LAW SOCIETY
Gazette€3.75 June 2007
HERE’S LOOKING AT YOU: Privacy and surveillance
INSIDE: MAHON TRIBUNAL LEAKS • BARONESS HELENA KENNEDY • BOLLYWOOD BLING BALL • LETTERS
LAW SOCIETY GAZETTE JUNE 2007 CONTENTS
On the cover LAW SOCIETY Who’s monitoring your email, phone and internet usage, and is such monitoring legal in the absence – or even the Gazette presence – of an acceptable- Gazette usage policy? June 2007 PIC: REX FEATURES/GAZETTE STUDIO
Volume 101, number 5 Subscriptions: €57 REGULARS 5 President’s message 7 News Comment 13 13L etters 14V iiiewpoiiint::: will the new Garda Ombudsman Commission increase confidence in the gardaí? 16 Analysis 16N ews feature::: new criminal courts complex 19N ews feature::: Baroness Helena Kennedy speaks at the Society’s annual human rights lecture 16 20H uman riiights watch::: the D case 20O ne to watch::: Consumer Protection Act 2007 43 Practice doctor 44 People and places 46 Student spotlight Book review 47 Ten in a Bed: a Memoir
Briefing 48 48 Council report 49 Legislation update: 17 April 2007 – 15 May 19 52 Practice notes 57 Solicitors Disciplinary Tribunal 58 Firstlaw update 61 Eurlegal: recent developments in European law 64 Professional notices 69 Recruitment advertising
Editor: Mark McDermott. Deputy editor: Garrett O’Boyle. Designer: Nuala Redmond. Editorial secretaries: Catherine Kearney, Valerie Farrell. For professional notice rates (lost land certificates, wills, title deeds, employment, miscellaneous), see page 65. Commercial advertising: Seán Ó hOisín, 10 Arran Road, Dublin 9; tel: 01 837 5018, fax: 01 884 4626, mobile: 086 811 7116, email: [email protected]. Printing: Turner’s Printing Company Ltd, Longford. Editorial board: Stuart Gilhooly (chairman), Mark McDermott (secretary), Pamela 45 Cassidy, Paula Fallon, Michael Kealey, Mary Keane, Aisling Kelly, Patrick J McGonagle, Ken Murphy, Philip Nolan, William Prentice.
2 www.lawsociety.ie CONTENTS LAW SOCIETY GAZETTE JUNE 2007
Get more at lawsociety.ie PROFESSIONAL NOTICES: send your small advert details, with payment, to: Gazette Office, Blackhall Place, Dublin 7, tel: 01 672 4828, or email: [email protected]. Gazette readers can access back issues of the ALL CHEQUES SHOULD BE MADE PAYABLE TO: LAW SOCIETY OF IRELAND. magazine as far back as Jan/Feb 1997, right up to the current issue at lawsociety.ie. COMMERCIAL ADVERTISING: contact Seán Ó hOisín, 10 Arran Road, Dublin 9, tel: 01 837 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 conference on details to: IT Section, Blackhall Place, Dublin 7, or to: [email protected] the European slave trade, 3-5 July, TCD Subscribers to the Gazette should send change-of-address details to: • Employment opportunities Gazette Office, Blackhall Place, Dublin 7, or to: [email protected] • The latest CPD courses HOW TO REACH US: Law Society Gazette, Blackhall Place, Dublin 7. … as well as lots of other useful information Tel: 01 672 4828, fax: 01 672 4877, email: [email protected]
FEATURES COVER STORY: 24 A very private affair The parameters of privacy law are undergoing rapid change, with technology allowing cheap and effective tools for interfering with the privacy of others. Irish privacy law remains in a state of flux, writes Denis Kelleher This old house 28 Condition 36 of the Law Society’s General Conditions of Sale is often deleted, shifting the burden of planning investigation and compliance to the purchaser. John Gore- Grimes points out solicitors’ responsibilities Hole in my bucket 32 The recent systematic leaking to the press of Mahon Tribunal briefing material relating to the finances of the taoiseach makes for riveting reading and opportunist politics, but is it legal? Pamela Cassidy mops the floor 35 Notes from underground In the second part of a two-part analysis (with 32 Dostoevsky-themed headlines), Frank Buttimer looks at the new offences created by the miscellaneous provisions of the Criminal Justice Act 2006 Ain’t misbehavin’ 38 When a solicitor comes on record for a client in a personal injuries action, insurers should deal exclusively with the solicitor. But certain insurance companies have taken the opportunity to deal with the claimant directly, writes Stuart Gilhooly Stone walls do not a prison make 40 The Prisons Act 2007 provides for legally-aided hearings in respect of a prisoner’s loss of remission, but there is no equivalent procedure yet for the revocation of temporary release. Cathal Ó Braonáin opens the case file
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. 35 Email: [email protected] Law Society website: www.lawsociety.ie
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*offer is valid for 1 laptop per business, on all solutions over €2,000 in order value. Offer open to orders received on or before July 31st 2007. Subject to availability PRESIDENT’S MESSAGE LAW SOCIETY GAZETTE JUNE 2007 Unfair bias in judicial appointments?
s I write this message, the 29th Dáil works about as well as any has come to an end and the result of could in appointing judges the general election, which was held of very high ability, on 24 May, is unknown. The outgoing integrity and government has recently appointed 17 independence – both Amembers of the legal profession to various judicial actual and perceived positions, and of the 17, eight are solicitors. independence. If it has a I wish all those nominated well in their new flaw, however, it lies in a careers and assure them, and indeed all judges, of lingering suspicion in the the Law Society’s continued support. The solicitors’ profession that appointment of persons to judicial office raises either the system itself or many issues. those involved in its It is vitally important that the system of operation at government appointment of judges avoids, as much as possible, level – not at Judicial any perception that judges may ever be less than Appointments Advisory fully independent in their judicial decision making. Board level – retain an This requires a delicate balance to be unfair bias in favour of maintained. Judges must inevitably be selected by appointment of barristers the executive branch of government but, following rather than solicitors to senior judicial office. Such a “Such a bias, their appointment, they must be – and be seen to bias, if it exists – and I suspect it does – should have be – truly independent of those who appointed been consigned to history with the enactments of the if it exists – them. It is essential that there should not be any 1995 and 2002 acts. and I suspect it perception of appointments being made on the The first ever appointment of a solicitor as a judge basis of political patronage rather than on legal of the High Court occurred in July 2002. Between does – should ability and personal suitability. then and the judicial appointments made on 2 May have been To assist with this, under the Courts and Court 2007, a further 12 High Court judges were appointed. Officers Act 1995, the Judicial Appointments All were excellent appointments. However, all were consigned to Advisory Board was established. The function of barristers. Can it really have been the case that the history with the the board is to provide the minister with the names solicitors’ profession, which constitutes approximately of persons whom the board recommends for 80% of all practising lawyers, had not one member enactments of appointment to any particular judicial position. who merited a High Court appointment over that the 1995 and Further reform followed, with the enactment five-year period? of the Courts and Court Officers Act 2002. The As president of the Law Society, I say that it still 2002 acts” Law Society fully supported both the 1995 act, appears that governments place a greater value on a which created for the first time the eligibility of candidate’s experience of practise as a barrister, rather solicitors for appointment as judges of the Circuit than as a solicitor, as a prerequisite for appointment Court, and the 2002 act, which made solicitors to the Superior Courts’ bench. It is appropriate that I eligible to be judges of the High and Supreme would express this concern. If there is any residual Courts. We are fortunate that, since the prejudice against the appointment of solicitors as foundation of the state, the persons appointed to judges of the Superior Courts, it exists contrary to the judicial office have performed their functions interests of the solicitors’ profession but, more independently and have sought to administer importantly, contrary to the public interest. Such a justice in accordance with the law and the highest relic of history has no place in modern Ireland. standards of conduct and integrity. Lapses from these standards have been rare. Phiiillliiip M Joyce I believe that the current system of appointment Presiiident
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13 June that is open to n TIPPERARY members and non-members It’s a long way… alike. The Council of the Law The seminar takes place in Society held its May meeting the offices of McCann in Clonmel in the beautifully- FitzGerald. Those wishing to renovated courthouse, with the attend should contact Aisling kind permission of the county Butler of William Fry, email registrar, Mary Delehanty. A [email protected]. most enjoyable reception and dinner took place beforehand n MAYO in the Hotel Minella. Judge All’s fair in love and war Olive Buttimer of the Circuit Samuel Johnson said: “The Court was invited as a special Irish are a very fair people – guest. There was a very strong they never speak well of each attendance of solicitors from other!” However, Mayo Bar the Tipperary Bar Association, Association President Pat headed by its president John Ballina solicitor, Leo Loftus (Bourke, Carrigg & Loftus), and his family O’Connor challenged that Joy and secretary Ronan celebrate his 50 years in the profession at a special function in Healy’s myth when he and his Kennedy. Hotel on the shores of Lough Conn colleagues held a dinner in The trip to Clonmel was honour of one of Mayo’s finest instigated by Law Society scheduled for Cork Cricket and reminisce about practice in – Leo Loftus, a solicitor of president and local hero, Philip Club at the end of July. days gone by. long standing from Ballina, Joyce, who hails from The SLA annual conference, The month of May has been where the name Bourke, Killenaule. Fellow practitioner confirmed for Madrid at the a busy time in the DSBA for Carrigg & Loftus is held in the and practice partner, Charles end of September, is almost seminars. There was a repeat of highest regard. David Barry, shared in the fully booked out. the multi-unit developments The dinner, held in Healy’s celebrations. Litigation practitioners in seminar, a half-day focused on Hotel on the beautiful shores It was clear to those of us the city were delighted to see the negative effects of bullying of Lough Conn, was attended who had travelled to Clonmel the appointment of Pat and harassment, and a seminar by the Loftus family. In a that the Tipperary Bar McCarthy SC to the bench. on privacy and defamation law. tribute to Leo, Pat O’Connor Association is thriving. This, in A number of property-law noted that, despite his years of itself, should not be surprising, n DUBLIN related seminars will take place long service, Leo continues to bearing in mind the Dedicated followers of in June. work on, enjoying serving the contribution of a number of its fashion Like all the profession, the law as much as ever. His solicitors to the legal Anyone who might have DSBA was particularly pleased brother, Kevin, retired from profession and to the Law thought that solicitors are a to note the nomination to the the family firm a number of Society down the years. dull, drab lot was clearly not at Circuit Court of one of its years ago. the DSBA ball for younger former presidents – Gerard Something of a Loftus legal n CORK members, held recently in the Griffin. Always in good form dynasty is being built. Four of Anyone for cricket? Westbury, where the fashion, and excellent company, Gerry Leo’s six children have After a break of over two style and exuberance was given has been a stalwart followed in his footsteps and decades, cricket fever has taken full vent. representative of the legal have qualified as solicitors, hold of Cork, with the At the other end of the profession and will, no doubt, namely: Cliona, Rosemarie, Southern Law Association spectrum, the DSBA was prove to be a popular, Barbara and Marc, all of whom competing with the Cork Bar delighted to host a lunch for compassionate and were in attendance, as well as for the Perpetuity Cup. The cup colleagues who have served understanding member of the son Garrett, an auctioneer in was located during an intensive over 50 years in practice. This judiciary. Ballina, and his daughter file review in an office on is a regular event on the DSBA Lyndann who lives in Sligo. G South Mall and is inscribed ‘In calendar and is looked forward Healthy lifestyle Pale Tail for Not-Too-Serious to with anticipation by many of The Health and Safety Lawyers ‘Nationwide’ is compiled by Kevin Competition, Cork Bar v SLA’. our older colleagues, who get Association of Ireland are O’Higgins, principal of the The struggle for glory is the opportunity to catch up holding an evening seminar on Dublin law firm Kevin
www.lawsociety.ie 7 LAW SOCIETY GAZETTE JUNE 2007 NEWS
n RETIREMENT TRUST SCHEME Judicial nominations chart a Unit prices: May 2007 he government has Managed fund: €6.304472 Tnominated 17 lawyers for All-equity fund: €1.508775 appointment to judicial office by Cash fund: €2.731227 the President. In a welcome Long-bond fund: €1.373191 development, solicitors feature large among the nominees, n WI-FI ACCESS IN THE writes Mark McDermott. FOUR COURTS The recent announcement of The Law Society and Global 17 judicial appointments to Air Net (GANAG) have teamed High, Circuit and District up to provide competitively- Courts represents one of the priced wireless internet (wi-fi) biggest single expansions of the access in all of the Society’s judiciary in the history of the consultation rooms in the Four state. The Hon Mr Justice Garrett Sheehan Courts. Members can access Of the 17 new judges internet and email from their nominated on 2 May 2007: torts. Mr Justice McMahon is laptops or PDAs with four • Six will be appointed to the also chairman of the Abbey simple steps. Payment can be High Court, Theatre and of the National made by credit card, which is • Five to the Circuit Court, and Archives Advisory Council, and secure, for 30 minute (€3.95) • Six to the District Court. holds an adjunct professorship and 120 minute (€9) at University College Cork. segments. High Court In addition, Judge McMahon Among the six new nominees to has been appointed as the new n PPCI UPDATE the High Court are solicitor chairman of the Residential Two Professional Practice Garrett Sheehan, Judge Bryan Institutions Redress Board. He Course (PPCI) courses will be McMahon (currently a judge of succeeds Judge Seán O’Leary, available in 2007, the Law the Circuit Court), George who died last year. Society has announced. The Birmingham SC, John Edwards SC, Mary Irvine SC and Patrick first will take place in Dublin in The Hon Mr Justice Bryan Circuit Court mid September 2007. The McCarthy SC. McMahon Five new judges have also been second will operate from the Garrett Sheehan, solicitor, nominated for the Circuit Law School in Cork, with an runs one of the biggest criminal The Listowel man is the son of Court: solicitors Gerard Griffin anticipated start date in early law defence practices in the the writer of the same name. (a past president of the Law October. country. Educated in Gonzaga He qualified as a solicitor in Society) and Petria McDonnell, College in 1964, he was a 1964 and was a part-time law in addition to barristers Tony n IBA TAXATION SECTION classmate of Peter Sutherland, lecturer in NUI Galway before Hunt, Rory MacCabe and SCHOLARSHIP who describes him as “a real being appointed as a Circuit Martin Nolan. This year, the Taxation Section champion for justice and the less Court judge in 1999 – one of Gerard Griffin was educated of the International Bar fortunate”. Mr Sheehan the first solicitors to be in Belvedere College, Dublin, Association is offering two qualified as a solicitor in 1969. appointed to such a position. and is a graduate of University scholarships to young lawyers Circuit Court judge Bryan He is well known to law College Dublin. He was who wish to participate in the McMahon has also been students as the author of the admitted to the roll of solicitors IBA Annual Conference, but are appointed to the High Court. leading textbook on the law of in 1978. He is managing unable to do so owing to partner in the Dublin law firm financial constraints. The 2007 Kelly & Griffin in Terenure, scholarship awards include: which specialises in civil • Contribution towards litigation. registration and travel costs Gerry was first nominated for the IBA conference in to the Law Society Council in Singapore, 14-19 October, 1982 as a representative of the • Two years’ free IBA Dublin Solicitors’ Bar membership. Association and was elected to the Council in his own right in The deadline for submissions 1987. He became junior vice- is Friday 29 June 2007. For president in 1998, senior vice- further application details, president in 2002 and served visit: www.ibanet.org/images/ as president of the Law downloads/lpd/Taxation.pdf. Her Honour Judge Petria McDonnell His Honour Judge Gerard Griffin Society for the year
8 www.lawsociety.ie NEWS LAW SOCIETY GAZETTE JUNE 2007 new course for solicitors 2003/2004. He has chaired PIC: LENSMEN many of the Society’s committees during his 25-year tenure on Council, including finance, registrar’s, compensation fund, litigation, and was also chair of the Society’s Legal Costs Task Force. Petria McDonnell was admitted to the roll of solicitors in 1974. She was educated in University College Dublin and holds a diploma in law from the College d’Europe, Bruges. She is a partner in McCann FitzGerald’s commercial litigation department. She has dealt with a wide range of commercial, insurance and shipping disputes. His Honour Judge Gerard Griffin, the Hon Mr Justice Bryan McMahon, President of the Law Society She is accredited as a Philip Joyce, the Hon Mr Justice Garrett Sheehan, and Her Honour Judge Petria McDonnell. (Middle, l to r): mediator by CEDR (the director general Ken Murphy, Rosario Boyle SC, Judge Elizabeth McGrath, deputy director general Mary Keane, junior vice-president John Costello and Judge Denis McLoughlin. (Back, l to r): Council member London-based Centre for Gerard Doherty, Judge John Lindsay, immediate past-president Michael Irvine, senior vice-president Effective Dispute Resolution). James MacGuill and Judge Eamon O’Brien She is also a founding member of the Irish Arbitration and Mediation contributions to European the High Court, the Circuit Commercial Mediation Committee of the Law Civil Practice by Layton and Court and the District Court. Association and chair of the Society. Publications include Mercer (Sweet & Maxwell) The Courts and Court Officers and Maritime Liens and Claims (Amendment) Act 2007 provides by William Tetley. that the maximum number of ordinary judges of the High District Court Court, Circuit Court and Of the six judges nominated to District Court be increased to the District Court, four are 35, 37 and 60 respectively. solicitors: Law Society Council The act also provides for member and Limerick city increases in the number of coroner Eamon O’Brien, Denis ordinary judges in both the McLoughlin (a captain in the Circuit and the District Courts. Reserve Defence Forces), In the case of the Circuit Court, Elizabeth MacGrath (who runs the act provides for an increase her own practice in Co of four judges, from 33 to 37. In Tipperary), and John Lindsay. the case of the District Court, Judge John Lindsay Judge Denis McLoughlin The remaining two District the act provides for an increase Court nominees are barristers of six judges from 54 to 60. Anthony Halpin (an expert in The additional judges are legal costs and employment required to deal with delays and law) and David McHugh (who generally speed up the judicial has worked on the Refugee process. The increase is also Appeals Tribunal). intended to strengthen the criminal justice system in the Increase in judges context of a package of Fourteen of the nominations measures now in train to deal arise from the provisions of the with serious crime. recently enacted Courts and Three appointments will fill Court Officers (Amendment) Act the existing two vacancies in the 2007, which increased the High Court and one vacancy in Judge Eamon O’Brien Judge Elizabeth McGrath maximum number of judges of the Circuit Court.
