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LAW SOCIETY On the cover LAW SOCIETY Starsky and Hutch were always

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Editor: Mark McDermott. Deputy editor: Dr Garrett O’Boyle. Designer: Nuala Redmond. Editorial secretaries: Valerie Farrell, Laura Wipfler. For professional notice rates (lost land certificates, wills, title deeds, employment, miscellaneous), see page 69.

Commercial advertising: Seán Ó hOisín, 10 Arran Road, Dublin 9; tel: 01 837 5018, fax: 01 884 4626, mobile: 086 811 7116, email: [email protected]. Printing: Turner’s Printing Company Ltd, Longford.

Editorial board: Stuart Gilhooly (chairman), Mark McDermott (secretary), 54 Michael Kealey, Mary Keane, Aisling Kelly, Patrick J McGonagle, Ken Murphy.

2 www.lawsociety.ie CONTENTS LAW SOCIETY GAZETTE NOVEMBER 2008

Get more at lawsociety.ie PROFESSIONAL NOTICES: send your small advert details, with payment, to: Gazette Ofﬁ ce, Blackhall Place, Dublin 7, tel: 01 672 4828, or email: [email protected]. Gazette readers can access back issues of the ALL CHEQUES SHOULD BE MADE PAYABLE TO: LAW SOCIETY OF IRELAND. magazine as far back as Jan/Feb 1997, right up to the current issue at lawsociety.ie. COMMERCIAL ADVERTISING: contact Seán Ó hOisín, 10 Arran Road, Dublin 9, tel: 01 You can also check out: 837 5018, fax: 884 4626, mobile: 086 811 7116, email: [email protected] • Current news • Forthcoming events, including CPD seminar HAVE YOU MOVED? Members of the profession should send change-of-address (three hours’ group study) on management details to: IT Section, Blackhall Place, Dublin 7, or to: [email protected] and professional development, 12 December, Subscribers to the Gazette should send change-of-address details to: Blackhall Place Gazette Ofﬁ ce, Blackhall Place, Dublin 7, or to: [email protected] • Employment opportunities • The latest CPD courses HOW TO REACH US: Law Society Gazette, Blackhall Place, Dublin 7. … as well as lots of other useful information Tel: 01 672 4828, fax: 01 672 4877, email: [email protected]

FEATURES COVER STORY: 26 Call for backup! Irish firms show a mixed attitude to safeguarding their data, but there are compelling reasons for regularly backing up important files so that information can be quickly and easily recovered. Gordon Smith tests the safety net Saving for a rainy day 30 As the economic climate changes, so do the challenges of managing your finances. David Rouse looks at some of the issues and provides food for thought about the sound management of your personal finances The best will in the world 34 Not every child dissatisfied with the terms of a parent’s will has a cause of action pursuant to section 117 of the Succession Act 1965. Rita Considine points out some important things to remember Balance of probabilities 38 In the first of two articles on legal liability for hospital- 34 acquired infections, Rody O’Brien examines the concept of causation and relevant British case law Bending over backwards 42 It is commonly believed that the Labour Relations Commission’s Code of Practice on Access to Part-time Work is not legally binding. Though true in theory, the reality is quite different. Colm O’Connor assesses your flexi-time request Hail to the chief 46 As CEO of the Courts Service for almost ten years, PJ Fitzpatrick has overseen the transformation of the system into a modern, 21st century organisation. The Gazette spoke to him in advance of his retirement

The Law Society of Ireland can accept no responsibility for the accuracy of contributed articles or statements appearing in this magazine, and any views or opinions expressed are not necessarily those of the Law Society’s Council, save where otherwise indicated. No responsibility for loss or distress occasioned to any person acting or refraining from acting as a result of the material in this publication can be accepted by the authors, contributors, editor or publishers. The editor reserves the right to make publishing decisions on any advertisement or editorial article submitted to this magazine, and to refuse publication or to edit any editorial material as seems appropriate to him. Professional legal advice should always be sought in relation to any specific matter. Published at Blackhall Place, Dublin 7, tel: 01 672 4800, fax: 01 672 4877. Email: [email protected] Law Society website: www.lawsociety.ie 46

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he central thesis of Mici Mac Gabhann’s book, Rotha Mór an tSaol, is the extraordinary cycle of events in life. It has indeed been a short year, which T commenced with the focus on our profession’s dealing with the banking sector and finished with international concern with the banking system itself. This simply serves to remind us to keep all of life’s challenges in perspective. One of the most rewarding aspects of having served as president is to have observed that, however difficult individual practitioners find their personal situation at Like the allegorical duck, much of this work is “In much the this especially arduous time, the overall response has invisible, but having had the opportunity of observing been to seek to manage the difficulties in a sensible the paddling at first hand, I want to thank all our same way as and calm fashion and, critically, to be solicitous for personnel on your behalf. we are taken the welfare of our clients. While the profession is The Society also benefits from the entirely frequently and, by and large, unfairly criticised – it voluntary work of the members of committees and for granted appears for our very existence – almost no credit is the Council itself. We all know how difficult practice institutionally, given to us for the role we play in helping our clients has been in the last 12 months, and I would like to and our community at difficult times. We understand pay particular tribute to those involved, who have not there is a that our duties of confidentiality prevent us from alone stuck the course, but in fact raised their game at danger that we, claiming credit that is rightfully ours. However, I feel this difficult time. we should have a collective pride in the good work A real strength in our system is the emphasis on as a profession, that our profession has done to date, and this sense of teamwork, but also the rotation of officers. With might take pride should embolden us in working in the national you, I look forward to a new and dynamic leadership interest in the challenging times ahead. taking office as you read this article. for granted In much the same way as we are taken for Finally, on the basis that níl aon tinteáin, mar the wonderful granted institutionally, there is a danger that we, as do thinteáin féin, we all need the support and a profession, might take for granted the wonderful encouragement of those closest to us. I would like personnel that personnel that are employed by the Society. In the to thank my colleagues in Co Louth, my own office, are employed course of my year as president, I not only had the my family and particularly Conor and Lisa for opportunity of seeing at first hand the wonderful work their patience, understanding and encouragement by the Society” being carried out by our team, but also of seeing the throughout the year. arrangements in place in other jurisdictions. I can say, An bhfuil cead agam dul amach anois? G hand on heart, that in every respect, the Law Society of Ireland holds its own internationally – and in many James MacGuill areas is the clear market leader. President

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Send your news to: Law Society Gazette, Blackhall Place, Dublin 7, or email: [email protected]

CARLOW In the election that followed, The Carlow Bar Association Julie Doyle (MOP) was elected held a successful seminar to the council, together with recently on family law case John Geary (DJ Synott) and management, with the county Grainne Whelan (Frank Ward registrars for Carlow (Patricia and Co). Also re-elected were: Casey) and Wexford (Marie Keith Walsh, Alma Sheehan, Garahy) explaining the new 2008 John Glynn, Paddy Kelly, case progression rules. Eamonn Shannon, Claire O’Regan and John Hogan. WEXFORD Michael Sheil, a practitioner That doyen of style and in Blackrock, won the coveted elegance, bar association At the Practice Management Task Force seminar ‘Changing the traditional ‘Award for Excellence’. It methods of practice for increased proﬁ tability’ in the Horse and Jockey, president Helen Doyle, recently Thurles, on 8 October were (l to r): Philip Joyce (Law Society Past- is understood that a special organised a night at the newly- President), M Nolan and Patricia Gleeson (Thurles) presentation will be made to opened Wexford Opera House, Michael at a later date. where 24 colleagues were for the manner in which it had itself, which seeks to preserve Recent DSBA seminar entertained by The Minds of announced the revision of the county boundaries for court offerings on the new VAT Sulphur. I’m not sure whether District Court No 3 boundaries areas”. rules and on solicitor/executor CPD points were on offer, but without prior consultation. trustees were held recently at I’m told by Helen (a leading In his outgoing address, Pat DUBLIN well-attended events. Justin member of the Opera House O’Connor reiterated this The DSBA has a new president, McKenna organised a seminar board) that it was a very criticism and indicated that but no more of that. Over in which Finola O’Hanlon enjoyable night. some limited success had been 100 colleagues attended the spoke on taxation issues to The county registrars from recorded – although the threat recent AGM, with the other Dun Laoghaire colleagues. Wexford and Carlow will still remained. In particular, new officers elected being John Paddy Kelly and his practice continue their road show on the he felt that the decision to P O’Malley (vice-president), management committee have new family law case management close the District Court venue Helene Coffey (secretary), been working on providing a rules, while the Property in Charlestown and move it Stuart Gilhooly (treasurer) and trilogy of seminars, the first Registration Authority will into Co Sligo was “perverse, Geraldine Kelly (programme of which will take place on update members on the effects illogical, irrational and, above director). Pauline O’Donovan the afternoon of Thursday of compulsory registration, now all, contrary to the clearly-stated has stepped down after several 13 November and Thursday that the county has joined that policy of the Courts Service years’ service to the association. 4 December in Fitzwilliam select bunch. Hall, Fitzwilliam Place, Dublin 2. Anyone interested should DONEGAL The contributor of the ‘Nationwide’ column, contact Maura at dsba.ie. Congratulations to Brian NEW DSBA Kevin O’Higgins, has been elected as the Michael Quinlan’s presidency McMullin and his wife Julie, PRESIDENT new president of the DSBA following its ended recently, but not before who completed the ‘Galway Bay recent AGM. Kevin has been on the DSBA he was able to host a dinner 10’ – a charity ten-mile run/ council since the mid 1990s and served as for District Court President walk in aid of Cancer Care West. its secretary for many years. He has also Miriam Malone and several of Brian is hoping to organise a been an elected member of the Council of her colleagues. It will be my conveyancing-related seminar the Law Society and has chaired a number great pleasure, now that Michael shortly. of its committees. has passed the baton, to host a Based in Blackrock, he runs a busy similar dinner for all the Dublin- MAYO general practice and is a regular contributor based High Court and Circuit Dermot Hewson is the new to the Gazette. Kevin says: “I am thrilled Court judges, including several president of the Mayo Bar and honoured at the privilege to serve my litigation practitioners. G Association. At a well-attended colleagues in Dublin!” AGM, Dermot succeeded We extend our sincere congratulations ‘Nationwide’ is compiled by Kevin Pat O’Connor. There was to Kevin on his election. O’Higgins, principal of the Dublin criticism of the Courts Service law ﬁ rm Kevin O’Higgins.

www.lawsociety.ie 7 LAW SOCIETY GAZETTE NOVEMBER 2008 NEWS ADR – ‘lawyers taking responsibility’ PIC: LENSMEN

At the recent CPD Focus/Legal Aid Board conference on ADR in family law matters were (l to r): Hilary Coveney, Eugene Davy, Ken Murphy (Law Society director general), Attracta O’Regan, Moling Ryan (chief executive, Legal Aid Board), Mrs Justice Catherine McGuinness, Kevin Liston, Paul Gallagher (attorney general), Richard Sharp, Anne Colley (chairperson, Legal Aid Board), John McDaid, Joe Maguire, Geoffrey Shannon and Sinead Kearney (chairman, Family Law Committee)

lternative dispute support issues. She stressed that, dispute resolution and that MacGuill, director general Aresolution (ADR) is about while lawyers did not directly bargaining can be a relatively Ken Murphy, Legal Aid Board people, client choice and participate in the mediation cooperative process when chairperson Anne Colley and lawyers taking responsibility, process, the FMS took the both parties seek a solution chief executive Moling Ryan said Attorney General Paul approach that people attending that is mutually beneficial, but all reiterated the Society’s and Gallagher SC at a recent mediation were entitled to get confrontational when each side the board’s commitment to conference on ADR in family legal advice contemporaneous seeks to prevail over the other. developing a culture where law matters. The conference with attending mediation. She gave the very practical ADR is regarded as the was jointly hosted by the Law Eugene Davy spoke about example of the possibility of norm, and where adversarial Society and the Legal Aid the potential for an adapted negotiating agreements that proceedings are seen as a last Board on 9 October 2008. mediation model to seek have the effect of minimising resort or relevant only for a Patricia Mallon, who chairs to address perceived power tax liabilities – something that is relatively small number of cases. the Association of Collaborative imbalances between the parties. far more difficult to achieve in The Law Reform Practitioners, Joe Maguire the context of confrontational Commission’s draft report and Richard Sharp, a solicitor Structured negotiation bargaining or contested court on ADR, which includes a from Britain, spoke about process proceedings. chapter on family law; recent the collaborative model and The need for a ‘structured’ Circuit Court case progression how their own considerable negotiation process was the First letter rules; and a new family law experience had led them away focus of Kevin Liston’s talk. Judge Petria McDonnell, who code of conduct issued by the from the ‘winner takes all’ He pointed out that while the has a strong background in Law Society’s Family Law mentality towards a process conduct of family law cases mediation but only came to Committee are other building where clients come up with the is heavily regulated when family law with her appointment blocks towards a scenario options and the solutions. divorce or judicial-separation to the bench last year, reminded where most family law clients Polly Phillimore from the proceedings are instituted, there attendees of the damage that are given meaningful, non- Family Mediation Service is a complete absence of process can be done by that first letter adversarial options for dispute (FMS) spoke about the ongoing where court proceedings are not to the client’s spouse. It was resolution. There is, however, relevance of mediation and, taken. important to make that letter as a considerable distance to go in particular, its capacity to Rosemary Horgan reminded non-confrontational as possible, to give real meaning to the address issues such as child-care the conference that negotiation she said. Attorney General’s words arrangements and financial is the fundamental form of Law Society President James referred to at the outset.

8 www.lawsociety.ie NEWS LAW SOCIETY GAZETTE NOVEMBER 2008 Regulation to relocate from Blackhall ith effect from 1 WDecember 2008, all of the Law Society’s regulatory activities will be based, not in Blackhall Place, but in modern office premises nearby. Earlier this year, the Council of the Law Society decided unanimously that such a move would have major benefits both for the profession and the public that it serves. The Society has taken a lease on a newly-constructed office premises in George’s Place, which is on the northern side of Smithfield and some three or four minutes walk from the gates of Blackhall Place. The reasons for, and results of, the move will be: • All of the staff and activities of the Society’s Regulation Department will operate from a different location, with a different address, The Blackhall Place premises is full to capacity from the rest of the Society’s representative and the move of continuing management and efficiency of • A sufficient number of educational activities, which professional development to the Regulation Department consultation rooms will exist will remain in Blackhall rented accommodation have from being based in a single in the new premises. Place. only temporarily eased the location in modern premises, • Meetings of the Society’s problem. rather than physically Law Society President James three main regulatory • This situation was separated, as it has been, over MacGuill said “Major changes committees – the Regulation anticipated by the Society two separate sections of the in the regulation of the of Practice Committee, for some time and, 18 building in Blackhall Place. solicitors’ profession are due the Complaints and Client months ago, architects were • The Society has a chronic in the course of 2009. First Relations Committee and engaged to assess the office shortage of meeting rooms and foremost it is expected the Professional Indemnity accommodation requirements at present. However, the that, in the course of next Insurance Committee – of a move of the Regulation Regulation Department’s year, legislation will be passed will all be held in the new Department. They assessed move will have a transforming to create the new role of premises and not in Blackhall the departmental requirement effect in freeing up space Legal Services Ombudsman, Place. at 1,200 square metres. for meeting rooms and for and the ombudsman will, • The ever-increasing internal • Ever since the acquisition members’ use generally in in fact, be appointed and and external demands on the of the Benburb Street site, Blackhall Place. commence operations. The Society – in connection with there has been a tentative • The relocation of the arrival also, with effect a solicitors’ profession that plan to move the Regulation Society’s regulation function from 1 January 2009, of a has doubled in size in a little Department to occupy part away from Blackhall Place non-lawyer majority on the over a decade – have resulted of an office development will more clearly demonstrate Society’s Complaints and in an expansion of staff that would be constructed the reality that already Client Relations Committee numbers to a point where on that site. However, for exists, namely that the is another major change. In the Blackhall Place premises a number of reasons, not Society’s regulatory decision- preparation for these very is full to capacity. Necessary least the major downturn in making in all individual significant changes in the additional recruitment has the economy, this plan has cases is conducted today, level of external oversight and become impossible due to become impracticable in the as it has been for many involvement, it is necessary lack of accommodation. short term. decades, separately from to develop new, separate and • The establishment of the • There will be obvious the Society’s discharge of its modern premises for the Law School in Cork and benefits to the internal representational role. Society’s regulatory function.”

www.lawsociety.ie 9 LAW SOCIETY GAZETTE NOVEMBER 2008 NEWS

HEALTH ADVICE AND SUPPORT FOR LAWYERS MENTAL ILLNESS, ALCOHOL ADDICTION AND RECOVERY hristina (not her real name) family or social life and yet you LawCare’s document, An Cis a LawCare client who is in cannot change your behaviour, then Alcoholic in the Firm, includes a recovery from alcohol addiction. you have an alcohol problem. The sample office policy statement After contacting LawCare for prevalence of denial is evidenced and partnership agreement help two years ago, she has in the fact that 45% of calls to that make it clear that alcohol successfully detoxified and LawCare about alcohol problems does not mix with the practise has been attending Alcoholics are secondary referrals – that is, of law. There is much to be said Anonymous (AA) daily for some they come from a colleague or for operating a ‘dry’ office and time. She is enthusiastic and family member rather than the making staff aware that it is not determined in her recovery, and impaired lawyer. This compares appropriate for them to drink confident about her future. with 15% of other cases. during their lunch break, or at any Unfortunately, a job offer with a An alcoholic who has recognised time when their performance at small firm was suddenly withdrawn and acknowledged his or her work might be compromised. when she told them about her problem is a rare beast. Employers Remember that the candidate former problems with alcohol. recognise. No one wants to admit wary of offering a position to a who has addressed and The senior partner defended his they are alcoholic, and many recovered alcoholic should bear overcome their addiction has change of heart by explaining that people will clutch at straws as in mind that they could easily shown considerable strength even AA says “once an alcoholic, they deny the problem: “I don’t and unknowingly then offer it to and bravery, especially in an always an alcoholic.” drink spirits” or “I only drink at a drinking alcoholic instead, with environment where socialising “That may well be true,” weekends” are common excuses. far more serious consequences – invariably means alcohol. Their Christina countered, “but it As a general rule, if alcohol is heavy drinkers rarely advertise the former problems with alcohol doesn’t mean I’ll be drinking. causing problems in your career, fact on their CV. do not have any bearing on their Surely the strength of character ability to do their job, but their I’ve shown in beating my addiction determination and courage do. must count for something.” ABOUT LAWCARE Lawyers who have had good Christina’s potential employer LawCare is an advisory and support service to help lives and successful careers is by no means unique in being solicitors, their staff and their immediate families to deal can return to that state given wary of alcoholism and unsure with health problems such as depression and addiction and the right motivation, treatment about the facts but, in reality, related emotional diffi culties. The service is free and and support. Don’t waste all those who have admitted and entirely confi dential. the time and money that has addressed their problem are far For totally confi dential, non-judgemental help, ring freephone been invested in progressing less of a risk than those who their careers by running away attempt to hide their growing 1800 991 801 from the issues facing them addiction. (9am – 7.30pm weekdays and 10am – 4pm – face them honestly and Alcoholism is an illness that at weekends/bank holidays, 365 days a year. work with the lawyers towards is both difficult to define and Web: www.lawcare.ie Email: [email protected] achieving and maintaining their difficult for the addicted lawyer to recovery. G

Criminal legal aid scheme – retention of name on panel he Department of Justice, to have their name retained on are available on the Revenue’s apply online for a tax clearance TEquality and Law Reform the panel(s) for the panel year website, www.revenue.ie. You certificate do not apply to has advised that a solicitor beginning on 1 December should contact your local solicitors who are employees. who wishes to have his/her 2008 must apply to the Revenue district office for an On receipt of your certificate, name retained on the Criminal Revenue Commissioners for a application form (TC1). it should be forwarded to the Legal Aid Panel(s) beyond 30 new TCC. relevant county registrar(s). November 2008 must submit to Applying for a TCC through the relevant county registrar(s) a Applying for a TCC in writing Revenue’s online application NB: No fees under the Criminal tax clearance certificate (TCC) Local Revenue districts now facility Justice (Legal Aid) Regulations with an expiry date later than 30 deal with the processing of This facility is to be found shall be payable to a solicitor November 2008. written applications for TCCs. at Revenue’s website address who accepts an assignment to A solicitor whose TCC The contact names, addresses at www.revenue.ie. The a case if his/her name is not, at has an expiry date on or before and telephone numbers of arrangements that have been the time of assignment, on the 30 November 2008 and wishes the relevant Revenue districts introduced to allow taxpayers to relevant solicitors’ panel.

10 www.lawsociety.ie NEWS LAW SOCIETY GAZETTE NOVEMBER 2008

NEW SCOTTISH CEO ‘Poor professional performance’ – The Law Society of Scotland has named Ms Lorna Jack as Medical Council can investigate its new chief executive. She will take up her new post on number of significant shifted the balance in favour 4 January 2009. She replaces A changes to the manner of transparency and public departing chief executive in which the Medical Council accountability. Douglas Mill, who has headed can deal with complaints about The provision for public up the society for the past 11 doctors have been introduced inquiry has caused concern years. by the Medical Practitioners among medical practitioners Ms Jack returns to Scotland Act 2007, writes JP McDowell. that media coverage and after spending six years The act was commenced by access to hearings may have a in Boston as president of the Minister for Health and damaging effect on a doctor’s the Americas for Scottish Children on 1 July last. reputation – regardless of Development International, The new act introduces the the outcome of the inquiry. part of Scottish Enterprise. additional ground of ‘poor Until inquiries are carried out professional performance’. In under the new legislation, it is NWCI’S NEW CHAIR the past, it was the function difficult to predict the number The National Women’s of the Fitness to Practise of inquiries that will be held Council of Ireland (NWCI) has Committee (FTPC) to assess in public, as it will depend on announced the appointment complaints and decide if the each individual case and on of Maura Butler as the new complaint was serious enough the attitude of the FTPC to chairperson of the NWCI. to necessitate inquiry. Whereas serious or otherwise, will be applications to hold proceedings Maura is course manager previously complaints were considered by the council and, in private. In each case, the in the Education Centre at assessed on the grounds of if necessary, dealt with under its committee will have to balance Blackhall Place, Dublin. ‘professional misconduct’ and complaints procedures. public interest and questions of Maura is a graduate of NUIG ‘unfitness to engage in the Further, inquiries before the fairness and privacy in respect of in arts and law and qualiﬁ ed practise of medicine by reason Medical Council’s FTPC will the parties involved. as a solicitor in 1985. She of physical or mental disability’, now be conducted in public, The act also provides a practised as a criminal court complaints will now be assessed unless the medical practitioner further remedy of resolving advocate for 11 years and on additional grounds, including concerned, or a witness about complaints through mediation lectured in criminal law and ‘poor professional performance’. whom personal matters may or other informal means. It will employment law at third level Formerly, ‘professional be disclosed, requests that take time to measure the success for eight years. She received misconduct’ was defined as all or part of the hearing be of this legislation. One thing an MSc IT in Education from conduct that was disgraceful and conducted in private. The is certain – this legislation will TCD in 2004. dishonourable or represented previous legislation effectively mean that the council and its a serious falling short of the provided that all inquiries would complaints process will be more CPD HOURS COMPLETED? standards expected. be held in private unless the driven by a lay/public interest With only a few weeks left in With the addition of ‘poor medical practitioner requested and will be more transparent the current cycle (ending 31 professional performance’, any an inquiry to be held in public. in the manner in which it deals December 2008), practitioners falling short at all, whether The new act has therefore with complaints. should ensure they have completed their CPD hours. This year’s cycle requires PROFESSIONAL NOTICE RATES ten hours’ CPD, three of which must be management s a result of the budget’s From that date, the new rate for stays at €33. and professional skills. Full AVAT-rate change from professional notices will be as It should be pointed out that details are available at www. 21% to 21.5%, the new rate for follows: professional notices can only lawsociety.ie under the ‘CPD professional notices published • Lost land certificates: €144 be considered for publication scheme’ section, or email: in the Gazette from 1 December (incl VAT at 21.5%) if they are accompanied by [email protected], or to 31 December 2008 will be • Wills: €144 (incl VAT at payment. Cheques should be tel: 01 672 4802. €139. 21.5%) made payable to: Law Society of Please note that, from 1 • Title deeds: €144 (incl VAT Ireland. RETIREMENT TRUST January 2009, the Gazette’s at 21.5%) We would like to sincerely SCHEME professional notice rates will • Recruitment/miscellaneous: thank all members of the Unit prices: 1 October 2008 increase by 4%, in line with €144 (incl VAT at 21.5%). profession and those clients Managed fund: €4.572758 the price inflation index, as who advertised with us during All-equity fund: €1.051323 notified by the director of The optional extra of adding 2008. We look forward to your Long-bond fund: €1.380476 finance of the Law Society. a box-highlight to your notice continued custom in 2009. Cash fund: €2.892122

www.lawsociety.ie 11 ADVERTISEMENT Eugene F. Collins Solicitors CASE STUDY ne of Ireland’s leading law office. “I do a lot of litigation practices, Eugene F. Collins work meaning I can spend Solicitors provides clients quite some time waiting in Owith a broad range of legal courts for cases to be heard. services. The firm is committed to Traditionally in the past I partner involvement in managing would have returned to the each client’s legal requirements and office to large chunks of emails providing a quality service with a in my inbox waiting to be solutions-driven commercial approach. actioned and it would take some considerable time to go EFC’s expertise covers a wide range through them all. Now that I of practice areas and the firm’s focus have mobile email I can actually at all times is to work with clients and be productive during this not simply for them. Such an ethos waiting time and respond or led EFC to assess client accessibility forward emails as necessary. It to partners and associates which in also reduces stress levels to a Terry Leggett of Eugene F. Collins Solicitors turn led to the deployment of a number certain extent as you feel using Vodafone Mobile Broadband of Vodafone BlackBerrys and mobile more in control of your handsets across the firm. workload,” added Terry. company has launched a new “Since we began using mobile email, The firm also works with international Tailoring Tool that will advise small accessibility is clearly one of the major clients and would liaise with client business customers on the best price benefits of this technology. It means contacts overseas and in many cases plan and deliver mobile services that our clients have access to us if we are in different time zones. “I travel quite meet the specific and unique needs out of the office and we can contact a bit with work and would spend of each business and generate real colleagues and barristers when time in airports and transit lounges savings for SMEs. we are away from our desks,” said waiting for flights and as we work “There is no one-size-fits-all solution Terry Leggett, Litigation Partner with with international clients I can receive for SMEs as no two businesses are Eugene F. Collins. emails at any time of the day or night. the same. To survive in today’s Again it comes back to accessibility economic climate, small businesses The nature of certain practice areas of and I can use this down time usefully need to be agile and cost sensitive – the firm means some partners spend to respond to emails. It also means businesses want their suite of mobile a large part of the time outside the that should an urgent matter arise I plans honed to suit the specific am in a position to address it at any needs of their organisation and their time, despite not being at my desk,” usage monitored so that they know concluded Terry. they will always be on the right price plan,” said Eavann Murphy, Head of Business Marketing at Vodafone Tailor-made to fit Ireland. your business The new tailoring tool is an innovative savings calculator that is customer Vodafone Ireland introduces new focused and allows Vodafone to tailoring tool for small business respond more accurately to customer customers. usage patterns. In today’s economic climate SMEs are increasingly more cost sensitive “The savings calculator enables and there is a growing need for Vodafone to take a systematic and businesses to become more agile in-depth look at a SME customer’s when it comes to managing costs. account over a three month To assist businesses in doing so period that will drill down into the Vodafone Ireland has introduced complexities of multiple users on Eavann Murphy, Vodafone Ireland Head an innovative enhancement to its voice; data; text; international and of Business Marketing and Adrian Wireless Office Plus proposition to roaming add-ons and advise on Copeland, Louis Copeland & Sons tailors, make it easier for business customers the best tariff for that customer,” launching Vodafone’s new Tailored Tariffs to control their mobile bills. The continued Murphy. NEWS LAW SOCIETY GAZETTE NOVEMBER 2008 Justice minister congratulates Society on ‘very progressive approach’

