LAW SOCIETY

GazetteGazette€3.75 Aug/Sept 2010

WHISTLE- BLOWERS PROTECTIONS AND PROBLEMS

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ou have received many eBulletins from me, beginning in December 2009, in relation to the risks created by solicitors giving undertakings in commercial property transactions. The Society has consultedY very widely with the profession and with interested parties outside the profession in relation to this matter. I refer, in particular, to my eBulletins to you of 1 April and 27 May 2010. No less than 184 separate submissions were received from members of the profession in and have been reviewed by the Society. This is in light of these response to the Society’s consultation process. The submissions undertakings’ capacity to facilitate reckless lending and fraud – were overwhelmingly supportive of the proposed prohibition on with massive losses to lenders, as in the Lynn and Byrne cases. commercial undertakings. The conflict of interest in which solicitors can find themselves, At its meeting on 16 July 2010, the Council of the Law Society acting for both the borrower and the lender in the same made new regulations to prohibit the giving transaction, is at the heart of the problem. of such undertakings. The new regulations, Statutory Instrument No 366 of 2010, will come Proper security into effect on the commencement of the next During the boom years, solicitors were pressurised, professional indemnity insurance year, namely on “New both by borrowers and by lenders, to give letters 1 December 2010. regulations of undertaking to lenders in commercial property Although the giving of commercial transactions. This frequently led to situations where undertakings will not be legally prohibited until that prohibit the undertakings were not complied with, and many 1 December 2010, in the meantime the Society’s the giving of substantial loans were not properly secured. strong advice (as set out in previous eBulletins as An essential part of any banking system is to far back as 14 December 2009) is that solicitors commercial ensure that proper security is in place where loans, should not give commercial undertakings. undertakings particularly of a substantial nature, are advanced. The risk of failure in this regard is greatly reduced Reasons will come into if lenders retain their own solicitors to take The Council’s reasons for making these effect on the responsibility for ensuring the security is put in new regulations are summed up in previous place. correspondence to you. In particular, I would commencement A detailed analysis of the new regulations refer you to the memorandum of 31 March 2010, of the next PII and explanation of their practical effects will written by the Society’s immediate past-president appear shortly in the Society’s Gazette. Precedent and Chairman of the Commercial Undertakings year, namely documentation, to assist solicitors to comply with Task Force, John D Shaw. In summary, the on 1 December the regulations, will be supplied. experience of the Society’s regulatory committees I wish to thank the members of the Society’s in recent years, in particular the Professional 2010” Commercial Undertakings Task Force for their Indemnity Insurance Committee, is that the assistance, together with all of the solicitors banks’ ad hoc ‘system’ (with no agreed basis or and other interested parties, who very helpfully consistent usage), under which solicitors gave responded to the consultation process. In both certain types of undertakings in order to complete commercial policy and drafting terms, the regulations are much the better property transactions, exposed the public interest to an for the direct contributions made by so many people, through unacceptable level of risk. It was essentially flawed and beyond the Society’s unprecedentedly extensive consultation on this regulatory control, with a range of damaging consequences for important issue. G the public interest, as experience has demonstrated. The frailties of the commercial undertakings ‘system’ have Gerard Doherty been the subject of critical comment by members of the judiciary, President

www.lawsocietygazette.ie 1 Law Society Gazette aug/sept 2010 contents

Law Society Gazette • Vol 104 No 7 Law Society On the cover L A W s OCI e t Y When Little Boy Blue blows

Gazette€3.75 aug/Sept 2010 his horn, the wind in the willows changes. But where do Ratty, Mole and Toad stand in all of this? Gazette au G / S ept 2 010 Aug/Sept 2010 pic: thinkstock

wHiStLe- BLoweRS Law Society of i reland pRotectioNS aND pRoBLeMS Volume 104, number 7 iNSiDe: RiSK MaNaGeMeNt • aLteRNatiVe caReeRS • DiSMiSSaL aND peNSioNS • youR LetteRS Subscriptions: €57 Regulars 1 President’s message 5 News Analysis 10 10 News feature: alternative career options for solicitors 12 News feature: The LRC’s Legislation Directory 14 Human rights watch: hate speech and hate crimes in Ireland 14 One to watch: Planning and Development (Amendment) 18 Act 2010 Comment 17 17 Letters 18 Viewpoint: new legislation on head shops 39 People and places 42 Student spotlight 43 Parchment ceremonies Briefing 50 50 Council report 52 Practice notes 39 56 Legislation update: 12 June – 31 July 2010 59 Solicitors Disciplinary Tribunal 62 Eurlegal: new EU laws on vertical agreements

66 Professional notices 71 Recruitment advertising

Editor: Mark McDermott FIIC. Deputy editor: Dr Garrett O’Boyle. Designer: Nuala Redmond. Editorial secretaries: Catherine Kearney, Valerie Farrell, Cliona Collins. For professional notice rates (wills, title deeds, employment, miscellaneous), see page 67. 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: Michael Kealey (chairman), Mark McDermott (secretary), Paul Egan, Richard Hammond, Simon Hannigan, Mary Keane, Aisling Kelly, Patrick J McGonagle, 42 Aaron McKenna, Ken Murphy.

2 www.lawsocietygazette.ie contents Law Society Gazette aug/sept 2010

Get more at lawsociety.ie PROFESSIONAL notices: send small advert details, with payment, to: Gazette Office, BlackhallP lace, 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 COMMERCIAL ADVERTISING: contact Seán Ó hOisín, 10 Arran Road, Dublin 9, to the current issue at lawsociety.ie. tel: 01 837 5018, fax: 884 4626, mobile: 086 811 7116, email: [email protected] You can also check out: • Current news HAVE YOU MOVED? Members of the profession should send change-of-address • forthcoming events, including the annual ILAI details to: IT Section, Blackhall Place, Dublin 7, or to: [email protected] seminar, ‘Managing risk in a legal office’, at HOW TO REACH US: Law Society Gazette, Blackhall Place, Dublin 7. Blackhall Place on Friday 10 September Tel: 01 672 4828, fax: 01 672 4877, email: [email protected] • employment opportunities • the latest CPD courses FSC independently-certified wood and paper products used by the Law Society Gazette come from ecologically-managed forests. Visit: www.fsc.org

… as well as lots of other useful information PEFC certifies that wood and paper products used by the Law Society Gazette are sourced by suppliers from sustainable, managed forests. Visit: www.pefc.org features COVER STORY: 20 Blowing the whistle Whistle-blower provisions are slowly becoming a standard feature of new employment legislation. Legal practitioners would do well to familiarise themselves with whistle-blower protection – and its problems – for clients. Andrew Sheridan takes us on a whistle-stop tour Risky business 24 With the PII deadline looming, premiums are unlikely to come down until negligence claims follow suit. A key solution to the insurance crisis is to implement formal risk and quality management strategies, says Caroline Murphy Consumer choice 28 The new Consumer Credit Regulations implement the Consumer Credit Directive into Irish law. Max Barrett considers some aspects of the regulations and the changes they make to previously-existing Irish consumer credit law 24 Protecting the nest egg 32 The present economic circumstances are causing greater numbers of employees to claim unfair dismissal before the Employment Appeals Tribunal. Paul Twomey argues that practitioners should always consider pension loss when advising their clients in such matters The in-betweeners 36 Properly conducted, mediation often results in the early settlement of difficult disputes – and narrows the issues in disputes that fail to settle. Solicitors have an important role to play, which can be both fiscally and personally rewarding. Roddy Bourke acts as the go-between

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] Website: www.lawsocietygazette.ie 32

www.lawsocietygazette.ie 3 PII RENEWAL risk management workshops n FACT: PII rates are expected to increase this year, and availability of cover may again be limited n FACT: It is NOT a requirement of the qualified insurers for solicitors to have achieved or registered for a risk management “standard” or “quality mark” in order to get cover. n FACT: It is NOT a requirement of the qualified insurers for solicitors to have undergone a voluntary “risk assessment” by an independent consultant either.

It is however, vital that solicitors can assist insurers in evaluating the likely level of risk in the practice and to provide evidence as to how that risk is being formally managed.

Legalwise is therefore running a series of nationwide ONE-DAY WORKSHOPS to help solicitors prepare their own Risk Management Plan in time for PII renewal.

Objectives: • Develop a better understanding of legal practice risk management • Create a framework for identifying, managing and controlling risk • Learn how to draft a template Risk Management Plan • Understand how best to set up office procedures and systems so as to manage risk going forward

WORKSHOP Details One day classroom style, with a max class size of 30 and delivering 7 hours CPD accreditation Facilitators: Legalwise Directors, Caroline Murphy and Pauline Doohan (both former practising solicitors specialising in insurance and commercial lending respectively) Timing: 9am – 5pm. Cost: €350 per delegate, covers course materials, refreshments, lunch

LOCATION VENUE DATE Dublin Radisson Golden Lane, Dublin 8 Tues 7 September Dublin Royal Marine Hotel Dunlaoghaire Thurs 9 September Sligo Radisson Hotel Mon 13 September Cavan (x 2) Slieve Russell Tues 14 and Wed 15 September Athlone Radisson Hotel Tues 14 September Galway Ardilaun Hotel Wed 15 September Limerick Radisson Hotel Thurs 16 September Drogheda D Hotel Mon 20 September Kilkenny Ormonde Hotel Wed 22 September Cork Radisson Hotel, Little Island Thurs 23 September

Reservations: 01-234 2683; [email protected]; Legalwise Ltd., 28-32 Upper Pembroke St., Dublin 2 Download full workshop brochure from www.legalwise.ie

Legalwise (www.legalwise.ie) is a niche management consultancy dedicated to improving performance, quality and efficiency in legal services. Legalwise is one of the five consultants appointed to the Law Society’s Panel of Risk Management Experts established to help solicitors manage risk in their practices and to help support professional indemnity insurance issues. news Law Society Gazette aug/sept 2010

COUNCIL ELECTION DATES 2010 Society refutes minister’s As required by the bye-laws, the Council approved Monday 13 September 2010 as the final date for ‘rising fees’ claim receipt of nominations for the Council epresentatives of the Law election, and Thursday 28 October RSociety recently met with 2010 as the close-of-poll date. Minister for Enterprise, Trade and Innovation Batt O’Keeffe HEALTH & SAFETY MORNING to address his concerns about a The ‘Health and Safety Compliance report, prepared by Forfás for in Challenging Times’ conference the National Competitiveness will take place on 6 October 2010 at Council, which suggested that the Hilton Dublin Hotel, Charlemont legal costs to business were Place, Dublin 2. Organised by 18.5% higher in 2009 than the Health and Safety Lawyers in 2006. At the meeting, the Association of Ireland (HSLAI), Society set out in detail why it it starts at 7.30am (breakfast considered the conclusion of provided) and concludes at 11.30am. the Forfás report, in the words Talks will be given by HSLAI of the director general, “has O’Keeffe: ‘fees have risen rather Murphy: ‘no proper evidential committee members Aisling Butler no proper evidential basis, is than declined in the recession’ basis, incredible, simply wrong’ (William Fry), Alison Fanagan (A&L incredible and is simply wrong”. Goodbody), Siobhra Rush (Matheson The meeting with Minister Q4 2009, they were 18.5% above Law Society has offered to work Ormsby Prentice), David Phelan O’Keeffe took place in his the average 2006 price”. with the CSO to devise a much- (Hayes) and Niav O’Higgins (Arthur departmental office on 27 When the Society improved basis for the collection Cox). Visit www.hslai.com for details. July 2010. The minister was representatives were given an of data on levels of legal fees in accompanied by departmental opportunity to respond, they Ireland – one from which reliable CANADIAN-IRISH CONFERENCE officials and representatives of moved quickly to demonstrate conclusions could be drawn. A Canadian-Irish family law Forfás. that such a conclusion was In fact, an already intensely conference will take place on The Society was represented completely unreliable. competitive marketplace has 8 and 9 October at Carton House by the president, Gerard Doherty, The Forfás report itself, become even more competitive Hotel, Maynooth, Co Kildare. The director general Ken Murphy, they pointed out, in a note on as a result of the recession. conference is aimed at jurists the deputy director general page 44, acknowledged that With ever more solicitors, and and professionals operating in the Mary Keane, and the vice-chair the data for this conclusion solicitors’ firms, scrambling for family law system. Its purpose is to of the Society’s Arbitration and “is based on a relatively small work of any kind, it is impossible exchange ideas and discuss issues Mediation Committee Roddy sample size and caution should to believe that fees are not falling of mutual concern in the jurisdictions Bourke. be exercised when analysing the substantially. The Society knows of Canada and Ireland. Family law Representatives of the Bar results”. The Central Statistics anecdotally that fees are falling. judges and experts from Canada, Council were also present at the Office has now confirmed When, subsequent to New Zealand, America and Australia meeting. to the Law Society that the the meeting, the minister will attend. Topics will include The minister began by basis of research in relation commented on this issue in the mediation, case management, lay expressing the government’s to legal fees is “experimental, media, director general Ken litigants, a unified family-law model, concern that all costs be reduced under development and may Murphy responded forcefully child representation, spousal and in the Irish economy, so that our be subject to methodological in both print and broadcast child maintenance guidelines, and international competitiveness improvement”. In particular, it is interviews. He referred to the high-conflict cases. Registration and could be restored (an objective acknowledged that the very small fact that, on the Society’s best information is available at: www. for which the Society’s sample size of 18 solicitors’ firms estimate, the number of solicitors familylaw2010.com, or email Róisín representatives expressed full (there are no less than 2,230 currently unemployed is 1,200. at: [email protected]. support). In this regard, he was solicitors’ firms in practice) is a “In fact, the profession has specifically concerned that legal completely inadequate basis for suffered a collapse in income ESB GOES GREEN costs to business appeared to conclusions. over the last three years. One of ESB has set up an email address have actually risen, rather than In addition, of the five the mainstays, conveyancing, has for use by the legal profession: declined, as most other costs headings under which almost completely disappeared.” [email protected]. Rather than had done in the course of the responses were given to the In summary, Murphy said, getting bills by post, it’s done by recession. He then invited a CSO questionnaire, two of “An ever-increasing number email, saving you time, money – and Forfás representative to make a them related to ‘patent work’ of solicitors is chasing a it’s the greener alternative. Members presentation based on their report and ‘notarial work’, in respect dramatically reduced volume of of the profession can pay all of July 2010, which contained the of which the income for the work and experiencing intense accounts – including client accounts conclusion that “the cost of legal solicitors’ profession in Ireland downward pressure on legal – by laser card. Register at www.esb. services has declined slowly and in is infinitesimal. However, the fees.” ie or tel: 1850 372 372.

www.lawsocietygazette.ie 5 Law Society Gazette aug/sept 2010 NEWS New anti-money-laundering Insight to guidance notes launched tribunal he Solicitors Disciplinary he Society has launched produced these comprehensive ‘TTribunal’ was the topic for Tguidance notes for solicitors Guidance Notes to assist this year’s annual workshop for on their anti-money-laundering practitioners to comply with members of the panel of solicitors obligations under the Criminal their AML obligations.” that assists solicitors in difficulty Justice (Money Laundering and Over the coming months, the with the Law Society. The Terrorist Financing) Act 2010, Society will provide web-based workshop was held at Bow Street writes Emma-Jane Williams. learning, which will be delivered in the tribunal room. Many of Commenting on the launch through online ‘webinars’ (web those attending had never been to of the Guidance Notes on 8 seminars). Supplementary tools, the tribunal before. July 2010, President of the AML practice advice, questions The group was addressed by a Law Society Gerard Doherty and answers, summary sheets and panel of speakers who, between said: “The Guidance Notes are client care leaflets will be added them, have many decades of a unique online resource that to the AML area of the website experience of tribunal hearings. will allow solicitors to access report form, among others. as they are developed. The speakers were Mary up-to-date best practice in The Criminal Justice (Money Please contact the Society Fenelon, one of the Law Society’s tandem with corresponding Laundering and Terrorist for assistance when interpreting prosecuting solicitors; John legislative provisions through the Financing) Act 2010 was signed your AML obligations. The O’Dwyer, solicitor, Ballyhaunis, hyperlinks provided. This feature into law on 10 May 2010, and Society welcomes your questions, who regularly defends solicitors greatly enhances functionality commenced on 15 July 2010. as they may provide us with appearing before the tribunal; and usability.” The commencement date scenarios that may not have and Ian Scott, a chairman of the To access the Guidance Notes, of the legislation previously been envisaged at the time the tribunal (now retired). They each simply log in to the members’ indicated to the Society had Notes were prepared – thereby gave an insider’s perspective, area of the Society’s website with been September, but, in June, allowing an opportunity to as experienced from their own your solicitor number, select the Society was informed of prepare best-practice advice particular role. ‘Best practice and guidance’ a government decision to for such situations and inform The importance of the role from the navigation pane on the implement the substantially other members of the profession of the lay members of the left-hand side, then select ‘AML earlier commencement date accordingly. While the Society tribunal was also emphasised. obligations’. The new AML of 15 July. The president cannot provide practitioners with Panel members were given (anti-money-laundering) section commented: “Notwithstanding legal advice, it will endeavour practical advice, to assist them also contains additional resources the short period available for to help you navigate your way when representing colleagues such as legislation, statutory their preparation, the Society’s through best-practice principles. before the Solicitors Disciplinary instruments, contact details, Working Group on Money- Contact Emma-Jane Williams at Tribunal. checklists and the standard garda Laundering Legislation has [email protected]. The workshop was chaired by the chairman of the Guidance and Ethics Committee, Brendan Society confers first human rights certs J Twomey. The committee facilitates the work of the panel.

‘Smoke gets in your eyes’

Regarding the ‘Smoke gets in your eyes’ article, published in the Law Society Gazette (see July issue, p18), please note that the decision of Mr Justice Charleton in HSE v Brookshore Ltd ([2010] IEHC The first students to receive the inaugural Certificate in Human Rights from the Law Society were conferred 165), referred to in that on 19 May 2010. A total of 19 students, the majority of whom were solicitors, were presented with their article, is being appealed to certificates by US civil rights lawyer, Maurice Dees. Other suitably-qualified, non-legal professionals, including NGO non-lawyers with a human rights background, also took part. The certificate will be offered again, starting the Supreme Court. on 3 November 2010. If interested, contact the diploma team at Blackhall Place, Dublin 7

6 www.lawsocietygazette.ie news Law Society Gazette aug/sept 2010 Learning from each other’s experience Pic : Le n s m e rofessional indemnity Pinsurance, reciprocal admission and conflict of interest rules (particularly in relation to firms acting for more than one party in the same property transaction) were just three of a lengthy list of issues on which information and experience was shared between the leaders of four law societies in Blackhall Place recently. The presidents, vice- presidents and chief executives of the law societies of Ireland, Northern Ireland, Scotland, and England & Wales meet twice a year. Once every two years, the meeting is held in Dublin. This year’s gathering in the Council Chamber in Blackhall Place on 29 June 2010 was chaired by the At the meeting of leaders of four law societies in Blackhall Place on 29 June 2010 were (front, l to r): Linda Lee (president, Law Society of England & Wales), Gerard Doherty (president, Law Society of Ireland), President of the Law Society of Norville Connolly (president, Law Society of Northern Ireland) and Jamie Millar (president, Law Society of Ireland, Gerard Doherty. Scotland). (Back, l to r): John Costello (vice-president, Ireland), Des Hudson (CEO, England & Wales), The single biggest issue Mary Keane (deputy director general, Ireland), Brian Speers (vice-president, Northern Ireland), Henry Robson facing solicitors in all four (deputy CEO, Scotland), Ken Murphy (director general, Ireland) and Alan Hunter (CEO, Northern Ireland) jurisdictions is the continuing effect of the profound and benefits of economic recovery with each other than with other roll between the four different persistent economic recession. begin to be seen – which all jurisdictions – whether in the jurisdictions, including the Ideas were compared on the agreed has not begun yet. EU or beyond. Accordingly, manner in which solicitors in measures being taken by all The four English-speaking, keeping close tabs on all changes each jurisdiction are regulated, four societies to assist their common law jurisdictions in the affecting the 140,000 solicitors is invariably informative and members to survive until the EU have much more in common that, collectively, are on the beneficial. Pic : S usa n Ke nn e dy HLJ 2010 launched

he 2010 edition of the speech, Mr Justice McMahon

, Le n s m e THibernian Law Journal (HLJ) correctly praised the diversity was launched on 6 July in the of topics and the quality of Blue Room in Blackhall Place, articles in this 11th edition of writes Peter McKeown Walley. the journal. The keynote speech was given The launch also saw the by Mr Justice Bryan McMahon. conclusion of Julia Emikh’s year The 2010 edition comprises as editor-in-chief. The editorial articles examining a variety committee expresses it thanks to of legal issues, ranging from Julia for her dedication, diligent orthodox and topical subject organisation and the production Immigration lawyer Anne O’Donoghue of the Law Council of Australia matters, such as the Lisbon of an excellent edition of the addressed Irish solicitors and PPCII students on the subject of Treaty, media pluralism, bid journal. opportunities in Australia for Irish solicitors. Anne provided information rigging and choice of law The committee is now on working and qualifying in Australia at the seminar on 14 July 2010, under the Rome Convention, to accepting articles for inclusion which took place at the Law Society’s Education Centre. (From l to r): Ken Murphy (director general), Anne O’Donoghue (Law Council of Australia), less-considered issues like the in the next edition. For more President of the Law Society Gerard Doherty, Mary Keane (deputy director treatment of Mass cards under information, visit www. general) and Keith O’Malley (career development advisor) the Charities Act 2009. In his hibernianlawjournal.com.

www.lawsocietygazette.ie 7 Deirdre Finn, William Fry Solicitor and AITI Registered Tax Consultant

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AITI_LawSociety.indd 1 15/07/2010 14:41:16 news Law Society Gazette AUG/SepT 2010 Give your job-seeking skills a boost! he Society’s career support scheduled: PPCII and who are finishing Tservice has organised a busy • Dublin: Wednesday, 15 their training contracts in late schedule of training during September 2010/early 2011 will be invited September and October, • Cork: Wednesday, 22 September to attend the seminars and including both seminars and • Galway: Wednesday, 29 workshops that are scheduled to shorter workshops. All members September take place in October. However, are welcome to attend these • Dublin: Wednesday, 13 October all the September events will be events – subject to availability. • Cork: Wednesday, 20 October. open to solicitors only. Workshops are half-day in ‘Strategies for success’ ‘Interviewing and negotiation’ duration – from 1.30pm to seminars – full day workshops – half-day 5.30pm. All qualify for CPD These one-day seminars are Training for successful group-study credits. Capacity is structured to bring participants interviewing performance and limited at most venues and those through the whole business of negotiation will be available in who want to attend any event job seeking and to introduce this workshop, where people are asked to book their place by strategies and tactics that are given the opportunity to emailing: [email protected]. increase a person’s effectiveness role-play and work through More details on these events at identifying work opportunities all the questions and other are available on the society’s and putting oneself forward challenges that tend to cause website at www.lawsociety.ie/en/ for consideration. Matters people difficulty at interview. pages/careersupport. covered will be relevant to all • Galway: Tuesday, 21 September These workshops will take place Career Support is a Law solicitors – regardless of career • Dublin: Thursday, 7 October as follows: Society initiative, established stage and whether the member • Cork: Tuesday, 12 October. • Dublin: Wednesday, 23 to assist solicitors faced of the profession is employed, September with career challenges in practice, or currently not ‘Effective CV preparation’ • Cork: Thursday, 30 September such as unemployment, working. workshops – half-day • Galway: Thursday, 7 October underemployment and ‘Strategies for Success’ The preparation of an effective • Dublin: Thursday, 14 October uncertainty about what to do seminars will go ahead at the CV and other aspects of self- • Cork: Thursday, 21 October. next, careerwise. A wide range following locations on the dates marketing, such as writing of supports are provided, scheduled: covering letters, will be addressed Trainees about to finish including telephone and • Dublin: Tuesday, 7 September in detail in workshops at the training contracts email support and one-to-one • Cork: Tuesday, 14 September following locations on the dates Trainees who have completed consultations.

IoIC welcomes four new fellowsPic : B illy p i x. com he editor of the Law as editor of the Gazette. The TSociety Gazette, Mark magazine was a finalist in the McDermott, has been awarded PPA Ireland Awards in 2006 and a fellowship of the Institute 2007. In his role as secretary to of Internal Communication the Society’s PR Committee, (IoIC). The IoIC is Britain’s Mark manages the annual professional body for internal Justice Media Awards. communicators. The award was Working in internal made in London on 30 June communications for the past 2010, where Mark was one of 21 years, he holds a Masters in four members to receive their Communications & Cultural fellowships. Studies (Hons) from Dublin Mark started his career in City University and has been a journalism at the College of member of the IoIC (formerly Commerce, Rathmines, from Communicators in Business) 1987-89. He was appointed Jolly good fellows – of the IoIC! (From l to r): Jos Harrison, John Davies, since 1994. assistant editor of internal Mark McDermott and Rani King (MBE) From Kilkenny, he is married communications at Aer Rianta to Mary, who he describes as (now DAA) in 1989 and McCabe, they won awards in the European FEIEA Grand “finer than any fellowship!” subsequently deputy editor, Britain and Ireland, among them Prix. They have three children, before becoming editor in ‘Best In-house Magazine’, ‘Best In 2005, he moved to the Miriam (7), Kenneth (5) and 2000. With then editor Brian Editorial Team’, and finalist in Law Society, taking the helm Paul (2).

www.lawsocietygazette.ie 9 Law Society Gazette aug/sept 2010 analysis Thinking outside the career box Given the recession, it’s not surprising that some solicitors are looking at alternative careers to law. Keith O’Malley spotlights a number of those who have made waves outside the profession

nly a few professions have great prominence in media Ohad one of their own serve and entertainment, but other as Taoiseach – and Brian Cowen solicitors are also distinguishing is not the only solicitor serving themselves in this arena. Cork the affairs of the state. The solicitor Michael Mee is a Fine Gael front bench includes regular on the international both Charlie Flanagan TD and comedy circuit and was Alan Shatter TD. Solicitors described by The Sunday Times continue to get involved in last year as “the brightest Irish politics, and solicitors that were comedy talent in recent years”. newly elected as councillors Geraldine McAlinden in the recent local elections enjoys significant success as an include Catherine Noone and actress, starring in films, on Rioghnagh Bracken. TV, and on the stage, while Solicitors also feature still managing to practise as prominently in business. Three a solicitor. Criminal lawyer out of a total of eight directors at Ronan O’Brien recently had Bord Gáis are solicitors. Their his novel Confessions of a Fallen chairperson, Rose Hudson, Angel published, for which practised as a solicitor and was he won the 2009 Irish Book part of the core management Awards ‘Newcomer of the Year’. team in GPA before progressing He is currently working on his to several directorships with second novel. organisations such as Bank of Solicitors play important Ireland, Aer Lingus and Total Blue-sky thinking outside the box roles in the public sector, Produce plc. in non-governmental Tony O’Reilly has been one (FAI). Brendan Dillon, also a Leman Solicitors are active organisations and in the of Ireland’s leading businessmen solicitor, is former chairman of in sports arbitration and not-for-profit sector. There for decades, but other solicitors the FAI National League and dispute resolution, and firms has been international successful in business over officer of the FAI. such as A&L Goodbody acknowledgement for what the long term include Ciarán Other solicitors participate and Beauchamps have teams Michael Farrell has achieved Feighery (chairman of SIAC in sports management within specialising in sports law. in the Irish Council for Civil Construction), and Muiris Ó their jobs in practice. Larry RTÉ broadcaster Miriam Liberties (ICCL) and FLAC. Céidigh (CEO of the National Fenelon and John Hogan of O’Callaghan has achieved Des Hogan has played a pivotal Milk Agency). Another Ó role in the Irish Human Rights Ceidigh, Pádraig ran his legal Commission – as has Mary practice in Galway for several Forde in Amnesty International. years before deciding to buy Aer ALTERNATIVE areas Arann in 1994 and developing Blinkered mentality it into one of Europe’s most to think about There are benefits for solicitors successful airlines, with annual Mediation, arbitration, politics, information officer, financial individually, and for the revenues of over €100 million. regulator, human rights, procurement, European Commission, profession generally, if members company secretarial, Equality Authority, entrepreneurial, Courts look more expansively at what Sporting greats Service, journalism, Legal Aid Board, tax consultant, broadcasting, they can do work-wise – and In the world of sport and sport HR management, compliance and regulation, patent attorney, avoid being blinkered in what management, qualified solicitor sustainable development, alternative energy, social enterprise, they can achieve. Sarah O’Connor is CEO of the political advisor, academia, legal recruitment, trademark attorney, In order to facilitate Irish Sports Federation, while Office of the Attorney General, management consultant, insurance solicitors to consider their full Sarah O’Shea is head of legal claims, ombudsman, penal services, governance, law reform, array of career options, the Law and disciplinary affairs at the commission of inquiry. Society’s career support team Football Association of Ireland is organising a series of events

10 www.lawsocietygazette.ie analysis Law Society Gazette aug/sept 2010 Thinking outside the career box that will take place over the throughout September. A range be initiated also. law will be invited to relate coming weeks. of informational leaflets and These events will culminate their experiences to colleagues Information evenings on how guidelines on working in non- in a ‘President’s Evening for and to impart what they have to break into new areas of work traditional practice areas will Members’ on 14 October 2010. learned. G and into sectors going through be published, and these will be There, solicitors who have had growth and development, such as made available to members. particular success outside the Keith O’Malley is the Law Society’s financial services, will run weekly Online discussion groups will traditional practice of career development advisor.

