aw s ociet Y Gazette • Vol 107 No 1 l aw RiGht to die? MiGhtY oaKes state collusion The High Court decision The Central Bank’s Why the facts of Pat in the landmark case of director of enforcement on Finucane’s murder must Fleming v Ireland regulation and compliance not be whitewashed Law Society Law GazetteGazette€4.00 Jan/Feb 2013 J an /F e B 2013

Law Society of Ireland MeMoRia in aeteRna: Who owns your digital legacy?

Law Society Gazette www.gazette.ie Jan/Feb 2013 president’s message 1 ready, willing and able

write my first message of 2013 on a cold and dark January I have dispatched a number day. I hope that the social, political and economic climate of eBulletins over the past two Iimproves and turns to heat and light for all of you over the months, briefing the profession, coming months. However, the challenges facing our profession for example, on the Society’s are no different to those that face everyone in Ireland in these demand that the British difficult times. Let us hope that the current Irish presidency of government establish a public the EU, coupled with a year of ‘The Gathering’ encourages a inquiry into the murder of rising tide to lift all of our boats. solicitor Pat Finucane – to which It is indeed pleasing to note again that professional the Society received a negative indemnity renewals appear to have gone reasonably smoothly. response in a letter from the As a profession, we must continue to apply always the highest Secretary of State for Northern standards as we strive to deliver a quality service to clients at Ireland. “The proposed home and abroad. The Society’s committees closure of a great In difficult times particularly, some may be tempted to are busy with a wide variety of cut corners. An inevitable outcome of such practices is a projects. The Legal Services number of courts decline in the standard of work, with occasional catastrophic Regulation Task Force continues and garda stations consequences for practitioner and client alike. We should to refine its submissions and, always apply the highest standards and charge proper and has recently written again to around the country, appropriate fees for doing so. Minister Shatter. The Future of inevitably raises the Law Society Task Force is Constructive engagement expected to produce a report for concerns about In February 2012, the Society delivered a detailed 100-page Council at its April meeting. access to justice” submission to the Minister for Justice regarding the Legal Services Regulation Bill. We remain ready, willing and able to Sympathy actively and constructively engage with Minister Shatter when On a sad note, we have lost a number of eminent colleagues the bill reaches committee stage. recently. On behalf of the Law Society and its members, The minister is to be commended for his unstinting efforts I extend my deepest sympathy to the Overend family on to promote reform in many areas. In particular, I welcome the passing of Brian, a pillar of A&L Goodbody and a his recent announcement of impending change in the area of true gentleman. Both his father and his brother served periodic payments of damages to the victims of catastrophic as presidents of the Law Society. Brian’s outstanding injury. The Law Society has supported and called for such commitment was his astonishing 30 years of selfless service as change for some considerable time. a director of the Solicitors’ Benevolent Association. We understand that there are further initiatives and I also express my sympathy to the Dowling family on the changes in the offing relating to the levels of jurisdictions of untimely passing of Dominic, who practised in Dalkey, Co the courts in civil litigation. We will inform you as soon as Dublin. At the time of his passing, Dominic was chairman any announcements are made. Meanwhile, the Society’s staff of the Society’s Public Relations Committee and a member continues to provide unstinting service in all areas. of both the Curriculum Development Unit (which he had previously chaired) and the Law Clerks’ Joint Labour Ever-increasing delays Committee. He was an unsung hero – one who contributed Of growing concern to court practitioners are, we understand, unstintingly to numerous committees of the Law Society ever-increasing delays in the process. These, coupled with the over many years. He had served as a Council member and, proposed closure of a great number of courts and garda stations also, as president of the Dublin Solicitors’ Bar Association – around the country, inevitably raise concerns about access to roles he performed with distinction. justice. While we recognise the need to maximise the use of Both men were paragons of the profession who always limited resources, we question the ability to deliver adequate applied the highest standards in their daily work. They legal services when resources are being depleted to such an will be missed greatly by their families, friends and extent. colleagues. G

James McCourt President 2 contents Law Society Gazette www.gazette.ie Jan/Feb 2013

Law Society Gazette Volume 107, number 1 Subscriptions: €60/€90

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

Commercial advertising: Seán Ó hOisín, tel: 086 811 7116, RegularS email: [email protected] 4 News 54 One to watch: Personal Insolvency For professional notice rates (wills, title deeds, Act 2012 employment, miscellaneous), see page 61. 12 Analysis 55 Regulation: Solicitors Disciplinary Tribunal; information on complaints Published at Blackhall Place, Dublin 7, 12 News feature: Is the State in breach tel: 01 672 4828, fax: 01 672 4877. of human rights standards with regard 56 Brief cases: Judgment abstracts Email: [email protected] to legal aid? 58 Eurlegal: The Energy Efficiency Directive; Website: www.gazette.ie 14 News feature: Is ‘child-friendly recent developments in European law Printing: Turner’s Printing Company Ltd, justice’ possible? Longford 16 Human rights watch: Government 61 Professional notices has a duty to provide reasons for refusal Editorial board: Michael Kealey (chairman), of naturalisation application 64 Captain’s blawg Mark McDermott (secretary), Mairéad Cashman, Paul Egan, Richard Hammond, Mary Keane, Aisling Kelly, Tracy Lyne, Patrick J McGonagle, 19 Comment Ken Murphy, Andrew Sheridan 19 Letters 20 Viewpoint: The need for an independent The Law Society of Ireland can accept inquiry into the murder of Pat Finucane no responsibility for the accuracy of contributed articles or statements appearing in this magazine, and any views or opinions 43 People and places expressed are not necessarily those of the Law Society’s Council, save where otherwise 46 Books indicated. No responsibility for loss or distress 46 Book reviews: Battle of Wills – Irish occasioned to any person acting or refraining Families at War over Wills; The Taxation from acting as a result of the material in of Gifts and Inheritances; and The Law of this publication can be accepted by the Companies (3rd edition) authors, contributors, editor or publishers. The editor reserves the right to make publishing 47 Reading room decisions on any advertisement or editorial article submitted to this magazine, and to 49 Briefing refuse publication or to edit any editorial 49 Council report: 2 November and material as seems appropriate to him. 14 December 2012 Professional legal advice should always be 50 Practice notes sought in relation to any specific matter. 52 Legislation update: 10 November – 26 December 2012 64 FSC independently certified wood and paper products used by the Law Society Gazette come from ecologically managed forests. Visit: www.fsc.org

PEFC certifies that wood and paper products used by the Law Society Gazette are sourced by suppliers from sustainable, managed forests. Visit: www.pefc.org

The Law Society Gazette is a full participating member of the Press Council of Ireland and M supports the Office of the Press Ombudsman. R e s c ne This scheme, in addition to defending the free- ycl azi e Mag dom of the press, offers readers a quick, fair and free method of dealing with complaints that they may have in relation to articles that appear on our pages. To contact the Office of the Press Ombudsman go to: www.pressom- budsman.ie or www.presscouncil.ie. 43 45 Law Society Gazette www.gazette.ie Jan/Feb 2013 contents 3

26 20

state collusion htY oaKes Why the facts of Pat MiG Finucane’s murder must The Central Bank’s not be whitewashed law societY Gazette • Vol 107 No 1 ht to die? RiG director of enforcement on The High Court decision regulation and compliance in the landmark case of Fleming v Ireland

€4.00 Jan/Feb 2013 Law Society GazetteLaw cover story 22 The remains of the data

Jan/FeB 2013 Online accounts may hold a vast ‘back catalogue’ of information, some of which is potentially valuable. So, who inherits your online legacy? Damien McCallig logs on

Ria in aeteRna: Law Society of Ireland MeMo Who owns your digital legacy?

features 14 26 In my time of dying 34 Shifting sands Assisted suicide is punishable by up to The administration of stamp duty has 14 years’ imprisonment. Fleming v Ireland seen a range of changes due to the Finance & Ors is a landmark case that challenges Act 2012. Emmet Scully surveys the the constitutionality of the Common Law shifting sands (Suicide) Act 1993. Michaela Herron weighs up the options 38 Cara sa chúirt The right to put one’s case in the official 30 From little acorns... language of one’s choice is a right enjoyed From high-rise Sydney to the seventh by both sides, but your right to choose floor of the Central Bank, Peter Oakes does not oblige another party to use your has had a mighty career. But can Colin language of choice. Cleachtadh a dhéanann 38 Murphy see the wood for the trees? maistreacht, a dúirt Colm MacGeehin

HOW TO REACH US: Law Society Gazette, Blackhall Place, Dublin 7. Get more at lawsociety.ie Tel: 01 672 4828, fax: 01 672 4877, email: [email protected] Gazette readers can access back issues of the magazine as far back as Jan/Feb 1997, right up PROFESSIONAL notices: send small advert details, with payment, to: Gazette to the current issue at lawsociety.ie. Office, Blackhall Place, Dublin 7, tel: 01 672 4828, or email: [email protected]. You can also check out: All cheques should be made payable to: Law Society of Ireland. • Current news • Forthcoming events, including the Law Society COMMERCIAL ADVERTISING: contact Seán Ó hOisín, 10 Arran Road, Dublin 9, Annual Conference 2013 in Hotel Europe, tel: 01 837 5018, fax: 884 4626, mobile: 086 811 7116, email: [email protected] Killarney, on 10/11 May HAVE YOU MOVED? Members of the profession should send change-of-address details to: • Employment opportunities • The latest CPD courses IT Section, Blackhall Place, Dublin 7, or to: [email protected] … as well as lots of other useful information 4 news Law Society Gazette www.gazette.ie Jan/Feb 2013 Nationwide Compiled by Kevin O’Higgins Kevin O’Higgins Courthouse renovation in the offing? has been a waterford Council member Waterford Law Society is a new fire station at Kilbarry in On a sad note, from my own of the Law concentrating on the upgrading Waterford. longstanding friendship with Niall Society since and renovation of Waterford In other news, Jim Hally is the and the King family, I join with the 1998 Courthouse. The Government incoming president of the society, president and his Waterford Law has allocated funding for the succeeding Gerry O’Herlihy. The Society colleagues in regretting redevelopment, which involves the other officers are Jill Walsh of the death of one of its longest courthouse moving into an area Nolan Farrell & Goff (secretary), serving members, Eamonn P King currently occupied by Waterford Rosa Eivers of Dobbyn & McCoy of JF Williams & Co, Dungarvan, Shaken, Fire Station. Fortunately, the (treasurer), Ken Cunningham on 9 December. Eamonn had been not stirred Government has also allocated (PRO) and Bernadette Cahill in practice for over 50 years and funding towards the building of (CPD officer). will be missed by all his colleagues. limerick

Congratulations to St John Dundon on becoming the new president of the Limerick Bar New Sligo team go walkabout Association following the recent sligo AGM. St John, of Dundon PIC: F rances Mu ldoon Callinan, succeeds Donal Creaton and continuity will be assured as Elisa McMahon (fortuitously also from Dundon Callinan) will continue as honorary secretary. Christmas corral wexford Helen Doyle rounded up Wexford colleagues for a collegiate Christmas Then President of the Law Society Donald Binchy and director general Ken Murphy paid a recent visit to Sligo to dinner with Judge Haughton, and address local solicitors on the Legal Services Regulation Bill. (From l to r): Ken Murphy, Maurice Galvin (president, District Court staff and senior gardaí Sligo Bar Association, Deirdre Munnelly (secretary, Sligo Bar Association) and Donald Binchy were guests. Judge Haughton was appointed almost a year ago and The Sligo Bar Association held its Solicitors), PRO – Laura Spelman mit of Croagh Patrick last July. Last has put his own stamp on court AGM in early December. The elected (McGovern & Walsh Solicitors) and October, the Sligo Bar Association proceedings. Thanks are due to Tim committee is: president – Maurice CPD officer – John McShane (John- arranged a trek to the summit of Cummings, who organised a most Galvin (Martin & Galvin Solicitors), son & Johnson Solicitors). Ben Bulben. It proved so popular successful evening. secretary – Deirdre Munnelly (Mc- It seems that our Sligo brethren that another trek is being arranged Helen also observes that one of Dermott, Creed & Martyn Solicitors), have tried to emulate our Mayo in early March. So you better buff Wexford’s outstanding colleagues has treasurer – Noel Kelly (Kelly & Ryan colleagues, who reached the sum- up those boots. called it a day: Anita Kent has retired to devote herself to family and other interests. We all wish her well. Circuit Court practitioners have Dominic’s passing leaves a void got the year off to a busy start, with dublin five judges on circuit, presided The Dublin legal community woven into the community, volun- six months previously – that of the over by permanent judge Alice was shocked to hear of the recent tarily devoted himself to a myriad iconic Maeve Binchy. Doyle, together with her colleagues passing of our much loved col- of local causes, was immensely We extend our deepest com- Judge Ray Fulham, Judge James league Dominic Dowling. A past popular, and commanded huge miserations to his widow Ruth O’Donoghue and Judge Thomas president of the DSBA, Dominic respect from both colleagues and and particularly wish his business Teehan. Helen says: “This will served on the Law Society Coun- public alike. partner Jeanne Kelly, daughter make inroads into a very long list in cil in the 1990s. As was evident In truth, he epitomised all the Gina and son Mark all the very Wexford, where all types of cases from his funeral in Dalkey, where very best in the solicitor’s profes- best in continuing the proud experience delay in getting hearing he had both lived and practised, sion and his funeral even seemed Dowling name, now a third-gen- dates.” It’s a welcome development. Dominic was intrinsically inter- to rival the last big funeral there eration family practice. G Law Society Gazette www.gazette.ie Jan/Feb 2013 news 5

Cyber-cop In News this month... Four Courts appointed 7 Dominic Dowling, RIP 10 ward McEllin is new chairman access 7 Diploma Programme courses of Solicitors Disciplinary 8 New CPD scheme regulations Tribunal 9 Murphy interview with Marian 10 Business confidence in legal Finucane sector improving, says survey

New Smithfield bye-laws

Detective Inspector Paul Gillen has been appointed as head of operations at the newly established European Cyber Crime Centre in Europol in The Hague. The centre is to become the focal The application form for access point in the EU’s fight against cards for legal executives at the cybercrime and cyber-attacks. Four Courts has been revised. The only change on the form is on page 2, where there is now an additional Criminal question regarding security clearance. The form is available justice on the Courts Service website, Bye-laws to regulate Dublin’s insurance was dropped. www.courts.ie, in the ‘Court forms’, efficiency Smithfield horse fair have been A new subcommittee compris- ‘Other forms’ section. report out passed by Dublin City Council. ing horse owners, councillors, The new laws will limit the DSPCA officers and local interests The Working Group on Efficiency number of fairs to two a year – in will look at ways of promoting the Huge A&L Measures in the Criminal Justice March and September. fair. Extra fair days in the summer System (Circuit and District Courts) Horse owners will have to may be added at a future date. transactions was established in November 2011 comply with a licensing system to Colm Kiernan of the Smithfield at the request of Chief Justice ensure animal welfare standards. Horse Owners’ Association said Susan Denham and Minister for The proposal requiring horse that owners welcomed the new Justice Alan Shatter. owners to take out public liability laws. The remit of the group was to identify and report on how greater efficiencies and cost reduction measures could be achieved in ByrneWallace ‘Lexcels’ the operations of the Circuit and District Courts, with particular in quality of client care emphasis on how the agencies in ByrneWallace’s has achieved the firms who achieve the standard the sector interact with the courts A&L Goodbody is Ireland’s international Lexcel standard – must prove that they meet the and with each other. top law firm for mergers developed for the global legal highest standards of client The group submitted its report to and acquisitions for 2012, profession – and awarded by care, risk, quality and business the Chief Justice and the minister according to the leading the Law Society of England management. The process on 30 November 2012. A link to the international research and Wales for excellence in includes onsite assessment by an report is available at: www.justice. publications, Mergermarket, practice management. Law accredited external auditor. ie/en/JELR/Pages/PB12000364. Bloomberg, CorpFin and Thomson Reuters. According to Mergermarket,

A&L Goodbody advised on a

AN ROINN DLÍ AGUS CIRT AGUS COMHIONANNAIS New Dublin partner for BLM DEPARTMENT OF JUSTICE AND EQUALITY total of 25 M&A transactions

Berrymans Lace Mawer LLP transferred to the Dublin office in in 2012 with a value of more Report of the Working Group on Efficiency Measures in the Criminal Justice System - Circuit and District Courts December. Aidan will advise and € (BLM) has appointed Aidan Carr to than 500 million. The

develop and oversee the firm’s new work closely with current clients, combined value of the

Dublin office, which opened last many of whom operate in Dublin. transactions the firm advised

October. Aidan is currently a part- He will also focus upon building on has been valued at over

November 2012 ner based in BLM Manchester. He the office’s profile and practice. €16 billion.

news Date for your Diary

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HoteL europe Killarney Law Society Gazette www.gazette.ie Jan/Feb 2013 news 7 Shock at unexpected passing of solicitor Dominic Dowling It was with enormous shock and commanded great respect from sadness that we learned of the his fellow committee members. untimely death of our Dalkey- So also did his very hardworking based colleague, Dominic and dedicated commitment to Dowling, writes Ken Murphy. producing positive results in Dominic had recently commenced this always challenging issue for his second year as chairman of the Society and the profession. the Society’s Public Relations He invariably sought practical Committee. measures and he was a key figure, He chaired the Public for example, in the devising and Relations Committee meeting operation of the Society’s radio on 1 November 2012, sending advertising campaign in recent apologies in advance of the 13 years. December committee meeting, While it is a terrible shock to but without any indication that his colleagues and friends in the anything was amiss. Law Society to suddenly discover In early January, he sent a that we have lost him, it must be message to President James an almost unimaginably greater McCourt and me to the effect that shock to his wife, Ruth, and his he had recently been diagnosed six children, Mark, Emma, Gina, with cancer of the liver. He was Ruthie, Dominic and Rebecca and receiving treatment for it and, as his mother Joan. he wrote, “the prognosis is not He sent an email to me on good but nor is it hopeless”. The characterised by the calm and committees over the years. 9 January 2013, that read: “Thank message in no way indicated the unruffled approach he took to On the Public Relations you so much for your support. imminence of his death, which everything. A former Law Society Committee, his thoughtful, It means a lot. My friends in the occurred on Saturday 19 January Council member and president analytical and always positive Society go back a long way. Lots 2013. of the Dublin Solicitors’ Bar approach to PR issues, either of happy memories.” Dominic’s approach to his Association, Dominic served to do with the public or with illness seems to have been on a number of Law Society the members of the profession, Ar dheis Dé go raibh a anam dílis. Goodbody to build bridges with top Indian law firms Some of India’s top law firms are to to apply their knowledge participate in a new international to commercial situations in a law programme designed by A&L practical way. Goodbody that will help to forge The roll-out of the programme closer ties, and facilitate investment, follows a highly successful between Ireland and India. partnership between A&L Goodbody The International Lawyers’ and a number of China’s top law firms Placement Programme was launched and universities in March last year. in Mumbai in December by the Managing partner at A&L Minister of State for Training and Goodbody, Julian Yarr, commented: Skills Ciarán Cannon. Skilled Indian “This programme is specifically lawyers will spend up to six months designed to give the best young At the launch were (from l to r): Amit Tambe (Trilegal), Mark Rasdale (partner, working with A&L Goodbody, gaining lawyers from leading corporate law A&L Goodbody), Minister of State Ciaran Cannon, Julie Sinnaman (executive director, global business development, Enterprise Ireland), Feilim McLaughlin frontline exposure to its international firms in India all of the skills they (Irish ambassador to India), Minahshi Batra (IDA director India) and Alan client base and global advisory will need to advise their clients on McCarthy (partner, A&L Goodbody) partners. Participants will learn how international transactions.”

It’s not too late to fulfil a New Year resolution Although all three New Year duration of the course. Course name Fee Start date course duration Diploma Programme courses For further information on all have begun, it’s not too late to New Year and spring courses, visit Diploma in Insolvency and €2,490 Saturday Six months sign up. All courses are webcast, the Diploma Programme section Corporate Restructuring (iPad) 12 January so it’s possible to catch up on of the Law Society website at: Certificate in Healthcare Law €1,160 thursday three months the lectures missed by watching www.lawsociety.ie/Diplomas, and Practice (new) 17 January online. These are archived and or email: diplomateam@ Certificate in Public €1,160 tuesday three months available to students for the lawsociety.ie. Procurement Law and Practice 26 February 8 NEWS Law Society Gazette www.gazette.ie Jan/Feb 2013 New year, new scheme, new regime – CPD rules

New CPD Scheme regulations (Solicitors (Continuing Professional Development) Regulations 2012) came into effect on 1 January. All practitioners will be sent a copy of the new statutory instrument and booklet explaining the details of the new scheme.

An annual requirement The CPD cycles will continue to run from 1 January to 31 December every year. This means you have 12 months within which to fulfil your CPD obligations. There is no carry-over of hours from one cycle to the next. Verification of compliance with the CPD Scheme continues to be tied to your annual practising certificate application, as previously occurred.

Hours per year Solicitors to whom the regulations apply are required, in each of the three CPD cycles to which the regulations relate, to undertake at least the minimum • The internet or other writing a relevant article or may be reduced, such as: specified number of hours of computer network section of a legal periodical or a) A senior practitioner, CPD. connections, sound only, textbook. b) Maternity/parental/carers/ For the 2013 CPD cycle, the sound and vision formats, or adoptive leave, minimum CPD requirement is a combination of both, Newly qualified c) Illness/retirement/ 14 hours, to include a minimum • By the provision of an Under the previous scheme, unemployment/substantive of three hours’ management and electronic file, a CD-ROM newly qualified solicitors were reasons cases, professional development skills and/or DVD, and exempt from the requirement to d) Part-time practice, and and a minimum of one hour • Other technologies and undertake CPD for a period of 12 e) Part-year practice. regulatory matters. formats that may be advised months following their admission The new CPD regulations from time to time. to the roll. Automatic audit in event of provide for an incremental Solicitors should note that failure to comply with CPD increase of one hour per CPD The requirement for the new scheme provides that requirements cycle for each of the three cycles. e-learning to contain at least a solicitor who qualifies during Solicitors should note that, in the two interactive elements has a CPD year will be required to event of a failure to comply with Ways of completing CPD been removed. A maximum of undertake CPD from the first annual CPD requirements, they There are three different ways of five hours of the annual CPD day of admission to the Roll of will be automatically required undertaking the minimum CPD requirement may be claimed Solicitors. However, such newly to provide proof of compliance requirement: for time spent in relevant qualified solicitors may modify with their CPD obligations for a 1) Group study: an organised e-learning. their minimum CPD requirement period of two years, in addition to session of CPD undertaken 3) Writing relevant material that in proportion to the number of the cycle in which they failed to by three or more persons, for is published: written relevant weeks remaining in the cycle in comply. a period of not less than 30 material that is published in which they qualify. Full and detailed explanations of minutes. a legal periodical or other the above modifications, together 2) E-learning: the provision textbook may count for CPD. Modification of the minimum with clarification on all aspects of of education or training Solicitors should also note that CPD requirement the new scheme, are provided in (or both) that is generated, reference to legal periodicals The revised scheme will continue the revised 2013 scheme booklet. communicated, processed, also includes those published in to allow for modifications of the Further details may also be sent, received, recorded, stored printed or online form. minimum CPD requirement. The obtained by contacting the CPD and/or displayed by electronic A maximum of three hours of revised scheme booklet details the Scheme Unit on 01 672 4802 or means or in electronic form the annual CPD requirement particular circumstances in which by email: cpdscheme@ provided through: may be claimed for time spent the minimum CPD requirement lawsociety.ie. Law Society Gazette www.gazette.ie Jan/Feb 2013 news 9 Murphy clears the air on the Marian Finucane Show For many years, director general He acknowledged, as had been Ken Murphy has been a frequent reported on the front page of that contributor on Sunday morning day’s Sunday Business Post, that the radio programmes. Indeed, he Society was considering whether appeared as a panellist on two it would be worthwhile pursuing separate Sunday morning Marian Lynn through the civil courts in Finucane Show programmes in Brazil for the money he owes the December 2012. profession. The issues came at him particularly thick and fast, Breach of trust however, on the 2 December 2012 Separately, Murphy expressed programme. Murphy seized the the profession’s revulsion at the opportunity to get a number of disgraceful deception perpetrated things off his chest – and that of on a client, towards the end of the solicitors’ profession – on a her time as a practising solicitor, variety of important issues. Ken Murphy: seized the opportunity Marian Finucane: huge audience by former District Judge Heather Among the topics he Perrin. communicated to the show’s solicitors who have lost money in continuous session, at huge cost Murphy unreservedly con- huge audience were the value such cases. We probably don’t get to the profession and I think they demned Perrin’s breach of the to the public of the Society’s much credit for it, but solicitors need to be applauded.” trust – both contractual and moral compensation fund, the give a level of protection that is far Murphy was questioned by – that every solicitor owes their profession’s commitment to the greater than anyone else provides.” Finucane about former solicitor client to act towards them always highest standards of conduct He continued: “It comes at Michael Lynn. Lynn has been with utmost good faith. among its members, the great cost to the profession. It is a reported to be in Brazil and, as In response to a listener’s frustration at the delay in the badge of honour.” Contrasting it the father of a child born there, criticism of the Society’s new garda investigation of disgraced with the financial services sector, apparently not amenable to regulation prohibiting the former solicitor Michael Lynn, he made the point: “If your money extradition if criminal charges same solicitor or firm acting the profession’s view of the is lost in a bank account, they were now brought against for both vendor and purchaser criminally convicted former judge will only compensate you up to a him in Ireland. Not for the in conveyancing transactions, Heather Perrin, the profession’s maximum of €100,000. But if say first time, Murphy expressed Murphy gave an explanation of attitude to the changes in the €600,000 is entrusted by a client the intense frustration of the the underlying public interest Legal Services Regulation Bill, and to a solicitor and lost through that solicitors’ profession at “the principles and a robust defence of the recent regulatory changes solicitor’s dishonesty, the rest of incomprehensible delay of more the decision. in relation to the conveyancing the profession in the country will than five years in concluding the In addition to citing the support conflicts. repay that in full. We don’t get still unfinished garda investigation for the measure from various much credit for that.” in this case”. quarters, including from Justice Rooting out bad apples However, other panellists on the The amount reported as lost Minister Alan Shatter, he spoke What was unusual and gratifying programme indicated appreciation through Lynn’s activities is some of the public welcome for the was the extent to which other for what the profession did in €80 million. “The hackles of the measure from expert campaigners panellists were supportive and this regard. Former Senator Joe profession are very high. The against abuse of the elderly. spoke in praise of the work done O’Toole was the most explicit, reputational damage done to Murphy was pleased when, in recent years by the Society and stating: “I completely agree that the profession by this guy was once again, all panellists in the the profession to root out its ‘bad the Law Society has behaved enormous,” Murphy conceded, studio were supportive of the apples’. admirably in these cases. I was a while confirming that the amount Society’s initiative. One of them, Asked about former solicitor frequent critic of the Law Society owed by Lynn to the Law Society Dr Austen O’Carroll, gave Michael Lynn, Murphy answered: in the past. But, more recently, as a result of claims on the examples from his own experience “The solicitors’ profession in I have said in many places that compensation fund and his unpaid as a medical practitioner to show Ireland, out of its own income, they have been dealing with fine was approximately €4.5 why the new regulations should compensates the clients of these issues, working in almost million. be welcomed by everyone.