arm and extended praise ALL PIX: JASON CLARKE PHOTOGRAPHY Wfor “the very progressive approach taken by the Law Society” on a range of issues was a striking feature of the speech given by Minister for Justice, Equality and Law Reform Dermot Ahern at a parchment ceremony in Blackhall Place on 23 October 2008. In addition to acknowledging that both the Society and the profession had been “completely transformed” for the better since he had “taken solicitors’ exams in this very hall back in the 1970s”, the minister focused Director general Ken Murphy and Minister Dermot Ahern share a word at the parchment ceremony on a number of recent reforms for newly-qualified solicitors and then departed at length Minister Ahern talked of “the challenging time, particularly that the government recognised from his prepared script to Law Society’s commitment to in view of the downturn in that “improved regulation of the pay personal tributes to both educating solicitors of the the economy, which may limit legal profession is necessary”. the Society’s president James highest standard who will career opportunities in the He continued, “solicitors’ MacGuill and the director compare favourably with law- profession in the short term”. clients will be the beneficiaries general Ken Murphy. yers in any other jurisdiction. However, he still believed of this reform. It is also in the The development of a modern that “you can look forward Society’s own interests. It is in Personal tributes education centre here in Dublin with confidence to the future, the interest, too, of all those He remarked that he had “first and, more recently, one in whether that be in practice as solicitors who serve their clients noted James MacGuill’s great Cork, is an example of the a solicitor or in some other with professionalism, integrity ability when they were both commitment of the Society position for which your and diligence that solicitors are practitioners in Dundalk”. It was in this regard. You, as young training as a solicitor makes you regulated effectively and that a particular pleasure for him to solicitors, are the beneficiaries eminently suited”. the highest standards prevail for be speaking today as Minister of these developments.” Welcoming the Society’s the profession as a whole. Rogue with a fellow Dundalk man as support for the Legal Services or grossly deficient solicitors president of the Law Society. Challenging time Ombudsman Bill, which he damage not only their clients, Of the director general, the He noted that they were expected would be enacted but the overall standing of the minister said that Ken Murphy “entering the profession at a “early in the new year”, he said profession.” had demonstrated over many years that he is “an excellent representative for the profession”, which is “fortunate to have him”. He added: “I have heard him defending the profession very effectively, often in very difficult circumstances.” “Part of this effectiveness,” he observed, was “the credibility that comes from putting your hands up when things are wrong.” Returning to his prepared remarks, and specifically addressing the 50 newly- Pictured prior to the parchment presentation ceremony were (l to r): John D Shaw (senior vice-president), qualified solicitors, together Ken Murphy (director general), Minister for Justice, Equality and Law Reform Dermot Ahern, James MacGuill with their families and friends, (Law Society president) and Mr Justice Richard Johnson (president of the High Court)

www.lawsociety.ie 13 LAW SOCIETY GAZETTE NOVEMBER 2008 ANALYSIS Protecting clients on The Gazette begins a short series of articles explaining various aspects of the Law Society’s regulatory function. John O’Connor introduces readers to the compensation fund

he compensation fund is a on the fund in accordance that arises from his or her 2) The amount awarded cannot Tstatutory fund maintained with the terms of the statutory solicitor’s negligence should include an award based on by the Law Society for the scheme. It is still too early to pursue a claim for redress the fact that the client was purpose of making payments to estimate the total amount of through the courts, deprived of the use of the clients who suffer loss as a result such claims that will be granted. • There is a statutory limit of money while the solicitor had of their solicitor’s dishonesty In the seven months ended €700,000 on any grant made, it – the client cannot claim or the dishonesty of someone 31 July 2008, excluding • The fund is one of ‘first that he or she would have put employed by their solicitor. It is invalid claims refused, claims resort’; in other words, a the money to far better use administered by the Regulation amounting to €13.5 million client seeking and seek compensation on of Practice Committee, which were received and redress for that basis, has the responsibility to: the net assets of his or her 3) On making payment of a • Maintain the fund, the fund as at that solicitor’s grant to any client, the Law • Process claims made against date were valued dishonesty is Society has a statutory right the fund, and at €15 million not obliged of subrogation to the amount • Make payments from the after providing to exhaust of the award made to any fund where it is satisfied for all valid “Where the other potential rights enjoyed by the client that a claim for loss to a claims. Insurance committee remedies against the party whose client arising from his or her cover for €30 before dishonesty caused the loss. solicitor’s dishonesty has been million in excess believes ‘grave claiming on sustained. of €5 million hardship’ would the fund. The grant can include an is in place. The • Only clients element to cover legal fees The fund is maintained Society will be caused of a dishonest already paid by the client to through an annual levy paid be seeking to if a higher solicitor may the solicitor whose dishonesty by practising solicitors. The recover under the make a valid occasioned the loss. Where a fund is governed by section insurance policy award than claim. The higher legal fee has to be paid 21 (as amended by section 29 and is confident the statutory fund is not to a solicitor to take over and of the Solicitors (Amendment) of making available to complete the transaction in Act 1994 and section 16 of the substantial maximum were persons who respect of which the original Solicitors (Amendment) Act 2002) recoveries. not made, then have dealt with solicitor’s dishonesty occasioned and section 22 (as amended To meet the the solicitor the client’s loss, the difference by section 30 of the Solicitors increasing it can make a in a capacity between the original solicitor’s (Amendment) Act 1994) of the demands on higher award” other than that fees and the subsequent Solicitors (Amendment) Act 1960 the regulatory of client. solicitor’s reasonable fees can and the Solicitors (Compensation function, be included in an award. Fund) Regulations 1963 (SI no our financial The following The grant can also include a 115/1963). regulation team are some of the reasonable fee to be paid to a At the end of 2007, the net has recently been more important solicitor acting on behalf of a assets of the fund were €27.5 strengthened by principles that client to bring a claim against million. The preponderance of the recruitment of a dedicated apply to the amount of the the fund. the fund’s assets are invested in specialist claims administrator to grant that can be made, and The Regulation of Practice publicly-quoted stocks, shares handle claims on the fund. the circumstances in which it is Committee is permitted certain and government securities. made: limited discretion regarding These investments are Some fundamental points 1) The grant is the amount payments from the fund. Where recognised in the accounts at Some fundamental points about that, in the opinion of the the committee believes ‘grave prevailing market valuations. the fund should be kept in mind: Regulation of Practice hardship’ would be caused if a This year has been dominated • The fund is designed to Committee, represents higher award than the statutory by the cases of Michael Lynn compensate for dishonesty, reimbursement of the amount maximum of €700,000 were and Thomas Byrne. In both not negligence; a client of the loss sustained by the not made, then it can make a cases, we are processing claims seeking compensation for loss client, higher award. The committee

14 www.lawsociety.ie ANALYSIS LAW SOCIETY GAZETTE NOVEMBER 2008 those cloudy days

has discretion to make no award of a claim upon the fund, must not communicated to the Law • The requirement of or an award only to a limited be communicated to the Law Society within three months of submitting an annual report extent in certain circumstances, Society by the completion of the date that the client became from each practice’s reporting including where dishonesty or two separate forms: Form CF1 aware of the loss. accountant, and negligence on the part of the and Form CF2, obtainable from The Regulation of Practice • Regular practice inspections client has contributed to the the Regulation Department Committee endeavours to carried out by the Law loss. of the Law Society. Except in protect the fund through: Society’s team of investigating exceptional circumstances, the • Operation of the regime of accountants. G Making a claim Law Society will not make a accounting propriety imposed Intention to make a claim upon payment from the fund if the by the Solicitors’ Accounts John O’Connor is chairman of the the fund, and the actual making intention to make the claim is Regulations, Regulation of Practice Committee.

www.lawsociety.ie 15 LAW SOCIETY GAZETTE NOVEMBER 2008 ANALYSIS No exceptions to the The USA’s use of extraordinary rendition and torture in its ‘war on terror’ was discussed in some detail at the IBA’s annual conference in Buenos Aires. John King reports

he International Bar Zacahry Katznelson works Leonard Rubenstein, of provide inaccurate information. TAssociation’s annual with Reprieve, which acts for Physicians Against Torture, He went on to refer to the conference took place in Buenos many Guantanamo detainees. described how the US case of Ibn al-Shaykh al-Libi, Aires from 12-17 October He described how a victim of authorities originally intended who was a Libyan paramilitary 2008. More than 4,000 lawyers rendition is typically seized in that the use of brutal methods trainer for al-Qaeda. Al-Libi from around the world met to the street by of interrogation was captured and interrogated exchange views on legal topics masked men. would be subject by American and Egyptian ranging from looted art to He is hooded to internal forces. The information he green tourism. As always, the and shackled. controls. gave under torture was cited association highlighted the role He may, like However, by the Bush administration in of the profession in preventing Maher Arar, be these controls the months preceding the 2003 human rights abuses. handed over to were never invasion of Iraq as evidence At a ceremony on 15 October, a regime that “By using implemented and of a connection between IBA President Fernando Pombo uses torture as a coercive the use of such Saddam Hussein and al-Qaeda. presented the association’s Bern- matter of routine. methods became However, this information was ard Simons’ Memorial Award Alternatively, techniques, generalised. later shown to have been false. for the Advancement of Human he may be held US interrogators Prisoners One of the aims of America’s Rights to Lagos-based lawyer by the US in a were isolated, rendition policy has been to Femi Falana. Throughout his ‘black site’ or in have humiliated, bring terrorists to justice. career, he has represented the Guantanamo Bay. accumulated beaten, kept in However, by using coercive victims of repressive Nigerian Torture stress positions techniques, US interrogators regimes. He was himself jailed in is explicitly information and subjected to have accumulated information the 1990s and saw collaborators prohibited by a that would not waterboarding. that would not be admissible lose their lives. United Nations in a court of law that functions At the session that followed, convention to be admissible Waterboarding in accordance with generally speakers examined how the which the US is in a court of Katznelson accepted norms. For example, United States government a party. It is also described the Khalid Sheikh Mohammed is has made use of extraordinary prohibited by a law that process of a prisoner in Guantanamo. He rendition and torture in its federal statute in functions in waterboarding, was charged with war crimes ‘war on terror’. A victim the US, which which is by a US military commission of rendition is deprived of provides that a accordance sometimes and faces the death penalty if his liberty in an extra-legal torturer can be with generally referred to convicted. It appears that he process. Many of those who imprisoned for as ‘simulated confessed to being the architect have been seized have had no up to 20 years, accepted drowning’. The of the 9/11 attacks, but only connection with jihadi groups. and may receive norms” prisoner is tied after he had been subjected to Clara Sandoval, who lectures the death penalty to a board, and waterboarding. at the University of Essex, if the torture his mouth is cited one such case. Maher results in the covered with a Ticking bomb Arar is a telecommunications victim’s death. cloth. Water is The Bush government sought to engineer who lives in Canada In an effort poured on to the legitimise torture by redefining and holds a Canadian to legitimise the cloth and, as the it. Efforts have also been made passport. He was seized in brutal treatment of prisoners, victim cannot clear it from his to justify brutal methods of John F Kennedy Airport as the Bush administration sought mouth, it begins to fill his lungs interrogation by reference to he returned from a family to redefine torture. So, for and he experiences acute pain the ‘ticking bomb’ theory. This holiday and was later handed instance, in a 2003 memo, a and terror, as he actually begins suggests that an interrogator over to the Syrian authorities. Justice Department lawyer to drown. may use prohibited methods After his eventual release, the essentially told the US military He questioned whether the in order to obtain information Canadian government set up a that it could subject suspected US’s interest in obtaining useful that will allow him to prevent a commission that found that he terrorists to harsh treatment as intelligence was served by the terrorist attack. had been tortured in Syria and long as it did not cause death, use of such methods. Experience Yuval Ginbar of Amnesty that he had had no links with organ failure or permanent shows that prisoners who are International subjected this terrorism. damage. subjected to torture frequently theory to critical analysis.

16 www.lawsociety.ie ANALYSIS LAW SOCIETY GAZETTE NOVEMBER 2008 rule against torture

Nigerian lawyer Femi Falana, who the IBA honoured

Governments are obliged by Conversely, in a country that states should not attempt any ethical rule by which such international treaty to organise where there is established to use the law to undermine attacks were permitted – rather, their armed forces, police jurisprudence supporting the human rights. he said (in somewhat broken and intelligence services in ticking-bomb defence, the “Torture thrives on English): “When I said I’m not such a way that they do not existence of such jurisprudence ambiguity,” said Leonard happy that 3,000 been killed in employ brutal methods of is likely to seriously undermine Rubenstein. The prohibition America, I feel sorry even. interrogation. Their personnel the prohibition of torture. Yuval against its use must be absolute, I don’t like to kill children and should be trained in the use of Ginbar cited the case of Israel, and the rules must be clear. the kids. Never Islam are give non-coercive techniques, and where the defence of necessity The consequences of me green light to kill peoples. should not be equipped with is pleaded in dozens of torture allowing exceptions to the Killing, as in the Christianity, the instruments of torture. prosecutions every year and is rule can be far-reaching. At Jews, and Islam, are prohibited. These are all factors that always successful. the Combatant Status Review But there are exception of rule should suggest that where a Clara Sandoval referred to Tribunal Hearing on 10 when you are killing people in country meets its international Argentina’s recent history. In March 2007, Khaled Sheikh Iraq.” G obligations, torture will not the ‘Dirty Wars’ of the 1970s, Mohammed sought to justify be used, even in ticking-bomb thousands of dissidents had the 9/11 attacks. Revealingly, John King is a partner in Ivor cases. ‘disappeared’. It was essential he did so not by reference to Fitzpatrick and Company, Dublin.

www.lawsociety.ie 17 CHRISTMAS CARDS IN AID OF THE SOLICITORS’ BENEVOLENT ASSOCIATION This is an opportunity to support the work of the Solicitors’ Benevolent Association, whose needs are particularly acute at Christmas time

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NOW HOME TO MCGIVNEY’S OPTICIANS EST 1833 ANALYSIS LAW SOCIETY GAZETTE NOVEMBER 2008 Lessons from the Earl of Malmesbury case Taking an unreasonable position in mediation, or an unreasonable refusal to engage in mediation, may have adverse costs consequences, writes Joe Thomas

he leading case on the in effect to an unreasonable Teffects of a refusal to refusal to engage in mediation. mediate on the issue of costs For a party who agrees to is the decision of the English mediation but then causes a Court of Appeal in Halsey v mediation to fail by reason of Milton Keynes General NHS Trust his unreasonable position in the ([2004] 1WLR 3002). This case mediation is, in reality, in the established that “the burden same position as a party who is on the unsuccessful party to unreasonably refuses to mediate. show why the general rule of In my view, it is something that costs following the event should the court can and should take not apply and it must be shown account of in the costs order in that the successful party acted accordance with the principles unreasonably in refusing to An ancient druidic altar on the Malmesbury lands: the druids, of course, considered in Halsey.” agree to mediation”. were well known for their superlative mediation skills Accordingly, the lessons to be The case of Earl of Malmesbury learned from this case are: and Others v Strutt and Parker The costs issue came before the judge’s view, each side was • Do not agree to waive ([2008] EWHC 424 QB) deals the judge on 18 March 2008 equally guilty of failing to privilege in respect of with the issue of unreasonable – the total costs were stg£5.38 engage in mediation. There was ‘without prejudice matters’ behaviour in refusing mediation million, which he described as “obduracy” on both sides. Mr unless you are certain it is to and unreasonable behaviour in “a horrific figure”. Justice Jack went on to say that your benefit, the mediation itself. Mr Justice Jack looked at a “where the failure to mediate • Be aware that taking an number of issues in determining was due to the attitude taken on unreasonable position in The facts who should pay the costs of the either side, it is not open to one mediation may have adverse The claimants were the owners case. The principal issue that is party, here the defendants, to costs consequences, of lands near Bournemouth pertinent here is what happened claim that the failure should be • The lawyers must be aware International Airport. The in relation to mediation and taken in to account in the order that mediation does not claimants had engaged the the resulting consequences as to costs”. simply mean going through defendants to negotiate in all for costs. It is very important Following the determination the motions, three leases of these lands with to note at the outset that both of the liability issue, mediation • Where the failure to mediate the airport for the use by the parties agreed that privilege be was set in train on the issue was due to the attitudes taken airport of these lands as its waived in respect of all “without of damages. At the mediation, on either side, it is not open main car park. The claimants prejudice matters”, that is to say, the defendants offered the sum to one party to claim that the alleged that the defendants correspondence prior to and of stg£1 million, inclusive of failure should be taken into were negligent in negotiating what took place at the mediation interest, with each side to bear account in the order as to the terms of these leases and itself. their own costs. The claimants costs, sued for approximately stg£100 made an offer to settle for stg£9 • It is prudent to ensure that, million. Mediation million plus 80% of their costs – prior to mediation, you The case came before Mr Prior to the first hearing, which this was rejected. have a written mediation Justice Jack on three separate was on the issue of liability, Mr Justice Jack considered agreement that provides (a) occasions on the issues of there had been what Mr the claimants’ position at that the mediation is entirely liability, damages and (among Justice Jack called “a curious the mediation to be plainly confidential and (b) is without other things) costs. lead into mediation”, in that unrealistic and unreasonable. prejudice, and In the event, Mr Justice there had been an exchange of He went on to say: “As far as • By implication, the lawyers Jack held that the defendants correspondence and, indeed, I’m aware, the courts have not must be aware of their duty were negligent in respect a meeting of the lawyers for had to consider the situation to advise clients to consider of two of the leases, but not each side in connection with where the party has agreed to mediation. G in respect of the third. He trying to arrange a mediation. mediate but has then taken an subsequently measured damages The lawyers could not agree unreasonable position in the Joe Thomas is a partner in the at stg£915,000,139. on a basis for mediation. In mediation. It is not dissimilar Drogheda law firm O’Reilly Thomas.

www.lawsociety.ie 19 LAW SOCIETY GAZETTE NOVEMBER 2008 ANALYSIS

The hijab in schools – religious

The right or otherwise of pupils to wear a hijab touches upon a number of pertinent legal and constitutional issues, says Louise Higgins he question of whether that the matter was one for and constitutional issues. Other provisions, such TMuslim girls have the right individual school boards to Article 44 of Bunreacht na as non-endowment of any to wear an Islamic headscarf, or decide. However, the ensuing hÉireann guarantees freedom of state religion (44.2.2) and the hijab, in educational institutions coverage in the media, public conscience and free profession right of children to attend has sparked mass debate on support of a ban from opposition and practice of religion (44.2.1) denominational public schools freedom of religion and national politicians, and and provides without receiving religious identity in many European the establishment that the state instruction (44.2.4) combine countries in recent years – and of the Irish Hijab “Ireland’s unique must respect and to provide a Constitution that finally the issue has come to Campaign, among position of honour religion is bathed in the language of Ireland. Central to the debate other things, have (44.1) and must respect for, and tolerance of, are the freedom to practice and compelled the being a country not discriminate not only Christianity, but all manifest religious belief, the government to that embraces on grounds religions. Citizens of Ireland right of parents to educate their commit to firmly of religious also enjoy further protection children in line with their own establishing a religion brings a profession, belief of their right to freedom of religious ethos, and the notions coherent policy number of new or status (44.2.3). religion and their right to of non-discrimination and on the matter. Article 42 further manifest their religion from religious ethos in schools. The government and interesting provides that article 9 of the European The issue of wearing the report is currently questions to the parents are the Convention on Human Rights and hijab in schools came to light in the final stages primary educators article 18 of the International in Ireland in May, when the of completion and hijab debate” of their children, Convention on Civil and Political principal of Gorey Community is expected in the including in Rights (ICCPR). Article 2, School wrote to the Minister coming weeks. religious matters protocol 1 of the ECHR also for Education seeking guidance (42.1), and that protects the right of parents to following a request by a student Legal issues the state is obliged to provide educate children in conformity to wear the religious garment The right or otherwise of educational facilities and services with their own religious beliefs. with the school uniform. students to wear a hijab with due regard for the rights So how do these protections The initial response from the in schools touches upon a of parents vis à vis religious and affect the wearing of the hijab in Department of Education was number of pertinent legal moral formation (42.4). educational institutions? ONE TO WATCH: NEW LEGISLATION Broadcasting Bill 2008 as we enter a new era of media Commission (BCC) will be the democratic values enshrined On 14 May 2008, the government and regulation. In essence, the bill abolished and replaced by the in the Constitution are upheld; published the Broadcasting aims to level the playing field of Broadcasting Authority of Ireland and that open and pluralistic Bill 2008. If introduced, it will the broadcasting market in Ireland (BAI) (Údarás Craolacháin na broadcasting services are significantly alter the broadcasting and place greater emphasis on the hÉireann). This will assume the provided. landscape in Ireland. The bill is needs of viewers and listeners.” roles currently held by the BCI and comprehensive and seeks to deal The bill is currently in the the BCC, as well as a range of Duties, codes and rules with all aspects of the regulation second stage in Dáil Éireann. new functions. Section 39 imposes certain and provision of broadcasting in More information on it can be The purpose of the BAI will duties on broadcasters. Every Ireland. It will also consolidate found at www.oireachtas.ie. be to ensure that the number broadcaster shall ensure that: existing legislation relating to and categories of broadcasting • News is reported in an broadcasting. Broadcasting Authority of Ireland services best serve the needs of objective and impartial manner. Minister for Communications The bill provides (sections the people of the island of Ireland, • Reporting of current affairs Eamon Ryan said: “This is a 5-38) that the Broadcasting bearing in mind their languages is conducted in a manner modernising bill designed to meet Commission of Ireland (BCI) and and traditions and their religious, that is fair to all interests the needs of Irish broadcasting the Broadcasting Complaints ethical and cultural diversity; that concerned, and that the

20 www.lawsociety.ie ANALYSIS LAW SOCIETY GAZETTE NOVEMBER 2008 human rights watch belief and Irish law

The outcome of such a debate is partially dependent on the significance and status of the hijab in Islamic culture and practice. Indeed, this very argument has been made in support of bans across Europe and in Ireland. If the wearing of a headscarf were a mere cultural practice, a non- essential aspect of worship, those demanding the right to wear it would find themselves on shakier ground. However, there is ample theological opinion to support the assertion that the Qur’an’s order for women to “draw their outer garments around them” and “not display their beauty and ornaments” equates to an obligation to cover all parts of and the right to “manifest” Supermarket v Attorney General McGee v Attorney General the body except the face and religious belief in the ECHR, affirmed that the Constitution to state that the purpose of hands. Thus, the wearing of and also the ICCPR, to which must be interpreted in such article 44 was to ensure that no the hijab by pubescent girls and Ireland is state party. a way as to give “vitality, person could be compelled to women could be said to be an independence and freedom act contrary to his conscience obligatory aspect of the practice Irish jurisprudence to religion” and reflect the where the practice of religion is of Islam. In legal terms, the The jurisprudence of the courts objective of article 44, which is concerned, although the right wearing of the hijab falls firmly sheds further light on how a ban to guarantee the free profession is by no means absolute and under the right to practise of the hijab may be regarded in and practice of religion. is subject to public order and religion in the Constitution, Ireland. The cases of Quinn’s Walsh J went further in morality.

broadcast matter is presented authorised by the BAI. If undermine the authority of the maximum times to be allocated in an objective and impartial the broadcasting service is state, is not broadcast. to it. The bill also provides for a manner. If this should not provided for more than 12 • The privacy of individuals is not prohibition on advertising that is prove practicable, two or more hours in any one day, two unreasonably encroached upon directed towards a political end, related broadcasts should be hours of broadcasting time in the making or broadcasting has any relation to an industrial considered as a whole, if the between the hours of 7am of programmes. dispute, or addresses the issue broadcasts are transmitted and 7pm should be devoted to • Party political broadcasts are of merit or otherwise of adhering within a reasonable period of the broadcasting of news and still allowed, provided that, to any religious faith or belief or each other. current affairs programmes in the allocation of time to of becoming a member of any • In the case of sound – unless a derogation is particular broadcasts, an unfair religion or religious organisation. broadcasters, a minimum authorised by the BAI. preference is not given to any Once again, there is a derogation of 20% of broadcasting time • Anything that could reasonably party. from this prohibition for party should be devoted to the be regarded as offending political broadcasts, as long as no broadcasting of news and against good taste or decency, Section 41 also imposes a unfair preference is given to any current affairs programmes, or as being likely to promote, or number of requirements in one party in the allocation of time unless a derogation is incite to crime, or as tending to relation to advertising, setting out for the broadcast.

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In the case of a potential ban of Human Rights’ decision in This raises two important this regard, it is perhaps more on the hijab, it is difficult to see Sahin v Turkey, in which the questions: what constitutes a appropriate that the entire issue how wearing a headscarf in a court applied a wide margin sufficient threat to a school’s of the religion of a student school would qualify as a threat of appreciation in deference ethos, and who decides? The should be examined – not to public order or morality. to Turkey’s wish to maintain latter question has been dealt merely what she is required Unlike more restrictive the secularity on which their with by the courts in the to wear on her head – and the garments like the niqab or the state was founded, may not be Employment Equality case – it is rules that govern such decisions burqa, the hijab does not pose instructive to the Irish situation. they, not the schools, who make should apply. This continued any difficulties for teachers in On the other hand, the such a judgement. As for the approach may prove to terms of identifying students, fact that the vast majority of former question, the nebulous ultimately protect the freedom and the call to be modest public schools in Ireland are concept of ‘ethos’ remains open of religion of those in Ireland by covering the head could denominational, and most to interpretation. who are not Christian, and hardly be said to be contrary denominational schools are In this regard, perhaps expose the various shortcomings to Christian morality or alien Catholic, further complicates the current state of affairs in in the current law and policy in a country in which women, this issue. Irish schools is enlightening. regarding the inability of non- from nuns to lay women in It has been established by the The integrated curriculum, Christians to avail of their church, traditionally covered courts that the state’s funding which applies to all national rights under articles 44 and their heads. To this extent, of denominational schools is schools, states in rule 68 that 42 as a consequence of the a government-sanctioned constitutional. Furthermore, the religious instruction is the sheer lack of schools that are restriction on wearing the hijab rights of a child of a different most important part of a child’s multidenominational or non- may fall under discrimination as religious persuasion to attend a education and that a religious denominational. laid out in article 44.2.3 of the denominational school and not spirit should inform and vivify Ireland’s unique position of Constitution. receive religious instruction are the whole work of the school. being a country that embraces The protection against complicated by the right of the The integrated curriculum is religion brings a number of new discrimination is not, however, school to preserve its religious not without controversy in and and interesting questions to the so clear-cut and is, in fact, ethos. In Re Article 26 and the of itself but, if taken at face hijab debate. In an age where complicated by the very Employment Equality Bill 1996, value, it must be conceded that Islam appears to be regarded religious nature of Ireland discrimination was ruled to be a handful of students wearing with increasing apprehension itself. On the one hand, the permissible in order to preserve scarves on their heads is by many Western countries, it respect for religion on which the ethos of an institution, unlikely to pose a significant will be interesting to see exactly the Irish state is founded may though only insofar as it was threat to a religious ethos of the how the Irish government, preclude it from relying on the necessary to do so. school, if said ethos is already and potentially the judiciary, rationale of Turkey and France woven into every aspect of squares Ireland’s increasingly for their respective headscarf Schools’ religious ethos school life. multicultural identity with bans. The need to maintain the The Equal Status Acts The impact of the hijab freedom of religion and its own secular nature of the state and 2000-2004 go further to allow is surely no match for such Christian traditions. G provide a neutral environment schools to give preference to comprehensive incorporation in public institutions simply students of a certain religion of religious values into an Louise Higgins is a PhD candidate at does not apply in Ireland. over others in the interests of institution of learning. If the Irish Centre of Human Rights at Therefore, the European Court preserving the school’s ethos. there is a case to be made in NUIG.