PASTURES NEW – SOLICITORS WORKING IN OTHER FIELDS Hannah Peter Oakes Jennifer David Bell – Carney – – regulation Carroll- entrepreneur coach and and com- MacNeill David skills trainer pliance – policy qualified as Having Peter is an advisor a solicitor trained as Australian From Dublin, in 1993 a solicitor national and Jennifer did and worked in Dublin, is qualified her training primarily as Hannah also as a solicitor contract an in-house qualified in Australia, in Cork in solicitor for and worked Ireland and Ronan Daly companies in Australia Britain. He Jermyn, as ranging from before joining McCann met an Irish woman in Sydney well as a secondment in Pearts start-ups to major food companies FitzGerald’s commercial litigation and found himself moving first to to better appreciate the court listed on the Irish and London group. London and then to Ireland. process. She qualified in 2007 stock exchanges. Appointed partner in 2001, Peter initially joined a company and moved to UCD to complete a In his work as an in-house she then became director of in the Irish Financial Services PhD on the judiciary. solicitor, he provided advice professional development – Centre. Then, having explored When Fine Gael advertised the to boards, chief executives, building and implementing a opportunities, he decided to position of legal advisor in the other business managers and strategy that raised the bar for establish his own business. office of the leader, she saw this staff across a wide range of talent, leadership and team Drawing upon earlier expertise he as her ideal job – being a lawyer areas, including compliance development in the firm. had gained in regulation, he formed and a political science graduate. with statutory requirements She established herself as an Compliance Ireland in 2004. In this role, Jennifer is – particularly advising on independent consultant in 2007 Compliance Ireland has gone responsible for reviewing employment law. Over time, and has built a reputation for on to develop impressively, government legislation on he became more involved in enabling improvement through providing advice and training to behalf of Fine Gael, and drafting personnel issues, gradually different approaches to individual, banks and other financial sector amendments for debate in developing as a specialist in team and skills development. She organisations on corporate Oireachtas committees. human resources (HR) matters. brings a passionate and personal governance, regulatory compliance She also drafts Fine Gael’s Aware that most employers approach to her work as a coach/ and financial crime issues. private members’ bills, advises cannot afford a full-time HR mentor, facilitator and trainer. Peter is moving on. In October, the party leader on legal matters function, David decided to Hannah is acknowledged as an he takes up the newly-created as they arise and liaises closely establish The HR Department expert in the team and business position of assistant director with the party’s press office. as a service that employers development of professional general (enforcement) at the In addition, she manages the can outsource or call in, as services firms. Her clients include Central Bank. In this role, he will party’s justice policy portfolio. required. The company supplies law firms in both Ireland and report to the head of financial She maintains an academic employers with up-to-date online Northern Ireland, together with regulation, Matthew Elderfield, role in UCD as a lecturer and staff handbooks and employment organisations in the aviation, and will lead the organisation’s course co-ordinator for the contracts. It helps employers stay healthcare, accountancy and not- investigative and enforcement undergraduate law and politics compliant and supports them for-profit sectors. functions. degree, and also teaches through HR challenges. It provides She is also an accredited He believes that Ireland offers legislative drafting in the Public a HR audit service and assists and practising mediator and is a solicitors diverse and sustainable Affairs Institute. She is in the employers to develop a strategic member of One-Resolve. business opportunities. process of completing her PhD. approach to HR issues.

www.lawsocietygazette.ie 11 Law Society Gazette aug/sept 2010 analysis The profession’s best- kept secrets

The LRC’s Legislation Directory and its statute law restatement are among the profession’s best-kept secrets, writes Heather Mahon

ractitioners who have Ppreviously experienced difficulties in accessing up- to-date information on Irish legislation may be interested in recent work carried out by the Law Reform Commission (LRC) on the Legislation Directory and on statute law restatement. Many practitioners will be familiar with the electronic Irish Statute Book (eISB). This database is produced by the Office of the Attorney General and can be accessed at www. irishstatutebook.ie. However, anecdotal evidence would suggest that many users are unaware of the existence of the Legislation Directory database, which is also hosted to 4 April 2010. It is envisaged Pre-1922 information amended before independence on that site. The main purpose that this listing will now be The LRC has also introduced will not have been apparent to of the directory is to document updated monthly. some pre-1922 (before users. modifications made to primary The LRC has also expanded independence) information to The LRC has begun entering legislation by subsequent the range of information the database. Currently, there this pre-1922 information legislation since 1922. It also available for users in respect are in excess of 1,000 pre- in relation to legislation that contains some information of legislation enacted since 1 independence public general remained in force as of 8 May on secondary legislation. The January 2006. Comprehensive statutes remaining on the Irish 2007. (This date was chosen homepage of the Legislation information is now available Statute Book. Until now, there has as it is the date that the Statute Directory can be accessed at in relation to commencement been no information in relation Law Revision Act 2007 came into www.irishstatutebook.ie/ and other associated secondary to pre-1922 amendments to this force. The principal purpose chronological.html. legislation. The illustration body of legislation. This means of that act was to repeal all Users wishing to view (above) of the information that users viewing pre-1922 public general statutes enacted information on modifications currently available for the legislation will only have seen before 6 December 1922, with to primary legislation should Passports Act 2008 reveals the post-1922 amendments. The the exception of a ‘white list’ access the second listing on the depth of information available. fact that an act may have been of acts that were specifically homepage. This is entitled preserved. This act thus provides ‘A chronological list of the a definitive statement of the Public General Acts enacted “Anecdotal evidence would suggest status of pre-1922 legislation on from 6 December 1922 to 3 that date.) April 2010 (No 4 of 2010)’. that many users are unaware of the The LRC will be inputting It can be accessed directly at existence of the Legislation Directory pre-1922 information in respect www.irishstatutebook.ie/isbc/ of this ‘white list’ of acts. This chrontables.html. database … the main purpose of which work will be completed in is to document modifications made stages. At the time of writing, Monthly updates information for acts enacted The LRC has recently to primary legislation by subsequent between 1900 and 1922 had completed an upload of new legislation since 1922” been indexed. An illustration of information to this listing, some of the information now updating it from 1 January 2006 available for the Finance Act

12 www.lawsocietygazette.ie analysis Law Society Gazette aug/sept 2010 The profession’s best- kept secrets

1900 can be seen to the right. leave; proceeds of crime; The entries highlighted in Finance Act 1900 equality; road transport; 1900 (63 & 64 Vict) c7 yellow are new to the database. and road traffic, Pre-1922 information on public • Updates to four existing general statutes is currently restatements carried out by contained in four separate the Office of the Attorney listings. These are: General: the Sale of Goods • Pre-Union Irish statutes Act 1893 and Sale of Goods (1169-1800), and Supply of Services Act • Statutes of England (1066- 1980, Defence Acts 1954 1706), to 1998 and court martial • Statutes of Great Britain appeals, the Tourist Traffic (1707-1800), Acts 1939 to 2003, and the • Statutes of the United Succession Act 1965. Kingdom of Great Britain and Ireland (1801-1922). When these restatements are certified, they will also These are divided according to be uploaded to the eISB for the parliament responsible for public use. enacting the legislation. These The LRC is also now listings can be accessed from the of an act, with its subsequent The LRC is currently reviewing candidate Legislation Directory homepage. amendments, to allow both completing its First legislation for its Second Users should also note that to be read seamlessly in one Programme of Restatement. Programme of Restatement, it is currently not possible to document. Once a restatement This includes restatements of which will commence later provide hyperlinks to pre-1922 is certified by the Attorney the following legislation: this year. If practitioners have legislation, as these documents General, it can be relied upon • The Freedom of Information any views on what should are not available to the LRC in in court as evidence of the Act 1997, Data Protection be included in the second electronic format. The LRC law, although the original Acts 1988 and 2003, programme of restatement, will continue to update the legislation takes precedence if Prevention of Corruption they are invited to send Legislation Directory and to make there is a conflict. Acts 1889 to 2005, and the suggestions to the LRC at additional improvements as Restatements can save Criminal Procedure Act 1967, [email protected] before 30 resources permit. practitioners a considerable • Eight suites of related September 2010. G amount of time, which legislation: ethics in Statute law restatement would otherwise be spent in public office; firearms; Heather Mahon is project A ‘statute law restatement’ is researching the up-to-date civil liability and Statute of manager for the Legislation an administrative consolidation position of the law. Limitations; employment Directory at the LRC.

The EU & International Affairs Committee announces its Exchange Programmes for 2010 and invites Irish firms to host a visiting lawyer

The Committee, in its liaison with other European Bars, is developing two ing a fantastic opportunity to establish links with the lawyer and his/her Exchange Programmes for lawyers in 2010: a Programme with the Madrid home Bar for future transactions. Bar and a Programme with GILBA (German-Irish Lawyers and Business At the same time, your firm would be offering a unique experience to the Association). visiting lawyer, increasing his/her chances of employment. It would also These programmes allow lawyers to acquire work experience in a different encourage European mobility, as Irish lawyers may participate in a similar jurisdiction for a short period of time, attending classes in relevant areas programme organised by the Madrid Bar and GILBA. of law and gaining work experience in a legal firm. If your firm wishes to host a German lawyer for a two-month period (Sep- Hosting a visiting lawyer in your firm does not entail any cost at all and tember - November 2010) or a Spanish lawyer for a three-month period your firm can benefit from the participant’s background and knowledge of (January-March 2011), please contact us and we will be happy to provide a different jurisdiction; from his/her language skills; as well as constitut- you with all the details on the programme: [email protected]

www.lawsocietygazette.ie 13 Law Society Gazette aug/sept 2010 analysis

Hate speech and hate crimes in Ireland Ireland must transpose the EU’s framework decision on combating racism and xenophobia by 28 November 2010. Siobhán Cummiskey examines the shortcomings of Irish law in this context he proliferation of racism framework decision. Report to the UN Committee appear in the body of the act. Tand xenophobia through “Effective implementation of on the Elimination of Racial There is also a dearth of any hate speech has historically had comprehensive and clear legislation Discrimination). Examples of legal interpretation of terms a disastrous effect on democratic to combat racism and xenophobia”: cases taken under the act include such as “stirring up” hatred society. On 6 December 2008, The main statute that addresses the failed prosecution of a Fine and “threatening, abusive or the European Union’s Council racism and Gael councillor insulting” words or behaviour. Framework Decision 2008/913/ xenophobia in Mayo, who This, coupled with the nebulous JHA of 28 November 2008 in Irish law is “There is accused Travellers nature of such terms, seems on combating certain forms the Prohibition of “lying around to contribute to the reticence and expressions of racism of Incitement also a dearth in the sun like of prosecutors to pursue and xenophobia by means to Hatred Act of any legal dogs” instead prosecutions of these crimes, of criminal law entered into 1989. This act of participating and makes convictions more force. The framework decision has been the interpretation in FÁS schemes difficult to secure. strives to further approximate subject of much of terms such (the comment “Member states shall take the the criminal laws of member criticism from the was considered necessary measures to ensure that states in order to ensure legal and NGO as ‘stirring offensive but not racist and xenophobic motivation “effective implementation communities and up’ hatred and incitement) and is considered an aggravating of comprehensive and clear has been under the overturning circumstance or, alternatively, legislation to combat racism and review by the ‘threatening, of the conviction that such motivation may be xenophobia”. Department of abusive or of a Dundalk bus taken into consideration by the The deadline for Justice for over driver who called courts in the determination transposition of this framework a decade. Its lack insulting’ a young child a of the penalties”: Currently, decision is 28 November 2010. of efficacy is words or “black bastard” under Irish law, whether The Irish government must, evidenced by the and told him or not racist motivation is therefore, consider and rectify prosecution of behaviour” to “go back to considered by the court is the efficacy and clarity of its just 18 cases Africa”. entirely at the discretion of own criminal law in relation to and the securing The act the trial judge. The law in racism and xenophobia before of just seven convictions is widely believed to lack relation to racist motivation this deadline. This article will from December 1989 to May clarity. For example, the word is therefore somewhat ad consider the shortcomings of 2004 (this is according to “incitement” is used in the hoc. This contrasts with our Irish law in the context of the the Irish government’s First title of the act, but does not neighbouring jurisdiction of one to watch: new legislation Planning and Development and to promote sustainable “have regard to” national and to national and regional (Amendment) Act 2010 development. It is intended to regional strategies and guidelines. population targets. The Planning and Development achieve this goal by ensuring With the introduction of the 2010 (Amendment) Act 2010 was signed that the planning system act, the ‘core strategy’ provision Alterations to draft into law by the President on 26 July supports targeted investment on will require that the development development plans 2010. infrastructure by the state, and also plan and housing strategy show The 2010 act provides that, in The act makes a number of by further modernising land zoning. that the objectives laid out are the event of amending a draft significant changes that will have consistent with national and development plan, it will be implications for those applying for Core strategy requirement regional development objectives required that any such changes planning permission, developers, The 2010 act requires that every set out in the National Spatial be minor in nature and be subject those funding development, and development plan prepared by local Strategy, and in regional planning to further public consultation. other interested third parties. The authorities must set out a “core guidelines. Core strategies will Any amendments must not relate aim and purpose of the new act strategy”. Prior to this act, planning also be required to take account of to an increase in the area of is to support economic renewal authorities had merely a duty to ministerial policies in relation land zoned, or an addition to,

14 www.lawsocietygazette.ie analysis Law Society Gazette aug/sept 2010 human rights watch Hate speech and hate crimes in Ireland England and Wales, where racist motivation is considered at the outset by the arresting officers and its inclusion as an aggravating circumstance is laid before the prosecutor and the court. Furthermore, Ireland does not have a specific statute dealing with ‘hate crimes’, that is, crimes motivated in whole or in part by prejudice, such as England’s Crime and Disorder Act 1998 (as amended). “Each member state shall take the necessary measures to ensure that the conduct referred to in article 1 is punishable by criminal penalties of a maximum of at least between one and three years of imprisonment”: The framework decision requires that such penalties be “effective, proportionate and dissuasive”. Under the Prohibition of Incitement to Hatred Act 1989, a person is liable on summary conviction to a maximum fine of IR£1,000 or to imprisonment of a maximum of six months, or to both, and, on indictment, to a maximum fine of IR£10,000 or to imprisonment for a maximum term of two years, or to both. EU member states must ensure effective legislation to combat racism and xenophobia

or deletion from, the record of • Substantial works were carried strategy’ shall provide the policy that are subject to planning protected structures. out pursuant to the permission framework for ‘local area plans’ guidelines relating to sustainable during that period, (LAPs), particularly in relation rural housing issued by the Extension of planning permission • The development will be complet- to zoning at LAP level. The core minister. According to the new act, ed within a reasonable time. strategy shall provide details applications can be made for an of the location, the size of the Default planning permission extension of a particular permission Or the development could not go area, the phasing of proposed The time limits in relation to by an additional period not ahead because of “commercial, development, the projected default planning permissions exceeding five years, subject to the economic or technical” issues that population growth, as well as have been extended. There is an following conditions. Either: were beyond the control of the details of retail and transport allowance of a further 12 weeks • The development was applicant. plans and rural development. for local authorities to remedy commenced before the expiration There is a focus on sustainable any failure to make a decision. of the appropriate period sought Strategic approach to zoning rural housing, with a requirement This extension will not be to be extended, The act provides that the ‘core to provide details of rural areas applicable to developments that

www.lawsocietygazette.ie 15 Law Society Gazette aug/sept 2010 analysis

While Ireland’s penalties on the Elimination of Racial are in line with most other Discrimination, indicated that European jurisdictions (except the term ‘publish’ in the 1989 Germany, where penalties are act could include publishing on harsher), the penalty for the the internet. It is clear, however, offence on summary conviction that more detail than this is is clearly below the minimum required, including clarity on threshold of 12 months outlined jurisdiction to include those in the framework decision. Irish nationals who publish Furthermore, the limited racist and xenophobic material penalties under the act take the on sites that are hosted in offence outside the definition of another jurisdiction, but whose a ‘serious offence’ under Irish threats and fear are felt here. law, affecting both powers of For example, specific threats arrest and bail conditions. and insults against members of “Each member state shall the Traveller community living take the necessary measures to in Ireland may be published on ensure that investigations into or social networking sites hosted prosecution of the conduct referred in the US by Irish citizens living to in articles 1 and 2 shall not in Ireland or abroad. Such acts be dependent on a report or an must fall within the jurisdiction accusation made by a victim of of this state according to the the conduct”: The National these incidents to local garda racism on the internet. The framework decision; however, Consultative Committee on stations to investigate further. Irish government, in its 2009 our law is silent on the matter. Racism and Interculturalism, If used correctly, it appears report to the UN Committee There is no question that in its 2001 report Prohibition of that this would bring Ireland much improvement to Irish Incitement to Hatred Act 1989: A into line with article 8 of the law in the area of racism and Review, first suggested that an framework decision. xenophobia was needed before intermediary body be set up to “Each member state shall take look it up the framework decision was assist the public in using the act. the necessary measures to establish • Council Framework introduced. The only question It is clear that the lack its jurisdiction with regard to Decision 2008/913/JHA that remains, therefore, is of clarity in relation to the the conduct referred to in articles of 28 November 2008 on whether Ireland will use this offences and few prosecutions 1 and 2, where the conduct has combating certain forms opportunity to bring its laws have resulted in a public and been committed: (a) in whole and expressions of racism up to the European standard NGO sector that are largely or in part within its territory, and xenophobia by means in order to protect against the ill-informed of how to use the (b) by one of its nationals, or (c) of criminal law deleterious effect of racism and act. The Garda Racial and for the benefit of a legal person, • NCCRI, Prohibition of xenophobia on Irish society. G Intercultural Office has stated that has its head office in the Incitement to Hatred Act that it is currently developing territory of that member state”: 1989 – A Review, 2001 Siobhán Cummiskey is managing a reporting mechanism for This section of the framework • Prohibition of Incitement solicitor at the Irish Traveller racially motivated incidents, decision deals with the relatively to Hatred Act 1989 Movement Independent Law and the office intends to report new and very real threat of Centre.

require an environmental impact authorities to take enforcement the Planning Acts. If the planning that the authority intends to assessment. action against cases of non- authority intends to refuse take into consideration with compliant development. planning permission on these regard to the proposed exercise Enforcement grounds, it will be required to of that power, and The enforcement mechanism Refusal of planning permission serve a notice in writing on the • Invite the applicant to make has been strengthened under the Planning authorities will have applicant to that effect and that submissions to the authority new act. The act will introduce the power to refuse planning notice shall: within a period specified in the an increase in fines for carrying permission where the applicant • Specify the non-compliance notice as to why the applicant out unauthorised development. In has previously carried out with a previous permission considers that the authority addition, the seven-year immunity a substantial unauthorised or condition of a previous should not exercise its power to rule with respect to quarrying development (which could be a permission, substantial refuse planning permission. G and peat extraction will no longer development with no permission unauthorised development, or apply. The act also contains a whatsoever), or has been conviction for an offence under Joyce Mortimer is the Law mandatory requirement on local convicted of an offence under this act, as the case may be, Society’s human rights executive.

16 www.lawsocietygazette.ie comment Law Society Gazette aug/sept 2010 letters

Send your letters to: Law Society Gazette, Blackhall Place, Dublin 7, or email: [email protected] Property Registration Authority ‘cannot be serious’ From: Patricia McHugh, Richard title documents to vouch titles. declaration being lodged, there H McDonnell Solicitors, Ardee In fact, section 31(1) of the is no way for a subsequent note from a conveyancing Registration of Title Act 1964 purchaser to be sure that any Ipractice note in the spring specifies that a purchaser for prior deed of transfer is not 2010 edition of the Dublin value who becomes registered voidable under the Family Law Solicitors’ Bar Association as the new owner is not affected Acts without his/her solicitor publication The Parchment that, by anything that does not inspecting all dealings on a since the coming into force of appear on the register (other folio from 1995 to the date the Family Law Act 1995, the than the burdens mentioned in upon which the current vendor Property Registration Authority section 72 of that act). Surely became registered to ensure that (PRA) will not require lodgement there is a conflict between the either: of a family home declaration provisions of section 31(1) and 1) A family home declaration “You cannot be serious!” in order to register a title. This the fact that it now appears was lodged with the Property being the case, the position is of the 1995 act and the date that the Property Registration Registration Authority, or that the practice of the PRA in the current registered owner Authority is entitled to register a 2) Tracing the solicitors acting registering titles without the became registered? If it is the title without the requirement of for all previous owners necessity to lodge a family home case that, since 1995, registration having to lodge an appropriate in an attempt to procure declaration puts the registry of was effected without the family home declaration? appropriate family home deeds titles and land registry titles necessity of lodging a family If this is the position, then the declarations from all previous on the same footing – that is, as home declaration then, in this register cannot be conclusive owners. solicitors, we do not need family situation, a solicitor will have evidence of the owner’s title as home declarations for registration to trace every Land Registry appearing thereon, because if In the famous words of Mr purposes, but we do need them dealing on that folio back registration is effected without John McEnroe, “You cannot be for the purposes of investigating to 1995 to ensure that there an appropriate family home serious!” the title. Not to put too fine a are no voidable deeds under point on it – this is ridiculous. the provisions of the Family Issues with risk management I can understand the position Law Act 1995. This is hugely in relation to registry of deeds onerous, time consuming and, Sonia McEntee (on behalf of the Sole not. Only where a practice titles, where you have a bundle of consequently, costly because, on Practitioner Network), c/o McEntee is considered to have imple- title documents from which every the face of any given folio, there Solicitors, Dublin mented good standards in risk single disposition/event on title is no way of knowing what the ith insurance renewal time management consistently over is apparent from the title deeds history of that title was without Wlooming, a new risk-man- a period of years is there a pos- furnished and, therefore, there is physically trawling back through agement industry has sprouted, sibility that premia would be no difficulty satisfying oneself as all dealings on that folio going selling consultancy services to reduced as a result. to compliance with the provisions back to 1995. aid in reducing the cost of cover. The attaining of ‘quality of the Family Law Acts with This simply cannot be, From discussions with colleagues, marks’ will enhance our prac- regard to the various dispositions and surely the Property a number of matters have tices. It will not. The availabil- on title since 1995. However, Registration Authority should become clear. ity of multiple ‘standards’ will with Land Registry titles, the only not be registering any title We are told this is ‘new’. It is only cause confusion. title document furnished is an up- without an appropriate family not. We have all implemented There is much that we can to-date, sealed and certified copy home declaration being risk-management procedures do to help ourselves. Assess folio and filed plan. lodged, particularly when since we started in practice. your practice objectively. If it is the case, for example, the whole purpose of the There may well be room for Identify the issues. Do you that the current registered property register is to provide improvement, but at least one need professional assistance? owner became registered, say, a register that is conclusive insurer has confirmed it will not Can you afford it? Advice paid in 2007, how is any solicitor evidence of the owner’s title penalise practices that have not for is of no benefit unless it is supposed to know or find out as appearing thereon, and to engaged external advisors. put into practice – which takes what events on title occurred do away with the requirement ‘Engaging advisors will time. This is the minimum between the coming into force of holding large bundles of reduce your premium’. It will investment necessary.

www.lawsocietygazette.ie 17 Law Society Gazette aug/sept 2010 comment

Can’t get you out of my head... The government has sent a clear message to head-shop proprietors, but Majella Twomey wonders whether the new legislation is merely putting a band-aid on a broken leg

he Criminal Justice advertising such substances. T(Psychoactive Substances) Act The prohibition order is 2010 was drafted as a response to based purely on the garda’s the numerous ‘head shops’ that belief. The prohibition order have become ubiquitous in Irish must set out the reasons towns and cities in recent years. for the garda’s belief. This Instead of using the section gives broad powers to controversy surrounding these garda superintendents, and shops to engage in a serious it remains to be seen what debate based on empirical facts or evidence a garda can data about how best to deal use in order to issue such a with drug problems in Ireland, prohibition order. The act does the government introduced not set out the circumstances hard-hitting legislation in an as to how or why a garda endeavour to rid the country of might form such an opinion, psychoactive substances – and, and the absence of guidelines ultimately, head shops. is something that may cause The act makes it an offence confusion for the courts in the for one to sell a psychoactive future. substance while knowing or Section 8 goes onto state that being reckless as to whether it a garda superintendent may go is being acquired for human to the District Court if he is of consumption. Section 3 is the opinion that a person has potentially controversial, not complied with a direction as it provides a rebuttable contained in a prohibition presumption that the accused ... boy, it’s more than I dare to think about notice. The court may then knew, or was reckless in this make an order prohibiting regard, where there is a presence growing of plants in liquid This section is, again, quite that person from engaging in of drugs paraphernalia at the containing nutrients, without uncompromising, as it does not the activities concerned. The place to which the proceedings soil, and under controlled require the actual selling of one court can take a number of for the offence relate. A court conditions. The section does of these substances, but merely matters into account when can take the presence of this not define what an ‘object’ is the promotion or advertising of making the order, such as the paraphernalia into account in and, therefore, makes it quite them for sale. In theory, in order presence of drugs paraphernalia deciding whether or not a person ambiguous as to what exactly to be charged under this section, and the cost and quantity falls within section 3. This may comes within this offence. Again, it would appear that all one of the substance being sold well cause problems for the the vagueness of this section has to do is possess one poster or exported. It is important many premises that sell such may well create problems for the promoting the said substances to note that the court can paraphernalia without, in fact, courts when they are trying to for sale. make an order despite the selling psychoactive substances. decide what exactly falls within fact that the defendant states Section 4 of the act is the ambit of an ‘object’. The drugs don’t work that the substance is not a extremely broad, in the sense The act intends to also make The act proposes to give psychoactive substance or that that it creates an offence of advertising or promoting the powers of prohibition to it was not intended or fit for selling an object knowing that consumption of a psychoactive a garda superintendent. human consumption. In the it will be used to cultivate, by substance for sale an offence. Such a garda may serve a circumstances, a defendant will hydroponic means, any plant Further, the giving of prohibition notice on any find it extremely difficult to in contravention of section 17 information on how or where person whom they believe is mount a defence to this, despite of the Misuse of Drugs Act 1977. such a substance may be selling, importing or exporting the fact that there may not have Hydroponic cultivation is the obtained will also be an offence. psychoactive substances or been an intention on his or her

18 www.lawsocietygazette.ie comment Law Society Gazette aug/sept 2010 viewpoint Can’t get you out of my head... part to sell the substances for human consumption.

High society It is interesting to note that the making of a prohibition order is a civil matter. These will not be made in a criminal context. As a result, the garda superintendent has a low threshold to cross in order to prove his case. If a person fails or refuses to comply with a prohibition order, he shall be guilty of an offence. There is, however, a right of appeal to the Circuit Court, and one can apply to the District Court to vary the order. If a person is convicted of an offence of selling, exporting, importing, cultivating, promoting the sale of the said substances, or breaching a prohibition order, the court Throwing the baby out with the bath salts? may also, or as an alternative to another penalty, make a closure Sections 12 and 13 allow for and 12 months’ imprisonment, the Oireachtas at breakneck order. This would effectively members of the gardaí to enter, or both. On conviction on speed and it is clear that the mean the closure of a so-called search and seize places and indictment, a defendant is liable ultimate aim of the new law is head shop. In addition, failure vehicles and to search suspects. to a fine or imprisonment not to rid the country of head shops to comply with a closure order Obstructing a garda or a customs exceeding five years, or both. altogether. shall be an offence. Again, officer in this regard will be an It is clear from a cursory By introducing this legislation, this section has far-reaching offence. glance at this legislation that the government is sending a clear consequences, as the proprietor the government is taking a zero message to the proprietors of of such a shop could potentially Magic carpet ride tolerance approach to head shops head shops. However, one cannot have the entire shop closed The penalties for being convicted and psychoactive substances. help wondering if, perhaps, more down in circumstances where a of an offence under this law The act is general in nature in time should have been spent superintendent forms an opinion are set out in section 20. On order to circumvent the problem on researching the reasons why based on what he believes to be summary conviction, a defendant of new psychoactive substances these shops exist in the first place a breach of the law. This section is liable to a fine of up to €5,000 emerging. It was rushed through and endeavouring to tackle the may cause potential problems problem at source. for proprietors who only sell It must be remembered that drug paraphernalia and not the “One cannot help wondering if, head shops are a by-product of outlawed substances themselves. the drug problem in Ireland and Section 11 of the act does, perhaps, more time should have been exist because there is a demand however, propose that a person spent on researching the reasons why for drugs. It is hoped that this who is the subject of a closure new legislation is not merely akin order may apply to the District these head shops exist in the first place to putting a band-aid on a broken Court to vary or discharge such and endeavouring to tackle the leg. G an order. The act is designed to give problem at source” Majella Twomey is a Dublin-based broader powers to the gardaí. barrister.

www.lawsocietygazette.ie 19 Law Society Gazette aug/sept 2010 cover story Blowing the whist le histle-blowing is the disclosure by organisation members of Whistle-blower provisions are illegal, immoral or illegitimate practices under the control of slowly becoming a standard their employers to persons or organisations that might be able to effect action. Whistle-blowing is not the disclosure of personal feature of new employment employment grievances, nor does it properly include the numerous legislation. Legal practitioners Wmandatory reporting requirements affecting solicitors, auditors and charity trustees, for example. would do well to familiarise Noted examples of whistle-blowing in this jurisdiction include the disclosure to the themselves with whistle-blower Financial Regulator by now former head of Group Internal Audit, Eugene McErlean, of allegations of overcharging and questionable share dealings in AIB, and the protection – and its problems. disclosures by nurses bringing to light certain well-publicised medical scandals. Andrew Sheridan takes us on a Whistle-blower protection provisions arise from a recognition that those who ‘blow the whistle’ that exposes the serious wrongdoing of others take a laudable whistle-stop tour risk in doing so and are frequently the victims of reprisal – and so deserve explicit protection. The first in Irish law (in 1998) protected disclosures of suspected child abuse, and the dozen enacted since then have been either (like the first) a response to a perceived acute problem, or they have been created to correspond with reports to new regulatory bodies and are now increasingly being prescribed by international conventions related to corruption and financial crime. Considerable lacunae in coverage persist. Protection generally takes the form of three related provisions: 1) A shield, protecting those who report a wrongdoing from any liability that would otherwise accrue should the suspicion prove unfounded, 2) A sword, establishing whistle-blower reprisal as a ground for an action, and, 3) As a balance to false reporting, and as a proportionate response to the fear of potential for abuse, it is a criminal offence to make such a disclosure, knowing it to be false.

The shield The main provision is that those who report reasonably and in good faith a suspicion of a qualifying wrongdoing will not be “liable in damages or any other form of relief”. Several alternative wordings are also used, though all preclude any legal action against the whistle-blower arising from an honest disclosure. This is typically allied with an extra protection against workplace reprisal, and the main points wordings of these exhibit substantial material differences. The earlier acts prohibit • whistle-blowing “disciplinary action” against and “penalisation” of the employee. These are drawn protection narrowly and appear, on their face, to be limited to formal disciplinary action, and so provisions fail to capture commonly reported harassment, such as ‘white-walling’ (giving no work • protection and to the employee) and the denial of previously available overtime, for example. The the form it takes Standards in Public Office Commission has stated publicly that such narrow wording • the balance to provides ineffective protection, and has dissuaded potential disclosures to them. false reporting Later acts provide preferable wider definitions such as “any act or omission by • ineffective an employer that affects, to his or her detriment, an employee with respect to any government condition of his or her employment”, and in some instances even include a non- proposals? exhaustive list of such actions.

20 www.lawsocietygazette.ie cover story Law Society Gazette aug/sept 2010 whist le

www.lawsocietygazette.ie 21 Law Society Gazette aug/sept 2010 cover story

These provisions recognise whistle-blower reprisal in the area, as examples exist in this jurisdiction of as a specific wrong sufficient to ground an action employees who have had their employment terminated allowing the employee to take a case to the Rights after blowing the whistle and have never again found Commissioner, seeking an award of up to 104 weeks’ employment at an equivalent level. pay. The Communications Regulation Act, however, The majority of whistle-blower protection declares simply that the person has a right of action in provisions include the creation of the criminal offence tort and so quantum is not limited. of knowingly making a false disclosure. This is in The Safety, Health, and Welfare at Work Act and the addition to the loss of the protections afforded to good Employment Permits Act provide for compensation faith disclosures (which could be expected to leave of such amount as is just and equitable in the the false discloser open to a wide variety of civil and, circumstances. This ought, perhaps, to be regarded perhaps, criminal sanctions). Some acts, including as the model provision for any further legislation the Safety, Health, and Welfare at Work Act, omit

GOVERNMENT PROPOSALS ON WHITE-COLLAR CRIME Minister for Justice Dermot Ahern delivered a keynote speech at the Law The dominant model of coverage has been to append whistle-blower Society’s Annual Dinner on 12 May last, announcing “a series of moves to protections to the legislation creating new public oversight bodies, to cover update and strengthen” the laws against white-collar crime. those who disclose suspected offences under the respective acts to the The minister revealed measures to effect this “rigorous focus on white- bodies charged with enforcing them. Examples include the Ethics Acts (the collar crime” comprising a number of requests for consultation documents, Standards in Public Office Commission); the Safety, Health, and Welfare a stated intention to shortly propose to begin preparation of a consolidated at Work Act 2005 (Health and Safety Authority); and the Health Act 2007 Prevention of Corruption Bill, and the introduction of whistle-blower (Health, Information and Quality Authority), among others. protections for those who report suspected offences under the Prevention It is instructive to note that no whistle-blower protections were of Corruption Acts. This final measure was greeted included the legislation creating the Financial Regulator with positive media coverage as a ‘whistle-blowers’ in 2003, which is anomalous in the context. Nor have charter’, surely all the more gratifying given that it was a any such protections been afforded to those who reiteration of a provision of the Prevention of Corruption “No whistle- disclose suspicions of the commission of any of the (Amendment) Bill 2008 (presented to the Oireachtas by blower protections circa 200 indictable offences under the Companies the minister more than two years before the date of his Acts – despite comprehensive and emphatic speech); and one mandated by the UN Convention on were included in submissions in their favour by the Director of Corporate Corruption, which the state signed in 2003 and remains the legislation Enforcement. In light of this, it is disappointing that the unable to ratify. minister’s speech, promising a regime of “strong laws The minister’s speech is to be welcomed for focusing creating the and regulations to ensure that it is just not possible the attention of both practitioners and the public on Financial to play fast and loose with the economic and financial whistle-blower protections and, in particular, on the notion system”, did not encompass the remedying of these of a whistle-blowers’ charter. It might also, unfortunately, Regulator in past failures in their provision. be seen as another instance of ardent rhetorical support 2003. Nor of whistle-blower protections, masking their slow and Endemic failure? patchy substantive enactment. have any such The Company Law Review Group, in its annual report of The government adopted onto the programme for protections been 2007, addressed the advisability of protecting disclosures government in 2000 a bill modelled on Britain’s Public of suspected offences under the Companies Acts and Interest Disclosure Act (PIDA) and one worthy of the afforded to those found that “one cannot say that there is any evidence term ‘whistle-blowers’ charter’. It would have protected who disclose of endemic failure in relation to corporate governance all those who disclose, in good faith, misgivings of or its enforcement in Ireland that negatively affects the serious wrongdoing to an appropriate authority. The bill suspicions of the investment climate and which requires enhanced ‘whistle- enjoyed regular positive ministerial reference, before commission of any blowing provisions” (chapter 6.4.6.2). This is a statement being dropped in 2006 – stated to be on foot of legal the CLRG might find difficult to make today, but perhaps advice, asserting that such a generic provision would be of the indictable the minister remains convinced. unworkable in this jurisdiction. The details of this advice offences under The minister’s prioritisation of white-collar crime remain unclear, and it is in interesting contrast to the is welcome, but its effectiveness would be enhanced position in Britain, where PIDA has operated without legal the Companies immeasurably by widening the promised provision of mishap for the past 12 years. Acts” further whistle-blower protections beyond the narrow scope of the Prevention of Corruption Acts (under which ‘Sectoral’ implementation there were, on average, only four prosecutions per year The government then adopted formally what had, in in the period 2005-2008). It might go even further than the interim, emerged as a de facto policy of ‘sectoral’ implementation of white-collar crimes under company law, and those related to the provision whistle-blower protections. That is, the provision of a patchwork of whistle- of financial services, to include all serious wrongdoing, as operates blower protections covering the disclosure of specified types of wrongdoing successfully at present in our nearest and most similar neighbouring by limited classes of people/employees in certain situations. jurisdiction. That would be a whistle-blowers’ charter.

