find it a useful link to potential up proudly proclaims, ‘If you cannot find the your [sic] legal clients (information on joining the network is available on the materials from HG, they do not exist’. Maybe the site could use home page), and those seeking legal information will appreciate a better proof-reader, but you can’t fault it for lack of ambition. the fact that the site is truly interactive, a rare enough commodity in the on-line world. In fact, the site guarantees a response to queries within one working day.

Gaijin A Go Go (www.gaijinagogo.com). Not for the faint- hearted, this site purports to ‘assassinate your tastebuds’ with video clips of Western celebs such as Demi Moore and Antonio RTÉ News Page (www.rte.ie/news). Irish newshounds will revel Banderas selling their little hearts out for Japanese TV. If you in this site, which provides all the latest on wars, woes, scandals want to have a laugh, send an electronic postcard of a celebrity and sorrows. It’s also a good way to keep up with RTÉ radio behaving badly, or simply feel superior, this is the site to visit. and broadcast offerings.

31 Law Society Gazette November 2000 Intoxicating Liquor Act 2000 Independent & Expert Advice

The Intoxicating Liquor Act 2000 contains new provisions for the Transfer of publicans’ licences from rural areas to urban areas. Do you represent a client who is interested in selling or purchasing a publican’s licence ? For independent expert advice on valuation and transfer , contact J.J. Bunyan - 14 years experi - ence in identifying publicans’ licences for pur - chase and transfer today.

Licensing Information & Consultancy Services "Viewmount", Duntaheen, Fermoy, Co. Cork. Tel. 025/32168, Fax. 025/32639 Mobile 086/2634492 email [email protected]

Building AUSTIN REDDY & COMPANY for QUANTITY SURVEYORS your CONSTRUCTION ECONOMISTS COST ENGINEERS suc- Congratulations to The Law Society on The New Education Centre

Another Successful Procurement J.V. Tierney & Co.

19 Pembroke Park, Donnybrook, Dublin 4 Phone: 01 497 6761 Telephone: 353 1 668 3479 – 668 9633 Fax: 353 1 668 9629 E-Mail: [email protected] Email: [email protected] Fax:01 497 6909 Mobile: 087 236 1472 2 OCTOBER 2000 HISTORIC DAY

FOR THE SOLICITORS’ PROFESSION

A special supplement on the Law Society’s new Education Centre Education Centre

The Law Society’s new Education Centre is now open for business and playing host to 360 apprentice solicitors. In this special feature, we focus on last month’s official opening by President Mary McAleese

he Law Society’s new £5 million education centre was officially opened by President Mary McAleese on Monday 2 October. Among the invited guests at the ceremonyT were senior members of the judiciary, Law Society Council members, legal academics, representatives of the local community and of the law societies in neighbouring jurisdictions. The opening ceremony itself was held in the centre’s new state-of-the-art lecture theatre, where Law Society President Anthony Ensor welcomed An Uachtarán. Describing the occasion as ‘an historic day for the Law Society and the solicitors’ profession’,

34 Law Society Gazette November 2000 Education Centre

President Anthony It wasn’t like this in our day: Director of Education TP Kennedy Ensor welcomes (second from right) is joined by his predecessors, (left to right) Dr everyone ‘on this he said: ‘It is entirely appropriate President Albert Power, Professor Richard Woulfe and Professor historic day’ McAleese will be formally opening our new Lawrence Sweeney Education Centre and our relocated and expanded library. She is steeped in the tradition of legal education, having lectured in Trinity College, Dublin, and spent many years as director of the Institute of Professional Legal Studies at Queen’s University, Belfast. Ensor then went on to quote from the First report of the Society of Attorneys and Solicitors in Ireland, published on 10 May 1842: ‘It will be the duty of the society to provide proper accommodation for the delivery of lectures and otherwise improving the practical education of their apprentices’. And he noted that ‘Our aims have not changed since 1842 but – due to the construction of this superb new Education Centre – our accommodation certainly has’. President McAleese then addressed the 200 guests who had gathered for the formal opening. Describing the new building as ‘the stuff of dream and the imagination’, she said the decision to build a new centre for the training of solicitors’ President McAleese is greeted by Director of Education TP apprentices was ‘a statement about the future for Kennedy

Continued on page 39

Serious faces – four former Law Society Presidents (front) Patrick Glynn and Laurence K Shields and (rear) Adrian P Bourke and Ernest and Margetson

Eyes on the prize: (left to right) Education Committee Chairman Michael Peart, Junior Vice-President Owen Binchy, Senior Vice-President Ward McEllin, President Mary McAleese, Law Society President Anthony Ensor and Director General Ken Murphy watch the specially-prepared video

35 Law Society Gazette November 2000 Education Centre

FULL TEXT OF PRESIDENT MARY McALEESE’S ADDRESS ver a successful completion. year ago, ‘The Law Society has been I saw the historically charged with model of responsibility for the education this build- of solicitors. It’s a role which I ‘Oing before any construction have some particular insight work had started, when it was into from a past life. It is a still the stuff of dreams and truism to remark on the pace imagination. I am delighted to of change affecting every see that the reality has lived aspect of life and every kind up to, and indeed probably of livelihood, but few surpassed, all expectations. It professions have faced the is, of course, more than a avalanche of change which building. It is a statement has engulfed the law. While about the future, the shape of moving with the new that future and what lies at technologies, the demands of the heart of it for the legal the consumer, the changes in profession. In this marriage of the labour market, the sheer old and new, of traditional and volume of this thing we call modern on the Law Society “the law” has grown to campus, this building is a very gargantuan proportions. From important crossing point from flotations to tribunals, from past to future. interpreting EU directives to ‘The Smithfield area of developing our constitutional Dublin has had quite a make- jurisprudence, from drafting over in recent times. Now to wills, to making life and death its rich architectural heritage decisions on finely-tuned has been added this centre ethical and moral with its contemporary design considerations, the lawyer’s which complements the life is a kaleidoscope of the historic premises of the Law most diverse endeavour. Society and the heritage of the ‘Somehow, the education area as a whole. It puts the and training of new mark of another generation on generations of law students the history of this city and this has to prepare them for this profession. world. It has to equip them ‘The entire £5 million cost with the skills and confidence is, I know, being borne by the they will need to begin growing profession, and that in itself their careers, and it has to says something about the convince the rest of the commitment of this generation profession and the public that of lawyers to excellence in this is a job done well. Today’s professional education and young lawyers will be called to formation as well as to the absorb much change over their aesthetics of the capital city. I lifetimes but, like a spine congratulate everyone who running through all that has supported the project and change, one thing cannot who has worked towards its change and that is the call for

36 Law Society Gazette November 2000 Education Centre

(Right, top to bottom)

So you designed it: President McAleese meets Education Centre architect Sean Mahon of Brian O’Connell Associates

Immediate past-president of the Law Society Pat O’Connor (left) with Vice Chairman of the Bar Council Fergal Foley BL

A judge’s joke is always funny: Member of the Education Policy Review Group Judge John Buckley has Council member Geraldine Clarke in stitches

We helped to plan it: Education Committee mem- ber John Harte (left) and former chairman of the Education Policy Review Group Raymond Monahan

Chief Executive of the Courts Service PJ Fitzpatrick (left) and President of the Circuit Court Esmond Smyth

37 Law Society Gazette November 2000 Education Centre

each to be exemplars and islands and much farther ambassadors par excellence afield. of a profession which the ‘Once again, you lead the public has confidence and field. In a few days’ time, this trust in. centre will welcome 360 new ‘This generation has professional practice course witnessed a dramatic increase students. They will enter a in the number of solicitors new building and also a newly- practising in Ireland. Their introduced new educational milieu is Ireland and Europe; model. They will have an outward-looking Ireland extensive computer training Four presidents: (left to right) President of the Law Society of Scotland Alistair Thornton, President Mary McAleese, Law Society dynamically engaged with facilities and state-of-the-art President Anthony Ensor and President of the Law Society of many parts of the globe. Their technology at their fingertips. Northern Ireland John Meehan milieu is the complexity of Many of us who have been Irish life but that, too, may down the older and more routinely involve trans-border travelled roads would wish to and global legal practice. The have been born a generation demands made of them are or two later! Yet for all the considerable. gadgetry – and it is important ‘You, as a profession, have gadgetry – they will still learn taken that message to heart. in this place and in their You know that in order to professional lives that the law provide a quality service, is fundamentally about people, tailored to the needs and about the intricacies and expectations of clients, the consequences of human modern lawyer must be very behaviour. comfortably adapted to this ‘Over 2,000 years ago, changed and changing Cicero wrote that “the good of environment; he or she must the people is the chief law”. It Distinguished guests: (left to right) Chief Justice Ronan Keane, former Law Society president Michael V O’Mahony, President of the District be out in front, not lagging is a motto still worth keeping Court Judge Peter Smithwick and President of the High Court Mr behind. In this place, they will to the forefront of our minds Justice Frederick Morris learn new skills, new as we look to the needs of our st applications; they will unlearn society in the 21 century, All smiles: a relaxed and informal President McAleese jokes on the way ways that are past their sell-by and the role that lawyers can to the Presidents’ Hall for lunch date and they, in turn, will play in addressing those become the next generation to needs. Looking at this drive forward this profession building, at the financial with foresight and investment in it and the commitment. intellectual investment in what ‘As was remarked a goes on in it, I think the Law moment ago, in another life I Society of Ireland can take was privileged to have a righteous pride in the particular insight into the work profession as it sets out on here at Blackhall Place and I the journey through this new am very proud of the fact that millennium. this society’s high reputation ‘It gives me great pleasure for leading-edge legal to open this new building professional training courses and to wish every student is, and long has been, who passes through its acknowledged by its doors every success in the counterparts across these future’.

38 Law Society Gazette November 2000 Education Centre

‘Once again, you lead the field’

– PRESIDENT MARY McALEESE Suits you sir! President McAleese fiddles with Tony’s trinkets the legal profession’. Michael Peart who thanked by The full text of President name the many members of McAleese’s speech appears on the Law Society staff and pages 36 and 38. others whose remarkable Before the formal unveiling of the efforts had ensured that the plaque to mark the opening of the Education Centre project had centre, the audience was treated to been completed on time and a short video, specially on budget. commissioned for the occasion, But for President McAleese, charting the steps that led to the the day wasn’t finished yet. construction of the new building. While the guests mingled and Using archive footage of the enjoyed a glass of wine in the previous education and training atrium of the Education system for apprentices, combined Centre, Director General Ken with shots of the centre as it began Murphy and President Anthony ‘Can I be one of your motorbike to take shape and interviews with Ensor brought An Uachtarán to see outriders?’ appears to be the question Law Society immediate past-president those most closely associated with the society’s new, bigger and better Pat O’Connor is putting to President the project, the video graphically library, which has found a new home McAleese demonstrated how far the society in what used to be the student’s had come in a few short years. lecture hall. The final speaker was Law Society Expanded library facilities were Education Committee Chairman essential to cope with the influx of

39 Law Society Gazette November 2000 Education Centre

so many new apprentices at Blackhall Place, especially since the remodelled professional practice course demands much more individual research by apprentices than before. The new library has 30% more floor space, two new staff and offers greater IT resources, including a bank of 12 PCs where visitors can access the library catalogue and the Internet. There is also a discrete study area for apprentices which has been networked to the Education Centre’s IT system. As Director General Ken Murphy put it: ‘Every generation has to meet its own challenges. Ours was to construct an education and training system for the solicitors of the 21st century – a system that would be at least on a par with the best anywhere in the world. I believe that history will show we have succeeded’. G

Education department staff members (left to right): Patricia Murphy, Sara O’Connor, Colette Reid, Brid Moriarty and Triana Murphy

Library line-up: (left to right) Deputy Director General Mary Keane, President Anthony Ensor, President Mary McAleese, Director General Ken Murphy, and librarian Margaret Byrne. Back row (left to right): library staff members Eddie Mackey, Mary Gaynor and Aoife O’Connor

It’s a deal: President Anthony Ensor with local TD Tony Gregory

40 Law Society Gazette November 2000

Briefing Report of Law Society Council meeti

Motion: Scheme of its operation would be urged that the society should short term. If the only proposal assistance reviewed after a trial period of maintain pressure to ensure an that was likely to improve ‘That this Council approves the 12 months. It was also agreed improvement in the business matters was the move to semi- scheme of assistance for solicitors that no member of the society’s relationship between the state status, he believed the about whom a complaint has been regulatory committees could registry and the profession. In society should not withdraw its made to the Law Society or who act as a panel member and that his view, the registry was support for that proposal. are in difficulty with the Law no Council member could failing to perform a statutory The president agreed that Society.’ participate in the scheme, function. the society had to support the Proposed: Keenan Johnson either while serving on the Orla Coyne said that there registrar in any steps that might Seconded: John P Shaw Council or for a period of had been no need for the reasonably improve the service three years thereafter. increase in fees introduced in being provided. He also felt Keenan Johnson explained that the fees orders and there was a that the society should keep the scheme of assistance was Land Registry and Registry sufficiency of funds already open the lines of designed to meet concerns of Deeds generated by the registry. She communication with the expressed by the independent The president reported on a noted that, at an EGM of the registry and it might be adjudicator regarding the meeting with the registrar of DSBA, a mandate had been necessary to approach the extent to which solicitors failed titles, at which the society had received to issue proceedings profession to secure its to respond to correspondence been represented by the against the minister. assistance in improving the from the Law Society in president, the director general The president noted that the quality of its dealings with the relation to complaints from and the chairman of the Department of Finance had registry. clients. It was intended that a Conveyancing Committee, sanctioned the recruitment of Keenan Johnson expressed panel of solicitor colleagues, Brian Gallagher. There had 60 additional staff in the his support for a collaborative operating independently of the been a frank exchange of views registry. However, the relationship with the Land Law Society, would agree to act and the society had been very recruitment procedure was so Registry. He said that the as a ‘best buddy’ for colleagues forceful in relation to the tortuous and the level of pay so registry’s difficulties arose who were in difficulties. recent fees orders. The low that it was unlikely the because of a massive increase in Following a suggestion from registrar had outlined the registry would succeed in its the number of dealings and a Hugh O’Neill, the Council difficulties she faced, including efforts to recruit those staff. reduction in the number of confirmed that the scheme the likely impact of Donald Binchy said that it staff, with the responsibility for would operate on the basis of a decentralisation on the services seemed clear that very little the difficulties resting firmly solicitor/client relationship and provided. John Dillon-Leetch was going to improve in the with the government. The Report of Law Society Council meetin

Motion for November meeting to various debates at the attorney general in relation to Tuesday, the minister for ‘That this Council recommends annual meeting of the legal vacancies in the state justice had stated that there that practitioners be asked, on the American Bar Association, he service (full text of the was no legal prohibition on a practising certificate application believed it was incumbent on correspondence is set out on solicitor becoming attorney form, to make a voluntary the society to treat conflict of pages 6 and 7) and affirmed general. contribution to FLAC (in the interest situations very the Council’s position that all same way as the Solicitors’ carefully. He suggested that a legal posts should be open to EU directive on money- Benevolent Fund).’ task force might be established the best candidate – whether laundering Proposed: James MacGuill to consider the issue. The solicitor or barrister. This Mary Keane briefed the Seconded: John Costello president asked that the senior reflected the same principle Council in relation to vice-president would give underpinning the society’s developments with the EU Motion: Family law disputes consideration to this position in relation to judicial directive. An amended text of ‘It is the view of this Council that suggestion when appointing appointments and was totally the article relating to legal it would be unprofessional conduct committees for the coming defensible. The view was professionals had been for a solicitor to represent both year. expressed that the attorney proposed and was likely to be parties in a family law dispute.’ general’s position was based approved by the Council of Proposed: Sean Durcan Vacancies for legal purely on a ‘division of the Ministers. It envisaged the Seconded: Stuart Gilhooly assistants in the Attorney spoils’ in numerical terms and reporting of suspicious General’s Office was not defensible on any transactions by solicitors and, The Council unanimously The Council considered ground of principle. The accordingly, was not acceptable approved the motion. Michael correspondence between the director general noted that, in to the society. Geraldine Irvine said that, having listened director general and the the Dáil on the previous Clarke confirmed that, while

42 Law Society Gazette November 2000 Briefing ng held on 8 September

director general noted that the Anne Colley said that the registrar of titles and to take pertaining to the convention in proposed move to semi-state Land Registry was at the steps to assist the registry in its their jurisdiction. He noted status was proffered by the wrong end of a confluence of difficulties, without losing that £6 million had been minister and the registrar of problems, including an sight of the business problems expended in Scotland with a titles as the way forward. increase in activity, for practitioners. view to training lawyers and Potentially, the society’s support decentralisation, a judges in that jurisdiction on for the move to semi-state status haemorrhage of staff and Multi-disciplinary all relevant aspects of the might increase the priority with difficulties associated with partnerships/practices convention. The Council which the registry was regarded computerisation. It was likely The Council noted, with noted that a conference on the by the government. that a move to semi-state approval, the text of a issue would be held at the John Harte said that there status, with some autonomy resolution in opposition to society on 14 October. were very basic problems with from centralised systems, MDPs, which had been passed the service provided by the would result in a more by the American Bar Apprentices’ salaries registry, including the attractive proposition for Association at its annual The Council considered, and requirement for personal potential recruits. meeting. approved, a proposal from the attendance to secure a folio and Patrick O’Connor said that, Education Committee for an a map. Unless the society if the society and the European convention on increase in apprentices’ salaries obtained a guarantee of an profession made a concerted human rights to £200 a week pre- improvement in service effort, it should be possible to James MacGuill reported that, professional course I, £265 a resulting from a move to semi- assist the registry in identifying although there was a week during the period of in- state status, he did not believe and progressing solutions. He commitment by the Irish office training and £315 a week that the society should support suggested that the Land government to introduce the post-PPC-II. such a move. Registry might be asked to European convention into Michael Peart suggested that nominate members of their Irish law by 2 October, 2000, Registry of Friendly the society should assist its staff to act as facilitators on no legislation had yet been Societies Users’ Council members by running CLE CLE courses, which could be placed before the cabinet. The The Council unanimously seminars, issuing checklists and, run as a joint venture between society was to meet shortly approved the nomination of in general, adopting a shared the society and the registry. with lawyers from Scotland William Johnston as the approach with the Land The president said that he with a view to sharing their society’s representative on the Registry to dealing with the would seek to progress a experiences in relation to the Registry of Friendly Societies difficulties. positive relationship with the introduction of legislation Users’ Council. G ng held on 13 October

there was a high level of Report on legal aid for how best to promulgate the last meeting of the Council disagreement between the refugees contents of the report to the after 23 years’ service. The French and German The Council considered, and profession and to government. president complimented Mr representatives on the issue, it approved, a report from the Smyth on his dedication and was virtually certain that the Family Law and Civil Legal Aid Andrew F Smyth, past commitment over so many amended text would be adopted Committee on the provision of president years and presented to him a by ECOFIN. It would then legal aid to applicants for refugee The President paid tribute to small token of the Council’s move to second reading by the status in Ireland. It was agreed Andrew F Smyth, past appreciation of his contribution European Parliament. that the officers should consider president, who was attending his to the work of the society. G Law Society Bushmills Millenium Malt 25 YEARS OLD £85 (plus £9 post and packaging) First come, first served. Only one bottle per member Contact Alan Greene, Bar Manager, Law Society of Ireland, Blackhall Place, Dublin 7, tel: 01 6724919, e-mail: [email protected] MEMBERS ONLY SPECIAL OFFER