Provision is made in the bill a ‘right of reply’ mechanism, BAI may suspend or terminate a provision for the establishment by for the development of codes whereby individuals who feel their broadcasting contract (sections RTÉ and TG4 of ‘audience councils’ governing standards and practices reputations have been damaged 50 and 51). Financial sanctions to represent the views of listeners to be observed by broadcasters may have this corrected in a may also be imposed on the and viewers (sections 79-128). (section 42) and for the further broadcast (section 49). broadcaster (sections 52-56). preparation of rules in respect of Other proposals access to broadcasting services Enforcement Public service broadcasting The bill also makes provision by persons with hearing or sight The Compliance Committee of the The bill also amends legislation for the regulation of digital impairments (section 43). BAI can conduct investigations regarding public service broadcasting and analogue into the affairs of a broadcasting broadcasters and the allocation switch-off, television licences, the Redress contractor in respect of adherence of public funding. It revises the broadcasting fund and television Section 47 requires broadcasters by a commercial or community legislation relating to RTÉ and TG4 coverage of major events. G to consider complaints made broadcaster with the terms of their and sets up the framework for two to them and to establish a contract with the BAI and their new public service broadcasters Elaine Dewhurst is the Law mechanism for dealing with licence. On the recommendation – an Irish film channel and an Society’s parliamentary and law complaints. The bill introduces of the Compliance Committee, the Oireachtas channel. There is also reform executive.

www.lawsociety.ie 23 LAW SOCIETY GAZETTE NOVEMBER 2008 COMMENT

Ladders or lawyers? Unmet legal A lack of research on the issue of unmet legal needs has limited our capacity to meaningfully consider the extent to which equitable access to justice is currently available, says Moling Ryan t has been accepted for quantifiable data about the injury, clinical negligence, accommodation and family. Idecades that there is more to needs and experiences of people mental health, immigration, Within the consumer category, the concept of ‘legal need’ than within the community. Very unfair treatment by the gardaí, problems or disputes relating people simply having a legal little research on the area has housing (homelessness) and to electrical goods were most problem and not being able to been undertaken in Ireland, and discrimination. Such surveys reported; in employment, it was acquire the services of a legal we are one of the few countries will normally have a filtering specific work-related rights, adviser. For example, there may in the developed mechanism such as maternity leave, sickness well be a suitable non-legal world not to have included in pay and holiday entitlements; solution. Philip Lewis offered conducted any order to confine in the social welfare area, it was the following: “If a tenant in a national survey of the results entitlement to social welfare flat has a leaking roof, he may legal needs. This only to those payments; in money/debt, it was be regarded as having a legal fact has limited problems that severe difficulties managing to problem; does his lease provide our capacity are perceived to pay money owed – and so on. that the landlord should do the to consider be difficult to International studies have repairs, and is the mechanism meaningfully the “One of the resolve. found that experiencing of the courts adequate to extent to which main areas problems is far from randomly ensure quick action? But he equitable access to Prevalence and distributed: differences in life may choose to get a ladder and justice is currently of concern is types chances significantly affect not a lawyer…” Thus, when available, and the number of My survey vulnerability to such problems. a person can find a non-legal also the impact found that over Thus, my survey found that, for solution that addresses the of various social people who 50% of people those with the lowest incomes, problem, we could not say that and legislative take no action questioned had the main problems were living he is deprived of his rights or initiatives. experienced in rented accommodation, that there is an unmet legal I recently to resolve difficult- social welfare and difficulties in need. More correctly, an unmet conducted a survey such problems to-resolve paying money. For the highest legal need arises where a person of legal needs of problems or income grouping, the problem encounters or experiences a clients of what is because of disputes within type occurring with greatest matter that raises legal issues now the Citizens’ a lack of the reference frequency related to consumer and is unaware of his or her Information Board, period of over issues. legal rights in the matter. Such which aimed to awareness of three-and-a- A feature of needs surveys a need may also arise where a examine these rights” half years. This internationally is that problems person would like to defend or issues. is somewhat often do not occur in a singular assert a right, but is unable to Legal needs more than and self-contained fashion. do so for want of effective access surveys usually that reported They can be additive – having to appropriate legal services of cover the widest in Britain and experienced one, there is an adequate quality and supply. possible range of Northern increasing likelihood of others So what is the real extent problem types Ireland occurring. Problems can come of such needs in Ireland and within the civil (24-36%,) but in clusters, too. A third of what is the significance of the law spectrum. In my own lower than the surveys in the respondents reporting multiple topic? Why should lawyers survey (which mirrors other Netherlands and many in the problems identified connections or members of the public be international studies), I included USA. The higher figure may between these problems – interested in unmet legal needs? consumer issues, employment, be explained to some extent by examples being money/debt noisy or anti-social neighbours, the nature of the population problems connected with Access to justice owning or buying residential surveyed. employment problems and The problem in Ireland is that property, living in rented The problem types most welfare payments; welfare discussion about access to justice accommodation, money/debt, encountered were consumer, benefit problems connected (more usually, lack of access to welfare benefits, divorce employment, social welfare, with employment; and family justice) proceeds for the most proceedings, family, domestic money/debt, noisy or anti- problems connected with part in the absence of reliable violence, children, personal social neighbours, rented money/debt and owning

24 www.lawsociety.ie COMMENT LAW SOCIETY GAZETTE NOVEMBER 2008 viewpoint needs and access to justice one’s own home. Such dissatisfied with the outcome, incidence serves to reinforce the usual reason being that there the disadvantage of already continued to be no change in vulnerable people in society. the situation and they were still A further area of interest unhappy with it. explored in most legal needs surveys is the impact of Information and education difficult-to-resolve problems The issue of unmet legal needs on those experiencing them. is one that the Law Society’s Very few remained untouched Civil Legal Aid Task Force is in terms of health, economic now turning its collective mind or social consequences. Almost to. The Society’s initiative, 60% of such people in my through its engagement survey reported a markedly or with unmet legal needs, is a extremely severe impact, with most welcome one and has stress-related illness and loss the potential to contribute of confidence being the most significantly to a more rational reported. Other consequences and evidence-based discussion included loss of income, on access to justice and the physical ill health and having appropriate policy and societal to move home. This clearly responses. suggests that the impact of My study suggests that the experiencing difficult-to-resolve extent of difficult-to-resolve problems affects not only the or justiciable problems is individual concerned and those considerable. Only a modest close to them, but also the number of such cases currently health and other social services involve lawyers and the courts and may also have other societal process. One of the main areas consequences. of concern is the number of and helplessness is regularly also explore the outcome of people who take no action to Responses and outcomes experienced by people who difficult-to-resolve problems or resolve such problems because One third of those who had have experienced justiciable disputes – whether or not they of a lack of awareness of experienced problems within problems. were resolved, the approaches rights or knowledge of what the reference period of the study Those who did take action used for resolution, and the to do. There is also a sense took no action to resolve the to resolve their problems went extent to which respondents of powerlessness among a problem. The most common to a range of bodies for advice were satisfied with the significant number of the more reason for inaction was or assistance. As might be outcomes. vulnerable in society, where they uncertainty regarding rights, expected, solicitors were seen as In my study, consumer feel that taking action is unlikely with a further considerable contact points only in respect of problems tended to be brought to make any difference to the number giving as their reason a particular types of case, notably to conclusion quickest, with outcome. There is clearly a role belief that taking action would family problems where disputes employment problems being the for information and education not make any difference to the arise (usually in connection slowest. Indeed, certain problem and a far more coordinated outcome. Others thought the with a divorce or separation) types, notably consumer ones, approach among state services. problem would resolve itself, in relation to the division of lent themselves more easily A failure to address these while another reason was a money, pensions or property. to informal resolution. In issues has implications for feeling that it would take too Details of the advice received only 12% of cases were courts individuals, families – long to sort out. Quite a number from the various contact (including the Small Claims immediate and extended – also reported that they did not points were explored further. Court) or tribunals used to state and other services and, know what to do or where to Interestingly, in only 17% of reach resolution. Interestingly, ultimately, society. G go. These findings mirror those cases were respondents advised even for those problems of other international surveys, to start formal proceedings. brought to conclusion, more Dr Moling Ryan is chief executive of where a sense of powerlessness Legal needs studies usually than 40% were very or fairly the Legal Aid Board.

www.lawsociety.ie 25 LAW SOCIETY GAZETTE NOVEMBER 2008 COVER STORY CALL FOR

Irish firms show a mixed attitude to safeguarding their data, but there are compelling reasons for regularly backing up important files so that information can be quickly and easily recovered. Gordon Smith tests the safety net

ata backup is like insurance – payment for a service you hope you’ll never need. But accidents will happen, from unintentionally deleting an important file on a PC, to a server crash that wipes the entire contents. In more extreme cases, an office fire could destroy a firm’s records and Djeopardise its ability to continue in business. Any of these outcomes make a compelling argument for regularly backing up important files so that, if the worst happens, the information can be quickly and easily recovered and the business can continue with minimum interruption. The problem is, Irish firms show a distinctly mixed attitude to safeguarding their data. According to a survey by MJ Flood Technology last year, 42% said staff productivity would be adversely affected as a result of losing data that had not been backed up, and 18% said they would go out of business altogether. The survey found that 31% of Irish companies do not use a fireproof location for storing backup media – 17% of respondents said they store it onsite only, which would lead them to losing data if the office was to be damaged or otherwise inaccessible.

Room for improvement In the TNS mrbi technology survey commissioned by the Law Society’s Technology Committee in 2006, a total of 200 solicitors’ firms were surveyed. It was found that the vast majority (over nine in ten) had developed a backup policy for their computer systems, which was encouraging. Most firms (88%) were using a manual backup system, however, and less than one- tenth were employing an external company to back up their computer files. Of those using external companies, most were located in the capital, and were proportionately larger in size. The Technology Committee called for improvement in this area. “You can’t quantify the impact that losing data could have on your business,” warns Avine McNally, assistant director of the Small Firms Association, who notes that law firms, like many other businesses, build up important information about their clients over many years. “You can’t buy back that kind of data,” she says. “There’s also the MAIN POINTS company’s reputation to think about if word gets out. It doesn’t instil confidence if a • Mixed attitudes to firm loses data.” safeguarding data Last year, patent attorneys Hanna, Moore & Curley had a computer crash that in Ireland could have had serious implications if the firm had not backed up its data. “If your • Legal obligations computer is down and you have no access to data, you could spend a lot more time, on companies effort and money trying to get it back. You could easily spend four to five hours in holding front of a computer if you lose data – that’s four to five hours of billable time that’s information about lost,” says director Barry Moore. members of the The Data Protection Acts of 1988 and 2003 place a legal obligation on companies public holding information about members of the public to ensure they use “appropriate” • Different ways of security measures for protecting that data from loss or inappropriate access. The backing up data legislation is not prescriptive about how this is done, but backup should be included as best practice, according to Data Protection Commissioner Billy Hawkes.

26 www.lawsociety.ie COVER STORY LAW SOCIETY GAZETTE NOVEMBER 2008 BACKUP!

If you fail to back up properly, you could be left with inferior copies. And you wouldn’t want that

www.lawsociety.ie 27 LAW SOCIETY GAZETTE NOVEMBER 2008 COVER STORY

“Fundamentally, data protection is about respecting have multiple copies, you only back up one. That people’s rights to protection of their personal reduces the cost.” information,” he says. “When deciding on systems Tinkiel acknowledges that backing up to tape for backing up and securing data, organisations – has some limitations, especially when it comes to including solicitors – should choose systems that retrieving data from backup after the original has are appropriate to the harm that might result from been lost. “Data takes time to be written, and the unauthorised or accidental access to, or destruction sequential nature of tape means you have to read it of, the kind of data held. Physical security measures back to find the information you were looking for, combined with passwords may be enough to secure which could mean going to the end of the tape,” he a simple database of customer names and addresses says. “You can read a disk more quickly than a tape, for invoicing purposes. On the other hand, customer but that comes at a slightly higher cost.” or client records containing sensitive information (such as, for example, criminal records or information Human error about the physical or mental health of a client) would Perhaps tape’s biggest limitation is that it leaves too require a high level of encryption and access controls. much room for human error. Last year’s MJ Flood Similar security measures would have to apply to any survey found that 30% of businesses don’t replace backups of such personal data.” their backup tapes every 12 months – as best practice suggests. In more than 20% of companies, only one Saving money person is entrusted with looking after backup tapes or Ann Quinn, office manager at John Shiel Solicitors, disks. Ann Quinn says this has its drawbacks. points out that a good backup policy “The onus is on somebody every can also help to save money in other day to put the tape into the server and aspects of the business. “Insurance with back it up. If that person is on holidays, legal firms is very expensive, and one “You’ll only somebody else has to do it, and it takes of the questions [insurers ask] is about time to get used to that,” she says. Her backup. It’s like house insurance – if have one firm was using tapes for many years you have an alarm, you get a better experience before changing to an online backup quote,” she says. provider. “There is security and a Fortunately, the legal sector is well of needing fantastic sense of relief in having off- served by many companies offering backup when site online backup,” she says. “It gives data backup services, such as telecoms peace of mind, knowing that it’s done and internet providers, IT service and you don’t every night. It’s like the responsibility is maintenance firms, data-centre hosting have it to taken from us.” companies and dedicated backup According to Eoin Blacklock, specialists. From a technology point of realise how managing director of online backup view, there are essentially two choices: important specialist KeepITsafe, setting up a backing up to tape or disk media, or, backup process at the beginning is alternatively, saving data over the it is” vital to its success. “Many backups, internet to a secure off-site location. even tapes, are set up incorrectly,” he Data Electronics is a Dublin-based points out. As good practice, he advises data-centre operator that provides both law firms to recover their data from options. The cost of a backup service a backup copy at least twice a year to is calculated according to the volume of data to be ensure the process is working. “Backup is nothing saved, says chief operations officer Daniel Tinkiel. without the ability to restore,” he says. “For a lawyer, if the only thing they tend to back up Backing up over the internet to a secure off- is text documents, the volume of data to be backed site location has become an increasingly popular up will depend on the number of cases they have,” he alternative to tapes. Hanna, Moore & Curley has been explains. using KeepITsafe’s online backup service for almost However, scanned versions of original paper two years. The firm backs up three types of data – all documents require significantly more storage space, of its documents, as well as its patent management he points out. “A ten-page Microsoft Word document software and its Microsoft Exchange email settings. could be something between 200 kilobytes and For additional protection, each of these file types is one megabyte in total. An image of each page of backed up independently of the others. a document will be in the region of one megabyte “Everyone signs up expecting never to have to use minimum.” He advises firms to use techniques such it, but we have had to use it and we got a full backup as saving in portable document format (PDF) or within six hours,” says Barry Moore. In that instance, compressing files in order to save space and therefore one of the firm’s servers failed, which could have money. “There tends to be a lot of repetition of caused significant disruption to the business. documents within a company, so if you can add a To restore the data, KeepITsafe staff arrived at the mechanism to sort and classify data, that way if you firm’s offices with a copy of the data to be loaded

28 www.lawsociety.ie COVER STORY LAW SOCIETY GAZETTE NOVEMBER 2008

19th century pioneers had onto the replacement system. the off-site location. After that, only changes to the a very “We also had some individual restores where a original data rather than entire files are saved over rudimentary couple of people had deleted files by mistake,” Moore the internet. This is useful for companies that prefer understand- recalls. In those cases, they were able to download the to save their data several times during the day, rather ing of what constitutes missing files over the internet. than doing a single backup overnight. disk backup Hanna, Moore & Curley backs up its data every Fergal Madden, of the online backup provider night between midnight and 4am, to avoid disruption Arion, says it is important that the service is fully during the working day. Previously, the firm had been managed by a third-party specialist. “Online backup using manual tape backups, but this was not practical, does need to be supervised. Although it is set Moore explains. “There are only ten people in the automatically to back up, there can still be some firm, and we don’t have the capacity for a full-time problems, such as a fault in broadband or a server technical person.” crash during the backup process. It is essential then that we check all backups daily, so that if such a Encryption problem were to occur we could contact the customer Although there are offshore data backup services, and implement a full data recovery if required. The which can be cheaper, Moore says he is happy to online backup process becomes more of a managed pay a higher price to an Irish provider, “because solution, and a notification is also sent to the end user you have somebody who can call to the door and an each day as to the status of their backup.” Irish number you can call”. In addition, all of the Barry Moore strongly recommends that law firms information is stored in encrypted form and only the ensure this basic – yet vital – task is done. “They’ll data owner has the code to unlock it. This works on a only have one experience of needing backup when similar principle to ATM PIN codes, where not even they don’t have it to realise how important it is,” he the issuing bank knows the customer’s four-digit code. says. “Even if tape was half the price – and I don’t Blacklock says that online backup doesn’t require a know if it is – I still think it’s worth spending the extra very fast broadband connection, nor does it take very money for online backup. It’s the cost of a new laptop long. “Because online backups only back up changes per year and you’re getting all your data saved.” G to data, they’re very quick – they might only take 30 seconds to a minute.” The initial backup is performed Gordon Smith is a writer and editor with Silicon Republic, at the customer site to a disk that is then stored in Ireland’s technology news service.

www.lawsociety.ie 29 LAW SOCIETY GAZETTE NOVEMBER 2008 PERSONAL FINANCE Saving for a

As the economic climate changes, so do the challenges of managing your finances. David Rouse looks at some of the issues and provides food for thought about the sound management of your personal finances

any of us consider our home or our business to be our most important financial asset. However, when we ask the right questions, we discover Mthe real answer. What would happen if, due to permanent sickness or injury, you could no longer continue to work? What alternative source of finance could you rely on if the income from your profession stopped? Your income funds your lifestyle and meets the vast bulk of your financial commitments. Perhaps your employer will help you in the short term. What if you’re a self-employed partner in practice? Maybe you could depend on your savings in the short term. If you are an employee, the state will provide an invalidity pension of €10,571 each year. If you’re self-employed, you have no such entitlement. It’s a stark position – the realisation that your income is your most important personal financial asset. On the positive side, for a limited cost, you can protect your income against circumstances where you can no longer earn. Providers of income protection (also called permanent health insurance) will pay a benefit to you in the case where, on a long-term basis due to accident or illness, you can no longer earn that income. To secure this protection, you need to pay a small proportion of your income now. Through tax relief on the policy premiums, the state pays almost half the cost of this protection. The benefit from the income protection policy is payable until you are deemed fit to go back to work or to a predetermined cessation age. The cover is MAIN POINTS referred to as ‘permanent’ because, no matter how covered by the policy. For example, it would pay a • Income protection many claims you may make, the provider cannot lump sum on a diagnosed heart attack. Serious illness policies cancel the policy so long as you continue to pay the cover is not linked to your capacity to work. • Serious illness premium. cover Serious illness cover is different to income Financing your long-term future • Pension planning protection. It provides a lump-sum benefit payable Pension planning is really long-term saving, but with on the diagnosis of a specified illness or condition very advantageous tax benefits. If you’re a top-rate

30 www.lawsociety.ie PERSONAL FINANCE LAW SOCIETY GAZETTE NOVEMBER 2008 rainy day

taxpayer, for every €100 you put into a pension, every €100 you contribute – slightly more if you pay when combined with the tax relief, you get a bonus PRSI (4%) and the health levy (2%). of €69 from the government. Compare this to the In the long term, because you save tax on the SSIA scheme, where you got only €25 on every money you contribute to pensions, you get to hold on €100 you saved. Even if you are a standard rate 20% to more of your earnings. In addition, all investments PAYE taxpayer, it is still worthwhile to contribute to and growth within your pension are tax-free. You pay a pension, as you will get a bonus of at least €25 on tax on your pension only when you actually receive

www.lawsociety.ie 31 LAW SOCIETY GAZETTE NOVEMBER 2008 PERSONAL FINANCE

benefits in retirement. Depending on how soon you start saving, you could have 20 or 30 years of tax-free investment growth on funds you contributed to your pension in a tax-free manner. Many higher earners can get up to 25% of their fund at retirement in the form of a tax-free cash lump sum. Early and disciplined pension planning helps to achieve a secure future when you finish working.

Enhanced pension funding An employer company can make pension contributions on behalf of a director or employee that are much higher than these personal contributions. How much can be contributed by the employer is determined by reference to the director/employee’s age, salary, years’ service and existing pension fund size. Rather than a percentage of salary, these contributions can amount to a multiple of salary. Using a limited company for some of his business operations means that a self-employed person can access these enhanced pension-funding options. The same logic applies to a pension – the structure If the budget measures proceed and reduce the is solid and the tax breaks are considerable. The pension funding available to the self-employed, the performance of the assets put into the pension limited company option will become more attractive. depends on the investment manager, the quality of Regulatory or commercial reasons may rule out this “It is a truism the assets, and market conditions. Recent falls in the approach, and detailed professional advice should be to state that value of the assets held in pensions should not detract obtained. from the long-term savings provided by the tax every individual advantages. Pension facts case is different; What about the choice of assets in a pension? Criticism of pensions is widespread in the financial There is a wide range of pension investments and general media. Such criticism ignores the sensible however, the available. You even have the option of keeping your fundamentals of long-term saving and of taking same broad funds on cash deposit. You can decide where your advantage of the tax breaks. You can draw a parallel pension invests, when those investments are made, between pensions and a world-class football stadium. issues of and when they are realised. If you have the time The stadium has a great structure: the stands, the protection and and the experience, then self-administered and self- pitch, the goalposts are solid. How the players directed pensions can give you complete control over and teams perform depends not on the stadium planning apply to your pension investments – you can be your own structure, but rather on the quality of those players, most of us” investment manager. the manager’s selection, and the opposition. Afterall, Pension investment is part of an overall financial you don’t credit or blame Croke Park itself for the plan. The amount of income you devote to your performance of your county team, or our national pension investments will be determined by your soccer and rugby sides! financial priorities. In most cases, the need to protect your current income would precede the need to contribute to a pension. That said, the earlier you start a disciplined approach to pension planning, the USE IT OR LOSE IT more will ultimately be available to you when you’re Failure to take advantage of pension tax breaks means that you voluntarily give no longer working. away a proportion of your personal wealth each year. If you are self-employed, the tax relief you get each year is available only in that year – in other words, it’s a ‘use Retirement options it or lose it’ relief. Directors and employees have more opportunity to plan, because If you are a self-employed individual, you have the their employer company can make pension contributions on their behalf. option at retirement to use your pension fund either The recent budget proposes to limit the maximum earnings from which a self- to purchase an annuity or to move your fund to an employed person or PAYE taxpayer can make personal pension contributions or approved retirement fund (ARF). AVCs (additional voluntary contributions) that will receive tax relief. The personal Until 1999, at the point of retirement, you had no contribution on which you get tax relief is based on an age-related percentage of choice with what to do with your fund. Your fund your earnings (see table). The maximum earnings in 2007 are €262,382, and was given to a life insurance company who provided in 2008 they are €275,239. October’s budget proposes to limit these maximum you with a guaranteed yearly pension income for the earnings to €150,000 with effect from 2009 onwards. rest of your days – the annuity route. In most cases, on your death in retirement, a reduced pension was

32 www.lawsociety.ie PERSONAL FINANCE LAW SOCIETY GAZETTE NOVEMBER 2008

partner died unexpectedly? It could jeopardise the Age attained during the Maximum personal very continuation of the practice. The firm may have year contribution to pay a large lump sum to the family of the deceased Under 30 15% partner, representing the value of their inherited 30-39 20% share of the business. Where would these funds come from? You and your surviving partners might have to 40-49 25% make substantial borrowings to finance buying out 50-54 30% the deceased’s family. 55-59 35% A partnership insurance plan can provide for the 60 and over 40% liabilities thrown up by such an unexpected event. The plan provides the funds needed by the remaining provided for your spouse or dependants. However, partners to buy back from the family the deceased the overall fund you had accumulated during your partner’s share in the business. It allows the remaining working years and had given over to the life company partners in the firm to keep full control over the at retirement remained with the life company. partnership. Since 1999, the ARF option has been available Provided the correct arrangements are put in as an alternative to the annuity route. The ARF has place, the plan comes with certain tax efficiencies. It become popular in recent years because it allows you operates to ensure that the deceased’s family obtains to hold on to the value of your fund at retirement and the value of their inheritance in a timely manner. to retain control over your pension investments. The The undesirable alternative to this sensible planning fund you have built up during your working life can is drawn out and perhaps acrimonious negotiations be transferred to the ARF. In retirement, you draw an and financial transactions arising in the context of a annual income from the ARF. sudden bereavement.