www.lawsociety.ie 9 LAW SOCIETY GAZETTE JUNE 2007 NEWS Senior lawyer calls for international support in Pakistan’s ‘hour of need’
senior Pakistani lawyer PIC: MARK RUSSELL-HILL the Law Society to send a Ahas asked the Law Society delegation to visit Pakistan, to consider issuing a where they would see for memorandum in support of themselves “how strong our the maintenance of an lawyers are, and how strongly independent judiciary and the we react to injustice”. rule of law in Pakistan, writes “We do not accept any Colin Murphy. This follows a tyrannical decision and we are prolonged political/legal crisis not afraid of anything.” in Pakistan, which culminated There are parliamentary with the intervention of the elections in Pakistan later this Pakistani president, General year. The Pakistan People’s Pervez Musharraf, to remove Party, led by Benazir Bhutto, Chief Justice Iftikhar hopes to form a coalition with Mohammad Chaudhry from the Pakistan Muslim League of office in March. Nawaz Sharif, and together to Sardar Latif Khosa, an obtain a two-thirds majority in advocate of the Supreme Court the assembly. If they are of Pakistan and also a senator successful, they will be able to with the Pakistan People’s amend the constitution Party, addressed Society without the consent of the members at a talk in Blackhall president, in order to restore Sardar Latif Khosa Place on 27 April. primacy to the parliament. Charismatic and passionate, under house arrest. The legal governance,” he said. Sardar Latif Khosa told the he gave a forceful address in profession launched protest “In Pakistan, the army Gazette that, even though which he railed against demonstrations, which were [should] protect and preserve General Musharraf seized violations of the rule of law in violently broken up by the the borders of the country – power in a coup, during which both Pakistan and the wider Pakistani security forces. Up to they have no right of he suspended the constitution, world. He said that the world 80 lawyers were arrested and governance. So when the army he would not be likely to was now a ‘global village’, and 20 were beaten and injured, arrogates to itself the right of suspend the constitution again: that it was vital for lawyers, including Sardar Latif Khosa. governance, that is at the cost of “He would have to impose and concerned people Sardar Latif Khosa told the the rights of the people of the martial law, but it is not generally, to voice their Gazette that the lawyers’ country, who are the real possible now to impose martial opposition to militarism and protest had become a “popular sovereign.” law because he cannot show human rights violations, struggle”. Sardar Latif Khosa invited ‘no confidence’ in himself.” wherever they might happen. “The lawyers in Pakistan have endeared themselves to Missing people the people of Pakistan. If the BELFAST SOLICITOR MAKES Iftikhar Mohammad Chaudhry judiciary is being subjugated was appointed chief justice of and can’t properly function, LEGAL HISTORY Pakistan in 2005. His tenure obviously the ultimate sufferer Belfast solicitor Barra McGrory, of the has been marked by a 2006 case will be the people.” firm PJ McGrory & Co, has made legal in which he reversed the sale of history by being appointed a Queen’s a state-owned company, citing Showered with petals Counsel (QC) in Northern Ireland. improprieties by government “Wherever they go, they’re McGrory is the first solicitor to become personnel, and recent showered with petals of a QC since a recent change in the comments pressuring the flowers,” he said, an experience selection process. Before that, only intelligence agencies to reveal unlikely to be familiar to barristers were eligible for appointment the whereabouts of missing lawyers in Ireland. as QCs (or silks). people they deny having “The lawyers’ struggle has Mr McGrory, whose late father Paddy was one of the best- detained. In March, President translated into a mass known solicitors in Ireland, was one of six QCs named on 15 May Musharraf accused him of movement for the rights of the 2007. The others are Charles McKay, Alan Kane, Philip Mateer, misuse of office, forced him to people of Pakistan, to give Stewart Beattie and Ms Monyeazo Anyadike-Danes. stand aside and placed him them back their right of
10 www.lawsociety.ie NEWS LAW SOCIETY GAZETTE JUNE 2007 Society Council meeting in Clonmel
or the first time in its PICS: JOHN D KELLY PHOTOGRAPHY Fhistory, the Council of the Law Society of Ireland convened a meeting in Clonmel on Friday 11 May 2007, writes Melissa Healy. The meeting was held in the Clonmel Courthouse, at the heart of the bustling town. The courthouse was kindly made available by the Courts Service. The Council was greatly assisted by county registrar Mary Delehanty and her team of dedicated staff. The courthouse was recently renovated and is a jewel in the Courts Service crown. Members of the Tipperary Solicitors’ Bar Association attended the meeting as “Look out! They’re behind you!” observers. Topics on the agenda at the meeting included a that affect solicitors in their efforts to forge closer links with successful in this regard and the proposed media advertising daily practice. members of the profession Council greatly appreciates the campaign, the Criminal Legal The Law Society Council throughout the country. The kind hospitality of the solicitors Aid Scheme, the Criminal was welcomed to Tipperary by occasion proved highly of Tipperary. Justice Act 2007 and the TSBA president John Joy. government working group’s Philip Joyce was presented with review of legal costs. a set of engraved cufflinks to On the previous evening, mark his year in office. Traffic-flow change at Blackhall Law Society President Philip The occasion was also used Joyce hosted a drinks reception by the president to mark the and evening meal in the Hotel recent appointment of eight Minella. This was attended by solicitors to the bench, Tipperary solicitors, members including two members of the of the judiciary and delegates of Council of the Law Society – the TSBA. The evening Gerard Griffin to the Circuit provided a valuable opportunity Court and Eamon O’Brien to for local solicitors to meet the District Court. members of Council and to The Council meeting in discuss uniquely local issues Clonmel is part of the Society’s
he direction of traffic flow erected to remind all users of Tentering and exiting the Law the change. Drivers, cyclists Society at Blackhall Place is set and pedestrians should take to change from 6 June 2007. extra care, particularly in the The current ‘in’ and ‘out’ traffic early days of the changeover, flow will be reversed. This will to ensure their own safety and lead to a more efficient and that of others in the vicinity. safer method of entering and Additional security staff will be John Joy (president of the Tipperary Solicitors’ Bar Association), exiting the Law Society’s on hand to assist with the Law Society President Philip Joyce, Mary Delehanty (county registrar, headquarters. Signs will be changeover. Tipperary), and Ronan Kennedy
www.lawsociety.ie 11 LAW SOCIETY GAZETTE JUNE 2007 NEWS Visit of Kosovo Chamber of Advocates he EU and International for comparative purposes. TAffairs Committee hosted a The experience attained training programme for a group during the visit will be used for of nine lawyers from the drafting and implementing a Kosovo Chamber of Advocates new disciplinary model of the from 30 April to 4 May 2007, Kosovo Chamber of Advocates writes Eva Massa. Under the title that will be functional and ‘Developing Disciplinary efficient. Processes and Procedures for From the Law Society’s Lawyers’, the training aimed to point of view, the event introduce participants to the provided a great opportunity to entire disciplinary system and learn more about the current regulation of the legal status of Kosovo, its legal profession in Ireland, including Law Society President Philip Joyce with members of the Kosovan system and the expectations for an overview of the professional delegation (l to r): Naser Peci, Abdylaziz Sadiku, Fljorin Vrtopi, Betim the near future. training for lawyers. The Sala and Hamijeta Miftari The EU and International programme was structured in a Disciplinary Tribunal, with professional membership Affairs Committee extends its series of lectures, workshops attendance at a hearing. association for practicing thanks to the Bar Council, the and round tables organised by The Kosovo Chamber of lawyers in Kosovo. The KCA Court Services, the Disciplinary the Law Society and the Bar Advocates (KCA) was has recently begun evaluating Tribunal, McCann FitzGerald Council. It also included visits established in 1973, suspended models for a more effective and and Garrett Sheehan & to both institutions, as well as to in 1990 and resurrected in the transparent disciplinary system, Partners for their kind the Four Courts and the post-war period. It is a using models from the region assistance with this project.
SUPPORT SERVICES FOR MEMBERS OPENING THE DOOR TO SUPPORT SERVICES The Society’s annual PPCII open day showcases the support services available to trainees. Louise Campbell explains he report by the Support organised the open day, contained at the front of the TServices Task Force, under including Mary Ann Law Directory. the chairmanship of Ms Olive McDermott, Sarah Stack, • The new employment and Braiden, recommended “that Pauline Smyth and Anne locum recruitment registers, the Law Society should ensure Walsh. as featured in the Jan/Feb that, during their time in the Trainees received welcome 2007 issue of the Gazette. Law School, trainees are made packs and staff were on hand These were demonstrated to familiar with all services that to man stands in the members’ trainees, as were the will be available to them from lounge to explain services more Society’s website and e-zine, the Law Society and others fully and to answer trainees’ where a wealth of when they qualify, in particular queries. information is available at those that may be needed in The showcase included the touch of a button. times of crisis for themselves information on: • Support services for or their colleagues”. • The library – making members, with information One way that the Society trainees aware of the on the range of services on achieves this is through its library’s services, including • Society requirements for offer, including ‘Solicitor annual PPCII open day, which the online library catalogue setting up in practice, in Link’, the mentor showcases the support services on the members’ area of the particular practising programme and the group available to PPCII trainees. Society’s website; textbook certificates and professional life assurance scheme, This year’s event took place on loans and documents that indemnity insurance. among others. G 30 April. can be sent to solicitors • Law Society committees, Support services executive throughout the country; across many aspects of law, For information on any Law Louise Campbell and online precedents that can which were represented by Society member service, contact information and professional be emailed to members in their secretaries. These Louise Campbell, support services development executive Wor d format; and its general committees give guidance executive, Blackhall Place; Michelle Nolan headed up a enquiry service on all relating to best practice. tel: 01 881 5712 or email: team of Law Society staff who aspects of legal information. Their contact details are [email protected].
12 www.lawsociety.ie COMMENT LAW SOCIETY GAZETTE JUNE 2007 letters
Send your letters to: Law Society Gazette, Blackhall Place, Dublin 7, or email: [email protected] ‘Raining on the parade’ of the Commercial Court From: Michael Williams, a judge ready to hear their that people who find themselves would it negative all the court’s Grosvenor Square, Dublin 6 claims, while ‘commercial engaged in €1-million decisions? Or apply a concept he new Commercial Division litigants’ speed by them? Article commercial battles are likely to similar to the novel one it Tof the High Court seems to 40.1 of the Constitution reads: have different moral or social brought into existence in the A please practitioners, judges, and “All citizens shall, as human capacities from the rest of us. case, when it ordered ‘A’ to be so far as can be measured, persons, be held equal before But I suspect most lawyers, if returned to jail for committing a litigants. I am reluctant to rain the law. given a choice between arguing non-existent crime? Again, we on their parade, but think there “This shall not be held to mean in favour of that proposition and can only guess. are reasons to be wary. that the state shall not in its against it, would have little If the rules had been brought The official view was that enactments have due regard to difficulty in choosing. into existence through the creating the new division did not differences of capacity, physical Even if the concept might be legislative route, the government require legislation, so it was and moral, and of social validated by that sentence, what would have been able to reassure brought into existence by a function.” does the word ‘enactments’ in us that they had taken advice on statutory instrument amending People who do not qualify for it mean? Does the fact that the the constitutional validity of the the rules of court. This seems admission to the Commercial Commercial Court was Commercial Court, and we technically valid, but meant that Courts do not receive treatment brought into existence by a might have learnt what that its gestation was not exposed to reasonably equivalent to those statutory instrument, not an advice had been. As it is, we can legislative debate, a process that who do. There must be a strong ‘enactment’, exclude the effect probably assume the question can be useful. The main effect of argument that a courts system of the sentence? was addressed, but we do not the amended rules of court is as that creates such inequality is Of course, it is impossible to know what the advice was, or follows: the qualification for inconsistent with the opening predict how the Supreme Court how convincing, or confident, admission to the jurisdiction of words of the article and that the would decide on a challenge to it was. the Commercial Court is, instrument that brought it into the rules of the Commercial If I were still in practice and broadly speaking, that the cause existence is accordingly Court – and the current court advising a prospective plaintiff of action is ‘commercial’ in unconstitutional and void. seems more unpredictable than whose claim might fall within nature (as defined by the rules) Is it saved by the second many of its predecessors. And if the court’s jurisdiction, these are and exceeds €1 million. (There sentence? It is possible to argue it did strike down the rules, issues that would concern me. is judicial discretion to admit to the commercial jurisdiction claims that do not meet those criteria.) Personal injuries Affordable housing clawback actions are excluded. Once admitted to the ‘is in breach of my human rights’ jurisdiction, litigants receive Martina Maher, Ringsend, mortgage. Tome this is be very grateful for any advice treatment different from what Dublin 4 discrimination and that you, or your readers, may be other litigants can expect, would be grateful if you could unconstitutional and is in able to provide – bearing in including judicial directions Iplace my query in your breach of my human rights. mind that I am only one of designed to speed up the Gazette. It is in relation to taking 2) No provision is made for thousands who this affects. process, case conferences with a test case regarding the families who need to trade up This is a case of the judge, electronic exchange of ‘affordable housing clawback’. due to expanding family, discrimination because I had no documents, and ‘case The thing is that when this was because currently there are choice but to buy affordable, management’. They can also put into legislation it only more apartments being built. because DCC [Dublin City expect a speedier trial than other focused on the resale of the 3) Change in family Council] would not house me, litigants. property. There were no circumstances, for example, even though I was pregnant with All of this seems very provisions made in relation to: separation. my fourth child in a one-bed flat, satisfactory, at least for those 1) Changing mortgage provider 4) Mortgage top-up. and because we couldn’t afford litigants and, I assume, their – under the current legislation to buy on the open market. lawyers. But what about those you have to stay with the same I feel this whole legislation is in I would be really grateful for litigants who wait their turn for lender for the term of your breach of my rights and would any help/advice. G
www.lawsociety.ie 13 LAW SOCIETY GAZETTE JUNE 2007 COMMENT
Will the ombudsman build The new Garda Ombudsman Commission aims to reform policing and should contribute to making the gardaí a modern, more accountable service, writes Diarmuid Griffin n 8 May, the Garda criminal offence or behaved in OSíochána Ombudsman a way that would justify Commission was launched by disciplinary proceedings and Minister for Justice Michael deems it in the public’s McDowell. The establishment interest to carry out an of the commission is one of a investigation. The commission number of measures aimed at may also investigate a reforming policing in Ireland. practice, policy or procedure The commission faces the of the gardaí with a view to difficult task of investigating reducing the number of complaints made by citizens related complaints or against members of the gardaí incidents on request from the and building public confidence Minister for Justice. in the system of accountability being provided. Powers of investigation An Garda Síochána has There are a number of ways in become enmeshed in which complaints can be dealt controversy in recent history. with. The commission itself Gardaí out on the beat From the tragic Kerry Babies can carry out the investigation case in the ’80s to the damning ombudsman commission its dealing with complaints. The of the alleged behaviour. findings of the Morris Tribunal, statutory framework and powers conferred on the body Further, it must carry out an it was becoming increasingly mandate. The commission would suggest that Ireland investigation where death or evident that policing in Ireland replaces the Garda Complaints may finally establish an serious harm has resulted from was in need of modernisation. Board as the body responsible effective system of a garda operation or while in Justice Morris went as far to for dealing with complaints accountability in policing in the custody of the gardaí. The conclude that “An Garda made against gardaí. which the public can have commission may also refer a Síochána is losing its character The Garda Complaints confidence. complaint to the gardaí to as a disciplined force”. Board was established under the The commission is investigate. In such an Garda Síochána (Complaints) Act empowered to directly and instance, an investigation may Sustained criticism 1986 to provide a mechanism independently investigate be supervised and directed by After a period of sustained for citizens to make complaints complaints from the public the commission and, if criticism levied at both the of police misconduct. However, against members of the gardaí. necessary, the commission gardaí and government, the board encountered a Importantly, the commission may subsequently take over legislative measures aimed at number of difficulties, not least is empowered to investigate a the investigation. The powers reforming policing came with the heavy reliance on members matter or situation where no of investigation provided the Garda Síochána Act 2005. of An Garda Síochána to carry complaint has been made, but under the act are significant, The act aimed to provide a out the investigation of it appears to the commission particularly in relation to the modern framework for policing complaints. Further, the board that a garda has committed a seizure of evidence and the in Ireland. Among the was hampered by inadequate search of garda stations. provisions of the act was the resources and a public It may appear objectionable establishment of the Garda scepticism about gardaí The ombudsman commission to permit the gardaí to Inspectorate, the purpose of investigating complaints against has three commissioners: Mr investigate complaints but, in which is to ensure that the themselves. Justice Kevin Haugh (chairman practicality, with the level of gardaí achieve the highest levels of the commission), Carmel complaints expected (the of efficiency and effectiveness in Effective accountability Foley (former Director of commission has forecasted operation and administration As the commission becomes Consumer Affairs) and Conor 4,000-5,000 complaints per through providing advice on operational, it will be keen to Brady (former editor of The annum), it is necessary in best policing practice. mark its departure from the Irish Times). order to deal efficiently with The act also gives the outgoing mechanism of all complaints. Such a system
14 www.lawsociety.ie COMMENT LAW SOCIETY GAZETTE JUNE 2007 viewpoint confidence in gardaí? is consistent with the practice coloured previous attempts at gardaí. One of the best gardaí, encouraging an open of other jurisdictions, where providing informal approaches methods of achieving this is and co-operative response from similar procedures operate to the resolution of complaints through building the members. successfully. It also enables the under the Garda Complaints confidence within An Garda Resistance to change will commission to focus resources Board. Síochána itself in the operation always exist at some level in on the investigation of more On completion of the report of the commission. The gardaí, large institutions like An Garda serious complaints. Of course, of an investigation, the as an organisation, must Síochána. The public appetite such investigations will commission may refer the recognise that a system of for dramatic change in policing require appropriate report and any recommend- accountability is required to has existed for some time now. supervision where necessary ation it may have to the address the misbehaviour of Political leadership for such and sufficient levels of co- Director of Public Prosecutions members and that it is in the change materialised in the operation between the where they believe the conduct interests of the organisation Garda Síochána Act 2005. commission and the gardaí. may constitute an offence. that any misconduct is dealt After suffering significant losses Alternatively, the commission with appropriately. Such to its credibility, there now Informal resolution may recommend disciplinary structures are important in any appears to be a growing The act provides that action to the Garda organisation and should help willingness within An Garda complaints may be dealt with Commissioner where it appears develop greater public Síochána to change and to through mediation or informal that there has been a breach of confidence, not only in the provide the quality of service resolution. This mechanism is the garda disciplinary commission, but in the gardaí that is expected by the public. targeted at complaints of a regulations. New regulations as an organisation capable of In that sense, it is hoped that minor nature that do not intended to streamline providing a professional, the launching of the require a full investigation and disciplinary procedures are in transparent and accountable ombudsman commission will can be resolved quickly and the process of being adopted by police service to the public. not only represent a departure efficiently. In such instances, it the gardaí. Of course, if there is It appears that good relations from the previous mechanism is often more appropriate and insufficient evidence to support are already a priority of the of dealing with complaints beneficial to all concerned to a complaint, or if it appears that ombudsman commission and against the gardaí, but also resolve the problem informally the complaint is frivolous or the gardaí. A consultative group contribute to the transform- between the parties rather than vexatious, it may be dismissed was set up to create dialogue ation of the police force into a invoking a formal investigation. at any point. between the organisations and modern accountable service. G Significantly, when the matter An important function of other interest groups. Further, is resolved, no record is the commission is to build there have been several public Diarmuid Griffin lectures in retained on the personnel file of public confidence in the statements of support for the criminal law and criminology at the garda, an issue that system of accountability for the commission from top-ranking the Law Faculty, NUI Galway.