Bequests Appeal Encourage your clients to leave a tax free legacy to Cheshire Ireland when making or changing their will. Court Fines Appeal Order a donation to Cheshire Ireland in lieu of a fine. Cheshire Ireland has supported people with disabilities in Ireland for over Thank you for your support 50 years. Funds are needed to enable the people who use the services of Cheshire Ireland to remain connected to their families and communities. www.cheshire.ie 10 news Law Society Gazette www.gazette.ie Jan/Feb 2013 New Solicitors Disciplinary Tribunal members appointed The President of the High of the Law Society and was Court, Mr Justice Nicholas president of the Society from Kearns, has appointed Ward November 2000 to November McEllin as chairman of 2001. the Solicitors Disciplinary In addition, the President Tribunal, effective of the High Court has 1 December 2012. appointed ten other solicitors Mr McEllin succeeds as members of the Solicitors Frank Daly, who has been Disciplinary Tribunal with the chairman of the tribunal effect from 1 December 2012. for many years. He ceased to Their term of appointment is be a member of the tribunal also for a period of five years at the end of November each. 2012, having completed the The new members are: ten-year maximum term Owen Binchy, Helena Bowe prescribed by statute. New chairman of the Solicitors Disciplinary Tribunal, Ward McEllin O’Brien, Fiona Duffy, Niall Mr McEllin has been Farrell, Philip Joyce, Elizabeth an active member of the His appointment as chairman and practices in Claremorris, Co Lacy, Stephen Maher, Brian tribunal since his original will last until May 2015. Ward Mayo. He served for many years McMullin, Fiona Twomey and appointment in May 2005. qualified as a solicitor in 1977 as a member of the Council Michael Tyrrell. Business confidence improving in Ireland’s legal sector “Business confidence is current and future outlook for the legal sector in ireland and continuing uncertainty about improving in the legal sector, the Eurozone. with approximately 70% of Change in outlook over the Expected change in the “Despite the current recession, solicitors’ firms expecting things previous 12 months coming 12 months the sector has responded and to stabilise or improve in the now confidence is up again,” he next 12 months. This is up from continued. 57% in the current 12-month Improvement The full 27-page Survey of Improvement period”, according to a survey 20% Irish Law Firms 2012/13 can 25% published in December 2012 be accessed on the Smith & by accountancy firm Smith & Williamson website at www. Williamson. smith.williamson.ie. This survey of Irish law Speaking separately from the firms was carried out through above, the frequent commentator telephone interviews of on such matters in the Gazette, managing partners. As reported Stability Outsource managing director by Smith & Williamson, 93 37% David Rowe, said: “Our work separate law firms took part in Stability with Irish law firms would show the survey “including five of the 45% a definite pick-up in activity top ten Irish law firms, 14 mid- levels and confidence. The extent tier firms and 74 small firms”. of this depends on where the firm There was a bias towards Dublin, is located – Dublin and other where 71% of the participating large urban areas have seen the firms were located. best pick-up – and the markets The survey was not conducted in which the firm is operating. by or on behalf of the Law Conveyancing and commercial Deterioration Society. However, the managing work are seeing much better 43% partner of Smith & Williamson, Deterioration activity levels, albeit from a low Paul Wyse, was happy to have 30% base. Litigation continues to be contents of the report appear in plentiful. the Gazette. “Most firms believe that 2013 In his executive summary of will be a better year. There the report, Wyse wrote: “The are very large differences in financial crisis which has beset the confidence levels between the nation since 2008 has led different parts of the country and to an extremely difficult and “International business, firms from the full impact of cash flow continues to remain a challenging marketplace for all bank restructuring, NAMA and the recession, but all have been problem. Overall, there is more professional practices and their litigation have helped to shelter affected by it. 2012 has seen little optimism now and definite signs clients. Dublin’s top commercial law growth in the domestic economy of a recovery.” Law Society Gazette www.gazette.ie Jan/Feb 2013 representation 11 news from the law society’s committees and task forces IP law conference – proposed developments intellectual property law committee

The Intellectual Property trademarks of the proposed In addition, the IP Law Law Committee is pleased to tobacco plain-packaging Committee has recently made announce that, in association legislation and will also look submissions to the director of with Law Society Professional at developments in copyright the Office for Harmonisation in Training, it will be running an legislation. It will be possible the Internal Market (OHIM) on intellectual property (IP) law to attend either morning or the OHIM Observatory work conference on Tuesday 16 April afternoon sessions or both. programme for 2013 and to the use for sale at a distance. at the Law Society, Blackhall Details of the conference are EU Commission on proposals Copies of these submissions Place, Dublin 7. The conference available at www.lawsociety.ie/ for implementation of a common and others made by the aims to provide an opportunity cpd. Enquiries may be directed to logo for legally operating online committee are available on the for lawyers and members of the professional training team at pharmacies/retailers offering committee’s page on the Law industry to discuss proposed [email protected]. medicinal products for human Society’s website. developments in IP law. The morning session will look at the impact on practitioners and industry of the EU proposals to VAT on property – submissions invited establish a Unified Patent Court. conveyancing and taxation committee The committee’s members are concerned that the consequences In August 2011, the Society’s members’ area of the Society’s suitability of the current (August of the Unified Patent Court may Taxation and Conveyancing website (www.lawsociety.ie), 2011) editions of both the be detrimental to practitioners Committees produced a along with the September 2011 PCVE and Special Condition and their clients, possibly having new edition of the Society’s practice note that accompanied 3 when applied in practice. You a negative effect on investment in pre-contract VAT enquiries them. should email your comments to Ireland and Ireland’s endeavours (PCVE) and a new edition The committees believe [email protected]. to brand itself as a knowledge of Special Condition 3 of its that it is time again to review Comments can be submitted economy. Therefore, it is hoped standard contract for sale in these two documents to see if up to 31 March 2013. Members that the conference will be an relation to VAT on property. they require amendment or are urged to submit any opportunity to have a public The PCVE (August 2011) and refinement in order to improve observations or suggestions and informed discussion of the Special Condition 3 (August their efficiency and fitness for they may have so that these impact of the proposals. 2011) are available on both the purpose. can be considered when both The afternoon session will Conveyancing and Taxation Members are invited to committees review the current consider the consequences to Committees’ web pages in the submit feedback on the documents in April 2013. G

        12 analysis Law Society Gazette www.gazette.ie Jan/Feb 2013

civil legal aid needs much more than a helping hand

The State may be in breach of human rights standards for its failure to deliver a proper civil legal aid system, according to the Society’s Legal Aid Task Force. Mark McDermott reports

t is a matter of concern that to disputes who are represented by its funding has reduced in recent “Iaccess to legal services may lawyers in private practice, but who years. The grant-in-aid for general not be available to certain sectors of cannot proceed to have their issues legal services (excluding refugee/ society. By failing to provide such resolved while the other side waits to asylum related matters) reduced from services, the State may be in breach get access to legal aid. €26,988 million in 2008 to €26.31 of human rights standards as defined The report states that the million in 2009, €24.225 million in by the Constitution and the European fundamental human right of access 2010, and €24.125 million in 2011. Mark McDermott Convention on Human Rights Act to justice includes the right of legal Therefore, despite an increased is editor of the Law 2003.” So states the Law Society’s representation at a hearing, where throughput by the board’s staff in Society Gazette Legal Aid Task Force in its recently that is needed to ensure a fair trial. law centres, those who are entitled to published report on the civil legal aid In addition, access to justice includes access the civil legal aid scheme are system. access to the appropriate legal waiting for longer periods of time. Access To Justice: information and Some of those can be waiting for A Report of the Legal advice needed by an a very long time. According to the Aid Task Force aims to “By failing to individual to manage Legal Aid Board, of the 4,877 people enhance understanding provide such their lives within the waiting in June 2012, some clients among the profession law. waiting for a solicitor in two centres and the public of the services, the “Failing to in Dublin – Clondalkin and Gardiner current problems State may be in adequately resource Street – could expect to wait for 13 in the civil legal aid the civil legal aid months and 11 months respectively system and to provide breach of human system without for a solicitor’s appointment. Around recommendations for rights standards ensuring that people the country, clients waiting for future improvement. have alternative representation could expect to wait The report highlights as defined by the means of receiving between four and ten months in the effects of the Irish Constitution required legal all but two centres – Dundalk and increased pressure on assistance is short- Monaghan – where the waiting time resources in today’s and the European sighted and a false was just a month. economy and the impact Convention on economy,” the task that such pressure has force says. “Delayed Task force recommendations had on the civil legal aid Human Rights Act advice and action Given the current economic climate scheme at a time when, 2003” is likely to lead to and significant waiting periods, the because of the economic exacerbation of the Legal Aid Task Force says that “new difficulties, demand for original problem. It and practical recommendations about civil legal aid services has increased is a matter of concern that access to sustainable legal aid and access to significantly. legal services may not be available to justice in general have become a task certain sectors of society because of of great urgency”. Access to justice waiting times for services.” The Legal Aid Board has taken The task force expresses concern a range of measures with a view to that the pressure placed on the civil Exchequer funding addressing the increasing demand legal aid scheme – and the delays While civil legal aid is not free, and for services in a resource-constrained encountered by all those whose cases almost everyone availing of civil legal environment. These include: cannot proceed because of capacity advice must pay a contribution of at • Increasing the number of cases issues in the legal aid scheme – leads least €10 – and at least €50 if court referred to private solicitors for the to a denial of access to justice. representation is required – the bulk purpose of providing a service, This affects not just those who are of the funding of the Legal Aid Board • An advice-only service that entitled to civil legal aid but cannot comes from the exchequer. facilitates an earlier brief meeting receive it, but also those other parties Like other State organisations, with a solicitor where applicants are Law Society Gazette www.gazette.ie Jan/Feb 2013 ANALYSIS 13 civil legal aid needs much more than a helping hand

“Some clients waiting for a solicitor in two centres in Dublin – Clondalkin and Gardiner likely to have to wait in excess The task force says that it undertaken of Street – could towards the of four months for a substantive endorses these initiatives and the amount spent reduction of appointment, recommends that consideration by the State on expect to wait waiting times • An integration of the delivery be given to the following: legal fees, with a for 13 months for persons of all services with a view to • The Legal Aid Board provides view to seeking seeking legal ensuring the most effective an essential service, and the to ensure that and 11 months services, and deployment of resources, and Government should continue a significant respectively • People seeking • The recent introduction of to fund it to the greatest extent portion of the legal services a pilot integrated mediation possible, amount so spent for a solicitor’s to defend initiative in Dublin involving • In view of the very significant is directed for appointment” proceedings the board co-locating and increase in demand for its the benefit of on foot of the cooperating with the Family services and the fact that it individuals of Child Care Act Mediation Service and the provides front-line services, modest means who need to 1991 are not required to Courts Service. The purpose the Government should access civil legal aid and advice, make a financial contribution of the initiative is to offer look sympathetically on any • The Legal Aid Board should to the Legal Aid Board, and applicants for legal services application to recruit staff review its schemes for retaining consideration should be given to alternatives to litigation in the outside the public-service private solicitors, with a view to ensuring that people involved in courts as a better and – from recruitment moratorium/ allowing it greater flexibility in domestic violence cases do not the State’s point of view – a employment control relation to their retention and have their access to the courts more cost-effective means of framework, to allow for more meaningful hindered by being required to resolving family law disputes. • An analysis should be support from private solicitors make such a contribution. G 14 analysis Law Society Gazette www.gazette.ie Jan/Feb 2013

JUST how child-friendly SHOULD justice be?

All children enjoy the inviolable right to be protected from harm. Killian O’Brien argues that this should be extended to include adjustments to the adversarial cross-examination procedure in Ireland

or his role in the death of a small infant in the position to fully exercise their rights. This could easily be much-publicised Baby P case in Britain, the trial the case in a situation where the information is presented Fof Steven Barker gained considerable notoriety, to the child in a manner or using language that is not primarily due to the seemingly abject failure of social readily understandable to them. All too often, children are services support networks to intervene and undertake deprived of their right to be heard and their views are not measures at an earlier stage that would have prevented sufficiently taken into account on matters of direct concern the death of the infant in that case. to them. One thinks, for example, of custody disputes Killian O’Brien is Barker had, however, also previously been convicted where the child’s opinions are not adequately considered. a course director in on charges of the anal rape of a two-year-old girl, which European public law took place before baby Peter’s death, in a trial that did not Child-friendly justice at the Academy of garner quite as much attention as it might have done With a view to making the justice systems of the member European Law in (R v Barker [2010] EWCA Crim 4). states more child-friendly right across Europe, the EU Trier, Germany. Notwithstanding the material criminal law aspects announced its ‘Agenda for the Rights of the Child’ in The views expressed of this trial, it raised some interesting points pertaining February 2011 and listed this aim as one of its designated in this article are to evidentiary procedures permitted and, in particular, key priorities. In its efforts to implement this laudable personal the treatment by the legal system of the key witness at goal, the EU has adopted legislation containing specific the trial. The decisive characteristic of provisions for children, such as the Victims’ that witness is that she was a four-year- Directive (COM(2011) 275 final). old child and, moreover, the victim of the “All too often, The European Commission has also alleged rape. children are committed to promoting the Council of It goes without saying that all children deprived of Europe Guidelines on Child-Friendly Justice enjoy the inviolable right to be protected and to take account of these in future legal from harm, whether that harm takes their right to be instruments. These non-binding guidelines the form of abuse, violence, neglect or heard and their aim to guarantee the respect and the exploitation. But it is unclear whether effective implementation of all children’s the necessity to ensure that children’s views are not rights and aim to make justice, in particular, rights are upheld and the tenets of child- sufficiently taken accessible, age-appropriate, speedy, diligent, friendly justice are adhered to require that adapted to and focused on the needs and adjustments be made to the adversarial into account on rights of the child and respecting the rights cross-examination procedure present in matters of direct of the child, including the rights to due Ireland. process, to participate in and understand concern to them” the proceedings, to respect for private and Daddy or chips? family life, and to integrity and dignity. The practical relevance of furthering children’s rights The responsibility to turn the rights of children on is self-evident if one considers for a moment the many paper into rights in their daily lives and in all dealings opportunities that exist for children to encounter the with the legal system requires considerable effort on the justice system. Whether they are involved as part of a part of legal professionals, court systems and other parties civil dispute between two parents over custody, or when involved. The Barker case, for example, may well have they are accused of committing a crime or, in some profited from the application of the Council of Europe jurisdictions, where they are involved in administrative guidelines to the trial and the evidentiary procedure matters by seeking to claim asylum, there are countless adopted when dealing with the key witness and victim of scenarios in which children may find themselves involved the sexual assault. in legal proceedings. Equally, there are also countless opportunities within Mind your language those legal proceedings where children may be subject It goes without saying that questions should be put in a to manifold restrictions of their rights. Such restrictions language children can understand and in an order that may include, for instance, children being deprived of avoids confusion. Counsel for the defendant made good the information necessary in order for them to be in a use of simplified language and gave clear example to Law Society Gazette www.gazette.ie Jan/Feb 2013 analysis 15

the witness, often rephrasing children have been observed to belfast training event in march where it was apparent that be cowed into changing their the witness was not following original answer in a desire Using an applied approach involving case studies and practical the questioning. However, to please, believing that they workshops, as well as presentations from established European in his cross-examination, he have provided a wrong or an and domestic experts in this area, the Academy of European Law is also asked leading questions unacceptable answer in the first organising a training event to be held in Belfast on 7-8 March 2013, on several occasions and often place. in cooperation with the Law Society of Northern Ireland. repeated the same or similar Finally, and perhaps most This event will bring the Council of Europe guidelines closer to questions. Both of these forms troublingly, the witness was the practitioner and enhance their practical applicability, as well of questioning ought to be asked the baited question: “Do as providing useful practical information and best practice on age- avoided when dealing with small you ever tell fibs?” Given that group-specific communication, appropriate interview techniques, children. The former type of most adult witnesses would and the organisation of child-sensitive judicial proceedings. question, where an assertion is not cope particularly well with Further information can be found on ERA’s website: www.era. often followed by an “isn’t it?” such a question, assuming int/?123474&en. or “didn’t she?” appended to it, that it were even deemed often lead to misunderstandings permissible, implying as it does and inaccurate answers, as that the witness had a stronger the child witness may agree propensity to lie than any unfairly and the second of which simply by reason of the child’s with a statement without fully other witness, it would seem almost certainly amounts to a lie. age. comprehending its significance. most inequitable to pose such a The Council of Europe All this illustrates the need With regard to the latter question to a small child. guidelines clearly indicate the for a well-informed, proactive ploy of repeating a question As John R Spencer and need for respect and sensitivity approach to the involvement of or asking a similarly phrased Michael E Lamb point out in to be used when children are children in the judicial process. question, this runs the risk of their compendium on Children heard in judicial proceedings. It is essential that children’s a child feeling pressured or and Cross-Examination: Time to They also maintain the need for rights are promoted at an early overawed by the questioner. Change the Rules?, most children less-strict rules on the giving of stage. By the time their rights Added to this is the fact that the will answer this question with evidence and, moreover, that the have been violated, irreparable questioner often appears to be either a ‘yes’ or a ‘no’, the first evidence of a child should not be harm may already have been a person of some authority, and of which will discredit the child presumed to be untrustworthy done. G 16 human rights watch Law Society Gazette www.gazette.ie Jan/Feb 2013

supreme court grants syrian lawyer citizenship

The Minister for Justice has a duty to provide an appellant with the reasons for his decision to refuse an application for naturalisation, according to a recent Supreme Court judgment. Joyce Mortimer reports

n December 2012, the Supreme by formal declarations of the minister. in Albuissa v Minister for Justice, Court overturned the High Court On 9 December 2005, the appellant Equality and Law Reform, held that Idecision refusing to grant a Syrian applied to the Minister for Justice for “the discretion of the minister lawyer Irish citizenship. Having a certificate of naturalisation with a in considering applications for applied successfully for asylum and view to obtaining citizenship pursuant certificates of naturalisation is been declared a refugee by the Minister to section 15 of the Irish Nationality absolute”. for Justice, the appellant, Ghandi and Citizenship Act 1956. In light of this decision, the Joyce Mortimer is Mallak, applied for a certificate of In September 2008, he complained appellant amended his grounds for the Law Society’s naturalisation and was refused. In the in writing about the delay of over judicial review in December 2010. human rights appeal, the Supreme Court found that two-and-a-half years that had elapsed. He added the following grounds: executive Mr Mallak was given no reasons for the He received a response, stating that • That the provisions of the act of Minister for Justice’s refusal to grant no decision had yet been made. 1956 were unconstitutional insofar him citizenship. The minister relied on In a letter dated 20 November as they ousted the jurisdiction his absolute discretion in not providing 2008, the appellant received a letter of the court to exercise its full any reason for his decision and insisted from the minister stating that his original jurisdiction to review he was not obliged to explain his application had been refused. The decisions of the minister, and decision. appellant’s wife had received a letter • That the said provisions had Handing down the judgment of of notification in October 2008 the effect of conferring power the five-judge court, Mr Justice Nial granting her Irish citizenship. on the minister to deprive the Fennelly stated that “the underlying The appellant’s solicitor applied, applicant of access to citizenship principles of judicial review are pursuant to section of the European Union universal”. The judge referred to the 18 of the Freedom of without any obligation extraordinary developments in this Information Act 1997, “The minister to state reasons and, area of law in the past 30 years. He for a statement of the was under a for that reason, the explained the influence of international reasons for the refusal duty to provide provisions infringe human rights instruments, such as of his application for against article 41(2), the European Convention on Human naturalisation. In a letter the appellant paragraph 3 of the Rights, and the Irish Constitution. dated 26 January 2009, with the reasons Charter of Fundamental He explained that “those to whom the minister responded, Rights of the European discretionary powers are entrusted will declining the request. for his decision Union. exercise them fairly insofar as they may By letter dated 11 to refuse his affect individuals”. He stated: “Where January 2010, the Office Effectively stateless fairness can be shown to be lacking, the of the Information application for It was pointed out law provides a remedy. The right of Commissioner naturalisation” in the appeal that access to the courts is an indispensable acknowledged that the the court would not cornerstone of a state governed by the circumstances were such address an issue as rule of law.” that the appellant was “left none the to the constitutionality of a law if Justice Fennelly explained that the wiser as to why his naturalisation the case before it could be resolved basic issue for decision in the appeal request and subsequent request for without declaring the law to be was the extent to which decision- reasons were refused”. unconstitutional. It was stated that makers are obliged to disclose the if the appellant obtained an order of reasons for any decision made. Grounds for judicial review certiorari of the minister’s decision by In May 2009, the applicant was reason of its failure to state reasons, Decision delay granted leave by the High Court it would then be unnecessary to The appellant is a Syrian national. to apply for judicial review of the consider the constitutionality of the He and his wife arrived in Ireland in minister’s 20 November 2008 provisions of the1956 act or to refer 2002. Both individuals were granted decision. While this application any question for preliminary ruling refugee status on 22 November 2002 was pending, Clark J, in July 2010 to the Court of Justice. Law Society Gazette www.gazette.ie Jan/Feb 2013 human rights watch 17

Mallak v Minister for Justice – decision makers are obliged to disclose reasons for their decisions

The appellant explained for Justice, LGH v Minister for minister was under a duty to that the minister’s decision Justice, Equality and Law Reform, provide the appellant with the Look it up refusing him a certificate of and Hussain v Minister for Justice, reasons for his decision to refuse naturalisation had significant Equality and Law Reform). He his application for naturalisation. Cases adverse consequences for him as pointed out that, in each of His failure to do so deprived · Abuissa v Minister for a refugee. He complained that it these decisions, the minister had the appellant of any meaningful Justice, Equality and Law had left him “effectively stateless, provided reasons. opportunity either to make a new Reform [2011] 1 IR 123 though he retains Syrian application for naturalisation · Hussain v Minister for nationality, that he is unable to Reasons to refuse or to challenge the decision on Justice, Equality and Law obtain a passport, and is severely The minister accepted that a substantive grounds.” Reform [2011] IEHC 171 restricted in free movement and decision to refuse an application The judge continued: “If · LGH v Minister for Justice, travel”. for a certificate of naturalisation reasons had been provided, it Equality and Law Reform, 31 He explained that it was is, in principle, amenable to might well have been possible for January 2009 (Edwards J) impossible for him to exercise judicial review. The minister the appellant to make relevant · Mishra v Minister for Justice his right to reapply for the grant also recognised the development representations when making a [1996] 1 IR 189 of a certificate of naturalisation of the duty to give reasons new application. That might have as he was ignorant of the as an aspect of constitutional rendered the decision fair and Legislation: reasons for its initial refusal. justice. The minister submitted, made it inappropriate to quash · Charter of Fundamental The appellant drew the court’s however, that, in cases of absolute it.” Rights of the European Union attention to three previous High discretion, there is no obligation Justice Fennelly concluded · Freedom of Information Act Court decisions in which orders to give reasons. that, in the absence of any 1997 were made quashing decisions Mr Justice Nial Fennelly, reasons, the appropriate order · Irish Nationality and refusing to grant certificates of in giving the decision of the was one of certiorari quashing Citizenship Act 1956 naturalisation (Mishra v Minister Supreme Court, stated: “The the decision. G Judge us on our Figures

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AN ROINN DLÍ AGUS CIRT AGUS COMHIONANNAIS DEPARTMENT OF JUSTICE AND EQUALITY

SEMINAR ON CONSTITUTIONAL REFORM ARTICLES 26 AND 34 The Minister for Justice and Equality, Mr Alan Shatter, T.D. is hosting a Seminar to discuss how the Constitution might be amended to give effect to the Government’s decision to establish a Court of Appeal and other Specialist Courts (e.g. Family Courts). The Seminar will also consider possible changes to Articles 26 and 34 in relation to the referral of Bills to the Supreme Court. Full Programme is available at www.justice.ie.

Venue: President’s Hall, Law Society of Ireland, Blackhall Place, Dublin 7. Date: Saturday, 2 March 2013 Time: 9.30am - 1.00pm THOSE WISHING TO ATTEND MUST REGISTER AT www.justice.ie BY 22 FEBRUARY.