22 www.lawsocietygazette.ie cover story Law Society Gazette aug/sept 2010

The Badger never knew which of his friends had dobbed him in – was it the Rat, the Mole, or the Toady?

penalisation of false reporting. combination of all of the above. The penalties for false reporting vary widely and the Whistle-blower provisions are slowly becoming a most severe are provided for by the Health Act 2007 standard feature of relevant new legislation (and none (up to three years’ imprisonment). The penalty under more so than with the Employment Law Compliance that act is also distinguished by its making criminal any Bill), and practitioners are advised to examine disclosures that a person “reasonably ought to know is employment conflict situations and other problems false” – an objective standard found nowhere else in presented by clients for the relevance of whistle- Irish whistle-blower law, which otherwise uses only a blower protections. G subjective test. This is an unwelcome anomaly. Despite their profusion, there appears to be a very Andrew Sheridan is a practising solicitor and was one low incidence of the use of whistle-blower protection of the authors of the Transparency Ireland report An provisions in this jurisdiction. This low utilisation may Alternative to Silence – Whistleblower Protection in be a function of a lack of awareness of these provisions Ireland (January 2010). He would welcome hearing of as a result of their diffusion across the statute book, the experiences of any practitioners who have used whistle- their absence in places where truly needed, the limited blower protections in proceedings. He can be contacted at incidence of whistle-blowing and its reprisal – or a [email protected].

look it up Protection provisions limited to ‘employees’ are found in: • Competition Act 2002 (certain provisions) • Competition Act 2002 (certain provisions) • Consumer Protection Act 2007 • Employment Permits Act 2006 • Health Act 2007 (certain provisions) • Garda Síochána Regulations 2007 • Labour Services (Amendment) Act 2009 • Health Act 2007 (certain provisions) • Protections for Persons Reporting Child Abuse Act 1998 • National Asset Management Agency Act 2009 • Standards in Public Office Act 2001 • Safety, Health and Welfare at Work Act 2005 • Provisions are contained in bills on the order paper: Provisions applying to ‘persons’ are found in: • Employment Agency Regulation Bill 2009 • Charities Act 2009 • Employment Law Compliance Bill 2008 • Chemicals Act 2008 • Prevention of Corruption (Amendment) Bill 2008 • Communications Regulation (Amendment) Act 2007 • Property Services (Regulation) Bill 2009

www.lawsocietygazette.ie 23 Law Society Gazette aug/sept 2010 practice management Risky business

With the PII deadline looming, premiums are unlikely to come down until negligence claims follow suit. A key solution to the insurance crisis is to implement formal risk and quality management strategies, says Caroline Murphy

anaging the ordeal of last year’s then it creates a solvency risk. Insurers, therefore, do renewal season for professional not want to insure solicitors who might be the subject indemnity insurance (PII) was of negligence claims during their period of cover. a significant challenge for most If the level of premium taken in is not sufficient to solicitors. Unfortunately, 2010 will meet the payment of claims, therefore, an insurer is Mnot be much better, with premiums unlikely to come likely to set higher premiums the following year to down unless – and until – negligence claims head in the make up for any losses. same direction. Implementing formal risk and quality management strategies has now become a key solution Cause of claims and complaints to the insurance crisis, and in this article we hope to The majority of claims do not, in fact, arise as a address how you might do this – and why. consequence of poor technical legal knowledge, but The significant rise in the level of solicitors’ rather as a result of the failure of simple systems and negligence claims has left the PII business unstable and processes, such as failing to supervise staff, failing to unprofitable. If insurers do not take in enough premium check documents properly before they are sent out, to meet the cost of claims, this threatens their solvency and failing to monitor key dates, among others. In fact, and regulatory requirements, and in turn their survival. the most common denominator in most solicitors’ As a result, insurers are engaging in their own ‘risk negligence claims over the past 18 months was due management’ strategies by tightening control over to an unfortunate failure in professional standards the nature of solicitors’ practices they insure – taking generally, when solicitors became ‘too busy’ to check the view that if solicitors can demonstrate the right the basics. As banks complete their preparation for professional and quality management standards in their NAMA, it is likely that more claims will be uncovered. practices, there is less of a risk that further claims will Insurers will fear that the level of claims they are occur. currently dealing with will be only the tip of the iceberg. ‘Claims made’ main points Because PII cover is provided on a ‘claims made’ basis, Solutions • pii renewal it is the insurer on cover when the claim is notified who The key to resolving these issues involves a ‘back- • implementing has to answer the claim – not the one on cover when to-basics’ approach, requiring better day-to-day formal risk the alleged negligent act or omission leading to the supervision and accountability among all legal staff and quality claim occurred. This creates a significant problem for and improving professional standards through the management insurers who have no way of knowing when accepting a implementation of sound risk and quality-management strategies solicitor on cover whether they will have to pay out on strategies. • how to do it – expensive claims notified against that solicitor during Managing complaints and insurance claims is only and why their period of cover. If in turn they cannot predict and one aspect of risk management, however. Proper, set aside appropriate ‘reserves’ for claims payments, thorough and meaningful risk management should

24 www.lawsocietygazette.ie practice management Law Society Gazette aug/sept 2010

deliver a value to your business over and above the price are a measure of success, profitability and reputational of insurance: increasing profitability, improving service value. There is no reason, therefore, why such strategies delivery and competitive advantage, and providing for should not apply equally to solicitors. the long-term sustainability of your business. In Ireland, many commercial companies, legal aid Where to start boards, government bodies and local authorities now In deciding to implement a formal risk and quality require their solicitors to demonstrate strong levels of management strategy, it is important to ask the risk management and quality standards, in addition to following: technical competence, as a condition of their retainer. • Why are you doing it? Risk and quality management strategies feature as • What are the risks relevant to your business? key performance indicators for most companies, and • What will risk management mean for you?

WHAT IS RISK MANAGEMENT? A ‘risk’ is an actual or perceived threat likely to give rise to a loss to Where solicitors are concerned, however, insurers are stymied. There the business if not properly controlled. ‘Risk management’ involves is no objective and independent means by which to measure and assess identifying those risks or threats, and putting effective controls (or risk in a legal practice, meaning that it is very difficult to differentiate a safeguards) in place around them so as to minimise the likelihood of ‘safe’ practice – that is, one that is likely to be claims-free – from one their escalating into a loss. that is not. ‘Risk assessments’ are exercises designed to measure and evaluate The self-declaration nature of the proposal form has proved unreliable risk levels and any controls in place, and usually follow an industry- to insurers as a means to test risk, as we have seen from the recent specific and objective audit procedure. litigation arising out of the Lynn affair, such that they are now looking In insurance terms, ‘risk’ is used to describe the person or property for other means to test the ‘real life’ situation of a practice, rather than insured, but also the likelihood that claims might be made against relying solely on proposal forms. that person or property. In general, the higher the likelihood of claims occurring, the higher the ‘risk’ – and the higher the premium. What does this mean for you? Insurers will often engage in ‘risk assessments’ or ‘risk appetite’ To differentiate your practice and seek favourable renewal terms, exercises to make sure that the insurance they are providing does not solicitors will need to show that they have appropriate systems, policies, attract excessive claims, which in turn threaten solvency and profitability. plans, procedures and processes in place, designed to limit the For example, an insurer might despatch a surveyor to carry out a incidence of complaints and claims. risk assessment of a building to make sure it complies with building They will also need to be able to objectively demonstrate how regulations, and health and safety legislation, so as to measure the risk they manage quality, risk and professional standards generally. of potential injury, loss or damage to third parties that might result in Demonstrating how staff are supervised and how accountability is claims. managed within your practice is vital.

www.lawsocietygazette.ie 25 New editions of old favourites...

Irish Land Law Intellectual Property Law in Ireland Fourth edition Written by JCW Wylie Third edition Written by Prof Robert Clark, Shane Smyth & Niamh Hall

The new edition of Irish Land n Land and Conveyancing Law The third edition of this n The Patents(Amendment) Law will be available from Reform Act 2009 excellent title will continue the Act, 2006 September 2010 so why not n Registration of Deeds and tradition of keeping you up to n The Copyright and Related reserve your copy today? Title Act 2006 date with relevant changes in Rights (Amendment) Act 2007 n A large volume of case law this area of law. The book deals n Revised European Patent Irish Land Law, fourth edition is and statutes with intellectual property in Convention (EPC 2000) a comprehensive and succinct its entirety, providing a single, n Revised Council Regulation guide to all aspects of Irish practical and all-embracing Contents include: Estates on Community Trade Marks land law. It covers landlord and information source covering and Interest, Co-ownership, No. 207/2009 tenant law, equity and trusts the main aspects of intellectual Mortgages, Succession, n A large volume of case law and succession and the entire Registration property law, such as copyright, book has been updated to trade marks, patents and reflect the major legislation design law. This new edition is enacted since the last edition fully updated and includes the which includes: following:

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• What value will your risk management strategy Things to avoid deliver at renewal? • Short-term solutions, implemented only in response • How will you go about implementing risk to an unwanted obligation – insurers will see management? through that and may not reward your efforts, • How will you differentiate your practice from others • Grabbing onto the nearest solution out of a sense of if you don’t? In other words, what’s your back-up panic, without testing it for value, strategy? • Paying for outside help without understanding the • How will you link risk management to claims process and what it will do for you. management? • Who will do all of this for you? You? A project team? Check in particular with your broker or insurer How long will it take? as to whether they will recognise your efforts, or • How much will it cost? any particular strategy you adopt, and regard these favourably at renewal. Not all insurers and brokers look it up Time to change operate the same strategies and will view some Literature: If solicitors are only motivated to honestly and solutions differently to others. • Guide to objectively critically evaluate their practices, procedures Professional and management styles as a driver for individual Highest standards Conduct of insurance requirements, they will fail to understand The issues facing the solicitors’ profession today Solicitors in Ireland their collective responsibilities to themselves, their are much bigger than ‘risk assessments’ and ‘risk – available online profession and the next generation of solicitors and management’, and so the focus needs to move away at www.lawsociety. trainees. from thinking about these terms solely in conjunction ie – is a reminder Each solicitor has to take personal responsibility with insurance. of the core values for his or her own role in the task, support fellow Rather, the objective should be to run a safe, of the profession, colleagues and employees, and actively look for ways sustainable and responsible practice capable of meeting which, if followed, to assist. For some practices, this may require some the highest level of professional standards, regardless would help to behavioural and cultural changes. For others, risk may of who is seeking them. If solicitors happen to receive reduce risk. The already be well managed within the practice, but the favourable insurance renewal terms, then so much the Law Society’s challenge will be how to present this in an objective better. website is also a way to insurers. As managers, and partners, by insisting on and useful reference When engaging in any risk management exercise, achieving the highest level of professional, quality and point for precedent you will need to: risk management standards through how you manage documentation, • Stand back and take a hard look at how you have your staff and your business, you will not only manage such as client- been running your business, the cost of your insurance, but more importantly, help care letters and • Park any cynicism or pride and be prepared for restore reputation, value and consumer confidence to a information on shocks, weary and anxious profession. money laundering. • Be open to change and improvements, You will also help guide and develop your staff and • Accept personal responsibility for the future of your create stronger leaders for your practice to help support business and that of your people, you. This will take time, effort, resources and a genuine • Involve your junior people as well as senior people in willingness to be open to change. Above all, the creating solutions, and question should not be whether you are willing to do • Create an open and consultative environment this at all, but rather, whether you can afford not to. G capable of encouraging accountability. Caroline Murphy is managing director of Legalwise, management If you can do this, and remain positive, you are halfway consultants to the legal services industry. She is a former practising there! solicitor with 15 years’ experience in insurance litigation.

RISK MANAGEMENT ‘to-do’ list • establish a project team or a key person in the practice, preferably at own evidence as to what you have done, or rely on the report of an partner level, to oversee the design and implementation of any risk independent expert? strategy. • Invest in training for your people and help them understand what risk • Research your options and make sure they are right for your practice. management means for them on a day-to-day basis. There is no point in engaging in a process that no one really wants to • If you seek independent advice, ensure you get value for money. execute. • Where costs are a particular challenge, look to your own internal • Check with peers and colleagues to see what they are doing in case resources and see if you can pull a solution together based on the you can learn from their experience. collective knowledge and input of your staff. • Decide how you are going to communicate your risk management • appoint a risk manager to manage and review your strategy into the efforts to your insurer or broker on renewal – will you prepare your future.

www.lawsocietygazette.ie 27 Law Society Gazette aug/sept 2010 consumer law Consumer choice The new Consumer Credit Regulations implement the Consumer Credit Directive into Irish law. Max Barrett considers some aspects of the regulations and the changes they make to previously-existing Irish consumer credit law

n 11 June 2010, the European legislation seem almost cast in stone, but, during the Communities (Consumer Credit EU legislative process, the figures of €50,000 and Agreements) Regulations 2010 came into €100,000 were alternatively suggested as the upper effect. The regulations implement the threshold of agreements to which consumer credit Consumer Credit Directive (Directive legislation should apply. Even the lower threshold O2008/48/EC) into Irish law and represent the last was the subject of some comment, the more expansive legislative step in a process that began in September ‘less than €200’ threshold being preferred over a 2002 with the European Commission’s initial €500 threshold that was suggested in the European proposal for a new consumer credit directive. Parliament. The regulations apply only to certain credit agreements with ‘consumers’. The definition of the Advertising term ‘consumer’ in the regulations accords with that Regulation 7 requires that any advertising concerning in the Consumer Credit Act, being “a natural person credit agreements governed by the regulations that who is acting, in the course of a transaction to which indicates “an interest rate or any figures relating to these regulations apply, for purposes outside his or her the cost of the credit to the consumer” must include trade, business or profession”. certain standard information. The regulations are This definition is quite different from that which entirely consistent with article 4(2) of the directive in pertains under the Consumer Protection Code, the this regard. By way of justification for the provisions pre-eminent regulatory code applicable to entities in the directive concerning advertising, the recitals regulated by the Irish Financial Regulator. This thereto state that: “Consumers should be protected main points difference of definition between the regulations and against unfair or misleading practices, in particular • European the Consumer Credit Act on the one hand, and the code with respect to the disclosure of information by the Communities on the other, has the effect that an array of persons creditor, in line with [the Unfair Commercial Practices (Consumer excluded from the protections of the regulations and Directive] … However, this directive should contain Credit the act as non-consumers are afforded a (different and specific provisions on advertising concerning certain Agreements) separate) suite of protections as consumers – including agreements as well as certain items of standard Regulations some protections specifically related to loans – under information to be provided to consumers in order to 2010 the Consumer Protection Code. enable them, in particular, to compare different offers.” • the new Clearly, consumers should be protected against regulations Credit agreements unfair or misleading practices. However, as consumers apply only to Not all credit agreements come within the scope of are, under the directive/regulations, required to be certain credit the regulations. Among the more significant forms of provided with an abundance of information “in good agreements with credit agreement excepted from their scope are credit time before a consumer is [or becomes] bound by a ‘consumers’ agreements secured on property, credit agreements credit agreement”, it could perhaps be queried whether • difference whose purpose is to acquire or retain property rights in there is undue duplication between the advertising and of definition land or in an existing or projected building, and credit the general information provisions of the directive/ between the agreements involving a “total amount of credit” of less regulations in this regard. regulations, than €200 or more than €75,000. the Consumer As regards the cash thresholds below/above which Existing agreements Credit Act and the provisions of the regulations apply, a couple of The regulations are of limited application to credit the Consumer comments may be made. First, there are no such agreements that were already in existence on 11 Protection Code thresholds in the Consumer Credit Act or the Consumer June 2010. Of such credit agreements, only ‘open- Protection Code. Second, the thresholds when set in end’ credit agreements are caught in part by the

28 www.lawsocietygazette.ie consumer law Law Society Gazette aug/sept 2010 Consumer choice

regulations; otherwise they do not apply. The term fact, there seems every prospect that ECCIs will come ‘open-end’ is not defined in the regulations (or in the typically to be provided in instances where regulation directive). However, the term presumably is intended 9 applies, if only because there seems little point for to capture credit agreements that are ongoing and do creditors to reinvent the wheel and devise alternative not anticipate a final repayment date on which a last means of supplying the requisite information under payment will be made and the agreement terminated. regulation 9, when providing an ECCI offers a ready and simple means of doing so. Pre-contractual information The intention behind the provision of all this Regulations 8 and 9 require the provision of certain information is to enable a consumer to compare pre-contractual information concerning, for example, different offers in order to take an informed decision the identity of the creditor and certain information on whether to conclude a credit agreement. In the regarding the proposed credit agreement. In the case of information required under regulations case of regulation 8, the requisite information must 8(1) and 9(1) respectively, such information must be provided by means of a ‘Standard European be provided “in good time before a consumer is Consumer Credit Information Form’ (a SECCI). In bound by a credit agreement or an offer of credit” the case of regulation 9, the requisite information (regulation 8(1)) or “in good time before a consumer “may” be provided by means of a ‘European becomes bound by a credit agreement or an offer Consumer Credit Information Form’ (an ECCI). In concerning a credit agreement” (regulation 9(1)).

www.lawsocietygazette.ie 29 Law Society Gazette aug/sept 2010 consumer law

What constitutes “in good time” is not defined in the regulations. As breach of either regulation by a creditor or credit intermediary constitutes an offence, creditors and seem likely to refer is that credit intermediaries will clearly operated by the Irish Credit want to err on the side of caution when Bureau (ICB). determining what constitutes “in good time”. This wording received some attention during Database access the EU legislative process, it being Regulation 12(1) requires that, where suggested in the European Parliament a consumer’s credit application “is that the words “in good time before” Regulation rejected on the basis of the consultation be replaced with “before”. Such a of a database”, the creditor must change of wording would, of course, 12(1) requires “inform the consumer immediately have significantly lowered the level that, where a and without charge of the result of of protection that the directive/ the consultation and of the particulars regulations now afford consumers, consumer’s of the database consulted”. The only in that the last-minute provision of credit exception to this requirement is information would satisfy an obligation where provision of such information that it be provided before (but would application ‘is is prohibited by another law or would not satisfy the requirement now in rejected on the be contrary to public policy/security regulations 8(1) and 9(1) that it be objectives. Perhaps the most obvious provided “in good time before”) a basis of the example of such an objective would be consumer is bound. consultation where disclosure of such information is prohibited by anti-money-laundering Creditworthiness of a database’, or anti-terrorist-financing legislation. Under regulation 11, before concluding the creditor It is not entirely clear from the a credit agreement with a consumer, wording of regulation 12(1) whether a creditor must assess the consumer’s must ‘inform the information obligation established “creditworthiness” on the basis of the consumer thereby applies only where the “sufficient information”, “where sole reason for the rejection is the appropriate[ly]” obtained from the immediately information obtained from a particular consumer and “where necessary” on the and without database. That seems the most basis of a consultation of the “relevant natural reading of regulation 12(1). database”. Where the total amount charge of the However, given that a creditor or of credit is changed after a credit result of the credit intermediary who contravenes a agreement is concluded, the creditor provision of regulation 12 is guilty of an must update the financial information consultation offence, it may be that creditors/credit at its disposal concerning the customer and of the intermediaries will tend to err on the and, before agreeing any “significant side of caution and perhaps invariably increase” in the total amount of particulars of advise a consumer of the relevant details credit, must reassess the consumer’s the database when a database has been consulted creditworthiness. and such consultation has been a factor None of the quoted terms are consulted’ (even if not the sole factor) for rejecting defined, and there is clearly some a credit application. leeway inherent in certain of the phrases that may, perhaps, make it more difficult Mandatory information to establish a clear breach of regulation 11. Regulations 13, 15 and 21 are concerned with Such a breach, whether by a creditor or a credit certain information that must be included in credit intermediary, is a criminal offence. The most obvious agreements and that must be provided in respect of database to which an Irish creditor institution would overdraft facilities. Regulation 14(1) requires that

30 www.lawsocietygazette.ie consumer law Law Society Gazette aug/sept 2010

wrong message and is diametrically opposed to the look it up principle of assuming responsibility for one’s actions Legislation: and the underlying principle of private law, namely • Consumer Credit Act 1995 that contracts must be honoured. All citizens must • Consumer Credit Directive (Directive 2008/48/EC) realise that legal transactions entail obligations as well • Consumer Protection Code 2006 as rights and that they should consider the possible • European Communities (Consumer Credit consequences before issuing legal declarations. There Agreements) Regulations 2010 is no objective justification for a right of withdrawal • European Communities (Distance Marketing of in respect of the contracting of credit agreements.” Consumer Financial Services) Regulations 2004 This criticism did not prevail, and the right of • Unfair Commercial Practices Directive (Directive withdrawal is a feature of the directive/regulations, 2005/29/EC) and is a right that, consistent with the directive and pursuant to the regulations, cannot be waived or otherwise circumvented. consumers be advised by creditors of changes in the borrowing rate before the change enters into force. Early repayment Although regulation 14(1) does not expressly Regulation 19(1) confers on consumers a right prohibit the giving of such advice by way of at any time to discharge fully or partially his or advertisement, it would be a courageous creditor who her obligations under a credit agreement. In such elected to issue advice in such a way given that the instances, the regulations provide that the consumer requirement in regulation 14(1) is that a creditor be “is entitled to a reduction in the total cost of credit pre-advised of borrowing rate changes, a breach of to the extent of the interest and the costs for the regulation 14(1) by a creditor is a criminal offence, remaining duration of the agreement”. Under and there is no assurance that a particular creditor will regulation 19(2), as under the directive, and subject to notice an advisory advertisement, even if published, for various requirements, “the creditor is entitled to fair example, in a number of national newspapers. and objectively justified compensation for possible In an age when consumers often live abroad for costs directly linked to the early repayment if the periods of time and/or change their place of residence early repayment falls within a period for which the from time to time, it is eminently possible that borrowing rate is fixed”. correspondence sent by a creditor to a particular Given that these are possible and not actual costs, consumer’s last-known address may never, in fact, they could perhaps be contended to be notifiable be received by that consumer. This being so, the “charges” within the meaning of section 149 of the Consumer Credit Directive (and hence the regulations) Consumer Credit Act. Any compensation may not might perhaps have provided for advice to consumers exceed certain amounts prescribed by regulation 19(3) to be effected through a combination of advertising and there are various prescribed instances in which no and direct contact, so as to better ensure that the entitlement to compensation arises. required information is provided in all instances. Offences Withdrawal Under article 23 of the directive, member states are Under regulation 17, a consumer may, within 14 required to introduce “effective, proportionate and calendar days after the date on which the credit dissuasive” penalties for infringements of national agreement is concluded – or (if later) the day on provisions adopted pursuant to the directive. Under which the consumer receives contractual terms the regulations, breach of any of regulations 8, 9, and conditions and information in accordance with 11, 13, 15, 21 or 23 constitutes a criminal offence. regulation 13 of the regulations – withdraw from a Regulation 25 prescribes the significant penalties for credit agreement without giving any reason. This offences and continuing offences committed under withdrawal period is akin to the 14-day cancellation the regulations. period that pertains, for example, under the The regulations represent a necessary updating Distance Marketing Regulations. A similar but shorter of existing EU consumer credit law and contain ‘cooling-off’ period arises under section 50 of the many valuable protections for consumers. A Consumer Credit Act, which allows for a consumer welcome future development would be a reform of to withdraw from certain forms of credit agreement Irish consumer credit law that would see all relevant by giving written notice of the withdrawal. Perhaps measures (including, where appropriate, such surprisingly, the right of withdrawal was harshly related requirements as presently arise under the criticised during the EU legislative process by the Consumer Protection Code) being consolidated into a rapporteur of the European Parliament’s Committee single act. G on Legal Affairs and the Internal Market, who wrote: “Granting the right of withdrawal is almost Dr Max Barrett, solicitor, is group company secretary with tantamount to encouraging consumers to enter Anglo Irish Bank. Any opinions expressed in this article are into obligations without due reflection. It sends the entirely personal.

www.lawsocietygazette.ie 31 Law Society Gazette aug/sept 2010 employment law Protecting the nest egg

main points • unfair dismissal and pension loss • the role of the Employment Appeals Tribunal in assessing claims • things to consider when assessing claims for pension loss

32 www.lawsocietygazette.ie employment law Law Society Gazette aug/sept 2010 Protecting the nest egg

The present economic circumstances are causing greater numbers of employees to claim unfair dismissal before the Employment Appeals Tribunal. Paul Twomey argues that practitioners should always consider pension loss when advising their clients in such matters

ension loss can be a significant factor in any estimated prospective loss of income attributable to the compensation levels … the value of the loss dismissal and the value of any loss or diminution, attributable to of the employer’s contribution and the loss the dismissal, of the rights of the employee under the Redundancy of future pension rights must be calculated” Payments Acts 1967 to 2007, or in relation to superannuation”. (from Compensation in Dismissal: Clearly, the act allows for loss of pension rights to be included Employment“P Law and Practice). when calculating a claimant’s overall loss. The inclusion of this head As the world economy experiences the most challenging of loss in any claim before the EAT serves to increase the overall period in a lifetime, Irish businesses struggle to survive award that may be made by the EAT, however inadequate the and the prospect of losing their jobs looms large in many statutory upper limit for compensation actually awarded may be. people’s minds. The Unfair Dismissals Act came into force If the claimant has successfully gained employment following during another period of economic instability and, an unfair dismissal, he has satisfied the requirement that with it, the legislature sought to regulate the Did you he mitigate his loss. The loss suffered, then, is the loss terms under which dismissals may occur legally. of income for the period since dismissal for which It also provided redress for employees who know? he was unemployed, together with the difference suffered loss as a result of their employers’ There have been relatively in remuneration if the new employment pays less contravention of the law. Prior to the 1977 act, few cases before the EAT that than the original position. employees relied on the contractual liability of resulted in the maximum statutory In these cases, pension loss may be the most employers for wrongful dismissal, and could compensation being awarded significant loss the claimant has suffered, but, only recover limited damages for loss suffered but, of those cases, several have nonetheless, it must be pooled together with the as a consequence of such a dismissal. The act involved claims for loss of loss of other fringe benefits, such as a car allowance provided for redress, in claims for unfair dismissal, pension rights. or payment of health insurance premium. If, from a rights commissioner, the Employment Appeals however, the claimant has failed to regain employment Tribunal and/or the Circuit Court. after an unfair dismissal and has attempted to find alternative employment, then he has attempted to mitigate his loss. In such Have your cake and EAT it a case, the loss suffered is effectively all pecuniary loss suffered Section 7(1)c of the 1977 act (as amended in 1993 by directly as a result of the unfair dismissal. This loss includes the the Unfair Dismissals (Amendment) Act) provides that the value of the remuneration loss, opportunity loss attached, the Employment Appeals Tribunal (EAT) is limited, in that it value of future employer pension contributions, and all other may award compensation subject to a maximum of 104 weeks’ associated fringe benefits. Pension loss is often overlooked. remuneration for financial loss attributable to the dismissal, as There are, broadly speaking, two different types of pension is just and equitable, having regard to all the circumstances. scheme that an unfairly dismissed employee may have been a Section 7(3) provides that “financial loss in relation to member of – the differing schemes mean that different types of the dismissal of an employee includes any actual loss and loss are suffered by a claimant:

www.lawsocietygazette.ie 33 Law Society Gazette aug/sept 2010 employment law

• Defined contribution schemes involve accumulating deferred benefit and the value of the pension a sum of money through contributions from the that would have been collected at retirement. If employer, the employee, or both, and the final sum the tribunal is asked to consider loss of future being used at retirement to purchase the pension. employer contributions to a defined benefit The sum that has accumulated at scheme, then the tribunal must attempt retirement remains invested for to predict the final salary of the the benefit of the employee. “There are, claimant had he stayed in employment If the employee is unfairly broadly until retirement. Actuarial reports dismissed, the loss suffered amounts typically include variables such as the only to the contributions that the speaking, two claimant leaving the job voluntarily or employer would have made to the different types for legitimate involuntary reasons, such scheme had the claimant remained as a wind-up. employed until retirement age. of pension If the claimant gained employment scheme that On the menu following dismissal, he has the Practitioners advising either employers option to finance further personal an unfairly or employees in such circumstances contributions from his new dismissed should, in relation to pension loss, remuneration and to move the consider the following: existing pension funds to another employee may • Is this an unfair dismissal? scheme with his new employer, or to have been a • Is there a pension loss claim? leave the funds where they are. As • If so, what is the nature of the a consequence, EAT compensation member of – pension scheme of which the for the loss of future employer the differing claimant was a member? contributions would be adequate to • Has the claimant gained new make amends for his entire loss. schemes mean employment? • Defined benefit schemes allow for that different • If so, what kind of pension, if any, is pension income to be calculated as in place in the new employment? a portion of the employee’s final types of loss salary. In cases of unfair dismissal, are suffered by These questions will lay the groundwork the employee will retain the value for assessing the claimant’s financial loss of the contributions, and this will a claimant” arising from the unfair dismissal. Precise be retained as a potential deferred calculations are always helpful when benefit until retirement. The value establishing a claim before the EAT of the pension the claimant was due to collect and will help attempts to settle – but with one caveat. at retirement can be difficult to calculate. The The use of this sort of support data does not mean the loss that must be claimed before the EAT will, tribunal will defer in all cases to the statistical analysis however, be the difference in the value of the of the claimant, and independent reports may be

The great British banger Recent jurisprudence in Britain has recognised the of the first employer for the losses suffered by the difficulty in assessing accurately future pension loss. claimant after her second position terminated. The recent case of Aegon is instructive of the The tribunal had found that the respondent was current British position regarding pension loss liable for the continuing pension loss, but not liable compensation. The claimant had been unfairly for loss of earnings. Ultimately, the court found that dismissed and had undertaken new employment the tribunal had erred in considering that the new immediately after her dismissal. The new package in employment had broken the chain of causation with total was actually more beneficial than the original regard to loss of earnings, while refusing to apply the employment, but she had been forced to move from same logic to the pension loss. The court found that a very attractive pension arrangement to a less there should be no difference in the principles applied beneficial pension arrangement as a result of the to both kinds of loss. dismissal. Overall, there was no loss of earnings suffered, as Unfortunately, inside six months of commencing the new package was actually more beneficial than the the new employment, the claimant resigned in old package, and to differentiate the pension simply circumstances where she claimed constructive as a second category of loss deserving of different dismissal. The English Court of Appeal was asked methods of calculation was fundamentally incorrect. to consider the tribunal’s award and their method of In those circumstances, the claimant’s loss was calculation of same and, more specifically, the liability practically zero.