www.lawsociety.ie 15 LAW SOCIETY GAZETTE JUNE 2007 ANALYSIS New criminal court Dublin’s new criminal court complex, the largest courts project since the foundation of the state, aims to tackle the problem of ‘circulation and segregation’
t will be 11 stories tall, 25,000 privacy or segregation. Isquare feet in size, house 22 This makes court buildings ‘double-height’ courtrooms, “the most complex building type cost €291 million over 25 years that exists”, says Peter and take three years to build. McGovern of Henry J Lyons & But when it is finished, Dublin Partners Architects, the man will have a new criminal court chiefly responsible for designing complex that will be “unique” the new complex. in the world–a21st century landmark at the entrance to the ‘Promoting equality and city, just inside the Phoenix self-esteem’ Park, writes Colin Murphy. And so McGovern and his The uniqueness stems from colleagues have devised a scheme the peculiar challenge of that he believes may be unique designing a criminal court in the world, which will ensure complex that will solve the key that “judges, jury, witnesses, weakness of the overburdened and queuing beside each other custodial and public never cross Four Courts. The experts in the canteen. Justice shall be each other’s paths till they meet describe this as the problem of administered in public – but in the courtroom itself”. “circulation and segregation”: that hardly extends to McGovern has also sought to how to run a courts complex in everybody eating their lunch in create a “calm, light-filled space” which judge, jury, accused, full view of each other, a where scale and quality of witnesses, lawyers and the problem that may sound trivial, organisation will “promote public – not to mention the but can be acute in the case of equality and self-esteem”. media – are not tripping over serious criminal trials, for The result is an immense, each other on their way in and example, where discomfort for circular, glass-fronted building, out of the courts, bumping into the families involved is which will soak in light during each other in the entrance hall, heightened by the lack of the day and radiate it at night. At its core is a ‘great hall’, an echo of the Round Hall of the Four Courts, but four times the INSIDE THE CRIMINAL COURT COMPLEX size – in fact, it is similar in size to the Pantheon of Rome (the Professional facilities • Facilities for prosecution witnesses (including a ‘Temple of all the Gods’ – an • Legal practitioners’ rooms in a secure area with secure area for vulnerable witnesses), appropriate reference, perhaps). ancillary facilities including prison video link; • Two courts fully equipped for technology use, The courtrooms will sit off this • Accommodation and facilities in a secure area for • Video conferencing and communications facilities, hall, with the entrance to each the DPP, prosecution solicitors, court presenters, • A media room and small broadcast studio. visible from the hall itself, while gardaí and probation and welfare service; “separate horizontal and vertical • Facilities for 200 lawyers. Secure area circulation systems” (‘corridors, • Cell accommodation for up to 100 prisoners, stairs and lifts’ to you and me) Courts and ancillary facilities • A prisoner reception area with ancillary facilities, will provide separate pathways • 26 judges’ chambers and ancillary facilities in a • Prison officer accommodation and facilities, and entrances to each court. secure area, • A control room and prison-van dock. Lawyers will be pleased to • 16 jury courtrooms and several non-jury hear of the dedicated facilities courtrooms, General for legal practitioners. This will • A large jury assembly space in a secure area for up • Accommodation and facilities for security and include 31 consultation rooms to 400 people called for jury service, jury-minding personnel, and legal practitioners’ rooms in • Victim support rooms and ancillary facilities within • Kitchen and restaurant facilities and separate a secure area of the complex, a secure area, dining for juries, which will have ancillary • 31 consultation rooms, • Parking for prison vans and official personnel. facilities, including a prison video link.
16 www.lawsociety.ie ANALYSIS LAW SOCIETY GAZETTE JUNE 2007 complex underway
Work started on the complex our capital’s legal quarter”, and in early May and it is expected would “benefit the to be ready for use in the early administration of justice months of 2010. It will be generally in Dublin”. located just inside the walls of Speaking at a ceremony to the Phoenix Park, on the corner launch the project, in the of Parkgate Street and Round Hall at the Four Courts Infirmary Road. on 4 May, he said this was This is the largest courts “because the transfer of all project undertaken since the criminal cases and trials to the building of the Four Courts new criminal courts complex itself, in 1796. When will relieve many of the completed, all of the criminal pressures which currently courts will be transferred to the impinge on the administration new complex, leaving space for of justice here in the Four ways of what we as citizens are private/partnership’. They will the subsequent redevelopment Courts, due to critical lack of entitled to expect of the state.” build the complex and, once of the civil courts. courtrooms and space”. The new complex, and the new constructed, will effectively Addressing the launch prison at Thornton Hall, would lease it back to the Courts Axis change ceremony, the Minister for “meet the needs of the criminal Service for 25 years, after which The Chief Justice, Mr Justice Justice, Michael McDowell, justice system in Dublin and, it will revert to the ownership John Murray, said that the move said: “Mountjoy Prison and the indeed, Ireland, for many years of the state. The Courts Service of the criminal courts to the Four Courts have served to come”, he added. will pay for it in monthly new complex would create “a Dublin well over centuries, but The complex is being built instalments over the 25 years, at future which promises a great they were of their time and now by the global investment firm a total cost of €291 million in change in the axis of activity in fall dramatically short in many Babcock and Brown as a ‘public today’s terms. G
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ANALYSIS LAW SOCIETY GAZETTE JUNE 2007 Lawyers put on watch by leading human rights activist Glasgow-born lawyer Baroness Helena Kennedy QC is a seasoned advocate for social reform, making her an inspiring choice for guest speaker at the Law Society’s annual human rights lecture
ddressing the 150-strong PICS: SUSAN KENNEDY, LENSMEN grounds of terrorism. Aaudience assembled in the Reviewing the anti-terrorism Presidents’ Hall in Blackhall legislation introduced since Place, Baroness Kennedy 9/11, including detention shared her professional and without trial and the use of personal experiences involving torture to collect intelligence, the protection of human rights Kennedy explained how war in the ‘War on Terror’. Years can become an alibi for the of dedicated advocacy for suspension of normal laws. marginalised and vulnerable “Amid the clash of arms,” members of the community, as asserted Kennedy, “law should well as a position with the not be silent.” International Bar Association’s She proposed that it was the Taskforce on Terrorism, have responsibility of the legal “Terrorism always has its roots in perceptions of injustice” given her unique insight into – Baroness Helena Kennedy community to regulate the use the human rights challenges of of war power, thereby the 21st century, writes Anna mandates of power in the so- exacerbates, the antagonisms safeguarding due process and Bowen. called ‘War on Terror’. which underpin political upholding international Considering the current “In this uncertain, violence. If particular standards in human rights. climate of terrorism, Kennedy frightening world, it’s very easy communities feel that they are Describing law as the pointed to the expansion of for people to seek out strong subjected to special laws, a sense “biography of a nation”, she liberal democracy and its government, and for of injustice is inflamed – and reiterated the duties of the emphasis on globalisation as a government to read this as a terrorism always has its roots in legal community to defend the cause for concern. licence to authoritarianism,” perceptions of injustice.” law, to protect those vulnerable said Kennedy. Baroness Kennedy urged the to abuse, to support those Bad law counterproductive Citing instances where civil legal community to be vigilant, defending the rule of law and, “The very developments that liberties were eroded in the not only in its protection of ultimately, to uphold legal make global markets work – name of national security, civil rights for detainees, but principle. electronic transfer of money, Baroness Kennedy reminded also in its endorsement of a Underpinning Baroness telecommunications, the her audience of the lessons justice system reflecting Kennedy’s address was her mobile phone, the internet, the learned from historical community values. This, she belief that “law matters”. And web, email, ease of travel, the conflicts such as the Troubles claimed, was vital to both the if the enthusiastic response softening of borders, in Northern Ireland. credibility of democracy and from her audience was any deregulation, off-shore “Bad law is counter- the fight against indication, then we can safely banking – all equally facilitate productive,” she said. “It often marginalisation and poverty, assume she is right. markets in other commodities keeps alive and, in some cases, often regarded as breeding Baroness Kennedy follows that perhaps we aren’t so Australian Justice Michael enthusiastic about, like drugs, Kirby and former ANC activist arms, explosives, fissile Justice Albie Sachs as another material, people: the marketing prominent voice in the human and the trafficking in women rights debate appearing as part and children and babies, as of the Law Society of Ireland’s well as in human eggs and human rights lecture series, human organs,” she said. inaugurated in 2005. G Baroness Kennedy suggested that this was the type of activity A full audio account of Baroness currently threatening the rule Kennedy’s speech is available in of law, creating widespread fear MP3 file format on the Law Chairman of the Human Rights Committee Noeline Blackwell, Baroness and prompting governments to Helena Kennedy, Law Society Senior Vice President James MacGuill, and Society of Ireland’s website: claim uncircumscribed Parliamentary and Law Reform Executive Alma Clissmann www.lawsociety.ie.
www.lawsociety.ie 19 LAW SOCIETY GAZETTE JUNE 2007 ANALYSIS
International perspective
The Miss D case focused on questions of domestic childcare law and constitutional rights. Yet, as a 17-year-old, the girl’s own wishes and views should have been given precedence hile legal argument in the jurisdiction for the purpose, traditionally, children’s rights forming his or her own views Wcase of Miss D has then this course of action would were not associated with the right to express those views understandably been focused on indeed be in her best interests. freedom, but rather with freely in all matters affecting questions of domestic childcare What was curiously missing protection. It was thought that the child, the views of the child law and constitutional rights, from this equation was a children needed special being given due weight in there is another dimension to prioritised consideration of protection (including protection accordance with the age and this case that has provoked little what the girl herself wanted. from themselves) because of maturity of the child.” comment from inside or outside Yet, as a 17-year-old, the girl’s their vulnerability and lack of To preserve the correct the High Court. This is the own wishes and views should experience. balance between the protection difficult question of how to have been given precedence as a However, the 1989 UN that children need as children assess the best interests of the matter of human rights. This Convention on the Rights of the and their freedom as rights- child, when the child wishes to human rights angle is not to be Child, while preserving some of holders, article 3 must be read embark on a course of action found in the thrust of legal the emphasis on protection, in the light of article 12. In that the adult in charge (leaving argumentation in the case, and reconceived the child as a basic terms, this means that aside the fact that the High it will be interesting to see holder of rights – understood as when carrying out the best Court has now found that the whether Justice McKechnie, freedoms in the classical sense. interests assessment, the child’s HSE is not in charge of the who has been highly critical of The protection emphasis finds views must be canvassed. The decision) considers to be wrong the HSE, addresses the matter its clearest expression in article amount of weight to be given to because it is perceived to be in his judgment. 3 of the convention, which child’s own views of what are in contrary to the child’s welfare provides that “in all actions his/her best interests will vary or because it raises complex ‘Freedom’ versus ‘protection’ concerning children, whether depending on the age and ethical issues. The concept of children’s rights undertaken by public or private maturity of the child. As the hearings progressed as human rights is a vexed one. social-welfare institutions, over the past number of weeks, Human rights are classically courts of law, administrative Ethical dilemmas the HSE appeared to concede associated with freedom to authorities or legislative bodies, The assessment of age and that, if Miss D received make choices and have those the best interests of the child maturity, however, is a separate counselling so that she was fully choices respected, regardless of shall be a primary question from the perceived informed, and if her mother whether, objectively, they consideration”. The rights rightness or wrongness of the continued to consent to her promote or inhibit a person’s emphasis is captured best in child’s views. If it were obtaining an abortion, and if it welfare. It follows that human article 12, which provides that otherwise, a decision-maker was legal for the HSE to rights and paternalism are not “States Parties shall assure to could conclude that a child is authorise her to leave the easy bedfellows. However, the child who is capable of too young and/or immature to
ONE TO WATCH Consumer Protection Act 2007 methods of payment, such as by National Consumer Agency Prohibited commercial practices At 102 sections and 90 pages, credit cards. The act mainly The agency was a recom- The Unfair Commercial Practices the Consumer Protection Act provides for the establishment of mendation of the Consumer Directive prohibits unfair, 2007 is a major piece of a National Consumer Agency and Strategy Group, and it has wide- misleading and aggressive legislation. It was signed into law the implementation of the Unfair ranging powers to research, commercial practices, which are on 21 April and was brought into Commercial Practices Directive advocate, educate, raise defined widely and in detail in part effect on 1 May by statutory (Directive 2005/29/EC). Having awareness and act in the 3 of the act. They include: instrument numbers 178 and 179 common consumer protection interests of consumer • Giving false, misleading or of 2007. Only sections 48 and 49 standards across the EC will protection. Its functions are set deceptive information, have not been commenced; they facilitate cross-border purchases, out in section 8. It was • Competitor or product deal with the prohibition on which the Irish engage in to a established in 2005 on a non- confusion in marketing or surcharges in relation to certain greater degree than most. statutory basis. advertising,
20 www.lawsociety.ie ANALYSIS LAW SOCIETY GAZETTE JUNE 2007 human rights watch on the D case
determine his/her own best means that institutions such as interests simply from the fact the HSE are not required to that the decision-maker does take the international not agree with the child’s understanding of such concepts views. And as philosopher as ‘best interests’ into Ronald Dworkin famously consideration when discharging commented, we would not be their duties. taking human rights seriously Quite apart from the lack of if we only granted rights when legal obligation, Ireland’s we thought the person was lukewarm attitude to doing the right thing. This is international human rights not to suggest that there is no norms on the domestic stage link between the assessment of means that a source of valid and age and maturity and the worthy legal guidance is lost to ethical complexity of the decision-makers. It is submitted decision at hand. However, that, if due regard had been there is no obvious link shown to Miss D’s views in between a person’s age and accordance with international maturity and their ability to best practice, this unfortunate wrestle with ethical dilemmas. case would not have ended up After all, adults make unethical where it did – enmeshed in choices all the time and litigation that nobody wanted, children’s behaviour is presumably at great personal frequently exemplary, as the cost to Miss D, who has already present case illustrates. been through an ordeal that This balancing between would test any adult. Expect protection and freedom, with a Ireland to be criticised for its greater emphasis on the latter handling of this case the next as the child gets older, has been time it appears before the the subject of much discussion its international human rights provisions of the convention Committee on the Rights of and guidance by the Committee obligations, while Ireland has nor the voluminous the Child. G on the Rights of the Child – the ratified the convention, it has jurisprudence of the Committee convention’s international yet to incorporate its provisions on the Rights of the Child can Ciara Smyth is a lecturer in monitoring body. into domestic law. In effect, this be argued with binding effect international human rights law in Unfortunately, as with most of means that neither the before Irish courts. It also the Faculty of Law, NUI Galway.
• Non-compliance with a code of they affected a consumer’s Many of the listed prohibited • Compliance with price-display practice that applies to the decision to enter into a practices are common and will be regulations, trader, and transaction, for example familiar to consumers. These • Access to weighing scales • Withholding or concealing persistent cold calling, exhorting provisions of the act are a case of where food is sold by weight. material information. children to buy (or pester a parent the law seeking to effect a to buy) something being cultural change. Emergency orders A list of 23 specified misleading advertised, or stonewalling a Other more familiar rules are The government (not the minister) practices are prohibited, such as customer’s claim on an insurance also included: is empowered to make emergency bait advertising and phoney prize policy (s55). Part 4 prohibits • Compliance with any orders in respect of a product, draws, and eight aggressive pyramid schemes and replaces regulations made by the and fix maximum prices for such commercial practices are the Pyramid Selling Act 1980, minister providing for consumer products for the duration of the prohibited even without proof that which had proved ineffective. information, order (the minister mentioned the
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ANALYSIS LAW SOCIETY GAZETTE JUNE 2007
example of oil). This limited subsequent summary convictions, other fine or penalty. In relation to for directions to be given on health provision replaces all other price- the penalties rise to €5,000 and certain offences, the court may and safety grounds. fixing powers, and was 12 months’ imprisonment. order the publication of corrective Concluding his introduction of the recommended by the Consumer Provision is made for daily fines of statements by the convicted bill in the Seanad, Minister Micheál Strategy Group, the Competition up to €500 for ongoing trader. Provision is also made for Martin summarised: “The bill Authority and others. contraventions. on-the-spot fines for price display represents a fundamental On indictment, in relation to and product-pricing offences. realignment of national consumer Remedies and penalties certain offences only, the policy by establishing a new agency Remedies for contravention may penalties are €60,000 and 18 Adverse publicity and guidance with much expanded and enhanced include giving an undertaking of months, or both, for a first The agency may keep a list – the powers and creating a forceful new compliance, civil proceedings to offence, rising to €100,000 and ‘Consumer Protection List’ – of consumer advocate, a role lacking obtain an order for the 24 months for subsequent persons convicted, fined, the in public debate and policy-making contravention to be discontinued, offences, with penalties for subject of compliance orders and in recent years. The bill replaces and the suing of a trader for creating a pyramid-selling scheme those who have given nine existing acts with a single damages by an aggrieved rising to €150,000 and/or five undertakings, and it may publish it. statute. This represents a consumer. Compliance notices years’ imprisonment, and daily There are protections for people significant gain in the accessibility may be issued by agency officials fines of up to €10,000. Further, reporting breaches of the act, and and transparency of our consumer and there is provision for appeal. on convicting persons for offences traders or trade organisations may protection code and one that I am Many of the prohibited under this act, the courts are submit codes of practice for the determined to extend to the practices are also criminal required to order convicted agency to review and approve, remaining areas of that code.” offences, and may be prosecuted persons to pay the costs of which may be relied upon in court With sufficient resources within two years of their investigation and prosecution to proceedings. The agency may also available to the National commission. Persons acting for the National Consumer Agency, publish guidelines. Consumer Agency, it has the companies may be held personally unless there are special and The act replaces a large body of potential to deliver a sharp liable, and there is a defence of substantial reasons against doing consumer protection law going correction to ‘rip-off Ireland’. G due diligence. First summary so. Aggrieved consumers may back to 1887. The act also conviction creates liability for a apply for compensation orders on provides for consumer protection in Alma Clissmann is the Law fine of up to €3,000, six months’ conviction of a trader, which a the financial services sector in Society's parliamentary and law imprisonment, or both, and on court may order in addition to any section 94, and there is provision reform executive.
www.lawsociety.ie 23 LAW SOCIETY GAZETTE JUNE 2007 COVER STORY a very PRIVATE affair The parameters of privacy law are undergoing rapid change, with technology allowing cheap and effective tools for interfering with the privacy of others. But Irish privacy law remains in a state of flux, writes Denis Kelleher
t present, the parameters of privacy Kingdom may require that Ireland legislate law are undergoing rapid change. Last specifically for workplace monitoring, and year saw the publication of the Privacy Wainwright v United Kingdom may require Ireland to Bill 2006, although it never got provide a more general tort of privacy – if this issue beyond first stage in the Seanad, and a has not already been dealt with by the High Court Anumber of recent judgments have had considerable in Gray v Minister for Justice. implications for privacy law. However, the really significant changes are not occurring in courts and Journey into fear legislatures but rather in the fields of technology and One key area where privacy is under threat is the online communications. workplace. Article 8(1) of the European Convention on Technology has created cheap and effective tools Human Rights (ECHR) provides individuals with a for interfering with the privacy of others. Camera right to privacy. Article 8(2) provides for exceptions phones are probably the best example, but whole to this right. In Halford v United Kingdom, the ranges of monitoring devices are now available at European Court of Human Rights (ECtHR) held low cost that require minimal skills to set up. This that, where an employee was not warned that her means that private citizens have access to calls would be monitored, she then had a reasonable surveillance equipment vastly superior to what was expectation as to the privacy of calls made from her only available to the secret police of repressive work phone. In Copland v United Kingdom, this regimes just a couple of decades ago. Websites such ruling was extended to email and internet usage. In as Bebo and YouTube make publishing the material Copland, the applicant was employed as a personal gathered by such devices straightforward. Private assistant to the members of the senior management citizens can now publish material derived from such of a college in Wales. The college intensively MAIN POINTS surveillance to the whole world. A couple of decades monitored the applicant’s phone, email and internet • Right to privacy ago, the principal threats to an individual’s privacy browsing. The ECtHR held that “the collection and in Irish law were the press and the police. Since the vast storage of personal information relating to the • Recent ECtHR and majority of people were neither sufficiently applicant’s telephone, as well as to her email and Irish decisions delinquent nor important to merit the attention of internet usage, without her knowledge, amounted to • Requirement that either group, privacy was not a major issue. Now the an interference with her right to respect for her Ireland legislates principal threats to an individual’s privacy are that private life and correspondence”. specifically for individual’s fellow citizens: his neighbours, The college had no internet-usage policy in place workplace employers, friends and acquaintances. at the time that the monitoring took place, but it is monitoring? Two recent decisions on the right to privacy may not clear from the judgment that the existence of have implications for Irish law. Copland v United such a policy would have ensured that the
24 www.lawsociety.ie COVER STORY LAW SOCIETY GAZETTE JUNE 2007
www.lawsociety.ie 25 LAW SOCIETY GAZETTE JUNE 2007 COVER STORY
which they had agreed, would be permitted by article 8(2) of the ECHR. But the ECtHR would appear to prefer that workplace monitoring be regulated by legislation. The ECtHR did not rule out the possibility that workplace monitoring could occur where regulations had not been enacted – but such monitoring would only occur in “certain situations”. The ECtHR did not define what these situations might be. The decision in Copland means that Ireland might prudently consider legislating for monitoring in the workplace.