THE BAR COUNCIL OF IRELAND AND THE LAW SOCIETY OF IRELAND WILL AWARD CPD CREDITS FOR ATTENDANCE AT THIS EVENT Law Society Gazette www.gazette.ie Jan/Feb 2013 letter 19 Children’s Referendum is ‘well-intentioned legalistic guff’ From: Colm MacGeehin, MacGeehin Toale Solicitors, 10 Prospect Road, Glasnevin, Dublin 9 here has been much debate about the low Tturnout in the recent Children’s Referendum. Some commentators tend to blame the electorate for being lazy and indifferent. I am inclined to believe, in fact, that they were sceptical about the referendum’s usefulness and effect. There were exaggerated claims for and against the changes. In my view, the changes were much ado about nothing. There is one aspect of childcare where material change could have been brought about, and that is the area of adoption. Many proponents claimed that such change was achieved but, in fact, the amendment brought no change whatsoever. I will deal is almost the same as the earlier proceedings that concern them. with its married biological with each paragraph of article 42A and now repealed article 42.5, But there never was a bar against parents rather than with the but, for greater clarity, not in the with the exception that is adds hearing the views of sufficiently envisaged adopters, for example, order in which they appear in that “regardless of their married mature children when their the Baby Ann case ([2006]IR article. status”. But the married status of welfare was the issue. As with 374). According to many of its First, 42A.1: in which the parents has never been a decisive the preceding sub-paragraph, proponents, the amendment State guarantees to protect bar to their children being put into there was no need to have the addresses this problem. But it and vindicate children’s rights. care or fosterage in appropriate Constitution amended to make does not. Its provisions specific But the existing article 40.3 circumstances, nor is there any this a general requirement. to adoption make no reference already guarantees to protect the court decision (outside the context Further, and significantly, the whatsoever to the marital status rights of all citizens, including of adoption – see below) that rules amendment does not guarantee of the parents, in contrast to children, and indeed article 40.3.3 that the parents’ marriage prevents that appropriate resources will article 42A.2.1 (see above) on guarantees the right to life of the doing what otherwise ought to be made available to ensure that children’s fosterage, and so on. unborn. So there was no need be done for severely neglected this admirable objective will be Thus, where perhaps change was for 41A.1, unless, of course, the children. secured. needed, there is none. objective was to guarantee rights 42A.4.1: in all legal proceedings Adoption is the subject of Enacting the amendment to the children of all (often illegal) involving children, their best article 42A.2.2 and 3, and this may make some of us feel much migrants, who are not citizens. interests are paramount. But a is where the amendment’s better. Those citizens who have At no juncture did any of the provision to this effect already proponents have been dishonest. the Constitution as a beacon in amendment’s proponents suggest exists in various pieces of There is a difficulty when their daily lives now have the that this was its purpose. legislation. There was no need to children of married parents are comfort of knowing that children 42A.2.1: in exceptional amend the Constitution to enable being considered for adoption are “at its heart” and that it is a instances of what may be such a requirement to be made because, in the courts’ consistent “child-centred” document. From described as catastrophic more general. case law, in principle (albeit a practical point of view, the parental neglect, the State can 42A.4.2: the views of children not invariably), the child’s best amendment is little more than appropriately intervene. This should be heard in all legal interests are regarded as being well-intentioned legalistic guff. G consult a colleague 01 284 8484 The Consult a Colleague helpline is available to assist every member of the profession with any problem, whether personal or professional The service is completely confidential and totally independent of the Law Society 20 viewpoint Law Society Gazette www.gazette.ie Jan/Feb 2013

shout it from the rooftops

The De Silva report on British state collusion in the murder of solicitor Pat Finucane was released on 12 December 2012. We mustn’t let the facts be swept under the carpet, and we should be shouting from the rooftops for an independent inquiry, says Stuart Gilhooly

am a West Brit, apparently. Catholic children, I grew up listening activity, or doing anything untoward. Whatever that is. I know this to stories of people being killed. Quite But he was a thorn. He was trouble Ibecause I’ve been told it many frankly, I neither knew nor cared what with a capital ‘T’. times. I can only assume it’s my side they were on. You see, it was a You see, Pat Finucane believed in childhood obsession with the BBC different country to me. I know now justice. Even for those accused of that causes me to be accused of it’s only up the road, but then it might terrorism. He believed that everyone such a heinous crime. You see, I as well have been in China. I never had the right to a fair trial and if they Stuart Gilhooly is like cricket, I love Wimbledon and had any time for, or interest in, Sinn didn’t get it, then maybe Europe junior vice-president support Liverpool Football Club with Féin or the IRA. I still don’t. would have something to say about of the Law Society a passion. Hell, I’ve even been known On 12 February 1989, I was that. And funnily enough, they did. to shout for the England football living at home with my parents. So On 17 January 1989, Douglas team at major championships and was Michael Finucane. Neither of Hogg, junior Home Office minister jumped for joy when England won my parents was shot that day (or at the time, said: “I have to state as the 2003 Rugby World Cup. There, indeed any day since). But Michael a fact, with great regret, that there it’s out: boil lanced, Finucane’s father, Pat, are in Northern Ireland a number of and many friends and was. And he was there, solicitors who are unduly sympathetic colleagues will never “David Cameron with his younger siblings. to the IRA.” talk to me again. (It was knows that this He saw it all. In 2001, No one believes that Finucane’s the rugby bit that really he wrote: “The thing I death, less than a month later, is a hurt, wasn’t it?) report is only remember most vividly is horrible coincidence. Least of all It won’t surprise scraping at the noise; the reports of Desmond De Silva, author of the you that this particular each bullet reverberating latest report into this disgusting West Brit has never the scab of the around the kitchen, how scandal. Although he expressly had any real interest in wound and an my grip on my younger absolves ministers of awareness of the the Northern troubles. brother tightened with plot to kill Pat Finucane, he is utterly Like many southern independent every shot. It’s not a damning in respect of other state inquiry might memory I care to visit employees: “The real importance in very often, but it’s there. I my view is that a series of positive just reveal the expect it always will be.” actions by employees of the state need for serious actively furthered and facilitated his surgery” Just doing his job murder and that, in the aftermath Patrick Finucane was 39 of the murder, there was a relentless years of age. He was a attempt to defeat the ends of justice. solicitor doing his job. Many of his “My review of the evidence clients were members of the IRA, relating to Patrick Finucane’s case though he also had acted for has left me in no doubt that agents loyalists. It really doesn’t matter of the state were involved in carrying who he acted for. Either way, he was out serious violations of human murdered by the UDA, like many rights up to and including murder.” other innocent men. So why does a West Brit from British state collusion Dublin suddenly care after decades of So there you have it. The British complete disinterest? state colluded in the murder of Because there, but for the grace of an innocent man for doing his God, go us all. Pat Finucane was a job: administering justice. David solicitor acting for clients and trying Cameron thinks it’s “appalling” to get to the best result he could. and “unacceptable”. I’m sure these Nothing more, nothing less. He sentiments are real, but most of all, Sir Desmond de Silva wasn’t a terrorist, involved in illegal he just wants it to go away. He knows Law Society Gazette www.gazette.ie Jan/Feb 2013 viewpoint 21

Solicitor Pat Finucane: murdered by the UDA with the collusion of the British state

that this report is only scraping Only last year did the many Northern Ireland, of murders, murders of Pat Finucane, at the scab of the wound and that campaigners finally get a reward and we are like David Cameron. and subsequently Rosemary an independent inquiry might and can finally see the dimmest We just want it go away. Nelson, were certainly steps in just reveal the need for serious light at the end of the tunnel Except we must not let that that direction. There was no surgery. of justice. happen. This isn’t revolution, but two innocent I’m sure he thinks that the best They have proven about what side of people were left in coffins. Who thing to do is leave well enough that, although the “The British state the fence you are is to say it won’t happen again? alone. We have peace, and never past is another colluded in the on. It isn’t about And who is to say it won’t be you kick a sleeping dog. country, all you what foot you kick next time? Well, here’s the thing. It wasn’t need is a desire to murder of an with. It’s about one We should be shouting from sleeping. It was murdered. In cold travel and persuade innocent man for of us. the rooftops for an independent blood. For barking. Very loudly. others that no Most of us know inquiry. We should be banging Twenty-three years have passed matter how far away doing his job: the famous line in drums and marching outside the since Pat’s death and all we have it is, justice is a administering Shakespeare’s King British Houses of Parliament. seen is whitewash. The wash universal language. Henry VI when I was much the same age as is so gleaming that you’ll need justice” Dick the Butcher Michael Finucane when my sunglasses to watch the British Seven-hour wonder says: “The first mother died later in 1989. It Government sweep the remainder The De Silva report was released thing we do, let’s kill all the wasn’t anyone’s fault, but I of the mess under the carpet. on 12 December 2012. It wasn’t lawyers.” still ask ‘why’ to this day. The That year also saw another even a seven-day wonder, as The purpose of this vignette difference is that Michael might scandal involving collusion and they say in media circles. It was to demonstrate how easy it just get an answer. That’s why cover up. This time, it took place barely got seven hours. Down would be to start a revolution we should never stop asking the in Sheffield, at Hillsborough. here, it seems that we are sick of if the lawyers were dead. The question. G 22 cover story Law Society Gazette www.gazette.ie Jan/Feb 2013 The remains of the data

Online accounts may hold a vast ‘back catalogue’ of information, some of which is potentially valuable. So, who inherits your online legacy? Damien McCallig logs on

hrough the use of social media, email practitioners increasingly faced with novel questions and other online accounts, our lives such as what rights, if any, do surviving family members Damien McCallig and social interactions are increasingly or heirs have with respect to the online accounts of their is a PhD candidate mediated by digital service providers. loved ones? Can one bequeath social media, email or at the NUIG The vast storage capacities offered other online accounts? Other users may wish to have School of Law and by these services mean that users no all their accounts deleted at death and may seek advice is an Irish Research Tlonger tend to delete old messages, and these accounts on taking the secrets of their online lives to the grave Council scholar now may hold a ‘back catalogue’ of communications and with them. This article focuses on the current position interactions with family, friends, business contacts and regarding the transmission of social media and email the world at large, thus creating a virtual accounts at death – but other classes of biography and archive of one’s life. As digital remains exist and can raise more the volume of these interactions increases “Can one complex legal issues. and displaces traditional physical forms of communication, questions take on bequeath social Are you being served? greater significance regarding access to media, email The cornerstone of a user’s relationship and control over the ‘digital remains’ of or other online with an online service provider is the deceased relatives and friends contained terms of service that are signed up to in online accounts. accounts?” when establishing the online account. Some of these accounts may have Service providers may have specific clauses economic value, depending on their use, or policies relating to the death of the the status of the account holder (while alive), or the account holder, but these agreements are rarely read, if

type of account in question. For example, players of at all, by users. In any case, online service providers are photo manip u lation : C ian R edmond multiplayer online games can amass significant digital only beginning to grapple with the question of death, assets through virtual property or virtual currency, inheritance and access to online accounts. Little or no which often are traded for monetary value offline. consistency has emerged in the ever-changing policies However, the vast majority of digital remains will put in place by providers. primarily hold sentimental value in remembering Gmail, the free email service provided by Google, deceased loved ones, in the same way that old letters has a deceased user policy, which currently states that and photographs stored in shoeboxes and scrapbooks “in rare cases, we may be able to provide the Gmail act as mementos. account content to an authorised representative of the This new phenomenon of the digital age will see legal deceased user”. However, following the initial steps Law Society Gazette www.gazette.ie Jan/Feb 2013 cover story 23

Fast facts

photo manip u lation : C ian R edmond > Social media and email accounts may leave ‘digital legacies’ > the terms of service are important > Gmail, Yahoo and Facebook have ‘death policies’ > uS case law and legislation>> provide some guidance > Service providers should offer choice to users regarding the disposition of their ‘digital remains’ 24 cover story Law Society Gazette www.gazette.ie Jan/Feb 2013 of submitting a death certificate and a rigorous identification process, the Gmail account content may only be provided following “an order from a US court” or the production of other unspecified additional materials, or both. This contrasts sharply with earlier versions of the policy (March 2009), where, upon identification of the account, proof of death and proof of authority that the requester was the lawful representative of the deceased, or their estate, access requests were generally dealt with in 30 days. Another free email provider, Yahoo, states in its terms of service that “your Yahoo account is non-transferable and any rights to your Yahoo ID or contents within your account terminate on your death”. Both of these service providers, in defending their policies, cite privacy of the account holder “The user, as paramount. Yet, in most common-law jurisdictions, while alive, has the right to privacy little chance or terminates at death. opportunity to In loving memory determine what Facebook, the ubiquitous social media service provider, should happen takes a different approach. to their accounts Anybody can submit an online form to Facebook following death” reporting a user’s death; this then results in the deceased user’s page being ‘memorialised’, which means that the decedent’s Facebook page is made ‘private’, thus limiting those who can see or locate the page to confirmed Facebook friends. Confirmed friends can continue to post messages to the deceased user’s timeline. The proof of death required to initiate ‘memorialisation’ can be a link convinced Facebook not to deactivate the to an obituary or news article – no death victims’ accounts and allow tributes to be certificate is required. Almost inevitably, written to decedents’ accounts. Facebook has had to introduce a process for What is clear from this very brief survey the reinstatement of accounts memorialised of service provider policies is that the user, service, but later complied with the court’s in error. while alive, has little chance or opportunity order to provide copies of the emails in the For the accounts of those who are to determine what should happen to their account. genuinely deceased, only one alternative accounts following death. Surviving family In a more recent judgment (20 to memorialisation is available: “verified members are often left at the mercy of the September 2012), a British family were immediate family members” or those terms of service and the discretion of online refused an order from the US District holding proof of legal authority, such as an service providers when making requests Court in the Northern District of executor, may make a “special request” to relating to a deceased relative’s account. California to compel Facebook to provide have the deceased user’s account removed. This has led to a number of court cases in the contents of their deceased daughter’s It is unclear what criteria Facebook uses to the United States. The earliest case appears account for use in a coroner’s inquest in assess and subsequently grant such special to be that of Justin Ellsworth, a US marine England. The choice of a Californian requests. The origins of memorialisation killed in Iraq in 2004. Justin’s father took a court was determined by Facebook’s terms and the deceased user policies employed by case to the Oakland County Probate Court, of service (at section 16.1). Facebook Facebook can be traced back to the Virginia Michigan, against Yahoo in order to gain successfully argued that the US Stored Tech college shootings in 2007, when access to his son’s email account. Yahoo had Communications Act, a federal law designed, friends of victims, through media pressure, initially denied access, citing their terms of among other things, to protect privacy, Law Society Gazette www.gazette.ie Jan/Feb 2013 cover story 25 prevented the court from ordering the recommended as, following probate, the will release of the account’s contents. The becomes a public document but, according court did leave open the opportunity for to a 2011 survey, one in ten people in the family, which is also the executor Britain do record passwords and online of the daughter’s estate, to reach an account information in their wills. However, agreement with Facebook for the the sharing of passwords with third parties is voluntary release of the contents of the likely to breach the terms of service of many account. However, this type of solution of the online service providers. leaves a surviving family dependent on Furthermore, accessing or further the goodwill or discretion of a service modifying content in a decedent’s account provider when dealing with an access without the knowledge of the service request. provider may constitute a criminal offence in some Hawaii 5-0 “According to a jurisdictions. Also, solutions Five US states have attempted 2011 survey, one that require the sharing of to address the issue of digital in ten people in passwords create another legacies through legislation by difficulty, in that they must recognising specific categories Britain do record be updated when passwords of online account as probate passwords and are changed in order to property. Connecticut (2005) maintain an accurate list. and Rhode Island (2007) online account However, this type of Data can live forever provide executors with access information in solution does, at least, to, or copies of, the contents recognise the intention The most practical method to deal with of email accounts; Indiana their wills” and desire of the deceased this issue is for online service providers to (2007) provides for the release to allow access to those to offer the choice to users of whether or not of documents or information stored whom the passwords are posthumously they wish to assign their online accounts electronically to a personal representative assigned. to beneficiaries. Service providers are best of the deceased; and Oklahoma (2010) and Ultimately, as with all succession placed to record and maintain the intentions Idaho (2011) give executors the power to planning, the recording of the intentions of of the user relating to each specific account. control, conduct, continue or terminate the deceased in relation to the disposition Reaching this point may take some time, but social media, microblogging and email of their online accounts is the optimal surviving family members will continue to accounts. solution. Legislating for this area offers seek the economic and sentimental value in A further four states (Nebraska, another option, but the experience from the these digital remains and, with time, as more Oregon, Massachusetts and New York) are US suggests that further work is required service users die, the inevitable increase in considering similar laws. The Uniform before adopting such legislation in other the volume of access requests is likely to Law Commissioners, a group that jurisdictions. provide the stimulus for change. G promotes uniformity in state laws across the US, are also in the process of drafting a model state law for fiduciary access Look it up to digital assets. However, uncertainty remains regarding the application of the Cases • Oklahoma Statutes, section 58-269 (2010) current state laws, as these might not • In Re Justin Ellsworth, Deceased, State of • State of Rhode Island General Laws, section override specific terms of service and Michigan, Oakland County Probate Court, 33-27-1-5 (2007), Access to Decedents’ could be pre-empted by US federal law. 2005-296, 651-DE Electronic Mail Accounts Act • In Re Request for Order Requiring Facebook, Get smart Inc to Produce Documents and Things, US Literature These uncertainties and the gaps in District Court, Northern District of California, • Facebook, Statement of Rights and the regulation of a decedent’s digital San Jose Division, Case no C12-80171 LHK Responsibilities (8 June 2012), available at remains are also being addressed by (PSG) (20 September 2012) www.facebook.com/legal/terms, accessed 14 online legacy services such as Assetlock. November 2012 net, LegacyLocker.com and SecureSafe. Legislation • Facebook, Deactivating, Deleting and com. These companies offer a service that • Connecticut General Statute, sections Memorializing, www.facebook.com/ allows for the transfer of passwords for 45a-334a(b) (2005), as added by help/359046244166395, accessed 14 online accounts to chosen beneficiaries Connecticut Public Act no 05-136, An Act November 2012 following death. These are simple Concerning Access to Decedents’ Electronic • Gmail, Accessing a Deceased Person’s workarounds that require the maintenance Mail Accounts Mail (8 November 2012), available at of an active list of online accounts, • Idaho Code, section 15-3-715(28) (2011), http://support.google.com/mail/bin/answer. passwords and beneficiaries. Some of these An Act Relating to the Uniform Probate Code py?hl=en&answer=14300, accessed 14 providers also offer to terminate accounts • Idaho Code, section 15-5-424(3)(z) (2011), November 2012 that a user may not wish to remain active An Act Relating to the Uniform Probate Code • Yahoo, Terms of Service – UK and Ireland or be linked to them following death. • Indiana Code, sections 29-1-13-1.1 (3 December 2010), available at http://info. The other more obvious solution is for (2007), ‘Electronically stored documents of yahoo.com/legal/ie/yahoo/utos.html, accessed testators to leave passwords in their wills. deceased’ 14 November 2012 The placing of such detail in a will is not 26 human rights Law Society Gazette www.gazette.ie Jan/Feb 2013 In my time of dying

The crime of assisted suicide is punishable by up to 14 years’ imprisonment. Fleming v Ireland & Ors is a landmark case that challenges the constitutionality of the Common Law (Suicide) Act 1993. Michaela Herron weighs up the options

n 1993, assisted suicide became a crime, Fleming’s claim was for orders declaring that section 2(2) Michaela Herron punishable by up to 14 years’ imprisonment, of the 1993 act is invalid, having regard to the provisions is a solicitor on the pursuant to section 2(2) of the Common Law of the Constitution of Ireland, and that it is incompatible Healthcare and (Suicide) Act 1993. On 10 January 2013, a three- with her rights pursuant to the ECHR. Alternatively, Life Sciences Team judge High Court delivered its judgment in the plaintiff included a claim for an order directing the in A&L Goodbody Fleming v Ireland & Ors in the first challenge to DPP to promulgate guidelines stating the factors that Solicitors. She the constitutionality of the 1993 act. would be taken into account in deciding, wishes to thank I Marie Fleming, a 59-year-old mother of pursuant to section 2(4) of the 1993 act, Cliona Christle two who is in the latter stages of multiple “Applying the whether to prosecute or to consent to the for her assistance sclerosis (MS), lost her High Court proportionality test, prosecution of any particular person in in reviewing the battle seeking a declaration that section circumstances such as those that would article 2(2) of the 1993 act was unconstitutional the court held that affect a person who assists the plaintiff in and incompatible with the European the three-tiered test ending her life. Convention on Human Rights (ECHR). (laid out in Heaney The defence delivered on behalf Ms Fleming also failed in her of the State denied that the 1993 act application to have the DPP issue public v Ireland) was infringed any specific or unenumerated guidelines outlining the factors the DPP satisfied. The State constitutional right enjoyed by Ms would take into account when deciding Fleming and further denied that the whether to prosecute an offence under has an overwhelming Constitution of Ireland expressly or the 1993 act. interest in implicitly conferred on Ms Fleming, or In 1989, Ms Fleming was diagnosed any person, a right to die. as suffering from MS and, since 2001, safeguarding all The defence argued that the she has been wheelchair-bound. She now human life and provisions were necessary in the requires assistance with all aspects of her interests of the common good and that daily living. While she remains able to article 40.3.2 the public interest in maintaining that communicate, it is becoming increasingly commits the State to statutory provision without qualification difficult for her to speak. She suffers outweighs any alleged rights that significant pain, which she describes this objective” Ms Fleming might claim to have in as, at times, “almost unbearable”. Ms terms of obtaining the assistance of Fleming’s mental capacity is not impaired. Her request to another person to end her life. the court was for assistance in having a peaceful, dignified It was denied that the statutory provision was death in the arms of her partner and with her children in incompatible with the State’s obligations under the attendance, without leaving a legacy behind her whereby ECHR and that Ms Fleming was even entitled to seek her partner or her children could be prosecuted. a remedy directly from the court on the basis of a claim that there had been an alleged breach of her rights by Proceedings reference to the provisions of the ECHR, as the European The proceedings were commenced by a plenary summons Convention on Human Rights Act 2003 does not give direct on 25 October 2012 and case-managed to full hearing effect in Irish law to the ECHR. It was denied that the before the High Court on 5 December 2012. Ms 1993 act contravened any right of the plaintiff under Law Society Gazette www.gazette.ie Jan/Feb 2013 human rights 27 of dying PIC: COLLINSPHOTOS.COM

the ECHR or that it discriminates against Constitution or article 8 of the ECHR. It Fast facts Ms Fleming on the grounds of disability, was further denied that the convention rights contrary to article 14 of the ECHR. articulated in the plaintiff’s claim are directly > Marie Fleming, who is in the latter applicable in this jurisdiction, and the DPP stages of multiple sclerosis, sought ‘No exception or defence’ contended that the plaintiff is confined to a declaration from the High Court The defence of the DPP denied that the such rights and remedies as arise under the that section 2(2) of the 1993 act was common law provides no exception or ECHR Act. unconstitutional and incompatible with defence, in that any person charged with The Human Rights Commission invited the European Convention>> on Human an offence under this section would have the court to consider if the ban could be Rights available any common law defences that arise achieved in less absolute terms and whether it > She also applied to have the DPP issue generally in the case of serious indictable could be replaced by legislation that would be public guidelines outlining the factors crime. a measured and proportionate reconciliation the prosecution should take into account The DPP further denied that she is of the right to life, reflecting the sanctity when deciding whether to prosecute an obliged, under the Constitution or law, of life but also taking into account personal offence under the 1993 act to promulgate guidelines and that the rights of autonomy, privacy and equality > on 10 January 2013, three judges of the entitlement to exercise discretion whether rights. High Court found against the challenge or not to prosecute arises only after the > an appeal has been lodged and is due to commission of an offence. It was denied that Evidence be heard on 19 February 2013 before a the DPP’s refusal to promulgate guidelines The court heard testimony from three expert seven-judge Supreme Court over several constitutes a breach of the plaintiff’s right witnesses. Philosophy professor Margaret days to privacy, either under article 40 of the Battin, who co-authored a study in 2007 on 28 human rights Law Society Gazette www.gazette.ie Jan/Feb 2013

‘road map’ to crime The DPP contended that she would be “aiding the “form of incorporation in Ireland does a crime” if she were to grant the plaintiff’s no more than require, at a sub-constitutional request to outline the factors that would be level, that a court shall ‘insofar as is considered when deciding whether or not to possible, subject to the rules of law relating prosecute the crime, and that to do so would to such interpretation and application’, constitute a “road map” under which a person interpret a statutory provision or rule might more safely commit a crime and avoid of law in a manner compatible with the prosecution. Convention”. The court refused Ms Fleming’s request that the DPP issue guidelines for the following However, the court did not stop there. Moved reasons: by the tragic circumstances of Ms Fleming’s • The Prosecution of Offences Act 1974 case, the court said that, should Ms Fleming’s Marie Fleming in younger, healthier days contains no similar provision to that of family assist her in ending her life, they would the British Prosecution of Offences Act be entitled to submit documents to the DPP legal physician-assisted dying in Oregon 1985, which requires the DPP to issue surrounding the circumstances of doing so. and the Netherlands, gave evidence for guidelines. In the absence of a statutory The court said that the British guidelines were the plaintiff. That study concluded that power, the court held that the DPP was not of considerable assistance here and referred the impact on vulnerable persons was not entitled to issue guidelines and that to do to them at length. disproportionate where assisted dying was so would encroach upon article 15.2 of the While the DPP was not permitted to issue her legalised, and that there were sufficient Constitution and interfere with the separation own guidelines, the court said that the British safeguards in place to ensure abuse did not of powers. The court stated that law making guidelines would “surely inform” the DPP’s occur. is for the Oireachtas and not the DPP. decision. The court said it felt sure that “the Evidence for the State was given by two • The ECHR could not be relied upon in the DPP, in this of all cases, would exercise her consultants in palliative medicine, Dr Tony same direct way as the English courts, as discretion in a humane and sensitive fashion”. O’Brien and Prof Robert George, who supported the ban on assisted suicide. Dr O’Brien feared that a change in the law would result in people opting for assisted felt that Ms Fleming’s situation could be and Oregon addressed the serious concerns suicide in the belief they were an excessive greatly enhanced by active engagement with and objections that remain. If the law burden on those around them. He was palliative-care consultants. were liberalised, the risk of wrongful also of the view that, if the law changed diagnosis, the risks to the vulnerable, the “the whole issue of persons with impaired The constitutional issue risk of complacency with regard to statutory competence would be enormously difficult In finding that the 1993 act was safeguards, the pressure on disabled and and the situation would become quite constitutional, the court stated that the elderly to avoid consuming scarce public impossible”. plaintiff’s decision to seek healthcare funds, the pressure on disabled Prof George believed assistance to end her life is a and elderly due to their perception of being that legalising assisted “The DPP contended decision that, “in principle”, a burden to their family, the destruction suicide would result in “a that she would be is engaged by the right to of the traditional integrity of the medical paradigm shift in society”. personal autonomy that lies profession, and a fear of assisted suicide He stated that “if there ‘aiding a crime’ if at the core of the protection becoming a “normal option” were all too is one person who is she were to grant the of the person in article real. considered legitimate or 40.3.2. Applying the proportionality test, the justified in making a claim, plaintiff’s request to The court held that court held that the three-tiered test (laid out then the territory changes outline the factors there is a “real and defining in Heaney v Ireland) was satisfied. The court by the very fact of the difference between a held that the State has an overwhelming acceptance of that claim”. that would be competent adult patient interest in safeguarding all human life and He pointed to concerns considered when making the decision not to that article 40.3.2 commits the State to this that voluntary euthanasia continue medical treatment objective. in the Netherlands became deciding whether or on the one hand – even The equality guarantee in article 40.1 non-voluntary for people not to prosecute the if death is the natural, commits the State to valuing equally the who were incapable. He imminent and foreseeable life of all persons. The court held that the expressed great concern crime” consequence of that decision prohibition on assisted suicide is connected about the effect on mental- – and the taking of active to this objective and that, if it were to illness sufferers. He warned that economic steps by another to bring about the end adjudicate in favour of Ms Fleming, it utility also becomes a factor, noting one of that life of the other”. This distinction feared that it might “open a Pandora’s box, case from the Remmelink Report in which reflects the fact that one necessary feature of which thereafter would be impossible to a patient had experienced non-voluntary the Constitution’s protection of the person is close”. euthanasia to free up a hospital bed. He also that he or she cannot be compelled to accept explained that 42% of patients in Oregon medical treatment. Case law said that being a burden on their family The court held that it could not be The court then carried out a detailed was a contributing factor in their decision satisfied that the safeguards put in place in overview of the case law in the area. It is to opt for assisted suicide. Both witnesses Switzerland, the Netherlands, Washington clear (save for the Canadian judgment in Law Society Gazette www.gazette.ie Jan/Feb 2013 human rights 29