34 www.lawsocietygazette.ie employment law Law Society Gazette aug/sept 2010

look it up Cases: Legislation: • Aegon UK Corp Services Ltd v Roberts [2009] WECA • Unfair Dismissals Act 1977 to 2007 Civ 93 • Fox v Ashling Hotel Ltd UD 108/1978 Literature: • Leggett v Barry’s Tea Ltd UD 207/1989 • Compensation in Dismissal: Employment Law • Maguire v Ofrex Group (Ireland) Ltd UD 90/1980 and Practice, Ercus Stewart and Nicola Dunleavy • O’Neill and O’Connor v PMPA UD 124 and 130/1980 (FirstLaw 2007)

requested. The tribunal may be better able to consider involved in using actuarial evidence is of overall benefit accurate forecasting to a greater degree with the aid of to the claimant in terms of the amount he stands to independent actuarial advice, as in the cases of O’Neill gain in pension-loss compensation. It may be more and O’Connor and Fox. In addition, independent beneficial to argue the case before the EAT, without actuarial advice may be requested by the tribunal the use of actuarial evidence, and to invite the tribunal where the claimant’s own actuarial calculations have to use a more common-sense approach. been called into question by the respondent, The present economic circumstances will, no as in the case of Maguire. doubt, cause greater numbers of clients to To avoid the difficulty, delay and claim unfair dismissal before the EAT. expense of actuarial disagreement, Did you Practitioners should always consider the parties may agree to the know? pension loss as a potential head of appointment of a particular Many employers are currently loss in any such claim. Ultimately, professional at the outset, investing only in schemes where it will be for the tribunal to decide which proved successful the employee is willing to contribute whether the position before in Leggett. In that case, the themselves. The employer and after the dismissal warrants tribunal allowed the agreed contributions will then be calculated compensation for pension loss, calculation of the claimant’s past in ratio to the employee’s own but initially pleading the loss is the pension contributions, in addition personal contributions. obvious first step in seeking such an to “contributions for a period award of compensation. G in which the tribunal considers the claimant will be unemployed”. Paul Twomey is a barrister with a special interest The latter period was arrived at by the tribunal in employment law matters. (The author wishes to thank choosing not to rely rigidly on empirical evidence. Ercus Stewart SC and Niall Beirne BL for their kind The practitioner must be satisfied that the expense input and assistance.)

Launch of the Diploma Programme Autumn 2010 The Diploma Team is delighted to announce an expanded and diverse portfolio of courses for our Autumn 2010 Programme. In total there are twelve courses on offer, which includes the launch of our Diploma in Environmental & Planning Law. In addition, we will also run one new certificate as part of our Autumn 2010 Programme, the Certificate in Capacity, Mental Health and the Law.

Our full Autumn 2010 Programme is as follows: • Diploma in Finance Law (webcast) Mon 04 October 2010 DIPLOMA PROGRAMME PROGRAMME Law Society of Ireland of Society Law 2010 • Diploma in Corporate Law & Governance Thurs 07 October 2010 • Diploma in Environmental & Planning Law (New) (webcast) Tues 12 October 2010 • Diploma in Insolvency & Corporate Restructuring (webcast) Thurs 14 October 2010 • Diploma in Civil Litigation Cork Thurs 14 October 2010 • Diploma in Family Law (webcast) Sat 16 October 2010 • Diploma in Intellectual Property and Information Technology Law (webcast) Wed 20 October 2010 • Certificate in Criminal Litigation Sat 09 October 2010 • Certificate in Human Rights Wed 03 November 2010 • Certificate in Capacity, Mental Health and the Law Tues 09 November 2010 • Diploma in Legal French Wed 13 October 2010 • Certificate in Legal German Tues 21 September 2010

Full details of the above courses are available on the web www.lawsociety.ie/ diplomas or by contacting a member of the Diploma Team at diplomateam@ lawsociety.ie or Tel. 01 672 4802.

Diploma ad for August 2010 Gazette.indd 1 28/07/2010 16:14 www.lawsocietygazette.ie 35 Law Society Gazette aug/sept 2010 mediation

Properly conducted, mediation often results in the early settlement of difficult disputes – and narrows the issues in disputes that fail to settle. Solicitors have an important role to play, which can be both fiscally and personally rewarding. Roddy Bourke acts as the go-between The inb etweeners may be an opening session that all parties attend. The parties then occupy separate rooms and the mediator – in Henry Kissinger fashion – goes from room to room to meet the parties in private sessions. In the first half of the day, the mediator will ask open questions and listen, but as the day progresses, each party will be asked to think realistically about their case. The mediator will encourage parties to make proposals and will remind everyone of the uncertainties, stresses and ediation is not a wishy-washy costs of litigation and the value of settlement. If the process, nor a distraction in parties decide to settle, the mediator will help finalise a litigation or arbitration. Properly written settlement agreement. conducted, mediation often results in the early settlement of Grey hairs may help Mdifficult disputes. Even where the case does not settle, Picking the right mediator is crucial and asking mediation usually narrows the issues in dispute. Further colleagues for the name of a good mediator is often a good news is that solicitors have a very important role good way of finding the right mediator for the case. in mediation. They can earn good fees too, and get The mediator should be accredited (trained), but considerable personal satisfaction from the process. the role involves more than that. Mediation requires Mediation is structured negotiation, where a neutral, human judgement, tact and communication skills. trained person helps parties to settle difficult disputes, The mediator must work and concentrate intently typically in the course of a day’s meetings. It is private throughout the mediation, so the job requires much and without prejudice. There is no judge or adjudicator energy and patience. Grey hairs and a reassuring or hearings. If, during the mediation, it becomes clear manner can help, too! that the parties do not wish to settle, the mediation will Mediators often start off, after their training, be abandoned. by taking the role of assistant mediator with an The mediator does not give judgment on the case. experienced mediator in order to build up experience, His or her role is to listen to each side’s case (in the which in turn may lead to justified confidence in absence of the other party) and to encourage the parties their ability to undertake this difficult role. Being to be realistic. Where it seems that settlement may be a lawyer is a good background for a mediator, as possible, the mediator will encourage the parties in the lawyers are trained to deal with confidentiality and main points direction of settlement, but the power to settle is in the dispute resolution. Lawyer mediators should remind • Mediation – hands of the parties only. Importantly, the mediator themselves, however, that legal issues may be only structured cannot tell one party what the other side has told him part of a dispute. Commercial and personal issues may negotiation or her without the other side’s permission. be more important. • Choosing the When selected, the mediator will usually write right mediator Shuttle diplomacy to the parties’ lawyers, setting out details of • Important duties Before the mediation takes place, the parties exchange the appointment and requiring the signing of a of the mediator short written statements of the key points in their case. confidentiality agreement by all. At the mediation, in a hotel or other facility, there The mediator’s fees are usually split among the

36 www.lawsocietygazette.ie mediation Law Society Gazette aug/sept 2010

The inb etweeners parties, and are often based on what the mediator the other side, and seek to get their agreement to normally charges for his or her professional time. proceed to mediation. Picking a suitable mediator The mediator in a significant dispute will usually and preparing for the mediation, including drafting spend a day in preparation, and a day at the a statement of the facts and points in issue, requires mediation. The parties generally split the costs of careful work. The solicitor should reach consensus mediation, and these costs are not treated as costs in with the other side to an agreed book of relevant the cause. documents for the assistance of the mediator. The solicitor should make sure, too, that if An ethical duty the client is a company or organisation, that its In my opinion, solicitors acting for a client in a representative at the mediation has sufficient difficult dispute have an ethical obligation to advise authority to agree settlement of the case. The solicitor their clients about whether mediation might help and the client will attend the mediation, and, with solve their case. Many clients may decide not to the client, the solicitor will take part in discussions mediate, and will prefer to tough things out at trial to with the mediator. The solicitor will help the client win, or try to get a better settlement at the door of the assess what he or she truly wants in the dispute and court. Others may cynically go through the motions what concessions might sensibly be made to settle at mediation, without trying to resolve the case and the dispute. Lastly, if settlement is achieved, the hoping to get insights into their opponent’s case. completion of a written settlement agreement is an But clients should be told what mediation may essential task. achieve, including the possibility that the parties may All this work can be done perfectly well by an be able to do business again in the future by avoiding experienced solicitor, without assistance from counsel, the blood-letting of trial. The strongest litigation as in a mediation there is no judge or traditional, cases can go wrong, too, and even ‘successful’ litigants counsel-orientated, advocacy. (In larger cases, though, may find that trial can carry a high price by way of working with a counsel may spread the burden.) The distraction, damage to reputation and irrecoverable solicitor’s thorough knowledge of the facts of the case costs. The spectre of company insolvency adds to the and of what his or her client wants will be essential to uncertainties of litigation in the current recession. the success of mediation. Also, the judiciary encourages mediation, as it helps avoid unnecessary trials. Mediation, too, is in The economics of mediation tune with the spirit of the times in litigation. There is Given that the solicitor has to do the spadework in usually less to be gained by letting a case go to trial in investigating and putting together the client’s case, the era of case management than there was in the past, a solicitor can make good money in acting in a case where ‘trial by ambush’ was the norm. that settles at mediation. It is true that sometimes a lengthy trial will produce greater returns for a What does the solicitor do? solicitor, but weighed against that are the benefits It is a good idea to do a short mediation training of early payment of fees where the case settles well course, even if a solicitor never intends to become a before trial and the inestimable glow from having mediator, as training will help the solicitor in acting done a good job in the client’s interest. G for his or her clients in mediation. The solicitor has several important duties once the client decides to try Roddy Bourke is vice-chairman of the Law Society’s to have the case mediated. Arbitration and Mediation Committee and a partner in First, the solicitor will raise the subject with McCann FitzGerald Solicitors, Dublin.

www.lawsocietygazette.ie 37 Law Society Professional Training Programme • September – November 2010 Date eVent Discounted full CPD Hours F fee* Fee 21 Sept an introduction to energy and environmental law (Dublin) €105 €140 2.5 General by group study 22 Sept Civil Partnership Bill 2009 – Implications for family, €210 €280 5 General by group study conveyancing and taxation practitioners (Dublin and via video-link to Cork) 30 Sept New probate and trust essentials – legislation and practice €147 €196 3.5 General by group study update 2010 (collaboration with STEP Ireland) (Dublin) 1 Oct proofing your practice: documents and files (Cork) €50 €86 1.5 Management and professional development skills 1 Oct Adoption Bill 2009 – implications for child law practitioners (Dublin) €126 €168 3 General by group study 7 Oct time mastery for lawyers – world-renowned time master shares €168 €224 3 Management and professional his tips (Dublin) development skills by group study pLUS 1 regulatory matters** 8 Oct Criminal litigation update 2010 (collaboration with the DSBA) (Dublin) €136 €168 3 General by group study 11 Oct undertakings – tips and traps (Cork) €99 €165 2 General by group study pLUS 1 regulatory matters** 14 Oct annual property law conference (Dublin and via video-link to Cork) €126 €168 3 General by group study 4 Nov Contract law update 2010 (Dublin) €126 €168 3 General by group study 11 Nov undertakings – tips and traps (Ennis) €99 €165 2 General by group study pLUS 1 regulatory matters** 25 Nov annual family law conference 2010 (Dublin and via video-link to Cork) €231 €308 5.5 General by group study 26 Nov annual in-house and public sector solicitors’ conference (Dublin) €126 €168 2 Management and professional development skills by group study pLUS 1 regulatory matters**

For full details on all of these events, visit www.lawsociety.ie or contact a member of the Law Society Professional Training team on: P: 01 672 4802 F: 01 672 4890 E: [email protected] W: www.lawsociety.ie

Law Society Professional Training was formerly CPD FOCUS *Skillnet members/public sector subscribers **Full regulatory requirement for 2010

Law Society Professional Training Programme • September – October 2010 Date eVent (including speakers FEE*) Discounted full CPD Hours fee 19 Oct Innovation, entrepreneurship and corporate governance €185 €220 6 Management and professional (collaboration with CIMA Ireland) development by group study speakers: • Paul Appeleby – Director of Corporate Enforcement • Padraig O’Ceidigh – solicitor, founder and executive chairman, Aer Arann • Dr Chris Horn – founder, IONA Technologies • Andrew Harding – CIMA executive director • Eileen Roddy – head of CIMA Business School 18 Sept International financial services law – capital regulation of €298 €397 2 General by group study credit institutions – Basel and EC requirements 25 Sept International financial services law – international funds – €298 €397 2 General by group study legal and regulatory issues 2 Oct International financial services law – alternative investment €298 €397 2 General by group study funds and the AIFM directive 9 Oct International financial services law – international loan facilities €298 €397 2 General by group study 16 Oct International financial services law – syndicated lending €298 €397 2 General by group study

For full details on all of these events, visit www.lawsociety.ie/lspt or contact the Law Society Finuas team on: P: 01 672 4802 F: 01 672 4890 E: [email protected] W: www.lawsociety.ie

The Law Society Finuas Network is funded by member companies and the Finuas Networks Programme. This programme is managed by Skillnets Ltd and funded from the National Training Fund through the Department of Education and Skills. *Law Society Finuas members people and places Law Society Gazette aug/sept 2010 Gone fishing!

mong the more interesting In more recent years, a Asolicitor social outings in growing number of British recent years have been events lawyers are crossing the water organised by the Lawyers’ to join the Irish contingent, Fishing Club of Ireland – a which adds to the spice and unique alliance of enthusiastic gives a slight competitive edge fishing ‘legal eagles’, drawn from to proceedings! both the bar and members of the Nonetheless, camaraderie Law Society, writes John Geary. and friendship are the number The annual weekend away one goal, and new members is usually held in May every are always welcome. The next year, with the odd excursion one-day outing is scheduled for out of the office throughout the the autumn, when the emphasis summer. This year’s trip saw will be on new members and in the gathering heading for Co teaching lawyers how to fly fish. Kerry to fish Lough Currane, It will be held on a Saturday near Waterville. Some excellent – venue and full details can be catches of sea trout were obtained from John Geary at Marc Bairead of Nevin O’Shaughnessy Solicitors, Edenderry, Co Offaly, reported. [email protected]. enjoying the day out on Lough Currane in Kerry

John Purcell presenting Padraic Coughlan with his The Lawyers’ Fishing Club celebrate their catch prize for a top catch

Cyril Kelly, John Purcell and Paddy Molloy Peadar ó Maoláin BL, Marc Bairead and John Geary

www.lawsocietygazette.ie 39 Law Society Gazette aug/sept 2010 people and places Pic : J o e Ha nl y Sligo celebrates

in style , Tr a l ee All p ic s: Ja m es C onnolly , PicS e ll 8 Lt d

Tom MacSharry (president, Sligo Bar Association), Kieran McDermott and Caroline McLaughlin (secretary, Sligo Bar Kerry’s gold Association) At a meeting of the Kerry Law Society in the Grand Hotel, Tralee, on 22 June 2010, the special guest was President of the Law Society Gerard Doherty. (Front, l to r): Orla Dennison, Patrick Mann (Kerry Law Society president), Gerard Doherty (Law Society president), John Galvin (Kerry Law Society chairman), Nuala Liston and Carmel Sreenan. (Middle, l to r): Emer Guiney, Pat Sheehan, Padraig Foley, Matthew Breslin, Michael Moore, Donal Browne, Stephen Kennedy, Noreen Broderick, Catherine O’Connor and Liam Crowley. (Back, l to r): James Morris, Gearóid Ryall, Canice Walsh, Fiona Lally, Niall Lucey and Joe Mannix Pic : G e r a rd O’L o ug hlin

Retiring Sligo county registrar Kieran McDermott pictured with his son Garrett, wife Nuala and daughter Niamh

103 years not out! Cricket scores seemed totally apt when describing the long service of two Roscommon solicitors, which was marked at a special presentation on 1 July 2010. The Roscommon Bar Association celebrated the remarkable service of guests of honour, Henry (Harry) Wynne and Gerard Gannon – each of whom celebrated more than 50 years of service in the profession. Harry qualified in 1958, while Gerard qualified in 1959 – a total of 103 years between them. Both are still active in practice Circuit Court staff Anne Finn, Paraic O’Grady in their family firms and received their presentations from President of the Law Society Gerard and Lorretta Kearins with retiring Sligo Doherty and director general Ken Murphy; (from l to r): Brian O’Connor (secretary, Roscommon Bar county registrar Kieran McDermott Association), Ken Murphy (director general), Harry Wynne, Gerard Doherty (Law Society president), Gerard Gannon and Christopher Callan (vice-chair, Roscommon Bar Association) Pic : G e r a rd O’L o ug hlin

In July, the Roscommon Bar Association held a meeting to update members about current issues relating to the profession, including professional indemnity insurance, where a wide-ranging discussion took place. After the meeting, an enjoyable meal was hosted by the bar association for those attending, which included (back, l to r): Dara Callaghan, Ivan Moran, Sean Mahon, William Henry, Paul Wynne, Michael O’Dowd, Kenneth McDonald, Declan O’Callaghan, Derry MacDermot and Terry O’Keeffe. (Middle, l to r): John McNulty, Karina Carty, Ailish Lowe, Ailbhe Hanmore, Mary Francis Fahy, Marie Conroy, Rebecca Finnerty, Natasha Dunne, Mary Mullarkey, Brid Miller, Corinna Harlow and Con Harlow. (Front, l to r): Joanne Leetch, Claire Higgins, Orlagh Sharkey, Chris Callan, Harry Wynne, Gerard Doherty, Gerard Gannon, Ken Murphy, Brian O’Connor, Padraig Kelly and John V Kelly

40 www.lawsocietygazette.ie people and places Law Society Gazette aug/sept 2010 Limerick hosts lively session he Limerick Solicitors’ TBar Association (LSBA) hosted Law Society President Gerard Doherty and director general Ken Murphy on 21 June 2010 at a well- attended meeting at the Strand Hotel, Limerick. Topical issues on the agenda included PII, risk management, commercial undertakings, SMDF and limited liability partnerships for solicitors’ firms. The meeting opened with There was a large turnout at the LSBA meeting on 21 June, including (front, l to r): Frances Twomey, Ted Elizabeth Walsh (president) McCarthy, Patrick J D’Alton, Ken Murphy (director general), Verena Tarpey, Elizabeth Walsh (LBA president), welcoming the guests to the Gerard Doherty (Law Society president), Bernadette Greene and Margaret O’Connell. (Back, l to r): Stephen Keogh, Brian Malone (LSBA secretary), Edward Leahy (treasurer), Rob Laffan, Melvyn Hanley, Mark Murphy, midwest, and was addressed Gerard Meehan, Cathal Minihane and Darach McCarthy by the Society’s president and director general. A Members were encouraged to very informative and lively embrace the risk management/ Q&A session followed. risk assessment strategy and to The general consensus engage fully with the process. among members was that It would seem imperative that commercial undertakings offices should engage in risk should be prohibited entirely. management on an ongoing Members were also practically basis. Some members felt that unanimously in favour more could be done in the way of prohibiting solicitors Law Society President Gerard Doherty and director general Ken Murphy of run-off cover for solicitors acting on both sides of the met with the committee of the LSBA at its 21 June meeting, (l to r): who intend to retire or leave the Edward Leahy (treasurer), Rob Laffan (committee member), Ken Murphy conveyancing transaction, (director general), Elizabeth Walsh (LSBA president), Gerard Doherty (Law profession, but felt that current where one party is deemed Society president), Mark Murphy (committee member), Brian Malone circumstances made this very vulnerable. (secretary) and Cathal Minihane (committee member) difficult. Pic : Ja m es C onnolly , PicS e ll 8 Lt d

President of the Law Society Gerard Doherty and director general Ken Murphy met with members of the Sligo Bar Association on 1 July 2010, at the Glasshouse Hotel. Matters discussed included the Law Society’s draft regulations to prohibit solicitors giving commercial undertakings, the position regarding professional indemnity insurance and the work carried out by the PII Task Force, limited liability partnerships, the Society’s guarantee to the SMDF, the Society’s radio campaign to promote the profession, the implementation of the Haran Report on civil litigation costs, and the Society’s support services. Attending were (front, l to r): Aine Kilfeather, Lorraine Murphy, Michael Monaghan, Gerard Doherty (Law Society president), Ken Murphy (director general), Tom MacSharry (president, Sligo Bar Association), Caroline McLaughlin (secretary), Michele O’Boyle and Dervilla O’Boyle. (Middle, l to r): Ita Lyster, Marie Cullen, Niamh McDermott, Sinead Maguire, Leonie Hogge, Elaine Coghill, Hugh Sheridan and Noelle Galvan. (Back, l to r): Trevor Collins, Shane McDermott, Joe Keyes, Seamus Monaghan, Maurice Galvin and Carol Ballantyne

www.lawsocietygazette.ie 41 Law Society Gazette aug/sept 2010 students’ page student spotlight

A trench too deep for Blackhall Pic : Ma rk De v n a blustery February Blackhall proved resilient, Oafternoon, a convoy of due to the efforts of Twomey, cars made the short trip from Devane and Flynn (a welcome Blackhall Place to Glasnevin a n e addition from our King’s Inns – Trench Cup 2010 was neighbours) who displayed underway, writes Niall Kiernan, in tigerish tenacity in defence, timely fashion. With Blackhall allowing Canavan to register a electing to play against the point. wind, the game started off at A dubious penalty to Trinity championship pace and it was dented Blackhall’s morale, the underdog who exerted all however, but despite a well- of the early pressure. The half- struck effort, the ball rebounded back line comprising Carroll, The Blackhall GAA team (back, l to r): Rob Barrett, Tommy Canavan, Neil off the crossbar and into the Cocoman and Kiernan proved O’Gorman, Dave O’Mahony, Colm Ó hÚigin, Paddy Rath, Padraig Twomey, secure grasp of the Blackhall Joe Marranin, Neil Farragher, Dave Pierce, Will Claffey, Mark Devane and defence. Not to be outdone, the springboard for attack. Kevin McKeon. (Front, l to r): Brian Doherty, Eric Walsh, Ciarán O’Herlihy, However, our failure to Niall Flynn, Niall Kiernan (Capt) Shane Carroll, Brochan Cocoman, Pierce the penalty-taker redeemed register a score during the early O’Driscoll, Pete Murphy, Don Collins and Brendan Wallace himself in the very next play, purple patch proved decisive. powering an unstoppable shot Trinity took its turn to exert After the break, the ability own half in the early stages into the roof of the net. The some pressure and went several of midfielders O’Gorman of the second half, thanks to goal knocked the wind out points to the good, being aided and Canavan to win primary the endeavours of Collins and of Blackhall’s sails. The final by a strong breeze. A number possession enabled us to hit Marranin in the full-forward score: Trinity 1-9, Blackhall 0-6. of fine saves by the ever- the front again. The boots of line and Murphy and McKeon Trinity eventually progressed agile David O’Mahony in the Pierce O’Driscoll and Neil at half-forward. The opposition to the final, with IT Tralee Blackhall goal saved our blushes, Farragher registered some kept in touch, though, with a winning out. but as halftime beckoned, we wonderful points. Trinity well-taken point from play and Frank Ryan’s was the venue were six points in arrears. struggled to get out of its another from close range. for the post-match rock shandies and sparkling water. The ever- reliable Tommy ‘Shnackbox’ Cork to host global competition Canavan got the crowd going ne of the world’s most Ireland has had a keen interest Zealand, Nigeria, Russia, with his very own rendition Oprestigious client consulting in the event for the past ten Scotland, Sri Lanka, Ukraine and of Oasis’s ‘Don’t look back in competitions for students of years, with Michelle Cronin and USA, among others. anger’ – a special treat for any law will be hosted by Ireland Melanie Evans bringing home Planning has already started female followers there might in two years’ time. The Law the international trophy in 2007. for the five-day event, which will have been. Society of Ireland in Cork The competition provides include: The team expresses its has just announced that it an exciting opportunity for • Registration and master class, gratitude to all who contributed will play host to the Louis M law students to learn and • Welcome reception, to its success. Brown and Forrest S Mosten practise first-hand the planning, • Competition rounds, Blackhall team: David O’Mahony, International Client Consulting analytical, interviewing and • Final competition, and a Mark Devane, Padraig Twomey, Competition from 12-16 April advisory skills they need when • Gala award dinner. Niall Flynn, Shane Carroll, 2012. dealing directly with clients. It Brochan Cocoman, Niall The annual global also provides the opportunity Fundraising events will be Kiernan, Tommy Canavan (0-1), competition pits winners of for a valuable educational and organised and sponsorship Neil O’Gorman, Peter Murphy, national competitions against cultural interchange between sought over the coming months. Neil Farragher (0-3), Kevin each other, who compete for the students, law teachers and legal If you or your firm would like McKeon, Don Collins, Joseph prize of the international trophy. practitioners. to sponsor this prestigious Marranin, Pierce O’ Driscoll; It has previously taken place in Teams are expected to travel competition, please contact (0-2). Subs: Will Claffey, Eric Hong Kong 2010, Las Vegas from Australia, Cambodia, the Law Society of Ireland Walsh, Brian Doherty, Paddy 2009, India 2008 and Sydney Canada, China, England and in Cork by emailing j.moffatt Rath, Brendan Wallace, Rob 2007. The 2011 competition will Wales, Finland, India, Indonesia, @lawsociety.ie, or tel: Barrett, Colm Ó hUigin, Dave take place in the Netherlands. Malaysia, Netherlands, New 021 422 6206. Pierce and Ciarán Ó Herlihy.

42 www.lawsocietygazette.ie parchment ceremonies Law Society Gazette aug/sept 2010 vinchey, E laine McCaffrey, P eter McCaffrey, Rowena McCormack,vinchey, S ean McDermott, Leah McKenna, Malachy S teenson and Robert White adgh Boyle, Lyn Brennan, E mma Brogan, Louise Byrne, Martin Clare Feargal Carroll, Barry Byrne, Cathriona Cody, Rachel Canny, Cooney, Culliton, A nne Marie of their parchments on 10 D ecember 2009 N ewly qualified solicitors at the presentation Delany, Fiona Donaghy, S uzanne Dowling, Martin Bernice John Henry, Fiona Donaghy, G arrett, Fallon, Ivan Feran, Jane Fitzgerald, P amela Fraher, S amantha Holton, David G ilmore, E rika Hayes, Mark Hennelly, Delany, P aul Lynch, Kevin Lavin, Claire Mc A E oin Kiely, Joanna Jordan, Orla Joyce, Michael Keaveney, ower, John Redmond, Karen Reynolds, Michelle Ridge, S ara Ryan, Kim S canlan, usie hine, A nthony mith, Kara pratt, S uzanne P ower, Ciara Ryan,E rika O’Leary, Michael S alley, S tephen O’Mahony, ceremony for newly-qualified solicitors: T Mr Justice Nicholas Kearns (president of the High Court), G erard Doherty (president of the Law S ociety), and Ken Murphy (director general) were guests of honour at the 10 December 2009 parchment rady, Deirdre Cathal O’ G rady, NiChearbhaill, Ronan O’Brien, Michelle O’Byrne, S ean O’Conaill, A ssumpta O’Connell, E llen O’Connor, Colm Mullen, Karl Murphy, Hayley Morrissey, Marion Meehan, Brid Moloney,

All pics: Jason Clarke Photography

www.lawsocietygazette.ie 43 Law Society Gazette aug/sept 2010 parchment ceremonies heridan, Fiona Walsh, Katherina White and S ally Winters Claire Quinlan, S hane Riordan, S hane heridan, Fiona Walsh, of their parchments on 25 F ebruary 2010 N ewly qualified solicitors at the presentation aoiseach) and Ken Murphy (director general) were guests of honour at the 25 February Damien Conroy, 2010 parchment ceremony for newly-qualified solicitors: Joanne Bane, Daniel Coady, hane Coveney, Joan Doyle, Morgan Fullam, Áine Kelly, Róisín Kennedy, Kieran Lawlor, E dward Lyons, E leanor Mannion, Kate Marquis, Kieran Lawlor, Bryan Róisín Kennedy, Joan Doyle, Morgan McDonnell, Lousie Fullam, Áine Kelly, Róisín Courtney, S hane Coveney, Mr Justice Nicholas Kearns (president of the High Court), G erard Doherty (president of the Law S ociety), Dr G arretG erald (president Fitz of the Institute International and E uropeanA ffairs, and former T ender, Lisa O’Brien, Maria O’Donovan, Mark O’ S ullivan, Niamh P ender, Lyndsey Claire Noonan, A idan O’Reilly, Murray, Colin Morrissey, Brenda Molloy, Ruth McKeon, G ráinne McMonagle, Michelle McVeigh,

44 www.lawsocietygazette.ie parchment ceremonies Law Society Gazette aug/sept 2010 andra Davey, ess Crean, S andra Davey, ime presenter) and Ken Murphy (director general) were ara Nestor, Máire Ní Mhaoldhomnaigh, A oife Nic Lochainn, ara Nestor, T É Prime ravers, Jennifer Walker Butler, Rachel Ward and S iobhan Whelan Rachel Ward Butler, ravers, Jennifer Walker of their parchments on 29 A pril 2010 ower, Orla Quinn, Rebecca Reilly, Orla Quinn, Rebecca Reilly, S arah P ower, Niamh O’ S hea, Jean Orr, Katherine O’Mahony, David O’Mahony, auna O’Connell, Caroline O’Flanagan, Claire O’Mahony, N ewly qualified solicitors at the presentation P atricia S myth, aul tein, A oife T Lorraine S canlon, Neasa eoighe, iobhán hanahan, arah heehy, guests of honour at the 29 A pril 2010 parchment ceremony for newly-qualified solicitors: G rainne A dams, E laine Bannerton, E velyn Barrett O’Donnell, Karen Brennan, E oin Brereton, nn Kelly, Deirdre M Kelly, Maria Kennedy, Neil Kidd, P adraic Kinsella, Claire Lehane, Camilla Leigh, P eig Lenehan, Damian Lohan, S arah Mansfield, E lizabeth Mara, Dermot McCole, Maria Kennedy, Deirdre M Kelly, Deirdre A nn Kelly, oife Murray, Mark Murray, T Mark Murray, A oife Murray, Michelle Moriarty, Helen Murphy, Ciara McLoughlin, Claire Moloney, McLoughlin, A oife Mellett, Yvonne Ronan ó Briain, A my O’Brien, T Mairead Britton, E laine Browne, Úna Burns, Mary P aul Clifford, S tefane Corbett, Michael Corcoran, Byrne,T Niall Campbell, Michelle Casey, A imée Collins, ngela Cooney, Ciara Deasy, A ine Duggan, isling Dunne, Laura Fitz G erald, Donna Flaherty, Joyce, Helen Kehoe, S ergei Deborah Flood, Rachel Halligan, Kate Hedigan, Lisa Joyce, Yvonne G ordienok,Ciara Deasy, Kevin G reaney, Mr Justice Nicholas Kearns (president of the High Court), John Costello (senior vice-president of the Law S ociety), Miriam O’Callaghan (R

www.lawsocietygazette.ie 45 Law Society Gazette aug/sept 2010 parchment ceremonies of their parchments on 6 M ay 2010 S iun Rogers, Claire Ryan, P atrick S hee, Bryan Laura Wycherley S heehan, Jennifer mith, arah Woods, and P aul Wynne N ewly qualified solicitors at the presentation Jennifer Devereux, Diana Diamond, Richard Dingley, A drian Dobbyn, S haron Dolan, Michael Doyle, Michelle Drury, Olwen G riffith,Jennifer Devereux, Diana Diamond, Richard Dingley, T herese Fitz G erald, James Fox, E imear ray, S heena Hayes, Clodagh MacNamara, Ian Martin, A isling McCarthy, Katie McDermott, Robert Maeve Moran, McDermott, James Mc G uinness, Rachel McKeon, lenda McMenamin, Zoe Mollaghan, Olga Molloy, E mma Jane O’Halloran, Charleen O’Keeffe, Liam O’Donoghue, Catriona O’Dwyer, Warren P arkes, Úna Ní Mhurchú, E nda O’Connor, Louise O’Byrne, Brendan O’Connor, James Murphy, Majella Mulroy, homas Kennedy, HerbertJerry T homas Kennedy, Kilcline, E mma Kinsella, David Lawless, Brian Lee, Joanne Leetch, Lynch, Deirdre Rebecca Hearst, Ronan Hopkins, Clare Hyland, E laine Kelly, Madden, Healy, guests of honour at the 6 May 2010 parchment ceremony for newly-qualified solicitors: Ciara Bannon, Laura Bolger, Liam Browne,guests of honour at the 6 May 2010 parchment A lan Burns, ceremony A my Clifford, for newly-qualified solicitors: Ciara Bannon, Laura Bolger, John Colleran, Laura Corrigan, John Coughlan, Mr Justice Joseph Finnegan ( S upreme Court), G erard Doherty (president of the Law S ociety), Norville J Connolly (president of the Law S ociety of Northern Ireland), and Ken Murphy (director general) were