Above suspicion Copland would seem to suggest that some regulation of workplace monitoring is required. Another requirement of the ECHR is that Ireland must provide “an effective remedy” to those whose rights are violated. In Wainwright v UK, the applicants were visiting a relative in a prison that had an endemic drug problem. The applicants were incorrectly suspected of smuggling illegal drugs into the prison and were subjected to a strip search. The ECtHR held that these searches were a breach of the applicants’ right to privacy under the ECHR. monitoring was “in accordance with the law”. The The ECtHR then examined whether Britain had court noted that, to be in accordance with the law, provided the applicants with an effective remedy for “there must be a measure of legal protection in this breach. The ECtHR held that it did not, as the domestic law against arbitrary interferences by House of Lords had decided that “there was no public authorities with the rights safeguarded by general tort of invasion of privacy”. article 8(1). This is all the more so in areas such as One of the purposes of the Privacy Bill 2006 was the monitoring in question, in view of the lack of to provide for such a tort. Of course, Irish law public scrutiny and the risk of misuse of power.” differs from English law in that Ireland has a The ECtHR was of the view that any law that constitutional right to privacy. The argument can be permitted monitoring would have to be compatible made that this constitutional right provides the with the rule of law. This means that, in order to effective remedy required by the ECHR. Quirke J fulfil the requirement of foreseeability, a law must recently reviewed this remedy in Gray v Minister for “be sufficiently clear in its terms to give individuals Justice. In this case, the plaintiffs were a family who an adequate indication as to the circumstances in had moved from Dublin to Kerry. Unfortunately, a which, and the conditions on which, the authorities nephew of the family joined them there following are empowered to resort to any such measures”. his release from prison, where he had served a The ECtHR noted that there was no domestic lengthy sentence for violent rape. The nephew law regulating monitoring in Britain at the time. became a suspect in a garda investigation into This led the court to the conclusion that the serious sexual offences and local gardaí sought to interference was not in accordance with the law in interview him at the family’s home. this case. The ECtHR was careful to make it clear Subsequently, the fact that a convicted rapist had that it was not saying that monitoring of employees moved from Dublin to Kerry became local and was illegal unless the monitoring was regulated by a national news. As a result, the family left Kerry and domestic law such as the Communications (Lawful went back to Dublin. They lived in a B&B for six Business Practice) Regulations 2000, which was enacted months, spending their days in the family car and by Britain in the years after the events gave rise to eating in fast-food restaurants. The mother became this action. The ECtHR stated that: “The court significantly depressed and contemplated suicide. would not exclude that the monitoring of an The family initiated a claim for damages against the employee’s use of a telephone, email or internet at state, alleging that information relating to the the place of work may be considered ‘necessary in a nephew had been leaked by the gardaí to the media. democratic society’ in certain situations in pursuit of Quirke J held that “a member … of An Garda a legitimate aim.” Síochána negligently disclosed confidential and But the ECtHR declined to pronounce further on sensitive information to an organ of the media”. this issue. The ECtHR might consider that The difficulty with this judgment from a privacy monitoring where an employer had an acceptable- perspective is that, while Quirke J referredtothe use policy, of which employees were aware and to plaintiffs’ right to privacy, he would appear to have
26 www.lawsociety.ie COVER STORY LAW SOCIETY GAZETTE JUNE 2007
actually awarded damages against the defendant reputable solicitor was misfeasance of public office because of the “negligence” of the gardaí. by servants of the state. Gray means that, in future, Specifically, Quirke J stated: “I am satisfied that the plaintiffs may not have to establish misfeasance in unlawful and negligent disclosure by a member … similar cases – they may only have to establish of An Garda Síochána of the relevant information negligence. This may make it much easier to … comprised a violation of the ... right enjoyed by establish similar claims in the future. Gray similarly … the plaintiffs to privacy.” extended the rule of the High Court in Kennedy & Arnold. In Kennedy, the High Court held that the The looking-glass war state’s deliberate bugging of the plaintiffs’ telephone Quirke J appears to have regarded the breach of the breached their privacy. In Gray, it held that the plaintiffs’ privacy as being a consequence of the plaintiffs’ privacy had been breached by the state’s defendant’s negligence. One interpretation of this negligence. So future claimants who wish to seek judgment might be that Quirke J did not treat the damages for breach of their privacy by the state may breach of the plaintiffs’ privacy as being a cause of only need to prove negligence – not that the state action. Quirke J appeared to regard the plaintiffs’ deliberately breached their privacy. cause of action as being primarily one of negligence. Gray ensures that those who sue the state for Instead, Quirke J appeared to treat breach of privacy breach of privacy may have a more effective remedy. as being a head for the assessment of damages. The But the state and its officers are subject to very difficulty with this interpretation is that Quirke J did different duties than private citizens. It may not be not assess damages for breach of privacy – instead, “So future possible to stretch the judgment of Quirke J in Gray he assessed the plaintiffs’ damages purely in terms of claimants who far enough to create something analogous to the the distress, upset and inconvenience that was caused general tort of invasion of privacy that the ECtHR to them, just as he might assess damages in any wish to seek seemed to require in Wainwright. So it may be other negligence case. Unlike Kennedy & Arnold v damages for argued that, following the decision in Gray, Irish law Attorney General, Gray was not a decision purely still does not provide the “effective remedy” for about the right to privacy. In Gray, a number of breach of their victims of privacy breaches that is required by article different causes of action were mixed together: privacy by the 13 of the ECHR. negligence, breach of confidence and breach of state may only privacy. It is clear from the judgment that Quirke J The human factor gave the most weight to the defendant’s negligence, need to prove Irish privacy law remains in a state of flux. The Irish but it is not clear how much weight he attached to print and broadcast media made its opposition to the other causes of action. negligence – the Privacy Bill 2006 very clear. Those media point Gray undoubtedly extends the ruling of the High not that the to the controls that are offered by the Defamation Court in Hanahoe v Hussey. In that case, it was held Bill 2006, which would establish a press council. that the leaking to the media of the news that the state One of the principal objects of that council would gardaí were about to search the offices of a highly deliberately be to “ensure that the privacy and dignity of the individual is protected”. The difficulty is that there breached their is a variety of new media such as YouTube, Bebo and LOOK IT UP privacy” MySpace, where privacy can be breached in a whole Cases: variety of new ways. By definition, a private • Copland v United Kingdom, 62617/00 [2007] individual posting material on such a site will not be ECHR 253 (3 April 2007) subject to the dictates of the press council. • Gray v Minister for Justice, High Court, It seems highly unlikely that a mechanism such as unreported, [2007] IEHC 52 the proposed press council could be extended to • Halford v United Kingdom, 20605/92 [1997] such sites, but even if it could, publication is not ECHR 32 (25 June 1997) necessary to breach another’s privacy. The • Hanahoe v Hussey [1998] 3 IR 69 development of modern communications • Kennedy & Arnold v Attorney General [1987] IR technologies, and the development of a society 587 where such technologies are pervasive, mean • Wainwright v United Kingdom, 12350/04 [2006] opportunities for breaching the privacy of others are ECHR 807 (26 September 2006) multiplying. The challenge for the state is to ensure that individuals can effectively protect their right to Legislation: privacy – on and offline – while ensuring that the • Communications (Lawful Business Practice) right to freedom of expression provided by the Regulations 2000 Constitution and the ECHR is not unduly • Defamation Bill 2006 restricted. G • European Convention on Human Rights, article 8(1) Denis Kelleher is a barrister and advisory counsel in the • Privacy Bill 2006 Office of the Attorney General. Views expressed in this article are his personal views.
www.lawsociety.ie 27 LAW SOCIETY GAZETTE JUNE 2007 CONVEYANCING THIS OLD MAIN POINTS Condition 36 of the Law Society’s General Conditions of Sale is often • General Conditions deleted, shifting the burden of planning investigation and compliance to the of Sale purchaser. John Gore-Grimes points out solicitors’ responsibilities and asks • Condition 36 – the ‘vendor’s warranty’ whether the condition is a benefit or a burden • The warranties covered by hen the full implications of 6) Except for any developments intended to be Condition 36 Condition 36 are realised, it is carried out between the date of sale and the date • Implications of easy to understand why it is so on which the sale should be completed, the deleting Condition frequently deleted in convey- vendor will, prior to completion, furnish to the 36 ancing transactions. The purchaser written confirmation from the local Wwarranty that the vendor offers in Condition 36 is authority about payment of all financial now so wide and goes back for so many years, that it contributions or the furnishing of bonds is almost impossible to stand over it except in cases contained in planning permissions or fire safety of recent development. certificates (if any), but this only applies in cases Condition 36 provides great comfort to the where the consents relate to a residential purchaser where it is not deleted but, in many cases, development that forms part of a residential it might be asked whether the vendor realises the full housing estate. extent of the warranty. The Condition 36 warranty is 7) The vendor will furnish to the purchaser a the vendor’s warranty. It is not the vendor’s solicitor’s certificate or opinion from an architect or an warranty. engineer or other professionally qualified person In effect, by allowing Condition 36 to stand in a competent to certify and confirm in relation to contract, the vendor warrants that: all planning permissions, bye-law approvals (if 1) No development has taken place since 1 October applicable) and building regulations. The 1964 for which planning permission or bye-law certificate or opinion must relate to the subject approval was required. property and, where applicable, confirm that the 2) Where development has taken place since 1 design of the buildings is in substantial October 1964, planning permission and bye-law compliance with the Building Control Act 1990 approvals were obtained (except in respect of and applicable regulations and that the matters of trifling materiality) and the conditions in the permissions were complied with substantially in relation to development on the JIGSAW PUZZLE site. The ‘General Conditions of Sale’ refers to the Law 3) Unless altered by special condition, the vendor’s Society’s standard conveyancing contract for the warranty guarantees, in relation to the design or sale or purchase of an interest in property. The development of any property or any use, that it is terms of this contract will determine the rights and in substantial compliance with the Building duties of the buyer and seller. The current edition of Control Act 1990. this contract is the 2001 (revised) edition. This 4) All permissions and approvals under the planning standard contract for sale is used in all types of acts (and, if relevant, under the building bye- property transactions and it provides a fair balance laws) will be made available to the purchaser. of rights between a vendor and purchaser. It deals, 5) Fire safety certificates and (if available) among other things, with the type of interest being commencement notices under the Building sold, its physical location, title and when Control Act 1990 referable to the property will be completion of the transaction will take place. furnished.
28 www.lawsociety.ie CONVEYANCING LAW SOCIETY GAZETTE JUNE 2007 HOUSE
A full planning check development of the property has been carried complete picture that will enable a vendor to give a might alert prospective out in substantial compliance with the planning Condition 36 warranty – and that is why it is purchasers that their desired property is not permission and in compliance with the frequently deleted. quite up to scratch provisions of the Building Control Act 1990 and It is sometimes overlooked that the Condition 36 the relevant regulations. warranty is the vendor’s warranty. It is therefore essential that the vendor realises the implications of 19th nervous breakdown the warranty that he is giving to a purchaser. On Tracking the planning history of a development back occasions, contracts are sent out by a solicitor on a to 1 October 1964 has, in many cases, become an vendor’s behalf and the vendor has either no idea of impossibility. The records of the planning authority the extent of the warranty being given or, more are often patchy, to say the least. Memories fade commonly, he is not aware that any warranty and, since 1964, a very large percentage of property whatsoever is being given. There is only one safe in Ireland has changed hands many times. It is way to deal with this. In preparing a contract and impossible, or almost impossible, to build a collecting details from the vendor, the vendor should
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defective, it is the vendor’s solicitor who will be liable for the consequences. AROUND AND AROUND In general, it is likely that the warranty required Until a planning amnesty becomes a reality, solicitors will be left in a limbo by Condition 36 is unsafe unless the vendor is situation. In summary, and while we remain in limbo, the following guidelines must personally aware of the full planning history of the be followed as a minimum: development back to its ‘development date’, unless it 1) Fully explain the meaning of the warranty offered by Condition 36 to a vendor was developed prior to 1 October 1964. If client. Condition 36 is not deleted, the vendor warrants an 2) Always think before deleting clause 36. In a spirit of co-operation, we should all absolutely clean bill of health in relation to planning try to assist a transaction so that it closes quickly and without difficulty. If a and building-control legislation. vendor’s solicitor is satisfied from the investigations made that there are no planning defects and that the vendor is happy to warrant such, then Condition Beast of burden 36 should not be deleted. If, on the other hand, a vendor’s solicitor is not so When a vendor’s solicitor deletes Condition 36, the satisfied, then Condition 36 must be deleted. burden in relation to a planning investigation and in 3) If Condition 36 is deleted, the onus shifts in relation to all planning and relation to planning compliance is shifted from the building regulations matters from the vendor to the purchaser. The purchaser vendor to the purchaser. Where a purchaser’s must therefore make all enquiries necessary that, in all but the simplest solicitor sees that the planning warranty has been cases, will involve employing an architect, engineer or town planner to inspect struck out, he will be immediately suspicious. He the property and to inspect the local authority files. will expect that there may be some serious planning 4) Never take responsibility for other people’s planning defects. If a development defects. The purchaser must be advised by his or part of a development does not have planning permission, then the only solicitor that Condition 36 has been deleted, and the advice you can give to a client is that retention permission must be obtained. It implications of that deletion must be fully explained. is a matter for the client, and not for the solicitor, to decide whether or not to Where a planning warranty has been deleted, it is proceed with the application for retention permission. The client needs to be often (but not always) a danger signal. advised of the consequences of making a retention application. Invariably, it will be necessary to employ an 5) Always include planning defects in the ‘qualifications’ section of a financial architect or planning consultant to examine the institution’s certificate of title. planning history of the premises and to scrutinise the planning files. If any planning defects are found (no matter how trivial), a solicitor must advise his client in be advised (preferably in writing) of the extent of the writing. He must seek written instructions confirming warranty that is being given. A letter containing that the client has been so advised and, if it is the case, points 1 to 7 above would be a very comprehensive the instruction should state that the client intends to explanation, but it could be shortened and made proceed with the transaction. As a solicitor, you must more user-friendly. It might be sufficient to say that, never take responsibility for other people’s planning in signing a contract for sale, the vendor is defects. Most importantly, where planning defects are warranting that all matters relating to planning, bye- disclosed or where they are detected, they should laws and building regulations are in perfect order always be included in the ‘qualifications’ section of a and that there is no unauthorised development. If “Where a certificate or title where the purchaser is obtaining a the warranty that the vendor is asked to give in all planning loan from a financial institution. Law Society contracts is not explained, then it is open to the vendor to say that he did not know warranty has (Can’t get no) satisfaction about it and that, if he had known, he could not been deleted There is, of course, an absolute and pressing need possibly have given such a warranty. He would say for a ‘planning amnesty’. Both the Law Society and that he certainly would not have given any warranty it is often the Law Reform Commission have advocated a without notice of it. If a vendor denies that he was (but not planning amnesty but, so far, the Oireachtas has not advised of the warranty contained in Condition 36 listened to these recommendations. We cannot then, in the event of the warranty being seriously always) a continue to look back over the past 43 years to 1 danger October 1964. A planning amnesty – which might, LOOK IT UP for example, provide that no investigation is signal” required in respect of any development completed Legislation: more than 15 years ago – is an immediate • Building Control Act 1990 requirement. If a development contains planning • European Communities Act 1972 defects, that development should be deemed by the • Local Government (Planning and Development) amnesty to be in full compliance with all planning Acts, 1963-2006 and building regulations’ legislative requirements once 15 years have passed since the development Literature: was completed. G • Local Government (Planning and Development), General Policy Directives 1982 and 1988 John Gore-Grimes is partner in the Dublin law firm Gore & Grimes.