Planning for the unexpected Be prepared Importantly, your ARF forms part of your personal The issues outlined above may give you food for estate so, on your death, the value of your fund is thought in reviewing your own financial affairs. It is a preserved (less whatever you have drawn from it, or truism to state that every individual case is different; deemed to have drawn under recent new ARF tax however, the same broad issues of protection and rules). Your ARF can be left directly to your spouse planning apply to most of us. The recent economic or dependants when you pass away and can be changes might prompt you to review your personal inherited tax efficiently, or indeed tax-free in certain arrangements in conjunction with your financial circumstances. An ARF can represent a valuable way advisor. G of passing wealth to the next generation. If you are a partner in a firm, what would be the David Rouse is a business development executive with Oregan financial impact on you and your colleagues if another Financial Limited.

www.lawsociety.ie 33 LAW SOCIETY GAZETTE NOVEMBER 2008 PROBATE The best will

Not every child dissatisfied with the terms of a parent’s will has a cause of action pursuant to section 117 of the Succession Act 1965. Rita Considine points out some important things to remember

he Succession Act 1965 has been the operative arises where the deceased parent died leaving a valid law dealing with succession and related will. A claim does not arise in the case of a death matters for more than 40 years. The act intestate. has, like the vast majority of legislation, Tbeen amended from time to time, Practice and procedure including as recently as this year by sections 67 and The High Court and the Circuit Court have 68 of the Civil Law (Miscellaneous Provisions) Act 2008. jurisdiction to hear and determine claims taken Section 117 of the Succession Act 1965 (see panel) has pursuant to the provisions of section 117 of the been the subject of a large amount of litigation. The Succession Act 1965. provision enables a child to take proceedings against High Court proceedings are commenced by a the estate of a deceased parent, claiming that the special summons, which is verified by an affidavit deceased parent has failed in his or her moral duty sworn by the plaintiff child following the issue of to make proper provision for the child in accordance the summons. When the special summons is issued, with the means of the parent, either during the it is assigned a return date before the Master of the lifetime of the parent or under the terms of his or her High Court. On the return date, the summons will will, and asking the court to make proper provision automatically appear listed before the Master. It is for the claimant child. important to serve the summons before the return date. If, however, the summons has not been served, Important matters to remember the solicitor for the plaintiff will have to apply to the Time limit. Subsection 6, as amended by section 46 Master for a new return date for the summons. It of the Family Law (Divorce) Act 1996, provides that an will be necessary to then serve the summons on the order shall not be made under section 117 unless the defendant with the new return date inserted. proceedings are taken within six months of the first Once an appearance is entered on behalf of the raising of representation to the estate of the deceased defendant personal representative(s) of the estate of parent, being within six months of the issue of the the deceased parent, it is likely that an affidavit or first grant in the estate. affidavits in defence of the claim will be sworn and A child under a legal disability (either a minor or filed by the personal representatives. The plaintiff will a person of unsound mind) is bound by the same six- have an opportunity to reply to the affidavits sworn by month period, and no extension is given in the case of the defendant(s) (if necessary), as will the defendant a disability. This is an absolute period of limitation, have an opportunity to reply to any affidavits sworn MAIN POINTS and the court has no discretion to make an order if by the plaintiff. • Child taking the proceedings are not issued within that time period When the affidavits are complete, the Master of proceedings (MPD v MD). the High Court will transfer the summons to the against the estate Who can make a claim? Only a child of a deceased Chancery list for the next available Monday. The of a deceased testator can make a claim under section 117. It does Chancery judge will send the matter forward to the parent not apply to any other degree of blood relation or Chancery list to fix dates, unless any matters need • Time limits and remoter issue. Since the amendment by sections 1 to be dealt with at that time. Although the case is eligibility and 31 of the Status of Children Act 1887, the provisions transferred to a list to fix dates, it will not appear in • Practice and apply equally to marital and non-martial children of a a call-over of that list until such time as it has been procedure deceased testator. A child is a child of any age. certified by senior counsel as being ready for hearing. • Case law The deceased must have died testate. The provision only It will be necessary for one or both parties to seek

34 www.lawsociety.ie PROBATE LAW SOCIETY GAZETTE NOVEMBER 2008 in the world

discovery. The discovery that normally arises in proceedings to be joined as a notice party. The court section 117 proceedings is discovery of a financial may refuse such an application or may allow the nature, setting out the assets, liabilities, income and application upon such terms, including terms as to expenditure of the plaintiff child. Like discovery will costs, as the court determines. be required in respect of any other child for whom The case is a hearing on affidavit. However, it is the testator has made provision or who is making a usual that notices to cross-examine the deponents similar claim. on the affidavits filed would be served by each side. In some cases, it will be necessary to join other On occasion, applications are made to the Chancery parties as notice parties to the proceedings. However, judge to have the hearing of the claim as a plenary that should only happen in exceptional circumstances, hearing with oral evidence only. and it is at the discretion of the court whether or The Circuit Court has jurisdiction to hear all not to permit a person who is not a party to the section 117 claims, provided that the rateable

www.lawsociety.ie 35 LAW SOCIETY GAZETTE NOVEMBER 2008 PROBATE

valuation of any immoveable property of the testator High Court proceedings. When the pleadings are does not exceed €254. closed and discovery made, the case is set down for The proceedings must be taken in the Circuit hearing and receives a hearing date in the normal way. Court area where the deceased was ordinarily resident All proceedings taken under part IX of the Succession at the date of his death. Order 50 of the Circuit Court Act 1965 are heard in camera. Rules 2001 (as amended) sets out the practice and procedure and the applicable rules of court. Position of a surviving spouse The claim is commenced by the issue of a Subsection 3 makes it clear that an order under the succession law civil bill. Once the civil bill has been section shall not affect the legal right of a surviving issued and served, an appearance is entered by the spouse or, if the surviving spouse is also the mother/ defendant and a defence filed. Particulars may arise, father of the plaintiff child, an order under the as will discovery in a like manner to that sought in section shall not affect any devise or bequest or share

SECTION 117 Section 117 of the Succession Act 1965 (as amended) provides as prudent and just parent taking into account the position of each of the follows: children of the testator and any other circumstances which the court “117(1) Where, on application by or on behalf of a child of the may consider of assistance in arriving at the decision that will be as testator, the court is of the opinion that the testator has failed in his fair as possible to the child to whom the application relates and to the moral duty to make proper provision for the child in accordance with other children. his means, whether by his will or otherwise, the court may order that (3) An order under this section shall not affect the legal right of a such provision shall be made for that child out of the estate as the surviving spouse or, if the surviving spouse is the mother or father of court thinks just. the child, any devise or bequest to the spouse or any share to which (1A) An application made under this section by virtue of part V of the the spouse is entitled on intestacy. Status of Children Act 1887 shall be considered in accordance with (4) Rules of court shall provide for the conduct of proceedings under subsection (2) irrespective of whether the testator executed his will this section in summary manner. before or after the commencement of the said part V. (5) The costs in the proceedings shall be at the discretion of the Nothing in paragraph (a) shall be construed as conferring a right to court. apply under this section in respect of a testator who died before the (6) An order under this section shall not be made except on an commencement of the said part V. application made within six months from the first taking out of (2) The court shall consider the application from the point of view of a representation to the deceased’s estate.”

36 www.lawsociety.ie PROBATE LAW SOCIETY GAZETTE NOVEMBER 2008

should not distribute the assets, as personal liability LOOK IT UP may attach to the personal representative(s) for any Cases: loss caused. • MPD v MD [1981] ILRM 179] • Re ABC deceased XC v RT [2003] 2 IR 250 Case law • Re: IAC [1992] IR 143 There is a large amount of case law in this area. It clearly shows that the claimant child must prove Legislation: his or her case “on the balance of probabilities” and • Circuit Court Rules 2001, order 50 that a “relatively high onus of proof” rests upon the • Civil Law (Miscellaneous Provisions) Act 2008, claimant child and “a positive failure in the moral sections 67 and 68 “The case law duty has to be proved” by the claimant child (Re: IAC). • Family Law (Divorce) Act 1996, section 46 The court approaches the claim in two stages, • Status of Children Act 1887, part V makes it clear firstly determining if there has been a failure by the • Succession Act 1965, section 117 that the child testator in his moral duty to make proper provision for the claimant child. Only if that is decided in must prove a favour of the child will the court proceed to the positive failure second stage, namely, to consider what is ‘proper on intestacy to which the surviving spouse (who is provision’ for the claimant child. also the mother of the claimant child) is entitled to of moral duty The relevant date for considering the claim of the receive. on the part of plaintiff is the date of death of the testator. Therefore, if a testator made a will leaving the In the case of Re ABC deceased XC v RT, Kearns J entire of his estate to his/her surviving spouse, a child the parent and reviewed the case law in the area and set out a list of the parties could not succeed in a claim pursuant to a high onus of of principles to be applied in section 117 claims in a section 117, as the court cannot make an order that clear manner. affects either: proof rests on Not every child dissatisfied with the terms of a a) The legal right share of the surviving spouse, or the child” parent’s will has a cause of action pursuant to section b) If the surviving spouse is also the mother of the 117 of the Succession Act 1965. The case law makes it child, any devise, bequest or share on intestacy to clear that the child must prove a positive failure of which the surviving spouse is entitled. moral duty on the part of the parent and a high onus of proof rests on the child. The circumstances of Distribution of assets every potential claim should be carefully considered If a client has a claim and proceedings issue within the before embarking upon such proceedings, which time allowed, it is important to seek an undertaking will delay the administration of the estate of a that the personal representative(s) will not proceed deceased person as well as put the estate to the cost of with the administration of the estate or dispose of any defending such claims. G assets pending the determination of the claim. Once on notice of a claim, the personal representative(s) Rita Considine is a Dublin-based barrister.

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www.lawsociety.ie 37 LAW SOCIETY GAZETTE NOVEMBER 2008 MEDICAL NEGLIGENCE

In the first of two articles on legal liability for hospital- acquired infections, Rody O’Brien examines the concept of causation and relevant British case law BALANCE OF PROBAB ospital-acquired infections such as hospital by staff members, failure to isolate infected methicillin-resistant staphylococcus patients, and so on. The second type of claim is aureus (MRSA) and clostridium difficile that, once the hospital-acquired infection had been (C-Diff) are making the headlines a lot acquired, the defendant was negligent in diagnosing Hthese days. In order to establish legal and treating it. liability for damage or injury sustained as a result of hospital acquired infections, the plaintiff must prove Causation that the defendant owed him/her a duty of care and The traditional legal test for establishing causation is that the defendant breached the standard of care as called the ‘but for’ rule. It goes along the lines of ‘but set out in the law. In addition, the plaintiff must prove for’ the defendant’s acts or omissions, the plaintiff that his/her injury was caused by the defendant’s would not have suffered the injury. Causation is negligent action or omission. Indeed, because established as a matter of facts in a scientific way, so causation is often times the most difficult hurdle expert medical evidence is a very important aspect. for the plaintiff to overcome in hospital-acquired The ‘but for’ test is well established in Irish law. MAIN POINTS infections cases, the main portion of this article will We now focus on causation in medical negligence • Medical examine the law in this area. We will also look at how cases and, to do this, we will look at some very negligence and these types of cases have been running in Britain and relevant and instructive cases from our neighbouring the duty of care the ‘new’ direction they are currently taking. All the jurisdiction. • Legal liability for while, we await more certainty with a pronouncement In Barnett v Chelsea and Kensington Hospital Management damage sustained from the courts in this jurisdiction on these types of Committee, the plaintiff’s husband was one of three as a result of cases to give us a binding precedent. night-watchmen who had turned up at the defendant hospital-acquired hospital feeling very ill after drinking tea. The infections Breach of duty three men were sent away from the hospital without • British cases In cases of hospital-acquired infections, two types of examination and were told to consult their own and the ‘new’ breach of duty may be claimed. The first type of claim doctors. The plaintiff’s husband died later from what direction they are is that the plaintiff contracted the hospital-acquired turned out to be poisoning from arsenic that had currently taking infection due to a failure to take care. This is usually been found in the tea. It was held that, while there where there is an allegation of lack of hygiene in the was negligence, the negligence was not the cause of

38 www.lawsociety.ie MEDICAL NEGLIGENCE LAW SOCIETY GAZETTE NOVEMBER 2008

ILITIES the plaintiff’s husband’s death. He died from arsenic avascular necrosis was caused by the fall from the poisoning, and it had been at such an advanced stage tree and not from the defendant’s negligence: “Once by the time he arrived at the defendant’s hospital, liability is established, on the balance of probabilities, it wouldn’t have mattered what the defendant had the loss which the plaintiff has sustained is payable in done – he would have died anyway. The poisoning full. It is not discounted by reducing his claim by the was the cause of death, not the negligence of the extent to which he has failed to prove his case with defendant. 100% certainty” (Lord Ackner). In Hotson v East Berkshire Area Health Authority, the plaintiff, a 13-year-old boy, fell from a tree and Material contribution to causation injured his hip. He was taken to a hospital run by In Wilsher v Essex Area Health Authority, the plaintiff the defendant. The boy’s injury was not diagnosed was born prematurely and suffered from oxygen and, after five days of severe pain, he was taken back deficiency. The defendant, on treating him, to the hospital. His injuries were then diagnosed negligently inserted a catheter into his vein instead and he was given emergency treatment. His injury of his artery. This resulted in the plaintiff having an developed into avascular necrosis. This resulted in his excess amount of oxygen. The plaintiff was found to hip being deformed and led to limited mobility by the be later suffering from virtual blindness as a result of time he was 20. The defendant admitted negligence, an incurable condition of the retina. The condition but argued that the negligence had not caused the could have been caused by the excess oxygen or it plaintiff’s injury. The trial judge accepted the expert could have been caused by any one of four other medical evidence that there was a 25% chance completely different risks to which the plaintiff that, had the plaintiff received the correct medical was exposed. In the trial, the medical evidence was treatment on his first visit to the hospital, he would inconclusive as to whether the excess oxygen caused have avoided avascular necrosis. He awarded 25% of or even materially contributed to the blindness. The the damages that the plaintiff would have won had plaintiff succeeded in the first instance and again in he shown that the defendant’s negligence had caused the Court of Appeal. The House of Lords reversed the avascular necrosis. This was upheld by the Court this and held for the defendant. of Appeal. The defendant appealed to the House of As the plaintiff was unable to prove, on the Lords and the appeal was allowed. It held that the balance of probabilities, that the negligence of the

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defendant caused or materially contributed to his injury, his claim failed. In other words, the traditional test of causation – the ‘but for’ test – reasserted its dominance.

Recent British High Court decision In Anderson v Milton Keynes General NHS Trust and another, the plaintiff fractured his ankle following an accident at work on 11 November 2000. He was admitted to Milton Keynes General Hospital the following day and underwent surgery. He was then transferred to the John Radcliffe Hospital for further orthopaedic and plastic surgery. At this point, he was informed that, as a result of his injury, there was a 20% risk of deep infection with potentially serious consequences. He had a routine swab for infection, which confirmed MRSA colonisation, the result of which was not known until 17 November. On 14 November, the plaintiff underwent major orthopaedic reconstructive surgery. The test results a different antibiotic would have been used for the were not communicated to the plastic surgeons, surgery on 19 November 2000. as they should have been. On 19 November, the 2) Had the results of the first test been known on 21 plaintiff underwent plastic surgery. The surgeons November, when treatment was prescribed, it was were unaware of the MRSA colonisation. They used accepted by the defendant that the plaintiff would an intra-operative prophylactic antibiotic during have received MRSA-specific antibiotics. surgery, which is not an antibiotic effective against MRSA. On 21 November, the plaintiff had developed The defendant argued, on the balance of probabilities, symptoms of an infection. As the earlier test results that the negligence had not caused the injury. Even had still not been communicated to his doctors, they if the plaintiff had received the correct treatment, it commenced treating the infection with antibiotics. would not have made any difference. They argued On 1 December, there were still signs of an infection. that the MRSA infection would have grown deep Antibiotic treatment was stopped to allow the active into the patient’s bone and that the appropriate infection to be detected. Over the next few weeks, antibiotic treatment wouldn’t have affected the there was a general improvement and no signs of outcome. The English High Court held that, though deep infection. On 16 December, the plaintiff was an MRSA-specific antibiotic might have improved discharged from hospital. On 12 January 2001, a the outcome, it was clear that any improvement swelling to the leg was noted and he was readmitted would have been small. Even without deep infection, to hospital. By now he was receiving drugs specific it held that there would have been non-union of the to MRSA. The infection improved. The fracture was fracture. Accordingly, the plaintiff would still have not healing and he underwent further surgery in July required reconstructive surgery. On the balance of 2001 and December 2001. There was non-union of probabilities, by the time the MRSA antibiotics should the fracture, and he suffered disability with pain and have been administered, the infection had entered the shortening of the leg. bone and was immune from attack. The defendant admitted two breaches of duty: In summary, the plaintiff couldn’t prove, on the 1) A failure to communicate the results of the first test balance of probabilities, that the MRSA infection to the plastic surgeons. Had the results of this test caused the failure of the fracture to heal, leading been known, it was accepted by the defendant that to the surgery that removed part of the bone. The damage could have been caused by the original accident and the original break, which would have LOOK IT UP required the reconstructive surgery. Cases: • Anderson v Milton Keynes General NHS Trust and The second part of this article will deal with recent Irish cases on another [2006] All ER(D) 175 causation in medical negligence cases and breach of statutory duty • Barnett v Chelsea and Kensington Hospital in Britain. G Management Committee [1969] 1 QB 428 • Hotson v East Berkshire Area Health Authority Rody O’Brien is a practising barrister and a guest lecturer in law [1987] AC 750 in the Royal College of Surgeons. The author expressly divests • Wilsher v Essex Area Health Authority [1988] AC himself of any responsibility for the accuracy of the contents of this 1074 work, which are not intended to be relied upon in the absence of proper legal advice.

www.lawsociety.ie 41 LAW SOCIETY GAZETTE NOVEMBER 2008 EMPLOYMENT LAW

It is commonly believed that the Labour Relations Commission’s Code of Practice on Access to Part-time Work is not legally binding. Though true in theory, the reality is quite different. Colm O’Connor assesses your request for flexi-time Bending ov

n recent years, both employers and employees arrangements. Ms Morgan had made a request for in Ireland have become acquainted with the part-time work or job-sharing in the year 2000, having notion of flexible working arrangements and been employed by the bank since 1990. This was to associated concepts, such as access to part-time facilitate an overseas adoption she had been planning. Iwork, job-sharing and job-splitting. Reflecting Ms Morgan subsequently followed up on this request the increasing demands being put on the labour force a number of times over a five-year period, availing of in terms of balancing work commitments with the a career break and taking periods of stress relief in the rest of their daily lives (such as looking after family, intervening period, without any meaningful response friends and leisure), many employees’ and employers’ to her initial request. It was not until April 2005 that representatives have been keen to address this the bank offered Ms Morgan job sharing; however, important and topical issue. Key bodies such as IBEC by this stage, she was not in a position to accept their and ICTU have been instrumental in participating in offer. the National Framework Committee for Work Life By failing to deal with Ms Morgan’s request for Balance Policies, a body established for the purposes flexible working hours within an adequate timeframe, of setting up a planned and systematic approach to the Equality Tribunal held that Ms Morgan’s request the issue of work/life balance for employees. had not been treated seriously, as required by the In addition to the work carried out by the LRC code of practice. It also held that she had been framework committee, the Labour Relations indirectly discriminated against on the grounds of Commission has published its Code of Practice on Access gender, citing the Supreme Court case of Nathan v to Part-time Work. This is a useful primer for many Bailey Gibson and also section 22(1) of the Employment employers and employees who seek to understand Equality Acts 1998-2007. The tribunal stated that there how best practice should be adhered to in this area of was authority for the proposition that the behaviour the law and human resource management. complained of by Ms Morgan weighed more heavily It is commonly stated that the code of practice is on members of the female as opposed to the male not legally binding in Irish law but, while this is true gender, thereby making it prima facie discriminatory in theory, the practical reality is quite different, as in nature. In such circumstances, it suggested, the recent case law has highlighted. More specifically, onus shifted to the employer to prove that the there are a number of recent cases, both at a national discriminatory action complained of was objectively and a European level, that have highlighted the justifiable by a legitimate aim and, also, that the means fact that a quasi-judicial body such as the Equality of achieving that aim are appropriate and necessary. Tribunal will have regard to the code of practice The tribunal held that the facts of the case meant when making decisions concerning its core areas of that a five-year delay was not objectively justifiable competency, such as discriminatory dismissal and and, accordingly, made an award for compensation MAIN POINTS discrimination/victimisation in the workplace. in the sum of €30,000 to Ms Morgan for the • Flexible working discriminatory treatment suffered by her. It also arrangements Indirect discrimination ordered that Bank of Ireland implement a procedure • LRC’s Code A particularly interesting example in this regard is for job-sharing and part-time working applications of Practice on the 2008 decision of the Equality Tribunal in the that is fully compliant with the LRC code of practice. Access to Part- dispute between Ms Catherine Morgan and the Bank time Work of Ireland Group. In this case, the Equality Tribunal Discrimination by association • ‘Associative ruled that Bank of Ireland had indirectly discriminated Another salient example of the obligation of an discrimination’ against Ms Morgan on gender grounds by failing employer to follow fair procedures and best practice to treat “seriously” her request for flexible working when considering an application by an employee for

42 www.lawsociety.ie EMPLOYMENT LAW LAW SOCIETY GAZETTE NOVEMBER 2008 er bac kw a r d s

Most working arrangements aren’t as flexible as this

www.lawsociety.ie 43 LAW SOCIETY GAZETTE NOVEMBER 2008 EMPLOYMENT LAW

part-time work or flexible working hours is law is not only for a particular category of person, provided by the recent landmark English case, but also applies to the nature of the discrimination Coleman and Attridge Law. This case concerned a itself. “Where an employer treats an employee who mother of a disabled child who took legal action after is not himself/herself disabled less favourably than claiming that she was not allowed as much flexibility another employee in a comparable situation, and it is in her job as were parents of other children in her established that the less favourable treatment of that workplace. As a primary carer for a disabled child, employee is based on the disability of his/her child … Ms Coleman had applied to her employer for flexible such treatment is contrary to the prohibition of direct working arrangements, but was told that she could discrimination,” according to the ECJ. not be accommodated. Ms Coleman subsequently The case has now reverted back to the employment accepted a voluntary redundancy package, only to tribunal and is currently awaiting a final decision – make a claim for constructive dismissal five months however, the highest court in Europe has spoken. “It is particularly later. An important precedent has been established, and Initially, the claim was heard by the London the principle of associative discrimination has been important for (South) Employment Tribunal; however, it was firmly set down at European level, with significant employers to subsequently sent by this statutory body to the implications for the national laws of member states in European Court of Justice for clarification on a this area. note that recent point of EU law. The ECJ was asked to consider case law has whether or not Council Directive 2000/78/EC Dealing with employees’ requests (establishing a general framework for equal treatment It is commonly held that employment law is unduly demonstrated in employment and occupation) protected persons concerned with procedure, at the expense of the that there is an from the concept of ‘discrimination by association’; substantive legal issues at play. In many cases, that is to say, in the case that Ms Coleman was employers have borne the full brunt of the law in this obligation on putting forward, the ECJ was being asked to consider area in the form of costly compensation awards to them to treat whether or not she could be discriminated against on employees, purely because they have failed to follow the grounds of disability by virtue of her association fair procedures when dealing with those in their such requests with her disabled child. employ. seriously and, In a ruling that has profound implications for Bearing this in mind, and in the context of dealing employment equality law throughout Europe, the with requests for flexible working arrangements from if possible, ECJ clarified the laws of discrimination in this area employees – whether it be for reduced working hours accommodate by confirming that EU law does indeed provide for or job sharing – employers in this jurisdiction should protection against ‘associative discrimination’. The take note of recent developments in this area and them” court further clarified that protection under EU always adhere to a predetermined policy statement and procedure, lest they find themselves before an equality tribunal explaining why they do not have a LOOK IT UP clear policy in place or, if they had, why they did not Cases: follow it. • Coleman and Attridge Law (UKEAT/0417/06/DM) Before drafting any such procedure, it is worth • Ronaldo Munck and NUI Maynooth examining the full extent of the obligations put on the (DEC-E2005-030) employer by the Equality Acts. In this regard, particular • Catherine Morgan and Bank of Ireland Group attention should be paid to the fact that employment (DEC-E2008-029) equality law in Ireland not only applies to employees • Nathan v Bailey Gibson (SC no 375 of 1992) in the workplace, but also to prospective employees. As shown by the case of Dr Ronaldo Munck, a Legislation: person can make a claim to the Equality Tribunal for • Council Directive 2000/78/EC compensation of up to €12,697 if they feel that they • Employment Equality Acts 1998-2007 have been either directly or indirectly discriminated against by a potential employer at a job interview.

44 www.lawsociety.ie EMPLOYMENT LAW LAW SOCIETY GAZETTE NOVEMBER 2008

As far as the drafting of the policy and procedure informed in writing and an amended contract itself is concerned, a number of key points are worth of employment reflecting the new terms and noting: conditions of his/her employment should issue • In line with the recent trend towards consultation from the employer. Likewise, if an employee in the workplace, it is advisable that any proposals is unsuccessful, they should be given a clear relating to flexible working arrangements be reason in writing why their request could not be discussed with employees before pen is put to accommodated. They should also be given the paper by a drafting solicitor, right to appeal a decision refusing their request • Once the consultation process has finished, a draft for part-time work or flexible working hours. document should be formulated, aiming – where possible – to accommodate both the requirements At the end of the day, both employers and employees of the organisation concerned and its constituent need to know their rights in this area. It is particularly employees, important for employers to note that, while there is • At all times, the policy on access to part-time work no statutory obligation for them to provide part-time or flexible working should encapsulate what is work or flexible working hours to an employee, recent termed as fair procedure and dovetail neatly with case law has demonstrated that there is an obligation the equality policy of the organisation concerned. on them to treat such requests seriously and, if More specifically, the policy should contain or possible, accommodate them. provide for the following: Failure to do so may result in a costly award of a) A formal application form, requesting the compensation being made to an employee by the employee to state why they are requesting the Equality Tribunal if he/she can prove discrimination change in their contracted hours of work, under one of the nine grounds contained in the b) A clearly defined timeframe for dealing with Equality Acts. G applications made by employees, and finally, c) The manner in which a decision will issue to Colm O’Connor is a trainee solicitor with John A Shaw & Co. an employee – for instance, if an employee is He has a Diploma in Employment Law and is due to complete his successful in their application, he/she should be traineeship in December of this year.