46 www.lawsocietygazette.ie parchment ceremonies Law Society Gazette aug/sept 2010 manda Walsh and Niall Ward A manda Walsh G rainne Varian, orpey, of their parchments on 10 June 2010 N ewly qualified solicitors at the presentation E imear T E mily S heary, Katy S myth, Fiona Jean t John, Ruth tephenson, Marion weeney, inley, Caroline McHugh, Oisín McLoughlin, E del McNamara, E lizabeth McCann, Cathal McDermott, ristan Lynas, Marie Mc G inley, Claire Madden, S hane Maguire, E lizabeth Mahony, S arah Lynam, T ráinne Fahy, Jane Farrell, A isling Finn, G ráinne Fahy, A lan Doyle, Niamh Dunne, Kieran Durcan, CarolE ager, Matthew DeCourcy, A nnie Corcoran, Ruth Creane, S tephen D’ A rdis, Orlaith Daly, S iobhan Cassidy, Mr Justice Nicholas Kearns (president of the High Court), G erard Doherty (president of the Law S ociety), Fachtna Murphy (garda commissioner) and Ken Murphy (director general) were guests of G riffin, Ross Rory Orla Kennedy- G arrigan, A nna Keohane, isling Lernihan, S usan G ray, Kirsty Kavanagh, A oife Kelly, Flanagan, Deirdre Rachel G ilroy, Nora Flynn, Claire Forde, A nna Maria G allagher, lley, S arah Berkery, E imear Caffrey, E adaoin Bohan, A lison Bowe, Ciara Breslin,honour at the 10 June 2010 parchment Caitriona Breslin, ceremony Louise Butler, for newly-qualified solicitors: Lucy A lley, lison Murray, Jennifer Noone, Leonora Nyhan, A lan O’Beirne, Marion O’Donnell, A isling O’Regan, Nicola O’ S ullivan, Orla Riddell, Judith Roche, A lison Murray, Niamh Murray, E del Mullan, Laura Murphy, Neil Megannety,

www.lawsocietygazette.ie 47 Law Society Gazette aug/sept 2010 parchment ceremonies mer Walsh, Richard E lizabeth White Whelehan and E mer Walsh, Claire Walsh, of their parchments on 24 June 2010 N ewly qualified solicitors at the presentation Mr Justice Michael P eart (High Court), G erard Doherty (president of the Law S ociety), E nda Kenny T D (leader of Fine G ael) and Ken Murphy (director general) were guests of honour at the haron O’Connor, DarraghS hane O’Brien, Judith O’Connell, haron O’Dea, O’Connor, Lynsey Mulvihill, Lucy Neligan, Iseult Ní G hallchóir, Claire Molloy, Justin Meagher, Deirdre McMahon, A ilish Mc S weeney, S mith, A oife tapleton, E mma toran, Karl J E laine O’ S ullivan, Kevin P helan, hilomena John Ryan,Mary Orlagh S harkey, Ronan O’Reilly, O’Doherty, Blake O’Donnell, Lucy O’Reilly, mma Hickey, Laura Horan, A oibheann Hughes, Fionnuala Hynes, G raham Jenkinson, Donna Hallinan, G raham Haynes, A nnick Hedderman, E mma Hickey, S usan Hennigan, Michaela Herron, Jack Hickey, 24 June 2010 parchmentBryan ceremony E laine Caulfield, Fionnualla Cleary, for newly-qualified solicitors: Deirdre E mma Colleran, Boyle, Finola Dominic Burke, Louise Carley, Casey, lancy, Laurence P aul Dillon, E mma Jane Doherty,E leanor Dunne, Lorena Doyle, MargueriteDunne, A manda G lancy, Michael Coonan, Owen Costine, Barbara Cronin, Dooley, G illian Davy, S arah Conway, nthony Kelly, Ken Kennedy, Rebecca Kenny, Conor Lavelle, Fred Logue, A ndrew Lynch, Jessica Lyons, Rebecca Kenny, Michael Madden, Kevin Mangan, Iain McDonald, Ken Kennedy, Joanne Joyce, Damien E avanne A nthony Kelly,

48 www.lawsocietygazette.ie books Law Society Gazette aug/sept 2010 books Employment Law in Ireland Neville Cox, Val Corbett, Desmond Ryan. Clarus Press (2009), www.claruspress.ie. ISBN: 978-1-905536-26-9. Price: €185.

he authors, in compiling on trade disputes and the of points to consider before Tand presenting this work, Ryanair v IMPACT decision seeking interlocutory relief. In have dealt with the key areas particularly comprehensive and this regard, they consider the in employment law, and instructive. impact of the recent decision the structure follows the Attention is also given to the of Judge Laffoy in the High chronology of the employment relatively recent development Court case of Nolan v EMO Oil relationship from inception to in Irish employment law of Services, where the High Court termination. This work is clear, information and consultation sent a clear message that it does current, practical and relevant entitlements. As the authors not consider the employment for any individual advising in note, this area has the potential injunction an appropriate the ever-developing area of to be of real significance with mechanism for dealing with employment law. respect to the role of employees complaints arising from the This book examines the within the decision-making redundancy process. multiplicity of different fora in processes of Irish businesses. Throughout this book, the which employment claims can Other substantive areas authors provide generously be brought – an issue of growing dealt with are transfers of of when the employment up-to-date case references, importance, particularly in these undertakings, health and relationship breaks down. not just from the Irish courts recessionary times. A succinct safety, and the much litigated The authors, in a clear and and tribunals, but also from background and analysis is and commented upon topic of comprehensive manner, guide common law and European provided in all areas, ranging workplace stress and bullying. readers through the initial courts. In addition, they provide from the rights commissioner, The authors also consider stages of procedural fairness and useful referrals to texts and Employment Appeals Tribunal the topic of privacy, which is disciplinary action, through to articles. and Labour Court to the new of particular importance due the termination of employment, This book is a well- emerging fora such as the Health the rapid growth of social concluding when matters end up structured, clear, concise and Safety Authority and NERA. networking sites and the need before courts and/or tribunals. and practical guide on the This is of particular use for for employers to have in place They consider in detail, with ever-growing and developing employment law solicitors when proper polices to protect up-to-date legislative and area of employment law, and deciding how best to strategically themselves with respect to case references, the areas it would be of great use not place your litigation for your employees’ actions. of unfair dismissal and, of only to lawyers with limited client and, indeed, in defending There is an extensive section course, the current hot topic of experience in the area, but also such claims. dedicated to the area of equality, redundancy-related dismissals. to well-versed and seasoned A chapter is devoted to the which reflects the ever-growing The authors conclude their employment lawyers and HR area of industrial relations, specialist sub-headings that now work by considering in detail advisors. G focusing mainly on trade come in under the umbrella of employment injunctions. I disputes, registered employment ‘employment law’. particularly liked their analysis Sandra Moloney is a solicitor with agreements, and joint labour A significant section of the of emerging principles in this Terence J O’Sullivan Solicitors, committees. I found the analysis book is reserved for a discussion area, which provides a summary Cork. consult a colleague

The Consult a Colleague helpline is available to assist every member of the profession with 01 284 8484 any problem, whether The service is completely confidential and personal or professional totally independent of the Law Society

www.lawsocietygazette.ie 49 ------ACC Bank ACC plc Bank v , , in which he had If If solicitors acted for banks, those banks could from benefit a claim on the com Previous lending practices had set impor was the it and years, many country back The The key to the conveyancing residential system that did solicitors not act for was new proposed the If bank. the measure was not introduced, banks the to open be would it to simply instruct their cli ent’s solicitors in the transaction, loan without seeking an at undertaking all. In this way, the prohibition on the giving of could undertakings circumvented. completely be fund. pensation It was in the public interest that the Soci a solvent maintain should ety compensation fund for the benefit of the public and not banks. the of tant that the Society would play its part in establishing for procedures prudent solid, dealing with secured lending future. the for financial institution to institution financial a par who received solicitor ticular significant amounts of work from that financial institu tion.

Kevin Kevin O’Higgins referred to a recent judgment of Mr Justice in Clarke Frank Brian Johnston commented that: “there can be no doubt but that a three-way closing provides a greater de in lending a for security of gree give to chosen has who stitution going by security exact that itself and instructing of trouble the to paying its own solicitor” and “even though the extent of the to failing of solicitors likelihood comply with undertakings may not have been at all as apparent 6) 7) 5) ------While While genuine ‘ethical bar The was task force conscious of the existence of pronouncements judicial that ex The Society was aware of fi It was accepted by the courts, courts, the by accepted was It by the Society and by profession the that, in general, each party to a transaction should have their own inde pendent legal advice. In the current, very difficult, lend ing even environment, large, sophisticated clients vulnerable were and were not in an equal bargaining position banks. the with dealing when Now more than clients ever, needed strong, independent advice. legal riers’ might be available to some firms, it was the duty the to regulate of Society the entire profession – from the smallest firm to the largest. In addition, the ‘ethical proposed barriers’ would not be sufficiently robust to re sist claims that would arise against solicitors where they parties. both for acted had pressed deep concern about par both for acting solicitors ties. The task force was also aware of successful made claims against firms they had acted where for both par ties. that were institutions nancial seeking to ‘steer’ clients to those solicitors who, despite the recommendation of the Society, were still providing undertakings in commercial transactions. The task force believed that it could not be cli a that argued legitimately ent was independently rep resented when steered by a

task task force continued to support the proposed prohibition for a reasons: of number 2) 3) 4) 1) ------, regulations

should provide regulations Financial Financial institutions should advice, legal own their obtain Clients should obtain fully- independent legal from a who solicitor was not advice and bank, the for also acting The profession should protected be from the arose. obvious that interest of conflicts the for demand no was There measure, Generally, it was the client who wanted to use the same firm and most clients were well-informed and sophisti It was entirely consistent with with consistent entirely was It the of thrust the cated, With proper ‘ethical barri ers’, it was safe for a firm to act for both borrower and lender, The measure was a ‘step too introduced being was and far’ and haste, in The proposed measure was not replicated in other juris dictions and would damage the capacity of Irish firms to firms, with compete overseas London. in particularly Mr Farrell noted that the • • • had that there noted Mr Farrell been some opposition to prohibition additional proposed the that: basis the on • • er in a commercial loan transac loan commercial a in er tion. This prohibition had also regu draft the in included been that: basis the on lations, • • • • It had been suggested that, as an alternative to a prohibition, the for proper ‘ethical barriers’, in which circumstances the same borrower both for act could firm lender. and sultation sultation process, which would for acting from firm any prevent borrow the and lender the both

- . ------ociety Council meeting, meeting, Council Society Law 2010 16 July report PII PII Regula John D Shaw D John Michael Quinlan Quinlan Michael in order that the minimum minimum the that in order An An additional element had It It had then been proposed otion: otion: prohibition on com www.lawsocietygazette.ie arisen arisen in the course of the con hibit hibit the giving of undertakings in commercial transactions, re gardless of whether insurance cover was available or not. It was argued that the certificate of title and undertaking system had been designed purely for residential loans and had been extended, without proper con trans commercial to sideration, actions. The Council, Society’s supported by the vast majority of had the approved profession, giv the prohibit to proposal the in commer ing of undertakings transactions. cial that that the Council should pro M Practice, (Professional Solicitors Conduct and Discipline – Pro Under Commercial on hibition 2010.’ Regulations takings) Proposed: Seconded: In of the absence John D Shaw, Niall Farrell outlined the back ground to the draft regulations He noted that the of substance the regulations discussed had at been previous Council meetings, following a detailed consultation process with the In profession. the course of the insurance crisis of the previous it year, had become clear that a significant part of the problem was claims arising from under takings to banks in commercial cases. As a result, the Council had amended the tions not would and conditions terms cover in undertakings commer Notwithstand transactions. cial ing this, many insurers subse com for cover provided quently transactions. mercial mercial undertakings mercial ‘That this Council approves the aug/sept 2010 aug/sept Gazette Society Law council briefing 50 briefing 51 ------G

Carmody www.lawsocietygazette.ie Mr Mr MacGuill cautioned that adio ad campaign ad adio unattended by a solicitor. a combination of the of Hedi and the judgment case solicitors encourage J gan could in the counsel using to consider District Court, without attend ing the court themselves. As a consequence, there was a dan ger that newly-qualified solici exposure receive not would tors to District Court work. He be that imperative was it that lieved the Society would ensure that not did profession solicitors’ the lose its long-standing tradition courts. the in advocacy of R Niall Farrell noted first that tranche of advertisements, the comprising four individual sce had been narios, already broad cam The radio. national on cast paign would be repeated in the autumn. The feedback to profes the the from Committee PR sion indicated that the adver tisements struck the right tone received. well were and - - had identi aug/sept 2010 aug/sept Gazette Society Law case, the Legal Aid Report of the Business Disputes Disputes Business the of Report Liam Liam Kennedy noted that olicitors’ advocacy olicitors’ examine examine the data upon based which were pronouncements the of the a copy requested had and the Nevertheless, report. Forfás had Council Bar the and Society been invited to meet with the Minister for Enterprise, Trade and Innovation, Batt O’Keeffe, week. following the during the Force Task Resolution fied fied a variety of ways in which litigation costs might be businesses. for duced re S James MacGuill outlined the content of two recentrulings that court had implications for solicitors’ advocacy. noted that, He as a result ofCarmody the Scheme had been amended so that, in “complex cases”, schemewould provide thefor both more a counsel.In solicitorand recent case, the High had held Court that a barrister could appear in the District Court ------taking place in September/October 2010. The The director general said stated that a report prepared for for prepared report a that stated the Department of Enterprise, by Forfás and Innovation Trade and the National Competitive ness Council had found that the the that found had Council ness cost of consultancy fees in the legal, PR accounting, and busi ness management professions by had 2.4% between increased 2007 and 2009. The had article these “when that say to on gone were sep examined professions it arately, emerged that lawyers Legal chargers. highest the were fees were 18.5% higher at the end of last year than their aver age in The 2006. cost of a legal consultation peaked in the first half of 2009, the height of the recession.” that this statement appeared to be extraordinary and incred ible and did not accord any with of the anecdotal informa tion available to the which indicated Society, that legal fees had reduced considerably since the economic downturn. Ob viously, the Society needed to ------For further information e-mail: [email protected] traditional practice of law will be explored in a series of events The The Sunday The wide range of opportunities solicitors outside the that exist for

Evenings

entitled ‘What economic • online discussion • guidelines published • information

THE CAREER BOX THINKING OUTSIDE A A number of Council mem he cost of doing business business doing of cost he tice tice of closing in that manner an in involves increase inherent the risk to the finan solicitor’s client…” institution cial at at the relevant time as is, now, unfortunately, clear, the prac T The director had general that article referred an to Council the been published in bers bers spoke in opposition to the proposed prohibition on borrower both for acting licitors so and lender, arguing that measure the was disproportionate, and unnecessary and impractical that, if ‘ethical barriers’ were properly adhered to, would be adequately protected. clients members of Council A majority spoke in support of the regula tions. Following a lengthy de bate, the Council overwhelm ingly approved the regulations drafted. as Times crisis? Lawyers Celtic still Tiger fees’. The article charge ------E C ommittee ommittee ommittee ommittee C C C C s there are A AN SITE Y olicitors should S B E V art V condition is not P onveyancing onveyancing onveyancing onveyancing onveyancing onveyancing onveyancing WE C C C

C ON s the A C ON

mittees/conveyancing/precedent mittees/conveyancing/precedent documentation’. conveyancing a financial condition, not come it within does the of matters exclusion of financial contribu mittees/conveyancing/precedent documentation’. conveyancing tions or bonds in the standard architect’s opinion on ance with planning. compli tion of the planning permission. tor to confirm that he/she is in funds for stamping and tration regis fees before lodging theundertaking. carefully check the wording undertakings of and covering let ters from banks in relation to all commercial loans. no agreed procedures or agreed documentation for commercial loans, solicitors should not as sume that the documentation are similar procedures to, or or thesame as,those used inresi dential mortgage lending. E ------C AND

AGREEMENTS ORROWER B V V artcondi V P TO art V agreement, Y Y OMPLIAN P PART

TL C TRANSFER

C ociety’s website: follow the follow website: ociety’s art V condition is satisfied ociety’s ociety’s website: follow the OF S P

he documentation provided S AND T

he able in the members’ area of the members’ in the able Law links for either ‘best practice and practice ‘best either for links guidance/precedents’ or ‘com the the and practice ‘best either for links guidance/precedents’ or ‘com when the developer enters into the agreement with the plan then this is a matterthe between planning authority and developer the and does not consti T ning authority. If there is subse quently non-compliance with the terms of the the breachof a tute remind practitioners giving un dertakings in commercial cases loan between now and 1 De cember 2010 that some banks may pay loan funds directly borrowers, to for example, where the loan is provided by overdraft way for of working capital fa cilities, stocking facilities etc. by some banks in loan commercial cases provide that may the mortgage specifically curity documentation se must be in place before the solicitor lodges the undertaking with the bank, and it may require the solici DIRE

------ATES ESTATE he he art

T P C he he up T UTIONS ociety’s S B FUNDS notes

ERTIFI UILDING C limit set out in the ONTRI B LOAN art V condition of the

new form of undertak P A C n agreement entered into fter 1 December 2010, un currently in force and adjust OF he committee would like to A T A

ocietyforusesuchincases, is cts EDENT A tions made thereunder. dated precedents are now avail ance ance for building estates. to references regula the building amended amended precedents of area are members’ the in available now V condition is condition, not even if the agreement a financial requirespaymentthemonies. of es es the planning permission should be treated as a financial condition purposes. conveyancing for by the developer with the plan ningauthority pursuant toa website. dertakings in relation to commercial small loans de up minimis to the regulation dealing with the ban referred to above will still be al lowed. ing, recommended by the S Law to be drafted shortly by the Con veyancing Committee and be will published on the dertakingsgivenbetweenbewill now and the introduction of the ban. EDENT C ------C Plan Build practice mend PRE A

Planning Planning ociety to PRE

S ELOPMENT RELEASE V art V (social/ P , , and the the and DE cts A he he question arises as T ct ct 2002 UPDATED A ontrol ontrol ociety that solicitors should he strong advice from the he recent decision of the C AMENDED not between now and 1 De inginstitutions commercialin mortgage lending, such ban to become effective on 1 De cember 2010, and T S cember‘comsuchgive2010 mercial undertakings’ even if insured to do so, T Council of the Law introduce a ban on solicitors giving undertakings to lend

ince the introduction of the the of introduction the ince he he committee has updated its he he committee has recently precedent precedent certificates of compli the reference to as so ance ing T amended amended forms its of transfer and recommended convey T ning ning and Development ( ment) S affordable housing) obligations agree by can, authorities local to ment with the local authority in be satisfied case, an appropriate wholly or partially by payment of monies. to whether in those circumstanc 2) In light of: 1) it is anticipated that a very lim ited number of commercial un www.lawsocietygazette.ie aug/sept 2010 aug/sept Gazette Society Law briefing 52 briefing 53 ------C S C C is will s. s. S A ct ontrol ontrol A C s s monitor he he service A T C. C. S Building Building before the com the before and for an F A A he he s s keep a of register T C is required but has has but required is C A S ugust 1992, no F 1992, ugust A www.lawsocietygazette.ie ince ince the original regulations Multi-Storey Buildings Buildings Multi-Storey S While BC I no 351 of 2009), the entire of of entire the 2009), of 351 no I mendment) mendment) Regulations 2009 he he building control regulations A S the the not apply and the building must be erected in accordance the with building regulations. If work is commenced on a multi-storey building post 1 June 1992 and 1 before required under the building regu lations. Notices T provide for certain notices to be given to the BC to be obtained before any work was commenced on a F an required that building came into force in 1992, a per son has been obliged to give a notice called a commencement BC the to notice obtained. been yet not commencement notices for their any nor acts the neither use, own of the give the regulations public a after and, it to access of right a lapse of time, there may be dif ficulty, and indeed it may often prove impossible, to notice a commencement whether establish served relation not in was or was to any particular It development. is clearly very important for the maintenance of good standards of building that BC building standards. of a commencement notice or a seven-day notice in every case be will an importantin ingredient the this process. main However, tenance of such standards, and taking a tough line with persons who fail to serve a commence ment notice or a seven-day no tice, or breach the act or regula BC the for matter a is tions, mencement of the construction of of construction the of mencement building. any ( ( is which in force 1 since January 2010, provide as an alternative for an extra type of notice called served be to notice’ a ‘seven-day F an where ------ct ct A prima prima . . Multi- Local Local Gov aug/sept 2010 aug/sept Gazette Society Law his his is defined ct ct 1990 T Fire Services Fire A ontrol ontrol ceased to have effect C , complies with the building building constructed or al he guidance documents refer refer documents guidance he here is no to legal obligation tion 20 of the the of 20 tion 1981 Minor Minor works. as as works consisting of the in stallation, alteration or alteration remov stallation, works or fitting or fixture a of al nature. decorative a of T A T

ertificates of compliance of ertificates ct ct 1988 he building regulations provide here here is power in the 1990 act he provisions of the echnical guidance documents guidance echnical f) T T for the publication of technical guidance documents that out technical set building methods for use in the buildings. construction of prac of codes hundred several to technical or other standards tice, references, which set out the re standards. technical quired tech the with compliance in tered nical guidance documents facie regulations. out set standards the with comply in the technical guidance docu ments. C T for to providing make regulations certificates of compliance, but this matter has been left to the construction and themselves. the for sortout to sector property buildings Multi-storey T ernment (Multi-Storey Buildings) A cases for except 1992 June 1 on coming within the of 22(2) section the of provisions transitional Building storey buildings that have applied applied have that buildings storey for and/or received building bye- started 1 June approval law after 1992 will require the usual cer the with comply must and tificate 1988 act. In the event that only planning permission has granted been and that no application has been made or granted building bye-law approval prior to for 1 June 1992, the provisions of ------) A , , except cts A C here are limits on here are limits T C is required, required, is C S ugust 1992, 1992, ugust A Planning Planning ingle dwellings (not flats), flats), (not dwellings ingle ll ll of the works exempted as he he regulations have evolved here are certain exemptions, T T A (i) and (ii) in paragraphs listed above, S Certain buildings used clusively for ex agricultural pur poses, Works carried out in compli ance with a notice under sec Constructions Constructions single-storey of buildings for de a as such house, a domestic certain Building works (which obtained or have applied for build Carrying out work that is ex empted development under the F a where con tool-shed, garage, tached servatory, glass house, hen etc. house these. of size the ing bye-law approval prior to be commenced 1 1992) June 1 fore

xemptions from the building building the from xemptions from xemptions having to lodge xemptions xemptions from having to apply he transitional arrangements un arrangements transitional he trol of such works. works. such of trol 1992 since and the considerably ones currently in force are listed hereto. appendix the in E regulations T exempted regulations first the der buildings commenced before 1 June 1992 and buildings com menced after 1 June 1992 which for an application for building and/ lodged was approval bye-law 1992. June 1 before granted or such by as constructed buildings a building control (BC authority ings constructed by the such state, as garda stations, courtetc. houses, E notice commencement a also also provide through the building control regulations for con the to relation in procedures various in its functional area and build b) c) d) e) ii) a) i) E FS a obtain and for ------Cs) Cs) S ontrol ontrol C C (and C Building Building S and the the and cts A as amended. amended. as Building Building Cs) Cs) are clearly A I I no 351 of 2009 ontrol ontrol S C C) has been granted C) has granted been ct 1990 ct REGULATIONS IN BUILDING CHANGES ON IMPORTANT UPDATE A A ontrol ontrol olicitors will continue to seek seek to continue will olicitors Building Building breach of this prohibition and regulations thereunder: he he Conveyancing Committee also a also D Fire Fire safety certificates (F by the building control author cerned cerned in relation to whether a commencement notice or a seven-day notice had been given to the building control If authority. none is available, refer to the practice note be low. and disability tificates access (D cer very important and must be obtained whether acting for a purchaser, tenant or other occupier. open on prohibition a imposes ing, operating or buildings unless an F occupying ity in respect of the building. A will be an offence and render a person in breach liable the under to prosecution C T is of the view that solicitors should not be unduly con tofore tofore in relation to building control or planning by getting a certificate of compliance to the effect a cli a that building ent is buying or leasing com plies with the building regula tions. S to have compliance in verified the same manner as here

etailed outline etailed ummary for conveyancers for ummary cts he he regulations regulations thereunder provide for certain standards to be met build buildings, new to relation in by altered materially are that ings extension or change of use, and 3) 2) 1) Commencement Commencement notices cer safety fire notices, seven-day and tificates and revised fire safety certificertificates, regularisation certif access disability and cates icates under the D T S A an outline and guidance for con veyancers. ------aware aware will be be will olicitors olicitors A A S he he Convey T here here may be a T s s monitor building here are two points here are two points T A he he purpose of these T s already indicated, it is clear is it indicated, already s he he second point that arises he he first is whether there is A ancing Committee has already already has Committee ancing recommended that solicitors should owners subsequent for undu not themselves concern commence a whether about ly ment or notice seven-day was served or not or or commencement the of copy whether a seven-day notice is available not. or mencement or seven-day no tice is that it may have been most In omission. deliberate a cases, it will turn out to be a mere oversight, and in some BC the cases those of well aware of the commence out carried have may and ment inspections. T com a of non-service the from case from time to time where T any downside for a quent owner subse from a convey ancing point of view. Carrying out a development serving a commencement no without an is notice seven-day a or tice parties the leaves and offence involved liable to prosecution. otherwise on impact not It will owner. subsequent a should ask if a ment commence notice or seven-day no copy a for servedand was tice thereof. We do not feel that solicitors should insist on not is it if a furnished being copy readily available.

ly ly very important for the mainte build of standards good of nance ing that BC standards. that a is development commenc ing so that as they manner a can such in monitor development a see fit. they develop a to relation in arise that served: is notice no if ment notices is to make the BC the make to is notices ment ment notice or seven-day notice in any case is that the person or develop carrying the out persons ment commits an offence – but should this impact on a subse owner? quent b) a) ------C S I I no S Cs. Cs. It C C with S S 1990 ct C C proce A he he effect S T C applies to C applies A C is set out in in out set is C A ontrol ontrol C C) have been granted by granted been have C) is required to maintain a maintain to required is he he register is to contain in respect of the building. building. the of respect in A Building Building A T A C C and the form of the cer s s mentioned before, here here is no obligation on the he most is significant a new a for he need D he procedure for making an he procedure for for applying to follow up their F A T A T T T T A C C in the event that the design Cs. Cs. A breach of this prohibition will be be will prohibition this of breach he BC he whether to as arises question he S ssues for conveyancers for ssues and and material, along with certain calculations relating to the building. the fire of safety BC either works the of inspection any construction. during or before certificates safety fire of Register T applications of respect in register of respect in made decisions and F the applicant, description of the work, the decision and the out appeal. any of come 351 of 2009 introduced major changes in relation to F new completely a introduced also provisions the toughen to system dealing with access for disability. people with provision that imposes a prohibi tion on opening, operating or oc cupying buildings unless an F certif access disability a also and (D icate BC the A an offence and render a person un prosecution to liable breach in the der amended. as any new and building to an exist revi significant where building ing it. to made are changes or sions D a for application and verythe regulations sensibly includes provisions for a revised D changes. a D itself is tificate broadly to similar that in relation to the F dure. I T to servefailure the a commence ment notice or a seven-day no tice should make property a unsaleable. particular of not serving the commence ------n C A S . . n n ap ugust ugust A A A ct ct 1990 C, C, unless A S C is set out out set is C he he decision he he informa T T S C (if changes changes (if C pplications pplications for S A ontrol ontrol ubstantially higher ubstantially C S he information to be be to information he T has two months in may issue a refusal may be appealed to leanála, leanála, whether it is A A A P . A C C is required before work Building Building S he he BC he he BC T T In In effect, this applies to vir While, While, in practice, an F Cs Cs are made to the BC C C should have been obtained n n Bord n n F S S tually tually all buildings single dwellings. other than F application application form, accompanied by detailed drawings, specifica respect in calculations and tions, of certain fire-related matters is required to be submitted. plication that does not treated be will information contain full the invalid. as which to issue an F of is time in agreed an extension and applicant the between writing BC the of the BC A im condition(s) or refusal against it. by posed F the with submitted tion ranges from location maps of the site, complete plans, and plans of of sections the building, servic and construction of details es, specification of construction or or issue a certificate without conditions). (with or in the regulations. could be obtained retrospectively, retrospectively, obtained be could these regulations expressly pro F revised a for vide are made in the course building of the that necessitate and what this) is called a regularisa tion certificate, which does what its name implies – regularises a situation where that an is, it F but was not. a regularisa for are charged fees tion certificate, and the fees for a seven-day notice are also sub stantially higher than for a com notice. mencement certificates safety Fire A starts on all which part building (B) of the work regulations to apply since the relevant part of the came into force on 1992. 1 is described above. described is ------A C S , will , will I I no C and and C A S C C until S S C C number C number. C number. ome devel ome seven-day S S S A . . A his should largely largely should his C C has been that T S his his could be given T instead of a com A he result was that devel that was result he T further few months’ delay delay months’ few further C C or required under any A S C. C. s s mentioned above, S A C is prepared, which could take take could which prepared, is C problem for developers in S the the form of commencement no tice required the person submit ting it to put in the F Developers frequently deferred authorising the preparation an application of for an F Background to the need for for need the to Background notices seven-day A relation to developments required an that F planning permission had and obtained a is decision been made to with the proceed construction. a with are faced then Developers the for application the while delay F develop large a for months few a ment. ment. would then ensue while the BC processed the application. De velopers tended to want to start work on site works, basements, car parks etc without waiting for F an or engi architects their got opers neers to submit commencement notices without the F (which of course did not yet exist) exist) yet not did course of (which and usually these were returned BC the by rejected opers opers tried to get around this by issuing a commencement notice and only, works to site in relation some local authorities allowed this device, but others refused to countenance it and returned the commencement notices duly rejected. 351 351 of 2009 introduced a new form of notice, called a day seven- notice. to the BC mencement notice. notice has to be accompanied by to has be accompanied notice F an for application valid a a a statutory declaration from the com he will that saying applicant ply fully with the building regula as period a such within and, tions by BC the be may specified granted. when that difficulty practical the resolve conditions conditions attached to the F carry out any modifications to the the to modifications carryany out under required be may that works the F www.lawsocietygazette.ie aug/sept 2010 aug/sept Gazette Society Law