www.lawsociety.ie 31 LAW SOCIETY GAZETTE JUNE 2007 TRIBUNALS
MAIN POINTS The recent systematic leaking to the press of Mahon Tribunal briefing • Legality of Mahon material relating to the finances of the taoiseach makes for riveting reading Tribunal leaks and opportunist politics, but is it legal? Pamela Cassidy mops the floor • Free speech rights of the press and ith a Garda investigation The second is the protection of the free-speech whistleblowers underway, the leaks of Mahon rights of the press and of whistleblowers. Free • Constitutional Tribunal briefing material to the speech has long proved to be a trump card in rights of press is an issue that may be European convention jurisprudence, as any individuals in troubling more than one restriction on this right must be proportionate, respect of Wnewspaper editor who believed himself safe after the necessary and prescribed by law (see panel). disclosures Supreme Court ruling last March that set aside a blanket-ban injunction on disclosure. Fix it, dear Henry The consequences of the unauthorised Both senior judges chairing the Tribunal of Inquiry publications have been sensational. The taoiseach’s into Certain Planning Matters and Payments have reputation and fitness to govern were questioned at taken steps to protect the confidentiality of tribunal the start of a general election campaign. It was procedures. Their concerns are that the systematic rumoured that the government was on the brink of leaking of information to the press affects due collapse. The tánaiste demanded a public statement process, damages confidence in the working of the and the taoiseach released material that almost tribunal and interferes with the constitutional rights certainly anticipates his evidence to forthcoming of participants. Although voluntary co-operation is tribunal hearings. The disclosures have been not essential – the tribunal has statutory powers to variously blamed on the tribunal, on recipients of compel the production of documents – it obviously the briefing material, opposition leaders and the helps, and the tribunal expressed concern that tánaiste, with accusation and counter-accusation volunteers may be affected “by fear that confidential taking centre stage. It all makes for good press and, information disclosed by them would be published”. perhaps, clever political timing. In 1998, the tribunal devised a protocol to protect It also brings to the fore two fundamental issues, information that was ‘confidential’. To a lawyer, this the first being whether it is appropriate that a means information that is legally confidential. In tribunal of inquiry can to be used to facilitate practice, the tribunal went further and directed that political opportunism and reputational attack. all information – intrinsically confidential or not – circulated in briefing notes prior to public hearings was confidential. In 2004, the Sunday Business Post published two FREEDOM OF EXPRESSION articles incorporating material from tribunal briefing Bunreacht na hEireann, article 40.6.1 notes. Some of this material was already in the “The state guarantees liberty for the exercise of the following rights, subject to public domain, for example, documents of title and public order and morality: company records. The tribunal asked the journalist The right of citizens to express freely their convictions and opinions.” to identify his source and return the material. Days later, the paper published a third article, which European Convention on Human Rights, article 10 included material contravening a tribunal direction “Everyone has the right to freedom of expression. This right shall include freedom as to non-identification. to hold opinions and to receive and impart information and ideas without The journalist subsequently refused to reveal his interference by public authority and regardless of frontiers. This article shall not source and return confidential material, which, he prevent states from requiring the licensing of broadcasting, television or cinema said, he had destroyed. The tribunal successfully enterprises. applied ex parte to the High Court for an injunction “The exercise of these freedoms, since it carries with it duties and restraining “the newspaper and persons having responsibilities, may be subject to such formalities, conditions, restrictions or knowledge of the injunction from publishing or penalties as are prescribed by law and are necessary in a democratic society, in using information or reproducing any document in the interests of national security, territorial integrity or public safety, for the relation to which the tribunal has directed that such prevention of disorder or crime, for the protection of health or morals, for the information should remain confidential until protection of the reputation or the rights of others, for preventing the disclosure of disclosed at public hearing of the tribunal or as information received in confidence, or for maintaining the authority and impartiality otherwise directed by the tribunal; OR which the of the judiciary.” tribunal has circulated on a confidential basis to any party or witness to the tribunal (a) before such
32 www.lawsociety.ie TRIBUNALS LAW SOCIETY GAZETTE JUNE 2007
HOLEHOLE in my bucket
information has been disclosed or read at a public Kelly J held that its terms were too wide and, had hearing of the tribunal; OR until the tribunal has the tribunal been “less ambitious” and confined given express permission for the publication or use its claim to documents that it obtained in of such information.” That injunction remained in confidence, “there might be something to be said place until March 2007. for the court’s intervention”, although he was doubtful about whether the tribunal could create With what shall I cut it? a sufficiently precise, minimal impact, claim. He In 2005, the High Court rejected the tribunal’s set aside the injunction, but it was reinstated application to make the injunction permanent. pending appeal.
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tribunal accepts that there is no provision in the ENFORCING COMPLIANCE Tribunals of Inquiry Acts conferring ... Trinunals of Inquiry (Evidence) (Amendment) Act 1997, section 4 confidentiality on the tribunal or ... its workings”, “Where a person fails or refuses to comply with or disobeys an order of a tribunal, and that “the tribunal, while referring to section 4 the High Court may, on application to it in a summary manner in that behalf by of the Tribunals of Inquiry (Evidence) (Amendment) the tribunal, order the person to comply with the order and make such other order Act 1979, does not claim that an order has been as it considers necessary and just to enable the order to have full effect.” made pursuant to that provision or even that the section authorises such an order”. The free-speech Tribunals of Inquiry (Evidence) (Amendment) Act 2002, section 7 restriction was not, therefore, prescribed by law “A person who, without reasonable cause, by act or omission obstructs or hinders and could not stand. an investigator in the performance of his or her functions under section 6, or fails While that disposed of the matter, the court also or refuses to comply with a requirement made to the person under subsection (4) concluded that any such injunction must fail the of that section, shall be guilty of an offence. proportionality and necessity test for free-speech “A prosecution for an offence under this section may be brought only by or with restriction in article 10. Fennelly J ruled that “the the consent of the Director of Public Prosecutions. tribunal seeks an order which will restrict freedom “A person guilty of an offence under this section shall be liable on summary of expression. It claims that the press should be conviction to a fine not exceeding €3,000 or imprisonment for a term not restrained from publishing information which it exceeding 12 months or both.” has designated as confidential. It has not been able to identify any legal power which it possesses to designate information released by it in that way. It The following year saw another serious leak, seeks an order in very wide terms in respect of with publication in The Irish Times of a unspecified information, which would affect the confidential letter of request from the tribunal entire media.” The Sunday Business Post journalist to a potential witness, relating to the taoiseach’s was merely rebuked for breaching the identity finances. The tribunal acted immediately: the order of the tribunal, the appeal was dismissed and editor and journalist were ordered to return the the injunction set aside. material, reveal the source and explain how they came to breach the injunction. They In what shall I fetch it? replied that the material was unsolicited, was There was a word of warning, however, from the now destroyed, and they were unaware of the court, which drew a distinction between the injunction. At a public hearing, they tribunal’s investigative acts and its hearings. This maintained this position and declined to answer distinction may prove to be crucial in the future. questions. The tribunal referred the matter to “Clearly ... none of this concerns the confidentiality the High Court under section 4 of the 1997 act of the private proceedings of the tribunal in its (see panel), seeking an order compelling investigative phase, conducted prior to the decision compliance. This case is now at submissions to go on to public hearings and to circulate briefs. stage. That is the ordinary right to confidentiality that a body possesses in respect of ... its own internal The axe is too dull activities. Nobody, whether in or out of the media, The Supreme Court gave judgment in the Sunday has the right to invade or trespass upon the internal Business Post case in March 2007. The court noted workings of any individual or organisation.” It that the legal basis for the tribunal’s requested remains to be seen, therefore, whether the High injunction was confidence, and ruled that the law Court will endorse the tribunal’s right to question of confidence does not protect information that is journalists about the source of disclosures relating to not intrinsically confidential and, furthermore, non-briefing material. does not permit a third party (the tribunal) to The judgment leaves unanswered the vital vindicate the rights of others. Additionally, “the question of how the tribunal can accommodate the delicate balance between free-speech rights and the integrity of their procedures with regard to briefing LOOK IT UP papers. As it stands, the tribunal cannot, by the law Legislation: of confidence, protect and vindicate the • Bunreacht na hÉireann, article 40.6.1 constitutional rights of individuals in respect of such • European Convention on Human Rights, article 10 disclosures. Vindication is for the courts in • Tribunals of Inquiry (Evidence) (Amendment) Act, individual civil actions in defamation, confidence or 1979 privacy at the suit of the aggrieved person. The • Tribunals of Inquiry (Evidence) (Amendment) Act remedy for the tribunal may lie in carefully-crafted 1997, section 4 statutory intervention. G • Tribunals of Inquiry (Evidence) (Amendment) Act 2002, section 7 Pamela Cassidy is principal of Dublin law firm Cassidy Law.
34 www.lawsociety.ie CRIMINAL LAW LAW SOCIETY GAZETTE JUNE 2007 NOTESfrom underground
In the second part of a two- part analysis, Frank Buttimer looks at the new offences created by the miscellaneous provisions of the Criminal Justice Act 2006
MAIN POINTS • Criminal Justice Act 2006, miscellaneous provisions • New offences he miscellaneous provisions in the Section 176 makes it an indictable offence for created Criminal Justice Act 2006 introduce a any person having authority or control over a child • Broad-ranging and number of new offences, as well as, or an abuser to intentionally or recklessly endanger potentially all- among other things, providing for a child by doing certain things. There is not, in embracing charges amendments of existing laws and fact, a definition under this section for authority or Tincreases in judicial powers. control. Presumably this is intentional, and is
www.lawsociety.ie 35 LAW SOCIETY GAZETTE JUNE 2007 CRIMINAL LAW
probably therefore something that is designed to space’ and see what develops in terms of cover a range of possibilities and, for example, circumstances, which will probably be wide-ranging would probably apply to parents, teachers, baby- in terms of possibility and consequence. sitters, kindergarten school operators, school-bus drivers, sports coaches and any other possible range Eyes wide shut of such persons. An ‘abuser’ is defined as an Section 181 deals with a situation where an individual believed by a person who has authority application can be made in criminal proceedings to or control over that individual to have seriously prohibit the publication of information identifying a harmed or sexually abused a child or more than person as having a medical condition. The section one child. does not define or delineate the medical conditions that are subject to this act, but the act certainly says The firm that, in order for the judge to apply the section, he This is a most interesting potential category of or she must be satisfied that: individuals. In order for a person to be deemed an • The condition exists, abuser, the act states that this person must be under • The identification of the person as having the the authority or control of a person of the category condition in question would be likely to cause outlined above – in other words, must be delegated undue distress to that person, and or under the direction of the individual with control, • The order would not prejudice the interests of and then the person with that control or power of justice. delegation must believe that the person onto whom the power or control has been delegated has One can imagine scenarios to which this section previously engaged in harm or abuse of children. A would apply, especially for people who have certain practical example would be, presumably, where communicable diseases such as AIDS, hepatitis, or somebody who would ordinarily be deemed to have types of ailments that carry a degree of public control over a child and who then in turn leaves that “Intentional or odium, and probably also in reality where the child in the care or under the control of an abuser, reckless condition has some bearing on certain aspects of the does so in the belief that this person has previously facts pertinent to the charge or prosecution. harmed or sexually abused a child. endangerment Certain practical implications pertaining to the The section sets out that intentional or reckless can occur by a application for a prohibition on publicity are set out endangerment can occur by such a person causing in the section. The section also goes on to deal with or permitting any child to be placed or left in a person causing the offences that exist for non-compliance with the situation that creates a substantial risk to the child or permitting order of the court in terms of prohibition of of being a victim of serious harm or sexual abuse publication and also certain defences that apply in or, alternatively, that a person may be guilty by any child to be the event of such breach. Interestingly, breach of an failing to take reasonable steps to protect a child placed or left in order is prosecuted under subsection (a) and can from such a risk, knowing that the child is in such a only be dealt with on indictment. situation. a situation that creates a Minority report Risky business Section 182 deals with situations where a garda The potential of this section is enormous. It only substantial risk superintendent may apply to the High Court for an deals, one must remember, with the issue of risk of to the child of order to oblige disclosure of information in relation serious harm or sexual abuse. In order for one to be to any trusts in which any person may have an guilty of this type of offence, it is not at all necessary being a victim of interest, or with which the person may have a for any actual harm or abuse to befall the child – serious harm or connection. merely the risk of it. Other legislation, such as the The application can only be made to the High Children Act 2001 (section 246), deals with situations sexual abuse” Court, and the order can only be granted if the judge where people having care of children can commit is satisfied that there are reasonable grounds for offences whereby harm may be caused to such a suspecting that a person has committed an arrestable child. offence (an offence punishable on indictment to a This particular new section certainly racks up term of imprisonment of at least five years) – and that the seriousness or the potential in terms of the person has some interest or connection with the consequence for carers. Anybody who is in the legal trust, that the information is required for the purpose capacity of advising schools, health boards, of an investigation, and that there are reasonable individual teachers or anybody of a category grounds for believing that it is in the public interest mentioned above will be well advised to bring this that the information should be disclosed. section to the attention of those who might be The High Court can order the trustees of the affected by it. A prosecution can only occur in this trust and any other person to disclose to the particular case with the consent of the DPP, which is superintendent, or other member of the gardaí, an indicator of the seriousness of the charge. All I information as may be required by the can say about this particular section is to ‘watch this superintendent for the above purposes.
36 www.lawsociety.ie CRIMINAL LAW LAW SOCIETY GAZETTE JUNE 2007
In order for this section to have force, quite Person Act 1997 (which deals with allegations of false obviously the superintendent will have to be able to imprisonment) or in connection with a kidnapping. satisfy the High Court as to the necessity for making The section says that the court or jury may the order. Presumably, he or she would therefore consider possession as sufficient evidence of intent – have to be in possession of certain information, just having regard to all the circumstances and where the as, in the ordinary course of events, a garda would court or jury considers it reasonable to do so. In give information to satisfy a commissioner or effect, this may well reverse the burden of proof and district judge with regard to a routine application cause the accused individual to have to justify the for a warrant. possession of the relevant article, unlike current or The act sets out penalties for non-compliance and existing legislation to do with possession of articles confirms that offences can be tried either summarily under the Firearms and Offensive Weapons Act 1990, or on indictment. where there are existing defences built into the legislation. Offences are only triable on indictment Top gun and only with the consent of the DPP. An article is Section 183 creates the offence of possession of not defined specifically, but may include any articles with the intent to use such articles in the substance, document or thing. course of, or in connection with, an offence under This is, again, a very broad-ranging and section 15 of the Non-Fatal Offences Against the potentially all-embracing charge, and is clearly designed to cover the range of possible uses of objects, articles or things that might be in any way LOOK IT UP open to being used in connection with any of the Legislation: offences set out in the act. The section confirms the • Children Act 2001 (section 246) definition of ‘article’ as including a substance, a • Firearms and Offensive Weapons Act 1990 document or anything. G • Non-Fatal Offences Against the Person Act 1997 (section 15) Frank Buttimer is partner in Cork law firm Frank Buttimer and Co.
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www.lawsociety.ie 37 LAW SOCIETY GAZETTE JUNE 2007 LITIGATION AIN’T misbehavin’ When a solicitor comes on record for a client in a personal injuries action, insurers should deal exclusively with the solicitor. But certain insurance companies have taken the opportunity to deal with the claimant directly, writes Stuart Gilhooly
orget PIAB and the whole new personal His solicitor advised him to sign an authority injury litigation environment: a subject setting out his desire to have all correspondence sent that has exercised certain litigation to his solicitor only and making it perfectly clear that practitioners more than anything over the he did not wish to receive any more communication last three years has been the behaviour of from the insurer. The authority finished with the Fone or two insurance companies towards their clients. words “please do not contact me”. The authority was While Quinn Direct’s methods have meant that sent to AXA with a clear statement that any further they are rarely on most solicitors’ Christmas card correspondence with the claimant personally would lists, we can at least be sure that when a solicitor result in an application for an injunction to restrain comes on record for a client, they will abandon the any further communication. fast-track settlement procedure and deal exclusively AXA, having received this letter of authority, with the solicitor. completely ignored it, continued to correspond with Before PIAB, this would be the expected norm, him and, in fact, made an offer of settlement directly and any insurance company that attempted to to the claimant. Proceedings were then issued in the contact a client directly after the engagement of a High Court by way of plenary summons and notice solicitor would get very short shrift. However, of motion seeking to restrain AXA “from interfering PIAB’s initial modus operandi of writing to the in the solicitor/client relationship between the claimant and only copying the solicitor (before being plaintiff and his solicitor by communicating … slapped on the wrist by the decision in the O’Brien directly with the plaintiff … or otherwise howsoever case) meant that certain insurance companies saw an harassing or molesting the plaintiff”. opportunity to approach the claimant directly. Jitterbug waltz Squeeze me The case, Domican v AXA Insurance Limited, was Leader of this new movement has been AXA heard by Mr Justice Frank Clarke in December 2006, Insurance. To begin with, it, in fact, ignored the and he gave judgment on 19 January 2007. Before solicitor altogether but soon agreed to deal with the dealing with the issue at hand, he made some very solicitor when on record. However, it continued to interesting observations. Domican’s solicitors had send copies of all correspondence with the solicitor advised him to wait for a PIAB assessment, as AXA’s MAIN POINTS directly to the claimant. offers were almost invariably less than the assessment. • Personal injury This has created untold annoyance and confusion, Mr Justice Clarke found this to be reasonable advice. litigation both with claimants and their solicitors. One such He also observed that a line in AXA’s • Offer of settlement claimant, Stephen Domican, became totally fed up correspondence to the claimant, that PIAB would take directly to the and instructed his solicitor, HarryWard of HJ Ward up to a year before making an award, was claimant & Co, that he did not wish to receive any more “interesting”, in that “a significant insurance company • High Court case correspondence, as he had instructed HarryWard to appears to be suggesting to those who may have on solicitor/client act for him and could not understand why he was claims against it that there are delays in PIAB which relationship receiving correspondence he neither sought nor are holding up the early resolution of proceedings … understood. If it were true that the existence of PIAB was acting as
38 www.lawsociety.ie LITIGATION LAW SOCIETY GAZETTE JUNE 2007
a barrier to early settlement of any significant number in any material respect, then I would come to a of cases, it would amount to an unfortunate different conclusion … There may well be consequence of legislation introduced to improve and circumstances where the copying of such streamline the resolution of straightforward personal correspondence directly to the client might be injury litigation.” reasonably understood by a client to amount to a He went on to find that, although AXA was suggestion on the part of the insurers that the entitled to arrange a medical examination, the client’s best interests were not being looked after by claimant had no obligation to attend such an the solicitor concerned. In such circumstances, the examination until proceedings had been issued. He direct copying of correspondence might give rise to found that AXA was foolish to arrange such an different inferences and might amount to a material examination until the claimant had agreed to attend. interference in the solicitor/client relationship. Nothing in this judgment should be taken, Honeysuckle rose therefore, as implying that the copying of Ultimately, however, he had to decide whether the correspondence is always, and in all circumstances, copying of correspondence (making settlement offers, lawful. Similarly, the volume of the communication, arranging medical examinations and seeking responses or its manner, might, in a different case, amount to to certain questions) directly to the claimant, against nuisance, harassment or molestation.” his wishes, constituted an interference with the This, however, was not the case in relation to solicitor/client relationship. He decided that this did Stephen Domican, and he dismissed his application. not constitute a “significant or material” interference. It seems, therefore, that the bar has been set at He went on to say that “if it were to transpire to quite a high level, and either a high volume of be the case that any actions of a party such as AXA correspondence or an attempt to influence the were designed to or would, objectively speaking, be claimant with adverse comment about the solicitor likely to, undermine the solicitor/client relationship would be required to restrain an insurer from direct correspondence. In the meantime, it seems likely that AXA and LOOK IT UP other insurers, which now include Hibernian, will Cases: continue to operate close to, but within, the margins • O’Brien, Declan v Personal Injuries of the law, and we have no choice but to grin and bear Assessment Board [2006] IESC 62; [2007] it. It is essential that your client be apprised of this 1 ILRM 304 and that no decisions should be made without • Domican v AXA Insurance Limited [2007] consultation with you. G IEHC 14 Stuart Gilhooly is a partner in HJ Ward & Co.