43 Law Society Gazette November 2000 Briefing Committee reports

PROFESSIONAL nally occurred. In simple terms, LITIGATION a dwelling (a mobile home INDEMNITY INSURANCE if a solicitor acts in a con- will not be treated as residen- veyancing transaction in the High Court public computer tial property for the purposes Renewal of PII cover current year for a figure of system: information seminars of this tax), and I would like to take this oppor- £3m, it will not only be neces- Practitioners may wish to note •Land which the occupier of tunity to advise you to serious- sary for that solicitor to that the High Court Central such a building or part there- ly consider the particular cir- increase his professional Office is running a series of of has for his/her own occu- cumstance of your practice indemnity insurance cover to information sessions for users of pation and enjoyment with when you come to renew your £3m for the current year, but it the Central Office Public the said building or part as its professional indemnity insur- will also be necessary to take Computer System. The session garden or grounds of orna- ance cover for the forthcoming out a similar level of cover for a takes place each Friday morning mental nature. year. The committee has taken considerable period of time in at 9.30–10.00am and will be the view that the mandatory the future. The likely increase repeated every Friday morning Transitional arrangements level of professional indemnity in the value of the said proper- in Michaelmas term, up to and • Any property to which a per- insurance cover should remain ty should also be taken into including Friday 22 December. son was beneficially entitled at £1m each and every claim. account when renewing cover. Attendance is free of charge on 14 June 2000 is not liable However, this level of cover The committee has been and those wishing to attend to the tax except in the case may not be sufficient to pro- advised by the qualified insur- should submit their name to the of a principal residence vide every practice with an ade- ers providing professional list room or contact Patrick which is replaced after 14 quate level of professional indemnity insurance cover to Johnson on 01 888 6505. Only a June 2000 but retained after- indemnity insurance cover. the profession that costs are limited number of places are wards as an investment Each practice should imme- now forming an ever-increas- available per session, so early •Property purchased before diately review its requirements ing part of claims and this booking is essential. 15 June but not conveyed in this regard in the light of the should also be taken into Litigation Committee until on or after that date is nature and extent of the prac- account when deciding on the only exempt if the contract tice being carried out. Such level of cover necessary. was evidenced in writing consideration is advisable both In these circumstances, I PROBATE, before that date from the perspective of the would strongly advise every ADMINISTRATION •Property built after 14 June protection of clients and of the practice to carry out an audit of AND TAXATION 2000 on land to which a per- practice itself. all work intakes, which might son was beneficially entitled In addition, practices con- require them to review their on that date will not be liable ducting conveyancing transac- actual professional indemnity TAX BRIEFING to the tax. tions should take into account, insurance cover requirements The following extract from when considering their profes- in relation to the type of prac- Tax briefing, issue 51, is Exempt residential property (apart sional indemnity insurance tice they operate. Practices are reproduced by kind permis- from main residence) requirements, the fact that if advised to take professional sion of the Revenue As well as the exemption of an top-up cover (cover in excess of advice from either their insurer Commissioners. individual’s principal private £1m each and every claim) is or broker in this regard. residence, an exemption from obtained for any particular The committee is currently Anti-speculative property tax the tax applies where: conveyance, that such cover reviewing the minimum level of The Finance (No 2) Act, 2000, • The property was acquired will be required for an exten- cover as provided for in the which was enacted on 5 July by the current owner as an sive period of time and ought regulations and is considering 2000, includes provision for a inheritance properly to take into account recommending an increase in new tax called the anti-specula- • The property was acquired as increasing property values. the minimum level to £2m each tive property tax. The anti- a gift so long as the donor The matter that requires and every claim with effect speculative property tax applies, owned the property prior to direct focus is that professional from 1 November 2001. in general, to residential prop- 15 June 2000 indemnity insurance cover pro- Please note that the erty in the state which is • The property is let and the vided is on a claims-made basis Professional Indemnity Insur- acquired on or after 15 June landlord has complied with and the relevant level of cover ance Committee is happy to 2000 and which is not the prin- the registration, rentbooks necessary in any circumstance receive any queries a solicitor cipal private residence of the and standards regulations should be that which is suffi- may have and to assist members new owner. provided for under the cient at the time the claim is where possible. Residential property is: Housing (Miscellaneous Provi- first notified and not the time John Shaw, chairman, PII •A building or part of a build- sions) Act, 1992 at which the transaction origi- Committee ing used or suitable for use as • The property is held by a

44 Law Society Gazette November 2000 Briefing

charity 8 The Scheme of Resi- she absent themselves from the property owned by the person • The property is comprised in dential Accommodation building so long as both before on 6 April in that year but a trust established out of pub- for certain students and after any such period of where the property was lic subscriptions for the bene- 9 The Rented Residential absence the individual actually acquired and fully paid before 6 fit of one or more perma- Accommodation ele- occupies the building as his or April 2001, the price paid is nently-incapacitated individ- ment of the park-and- her only or main residence. taken as the market value of the uals ride scheme property on that date. • The property is owned by a 10 The Town Renewal Can an individual have more than spouse but is occupied by the Scheme. one principal private residence? Property abroad other spouse as his or her -A Bord Fáilte-registered It is not possible to have more Property abroad is not liable to only or main residence in cir- holiday cottage or apart- than one main residence. the tax. The tax only applies to cumstances where a decree of ment, or other listed self- However, where a person is residential property in the state. divorce or a decree of judicial catering accommodation moving from one residence to a separation has been granted throughout the country second residence, and for a Property in the state owned by a in respect of the marriage (such as listed holiday cot- period of up to six months owns person outside the state • The property is comprised in tages and listed holiday the two residences, neither resi- Once the property is in the the trading stock of a trade apartments). dence in that period (if it strad- state, it makes no difference • The property is: dles 6 April) will be liable to tax. where its owner resides – the -A building which is intrinsi- Principal private residence tax still applies. cally of significant scientific, An individual’s principal private How will the tax operate? historical, architectural or residence at any time is the Anti-speculative property tax is Who is liable for the tax? aesthetic interest and to building or part of a building a self-assessment tax which will Each person with an ownership which reasonable access is occupied by the individual as last for three years. Those liable interest (excluding a future afforded to the public or his or her only or main resi- to the tax must make a return interest) is liable for the tax to which is in use as a tourist dence: and pay the tax on or before: the extent of his or her propor- accommodation facility (a • During the period of 12 •1 November 2001 in respect tionate interest in the property. registered guest house or months ending with that of property owned on 6 April In the case of ‘settled’ property, other accommodation facil- time, or 2001 the life tenant is liable for the ity listed under section 9 of • Where the building was •1 November 2002 in respect entire tax but can raise the tax the Tourist Traffic Act, 1957) more recently acquired, from of property owned on 6 April out of the property. for at least six months in any the time of acquisition to that 2002 calendar year including not time. •1 November 2003 in respect What is market value? less than four months in the of property owned on 6 April The market value of a property period commencing on 1 An individual is treated as occu- 2003. is the price which it would be May and ending on 30 pying a building as his or her expected to fetch on the open September only or main residence even The tax due for each of those market assuming the sale was -A ‘section 23’-type property where the terms of a person’s years is 2% of the market value arranged to achieve the best under various tax incentive employment require that he or of all non-exempt residential possible price for the vendor. schemes. The properties in question are rented residen- EXAMPLE tial properties, the expendi- ture on the construction, On 14 June 2000, Mary and John jointly own their family home worth £450,000. In February conversion or refurbish- 2001, they jointly purchase a holiday cottage (in need of repair) for £120,000. In September ment of which qualify for a 2001, John buys an apartment in Cork to use on his many overnight business trips to the Cork deduction against rental region. The cost was £250,000. Assume the following: income. Thus, residential accommodation under the Holiday cottage Cork apartment following schemes will be Market value 6 April 2001 – £130,000* Market value 6 April 2002 – £260,000 exempt: Market value 6 April 2002 – £200,000 Market value 6 April 2003 – £300,000. 1 The Custom House Market value 6 April 2003 – £250,000. Docks Area Scheme * Value for tax is £120,000 as the property was acquired and fully paid for before 6 April 2001. 2 The Temple Bar Area Scheme Anti-speculative property tax due: 3 The 1994 Urban Mary John Renewal Scheme Family home Exempt Family home Exempt 4 The Seaside Resorts Holiday cottage Holiday cottage Apartment Scheme 2001 £1,200 2001 £1,200 2001 Nil 5 The Islands Scheme 2002 £2,000 2002 £2,000 2002 £5200 6 The New Urban 2003 £2,500 2003 £2500 2003 £6000 Renewal Scheme 7 The Rural Renewal The tax due for each year must be paid on or before 1 November in that year. Scheme

45 Law Society Gazette November 2000 Briefing

No account is taken of any mort- gage or other debt charged on the AGGREGATE RATES OF DUTY property. The purchase price of a CONSIDERATION RESIDENTIAL NON-RES property purchased between 15 FTB OO T I June 2000 and 6 April 2001 will be taken to be the market value at Does not exceed £5,000 E E E 9% E 6 April 2001. £5,001-£10,000 E E E 9% 1% Further information on the £10,001-£15,000 E E E 9% 2% anti-speculative property tax £15,001-£25,000 E E E 9% 3% measures included in the bill as £50,001-£60,000 E E E 9% 4% published can be obtained by £60,001-£100,000 E E 3% 9% 5% telephoning Capital Taxes £100,001-£150,000 E 3% 4% 9% 6% Division on 01 679 2777, exten- £150,001-£170,000 3% 4% 4% 9% 6% sions: 24172/ 24173/24281. £170,001-£200,000 3% 4% 5% 9% 6% £200,001-£250,000 3.75% 5% 5% 9% 6% Stamp duty £250,001-£300,000 4.5% 6% 7% 9% 6% Conveyances/transfer/assignments of £300,001-£500,000 7.5% 7.5% 7% 9% 6% lands/building: effective rates of duty Over £500,000 9% 9% 9% 9% 6% Where conveyances and so on are (All amounts computed are rounded-up to the nearest pound.) executed on or after 15 June 2000, the rates in the chart at Key: FTB = first-time buyer, OO = owner-occupier, T = transitional, I = investor, E = exempt, Non- right apply. G res = non-residential Probate, Administration and The above extract is reproduced by kind permission of the Revenue Commissioners. Taxation Committee

IRISH ASSOCIATION OF LAW TEACHERS’ MID-YEAR CONFERENCE: Recent legal responses to social changes in Ireland

Date: 2 December 2000 Venue: Education Centre, Law Society of Ireland, Blackhall Place, Dublin 7 Time: 9.30-16.30 Price: £10 (IALT members and students), £15 (non-members)

he Irish Association of Law Teachers will Anyone interested in attending should contact: hold its mid-year conference on Saturday 2 TDecember. The theme of the conference is a • Ubaldus de Vries, President, Dublin City particularly timely choice considering the extensive University Business School, Dublin 9, tel: 01 704 social and economic changes which Ireland is present- 5928, e-mail: [email protected] ly experiencing. Panels include family and child law, • Siobhan Duffy, Treasurer, Institute of Technology immigration and asylum law, criminal law and crimi- Dundalk, Dublin Road, Dundalk, Co Louth, tel: nology and health law, legal research and teaching. 042 933 0499, e-mail: [email protected] •Oonagh Breen, Membership Secretary; University The association particularly welcomes post-graduate College Dublin, Law Faculty, Roebuck Castle, research students and those interested in legal research Belfield, Dublin 4, tel: 01 706 8787, e-mail: oon- generally, as the plenary session will involve a discus- [email protected]. sion of the opportunities and pitfalls for those con- ducting or wishing to conduct legal research in Ireland.

46 Law Society Gazette November 2000 Briefing Practice notes

VOLUNTARY DISCLOSURE: BOGUS DIRT-FREE ACCOUNTS Practitioners may have read in teria, which are: give a practitioner comfort as to Once the Revenue Commission- the national press that the • Use of forged or falsified docu- how the Revenue perceive the ers turn their attentions to the Revenue Commissioners are to ments matter. Enquiries to the Revenue account-holders, it may be examine the bank accounts • Systematic scheme to evade Commissioners should be made too late to avail of the benefits where DIRT has not been operat- tax to 01 671 6777. of voluntary disclosure and it ed (accounts held by non-resi- • False claims for repayment The implications and benefits is recommended that such dents, charities and so on) after • Failure (as distinct from minor of voluntary disclosure are set clients be made aware of the the Revenue Commissioners delays) in remitting fiduciary out in detail in the Revenue publi- position. have completed their audits of taxes cation Code of practice for If a client chooses not to make the financial institutions and • Deliberate and serious omis- Revenue auditors, which is avail- an unprompted voluntary disclo- have reported back to the Public sions from tax returns able from the Revenue forms and sure and subsequently receives Accounts Committee. Practition- • Use of off-shore bank leaflets service on 01 8780100 communication from the Revenue ers are advised that where they accounts to evade tax or on their website at www.rev- Commissioners, practitioners are have been consulted by the hold- • Insidious schemes of tax eva- enue.ie. advised that the communication ers of bogus DIRT-free accounts sion In summary, where an be carefully perused because if they should point out to their • Aiding and abetting the com- unprompted voluntary disclosure the client is being investigated by client that until the Revenue mission of a tax offence is made: the Revenue Commissioners (as Commissioners turn their atten- • Offences under the Waiver of • Publication of the account- opposed to being audited, tion to auditing or investigating Certain Tax, Interest and holder’s name in the national although audits can subsequently the account-holders that the Penalties Act, 1993 (the press will not arise become investigations), it is with client may be able to make an amnesty). • Penalties, unless prohibited by a view to prosecution and the unprompted voluntary disclosure law, are mitigated up to a max- client should be advised accord- to the Revenue Commissioners. If a practitioner is in doubt as to imum of 95%. There is no miti- ingly. Before making a voluntary disclo- whether his client could be pros- gation of interest The Code of practice for sure, however, a practitioner ecuted, the practitioner can dis- • While no absolute assurance Revenue auditors is essential would need to consider with cuss the matter on a no-names can be given, it is normal prac- reading for any practitioner advis- his client whether any basis with the Revenue tice for Revenue to be influ- ing in this area. circumstances exist which would Commissioners. The procedure enced not to seek prosecution come within the Revenue is not a guarantee that no prose- and a monetary settlement is Probate, Administration and Commissioners’ prosecution cri- cution will take place but it will accepted. Taxation Committee

NEW HIGH COURT PRACTICE DIRECTION: PAYMENT OF FUNDS OUT OF THE HIGH COURT Practitioners should note that with payments: • Where notice of acceptance is require the name and current effect from Monday 2 October • The accountant of the courts of lodged and the defendant is address of each solicitor on 2000 where orders of the court or justice will calculate stamp duty entitled to the accrued interest record for inclusion in the Master of the High Court directing payable on any drafts, deduct on the sum lodged, a draft for schedule to the order payments from funds in court are the same from the funds in same, less stamp duty (if any) • The payment schedule to High made, or notices of acceptance of court and pay it directly to the will be posted to the solicitor on Court and Master’s Court lodgement are filed pursuant to chief clerk of the Dublin record for the defendant by the orders made on and after 2 order 22, rule 4 of the Rules of the Metropolitan District Court accountant of the courts of October 2000 will incorporate Superior Courts, the following • The accountant will then post justice the necessary directions to arrangement will apply for the dis- the cheques (less the amount of • Practitioners should note that, implement this change. charge of stamp duty and the the stamp duty) to the solicitor for the purpose of perfecting issue of drafts in respect of such who is on record for the payee the court order, the registrar will Litigation Committee

CIRCUIT CRIMINAL COURT FEES Practitioners are advised that, as • Each additional day of trial: £133.95 is payable to solicitors line with the fees payable for from 1 October 2000, the fees £432 (up from £410) for an adjourned sentence hear- such hearings in Circuit Court payable to solicitors for cases in • Sentence hearing: £133.95 ing or a trial hearing which is cases in Dublin. The above regu- the Circuit Criminal Court have (up from £127). adjourned within seven days of lation is deemed to have come been increased as follows: the scheduled trial date in the into effect on 1 June 1999. • First day of trial: £865 (up Please also note that under the Circuit Court outside Dublin. This from £820) terms of SI 235/2000, a fee of brings the payment scheme in Criminal Law Committee

47 Law Society Gazette November 2000 CHRISTMAS CARDS IN AID O F THE SOLICITORS’ B ENEVOLENT A SSOCIATION Card A Three wise men This is an opportunity to support the work of the Solicitors’ Benevolent Association, whose needs are particularlyGREETING PRINTED acuteINSIDE at ChristmasEACH CARD :time. With Best Wishes for Christmas and the New Year

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Firm:

Card B Contact: Patrick Kavanagh’s seat, Dublin Address:

ORDERS MUST BE RECEIVED DX: Tel: Fax: BY 17 NOVEMBER DELIVERY BY 1 DECEMBER Each card sold in packets of 50 costing £50 (including overprinting of you firm’s name). Minimum order

Send order form and cheque to: 50 cards. SBA Christmas Cards, Add £3.50 for postage and packaging for each packet of 50 cards. Santry Printing Ltd, Unit 5, I wish to order pack(s) of card A @ £50 (incl. VAT) pack(s) of card B @ £50 Lilimar Industrial Estate, Coolock Lane, Dublin 9. (incl. VAT) Tel: 842 6444. Contact: Amanda Briefing

Personal injury judgments

Road traffic accident – car and a motorcycle – motorcyclist severely injured – dispute as to the facts CASE David Cooke v John O’Sullivan, High Court on circuit in Waterford, before Mr Justice Philip O’Sullivan, judgment of 30 June 1999. THE FACTS avid Cooke, aged 25, single noise of a car from behind him motorcycle coming quickly at quence of the accident, he has Dand living with his family, and was then struck by that car. him from his right, leaving him been left with an indented scar was involved in a motor He stated that he was in second with no opportunity to avoid it. on his left leg and he com- accident on 25 June 1997. Mr gear and was about to go into, The motorcyclist, Mr Cooke, plained that he could not lift his Cooke’s evidence was that he or was in the course of going received serious injuries at the left foot and his movements are moved out from a position into, third gear. He estimated accident. He sustained a wound not as quick and he is not as where he had been parked on his speed at somewhere in the to his left leg and spent three or agile as previously. He had to the right-hand side as one region of 20-25 miles per hour. four months after the accident undergo four operations in proceeds out of Carrick in the John O’Sullivan, the driver of with an external fixator on his total. Mr Cooke issued pro- direction of Kilkenny. He the car involved in the accident, left leg to unite the bones. His ceedings against John moved across the road on his gave a diametrically opposed damaged leg was in plaster for O’Sullivan for personal injuries. motorcycle and he had reached account of the accident. He tes- nine to ten months and it was 12 The case proceeded to a full the correct side of the road, tified he was travelling along months after the accident before hearing, with Mr Justice three or four feet inside the uphill out of Carrick at about 25 he was able to walk without the O’Sullivan determining the white line, before he heard the miles per hour when he saw a aid of crutches. As a conse- issue between the parties. THE JUDGMENT escribing the plaintiff, dle bars, the covering to the left- rect. Mr Cooke’s account of the wing area of the car. The judge DDavid Cooke, as ‘a well set- hand side, along the left-hand accident was that he had said he could not see how Mr up man’, Mr Justice O’Sullivan side of the tank and the foot rest. attained his correct side of the O’Sullivan could be held liable, noted he was a credit to himself There was also damage to Mr road and had heard Mr even in a minority sense, for the and to his family. The judge O’Sullivan’s car, to the front O’Sullivan’s car coming from circumstances. He did not think considered the facts and noted right-hand wing and also to the the rear and had at that stage that it had been established that there was a major issue between driver’s-side rear window. proceeded to move in further to there had been a hand signal the parties as to how the The judge noted that Mr the left. The judge did not con- given by Mr Cooke or that the accident had occurred. The Cooke had given evidence that sider this was consistent with circumstances supported the judge’s first task, therefore, was he had given a hand signal. The the physical evidence, the evi- suggestion that Mr O’Sullivan to assess as best he could in the judge found himself in some dence of damage and the evi- should have blown his horn. He light of the evidence whether doubt as to whether Mr Cooke’s dence of two engineers. considered that, in the circum- David Cooke had established on recollection was correct in this The judge stated that he stances, Mr O’Sullivan could the balance of probability that regard. Mr Cooke was cross- must consider whether, in the not do other than he did, which the accident occurred in a examined and had to accept that circumstances, any blame could was to apply his brakes and manner which would mean that there would have been difficul- be attached to the driver of the attempt to proceed over to the John O’Sullivan was responsible ties about giving a hand signal car. Noting that he had the ben- left of the road. in law to him. whilst at the same time carrying efit of the evidence of engineers Costs were awarded against The judge reviewed the evi- out the driving manoeuvre on and of maps, he said that he Mr Cooke. dence in relation to skid marks the motorcycle that he clearly came to the conclusion that Mr on the road. The court heard did. O’Sullivan could not have been Counsel for Mr Cooke: Tom evidence from an engineer on In all the circumstances, and at fault for the circumstances of Slattery SC, Sean Ryan SC and behalf of Mr O’Sullivan that in the light of the evidence, the the accident. In his opinion, the Aidan Doyle, instructed by James there had been no damage to judge concluded that Mr Cooke accident was created by Mr O’Reilly & Son, Solicitors. the rear wheel of Mr Cooke’s had not satisfied him on the Cooke’s motorcycle moving out Counsel for Mr O’Sullivan: Liam motorcycle. There had been standard of proof required, the from the parked position into Reidy SC, Jeremy Maher BL, damage to the front of the balance of probability, that his the path of Mr O’Sullivan’s car instructed by Nolan Farrell & motorcycle, to the wheel, han- account of the accident was cor- and striking it in the right-front Goff, Solicitors.

49 Law Society Gazette November 2000 Briefing

Employer liability – county hospital – general porter – lifting an elderly, confused patient – application of safety, health and welfare at work regulations – ambitions of accident victim to become a professional footballer CASE Ciaran O’Connor v North Eastern Health Board, High Court on circuit in Dundalk, before Mr Justice Finnegan, judgment of 13 December 1999. THE FACTS iaran O’Connor was born Linfield in the Irish League but found the patient towards the low-back pain with intermittent Con 23 October 1973 and is played with the reserves. He end of the bed lying on his left- left lower-limb radiation. His a married man with two travelled as a reserve with the hand side and clutching the cot left-sided chest symptoms children. He was educated to first team but did not play with side. Mr O’Connor attempted resolved. In the hospital, he was intermediate standard. In that them. He joined Kilkenny City to move the patient back into under the care of a consultant examination, he passed and played in their first team in the bed by leaning across the surgeon and a consultant woodwork and metalwork but the 1995-1996 season. He bed and releasing the patient’s orthopaedic surgeon. failed science, mechanical stopped playing with Kilkenny grip and putting his right and Following his discharge in drawing and Irish and left City because of his work com- left hands under the patient’s July 1997, he attended a general school at 16 years of age. In mitments with the North right and left arms and attempt- practitioner who has a special January 1995, he secured Eastern Health Board. These ing to pull the patient back interest in low-back pain. Mr employment with the North matters were relevant in the towards him. The patient O’Connor’s complaints contin- Eastern Health Board, Louth context of an accident which weighed 13 stone. On moving ued and he also developed County Hospital, as a general happened to Mr O’Connor in the patient, Mr O’Connor felt severe headache. On examina- porter. He was made permanent June 1997. something ‘go in his back’. He tion, the general practitioner in February 1997 and had been At about 3.30pm in surgical developed immediate pain and found that Mr O’Connor’s left assigned as a medical attendant ward 7 of the Louth County reported the accident. leg was one-half inch shorter to surgical ward 7 at the Hospital on 27 June 1997, Mr Immediately following the than his right. The doctor hospital. Having been made O’Connor was in the linen accident, Mr O’Connor com- utilised a flexion distraction permanent, he married on 31 room putting away clean linen plained of shortness of breath machine to manipulate the lum- May 1997. when he heard a buzzer sound and pain underneath the left bosacral spine and correct the Ciaran O’Connor had ambi- on a number of occasions. ribs and lower back. He attend- pelvic tilt and he injected the tions to be a professional foot- There were four nurses on duty ed the hospital’s accident and left sacroiliac joint with pain- baller, initially on a full-time but three were on a tea break emergency department but x- killer and prescribed muscle basis and then subsequently on and there was only one nurse on rays of the chest and lum- relaxant and anti-inflammatory a part-time basis. He played as a actual attendance on the ward bosacral region disclosed no medication. Mr O’Connor con- schoolboy with his local team in with responsibility for other abnormality. After he went tinued to attend Dr Tobin and Dundalk. At age 16, he went to wards as well. The buzzer had home, the pain increased and was manipulated and given Everton on a six-months’ trial, not elicited a response from the the low-back pain radiated pain-killing injections on alter- but due to a change of manager nursing staff and Mr O’Connor down his leg as far as his big toe. native weeks. The regime con- he returned home after three assumed the nurses were busy He returned to hospital the fol- tinued until some six weeks weeks. He returned to Dundalk elsewhere. He responded him- lowing day and was admitted for before the hearing of the trial. where he subsequently played self. Mr O’Connor found an six days. Mr O’Connor was In the meantime, Mr O’Connor on the ‘B’ team. He played for elderly, confused patient was treated with bed rest and anal- had issued proceedings against the first team in pre-season attempting to get out of his bed gesic medication, including the North Eastern Health matches but not in the Irish upon which the cot sides had injections. However, he subse- Board for damages for personal League. He subsequently joined been raised. Mr O’Connor quently complained of severe injury. THE JUDGMENT aving outlined the facts, Mr extended above this by three position, his back had to take the safety and health to ensure that HJustice Finnegan stated he inches giving a total height over strain of a considerable part of employees received adequate was satisfied that the procedure which Mr O’Connor had to lean the patient’s weight. safety and health training, adopted by Mr O’Connor as a of 30 inches. The bed was some The judge referred to regula- including, in particular, informa- general porter in the hospital in 39 inches wide. The procedure tion 13(1) of the Safety, Health tion and instruction relating to attempting to move the patient adopted by Mr O’Connor and Welfare at Work (General the particular task or work sta- back into bed required him to required him, with his knees Application) Regulations 1993, tion involved. adopt an ergonomically unsafe unflexed, to extend his back across where it is stated that it shall be The judge noted that the position. The bed was some 27 the bed and extend his arms at the the duty of every employer to same regulation provided that inches high and the cot side same time. Held in this twisted provide training in matters of training was to be adapted to

50 Law Society Gazette November 2000 Briefing take full account of new or left foot feeling weak and this radiating into his left thigh and minor hypertrophy of the facet changed risks and should be pro- caused him to fall over on two leg and extending as far as the joints of L5/S1 level. A bone vided on recruitment of employ- occasions. There was numbness big toe approximately once a scan was normal. A CT scan ees or in the event of a transfer of in the left buttock and back of week. Movements remain revealed evidence of a broad employees, a change of job, the the left thigh as far as the knee. restricted and cause pain. bulging disk at L5/S1 level with introduction of new work equip- On examination, the consultant The consultant was of the evidence of indentation of the ment, a change in equipment or found that flexion was limited. opinion that Mr O’Connor’s spinal cord and it was considered the introduction of new technol- Straight leg raising was 90 condition was chronic and the that this might be causing some ogy. Training should be repeated degrees on the right and 40 pain would preclude him from compression of the emerging periodically where appropriate. degrees on the left, the latter returning to any work which nerve roots on both sides. The judge noted that Mr causing pain in the low back included lifting, pushing or The judge noted that, irre- O’Connor did not receive any area. Intensive conservative pulling and from any sporting spective of the outcome of any training, information or instruc- treatment was started involving activities save swimming and discography, it was extremely tion whatsoever in patient han- analgesics, anti-inflammatory gentle exercise. unlikely Mr O’Connor would dling or lifting. This was so drugs, hydrotherapy heat treat- Mr O’Connor was also ever return to any work which notwithstanding a clear recogni- ment and the use of a low-back referred to a consultant neuro- involved lifting or bending or to tion by the North Eastern board. surgeon. The neurosurgeon work as a professional footballer. Health Board in a safe work The consultant arranged for arranged for him to be reviewed All of the doctors concerned practice sheet dated September an MRI scan which showed by a consultant in pain manage- considered that Mr O’Connor 1995 of the dangers inherent in signs of degeneration at L4/5 ment and to have the left was displaying depressive symp- patient handling. The judge was and L5/S1. There was evidence sacroiliac joint injected. In evi- toms. He was referred to a con- satisfied that if Mr O’Connor of a small broad-base posterior dence, the neurosurgeon stated sultant psychiatrist, who treated had received even rudimentary annular tear, but without root that the disk protrusion did not him with anti-depressant med- instructions in training and lift- compression. explain Mr O’Connor’s pain. ication. It would appear that ing techniques, he would have The consultant was of the He had degenerative changes in there were a number of life adopted a different procedure in opinion that the accident left Mr the disks which predated the events which could have precipi- the emergency which confronted O’Connor with an injury to the accident and were asympto- tated depression. However, him. left rib cage posteriorly and to matic and rendered asympto- there did not appear to be any In those circumstances, the the left sacroiliac joint and his matic by the accident and he evidence of a former psychiatric judge found the North Eastern lumbar sacral junction. Mr also had facet joint syndrome on disorder. Health Board to be in breach of O’Connor’s symptoms did not the left side. The judge came to a conclu- the duty imposed upon it by the get any better. He continued to Mr O’Connor was referred sion that the accident had ren- Safety, Health and Welfare of Work complain of constant pain in the to a consultant orthopaedic sur- dered Mr O’Connor unfit to (General Application) Regulations left side of the low back, the pain geon. An MRI scan revealed engage in his employment. It 1993, particularly in the context had denied him the opportunity that Mr O’Connor was faced of pursuing a career as a foot- Mr Justice Finnegan awarded Mr O’Connor £37,500 for with an emergency with a real baller and prevented him from pain and suffering to the date of the trial, a period of two risk of the patient falling from enjoying football as a recreation. years and five months. In relation to future pain and suf- the bed, and taking into consid- The judge noted that Mr fering, he awarded him £75,000. Special damages were eration that Mr O’Connor had agreed at £31,000; this sum was to cover loss of earn- O’Connor had suffered inter- no training whatsoever to assist ings to date of the trial. mittently from depression and, him in coping with such an The judge did not propose to make an award in while this may be related to emergency. In this context, the respect of Mr O’Connor’s loss of earnings as a part-time other life events, his chronic judge referred to principles of professional footballer. The judge noted that he was pain and adaptation to his law set out in Kennedy v East Cork unable to pursue such a career when working for the lifestyle had been a factor. Foods Limited ([1973] IR 244). North Eastern Health Board. He found a conflict Mr Justice Finnegan consid- between Mr O’Connor’s case that if he had continued Counsel for Mr O’Connor: Eoghan ered the issue of contributory THE AWARD working, he would have earned some £75 a week net Fitzsimons SC and Eamonn Coffey negligence but held that Mr overtime and allowances and the claim that he could BL, instructed by Frank McArdle, O’Connor was not guilty of any pursue his part-time footballing career. The judge was McArdle and Associates, Solicitors, contributory negligence. satisfied as a matter of probability that Mr O’Connor Dundalk, Co Louth. In relation to medical injuries, would have been obliged to elect between undertaking Counsel for North Eastern Health the judge referred to the fact that over-time and playing semi-professional football. Board: Fergus O’Hagan, SC and the local doctor sent Mr Mr Justice Finnegan found Mr O’Connor would be Kevin Seagrave BL, instructed by O’Connor to a consultant at a capable of engaging in gainful employment after his Keaveny, Walsh & Co, Solicitors, time when he was complaining operation and he would be capable of earning £190 a Kells, Co Meath. G of continuing pain in his lower week net and this would leave him with a net weekly back radiating in the left thigh as loss of £85. For future loss of earnings, Mr O’Connor These cases were summarised by far as the knee and going down was awarded £100,000; for loss of pension rights Eamonn Hall, solicitor, from to the ankle. This would occur £9,000; and £5,000 for the loss of his retirement gra- Reports of personal injury seven or eight times a day. Mr tuity. The judge calculated the total award at £257,500. judgments from Doyle Court O’Connor also complained of his Reporters, 2 Arran Quay, Dublin 7.