‘road map’ to crime Carter v Canada, which is currently under exploitation of the vulnerable. appeal) that, in jurisdictions with similar An appeal to the Supreme Court has Look it up constitutional provisions, the assisted suicide been lodged and is due to be heard on 19 ban is considered not to be disproportionate. February. Given the constitutional issues Cases: In Carter, Lynn Smith J involved, it is expected · Carter v Canada [2012] BCSC 886 held that the ban on assisted that seven judges will · Heaney v Ireland [1994] 3 IR 593 at 607 suicide was disproportionate, “The court held preside over several days. · Marie Fleming v Ireland & Ors [2013] IEHC 2 whereas the Irish judges held The High Court’s · The Queen on the Application of Dianne that they could not agree that if it were to decision on the Pretty v UK, 2002 35 EHRR 1 that the risks inherent in adjudicate in favour constitutional and ECHR · R (on the application of Purdy) v DPP, 2009 legally permitting assisted issues did not come as a UKHL 45 suicide had not materialised of Ms Fleming, it surprise. in jurisdictions such as the feared that it might Thus far, it has been Legislation: Netherlands and Belgium. ‘open a Pandora’s the court’s comments · Common Law (Suicide) Act 1993 Additionally, the case law on the usefulness of · European Convention on Human Rights before the ECHR has made box, which thereafter the DPP’s guidelines in it clear, from cases such as would be impossible Britain that have attracted Literature: Pretty and Purdy, that the a degree of controversy · Read the full judgment at www.courts.ie absolute ban on assisted to close’” (see panel, previous page). (High Court, 2012 10589 P) suicide is not incompatible It appears likely that · Policy for Prosecutors in Respect of Cases with the provisions of the ECHR. the Supreme Court will uphold the High of Encouraging or Assisting Suicide (British Purdy confirmed that, while article 8 is Court’s decision, in which case it will be guidelines); see www.cps.gov.uk/publications/ engaged, the restriction is justified pursuant for the Oireachtas to decide whether to prosecution/assisted_suicide_policy.pdf to article 8(2), as the contracting states amend the 1993 act to require the DPP to · Remmelink Report 1991 – also known as are permitted to think that such a ban is issue guidelines in relation to a decision to Medical Decisions about the End of Life necessary to prevent abuse and prosecute an offence of assisted suicide. G Celebrate your Wedding at The Law Society Celebrate your Wedding at The Law Society

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From high-rise Sydney to the seventh floor of the Central Bank, Peter Oakes has acornshad a mighty career. But can Colin Murphy see the wood for the trees?

ix months into his first-ever job, in Sydney, to be a big part of my life”. Though his career has Australia, Peter Oakes approached a senior been international, his life appears firmly rooted here: member of the team and asked him to train he is married to an Irish woman, Ruth, they have two Colin Murphy him. As a statement of ambition, it was in children born here, and he is now an Irish citizen. is a journalist keeping with his later career – but as a career Early on in his time in construction, a colleague gave and documentary direction, it couldn’t have been more different. him some advice. “Your future is in the office. Get a maker in Dublin, Oakes was working as a labourer on a building site; the qualification.” He considered quantity surveying but specialising in social S man he asked to train him was a rigger. He duly took Oakes opted for law, choosing to study part-time. (His mother and cultural affairs. on, and the young apprentice joined him hanging on the was a legal secretary, his father a carpenter, later a A selection of his outside of high-rise construction projects, helping to rig manager.) His early career was paradoxical: he took a work can be found at up platforms and hoist up materials and equipment. (He slow route to legal qualification, but was precociously www.colinmurphy.ie gestures out the dramatic seventh-floor window of the successful as a lawyer. Central Bank as he tells me this, to illustrate a point about Shortly after he started his studies, he landed a job as how they worked.) a paralegal in the pension fund of the New South It would be glib to suggest that such a training in Wales government, which managed a portfolio worth construction might be a useful background for working on AUS$2 billion, a portion of which was in commercial the regulation of the Irish banks – banks that, notoriously, property. One afternoon, they received a hefty cheque. became inextricable from the construction industry and Too late to have it lodged, the chief solicitor asked him property market they funded. But construction taught to bring it up to the traders’ floor, so they could trade on Oakes some valuable lessons. it overnight. “I learned about risk management and about the value The legal office worked exclusively on the property of the trust that others place in you. As riggers, we were side of the house and had few dealings with the traders, responsible for laying down the lifeline to which the high- but Oakes was intrigued and asked the traders could rise workers attached themselves. If we made a mistake, it he help. They suggested he review their counterparty could be fatal.” contracts and he brought the suggestion to his boss. It taught him hard work: 80-hour weeks as Sydney went “Could you do the work to the extent that you will know through a construction boom. And it taught him some what you know – and, more importantly, that you will robust people skills. “Get it wrong on the site and you know what you don’t know, and seek assistance?” he was might lose your teeth!” asked. He affirmed. The insight stayed with him. From there – while still studying law by night Cactus Jack – he went to work at the Australian Securities and Oakes joined Matthew Elderfield’s financial regulation Investments Commission, which had been newly team at the Central Bank in late 2010, as director of established as a national corporate regulator. Oakes enforcement. This April, he will leave “to pursue other found himself advising on investigations and, even interests”. He is coy on what these may be, other than to though not yet qualified, appearing in magistrate and confirm that he sees Irish financial services “continuing federal courts as “agent of the crown” in summary Law Society Gazette www.gazette.ie Jan/Feb 2013 profile 31 P ic : S iobhan byrne photography

“To be considered a credible regulator, you have to be prepared to lose cases”

High rise: view from Oakes’s seventh floor offices in the Central Bank prosecutions of company directors and put him in touch with the Financial Services Fast facts corporate law matters. He was promoted Authority, newly created out of the pre- to registrar of the disciplinary board and existing Securities and Investments Board as > Born: Sydney, Australia successfully introduced a mediation scheme part of the regulatory response to the 1995 > Passions: surfboat racing (akin to currach or to expedite the disciplinary process. collapse of Barings Bank. Oakes soon found skiff racing) himself working for his second national > career highlight: joining the Central Bank at Willow the wisp financial regulator as it underwent a process a time of ‘transformative change’ He finally qualified in 1997 and was > Most difficult moment:>> dropping two of “transformative change”. admitted as a solicitor, receiving an Two years later, he left to join an clients of his consultancy when he became exemption from articles due to his unusual investment management firm as head of “concerned about things they were saying to degree of experience. He had met an Irish legal and compliance. A classic case of the regulator that weren’t evidence based” girl (now his wife) in Sydney and her second gamekeeper turned poacher? He demurs: > career distinction: has worked for three (and final) one-year visa was coming to an people should move between regulator and national regulators during eras of radical end. Within a month of qualifying, they industry, he believes (as he has consistently reform and renewal were in London. There, a former colleague done). The regulator needs the insight that Ireland‘s Leading Provider of Professional Translation and Interpreting Service Telephone 1890 707 707 Email: [email protected]

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After a few years in London, life the financial regulator (which was in the There is a popular perception (partly interfered again. He was newly married and process of being incorporated into the allayed by charges being brought against friends offered some wry advice: “Be careful new unitary central bank and financial Anglo Irish Bank executives) that the – if you start breeding in London, you’ll regulator, the Central Bank of Ireland. “It enforcement response to the banking never get out of it!” They decided to try his was an opportunity to come in, again, to collapse has been inadequate and that this is wife’s homeland, and Oakes contacted some a regulator at a time of transformational typical of a response to white-collar crime Irish headhunters. The result? “Zip.” So he change. It gave me the means here that could be described, tried a more direct route, combing through and ability to contribute from at best, as lethargic. Oakes the IFSC yearbook and making a list of 30 within.” “Non-compliance says he is “appreciative” of firms whose business model he understood, Oakes has overseen a radical this view but stresses that then whittling that down to ten and writing rethinking of the approach to can negatively prosecutions against white- to them directly. They all responded, and enforcement. Staff in the unit impact upon collar crime are “notoriously he soon started work with a large funds increased from 20 to 70, fines complex” and “take time to business as director of legal and compliance. have increased (65% of the your fitness and build”. There, he spotted a market niche: fines imposed since 2006, by probity as a When he took office, he between the lawyers brought in to do value, have been imposed in director” wrote to all those directors contracts and the accountants doing audits, the last three years, he says), of the guaranteed financial there was, typically, nobody specialising in and there is now a marked institutions who had remained compliance. In 2004, he set up Compliance emphasis on transparency. “There’s a in place since the guarantee, informing Ireland, a consultancy providing training deterrence aspect to enforcement,” he says; them of new powers to investigate the and compliance services to the financial this requires the Central Bank to make fitness and probity of banking directors – services sector. An American friend public key information about enforcement subsequently, many resigned. The Central suggested that ‘compliance Ireland’ was actions. Bank conducted a review of the few who an oxymoron, but Oakes’s view was less They have taken cases in “ground- remained, which included Richie Boucher jaundiced: “I believed there was willingness breaking areas,” he says. “We’re one of the of Bank of Ireland and Fergus Murphy here, but a lack of leadership.” few regulators to have pursued solvency/ of EBS/AIB. It concluded that it had “no liquidity and capital requirements against reason to suspect the fitness and probity of On the trail of the lonesome pine insurance companies and banks. We have those individuals”. His view of compliance was holistic: “I taken enforcement actions against IFSC didn’t see compliance and governance being firms, retail banks, retail intermediaries, A man fir all seasons mutually exclusive. With the continuing insurers, reinsurers, investment firms, With a second Central Bank (Supervision codification of governance standards, stockbrokers, listed firms and credit and Enforcement) Bill due this year, compliance is a fundamental part of an unions.” regulation and enforcement powers are organisation’s governance framework.” He being strengthened, Oakes says, and he is targeted company directors, especially non- Ashes to ashes bullish about the prospects for Ireland Inc. executive directors, pitching to them that He sees having former industry “There was a ‘Wild West’ banner floating compliance should be a core concern: “non- professionals on the regulator staff as over Ireland in the past [since a 2005 article compliance can negatively impact upon crucial. “You need to be able to speak by The New York Times on loose practices your fitness and probity as a director”. to them [regulated firms] in their own in the IFSC], but that’s not the way that His legal training was inherent to his language. You need to be able to explain Ireland does business going forward. There understanding of the responsibilities of to them why they’ve got it wrong, because is an opportunity for the IFSC to promote company directors, as it rooted him in if they don’t see why they’ve got it wrong, themselves not just as ‘low cost’ but also “evidence-based decision making”. “How they will fight it tooth and nail.” ‘best practice’. Better regulation can add can you approve a set of accounts unless He believes in a robust approach to value to an economy. This is a growth you’ve gone through the accounts?” Going regulation: “To be considered a credible area for Ireland. If we get it right, it will through accounts or a business plan with regulator, you have to be prepared to generate more inward investment.” care may “give colleagues the impression lose cases. This doesn’t mean we will act From high-rise Sydney to the seventh you’re being pedantic, but if you don’t recklessly, but that we will act decisively, floor of the Central Bank (and soon on do the job diligently you could miss the being prepared to take on the risks inherent to pastures new), an ability to assess risk fundamental flaw that takes you from in untested areas. Taking on cases, even and enforce standards has taken Oakes to solvency to insolvency overnight or debases though you may lose, helps in arguing for a impressive professional heights. So, what the premise of your whole strategy”. change to the law to make the type of case advice would he give young legal graduates He has served on boards, and recalls more winnable in the future.” seeking a career in this area? “Develop declining an invitation to be a non- In Britain, following the Financial business experience. You need to be able to executive director. At a meeting with the Services Authority’s report on the failure of talk to business people. You need to be able firm’s senior executives, he was told he was the Royal Bank of Scotland, the Treasury to say to them, ‘the law says you can’t do it asking too many questions about the firm’s has consulted on the introduction of a that way – but let’s look at other ways you strategy, which was decided by their parent rebuttable presumption that a director could do it, if you’re prepared to adjust your company overseas. “We’re not looking for of a failed bank is not suitable to serve as business model’.” G 34 taxation Law Society Gazette www.gazette.ie Jan/Feb 2013 Shifting sands The administration of stamp duty has seen a range of changes due to the Finance Act 2012, and these changes are likely to present significant challenges for solicitors. Emmet Scully surveys the shifting sands

Emmet Scully is a partner in LK Shields Solicitors and co-author of The Law and Practice of Irish Stamp Duty. He has been the Law Society’s representative on the audit subcommittee of the Tax Administration Liaison Committee for the past four years

Fast facts

> for instruments executed on/after 7 July 2012, a new late-filing surcharge applies > late filing interest is charged on the amount of the original stamp duty liability plus the surcharge amount > The Finance Act 2012 introduces >>a new fixed penalty of €3,000 on each accountable person for failure to file a stamp duty return and expands the category of tax-geared penalties to include failure to file a stamp duty return Law Society Gazette www.gazette.ie Jan/Feb 2013 taxation 35

he Finance Act 2012 months after the specified return date, subject the amount of stamp duty payable on the introduced a range to a maximum of €63,485. unfiled return would have been negligible. of changes in the The surcharge is not a penalty and However, it is understood that it is not administration of stamp therefore forms part of a stamp duty charge. intended to apply this penalty automatically in duty that came into effect Late filing interest is charged on the amount each case of late filed returns and, in my view, by ministerial order in of the original stamp duty liability plus the is more likely to be levied in audit cases. respect of instruments executed on or after surcharge amount. T Tax-geared penalties 7 July 2012. The tables below, reproduced from The specified return date for the filing of guidance published by the Revenue The act also expanded the category of tax- stamp duty returns – that is, 30 days after first Commissioners, illustrates the main geared penalties to include failure to file a execution – and the rate of late filing interest differences between the sanctions applicable stamp duty return, which operates similarly (0.0219%) have not been changed by the act. to late filing under the old and new regimes (but not identically) to the tax-geared The Revenue Commissioners have confirmed (excluding fixed and tax-geared penalties for penalties for non-disclosure introduced by that they will continue to accept returns filed non-filing). the Finance (No 2) Act 2008. The operation Shifting up to 44 days after first execution, in line with of the tax-geared penalties for failure to file a previous practice. Failure to file a return stamp duty return are summarised in the table For instruments executed on/after 7 July The Finance Act 2012 introduces a new fixed overleaf. 2012, a new late filing surcharge applies, penalty of €3,000 on each accountable person Tax-geared penalties are most likely to equal to 5% of the unpaid duty where the for failure to file a stamp duty return. This be levied in the context of an audit, and the stamp duty return is filed within two months penalty applies to instruments executed on/ matrix for mitigation of penalties follows a after the specified return date, subject to a after 7 July 2012. There is no de minimus similar approach to that used in other tax maximum of €12,695, or 10% of the unpaid threshold on the application of this penalty, heads that are the subject of regular audits. duty where the return is filed later than two which could theoretically apply even where Abolition of adjudication Adjudication had been compulsory in order to penalties and interest for instruments executed before 7 july 2012 claim certain reliefs. Adjudication is no longer Scenario Penalty Daily interest possible in respect of instruments executed on or after 7 July 2012 and nor can adjudication Return filed and stamp duty paid in full within Nil Nil be requested by the Revenue or the taxpayer. 44 days of the date of execution The principal benefit of an instrument Return filed after 44 days and/or stamp duty 10% 0.0219% on any unpaid balance that had been adjudicated was that it was unpaid, but filed/paid within six months of from the date of execution considered to be duly stamped (see below). the date of execution Practitioners also drew comfort from the Return filed and/or stamp duty remains unpaid 20% 0.0219% on any unpaid balance fact that the interaction with the Revenue later than six months, but within 12 months from the date of execution made it less likely that the transaction would be reopened and therefore adjudicated of the date of execution transactions carried with them a fair degree of Return filed and/or stamp duly remains unpaid 30% 0.0219% on any unpaid balance certainty. after 12 months of the date of execution from the date of execution Although the Revenue Commissioners no longer retain the power to adjudicate documents, they have the power to require new duty surcharge and interest regime for instruments the taxpayer to produce the instrument executed on or after 7 july 2012 together with such other evidence (including Scenario Duty surcharge Daily interest statutory declarations similar to those routinely required in adjudicated transactions) Return filed and stamp duty paid in full within Nil Nil as they deem necessary in order to establish 44 days of the date of execution that the instrument has been properly Return filed within 44 days of the date of Nil 0.0219% on the total of stamped. In addition, the Finance Act 2012 execution, but stamp duty remains unpaid any unpaid balance granted the Revenue Commissioners new after 44 days powers to inspect and require the production Return filed after 44 days and/or stamp duty 5% 0.0219% on the total of of documents (see below). remains unpaid but filed/paid within 92 days Note: The maximum any unpaid balance plus of the date of execution surcharge here is surcharge, from the Admissibility in evidence capped at €12,695 date of execution Under section 127 of the Stamp Duties >> Consolidation Act 1999 (SDCA), an instrument Return remains unfiled and unpaid after 10% 0.0219% on the total of 92 days of the date of execution Note: The maximum any unpaid balance plus that is not duly stamped is not (subject to surcharge here is surcharge, from the limited exceptions) admissible in evidence capped at €63,485 date of execution in court or arbitral proceedings. Prior to the Finance Act 2012, instruments that had 36 taxation Law Society Gazette www.gazette.ie Jan/Feb 2013

tax-geared penalties: failure to file stamp duty returns Category of default Base penalty where no Penalty where taxpayer Prompted qualifying Unprompted qualifying cooperation fully cooperates (and no disclosure disclosure other factors apply) First Deliberate 100% of unpaid duty 75% of unpaid duty 50% of unpaid duty 10% of unpaid duty default Careless but not 40% of unpaid duty 30% of unpaid duty 20% of unpaid duty 5% of unpaid duty deliberate Second Deliberate 100% of unpaid duty. 75% of unpaid duty 75% of unpaid duty 55% of unpaid duty default Careless but not 40% of unpaid duty 40% of unpaid duty 30% of unpaid duty 20% of unpaid duty deliberate

been adjudicated were considered to be duly an instrument to stamp duty and make years from the later of (a) the date on which stamped, but instruments that had been reference to the provisions of the law giving the stamp duty return is delivered to the ‘straight stamped’ were not considered to be rise to the doubt, Revenue Commissioners, or (b) the date on duly stamped. • Identify the amount of stamp duty in doubt, which stamp duty was paid. Section 127 of the SDCA has been • Be clearly identified as an expression of An accountable person is required to amended by the Finance Act 2012 so that all doubt, and retain, or to cause to be retained on his or instruments executed on/after 7 July 2012 • Be accompanied by supporting document- her behalf, such records as are required and stamped using the e-stamping system are ation where relevant. to enable a true return or statement to be considered to be duly stamped. This change made, or a claim to a relief or an exemption will be of considerable benefit to solicitors The Revenue Commissioners may reject an to be substantiated. Any person who fails to and other professionals, who otherwise EOD as not being genuine. The Finance Act comply with these requirements is liable to a would have had to satisfy themselves as to 2012 set out a non-exhaustive list of situations fixed penalty of €3,000. the sufficiency of the stamping of documents. that will not be accepted by the Revenue Solicitors will still have to ensure that Commissioners as genuine EODs. These Powers of inspection instruments executed prior to include where the Revenue The Finance Act 2012 gives the Revenue 7 July 2012 (unless bearing an Commissioners: Commissioners new powers to require the adjudication stamp) have been “Solicitors will • Have issued general production of records and to inspect records duly stamped. still have to ensure guidelines concerning the held by, or on behalf of, an accountable application of the law in person, which are backed up with significant Expression of doubt that instruments similar circumstances, penalties for non-compliance. These new Prior to the Finance Act executed prior • Are of the opinion that the statutory provisions do not contain any 2012, a valid expression of matter is sufficiently free defence based on legal privilege. doubt (EOD) operated to to 7 July 2012 from doubt so as not to These new powers give authorised protect the taxpayer against (unless bearing an warrant an expression of officers of the Revenue Commissioners the certain penalties associated doubt, or power to require the production of books, with inadequate disclosure. adjudication stamp) • Are of the opinion that the records and documents, the furnishing However, for all instruments have been duly accountable person was of information and explanations, and the executed on/after 7 July 2012, stamped” acting with a view to the giving of assistance by a relevant person a valid EOD will only operate evasion or avoidance of tax. and an employee of a relevant person. to remove any liability to the These new powers also allow an authorised late filing interest that could arise on any Where the Revenue Commissioners do not officer of the Revenue Commissioners to additional stamp duty that may be payable accept an EOD as genuine, they will notify enter any premises or place of business of when the subject matter of the EOD is the accountable person and they will issue a a relevant person for the purpose of determined. notice setting out their reasons. Immediately auditing a stamp duty return. EOD cases are now more narrowly upon receipt of such notification, the filer A ‘relevant person’ is defined as an defined: they are cases where the accountable must file an amended return and pay the accountable person and any person who person is in doubt about the application of additional duty and late filing interest holds records on behalf of an accountable any enactment relating to stamp duty to an thereon. person. An employee of an accountable instrument that could give rise to a liability An accountable person who is aggrieved by person is defined as an employee who, by to stamp duty for that person or could affect a decision of the Revenue Commissioners not virtue of his or her employment, is in a that person’s liability to stamp duty or his to accept an EOD as genuine can, within 30 position to procure the production of the entitlement to an exemption or a relief from days of the notification of such decision, bring books, records and so on, or the furnishing of stamp duty. an appeal to the Appeal Commissioners on information, explanations and particulars. An EOD must meet certain additional the net point of whether the EOD is genuine If a relevant person fails to comply with criteria in order to valid. It must: The Finance Act 2012 imposes a duty on an the requirements of an authorised officer of • Set out full details of the facts and accountable person to retain, or cause to be the Revenue Commissioners, he is liable to circumstances affecting the liability of retained, certain records for a period of six a penalty of €19,045 and, where the failure Law Society Gazette www.gazette.ie Jan/Feb 2013 taxation 37

“The Finance Act 2012 gives continues, a further penalty of the Revenue ultimately be in line with those such enquiries will inevitably fall on the €2,535 for each day on which Commissioners new in other tax heads. Recent solicitor who has filed the stamp duty return the failure continues. An Finance Acts, and especially on behalf of the accountable person, who employee of a relevant person powers to require Finance Act 2012, have brought will expect that the solicitor will hold all who fails to comply with the the production the administration of stamp necessary records. requirements of an authorised duty into line with other tax The application of the EOD facility has officer of the Revenue of records and to heads, thereby making it been significantly restricted, and particular Commissioners is liable to a inspect records easier for Revenue auditors care needs to be exercised in assessing penalty of €1,265. to conduct stamp duty audits, whether a particular case meets the statutory held by or on behalf either as part of a more requirement to qualify as a valid EOD. Implications for practitioners of an accountable general audit or on a stand- Solicitors need to familiarise themselves Due to the abolition of adjudi- alone basis. The Code of Practice with the legislation underpinning the new cation and narrowing of the person” for Revenue Auditors will apply self-assessment regime and equip themselves EOD facility, the Revenue to such audits. in order to be able to deal with more frequent Commissioners will have less Any stamp duty return is therefore potent- and more formal interactions with the visibility of the details of the transactions ially open to a post-stamp assurance check Revenue Commissioners, such as EODs, behind the stamp duty returns that are filed. or audit, and the Revenue Commissioners post-stamp assurance checks and audits, and The Revenue Commissioners have indicated have been given extensive powers to require stamp duty appeals. The changes discussed that they will be conducting post-stamping production of documentation (including here will give the advantage to the Revenue assurance checks and audits of stamp duty documents held by a solicitor), and no Commissioners in such interactions, and returns. They have also indicated that the defence based on confidentiality or privilege solicitors will have to get to grips with the level of interventions in stamp duty cases will can be asserted. The burden of dealing with new legislative landscape quickly. G 38 constitution Law Society Gazette www.gazette.ie Jan/Feb 2013 Cara sa

The right to put one’s case in the official language of one’s choice is a right enjoyed by chúirt?both sides, but your right to choose Irish or English does not oblige another party to use your official language of choice. Cleachtadh a dhéanann maistreacht, a dúirt Colm MacGeehin

y first public law case was accused speak English, but Mr Ó Coileáin demurred, citing Colm MacGeehin O’Monacháin v An Taoiseach & Ors article 4 of the Free State Constitution, which made Irish is principal at in 1982. In that case, the Supreme the national language. MacGeehin Court unanimously decided that This stance found further support in the statement of Toale Solicitors, a District Court judge sitting in a Chief Justice Hugh Kennedy in Ó Foghludha v McClean Prospect Road, Gaeltacht court could conduct the (1934) in the following terms at 483: “The declaration by Glasnevin, Dublin. business of the court in the language of his choice (English), the Constitution that the national language of the Saorstát He expresses his M notwithstanding the objections of Gaeltacht litigants. At the is the Irish language … did mean … by implication, that the thanks to Dáithí time, Justice Sean Delap was sitting in the famous Court State is bound to do everything within its sphere of action

MacCárthaigh BL No 6 in the Bridewell, a native of the same Gaeltacht as … to establish and maintain it in its status as the national pic : n u ala redmond for his assistance my client. I felt an urge to write to him suggesting that language … None of the organs of the State, legislative, in producing this he impose the language of his choice on Court 6, as the executive or judicial, may derogate from the pre-eminent article Supreme Court would surely stand by his decision! The loss status of the Irish language as the national language of of that case did not cure me of my fascination with public the State without offending against the constitutional law issues, which include quite a number of other language- provisions of article 4.” related cases I fought over the years. Article 8 of the present Constitution provides: The following give some flavour of language litigation • The Irish language as the national language is the first before and after the O’Monacháin case in 1982. Given how official language, the law has evolved since then, I wonder if the Supreme • The English language is recognised as a second Court today were to re-run the O’Monacháin case, would official language, they decide it the same way? • Provision may, however, be made by law for the exclusive use of either of the said languages for any Ní tír gan teanga one or more official purposes, either throughout the The right to use Irish before the courts is an State or in any part thereof. unenumerated right and predates the present Constitution. In R (Ó Coileáin) v Crotty (1927), Mr Ní fhanann trá le fear mall Ó Coileáin’s summary conviction and £50 fine were The first definitive statement of the right to use Irish quashed in circumstances where his submissions to the in court under the 1937 Constitution was made by District Court were ignored as he had spoken in Irish O’Hanlon J in An Stát (Mac Fhearraigh) v Mac Gamhnia and had been convicted without an opportunity to put (1982). The Employment Appeals Tribunal sought to his side of the case. The judge had insisted that the compel the applicant to conduct his case in English, Law Society Gazette www.gazette.ie Jan/Feb 2013 constitution 39 pic : n u ala redmond

having established that he understood that right by the Supreme Court in Ó Beoláin v Fast facts language and so would not be prejudiced. Fahy (2001), which upheld Mac Fhearraigh v The applicant sought a judicial review of this Mac Gamhnia in trenchant terms. Hardiman > the right to use Irish before the courts is decision and was successful. The High Court J agreed with Chief Justice Kennedy’s an unenumerated right and predates the held: “Whenever any party wishes to put his aforementioned comments at 339: “I believe present Constitution side of a case to a court or tribunal, whether that Kennedy CJ’s implication into the text > In criminal proceedings, the DPP still by submission, the giving of evidence, or of the Constitution of 1922 of a binding has the unfettered constitutional right to proceed in her official>> language of choice the examination or cross-examination of obligation on the State in relation to the witnesses, I am of opinion that he has a language, in the terms which he sets out, > the State is not required to produce any constitutional right to do all of this through is appropriate also to the construction of particular class of documents that concern Irish if he so wishes” [translation]. article 8. I believe that article 8 gives rise, a criminal process in either Irish or English: This right to use either Irish or English apart from any other effect it may have, to it can choose one language or the other in the courts was upheld as a constitutional a constitutional imperative requiring to be aw s ociet Y Gazette • Vol 107 No 1 l aw RiGht to die? MiGhtY oaKes state collusion The High Court decision The Central Bank’s Why the facts of Pat in the landmark case of director of enforcement on Finucane’s murder must Fleming v Ireland regulation and compliance not be whitewashed Law Society Law Gazette€4.00 Jan/Feb 2013