The Irish Institute of Legal Executives is celebrating their 21st Anniversary with a black-tie gala dinner on Friday 5th of December 2008. In The Honorable Society of King’s Inns

For more information or to book your tickets please contact: [email protected] 01 6690939

www.lawsociety.ie 45 LAW SOCIETY GAZETTE NOVEMBER 2008 PROFILE

As CEO of the Courts Service for almost ten years, PJ Fitzpatrick has overseen the transformation of the system from a “ruinous condition” into a modern, 21st century organisation. Tom Rowe spoke to him in advance of his retirement

rom the many windows of his corner headed the Courts Service, a tenure that is coming office in Smithfield, looking south to an end this year. He says that he is “a firm towards the Phoenix Park, PJ Fitzpatrick believer in fixed contracts. Many people stay too can see one of the most dramatic results long in top jobs, get burned out and lose energy, F of his tenure as CEO of the Courts lose enthusiasm. I promised that wouldn’t happen Service. The service’s new building rises above the to me, so I’m stepping down.” Having completed skyline in the distance, 11 stories of glass and steel two contracts with the Courts Service, PJ is moving in a distinctive circular shape. Due to be completed on, but says “obviously, I’m not going to be doing and operational in early 2010, it “flew up – it is nothing. I’ll see what happens, but I’m certainly not several months ahead of schedule,” says the CEO. going to retire and play golf – I’m too young for Enthusiastic in his description of the new edifice, that.” PJ talks of the 22 technology-laden courtrooms, the Youth has never been a hindrance to the CEO. MAIN POINTS accommodation for 100 prisoners in the basement, Appointed as a director of human resources in and the direct access for garda vans to avoid “all the health services at 28, he spent ten years as an • Nine years as the the problems of handcuffs and photographs at the assistant CEO before moving into the top position first CEO of the Four Courts”. There will be victim-support rooms in the old Eastern Health Board. He remains a Courts Service on every level, facilities for solicitors, and the Bar non-executive director of the HSE. He was the first • Modernisation and Council is setting up a library on its own dedicated CEO of the Courts Service when it was established reconstruction floor. It will replace all the criminal courts in in 1999 as a new independent statutory agency. • “Dragging the Dublin. PJ is aware that he was “given an opportunity courts into the The new building is one of PJ’s proudest and that few ever get – to build an organisation from a 21st century” most visible achievements of the nine years he has greenfield site”. It was a “hectic time”, but he has

46 www.lawsociety.ie PROFILE LAW SOCIETY GAZETTE NOVEMBER 2008 HAIL TO THE CHIEF

“enjoyed every minute of it”. He cannot emphasise to exercise majorities; we’ve always had consensus,” enough how fortunate he was to have supportive he says. Aside from the nine judges on the board, boards, Chief Justices and presidents of the courts, at any one time there could be “40 or 50 judges as well as judges and staff. involved in committees or various projects, where a lot of work gets done, as in other organisations”. Laying the foundations Alongside the work of the judges, for PJ the There were several issues at the foundation of staff of the service have been “second to none”. the Courts Service that could have scuppered He “never ceased to be amazed by the openness to the entire project. Judges were concerned about change”. “We have not had one industrial dispute in whether or not being involved in the board would nine years, despite the scale and volume of change”. threaten or impact on the separation of powers and While the courts have an image of being “traditional judicial independence. The working group that and conservative”, change was embraced, although recommended the establishment of the service, the ‘partnership structures’ set up were also a major chaired by Mrs Justice Susan Denham, was of the contributing factor. PJ talks of initial negotiations view that, because the activity of the service was with staff and trade unions. He had to stand his related to administration, it was not inappropriate for ground on certain issues, such as insisting that the judges to work on the board. PJ regards this as their highest Supreme Court offices were no longer to be most important recommendation, since “if the judges filled on a seniority basis, as they had traditionally had not decided to get involved at the time, much of been. Competitive interview was agreed upon, what we achieved simply wouldn’t have happened”. but only at the 11th hour of negotiations. After the The success of the board is exemplified by the fact potential industrial relations disputes had been that they have never had a vote. “Nobody has sought ironed out, PJ set about creating a strong corporate

www.lawsociety.ie 47 LAW SOCIETY GAZETTE NOVEMBER 2008 PROFILE

identity for the Courts Service, with “our own brand, the service received support for the closures from our own colour, so we became very visible and staff judges, staff and those who use the courts, as they could identify with the service”. could see the significant investments being made in new buildings and the restoration and modernisation Real work of old ones. Once the foundations were laid, the real work As well as bricks and mortar, the courts have been began, with modernisation and reconstruction. Mrs dragged into the 21st century from a position that “There were Justice Denham’s working group had described PJ believes would surprise many, even those who the courthouses of Ireland as beings “in a ruinous now work within the Courts Service. In 1999, “there times when condition” in the late 1990s. According to PJ, at the was no information technology, no email, nor any people were time, “there were a lot of courts sitting in community understanding of IT or its potential”. With centres, halls and hotel rooms. It was pretty poor, €200 million of initial funding for buildings and IT, wondering ‘Is to put it mildly. In Nenagh, the roof had fallen the courts have undergone an electronic revolution it worth it?’. in”. During his time, the service has refurbished or that has eliminated a lot of manual procedures and built 50 new courts and upgraded more than 100 practices. A courts accounting system has allowed We know it nationwide. From memory, PJ lists a long series of all family law payments to be done electronically, is now – we towns around the country that have benefited from whereas in the past a huge amount of time was taken the new facilities or are soon to receive them. Not up writing out cheques and taking in money from can see the everyone has been pleased with the changes, as there spouses. Fines can be paid online, small claims can be benefits in have also been a hundred closures of courthouses processed online from start to finish. All judgments around the country. Referring to Mayo, where are online – often on the day they are delivered to real terms” objections to the closure of courthouses in Ballinrobe court – allowing easy access to academics, journalists, and Ballyhaunis led to a reversal of the decision, PJ researchers and students. Along with the service says that, in the western seaboard counties, there were website, the statutory mandate to provide information just too many venues to justify. “Mayo had around to the public is being well attended to. ten or 11, Galway had 13. That number just couldn’t A Courts Service newsletter has been published survive, and we certainly couldn’t justify spending a since 1999. Now with a circulation list of 10,000, it huge amount of money on courts that sat only once goes to all involved in the law in Ireland, including a month or every two months. The volume of cases service staff. PJ sees it as a form of communication was only a couple of hundred a year.” PJ believes that that was especially crucial in the early stages. FACT FILE PJ Fitzpatrick • Born in Cavan, lives in Tullamore, commutes by train daily. Baghdad, Angel of Grozny and With their Backs to the World. • Married with four children in their 30s. Enjoys autobiographies: Sean Kelly’s Rule 42 (“a textbook for • Plays golf once a week, more in summer, wife plays too. managers implementing change”) and Moss Keane’s book. • Very involved in GAA football. Goes back to Cavan for their • Two sons in financial services. Reads books they leave matches. around the house about hedge-fund managers. • Enjoys reading. Mostly work reports now, but has read four • Watches golf, rugby, football, any sport, news, current books recently, including Asne Seierstad’s 101 Days of affairs.

48 www.lawsociety.ie PROFILE LAW SOCIETY GAZETTE NOVEMBER 2008

Revealing some of the theory behind his management strong, to dispel doubts that some had about the new style, PJ states that most change programmes that organisation. “Soon, people bought into the whole fail do so due to poor communication with key concept.” stakeholders. To avoid this, user groups were created Despite his imminent departure, PJ is full of plans for “virtually every facet of the courts system”, which for the future of the Courts Service. Redevelopment come together every year to “examine what we are of the Four Courts is the next big capital plan, with doing, get feedback from them on what we could be a single office for all family and civil law. Many doing better, or what we’re not doing at all”. extensions to the building will be demolished and replaced with a building more in keeping with the Staying the course Gandon-designed complex. Unlike the Phoenix Park The CEO believes that the courts system is hugely building, the Four Courts will not be a public/private improved. When he arrived, “it was very centralised, partnership and will be done on a phased basis with there was no strategic planning, no annual reports, the Office of Public Works, starting in 2010 at the very few statistics or financial information. The funds latest. of wards of court and minors were €700 million, On a more internal level, electronic filing for all and every office looked after its own. It was all civil and family law will transform the system, as it done manually, on ledgers”. Now it’s computerised, will be possible to lodge documents electronically. In professionalised, and stands at €1 billion, with addition, a case-progressions system is being piloted Mercer retained as investment advisors and JP in Limerick, which will allow management of family Morgan as custodian. law cases to improve and speed up cases and reduce This outsourcing has been a feature of PJ’s term as costs, with county registrars meeting parties to CEO. Often asked why, he says there is no ideological identify disputes and agreements before court dates. reason. When founded in 1999, recruiting and Whoever replaces PJ will have a lot to live up to, retaining IT people for the service was “a nightmare”, but could do worse than listening to the lesson he as the dotcom boom was vibrant. With “so much learned. “You really do have to stay the course; you to do and so little time”, the decision to outsource have to keep your focus on the ultimate vision. There extensively was made – not only in IT, but in many were times when people were wondering ‘Is it worth areas, such as security and maintenance. The need for it?’. We know it is now – we can see the benefits in ‘quick wins’ and immediate visible improvements was real terms.” G

www.lawsociety.ie 49 LAW SOCIETY GAZETTE NOVEMBER 2008 PEOPLE AND PLACES ALL PICS: LENSMEN

Fine Gael dinner guests The leader and other elected representatives of Fine Gael were special guests for dinner at the Law Society of Ireland on 1 July 2008 (back, l to r): Mary Keane, Ken Murphy, Philip Joyce, Kevin O’Higgins, John O’Connor and John D Shaw. (Front, l to r): Lucinda Creighton TD, Alan Shatter TD, Enda Kenny TD, James MacGuill (president), Olwyn Enright TD, Senator Paul Coghlan and Senator Eugene Regan

LawCare board convenes in Fair City Representatives from LawCare staff and LawCare Trustees travelled to Blackhall Place, Dublin, for the LawCare board meeting on 20 October. (Back, l to r): James Ness, Tom Murran, Bronwen Still, Paul Venton and Pictured prior to the Fine Gael dinner were (l to r): Fine Gael leader Enda Ann Charlton. (Front, l to r): Louise Campbell, Hilary Tilby, Olivia Burren, Kenny, director general Ken Murphy and Senator Paul Coghlan Trish McLellan and Mary Jackson

At a dinner for the leader of Sinn Féin, Gerry Adams, and a number of the party’s elected representatives were (front, l to r): Arthur Morgan TD, Gerry Adams MP, President James MacGuill, Mary Lou McDonald MEP and Aengus Ó Snodaigh TD. (Back, l to r): deputy director general Mary Keane, Council member Gerry Doherty, Council member Michelle Ní Longáin and Lisa MacGuill

50 www.lawsociety.ie PEOPLE AND PLACES LAW SOCIETY GAZETTE NOVEMBER 2008 Tipperary tackles these tough times

he Practice Management solicitors understand their cost ALL PICS: GEORGE WILLOUGHBY TTask Force, established base and obtain reasonable by Law Society President remuneration for the services James MacGuill, hosted a they provide. seminar entitled ‘Changing the The seminar showed traditional methods of practice members how to be profitable for increased profitability’ in the in these challenging times Horse and Jockey, Thurles, on and highlighted the benefits 8 October 2008. of changing the traditional One of the functions of the methods of practice to achieve task force is to ensure that this aim.

E O’Mahony, Deirdre Blackwell, C Hickey and Claire McCarthy (all Clonmel)

William Gleeson (Thurles), Nicholas Shee (Clonmel) and Eithne O’Meara (Clonmel), Patrick Kennedy (Thurles), Philip Egan John Joy (Clonmel) (Thurles), Martin Hughes (Thurles) and Susanna Manton (Fethard)

Some of those who attended a meeting of the Tipperary Bar Association after the conference are pictured with President of the Law Society James MacGuill (seated) at the Horse and Jockey Hotel, Thurles, on 8 October 2008

www.lawsociety.ie 51 LAW SOCIETY GAZETTE NOVEMBER 2008 PEOPLE AND PLACES End-of-year dinner at Blackhall Place ALL PIX: LENSMEN) he committees of Tthe Law Society FACES held their annual IN THE CROWD end-of-year dinner in the Presidents’ Hall of the Blackhall Place premises, on 25 September 2008. The Gazette camera was on hand to capture some of the many committee members and committee secretaries who At the committees’ end-of-year dinner on 25 September 2008 were (l to r): attended the event. President James MacGuill, CEO of the Canadian Bar Association John DV Hoyles, Justin McKenna and Ken Murphy

Carol Anne Coolican, Joan O’Mahony and Rosemary Niamh Connery and Aisling Kelly added to the Horgan of the Family Law Committee caught up at the glamour at the committees’ end-of-year dinner committees’ end-of-year dinner

Tony Ellwood, John D Shaw, Philip Daly and Jill Callanan met up at the annual dinner

52 www.lawsociety.ie PEOPLE AND PLACES LAW SOCIETY GAZETTE NOVEMBER 2008 Embassy meeting for Sligo and County Solicitors’ Association total of 32 practitioners PIC: JAMES CONNOLLY, PICSELL8 LTD A from Sligo attended a very successful – and busy – lunchtime meeting with the president and director general of the Law Society on 22 October 2008, at the Embassy Rooms in Sligo town. Various issues were discussed, including the likely impact of the economic slowdown on the profession generally, the Legal Services Ombudsman Bill 2008, the Civil Law (Miscellaneous Provisions) Act (Front, l to r): Trevor Collins (secretary, Sligo and County Solicitors’ Association), Michelle O’Boyle, Ken Murphy (director general), Seamus Monaghan (president, Sligo and County Solicitors’ Association), James MacGuill 2008, and the Law Society’s (president) and Hugh Sheridan. (Back, l to r): Carol Ballantyne, Eamonn Creed, Fiona Maguire, Declan Gallagher, 2009 annual conference in Dervilla O’Boyle, Sean McTernan, Aine Kilfeather, Marie Cullen, Elaine Coghill, Brendan Johnson, Donal Carroll, Bilbao. Martin Burke, Lorraine Murphy, David Gallagher and Ita Lyster The class of ’58 reunites! PIC: LENSMEN

(Front, l to r): Liam MacHale, John PA Hooper, John D Nugent, Gillian M Hussey, John P Carrigan (president), Margaret M Foley and Patrick J O’Brien. (Middle, l to r): William A Young, Michael NM O’Donoghue, John M O’Donnel, Michael J Bowman, Franklin J O’Sullivan, Thomas P O’Connor, Patrick MA MacNamee, James PG O’Connor, Martin E Marren, Henry J Wynne, Michael J Moore and Richard Joseph Brannigan. (Back, l to r): Joseph Murray McGowan, Fergus P Taaffe, John P Redmond, James Kevin Martin, James Noel Tanham, John Keller Temple Lang, Michael Brendan O Cléirigh, an tUasal Peadar Ó Maoláin and Michael P Keane

he class of 1958 enjoyed a invited to attend the function. Trecent reunion at Blackhall He declined on the basis that he Place. They brought with them is now 91. a copy of their graduation The class of ’58 is quite an photograph, while the Gazette interesting one – it contains was on hand to take a more up- three former District Court to-date version. judges, while one individual We present both photos confided in past-president Philip to see if you can guess who’s Joyce that he had been asked by who in the recent photo. John two Ministers for Justice to put Carrigan was president of the his name forward for the High Law Society in 1958 and he was Court – can anyone guess?

www.lawsociety.ie 53 LAW SOCIETY GAZETTE NOVEMBER 2008 PEOPLE AND PLACES Keira-Eva takes silver for Ireland eira-Eva Mooney has Kdone it again. The Kildare solicitor and Irish triathlon athlete clinched a silver-medal place in the ITU Duathlon World Championships on 29 September 2008 in Rimini, Italy. The contest consisted of a 10km run, followed by a 40km cycle, ending with a 5k run. It was a commanding victory for Mooney who finished in a time of two hours and 23 seconds – a personal best against top athletes from over 40 countries. Keira-Eva opened the race with a fast ten-kilometre run before she headed out onto the 40-kilometre bike course. One of the most powerful cyclists in the sport, she clawed back by bringing home silver Halifax, Nova Scotia, to Texas aims to develop a test for her medal position with a very for Ireland at the World (4,300k in relay). The cycle was early detection of ovarian and fast bike split, and increased Championships,” she told the organised by the Tony Griffin uterine cancer. Emer was a the gap between pursuers in Gazette. “I’m on a high!” Foundation, which persuaded friend and former colleague of the final 5k sprint run. Britain’s seven-time Tour de France Keira-Eva’s when they worked Louise Kelly cut the deficit to 4,300k relay cycle winner Lance Armstrong to in MOP. put herself in medal contention, Keira-Eva has been working meet the cyclists on their arrival You can support this worthy but no one challenged Mooney’s locum posts for the past year, in Texas. cause by making a secure silver position, coasting home which has allowed her to train All funds raised go to online donation at: http:// for Ireland just three minutes and prepare properly for races. Irish cancer-related charities. my.e2rm.com/personalPage. behind Britain’s Danielle Not one for resting on her Keira-Eva’s nominated aspx?SID=1984213, or by Stewart, who took gold. laurels, she headed off for the charity is the Emer Casey choosing Keira-Eva as your “I improved my previous results Americas in October to take Foundation, where funding sponsored cyclist at www. at the European Championships part in a relay charity cycle from goes to a research team that tonygriffinfoundation.com. Mary bows out as Cork county solicitor

fter 26 years of service to role as representative of the deal with the legal aftermath of equestrian matters, including Athe Rebel County, Mary council at public enquiries and the Betelgeuse tanker disaster. successfully competing in, Roche bowed out as Cork the provider of conveyancing Over the following years, she and judging, show-jumping county solicitor on and advisory services, it can became a familiar figure at competitions. 23 September 2008, writes truly be said that Mary’s ‘legal courts all over the county. Her It must be a matter of quiet Bryan Harrington. Mary is one fingerprints’ are visible from the knowledge of local authority satisfaction for her, as she of the longest-serving in-house Mallow road to the Midleton law was a great resource to both criss-crosses the county’s roads county solicitors in the country. bypass! It is perhaps strange for her legal and administrative on the way to gymkhanas, to She is the fourth person to younger colleagues to envisage colleagues and her retirement realise that she has played a occupy the position of Cork that at the time of Mary’s marks the loss of an real part in the provision of so county solicitor and succeeded appointment, the only piece of encyclopaedic legal knowledge many aspects of the county’s Matt Purcell, John Carr and JB dual carriageway in the entire leavened with experience. The infrastructure. Hickey. She assumed the role in county was the Tivoli dual county’s judiciary recently To mark her departure, April 1982 and, in the following carriageway. During her tenure, paid her tribute, as did her county manager Martin Riordan years, acted as legal advisor to the road network of the county legal colleagues at her final made a presentation to Mary four county managers. has been transformed, with court attendance in her native on behalf of all her colleagues Her time as county solicitor Mary playing a crucial ancillary Mitchelstown. in County Hall, who wish her saw a period of unprecedented role throughout. Mary has had a longstanding a long, happy and well-earned development in Cork. In her One of her first tasks was to and abiding interest in retirement.

54 www.lawsociety.ie BOOK REVIEW LAW SOCIETY GAZETTE NOVEMBER 2008 books

Delegation of Governmental Power to Private Parties: a Comparative Perspective

Catherine Donnelly. Oxford University Press (2007), Great Clarendon Street, Oxford OX2 6DP, England. ISBN: 978-0-19-929824-2. Price: stg£60 staggering amount of public are constantly facing crises of TheTh situation in Ireland Afunction delegation takes privatisation.” iiss stistilll more greenfield site place in modern government, So, which jurisdiction offers than fertile legal landscape. blurring the line between the best protection to its “Sin“Sincec 1973, Irish law has what we consider to be public citizens? The EU seems to be recorecognisedg an action for and private. Privately run most wary of contracting out. wwrongfulron interference with a prisons, private care homes “In Meroni v High Authority, it consconstitutionalt right (Meskell v performing statutory duties, and was decided that only purely CICIEE), which is available against construction companies taking technical, non-discretionary pprivateriva actors. It hasn’t been on statutory social housing powers should be delegated; iinvokednvok very often, but if we projects (and then reneging) and any power delegated should contcontinuei down this privatisation are just a few examples. The be subject to the same legal routroute,e at least there’s a high number of privatisation standards as applied to the ppossibilityossi of making sure that crises begs two questions: does delegating (public) body.” consconstitutionalt rights obligations delegation create more work This prompts another can bbe imposed on private for government? And if the comparative question: which contcontractors.”r definition of ‘public function’ law or standard is best equipped human rights provisions and It is beyond doubt that the is shrinking, are we adequately to protect individuals whose judicial review. “Contracts exercise of governmental power protected by the law? rights can be violated by these are much more difficult to now involves an unprecedented Catherine Donnelly has companies? Are tort or contract draft in a public than in a amount of interaction with undertaken to examine the law up to the challenge, or is a commercial context. What private entities. The argument contracting-out of state human rights approach more is a good outcome for, say, put forward by this book is that functions to private entities suitable? “The problem is prison service provision, we need a new way of looking at without the simultaneous that human rights obligations economic performance or contracts. Functions delegated extension of the reach of public often only apply against state rehabilitation? Also, how can by the government are still law. In her comparative analysis actors, and not private actors, the individuals enforce the public, even if they are carried of the US, the EU and Britain, even if they are performing contract? The notion of privity out by private bodies. What she examines the adequacy of governmental functions. In rules out contractual remedies benefit is a high standard of legal restraints. Donnelly has the US, a stringent ‘state actor for service-recipients.” Tort human rights protection if the researched extensively on the test’ must be passed to invoke law is inadequate too, as it functions it should regulate are, reach of public law in the past: constitutional rights protections. requires a predefined suit by delegation, slowly retreating “I’ve always been interested The EU adopts a more flexible of action. “There are some into opaque private contracts? in the subject of the extent notion of the state, but this too suits which can be useful in The choice of legal standards, of human rights obligations. has gaps from a human rights ensuring accountability, like, public or private, “should I think that Ireland, which perspective. In the UK, the say, misfeasance in public office. generally depend on the nature is behind the US in terms of meaning of the term ‘public However, the elements of a of the power, not on the identity delegation – in a good way – authority’ has been interpreted tort action are very specific and of the person exercising it”. G is in a position where it can narrowly by the courts.” don’t always fit these cases. Also, learn from the experiences Donnelly has found that damages available in tort law Claire O’Brien is a graduate of the and mistakes of others. All private law does not provide an may not adequately vindicate University of Limerick and Queen’s three jurisdictions in the book adequate substitute for direct the right.” University Belfast.

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

www.lawsociety.ie 55 LAW SOCIETY GAZETTE NOVEMBER 2008 GADGETS tech trends

Read all the technology news here first, in your glorious Gazette. Or not, as the case may be Kafka would be chuffed, if he was dead few years ago, when the European integration is the might fit the bill. It looks fancy schmancy technology that Asmoking ban was a mere proliferation of green beer in somewhat like a cigarette, atomises the air and turns it into twinkle in whatever minister’s unpronounceable bottles. Let’s apparently tastes like a cigarette water vapour. And the tip even eye (which one was it again? face it: there are no decent beers and allegedly provides the same lights up when you inhale. Is it the one who’s now in coming out of Lisbon, after all... hit as a cigarette – but without The Gamucci Micro Electronic Finance? They all look the same But anyway: guys who work the stinky, dangerous downsides. Cigarette and the Milano to us...) the Gazette team came hazardous jobs – say, oilrig Basically, it’s a tobacco-free Cigarette are available from www. up with what must be the most roughnecks or miners – have electronic cigarette that claims iwantoneofthose.com, between reasonable of proposals. to wear appropriate protective not to involve the usual suspects stg£40 and £50. Ok, we said, it’s all about bar equipment. So why not supply like tar, carcinogenic chemicals, workers’ health. Fair enough, barmen with gas masks? It’s a and so on. The nicotine hit is we thought, and it’s probably small price to pay, having your supplied by cartridges – each on foot of some EU directive pint pulled by someone who one packing the awesome lasting or other. Surely that must looks and sounds like Darth power of 20 fags – in a variety have the scent of democratic Vader, if you can openly smoke of strengths. Virtual ‘smoke’ is legitimacy about it? Because, in his face. generated by drawing if we’re all being honest, the But ’twas not to be. Which air through the only tangible argument for is why this nifty little number device, using some Monkey say, monkey do – that’s what they tell us he Society’s noble IT- in real life, ever – has narrowed laptop keyboard. In terms of On the downside, it’s not as Tmonkeys inform us that your options down to two of the memory and power, it has a small and light as some of the the hottest new products this best of these sleekit wee beasties, 1.6GHz Intel Atom CPU, up to competition. year include what have become as Rabbie Burns might say. 2GB of RAM, and the Windows Which brings us neatly to known as ‘netbooks’ – mini- First up is the Asus Eee PC XP model has an 80GB drive the Acer Aspire One, which is laptops optimised for ultra- 1000 (below), which we have – making it a pretty damn competitively priced and has an portable wireless web browsing. heard described as “the Holy powerful netbook compared impressive set of features. It also Checking out the numerous Grail of tiny laptops”. Again, with the competition. It also has a 1.6GHz Intel Atom CPU, options out there, the Gazette lads: heard! Won’t someone comes with up to an extra as well as up to 1.5GB of RAM, – or, rather, the people we rip somewhere actually send us 20GB of web-based storage. an 8.9-inch WSVGA screen off these reviews from, because products to try? It promises high-definition that works well even in outdoor we’ve never seen any of the It has a decent-sized 10” audio and a seven-hour battery light, a great keyboard, and an products we supposedly review screen and an almost full-sized life, and 3G is in the pipeline. optional HDSPA/3G module for true go-anywhere internet access. Storage starts at 8GB,but can be upgraded to 80GB. However, the mouse pad has attracted criticism, and the standard battery pack has only about three hours’ worth of life in it. However, it should be cheaper than the Asus unit. The Asus Eee PC 1000 is just over €400 (including VAT) from laptopsdirect.ie, while the Acer Aspire One is about €320 from expansys.ie. Prices vary somewhat, so do a google and look around.

56 www.lawsociety.ie GADGETS LAW SOCIETY GAZETTE NOVEMBER 2008

You are what you read – so, how soulless are you?

n our view, nothing will ever can also be changed between be downloaded in minutes. Ireplace real books. Proper three different font sizes. It If we had to go with one, books. To our eyes, even the can store over 150 books in its we’d probably choose the creepy guys in anoraks reading built-in memory and allows you Kindle – purely based on Harry Potter on the train look to store extra books on spare the reviews – but Sony’s more sophisticated – no, let’s memory cards. You can also use technological experience and not pull any punches here: they it for digital photos and music. reputation might win out in the look more civilised and less The Kindle (left) has been end. sociopathic – than those next getting better reviews, however. The Sony Reader is available to them staring intently at their It does much the same as the from www.peats.com for €249. phones or music players like Sony unit and has a similar The Kindle is $359 (about €279) they’re awaiting orders from ‘paper-like’ screen display, but from amazon.com. God to have fun. the Kindle links to Amazon’s That said, we can see online store and there are circumstances in which having 145,000 titles available to the equivalent of a small library download. And as well in electronic form might be your choice will probably come as books, readers can handy. Your year out to travel down to one of these two: Sony’s subscribe to newspapers the world, for example. Or the PRS-505 Reader or the Amazon and blogs, Moreover, interminable plenary session Kindle. The former (right) Amazon has a clever of that conference you fiddled has an impressive display that way of linking the your expenses to justify. Or uses ‘paper-mimicking’ screen device to the when you’ve been fired and technology that apparently content – each have moved into a small bedsit makes it easy to read even in Kindle is in Ballyhaunis and haven’t told bright sunshine. In addition, the connected to your Ma yet. And so on. screen allows for high contrast a 3G mobile So which e-book reader to and high resolution, with a near network, so choose? Well, at the moment, 180° viewing angle. The text books and papers can

SITES FOR SORE EYES

Take it to the top (www.supremecourt.ie). When every man ’Scuse me while I kiss this guy (http://lyrics.rockmagic.net). and his dog – and indeed One Man and his Dog – have their Everyone occasionally mishears lyrics sung by the popular beat own websites, it’s no surprise to hear that the Supreme Court combos of today and yesteryear, and, to be fair, half of those guys has gone digital native. The new site offers the full text of the didn’t know what they were singing when they were singing it. Constitution, info about the court, its composition, its judgments, Still, it’s good to have a site that – while not necessarily dead-on as well as a primer on the legal system as a whole, biographies balls accurate, as they might say in My Cousin Vinny – is close of judges, and the role of the Supreme Court Office. Nothing enough for pub-quiz purposes. And now you, too, can mull over groundbreaking here, but worth bookmarking. the bizarre lyrics of Al Stewart’s ‘Year of the Cat’.