51 Law Society Gazette November 2000 Briefing Update

News from Ireland’s on-line legal awareness service Compiled by John X Kelly of FirstLaw

ADMINISTRATIVE Treatment Act, 1945 to institute had occurred to warrant the deci- of earnings order had been proceedings against two doctors, sion to revoke. The applicant also granted. The defendant eventu- Medicine and misconduct his wife and gardaí for being contended that the manufacture ally left for Ireland taking the Professional misconduct – tempo- taken against his will to a private of steel structures for the project children with her. The plaintiff rary registration of medical practi- psychiatric hospital in 1987 and constituted ‘works’ on the proj- instituted proceedings seeking tioners – preliminary issue – claimed that the doctors fraudu- ect. Finnegan J was satisfied that the return of the children to the whether decision not to grant plain- lently certified him as part of a the works in question were United States. Kearns J in the tiff temporary registration unconsti- conspiracy with his wife. The ‘works’ within the meaning of High Court had refused to make tutional – whether open to plaintiff High Court refused the plaintiff section 30 of the Local the orders sought and the plain- to challenge decision in High Court leave to institute proceedings and Government (Planning and tiff appealed. The defendant – Medical Practitioners Act, the plaintiff appealed. Keane CJ Development) Act, 1963 and thus argued that as she was the person 1978, sections 29, 46, 47-49 held that the plaintiff had failed to the planning authority was in entitled to legal and physical cus- The plaintiff had been found establish ‘substantial grounds’ error. In addition, the applicant tody of the children, then she guilty of professional miscon- within the meaning of the Mental had been denied an opportunity was entitled to determine where duct by the defendant and had Treatment Act, 1945. The plaintiff to make representations to the they should reside and accord- cancelled the registration of the had failed to demonstrate that the planning authority and this con- ingly their removal was not plaintiff’s name in the general defendants had acted in bad faith. stituted a breach of natural jus- wrongful. Keane CJ held that to register of medical practitioners. The appeal should be dismissed. tice. An order of certiorari would order the return of the children The plaintiff issued proceedings, Murphy J, in a separate judgment, accordingly be granted, quashing and their custodial parent to the claiming that the decision in concurred with the Chief Justice the decision to revoke the plan- jurisdiction in which they were question was so serious as to and dismissed the appeal. Murray ning permission. formerly resident merely so as to warrant approval by the High J concurred with both judgments. ESB v Cork County Council, entitle the non-custodial parent Court. As a preliminary issue, it Blehein v Murphy and Others, High Court, Mr Justice exercise his rights of access was fell to be decided as to whether High Court, Chief Justice Finnegan, 28/06/2000 [FL not warranted under the terms the plaintiff was entitled to apply Keane, Mr Justice Murphy, Mr 3012] of the Hague convention. The to the High Court in respect of Justice Murray, 13/07/2000 defendant should have notified the decision. Morris P held that [FL3060] the plaintiff that she intended to in this instance no right was CHILDREN bring the children to Ireland. afforded to the plaintiff to apply Planning and local However, the removal of the to the High Court for a cancella- government Removal by one parent children was not wrongful with- tion of the decision. Electricity cables – revocation of plan- without consent in the meaning of the Hague con- Anachebe v Medical Council, ning permission – whether fair pro- Custody – whether removal of chil- vention. The appeal would High Court, Mr Justice cedures followed in revoking plan- dren was wrongful within meaning accordingly be dismissed. Morris, 12/07/2000 [FL3061] ning permission – whether ‘works’ of Hague convention – whether WPP v SRW, Supreme Court, had been carried out – whether appli- right of access implies prohibition on 14/04/2000 [FL2908] Mental health cant denied opportunity to make rep- removal by one parent without con- Practice and procedure – whether to resentations – Local Government sent of other parent – Child Abduction of children grant leave to applicant to institute (Planning and Development) Act, Abduction and Enforcement of Custody – welfare – proceedings proceedings – whether doctors 1963, section 30 Custody Orders Act, 1991 – under Hague convention – fraudulently certified applicant as The applicant sought and had Hague convention on the civil whether children faced grave risk of part of conspiracy with applicant’s been granted planning permission aspects of international child intolerable situation if returned – wife – whether detention in hospital to erect an overhead electricity abduction, articles 3, 12, 21 whether removal of children wrong- unlawful and unconstitutional – line. Subsequently, the respon- The parties had been married to ful – Children (UK) Act, 1989, whether applicant detained before dent revoked the planning per- one another but the marriage had section 8 – Child Abduction and doctors signed statutory certificate – mission in question, citing a been dissolved in the United Enforcement of Custody Orders onus of proof applicable – whether change in circumstances such as States. The defendant had subse- Act, 1991 – Guardianship of substantial grounds for contending health risks and the costs quently been granted sole legal Infants Act, 1964 that defendants acted in bad faith or involved. The applicant sought to and physical custody of the chil- In assessing whether or not to without reasonable care – Mental judicially review the revocation dren. The defendant had also order the return of children Tr eatment Act, 1945, s260 on the grounds that fair proce- been granted child support and, under the Hague convention, a The applicant sought leave dures had not been followed and due to arrears of child support number of issues fell to be con- under section 260 of the Mental that no change in circumstances being outstanding, an attachment sidered. In this instance, the

52 Law Society Gazette November 2000 Briefing lack of detailed evidence, the shown that the defendant had tax assessments were correctly Insolvency fact that proceedings in relation transported the goods in a reck- served – whether CAB officials Liquidation – finality of litigation to the matter had already been less manner, had done so with properly appointed – whether delib- – res judicata – duties of directors issued in a different jurisdiction gross negligence and was not erate and conscious violation of – jurisdiction of Supreme Court – and the failure by the abducting entitled to rely on the limita- defendant’s constitutional rights whether payment of monies ultra parent to establish that there tions as to liability as set out occurred – whether obligation to vires – whether principle of audi was a grave risk that the children under the Warsaw convention. serve prior demand – Criminal alteram partem infringed – would be placed in an intolera- The plaintiff was therefore enti- Justice (Drug Trafficking) Act, whether court empowered to rescind ble situation if returned to tled to recover the full amount 1996 – Criminal Assets Bureau earlier order – Companies Act, England meant that the court of the loss incurred. Act, 1996 – Fraudulent 1963 – Courts (Establishment would affirm the relief sought APH v DHL,High Court, Mr Conveyances Act 1634 – and Constitution) Act, 1961 – by the father of the children. Justice Finnegan, 28/06/2000 Proceeds of Crime Act, 1996 – Bunreacht na hÉireann, 1937, The Supreme Court so held in [FL3140] Taxes Consolidation Act, 1997 article 34 directing that the children be The defendant had been arrest- The applicants were sharehold- returned to England pursuant to Intellectual property ed pursuant to a drugs investiga- ers in a company which was the article 12 of the Hague conven- Internet site – domain names – tort tion and was subsequently subject of a winding-up order. tion. – passing off – interlocutory injunc- served with tax assessments The liquidator had sought and MSH v LH, Supreme Court, tion – whether similar names of while in custody. In these pro- been granted an order directing 31/07/2000 [FL3087] parties would lead to confusion – ceedings, the plaintiff sought to the applicants to repay certain whether balance of convenience enforce the assessments in ques- monies belonging to the compa- favoured granting injunction tion and also sought declara- ny. The applicants sought to COMMERCIAL The plaintiffs had established a tions regarding the ownership have the case re-opened on the company under the name ‘Local of various monies and property. grounds that the manner in Warsaw convention ireland’ and registered the do- The first defendant claimed that which the case had been origi- Contract – aviation and air trans- main names ‘Localireland.com’ the arrest in question was in vio- nally dealt with contravened the port – negligence – conflict of laws – and ‘local.ie’. The plaintiffs lation of his constitutional principles of natural and consti- construction of agreement – car- subsequently became aware that rights. In addition, the first tutional justice. The applicants riage of goods – limitations as to lia- the defendant had established a defendant claimed that no sought the rescission of the bility – damages – applicability of company under the name opportunity had been afforded order by the Supreme Court Warsaw convention – hold harm- ‘Local Ireland-Online’. The to appeal the tax assessments in dismissing the appeal. Hamilton less agreement – whether plaintiff plaintiffs claimed that the question. O’Sullivan J held that CJ held that the issues the appli- had delivered ‘special declaration of defendant was operating and it had not been shown that the cants had raised had been fully interest’ – whether defendants had trading under names which arrest of the first defendant was dealt with in the previous judg- transported goods ‘recklessly’ – Air amounted to passing off and spurious and thus the ‘fruits of ment. There was no breach of Navigation and Transport Act, were infringing their intellectu- the poisoned tree’ doctrine did fair procedures and the applica- 1936 – Air Navigation and al property rights. The plaintiffs not apply. Applying the pre- tion would be refused. Denham Transport Act, 1959 sought an interlocutory injunc- sumption of regularity, Mr J and Barrington J, delivering The plaintiff manufactured tion to restrain such activity. Justice O’Sullivan was satisfied separate judgments, held that pharmaceutical products and Herbert J, delivering judgment, that the plaintiff’s officials were there had been no breach of the had engaged the defendant to held that the plaintiffs had a authorised to carry out the principles of natural justice and transport some of these prod- strong prima facie case that the duties in question. However, a the application should be dis- ucts. While in transit, the plain- use by the defendant of the prior demand should have been missed. tiff’s goods were damaged and names in question would served in relation to the income Fagan and Malone v McQuaid, the plaintiff sued the defendant amount to deception. tax assessment and in this regard Supreme Court, 09/12/99 for the loss of the consignment. Accordingly, he granted the the proceedings were prema- [FL2706] The defendant sought to limit interlocutory injunction sought ture. The proceedings with its liability as per the terms of by the plaintiffs on the under- regard to the VAT demand were Planning, practice and the Warsaw convention. The taking that damages would be not premature and the declara- procedure plaintiff sought to establish that paid by the plaintiffs should a tion being sought would be Separation of powers – environ- the actions of the defendants court so order at the trial of the granted. The presumption of ment – judicial review – certiorari constituted ‘gross negligence’ action. advancement as between man – role of attorney general – district and thus the limitations as set Local Ireland & Nua v Local and wife relating to the owner- court prosecution – applicants elect- out under the Warsaw convention Ireland-Online, High Court, ship of monies did not apply in ed to be tried summarily – whether did not apply. Finnegan J held Mr Justice Herbert, such an illegal scheme. planning authority entitled to pros- that the terms of the hold harm- 02/10/2000 [FL3147] Therefore, a declaration that ecute offences on indictment – less agreement did not relieve the first defendant was the ben- whether attorney general entitled the defendant from liability eficial owner of the monies in to intervene in proceedings – under the Warsaw convention. CONSTITUTIONAL question would issue. whether sufficient public interest to The plaintiff could not be said Criminal Assets Bureau v Craft justify joining attorney general as to have delivered a ‘special dec- Revenue and finance and McWatt, High Court, Mr party to proceedings – Local laration of interest’ to the defen- Tax assessments – evidence – appli- Justice O’Sullivan, 12/07/ Government (Planning and dant. However, it had been cation of Trimbole case – whether 2000 [FL3093] Development) Act, 1963 – Local

53 Law Society Gazette November 2000 Briefing

Government (Planning and The plaintiffs had issued pro- Spin v Independent Radio and The case concerned the refusal Development) Act, 1982 – ceedings seeking a decree of TV Commission, Supreme of a District Court judge to Prosecution of Offences Act, specific performance against the Court, 14/04/2000 [FL3080] send an individual forward for 1974 – Solicitors Act, 1954 – defendants in relation to the trial on a rape charge. There Family Law Act, 1995 – Rules sale of property. The defendants were a number of statements of the Superior Courts 1986, brought a motion seeking to CRIMINAL before the judge relating to the order 15, rule 13; order 60, rules have the plaintiffs’ claim dis- incident in question. The direc- 1, 2; order 84, rule 22(6), 26 – missed pursuant to the inherent Fair procedures tor of public prosecutions Bunreacht na hÉireann, 1937, jurisdiction of the court. The Delay – original case dismissed – sought an order of certiorari articles 29.4.1º, 30.4., 34 defendants claimed that as a judicial review – conviction record- quashing the order of the judge. Fingal County Council had ini- deposit had not been agreed, ed without hearing evidence – In the High Court, Morris P tiated a prosecution of the the plaintiffs’ claim could not whether breach of applicant’s con- refused to grant the order applicants in respect of a plan- succeed. In the alternative, it stitutional rights occurred – sought, holding that to grant an ning matter. The prosecution was claimed that there was no whether respondent acted in excess order of certiorari simply had been successful. However, note in existence which would of jurisdiction – whether judge because there was evidence to upon judicial review proceed- satisfy the Statute of Frauds. entitled to change decision during warrant a conviction confused ings being brought, an order of In the High Court, the defen- sitting of court – Road Traffic want of jurisdiction with error certiorari was granted in respect dants’ motion was dismissed Act, 1961 – Bunreacht na hÉire- in the exercise of jurisdiction. of the prosecution order on the and the defendants appealed. ann, 1937, article 38.1 The DPP appealed. Keane CJ, grounds that the local authority Geoghegan J, delivering judg- The original prosecution of the delivering judgment, held that it had not the power to prosecute ment, held that there were applicant on a charge of drunk- was difficult to explain the deci- indictable offences. The matter issues involved in the case which en driving in the District Court sion the District judge had was appealed. This application should be argued out and tried was dismissed on the grounds of reached. However, it was not concerned an application by the at the action. It could not be delay. When the matter came open to the court to inquire into attorney general to intervene in said that the agreement in ques- before the Supreme Court, it the merits of the decision. This the proceedings. On behalf of tion could definitely not consti- was directed the matter should would be tantamount to afford- the attorney general, it was con- tute a concluded agreement. not have been dismissed and ing the DPP a right of appeal. tended that he was a constitu- The defendants’ motion would should proceed once more in The order of the president tional officer who was entitled be refused and the appeal dis- the District Court. When the would be affirmed and the to be joined to the proceedings missed. matter was reheard, a further appeal dismissed. which concerned a matter of Supermac’s v Katesan, application to dismiss by reason DPP v Kelliher, Supreme public importance. Held by Supreme Court, 07/06/2000 of delay was refused and the dis- Court, 24/06/2000 [FL3070] Denham J that there was suffi- [FL3082] trict judge convicted the cient public interest in the accused. Evidence had not yet issues being appealed to warrant been tendered in the case. The CUSTOMS AND EXCISE making the order joining the COSTS district judge then directed that attorney general as a party to evidence be given and once this Practice and procedure proceedings. Hardiman J held Practice and procedure had been done proceeded to Powers of Revenue Commissioners that although the attorney gen- Security of costs – litigation – radio convict the applicant. The – search and seizure – validity of eral did not have an automatic licence – allegation of bias – notice applicant issued proceedings search warrants – whether search entitlement to be joined to the party – whether party possessed seeking to quash the conviction warrants valid – Customs proceedings, in this instance it vital interest in case in question. Kinlen J held that Consolidation Act 1876, section was appropriate that the attor- The applicant had been joined the trial judge had heard the 205 – Customs and Excise ney general be joined. The as a notice party in the substan- evidence and had convicted the (Miscellaneous Provisions) Act, order joining the attorney gen- tive proceedings. The case con- applicant. The trial judge had 1988 – Bunreacht na hÉireann, eral may ultimately have a bear- cerned allegations of bias sur- acted within jurisdiction and the 1937, article 40.5 ing on the issue of costs. rounding the issue of a radio application for certiorari would The applicant brought proceed- TDI Metro Ltd v Fingal licence. The applicant had be refused. ings relating to the search of its County Council, Supreme sought an order for security of McNeil v Brennan, High premises and the seizure of Court, 31/03/2000 [FL2872] costs which the trial judge Court, Mr Justice Kinlen, goods. The applicant claimed declined to make and the appli- 21/06/2000 [FL3064] that the warrants authorising cant appealed against that the officers of the Revenue CONTRACT refusal. Keane CJ, delivering Judicial review Commissioners to carry out the judgment, held that the trial Evidence – preliminary examina- acts in question were unlawful Land law, property judge had been in error in the tion – Decision of District Court and of no effect. The applicant Sale of property – specific perform- course he had adopted. The judge – certiorari – judicial sought an order of certiorari ance – doctrine of part performance notice party had a vital interest review – rape – whether respon- quashing the search warrants, – deposit – motion to dismiss claim in the outcome of the proceed- dent acted in excess of jurisdiction – an injunction directing the – whether absence of concluded ings. The appeal would be whether decision of District Court return of the seized goods and agreement – Statute of Frauds allowed and the appropriate judge amenable to judicial review – damages for trespass. Keane J, 1677 – Rules of the Superior order for security of costs would Criminal Procedure Act, 1967, as he was then, delivering judg- Courts 1986, order 19, rule 28 be made. section 7 ment (with Barrington J agree-

54 Law Society Gazette November 2000 Briefing ing), held that warrants which them in respect of the allega- that where both parties had the that permission would have to carried on their face statements tions and that the suspensions benefit of competent legal be sought from the Circuit to the effect that they had been should be quashed. O’Higgins J advice, the court should be slow Court. The Circuit Court issued on a basis not authorised granted the relief sought, hold- to alter the terms of a separa- judge, referring to the in camera by statute were invalid and ing that there had been a denial tion agreement. In this rule, refused to grant the leave must be quashed. An injunction of fair procedures and that the instance, given the remarkable sought and held that it was not would also issue directing the purported suspensions were increase in property values (the in the public interest that the respondents to deliver up the invalid. The respondent family home was now valued at application be granted. The goods of the applicant seized appealed. Keane CJ, delivering £800,000), the judge held that applicant appealed. Murphy J on foot of the warrants. Barron judgment, held that the appli- the applicant should continue held that on the basis of the rel- J delivered a dissenting judg- cants had been afforded the to pay maintenance but should evant statutory provisions doc- ment, holding that as there was opportunity to make represen- receive a sum equal to 10% of uments which were protected no error occurring within juris- tations. The conclusions the net sale price on any future by the in camera ruling could diction relating to the issue of reached by the learned High sale of the family home. The not be the subject matter of an the warrants an order of certio- Court judge that there had applicant was not to have any investigation by a professional rari should not issue. been a denial of fair procedures equitable estate in the property. body investigating complaints. Simple Imports v Revenue were not justified. Accordingly, MG v MG,Circuit Court, Accordingly, the application Commissioners, Supreme the appeal of the respondent Judge Buckley, 25/07/2000 would be refused. Court, 19/01/2000 [FL3117] would be allowed and the appli- [FL3058] RM v DM,High Court, Mr cants’ claim would be dis- Justice Murphy, 26/07/2000 missed. Evidence, practice and [FL3086] EMPLOYMENT Gavin v Minister for Finance, procedure Supreme Court, 12/04/2000 Litigation – evidence – admission Fair procedures [FL2728] of documents – legal profession – INTELLECTUAL Suspension of employment – disci- professional negligence – in cam- PROPERTY plinary action – civil service proce- era rule – whether sufficient ele- dures – judicial review – audi FAMILY ment of public interest present to Injunction alteram partem – nemo iudex in warrant disclosure of documents – Infringement of copyright – sua causa – whether suspensions Variation in agreement whether appropriate to waive in European law – application for unwarranted and unlawful – sought camera rule – Children Act, injunction – publishing – whether whether respondent had acted Financial arrangements – change 1997 – Judicial Separation and works in question protected by ultra vires – whether suspension of circumstances – ancillary orders Family Law Reform Act, 1989, copyright – whether injunction warranted warning – whether – variation in agreement sought – section 34 – Family Law should issue – European normal rules of natural justice whether court should interfere (Divorce) Act, 1996 Communities (Term of applied – whether constitutional with terms of separation agree- The applicant had made a com- Protection of Copyright) right to earn livelihood interfered ment – Family Law Act, 1995 – plaint to the Barristers’ Regulations 1995 – Intellectual with – Civil Service Regulation Family Law (Divorce) Act, Tribunal concerning the con- Property (Miscellaneous Act, 1956, sections 1, 3, 13-14 1996, section 20 duct of the applicant’s barrister Provisions) Act, 1998 The applicants had been sus- The parties had married in in family law proceedings. In The plaintiff was a trustee of pended from employment 1975 and had subsequently support of his complaint, the the estate of the writer James pending a full investigation entered into a separation agree- applicant had sought to intro- Joyce. The defendant sought into allegations of misconduct. ment. Due to a change in finan- duce certain documents which permission to include a number They initiated judicial review cial circumstances, the appli- had been used in the family law of extracts from the works of proceedings in the High Court cant now sought amendment of proceedings into the hearing James Joyce in an anthology. claiming that insufficient the terms of the separation before the tribunal. The tribu- Correspondence ensued bet- details had been furnished to agreement. Judge Buckley held nal refused permission, holding ween the parties but they failed