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Please return to Law Society Gazette, Blackhall Place, Dublin 7. Law Society Gazette www.gazette.ie Jan/Feb 2013 constitution 41 considered by the courts in dealing with a so can an Irish-speaking person an English accurate the interpretation is, the words case of this kind” [translation]. document” [translation]. are not the defendant’s, nor is the style, He went on to state at 342-3: “It will be One wonders what the public reaction the syntax, or the emotion. Furthermore, noted that in the two last mentioned cases, would be were the DPP to exercise this right some words are culturally specific and, and in An Stát (Mac Fhearraigh) v Mac by furnishing all documents that make up therefore, are incapable of being translated. Gamhnia (1982) TÉ 29, heavy emphasis the book of evidence in Irish on an accused Perfect interpretations do not exist, as no was placed on the right of those wishing conducting his defence through English. interpretation will convey precisely the same to conduct their legal business in Irish to Perhaps the Oireachtas should exercise a meaning as the original testimony. While equality of treatment with those wishing margin of appreciation here and oblige the juries should not attribute to the defendant to do so in English. Having regard to the director to conduct prosecutions in the the exact wording of the interpretation and status of the Irish language, it seems to me language of the accused, without prejudice the emotion expressed by the interpreter, that persons wishing to use it are absolutely to the rights of all witnesses to give evidence they typically do just that ... Given that entitled to do so and to be in the official language of juries often determine the defendant’s guilt afforded every necessary their choice and, in the case or innocence based on small nuances of facility in doing so, at least to “One wonders of witnesses conversant in language or slight variations in emotion, the extent that such facilities what the public neither Irish nor English, how can it be fair for the defendant to be are available to those using through an interpreter. judged on the words chosen and the emotion the second official language reaction would expressed by the interpreter?” … In view of the terms of be were the DPP Ní bhíonn saoi gan locht The redacted passage reads: “In addition, article 8, and the official to exercise this The situation of the American juries often are biased against policy of bilingualism to which prosecution proceeding in the non-English-speaking defendants; therefore, the State is committed, the right by furnishing majority language (English) these defendants are disadvantaged from the State must facilitate the use all documents and the accused proceeding in outset of the case.” of either language without the minority language (Irish) It is ironic that the right to a represent- discrimination” [translation]. that make up has given rise to the question ative jury is a right enjoyed by the accused the book of of whether it is necessary that and can therefore be waived by the accused Is iomaí cor sa tsaol the court (judge, or judge and (State (Byrne) v Frawley [1978]). The unfettered right to put evidence in Irish jury) be conversant with both If the accused is happy that his right to one’s side of the case in the on an accused official languages to ensure a a jury drawn from a representative pool to official language of one’s level playing pitch. ensure his fair trial is not compromised by choice is a right enjoyed conducting his This question falls to be such a pool consisting only of people who by both sides: your right to defence through resolved within the concept will understand his evidence and the speeches choose Irish or English does of equality of arms. The of his counsel, then it would appear that no not extend to the right to English” European Court of Human conflicting rights need to be balanced here, oblige another party to use Rights gave a helpful as the accused is the proper person to apply your official language of choice. definition of this principle in Gorraiz that margin of appreciation. G This is somewhat mitigated in civil Lixarraga & Ors v Spain at paragraph 56: proceedings involving the State or public “The court reiterates that the principle of bodies, whereby such parties are obliged equality of arms is part of the wider concept Look it up pursuant to legislation (section 8 of the of a fair hearing within the meaning of Official Languages Act 2003) to use the article 6.1 of the convention. It requires a Cases: official language of the ‘private’ litigant. ‘fair balance’ between the parties: each party • Gorraiz Lixarraga & Ors v Spain Where there is more than one private must be afforded a reasonable opportunity (62543/00-ECHR) litigant and they choose to use different to present their case under conditions that • Mac Fhearraigh v Mac Gamhnia (1982) official languages in the proceedings, the do not place them at a disadvantage vis-à-vis IRSR [1980-98] 29 public body can then elect to proceed in their opponent or opponents.” • Mac Cárthaigh v Éire [1999] 1 IR 186 either English or Irish. In Mac Cárthaigh v Éire (1999), the • Ó Foghludha v McClean [1934] IR 469 In criminal proceedings, the DPP still accused’s request for a jury that would • Ó Beoláin v Fahy [2001] 2 IR 279 has the unfettered constitutional right to understand evidence, submission, and • Ó Conaire v Mac Gruairc [2009] IEHC 430 proceed in her official language of choice, counsel’s speeches in Irish without the • Ó Gríofáin v Éire [2009] IEHC188 including the right to serve summonses intervention of an interpreter was refused, • O’Monacháin v An Taoiseach & Ors (1982 and charge sheets and to furnish disclosure as such a jury would need to be drawn IR) in English, even where the defence is from a shrunken jury pool and would • R (Ó Coileáin) v Crotty [1927] 61 ILTR 81 conducted through Irish (Ó Conaire v Mac therefore – according to the court – not be a • State (Byrne) v Frawley [1978] IR 326 Gruairc [2009]). Charleton J stated in constitutional jury. Ó Gríofáin v Éire (2009) at paragraph 12: This was in spite of the fact that Hamilton Legislation: “The State is not required to produce any CJ accepted the truth of the following • Official Languages Act 2003 particular class of documents that concern a passage by Michael B Shulman from the criminal process in either Irish or English. Vanderbilt Law Review: “The first noticeable Literature: The State can choose one language or the difficulty in the present system of court Michael B Shulman, ‘No hablo Ingles: court other. This is not an abuse of anyone’s rights. interpretation is that non-English-speaking interpretation as a major obstacle to fairness An illiterate person can get a document read, defendants are not judged on their own for non-English speaking defendants’, an English-speaking person can get someone words. The words attributed to the defendant Vanderbilt Law Review, January 1993 to explain an Irish document to him, and are those of the interpreter. No matter how late applications still possible on some courses Diploma Programme New Year and Spring 2013

Law Society of Ireland Diploma Programme winner of Law School of the Year award (Irish Law Awards 2012) At the recent launch of the Certificate in Child Law were Amy Shorten and Andrew Sheridan.

NEW YEar 2013 Start datE FEES *

Diploma in Insolvency and Corporate Restructuring (incl iPad2 16 GB) ** Saturday 12 January €2,490

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Diploma in Technology Law (new) (incl iPad mini 16 GB) Tuesday 16 April €2,470

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Certificate in District Court Advocacy Saturday 13 April €1,160

(*) Fees quoted are for solicitors. Non-legal personnel are subject to an application process and supplemental fee. (**) Late applications still accepted.

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Diploma ad full page Gazette Jan/Feb 2013.indd 1 23/01/2013 16:50 Law Society Gazette www.gazette.ie Jan/Feb 2013 PEOPLE AND PLACES 43

Kerry Law Society

Managing director of The Star, Gerard Colleran, was the guest speaker at the annual dinner of Kerry Law Society in the Ballyroe Heights Hotel, Tralee, on 1 December. Mr Colleran addressed the society on the topic of media and the law. Chairman, John Galvin added: “Quite clearly, the members of Kerry Law Society are delighted that the Law Society is holding its annual conference in Killarney and look forward to welcoming members.” If you haven’t already booked, then don’t miss out. The dates for your diary are 10 and 11 May 2013, in the five-star Hotel Europe, Killarney. Bookings can be made at www.lawsociety.ie

Sligo Bar Association

Attending the recent meeting of the Sligo Bar Association at the Glasshouse Hotel were (front, l to r): Joe Keyes, Damian Martyn, Orla Moran, Ken Murphy (director general, Law Society), Maurice Galvin (president, Sligo Bar Association), Deirdre Munnelly (secretary), Donald Binchy (President of the Law Society), Michelle O’Boyle and Derville O’Boyle. (Back, l to r): Michael Mullaney, John Murphy, Eamonn Gallagher, Tom Martyn, Caroline McLaughlin, Michael Quigley, Martin Burke, Carol Ballantyne, Aine Kilfeather, Brian Gill, Eoin Armstrong, Shane McDermott, Ita Lyster, Noelle Galvan, Hugh Sheridan, Seamus Monaghan, Lisa Keaveney, Trevor Collins, Declan Gallagher, Peter Martin and Gerry McCanny P ic : L ensmen

At a dinner to mark the end of Dr Carol Coulter’s 15 years as Legal Editor of The Irish Times were (front, l to r): Kevin O’Sullivan (Editor, The Irish Times), Dr Carol At the conferral of the Certificate in Human Rights, which took place at the Coulter, James McCourt (Law Society President), retired Supreme Court Judge annual Human Rights Conference, were: Salma Iqbal Paryani, Anna Hickey, Catherine McGuinness. (Back, l to r): Noeline Blackwell (director general, FLAC), Deirdre Flynn (diploma programme course co-ordinator), Michelle Sheeran, Paddy Smyth (foreign editor, The Irish Times), Stuart Gilhooly (Junior Vice- Siobhan Coleman, Sean O’Reilly, Avril Sheridan, Susan Miner, Patricia M President), James McGuill (past-president), John McManus (business editor, The Carroll and Rhea Bohan Irish Times) and Ken Murphy (director general) 44 people and places Law Society Gazette www.gazette.ie Jan/Feb 2013 ON THE MOVE

Marie O’Brien A&L Goodbody has announced the appointment of Marie O’Brien as aviation partner. Marie’s expertise is in the area of asset finance and An informal graduation ceremony was well attended by the first cohort of PPCII trainees who successfully completed leasing, including advising their English and Welsh Property and Practice course. The course allows successful candidates to apply to be admitted companies on acquisition, on the roll of solicitors in England and Wales leasing, financing and trading of a variety of asset classes including aircraft, engines, helicopters, ships, rail, Legal History Society visits Glasnevin Cemetery machinery and equipment. The The annual general meeting of in fostering interest in Irish aviation finance team at A&L the Irish Legal History Society legal history and his expertise in Goodbody boasts four partners, was held in the museum building the field, particularly the Irish namely: Catherine Duffy, at Glasnevin Cemetery on 30 Serjeants and the Bar of Northern Seamus O’Cronin, Maireadh November, following a well- Ireland. Dale and now Marie O’Brien. attended tour of the cemetery. In Following the meeting, Prof the course of that tour, the society Dawson delivered her lecture, paid its respects to some of the ‘Letters from Inverary: the lawyers buried there, including correspondence between the John Philpot Curran MR, Chief Eighth Duke of Argyll and the Justice Monahan, Chief Justice First Marquess of Dufferin and Kennedy, Sergeant Sullivan, Ava, with particular reference to Master Toirleach De Valera, Sean the Irish land question’. McBride and Daniel O’Connell. Prof Norma Dawson prepares to This was based on The Society was delighted to deliver her presidential discourse correspondence that threw welcome to the AGM its current new light on the philosophical patrons, Chief Justice Susan Dawson (QUB), is a member of discussions between landowners Barry Reynolds Denham and the Lord Chief the council ex officio. The elected surrounding the legal recognition DAC Beachcroft Dublin has Justice of Northern Ireland, council members are Dr Kevin of customary tenant right in the appointed Barry Reynolds Sir Declan Morgan, who had Costello (UCD), Dr Sean Patrick Land Act 1871 and subsequent as employment partner with travelled from Belfast, together Donlon (UL), Dr Kenneth developments under the Land Act immediate effect. Barry with former Chief Justice Ronan Ferguson BL, Hugh Geoghegan, 1881 involving rent control, lease brings more than ten years’ Keane, a former patron of the Sir Anthony Hart, Prof Desmond renewal and more extensive land experience as an employment Society. Greer QC, Dr Robin Hickey purchase. law specialist to the role. The meeting elected Robert (Durham), Daire Hogan, Dr The next meeting of the He will focus on leading the D Marshall as the Society’s ninth Niamh Howlin (UCD), Prof Society on Friday 15 February employment team at the DAC president to serve for a three-year Colum Kenny (DCU), Felix M will mark the opening of its 25th Beachcroft Dublin offices. term. The officers elected for Larkin, John Larkin QC, John anniversary celebrations. It will be Most recently, Barry was a the coming year are Sir Donnell Martin QC, James McGuire and held in the Graduates’ Memorial senior associate in the Arthur Deeny and Dr Patrick Geoghegan Prof Jane Ohlmeyer (vice-provost Building, TCD, when Daire Cox employment law group (vice-presidents); Dr T Mohr TCD). Hogan, solicitor, and a founding advising on both contentious (UCD) and Dr David Capper Before the conclusion of member of the Society, will and non-contentious (QUB) (secretaries); John M the meeting Prof Dawson, as present a paper. employment law issues for Gordon (solicitor) and Yvonne president, presented the society’s All those interested are clients across diverse business Mullen BL (treasurers). The gold medal for 2012 to Anthony welcome to attend the discourse. sectors and the public sector. outgoing president, Prof Norma Hart in recognition of his work Further details on www.ilhs.eu. Law Society Gazette www.gazette.ie Jan/Feb 2013 people and places 45 Legal eagle Grainne all set for Cheltenham festival Grainne Loughnane is a newly be very highly strung. The key to qualified solicitor who enjoys competing is keeping the animal wearing silks! Having just passed relaxed. I have competed on all of her Law Society exams last Newmill successfully in the show December – she’ll be attending ring and competed on him in the her parchment ceremony in RDS in 2011 and 2012.” the coming weeks – she is now No stranger to horses, Grainne set to take on one of her most kept ponies as a child and became challenging roles to date. involved in racing at the relatively Grainne has succeeded in late age of 20. She took out an her application to ride in the amateur licence at the age of 23 St Patrick’s Day Derby in and has ridden in point-to-points, Cheltenham during the National bumpers and hunter chases. Hunt Festival in March. She Her highlight as an amateur intends to ride Newmill, which was riding around the banks in was the surprise winner of the Punchestown in the Ladies Cup in Queen Mother Champion Chase 2009 and 2010. She rides out every in Cheltenham in March 2006. Saturday and Sunday morning for She came by Newmill two years businessman and racehorse trainer ago when his owner, Mrs Mary Luke Comer in Dunboyne, Co T Hayes, generously offered the Meath, and hunts regularly with horse to her on loan to compete the Ward Union Hunt. in the racehorse to riding horse A condition of being allowed to classes. take part in the St Patrick’s Day “It’s a difficult class,” she told Derby is that Grainne has to raise the Gazette, “as racehorses tend to Grainne Loughnane, sporting Newmill’s racing colours, at the RDS in 2012 Stg£5,000 for cancer research. She adds that any additional funds raised will go to the CARI Foundation, which offers support Calcutta Run – save that date! and therapy for sexually abused children. To ensure she fulfils her dream, she is organising a charity ball on Saturday 23 February 2013 at the Burlington Hotel, Dublin. The black-tie event will begin with a drinks reception at 7.30pm. It will include a three-course meal, an auction, band and DJ until late. The special guest will be Peter Casey, the trainer of Flemenstar, which may go for the Gold Cup in Cheltenham. (Readers may remember Mr Casey’s notorious interview with Tracy Piggott, which was carried on live TV!) More details can be found at www.justgiving.com/ grainneloughnane. Donations are welcome and can be made through that website. Tickets for the charity ball costing €65 The Calcutta Run 2012 was a huge success, with a total of €125,000 being raised for GOAL and the Peter McVerry each can be purchased directly Trust. The amount was split evenly between both charities, with each receiving €62,500 to help with their work from Grainne, by email at: for the homeless youths of Calcutta and Dublin. At the handover of the cheque to GOAL were members of the [email protected]. Calcutta Run Organising Committee, including Eoin Mac Neill, Alan Johnson, Joe Kelly, Cillian MacDomhnaill, Grainne works for Walsh & Chris Connolly, Auveen Curran, Tony Morgan, Belinda O’Keeffe, Lisa O Shea and Carmel Drumgoole (GOAL), James Co, Dundalk, whose principal is McCourt (Law Society president), Ronnie Feeney and Helen Leahy (Bank of Ireland). This year’s Calcutta Run will take place on Saturday 25 May 2013. Participants can run or walk the 10k route through the Phoenix Park – and Brendan Walsh. The firm opened recover afterwards at a monster barbecue, with music, entertainment and plenty of fun! Visit www.calcuttarun.com in summer 2009 and focuses for more details – and don’t forget to save that date! chiefly, though not exclusively, on litigation and family law. 46 book reviews Law Society Gazette www.gazette.ie Jan/Feb 2013 Battle of Wills – Irish Families at War over Wills Liam Collins. Mentor Books (2012), www.mentorbooks.ie. ISBN: 978-1-906623-89-0. Price: €14.95 (web price €11.95) incl VAT. This is a collection of intriguing reality of litigation of this nature, human nature. Others, however, tales, mostly of strife and woe, is the breakdown, sometimes remind us in a more positive way arising from will disputes concern- irretrievably, of family relationships that a well-constructed will is a ing the estates of some well-known and friendships. This may result vitally important document to Irish figures. Many of the stories from a myriad of causes, such as anyone with assets to bequeath, will have a ring of familiarity for ineffective will drafting, poor estate responsibilities to others or debts readers; if not for the substance, planning, lack of communication to be paid, whether financial or certainly for the names involved. by the testator with their loved otherwise. The collection ranges over the ones, or simple greed on the part We were slightly irked by political controversy of Hugh of potential beneficiaries. the author’s apparent lack of Lane’s art bequest, the royal secrets The probability, though, in understanding of the role of a of Sir Alfred Beit, the literary such cases that cannot be quietly solicitor in preparing a will, salacious, and we particularly style of Nuala Ó Faoláin, and the and peaceably settled, is that which includes drawing out and enjoyed the older stories. mystical and murderous – but the will was merely a catalyst clarifying a testator’s thoughts and never the mundane. bringing pre-existing tensions wishes. Nonetheless, Battle of Siobhán Laighléis is a solicitor A sadly prevalent theme, to the surface. Some of these Wills is an interesting and at Gartlan Furey Solicitors, 20 which probably reflects the stories are a poor indictment of enjoyable light read, if somewhat Fitzwilliam Square, Dublin 2

The Taxation of Gifts and Inheritances Joanne Whelan and Ann Williams. Irish Tax Institute (2012), www.taxinstitute.ie. ISBN 978-1-84260-288-1. Price: €65. This book provides a much-needed five practical scenarios to explore evidence occupation of a property commentary on the operation of the operation of the taxes in more for dwellinghouse relief purposes capital acquisitions tax and, in complex cases. and a checklist of the information particular, on the changes brought in Some chapters will be of particular likely to be needed in assessing the following the Revenue’s 2010 review interest for practitioners. Chapter 2 availability of business property relief. of the operation of the CAT system. deals with the legal locus of assets The authors have produced a very The book covers the legislation, rules, providing a useful quick user-friendly and informative book case law, and administration of reference, and chapter 6 provides a on tax practice in the area of gifts CAT and discretionary trust tax and good overview of the issues arising and inheritances, which should be of approaches these taxes in a very on the valuation of private company great value to students, taxpayers and practical way. Part 1 covers the shares. There is a useful summary practitioners alike. calculation of tax with an emphasis of British inheritance tax and other on legislation, Revenue practice foreign tax provisions in chapter 11. Finola O’Hanlon is a solicitor and worked examples. Part 2 deals Practical assistance is included specialising in tax matters and is a separately with return and compliance where relevant. For example, there director of O’Hanlon Tax Ltd, Lower issues and audits. Part 3 provides is a guide on how a beneficiary can Bridge Street, Dublin 8

The Law of Companies (3rd edition) Thomas B Courtney. Bloomsbury Professional (2012), www.bloomsburyprofessional.com. ISBN: 978-1-84766-951-3. Price: €225 (hardback, incl VAT). This book, in its previous two just after the book) is passed. The financial crisis. Examples featured editions entitled The Law of Private answer has three elements. The include Honninball v Cunningham Companies, has undergone a change first is the likely delay in enactment and BPI Property Co Ltd, Banfi Ltd v of title that indicates an expansion and the transitional period. The Moran et al, Re Walls Properties Ltd, of subject matter to include new second is that the ten years since and Fyffes plc v DCC plc et al. chapters on PLCs and SEs, guar- the second edition have seen six Like the previous editions, this antee companies, unlimited com- new acts and a transformation is beautifully put together. As well panies, prospectus, market abuse of the law on public issues of as being thoroughly and rigorously and transparency law, conversion securities by a series of Irish and researched, it is clear, articulate by re-registration and, finally, ex- EU regulations. and practical. I commend it as ternal companies and branches. The third and most important the definitive textbook on Irish You might ask why this book is reason is the development of company law and unreservedly published now rather than when Irish case law during that time, in recommend it as essential for every Paul Egan is chairman of Corporate the Companies Bill 2012 (published particular from the fallout from the solicitor’s library. G at Mason Hayes & Curran. Law Society Gazette www.gazette.ie Jan/Feb 2013 reading room 47

THOMSON REUTERS New judgment indices available online TM ROUND HALL Mary Gaynor outlines what’s new at the Law Society Library

Mary Gaynor is head of library and information services at the Law Society of Ireland

ONLINE LEGAL he annual index of Supreme RESEARCH Court, High Court and Court of TRANSFORMED TCriminal Appeal judgments for 2009 is available in PDF format on the library catalogue website. You can access this via the member’s area at www.lawsociety.ie. The A NEW, IMPROVED annual index for 2010 will be available shortly. Annual indices list all of the reserved written Will precedents AND MORE judgments by subject and include abstracts Release 42 of Laffoy’s Irish Conveyancing prepared by the Law Reporting Council. Precedents (will precedents) was published POWERFUL Entries in the index include neutral citations, in October and contains a range of general reported citations, record numbers, date, and will precedents that “provide for the varying ONLINE LEGAL links to the Bailii website where available. needs of beneficiaries whether they are adults, minors, those needing simple trusts or those RESEARCH New delivery charge on book loans whose needs require discretionary trusts. In Members who request to have book loans addition to the will providing for the spouse EXPERIENCE delivered to their offices by An Post or DX to inherit, all the precedents provide for two courier will be charged a €5 delivery charge differing life interests. The third limited IS HERE per item for delivery by An Post, or per interest is the provision for parents. There is a WESTLAW IE packet inclusive of VAT for delivery by DX precedent will for cohabitants and a precedent courier, from 1 January 2013. Members who for a beneficiary with a disability.” Copies are wish to collect book loans in person or by available to borrow from the library, which arranging their own courier can continue is licensed to supply these precedents in MS to have parcels collected from the library or Word format. Pricing details are available on main reception as heretofore. request. G

JusT PUBLISHED

New books available to borrow SEE IT. BELIEVE IT. • Courtney, Thomas, The Law of Companies • Mercurio, Bryan et al, World Trade Law (2nd (3rd ed; Bloomsbury Professional, 2012) ed; Hart, 2012) 1800 50 90 34 • Dewhurst, Elaine et al, Principles of Irish • Murphy, Rob and Nasreen Desai, Aircraft [email protected] Human Rights Law (Clarus Press, 2012) Financing (4th ed; Euromoney, 2011) • Dodd, Stephen and Cian Carroll, NAMA: • Noctor, Cathleen and Richard Lyons, The westlaw.ie the Law Relating to the National Asset MIBI Agreements and the Law (2nd ed; Management Agency (Round Hall, 2012) (Bloomsbury Professional, 2012) • Fox O’Mahony, Lorna, Home Equity and • Uzelac, Alan and CH van Rhee, The Ageing Owners: Between Risk and Regulation Landscape of the Legal Professions in Europe (Hart, 2012) and the USA: Continuity and Change (Hart, • Heilbron, Rose, The Story of England’s First 2011) Woman Queen’s Counsel and Judge (Hart, 2012) New e-books available to borrow – contact the • MacCann, Lyndon and Thomas B Courtney, library for login details Companies Acts 1963-2012 (Bloomsbury • Stokes, Simon, Art and Copyright (2nd ed; Professional, 2012) Hart, 2012) 2012 Outstanding 2012 Outstanding Achievement Award - Achievement Award - Irish Irish Institute of Training Institute of Training & Development (IITD) & Development (IITD) Awards – Most Awards – Work Placement Innovative Use of – Graduate and Non- Technology Category Graduate Category