www.lawsociety.ie 39 LAW SOCIETY GAZETTE JUNE 2007 HUMAN RIGHTS STONE do not a prison make
The Prisons Act 2007 provides for legally-aided hearings in respect of a prisoner’s loss of remission, but there is no equivalent procedure yet for the revocation of temporary release. Cathal Ó Braonáin opens the case file
here is in Ireland a right to legal aid for procedures could amount to a criminal charge arose most people charged with a criminal in the 1979 case of State (Murray) v McRann. The offence. It is well established that the court considered that the governor was not state should provide free legal exercising a judicial function and therefore rejected representation to those people at risk of the prosecution’s application for certiorari regarding Tlosing their liberty, but unable to afford legal the forfeiture of remission. The court looked no professionals. Circumstances exist, however, where a further than the question of definition in the person’s right to liberty is at stake where there is no strictest sense. That the loss of liberty arose as a provision for legal aid. This incongruity arises most consequence of the decision was unpersuasive. commonly regarding the revocation of licences for The Irish courts have, however, considered the temporary release and prison disciplinary categorisation of certain procedures from a more proceedings resulting in loss of remission. practical point of view. This arose most frequently Article 6.3.c of the European Convention on Human in relation to customs laws. The case most Rights includes a right for those charged with a frequently considered in this regard is Melling v Ó criminal offence “to defend himself in person or Mathghamhna. In it, the Supreme Court concluded through legal assistance of his own choosing or, if he that section 186 of the Customs Consolidation Act has not sufficient means to pay for legal assistance, 1876 gave rise to criminal liability. The applicant to be given it free when the interests of justice so had been brought before the District Court in require”. relation to the unlawful importation of butter. The European Court of Human Rights (ECtHR) The court, in coming to its conclusion, looked has developed a substantial line of authority beyond the text of the act and examined what has broadening the definition of the phrase “charged since been referredtoastheindicia of a criminal with a criminal offence” to include proceedings such charge. The first of these was whether the offence MAIN POINTS as those mentioned above. was against the community at large rather than an • Right to legal The government has recently taken stock of this individual. The second was whether the sanction aid in prison line of authority. Section 15 of the Prisons Act 2007 was punitive in nature. The final indicium was disciplinary introduces a legally-aided appeal procedure for whether mens rea was a necessary element of the hearings and those prisoners who have lost remission due to offence. The potential deprivation of liberty was a hearings for the disciplinary proceedings. In the course of debates in significant determining factor in the case. revocation of the Seanad, the Minister for Justice made it clear temporary release that the introduction was based on Ireland’s Release on temporary licence • Significance of the obligations under the convention. The significance of the loss of liberty was the focus loss of liberty The operation of this provision has not yet of the Supreme Court in State (Murphy) v Kielt. The • What amounts to commenced. The provision of legal aid requires case concerned the revocation of the prosecutor’s being charged with regulations to be passed by the Minister for Justice release on temporary licence solely on the basis of a criminal offence? with the consent of the Minister for Finance. the existence of criminal charges in the District The question of whether prison disciplinary Court. The Supreme Court held that the licence
40 www.lawsociety.ie HUMAN RIGHTS LAW SOCIETY GAZETTE JUNE 2007 WALLS
could be revoked only on the basis of evidence of a As previously stated, the European Convention on breach of a condition of release. Human Rights provides for free legal representation The court was silent on the question of legal for those charged with a criminal offence. The representation. However, the court held that an question, therefore, is: what amounts to being charged informal hearing was required in any case where the with a criminal offence? The ECtHR has developed a rights of an individual were seriously threatened. Loss clear line of authority in relation to the test applicable of liberty was considered to give rise to the need for to proceedings when this question arises. such a hearing. The case is significant in that the court The landmark decision in the area is Engel v acknowledged the need for some minimum level of Netherlands. The applicants were conscript soldiers fair procedures. The fundamental basis for this need is subjected to military disciplinary proceedings. The the potential loss of liberty. This is most significant in penalties had been imposed by their respective relation to the applicability of European law commanding officers. The court addressed the issue domestically, as loss of liberty is the essential factor of whether the proceedings amounted to being arising throughout the relevant ECtHR judgments. charged with a criminal offence for the purposes of
www.lawsociety.ie 41 LAW SOCIETY GAZETTE JUNE 2007 HUMAN RIGHTS
the convention rights. revocation of licences for temporary release. This is The court formulated a three-stage test. The first supported domestically by the emphasis on the right stage was whether the proceeding was considered to liberty in State (Murphy) v Kielt. The question criminal or civil under domestic law. The second was arises, accordingly, as to the applicability of European whether the nature of the offence gave rise to the authorities in Ireland. conclusion that it was criminal. The final test was The introduction of the European Convention on whether the offence should be considered criminal Human Rights Act 2003 imposed an obligation on the due to the severity of the penalty arising. The court, courts to interpret any statutory provision or rule of therefore, held that the proceedings in respect of one law in a manner compatible with the state’s of the applicants were criminal due to the potential obligations under the convention provisions. It also loss of liberty. imposed an obligation on organs of the state to perform their functions in a similar manner. A privilege rather than a right? These obligations are significant in relation to the The case of Campbell and Fell v UK related specifically recognition by Irish courts of a right to legal aid for to the issue of prison disciplinary proceedings and the those charged with a criminal offence. The case of loss of remission. The court applied the Engel test. State (Healy) v Donoghue held that the requirements of “The court Applying the final criterion, the court considered that article 38 of the Constitution included a right to legal the deprivation of liberty was such to attract the representation at the expense of the state where an concluded that protection of the convention for such proceedings. accused person was unable to afford it. The potential the practice of The issue was whether loss of remission amounted to loss of liberty was a significant factor in this decision. such deprivation in circumstances where remission While the judgment did not envision the proceedings granting could be considered a privilege rather than a right. considered in this article, the right to legal aid could remission was The court concluded that the practice of granting be considered to exist by virtue of the European remission was such as to attract a legitimate expectation authorities and the obligations they impose on the such as to that the prisoner would recover his liberty before the prison authorities. attract a end of his term of imprisonment. Forfeiture of remission thus has the effect of causing the detention Number of remedies legitimate to continue beyond the period corresponding to that What this article proposes gives rise to a number of expectation expectation. The absence of legal representation was remedies applicable to a potentially substantial therefore a breach of the applicants’ convention rights. number of prisoners. The first is judicial review of that the It is apparent from European authorities that the the executive’s decision to forfeit remission or revoke prisoner would phrase “charged with a criminal offence” has been temporary release in the absence of legal given a broad interpretation under the convention. It representation. The second is an action for damages recover his is also apparent that the fundamental concern of the arising from the state’s failure to put in place a liberty before ECtHR relates to ensuring fair procedures where a system of legal aid for said procedures. One could person’s liberty is at stake. Indeed, the specific area of also seek injunctive relief in circumstances where a the end of his prison disciplinary proceedings and loss of remission is state body’s contravention gives rise to loss. term of settled law in Europe. The principles behind the The Prisons Act provides for a legally-aided decision in Campbell and Fell apply equally to the hearing before a tribunal of legal practitioners. imprisonment” However, one could make a cogent argument that one is entitled to have the matter determined before LOOK IT UP a judge in court. This argument would be grounded Cases: on articles 34.1, 38.1 and 40.4 of the Constitution in • Campbell and Fell v UK (App 7819/77) the light of European authorities. • Engel v Netherlands (App 5100/71) While the Prisons Act 2007 provides for legally- • Melling v Ó Mathghamhna [1962] IR 1 aided hearings in respect of the loss of remission, • State (Healy) v Donoghue [1976] 1 IR 325 there is no equivalent procedure for the revocation • State (Murphy) v Kielt [1984] 1 IR 458 of the temporary release forthcoming. Furthermore, • State (Murray) v McRann [1979] 1 IR 133 prisoners who have lost remission during the intervening period running up to its enactment have Legislation: a potential remedy. • Bunreacht na hÉireann, articles 34.1, 38.1 and Regulations will have to be made by the Minister 40.4 for Justice with the consent of the Minister for • Customs Consolidation Act 1876, section 186 Finance to give effect to the relevant provisions. It, • European Convention on Human Rights, article therefore, remains to be seen whether the necessary 6.3.c resources to give effect to the act’s proposal will be • European Convention on Human Rights Act 2003, swiftly provided. G sections 2, 3, 4 • Prisons Act 2007, sections 15, 16 Cathal Ó Braonáin is a Dublin-based barrister specialising in criminal law.
42 www.lawsociety.ie PRACTICE MANAGEMENT LAW SOCIETY GAZETTE JUNE 2007 practice doctor
Got an issue you would like addressed by our panel of TIMEpractice doctors? Email: [email protected] is on my side ffective time management isn’t have waited until later. If interruptions are common, complicated and the first step is as simple remember: you don’t need to take every call or answer as keeping a log of all the day’s activities. If every email straight away. Do you need to do so, or you can identify with the 84% of SME are you saying to yourself: “I want to answer it, just in directors who handle business at weekends, case…?” If it’s the latter, then it can probably wait. Eor the 58% who take files home to work on in the Queries from colleagues are a part of everyday Paul Davis: “Procrastinating evenings (according to a survey by O2), then better working life, but if they’re interrupting your work on is another way of losing valuable time” time management will bring you and your practice an urgent task, then they need to be left until later in clear benefits. the day. If interruptions are increasingly common, Analysing your current situation will help you then managing your team more effectively can help determine what problem needs to be fixed. This is address the situation. where the log comes in: it will help you weed out the most time-sapping areas of your working day. Afraid of saying ‘no’? Are you afraid of saying ‘no’? Postponing less Time to manage time important tasks or delegating them to colleagues is an A common response is “I haven’t got important part of effective time management. Going time to manage my time.” But back over your log will show areas where this could prioritising those important calls free up some of your time. and tasks can be done on the If your office or workspace is disorganised, perhaps commute to work or at the it’s making your working day disorganised as well. end of the previous day. A log Taking the time to file everything away or arrange it will help you see where this neatly at the end of the day will benefit you the could have helped you. following day. Procrastinating is another If your log shows that a meeting was ineffective, way of losing valuable time. ask yourself what could have been improved. Could it Tackling the difficult tasks quickly have been planned better? Was everyone well and effectively will help clear both prepared? More effective meetings speed up decision- your diary and your mind. making and the pace of your practice’s business, Pride in your work is important, but freeing up time for everyone that needs to attend perfectionism can do more harm than good. Time them. spent labouring over one task that is largely completed Analyse your current situation for the next month would be better invested in getting on with a new one. and see which of the above areas you fall into. Then Slow decision-making also robs us of valuable time. in the next issue we’ll cover how you can deal with Your first inclination on a decision – provided you’ve the problem correctly to improve both your working considered all the key details – might be the best. Slow life and your practice. G decision-making means there’s less time left for the other tasks in your diary. Paul Davis is principal of Davis Business Consultants Look at your log and you’ll realise that some of the and is a fellow of the Chartered Institute of Management emails you replied to, or calls you answered, could Accountants.
www.lawsociety.ie 43 LAW SOCIETY GAZETTE JUNE 2007 PEOPLE AND PLACES PIC: LENSMEN PIC: MAXWELLS
The Killenaule connection Law Society President Philip Joyce welcomed the remarkably large number of solicitors born and raised in his home village of Killenaule, Co Tipperary to dinner at Blackhall Place. (Front, l to r): Brid O’Dwyer, Rosario Presidential summit Boyle, President Philip Joyce and Annette O’Connell. (Back, l to r): Breda Attending a reception on St Patrick’s Day at Áras an Uachtaráin were Cullivan, Michael O’Grady, Gerard O’Connell, Niamh O’Grady, director (l to r): Rosario Boyle SC, President of Ireland Mary McAleese, Mr general Ken Murphy, Deirdre Kelly, Tony O’Grady and Patrick Kennedy Martin McAleese and President of the Law Society Philip Joyce PIC: JOHN D KELLY PHOTOGRAPHY PIC: JOHN D KELLY PHOTOGRAPHY
Friendly meeting in Tipp Clonmel collection (L to r): Patrick F Treacy, President Philip Joyce, Her Honour Judge Olive Frank Gleeson, director general Ken Murphy, President Philip Joyce, Donald Buttimer and Bryan Maguire Binchy (Law Society Council member) and Judge Elizabeth McGrath PIC: LENSMEN
Reasons to be cheerful At the president’s lunch in honour of past presidents of the Law Society (post 1990) on 3 May were (front, l to r): deputy director general Mary Keane, Elma Lynch (2002), Gerard Griffin (2004), Law Society President Philip Joyce, Geraldine Clarke (2003), Raymond Monahan (1993) and director general Ken Murphy. (Back, l to r): Andrew Smyth (1996), Owen Binchy (2005), Adrian Bourke (1992), Patrick Glynn (1995), Ward McEllin (2001) and Michael V O’Mahony (1994)
44 www.lawsociety.ie PEOPLE AND PLACES LAW SOCIETY GAZETTE JUNE 2007
Crowley pursues Bollywood Bling Ball brings hope Seanad seat to the street children of Calcutta t has been a year of firsts for Croke Park: the PICS: CONOR HEALY Ifirst rugby match … the first soccer match … the first PPCII ‘Bollywood Bling Ball’ in aid of the Hope Foundation ‘Street Children of Calcutta’. Guests arrived in spectacular saris adorned with glittering bindis, accompanied by their maharajas in flamboyant headgear, colourful tunics and even body paint! The ever-glamorous and ever-present Glenda Gilson welcomed guests. The ball began with captivating Indian dancing, followed by a sumptuous meal. The night exceeded all expectations, raising over €35,000 and changing The beautiful Miss India Ireland, Sonya Reilly, lent the lives of nearly 100 young girls, providing her support to the event with Alannah Smyth and the illorglin-based solicitor gorgeous hostess of the evening Glenda Gilson KLiam Crowley is running them with a home in Calcutta. for the forthcoming Seanad Thanks to all who attended and to sponsors election and is seeking the Sigmar Recruitment and Anglo Irish Bank. support of fellow members of the Law Society who have a vote in the NUI constituency. “I deal on a daily basis with the legal affairs of my clients,” he says, “and am more than aware of the concerns people face today. I believe in giving back to Belles of the ball (l to r): Amelia O’Beirne, Alma Whelan, Faye Bohan and Orla Nally society and have been continually involved in Ankita opened the evening with dazzling traditional community and political Indian dancing groups.” Liam’s website can be accessed at: www.liam crowley.ie. The period for nominations in the university constituencies expires on Friday 1 June 2007. Ballot papers will be issued on Tuesday 19 June 2007 and the poll will close at 11am Displaying the glamour of Bollywood (l to r): on Tuesday 24 July 2007. Noleen Foley, Deirdre Griffin, Aoife Smyth, Muireann Reedy and Sinead Gormley Dressed to impress: Lynn Martin and Ross McMahon ON THE MOVE Richard Ambery Ciara Eimear Burke Orlaigh has been McGoldrick has been O’Dwyer joins appointed by joined McDowell working as an McDowell Arthur Cox as a Purcell associate Purcell from partner in the Partnership solicitor to the LK Shields firm’s capital Solicitors in MDP regulatory Solicitors. markets group, March as department of Orlaigh is a based in the head of the McDowell Purcell specialist Dublin office. Professional Partnership property He is a leading property and Regulatory Unit. Prior to joining Solicitors since September 2006. lawyer with wide experience finance lawyer and has McDowell Purcell, she spent four She specialises in advising in commercial property, specialised in advising leading years working as a barrister for professional regulatory bodies in development land and financial institutions on commer- the Commission to Inquire into matters relating to fitness and banking/commercial cial-mortgage backed securities. Child Abuse. registration and general litigation. lending.