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55 Law Society Gazette November 2000 Briefing to reach agreement. Copyright tiff and defendant was analo- The applicant had sought a ning authority was entitled to in the works of James Joyce gous to that of bailor and bailee. publican’s licence in respect of grant permission for a develop- expired on 1 January 1992 but The defendant was responsible premises a portion of which ment that was substantially dif- were revived from 1 July 1995 for the loss of the coal deposits. was presently licensed and ferent than what was originally by virtue of European legisla- Damages of £74,991 were another portion which was applied for. In this instance, the tion. Works which had been ini- awarded, taking into account unlicensed. The application changes did not amount to a tiated after 1 January 1992 but the remaining residue of coal was opposed by a number of materially different development. prior to 29 October 1993 were and the appropriate limitation objectors. In the Circuit Court, Interested parties were aware of exempt from the revived copy- of damages under the Statute of the application was refused and the proposed development. The right and a Joycean scholar, Limitations, 1957. this refusal was appealed to the relief sought by the applicant Danis Rose, claimed that his Scanlon v Ormonde Brick High Court. In the High would be refused. version of Ulysses fell under this Limited, High Court, Mr Court, Kearns J posed a num- Irish Hardware v South Dublin exemption. The defendant pro- Justice Barr 21/07/2000 ber of questions in the form of County Council, High Court, cured permission from Danis [FL3068] a consultative case stated for Mr Justice Butler, 19/07/2000 Rose to use extracts from his the Supreme Court. The main [FL3065] version of Ulysses. The estate of Adverse possession issue concerned whether the James Joyce was also engaged in Ownership – trespass – injunction entire premises must form a litigation with Danis Rose. The – dispute concerning title to land – single entity in order for the PLANNING plaintiff as trustee sought an damages – whether plaintiff had new licence to issue. Murphy J, injunction to restrain the defen- discontinued possession – Statute in delivering the opinion of the Abuse of process dant’s forthcoming anthology. of Limitations, 1957 court, held that the entire Litigation – abuse of process – Smyth J held that only a full The proceedings concerned a premises must be capable of inherent jurisdiction of High Court hearing of the action could dispute over the ownership of forming one single unit for the – whether proceedings should be properly determine the substan- lands. The plaintiff sought an purposes of licensing. In addi- struck out tive points. In the circum- injunction restraining the tion, the adjoining premises The plaintiff sought relief against stances, the plaintiff was enti- defendant from trespassing on must be such that the premises the defendants, one of whom was tled to the injunction sought certain lands. The defendant currently licensed was ren- Lagan Cement Limited. Lagan and the relief in question was claimed to have occupied the dered more suitable for the car- Cement Limited, which was a granted. lands exclusively and to have rying out of business. The mat- competitor of the plaintiff, had Sweeney v Cork University acquired title to the lands by ter as answered would now fall been granted planning permis- Press, High Court, Mr Justice reason of adverse possession. to be determined by the High sion to develop a cement factory Smyth, 09/10/2000 [FL3152] Finnegan J was satisfied that it Court. in County Meath. Lagan Cement had not been shown that the Hannigan Holdings Ltd, Limited brought the present plaintiff had discontinued pos- Supreme Court, 13/04/2000 application to dismiss the present LAND LAW session. The defendant did not [FL2729] proceedings on the grounds that have the necessary animus possi- they constituted an abuse of Bailment dendi to dispossess the plaintiff. process. Quirke J was satisfied Mining – contract – bailment – The injunctive relief sought by LOCAL GOVERNMENT that the present proceedings trespass – possession – damages – the plaintiff would be granted. were instituted solely to further whether defendant under duty of Feehan v Leamy,High Court, Planning the commercial interest of the care as bailee of goods – whether Mr Justice Finnegan, Permission granted for modified plaintiff. The inherent jurisdic- defendant liable for loss occurring – 29/05/2000 [FL3072] application – whether planning tion of the High Court to strike Statute of Limitations, 1957 – notice misleading – whether appli- out proceedings should be exer- Minerals Development Act, cation should have been readver- cised sparingly. In this instance, 1940 – Minerals Development LICENSING tised – whether modified applica- the proceedings had been initiat- Act, 1979 tion raised different planning ed for an improper purpose, con- The plaintiff had owned lands Adjoining premises issues – Local Government stituted an abuse of process, and, containing coal, shale and fire- Existing licensed premises – statu- (Planning and Development) accordingly, the plaintiff’s claim clay. The plaintiff sold the lands tory interpretation – objections – Regulations 1994 would be dismissed. to the defendant who wished to appeal – whether new licence could The applicant had brought Quinn v An Bord Pleanála, High extract the shale and fireclay. As be granted in respect of existing proceedings seeking to have Court, Mr Justice Quirke, part of the agreement, the premises and new premises – the planning permission that 04/10/2000 [FL3092] G plaintiff was to extract the coal whether new premises ‘attached or was granted to the notice party deposits. Difficulties arose and adjoining existing premises’ – quashed. The applicant The information contained here is the plaintiff was informed that whether issue of new licence would claimed that the permission taken from FirstLaw’s Legal Cur- extraction of coal had to cease. render existing premises ‘more was granted for a development rent Awareness Service, published Subsequently, the coal deposits suitable’ for the carrying out of which was materially different every day on the Internet at www. were removed by third parties. business – Licensing (Ireland) from that which was originally firstlaw.ie. For more information, The plaintiff sued the defendant Act 1902, section 6 – applied for. In this respect, it contact [email protected] or claiming damages for the loss of Intoxicating Liquor Act, 1960, was claimed that the original FirstLaw, Merchants Court, coal. Barr J was satisfied that the section 24 – Courts of Justice planning notice was mislead- Merchants Quay, Dublin 8, tel: 01 relationship between the plain- Act, 1936 ing. Butler J held that a plan- 679 0370, fax: 01 679 0057.

56 Law Society Gazette November 2000 Briefing Eurlegal

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

New EU regime for vertical agreements

he EU Commission has • Relate to the conditions between the undertakings is intellectual property rights to Tadopted a new regulation on under which the parties may acceptable, a further assessment the supplier and containing the application of article 81(3) of purchase, sell or resell goods will be necessary to examine the possible restrictions on the the EC treaty to categories of or services. vertical agreements concluded sales made by the supplier is vertical agreements and concert- by the association with its sup- not covered. This means in ed practices. The regulation The scope of the regulation pliers or its individual members. particular that sub-contract- entered into force on 1 January therefore encompasses situa- This assessment is made pur- ing involving the transfer of 2000 and has applied since 1 tions where the goods or service suant to the regulation. know-how to a subcontractor June 2000. The regulation provided by the supplier may be The regulation also includes does not fall within the scope replaces the exclusive distribu- used as an input by the buyer to in its application vertical agree- of the regulation’s applica- tion block exemption, the exclu- produce its own goods or serv- ments containing certain provi- tion sive purchasing block exemption ice. This is wider than the scope sions relating to the assignment • The intellectual property and the franchising block of the certificate and licence, of intellectual property rights to rights provisions must not exemption. Where the regula- which exclude from their scope or use of intellectual property constitute the primary object tion’s market share threshold is agreements relating to goods or rights by buyers. All other verti- of the agreement not exceeded and where the par- services which are not purely cal agreements containing • They must be directly related ties to the agreement avoid the for resale, and agreements intellectual property rights pro- to the use, sale or resale of inclusion of hard-core restric- relating to services only. It is visions are excluded from its goods or services by the tions, the parties can be assured disappointing that the certifi- scope. The regulation applies to buyer or its customers, and that article 81(1) of the EC treaty cate and licence do not cast vertical agreements containing • The intellectual property does not apply to the agreement. their scope as widely as the reg- intellectual property rights pro- rights provisions, in relation The arrangement will benefit ulation. Consequently, a range visions when five conditions are to the contract goods or serv- automatically and without prior of agreements which may not fulfilled: ices, must not contain notification for an exemption cause competition difficulties • The intellectual property restrictions of competition under article 81(3) of the EC still requires individual notifica- rights provisions must be having the same object or treaty. The regulation is accom- tion to the Competition part of a vertical agreement. effect as vertical restraints panied by guidelines on its Authority under the Competition This condition makes clear which are not exempted application. The purpose of this Act, 1991. that the context in which the under the regulation. article is to examine the princi- The regulation also applies intellectual property rights pal aspects of the regulation and, to vertical agreements entered are provided is an agreement Agreements not covered where relevant, to review its into between an association and to purchase or distribute by the regulation interaction with its Irish domes- its members or between such an goods or any agreement to The regulation will not apply to: tic equivalent, the Competition association and its suppliers purchase or provide services • Agreements which have no Authority’s category certificate where all its members are retail- and not merely an agreement effect on trade between and licence in respect of agree- ers of goods and no individual concerning the assignment member states – in such ments between suppliers and member of the association, or licensing of intellectual cases, domestic competition resellers. together with its connected property rights for the manu- law will apply, or undertakings, has a total annual facture of goods •Motor vehicle distribution Scope of the regulation turnover exceeding £50 million. • The intellectual property and servicing arrangements, The regulation applies to all ver- The contractual arrange- rights must be assigned to or which are subject to the tical agreements, which are ments of an association of for use by the buyer. This Motor Vehicle Distribution and defined as agreements, which: undertakings may involve both makes clear that the regula- Servicing Arrangements Regu- • Involve two or more parties horizontal and vertical agree- tion does not apply where the lation, or (the three previous vertical ments. Such horizontal agree- intellectual property rights •Vertical agreements entered block exemptions were limit- ments need to be assessed are provided by the buyer to into between competing ed to agreements to which according to the principles of the supplier, regardless undertakings, or only two undertakings were the draft guidelines on the whether the intellectual • Many agency agreements party) applicability of article 81 to property rights concern the since the obligations imposed • Each of which operates at a horizontal co-operation. If this manner of manufacture or on an agent as to the con- different level of the produc- assessment leads to the conclu- distribution. An agreement tracts negotiated or conclud- tion or distribution chain, and sion that the co-operation relating to the transfer of ed on behalf of the principal

57 Law Society Gazette November 2000 Briefing

will not normally fall within - does not contribute to the Vertical agreements between trade, while the buyer does not the scope of article 81(1). The costs relating to the sup- competitors provide competing services at determining factor in assess- ply/purchase of the con- The regulation expressly the level of trade where it pur- ing whether article 81(1) is tract goods or services excludes from its application chases the contract services. applicable to an agency agree- - is not obliged to invest in ‘vertical agreements entered into ment is the financial or com- sales promotion between competing undertakings’. Market-share threshold mercial risk borne by the - does not maintain at its Competing undertakings are The regulation will apply on agent in relation to the activi- cost or risk stocks of the defined as ‘actual or potential sup- condition that the supplier’s ties for which it has been contract goods, including pliers in the same product market’ market share does not exceed appointed by the principal. the costs of financing the irrespective of whether they are 30%. In addition, in the case of There are two types of finan- stocks and the cost of loss competitors in the same geo- exclusive supply agreements, the cial or commercial risk that of stocks and can return graphic market. A potential sup- regulation will apply only where are material to the assessment unsold goods to the princi- plier is an undertaking that does the buyer’s market share does of the nature of an agency pal without charge, unless not actually produce a compet- not exceed 30%. For the applica- agreement under article the agent is liable for fault ing product but could and would tion of the regulation, the mar- 81(1). First, there are the risks - does not operate an after- be likely to do so in the absence ket share of the supplier is its which are directly related to sales service, repair service of the agreement in response to share on the relevant product the contracts concluded or or a warranty service a small and permanent increase and geographic market on which negotiated by the agent on unless it is fully reim- in relative prices. The undertak- it sells to its buyers. In the case behalf of the principal. bursed by the principal ing must be able and likely to of exclusive supply, the buyer’s Second, there are the risks - does not make market- undertake the necessary addi- market share is its share of all related to market-specific specific investments in tional investment required to purchases on the relevant prod- investments. These are equipment, premises or enter the market and supply the uct market. The market share is investments specifically training of personnel market within one year. This to be calculated on the basis of required for the type of activ- - does not undertake assessment has to be based on data relating to the preceding ity for which the agent has responsibility towards realistic grounds; the mere theo- calendar year. The calculation of been appointed by the princi- third parties for product retical possibility of entering a the market share needs to be pal. The question of risk must liability unless it is liable market is not sufficient. based in principle on value fig- be assessed on a case-by-case for fault There are three exceptions to ures. Where value figures are basis having regard to the - does not take responsibili- the general exclusion of vertical not available, substantiated esti- economic reality of the situa- ty for customer non-per- agreements between competi- mates can be used. Such esti- tion. Nonetheless, the formance of the contract tors from the scope of the regu- mates may be based on other Commission considers that unless the agent is liable lation, all relating to non-recip- reliable market information such article 81(1) will generally for fault. rocal agreements. Non-recipro- as volume figures. not be applicable to the cal agreements between com- The approach of the regula- obligations imposed on the When the agent incurs one or petitors are covered where the tion, which only takes into agent as to the contracts more of these risks or costs, buyer has a turnover below £100 account the market share of the negotiated or concluded on article 81(1) may apply to the million, or a supplier is a manu- supplier or (where appropriate) behalf of the principal where agency agreement. An agency facturer and distributor of the buyer, on the market property in the goods does agreement may also fall within goods, while the buyer is only a between the parties is justified by not vest in the agent or the the scope of article 81(1) even if distributor and not also a manu- the fact that below the threshold agent does not itself supply the principal bears all the finan- facturer of competing goods, or of 30% the effects on down- the contract services and cial and commercial risks, the supplier is a provider of serv- stream markets will in general be where the agent: where it facilitates collusion. ices operating at several levels of limited. In addition, the thresh-

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58 Law Society Gazette November 2000 Briefing old makes the application of the article 81(3). The Commission changing market shares are in expensive and conducive to regulation easier and enhances has highlighted the need for general an indication of intense more than a one-off purchase, the level of legal certainty. reform its own sole power in competition. vertical restraints are more To calculate the market share, this area, but national authori- Market position of the likely to have negative effects. it is necessary to determine the ties do not yet have this compe- buyer. The principal indicator Other factors. In the assess- relevant market. In order to do tence. of the buyer’s buying power is ment of particular restraints, this, the relevant product and Vertical agreements falling the buyer’s market share on the other factors may have to be geographical markets must be outside the regulation will not purchase market. Other indica- taken into account. Among defined. The relevant product be presumed to be illegal but tors focus on the market posi- these factors can be the cover- market comprises any products may require individual exami- tion of the buyer on its resale age of the market by similar or services which are regarded by nation. Undertakings to such market, including characteris- agreements, the duration of the the buyer as interchangeable by vertical agreements are encour- tics such as a wide geographic agreements, whether the agree- reason of their characteristics, aged to make an assessment of spread of its outlets, own ment is imposed or agreed, the price and intended use. The rele- the agreement without notifica- brands of the buyer/distributor regulatory environment and vant geographical market com- tion to the Commission. In the and its image among its final behaviour that may indicate or prises the area in which the case of an individual examina- consumers. facilitate collusion such as price undertakings concerned are tion by the Commission, the Entry barriers. Entry barri- leadership, pre-announced involved in the supply of the rel- Commission will bear the bur- ers are measured by the extent price changes, price rigidity in evant products or services. den of proof that the agreement to which incumbent companies response to excess capacity, Under the certificate, the infringes article 81(1). can increase their price above price discrimination and past Competition Authority certifies In the assessment of individ- the competitive level and there- collusive behaviour. that vertical agreements covered ual cases, the Commission will by make supra-normal profits by the certificate do not contra- adopt an economic approach in without attracting entry of new Hardcore restrictions under vene section 4(1) of the the application of article 81 to market participants. Vertical the regulation Competition Act, 1991, provided vertical restraints. This will restraints may work as an entry The regulation contains a list neither party to the agreement limit its scope of application to barrier by making access more of hardcore restrictions, which has a share in excess of 20% of undertakings holding a certain difficult and foreclosing the lead to the exclusion of the the relevant market and the degree of market power where entry of potential competitors. whole vertical agreement from hardcore restrictions set out in inter-brand competition may be Maturity of the market. A its scope. Individual exemption the certificate are not infringed. insufficient. The following fac- mature market is a market that of vertical agreements contain- The licence applies to vertical tors are the most important in has existed for some time, ing such hardcore restrictions agreements provided that neither establishing whether a vertical where the technology used is is also unlikely. There is no sev- party to the agreement has a agreement contains an appre- well known and widespread, erability for hardcore restric- share in excess of 40% of the rel- ciable restriction to competi- where there are no major brand tions. To benefit from the reg- evant market and the hardcore tion under article 81(1). innovations and in which ulation, parties to the vertical restrictions set out in the licence Market position of the demand is relatively stable or agreement may not: are not infringed. supplier. The market position declining. In such a market, • Restrict the buyer’s ability to An anomaly may arise for par- of the supplier is established by restrictive effects are more like- determine its resale prices to ties to an agreement affecting its market share of the relevant ly than in more dynamic mar- products. An indirect restric- trade between member states product and geographic mar- kets. tion on the buyer’s ability to having a share between 30% and ket. The market position of the Level of trade. The level of determine its resale prices to 40%, that is, above the threshold supplier is further strengthened trade is linked to the distinction products is also prohibited. for benefiting from the regula- if it has certain cost advantages between intermediate and final Examples of this are an tion but below the threshold for over the competitors. These goods and services. Negative agreement fixing the distri- benefiting from the licence. In competitive advantages may effects are in general less likely bution margin, fixing the these circumstances, a scenario result from a first mover advan- at the level of intermediate maximum level of discount could arise where the agreement tage, holding essential patents, goods and services. the distributor can grant is licensed by the Competition having superior technology, Nature of the product. The from a prescribed price level, Authority but requires individual being the brand leader or hav- nature of the product plays a making the grant of rebates exemption by the Commission. ing a superior portfolio of prod- role in particular for final prod- or reimbursement of promo- It would appear from the ECJ ucts or services. ucts in assessing the likely tional costs by the supplier decision in Case 66/86 Ahmed Market position of com- effects. When assessing the subject to the observance of Saeed Flugreisen and Silver Line petitors. Market share and likely negative effects, it is a given price level or linking Reisburo GmbH v Zenteale zur possible competitive advantage important whether the prod- the prescribed resale price to Bekampfung Unlauteren Wettbew- indicators are also used to iden- ucts on the market are homoge- the resale price of competi- erbse V ([1989] ECR 803) that the tify the market position of com- neous or heterogeneous, tors. However, the provision Competition Authority would petitors. If the number of com- whether the product is expen- of a list of recommended not be entitled to issue a licence petitors becomes small and sive or inexpensive and whether prices or maximum prices by in such circumstances, since only their market position is rather the product is a one-off pur- the supplier to the buyer is the Commission has power to similar, this market structure chase or repeatedly purchased. permitted declare article 81(1) of the EC may increase the risk of collu- In general, when the product is • Restrict active/passive sell- treaty inapplicable pursuant to sion. Fluctuating or rapidly- more heterogeneous, less ing to end-users by retailers