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LSPT ad Gazette Jan/Feb 2013.indd 1 08/01/2013 15:27 Law Society Gazette www.gazette.ie Jan/Feb 2013 council report 49 briefing Law Society Council meetings 2 November and 14 December 2012 Sympathy He praised the great value of the IBA annual meeting be reviewed, as it has ceased to have Following an address by Simon work of the Society’s committees The Council acknowledged the ex- any practical effect and is impos- Murphy, the Council observed and the hugely positive services traordinary achievement by a small sible in practice to enforce.” a minute’s silence in memory of that the Law Society provided for group of solicitors, in particular The Council approved the estab- Council member James O’Sullivan. its members, and he underlined Michael Greene, Geraldine Clarke lishment of a review group, under the Society’s commitment to rep- and John Buckley, to secure a deci- the chairmanship of past-president Welcome resent all of its members, whether sion by the International Bar Asso- James MacGuill, to conduct the re- The president extended a warm sole practitioners, sole principals, ciation to hold its annual meeting view. welcome to all of the newly elect- in small firms or large, and whether in Dublin from 30 September to 5 ed and newly nominated Council located in rural areas or in larger October. The conference had been Meeting on 14 December 2012 members: Christopher Callan, Gar- cities. He urged colleagues to re- a resounding success, and the feed- The Council approved the Practis- ry Clarke, Brendan Cunningham, member their calling as solicitor back from delegates was that it was ing Certificate Regulations and fees Geraldine Kelly, David Lavelle, and said that, if they behaved fairly, the best IBA conference ever, with for 2013, with a full fee of €2,500 Sonia McEntee, Shane McCarthy honestly, and in the public interest, 7,500 to 8,000 delegates and their and a fee for solicitors less than and Deirdre O’Sullivan. they would serve their clients well spouses/partners in attendance three years qualified of €2,150. In and would improve their standing relation to the breakdown of the Taking of office by president in the larger community. He noted Referendum on the rights of fee, the Council noted that the and vice-presidents that unemployment continued to the child registration fee had been reduced Outgoing President Donald Binchy be a harrowing problem for some Following a comprehensive presen- by €60, but that a corresponding thanked the Council for their colleagues and that underemploy- tation by Dr Geoffrey Shannon on €60 had been added to the com- 100% support of him through- ment required solicitors to innovate the constitutional referendum on pensation fund contribution, which out the year and, in particular, the and to identify new areas of work the rights of the child, the Council would now stand at €760. senior vice-president and junior He expressed his intention to agreed that the Society should take The Council approved the ap- vice-president. He also recorded act decisively in all matters, but a public position in support of the pointment of Norville Connolly, his appreciation for the dedicated to avoid conflict and confronta- referendum, with 24 votes in favour Brian Speers, Imelda MacMillan, and loyal support of the Society’s tion and to find consensus. He also and six votes against. Michael Robinson and Richard staff. It had been his great privilege thanked the Society’s staff for their Palmer as extraordinary members to serve as president of the Society unstinting efforts throughout the Solicitors Disciplinary Tribunal of the Council representing the and, although it had been difficult past 12 months. The Council noted that the term of Law Society of Northern Ireland. at times, it had been extraordinarily The senior vice-president John office of Frank Daly as chairman of James MacGuill outlined a deci- fulfilling. He recorded his particu- P Shaw and junior vice-president the Solicitors Disciplinary Tribu- sion of the European Court of Hu- lar appreciation for the support and Stuart Gilhooly then took office nal would expire on 30 November man Rights in Michaud v France, fol- commitment of his wife Claire and and expressed their commitment to 2012, as would the terms of office of lowing a challenge to the require- his brother Fred. the Council and the president for nine other members of the tribunal, ment that French lawyers would James McCourt was then formal- the coming year. all having served on the tribunal for report their ‘suspicions’ regarding ly appointed as president. He paid ten years. The Council recorded its possible money-laundering activi- tribute to Mr Binchy for the time, Motion: PII (Amendment) thanks to Mr Daly and to the other ties by their clients. While the court effort and commitment that he had Regulations 2012 tribunal members for their com- had concluded that there had been invested in the role of president. He “That this Council approves the Solici- mitment to the profession and to no violation of article 8 of the Euro- noted, in particular, his involvement tors Acts 1954 to 2011 (Professional the work of the tribunal during that pean Convention on Human Rights, in the conference on the indepen- Indemnity Insurance) (Amend- period. there were interesting aspects of the dence of the legal profession in the ment) Regulations 2012.” judgment that might distinguish the National Convention Centre in Proposed: Stuart Gilhooly Past-president Philip Joyce regime that operated in Ireland. response to the publication of the Seconded: Valerie Peart On the occasion of his retirement Andrew Cody noted that a prac- Legal Services Regulation Bill. This The Council approved the PII from the Council after 19 years of tice note had been issued by the event, which had been addressed (Amendment) Regulations, which re- service, Philip Joyce thanked the Regulation of Practice Committee by leading lawyers from Ireland and duced the period for confirmation Council for their support and col- and the Complaints and Client Re- around the world, clearly demon- to the Society of PII cover from ten legiality over many years. He also lations Committee confirming that, strated Mr Binchy’s desire and abil- working days to three working days. thanked the staff of the Society for where a conveyancing contract had ity to lead. their friendship and assistance dur- been executed before 1 January Mr McCourt said that he wanted Legal Services Regulation Bill ing his year of presidency. 2013, a solicitor could continue to to lead a united and hardworking 2011 act on both sides of a transaction, Council, and he encouraged Coun- The Council approved a report by Report on AGM notwithstanding the new Convey- cil members to debate the issues in Deloitte entitled Oversight and Con- The Council noted that the fol- ancing Conflicts Regulations. a robust and constructive way and, trol Measures for External Regulatory lowing motion had been passed The Council unanimously agreed following informed debates, to Costs for submission to the Depart- at the annual general meeting on that the Society should reiterate its speak with one voice and to move ment of Justice in relation to mea- the previous evening: “It is hereby demand for an independent pub- forward for the greater good of the sures to control the costs of the Le- proposed that regulation 13 (direct lic inquiry into the murder of Mr profession. gal Services Regulation Authority. unsolicited approach to non-client) Patrick Finucane, solicitor. G 50 practice notes Law Society Gazette www.gazette.ie Jan/Feb 2013 briefing Practice notes New Land Registration Rules 2012 gal opinion’ in order to provide for application forms for first regis- The new Land Registration Rules 2012 (SI 483/2012) will come into the opinion of either a practising tration required amendment to force on 1 February 2013. The rules are a consolidation of previous solicitor or practising barrister un- include emphasis on registration Land Registry Rules from 1972 to 2011, but they also contain a revi- der the rules, which formerly made requirements in order to assist sion of some rules. The rules contain Land Registry forms to which they provision for the lodgment of the in a smoother processing of first refer. Some forms have been revised and some have been rescinded and opinion of counsel only. registration applications. Under replaced, and some replaced forms have a new form number. Another change arose as a result the 2009 (no 2) rules, the first Practitioners should check the new rules and forms and familiar- of a working group – comprising registration application Forms 1 ise themselves with them. There is a link to the new rules and forms representatives of the authority, (freehold) and 2 (leasehold) were from the home page of the Property Registration Authority website the Irish Mortgage Council and amended to include the aver- www.prai.ie. the Law Society – that was set up ments previously provided by It is expected that the PRA will have completed its cross referencing to look at the legal, procedural way of an additional affidavit of of form numbers in the new rules by 1 February 2013. and practical issues involved in discovery in Form 16. Rule 15(1) Below, Liz Pope, examiner of titles at the Property Registration Au- enabling electronic registration (b) of the Land Registration Rules thority, gives a brief overview of some of the main changes in the rules of a ‘priority entry’ (that is, the 1972, as amended by rule 9 of for users of Land Registry registration services. registration of an entry that pro- the 2009 rules, stipulates that “all Conveyancing Committee tects a person who has contracted original deeds and all documents to purchase, take a lease of, or to in the applicant’s possession or lend money on the security of a under his control relating to the The Registration of Deeds and Title necessary pursuant to the Land charge on registered land). It was title” should be lodged. The 2009 Act 2006 was enacted on 7 May and Conveyancing Law Reform Act considered that the existing period change was made in order to al- 2006. The main aims of the act 2009 and the Civil Law (Miscella- of protection of 21 days could be low for title to commence with were to restructure and moder- neous Provisions) Act 2011. a major hindrance to the increased the root of title and dispense with nise land registration structures in In addition, information and use of any proposed ‘ePriority En- the necessity to lodge all deeds the State, update and streamline telecommunication technologies try’ facility. The amended rules and document of title, including the law relating to registration of that led to increased efficiencies in now provide for a period of 44 those not necessary to prove title. deeds, and reform the law relating the registration process required days protection on registration and Under the 2012 rules, Forms 1 to the registration of title to land. new rules to provide a sound legal for the entry of an electronic and 2 have been further amended The act provided for the estab- basis for registration. As a result, a ePriority notice. to make provision for the inclu- lishment of the Property Regis- series of interim Land Registration The consultation process also sion in part 3 of the schedule to tration Authority. One of the au- Rules were implemented and, as so informed the Rules Committee’s the forms of a statement of title. thority’s functions under section many additions and amendments view that the Land Registration The statement of title is now in- 10 is to manage and control the have been made, it was both time forms were not easily accessible cluded in the actual application Land Registry and the Registry consuming and laborious for users or user friendly and, as a result, forms rather than as a separate of Deeds. As part of its legislative of Land Registry services to access the forms were amended in light document to be lodged as, in remit, the authority is responsible the rules and forms. Consolidation of feedback received. Forms have many applications for first regis- for ensuring that adequate rules was therefore considered necessary been amalgamated where possible, tration, the statement of title was are in place that legally support an and, while this process was under- and each form now comprises overlooked or, where included, efficient and effective registration way, the Rules Committee took a stand-alone document, all of merely comprised a schedule of of title process. A Rules Commit- the opportunity to revise the rules which will be available online in a deeds and documents. The state- tee was established for that pur- as deemed necessary. format that will be easy to access ment should identify the root of pose, pursuant to sections 48 and and download. Many that were title (and, if the root is an assign- 74 of the 2006 act. Consultation process considered no longer relevant have ment of a leasehold interest or a The 2012 rules are a revision The resulting rules followed from been rescinded and replaced; for conveyance of a fee farm grant, and consolidation of the Land a consultation process that in- example, the numerous application the lease or fee farm grant should Registration Rules of 1972, 1975, volved input from the Law Soci- forms for transmission on death(s) be recited and lodged) and then 1977, 1981, 1986, 2000, 2005, ety’s Conveyancing Committee, that occurred prior to 1 June 1959 trace title to the applicant. Iden- 2006, 2007, 2008, 2009, 2009 (2) together with publication of the have now been replaced by one ap- tification of the root of title can and 2011.They relate solely to proposed consolidation and revi- plication in Form 33. be shown by stating that a speci- registration of title in the Land sion in advance on the Property fied deed is the “root of title” or Registry and were considered Registration Authority website First registration forms that “title commences with” a necessary as a result of the ac- (www.prai.ie). For example, one Practitioners are aware that com- specified deed. Pre-root docu- celeration in the reform of con- particular change came about as a pulsory registration on sale ap- ments should not be listed in the veyancing law arising from the result of this process: the amend- plies in all counties since June statement of title if the title is 2006 act, together with changes ment of ‘opinion of counsel’ to ‘le- 2011. It was considered that the based on a good root. A statement Law Society Gazette www.gazette.ie Jan/Feb 2013 practice notes 51 briefing of title should enable the chief/ A new form has been added to to support the view that an un- to the requirements necessary in examiner of titles in the Land emphasise the difference between encumbered fee simple has been order to establish the acquisition Registry to get a clear picture of an application for first registra- acquired by the applicant and his/ of an easement or profit à prendre the title to the property, including tion based on possession and an her predecessors. Paragraph 2(b) by prescription that is actually ca- any defects in the title. If a good application based on possession of Form 5 is a new addition that pable of registration under section root of title is not available, the over land that is already regis- states the title claimed must be 49A of the Registration of Title Act statement should commence with tered – that is, an application un- set out. If the title is a fee farm 1964. The application Form 68 the available root of title and all der section 49 of the Registration grant or leasehold, full details (previously Form 5A) now brings the title documents in the appli- of Title Act 1964. Form 5 now re- must be shown and, if the title is an applicant’s attention to the cant’s possession or control should lates solely to application for first unknown, the efforts made to es- legal requirements necessary to be lodged. registration and Form 6 to an ap- tablish the title should be fully set establish a prescriptive claim in The Form 3 certificate is an plication in respect of registered out in the averments. paragraph 2. The form has been application for first registration land under section 49. It is in- The authority published an arti- updated to assist practitioners and where the title is certified by a so- tended that this will draw practi- cle in the August/September 2012 applicants in this regard. licitor or adapted as the case may tioners’ notice to an aspect of this Gazette (p30) to draw attention to The revision and consolidation be where legal opinion is relied type of application for first reg- the new form of application for of what was a series of land regis- upon. Initial proposals to include, istration that is often overlooked: the registration of easements and tration rules and the updating and in paragraph 2, reference to an ap- the title against which adverse profits à prendre acquired by pre- amendment of forms will assist plication map that correctly shows possession is claimed must be scription that can be made directly users of Land Registry services by the boundaries of the property shown, together with devolution to the authority. Many difficulties providing easier access to the pro- was removed in light of represen- of title. In many cases in an appli- are being encountered in the pro- cedural requirements for registra- tations by the Law Society’s Con- cation for first registration based cessing of this type of application tion and result in a more efficient veyancing Committee. The dele- on possession, the history of pos- due to the lack of information processing of applications by Land tion of the proposed amendment session only is shown – that is, as being averred in the application Registry staff. They are compat- addressed practitioners’ concerns if the land were already registered form. As a result, the form has ible with e-registration wherever in this regard. – and little or no effort is made been updated to draw attention possible. Mandatory advertising of BER conveyancing COMMITTEE The European Union (Energy Per- dwelling, the construction of the dwelling or, as appropriate, liable on summary conviction to formance of Buildings) Regulations which commences on or after 9 a building other than a dwelling, a class A fine. For the purpose of 2012, contained in SI 243 of 2012, January 2013, or (b) a dwelling shall be displayed in any adver- the regulations, ‘agent’ means any came into operation on 9 January that is in existence on or before tisement in relation to the sale or person who acts for, or represents, 2013. The SI revokes earlier regu- 9 January 2013, and any agent letting of a dwelling or a build- a person who: lations contained in SI 666 of 2006, acting on behalf of such person ing other than a dwelling. • Commissions the construction SI 229 of 2008 and SI 591 of 2008. in connection with such offer- • Section 12(4) provides that the of a new building, Part 3 of the new regulations set ing, shall ensure that the energy issuing authority may publish • Offers a building for sale, or out the requirements in relation to performance indicator of the guidance on how the energy • Offers a building for letting. the production of BER certificates. current BER certificate for the performance indicator may be Section 10 deals with the issue of dwelling is stated in any adver- displayed in an advertisement An agent shall include, in particu- BER certificates for dwellings. Sec- tisements, where such advertise- and on the format it may take. lar but by no means exhaustively, tion 11 deals with the issue of BER ments are taken relating to the • Section 15(1) provides that a estate agents, sales agents, letting certificates for buildings other than sale or letting of that dwelling.” person who contravenes any agents and solicitors. Therefore, dwellings. • Section 12(2) sets out a simi- provision of part 3 of the regula- a vendor or vendor’s agent should Section 12 sets out new require- lar requirement in relation to a tions is guilty of an offence. ensure that BER information is ments for advertising of BER: building that is not a dwelling. inserted into any advertisement re- • “12(1) A person who offers for • Section 12 (3) provides that the Section 32 provides, among other lating to a property for sale or rent, sale or letting (whether in writ- energy performance indicator of things, that a person guilty of an which will include catalogues, bro- ing or otherwise) – (a) a new the current BER certificate for offence under regulation 15(1) is chures, websites, and so on. G

notice: 2013 court conferences Circuit, High and Supreme Court conferences The Circuit Court conference, held the Circuit Court on Friday 19 April auspices of the Committee for on the instruction of the judiciary. under the auspices of the Committee 2013, save on the instruction of the Judicial Studies, will take place on The date of the District Court for Judicial Studies, will take place judiciary. Friday 5 July 2013. No cases should conference, provisionally set for on Friday 19 and Saturday 20 April The 2013 Supreme and High be listed for the Supreme or High Friday 17 May 2013, should be 2013. No cases should be listed for Court conference, held under the Court on Friday 5 April 2013, save confirmed shortly. 52 LEGISLATION UPDATE Law Society Gazette www.gazette.ie Jan/Feb 2013 briefing Legislation update 10 November – 26 December 2012

Details of all bills, acts and statutory instruments since 1997 are on the library catalogue – www.lawsociety.ie (members’ and students’ areas) – with updated information on the current stage a bill has reached and the commencement date(s) of each act. All recent bills and acts (full text in PDF) are on www.oireachtas.ie, and recent statutory instruments are available in PDF at www.attorneygeneral.ie/esi/esi_index.html

ACTS PASSED Credit Union and Cooperation implementing the principle of Fiscal Responsibility Act 2012 Appropriation Act 2012 with Overseas Regulators Act equal treatment between men and Number: 39/2012 Number: 42/2012 2012 women in the access to and supply Makes provision for securing that Appropriates to the proper supply Number: 40/2012 of goods and services, was invalid the rules in article 3 of the Treaty services and purposes sums grant- Amends certain provisions of the with effect from 21/12/2012. This on Stability, Coordination and Gov- ed by the Central Fund (Permanent 1997 and 2001 Credit Union Acts, directive was transposed into Irish ernance in the Economic and Mone- Provisions) Act 1965, makes provi- in particular, to amend the pru- law by the Equal Status Acts 2000- tary Union take effect in the law of sion in relation to deferred sur- dential requirements for credit 2008. The provision declared the State in accordance with para- render to the central fund of cer- unions, to change the governance invalid by the court had allowed graph 2 of that article and that the tain undischarged appropriations requirements for credit unions by an exception from the principle rule in article 4 of that treaty takes by reference to the capital supply removing certain management of equal treatment enunciated in effect in the State. Makes provi- services and purposes as provided functions from boards of directors the directive, so that insurance sion in accordance with article for by s91 of the Finance Act 2004, of credit unions and providing for companies could price insurance 3 of that treaty in relation to a and makes provision in relation to a separate management structure products differently for men and medium-term budgetary objec- the financial resolutions passed by and to improve the oversight and women, where this difference is tive and a correction mechanism. Dáil Éireann on 5/12/2012. general policy functions of such reasonable and supported by ac- Establishes the Irish Fiscal Advi- Commencement: 21/12/2012 boards of directors; to provide for tuarial or statistical data. sory Council and provides for its the restructuring of credit unions Commencement: 20/12/2012 functions. Civil Defence Act 2012 and for stabilisation support to Commencement: Commence- Number: 51/2012 credit unions, to provide for a Europol Act 2012 ment order(s) to be made as per Repeals the Civil Defence Act 2002, fund to be known as the Credit Number: 53/2012 s11 of the act dissolves the Civil Defence Board Union Fund for the purposes of Gives effect to Council Decision and transfers its functions and such restructuring and stabilisa- 2009/371/JHA of 6/4/2009 es- Health and Social Care other responsibilities back to the tion and to provide for levies in tablishing the European Police Professionals (Amendment) Act Department of Defence, where respect of that fund; to amend Office (Europol). Repeals the 2012 they previously lay from when the certain provisions of the Central Europol Act 1997. Extends the Number: 46/2012 organisation was founded in 1950 Bank Act 1942, to provide for application of the Official Secrets Amends the Health and Social Care up until the board was established miscellaneous matters relating to Act 1963 and provides for related Professionals Act 2005 in relation in 2003. credit unions and to provide for matters. to membership of the Health and Commencement: Commence- related matters. Commencement: Commence- Social Care Professionals Coun- ment order(s) to be made as per Commencement: Commence- ment order(s) to be made as per cil, in relation to the recognition s18 of the act ment order(s) to be made as per s21(2) of the act of professional qualifications ob- s2(1) of the act; 19/12/2012 for tained outside the State, includ- Civil Registration (Amendment) ss1, 2, 3 and 5, part 3, part 4, part Finance (Local Property Tax) ing the implementation of certain Act 2012 5, s35 insofar as it relates to items Act 2012 provisions of Directive 2005/36/ Number: 48/2012 59 and 81 of schedule 1 and items Number: 52/2012 EC on the recognition of profes- Amends the Civil Registration Act 59 and 81 of schedule 1 of the act Provides for the imposition of sional qualifications, and provides 2004 so as to extend the catego- (per SI 557/2012) an annual tax, to be called ‘local for related matters. ries of bodies and organisations property tax’, in respect of certain Commencement: Commence- that may apply to the Registrar Equal Status (Amendment) Act residential properties and for the ment order(s) to be made as per General for the registration of 2012 establishment and maintenance s20(2) of the act members of that body or organ- Number: 41/2012 of a register of residential proper- isation to solemnise marriages. At Amends the Equal Status Act 2000 ties in the State by the Revenue Health Insurance (Amendment) present, only the Health Service to provide in Irish law for the man- Commissioners. The household Act 2012 Executive and religious bodies datory introduction within the charge, provided for by the Local Number: 45/2012 can apply for registration. This European Union of unisex pre- Government (Household Charge) Amends the Health Insurance Act act provides for secular bodies, miums and benefits in insurance Act 2011, shall cease to apply from 1994 to ensure that, in the in- as defined in the act, to apply for as from 21/12/2012. This amend- 1/1/2013, subject to the collection terests of the common good and such registration. ment gives effect to the judgment of arrears. across the health insurance mar- Commencement: Commence- in Case C-236/09 of 1/3/2011, Commencement: Commence- ket, access to health insurance ment order(s) to be made as per which found that article 5(2) of ment order(s) to be made as per cover is available to consumers of s10(3) of the act Council Directive 2004/113/EC, s1(2) of the act health services with no differentia- Law Society Gazette www.gazette.ie Jan/Feb 2013 legislation update 53 briefing

tion made between them (whether vetting of persons who seek posi- Commencement: Commence- Commencement: Various com- effected by risk-equalisation cred- tions of employment relating to ment order(s) to be made as per mencement dates, see act for de- its or stamp duty measures or oth- children or vulnerable persons. s1(2) of the act tails; commencement order(s) to er measures, or any combination Currently persons applying for be made as for s13 as per s1(4) of thereof), in particular as regards such positions are vetted on a non- Social Welfare Act 2012 the act the costs of health services, based statutory basis. Number: 43/2012 in whole or in part on the health Commencement: Commence- Gives effect to a range of social Transport (Córas Iompair risk status, age or sex, or frequency ment order(s) to be made as per welfare measures announced in Éireann) and Subsidiary of provision of health services to s1(2) of the act the budget of 5/12/2012, which Companies Borrowings) Act any such consumers. Provides for are due to come into effect in early 2012 risk-equalisation credits to enable Personal Insolvency Act 2012 2013, and a number of miscella- Number: 49/2012 the less healthy, including the old, Number: 44/2012 neous amendments to the social Increases CIÉ’s borrowing pow- to have access to health insur- Provides for the reform of per- welfare code. Provides for the ers for non-capital purposes under ance cover. Provides for a means sonal insolvency law and intro- following: (a) charges in relation the Transport Acts from €107 mil- whereby any overcompensation duces the following new non- to certain pay-related social insur- lion to €300 million. Includes a to registered undertakings arising judicial debt resolution processes, ance contributions, (b) reduction provision allowing CIÉ to charge from such risk-equalisation credits subject to relevant conditions in in the maximum duration of job- any borrowings of the group to shall be repaid, and provides for each case: a debt relief notice, to seeker’s benefit, (c) changes in the property held by it or its subsid- related matters. allow for the write-off of qualify- assessment of income from farm- iaries. Streamlines CIÉ borrow- Commencement: 26/12/2012 ing unsecured debt up to €20,000, ing and fishing for means-tested ing powers into a single enabling subject to a three year supervision social assistance payments, (d) provision for all forms of bor- Houses of the Oireachtas period; a debt settlement arrange- reduction in the monthly rate of rowing undertaken by CIÉ for Commission (Amendment) ment, for the agreed settlement child benefit, (e) reduction in the non-capital purposes. Amends (No 2) Act 2012 of unsecured debt; a personal respite care grant, (f) abolition of the provisions of the Transport Act Number: 50/2012 insolvency arrangement, for the the employer rebate in respect of 1950, the Transport (Reorganisation Amends the Houses of the Oireach- agreed settlement of secured debt statutory redundancy lump-sum of Córas Iompair Éireann) Act 1986 tas Commission Act 2003 in relation up to €3 million and unsecured payments paid to employees, and and the Transport Act 1987 insofar to funding and provides for relat- debt. Reforms the Bankruptcy Act (g) facilitation of the recovery of a as they relate to the borrowing ed matters. 1988, including the introduction greater amount of overpayments powers of CIÉ, Iarnród Éireann, Commencement: 1/1/2013 as of automatic discharge from bank- through weekly deductions from Bus Éireann and Bus Átha Cliath, per s5(3) of the act ruptcy, subject to certain condi- social welfare payments. Changes amends the Minister and Secretaries tions, after three years, in place of to the social welfare code arise (Amendment) Act 2011 and pro- National Vetting Bureau the current 12 years. Provides for mainly as a consequence of the vides for connected matters. (Children and Vulnerable the establishment of an Insolvency Budget 2012 measure to provide a Commencement: 26/12/2012 G Persons) Act 2012 Service to operate the new insol- new structure of reduced rates in Number: 47/2012 vency arrangements and provides the case of contributory pension Prepared by the Provides a legislative basis for the for related matters. schemes. Law Society Library

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     54 legislation update Law Society Gazette www.gazette.ie  Jan/Feb 2013   briefing   One to watch   One to watch: new legislation  Personal Insolvency Act 2012 residence in the State. The debtor arrangement, as the case may be, over a six-year period (with a pos- The Personal Insolvency Act repre- must be insolvent and show no like- • There is no likelihood of the debt- sible one-year extension). A debtor sents a thorough reform of Ireland’s lihood of becoming solvent within or becoming solvent within the may enter into a personal insolven- insolvency laws, providing a mod- the period of three years commenc- period of five years commencing cy arrangement only once. Follow- ernised system addressing the situ- ing on the application date, while on the date on which the state- ing discussions with the debtor and ation of insolvent debtors. Two sig- also maintaining a reasonable stan- ment is made, and that the completion of a prescribed-form nificant changes being introduced dard of living for himself or herself • It is appropriate for the debtor to financial statement, the insolvency are the reduction of the discharge and his or her dependants. A debtor apply for a DSA. practitioner will make an applica- period from 12 years to three years shall not be eligible for a debt relief tion to the Insolvency Service. The and the introduction of three out- notice where 25% or more of his or The Insolvency Service will, if satis- insolvency practitioner will provide of-court debt relief processes. The her qualifying debts were incurred fied that the application is in order, a statement that the information act also introduces a State-run In- during the period of six months end- issue a certificate to that effect and in the debtor’s financial statement solvency Service to operate the new ing on the application date. furnish that certificate, together is correct, that the debtor satisfies non-judicial insolvency arrange- with a copy of the application and all the eligibility criteria, and that ments. Debt settlement arrangements supporting documentation, to the there is no likelihood of the debtor DSAs are available to debtors with appropriate court. The court will becoming solvent in the next five The arrangements unsecured creditors over €20,000. then consider the application and years. The debtor will also provide The 2012 act allows for the follow- Section 49 of the act provides that documentation and either issue a a statutory declaration. The In- ing three forms of non-judicial debt the debtor must apply in writing to protective certificate or hold a hear- solvency Service, if satisfied, will settlement arrangement that allow a personal insolvency practitioner ing to gather further information or then issue a certificate to that ef- (subject to certain conditions) the including details of his financial evidence. A protective certificate fect and forward it, the application write-down or restructuring of both affairs. Following receipt of this in- shall be in force for a period of and any supporting documenta- secured and/or unsecured debt formation, the personal insolvency 70 days, with the possibility of an tion to the appropriate court. The owed by certain eligible individuals: practitioner shall hold a meeting extension of a further 40 days. A court will either issue a protective • Debt relief notices (DRNs), with the debtor. The personal insol- debt settlement arrangement will certificate or hold a hearing to • Personal insolvency arrange- vency practitioner will then advise then be put forward to creditors gather further information or evi-

ments (PIAs) (the only arrange- the debtor of his/her options for for agreement. Creditors represent- dence. The insolvency practitioner ment applicable to securedHealth debt), addressing his/her financial difficul- ing not less than 65% in value of will notify relevant creditors of the and Supportties. The debtor is required to com- the debts due must participate in a protective certificate and proposed  • Debt settlement arrangements plete a prescribed financial state- meeting and approve the DSA for it PIA and seek submissions. If the (DSAs). and Advicement in accordance with section 50 to move forward. If approved, the ar- PIA is approved, it must be sent to for of the act. The personal insolvency rangement will be registered in the the Insolvency Service, who must Debt relief notices Lawyerspractitioner shall then complete a Insolvency Register. A DSA will last notify the appropriate court. Four- The first new non-judicial resolution statement that he/she is of the opin- for five years, and the debtor will be teen days will be allowed for credi- process is the debt relief notice. This ion that: discharged from the debts specified tor objections. If no such objection  applies where a debtor has qualify- • The information contained in in the DSA once it expires. is received or if such objection is ing debts that amount to €20,000 the debtor’s prescribed financial not approved, the court must notify or less. To be eligible for a DRN, the statement if completed and accu- Personal insolvency arrangement the Insolvency Service, which will debtor must have a net disposable rate, This is the final debt settlement register the PIA in the Register of  income of less than €60 per month, • The debtor is eligible to make a resolution process. It is available Personal Insolvency Arrangements, assets or savings worth €400 or less, proposal for a debt settlement ar- to debtors with secured debt up to following which it will come into and be domiciled or have ordinary rangement or personal insolvency €3,000,000 and unsecured debt effect. G      Law Society Gazette www.gazette.ie Jan/Feb 2013 regulation 55 briefing Notice: the high court information on complaints Record no 2012 no 73 SA High Court made on Monday 26 No- In the matter of Christopher Lynch, vember 2012, it was ordered that Information on complaints about solicitors is published in solicitor, practising as Christopher Christopher Lynch, solicitor, shall accordance with section 22 of the Solicitors (Amendment) Lynch & Co, 99 O’Connell Street, be suspended from practice until Act 1994 Limerick, and in the matter of the further order of the court. In relation to complaints received by the Society Solicitors Acts 1954-2011 John Elliot, Registrar of Solicitors, from 1 September 2011 to 31 August 2012 Take notice that, by order of the 27 November 2012 Allegations of misconduct Delay...... 3 Failure to communicate...... 50 Solicitors Disciplinary Tribunal Failure to hand over...... 80 Failure to account...... 70 Reports of the outcomes of Solicitors Disciplinary Tribunal Undertaking...... 1,732 inquiries are published by the Law Society of Ireland as provided Conflict of interest...... 11 for in section 23 (as amended by section 17 of the Solicitors Dishonesty or deception...... 7 (Amendment) Act 2002) of the Solicitors (Amendment) Act 1994 Witnesses’ expenses...... 4 Advertising...... 4 In the matter of Seamus P time specified and the Society’s Other ...... 86 McConnell, solicitor, 56 Glen- letters of 28 September 2010 Counsels’ fees ...... 40 daniel, Tullamore, Co Offaly, and 11 October 2010 in a timely Total...... 2,087 and in the matter of the Solicitors manner or at all, Acts 1954-2008 [6626/DT72/11] c) Failed to comply with the Allegations of inadequate professional services Law Society of Ireland (applicant) direction of the Complaints and Delay...... 98 Seamus McConnell (respondent Client Relations Committee Failure to communicate...... 56 solicitor) issued at its meeting of 4 Shoddy work...... 83 November 2010 to make Other...... 29 On 9 October 2012, the Solicitors payment to the Society of €450 Total...... 266 Disciplinary Tribunal found the in a timely manner or at all. respondent solicitor guilty of Allegations of overcharging misconduct in his practice as a The tribunal ordered that the Conveyancing...... 11 solicitor in that he: respondent solicitor: Probate...... 11 a) Failed to comply with an a) Do stand censured, Litigation...... 39 undertaking furnished to a b) Pay a sum of €550 to the Matrimonial...... 28 named credit union and dated compensation fund, Other...... 11 € 13 December 2007 in a timely c) Pay the sum of 450 to the Total...... 100 manner or at all, Society as directed, Grand total...... 2,453 b) Failed to respond to the d) Pay the whole of the costs of Society’s correspondence and, the Society as taxed by a taxing Number of complaints referred to the Solicitors in particular, the Society’s master of the High Court in Disciplinary Tribunal letters of 4 June 2010 within the default of agreement. Undertakings ...... 101 Dishonesty/deception ...... 1 Conflict of interest...... 1 Counsels’ fees ...... 3 Failure to carry out client’s instructions ...... 3 Failure to comply with direction of Complaints and Client Relations Committee ...... 4 Failure to cooperate with professional indemnity insurers...... 1 Rescinded ...... 2 Total...... 116