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t e f l C l e r I l n a i a r m C i o w f W s o a was aware of the develop Alcohol • Alcohol Drugs L a a contractor wants to carry or out work and, developer due to something about proposed is it the which in manner to carry it out, does not wish to have the BC notice. seven-day or ment tural engineer involved in the development and, if it arises happen to likely more is all, at where a builder is operating without the of assistance pro fessionals. it it and be in a position to see accordingly, and, done is what does not serve a commence scenario scenario is unlikely to arise if there is an architect or struc A Cs Cs when buying or leasing u h Stress • Stress Depression

What, What, if anything, can a solici FS property second-hand In guidelines like this, it would be difficult to review all the pos tor tor do? In any case where establish that you a commencement been not has notice seven-day or served (as opposed to not a being available), the copy circum If investigated. be should stances to a it been have seems genuine by confirmed is this and oversight or if a the professional reputable BC inspections, out carried and ment no further action should arise. If there is any reason for disquiet as to whether the seven- or omission commencement a serve to day or notice was not, deliberate you should recommend to your client to seek the advice to of engineer structural or an architect any furtherwhether sur consider are veys necessary possibly, and the review to case, extreme an in to decision proceed with the pur all. at chase sible situations that could arise in relation to buying or leasing a second-hand property.

the Com- Com- Criminal Regulates the and provides for related Control of Dogs Acts 1986- Offences Against the State Act Act State the Against Offences victim impact statement may be done via an that intermediary, is, a person appointed by capacity. that in act to court the Modifies the rule against dou- ble jeopardy by allowing DPP the to make an to application the Court of Criminal Ap- peal in certain circumstances for a retrial order in respect of a person who has been acquit- ted of an offence, and provides for an appeal to the Supreme Court on a point of law from a determination of the Court of Criminal Appeal in respect of such applications. Extends the powers of An Garda Síochána in relation to the investigation of certain offences. the circumstances in which the Extends DPP or the Attorney General, as may be take appropriate, an appeal in criminal pro- may ceedings. Amends the Justice (Legal Aid) Act 1962, Courts of Justice Act 1924 and the 1939, and provides for related matters. Date enacted: 20/7/2010 Commencement date: mencement order(s) made as per s1(2) of the act to be BreedingDog Establishments Act 2010 Number: 29/2010 Contents note: operation of dog-breeding es- au- local Requires tablishments. thorities to establish and - main tain registers of dog-breeding establishments. Increases the addition in licences dog for fees to some other amendments to the 1992 matters. Date enacted: 21/7/2010 Commencement date: mencement order(s) made as per s1(3) of the act to be - - 7/7/ in re- Com- Amends the Provides for Prevents the 17/2010

Compulsory Purchase Orders Orders Purchase Compulsory Limits) Time of (Extension 2010 Act Number: Contents note: the extension of the time with- in which a notice to treat in - re spect of lands to which a com- pulsory purchase order relates may be served and provides for related matters. Date enacted: 7/7/2010 Commencement date: 2010 Criminal Justice (Psychoac- tive Substances) Act 2010 Number: 22/2010 Contents note: misuse of dangerous or erwise oth- harmful substances psychoactive and provides offences relating for to the importation, sale, exportation advertisement or of those stances; - sub provides for offences relating to the sale and adver tisement of certain objects for use in the cultivation of certain organisms natural fungi, plants, or substances in contravention of the Misuse of Drugs Act 1977 and provides for related mat- ters. Date enacted: 14/7/2010 Commencement date: mencement order(s) made as per s26(2) of the act to be Criminal Procedure Act 2010 Number: 27/2010 Contents note: Criminal Justice Act 1993 evidence impact victim to lation per or child a that provides and son with a mental disorder, or leave the with person other any victim a make may court, the of a of means by statement impact provides and link television live that any questioning of a child or person with a mental order dis- in relation to his or her - - - - 19/6/ 19/6/ Com Com

Compe

: : Provides for s35 to permit 17/7/2010 19/7/2010 19/6/2010

24/2010 12/2010

ernor ernor and the head of financial regulation to prevent potential serious damage to the financial and in provides the state system matters. related for enacted: Date Services Services Regulatory Authority. of enhancement the for Provides control regulatory of system the and confers additional powers on the Central Bank, the gov Commencement date: mencement order(s) to be made to be made order(s) mencement act the of s2 per as Certain and Partnership Civil of Obligations and Rights 2010 Act Cohabitants Number: Contents note: Establishes a statutory civil partnership reg- istration scheme for same-sex couples and establishes a dress re- scheme for opposite-sex and same-sex cohabiting cou- ples who are not partnership, civil a in married registered or for Provides be. may case the as the recognition of tion - cohabita agreements that regulate the shared financial affairs of cohabiting couples and enables couples to opt out of the plication to them ap- of the redress related for provides and scheme matters. enacted: Date Commencement date: mencement order(s) to be made to be made order(s) mencement act the of s1 per as (Amendment) Competition 2010 Act Number: Contents Contents note the amendment of the tition tition Act 2001 the appointment of temporary members of the Competition Authority. enacted: Date Commencement Commencement date: 2010

------legislation update legislation 12 June – 31 July 2010 July 31 – June 12 and Com (1993) (1993)

and provides : : Establishes : : Repeals the 14/7/2010

ED 23/2010 21/2010

SS PA S www.lawsocietygazette.ie for related matters. related for enacted: Date Commencement date: the Central Bank of Ireland as a single, fully integrated struc provides provides for the re-enactment and updating of visions. their Gives pro effect Hague to Convention on Protection the of Children and Co-operation in Intercountry Adoptions and provides the making and recognition of adoptions in intercountry accordance with bilateral agreements. Replaces the Adoption Board with the Adoption Authority of Ireland to act as a for authority central as adoption under required the Hague Convention made be to order(s) mencement act the of s2 per as Act Reform Bank Central 2010 Number: Contents note ture with a board unitary – the re – Commission Bank Central placing the boards of the Cen Financial Irish the and Bank tral Details Details of all bills, acts and statutory instruments since 1997 are on the library cata logue – (members’ www.lawsociety.ie and area) – with students’ updated infor mation on the current stage a bill has reached and commencement the date(s) of each act. All recent bills and acts text (full in PDF) are on www.oireachtas.ie and re cent statutory instruments are on a link to statutory electronic instruments from www.irishstatutebook.ie. ACT 2010 Act Adoption Number: Contents note Adoption Acts 1952-1998 aug/sept 2010 aug/sept Gazette Society Law briefing 56 briefing 57

------Social Social 20/7/ 20/7/ Com Com

Amends Amends the Provides Provides for 20/7/2010 21/7/2010 20/7/2010

28/2010 26/2010

www.lawsocietygazette.ie in order to increase the allowance allowance and supplementary welfare allowance for claimants who refuse to participate in an appropriate course of training programme a in participate to or under the National Employ collisions. collisions. Provides powers to assist the gardaí in forming the a that is or driver opinion is not intoxi an of influence the under cant and to carry out a prelimi nary test impairment on such a amendments for Provides driver. and to charge fixed pen certain alty point matters, introduces new relating to provisions driv disqualifications and licences ing from holding a driving licence, matters. related for provides and enacted: Date Commencement date: to be order(s) made mencement act the of s1(2) per as (Miscellaneous Welfare Social 2010 Act Provisions) Number: Contents note: a reduced rate of jobseeker’s ment Action Plan. Provides for family one-parent the to changes payment to reduce, from April 2011, the age qualifying for re ceipt of payment to of age when the reaches the child youngest 13. for Provides the transitional arrangements for current family one-parent the of re cipients payment. Provides for miscella to neous amendments the 2005. Act Consolidation Welfare enacted: Date Commencement date: to be order(s) made mencement 3, parts and 18-20 6, 14, ss3, for act the of 5 and 4 Gaeltachta na Údarás 2010 Act (Amendment) Number: Contents note: Údarás na Acts Gaeltachta 1979- 1999 elec between interval maximum tions to Údarás na to months six Gaeltachta and years five from months. six and years seven enacted: Date Commencement date: 2010 ------Com Pro

Planning Planning aug/sept 2010 aug/sept Gazette Society Law Amends Amends the Amends Amends and relating to in 26/7/2010

Transport (Railway (Railway Transport Road Road Traffic Acts Consolidates Consolidates and 30/2010 25/2010

and the , the increase in penalties for for penalties in increase the , vides vides that development plans shall contain an evidence-based core strategy that shall provide relevant information to show that the development plan and the housing strategy are con sistent with regional planning spa and the national guidelines tial strategy 2002-2020. Devel must also contain plans opment mandatory objectives for settle the of sustainable promotion ment strate and transportation in areas, rural and urban in gies to measures appropriate cluding reduce man-made greenhouse provi makes Also emissions. gas sion in relation to the duration of a planning permission, the by of a refusal permission plan where ning the authority appli a out carried previously has cant substantial unauthorised devel opment or has been convicted the under offence an of Acts offences, the taking in charge by the planning authority of a housing/residential estate, An Bord Pleanála’s statutory quo rum when on making decisions specified classes of cases, matters. and related for provides enacted: Date Infrastructure) Infrastructure) Act 2001. Commencement date: Planning and Development Development and Planning 2010 Act (Amendment) Number: Contents note: Planning and Development Act 2000 to be made order(s) mencement act the of s1(3) per as 2010 Act Traffic Road Number: Contents note: extends the 1961-2007. re-enacts the provisions of the Road Acts Traffic driving Pro toxicated offences. vides for the lowering of for concentration blood alcohol the drivers and revises man the for associated Provides penalties. datory alcohol testing of driv ers of mechanically propelled in involved vehicles road traffic ------3/7/ 3/7/ 3/7/ Com Com

signed signed

Amends Amends the Amends the Provides Provides for Provides for to provide, in to provide for 9/7/2010 3/7/2010 13/7/2010 3/7/2010

20/2010 18/2010 14/2010

International International Convention for nishing by the Health Service Executive of information and documents to the Minister for Health and Children and provide for related matters. to enacted: Date eli full with to persons tractors and for gibility provides related matters. enacted: Date made be to order(s) mencement act the of s2(3) per as (Miscellaneous Health 2010 Act Provisions) Number: to the Health and liabilities sets Service Executive and provides matters. related for enacted: Date Commencement date: made be to order(s) mencement sec all for act the of s1(2) per as tions other than ss3(1), 14, 15, 17(a) and 16 2010 Act Shipping Merchant Number: ger vehicles for persons with reduced and mobility, provides matters. related for enacted: Date Contents note: Health Act 2004 the public interest, for the fur Commencement date: 2010 2) (No (Amendment) Health 2010 Act Number: Contents note: Health Act 1970 the charging of fees in respect of prescribed items dispensed by community pharmacy con Commencement date: Contents note: the dissolution of Hospital Luke’s Board the and the Saint transfer of its employees, as Contents note: the further implementation of the the Safety of Life at Sea, in London on 1/11/1974, and its protocols; makes provisions in relation to access to passen Commencement date: 2010

------3/7/ 3/7/ 9/6/ 9/6/ 30/6/ 30/6/ -

Provides Provides for Provides Provides for Provides for

3/7/2010 9/6/2010 30/6/2010

16/2010 15/2010 13/2010 11/2010

, , ss4, 5, and 16); com National National Reserves Agency Health (Amendment) Act Act (Amendment) Health 2010 Number: Contents Contents note: matters relating to the partici 2010 European Financial Stability Stability Financial European 2010 Act Number: mencement order(s) to be made made be to order(s) mencement of s1(2) per as sections other for act the of pation the state in the Euro pean Financial Stability Facil matters for provides (EFSF), ity relating to guarantees given by the of purposes the for state the EFSF agreement and provides matters. related for enacted: Date Commencement date: Act Act 2007 2010 2010 for part 1 and s3 (insofar as it applies to ss44A and 44B of the Electricity Regulation Regulation Electricity (Carbon (Amendment) 2010 Act Levy) Revenue Number: Contents note: the imposition of a levy to the increased supply of biofuel in the state by means of a bio fuel obligation requiring that a amount of specified road trans provides and biofuel be fuel port matters. related for enacted: Date Commencement date: be known as the carbon rev 2010 Act sions) Number: Contents note: Energy (Biofuel Obligation Obligation (Biofuel Energy Provi Miscellaneous and enue levy on of such the revenues amount certain received electricity by generators, through participation in single the electricity market, as is attributable to the emissions fromeachinstallation whichof an electricity generator is the operator. enacted: Date Commencement date: 2010 - - - - 5/7/ , order order , 20/7/ 1/12/ . Appoints Prepared by the the by Prepared Amends the Outlines cat Prohibits solic Prohibits Law Society Library Society Law SI 330/2010 330/2010 SI 246/2010 SI 366/2010 SI SI 361/2010 361/2010 SI G

Arbitration Act 2010 Act Arbitration 11, 11, and a substitutes new order 56 to the facilitate of operation the Post-release (Restrictions (Restrictions Post-release Orders Activities) Certain on 2010 Scheme Number: Contents note: egories of and restrictions con a that may impose court ditions on an offender when making a order. post-release Commencement date: 2010 Courts Superior the of Rules 2010 (Arbitration) Number: Contents note: Courts Superior the of Rules Commencement date: 2010 Pensions and Welfare Social 16(c)) (Section 2008 Act 2010 Order (Commencement) Number: Contents commencement the note: as 2/6/2010 care (domiciliary for date s16(c) act. the of allowance) (Professional Solicitors and Conduct Practice, Commercial – Discipline Transactions) Property 2010 Regulations Number: note: Contents itors from giving undertakings transac property commercial in tions. Commencement date: 2010 Hous- Appoints Social Welfare Housing Act 1988, SI 263/2010 263/2010 SI Be willing to cover expenses other than accommodation and accommodation than other expenses cover to willing Be flight. (The Law Society may provide a contribution to living expenses). • Health and Social Care Care Social and Health 2005 Act Professionals 2010 Order (Commencement) Number: Contents note: 3/6/2010 as the Appoints ment commence - date for part than s27 (3)(b) and (e)) 3 and for (other schedule 2 of the act. Housing (Miscellaneous Provisions) 2009 Act (Commencement) Order 2010 Number: SI 253/2010 Contents note: 14/6/2010 as the commence- ment date for s7 and schedule 1 (insofar as they apply to the repeal of the s11); s8 and schedule 2 (insofar as they apply to the ments set out amend- in part 5 of that the of respect in schedule ing (Miscellaneous Act 1997, Provisions) s14(1), (2)); part of schedule 2 9 (insofar as it ap- plies to the substitution of sub- paragraph (ii) of paragraph (b) of the definition of “relevant purpose” in the s265(1)); 2005, Act Consolidation s22, s32 (6), (7) and (insofar (8); as it s33 applies to s32(8), s47(4), s48 (5) and (6)); s34 (in- sofar as it applies to s32(8)). Petroleum (Exploration and Extraction) Safety Act 2010 (Commencement of Certain Provisions) Order 2010 Number: SI 227/2010 Contents note: Appoints the 22/5/2010 as the commence- ment date for ss1, 2 and 4 to- gether with ss13A, 13B, 13C, 13G, 13H and 13K of the act. - - - 11/6/ 11/6/ 8/7/ - s8, as 22/7/ 22/7/ District District 200 200 to € Enforcement Enforcement Amends Amends or Substitute Enforcement Enforcement of Transpose into into Transpose Criminal Justice Criminal to facilitate the the facilitate to District Court District Rules Deadline for applications: Friday, 3 September 2010 Deadline for applications: Friday, SI 281/2010 281/2010 SI SI 360/2010 360/2010 SI 325/2010 SI . Consumer Consumer Credit Directive 75,000. 75,000. It does not apply to cations cations to the District Court to pursuant the 2009. Act (Surveillance) Commencement date: € mortgages. Commencement date: 2010 2010 Jus (Criminal Court District ule B of the 1997 Commencement date: 2010 (Enforcement Court District Rules Orders) Maintenance of 2010 Number: the of 62 and 57 54, ders 1997 Rules Court operation of the 2010 Communities European Agree Credit (Consumer tice (Surveillance) Act 2009 2009 Act (Surveillance) tice 2010 Rules 2) (No Number: Contents note: forms 34A.1-34A.15 in sched Contents note: of Court Orders Act 1940 amended by the Court Orders (Amendment) Act 2009. Commencement date: 2010 Regulations ments) Number: note: Contents domestic law the provisions of the establishes which 2008/48), (Dir a harmonised legal framework for the provision of consumer credit ranging from [email protected] and [email protected] Autumn 2010, Cologne (Germany) - - Exchange Programme for Lawyers - - - - - 1/7/ 1/7/ 10/7/ 10/7/ orders orders

Y Criminal Criminal OR Be qualified or have successfully passed the PPC II course. High level of German (fluent desirable) of German knowledge law system. Ideally, Amend Amend the in a different jurisdiction, expanding his/her knowledge of law, language and legal skills. in a different jurisdiction, expanding his/her knowledge of law, o apply for this programme, please forward your CV and cover letter (explaining your interest in this programme) to: District District Court T Appoints Appoints the Gives Gives legisla Programme Programme for Insert a new 10/7/2010

ates must: Candidates • • • S TATUT T S . N The programme a two-month working experience in a commercial entails legal firm in Cologne (Germany). to ban the practice to facilitate appli SI 342/2010 SI 19/2010 SI 260/2010 260/2010 SI SI 314/2010 314/2010 SI

he successful candidate will benefit fromfor an Irish solicitor or nearly qualified solicitor in Cologne. The successful working Organised by GILBA and the Law Society of Ireland, this programme provides a unique professional experience UME R ECTED ECTED T L E NS www.lawsocietygazette.ie ment date for the act. act. the for date ment District Court (Criminal Jus tice (Miscellaneous 2010 Rules 2009 Act sions) Provi Number: Contents note: 1997, Rules Court District 16, 18, 27 and 28A, to facilitate the operation of the I 2010 Order mencement) Number: 15/7/2010 as the commence Justice (Miscellaneous Provisions) 2009. Act Commencement date: 2010 (Criminal Court District Act (Surveillance) Justice 2010 Rules 2009 Number: Contents note: tive tive effect to the commitment in the renewed Government of stag hunting with a pack of hounds. Provides for the crease in in penalties for breaches of various provisions Acts Wildlife in the enacted: Date Commencement date: 2010 S (Money Justice Criminal Terrorist and Laundering (Com 2010 Act Financing) Contents note: order 34A in the Rules 1997 Wildlife (Amendment) (Amendment) Wildlife 2010 Act Number: Contents note: aug/sept 2010 aug/sept Gazette Society Law

briefing 58 briefing 59 - - - - Solici [6919/ 3,000 3,000 to the € 12 July 2010 Law Society of IrelandLaw Society www.lawsocietygazette.ie Do stand censured, stand Do Pay a sum of fund, compensation Failed to respond to the Soci the to respond to Failed Failed to inform the Soci Failed to attend meetings of Society, the of committee the do to requested being despite an sought Society the until so order from the High Court attendance. his compelling ety’s correspondence, ety’s and in let Society’s the to particular ters dated 13 2007, February 26 2007, 15 February March 20 2007, 17 2007, April May 18 2007, September 18 2007, 2007, December ety as to his of progress/lack progress in discharging his undertaking to IIB Home- loans,

ribunal The The tribunal ordered that the solicitor: respondent In In the a formerly matter solicitor Gillespie, of Patrick practising as P Gillespie & Solicitors, Company, at Bury and Mayo, Co Ballina, Street, in the matter of the tors Acts 1954 to 2002 DT45/08] Ireland of Society Law (applicant) Gillespie Patrick solicitor) (respondent Solicitors the 2010, April 27 On the found Tribunal Disciplinary respondent solicitor guilty of misconduct in his practice as a he: that in solicitor a) b) a) b) c) lliot, Registrar of Solicitors, John Elliot, Registrar

------struck off Solicitors. the Roll of aug/sept 2010 aug/sept Gazette Society Law 1,000 1,000 to the € ribunal inquiries areribunal inquiries published by the The submissions made by the the by made submissions The submis the including parties, sion made on behalf of the respondent solicitor that he had paid huge amounts of money by way of penalty to Revenue, the cer practising limited a That feasible, be not would tificate and That the respondent solici tor, through his solicitors, had indicated that he would practice his down winding be year. the within Do stand censured, stand Do Pay a sum of fund, compensation Pay of the of whole the costs the Law Society of Ireland, of master taxing a by taxed as the High Court in of default agreement.

In addition, the tribunal stated as follows: while the monetary penalty the tribunal imposed was modest, it be taken should as being not an tion indica that the tribunal viewed the matter tribunalThematthisviewdid as non-serious. ter as serious, but had regard to the present financialcumstances of the cir respondent solicitor. The tribunal gave the following following the gave tribunal The reasons for its decision, saying that it had taken consideration of: a) b) The The tribunal ordered that the solicitor: respondent • • • c)

------ake notice that, by order of the High Court 375,000 375,000 completed made on Monday 14 ordered that the name June of Desmond O’Brien, 2010, it solicitor, was of Cregg, Lahinch, Co Clare, be T € 370,000 370,000 completed on 635,000 635,000 completed on on completed 225,0000 2,000, € Updated Updated a deed in spect of re a purchase com pleted on 23 April 2005, which deed was stamped in August 2008 with no evidence of interest and paid. penalties on on 14 October 2005 by dating the deed 31 May 2006, thereby avoiding penalties, and interest Updated a deed in re Updated a deed in re Updated Updated a respect of deed a for in purchase Updated a deed in spect re of a purchase for € dat by 2006 February 10 ing the deed 2008, February thereby resulting in the imposition of lower stamp duty regime a under introduced Budget 2007, spect of a purchase for € spect of a purchase for € 12 July 2007 by stamp ing the deed on 2 April in resulting thereby 2008, a saving of stamp duty of € 21 February 2007 by dat by 2007 February 21 ing ing the deed 24 January 2008, thereby avoiding penalties, and interest 16 16 April 2007 by dating there 2008, July deed the by avoiding interest and penalties,

vii) v) vi) iii) iv) ------COURT HIGH CE: THE NOTI ’Brien, solicitor, O’Brien, solicitor, 54,769 54,769 € Solicitors’ Solicitors’ , Desmond Lahinch, Co Clare, and in the

500,000 500,000 completed on 965,000 965,000 completed on Solicitors Solicitors Acts 1954 to spect spect of a purchase for € Updated Updated a deed in re Updated Updated a deed in spect re of a purchase for € 31 May 2006 by dating the transfer 2 July 2008, thereby avoiding interest penalties, and

[4253/DT64/09] [4253/DT64/09]

ii) i) Updated Updated a number of deeds in relation to the payment of stamp duty as identified in paragraph 2.8 of the in vestigation report dated 2008, November 6 and in par ticular: Allowed Allowed a deficit of to to occur on the client count ac as of the to due was accounting deficit which date, the of existence client ledger debit balances in breach of regulation 7 of the Regulations Accounts

SA 2010 no 44 In the matter of of Cregg, 1954 to 2008 Solicitors Acts matter of the olicitors DisciplinarySolicitors T IrelandLaw Society of as provided 17 of the 23 (as amended by section for in section Act 1994 Act 2002) of the Solicitors (Amendment) Solicitors (Amendment) Reports of Solicitors Disciplinary of the outcomes T b) a) On 27 April 2010, the Solicitors Solicitors the 2010, April 27 On the found Tribunal Disciplinary respondent solicitor guilty of misconduct in his practice as a he: that in solicitor Law Society of Ireland of Society Law (applicant) Fitzpatrick Hilary solicitor) (respondent In In the matter of Hilary Fit zpatrick, a solicitor carrying as HL Fitzpatrick on practice & Company, Solicitors, Church at Street, Ballyconnell, Co Cavan, and in the matter of the 2008 ------3,224 3,224 of cli 21,500 21,500 of cli 5,200 of clients’ clients’ of 5,200 clients’ of 3,000 € € € € 14,000 payable to the Rev to the payable 14,000 2,178. able able to his wife, which was ac joint their in lodged then Ireland. of Bank in count purchase purchase a bank draft pay On On 3 July 2006, client issued account a cheque for € propriated propriated money, which he then put account. card credit his into propriated ents’ which, money, accord ing to the bank, was lodged to an account in AIB. in name his own ble underpayment of CGT in of the case a client named arising from an in alteration the computation by the so licitor. In February 2006, misap propriated ents’ money, which he used to pay into his accounts in GE Bank of Money, Ireland mortgages, and into a Bank account. loan Ireland of the benefi Deprived elderly named a of estate the of ciary deceased of her money for the three years up to when he ceased practice, having misappropriated some own his for money estate the of benefit. personal In February 2006, misap propriated money, with which he pur bank an international chased draft payable to Bank Na tionale de Paris and caused the cheque to be debited to of account ledger clients’ the a named client, as described ‘Bank of Ireland inheritance tax’. enue which Commissioners, was used with two other cli ent account cheques to pay the stamp duty and penalty on a deed relating to a pur In In February 2006, misap In September 2006, misap Caused or allowed a possi Deducted costs from estate of a the named deceased, in breach of the regulations, costs, of bill a issuing without was involved amount the and €

k) h) i) j) d) e) f) g)

------Solicitors Solicitors Acts 31,900 31,900 of cli [4952/DT58/09 [4952/DT58/09 6,000 6,000 of clients’ € € 9,500 9,500 of money clients’ € In May 2005, misappropriat 2005, May In ed by of means a account client cheque payable to Bank of Ireland, which he used to In In April 2006, priated misappro ents’ monies to purchase a In April 2006, priated misappro monies by means of a client account cheque payable to Bank of Ireland, which draft bank a he purchase to used payable to his joint wife, their in which lodged then was Ireland. of Bank in account motorcar. deceased, deceased, without prejudice to the legal rights of whether against beneficiaries such the respondent solicitor or any other person, such sum to be distributed by the re ben the to solicitor spondent as if that concerned eficiaries assets the of part formed sum to sum that estate; said the of respond the by applied so be 31 than later not solicitor ent and 2010, December Pay Pay the whole of the costs of the applicant as taxed by a taxing master of the High Court in default of to agreed, if costs, such agree ment, be paid by not later than 31 December 2010 or, if taxed in default of agreement, to 183 be than by paid not later cer the of date the after days taxation. of tificate

In In the matter of O’Brien, Desmond solicitor, the in and Clare, Co Lahinch, Cregg, matter of the 1954 to 2008 and High Court record 2010 44SA) no Ireland of Society Law (applicant) O’Brien Desmond solicitor) (respondent Solicitors the 2010, April 27 On the found Tribunal Disciplinary respondent solicitor guilty of misconduct in his practice as a he: that in solicitor c) a) b) c) ------Solici [4403/

10,000 as part part as 10,000 € Failed Failed to furnish reports progress to the requested Society, by as letters 8 dated May 2001, 17 December 2001 and 6 March 2002 in a all. at or manner timely censured, stand Do of a sum Pay Failed to keep his clients fully fully clients his keep to Failed informed, Failed to reply to corre restitution to the beneficiar Failed Failed to take the necessary steps to secure title to apartment the acquired by an time a in client named other manner, ly Failed to take the necessary steps to provide title to the named purchaser of the site agreed to be transferred to manner, timely a in him interests the protect to Failed clients, his of spondence from the Society in a timely manner or at all, dated letters particular in and 7 December 2000, 17 Janu ary 2001, 29 January 2001, 11 April 2001, 6 June 2001, 16 June 2001, 28 June 2001, 17 27 9 2001, July 2001, July December 2001, 6 2002, March 21 March 2002, 2002, April 19 ies of the estate of a named Failed Failed to agreement implement the made named by client to his apartment back to sell a named manner, her timely a in purchaser

tors tors Acts 1954 to 2002 The The tribunal ordered that the solicitor: respondent g) a) b) e) f) b) c) d) a) In In the matter Kearns, a solicitor of 1 of Devon Martin Place, The J Crescent, Galway, of and in the the matter Ireland of Society Law (applicant) Kearns J Martin solicitor) (respondent On 14 May the 2010, Solicitors the found Tribunal Disciplinary respondent solicitor guilty of misconduct in his practice as a he: that in solicitor DT366/03] DT366/03] ------12,000 12,000 to the € Solicitors Solicitors Acts 1954 to [8415/DT81/05] Pay Pay the whole of the costs of the applicant as taxed by a taxing master of the High Court in default of agree duct, duct, precluded the vendor’s solicitor from with his complying undertaking to institution. lending a censured, stand Do Pay a sum of ment. That That he, through his con That he paid the proceeds referred to at notwithstanding written (b) in above, and fund, compensation That That he communicated di solicitor’s another with rectly that through of instead client solicitor, client’s of he That the paid proceeds the sale of property directly to the vendor instead of the solicitor, vendor’s structions from the vendor’s solicitor on closing and con tained in a letter dated July 14 2004 that all documen tation furnished to be held in trust pending the receipt by the vendor’s solicitor of the balance of the purchase money, Pay Pay of the whole of the costs to Ireland, of Society Law the of master taxing a by taxed be the High Court in of default agreement.

www.lawsocietygazette.ie The The tribunal, after 33 adjourn ments, on 11 May 2010, ordered ordered 2010, May 11 on ments, solicitor: respondent the that In In the matter of Michael practis solicitor B a O’Donnell, ing as Michael B O’Donnell, Solicitor, at Rathkeale, Co Limerick, and in the matter of the 2002 Ireland of Society Law (applicant) O’Donnell B Michael solicitor) (respondent On 11 May the 2006, Solicitors the found Tribunal Disciplinary respondent solicitor guilty of misconduct in his practice as a follows: as solicitor, c) a) b) d) c) a) b) c) aug/sept 2010 aug/sept Gazette Society Law briefing 60 briefing 61 - - - - 13,250 13,250 € G

www.lawsocietygazette.ie 6,000 6,000 to a bank in France, 3,500 into his credit card 3,750 was lodged into a On On 22 September misappropriated 2006, of clients’ money, which he used to make a payment of € € account, and the balance of € joint account in his and his name. wife’s Caused the bookkeeper/ac countant to make false and misleading entries in account. of books the that that the solicitor acted for client in the first-named the deceased. named a of estate