www.lawsociety.ie 57 G

of training places in large Dub- of training places in large as waslin firms was increasing, places inthe number of training By cor- in-house corporations. of training the number ollary, places in small/medium-sized firms was reducing. John Hoyles, Canadian Bar Association The chief executive of the Ca- nadian Bar Association, John Hoyles, addressed the Council meeting. He confirmed that the Canadian Bar Association would hold its annual meeting for 2009 in Dublin from 15-18 August, following a poll of its members in which over 80% had indicated Dublin as their first choice for an offshore meeting. It was expected that the 800-1,000 attendees would have a full and productive experience during the course of their stay in Dublin. It was also hoped that many Irish lawyers would participate in the professional development sessions. Address by past-presidents On the occasion of their last meeting of the Council of the past-presidents Law Society, Geraldine Clarke and Owen Binchy expressed their grati- tude to the Council for their friendship and camaraderie over the past 24 and 21 years respec- and for having had the tively, honour of serving as president of the Law Society. The IHRC is delighted to announce that the President of Ireland, Mary McAleese will give the IHRC’s 3rd Annual Human Rights Lecture. The public lecture takes place at the National Gallery of Ireland, Merrion Square, at 6pm on 25 November 2008. Tuesday, ing the amount of legal busi- ing the amount of legal forces,ness or changing market of theit could assist members theirprofession to concentrate trimmingminds on methods of effi- expenditure and increasing ciency within their practices. Complaints and Client Relations Committee The Council approved the appointment of the following six lay members to the Complaints and Client Relations Commit- tee, with effect from 1 January 2009: (nominated by IBEC) Frank Cunneen Michael Carr, (nominated and Michael Lynch; by ICTU) Brendan Hayes, Dan Murphy and Sheila Nunan. Meeting of presidents, secretaries and PROs of bar associations The president briefed the Council on the meeting with the presidents, secretaries and PROs of bar associations, which had been held on 22 July 2008. solicitors Trainee James O’Sullivan reported that there were 595 trainee solicitors on the current PPCI course, with 76 in Cork and 519 in Dub- lin. This represented an 11% reduction on 2007, although the reduction had been pre- ceded by unprecedented surges in numbers. He noted that the profile of the training solicitor was changing and the number The effects of the economic While it was acknowledged rules, any relevant case law and rules, any relevant case any other relevant information, be dis- and the matter would Coun- cussed at the November cil meeting. Budget submission 2008 The Council noted the budget submission prepared by the Committee, which Taxation had been forwarded to the Min- ister for Finance. The president confirmed that representations had also been made to the minister with an offer to engage in discussions about the manner in which the solicitors’ profession and the Society could assist in confidence-building and in identifying steps that might be taken to stimulate commercial activity. downturn on the profession were discussed. It was noted that, together with all other businesses, the profession was facing cutbacks and financial difficulties. Philip Joyce said that the Practice Management Force was holding two Task seminars on 8 October and both of which 3 November, were heavily subscribed. The purpose of the seminars was to present to colleagues different methods of maximising profits within their practices and also of maximising efficiencies. that there was nothing that the Society could do about increas- Law Society Council meeting, Council meeting, Law Society 2008 26 September NOVEMBER 2008 NOVEMBER report the submis- To register for the annual lecture, please contact: Karine Petrasuc at tel: 01 858 9601 or email: [email protected] To President of Ireland, Mary McAleese 25 November 2008 on Tuesday IHRC 3rd Annual Human Rights Lecture by council www.lawsociety.ie sions received from a number of bar associations in relation to (a) a proposed prohibition on acting on both sides of a conveyance, and (b) a proposed prohibition on solicitors giving undertakings on their own behalf. It was agreed that an ‘issues paper’ should be prepared in relation to each mat- of incorporating the views ter, the bar associations, the current Comparative review of models of regulation and representation the The Council discussed models comparative review of of regulation and representa- which had tion internationally, been conducted by Joe Bros- nan, and which had been presented by him to the Council at its July meeting. It was agreed report was an that Mr Brosnan’s excellent document, which contained a considerable amount of original research and identified a number of key issues for con- sideration. It was agreed that the Council should discuss the matter further in order to crys- tallise its own thinking, before engaging in a collaborative discussion with the profession on the matter. Proposed prohibitions on (a) acting on both sides of a conveyance, and (b) solicitors giving undertakings on their own behalf The Council noted LAW SOCIETY GAZETTE SOCIETY GAZETTE LAW

BRIEFING 58 BRIEFING 59 its position very and swiftly should seek to ensure that when renewed, is its cover, effective from the date of expiry of its previous cover, with a view to mitigating the adverse consequences of defaulting firm status. Firms, and in particular all sole principals intending to cease practice, should pay particular attention to the information relating to premium terms for run-off cover contained in quotations or renewal notices. All quotations and renewal notices are required to contain the following notice: Firms, rather than individual solicitors, are covered. Firms can agree any level of self-insured excess with In the event their insurer. of a claim, where the firm www.lawsociety.ie NOVEMBER 2008 NOVEMBER • “Notice to proposers for insurance: you should be aware that by accepting a quota- tion and taking out a policy, this insurer becomes obliged, should your practice cease during this policy year without a successor practice, to provide run-off cover for a six- year period at the premium rates calculated in accordance with the provisions of you Consequently, this policy. should ensure that the run-off premium terms are satisfac- tory to you before entering into a policy.” the main By way of reminder, changes introduced by the new regulations are: 1) 2) notes

LAW SOCIETY GAZETTE SOCIETY GAZETTE LAW practice tions. Such firms should therefore arrange to put ad- if they ditional cover in place consider it appropriate. Solicitors providing legal services solely outside the jurisdiction will not be required by the Law Society to have professional indemnity insurance cover in place. Where a firm ceases practice and there is no succeeding practice, run-off cover for six years from the end of the then-current indemnity period must be provided by the last insurer. (Run-off cover is coverage that includes the minimum terms and conditions for a firm that has ceased to carry on practice, where there is no succeeding practice.) Sole principals are strongly recommended to consider and plan for the cost of run- off should it come cover, into force. The exemption for in-house solicitors providing legal services only to their employer continues to apply. Firms should endeavour to renew their cover as early as possible for the coming year in order to ensure that the Law Society is provided with confirmation of cover by 15 December 2008. If a firm is deemed to be a defaulting firm, such a firm should use its best endeavours to regularise • • • What firms should do with regard to the renewal of professional indemnity cover: • • de- ’. The Assigned as a defaulting . The manager of the As- faulting firm Risks Pool will automatically provide such firms with professional indemnity insurance cover firm signed Risks Pool will set an appropriate premium, which will be much higher than that available in the market. If claims should arise while a defaulting firm is being provided with cover by the Assigned Risks Pool, such claims will be met by the Assigned Risks Pool, but the Assigned Risks Pool will then have recourse against the firm for recovery of the amount of the claim. The Law Society will seek a High Court order compelling any defaulting firm, which does not regularise its position very to cease swiftly, practice. Obviously it is in the interests of all firms to avoid becoming a defaulting firm. Firms providing legal services relating to the laws of any other jurisdiction should note that the minimum terms and conditions do not cover legal services relating to the laws of other jurisdic- be obtained from the Law The manager of the Society. set Assigned Risks Pool will an appropriate premium. Any firm for which confirmation of cover is not received within the ten-working-day period and which has not applied, and been admitted, to the Assigned Risks Pool will be classified as a ‘ • • • NOTICE TO ALL PRACTISING SOLICITORS: PRACTISING SOLICITORS: NOTICE TO ALL PROFESSIONAL INDEMNITY INSURANCE REGULATIONS INDEMNITY INSURANCE PROFESSIONAL

he new regulations governing the minimum terms The attention of all practis- Cover must be renewed with effect from 1 December This date is not each year. negotiable. New practices should obtain cover from the date of commencement of practice to expire on 30 All existing cover November. expires on 30 November 2008. Confirmation of cover in the designated form must be furnished to the Law Society within ten working days after the due date for renewal All firms must each year. confirm cover by 15 Decem- the bro- ber 2008. Normally, ker provides confirmation of but the obligation is cover, on each firm to ensure that this is done. Any firm that is unable to obtain cover in the market should, before expiry of its cover on 30 November 2008, apply to be admitted to the Assigned Risks Pool. (The Assigned Risks Pool is the pooling arrangement participated qual- in by each ified insurer through which firms not covered by the market may be granted coverage that incorporates the minimum terms and conditions.) A proposal form can T ing solicitors is particularly drawn to the following practical considerations: and conditions of professional indemnity insurance for solicitors came into operation on 1 November 2007. • • • G

egulations should be egulations should be clients will be coveredclients will by in- situations wheresurance in previously there risk was a of no cover. Any queries relating to the Firms are assured that their John Elliot, Registrar of Sol- icitors and Director of Reg- ulation. For further information Please referthe Law Soci- to ety’s website, www.lawsociety. ie, under Society committees – Professional Indemnity In- surance – for the designated formfor confirmation of cover new pro-and the full text of the fessional indemnity insurance regulations. professional indemnity insurance r addressed to the Law Soci- ety executive responsible for professional indemnity insurance, Rosemary Fallon, at 01 672 4856 or r.fallon@law society.ie. 4) 2,500,000. Situations wherebySituations clients access to pro-do not have indemnity insur- fessional ance cover are prevented, Clients are automatically covered period for a six-year prac- after a solicitor ceases years tice, rather than two as previously, Statutory or compensation restitution is cov- to clients ered, Where Risks the Assigned Pool covers a firm, each of claim has its own limit € The insurance of firms rather than individual solicitors simplifies renewal, particularly for those who move firm, Firms can negotiate the level of their own self-insured excess, There is no limit on defence costs, The benefits for clients are:The benefits 1) 2) 3) 4) 1) 2) 3) The benefits for solicitors are: 2,500,000 each and every firm subsequently. Statutory or compensation restitution to clients, such orderedas may be the by Solicitors Disciplinary Tribu- nal, is covered. Any firm that, for whatever reason, have in- fails to surance is covered by the for Assigned Risks Pool € claim (the current minimum than level of cover) rather that amount in aggregate for all claims. If a firm enters by the Assigned Risks Pool default (having failed to arrange insurance), the firm can be pursued directly by the Assigned Risks Pool if any claims are made. Insurers who were formerly members of the Profes- sional Indemnity Insurance Committee are now be represented on a separate ‘Qualified Insurers Liaison Committee’, to avoid a conflict of interest. 7) 8) 9) NOVEMBER 2008 NOVEMBER 130,000, € does not pay the amount of does not pay to the client, it is the excess insurerpaid by the and then recovered from firm. the There is a uniform renewal date of 1 December. the The defence costs of solicitors for the insurer arefor dealing with a claim had not limited. Such costs been limited to but now simply form part of the overall cover provided without any limit. Run-off cover is for a six- two year period, rather than and years as previously, must be provided automati- with cally by the last insurer, the run-offcover premium terms for each year being set out in quotations and renewal notices for the normal cover. Insurers cannot repudiate a policy on any grounds, including fraudulent misrepre- sentation. They must cover claims, but may pursue the 3) 4) 5) 6) www.lawsociety.ie LAW SOCIETY GAZETTE SOCIETY GAZETTE LAW

BRIEFING 60 BRIEFING 61

and 1/11/ 23/9/ . Sec- in or- amends Social Welfare Social Welfare Amend the Sets the new (SI 340/2005) Prepared by the Prepared SI 394/2008 SI 375/2008 Law Society Library www.lawsociety.ie Pensions Act 1990 NOVEMBER 2008 NOVEMBER Pensions Act 1990 Pensions Act 1990 sertion of section 64P intosertion of section the tion 27 of the and Pensions Act 2008 the ‘Reg- inserts a new part VIA, intoistered administrators’, the der to bring registered administrators of pension schemes within the remit of the act in relation to certain core functions that they perform on behalf of trustees of pension schemes. Revokes an earlier section 27 commencement order (SI 277/2008). Regulation Act 2003 Taxi (Maximum Fares) Order 2008 Number: Contents note: national maximum fares that may be charged throughout Revokes the pre- the country. vious maximum fares order (SI 438/2006). Commencement date: 2008 Management Waste Electrical and (Waste Electronic Equipment) (Amendment) Regulations 2008 Number: Contents note: Elec- Management (Waste Waste trical and Electronic Equipment) Regulations 2005 (WEEE regulations). Commencement date: 2008 Appoints Appoints Provide for LAW SOCIETY GAZETTE SOCIETY GAZETTE LAW SI 397/2008 SI 391/2008 SI 398/2008 , other than insofar Social Welfare and Pensions Social Welfare Finance Act 2008 (Com- 46) mencement of Section Order 2008 Number: Contents note: 9/10/2008 as the commence- 46. This ment date for section section provides for the introduction of a scheme of accel- erated capital allowances for expenditure incurred by a company on certain energy-efficient equipment for the purposes of a trade carried on by that company. Official 2003 Languages Act (Section 9) Regulations 2008 Number: Contents note: the use of the Irish language or the Irish and Eng- only, on lish languages together, recorded oral announce- ments, stationery and signage of public bodies. A number of exemptions are detailed in the regulations. Provide for a number of different dates from 1/3/2009 to 1/1/2026 on which the various provisions provided for in the regulations shall come into effect. and Pensions Social Welfare Act 2008 (Section 27) (Com- mencement) (No 2) Order 2008 Number: Contents note: 1/11/2008 as the commencement date for section 27 of the Act 2008 as section 27 relates to the in- , as 100 € 10/9/ 26/9/ Criminal Jus- Sections 23A 140 and Intoxicating Li- Amend the def- € , provide for the SI 363/2008 SI 393/2008 Medical Practitioners Act legislation update legislation , to include the amend- Come along and participate in the fun activities! quor Act 2008 issue of fixed-charge notices in respect of offences committed under section 5 (disorderly conduct in a public place) and section 4 (intoxication in a public place) of the act. These regulations set the levels of the fixed charges, SELECTED STATUTORY SELECTED STATUTORY INSTRUMENTS Or- Criminal Justice (Public 23A der) Act 1994 (Sections 2008 and 23B) Regulations Number: Contents note: and 23B of the Act 1994 tice (Public Order) amended by the respectively, and the format of respectively, the fixed-charge notice. Commencement date: 2008 European Communities (Directive 2006/100/EC) (Recognition of Bulgarian and Romanian Medical Qual-ifications) Regulations 2008 Number: Contents note: inition of directive 2005/36/EC, which is provided for in section 2 of the 2007 ment of that directive by directive 2006/100/EC. The effect of this amendment is to allow for the recognition of medical qualifications of Romanian and Bulgarian medical practitioners by the Medical Council under the provisions of the 2007 act. Commencement date: 2008 (Programme available on Moodle and at the information desk) There will also be a Multicultural Party with food and entertainment. ‘Rel-

in rela- Makes pro-

2/10/2008 HUMAN RIGHTS DAY AT THE LAW SCHOOL – 16th DECEMBER 2008 THE LAW AT HUMAN RIGHTS DAY 18/2008 We have organised a special event to mark the 60th anniversaryWe of the Universal Declaration of Human Rights 16 September – 20 October 2008 – 20 October 16 September vision, in the public interest, for maintaining the stability of the financial system in the state and, for that purpose, provides for financial support by the Minister for Finance to credit institutions. Enables the minister to guarantee, up to 29/9/2010, the borrowings, liabilities and obligations to the Central Bank or any person of any credit institution or sub- sidiary that the minister may Amends the specify by order. Competition Act 2002 tion to a merger or acquisition involving a credit institution. Makes consequential amend- ments to other enactments and provides for related matters. Date enacted: ACT PASSED Credit Institutions (Financial Support) Act 2008 Number: Contents note: Commencement date: Details of all bills, acts and Details of all bills, since statutory instruments library 1997 are on the catalogue – www.lawsoci- and stu- (members’ ety.ie updated dents’ areas) – with current information on the stage a bill has reached and the commencement date(s) of each act. date’ is defined in evant the act as 30/9/2008, the date from which – for a two-year period – the minister may provide financial support to credit institutions. Regulations to be made for bringing the act into operation (per s5 of the act) , it basis and the court Hague Convention ex parte , High Court, Ms Justice [FL14983] Finlay Geoghegan J set aside IMMIGRATION AND ASYLUM LAW The order for return was made The order for return on an was satisfied at the time that the was satisfied at the time properly respondent had been served with the proceedings. application The respondent’s was made pursuant to the inher- ent jurisdiction of the court by reason of the failure of the court to comply with the mandatory obligation under article 11(2) of Council Regulation (EC) 2201/ 2003. Article 11(2) of the regulation provides that, when applying articles 12 and 13 of the 1980 shall be ensured that the child is given the opportunity to be heard during the proceedings, unless it appears inappropriate having regard to his or her age or degree of maturity. the order for the return of the child, holding that the obligation imposed on the court by article 11(2) was a mandatory obligation and independent of any issues raised by the parties. the total failure Consequently, by the court to comply with that obligation in the sense of not even considering article 11(2) amounted to a fundamental failure that went to the jurisdiction of the court. R v R Finlay Geoghegan, 12/12/ 2007

Judicial review Leave application – whether the applicant established substantial of the grounds to permit a review decision of the Refugee Applications Commissioner. The applicant sought leave to apply for judicial review of the decision of the Refugee Appli- , ar-

, on the basis that he had The Supreme Court, per locus standi – European Ar- locus standi – European FAMILY LAW on foot of warrant – bail – no crime on foot of warrant – bail of liberty committed – deprivation – 2003, s16(4). Act rest Warrant the The appellant challenged validity of his detention on foot of an arrest warrant for surrender pending his surrender, pursuant to section 16 of the Act Warrant European Arrest 2003 not been convicted of a crime and that he had been deprived The issue arose of his liberty. as to whether the effect of the legislation was to deprive the appellant of the opportunity to apply for bail. Murray CJ, held that the order made pursuant to section 16(4) was a consequential order. While the deprivation of liberty warranted a strict interpretation of the legislation, the effect of the order did not oust the jurisdiction of the court to grant bail. It was part of the schema that such detention was inevita- ble. The appellant had not applied for bail. Algimantas Butenas v Gov- ernor of Cloverhill Prison Supreme Court, 12/3/2008 [FL14984]

Custody Child Abduction and Enforce- ment of Custody Orders Act 1991 – Hague Convention – ticle 11(2) of Council Regulation (EC) 2201/ 2003 – whether the of the court to comply with failure its obligations under the regulation of the for return meant the order child ought to be set aside. The respondent sought, by way of motion, an order setting aside an order of the High Court for the return of her child to Latvia.

, High habeas , High Court, Mr proceedings to inquire Edwards J refused the appli- CRIMINAL LAW CONSTITUTIONAL LAW enabling a company to whomenabling a company un- an examiner was appointed its shareder that act to reduce ofcapital as part of a scheme pro- arrangement. The original did notposals of the examiner specify the intended alterations to the articles of association as required by section 24(7) of the 1990 act. In the Matter of McEnaney Construction Limited and in the Matter of the Companies (Amendment) Act 1990 Court, Miss Justice Fin- lay Geoghegan, 25/2/2008 [FL14981] European arrest warrant Lithuania – challenge to detention Justice Edwards, 21/3/2008 Habeas corpus Liberty – lawfulness of detention District Court warrant – default of payment of penalty – unpaid fine – offences – article 40.4 public order of the Constitution. The applicant initiated corpus into the legality of his detention pursuant to a warrant of ex- ecution. The applicant was convicted of public order offences and did not pay a fine imposed, resulting in the warrant of ex- ecution. The applicant alleged a conspiracy to incarcerate him. cation, holding that no basis was presented for an inquiry pursuant to article 40.4. There was no evidence of a conspiracy to incarcerate him. Riney (applicant) v Governor of Loughnan House Prison (respondent) [FL15029] , and News from Ireland’s online legal awareness service Compiled by Bart Daly for FirstLaw Com- update NOVEMBER 2008 NOVEMBER

Finlay Geoghegan J held that COMPANY LAW www.lawsociety.ie Examinership – Scheme of arrangement section 24(8) of the 1990 act did not give the court jurisdiction to make an order cancelling the issued shares in the capital of the In fact, the 1990 act company. contained no express provision panies (Amendment) Act 1990panies (Amendment) confirm– whether the court could arrange- proposals for a scheme of ment submitted by an examiner, cancel- essentially seeking an order in ling the issued ordinary shares the company. The examiner of McEnaney Construction Limited formulated proposals for a scheme of arrangement in relation held the to the company, necessary meetings, and made a report thereon to the court on 5 February 2008, recom- mending confirmation of the proposals. The court indicated that it could not confirm the proposals for the scheme of arrangement as proposed and adjourned the matter to allow the examiner an opportunity to consider whether the difficulties could be overcome by modifica- tions to the scheme. The modi- fied proposals were subsequently confirmed by the court. Orig- inally it was proposed to cancel all 100 issued ordinary shares in The company was the company. The a single member company. original proposals also sought to amend the articles of association of the company. the court should not confirm proposals that included a provision that the company cancel issued paid-up shares unless the consequent reduction of capital was expressly authorised by the Companies Acts 1963-2006 LAW SOCIETY GAZETTE SOCIETY GAZETTE LAW firstlaw

BRIEFING 62 63 BRIEFING In Bo- , Supreme [FL15001] rstlaw.ie. , High Court, Mr served an important G www.lawsociety.ie

NOVEMBER 2008 NOVEMBER The Supreme Court, per The Supreme Clarke J held that the entire Kearns J, held that the appeal Kearns J, held allowed. The plain- would be their tiffs would be allowed The full costs from the estate. the trial judge had not reasoned in award made. The rule nis Morelli so as purpose in such litigation not to deter litigation. Elliott v Stamp Court, 12/3/2008 Third-party notice pos- Delay – “as soon as reasonably sible” – setting side – complexity. The plaintiffs sought various reliefs arising from damage caused to their building from an adjoining site. The defendants were given leave to serve a third-party notice. The third party sought to set aside the notice on grounds of delay. period up to the formal service of the third-party notice had to be considered. The court was not satisfied that the application to issue and serve the third-party notice was brought as soon as reasonably possible. The third-party notice would be struck out. (plaintiffs) v Tri- Greene angle Developments Ltd (defend-ants) Justice Clarke, 4/3/2008 [FL15051]

This information is taken from awareness legal current FirstLaw’s service, published every day on the internet at www.ﬁ , In Bonis in pro- – challenge to LAW SOCIETY GAZETTE SOCIETY GAZETTE LAW , High Court, In Bonis Morelli In Bonis Morelli: Kelly J held that the judicial Kelly J held that the judicial mercial list of the High Court. mercial list wished to have The plaintiffs review application the judicial heard first, and the ombudsman appeal sought firstly to have the on its merits heard. be review application would the speed heard first, in light of and efficiency of the procedure in the on affidavit, particularly Commercial Court. Directions would be made accordingly. as Davy J&E Davy trading (applicant) v Financial Servic- es Ombudsman (respondent) Union and Enfield Credit (notice party) 13/3/2008 Mr Justice Kelly, [FL15053] Probate law Costs – rule in v Morelli Vella to will – whether costs awarded unsuccessful plaintiff insufficient – whether rule appropriate – application of rule – whether undue influence. The issue arose in proceedings as to the application of v Morelli Vella Morelli: bate actions. The plaintiffs had brought a challenge to the validity of a will, alleging – among other things – undue influence. The High Court held that the will had been validly executed and awarded the plaintiffs one third of their costs from the estate. The plaintiffs alleged that, pursuant to they should have received their full costs. , High Court, [FL15054] MacMenamin J held that MacMenamin J held The applicant was alleged to The applicant child pornogra- have accessed Headquarters. phy at Garda and A criminal investigation The ap- prosecution followed. other plicant alleged, among things, that the disciplinary and that procedures were unfair not dealt the proceedings were with expeditiously. to be the lapse of time alleged of the unfair was not in breach could regulations. No prejudice be said to exist. The application for judicial review was not made The applicant had promptly. not denied the admissions made in response to allegations. Kennedy (applicant) v Com- Síochána mission of An Garda (respondent) Mr Justice MacMenamin, 14/3/2008 PRACTICE AND PROCEDURE Commercial and proceedings on Judicial review merit – entry to commercial list – speed of proceedings – which set of first. proceedings to be heard A complaint by a credit union that the plaintiff had breached its duty of care to the credit union by investing in unsuit- able financial products, upheld by the ombudsman, was the subject of judicial review proceedings and an appeal from the decision of the ombudsman. Both sets of proceedings were transferred to the com- Garda , High [FL14976] Hedigan J refused to grant Hedigan J refused to JUDICIAL REVIEW leave, holding that it was incor- leave, holding that it country of rect to state that the not put to origin information was the applicant. The country of origin information was not used selectively and, in any event, a complaint of that nature was something more a matter for appeal to the Refugee Appeals Tribunal. Credibility was not a ground upon which the decision was reached in noth- this case and, consequently, ing arose to ground the grant of leave to apply. O(O) (plaintiff) v Minister for Justice, Equality and Law Reform (defendant) cations Commissioner refusing refusing cations Commissioner refugee status. The to grant him on by the appli- grounds relied country of origin cant were that was not put to him, information informa- the country of origin and tion was used selectively, were the findings on credibility at- not brought to the applicant’s him to tention in order to allow aspects of take issue with then or them. Court, Mr Justice Hedigan, 11/12/2007 Garda discipline Delay – legitimate expectation – inquiry – – fair procedures Síochána (Discipline) Regula- tions 1989. The applicant sought to restrain the respondent from holding an inquiry or from processing further disciplinary proceedings.

EC Treaty Section 6(1) of the 2002 prices with respect to the provision of goods or services to persons not party to the agreement, decision or concerted practice, Section 7(1) provides that Section 5 of the 2002 act Article 82 of the also prohibits an abuse of dominance where there is an effect on trade between member states. act sets out that a breach of section 4 or of article 81 is an offence. Section 6(2) provides that “it shall be presumed that an agreement between competing undertakings, a decision made by an association of competing undertakings or a concerted practice engaged in by competing undertakings the purpose of which is to: Directly or indirectly fix a) b) Limit output or sales, or c) Share markets or customers, has as its object the prevention, restriction or distortion of competition in trade in any goods or services in the state or in any part of the state or within the common market, as the case may be, unless the defendant proves otherwise”. “an undertaking that acts in a agreements and is applied agreements and is on trade where there is an effect between member states of the EU. states that “any abuse by one or more undertakings of a dominant position in trade for any goods or services in the state or in any part of the state is prohibited”.

EC Treaty Article 81 of the also prohibits restrictive act in order to enable ComReg to apply sections 4 (prohibition on restrictive agreements) and 5 (prohibition on abuse of dominance) of the 2002 act in the electronic communications its Before performing sector. functions under the 2002 act, ComReg, pursuant to section 47C, shall notify the authority of its intention to do so. Relevant legislation Section 4 of the 2002 act states: “all agreements between undertakings, decisions by associations of undertakings and concerted practices which have as their object or effect the prevention, restriction or distortion of competition in trade in any goods or services in the state or in any part of the state are prohibited and void”. 20,000 for being involved in a € confers price-fixing cartel Communications Regulation his company was fined On 29 October, a former president of the CitroenOn 29 October, Dealers’ Association was given a three-month and suspended sentence (Amendment) Act 2007 hard-core cartels, such as those involved in price fixing, bid rigging and market allocation among competitors. Where it obtains evidence of a cartel and prosecution is to be by way of indictment, the authority may submit a file to the DPP with a recommendation that the parties involved be prosecuted. When the DPP considers that there is a justifiable case, his office takes over responsibility for any further enforcement action. The Competition Authority may itself bring a summary prosecution in the District Court. ComReg The new competition law powers on the Commission for Communications Regulation (ComReg), amending the 2002 . as News from and International Affairs the EU Committee DirectorLaw Society of Ireland of Education, Edited by TP Kennedy, NOVEMBER 2008 NOVEMBER legal . Competition eur Competition Act 2002 Competition Act 1991, nti-competitive behaviour nti-competitive behaviour results in consumers paying www.lawsociety.ie Criminal effectsCriminal law of competition in Ireland A LAW SOCIETY GAZETTE SOCIETY GAZETTE LAW higher prices without any extra benefits and undermines the competitiveness of the Irish Anti-competitive economy. practices by cartels, such as price fixing and bid rigging, are akin to theft at the expense of consumers. The Competition Authority is taking a strong stance in respect of such behaviour in Ireland. In 2006, Ireland became the first country in Europe to have a jury trial for a criminal competition offence under the It was also the first custodial sentence imposed in Europe for cartel activity (although the six-month jail sentence was suspended on age and health grounds). This case related to the home heating oil cartel. Criminal proceedings had also been pursued under the previous competition regime, the amended by the (Amendment) Act 1996 Competition Authority In Ireland, the Competition Authority is the principal body responsible for the enforcement pursuant of competition law, to the 2002 act. In accordance with section 30(1)(b) of the 2002 act, the authority is empowered to carry out an investigation, either on its own initiative or in response to a complaint made to it by any person, into any breach of the Cartels act. The authority’s Division is focused on the investigation and prosecution of

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BRIEFING 65 DPP v Probation Act . This case www.lawsociety.ie NOVEMBER 2008 NOVEMBER Grain imports The Competition Authority to appear – Failure Pat Morgan. This case related to a complaint made by the Competition Authority to the gardaí during 2004 in relation to the failure by Pat Morgan, Gas managing director of Tru Limited, to appear before the The witness sum- authority. mons was issued under section 31 of the 2002 act. The authority was seeking information during the consultation process leading up to issuing a declaration in the cylinder LPG market under section 4(5) of the 2002 act. The DPP prosecuted on behalf of the authority and the case was heard in Dublin District Court involved the Irish Road Haulage involved the The action was Association. the association settled when declaration by the agreed to a that it had engaged High Court to fix in a concerted practice services, prices for haulage of resulting in a blockade Dublin port. in was a summary prosecution 8(1)(a) accordance with section 2003, of the 2002 act. In March Authority the Competition secured criminal convictions in in the District Court Drogheda against six members of the farming community for breaches of section 4 of the 2002 act arising from a blockade and a meeting, which had as its object the prevention of unloading a cargo of grain from Britain. The defendants appealed the convictions and the case was reheard in the Circuit Court in Dundalk in 2004. At the rehearing, only three of the convictions were upheld and the was applied. is not empowered to bring criminal prosecutions on indictment on its own behalf, and is therefore assisted in doing so with the aid of the The following indictable DPP. competition law cases were taken by the DPP.