59 Law Society Gazette November 2000 Briefing

in a selective distribution net- •A supplier may restrict cer- sumption (experience products) tions that require the buyer work. This means that deal- tain sales by its direct buyers or of which the qualities are dif- to purchase goods and servic- ers in a selective distribution to a territory or a customer ficult to judge even after con- es and their substitutes from system cannot be restricted in group which has been allo- sumption (credence products). the supplier or from another the users to whom they may cated exclusively to another In addition, exclusive distribu- undertaking designated by sell. The dealer should also buyer or which the supplier tion may lead to savings in logis- the supplier more than 80% be free to advertise and sell has reserved to itself. This tic costs due to economics of of the buyer’s total purchases through the Internet protection of exclusively allo- scale in transport and distribu- during the previous year of • Restrict cross-supplies cated territories or customer tion. the contract, thereby pre- between appointed distribu- groups must, however, per- venting the buyer from pur- tors within a selective distri- mit passive sales to such ter- Conditions under the chasing competing goods or bution system. This means ritories or customer groups. regulation services or limiting such pur- that an agreement or con- Every distributor must be The regulation excludes certain chasers to less than 20% of certed practice may not have free to use the Internet to obligations from coverage. total purchases. Where for as its object to prevent or advertise or sell products. If a These obligations can be distin- the year preceding the con- restrict the active or passive customer visits the website of guished from the hardcore clusion of the contract no rel- selling of the contract prod- a distributor and contacts the restrictions in that their inclu- evant purchasing data for the ucts between the selected dis- distributor, and if such con- sion will not deprive the whole buyer are available, the tributors. Selected distribu- tact leads to a sale, that is of the vertical agreement of the buyer’s best estimate of its tors must remain free to pur- considered passive selling. benefit of the regulation. The annual total requirements chase the contract goods However, unsolicited e-mails exemption is only lost in relation may be used. Non-compete from other appointed distrib- sent to individual customers to the offending part of the obligations are acceptable utors within the network or specific customer groups agreement. It does not apply to: under the regulation when •Restrict end-users, independ- are considered as active sell- • Any post-term non-compete their duration is limited to ent repairers and service ing. The supplier cannot obligations. Such obligations five years or less, or when providers from obtaining reserve to itself sales and/or are normally not covered by renewal beyond five years spare parts directly from the advertising over the Internet the regulation, unless the requires the explicit consent manufacturer of these spare •A supplier may restrict a obligation is indispensable to of both parties and no obsta- parts. An agreement between wholesaler from selling to protect know-how transferred cles exist that hinder the a manufacturer of spare parts final customers by the supplier to the buyer, is buyer from effectively termi- and a buyer who incorporates •A supplier may restrict an limited to the point of sale nating the non-compete obli- these parts into its own prod- appointed distributor in a from which the buyer has gations at the end of the five- ucts may not prevent or selective distribution system operated during the control year period. An exception is restrict sales by the manufac- from selling to unauthorised period and is limited to a max- made when the buyer sells turer of these spare parts to distributors in markets where imum period of one year. The goods or services from the end-users, independent such a system is operated know-how needs to be ‘sub- supplier’s premises; in these repairers or service providers •A supplier may restrict a stantial’, meaning that ‘the circumstances, the non-com- • Restrict the territory into buyer of components sup- know-how includes informa- pete restriction may be co- which, or the customers to plied for incorporation from tion which is indispensable to terminous with the period of whom, a buyer may sell if the reselling them to competitors the buyer for the use, sale or occupancy of the premises by sale results from an unsolicit- of the supplier. resale of the contract goods or the buyer. ed order. This means that services’ each buyer must be free to Where the supplier to a vertical • Any direct or indirect obliga- This aspect of the regulation respond to a request for the agreement has a market share tion causing the members of a may be of particular relevance to product or service made by above the 30% market share selective distribution system those in the motor-fuel and beer- any customer within the EU. threshold, there may be a risk not to sell the brands of par- supply sectors in the EU. Under Buyers must also be free to of a significant reduction of ticular competing suppliers. the previous block exemptions, use the Internet to respond to intra-brand competition. In The objective of the exclusion non-compete obligations in such orders. However, a pro- order to be exempt from the of this obligation is to avoid a service station and beer supply hibition imposed on all dis- application of article 81(1), the situation whereby a number agreements were permitted for tributors to sell to certain loss of intra-brand competition of suppliers using the same up to ten years. The special end-users is not classified as a needs to be balanced with real selective distribution outlets regime for these sectors has been hardcore restriction if there is efficiencies. Exclusive distribu- prevent one specific competi- brought to an end by the regula- an objective justification tion may lead to efficiencies, tor or certain specific com- tion since no convincing case related to the product, such especially where investments by petitors from using these out- was made to the Commission as as a general ban on selling the distributors are required to lets to distribute their prod- to why these industries should be dangerous substances to cer- protect or build up the brand ucts treated differently from others. tain customers for health or image. In general, the case for • Any direct or indirect non- However, under the licence, a safety reasons. efficiencies is strongest for new compete obligation the dura- ten-year non-compete clause is products, for complex products, tion of which is indefinite or permitted in respect of exclusive There are four exceptions to for products whose qualities are exceeds five years. Non-com- purchasing agreements in the this restriction: difficult to judge before con- pete obligations are obliga- motor-fuel sector. As a result, an

60 Law Society Gazette November 2000 Briefing agreement, which in Ireland is share not exceeding 30%, enters Agreements entered into by ‘This important reform con- exempted under the licence, into a vertical agreement which undertakings whose contribu- firms the commitment of the might be notifiable to the does not give rise to objective tion to the cumulative effect is Commission to review and Commission under the regula- advantages of such a character as insignificant do not fall under streamline Community legislation tion. to compensate for the damage the prohibition provided for on competition. The aim is to sim- which it causes to competition. article 81(1) and are therefore plify our rules and reduce the reg- Transitional period This may particularly be the not subject to the withdrawal ulatory burden for companies, The regulation applies from 1 case with respect to the distribu- mechanism (Case C-234/89 while ensuring a more effective June 2000. It provides for a tran- tion of goods to final consumers, Delimitis v Henniger Brau [1991] control of vertical restraints sitional period for vertical agree- who are often in a much weaker ECR 1-935, pl 52). The exempt- implemented by companies hold- ments already in force before position than professional buy- ed status of the agreements con- ing significant market power. that date which do not satisfy the ers of intermediate goods. cerned will not be effected until This will allow the Commission to conditions for exemption pro- When the conditions of arti- the date on which the withdraw- concentrate in future on impor- vided in the regulation but cle 81(3) are not fulfilled, the al becomes effective. tant cases, in co-operation with which do satisfy the conditions Commission may withdraw the The competent authority of the member states, who will play for exemption of the previous benefit of the regulation to a member state may withdraw an increased role in the applica- block exemptions. The latter establish an infringement of the benefit of the regulation in tion of Community competition agreements may continue to article 81(1). Where the with- respect of vertical agreements rules’. benefit from these block exemp- drawal procedure is applied, the whose anti-competitive effects The new rules embody a shift tions until 31 December 2001. Commission bears the burden of are felt in the territory of the from the formalistic regulatory After that date, all vertical agree- proof that the agreement falls member state concerned or a approach underlying the previ- ments falling within the applica- within the scope of application of part thereof. The Commission ous block exemptions towards a tion of the regulation must com- article 81(1) and that the agree- has the exclusive power to more economic approach in the ply with it. ment does not fulfil the condi- withdraw the benefit of the assessment of vertical agree- tions of article 81(3). The condi- regulation in respect of vertical ments under EU competition Withdrawal of the regulation tions for an exemption under agreements restricting compe- rules. The basic aim of the new The presumption of legality article 81(3) may in particular not tition on a relevant geographic approach is to simplify the rules conferred by the regulation may be fulfilled when access to the market, which is wider than the applicable to supply and distri- be withdrawn if a vertical agree- relevant market or competition territory of a single member bution agreements and to ment, considered either in isola- therein is significantly restricted state. reduce the regulatory burden tion or in conjunction with simi- by the cumulative effect of paral- The regulation constitutes for companies lacking market lar agreements enforced by com- lel networks of similar vertical reform of a key area of compe- power while ensuring a more peting suppliers or buyers, agreements practised by compet- tition policy and is part of the effective control of agreements comes within the scope of article ing suppliers or buyers. wider review undertaken by the entered into by undertakings 81(1) and does not fulfil the con- Responsibility for an anti-com- Commission to streamline and holding significant market ditions of article 81(3). This may petitive cumulative effect can adapt competition law. Upon power. G occur when a supplier, or a buyer only be attributed to those the adoption of the regulation, in the case of exclusive supply undertakings which make an Commissioner for Competition John Darby is a solicitor with the agreements, holding a market appreciable contribution to it. Mario Monti stated that: Dublin firm McCann FitzGerald.

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61 Law Society Gazette November 2000 Briefing Recent developments in European law EMPLOYMENT selection board placed a Ms Free movement of workers without the prior authorisation of Destouni first, Mr Anderson sec- Case C-281/98 Roman Angonese her Dutch sickness insurance Gender discrimination ond and Ms Fogelqvist third. The v Cassa di Risparmio di Bolzano fund. An application to reimburse Case C-196/98 Regina Virginia selection took into account the SpA, judgment of 6 June 2000. the costs was refused as satis- Hepple v Adjudication Officer, judg- scientific merits of the candidates Angonese is an Italian whose factory and adequate care was ment of 23 May 2000. In the UK, and the requirements of positive mother tongue is German. He available in the Netherlands and a weekly benefit is paid to employ- discrimination. Ms Destouni then went to study in Austria between that the treatment in Germany did ees or former employees who withdrew. The selection board 1993 and 1997. In 1997, he not give any additional advan- have suffered an occupational found a considerable difference applied for a position with a pri- tages. Peerbooms, a Dutch accident or disease. It is to com- between the two remaining candi- vate bank in Bolzano. One of the national, fell into a coma following pensate for a decrease in earning dates and recommended Mr conditions for consideration was a road traffic accident. He capacity. The allowance is calcu- Anderson. In late 1997, the rector possession of a certificate in received special intensive therapy lated on the basis of the occupa- of the university appointed Ms bilingualism in Italian and in an Austrian clinic, which tion which the claimant had been Fogelqvist. Mr Anderson and German. Obtaining such a certifi- improved his condition. He did not prevented from continuing, or any another disappointed candidate cate is seen as part of normal meet the conditions for admission alternative occupation. In 1986, a appealed. The ECJ held that a training for residents of Bolzano. to the two establishments in the retirement allowance replaced this measure intended to give priority Angonese did not have such a cer- Netherlands, which used the benefit for those who had reached in promotion to women in sectors tificate. He argued that requiring same medical technique (such pensionable age and had ceased of the public service where it does such a certificate was contrary to admission was confined to those regular employment. It corre- not automatically and uncondition- the treaty provisions on free under the age of 25). His Dutch sponds to 25% of the last weekly ally give priority to women where movement of workers. The ECJ sickness insurance fund refused amount of the benefit to which the women and men are equally qual- upheld his arguments. It held that to reimburse his costs. The fund relevant recipient was entitled. In ified and where the candidatures the principle of free movement of argued that the treatment given in the UK, the pensionable age for are the subject of an objective workers involved the abolition of Austria was no more beneficial men is 65 and for women 60. Ms assessment, which takes account any discrimination based on than the care offered in the Hepple and others claimed that of the specific personal situations nationality between workers of Netherlands. Dutch legislation the allowance received by them of all candidates. The Swedish member states as regards provides that patients may not since reaching retirement age was legislation allowed preference to employment, remuneration and receive medical care in establish- lower than that received by male be accorded to a candidate other conditions of work. This pro- ments not having an agreement claimants. The ECJ held that as belonging to the under-represent- hibition applies to both public with the sickness insurance fund the UK was permitted a derogation ed sex who, although sufficiently authorities and private persons. unless prior authorisation is in relation to different retirement qualified, did not possess the Making access to employment obtained. The Dutch court sought ages for different genders, this same qualifications as the other conditional on one particular a ruling as to the compatibility of exemption could extend to other candidates of the opposite sex. diploma is an obstacle to free legislation of this kind with the benefit schemes provided that the The ECJ noted that the assess- movement of workers. Those not principle of the freedom to provide discrimination is necessarily and ment of the candidates’ qualifica- resident in Bolzano had little services. Advocate General Ruiz- objectively linked to that difference tions in this selection procedure chance of acquiring the diploma Jarabo pointed out that the funds in age. This is the position where was not based on clear and cer- and thus access to employment make payments directly to the such discrimination is objectively tain criteria. There was a risk of in Bolzano. This disadvantaged hospitals concerned – there is no necessary to avoid disturbing the arbitrary assessment. Swedish not only Italian nationals resident element of reimbursement to the financial equilibrium of the social legislation automatically gave pri- in other parts of Italy but also patient. The payments made are security system or ensures coher- ority to candidates belonging to nationals of other member at a flat rate or paid in accordance ence between the retirement pen- the under-represented sex who states. The court furthermore with a scale of charges per day of sion scheme and other benefit were adequately qualified provid- held that since it was impossible treatment. The advocate general schemes. The court held that this ed that the difference between to submit proof of linguistic knowl- opined that since there was no discrimination could not be objec- the merits of the candidates of edge for the position other than element of remuneration, this sys- tively justified on the basis of wish- each sex was not so great as to the particular diploma issued in tem did not fall within the scope of ing to avoid disturbing the financial give rise to a breach of the Bolzano, this was disproportion- freedom to provide services. He equilibrium. However, it could be requirement of objectivity in the ate to the aim of recruiting prop- then went on to observe that if the justified to ensure coherence making of appointments. The ECJ erly-qualified staff. ECJ did regard this case as falling between this scheme and the old held that the selection method within the definition the rules, it age pension scheme. under the Swedish legislation did FREEDOM TO PROVIDE would be a restriction on the free- not conform to EC law. The selec- SERVICES dom to provide services. He Case C-407/98 Katarina tion was based on the fact of reached this conclusion due to the Abrahamsson and Leif Anderson v belonging to the under-represent- Case C-157/99 BSM Geraets- restrictive national rules. Elisabet Fogelqvist, judgment of 6 ed sex, and candidatures were Smits v Stichting Ziekenfonds and However, he opined that these July 2000. In 1996, the University not subjected to an objective HTM Peerbooms v Stichting CZ restrictions would be justified, as of Göteborg announced a vacancy assessment taking account of the Groef Zorgverzekeringen, opinion this system of prior authorisation for the chair of hydrospheric sci- specific personal situations of all of Advocate General Ruiz-Jarabo, was a necessary and proportion- ences. The vacancy notice indicat- the candidates. In addition, the 18 May 2000. Ms Geraets, a ate means of attaining the objec- ed that positive discrimination selection method was dispropor- Dutch national, was suffering from tive of maintaining the financial might be applied in accordance tionate having regard to the aim Parkinson’s Disease. She was balance of the Dutch sickness with Swedish legislation. The pursued. being cared for in a German clinic, insurance system. G

62 Law Society Gazette November 2000 People and places

CLE corporate law seminar Pictured at the recent CLE/Corporate and Public Sector Committee seminar on corporate compliance, communication and governance were Albert Farrell of Bastow Charlton; Edward Hughes, law agent, Dun Laoghaire/ Rathdown County Council and Ensor revisits the home of Munster rugby chair of the Corporate and Public Pictured at a recent meeting of the Limerick Bar Association are (front row, left to right) Frances Twomey, Sector Committee; and the Law Secretary Karen Kearney, Law Society President Anthony Ensor, Limerick Bar Association President Maeve Society’s Geraldine Hynes. Paul Callanan, Law Society Director General Ken Murphy and Law Society past-president Paddy Glynn; (back row, left Egan of Mason Hayes & Curran to right) Eamon O’Brien, Philip Culhane, Joe O’Meara, Michael Sherry, Aine Lyons, Elizabeth Ronan, Gearoid also took part in the seminar, but McGann, Pat Wallace and Mark Potter is absent from the photograph

On the Sly In an attempt to bolster his flagging movie career, Sylvester Stallone gatecrashes the Dublin Solicitors’ Bar Association annual conference German diplomacy in Montreal this past September. Humouring the Hollywood hardman Jutta Breatnach of Dublin’s Goethe Institut with graduates of the are (left to right) DSBA President Richard Bennett, Helen Quinn and Diploma in legal German at a recent conferring ceremony James McCourt

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63 Law Society Gazette November 2000 Irish Stenographers Ltd

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Richard Robinson, director of Guinness & Mahon Bank, which sponsored the tax prize for high- est mark in CAT on a professional Law Society President Anthony Ensor presents Olivia Broderick and Aidan Small shared joint first practice course, greets Anthony Hilary Coveney with the Findlater Scholarship Prize place in the John Jermyn Prize for highest mark in Ensor. This year’s prize went to for best overall performance on a professional and wills, probate and administration of estates on a pro- Margaret Feeney of the May 1999 advanced course fessional practice course professional practice course