The The tribunal that the matter be sent forward recommended to the President of the Court High and, on 14 Court High June the of President 2010, the of name the that an order made the respondent solicitor shall be struck from the Roll of So licitors and that the Law Soci ety do recover the costs of the proceedings before the High Court and the costs of the pro ceedings before the Solicitors as against Tribunal Disciplinary the respondent when taxed or ascertained. y) z) ------aug/sept 2010 aug/sept Gazette Society Law 5,000 of clients’ clients’ of 5,000 clients’ of 5,000 € € 4,800 of clients’ money, money, of clients’ 4,800 € 15,700 payable to a named payable 15,700 In In February 2008, misap propriated money, which he lodged to account. card credit his In misappropriat July 2006, ed credit his to lodged he which account. card In September 2005, misap propriated money, which he lodged to account. card credit his On 17 August 2005, issued a client account cheque for € client. The returned paid cheque shows that it endorsed on was the back with the name of a person bear as ing the the same surname named client. The tor solici caused the cheque to be estate the to debited wrongly ledger clients’ the in account of a named client, described in the books as a named de ceased’s bequest, although there was no such benefici books The estate. that in ary of account, however, show money, which he which paid into a money, of Bank in account mortgage Ireland held in his own and names. wife’s his

u) v) w) x) ------2,727.50 2,727.50 4,250 4,250 of € € [email protected] 283.22 283.22 to a 700 of clients’ clients’ of 700 € 417 417 of client’s € € 2,000 2,000 of clients’ € be qualified or have successfully passed the PPC II course; have a high level of Spanish (fluency desirable); and cover his/her own expenses other than accommodation, main meals and flights. accommodation and main meals provided. Deadline for applications: Friday, 3 September 2010. Deadline for applications: Friday, Madrid (Spain) 665 665 to a named plant hire family’s his pay to 2,727.50 ates must: Candidates • • • Misappropriated Misappropriated client’s money, which lodged he into his credit card 2008. March in account In March 2008, misappro priated On 17 November 2006, mis 2006, November 17 On In February 2007, misap In In February 2006, misap propriated money to pay his car wife’s insurance. In February € 2006, paid company and named refuse and recycling company. These payments were debited to the client ledger account of a noth named was there and deceased sup to file client’s that in ing payments. the port appropriated bill. gas his pay to money money of clients’ propriated € VHI bill. The was as misappropriated part clients’ of amount larger a of of which balance the money, was as misappropriated part lading. and teeming of money money to pay his electricity bill.

his/her knowledge of law, language and legal skills. language and legal his/her knowledge of law, s) t) q) r) o) p) ctober – 16 December, 16 October – 16 December, at seminars organised by the Madrid Bar. Returnat seminars organised flights to Madrid, by the Madrid Bar. - - - - Exchange Programme for Lawyers 11,141, 11,141, € 663 663 of clients’ o apply for this programme, please forward your CV and a covering letter (explaining your interest in this programme) to: T € The programme comprises two-months of work experience in a legal firm in Madrid and attendance OrganisedMadrid Bar and the Law Society of Ireland, by the this programme provides a unique professionalMadrid. and cultural experience for an Irish solicitor or post-PPC II trainee solicitor in The successful candidate will benefit from working in a different (civil law) jurisdiction, expanding 3,684, 3,684, which he caused In In February 2006, misap propriated which, more than 18 months months 18 than more which, on earlier, 16 January 2005, from drawn had solicitor the a named client’s client ac count by means of a client account cheque payable to ‘Allied Irish Banks for Rev solicitor the which and enue’ caused to be debited to the clients’ ledger account of a client. named The The third part of the stamp named a on penalty and duty deed he paid with an client’s AIB bank draft for tioned named client’s ledger tioned named client’s account. Paid the second part of the stamp duty and penalty on a named client’s deed with a client account cheque for € to be debited to the client’s ledger account of another named client and which he the in described be to caused ‘Revenue as account of books CGT’. Commissioners chase by chase a that client named was in completed July 2004. He caused the cheque to be debited to the aforemen

n) m) l) ------provisions utside the thresholds the utside the the market where the contract goods are resold. Respondents to the consultation were par ticularly concerned with this and the impact it would have where the geographic market shares of retailers are are narrow consumers that (considering to unlikely long travel distances to shop). However, such con cerns are now by addressed the it that is the provision amended share on the market purchaser’s on which it purchases – as op counts. that – resells to posed O In relation to parties both or vertical one where ments agree has a market share higher than 30%, there is no presumption is that by the caught agreement article 101(1) or that it fails to satisfy the conditions of article agree the that provided 101(3), ment does not contain restric tions of competition by object, in particular hardcore restric tions. Outside the scope of the block exemption, it is relevant to examine whether, in the in dividual case, the falls within agreement the scope of article 101(1) and, if so, whether the conditions of article 101(3) are satisfied. minimis De As before, the guidelines pro vide that agreements that are not capable of appreciably af fecting trade between member states, or capable of apprecia bly restricting competition by object or effect, are not caught by article 101(1). the However, ------Under the former regulation, regulation, former the Under The market shares to be big retailers and the evolution of of evolution the and retailers big online sales. The 2010 regula tion contains some changes, as sig most The guidelines. the do 30% the that is these of nificant ap now threshold share market verti the to parties both to plies agreement. cal it was necessary only to ensure that market share the supplier’s did not exceed 30% in order to avail of the exemption (except agreements, supply exclusive for where the purchaser’s could not exceed 30%). share Under the 2010 regulation, parties to a vertical agreement will only enjoy the benefit of the block exemption if each of their re market shares does spective not inevitably will This 30%. exceed limit the scope of the block ex emption. taken into account are, insofar as the supplier is the on market relevant which it concerned, sells the contract goods or ser vices and, insofar as the buyer is concerned, the market which it purchases the contract on goods or services. The latter, as stipulated in article 3 of the 2010 regulation, represents a welcome development, when initial was what with compared upon consulted and proposed ly by the European Commission. The original proposal was that the market share held by each to the party of undertakings the agreement should not mar relevant the exceed of any on 30% kets affected by the agreement. For the buyer, this referred to ------arket share threshold share arket petition petition within the of article meaning 101 and appreciably affecting trade between mem ber states. The term ‘vertical’ implies that is the entered into agreement between non- competing undertakings, that is, operating at different levels of the production or distribu tion chain. Competition policy takes a much more benign ap proach to vertical agreements than to horizontal agreements, that is, between agreements di rect competitors. With vertical of the the activities agreements, the – complementary are parties product of one is the input for the other. They can often a to leading by be pro-competitive, and transaction the in reduction distribution costs of the parties and to an optimisation of their sales and generally concerns Competition investment levels. only arise where there is insuf ficient competition due to one or both parties having market verti of effects Negative power. foreclosure include restraints cal of other suppliers or buyers by entry. to barriers raising M The 2010 regulation was in troduced following a period of On consultation. going to con sultation, the European Com mission noted that the existing rules were working well overall and should not be fundamen tally modified. The main mar ket it developments noted were the increased buyer power of certed practices that are capable capable are that practices certed of appreciably restricting com ------rules on vertical vertical on rules News from EU and International the Affairs Committee Director Society of Ireland of Education, Law Edited by TP Kennedy, Treaty on Treaty . . The ap EU to of categories legal eur pean pean Commission EC EC Treaty (TFEU), formerly article article formerly (TFEU), ew ew he he Euro regula revised a adopted has The The 2010 regulation, like The The 2010 regulation applies T 81(1) 81(1) of the its its predecessor, is in the form of a block exemption. A block exemption provides harbour, for a the category safe agreement to of which it relates, from the prohibition of anti- competitive agreements set out of the 101(1) in article the Functioning of the European Union tion on the competition rules for for rules competition the on tion servic and goods of distribution es agreements. – is, that vertical a pre for provides it essence, In sumption of legality in relation to conclud vertical agreements have that companies between ed limited market power – that is, a market share not no contain they exceeding provided – 30% of restrictions hardcore compe tition. Commission Regulation (EU) No 330/2010 on the ap of 101(3) the of article plication Treaty on the Functioning of the Union European vertical agreements and con (the 2010 regu practices certed was lation) on adopted 20 April 1 on force into entered and 2010 It June. will be 2022, until valid with a and The regulation one-year 2010 phase. transitional accompanying guidelines re place Council Regulation (EC) No 1215/1999, which expired on 31 May 2010 along with its guidelines. to vertical agreements and to con agreements vertical plication of a block exemption is is exemption block a of plication time. in limited N agreements enter into force into enter agreements www.lawsocietygazette.ie aug/sept 2010 aug/sept Gazette Society Law briefing 62 briefing 63 ------www.lawsocietygazette.ie The The first hardcore restric The second hardcore restric hardcore The second As As before, the commission ardcore restrictions ardcore H Article 4 of the 2010 regula tion tion contains a list of hardcore that restrictions lead to the ex clusion of the ap of scope the from whole agreement vertical regulation. 2010 the of plication hardcore a such of inclusion The in a results presump restriction tion that the agreement within article falls 101(1). It is also that presumed the is agreement unlikely to fulfil the conditions 101(3). article of tion not permitted is resale price price resale is permitted not tion (RPM). As maintenance before, whereas maximum and recom mended resale prices are fixed or al lowed, resale minimum not. are prices tion relates to territorial protec to territorial relates tion tion. The restriction of passive cus to sales unsolicited) is, (that of outside tomers an exclusively permit not is territory allocated ted, although it is permitted to sales. active restrict of restriction the that siders con is a restric on internet the sales tion of passive sales and thus a hardcore restriction. However, the whereas guidelines previous ------aug/sept 2010 aug/sept Gazette Society Law The The guidelines, referring to takings, takings, as opposed to with Each of the un a consumer. final the for operate, must dertakings of purposes at the agreement, a of production the level different exam for – chain distribution or ple, one undertaking produces a raw material that the as uses or an input, undertaking other the pur goods the resells buyer chased. Finally, the agreement relate must practice concerted or to the conditions under which or sell purchase, may parties the resell certain goods or services. Thus, an obligation preventing parties from carrying out inde pendent research and develop covered. be not would ment expand usefully recent case law, re will commission the what on gard as acquiescence, including tacit acquiescence, of the other party in the context of vertical if For example, the agreements. clauses of the drawn agreement up in advance provide for, or authorise a party to adopt sub sequently, a specific unilateral policy that will be binding on the other party, other the the by policy that of cence acquies party can be established on the thereof. basis ------Vertical agreements take on a new significance when you’re left hanging around gency cope of the 2010 regulation 2010 the of cope A The guidelines, elaborate as on the before, characteris The 2010 regulation applies to prac and concerted agreements tics tics of a genuine agency agree ment, which will be such as to bring these agreements outside the scope of The 101(1). article determining factor in defining an agency agreement for application the of article 101(1) is risk or commercial the financial borne by the agent. The agree ment will be qualified agency as agreement if the an agent only or bears any, bear not does to in risks relation insignificant, the contracts concluded and/ or negotiated on behalf of the principal in relation to market- specific investments for field of that activity and in relation to other activities required by the principal to be undertaken on the same product market. Note that the rather nebulous sounding “other activities” is a guidelines. the to addition new S tices and not to unilateral con the that necessary also is It duct. practice concerted or agreement is between two or more under ------100 million were except were 100 million € Whereas Whereas before, non-recip greements between between greements market-share threshold for each each for threshold market-share individual undertaking is now the to opposed as 15%, to raised previous 10%. The guidelines agreements vertical that provide entered into by non-competing undertakings whose individual market share on the market relevant does not exceed 15% are generally fall considered outside the scope of article to apply may 101(1) Article 101(1). where threshold 15% the below there are hardcore restrictions, is that there an provided appre A competitors As before, the exemption does not apply to ments vertical entered agree- into competing undertakings. How- between ever, it does apply to non-reciprocal certain Non-reciprocal agreements. means while one party carries that out an activity on behalf of party that another operates at the same level, it is not reciprocated (for example, a manufacturer that distributes on behalf of another manufacturer, without the lat- ter also distributing on behalf of the former). Article 2(4) of one is remove to as so modified the situations in which a non- reciprocal agreement between competitors is exempted. ciable ciable effect on trade between member states and on compe tition. Vertical agreements be tween small and medium-sized (SMEs) undertakings are rarely capable of affecting appreciably or states, member between trade of appreciably restricting com petition within the meaning of 101(1). article rocal vertical agreements where agreements rocal vertical did not ex turnover the buyer’s ceed ed, this is no longer the case. in Now, order for vertical non- reciprocal agreements between to from the benefit competitors it block exemption, is necessary agreement the to parties the that upstream the on compete not do market. ------G

In In the former guidelines, Finally, it should be noted ransitional period ransitional Rosemary O’Loughlin is a member O’Loughlin Rosemary Affairs International and EU the of Committee. to examine whether it fulfils the it fulfils whether to examine for under conditions exemption 101(3). article there was a section setting out rules for the ‘general evaluation of vertical restraints’, indicat ing, for example, that vertical restraints generally only cause if is there concerns competition insufficient inter-brand compe re been has section This tition. The guidelines. the from moved and final part of subsequent the guidelines relating to an analy sis of the types of verti specific cal restraints contains two new sections dealing with up-front access payments and category agreements. management T Although the 2010 regulation entered into force on 1 2010, there is a June transitional pe- riod until 31 May 2011, where- by agreements already in force on 31 May 2010, and satisfy- ing the criteria for exemption under the former regulation, are not subject to the prohibi- tion under article 101(1), even if they do not satisfy the condi- tions for exemption under the 2010 regulation. that the Competition Author ity’s rules on vertical restraints agreements vertical to (applying that have an effect on competi opposed as state, the within tion to the common market), in the notice, and declaration a of form which were due to on expire 31 May 2010, have been amended to extend their validity until 30 November 2010. The petition Com Authority has issued a consultation paper proposing to amend the line declaration with in the 2010 regulation to lapse. notice the to and allow Submissions are invited on the paper and details are available on the Authority’s Competition website. ------ther excluded restrictions excluded ther nalysis methodology nalysis tion to new brands or the sale of of sale the or brands new to tion mar new a on brand existing an ket, restrictions of passive sales by into other distributors a ter distributor, exclusive an of ritory the allow to necessary are which substantial recoup to distributor investments, generally fall out side the scope of article 101(1) during the first two distribution, years. selective to In relation while the restriction on cross- supplies between distributors is listed as appointed a hard core restriction, restrictions on active sales by wholesalers to in retailers appointed other ter conditions the fulfil may ritories of article 101(3) are in wholesalers appointed where situations promotional in invest to obliged territories. their in activities O Article 5, as before, a contains list of excluded restrictions, which – unlike the restrictions hardcore contained in ticle 4 – are severable from ar the These agreement. include non- compete obligations exceeding five years; post-contract non- compete restrictions, except in limited circumstances; and re strictions on selective distribu the selling them preventing tors brands of particular competing suppliers. A out set before, as guidelines, The assessing to approach four-step a First, the un restraints. vertical need to dertakings the establish and supplier the of shares market they where market the on buyer respectively sell and purchase Secondly, products. contract the is the where 30% not threshold exceeded by either party, then – provided there are no hard core restrictions or restrictions – excluded the agreement is exempted. If the market-share threshold is exceeded, then the third step would be to whether the assess vertical agreement falls within article 101(1). Fi is if caught the agreement nally, by article 101(1), it is necessary ------. . The within within It It will also be permitted to The third hardcore restric over, over, a supplier may quality require standards for the of the use internet site to resell its distrib its that require or goods utors have one or more brick- condition a as shops and-mortar for becoming a member of its system. distribution restrict sales by members of a selective distribution system to distributors unauthorised plier to operate that system ted by sales to members restrict system distribution selective a of op distributors unauthorised to erating anywhere. Now a sup plier can restrict an appointed distributor in a selective tribution dis system from selling, at any level of trade, to unau thorised distributors located in any territory where the system is currently operated, or where the supplier does not yet the sell contract products (referred to as ‘the territory reserved by the supplier to system’). Thus, operate in areas that where sales are made by the supplier, though not through a selective distribution system, sales members of the distri selective by bution system to unauthorised distributors must be allowed if of. availed be to is exemption the tion remains unchanged concerns and the restriction of ac users to end sales or passive tive distri selective a of members by bution system operating at the retail level of trade. The final two hardcore restrictions relate of cross-supplies to a restriction between selective distributors and a relating to restriction the they and of components, supply remain unchanged. The guide lines contain a new section on hardcore restrictions that may fall outside the scope of article 101(1) or may fulfil the condi tions of article 101(3). In rela selling into that territory. More territory. that into selling the territory reserved by the sup wording in italics represents an important change and did not regulation. former the in appear it Previously, had been permit ------tomers tomers located in territory another from viewing website, its or shall automati customers, its re-route cally An agreement whereby distributor a shall terminate consumers’ over transactions credit- their once internet the card data reveal an terri address distributor’s the outside tory, distribu a that agreement An tor shall limit its proportion the over made sales overall of this does – internet however, not exclude the supplier re quiring, without limiting the distributor, the of sales online that the buyer sells at least a certain absolute (in amount value or volume) of the products offline to an ensure efficient operation of its brick-and-mortar shop (the principle), ‘brick-and-click’ An agreement that the dis tributor shall pay a higher price for products intended to be resold by the distribu tor online than for products offline. resold be to intended An An agreement whereby shall prevent distributor cus a

• • • some out set also guidelines The examples of what are permis dispensed with inter dispensed discussing net sales in now one paragraph, the commission has included much more detail in to relation to amount not will and will what online on restrictions acceptable sales. In aiming to strike a bal consum allowing ance between ers to online purchase and pre the by resellers, free-riding vent concrete some out set guidelines examples of hardcore : (online) selling restric passive of tions • sible restrictions, stating, example, for that the commission considers online advertisement specifically addressed to cer tain customers as a form of ac tive selling to those customers. For example, paying a search engine or online advertisement to advertisements have provider to in users specifically displayed a particular territory is active www.lawsocietygazette.ie aug/sept 2010 aug/sept Gazette Society Law briefing 64 briefing 65 ------oorter hemie hemie armful armful hilippo. hilippo. P C P he he court he he matter T T uid- Z he cadmium he cadmium J J de the ingredi T G G

upreme upreme Court,

S he he fertiliser was T hilippo. hilippo. P . . Both parties agreed , , 16 July 2009. Zuid- A hus, hus, this cannot be any w Society Bier T www.lawsocietygazette.ie he he case turned on whether T Case Case C-189/08, hilippo hilippo had all the raw materi hey hey disputed the place where he court sought to apply the deci the apply to sought court he tion can choose either jurisdiction jurisdiction either choose can tion sue. to which in BV v Philippo’s Mineralenfab riek riek NV/S is Chemie a fertiliser Dutch man ufacturer, which purchased two ingre fertiliser a of consignments dient from Dutch another compa consignments these ordered It ny. company, Belgian a from P als to manufacture the product except for zinc sulphate, which it purchased from in the Netherlands. in Netherlands. the too was sulphate zinc the of level high and thus the fertiliser made from or it of was limit unsuitable was appealed through the Dutch courts to the which referred the matter to the CJ. “the place case this in where meant occurred” the event h was product defective the whether manufactured and delivered or where the damage occurred fol ed use. Zuid-Chemie argued that, that, argued Zuid-Chemie use. ed as a result, it had suffered loss. proceed brought it basis, this On ings against lowing use of the product for the intended. was it which for purpose T sion in that Belgium, where ent was made, is the place of the the of place the is made, was ent event giving rise to the damage. T the damage occurred. where place “the is this that held defec by the caused damage the tive product actually manifests itself”. other than factoryZuid-Chemie’s de the where Netherlands, the in fective ingredient was processed into fertiliser. substantially damaged, and this damage the beyond went damage ingredient. the to ------, olor olor Brus C olor olor Drack aug/sept 2010 aug/sept Gazette Society Law C he he flight was his his provides erman erman court T T G . . he he reason for the he he T T he he only places with a T erman court. It referred referred It court. erman he he CJ held that similar T G , , the court where that, held 250 compensation to which which to compensation 250 01 284 8484 284 01 confidential and The service is completely independent of the La lly tota he he person claiming compensa tional tional who booked a flight from Munich to Vilnius. claim to wanted he and cancelled € the he was entitled under regulation 261/2004. He started proceed a in ings the matter to the Court of Justice, Justice, of Court the to matter the asking it whether had jurisdiction under article 5(1)(b) of the sels sels Regulation asked where this jurisdiction was jurisdiction this where asked per of transport air of case the in sons from one state to another where there is a claim for com pensation on foot of regulation 261/2004. rules in article 5 is the existence of a close link between the con to upon court the called and tract hear and determine the case. In the earlier case of for jurisdiction in contract for in ser contract for jurisdiction vices where “the services were provided or should provided”. have been the the court looked at the article 5 which goods, of sale the rules on provide that the state where the goods were or should have been In jurisdiction. has delivered Drack there are several places of deliv ery of goods, the place with the the between factor linking closest contract and the court having ju risdiction is that of the principal delivery. rules should be applied to services of con provision the for tracts where provision of the service is mem single one in out carried not ber state. transportation air an to link direct contract are those of the depar aircraft. the of arrival the and ture It is impossible to find that one con a has closer places of these with nection and the so contract, both must be considered as the services. the of provision of place T ------ir ir he he he A T T he he in T ue erman erman na g G Rehder Rehder v his his is one of T , , 9 July 2009. ea he he rights of the de T orporation C ngland ngland as he had not been Case Case C-204/08, oll E ambazzi ambazzi opposed this on pub his must follow a comprehensive comprehensive a follow must his G lic-policy grounds, claiming that he had been denied a fair in trial allowed to defend himself. courtItalian made a to reference the Court of Justice. It held that recourse to the public-policy de fence is only permissible where recognition or enforcement of a judgment delivered in member state would another contravene to an unacceptable degree the legal order of the state is which enforcement is sought. fringement must be a manifest breach of a rule of law regarded as in essential the legal order of the state in which enforcement or is of sought a recognised right as being within that fundamental legal order. fence occupy a prominent posi tion in the organisation and con duct of a fair trial. the fundamental rights deriving from national constitutions and from international treaties. Fun damental rights may be subject to proportionate restrictions. enforcing court can take into ac count, with regard to article 34, the fact that the court of origin ruled on the applicant’s claims without hearing the defendant, who entered an appearance but was excluded from the proceed he that basis the on order by ings with the had obliga not complied tions imposed by an order made earlier in the same proceedings. T assessment of the proceedings and, in light of all stances, it must the appear that the circum exclusion measure constituted a manifest and disproportionate infringement of the defendant’s heard. be to right Baltic Mr Rehder was a c

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G Rome Rome Rome nc I t perations perations l he he parties O T Lugano Lugano Gambazzi Gambazzi v ntercontainer ntercontainer I u anada anada C t witzerland, witzerland, but the F) F) v Balkenende c S ermany. ermany. IC G . . It the ap considered relating to contracts wiss wiss lawyer resident in uropean in E developments Recent law hrysler S ribunal ribunal Federal held that C ons on public-policy grounds. T nglish judgment could not be be not could judgment nglish ontra E The Consult a Colleague helpline is available to assist every the profession member of with any problem, whether personal or professional c , 6 October 2009, , the CJ 2009, gave 6 October litigation c osthuizen osthuizen BV & Mic witzerland. witzerland. Freezing orders and wiss wiss onvention onvention pril pril 2009. Hundreds of millions he he claimants then tried to have he court held that the law of the the of law the court that he held nterfrigo ( T the judgment enforced in Italy. A of dollars had been fraudulently obtained from Canadian sion funds and pen trustees. Daim ler Chrysler and proceedings CIBC in brought London against a number of those alleged to be involved in the fraudulent trans actions. One of these was bazzi, a S asset-disclosure fully not did He orders him. against made were comply with the and latter, a de fault judgment was given against him, under which he had to pay damages. financial very large enforce to brought were ceedings the order in vention Case Case C-394/07, Daimler S the enforced under the In In Case 133/08, I C C by to freight a for freight contract Nether the between traffic rail by O BV its first decision on the the in rules the of plication lands and had not chosen a governing law. T state in which the carrier has his principal place of business partywhen charter a to will apply only it involves not only making avail able a means of transport also the actual but transportation of goods. the ------at Application Application and in the Landlord Landlord and Two double 280,000 €280,000 for Landlord Landlord and Ten el/txt: 086 418 7668 el/txt: 086 418 School. Apartment for sale or rent Blackhall View, only 100m from Law quick sale or rent €1,100 pm. Modern, secure constructed 2004. development bedrooms, one bath, dining/living kitchen/ area. nished. T Fully fur- title deeds title 2) 1978 (No Act Rents) (Ground ant and in the matter of the land and premises known as nos Rathmines 133, Lower 141 135, and 139 137, 6: an ap Dublin Rathmines, Road, plication by Yvonne Fogarty and Rees Miriam Take notice that any person having a superior interest in the the property: piece or plot of following ground Rathmines, Road, Rathmines fronting 137, 135, as 133, nos known now and Road, 139 and Rathmines 141 Lower in the parish of St Peter, barony Upper of Cross and city of Dublin, be ing by the land demised a dated lease Rath the between made 1934 May 22 mines Company Amusements Limit Fearon Patrick and part one the of ed of the other part for the term of 236 matter matter of the [1,922] Notice re lost received been has lease: D2010LR047143H in the Author Property Registration ity for the cancellation of a on burden folio DN174423F relating to dat lease a 56 of 1 Dublin Street, Moore ed 3 December 1979 made between Martina Investments Limited Riva Harris of the one part and Dol and of phin Discs Limited the other part, was Street Moore 56 said the whereby demised to the said Dolphin Limited for a Discs term of 33 years from 1 December 1979 subject as therein. The said lease cannot be located and person Any lost. been have to stated is knowledge having or lease the holding regard have should whereabouts its of and application this of existence the to lease. the of holder the upon effect its Unless notification is received from any person or body having of custody the said lease within 28 days from the date of of publication this notice, the Property Registration Authority application. said the with proceed will the state should notification such Any being is lease the which upon grounds held. 2010 August 27 Date: of ti examiner chief Doyle, Paul Signed: D7 Street, Chancery PRA, tles, In the matter of the Acts Tenant 1967-2005 - - -

The Patrick Unit 4 late of 35 late el: 087 Galway; T This is a rained typ- T Park, This is a long- by hard-working and ellaneous c raineeship with solicitor’s Solicitor(s) sought to invest in medium-sized practice, Co Clare, with a view to future partnership ownership. and established practice with a large and loyal client base providing a full range of legal services. principal of the firm anticipates retirement years and desires a reduction within in workload in the interim. six/seven partnership opportunity for one or two solicitors to take busy over practice that has the scope a for further expansion. Replies in strictest confidence to: O’Hara, Fiducial, 23H Liosban Business email: [email protected] T firm sought highly motivated with law all graduate FE1 and exams ranked completed in the law top class in 10% 2007. of ist with excellent administrative and client relations in experience my current position. 906 4528 or 08/10/11 reply to box no mis [1,922] Date Date of death: 24 April 2010. Would any person having knowledge of the whereabouts of a will above-mentioned made by deceased, the 1993, August 25 dated a and will particular in Liston please John contact McCarthy, House, Argyle Solicitors, & Company, 103/105 Morehampton Road, Don nybrook, Dublin 4; tel: 01 668 5557, [email protected] email: Redman, Mary Evelyn (deceased), late of person any 22 Oakdene, Would Ballinclea Road, Dublin. Co Killiney, by executed will a of knowledge having the above-named deceased, who died on 8 July 2010, please contact Mason Hayes & Curran Bank House, Solicitors, Barrow South Street, Dublin 4, tel: 01 614 5000, fax: 01 614 5001, NL/ADM ref: [email protected]; email: (deceased), Patrick Walsh, Lourdes Road, Maryland, Dublin any 8, Would 2010. May 21 on died who where the of knowledge having person of abouts any will made by the above- named deceased please contact Aidan T Stapleton & Co, Solicitors, Parlia ment 38 Buildings, Street, Parliament 679 01 fax: 7939, 679 01 tel: 2; Dublin [email protected] email: 2494, ------late of Main Street, retired nurse, late of 8 Aravon Court, Dublin 16. Would any having person 16. Dublin Would knowledge of a will executed by the above-named deceased, who died on PD contact please 2009, December 12 John Sir 77 Solicitors, Co, & Gardiner tel: 9; DX 2; Dublin Quay, Rogerson’s dg@pdgsolicitors. email: 6350, 676 01 com Kerr, Ann (deceased), Doneraile, Co Cork. person having the knowledge of Would the any of whereabouts any will made by the above-named deceased, who died on 27 June 2010, please contact Bowen Sixmi Main Street, & Co, Solicitors, Co lebridge, Clare; tel: 061 713 767, fax: 061 713 642, email: info@legal supportservices.ie McCarthy, Prof Michael (deceased), Joseph person any Would Wicklow. Co Bray, having knowledge of a will executed by the above-named deceased, who contact on died please 1 2010, March McKenna Murphy Solicitors, Stone tel: Dublin; Co Shankill, Close, bridge 01 01 fax: email: 272 272 1344, 1353, mckennamurphysolicitors@eircom. net McNamee, Patrick late of 62 Road, Tallaght, Homelawn (deceased), Dublin 24. Would any person hav ing knowledge of a will executed by who the deceased, died above-named on 7 Brian April contact 2009, please O’Brien Solicitors, 129 Capel Build ing, Abbey, Dublin Mary’s 7; tel: 01 bo email: 8650, 878 01 fax: 8649, 878 [email protected] Emmet (other Michael Monahon, (deceased), Monahan) Emmett wise Monaghan. Co Inniskeen, Ballintra, of any Would person having knowledge de above-named the by made will a of who ceased, died on 29 2002, August please G contact Jones & Co, Solici Co Carrickmacross, Street, Main tors, 042 fax: 1822, 966 042 tel: Monaghan; [email protected] email: 1464, 966 O’Neill, Annie (deceased), St Anne’s Ward, St Vincent’s Hos pital, Athy, Co Kildare and formerly of Co Ballylinan, Maisonettes, Laois. Would any solicitor holding or hav ing of knowledge a will made by the above-named deceased, who died on 20 March 2010, please contact HG & Donnelly 5 Sons, Solicitors, Duke Street, Athy, Co Kildare; reference RP/ONE004-1 Poyser, Honoria May (otherwise Noni) (deceased), late late of 146 Ard Na Mara, Malahide, in the county of Dublin and (nurs ing ing home) Tara Winthrop Nursing Home, Airside, Swords, Co Dublin. ------late late of late of 134 late of Ballyvocran (Boolyna Ballyvocran of late late of 9 Glenview Drive, wills www.lawsocietygazette.ie Hyde Hyde Park Mews, Thorndale, Dub rickmacross, Co Monaghan, who died died who Monaghan, Co rickmacross, on 15 June 1999. any Would person whereabouts the of knowledge having de above-named the by made will a of ceased please contact Thomas Sheri dan of T Sheridan & 966 042 Co, tel: Solicitors, Cavan; Co Bailieborough, [email protected] email: 5377, Docherty, Patrick (deceased), of 93 formerly of 1SW, Scotland, PA15 44 Kilblain Court, Kelso Greenock, Court, Greenock, Crescent, 57 and Cardross Greenock, Scotland and who may have been occasionally resident in Gweedore, Co Donegal. any person Would having knowledge of of the a whereabouts will made by who deceased, the died above-named on 24 April 2010, Na please contact nette Cunningham, Blair & Bryden Solicitors, 4 Cathcart Square, Gree 01475 tel: 1 BS; PA15 Scotland, nock, 420 558 Doolan, Fr Billy/Bill) William (deceased), (otherwise lin Hill, Cork, having also worked in Killeady, city, Limerick of parishes the Kilfinan, Askeaton and Co Kilcolman, Limerick, who died on hav person any 13 Would 2009. cember De ing of knowledge a will made by the please contact deceased above-named Ursula 500 Nodwell, 021 tel: Cork; Donegans Quay, Union 6 Solici tors, 5333, fax: 021 432 0157, email: uno [email protected] Doyle, Charles (Charlie) (de deceased, by the ecuted above-named who died on 14 January 2010, please contact Frances Cunneen of Dermot McNamara & Co, Solicitors, DX Main Co 213001 Rush, Dublin; Street, Rush; tel: 01 843 8766, fax: 01 8940, 843 email: frances@dermotmcna mara.ie Feuerstak, late Ronald of 7 Ludford Drive, Ballinteer, (deceased), [1,922] John Chambers, (deceased), PO, Corduff Car Corvalley, Shanco, ceased), ceased), Hospital, Co Limerick. Would ex a of will any knowledge having person voughran) Bunclody, Enniscorthy, Co Enniscorthy, Bunclody, voughran) Wexford. Would any person having knowledge of a will executed by the above-named deceased, who died on 4 August 2010, please contact John A Sinnott & Co, Solicitors, Market Square, Enniscorthy, Co tel: 053 923 Wexford; 3111, fax: 053 923 3402, [email protected] email: Fannen, Edward Patrick (de aug/sept 2010 aug/sept Gazette Society Law

brprofiefeingssional notices 66 brprofiefeingssional notices 67 ------: Gazette 33 extra € Cheques Cheques should www.lawsocietygazette.ie

office on tel: 01 672 672 01 tel: on office . Take Take notice that Ann Byrne in In default of any such notice be ice Frances ice Le Frances Blond of the first part and Harry Arthur Gustavus St Vin cent of Burnaby the second part, and of Pratt Bruce the part other Eleanor ‘the lease’) for a (hereinafter, term of an the at 1906 1 May from years 991 sub and sterling £4.5s.0d of rent nual ject to the covenants and conditions contained. therein tends to submit an to application the county registrar Wicklow, for Courthouse, the at the Wicklow county of the of acquisition the for Wicklow Co and interest freehold all intermediate and property, aforesaid the in interests that they hold the any asserting party fee simple or any inter intermediate called are property aforesaid the in est the to title of evidence furnish to upon so to below-named the property said licitors within 21 days from the date notice. this of ing received, Ann Byrne intends to proceed with the application before 22 22 June 1906 between Elizabeth Al ation Gazette - - - c Deadline for October li