, . The Revised . Another , C 45/3, 19 (‘Community Leniency Notice Official Journal LAW SOCIETY GAZETTE SOCIETY GAZETTE LAW Resale price maintenance The European Commission The European Commission Haulage services 1,000 were imposed. Official Journal prosecution under the 1996 act February 2002) to provide more guidance to applicants and to increase transparency of the procedure. If an undertaking in Ireland applies for leniency under the notice, it may receive immunity from fines or reduced fines from the commission, yet it could still face criminal prosecution in Ireland under the 2002 act. Criminal prosecutions The Competition Authority can initiate summary prosecutions itself further to section 30(4)(b) of the 2002 act and, previously, further to section 3(6)(a) of the 1996 act. The following cartel prosecutions have taken place in Ireland. first prosecution under the 1996 act was a summary prosecution taken by the Competition Authority without the aid of the DPP in the District Court in 2000. This involved Estuary Fuels, an oil distribution company involved in resale price maintenance. The defendant company pleaded guilty and fines amounting to € the authority’s website and the website the authority’s website. The programme DPP’s self-reporting of encourages by offenders unlawful cartels possible stage at the earliest and the provision of important in evidence to the authority The relation to the cartel. in discretion to grant immunity rests relation to a prosecution with the DPP. Leniency also operates a Cartel Programme. The commission recently adopted a Leniency Notice Notice on Immunity from Fines and Reduction of Fines in Cartel Cases’, C 298/17, 8 December 2006) in this regard. Improvements have been made in several areas of the 2002 ( , Companies are guilty 1,500 were € 3 million or 10% of . Furthermore, as . Furthermore, € Competition Act Under section 7 of the Under section 7 of The previous regime, Act 1990 the prosecution pleaded in there cases in Ireland to date, in are other consequences a visa terms of obtaining USA. when travelling to the 1997 Criminal Law Act found individuals who are abetting guilty of aiding and offence the commission of an 4 of prohibited by section the in the same manner as if they committed the actual competition offence. Thus it is worth noting that anyone involved in a cartel could be found guilty of an offence, even if they were only privy to information and did not actually carry out an active role. under the 1996 act, provided for penalties in respect of all infringements of the 1991 act where, on summary conviction, fines of up to imposed and/or imprisonment of up to six months and, on conviction on indictment, fines of up to whichever was the turnover, were imposed and/ greater, or imprisonment of up to two years. Under the 2002 act, only those prosecuted for hard- core offences are subject to custodial sentences. However, in relation to mergers, the 2002 act provides, in section 26, that a person who contravenes a provision of a commitment, a determination or an order for the time being in force shall be liable to, in addition to or instead of a fine, imprisonment of up to six months on summary conviction or two years on conviction on indictment. Cartel Programme Immunity in The Competition Authority, has conjunction with the DPP, a Cartel Immunity Programme, and the details of this programme are published on five years, or such period as five years, under may order, the court of the section 160(1) 3,000. € 4 million € committed 40,000 per day € Where offences Section 8 sets out the pen- Section 8 300 per day on summary by an undertaking have been authorised or consented to by a person such as a director, manager or other similar also that person shall officer, be guilty of an offence pursuant to section 8(6). In addition, a director is presumed to have consented to the doing of the acts that constituted the offence until the contrary is proved under section 8(7). A director convicted on indictment under the 2002 act could then become disqualified for a period of or 10% of the turnover of the undertaking in the financial year ending in the 12 months prior to the conviction, whichever is the Individuals are subject greater. to the same fine and/or a term of imprisonment not exceeding five years. In relation to all other offences, only the fines Furthermore, the 2002 apply. act allows for an additional fine in respect of each successive day the offence took place. By virtue of section 8(3) of the act, if the contravention concerned continues one or more days after the date of its first occurrence, then the undertaking is guilty of a separate offence and may be fined for each successive day: € conviction and on conviction on indictment. alties that are applied, and there alties that are hard- is a distinction between is, those core breaches – that – and described in section 6(2) offences. other competition law penalty Incarceration as a hard-core is only applied to to hard- breaches. In relation are core offences, undertakings liable on summary conviction to a fine not exceeding to such a Individuals are liable fine and/or up to six months’ imprisonment. On conviction on indictment, undertakings are liable to a fine of manner prohibited by section manner prohibited 82 of the treaty 5(1) or by article of an offence”. shall be guilty 12,000. € 1,000 that would € relation to the charge of aiding relation to members of the and abetting Association Citroen Dealers’ competition in the in distorting by fixing the selling car market and prices of cars. In January further in February 2008, in proceedings were issued of the relation to allegations existence of a price-fixing sale of agreement for the In May Citroen motor vehicles. pleaded 2008, James Durrigan and guilty on his own behalf company as a director of his into to two counts of entering an agreement to distort or directly or indirectly fix the price of Citroen cars between 1997 and 2002. He received a suspended three- month sentence, while the company was fined There are a number of similar cases due before the Central Criminal Court against other motor dealers in relation to this cartel. The Competition Authority discovered minutes of meetings showing how dealers met in hotels around the country and discussed price fixing. The delivery charges for new cars were set by the association and were the same around the Extras, such as metallic country. paint, were allegedly fixed at a certain rate. Maximum discounts that salesmen were allowed to give cash customers were devised. Prices were also fixed from time-to-time on second- hand cars. Each member of the cartel paid in be forfeited in the event that a member broke any of the price fixing rules. ‘Mystery shoppers’ periodically would ensure the agreement was policed. Overview of prosecutions The first year to see the enforcement of competition law in regard to actions against cartel cases was 2006. The criminal cases pursued by the Competition Authority and the DPP are yielding increased fines, and sentences are being The DPP 30,000, which was € Motor vehicles. Separately, in June 2007, Separately, 10,000 as well as being 10,000 as well as amount of time and money amount of this is also often – therefore, sentencing an reflected when An early guilty undertaking. lodged in the case plea was and of Muldoon Oil Limited Judge Mr Muldoon, and issuing Groarke noted this when Dalton, them with fines. Mr director the founder and an of Corrib Oil, entered was fined early guilty plea and € as a suspended from acting for the director of Corrib Oil judge in next five years. The case noted that Mr Dalton’s a custodial sentence was not appropriate in this case. The judge noted that Mr Dalton had cooperated with the had no Competition Authority, previous convictions, and also had given an early guilty plea. initiated proceedings against Denis Manning, who was summonsed in relation to two charges alleging that he had aided and abetted the Irish Ford Dealers’ Association and its members in the implementation of agreements to fix the selling of Ford motor vehicles within the state between July 2002 and June 2003. The first of the two charges related to an offence under the 1991 act and the second of the two charges related to an alleged offence under the 2002 act. The DPP agreed to drop the first of these two charges. On 9 February 2007, Mr Manning was sentenced under the 2002 act and was given a one-year prison sentence, suspended for five years, and he also received a fine of payable within 21 days. Judge McKechnie, in sentencing Mr Manning, noted that Mr Manning would have gone to prison only for the declining state of his health. the DPP initiated proceedings before the Central Criminal Court against an individual who was summonsed in 3,500 € 1,000 respectively for . Mr Flanagan was fined € In another trial, Michael Throughout the course of Con Muldoon, of Muldoon Con Muldoon, 3,500 for his part in the price- 15,000, which was payable 15,000, which and their involvement in the cartel. Flanagan, trading as Flanagan Oil, was found guilty of the offence of entering into an agreement that had as its object the prevention, restriction or distortion of competition contrary to section 2(2) of the Competition Amendment Act 1996 € fixing conspiracy and Judge Groarke, when sentencing him, commented that: “Those engaged in cartels and involved in the fixing of prices are doing so only with the motivation of greed, and with nothing to be gained by financial profit. That is why the legislature takes such a serious view of it … I could well see circumstances where persons convicted by a jury could be subjected to terms of imprisonment.” the prosecutions, it became apparent that those who had entered an early guilty plea received lower fines. An early guilty plea in a cartel case saves the state a considerable 2006, Corrib Oil was also fined 2006, Corrib € months, for its within three in the cartel. involvement pleaded Oil Limited, also being a guilty to the charge of that director of an undertaking that entered into an agreement had as its object the prevention, of restriction or distortion to competition contrary act. section 2 of the 1996 that Mr It was put forward Muldoon Muldoon, as well as object Oil Limited, had as their the prevention, restriction or distortion of competition in the trade of gas oil in Galway city and county by directly or indirectly fixing the selling price of gas oil, and authorised or consented to the doing of acts constituting that offence. Muldoon Oil Limited and Con Muldoon were fined NOVEMBER 2008 NOVEMBER . This case . 15,000. This case was € One of the most high-profile Home heating oil www.lawsociety.ie saw the first criminal conviction on indictment for offences under the 2002 act. In 2003, the Competition Authority carried out an investigation on the home heating oil market and referred the file In 2004, the DPP to the DPP. initiated proceedings against 24 undertakings, which included corporate undertakings and, in some cases, their directors. The charges against the various undertakings related to allegations of retail price fixing in the home heating oil market in the west of Ireland. convictions of the home heating oil cartel was that of JP Lambe, who was the director of Corrib Oil Company Limited and was described as the organiser of the cartel. Mr Lambe pleaded guilty to aiding and abetting Corrib Oil in price-fixing. Mr Lambe was sentenced on 6 March 2006, and was given a six-month prison sentence, suspended for a period of 12 months, and he was also fined as it was the first noteworthy, custodial sentence received for a competition law offence by an individual in Ireland. This case also marked the first time that a custodial sentence was given for violation of competition law in Europe. On 23 January on 22 December 2005. The on 22 December that the facts were court found Mr Morgan. At proven against of the authority, the request adjourned until the case was order to 6 February 2006 in comply allow Mr Morgan to and with the witness summons that provide the information sought had originally been to the of him. Subsequent Morgan adjournment, Mr witness complied with the the summons and provided authority with the information 2006, required. On 6 February the District Court judge gave Mr Morgan the benefit of the Probation Act LAW SOCIETY GAZETTE SOCIETY GAZETTE LAW

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land. 67

BRIEFING and the , for limita- fines and fines and G Convention on Civil Liability If the cost of disposing of In accordance with the ‘pol-

www.lawsociety.ie

NOVEMBER 2008 NOVEMBER de minimis from providing, pursuant to the for Oil Pollution 1969 tions or exemptions of liability for the benefit of the shipowner or charterer from establishing a central fund. the waste is not or cannot be borne by that fund and national law prevents that cost from being borne by the shipowner and the charterer, even though they are regarded as ‘holders’, such a national law will have to make provision for that cost to be borne by the “producer of the product from which the waste came”. luter pays’ principle, such a producer cannot be liable to bear that cost unless he has contributed by his conduct to the risk that the pollution caused by the shipwreck will occur. Convention on the Establish- ment of an International Fund for Compensation for Oil Pollu- tion Damage 1971 G

that, when prosecutions for that, when commenced in cartels first the US, sentences or short suspended sentences were custodial certainly handed down. This is in that no longer the case jurisdiction. Niamh Connery a legal is for advisor with the Commission Communications Regulation. does LAW SOCIETY GAZETTE SOCIETY GAZETTE LAW www.kleemanlawfirm.com Waste Directive Waste In the event of a shipwreck, the national courtHowever, The provides that the costs must be borne by the “previous holders” or the “producer of the product from which the waste came”. the owner of the ship carrying hydrocarbons has them in his possession immediately before they become waste. In those circumstances, the shipowner may be regarded as having produced the waste and on that basis be classified as a ‘holder’ within the meaning of the directive. may consider that the seller of the hydrocarbons and charterer of the ship carrying waste has ‘produced’ the waste if it finds that the seller/charterer contributed to the risk that the pollution caused by the This shipwreck would occur. arises in particularhe failed if to take measures to prevent such an occurrence, such as his choice of ship. not preclude member states businesses and individuals. The businesses is increasing, risk of detection and the DPP as the authority, authorities similar competition jurisdictions (such in other are as the US and Britain) detection increasing their A and enforcement activity. of reduction in the number active cartels will ultimately on the have a beneficial effect It should be recalled consumer.

at (toll free) 00-800-221-56970 Waste Directive Waste is a prominent U.S. law firm that specializes in providing the following legal The Cour de Cassation The court to then moved Michael Kleeman, Esq., or by e-mail at [email protected] disposal as “previous holders” or “producers of the product from which the waste came”. referred a number of questions to the ECJ. The court initially considered whether the heavy fuel oil carried by the ship could be classified as waste. It held that it was not. The fuel oil is exploited or marketed on economically advantageous terms and is capable of actually being used as a fuel without requiring prior processing. when the oil However, spilled, mixed with water and sediment, and drifted along the coastline until being washed ashore, it must be classified as waste. In this form were they substances that their holder did not intend to produce and that were discarded, albeit while being involuntarily, transported. consider the consequences of the waste disposal and who should bear the cost of the clean up. The who are facing prosecution who are in cartel for involvement would Practitioners activity. advise company do well to have a competition clients to to compliance programme become ensure that staff do not involved in price-fixing, market-sharing or bid-rigging arrangements. Convictions have for hard-core offences for serious consequences

1 Travel law: Representing foreign visitors seriously injured in the United States , 24 Contact UNITED STATES LAWYERS Commune Waste Directive Waste For more information about our law firm visit our website at Recent developments in EuropeanRecent developments law The municipality of Mesquer ENVIRONMENTAL LAW Kleeman, Abloeser & DiGiovanni, P.C. services in the United States: 2 Personal injury litigation in the United States June 2008. ENEL is an Italian company that concluded a International contract with Total Ltd for the supply of heavy fuel To oil from France to Italy. carry out the contract, Total chartered tanker flying an oil the Maltese flag. In late 1999, the ship sank off the coast of spilling partBrittany, of her cargoand and oil into the sea causing pollution along the French Atlantic coastline. brought proceedings against the group companies in the Total for reimbursement of the cost of cleaning and anti-pollution operations on its coast, relying on the (775/442, as amended). The municipality argued that the cargo spilled at sea was waste within the meaning of the directive, so that Total should be liable for the cost of de Mesquer v Total France de Mesquer v Total International Ltd SA, Total Case C-188/07, Publication of advertisements in this section is on a fee basis and does not represent an endorsement by the Law Society of Ire Publication of advertisements in this section is on a fee basis and does not represent handed down. This should act handed down. to anyone who as a deterrent or considering is participating in price-fixing participation Throughout the activities. course of the proceedings heating relating to the home oil cartel, several undertakings that acted entered a guilty plea it came in their favour when this to sentencing. Therefore, to those should be persuasive PROFESSIONAL NOTICES LAW SOCIETY GAZETTE NOVEMBER 2008

LOST LAND Regd owner: Mary Crowley; folio: folio: 39255; lands: Straid; Co Kildare; folio: 18297; lands: town- 52977F; lands: plot of ground situ- Donegal land of Sallins in the barony of CERTIFICATES ate in the townland of Pallas and Regd owner: Joan Magera; folio: Naas North in the electoral divi- barony of Duhallow in the county DN28069F; lands: a plot of ground sion of Bodenstown; Co Kildare Registration of Deeds and Title Acts of Cork; Co Cork known as 716 Virginia Heights, in Regd owner: Industrial Development 1964 and 2006 Regd owner: Mary Crowley; folio: the parish of Tallaght and in the Authority (body corporate) of An application has been received from 61763F; lands: plot of ground situ- town of Tallaght; Co Dublin Landsdowne House, Ballsbridge, the registered owners mentioned ate in the townland of Pallas and Regd owner: John Stafford & Sons; Dublin; folio: 277; lands: townland in the schedule hereto for an order barony of Duhallow in the county folio: DN100724F; lands: prop- of Kildare and barony of Offaly dispensing with the land certificate of Cork; Co Cork erty known as unit 4, Ballymount East; Co Kildare issued in respect of the lands speci- Regd owner: Christopher O’Leary Industrial Estate; Co Dublin Regd owner: Seamus Doorley and fied in the schedule, which original and Margaret O’Leary; folio: Regd owner: Isobel Walton; folio: Niamh Fitzgerald; folio: 36922F; land certificate is stated to have been 45521F; lands: plot of ground situ- DN6512; lands: property situated lands: property known as 137 Bar- lost or inadvertently destroyed. The ate in the townland of Cooranig in the townland of Knocksedan rington Court, Prosperous, Co land certificate will be dispensed with and barony of Carbery East (west and barony of Nethercross; Co Kildare, being part of the town- unless notification is received in the division) in the county of Cork; Dublin land of Curryhills and barony of registry within 28 days from the date Co Cork Regd owner: George F Farmer; folio: Clane; Co Kildare of publication of this notice that the Regd owner: James Tobin; folio: DN33470L; lands: property situ- Regd owner: Richard Newman and original certificate is in existence and 47959F; lands: plot of ground ate in the townland of Pelletstown Lareina Smith, 20 The Elms, in the custody of some person other situate in the townland of Peafield and barony of Castleknock; Co Newbridge, Co Kildare; folio: than the registered owner. Any such (ED Templebodan) and barony of Dublin 33839F; lands: south of Strand- notification should state the grounds Barrymore in the county of Cork, Regd owner: Barbara Mullen; folio: house Road in the town of New- on which the certificate is being held. Co Cork 2349F; lands: townland of Shan- bridge, situate in the townland of Property Registration Authority, Chan- Regd owner: John Sullivan (de- nagurraun and barony of Moy- Ballymany and barony of Offaly cery Street, Dublin 7 ceased); folio: 26984; lands: plot cullen; area: 0.4325 hectares; Co East; Co Kildare (published 7 November 2008) of ground situate in the townland Galway Regd owner: TJ Farrington Lim of Ardgroom Outward and barony Regd owner: Francis King; folio: of Monread, Naas, Co Kildare; Regd owner: Noel Reddy; fo- of Bear in the county of Cork; Co 57362; lands: townland of Ard folio: 2338F; lands: townland of lio: 291F; lands: south side of Cork East and barony of Ballynahinch; Moortown (Ikeathy and Ough- Browneshill Road in the townland Regd owner: Wolf Bohlen; folio: Co Galway terany by) in the barony of of Carlow and barony of Carlow; 6584F; lands: plot of ground situ- Regd owner: Michael Keady; folio: Ikeathy and Oughterany, in the Co Carlow ate in the townlands of Coorlacka 24544; lands: barony of Moycullen electoral division of Balraheen; Regd owner: Noel Reddy; folio: and Enaghoughter West and baro- and townland of Ballynahown; Co Co Kildare 11336F; lands: north side of Sta- ny of Carbery West (west division) Galway Regd owner: T&J Farrington Lim- plestown in the townland of Car- in the county of Cork; Co Cork Regd owner: Terence McDonagh; fo- ited (limited liability company) of low and barony of Carlow; Co Regd owner: Robert Lane; folio: lio: 28941; lands: townland of Car- Rathcoffey, Donadea, Naas, Co Carlow 27059; lands: plot of ground situ- rowroe West (Moycullen By) and Kildare; folio: 13486; lands: town- Regd owner: Carlow County Coun- ate in the townland of Knockacul- barony of Moycullen; Co Galway land of Moortown (Ikeathy by) cil; folio: 10474F; lands: Seskin- lata and barony of Fermoy in the Regd owner: Stephen Folan (de- and barony of Ikeathy and Ough- ryan and barony of Idrone East; county of Cork; Co Cork ceased); folio: 30712; lands: town- terany; Co Kildare Co Carlow Regd owner: Marguerite Von Geyr land of Carna and barony of Bal- Regd owner: Bridget Howe (widow) Regd owner: Patrick McNamara (de- (deceased); folio: 45006; lands: lynahinch; area: 0.1064 hectares; (deceased) of Levitstown, Athy, ceased); folio: 23170; lands: town- plot of ground situate in the town- Co Galway Co Kildare; folio: 14130; lands: land of Cloondrinagh and barony land of Kilmichael East and baro- Regd owner: John Joseph McHugh townland of Levitstown (ED of Clonderalaw; area: 19.9901 ny of Kerrycurrihy in the county (deceased); folio: 6987; lands: Grangemellon) and barony of Kil- hectares; Co Clare of Cork; Co Cork townland of Coothagh and barony kea and Moone; Co Kildare Regd owner: Flannon McMahon; Regd owner: Eamonn Wiseman; fo- of Ballymoe; Co Galway Regd owner: Richard Tierney and Jo- folio: 15425F; lands: townland of lio: 411F; lands: plot of ground Regd owner: Thomas (Tommy) Fo- sette Tierney; folio: 3366F; lands: Cranagher, Cloonkerry, Currader- situate in the townland of Rooska lan; folio: 32296F; lands: Dough- Inistioge and barony of Gowran; ra and barony of Bunratty Upper; East and barony of Bantry in the iska and barony of Galway; Co Co Kilkenny Co Clare county of Cork; Co Cork Galway Regd owner: Daniel Rogers and Ger- Regd owner: William Duffy and Regd owner: John Kelleher and Jose- Regd owner: Michael Larkin and aldine Rogers (deceased); folio: Grainne Kearney; folio: 27062F; phine Kelleher; folio: 9358; lands: Margaret Larkin (deceased); fo- 116F; lands: Leugh and barony of lands: townland of Lifford and plot of ground situate in the town- lio: 30285F; lands: townland of Crannagh; Co Kilkenny barony of Islands; Co Clare land of Ballycunningham (ED Cloonshee (Trench) and barony of Regd owner: Bernard McGee, Regd owner: Declan Fennell and Kilcullen) and barony of Muskerry Killian; Co Galway Church Street, Drumshanbo; Co Geraldine McTigue; folio: 30513F; East in the county of Cork; Co Regd owner: Thomas McHugh; Leitrim; folio: 19026; lands: Car- lands: townland of Brisla East and Cork folio: 8049F; lands: townland of ricknabrack; Co Leitrim barony of Moyarta; Co Clare Regd owner: Patrick Gerard Doog- Ballybaan More and barony of Regd owner: John McKenna, George Regd owner: Maurice P Carroll; fo- an, Lisahully, Ballyshannon, Co Galway; Co Galway O’Rourke and James Stokes; folio: lio: 45582; lands: plot of ground Donegal; folios: 27949 and 19203; Regd owner: Michael Teahan (Jun- LK14450F; lands: townland of situate in the parish of St Anne’s- lands: Ardloughill; Co Donegal ior); folio: KY6657; lands: town- Kildimo and barony of Kenry; Co Shandon P in the townland of Regd owner: James Cunningham, land of Moularostig and Loman- Limerick Ballyvolane and in the barony and Kille, Kilcar, Co Donegal; folio: agh South and barony of Dunker- Regd owner: Ross A Cosgrove, county of Cork; Co Cork 16508F; lands: Kill; Co Donegal ron South; Co Kerry Shooland, Ballinalee, Co Long- Regd owner: Anne Good; folio: Regd owner: Fergus Hayes (Devel- Regd owner: Denis Kelliher; folio: ford; folio: 9643; lands: School 53828F; lands: plot of ground situ- opments) Ltd, 13 Herbert Street, KY12114; lands: townland of Land; Co Longford ate in the townlands of (1) Bawna- Dublin 1; folio: 4700F; lands: Emlagh East and barony of Cork- Regd owner: John Conroy (de- vota, (2) Ardbrack and barony of Finner; Co Donegal aguiny; Co Kerry ceased); folio: 15559; lands: town- Kinsale in the county of Cork; Co Regd owner: Annie Quigley, Bally- Regd owner: Eamonn Breen and Rita land of Frenchbrook North, Kil- Cork hallion, Clonmany, Co Donegal; Breen of Clane Road, Sallins, Co maine, Claremorris, Frenchbrook

68 www.lawsociety.ie PROFESSIONAL LAW SOCIETY GAZETTE NOVEMBER 2008

South, and barony of Kilmaine;