Anthony Ensor with Dearbhla Considine and Darren Dr Max Barrett receives the Ulster Bank Civil Aidan Small receives the AIB Murphy, winners of the Law Society Conveyancing Litigation Prize for highest mark in civil litigation from Conveyancing Prize from AIB’s Prizes for second- and third-highest marks in applied the bank’s Josephine Armstrong, while his family and Caroline Reidy land law on a professional practice course Law Society President Anthony Ensor look on

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65 Law Society Gazette November 2000 Apprentices’ page

Complied by Keith Walsh SADSI

Solicitors Apprentices Apprentices win inaugural John Debating Society of Ireland Edmund Doyle Memorial Trophy

ouise Rouse and Ronan Kerry). Competing teams were LMcSweeney, representing blown away when the house SADSI and speaking for the erupted to his declaration that proposition That this house the professions should would merge the legal profession, ‘disregard their colonial were the first winners of the shackles and take up the John Edmund Doyle Memorial republican torch’. He then Tr ophy in the King’s Inns last urged us to agree that a united month. The trophy, named for profession would benefit all, the three-time auditor of save those at the very top of the SADSI in the 1940s, was profession. presented by his son Mark The general opinion Doyle, principal of Actons following the debate was that Solicitors. The debate was the final pair against the organised for SADSI by Ronan McSweeney and Louise Rouse prepare their winning speeches proposition, Kieran Doran and Clodagh Beresford, herself an prior to the John Edmund Doyle Memorial Debate Willie Fogarty, were the accomplished debater and an informal runners-up. Doran apprentice in Actons. the bar. Tradition without momentum created by his emphasised his conservative Rouse emphasised the practical benefit, she said, has partner and turned in what was credentials by pleading that current perceived barriers to no place in either profession, described by the seasoned justice should not be sacrificed entry in the barristers’ and a fused profession would debaters present as an oration on the altar of expediency. profession and lamented the benefit both advocate and worthy of a politician in the Fogarty compared the solicitor resulting loss of advocates to client. McSweeney built on the deep South (Mississippi, not to a GP and the barrister to a surgeon and warned that a fusion of the professions would cause chaos. Law School flooded with apprentices Mr Justice TC Smyth ast month saw 360 opened Education Centre in cloak room, a new, larger chaired the debate with a Lapprentices go back to Blackhall Place. New facilities library and – most important remarkable impartiality, school for their professional include a large and comfortable from a student’s point of view – perhaps explained by the fact practice course in the newly- lecture hall, a coffee shop, a second, larger, bar. that he had been an apprentice, a solicitor and a barrister before his appointment to the SADSI SADSI composition contest bench. ntries are invited by all apprentice number and contact elections Eapprentices for the SADSI telephone number. Any As the year draws to a close, composition competition for submissions to academic Moot Court, apprentices are presented the best work of academic legal journals or other prizes may be Blackhall with the opportunity to elect writing – article or paper – by considered again here. A their SADSI auditor for 2001. an apprentice in the year 2000. substantial cash prize will be Place The auditor, once elected, Please send submissions by 8 awarded to the winner, then selects his own December to SADSI at PO together with a gold medal and King’s Inns will travel to the committee. Election details Box 7477, Ballsbridge, Dublin a listing in the Law Directory new lecture theatre on 22 will be sent to all apprentices 4. Enclose name, address, 2001. November at 7.30pm in the in the coming weeks, and the hopes of avenging their election itself will take place recent debating defeat by in the first week of taking the moot court prize. December. Voting will be by Willie grabs Gold Competition will be fierce, postal ballot, with those Willie Fogarty, supporting the proposition That this house and will be preceded and apprentices in the Law would forgive and forget, was the winner of this year’s SADSI followed by the usual School able to submit votes gold medal. The Gold Medal Debate is an oratory prize and generous wine reception in directly. this year was awarded to the best impromptu speaker. the Law Society.

66 Law Society Gazette November 2000 Professional information

LOST LAND Clonmany, Lifford, County

CERTIFICATES Donegal; Folio: 22319; Lands: LawSociety Magheranaul; Co Donegal Gazette Registration of Title Act, 1964 Regd owner: Paul Niall and Irene An application has been received from Niall; Folio: DN31057L; Lands: the registered owners mentioned in property situate to the north of ADVERTISING RATES the schedule hereto for the issue of a Walnut Court in the parish of Advertising rates in the Professional information section are as follows: land certificate as stated to have been Clonturk and district of lost or inadvertently destroyed. A new Drumcondra; Co Dublin • Lost land certificates – £30 plus 21% VAT (£36.30) certificate will be issued unless notifi- Regd owner: Peter and Margaret • Wills – £50 plus 21% VAT (£60.50) cation is received in the registry with- Doyle; Folio: DN18451; Lands: • Lost title deeds – £50 plus 21% VAT (£60.50) in 28 days from the date of publica- property situate in the Townland of • Employment miscellaneous – £30 plus 21% VAT (£36.30) tion of this notice that the original Finnstown and Barony of certificate is in existence and in the Newcastle; Co Dublin HIGHLIGHT YOUR ADVERTISEMENT BY PUTTING A BOX AROUND IT – £25 EXTRA custody of some person other than the Regd owner: Texaco (Ireland) All advertisements must be paid for prior to publication. Deadline for registered owner. Any such notifica- Limited, which name was changed December Gazette: 17 November 2000. For further information, contact tion should state the grounds on to Texas Company (of Ireland) Catherine Kearney or Louise Rose on 01 672 4828 which the certificate is being held. Limited, which name was changed (Register of Titles), Central Office, Land to Caltex (Ireland) Limited, which Registry, Chancery Street, Dublin name was changed to Texaco (Published 3 November 2000) (Ireland) Limited; Folio: Farranshone Road in the parish of Barony of Frenchpark; Area: (1) DN15961; Lands: property situate St Nicholas; Co Limerick 6.867 hectares, (2) 1.392 hectares, Regd owner: Eamonn Anthony in the Townland of Turnapin Great Regd owner: Henry and Mary Keane; (3) 3.283 hectares; Co Carolan, Carnaville North, and Barony of Coolock; Co Folio: 32949F; Lands: Townland of Roscommon Kilmainhamwood, Kells, Co Dublin Dromroe and Barony of Regd owner: Patrick O’Connor, Meath; Folio: 14871; Lands: Regd owner: John and Sharon Keogh; Clanwilliam; Co Limerick Drummin, Ballinagare, Castlerea, Carnans Lower; Area: 25.32 acres; Folio: DN13528F; Lands: proper- Regd owner: Philomena Ryan and Roscommon; Folio: 25198; Lands: Co Cavan ty situate in the Townland of Rush Andrew Ryan, Brackloon East, Townland of (1) Peak, (2) Regd owner: Martin and Imelda and Barony of Balrothery East; Co Ballyhaunis, Mayo; Folio: 1015; Drummin, (3) Drummin and Meere, Ballybeg, Clarecastle, Dublin Lands: Townland of Brackloon Barony of Castlerea; Area: (1) Clare; Folio: 20612F; Lands: Regd owner: Joseph Taplin; Folio: East; Area: 19.417 hectares and 1.2267 hectares, (2) 7.3349 To wnland of Clonroad More and DN55456L; Lands: property situ- Barony of Costello; Co Mayo hectares, (3) 0.6416 hectares; Co Barony of Islands; Co Clare ate in the townland of Tymon Regd owner: Bernard Mullen, Roscommon Regd owner: The Clare County South and Barony of Uppercross; Allisabeagh, Scotstown, Co Regd owner: Westward Holdings Board of Health and Public Co Dublin Monaghan; Folio: 9490; Lands: Limited, Farnbeg, Strokestown, Assistance (Clare County Council); Regd owner: Michael Ansbro; Folio: Killatten; Area: 18.125 acres; Co County Roscommon; Folio: Folio: 3626; Lands: Townland of 5422; Lands: Curraghaun and Monaghan 18309F; Lands: Townland of (1) (1) Cloonakilla, (2) Cross More; Barony of Dunmore; Co Galway Regd owner: John Patrick Morris, Bumlin, (2) Killinardan Beg; Area: Area (1) 0.2175 hectares, (2) 0.2023 Regd owner: Diarmuid Kelleher and Corskeagh, Frenchpark, Roscom- (1) .627 hectares, (2) 1.252 hectares hectares and Barony of Frances Hill, Rossadillisk, mon; Folio: 32856; Lands: and Barony of Roscommon; Co Clonderalaw; Co Clare Cleggan, County Galway; Folio: Townland of Corskeagh and Roscommon Regd owner: John Keogh, 30 Lodge 38188F; Lands: Townland of Road, Sixmilebridge, County Rossadillisk; Area: 0.058 hectares Clare; Folio: 28291; Lands: and Barony of Ballynahinch; Co NORTHERN DUBLIN SOLICITORS’ Townland of (1) Reaskcamogue (2) Galway PRACTICE OFFERS Rossmanagher (3) Corlea; Area: (1) Regd owner: James Lally, 26 IRELAND 17.1830 hectares, (2) 2.1090 Bohermore, Galway; Folio: 37042; SOLICITORS AGENCY WORK hectares, (3) 1.3600 hectares and Lands: Townland of Rinmore; IN NORTHERN Barony of Bunratty Lower; Co Area: 0.0480 hectares and Barony We will engage in, Clare of Galway; Co Galway and advise on, IRELAND Regd owner: Patrick Kivneen, Regd owner: Paul Dunne and all Northern Ireland Maureen Kelly, 25 Iniscarragh, St Logalisheen Ballindine, Co Mayo; * All legal work undertaken Flannans Drive, Ennis, County Folio: 22273; Lands: Townland of related matters, particularly personal on an agency basis Clare; Folio: 22261F; Lands: Carrownurlaur; Area: 11.862 * All communications to clients To wnland of Clonroad More and hectares and Barony of Dunmore; injury litigation. through instructing solicitors Barony of Islands; Co Clare Co Galway Consultations where * Consultations in Dublin if required Regd owner: Patrick McMahon, Regd owner: Rose Anne Griffin; convenient. Cahermoneen, Tralee, County Folio: 224R; Lands: Townland of Fee sharing Contact: Séamus Connolly Moran & Ryan, Solicitors, Clashaphuca and Barony of Kerry; Folio: 26438F; Lands: envisaged. Arran House, Townland of (1) Lisluinaghan, (2) Tr ughanacmy; Co Kerry 35/36 Arran Quay, Dublin 7. Lisluinaghan; Area: (1) 3.4572 Regd. owner: Michael and Cathryn hectares, (2) 2.2456 hectares and Carmody; Folio: 11927F; Lands: OLIVER M LOUGHRAN Tel: (01) 872 5622 Barony of Moyarta; Co Clare Townland of Ballycasheen and & COMPANY Fax: (01) 872 5404 Regd owner: John J Fitzpatrick, Barony of Magunihy; Co Kerry Cloghaun, Lisdoonvarna, Clare; Regd. owner: Elizabeth Ryan; Folio: 9 HOLMVIEW TERRACE, e-mail: [email protected] Folio: 13929; Lands: Townland of 1213L; Lands: Townland of Knock OMAGH, CO TYRONE or Bank Building, Hill Street Ardemush; Area: 0.9000 hectares and Barony of North Liberties; Co Phone 004428) 8224 1530 Newry, County Down. and Barony of Corcomroe; Co Limerick Fax: (004428) 8224 9865 Tel: (0801693) 65311 Clare Regd owner: Anne Meany; Folio: e-mail: 14347F; Lands: St Mary’s Terrace, Fax: (0801693) 62096 Regd owner: Bridget McDaid, [email protected] Magheranaul, Isle of Doagh, E-mail: [email protected]

67 Law Society Gazette November 2000 WHERE THERE’S A WILL THIS IS THE WAY…

When a client makes a will in favour of the Society, it would be appreciated if the bequest were stated in the following words: SPANISH LAWYERS “I give, devise and bequeath the sum of X pounds to the Irish RAFAEL BERDAGUER Cancer Society Limited to be applied by it for any of its ABOGADOS charitable objects, as it, at its absolute discretion, may decide.”

PROFILE: FIELD OF PRACTICES: All monies received by the Society are expended within the panish Lawyers Firm focussed eneral Practice, Administra- Republic of Ireland. Son serving the need of the for- Gtive Law, Civil and Commercial eign investors, whether in compa- Law, Company Law, Banking and “Conquer Cancer Campaign” is a Registered Business Name ny or property transactions and all Foreign Investments in Spain, attendant legalities such as ques- Arbitration, Taxation, Family Law, and is used by the Society for some fund-raising purposes. tions of immigration-naturalisa- International Law, Immigration The “Cancer Research tion, inheritance, taxation, and Naturalisation, Litigation in all Advancement Board” accounting and bookkeeping, Courts. planning, land use and litigation in allocates all Research all Courts. Grants on behalf of the Society. Avda. Ricardo Soriano, 29, Edificio Azahara Oficinas, 4 Planta, 29600 Marbella, Malaga, Spain 5 Northumberland Road, Dublin 4. Tel: (01) 668 1855 Tel: 00-34-952823085 Fax: 00-34-952824246 e-mail: [email protected] 15 Bridge Street, Cork. Tel: (021) 4509 918

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• Customised Training •Fearon & C o specialise in acting for Irish residents in Programmes the fields of probate, property and litigation (for firm-specific applica- • Each solicitor is available by direct line, fax or e-mail. tions) Conferences can be easily arranged •Fearon & C o is committed to the use of information • Tailored Course Materials technology to help improve both the quality and speed of service for the benefits of all clients both at home and abroad • The firm’s offices are within half an hour of London W aterloo station and within a short travel from both Gatwick and Heathrow airports, with easy access from the London orbital M25 motorway • No win, no fee arrangements and Legal Aid are available in appropriate cases PHONE NOW FOR A BROCHURE W estminster House 12 The Broadway, Woking, Surrey GU21 5AU England For more information, contact Muriel at Fax: +44 (0)1483 725807 Email: [email protected] www.fearonlaw.demon.co.uk out•source 140-142 Pembroke Road, Dublin 4 LITIGATION PROPERTY PROBATE T: 01 664 3402 F: 01 664 3403 E: mk@out- Sarah Butler John Phillips Francesca Nash source-finance.com Tel: +44 (0)1483 776539 Tel: +44 (0)1483 747250 Tel: +44 (0)1483 765634 Professional information

Regd owner: Deirdre Gowan, Pound by the above named deceased who the County of Cork. Would any per- Smith, Pierce (otherwise Peter or Street, Ballaghaderreen, Co died on 23 July 2000, please contact son having knowledge of a will made Pearse), late of 39 St Martin’s Estate, Roscommon; Folio: 36782; Lands: Desmond J Houlihan & Company, by the above named deceased who Cavan. Would any person who hav- Townland of (1) Ballaghaderreen, Solicitors, Salthouse Lane, Ennis, Co died on 29 February 2000, please ing knowledge of a will made by the (2) Lung; Area: (1) 0.003 acres, and Clare, tel: 065 6842244, fax: 065 contact J&P O’Donoghue, Solicitors, above named deceased who died on 4 (2) 0.506 acres and Barony of 6842233 14 Main Street, Caherciveen, Co October 2000, please contact Reidy Costello; Co Roscommon Kerry, tel: 066 9472413, fax: 066 Stafford, Solicitors, Newbridge, Co Regd owner: Michael and Margaret Lineen, James late of Main St, 9472667 Kildare, tel: 045 432188, fax: 045 Devine, 29 Clonmore, Mullingar, Lismore, Co Waterford and 433019 Co Westmeath; Folio: 1380F; Ballysaggartbeg, Lismore, Co Rendon, Margaret (deceased), late Area: 0.138 acres; Co Westmeath Waterford. Would any person having of 22 Killarney Road, Castleisland, Waldron, James (deceased), late of Regd owner: William Ringwood and knowledge of a will executed by the Co Kerry. Would any person having Reask, Knock, Claremorris, Co Therese Ringwood; Folio: 18674F; above named deceased who died on knowledge of a will made by the Mayo. Would any person having Lands: Ballyconnigar Upper; and 15 September 2000, please contact above named deceased who died on knowledge of a will of the above Barony of Ballaghkeen South; Co Neil Twomey & Co, Solicitors, 22 July 1986, please contact Donal J named deceased who died on 18 Wexford Fernville, Lismore, Co Waterford, O’Neill & Company, Solicitors, 3 September 2000, please contact Regd owner: John Joseph Barry; tel: 058 54075, fax: 058 53323 Denny Street, Tralee, Co Kerry, tel: Daniel Spring & Company, Folio: 5246 and 11960; Lands: 066 7122800, fax: 066 7125720 Solicitors, 87 St Stephen’s Green, Rickardstown and Knocknoran and Maher, John, late of 7 Measc Drive, Dublin 2, tel: 01 4755587, fax: 01 Barony of Bargy; Co Wexford Artane, Dublin 5. Would any person Sheehan, Cornelius (deceased), for- 4755590, Reference TB Regd owner: Michael S Mooney; having knowledge of a will made by merly of 26 Fitzroy Avenue, Folio: 3905; Lands: Inch, the above named deceased who died Drumcondra, Dublin 9 and late of Whelan, Brigid (deceased), late of Blackwater and Barony of on 18 August 2000, please contact M Nazareth House, Malahide Road, Clowater, Goresbridge, Co Kilkenny, Ballaghkeen South; Co Wexford O’Leary & Co, Solicitors, 183 Howth Dublin 3. Would any person having Would any person having knowledge Regd owner: Martin Murphy Road, Killester, Dublin 3, tel: 01 knowledge of a will made by the of a will made by the above named (deceased); Folio: 11117 and 8331900, fax: 01 8334991 above named deceased who died on 9 deceased who died on 30 September 11119; Lands: Coolgarrow and October 2000, please contact John 2000, please contact Owen Barony of Ballaghkeen South; Co Moreland, Brendan (deceased), late Rochford & Company, Solicitors, O’Mahony & Co, Solicitors, 5 John’s Wexford of 52 Cabra Park, Phibsborough, 16/17 Upper Ormond Quay, Dublin Bridge, Kilkenny, tel: 056 61733, 056 Dublin 7, Would any person having 7, tel: 01 8721499, fax: 01 8721499 65762 knowledge of a will made by the WILLS above named deceased who died on Smith, Peter (deceased), late of 306 27 August 2000 at the Mater Crumlin Road, Dublin 12. Would EMPLOYMENT Durkan, Mary of 32A Wadelai Road, Hospital, Dublin 8, please contact any person having knowledge of the Ballymun, Dublin 11 (ward of court) Messrs Arthur O’Hagan, Solicitors, 9 original will and any other will made Locum solicitor/experienced and now residing at Norwood Harcourt Street, Dublin 2, tel: 01 by the above named deceased who apprentice for conveyancing and Nursing Home, Bray, County 4758701 died on 7 December 1995, please probate required for three- to four- Wicklow. Would any person contact Delahunty O’Connor & Co, month period commencing January having knowledge of a will made Murphy, Michael Dr (deceased), late Solicitors, 179 Crumlin Road, 2001 with prospects to extend by the above named, please of Cremorne, Greenmount Road, Dublin 12, tel: 01 4540766, fax: 01 employment indefinitely, Dublin 6 contact Brian McLoughlin & Te renure in the County of Dublin. 4531866 practice. Reply to Box No 90 Company, Solicitors, 3 Herbert Road, Would any person having knowledge Bray, County Wicklow, tel: 01 of a will executed by the above named 2868211, fax: 01 2828143, e-mail: deceased who died on 21 September [email protected] 2000, please contact Kelly & Griffin, Solicitors, 77 Terenure Road North, Kirrane, Patrick Joseph (deceased), Te renure, Dublin 6W, tel: 01 late of Effernan, Kildysart, Co Clare 4901185, fax: 01 490 3505 and formerly of Quay Road, Kildysart, Co Clare. Would any per- McCarthy, Cornelius (otherwise son having knowledge of a will made Neil), late of Main Street, Schull, in INTERNATIONAL LEGAL RECRUITERS • Solicitors • In House TITLE RESEARCH • Paralegals YOUR PARTNER IN TRACING • Legal Secretaries / PA’s MISSING BENEFICIARIES • Law Clerks PROBATE & • Office Managers SUCCESSION • Free professional assessments GENEALOGY – • Range of cost structures • General Office Staff • Excellent success rate world- Osborne Recruitment For more information or our detailed brochure please 104 Lr Baggot St. Dublin 2 +44 020 7549 Tel: (01) 638 4400 Fax: (01) 638 4444 Charter House, 2 Farringdon Road, London EC1M 3HN e-mail: [email protected] Fax: +44 020 7549 0949 DX: 53347 Clerkenwell website: www.osborne.ie