Outcome of the investigation of above complaints by the Solicitors Disciplinary Tribunal Misconduct, penalty adjourned...... 1 Censure, €500 fine, €2,000 costs...... 1 Censure...... 1 Censure, €1,000, costs to be taxed in default...... 1

The remaining cases await hearing 56 brief cases Law Society Gazette www.gazette.ie Jan/Feb 2013 briefing Brief cases Judgment abstracts are compiled by the Incorporated Council of Law Reporting and are reprinted with kind permission

company [2011] IEHC 494. proceedings determined within articles 6, 8 and 14. Examinership In re McSweeney Dispensers 1 Ltd reasonable timeframe – constitu- Appeal dismissed (176/2010 – Appointment of tional right of child to be informed SC – 23/2/2012) [2012] IESC 10 examiner – juris- Liquidation – fair procedures – entitlement of D(M) (A Minor) v Ireland diction – proofs Insolvency – fraudulent prefer- child to have views taken into ac- – group of com- ence – mortgage – intention – ap- count – primary right and duty of criminal panies – oppo- plication to declare mortgage void registered parents to ensure consti- Road traffic sition by creditor – receivership – test to be applied – whether com- tutional right of child protected – offence – whether reasonable prospect pany insolvent at time of entering entitlement of State through courts Drink driving – of survival of company – whether into mortgage – whether company to step in where registered parents arrest – grounds underlying business capable of and bank knew company was insol- fail in duty – consideration of expert of arrest – case generating profit – whether ex- vent – whether effect of mortgage evidence in relation to child. stated – whether aminership more advantageous to was to give bank preference over FN v CO (Guardianship) [2004] 4 failure of arresting garda to recite members and creditors as a whole unsecured creditors – whether IR 431; Re Article 26 and the Adop- specific statutory section for arrest – whether interests of employees dominant intention of mortgage tion (No 2) Bill 1987 [1989] IR 656; rendered arrest unlawful – whether relevant – management of com- was to give bank preference over North Western Health Board v HW technical or precise language must pany – whether business badly run unsecured creditors – whether [2001] 3 IR 622; S v S [1983] 1 IR be used – whether arrested person – whether purpose of examinership intention of mortgage to enable 68; Northern Area Health Board v An knew in substance reasons for arrest to save shareholders from unsuc- company to continue trading – evi- Bord Uchtála [2002] 4 IR 252 and – whether sufficient for reasons for cessful investments – whether pur- dence of intention – whether letter N v Health Service Executive [2006] arrest to be conveyed in ordinary pose of examinership to allow ex- indicative of intention of direc- IEHC 278, [2006] IESC 60, [2006] language – evidence – intoxyliser – isting shareholder to retain control tors – whether necessary to show 4 IR 374 considered. Civil Registra- statement – presumption – whether of company – whether threshold dishonesty – whether necessary to tion Act 2004, s22 – Constitution of evidential burden on accused capa- requirement met – alternative pro- show moral blameworthiness. Ireland 1937, arts 40.3 and 42.5. ble of discharge based upon pros- posal – receiver manager – whether Station Motors Ltd v AIB Ltd Declaration that proceedings not ecution evidence, answers given in appointment of receiver manager [1985] IR 756 and Corran Con- proceed without notice to child and cross-examination and statutory to be preferred over examinership struction Company v Bank of Ireland that jurisdiction to direct some- presumptions – whether question – whether opposing creditor con- Finance Ltd [1976 – 1977] ILRM body other than parents to inform in cross-examination posed in gen- sidered that company had reason- 175 followed. In re M Kushler Ltd child (2004/3876P – Laffoy J – eral form admissible – whether re- able prospect of survival – whether [1943] Ch 248 and In re Patrick 23/5/2008) [2008] IEHC 472 buttal of presumption of sufficiency court should exercise discretion and Lyon Ltd [1933] Ch 786 con- Z v Y of statement resulted in deprivation – whether opinion of another sig- sidered. Companies Act 1963, s286. of evidential effect of statement of nificant creditor to be taken into Application refused (2011/ 416 Statute fact therein. account – whether experience of COS – Gilligan J – 14/12/2011) Validity – equality – gender dis- Director of Public Prosecutions v other significant creditor with [2011] IEHC 508. crimination – sexual offences – Mooney [1992] 1 IR 548, Director of examinership and managing re- In re O’Connor’s Nenagh Shop- sexual intercourse with child under Public Prosecutions v Kemmy [1980] ceivership relevant – whether real ping Centre Ltd (in liquidation) 17 years – immunity from prosecu- IR 160 and O’Broin v District Judge prospect that investors could be tion afforded to female children – Ruane [1989] IR 214 followed. Road found – whether appointment of constitutional whether discrimination on grounds Traffic Act 1961, ss49(4) and (6) – receiver manager designed to meet Children of gender constitutionally permis- Road Traffic Act 1994, ss13, 17 and advantage of appointing credi- Paternity – regis- sible – whether discrimination 21 – Road Traffic Act 1994 (Section tor only – whether receivership tration of birth of justified by reason of differences 17) Regulations (SI 326/1999), rules would protect jobs and enterprise minor – claim of of physical or moral capacity or so- 4 and 5. – whether exclusion from examin- paternity – appli- cial function – social policy within Questions answered (201/2007 – ership of some companies in group cation for entry power of Oireachtas – entitlement SC – 6/12/2011) [2011] IESC 46. prejudicial to creditor. of name on registration details of of Oireachtas to have regard to dan- Director of Public Prosecutions v In re Traffic Group Ltd [2007] birth – inquiry into correctness of ger of pregnancy for teenage girls – Ennis IEHC 445, [2008] 3 IR 253; In re registration details – proceedings prosecutorial discretion. Atlantic Magnetics Ltd (in receiver- by registered parents to restrain Michael M v Superior Court of land law ship) [1993] 2 IR 561; In re Gallium inquiry – whether jurisdiction to Sonoma County (1981) 450 US 464 Mortgage Ltd t/a First Equity Group [2009] hear proceedings without child considered; JMcD v PL [2008] Code of conduct IESC 8, [2009] 2 ILRM 11; and being put on notice – refusal of IEHC 96, [2009] IESC 81, [2010] – proceedings for In re Vantive Holdings [2009] IEHC registered parents to inform child 2 IR 199 followed. Criminal Law possession – re- 384, [2010] 2 IR 108 followed. – whether jurisdiction to direct (Sexual Offences) Act 2006, ss3 and payment arrange- Companies (Amendment) Act 1990. someone other than registered 5 – Constitution of Ireland 1937, ment – non-com- Examiner appointed (2011/621 parents to inform child – consti- articles 38.1 and 40.1 – European pliance – application to transfer to COS – Clarke J – 21/12/2011) tutional right of claimant to have Convention on Human Rights 1950, chancery special summons list – no Law Society Gazette www.gazette.ie Jan/Feb 2013 brief cases 57 briefing further repayment arrangement – professions provided to bank by solicitor – fail- documents and circumstances al- decision by lender no right to ap- Medical ure of bank to notify plaintiffs of legedly evidencing conspiracy suf- peal – finding by master plaintiff Professional mis- non-provision of title deeds – ex- ficient to establish prima facie case in breach of code – whether mas- conduct – disci- tent of bank’s duty of care to cus- that conspiracy existed – whether ter correct to refuse to transfer – plinary inquiry tomers – redress from Law Society plain wording of documents in- whether defendant entitled to ap- – fair hearing – limited to five years after service consistent with alleged unlawful peal decision of plaintiff – whether delay of 14 years provided – whether egregious be- purpose – contract – whether na- plaintiff in compliance with code – in making complaint – whether haviour by solicitors – whether ture of dispute grounded in con- whether plaintiff entitled to order substantial unfairness in allowing bank had duty to go behind solici- tract – company law – directors – for possession. matter proceed to full rehearing. tor/client relationship and com- personal responsibility – whether Rules of the Superior Courts 1986 Medical Practitioners Act 2007, s75. municate directly with clients directors assumed personal re- (SI 15/1986), order 38, rule 6 – Appeal allowed (2011/87SP – whether evidence that sale fell sponsibility so as to create special Central Bank Act 1989, s117. – Kearns P – 19/7/2011) [2011] through due to problems with title relationship. Possession refused (2009/ IEHC 352. deeds. James Elliot Construction Ltd v 1550SP – Laffoy J – 30/3/2012) Dr T v Medical Council Ulster Bank v Financial Ser- Irish Asphalt Ltd [2011] IEHC 269 [2012] IEHC 142. vices Ombudsman (unreported, (unrep, Charleton J, 25/5/2011) Stepstone Mortgage Funding Ltd Medical Finnegan P, 1/11/2006) [2006] followed; Taylor v Smith [1991] 1 v Fitzell Nursing – fitness to practise – pro- IEHC 323, Orange v Director of IR 142 and Pacific Associates Inc v fessional misconduct – suspen- Telecommunications [2000] 4 IR Baxter [1990] 1 QB 993 consid- Mortgage sion from register pending hear- 159 and ACC Bank PLC v Fairlee ered. Equity of redemption – foreclo- ing of allegations of professional Properties Ltd [2009] IEHC 45 fol- Direction granted (2010/10074P sure – vesting order – duty on misconduct – jurisdiction – audi lowed. Central Bank Act 1942, ss57. – Charleton J – 13/12/2011) [2011] mortgagee – best price – whether alterem partem – prior participa- Appeal refused (2011/15MCA IEHC 490. position of NAMA similar to that tion – whether statute implied – Hedigan J – 20/7/2011) [2011] Mero-Schmidlin (UK) plc v of traditional mortgagee. meaningful participation by party IEHC 299. Michael McNamara & Co Land and Conveyancing Reform against who order sought during Clark v Financial Ombudsman Act 2009, ss92 and 96 – National consideration process – whether Personal injuries Asset Management Agency Act 2009, statute required higher threshold – Solicitors Fraud – false or misleading evi- ss7, 69, 80, 84, 87, 101, 103, 139, whether threshold met – whether Lien – arbitrator’s award – whether dence – exaggeration – future 145, 152, 153 and 155. public interest in suspending nurse precondition that costs be taxed – care – psychological sequelae – af- Appeal allowed (396/2010 – SC pending hearing – whether right whether making of charging order fidavit of verification – application – 12/4/2011) [2011] IESC 14. to participate – whether obliga- under s3 merely declares right to to dismiss proceedings – test to be Dellway Investments Ltd v Na- tion to give prior notification of charge – whether entitled to party applied – onus of proof – whether tional Asset Management Agency intention to seek suspension – to party or solicitor to client costs. onus of proving applicability of whether statutory section enacted Legal Practitioners (Ireland) Act statutory section fell on defen- Title to prevent immediate danger to 1876, s3 – Arbitration Act 1954, s32 dant – standard of proof – whether Multiple proceedings – whether public – whether fitness to prac- – Arbitration Act 2010, s4. standard of proof for application plaintiff owner of lands – claim tise hearing should have granted Application allowed (2010/120 to dismiss claim for false or mis- that lands purchased from de- adjournment – whether sufficient MCA – Laffoy – 25/7/2011) [2011] leading evidence was proof on the ceased brother – fact of sale con- reason given for non-attendance at IEHC 317. balance of probabilities – whether tested by executor for estate – in- hearing – whether withdrawal un- J&G McGowan Roofing v claim for future care false or mis- junctive proceedings – committal dertaking of nurse not to practise Manley leading – whether claim exagger- to prison for contempt – habeas relevant – whether order for sus- ated – whether false or misleading corpus proceedings – judicial re- pension proportionate – whether TORT evidence adduced where claim for view proceedings – title proceed- disproportionate to suspend nurse Conspiracy future care abandoned – whether ings – testamentary proceedings from general nursing and not sim- Building contract evidence was knowingly false or – reconsideration of title action ply domiciliary midwifery – liberty – subcontrac- misleading – whether plaintiff had despite previous determination to apply – whether appropriate to tor – conspiracy deliberate intention to mislead on issue – absence of document refuse liberty to apply in respect of to deprive sub- – whether sequelae alleged were of title – cheque – principal proof suspension order. contractor of subjectively believed by plaintiff – incapable of acceptance by court Ó Ceallaigh v An Bord Altranais contract monies – application for whether plaintiff was honest wit- – separate lands identified in con- [2000] 4 IR 54 followed. Nurses Act direction – test to be applied – ness – whether Supreme Court tract for sale – inconsistencies – 1985, s44. whether prima facie case made out could interfere with findings of failure to assert ownership – with- Appeal dismissed (202/10 – SC – – whether circumstantial evidence trial of judge in relation to honesty holding of documents – abusive 12/12/2011) [2011] IESC 51. of conspiracy sufficient – whether of plaintiff. conduct by plaintiff. An Bord Altranais v Ó C(A) conspiracy made out as a matter Hay v O’Grady [1992] 1 IR 210 Claim of plaintiff dismissed of probability – whether equally followed. Civil Liability and Courts (2005/2267P, 2008/1443SS, 2008/ Solicitors probable explanation available Act 2004, s26(1) and (2). 1110JR – McKechnie J – Appeal against financial ombuds- – whether acts and declarations Appeal dismissed (201/2006 – 11/6/2010) [2010] IEHC 534. man – whether significant error of alleged conspirators admis- SC – 2/12/2011) [2011] IESC 44. Kennedy v Harrahill or series of errors – title deeds not sible against each other – whether Ahern v Bus Éireann G 58 eurlegal Law Society Gazette www.gazette.ie Jan/Feb 2013 briefing Eurlegal Edited by TP Kennedy, Director of Education The Energy Efficiency Directive Energy efficiency is recognised as tion schemes, energy audits and of occupants. These have to be article 7(10) and (11) of the direc- a valuable means to address the energy management systems are notified to the commission by 31 tive. Such measures include en-

unprecedented challenges fac- all primed to play a role in effi- December 2013, demonstrating ergy or CO2 taxes that have the ing the EU in terms of increased ciency in energy use, along with how they would achieve equiva- effect of reducing end-use energy dependence on energy imports, metering, billing information and lent improvement. In addition, consumption, and they have to be scarce energy resources, climate consumer information. member states have to encourage notified to the commission by 5 change, and the economic crisis. A positive point for the con- public bodies to adopt an energy December 2013. Directive 2012/27 EU on energy struction sector is that member efficiency plan, put in place an Member states are also tasked efficiency establishes a common states are required to establish a energy management system and, with promoting the availability to framework of measures to ensure long-term strategy to mobilise where appropriate, use energy all final customers of high-quality that the EU reaches its 2020 20% investment in the renovation of service companies and energy energy audits that are cost ef- target on energy efficiency. It also the national stock of residential performance contracting to fi- fective, carried out by qualified amends Directives 2009/125/EC and commercial buildings, both nance renovations. and/or accredited experts, and (ecodesign for household wash- public and private. Among other Purchasing by public bodies implemented and supervised by ing machines) and 2010/30/EU things, the strategy is to guide in- is another focus area. Member independent authorities under (energy labelling for household vestment decisions of individuals, states are obligated to ensure that national legislation. They have to refrigerating appliances) and, on the construction industry, and fi- central governments purchase establish transparent and non-dis- a staged basis, repeals Directives nancial institutions. The strategy only products, services and build- criminatory minimum criteria for 2004/8/EC (cogeneration) and has to be published by 30 April ings with high energy-efficiency energy audits based on annex VI 2006/32/EC (energy end-use ef- 2014 and updated every three performance, with reference to of the directive, as well as develop ficiency and energy services). years. From 1 January 2014, 3% annex III of the directive. The programmes to encourage SMEs Dated 25 October 2012, the di- of the total floor area of heated obligation relates to contracts to undergo energy audits and im- rective follows on from the com- and/or cooled buildings with a having a value equal to or greater plement their recommendations. mission’s Energy Efficiency Plan total useful floor area over 500m2, than the thresholds laid down in Member states are called on to de- 2011, which confirmed that the owned and occupied by central article 7 of Directive 2004/18/EC velop programmes to raise aware- EU is not on track to meet the government, must be renovated (public procurement). Exception ness among households about the 2020 20% target, despite progress each year to meet at least the is made for contracts of the armed benefits of audits and to encour- in the area. minimum energy performance forces in certain circumstances. age training programmes for the The directive defines energy requirements set in relation to Regional and local-level public qualification of energy auditors. efficiency as “the ratio of output article 4 of Directive 2010/31/ bodies are encouraged to follow Enterprises that are not SMEs of performance, service, goods or EU (energy performance of the ‘exemplary role’ of central are subject to an audit by 5 De- energy, to input of energy” and buildings). The total floor area government. cember 2015 and every four years requires each member state to set threshold becomes 250m2 from 9 An energy efficiency obligation subsequently from the date of the its own indicative national energy July 2015. Central government is scheme must be set up by each previous energy audit. Those that efficiency target, which will be re- defined as “all administrative de- member state. The scheme has implement an energy or environ- viewed by the commission by 30 partments whose competence ex- to ensure that energy distribu- mental management system are June 2014. Energy itself is defined tends over the whole territory of tors and/or retail energy sales exempted, provided the manage- as “all forms of energy products, a member state”. Member states companies that are designated as ment system includes an energy combustible fuels, heat, renewable may require the renovation obli- obligated parties by the member audit based on annex VI. energy, electricity, or any other gation to apply to administrative state achieve a cumulative end-use It falls to the member states, form of energy, as defined in ar- departments below central gov- energy savings target by 31 De- insofar as it is technically pos- ticle 2(d) of Regulation (EC) no ernment. Exceptions to the reno- cember 2020. The amount of en- sible, financially reasonable, and 1099/2008 on energy statistics”. vation requirement are provided ergy savings required of each ob- proportionate regarding potential The measures outlined to achieve for officially protected buildings, ligated party is expressed in terms energy savings, to ensure that fi- the targets may be examined in buildings serving national defence of either final or primary energy nal customers for electricity, natu- terms of “efficiency in energy use purposes, and places of worship. consumption. Member states will ral gas, district heating, district and efficiency in energy supply”. By 31 December 2013, mem- publish annually the energy sav- cooling and domestic hot water To bolster the framework, the ber states have to establish and ings achieved by each obligated are provided with competitively directive also sets out horizontal publish an inventory of heated party or subcategory of obligated priced individual meters that re- provisions. and/or cooled central govern- party. As an alternative to setting flect actual energy consumption ment buildings having the above up such an energy efficiency ob- and time of use. Where final Efficiency in energy use floor-area thresholds. As an alter- ligation scheme, member states customers do not have smart me- Renovation of buildings, public native, member states may take may take other policy measures ters – as referred to in Directives bodies’ buildings, the purchas- other cost-effective measures, to achieve energy savings among 2009/72/EC (internal electricity ing approach of public bodies, as including deep renovations and final customers – however, they market) and 2009/73/EC (inter- well as energy efficiency obliga- measures for behavioural change must meet the criteria set out in nal gas market) – by 31 December Law Society Gazette www.gazette.ie Jan/Feb 2013 EURLEGAL 59 briefing

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2014, billing information has to cogeneration and efficient district By 30 June 2015, an assessment between landlord and tenant. be accurate and based on actual heating and cooling. The assess- of energy efficiency potentials Importantly, member states have consumption. Bills, billing infor- ment has to be updated and no- of network infrastructure has to to facilitate the establishment of mation for energy consumption, tified to the commission every be undertaken by member states financing facilities, or use of ex- and consumption data received five years. Where the potential and concrete measures and invest- isting ones, for energy efficiency by final customers have to be free demonstrates that benefits ex- ments for introduction of cost-ef- improvement measures. They of charge. Member states are ex- ceeds costs, member states are fective improvements identified. may also set up an Energy pected to take appropriate mea- required to take adequate mea- Efficiency National Fund. sures to promote and facilitate sures for development of efficient Horizontal provisions efficient use of energy by small district heating and cooling infra- The horizontal provisions of the Next steps energy customers, including do- structure and/or high-efficiency directive concern not only avail- To help foster practical imple- mestic customers. cogeneration and use of heating ability of qualification, accredita- mentation of the directive at lo- and cooling from waste heat and tion and certification schemes by cal, national and regional levels, Efficiency in energy supply renewable energy sources. 31 December 2014, but also wide the commission is tasked with Efficiency in energy supply is The provisions on energy dissemination of information and establishing an online platform to couched in terms of promotion of transformation, transmission and promotion of training initiatives. support exchange of experiences, efficiency in heating and cooling, distribution, among other mat- Furthermore, promotion of the benchmarking, networking, and as well as energy transformation, ters, call on the national energy energy services market and ac- innovative practices. Save for cer- transmission and distribution. regulatory authorities to have due cess for SMEs to this market is tain exceptions set out in article Regarding promotion of ef- regard to energy efficiency when demanded. Model contracts for 28, deadline for transposition of ficiency in heating and cooling, performing regulatory tasks de- energy performance should in- the directive into national law is in addition to adopting policies, scribed in Directives 2009/72/EC clude the items listed in annex 5 June 2014. G by 31 December 2015, member and 2009/73/EC. Moreover, net- XIII of the directive. Other mea- states have to notify the commis- work regulation and tariffs have sures to promote energy efficien- Diane Balding is a member of the sion regarding the potential for to fulfil the energy efficiency cri- cy are called for, for example, in Law Society’s EU and International the application of high-efficiency teria in annex XI of the directive. relation to the split of incentives Affairs Committee. 60 eurlegal Law Society Gazette www.gazette.ie Jan/Feb 2013 briefing Recent developments in European law criminal rights of defence had been respect- any retention of the possibility for the right to a retrial in the issuing Case C-399/11, Melloni, ed, as he had been aware from the the executing judicial authority to member state. That follows from opinion of Advocate General outset of the forthcoming trial. He make that surrender conditional on observance of the principles of pri- Bot, 2 October 2012 had deliberately absented himself the conviction being open to review macy of EU law and its uniform In 1996, a Span- and appointed two lawyers to rep- in order to guarantee the rights of and effective application within the ish Court held resent and defend him. They acted, the defence of the person con- member states. The level of protec- that Stefano in that capacity, at first instance cerned, in circumstances such as tion of fundamental rights must be Melloni could be and in the appellate proceedings, those in the present case. The ad- fixed not in the abstract, but rather surrendered to thus exhausting all remedies. The vocate general also considered that in a manner adapted to the require- Italy to be tried final court of appeal in Spain asked the provision is compatible with the ments connected with the objec- there. When he was released on the CJEU whether the Framework right to a fair trial and observance tives to be attained by the EU. In bail, he fled and could not be found. Decision on the European Arrest of the rights of the defence recog- order to achieve the objective of In 1997, the Italian court gave no- Warrant (2002/584) and surrender nised by the Charter of Fundamental the construction of an area of free- tice to his lawyers and then pro- procedure precludes the Spanish Rights of the EU. The provision lays dom, security and justice, the EU ceeded to try the case. He was sen- courts from making the surrender down the conditions in which the has sought to increase the mutual tenced to ten years’ imprisonment of Melloni conditional on the right person concerned must be deemed confidence between the member for bankruptcy fraud. In 2004, the to have his conviction reviewed. to have waived, voluntarily and un- states by approximating the laws Italian Supreme Court of Cassation Advocate General Yves Bot pro- ambiguously, his right to appear at of the member states concerning dismissed the appeal lodged by his posed that the court answer in the his trial, so that he cannot claim the the rights of individuals in criminal lawyers. He was arrested in Spain, affirmative. He looked to the word- benefit of a retrial. Article 53 of the proceedings in order to facilitate where he argued that he should not ing of the provision but also the charter also provides that it is not and accelerate judicial cooperation. be surrendered to Italy. He argued objectives pursued by it. The EU to adversely affect human rights The EU wished to protect funda- that, under Italian procedural law, it had provided an exhaustive list of recognised by the member states’ mental rights without undermining is impossible to appeal against sen- the situations in which the execu- constitutions. That provision can- the effectiveness of the European tences imposed in absentia. In Sep- tion of a European arrest warrant not be relied on to give primacy arrest warrant mechanism, avoid- tember 2008, a Spanish court au- issued in order to enforce a decision to national constitutional law over ing a situation where procedural thorised his surrender to the Italian given in absentia must be regarded the framework decision and thus to guarantees are used only in order authorities to serve his sentence. as not infringing the rights of the make the execution of a European to place oneself outside the reach The Spanish court held that his defence. This in incompatible with arrest warrant conditional upon of the law. G