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and in the aug/sept 2010 aug/sept Gazette Society Law Landlord Landlord and €144 (incl VAT at 21%) reland ce Noti rates I Landlord Landlord and Ten of y iet c by putting a o S days days from the date of this notice and will to apply the registrar said county for such as directions may be appro priate on the basis that or persons entitled the beneficially to all person up to and including interests superior are property said the in simple fee the unascertained. and unknown 2010 August 27 Date: Signed: Diarmaid O Cork ’Cathain (solicitor Terrace, South 30 applicant), the for In the matter of the Acts Tenant 1967-1994 matter of the 2) 1978 (No Act Rents) (Ground ant of and in an the matter application by Ann Byrne and in of the premises situate at St matter Vincent’s Road, The Burnaby, Greystones, Wicklow Co an having person any that notice Take interest in the freehold estate or any of the premises interests intermediate Burn the Road, Vincent’s St at situate aby, Greystones, Co Wicklow, held under an of indenture lease made on €288 per deed (incl VAT at 21%) aw aw L - - - - - e e paid for prior to pu b rofessional Professional notice section are as follows: €144 (incl VAT at 21%) le le to your notice b a y Employment/miscellaneous – Wills – Title deeds – es es must

c • • • eptember 2010. For further information, contact the the contact information, further For 2010. eptember Highlight rates in the S Regulated by the Solicitors Regulation Authority of England and Wales e e made pa ll ll noti 15 15 4828 (fax: 01 672 4877) 01 672 (fax: 4828 b A

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land Limited of the one part and Mar and part one the of Limited land garet Rose Cronin October of 29 the from other years 99 part of term a for 1959, subject to a yearly rent of £62, of indenture under secondly, held, and be made and 1747 July 21 made lease White of tween Swithin the first part for part other the of Austin Joseph and a term of 997 years £20. of rent from yearly a 21 to subject March 1747, Michael intends Connolly, to submit an application to the county trar regis for the city of the Courthouse, Cork Washington Street, sitting at Cork, for the acquisition of the simple in interest fee the prop aforesaid erty and that any party that asserting they hold the said fee simple interest or any ev superior furnish to interest upon called in are property the said mentioned under the to title of idence within 32 days from the date of this notice. In default of any such notice being received, the applicant intends before application the with proceed to the county registrar at the end of 21

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Landlord Landlord and ublication of advertisements in this section is on a fee basis and does not represent an endorsement by the Law Society of Ireland. Publication of advertisements in this section is on a fee basis and does not represent an endorsement , , section 8, between Michael Take Take notice that Yvonne Fogarty In default of any such notice of in notice of such any In default years years from 1 January 1934, to the yearly rent subject of £100 ( should give of should notice to their interest solicitors. undersigned the an to submit intend Rees Miriam and for registrar county to the application the county of the city of interests Dublin superior for all of acquisition the par any and property, aforesaid the in Tenant (Ground Rents) Acts 1967- 1987 Connolly and the representatives of Denis L McDonnell, Mary McDonnell N and Provincial of Bank Ireland Limited and the repre White Swithin of sentatives an having person any that notice Take su any in or simple fee the in interest In In the matter of the ty asserting that they hold an ty interest asserting therein is called upon to furnish evi undersigned the to title their of dence date the from days 21 within solicitors notice. this of Fogarty Yvonne received, being terest and Miriam Rees intend to county the before proceed application the with the from days 21 of end the at registrar the to apply will and notice this of date for of the county the registrar county city of Dublin for such directions as may be on appropriate the basis that the person or entitled to all persons or any of un are beneficially the property superior above the in interests unascertained. or known 2010 August 27 Date: for (solicitors McElligott Murphy Signed: the applicant), 69 Patrick Street, Dun Dublin Co Laoghaire, known in the property interest perior as 87 Lower Glanmire Road in the city of held Cork, being the premises firstly under of indenture lease made 29 October 1959 and made between Denis L McDonnell, Mary N Mc Donnell and Provincial Bank of Ire ------and and and in the and in the Landlord Landlord and Landlord Landlord and Landlord Landlord and Ten Landlord and Tenant and Landlord Tenant Take Take notice that Teresa Bolton, being notice of such any In default in in the matter of an application by O’Reilly Joe in the any interest having Any person fee simple estate or any intermedi ate interest in all that and those the hereditaments and premises known as 71/71A Parnell Street, Dublin 1, held in comprised folio DN186738F, matter matter of the 1978 Act 2) (No Rents) (Ground prised prised in and held under of lease indenture of 11 October 1951 between Day Grahame of Sarah Elizabeth the one part and Peter other Hanlon part: the of premises 99 of demised the term a for to Hanlon Peter said the years from 29 September 1950, sub £75. of rent yearly the to ject being the person currently entitled to interest the under lessee’s the said lease, intends to apply to the county registrar of the county of Dublin for the acquisition of the freehold inter est and all intermediate interests in the and aforesaid any property, party asserting that they hold interest a in superior the aforesaid property is called upon of their to title to furnish same named within to 21 days from the the evidence date below of this notice. received, the said Bolton Teresa in tends to with proceed the application before the at Dublin county registrar the end of 21 days from the date of and for will apply this such notice di on the be as appropriate may rections basis that the person or ben persons inter to superior the entitled eficially in reversion freehold the including est, the aforesaid premises, are unknown unascertained. and 2010 August 27 Date: Signed: Taylor and Buchalter tors for the House, Greenside applicant), (solici 45/47 Cuffe Green, Street, St Stephen’s 2 Dublin In the matter of the Acts Tenant 1967-2005 matter matter of the 1978 Act Rents) 2) (No (Ground ant (as and amended) in the matter of an application by Bolton Teresa – St in Camden at 9 Lower premises Dublin of city the known premises the those and that All city in the Street Camden as 9 Lower of Dublin, being the premises com eficially entitled eficially to all superior inter simple fee the including and to up ests and unknown are property in said the unascertained. 2010 August 27 Date: & Maguire Seamus Co Signed: (solicitor Blan Street, Main 10 applicant), the for 15 Dublin chardstown, In the matter of the Acts Tenant 1967-1994 ------and in Landlord Landlord and 13.72 (£10.16). 13.72 € Landlord and Ten and Landlord In default of any such notice being being notice such any of default In Take notice Take that Joseph O’Reilly, Take notice that the applicant, Ken Ken applicant, the that notice Take being notice such of any In default ee’s interest in the said fee farm grant, grant, farm fee said the in interest ee’s county Dublin the to apply to intends of the fee for the acquisition registrar simple estate and in all intermediate and property, said in the if any terests the hold they that asserting any party fee simple or any inter intermediate est in the is property aforesaid called title of their evidence to furnish upon thereto to the under-mentioned so licitors within 21 days from the date notice. this of in the said O’Reilly Joseph received, to tends with the proceed application at the registrar county said the before end of 21 days from the date of this and notice will apply to said registrar for such as directions may be appro priate on the basis that or persons the entitled beneficially to all person up to including and interests superior are property said the in simple fee the unascertained. and unknown 2010 August 27 Date: ap the for (solicitors Fry William Signed: Place, Wilton House, Fitzwilton plicant), 2 Dublin In the matter of the the Acts Tenant 1967-2005 the of matter the 1978 Act 2) (No Rents) (Ground ant of an application in and matter the Lawford Ken by an having person any that notice Take su any in or simple fee the in interest known in the property interest perior Street, Clanbrassil 39/40/41/42 nos as Dublin 8, in the city of Dublin, be in comprised ing of part the property a fee farm grant dated 19 June 1884 Lawless Edmund) (aka Edmond from to the per subject Slevin, to Thomas of rent yearly petual intends Lawford, to submit an appli cation to the county for registrar the city of Dublin at Áras Uí Dhálaigh, 7, Dublin for Inns the Quay, acquisi tion of the fee simple interest in the and property that aforesaid any party asserting that they hold the said fee simple or interest any inter superior upon called are property said the in est of to title to evidence the furnish un der mentioned within 21 days from notice. this of date the pro to intends applicant the received, ceed with the application before the at the end of 21 days registrar county from the date of this notice and will di such for registrar said the to apply the on appropriate be may as rections basis that the person or ben persons the the Earl of Longford, the Arthur Rt Edward Baron Hon Ardilaun, the Hare and Rev Thomas Thomas Very Law. Packenham grant the to entitled person the being ------and and and in the Landlord Landlord and Landlord and Tenant and Landlord Tenant licence to members. from solicitors inclusion in the ([email protected]) law with a view to part of the country. to Jonathan Molony forward their details legal partners in the Selling or buying Selling or Interested parties can We specifically requireWe expressions interest of midlands and southeast a seven-day liquor a seven-day which is made available which is made available specialising in transport 28.61 28.61 (£22.53) created by a fee The IRHA would welcome association’s contact list association’s contact list Contact 0404 42832 Contact 0404 In In default of any such notice of € of of the freehold and all and any intermediate in property, the said interests inter an hold they that asserting party est therein is called upon to furnish ev furnish to upon called is therein est undersigned the to title their of idence date the from days 21 within solicitors notice. this of Lim Sylvarna received, being interest ited intends to proceed with the ap plication before the county registrar of date the from days 21 of end the at county the to apply will and notice this for registrar the county of the city of Dublin for such as directions may be on the basis that appropriate the per to entitled beneficially son or persons all or any of the in superior interests or un unknown are property said the ascertained. 2010 August 27 Date: Signed: EP Daly & Company (solicitors for the applicant), 23/24 Lower Dorset 1 Dublin Street, In the matter of the Acts Tenant 1967-2005 in the matter of an application by O’Reilly Joseph in the any interest having Any person fee simple estate or any intermediate interest in all that and those the 54 he as known premises and reditaments Upper O’Connell Street in the par ish of St Thomas and city of Dublin, of DN187485F, part folio comprising the subject of a yearly perpetual rent of from 1893 October 2 dated grant farm to Scovell the Rt Vance George Hon matter matter of the 1978 Act 2) (No Rents) (Ground - - - - - and in the Landlord Landlord and 9.33), 9.33), should give € Landlord Landlord and Ten or website: care in Ireland. For information: A Caring Legacy: tel: (01) 2454800, tel: (01) 2454800, from€500 per GB. ISO 27001 certified; email: [email protected] www.wpg.ie/docstore.htm bequests to The Carers Emma at 057 9370210. e-discovery support service or www.carersireland.com. WPG DocStore’s professional Take Take notice that the applicant, Association (CHY10962) help to support home-based family [email protected] www.lawsocietygazette.ie Sylvarna Limited, intends to intends apply Limited, to Sylvarna for of the county registrar the county the city of Dublin for the acquisition est est in the known as property number 29 Charleville Road, North Circular Grangegorman, of parish the in Road, barony of Coolock and city of Dub by the a lin, being land demised lease dated 16 Alice April and part one 1894 the of made Ellis William between term the for part other the of Rendell of 148 and years from six the months to the yearly subject of date the lease, rent of £7.7s.0d ( solicitors. signed 2) 1978 (No Act Rents) (Ground ant and in the matter of the land and premises known as no 29 leville Road, Char Phibsboro, Dublin 7: Limited Sylvarna by application an Take notice that any person having an interest in the freehold estate or any superior or intermediate inter t o under the interest of their notice matter matter of the the the county registrar at the end of 21 days from the date of this notice and will apply to the county registrar for the county of for Wicklow directions person the that appropriate be may as to entitled the or beneficially persons intermediate interests, including the fee simple in the aforesaid property, unascertained. or unknown are 2010 August 27 Date: Signed: Messrs Smyth O’Brien Hegarty (solicitors for the applicant), 1 24 Dublin Street, Lower Abbey In the matter of the Acts Tenant 1967-2005 aug/sept 2010 aug/sept Gazette Society Law

brprofiefeingssional notices 68 brprofiefeingssional notices 69 ------and in the Landlord Landlord and Landlord Landlord and Ten www.lawsocietygazette.ie Take notice that Allied Irish Banks Banks Irish Allied that notice Take In particular, such persons who In default of such notice being 1978 Act 2) (No Rents) (Ground ant the of part the of matter the in and lands and premises of Callary the in half barony of Rathdown and county of Dublin, situate at Deer the in Merrion, Mount Road, park county of Dublin: an Limited Buncrana of application Flanagan’s by Take notice that any person having an interest in the freehold estate of or superior interest in the following piece that those and that all premises: or plot of ground being part of lands the of Mount Merrion, otherwise Callary, situate in the of Rathdown half and county of barony Dublin, offices and theatre or cinema the with erected thereon, which premises are particularly delineated, measured (be the same more or less) and described on the map or plan drawn on these matter matter of the by by Allied Irish Banks plc of Bank centre, Ballsbridge, in the city of Dublin – re: 62 South Mall in the Cork of city notice any person Take having inter other any or estate freehold the in est estate of the following property: 62 Cork. of city the in Mall South plc intends to submit tion to an the county applica registrar for county the of Cork for of the the freehold interest and acquisition all supe rior interest in the that asserting party any and aforementioned property, they hold a superior interest in aforesaid property the are called upon to furnish evidence of title to the afore mentioned premises to named. the below are entitled to the interest of Anne Mary Keating, pursuant to a lease of 2 October 1795 between Kearns of Williams the one part and Jackson Delacour of the other part Walsh for a term of 383 years from 29 Septem the in Mall South at lands in 1795 ber evidence provide should Cork, of city named. below the to title their of received, the applicant, Allied Irish Banks plc, intends to proceed the with application before registrar at the the end of 21 county days from the date of this notice and will apply county the for registrar county the to of Cork for directions as may be ap person the that basis the on propriate the to entitled beneficially persons or superior interest, including the free hold in the premises, are unascertained. and unknown 2010 August 27 Date: Signed: A&L Goodbody Quay, (solicitors the IFSC, North applicant), Wall for 1 Dublin In the matter of the Acts Tenant 1967-1994 ------and in the and in the aug/sept 2010 aug/sept Gazette Society Law Landlord Landlord and Landlord Landlord and Landlord Landlord and Ten Landlord Landlord and Ten Take notice that Allied Irish Banks Banks Irish Allied that notice Take In particular, such persons who In default of such notice being n n the matter of the 1978 Act 2) (No Rents) (Ground ant application an of matter the in and matter matter of the 1978 Act 2) (No Rents) (Ground ant application an of matter the in and by Allied Irish Banks plc of Bank centre, Ballsbridge, in of Dublin the – re: city Cork of city the in 15 Street Marlborough notice any person Take having inter other any or estate freehold the in est estate of the following property: 15 Marlborough Street in the Cork. city of plc intends to submit tion to an the county applica registrar for county the of Cork for of the the freehold interest and acquisition all supe rior interests in the aforementioned that asserting party any and property, they hold a superior interest in aforesaid property the are called upon to furnish evidence of title to the afore mentioned premises to named. the below are entitled to the interest of Henry Hickman, pursuant to a lease of 13 October 1978 between Henry Hick man of the one Dunscombe part of the and other part Thomas for term a of 380 years from 1 ber Novem 1797 in lands Street in at the city Marlborough of Cork, and such persons who are entitled to the in terest of Parker Dunscombe, Eliza beth Batchelor Dunscombe, Edward Waggett Jane Dunscombe, Batchelor Dunscombe, Christopher Waggett Dunscombe, the lessors in a lease of 20 October 1840 made between the Samu and part one the of parties said term a for part other the of Hobart el of 200 years from 1 May 1840 relat ing to lands at Marlborough Street in the city of Cork, should evidence provide of their title to the named. below received, the applicant, Allied Irish Banks plc, intends to proceed the with application before registrar at the the end of 21 county days from the date of this notice and will apply county the for registrar county the to of Cork for directions as may be ap person the that basis the on propriate the to entitled beneficially persons or superior interest, including the free hold in the premises, are unascertained. and unknown 2010 August 27 Date: Signed: A&L Goodbody Quay, (solicitors the IFSC, North applicant), Wall for 1 Dublin In the matter of the Acts Tenant 1967-2005 I Acts Tenant 1967-2005 matter of the ------and in the Landlord Landlord and Landlord Landlord and Ten Take notice that Allied Irish Banks Banks Irish Allied that notice Take are who persons such particular, In In default of such notice being In default In of default any being such notice received, the said applicant intends to intends the said applicant received, proceed with the application before at the end of registrar the said county 21 days from the such for date registrar of said to this apply will notice and directions as may be appropriate on the basis that the person or persons to entitled all up interests superior to and including the fee simple in said are property unknown and unas the certained. 2010 August 27 Date: ap the for (solicitors Fry William Signed: Place, Wilton House, Fitzwilton plicant), 2 Dublin In the matter of the Acts Tenant 1967-2005 matter of the (No 2) Rents) ant Act (Ground 1978 and in the of matter an application by Allied Irish Banks plc of Bank centre, Ballsbridge, in the city of Dublin – re: premises at the in Street the Marlborough rear 15/16 of Cork of city interest having person any notice Take or es any other estate in the freehold premis property: following the of tate es at the rear of 15/16 number Marlborough under entrance an with Street 16 Street Marlborough in the city of Cork. to application an submit to intends plc the for county registrar the county of Cork for the acquisition of the free interests and all superior interest hold in the aforementioned property, and su a hold they that asserting party any proper aforesaid the in interest perior ty are upon to evidence called furnish premises aforementioned the to title of name. below the to entitled to the interest pur of lessor the being Carson, Thomas Reverend be 1840 August 28 of a to lease suant part one the of Carson Thomas tween and Samuel Hobart of the other part for a term of 300 years from 1 May 1840 in at the Marlbor said premises should Cork, of city the in Street ough provide evidence of their title to the named. below received, the applicant, the with proceed to Allied intends plc, Banks Irish registrar county the before application of at date the of end the from 21 days county the to apply will and notice this di for Cork of county the for registrar on as the may be rections appropriate benefi persons or person the that basis to interest, entitled the cially superior premises, the in freehold the including unascertained. and unknown are 2010 August 27 Date: Signed: A&L Goodbody the IFSC, applicant), Quay, North (solicitors Wall for 1 Dublin ------and and and in the Landlord Landlord and Landlord and Tenant and Landlord Tenant Take Take notice that Joseph O’Reilly, being notice of such any In default Take notice that the applicant, 41.77, 41.77, thereby reserved, and to the Tenant Acts Tenant 1967-2005 matter of the in the matter of an application by O’Reilly Joseph an having person any that notice Take su any in or simple fee the in interest In In the matter of the 1978 Act 2) (No Rents) (Ground vember vember 1914 made Colhoun between Charles and Joseph Kincaid Westby of Little the one part and Lar Maria kin of the other part, subject to the perpetual yearly rent of £32.66, now € covenants on the part of the grantee contained. therein conditions and grant the to entitled person the being in interest the said ee’s grant, intends to apply to the Dublin county regis trar at Áras Uí Inns Dhálaigh, Quay, Dublin 7, for the acquisition of the fee simple estate and all intermediate and any in property, the said interests party that asserting they hold the fee in interest or any intermediate simple aforesaid property is called upon to of furnish evidence their title thereto to the within 21 under-mentioned days from the date solicitors of this notice. the received, said in Joseph O’Reilly tends to with proceed the application at the registrar county said the before end of 21 days from the date of this notice and will apply to said registrar for such as directions may be appro priate on the basis that or persons entitled the beneficially to all person up to and including interests superior are property said the in simple fee the unascertained. and unknown 2010 August 27 Date: ap the for (solicitors Fry William Signed: Place, Wilton House, Fitzwilton plicant), 2 Dublin parts in those or interest estate perior of 37 Henry Street, Dublin 1, com prised in folio DN140418L, parts of being the property comprised in a George from 1810 June 21 dated lease term a for Mulligan Edward to Daniel 1810, September 29 from years 900 of £100 of rent yearly the reserved which currency. late to an intends submit O’Reilly, Joseph for registrar to county the application Dhálaigh, Uí Áras at Dublin of city the Dublin 7, Inns for Quay, the acquisi tion of the fee simple and any inter mediate superior estate or interest in the aforesaid property and that said the hold they that any asserting party estate or superior any such fee simple or interest in the aforesaid property is called upon to furnish 21 evidence of within mentioned under the to title notice. this of date the from days under under a fee farm grant dated 10 No

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Mathews of the other part, and which which and part, other the of Mathews said premises comprises 0.15 thereabouts). or hectares (0.0607 acres 2010 August 27 Date: Signed: Smyth and Son the (solicitors for applicant), Rope Walk, Drogheda, Louth Co quality quality E ERTISEMENTS In ociety’s ociety’s - S V THOSE

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Health & Safety and e-mail address: [email protected] NOTI regulatory, and business decision makers. Society members to advertise Expert Witness RUITMENT ociety ociety website, www.lawsociety. afety, Diploma in Health and Safety, Contact Donal Power, Grad. I.I. Sec (GardaPrevention Crime Officer – Rtd.) S Gazette C Law Risk Consultants Ireland Ltd credentialed experts and resolve complex disputes and inform legislative, judicial, professional staff conducts Health & Safety and Security Analysis to provide objective opinions and advice that help lease lease note that, as and from the he he RE Log in to the new expanded employment recruitment register in the the in register recruitment employment expanded new the to in Log employment opportunities section on the members’ area Law of the contact or ie, administrator, at the Cork Law office, tel: [email protected] email: 021 422 6203 or For staff requirements, not just qualified solicitors. P 2006 issue of the T advertisements will be published that include references to to references include that published be will advertisements ( experience post-qualification of years on legal advice, which indicates that such references may be be may references such that indicates which advice, legal on the of breach in FREE EMPLOYMENT RECRUITMENT REGISTER Duleek and county of Meath, and be and Meath, of county and Duleek ing the premises comprised in demised and by an dated 29 indenture November 1879 and of made lease between the Mathews of the one part and Partick Reverend Mathews Thomas and Thomas Michael ------and and and in the Landlord Landlord and Landlord and Tenant Landlord and Tenant all that and those the

a a solicitor position, In default of any such notice being being notice such any of default In Schedule: premises premises and known as hereditaments the Old National School, now in Donacarney, the barony of Lower including including the freehold reversion in the aforesaid premises are unknown unascertained. are or 2010 August 27 Date: Signed: CS Kelly & Co for (solicitors the Co Buncrana, House, Market applicant), Donegal In the matter of the Acts Tenant 1967-2005 1978 Act 2) (No Rents) (Ground in the matter of an application by Trust Diocesan Finian’s St Take notice that St Finian’s Dioc esan Trust, having its registered of fice at Bishop’s House, in the Mullingar, county of Westmeath, being the person currently entitled to the lessee’s interest, under a lease dated 29 November 1879, in the premises and hereditaments more particularly described in the intends to apply schedule to the hereto, county reg istrar for the county the of acquisition of the fee Meath simple and for all intermediate interests in the said property, and any person that they asserting hold the fee simple or any intermediate interest in the aforesaid fur to upon called hereby is property nish evidence of title to same to the the from days 21 within named below notice. this of publication of date received, St Finian’s Diocesan Trust intends to proceed with an applica tion before the county registrar for the county of Meath at the end of 42 days from the date of publication of this notice for such as directions may be appropriate on the basis that the person or persons beneficially enti tled to the fee simple and any inter mediate interest in the said premises unascertained. are and unknown are matter matter of the ------ociety’s Cork Society’s FREE Landlord Landlord and Ten

Trina Murphy, recruitment

ociety ociety members seeking S

aw aw Society website, www.lawsociety. L or or Take Take notice that the applicants, In default of any such notice be full-time, part-time or as a locum. a as or part-time full-time, F Log in to the employment opportunities new section self-maintained on the job-seekers’ members’ area Law register of the in the ie, or contact Law the at administrator, office, tel: 021 422 [email protected] 6203 or email:

job-seekers’ REGISTER www.lawsocietygazette.ie presents presents and are thereon edged red, together with the right in common with the lessors and all other persons having a similar right (including all persons lawfully resorting to the said premises) at all times and for all pur of Flanagan’s Buncrana Limited, be poses whether on foot or with horses, horses, with or foot on whether poses carts, carriages or motors to pass and repass over and along avenue the adjoining road the or said (which said premises road or avenue is not in tended to be hereby demised) and all other roads or avenues of the lessors communicating therewith (hereinaf ter called ‘the premises’) which were demised to the Limited for a term of 250 years from Deerpark Cinema 25 March 1953, subject to the yearly rent of £435 sterling and subject to the covenants and conditions therein on contained the part of the lessee to performed. and observed be ing the lessee entitled under sections 8, 9 and 10 of the ant (Ground Rents) (No 2) intends Act to 1978 submit an application of county the to for registrar county the free the of acquisition the for Dublin hold interest and and any property, aforesaid the in interest intermediate any party asserting that they hold a superior interest in the said aforesaid premises or any of them upon are to called furnish evidence of title to the aforementioned premises to the the from days 21 within named below notice. this of date ing received, the said Flanagan’s of Buncrana Limited intends to ceed with pro the application before the days 21 of end the at registrar county from the date of this notice and will apply to the county registrar for the county of Dublin for such directions as may be appropriate on the that basis the person or persons to cially entitled the interest superior benefi aug/sept 2010 aug/sept Gazette Society Law

brprofiefeingssional notices 70 Professional Indemnity Litigation Partner

Beale and Company Solicitors is a niche law firm, with offices in Dublin and the UK, offering legal services to professionals and their professional indemnity insurers. Due to continued business expansion an opportunity exists for an additional partner to join the existing partners in our Dublin office.

Beale and Company are well known for their knowledge andunderstandingof insurance,professionalindemnity, the professions and the construction industry. Their partners and staff are experts in their practice areas and consistently feature in professional guides.

The successful applicant will be a proven expert in defending professional indemnity claims against engineers and architects and their insurers or claims against surveyors, solicitors, accountants, financial advisers and other professionals.

You will have at least five years experience dealing with professional negligence claims for professionals and their insurers at partner or senior associate level. A client following or strong contacts in the insurance and/or construction sector will be a distinct advantage. You must be capable of attaining a high profile in the Dublin and London markets with insurers, brokers and construction clients alike.

This is an exceptional opportunity to join a highly respected, successful and driven team. Interested applicants should contact our retained recruiter, Yvonne Kelly of Keane McDonald in strict confidence on 01 841 5614. Alternatively email your CV to [email protected].

All direct applications to Beale and Company will be redirected to Keane McDonald Head of Legal & Compliance

Our client, part of a highly regarded international banking group, is seeking to hire an exceptional solicitor who will assume executive responsibility for its legal and compliance affairs in Ireland. The successful candidate will join the Dublin-based executive leadership team and will report directly to the CEO.

The Role:

As Head of Legal & Compliance you will have full executive responsibility for the Legal and Compliance function in the organisation. You will be a key member of the executive leadership team and you will lead a large team of qualifi ed solicitors, managers and staff.

You will:

• Hold executive responsibility for all legal, regulatory and compliance aspects of the bank • Oversee the legal aspects of all credit management and credit recovery work • Manage any litigation proceedings working closely when required with external counsel • Ensure all compliance related activities are managed effectively and effi ciently, including the bank’s regulatory responsibilities • Work closely with the bank’s group headquarters as appropriate

The Person:

The successful applicant will:

• Be a qualifi ed lawyer in Ireland or the UK with at least 10 years experience in a fi nancial services legal environment • Be a high achiever with experience of working at a senior level in a banking or similar relevant environment • Be a solid communicator with a business oriented approach • Have proven ability to lead and manage a legal and compliance team while working comfortably at executive level • Thoroughly understand banking activities and the markets within which the bank operates • Have an expert knowledge of the legal, credit, compliance and regulatory environment associated with banking in Ireland

Fitzwilliam Business Centre The level of seniority associated with this exceptional opportunity 77 Sir John Rogerson’s Quay will be refl ected in the attractive remuneration package on offer. Dublin 2

Tel: +353 18415614 Fax: +353 16401899 Interested applicants should contact Yvonne Kelly of

Web: www.keanemcdonald.com Keane McDonald in strict confi dence on 01 8415614 or Email: [email protected] email your CV to [email protected]

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

Private Practice Banking - Associate to Senior Associate: First rate law fi rm seeking a strong Banking lawyer with exposurePartnership to SPVs. You will be involved in a range of transactions acting on behalf of both domestic and international clients.

Our clients include the leading Irish law f irms. Signif icant opportunities exist in the following Commercial Litigation – Associate: Central Dublin practice is looking for a strong practitioner with an excellentpractice litigation areas andbackground. a client following is not essential. CommercialEmployment Litigation - Associate to Senior Associate: Strong practice with a client base ranging from SMEs to international companies requires litigators with commercial litigation expertise. Funds Commercial - Senior Associate: A signifi cant Dublin practice is searching for excellent candidates with commercialInsolvency nous coupled with the enthusiasm and drive to develop a fi rst rate client base. CorporateLitigation Finance – Assistant to Senior Associate: Leading Dublin practice requires a high calibre lawyer to deal with corporate advisory work including mergers and acquisitions, joint ventures, management buyRegulatory/Compliance outs, reverse takeovers and debt and equity fi nancings as well as advising on fl otations and fundraisings. EU/CompetitionEnvironmental - Assistant:& Planning Our client is a fi rst class legal practice whose client base includes prestigious public service and private sector organizations operating both in the domestic market and internationally. You will be a Solicitor or Barrister with excellent exposure to EU and Competition Law, gained either in private practice or in-house. FundsPrivate - Assistant/Associate: Practice Top ranking law fi rm requires excellent Funds specialists at all levels. You will advise investment managers, custodians, administrators and other service providers of investment funds on

establishingWe have signif operations icant inopportunities Ireland. in the following practice areas:

Funds - Assistant to Senior Associate : International law fi rm recently established in Dublin is searching forBanking ambitious commercially-minded– Associate practitioners with strong exposure to investment funds. Banking – Senior Associate InCommercial House Property – Senior Associate Senior Legal Advisor: Our client is searching for a senior solicitor or barrister with expertise in equity capitalInsurance markets, (Contentiouscorporate fi nance, and mergers Non-Contentious) and acquisitions or general – Associate corporate to practice Senior advisingAssociate Irish or UK listedEnvironmental companies. and Planning – Senior Associate Telecoms - Junior Solicitor or Barrister: Our client is searching for a junior solicitor or barrister to workFunds with a– growingAssistant team. You will be dealing with a variety of Telecoms related matters. This is a new role whichFunds requires – Associate strong people skills and business acumen. Fluency in Spanish is an essential pre-requisite. PartnershipFunds – Senior Associate OurLitigation clients include (Professional the leading Irish Indemnity) law fi rms. Signifi – cant Associate opportunities to Senior exist inAssociate the following practice areas and a client following is not essential. EmploymentTax – Associate ; Funds to; Insolvency Senior Associate ; Litigation ; Regulatory/Compliance ; Environmental & Planning

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