69 Law Society Gazette November 2000 Professional information

Assistant solicitor required for Solicitors, 43-45 Monaghan Street, Seven-day licence for sale. Contact Killarney-based practice. Two years’ Solicitor required for Galway Newry, County Down, tel: 080 1693 Garry Clarke of O’Gorman post-qualification experience desir- City practice from early 2001. 68144, fax: 080 1693 60966 Cunningham & Co, Solicitors, 16 able. Work will involve primarily Might suit recently-qualified Upper Main Street, Letterkenny, Co conveyancing and probate areas of solicitor. Apply with CV and ref- Northern Ireland agents for all con- Donegal, tel: 074 24828 practice with some litigation. Reply erences to Box No 92 tentious and non-contentious matters. with CV to Box No 91 Consultation in Dublin if required. Intoxicating liquor licence wanted Fee sharing envisaged. Offices in –ordinary seven-day publican’s Two solicitors required for Belfast, Newry and Carrickfergus. licence for extinguishment anywhere Hussey & O’Higgins, busy Midlands practice Contact Norville Connolly, D&E in the Republic of Ireland. Apply to Solicitors Mainly conveyancing and probate Fisher, Solicitors, 8 Trevor Hill, Dunne Ryan, Solicitors, Athbara Two years’ PQE required. Newry, tel: 080 1693 61616, fax: 080 House, Cavan, tel: 049 4332555, fax: Are seeking an experienced solic- Applications and CV to Box No 1693 67712 049 4361103 itor for their fast-expanding 93 Commerical/Construction Law Personal injury claims, employment, Solicitor, Dublin 2, seeks amalga- Department. family, criminal and property law spe- mation or other arrangement. Might The position would suit a lawyer Wanted Employment law spe- cialists in England and Wales. Offices suit young solicitor or firm wishing to with a conveyancing background cialist to write weekly column in London (Wood Green, Camden expand. Box No 94 and tax experience who would reviewing legislative and case law Town and Stratford) and Birmingham. welcome an interesting and var- developments. Please apply to One of our staff is in Ireland for one ied mix of work. Box No 94 week in every month. Legal aid avail- Offices to let This is a challenging position for able to clients that qualify. Contact a self-starter who enjoys being a David Levene & Co at Ashley House, Arran Quay/Smithfield team player. Package up to £50K 235-239 High Road, Wood Green, Choice of newly-refurbished for right candidate. MISCELLANEOUS London N22 8HF, England, tel: 0044 three-storey offices 181 881 7777, or The McLaren Flexible lease terms Replies by 17 November to Northern Ireland solicitors provid- Building, 35 Dale End, Birmingham 500-1850 sq ft Hussey & O’Higgins, Solicitors, ing an efficient and comprehensive B4 7LN, tel: 0044 121 212 0000. 17 Northumberland Road, legal service in all contentious/non- Alternatively e-mail us on info@davi- CityWide Auctioneers, Dublin 4, fax: 01 6682621, e-mail: contentious matters. Dublin-based dlevene.co.uk or visit our website at tel: 01 6718505 [email protected] consultations and elsewhere. Fee www.davidlevene.co.uk apportionment. ML White, London solicitors will advise on UK matters and undertake agency work. TITLE DEEDS All areas. Corporate/private clients. Ellis & Fairbairn, 26 Old Brompton Lost title documents. Mary Durkan Leave it to the experts! Road, South Kensington, London (ward of court) of 32A Wadelai Road, SW7 3DL, tel: 0044 171 589 0141, Ballymun, Dublin 11. Would any per- fax: 0044 171 225 3935 son having knowledge of the where- abouts of the title documents of the Northern Ireland solicitors. Will above mentioned property, please advise and undertake NI-related mat- contact Brian McLoughlin & ters. All areas corporate/private. Company, Solicitors, 3 Herbert Road, Agency or full referral of cases as pre- Bray, County Wicklow, tel: 01 ferred. Consultations in Dublin or 2868211, fax: 01 2828143; e-mail: elsewhere if required. Fee sharing [email protected] envisaged. Donnelly Neary & Donnelly, 1 Downshire Road, Newry, Lost title documents. 52 Cabra Park, COMPANY Co Down, tel: 080 1693 64611, fax: Dublin 7. Brendan Moreland 080 1693 67000. Contact KJ Neary (deceased). Would any person having knowledge of the title documents of the above mentioned documents EYE INJURIES AND please contact Arthur O’Hagan, FORMATION OPHTHALMOLOGIAL Solicitors, 9 Harcourt Street, Dublin NEGLIGENCE 2.

THE LAW SOCIETY’S COMPANY SERVICE, Mr Louis Clearkin ChM, FRCS, In the matter of the Landlord and BLACKHALL PLACE, DUBLIN 7 FRCOphth, DO, MAI, MEWI Tenant Acts, 1967-1994 and in the FAST • FRIENDLY • EFFICIENT • COMPETITIVE PRICES MEMBERS OF EXPRESS SERVICE Consultant Ophthalmic Surgeon matter of the Landlord and Tenant Experienced expert witness in (Ground Rents) No 2 Act, 1978 and ophthalmological personal in the matter of the purchase of the PHONE CARMEL OR RITA ON injury, medical negligence and freehold estate in two portions of 01 672 4914/6 (FAX: 672 4915) civil litigation property situate at Baldoyle Road, Dublin 13: an application by Wing Renuntiabo, 8 Rose Mount, View Limited, having its registered • Private limited company – ten days, £180 Oxton, Wirral, Merseyside, office at 64 North Strand Road, • Guarantee company – ten days, from £130 L43 5SW North Strand, Dublin 3 • Single member company – ten days, £180 secretary: +44 (0) 151 6047047 • New companies, using complete nominees – fax: +44 (0) 151 6047152 Take notice that any person having five days, £220 e-mail: [email protected] interest in the freehold estate of the following properties: a) all that piece

70 Law Society Gazette November 2000 Professional information

from front to rere 18 feet, ten inches or tenement and yard in Thomas Street thereabouts, and are bounded on the known as No 125 in the said streets East by Brown’s Alley on the West by a containing in breadth in front to the holding in the possession of the said said Street 11 feet and in depth from William North, on the South by front to rere 46 feet or thereabouts, Thomas Street as aforesaid, and on the bounded on the South by Thomas North by the wall and staircase of the Street as aforesaid, on the East by said William North’s said dwelling- Browne’s Abbey, on the North by Be Sure. Engage a Forensic house and also all that piece or plot of James Moore’s concerns, and on the ground whereon the house lately in the West by Patrick Clarke’s concerns, all 26/28 South Terrace, Cork Tel:021 431 9200 possession of John McCabe of the city of which said demised premises are Fax:021 431 9300 of Dublin, aforesaid sadler, stood now situate lying and being in the parish of also in the possession of the said St Catherine and county of the city of Alexander Fox situate on the North side Dublin’. of ground at the rear of the premises registrar for the county/city of Dublin of Thomas Street aforesaid and divided Take notice that John Clohisey, known as Lansdowne, St Aubens or 84 for directions as may be appropriate from the said other premises hereby Finbar Cahill, Noel Elliott, Andrew and 85 Dublin Road, Sutton, Dublin 13 on the basis that the person or persons granted by Brown’s Alley as aforesaid Madden and Francis Larkin intend to and the store erected thereon held beneficially entitled to the superior which said premises are now known as submit an application to the county under indenture of lease dated 21 July interest including the freehold rever- 124 Thomas Street, Dublin 8’. registrar for the city of Dublin for the 1909 and made between Alexander sion in the premises are unknown or Take notice that John Clohisey, acquisition of the freehold interest in Knox McIntyre, Frederick William unascertained. Frank Cahill, Noel Elliot, Andrew the aforesaid property and that any Higginbotham, John J Garland and Signed: O’Donohoe, Solicitors, solicitors Madden and Francis Larkin intend to party asserting that they hold a supe- William F Webb of the one part and for the applicant, 11 Fairview, Dublin 3 submit an application to the county rior interest in the aforesaid property Edward Whelan of the other part for registrar for the city of Dublin for the are called upon to furnish evidence of the term of 999 years from 25 March In the matter of the Landlord and acquisition of the freehold interest in title to the aforementioned property 1909 subject to the yearly rent of £20 Tenant Acts, 1967-1994 and in the the aforesaid property and that any to the below-named within 21 days and the covenants and conditions matter of the Landlord and Tenant party asserting that they hold a superi- from the date of this notice. therein contained; b) all that piece of (Ground Rents) No 2 Act, 1978 and or interest in the aforesaid property are In default of any such notice being ground to the rear of 82 Dublin Road, in the matter of property situate at called upon to furnish evidence of title received, John Clohisey, Finbar Sutton, Dublin held under indenture of 124 Thomas Street, Dublin 8: an to the aforementioned property to the Cahill, Noel Elliot, Andrew Madden lease dated 15 November 1919 and application by John Clohisey, below named within 21 days from the and Francis Larkin intend to proceed made between William T Chadwick of Finbar Cahill, Noel Elliott, Andrew date of this notice. with the application before the coun- the one part and Arthur E Williams of Madden and Francis Larkin In default of any such notice being ty registrar at the end of the 21 days the other part for a term of 999 years received, John Clohisey, Finbar Cahill, from the date of this notice and will (except the last six months thereof) Take notice that any person having Noel Elliot, Andrew Madden and apply to the county registrar for the from 25 March 1909 subject to yearly any interest in the freehold estate of Francis Larkin intend to proceed with County of Dublin for directions as rent of £0.5s 0d (five shillings) and the the following property: all that and the application before the county regis- may be appropriate on the basis that covenants and conditions therein con- those the hereditaments and premises trar at the end of the 21 days from the the person or persons beneficially tained. comprised in indenture of lease dated date of this notice and will apply to the entitled to the superior interest Take notice that the applicant, Wing 2 November 1778 and made between county registrar for the county of including the freehold reversion in View Limited, intends to submit an Robert Moore and Mary Moore of the Dublin for directions as may be appro- the aforementioned property are application to the county registrar for one part and Alexander Fox of the priate on the basis that the person or unknown or unascertained. the county/city of Dublin at Aras Ui other part and therein described as ‘all persons beneficially entitled to the Dated 19 October 2000 Dhalaigh, Inns Quay, Dublin 7 for the that small shop or tenement lately in superior interest including the freehold Signed: Cahill & Co, Solicitors, 23 acquisition of the freehold interest in the tenancy and occupation of John reversion in the aforementioned prop- Lower Leeson Street, Dublin 2 the aforesaid properties and any parties Fogarty Peruke Maker together with a erty are unknown or unascertained. searching that the whole superior inter- small apartment behind the said shop Dated 19 October 2000 est in the aforesaid premises (or any of lately in the possession of William Signed: Cahill & Co, Solicitors, 23 Lower them) are called upon to furnish evi- North of the said City of Dublin Brass Leeson Street, Dublin 2 J. DAVID O’BRIEN dence of title to the aforementioned Founder which said demised premises premises to the below-named within 21 are now in the actual possession of the In the matter of the Landlord and ATTORNEY AT LAW days from the date of this notice. said Alexander Fox and are situate Tenant Acts, 1967-1994 and in the 20 Vesey St, Suite 700 New In default of any such notice being lying and being on the North side of matter of the Landlord and Tenant York, NY. 10007 received, the applicant, Wing View Thomas Street in the City of Dublin (Ground Rents) No 2 Act, 1978 and in Tel: 001212-571-6111 aforesaid and contain in the front to Limited, intends to proceed with the the matter of property situate at 125 Fax: 001212-571-6166 application before the county registrar the said street four, feet two inches or Thomas Street, Dublin 8: an appli- at the end of 21 days from the date of thereabouts, in the rere four feet, two cation by John Clohisey, Finbar PERSONAL INJURY ACCIDENT this notice and will apply to the county inches or thereabouts, and in depth Cahill, Noel Elliott, Andrew CASES Madden and Francis Larkin CONSTRUCTION RAILROAD SOLICITORS’ HELPLINE Take notice that any person having any MARITIME The Solicitors’ Helpline is available to assist interest in the freehold estate of the AVIATION every member of the profession with any following property: all that and those CAR/BUS/TRUCK problem, whether personal or professional. the hereditaments and premises com- MEMBER AMERICAN AND NEW prised in indenture lease dated 2 May YORK STATE TRIAL LAWYERS The service is completely confidential and 1860 and made between William ASSOCIATION totally independent of the Law Society. Daniel Moore, Robert Henry Moore, Echlyn Molyneaux of the one part and Enrolled as Solicitor If you require advice for any reason, Edward MacCready of the other part in Rep. of Ireland, England phone:01 284 8484 and therein described as ‘all that and & Wales 01 284 8484 those that dwellinghouse messuage or

71 Law Society Gazette November 2000 Cross-examination

Poetic justice

‘When I was udge Michael Pattwell sprang to national sitting in court attention earlier this year when he briefly jailed a solicitor for contempt of court, but as a District his strong opinions were evident even in his Court clerk J very first job, as a customs officer in 1964. ‘I had a strange experience there of being watching the “cautioned” for seizing items from a very prominent solicitors at sports personality and was told in Dublin Castle that certain people were unofficial ambassadors for work, I decided Ireland and should be treated differently. I objected Michael Patwell: would create a ‘Family Law Division’ I could do the to this and decided to seek another job’. with its own scheduled sittings He became a District Court clerk in Cork in May job as well as 1967 and married the following month, a union that What is the best piece of advice you ever got? they could’ resulted in eight children. He resigned from the civil service in 1971 and started as a full-time law student My mother used to say, ‘Love many, trust few, and in University College Cork, where he took his BCL always paddle your own canoe’. in 1974. He was apprenticed to the late Killian Boland in Which case do you wish you had been Cork and qualified as a solicitor in 1976, when he involved in? bought a small practice from the family of a Maybe the ‘X’ case. The result just might have been recently-deceased solicitor in his native Clonakilty. different. He practised there until 1987, when he began work as deputy law agent for Dublin County Council, and Best decision you ever made? then as senior executive solicitor for Cork County To seek appointment to the bench. Council. He was appointed to the District Court in January 1990. Worst decision you ever made? Separated for the past several years, he currently I know what it was, but it is too personal to reveal. lives outside Cork with his elderly mother, whom he cares for. ‘I have an interest in knowing something How do you cope with stress? about everything’, he says, and he’s done many I change what I am doing, and thus change my evening courses over the years, including welding thought patterns. I often read poetry, and and woodwork. His current interests include occasionally I write it. reading, a little sea-fishing, boating, walking, DIY and gardening. He likes to use Irish as often as If you could make one change to the legal possible, and takes Irish classes in UCC every year. system, what would it be? I am tempted to give a list of maybe a hundred What attracted you to a career in law? items. However, I think I would amalgamate the When I was sitting in court as a District Court clerk Circuit and District Courts and create various watching the solicitors at work, I decided I could do divisions, in particular, a ‘Family Law Division’ with the job as well as they could. its own scheduled sittings. That would avoid the disgraceful current situation where family law is Which living person do you most admire? ‘fitted in’ to spare moments in a general list. In world and Irish political terms, I think Eamon de Valera. In personal terms, my mother. In legal Time management tips? terms, Gerald Y Goldberg, who, when he was in None – I can be hopelessly disorganised myself. practice, was head and shoulders over all his contemporaries for independent thinking, ability, Pet hate? legal knowledge and service to his clients. Without a doubt, it has to be smoking. G

72 Law Society Gazette November 2000