www.lawsociety.ie 45 LAW SOCIETY GAZETTE JUNE 2007 STUDENT PAGE student spotlight
Tough Tallaght team trounces trainees he newly-formed hurling the advocates on the day and Tteam, King’s Inns/Law Tallaght, beaten in last year’s Society, recently made history final by the Inns, certainly got by reaching the final of the their revenge. Séan Óg Ó Fergal Maher Cup – the All- hAilpin presented the cup to a Ireland Intervarsity for jubilant Tallaght with Stephen Division 3 Colleges, writes Larkin of St Jude’s named ‘man Vincent Costello. The cup of the match’. The disappointed competition was part of the legal panel returned to the Fitzgibbon weekend in March, Boar’s Head Pub in Dublin, organised this year by Carlow where any sorrows were soon IT. King’s Inns had won this forgotten. The (almost) magnificent seven trophy themselves last year The Blackhall players thank: with the help of some superb Scotland. After a shaky start, a Saturday was the Gaelic King’s Inns Hurlers, the Law Blackhall players in their strong effort by Alan Dodd grounds at Carlow IT. From the Society, TP Kennedy, Martin squad, including Bryan Coen helped the lawyers eventually throw-in, the game was a Travers, Eddie McDonald, and Conor Minogue. This was to dominate the game. An dogged affair. There were fine Lynn Kelly, Seamus Howlin the first year the new officially- excellent second half goal by performances from Inns players (Leinster Council), Seamus combined team was competing. PPCI student Pat Morrissey, James McDonald and MacKenna SC and Mel League games earlier this together with six magnificent Donnacha O’Tuama, with Jack Christle SC for all their season against GMIT points from play by Kieran Nicholas fearless as ever in assistance during this year’s Letterfrack and Dun Laoghaire O’Donovan, saw the lawyers midfield. Many players carried campaign. College aided preparations for win, despite a late comeback injuries into the final, but Blackhall hurlers: Billy Brick, the championship. The by Aberdeen, by 2-14 to 3-6. Blackhall panellists Patrick Martin Cooney, Vincent qualifying quarter-final against With a final the next day, a Quinn, Paul Lynch and Stephen Costello, Kieran Cuddihy, Neil Marino Institute of quiet trip to the cinema was Walsh all battled on. Kieran Dunne, Will Greensmyth, John Education/Coláiste Mhuire at all the entertainment allowed Cuddihy put in an imperious Kavanagh, Paul Lynch, Patrick home grounds in Islandbridge that night. performance at full back. Morrissey, Kieran O’Donovan, in February was a gruelling The venue for the final on However, the luck was against Patrick Quinn, Stephen Walsh. event in terrible conditions. Midfielder Billy Brick, despite a talented display, was lost to a Law Society’s Jessup Moot broken wrist. The winning of this game by 1-12 to 1-9 Court Team took on the world granted entry to the final stages he Law Society of Ireland’s 9.5 round points away from the issues of international law and of the competition. TJessup Moot Court Team highest-ranked team. were vigorously questioned by set its sights on glory at the The team comprised four international judges from many Superpower opponents finals of the international law Autumn PPCI students: countries and backgrounds. In March, the team made their moot court competition, held Nicholas Blake-Knox (Arthur Three of the Law Society’s way to the Fitzgibbon in Washington DC at the end Cox), Therese Lyne (A&L speakers made it into the top weekend, where the first semi- of March. While it didn’t walk Goodbody), Cormac O’Culain 100 individual oralists’ list, final saw Letterkenny IT away with the trophy, it (Reddy Charlton McKnight) while Cormac O’Culain beaten by a tough IT Tallaght certainly achieved some and Regan O’ Driscoll managed to debate his way into by 1-5 to 4-13. The law honour. (Matheson Ormsby Prentice) the top 32. students’ semi-final at Éire Óg The team won three of its and their coach, Elaine While the final trophy went pitch was against Robert four rounds against India, Dewhurst (course executive). to the University of Sydney, the Gordon University of Turkey, Nepal and Mexico, was Over 100 international teams Law Society team certainly set a Aberdeen, a team comprising awarded best individual ‘oralist’ descended on Washington DC very high standard and was many hurlers from the in all three of its winning for the week-long competition. commended by the judges for ‘superpower’ hurling counties rounds, made it into the The Irish team competed on a their spirit, enthusiasm and of Kilkenny, Tipperary and prestigious list of the top 30 daily basis and for several hours knowledge throughout the Cork, currently studying in international teams and was only a day, team members debated competition. G
46 www.lawsociety.ie BOOK REVIEWS LAW SOCIETY GAZETTE JUNE 2007 books
Ten in a bed: a memoir Michael Regan. Abbeyview Press (2006), Trim, Co Meath. Available from Antonia’s Bookstore and other local bookshops. Price: €15 (all proceeds go to Meath-based charities). ven in the title of this always generously and because the book is slim on Ememoir, there’s a hint of courageously given much of his legal principles – but because of mischief. This will surprise no own time and resources to its richness of colour. Michael one who knows Michael Regan, worthy and selfless pursuits. Regan simply and self- a man whose view of life is And, in buying the book, the effacingly records the stories of always fixed at a jaunty angle. In reader is not merely supporting local characters and creative the course of his life, he has his continuing altruism; the judges. His patch is the District involved himself in an array of reader is buying a small treat. Court, the most exacting, feats, which – if stacked and Memoirs have been all the eccentric, unreliable and redistributed – would fill the rage in Irish publishing for the interesting court in the land. lives of several less energetic past couple of decades. The And his book spills with stories. people. He’s been a porter, a most – and the least – talented We all, perforce, operate now pedlar, a politician, a publican, a have contributed to a body of in a climate of political philanthropist, a preservationist, publications ranging from correctness, accountability, a publicist, a punter and a tortured accounts of a profit margins, compliance and prankster. And, above all, a miserable, rain-sodden past to all sorts of sober, proper country solicitor. When he coarse fables of an improbably father, who was a torch-bearer standards. Some of us will make qualified, he was the youngest utopian yesteryear. This book at that meeting. There’s the a lot of money, some of us will solicitor in the country. By the treads less strident paths. story of how Andrew Rynne set precedents, but few of us time of his retirement, 50 busy It is written with the rhythm, was prosecuted for prescribing will ever tell as good a story as years later, he was among the timing, humour, colour and, condoms on Sunday to a farmer Michael Regan does. most original and memorable. sometimes, the unreliability of who couldn’t wait for Monday Michael is remarkable Michael’s memoir reflects his oral tradition. It is an engaging to comply with the law of the because he remembers, and perspicacious and warm and compelling read. It has the day. The book is a tapestry of remarkable because he has done personality. With characteristic leisured pace of stories spun at fading folk memories. things worth remembering. generosity, he has donated its the hearth. There’s the story Important memories for all of Few of us can claim that sale proceeds to charities in his about Parnell’s lamentably us. distinction. G beloved Meath. It is fitting that wooden efforts at humour And for us solicitors, the the book has sold very well, during an election meeting at book is a treat – not as an Margaret McCann is a solicitor in because its colourful author has Trim, as told by Michael’s authority on any legal principle, the Law Centre in Navan.
www.lawsociety.ie 47 such otec- egard osnan, G taken a eview the . A formal regulations ence: briefed the elation to the e-drafting of the culated well in and public debate. eland, having r cial realities of the ehensive public pr taken with the benefit of ers, the insurance market Mr Farrell noted that the The PII regulations were to best practice indictions other juris- andexamination including ofregulations, the an procedures current systems and and tomendations make arising recom- from review.” task force hadfundamental r under PII regulations after extensive consultation with the qualified insur and specialistand legal with members experts, offession. the pro- The goalforce of was the to close task PII any coverage gaps in tocompr ensure more tion, while acknowledging the commer market. almost complete and had been under expert insuranceexpert advice legal and advice presentation would be made to the Council byof the the task chairman force, Joe Br at its Julydraft meeting, with newbeing the PII cir advance of that meeting. it should not belegislative the subject of changethorough without Professional indemnity insurance Niall Farrell Council inwork r of thewhich PII had been Task established Force,October in 2004 with the follow- ing terms of refer “To fundamentally r law and policy underlyingprovision the indemnity of insurance to solici- tors professional in Ir media- rofession in equire of Ireland. general elec- Council agreed to elease express- vious Council Criminal Justice tisements in the intention to rush eation of new crim- in respect of media- . fences, changes in sen- before the of the professionof to fee-charging. the While a issue time- recording systemhappen would immediately, not itincumbent on was theorganise itself Society as a to bodymembers and its aspreparation a for this p move. Mediation panel At theMurphy, the requestadopt, of and to Simon tors r onmediation the panel to Society’s adopt, the new Mediators Gazette Criminal JusticeThe Bill presidentsince noted themeeting, that, pre theissued a Society press r ing had deep concernernment’s at the gov- through the European Code of Conduct for Bill tion. Jamesthat MacGuill there were noted fiveof core areas concern withinrestrictions the on billbail, the the – cr rightinal to of tencing, the extension ofods peri- of detention for interroga- tion and ament significant of curtail- the right towas silence. the It viewCriminal of Law Committee the that Society’s each was so fundamental that tions undertaken byof members the Law Society The Council notednew mediation that panel would the be established inmonths and the that suitably-qual- ified coming members ofsion the would profes- beappointment invited to to seek theway panel of by adver ties fee- oach ecov- ecord- Par type of ned, no eport, as manage- , includ- number of reasonable. ties liable to tnerships were cumstances of e concer elating to client mine the legal costs change in the appr that par costs are recoverable – mation). Par ging system to a system The Council also noted The IAG accepts that there The Council agreed that hourly or daily rates, aspriate.” appro- paragraph 3.5 of the r follows: “The point needs tothat, be insofar made asclient costs solicitor ar and party will be bound by r will beagreements free with their to lawyers as they enter see into provisions fit (subject r toinfor the pay costs willdecide also to be pay costs freefit. as The they to guidelines see areed intend- towhere offer anof indication amounts – generally or deemed timeIn periods cases ofbe dispute, assessed costs on will theguidelines basis of while the particular taking the cir each case fully into account. is a wideand it range will neither of benor desirable litigation feasible toguidelines put of inwould a provide place a type simple, math- ematical which modelpre-deter designed to recoverable in every erable costs guidelines. case.” the Society would have tosteps take to assist the professionmove to from the current char based on hourly rates. Clearly, the future lay ining. time-r There were a aspects to the matter ment ofensure costs inprofitable, order and the to needculture for a ing technology, the of report Report Council Society of Law held on 30 Marchmeeting 2007 JUNE 2007 JUNE ecord- studies oposed ging gener- med that the introduction esentation from taken by the tising campaign to ding should also be ecor Presentation by McConnells on proposed media advertising campaign The Council considered,approved, and a pr time-r accompanied by solicitors and barristers setting out,basis of as their the char ally for legal services, their McConnells on a pr ing and that bills inlegal relation costs to should, as appropri- ate, berecords. supported The by time media adver be conductedprint media through and toafter the commence theMcConnells general explainedobjectives election. of the campaign, the together proposed methodology with used, the thepling sam- and themessages. They key then present- campaign ed a series oftisements, potential together adver- results with of the focus-group in respectO’Boyle of confir each.proposal Michele had the endorsement and recommendationSociety’s of the PublicCommittee. Relations Tomendorsed Murran thecomplementary campaign tobeing as the work under Client Care Task Force. Government working group review of legal costs The Councilreport considered the ofmentation the Miller Advisory(IAG), Imple- Group thewhich core was proposal containedgraphs in of 2.1 para- and 2.2, as“The follows: IAG is ofsolicitors and the barristers view should that be obliged toproper have system in of place time-r a www.lawsociety.ie LAW SOCIETY GAZETTE council
BRIEFING 48 BRIEFING 49 , , , the and 9/5/ der(s) 21/4/ 2006 , : Misuse : :: ; man- : Defence : :: and the e e e e powers, e e e e t t t t a Síochána t t t t and a a a d d d d a a a a cumstances; d d d d Amends the ences to be Amends and ; mandatory t t JUNE 2007 JUNE t t der(s) to be Bail Act 1997 t t t t : : :: : : :: n n n n 9/5/2007 n n n n e e e e 21/4/2007 e e e e e e e e t t t t : t t e e garda : :: t t e e : and for sections : :: o o o o d d o o d d o o m m m m www.lawsociety.ie d d d d m m m m e e e e e e n n e e n n n n e e n n minimum sentences e e t t t t e e e e t t c c t t 24/2007 29/2007 c c c c c c c c c c c c c c : : : :: : :: s s s s n n s s s s n n in relation to discipli- a a a a n n n n a a t t t t r r r r a a t t t t r r r r e e e e e e e e n n n n e e e e e e e e ea Fisheries Acts 2003 n n n n n n n n n n n n e e e e b b b b b b b b e e e e e e m m e e e e e e m m m m m m t t t t t t t t ’; commencement or Offences Against the State e e Criminal Justice Act 1984 e e e e e e m m m m m m m m t t t t m m n n n n m m n n n n t t t t m m m m a a u u u u a a u u u u o o o o o o o o o o o o a a a a o o o o mencement or made (per s1(2) of the act) 2007 (Amendment) Act 1998 C C C C C C D D N N N N C C C C C C Sea Fisheries Acts 2003 Criminal JusticeD D Act 2006. 2006 Defence (Amendment) Act N N Criminal JusticeN N Act 2007 Firearms Acts 1925-2006 law relating toadministration of bail the and bailtem; sys- sentencing; the thesilence right and to drawn infer in certain cir mandatory under section 27 of the extends part 5 of the to be made for all other(per sections s1(2) of the act) C C D D C C nary procedures andlaw. military Makesamendments to other acts consequential provides and for related matters. D D Act 1954 of Drugs Act 1997 Garda Síochána Act 2005 minimum sentences under the 2007 for‘Preliminary’) part6 to 9, 1 12, 14 to (ss1-3, 17, 31 to 34 2007 for partto 8, the S ‘Amendments agement of An Garda and certain including powers ofillegal detention; fishing activity under the and provides forters. Amends related a number mat- ofacts, other including the the the cial 2000 15/5/ LAW SOCIETY GAZETTE Com- : : :: : : :: e e e e e e e e t t t t t t t t ning unfair a a a a a a a a d d d d d d Provides for d d and provides t t t t ); makes new t t t t : : :: eaches of com- otect the inter- n n n n 21/4/2007 e e e e fect to directive n n n n 21/4/2007 commencement e e e e t t t t : Competition Act : :: e e e e otection legisla- : : :: o o o o d d d d ective m m m m d d d d ring cases involving m m e e m m e e n n n n ovisions will be e e e e e e e e t t t t e e e e 19/2007 t t c c t t c c Unfair Commer c c c c c c c c : : :: s s c c s s c c n n n n a a a a t t r r t t r r n n n n efer a a a a e e e e e e e e n n e e n n e e n n n n n n n n b b e e b b e e e e e e onic Commerce Act to enable the commission m m e e m m e e t t t t m m m m e e e e m m m m e e e e n n n n t t t t m m m m t t t t m m m m u u u u o o a a o o a a o o o o a a a a o o o o Amends the 2007 Practices Dir C C N N C C Consumer Protection Act N N Electr (these pr brought into forcenecessary when the order is224/2007) made) (per SI the establishmentNational Consumer Agency to ofpromote and pr the ests and welfareand of to consumers investigate, enforceencourage and complianceconsumer with pr tion including, wherepriate, r appro- possible indictable offencesthe to DPP.transfer Provides of the for functionsDirector of the the of Consumerto Affairs the agency onment. its Gives establish- ef 2005/29/EC concer business to consumer commer- cial practicesmarket in the ( internal 2002 C C D D C C to investigate br petition law in the telecommu- nications sector, for related matters. D D C C D D C C provision in relationmercial to com- practicespyramid selling including schemes.out Sets listsrepealed enactments of andvides pro- for related existing matters. D D and 2007 for all sections, other than sections 9 and 21; 1/7/2007section for 9; 15/5/2007tion for 21, sec- exceptsection in 32(2) relation and to (6) of the onic Acts ting ovides Com- fences. : for the : :: Children epor e e e e European t t t t Electr a a a a regulations d d d in order to cumstances to allow for Amends the d t t Children t t : domain name : :: vices Board, n n n n 8/5/2007 der(s) to be e e e e e e e e t t t t 1991 : : :: roceedings that 2000 vices. Amends the o o o o d d d d m m m m e e e e n n n n e e e e t t t t 22/2007 c c c c elation to school-age c c c c : : :: s s s s n n n n a a a a ,tothe t t r r t t r r onic communications legislation update legislation e e e e n n n n e e e e n n n n e e e e ovide that b b b b in order to confer addi- e e e e m m m m t t t t e e e e m m m m t t t t n n m m n n m m a a u u a a u u o o o o o o o o sion in r childcare services, includingprovision a enabling regulations to be made that willVAT permit exemption the that currently applies to pre-school childcare services to apply tochildcare school-age ser 2002 (Amendment) Act 2007 C C C C N N D D C C C C Communications Regulation N N Communications Regulation Act Advisory Board, andfor related pr matters. D D Child Care Act tional powers and functions on the Commissionmunications for Regulation and to Com- increase penaltiesact under for breaches that of certaingations. obli- Amends theto 2002 act pr made under the Commer ce Act Communities Act 1972 Act 2001 mencement or made (per s1(4) of the act) established under the of childcare p are held inact private under in that specifiedand cir by specified classessons. of per- Changes theand name, role functionResidential of the Ser Special the attendance at and r transfer responsibility foroversight the and managementthe of Irish internet ‘.ie’ toCommunications the Regulation. Commission for purpose of transposing EU law on electr may provide forwell indictable as asAmends summary of the - - e e - - ’ e e ’ ’’ d d d d e e e e - - - - e e i s s f f c c e e i ii s s f f c c a a a a e e e e n n n n r r r r . . .. t t t t t t t t g g g g o o o o n n h n n h h a a h a a o o y y o o a a y y a a i i ii t t t t a a n n a a n n f f f f t t t t c c s s c c s s t t t t e e e e s s s s elated e e ective ) ) e e ) ) Child s s n n s s n n Com- t t i t t i ii d d i d d i ii s s d d s s d d y y y y ecogni- s s s s c c c c c c ( ( c c ( ( : r r t t : :: r r t t chitect’, t t u u t t u u n n n n a a e e a a e e e e e e o o o o t t a a Dáil will t t a a d d n d d n n n a a a a t t n n t t t t n n t t s s s s r r s s r r s s e e e e e e e e , , ,, e e e e a a a a to provide a a th a a t t t t b b b b r r r r s s s s w w a w w i a i ii Amends the l l ll d d d d d d d d a r r d d d d a r r Amends and l l ll l l ll m m egulates the m m a a a a d d d d e e e e on 1/5/2007. i i ii u u l u u l ll d d d d t t t t : : :: : u u : :: u u . p p e e . .. p p e e b b b b h h c c t t h h c c der(s) to be t t 21/4/2007 e e e e r r e e n n r r 1991 e e n n n n n n to make provi- c c c c u u h h e e u u t t h h e e t t t t t t t t w w t t n n w w n n : l : :: l ll a a a a e e t t e e t t a a s s a a s s Dáil was dissolved l titles ‘ar l ll o o e e o o e e ovides for r o o o o d d d d e e w w e e h h w w m m h h m m a a a a n n n n h h h h e e n n e e n n t t n n t t th r r n n n n i r r Building Control Act n n i ii e e e e t t t t t t ’ m m t t ’’ m m ’ 26/2007 21/2007 w w w w i i ii f f c c vice Executive, may f f c c o o o o s s s s c c c c e e e e sine die : : n n : :: : :: s s s s n n s s s s s s s s o o r r o o r r . n n . .. n n y y w w c c a a y y w w c c a a t t t t r r r r t t t t r r r r e e e e t t a a o o t t a a o o e e e e e e r r e e r r – – – – e e e e r r e e e e r r n n n n n n n n