Co Mayo LAW SOCIETY Regd owner: Eamonn McGaugh (deceased); folio: 45473; lands: townland of Brownsisland, Glasvally, Gazette Ballycurrin Demesne and barony of Kilmaine; Co Mayo Regd owner: Nuala Scanlon; folio: PROFESSIONAL NOTICE RATES 2457F; lands: townland of Bal- lyholan and barony of Tireragh; RATES IN THE PROFESSIONAL NOTICE SECTION ARE AS FOLLOWS: Co Mayo • Lost land certificates – €139 (incl VAT at 21.5%) Regd owner: Thomas J McKeown, Bryanstown, Drogheda, Co • Wills – €139 (incl VAT at 21.5%) Louth; folio: 9893 and 11879F; • Title deeds – €139 per deed (incl VAT at 21.5%) lands: Prioryland; Co Meath • Employment/miscellaneous – €139 (incl VAT at 21.5%) Regd owner: Paul Carolan, Carrick- leck, Kingscourt, Co Meath; folio: These rates will apply from 1 – 31 December 2008 15650F; lands: Carrickleck; Co Meath HIGHLIGHT YOUR NOTICE BY PUTTING A BOX AROUND IT – €33 EXTRA Regd owner: Kathleen Monaghan, Caulstown, Dunboyne, Co Meath; ALL NOTICES MUST BE PAID FOR PRIOR TO PUBLICATION. CHEQUES SHOULD BE folio: 33586F; lands: Caulstown; MADE PAYABLE TO LAW SOCIETY OF IRELAND. Deadline for December Gazette: Co Meath 19 November 2008. For further information, contact Valerie Farrell or Laura Wipfler on Regd owner: Neil Myer and Yvonne tel: 01 672 4828 (fax: 01 672 4877) Cladingboel, 26 Castle Close, Ash- bourne, Co Meath; folio: 1018L; lands: Killegland; Co Meath in the parish of St John’s Without Glenlucan Court, Killarney Road, please contact Tom O’Grady, BCL, Regd owner: John Carolan, Rath- Division, Grange Upper, in the Bray, Co Wicklow; folio: 12985F; solicitor, Market Square, Mountrath, more, Athboy, Co Meath; folio: county borough of Waterford; Co lands: the west side of Killarney Co Laois; tel: 057 873 2214, email: 4658F; lands: Rathmore and Clo- Waterford Road in the town of Bray, being [email protected] nymore; Co Meath Regd owner: Kelly and Dollard part of the townland of Killarney Regd owner: Martin O’Hanlon and Ltd; folio: 25313F; lands: plot of and barony of Rathdown; Co Coughlan, John (otherwise Sean) Ann O’Hanlon, Branstown, Dun- ground situate in Block 4, Carri- Wicklow (deceased), late of Ballinacarra,

shaughlin, Co Meath; folio: 20318; ganard Business Park, in the parish Regd owner: Rosemary Bayly of Ball- Ennistymon, Co Clare. Would any lands: Branstown; Co Meath of Kilbarry Division Carriganard yarthur, Woodenbridge, Arklow, person having knowledge of a will ex- NOTICES Regd owner: Colm Faulkner, Dun- and in the county borough of Wa- Co Wicklow; folio: 2890; lands: ecuted by the above-named deceased, moe, Navan, Co Meath; folio: terford; Co Waterford property no 1 – townland of Bal- who died on 30 September 2008, 13907F; lands: Mullagh, Graigs; Regd owner: Kevin Clancy; folio: lanagh, known as Rose Cottage, please contact Desmond J Houlihan Co Meath 3231; lands: plot of ground situate Ballanagh, Avoca, in the barony of & Company, Solicitors, Salthouse Regd owner: John J Connell; folio: in the townland of Churchtown Arklow, in the electoral division of Lane, Ennis, Co Clare; tel: 065 684 3416; lands: townland of Emlagh and barony of Upperthird in the Ballyarthur, Co Wicklow; proper- 2244, email: [email protected] and barony of Castlereagh; area: county of Waterford; Co Water- ty no 2 – townland of Ballyarthur 17 acres, 2 roods, 21 perches; Co ford in the barony of Arklow, in the Kavanagh, Margaret (deceased), Roscommon Regd owner: Martin Cullen and electoral division of Ballyarthur; late of 24 Knocknarea Avenue, Drim- Regd owner: Sean McNeill; folio: Bernie Cullen, Garden City, Go- Co Wicklow nagh, Dublin 12, who died on 25 35393; lands: townland of Car- rey, Co Wexford; folio: 29341F; Regd owner: Michael Doyle of Char- March 2006. Would any person hav- rownabricka and barony of Ball- lands: Middletown and barony of vey Lane, Rathnew, Co Wicklow; ing knowledge of a will made by the intober South; area: 16 acres; Co Ballaghkeen North; Co Wexford folio: 1366F; lands: townland of above-named deceased please contact Roscommon Regd owner: Padraig McManus and Milltown North and barony of Donal Farrelly & Co, Solicitors, Tul- Regd owner: Thomas Kevin O’Toole; Mary McManus; folio: 9712F; Newcastle; Co Wicklow lagh House, High Street, Tullamore, folio: 22619; lands: townland of lands: Ballybanoge and barony of Regd owner: James Duggan (de- Co Offaly; tel: 057 932 1324, fax: 057 Foghanagh Beg and barony of Ballaghkeen South; Co Wexford ceased) of St Killian’s, Blacklion, 932 1328, email: donalfarrellysols@ Ballymoe; area: 9.1206 hectares; Regd owner: Karl Mullen of ‘Alta- Greystones, Co Wicklow; folio: eircom.net Co Roscommon mont’, Stoney Road, Dundrum, 2816F; lands: the parish of Del- Regd owner: Robert Sharkey; folio: Dublin 14; folio: 4623; lands: gany, situate in the townland of Kelly, Margaret (deceased), late 10248; lands: townland of Cloon- townland of Tulfarris and barony Kindlestown Lower, known as of 56 Blarney Park, Dublin 12, who fad and barony of Frenchpark; Co of Talbotstown Lower; Co Wick- Saint Killian’s, Blacklion, Grey- died on 30 November 2005. Would Roscommon low stones, in the barony of Rathdown, any person having knowledge of a Regd owner: Kevin McHugh; folio: Regd owner: John Moody and Phi- in the electoral division of Delga- will made by the above-named de- 10122F; lands: townland of Rosses lomena Moody, 6 Lower Kindles- ny; Co Wicklow ceased, or if any firm is holding same, Upper and barony of Carbury; Co town, Greystones, Co Wicklow; please contact Joseph P Gordon & Sligo folio: 10656; lands: townland of Co, Solicitors, Burgery, Dungarvan, Regd owner: White Brothers Join- Kindlestown Lower and barony of Co Waterford; tel: 058 41294/41494, WILLS ery Limited; folio: 4970F; lands: Rathdown; Co Wicklow fax: 058 43573 townland of Knappagh More, Regd owner: Joseph McGrath and Sligo, and barony of Carbury; Co Elaine Dromey of 7 Broomhall Chambers, Helena Gertrude (de- O’Brien, Michael Joseph (de- Sligo Court, Rathnew, Co Wicklow; ceased), late of Killinure, Moun- ceased), late of 53 Viking Place E10, Regd owner: Donal O’Brien and Ais- folio: 26832F; lands: townland trath, Co Laois. Would any solicitor Seymour Road, Leyton, London, ling Gavin; folio: 23403F; lands: of Merrymeeting and barony of holding or having knowledge of a and Caislean Rí, Tuam Road Park, plot of ground known as no 6 Newcastle; Co Wicklow will made by the above-named de- Athenry, Co Galway, who died on 17 Magenta Grove, Grange Manor, Regd owner: Robert O’Neill of 6 ceased, who died on 28 June 1995, September 2008. Would any person

www.lawsociety.ie 69 PROFESSIONAL NOTICES LAW SOCIETY GAZETTE NOVEMBER 2008

having knowledge of a will made by Maurice O’Callaghan; tel: 01 280 TITLE DEEDS Henry Hoey, Anthony Lyster and the above-named deceased, or if any 3399 or email: [email protected] Elfrida Lady Neville of the one part firm is holding same, please contact and Alexander Austin of the other Gilmartin & Traynor, Solicitors, 16 Seven-day full ordinary on intoxi- In the matter of the Landlord and part, for a term of 200 years from Mary Street, Galway; tel: 091 569 cating liquor licence for sale. Con- Tenant Acts 1967-2005 and in the 1 November 1868 at a yearly rent 984, fax: 091 532 615 tact: Elaine Lynch, solicitor, Lees So- matter of the Landlord and Ten- of £24 and therein described as “all licitors, Lord Edward Street, Kilmal- ant (Ground Rents) (No 2) Act 1978 that piece or parcel of ground situate O’Shea, Helen (deceased), late of 12 lock, Co Limerick; tel: 063 98003 and in the matter of an application and being in the North Strand Road Hazel Avenue, Caherdavin Heights, by Thomas McGrath and Mary in the parish of Saint Thomas in the Limerick, who died on 30 April Seven-day intoxicating liquor McGrath county of the city of Dublin contain- 2008 at St John’s Hospital, Limerick. licence for sale. All inquiries to Any person having a freehold estate ing in front towards the south east on Would any person having knowledge Chambers & Company, Solicitors, or any intermediate interest in all that the said Strand Road forty six feet or of a will made by the above-named Ennistymon, Co Clare; tel: 065 707 and those the plot of ground with the thereabouts in the rere towards the deceased please contact Michael J 1150 or email: chambers@secure- house and premises erected thereon west of Annesley Place forty four feet Kennedy & Company, Solicitors, Pa- mail.ie and known as 6 Marino Crescent, six inches or thereabouts on the north rochial House, Baldoyle, Dublin 13; Fairview, Dublin 3, formerly known side towards other ground of the said tel: 01 832 0230, fax: 01 839 3663, Full seven-day ordinary publican’s as 6 Marino Crescent, Clontarf, in Lessors one hundred and sixty three email: [email protected] licence for sale. Contact: Michael the city of Dublin, situate in the par- feet or thereabouts and on the South Quirk, solicitor, Carrick-on-Suir, Co ish of Clontarf West, formerly in the side also towards other ground and Owens, Patrick (deceased), late Tipperary; tel: 051 640 019 county now in the city of Dublin, buildings of the same lessors one of 47 Monastery Terrace, Blarney being the premises comprised in and hundred and forty feet or thereabouts Street, Cork and Kilkenny, who died Westside Bookkeeping Services, demised by indenture of lease dated together with the four messuages or on 16 August 2006. Would any per- specialising in solicitors’ accounts. 8 April 1971 between Kathleen M tenements now standing and being son with knowledge of a will executed Experienced bookkeeper available to Jennings of the one part and Maurice on the said piece of ground being by the above-named deceased please maintain and update accounts – on Brennan of the other part . numbers 56 and 57 on the North contact Murphy MacNamara & Co, site. Professional references available. Take notice that Thomas Mc- Strand Road and Numbers 16 and 17 Solicitors, 26/27 South Mall, Cork; Contact Michelle Ridge @ Westside Grath and Mary McGrath, being the in Annesley Place as aforesaid and all tel: 021 490 7777 Bookkeeping; mobile: 087 293 0347, persons currently entitled to the les- other erections and buildings stand- email: [email protected] sees’ interest under the said lease, in- ing and being on the said piece of Rooney, John (deceased), late of 1 tend to apply to the Registrar of Ti- ground with their and every of their Ardmore Grove, Artane, Dublin 5, All persons claiming to be the next tles pursuant to section 21(1) of the rights members and appurtenances who died on 28 May 2005. Would of kin of Francis (Frank) Conlon Landlord and Tenant (Ground Rents) as the said piece of ground with the any person having knowledge of the (deceased), who was born on 20 (No 2) Act 1978 for the acquisition of said four messuages and tenements whereabouts of any will made by the April 1914 in the county of Meath the freehold interest and all interme- is more particularly delineated and above-named deceased please contact and died on 10 April 1999 in Our diate interests in the aforesaid prop- described in the plan drawn in the Murray Flynn Maguire, Solicitors, at Lady of Lourdes Hospital, Droghe- erties, and any party asserting that margin of these presents”. 12-16 Fairview Strand, Dublin 3; fax: da, Co Louth, formerly of 19 Abbey- they hold a superior interest in the Take notice that B&F Properties 01 836 5992 or email: sdefoubert@ view, Slane, Co Meath, a son of Mat- aforesaid property is called upon to Limited, being the person currently murrayflynn.ie thew and Annie Conlon (formerly furnish evidence of their title to same entitled to the lessee’s interest under Elliott), are required on or before 28 to the below named within 21 days the said lease in all that and those Quinn, Thomas Flannan (de- November 2008 to contact in writing from the date of this notice. that portion of the above premises ceased), late of Knappogue, Quin, John C Kieran & Son, Solicitors, 16 In default of any such notice being now known as no 5 Austin Cottages, Co Clare, who died on 15 October Castle Street, Ardee, Co Louth. All received, the said Thomas McGrath North Strand, Dublin 3, intends to 2008. Would any person with knowl- correspondence should be marked and Mary McGrath intend to pro- apply to the county registrar for the edge of a will executed by the above- for the attention of Ms Nicola Kelly, ceed with the application before the county/city of Dublin for the acquisi- named deceased please contact Des- solicitor, and should clearly state the Registrar of Titles at the end of the tion of the freehold interest and all mond J Houlihan & Co, Solicitors, nature and detail of the individual’s 21 days from the date of this notice intermediate interests in the afore- Salthouse Lane, Ennis, Co Clare; relationship with Francis (Frank) and will apply for such directions as said properties, and any party assert- tel: 065 684 2244, email: lburke@ Conlon (deceased). may be appropriate on the basis that ing that they hold a superior interest djhoulihan.ie the person or persons beneficially in the aforesaid properties (or any of entitled to the superior interests in- them) are called upon to furnish evi- Complex probate file? Mun- cluding the freehold reversion in the dence of title to same to the below- MISCELLANEOUS ster-based probate solicitor, aforesaid premises are unknown and named within 21 days from the date 15 years’ experience, member unascertained. of this notice. of Society of Trust and Estate Date: 7 November 2008 In default of any such notice being Kavanagh Joseph Jnr, last known Practitioners, available to con- Signed: Hughes & Liddy (solicitors for received, B&F Properties Limited address at 24 Knocknarea Avenue, sult and deal with that difficult the applicants), 2 Upper Fitzwilliam intends to proceed with the applica- Drimnagh, Dublin 12. Would any probate file and all related Street, Dublin 2 tion before the county registrar at the person having knowledge of the CAT/CGT problems. Contact: end of 21 days from the date of this whereabouts of this gentleman please 086 609 8432 In the matter of the Landlord and notice and will apply to the county contact Donal Farrelly & Co, So- Tenant Acts 1967-2005 and in the registrar for the county of Dublin for licitors, Tullagh House, High Street, matter of the Landlord and Ten- directions as may be appropriate on Tullamore, Co Offaly; tel: 057 932 Self-contained/shared office, ant (Ground Rents) (No 2) Act 1978 the basis that the person or persons 1324, fax: 057 932 1328, email: don- Harcourt Road – 750 sq ft ap- and in the matter of an application beneficially entitled to the superior [email protected] prox. Prominent office space by B&F Properties Limited interests including the freehold rever- near Luas. Self-contained and Any person having a freehold estate sion in each of the aforesaid premises Shared office space available in possibility of sharing serv- or any intermediate interest in all are unknown or unascertained. Dun Laoghaire area on flexible ices. Reasonable rent. Contact: that and those that plot or piece of Date: 7 November 2008 terms. Possible serviced facilities [email protected]; tel: ground the subject of an indenture Signed: Murray Flynn Maguire (solici- considered. Car parking optional. 01 475 4766 of lease dated 31 December 1869 tors for the applicants), 12-16 Fairview Suit professional person. Contact between Lawrence Walker, William Strand, Dublin 3

70 www.lawsociety.ie PROFESSIONAL LAW SOCIETY GAZETTE NOVEMBER 2008

In the matter of the Landlord and tenancy from the Reps General JD unknown or unascertained. 1. Description of land to which Tenant Acts 1967-1993, in the Crosbie at an annual rent of £2.14s.7d Date: 7 November 2008 this notice refers: all that and those matter of the Landlord and Tenant (= £2.77 = €3.51), should give notice Signed: Brendan Clarke (solicitor for the lands and premises now known as (Ground Rents) Act 1967, in the to the undersigned solicitors. the applicants), Unit 3, Parnell Court, 15/15A Bishop Street, Dublin 8, be- matter of the Landlord and Tenant Take notice that the applicant, Granby Row, Dublin 1 ing part of the lands demised in a cer- (Ground Rents) (No 2) Act 1978 and Maurice B Fitzgerald, intends to tain indenture of lease dated 21 May in the matter of premises situate apply to the county registrar for the In the matter of the Landlord and 1777 and therein described as “all at 38 Upper Clanbrassil Street, county of Kerry for acquisition of the Tenant Acts 1967-1994 and in the that and those the messuage house Dublin, parish of St Peter, Dublin, freehold interest and all intermediate matter of the Landlord and Ten- or tenement situate lying and being and in the matter of an application interests (if any) in the above men- ant (Ground Rents) (No 2) Act 1978 on the south side of Bishop Street by Belcarrig Properties Limited tioned property, and any party assert- and in the matter of an application formerly called Bigg Butter Lane late Take notice that any person having ing that they hold an interest supe- by Montara Limited of 2 West in the possession of Charles Labonte any interest in the freehold estate of rior to the applicant in the aforesaid End Business Park, Doughcloyne and now in the possession of the said the following property: all that and property are called upon to furnish Industrial Estate, Sarsfield Road, John Connoly and Alexander Gordon those property known as 38 Upper evidence of title to same to the below Wilton, in the city of Cork mearing and bounding as follows on Clanbrassil Street in the parish of St named solicitors within 21 days from Take notice any person having inter- the North with Bishop Street afore- Peter in the city of Dublin, held under the date hereof. In default of any est in the freehold estate or any other said on the west to Jeffrey Giblons an indenture of lease dated 12 Febru- such notice being received, the said estate of the following property: holding on the east to Henry Rothers ary 1844 between George Benynge Maurice B Fitzgerald intends to pro- 181 Old Youghal Road, parish of St holding and on the south to William Rochford of the first part, Thomas ceed with the application before the Anne’s Shandon, city of Cork. Peters holding containing in breadth Orsbrey of the second part and Tho- county registrar at the end of 21 days Take notice that Montara Ltd in- in the front and the rere fifty feet or mas O’Reilly of the third part for a from the date of this notice and will tends to submit an application to the thereabouts and in depth from front term of 999 years from 25 March apply to the county registrar for the county registrar for the county of to rere on each side one hundred and 1843, subject to the rent thereby re- county of Kerry for such directions as Cork for the acquisition of the free- fifty six feet or thereabouts”. served in the conveyance and condi- may be appropriate on the basis that hold interest and all superior inter- 2. Particulars of applicants’ lease: tions therein contained. Take notice the person or persons beneficially en- ests in the aforementioned property, the applicants hold the lessee’s inter- that the applicant, Belcarrig Proper- titled to any such superior interest up and any party asserting that they hold est in the said lands under the said ties Limited, intends to submit an ap- to and including the fee simple in the a superior interest in the aforesaid lease dated 21 May 1777 and made plication to the county registrar for aforesaid property is/are unknown or property are called upon to furnish between Robert Byrne of the one the county and city of Dublin for the unascertained. evidence of title to the aforemen- part and John Conolly and Alexander acquisition of the freehold interest in Date: 7 November 2008 tioned premises to the below named. Gordon of the other part, whereby the aforesaid property, and any party Signed: Thomas J O’Halloran (solicitor In particular, such persons who the lands and hereditaments as there- asserting that they hold a superior for the applicant), Upper Ashe Street, are entitled to the interest of Swithin in described (of which the premises interest in the aforesaid premises are Tralee, Co Kerry White, deceased, pursuant to a lease herein form portion) were demised called upon to furnish evidence of ti- of 22 October 1745 between Swithin unto the said John Conolly and Al- NOTICES tle to the aforementioned premises to In the matter of the Landlord and White of the one part and Noblett exander Gordon for the term of 999 the below named within 21 days from Tenant Acts 1967-1994 and in the Johnson of the other part for a term years from 25 March 1778, subject to the date of this notice. matter of the Landlord and Ten- of 999 years from 1 May 1745 in the yearly rent of £20. In the default of such notice being ant (Ground Rents) (No 2) Act 1978 lands at Glauncatane in the county Date: 7 November 2008 received, Belcarrig Properties Lim- and in the matter of Patrick Trea- of Cork, should provide evidence of Signed: Creagh Joy & Company (solici- ited intends to proceed with the ap- cy and Angela Treacy and no 259 their title to the below named. tors for the applicants), 2 Prince of Wales plication before the county registrar Crumlin Road, Dublin 12 In default of any such notice be- Terrace, Bray, Co Wicklow at the end of 21 days from the date Take notice any person having any ing received, the applicant, Montara of this notice and will apply to the interest in the freehold estate of the Limited, intends to proceed with the In the matter of the Landlord and county registrar for the county/city following property: 259 Crumlin application before the county reg- Tenant Acts 1967-1994 and in the of Dublin for directions as maybe Road, Dublin 12. Take notice that istrar and will apply to the county matter of the Landlord and Tenant appropriate on the basis that the per- the applicants, Patrick Treacy and registrar for the county of Cork for (Ground Rents) (No 2) Act 1978 and sons beneficially entitled to the supe- Angela Treacy, intend to submit an directions as may be appropriate on in the matter of an application by rior interest including the freehold application to the county registrar the basis that the person or persons Sheila Dorrington and in the mat- reversion in the aforesaid property for the county of the city of Dublin beneficially entitled to the superior ter of the property at the rear of are unknown and unascertained. for acquisition of the freehold inter- interest including the freehold in the 14 Longwood Avenue, South Cir- Date: 7 November 2008 est in the aforesaid property, and any premises are unknown and unascer- cular Road, Dublin 8, in the city Signed: Peter G Crean & Company party asserting that they hold a supe- tained. of Dublin (being also the property (solicitors for the applicant), Millwood, rior interest in the aforesaid premises Date: 7 November 2008 at the rear of 8a Bloomfield Park, Carrigduff, Bunclody, Co Wexford (or any of them) are called upon to Signed: Rachel O’Toole (solicitor for the Dublin 8, in the city of Dublin) furnish evidence of the title to the applicant), 7/8 Liberty Street, Cork Take notice that any person having In the matter of the Landlord and aforement ioned premises to the be- an interest in the freehold estate or Tenant Acts 1967-2005 and in the low named within 21 days from the In the matter of the Landlord any intermediate interests of that matter of an application by Mau- date of this notice. and Tenant (Ground Rents) Acts part of the property known as 14 rice B Fitzgerald In default of any such notice be- 1967-1987 and in the matter of an Longwood Avenue, South Circular Take notice that any person having ing received, the applicants intend to application by the Boylan Limited Road, Dublin 8, being the property any interest in the freehold estate of, proceed with the application before Partnership, the Teissier Limited at the rear of 8a Bloomfield Park, or any superior or intermediate in- the county registrar at the end of Partnership and the McCarthy Dublin 8, in the city of Dublin, held terest in, all that and those the dwell- 21 days from the date of this notice Limited Partnership (applicants): under an indenture of lease made 13 inghouse, yard, garden and premises and will apply to the county register notice of intention to acquire fee March 1893 between George Elliott situated at The Cross, Ballyheigue, for the county of the city of Dublin simple and Martha Anne Elliott of the one electoral division of Ballyheigue, for directions as may be appropriate Take notice that the applicants, being part and Elizabeth Smith of the other barony of Clanmaurice and county on the basis that the persons benefi- the persons entitled under the above- part (hereinafter ‘the lease’) for a of Kerry, measuring 0.186 acres or cially entitled to the superior inter- mentioned acts, propose to purchase term of 123 years from 1 March 1893 thereabouts statute measure, being est including the freehold reversion the fee simple in the lands described at the annual rent of £3 sterling and the property held on foot of a yearly in each of the aforesaid premises are in paragraph 1. subject to the covenants and condi-

www.lawsociety.ie 71 PROFESSIONAL NOTICES LAW SOCIETY GAZETTE NOVEMBER 2008

tions therein contained. Alice Piegrome of the one part and purchase the fee simple in the lands 3. Part of lands excluded: ex- Take notice that Sheila Dorrington William Tarrant of the other part for described in paragraph 1. cluding all the lands comprised in intends to submit an application to the term of 99 years from 2 Decem- 1. Description of lands to which the said lease of 21 July 1891 that do the county registrar for the county ber 1957, subject to the yearly rent of this notice refers: all that and those not form part of the land demised of Dublin at Áras Uí Dhálaigh, Inns £39 and to the covenants and condi- the lands and premises now known in the sublease of 16 June 1944, and Quay, in the city of Dublin, for the tions therein contained. as Saint Conleth’s, 28 Clyde Road, further excluding all the lands com- acquisition of the freehold inter- Take notice that James Tarrant, Ballsbridge, Dublin 4, in the county prised in the said sublease of 16 June est and all intermediate interests in the applicant herein, intends to sub- of the city of Dublin, being part of 1944 that do not form part of the the aforesaid property, and that any mit an application to the county reg- the lands demised in a certain inden- land demised in the lease of 21 July party asserting that they hold the fee istrar in and for the county of Kerry ture of lease dated 21 July 1891 and 1891. simple or any intermediate interest in for the acquisition of the freehold made between William Henry Hip- Date: 7 November 2008 the aforesaid property is called upon interest together with any intermedi- pisley and Charlotte Antonia Sullivan Signed: Eoghan P Clear, Solicitors (so- to furnish evidence of title to the said ate interest in the aforesaid property, of the one part and the Reverend Ri- licitors for the applicant), Alexandra property to the below-named solici- and any persons asserting that they chard Travers Smith of the other part House, The Sweepstakes, Ballsbridge, tors within 21 days from the date of hold a superior interest in the afore- and therein described as “all that and Dublin 4 this notice. said premises are called upon to fur- those the piece or plot of ground part In default of any such notice being nish evidence of title to the aforesaid of the lands of Donnybrook adjoin- received, Sheila Dorrington intends premises to the undersigned within ing the boundary of the estate of the RECRUITMENT to proceed with the application be- 21 days from the date of this notice. lessors at the rere of Morehampton fore the county registrar at the end of In default of any such notice be- Road containing five acres two roods 21 days from the date of this notice ing received, the applicant intends to and thirty one perches statute meas- Trainee solicitor seeks to secure and will apply to the county registrar proceed with the application before ure” and as more particularly deline- training contract. EU/human rights for the city of Dublin for directions the county registrar at the end of 21 ated on the map attached thereto and experience. All FE1 examinations as may be appropriate on the basis days from the date of this notice and further being the entire of the lands passed. Eligible to commence PPCI that the person or persons benefi- will apply to the county registrar in delineated and marked in blue on the course on obtaining contract. Con- cially entitled to the intermediate in- and for the county of Kerry for di- map attached to a certain indenture tact Mary on 087 780 4044 terests, including the fee simple, in rections as may be appropriate on of lease dated 16 June 1944 (which the aforesaid property are unknown the basis that the persons beneficially lease is more particularly described Never finding time for those or unascertained. entitled to the superior interest in- at 2 below). probate files? Solicitor/registered Date: 7 November 2008 cluding the freehold reversion in the 2. Particulars of applicant’s lease: trust and estates practitioner with Signed: Gartlan Winters, Solicitors aforesaid property are unknown or the applicant holds the lessee’s inter- extensive experience available for (solicitors for the applicant), 56 Lower unascertained. est in the said lands under an inden- full-time/part-time work in Galway/ Dorset Street, Dublin 1 Date: 7 November 2008 ture of lease dated 16 June 1944 and Mayo area; mobile: 087 299 6253 Signed: Downing Courtney & Larkin made between Georgina Elizabeth In the matter of the Landlord and (solicitors for the applicant), 84 New Evans Acton, Helen Mary Kewley, Cannot afford a solicitor on a con- Tenant Acts 1967-2005 and in the Street, Killarney, Co Kerry; DX 51 006 Cecily Mary Arthur and Nora Mary tinuing basis? Working long hours, matter of the Landlord and Tenant Killarney Wavish of the one part and Bernard worried about difficult and tedious (Ground Rents) (No 2) Act 1978: an Cecil Sheppard of the other part, files? Experienced travelling locum application by James Tarrant In the matter of the Landlord whereby the lands and heredita- solicitor, general practitioner, now Take notice any person having any and Tenant (Ground Rents) Acts ments herein were demised unto the available full-time. Please contact interest in the freehold estate of 1967-1984 and in the matter of an said Bernard Cecil Sheppard for the Sean; mobile: 086 320 7180 the following property: the garage, application by Ann Sheppard for remainder of the term of 128 years dwellinghouse and premises no 94 the premises known as Saint Con- from 25 March 1891, save the last Post-PPCI trainee in middle of New Street, in the town and parish of leth’s, 28 Clyde Road, Ballsbridge, 3 days thereof, subject to the yearly in-office training period seeks a Killarney, barony of Magunihy and Co Dublin rent of £12.16.00 thereby reserved change of traineeship or second- county of Kerry, held under an inden- To the unknown and unascertained (said rent being reserved in relation ment. Highly motivated, hardwork- ture of lease dated 2 December 1957 owner of the fee simple and all inter- to the total of the lands herein, to- ing individual with good experience and made between James RC Green, mediate interests. gether with other lands not forming in many areas and excellent skills. Madeleine Maxwell, Harold Homes Take notice that the applicant, be- part of this application) and subject All locations and fields of practice Maxwell, Helena Frances Hewson, ing the person so entitled under the to the covenants and conditions considered. CV available on request. Margaret Jacklin, Enid Lawson and above-mentioned acts, proposes to therein contained. Please contact: 087 776 0834 FREE LOCUM FREE EMPLOYMENT RECRUITMENT RECRUITMENT REGISTER REGISTER For Law Society members seeking a position as a locum For Law Society members to advertise for all their legal solicitor or seeking to employ a locum solicitor. staff requirements, not just qualified solicitors. Log onto the new self-maintained locum Log onto the new expanded employment recruitment register on the members’ recruitment register on the members’ area of the Law Society website, www. area of the Law Society website, www. lawsociety.ie, or contact Trina Murphy, lawsociety.ie, or contact Trina Murphy, recruitment administrator, at the Law Society’s Cork office, tel: recruitment administrator, at the Law Society’s Cork office, tel: 021 422 6203 or email: [email protected] 021 422 6203 or email: [email protected]

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