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For further details contact our Events Team on (01) 672 4918 or email: [email protected] Law Society Gazette www.gazette.ie Jan/Feb 2013 Professional notices 61 notices Recent developments in European law wills Rates Carroll, Peter (deceased), late of Cartonkelly, Fevagh, Dysart, Co Roscommon. Would any Professional notice rates person having knowledge of a rates in the Professional notices section are as follows: will (or documents relating to a • Wills – €147 (incl VAT at 23%) will) made by the above-named • Title deeds – €294 per deed (incl VAT at 23%) deceased, who died on 29 Sep- Employment/miscellaneous – €147 (incl VAT at 23%) tember 2012, please contact Fair • & Murtagh, Solicitors, Society Highlight your notice by putting a box around it – €33 extra Street, Ballinasloe, Co Galway; DX 62002 Ballinasloe; tel: 09096 All notices must be paid for prior to publication. Cheques should be made 50000, email: aoifebl@fair-mur- payable to Law Society of Ireland. Deadline for March Gazette: 13 February 2013. For tagh.ie further information, contact the Gazette office on tel: 01 672 4828 (fax: 01 672 4877) Dorgan, Sheila (deceased), late of 26 Clare Road, Drum- Court, Glanmire, Cork. Would Kildare. Would any person hav- Moore, Kevin (deceased), late condra, Dublin 9, and formerly any solicitor holding or having ing knowledge of a will made by of McGiff’s Cross, Moydow, of St Clare’s, Griffith Avenue, knowledge of a will made by the the above-named deceased, who Kenagh, Co Longford, and for- Dublin 11. Would any person above-named deceased, who died died on 31 May 2012, please merly at 2 Newbury Park, Clon- having knowledge of a will made on 25 October 2012, please con- contact Thomas A Walsh & Co, shock, Dublin 17, who died on by the above-named deceased, tact HG Donnelly & Son, Solici- Solicitors, 23 James Street, 20 October 2012. Would any who died on 2 November 2011, tors, 5 Duke Street, Athy, Co Kilkenny; tel: 056 776 4355, person having knowledge of the please contact Gerard Hanley, Kildare; reference: RP/KIR012-3 email [email protected] whereabouts of a will executed by solicitor, Frank Buttimer & Com- the above-named please contact pany, Solicitors, 19 Washington French, Eleanor (deceased), Kelleher, Kathleen (Cath- Hugh J Campbell & Co, Solici- Street, Cork also known as Elsie or Ellen, erine), late of Cahersherkin, tors, of Shannon House, Custume late of Ironhills, Suncroft, Co Ennistymon, Co Clare; Ennis, Place, Athlone, Co Westmeath; Farrell, Joseph (orse Joey) (de- Co Clare and New York, who tel: 090 647 2015 ceased), late of 30 Dooley’s Ter- died on 25 September 2012. race, Athy, Co Kildare, and latter- Would any person having knowl- O’Brien, Elizabeth (deceased), ly of St Vincent’s Hospital, Athy, CAL Ltd edge of the whereabouts of a will late of 127 Botanic Avenue, Co Kildare. Would any solicitor Testing Laboratory executed by the above-named Glasnevin, Dublin. Would any holding or having knowledge of deceased on or after 1 October person having knowledge of a a will made by the above-named Independent Verification 2004 please contact M Petty & will made by the above-men- deceased, who died on 7 May of Drug Analysis Co, Solicitors, Parliament Street, tioned deceased, who died on 17 2012, please contact HG Don- Dr. Jack Bloomfield Ennistymon, Co Clare; tel: 065 January 2012, please contact John nelly & Son, Solicitors, 5 Duke 01 2360755 / 087 2502148 707 1445, fax: 065 707 1785, O’Brien, Moortown, Oldtown, Street, Athy, Co Kildare; refer- email: [email protected] Co Dublin ence: RP/FAR015-1 Email: [email protected] www.cal.ie O’Toole, Annie (née Mur- Fleming, Martin (deceased), Criminal Defence Cases Meagher, Michael (de- ray) (deceased), late of St John’s late of Laharn, Lombardstown, ceased), late of 46 Kinvara Ward, Ely Hospital, Wexford, Co Co Cork, and latterly of St Road, Navan Road, Dublin Wexford and, prior to that, 16 Stephen’s Hospital, Sarsfield 7, who died on 2 Novem- Whiterock View, Wexford, Co LONDON SOLICITORS ber 2012. A retired Guin- Wexford, who died on 8 Novem- will be pleased to advise on UK ness employee. Would any ber 2012. Would any person hav- matters and undertake agency work. person having knowledge ing knowledge of any will execut- Is your client interested of the whereabouts of any ed by the above-named deceased We handle probate, litigation, will made by the above- (or documents relating to a will) in selling or buying a matrimonial and property. named deceased person executed by the above-named 7-day liquor licence? Cubism Law (ref Angela Robbins), 116-118 Chancery Lane, please contact Joan Meagh- deceased please contact Boland If so, contact Liquor London WC2A 1PP. er, tel: 087 231 9207, email: & Co, Solicitors, Patrick’s Court, meagherjoan9@hotmail. Patrick Street, Kilkenny; tel: 056 Licence Transfers DX 477 London/Chancery Lane. Tel: 44 207 831 0101. com; or Francis Downes and 776 3434, fax: 056 776 5003 Contact Fax: 44 207 831 0001. Co, 57 Blessington Street, Dublin 7; tel 01 830 7587, Quirke, Martin (deceased), late 0404 42832 Email: angela.robbins@ cubismlaw.com. fax: 01 8303872 of Flat 1, 5 St Vincent Street, Dublin 7 in the county of Dub- 62 Professional notices Law Society Gazette www.gazette.ie Jan/Feb 2013 notices

lin, who was born on 26 Septem- title deeds and dwellinghouse with the yard Date: 1 February 2013 ber 1951 and died on 1 October In the matter of the Landlord backhouse and garden in the Signed: Joanne Kangley, Solicitors 2010. Would any person having and Tenant Acts 1967-2005 and rear thereof and attached to the (solicitors for the applicants), Anne knowledge of any will executed in the matter of the Landlord said house or tenement situate, Street, Bailieborough, Co Cavan by the above-named deceased and Tenant (Ground Rents) (No lying and being at Main Street please contact Mairead Mori- 2) Act 1978 and in the matter of in the town of Bailieborough, In the matter of the Landlord arty of KOD Lyons, Solicitors, 4 an application by John Finegan townland of Tanderagee, bar- and Tenant (Ground Rents) Act Arran Quay, Dublin 7; tel: 01 872 and Philomena Finegan ony of Clankee and county of 1967-2005: notice of intention 3944, email: mairead.moriarty@ Take notice that the applicants, Cavan. Held under indenture of to acquire fee simple (section kodlyons.ie being the persons entitled un- lease for three lives renewable 4) – an application by Whitfield der the above-mentioned acts, forever dated 10 October 1854 Limited (the applicant) Roantree, Seamus (deceased), propose to apply to the county and made between Sir John Notice to any person having any late of Sunhill, Killorglin, Co registrar in the county of Cavan Young of Bailieborough Castle interest in the freehold interest Kerry (formerly of Rathgar and to purchase the fee simple in the in the county of Cavan, baronet, of the following property: all that Dartry in Dublin 6/14), who died property described in paragraph member of parliament for the and those the lands more particu- on 20 November 2011. Would no 1. Any party asserting that said county of Cavan, and Hen- larly described in and demised by any person having knowledge of they hold a superior interest in ry Maxwell of Bailieborough in an indenture of assignment dated the whereabouts of any will made the said property are called upon the county of Cavan, subject to 29 October 2002 and made be- by the above-named deceased to furnish evidence of title to the a yearly rent of £15. tween John Agar of the first part please contact Sherry McCaffrey, below-named within 21 days from 2. Particulars of applicants’ fee and the applicant of the second Solicitors, 2 Green Park, Orwell the date of this notice. In default farm grant: the applicants hold part and therein described as all Road, Rathgar, Dublin 14; tel: 01 of any such notice being received, a conversion fee farm grant in- that and those the ground floor 496 2184, mobile: 087 919 8097, the said applicants intend to pro- terest in the said property un- of the premises known as 133A email: [email protected] ceed with the application before der the said indenture of lease Morehampton Road, Donny- the said county registrar for such for three lives renewable for- brook, situate in the city of Dub- Sherlock, Thomas (deceased), directions as may be appropriate ever dated 10 October 1854 lin, consisting of a lock-up shed, late of 31 Verschoyle Court, off on the basis that the person or and made between Sir John shed premises and more particu- Mount Street, Dublin 2, who died persons beneficially entitled to Young of Bailieborough Castle larly delineated and described on on 2 November 2012. Would any all superior interests up to and in the county of Cavan, baronet, the map annexed to an indenture person having knowledge of a will including the fee simple in the member of parliament for the of assignment dated 10 March executed by the above-named de- property are unknown and unas- said county of Cavan, and Hen- 1995 and between Comhlucht ceased please contact Wilkinson certained. ry Maxwell of Bailieborough in na hÉireann um Árachas CPT of & Price, Solicitors, South Main 1. Description of land to which the county of Cavan, whereby the one part and John Agar of the Street, Naas, Co Kildare; tel 045 this notice refers: all that and the lands and hereditaments as other part and thereon outlined 897 551 those the tenement messuage therein described. in blue.

job-seekers’ legal register vacancies For Law Society members seeking a solicitor position, For Law Society members to advertise for all their full-time, part-time or as a locum legal staff requirements, not just qualified solicitors Log in to the members’ register of the Law Society Visit the employment section on the Law Society website, www.lawsociety.ie, to upload your website, www.lawsociety.ie, to place an ad or CV to the self-maintained job seekers contact employer support by email on register within the employment [email protected] section or contact career or tel: 01 672 4891. You support by email on can also log in to the members’ [email protected] or area to view the job seekers tel: 01 881 5772. register. Law Society Gazette www.gazette.ie Jan/Feb 2013 Professional notices 63 notices

Now known as 133A More- 2) Act 1978 and in the matter of Take notice that OCS Proper- In default of any such notice hampton Road, Donnybrook, an application by OCS Proper- ties Limited, being the company being received, the said OCS Dublin 4. ties Limited, whose registered now holding the said property as Properties Limited intends to Take notice that the applicant, office is at First Floor, Fitzwil- a yearly rent since the expiration proceed with the application be- being the party entitled to the ton House, Wilton Place, Dub- of the said renewal lease dated fore the said county registrar at lessee’s interest under the lease, lin 2 14 July 1934, intends to apply the end of 21 days from the date intends to submit an application Any person having any interest in to the county registrar for the of this notice and will apply to the to the county registrar for the city the fee simple estate or any inter- city of Dublin for the acquisition said registrar for such directions of Dublin for the acquisition of mediate interest in all and singu- of the fee simple estate and all as may be appropriate on the basis the freehold interest and all inter- lar the hereditaments and prem- intermediate interests in the said that the person or persons ben- mediate interests in the aforesaid ises situate at the corner of Earl property, and any party claiming eficially entitled to all superior property, and any party asserting Place (formerly Nelson’s Lane) that they hold the fee simple or interests up to and including the that they hold a superior inter- and Sackville Place (formerly any intermediate interest in the fee simple in the said property are est in the aforesaid property are Tuckers Row) in the parish of aforesaid property is called upon unknown and unascertained. called upon to furnish evidence of Saint Thomas and city of Dublin, to furnish evidence of their title Date: 1 February 2013 title to the aforementioned prop- known or formerly known as 6 thereto to the under-mentioned Signed William Fry (solicitors for the erty to the solicitors for the appli- Earl Place (and now forming part solicitors within 21 days from the applicant), Fitzwilton House, Wilton cant, details of which are provided of the rear of Clery’s, O’Connell date of this notice. Place, Dublin 2 below, within 21 days from the Street, Dublin, department store), date of this notice. held under a lease dated 6 June recruitment In default of such notice being 1835 from John McDonnell and received, the applicant intends to Eleanor Duff to Peter Purcell for proceed with the application be- 31 years from 29 March 1835, fore the county registrar for the subject to the yearly rent of £250, NOTICE TO THOSE PLACING city of Dublin for directions as with the right of renewal thereof RECRUITMENT ADVERTISEMENTS IN may be appropriate on the basis of for successive periods of 31 years THE LAW SOCIETY GAZETTE the person or persons beneficially until the expiration of 999 years entitled to the superior interest from 25 March 1754, the last including the freehold reversion renewal of which said lease was in the above premises are un- a renewal lease dated 14 July Please note that, as and from the August/September known or unascertained. 1934 from Charles Ryan, Alice 2006 issue of the Law Society Gazette, NO recruitment Date: 1 February 2013 Stephenson, John Philip Purcell advertisements will be published that include references to Signed: Eugene F Collins (solicitors McDonnell, Randal Vivian years of post-qualification experience (PQE). for the applicant),Temple Chambers, McDonnell, Patrick McDonnell, 3 Burlington Road, Dublin 4 Arthur Edward Cronin, Mary A Cronin and Christina M Burke The Gazette Editorial Board has taken this decision based In the matter of the Landlord to Clery and Company Limited on legal advice, which indicates that such references may be and Tenant Acts 1967-2005 and for 31 years from 25 March 1928, in breach of the Employment Equality Acts 1998 and 2004. in the matter of the Landlord subject to the yearly rent of £250 and Tenant (Ground Rents) (No (now equivalent to €317.43). Are you getting your e-zine?

The Law Society’s e-zine is the legal newsletter of the solicitors’ profession. The e-zine issues once every two months and brings news and information directly to your computer screen in a brief and easily-digestible manner. If you’re not receiving the e-zine, or have opted out previously and would like to start receiving it again, you can sign up by visiting the members’ section on the Law Society’s website at www.lawsociety.ie. Click on the ‘e-zine and e-bulletins’ section in the left- hand menu bar and follow the instructions. You will need your solicitor’s number, which is on your 2010 practising certificate and can also be obtained by emailing the records department at: [email protected]. 64 captain’s blawg Law Society Gazette www.gazette.ie Jan/Feb 2013

wild, weird and wacky stories from legal ‘blawgs’ and media around the world Hold your horses A woman has been convicted of driving without due care and attention as she carried her husband in the boot of their car while he led a horse through Athy town, the Carlow Nationalist reports. Heather Josiah (29), of Ardrew Court, Athy, Co Kildare, admitted the offence before Judge Desmond Zaidan at Athy District Court, who was so surprised by the evidence that he asked Inspector Jim Doyle to repeat it. The judge said that the “unusual” incident, which occurred on Fortbarrington Street in Athy on 20 March 2012, was like something from 1890. Gardaí who approached Josiah’s Peugeot 406 at the front of a long line of slow traffic were equally Sticks and stones may break my bones... surprised to see her husband The use of insulting language legislation will be changed to 16-year-old holding up a placard sitting in the open boot, leading will no longer be illegal in cases remove the word ‘insulting’. that said “scientology is a a horse by a rope. Gardaí brought in which a specific victim cannot The push to change section dangerous cult”. the horse to the family home. be identified, The Guardian 5 of the act followed a series Christian and secular Judge Zaidan said the situation reports. of headline-grabbing arrests campaigners had complained could have “gone horribly wrong” The Public Order Act covers and prosecutions, ranging from the clause had been used by if one of the queuing drivers had speech and writing on signs and an Oxford student asking a police as a ‘catch-all’ offence to honked their car horns. states: “A person is guilty of an police officer: “Do you realise arrest people on trivial matters. The judge convicted Josiah of offence if he uses threatening, your horse is gay?” – which It will continue to be illegal to the road traffic offence and fined abusive or insulting words or Thames Valley Police described use insulting language when a her €400 for driving without due behaviour.” In a climbdown by as homophobic and “offensive victim is clearly identifiable, care and attention. the British government, the to people passing by” – to a however. Pixie the parrot pinched Easter Island eggs on Chile A Dublin man who tried to steal a Easter Island, a Pacific paradise landscape, is a Unesco World €2,000 parrot who entertains a Co only 164 square km in size, has Heritage site. Discovered by a Meath village has been given a choice seen demonstrations in recent Dutch ship on Easter Sunday of donating €200 to charity or face a months. The indigenous Rapa 1722, it was annexed by Chile conviction and fine of €500 at Navan Nui – the Polynesian name for in 1888. Almost 4,000km from District Court, RTÉ reports. the island and people – assert Santiago, or five hours’ flight, Conor Grall, from Portland Row, that Chile has robbed them of it attracts more than 65,000 Dublin 1, pleaded guilty to two their ancestral lands. tourists every year. charges – one of theft of the bird According to the Guardian The Rapa Nui have made and the second relating to criminal Weekly and Le Monde, they repeated appeals to the damage of a birdcage in Dunshaughlin are threatening to declare international community, on 13 December. chain to the outside wall of the shop. independence and lodge demanding that Chile upholds The court had heard that the The defendant admitted that he a complaint against the human rights. “We could ask to accused had stolen Pixie, an eight- already had Pixie sold when he government at the international become part of Polynesia, which year-old African Grey parrot, from the stole him, as he knew someone Court of Justice in The Hague. is closer,” says Leviante Araki, street where he normally perched but who wanted the bird. The case is The island, famous for the the speaker of the Rapa Nui was caught shortly afterwards. Pixie’s due back before the court early in moai (its mysterious giant assembly, “given that Chile has cage is now secured with a lock and February. heads), beaches and volcanic not fulfilled its obligations.” Keane McDonald is an executive search fi rm focusing on legal appointments. We specialise in the recruitment of high calibre legal professionals both in Ireland and overseas. Applicants are assured the utmost confi dentiality and discretion when working with us. Opportunities

Senior Associate/Partner – Asset Finance, Dublin Our Client, a highly respected Irish law fi rm, has an opening for a Senior Asset Finance Lawyer. You will have extensive experience in asset fi nance, leasing, structured cross border fi nancing and securitisation transactions including the acquisition, fi nancing, sale and leaseback of aircraft, ships and rail equipment. Relevant experience from a leading Irish or International law fi rm is essential. This is a superb opportunity for an ambitious Lawyer to take on a lead role in a fast paced, globally focused environment and truly make their mark in the fi eld of asset/aircraft fi nance. Banking Solicitor, Dublin Our Client, a leading law fi rm is seeking a banking solicitor to join their highly regarded team. The role will entail a mix of mainstream banking work and capital markets transactions. The successful applicant will have achieved excellent academic grades and will have gained solid banking experience within the banking department of a leading law fi rm either in Ireland or overseas. Insolvency Solicitor, Dublin Our Client, a top law fi rm has an opening for an experienced Insolvency Solicitor. The successful applicant will specialise in insolvency, corporate recovery and enforcement matters. In particular, you will advise on liquidations and receiverships. You will also assist with litigation matters arising out of the corporate recovery practice including offences under the Companies Acts, injunctive relief, and bankruptcy. Top 20 fi rm experience a preference. Competition Lawyer, Dublin Our Client, an expert in the fi eld of competition law, requires an experienced Lawyer to provide expert legal advice on all aspects of EU, Competition and Regulatory matters, including merger control, cartel and dominance cases, public procurement law, state aid rules, competition law audits and compliance, competition litigation and sectoral regulation. The ideal candidate will have solid experience in the fi eld from a leading Irish or International law fi rm and will have impressive academics. This is a superb opportunity to join a dynamic environment, which offers huge variety in work and excellent career prospects Litigation Solicitor, Dublin Our Client, a top law fi rm, is actively seeking an experienced litigator to join their dedicated white-collar crime unit. This is a unique opportunity for a good litigator to specialise in the rapidly expanding fi eld of corporate crime and fraud litigation. Relevant experience is preferred but not essential. Impressive academics and strong commercial litigation experience from a top 15 fi rm are a prerequisite. IP/IT Lawyer, Dublin Our Client, a top law fi rm, is actively seeking an experienced IP/IT Lawyer to join their growing team. The successful applicant will have top glass academic grades Fitzwilliam Business Centre and will be a qualifi ed Solicitor with experience in advising clients on technology 77 Sir John Rogerson’s Quay transactions and IP matters. Excellent negotiation and drafting skills are required. Dublin 2 This role offers a very attractive salary and benefi ts as well as a genuine opportunity to fast track your career. Tel: +353 18415614 To apply for any of the above vacancies, interested applicants should Fax: +353 16401899 contact Yvonne Kelly in strict confi dence on +353 18415614 or email your CV to [email protected]. Web: www.keanemcdonald.com For a comprehensive list of our vacancies visit our website at Email: [email protected] www.keanemcdonald.com www.benasso.com Remaining the number one Irish legal recruitment consultancy takes a dogged determination, thinking creatively, spotting new opportunities and keeping an open mind

www.benasso.com Remaining the number one Irish legal recruitment consultancy takes a dogged New Openingsdetermination, thinking creatively, spotting new opportunities and keeping an open mind

Private Practice Banking - Associate to Senior Associate: First rate law fi rm seeking a strong Banking lawyer with Newexposure to SPVs. YouOpenings will be involved in a range of transactions acting on behalf of both domestic and international clients. Commercial Litigation – Associate: Central Dublin practice is looking for a strong practitioner with an Privateexcellent litigation Practice background. Commercial Litigation - Associate to Senior Associate: Strong practice with a client base ranging Bankingfrom SMEs -to Associate international to companies Senior requiresAssociate: litigators First with rate commercial law fi rm seeking litigation a strongexpertise. Banking lawyer with exposureOur to clients SPVs. You are will currently be involved searching in a range for of candidatestransactions acting for the on behalffollowing of both positions: domestic and internationalCommercial clients. - Senior Associate: A signifi cant Dublin practice is searching for excellent candidates with commercial nous coupled with the enthusiasm and drive to develop a fi rst rate client base. Commercial Litigation – Associate: Central Dublin practice is looking for a strong practitioner with an excellentCorporate litigation Finance background. – Assistant to Senior Associate: Leading Dublin practice requires a high calibre lawyerAircraft to deal with Finance: corporate Assistantadvisory work to includingSenior Associatemergers and acquisitions, joint ventures, management Commercialbuy outs, reverse Litigation takeovers and- Associate debt and equityto Senior fi nancings Associate: as well as Strong advising practice on fl otations with a client and fundraisings. base ranging from SMEsAsset to internationalManagement companies and Investmentrequires litigators Funds: with commercial Assistant litigation to Senior expertise. Associate EU/Competition - Assistant: Our client is a fi rst class legal practice whose client base includes prestigious Commercialpublic service and - Senior private Associate:sector organizations A signifi operatingcant Dublin both practice in the isdomestic searching market for excellent and internationally. candidates withYou commercialwill beBanking: a Solicitor nous coupledorAssistant Barrister with thewithto Seniorenthusiasm excellent Associate exposure and drive to to EU develop and Competitiona fi rst rate client Law, base. gained either in private practice or in-house. CorporateCorporate: Finance Assistant – Assistant to Senior to Senior Associate Associate: Leading Dublin practice requires a high calibre lawyerFunds to - deal Assistant/Associate: with corporate advisory Top work ranking including law fi rmmergers requires and excellent acquisitions, Funds joint specialists ventures, at allmanagement levels. You buy outs, reverse takeovers and debt and equity fi nancings as well as advising on fl otations and fundraisings. will adviseCommercial investment managers,Insurance custodians, Litigation: administrators Assistant and toother Associate service providers of investment funds on EU/Competitionestablishing operations - Assistant: in Ireland. Our client is a fi rst class legal practice whose client base includes prestigious publicFundsEnergy service - Assistant and & privateNatural to Senior sector Resources: organizationsAssociate Associate: operating International both to law Seniorin fi therm recentlydomestic Associate established market and in internationally.Dublin is searching You willfor ambitiousbe a Solicitor commercially-minded or Barrister with excellentpractitioners exposure with strong to EU exposure and Competition to investment Law, funds. gained either in private practice or in-house. Employment: Associate to Senior Associate Funds - Assistant/Associate: Top ranking law fi rm requires excellent Funds specialists at all levels. You willIn advise HouseFinancial investment Regulation: managers, custodians, Assistant administrators to Associate and other service providers of investment funds on establishingSenior Legal operations Advisor: in Ireland. Our client is searching for a senior solicitor or barrister with expertise in equity FundscapitalIT/IP: markets, - Assistant Assistant corporate to Senior fito nance, Senior Associate mergers Associate and : International acquisitions law or generalfi rm recently corporate established practice in advising Dublin is Irish searching or UK forlisted ambitious companies. commercially-minded practitioners with strong exposure to investment funds. TelecomsIP: Assistant - Junior Solicitor or Barrister: Our client is searching for a junior solicitor or barrister to work with a growing team. You will be dealing with a variety of Telecoms related matters. This is a new role Inwhich HouseInsolvency/Restructuring: requires strong people skills and Assistantbusiness acumen. to Senior Fluency Associate in Spanish is an essential pre-requisite. Senior Legal Advisor: Our client is searching for a senior solicitor or barrister with expertise in equity capitalPartnershipProject markets, Finance:corporate fi nance, Assistant mergers to andSenior acquisitions Associate or general corporate practice advising Irish or UK listed companies. Our clients include the leading Irish law fi rms. Signifi cant opportunities exist in the following practice areas and a Telecomsclient Regulatory/Compliance:following - Junioris not essential. Solicitor or Barrister:Associate Ourto Seniorclient is Associatesearching for a junior solicitor or barrister to workEmployment with a growing ; Funds team.; Insolvency You will ; Litigation be dealing ; Regulatory/Compliance with a variety of Telecoms ; Environmental related matters. & Planning This is a new role which requires strong people skills and business acumen. Fluency in Spanish is an essential pre-requisite. Partnership ForOur more clients information include on the these leading or other Irish vacancies, law fi rms. please Signifi cant opportunities exist in the following practice areas and a visitclient our websitefollowing or iscontact not essential. Michael Benson bcl solr. in strict confiEmployment dence at: Benson ; Funds & Associates,; Insolvency Suite ; Litigation 113, ; Regulatory/Compliance ; Environmental & Planning The Capel Building, St. Mary’s Abbey, Dublin 7. T +353 (0) 1 670 3997 E [email protected]

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