c c n n n n s s c c n n n n s s b b h h b b h h o o o o – – l – – l ll b b b b a a e e b b b b a a e e e e e e e e e e e e e e a a a a n n t t i m m n n t t i ii m m t t t t t t t t e e ; implements certain pro- e e l l ll a a e e m m a a o o e e m m o o ) ) ) ) u u 7 7 u u 7 7
m m m m m m m m l m m l ll m m i h h n n n n t t i ii h h n n n n t t t t u u t t u u m m t t m m t t e e i e e i ii a a a a 9 9 t t 9 9 t t c e e u u u u c e e u u u u g g a a o o o o g g a a o o o o a a a a o o e e o o b b e e b b a a 9 9 a a 9 9 m m m m t t t t c c r r Act 2007 o o r r m m o o m m
adjourned 17 April – 15 May 17 April 1990 s s N N C C N N C C D D s s N N Child Care Act Child Care (Amendment) C C N N C C ACTS PASSED Building Control Act 2007 Note: the 29 D D extends the 1 1 on 29/4/2007; the 30 1 1 l D D C C l ll o o ‘quantity surveyor’ and ‘build- ing surveyor’; implements cer- tain provisions of dir 2005/35/EC on thetion of r professionaltions, qualifica- and pr visions of the energyance perform- of(2002/91/EC); buildings r directive use of the matters. D D C C a a o o ( ( a a ( ( meet on 14/6/2007. The Seanad a a a a Care Act 1991 made (per s1(3) of the act) mencement or m m m m Amends part VII of the Health Ser tion to the care of the child. been placed with them by the apply for a court order in rela- five years, the child having care for a continuous period of who has had a child in their that a foster parent or a relative a a a a c c e e c c e e . : : :: d d d d e e e e elat- 8/5/ t t t t vices water 1878, Local Local n n n n e-1922 Com- ovision : : :: , the e e e e e e e e : : :: t t elated to -ser t t etains in and the Fisheries e e e e m m m m t t a a t t a a e e e e a a a a d d d d l l ll 1990 vices, includ- p p p p d d Makes provi- d d otection Agency Public Health t t t t n n n vices. Makes 8/5/2007 : : :: ater Pollution) ater Pollution) t t 1990 t t der(s) to be m m e e m m e e n elevant provi- e e e e : i : :: i ii n n n n 14/5/2007 vices) Acts 1948 t t t t d d d d e e e e m m and m m Local Government : : :: o o o o . Also repeals and e e e e e e e e vices that deal with d d and the t t d d t t n n and water n n tive arrangements and m m m m c c c c vices at local and 30/2007 e e c c e e c c n n n n e e e e t t ovisions in the t t n n n n : a a : :: s s a a s s works Clauses Acts and c c c c o o o o c c c c e e t t r r e e t t itles. Also r r r elation to the pr i i ii n n n n n n n n a a e e a a e e t t t t Provides for miscella- n n n n e e e e e e e e m m b b m m b b n n a a e e n n a a legislation from e e onmental Pr ater 1962 l l ll t t t t e e e e e e e e m m m m s s s s t t t t m m m m m m m m n n n n i W i ii e e e e a a a a o o o o u u u u g g o o g g t t o o t t m m ownship Acts m m e e e e a a 2000. Act 1992 a a T C C D D o o C C force all private,sonal local acts. or per- D D statutes thatpart are of retained theshort as law with t assigned related matters.schedules Lists in allunrepealed the acts. repealed In effect, pub- lishes and for the firstplete time a com- list of the pr o o C C N N Acts 1977 Acts 1977 sanitary ser the provision ofor waste-water water ser supply services is concerned. Replaces various enactments r ing elements of C C sion in r of wateradministra ser for planning andwater delivery ser of national level.what Provides are that authorities’ presently will become ‘sanitary ‘water services authorities’ (defined in terms of county andcils) city insofar coun- as delivery of and Planning and Development Act Envir Water Services N ActN 2007 (Sanitary Ser Acts 1890, 1896 and 1907 and r ed neous amendments to the (Consolidation) Act 1959 related pr Government (W Government (W consolidates r sions in the 2007 L L mencement or made (per s3 of theL L act) C C D D C C Implements a numberdirectives of as listed EC below. D D , titles evi- tain 8/5/ Com- oposed , the : t titles, : :: Labour enacted : : :: e e e e t t t t e e e e 6/12/1922 rade and t t t t a a a a epealed by a a y; identifies a a d d d d d d d d Employment Provides for Repeals cer- macy, and pro- tain pr t t t t Protection of t t t t , and provides : : : :: : :: n n n n 21/4/2007 der(s) to be n n n n e e e e e e e e 8/5/2007 e e e e t t t t : t t t t : :: e e e e prima facie Unfair Dismissals : : :: oposed collective o o o o d d being r o o o o d d m m m m opinions on the d d d d m m e e m m e e n n n n n n e e n n e e t t e e edundancies and for t t e e e e e e 28/2007 27/2007 c c c c t t t t c c Redundancy Payments and the c c elate to shor c c c c : : c c : :: : :: s s s s c c s s s s n n n n a a a a , the 6/12/1922 and have t t t t r r r r t t t t n n r r r r n n a a e e a a e e n n n n e e e e e e e e e e e e n n n n n n n n n n n n e e e e b b b b b b b b e e e e e e e e m m m m e e e e t t t t m m t t t t m m , the Redundancy Payments Act e e e e m m m m m m m m t t e e t t e e n n n n m m n n n n m m t t t t m m m m a a u u u u a a u u u u o o o o o o o o o o o o Matters) Act 2007 relating to phar a a a a Redundancies and Related o o o o Act 2007 (Exceptional Collective 1971 Act 1979 C C C C N N D D N N C C C C C C Redundancy Payments Act 1967 Statute Law Revision N N vides for related matters. D D Protection of Employment N N C C collective r related action byfor the Minister Enterprise,Employment, T includingobtaining the fromCourt the of nature ofredundancies. pr Removesupper age the limit for entitlement toMakes redundancy consequentialments amend- payments. to the tain statutes that were before ceased to havebecome effect unnecessar or have those statutespublic primarily and of general naturewere a enacted that before the PanelRedundancy and establishment the ref- erence to of it of cer a but are not this act and assignsto short some of theseto acts in facilitate order Amends certain statutes their insofar as citation. they r provides for Act 1977 Employment Act 1977 Equality Act 1998 D D C C for related matters. D D C C mencement or made (per s1(2) of the act) 2007 dence to beearly statutes, given and provides of for cer the mation. fences ective Com- Com- eplaces ovision : : :: : : :: riages to e e e e e e e e t t t t t t t t particular a a a a a a a a Makes new d d d d d d d d regulation of egistration of ecognition of tain of t t : t t : :: t t t t ovides for the ease in public der(s) to be e e e e der(s) to be macists, drug- n n n n 21/4/2007 n n 7/5/2007 n n t t t t maceutical assis- e e e e e e e e : : :: : : :: o o o o Civil Registration ovides for the ovides for the d d d d d d d d m m m m m m n n m m n n e e including pr e e e e Updates the legisla- oviding for the reg- e e e e e e e e e e . In addition to t t t t t t 20/2007 25/2007 t t : : :: c c c c c c c c maceutical Society of c c c c c c c c s s s s : : to allow mar : :: : :: s s s s n n t t n n n n t t n n a a t t r r r r a a a a t t r r r r a a e e e e e e e e e e e e e e e e n n n n n n n n n n n n n n n n b b b b b b b b 2002 e e e e e e e e e e e e e e e e m m m m m m maceutical Society of m m t t - t t t t t t Medical Practitioners Acts macy, e e e e e e m m m m e e m m m m n n n n n n n n t t t t t t t t m m m m m m m m u u u u u u u u o o o o o o o o a a a a a a a a tion to freedom of infor Amends the o o o o o o o o 2007 1978 C C C C N N N N C C provision for the phar qualified phar C C Pharmacy Act 2007N N for thePhar dissolution ofIreland and the the settingnew up Phar of a Ireland, for theconstitution establishment, and functionsthe new of society’s council, fornew a system of r gists and phar tants and of pharmacies, for thecreation of cer tion regulating medical practi- tioners. Revokes and r Medical Practitioners Act N N the Act 2004 C C D D C C be solemnised,circumstances, in in a place thatnot is open to the public.and Repeals amends certainprovides for acts related matters. and D D C C D D measures pr istration and control of medical practitioners, pr education, training and compe- tence of medical practitioners. Amends the membershipfunctions and ofCouncil. the Pr investigation Medical ofagainst complaints medicaland practitioners for anaccountability incr of theCouncil. Medical Pr implementation of2005/36 dir on the r C C professional qualifications as it relates to medical practitioners. D D mencement or made (per s1(3) of the act) mencement or made (per s3 of the act) JUNE 2007 JUNE 21/4/ : : :: e e e e subject to t t fice of the t t egistration a a a a Health Act der(s) to be d d d d Amends the Provides for ning, and acts ovides for the t t nment under a t t : : :: : : :: and Quality and Quality n n 21/4/2007 e e e e e e e e n and protection, n e e e e t t t t t t t t : : :: o o o o o o o o d d d d m m m m elates. elate, in whole, to e e e e n n n n n n n n e e Inserts a new part e e t t t t 23/2007 18/2007 c c c c c c c c : : : :: : :: s s s s s s s s n n n n a a a a t t t t r r r r t t t t r r r r e e e e n n n n e e e e e e e e n n n n n n n n e e e e b b b b b b b b e e e e e e e e m m m m t t t t t t t t . Makes provision in rela- uments available to minis- e e e e m m m m m m m m t t t t n n n n m m n n n n m m a a u u u u a a u u u u o o o o o o o o o o o o Act 2007 C C N N N N D D C C C C C C Health Act 2007N N ters of the gover N N European Communitiesto provide that Act offencesregulations1972 under made pursuantthat to act canindictment. be prosecuted on power Provides toinstr that make statutory provision of anythe other Oireachtas actcised may of for the be purpose exer- ofmenting imple- EC law (provisionsthe of treaties gover made for all other sectionss1(2) (per ofmencement the dates are act). All com- European Communities of theEuropean Communities) institutions if the of,obligations imposed the state on under the theconcerned European r act matters to which theprovision enabling ofOireachtas the r actD D of the and 65 (percommencement s1(3) or of the act); the saving and transitional pro- visions set out(per s3 in of the schedule act) 1 C C C C Authority and the Of Chief InspectorServices within of thatand authority Social establishes aand inspection r system fordential resi- services for childrenneed in of care people witholder disabilities people. and Pr dissolution ofand certain for bodies thefunctions transfer of toInformation their theAuthority. Health 9A, ‘Protected disclosuresinformation’, in of the the establishment of the Health Information www.lawsociety.ie LAW SOCIETY GAZETTE 2004 2007
BRIEFING 50 BRIEFING 51 10). 29/3/ elated Public : : :: e e e e tain mar- t t t t Appoints egulations a a a a d d d d Consolidate he latest at the same : : :: You can also check You elates to sub- JUNE 2007 JUNE e e t t e e t t ; t : : :: ning the mak- t t t t family income Prepared by the Public Health n n n n e e e e o o o o t t t t e e e e n n o o n n o o evious r www.lawsociety.ie m m m m Law Society Library n n n n ovisions (part 8); e e e e SI 150/2007 SI 142/2007 c c c c s s s s s s : : s s including loss of pur- : :: : :: n n n n t t obacco) Act 2002. t t t t t t r r r r r r r r e e e e e e e e e e e e n n n n n n n n G lawsociety.ie. b b b b e e b b b b e e e e e e m m m m t t t t t t )ofthe t t m m m m m m m m n n n n n n n n m m m m u u u u u u u u o o o o o o o o o o 2007 o o (Commencement) Order Control) Regulations 2007 (Amendment) Act 2004 Claims, Payments and C C C C N N N N C C 31/5/2007 as thement date commence- for sectionact, 9 insofar of as it the sections r (1) and38, (3) ‘Prohibition of of cer section keting practices’, of the C C C C Public Health (Tobacco) N N Social Welfare (Consolidated N N all thements social other insurance than occupational injuries pay- benefits (part 2); allsocial the assistanceother than supplementary wel- payments fare allowance (partbenefit 3); (part child grant 4); (part respite 5); supplement care (partprovisions 6); gover r ing of(part claims 7), and payments chasing power, absencethe from stateoverlapping and payments imprisonment, (provi- sions that setstances out in the which circum- areceive person may more thanwelfare one payment social time) andcontrol island pr allowance; overpayments (partliable 9); and relatives (part Revoke all pr relating to the above. C C 2007 (Tobacco) Act 2002. Health (T lawsociety.ie uction LAW SOCIETY GAZETTE transfer’) Appoints Appoints Appoints Appoints tain market- : : : : : :: : :: : :: : :: e e e e e e e e e e e e e e e e t t t t t t t t t t t t t t t t Public Health and general’), o o o o o o o o o o o o o o nment Act 2001. o o ‘Share and general’) and n n n n n n n n n n n n n n n n SI 180/2007 SI 149/2007 SI 165/2007 SI 153/2007 s s s s s s s s s s s s s s s s : : : : : :: : :: : :: : :: t t t t t t t t t t t t t t t t r r r r r r r r r r r r r r r r readers can access back issues of the magazine as far back as elating to constr e e e e e e e e n n e e e e e e e e n n n n n n n n n n n n n n b b b b b b b b e e e e e e e e b b b b b b b b e e e e e e e e ovement districts’, into t t t t t t t t t t t t t t t t Local Gover m m m m m m m m m m m m m m m m n n n n n n n n n n n n n n n n u u u u u u u u u u u u u u u u o o Get more at Gazette o o o o o o o o o o o o o o Order 2007 Order 2007 Jan/Feb 1997 right up to the current issue at out: current news; forthcoming events; employment opportunities Order 2007 and 2) (Commencement) 2007 2006 (Commencement) 2002 (Commencement) Agency Act 2007 (Parts 1 (Commencement) Order Improvement Districts) Act 2004 C C C C C C C C N N N N N N N N C C C C C C C C N N Public Health (Tobacco) Act N N N N National Oil Reserves N N Prisons Act 2007 Local Government (Business 24/4/2007 as thement date commence- for sections 2,6 3 of and the act. Sectionnew 6 inserts a partimpr 13A,the ‘Business 16/4/2007 as thement commence- date for‘Preliminary part 1part 2 (ss1-3, (ss4-6, of the act. 31/5/2007 as thement commence- date forand subsections (1) (3)‘Prohibition of cer ofing practices’, (inserted by sectiontion sec- 9 38, of the 1/5/2007 asment the date commence- for‘Preliminary part 1part (ss1-3, 4ments (ss17-29, r ‘ Require- and extensionspart of 5 prisons’), (ss30-32,prisons’) ‘Inspector and of part‘Miscellaneous’), 6 (ss33-43, otherss33, than 34, 38 and s42(a). (Tobacco) (Amendment) Act CPD courses, as well as lots of other useful information. ) ’) ders 31/5/ Rules 30/4/ Taxes escribe : : :: : : :: e e e e e e e e t t t t t t t t a a a a a a a a d d d d d d d d Provide for t t t t Appoints 5/4/ . Section 16 Amend or t t t t : Copyright Act : :: eplacing section n n n n : : :: : e e : :: e e n n n n e e e e t t e e t t e e e e e e e e e e t t t t t t t t o o o o m m m m o o o o o o o o m m m m n n n n shares and other e e e e e e n n e e n n n n n n SI 203/2007 SI 168/2007 SI 170/2007 Copyright Act 1963 c c c c District Court c c c c : : s s : : :: : :: s s s s : :: s s s s s s n n n n n n n n t t t t t t t t r r r r r r t t t t r r r r r r e e e e e e e e e e e e e e e e e e e e n n n n n n n n n n n n b b b b b b b b b b b b e e e e e e e e e e e e m m m m m m m m (SI 93/1997) to pr t t t t t t t t t t t t . Section 198 provides for Criminal Justice Act 2006 oceedings under part 10 of m m m m m m m m m m m m n n n n n n m m m m n n n n n n m m m m u u u u u u u u u u u u o o o o o o o o o o o o o o o o o o o o already inthan operation, sections 98, 199 other and 247that – is, appointsthe 1/5/2007 commencement as section date 198 for (r 56 of the practice) Regulations 2007 16) Order 2007 2007 Reporting of Corruption or Mal- (Commencement of Section Justice Act 2006) Rules 1997 C C C C C C N N N N C C N N C C the establishment ofby a charter thecontaining Garda Commissioner guidelinesmechanisms for the and tial confiden- reporting ofcorruption allegations of orwithin An Garda Síochána. malpractice C C 13, 14, 17, 26,and 31 insert and 100 a(‘Pr of, new orderthe 28A 2007 C C C C Garda Síochána (Confidential N N N N Finance Act 2005 Criminal JusticeC C Act 2006. Finance Act 2005 District Court (Criminal N N C C 2007 asdate the commencement for section 16 of the 1963 the legal depositbooks of first copies of state published in certain in libraries. the District Court procedureforms and as provided for in the 2007 Consolidation Act 1997. amends section 128, ‘Tax treat- ment of directors of companies and employees grantedto rights acquire assets’, of the into, the and for section 10(2), insofar as it applies to thetion repeal 56 of sec- of the . tain (SI 22/5/ : : :: effects of Appoints ticular of e e e e Criminal oundwater t t t t a a a a Amend the : : :: d d d d Appoints 18/ protection of e e e e : : :: t t t t ’, which pre- : : :: t t t t e e e e ective 91/271; Rules 2001 o o e e o o e e t t t t eatment; 86/278 n n n n t t t t substances dis- o o n n o o n n e e e e from agricultural o o o o n n n n substances; 76/464 n n n n m m m m SI 157/2007 SI 169/2007 SI 158/2007 cuit Court proce- e e e e s s s s uments; 2001/42 on s s s s : : : : :: : :: : :: s s s s c c c c into the aquatic envi- t t t t t t t t t t r r r r r r t t r r r r r r n n n n e e e e e e e e e e e e n n n n n n n n n n n n e e e e Criminal Justice Act 2006 b b b b b b e e b b b b b b e e e e e e e e e e t t t t t t t t t t t t ces; 91/271 on urban m m m m m m m m m m m m m m m m n n n n n n n n n n n n u u u u u u u u u u u u o o o o o o o o o o o o ment) Order 2007 m m m m Provisions) (Commence- Order 2007 Rights Act 2000 (Certain Justice Act 2006) 2007 Act 2007 (Commencement) o o o o N N C C N N C C N N C C N N Copyright and Related C C Circuit Court Circuit Court Rules (Criminal N N C C N N C C Broadcasting (Amendment) SELECTED STATUTORY INSTRUMENTS ronment of the community the assessment of the 91/676 on the on pollution caused by cer charged Directives 2004/22 on measur- ing instr certain plans andon programmes the environment;establishing 2000/60, acommunity framework action for in theof field water policy;quality 98/83 of on the waterhuman intended consumption; for amending 98/15, Dir waters against pollution caused by nitrates on the protection ofronment, the and envi- inthe par soil, when sewage sludgeused is in agriculture;the 80/68 protection of on gr against pollutiondangerous caused by dangerous sour waste-water tr 1/5/2007 asment the commence- date for sections not 4/2007 as thedate commencement for all sections of the act. Justice Act 2006 scribe Cir dures and forms as provided for in the new order 68A, ‘ 510/2001) by the insertion of a C C 2007 C C , with effect Credit Union ferred to issue a certificate rather than to express an opinion. While it is a matter for individual solici- tors to decide which format they use, it is the view of the commit- tee that it is preferable to express an opinion as to matters of law (which the practitioner can verify) rather than to certify certain mat- the committee ters. Accordingly, recommends opining as to legal issues rather than certifying factu- al matters. Trusts Committee 15,000 (as amended) from €€ Business Law Committee Conveyancing Committee Probate, Administration and SI 546 of 2006 also application procedure for registra- tion of a lien created through a certifi-deposit or possession of cate. This procedure and the for- mat of application and notice are set out in the PRA Practice Direction (2006) No 3, which is available on the PRA website: www.prai.ie. increased the amount that the directors of a credit could union pay out without production of a grant of representationunder section 23 of the facing page). (See the form of opinion on the 6,400 to € from 17 October 2006. Act 1997 Euro ). The Business Law Committee The committee was advised Section 73(3)(b) of the Section 73(3)(b) of be described by Enterprise Ireland as having been agreed with the Business Law Committee. is not advising solicitors that they ought to give such an opinion. the purpose of this note is Rather, to advise that the form of the opin- ion set out opposite is that which the Business Law Committee has agreed. Practitioners should decide themselves in individual cases whether they are willing to give such an opinion or not. that some solicitors have pre- from 1 January 2010. provides that any per- 6,400 by section 6 of the The PRA has now drafted an Section 23: provision for small payments on death Section 23 of the act (as amend- ed) allows the directors of a cred- it union to distribute the property of a member to those entitled by law without the necessity of a grant of representation (orig- up to inally £5,000 and increased to € Act 2006 Registration of Deeds and Title son holding a lien over a certifi- cate may apply to the PRA before 1 January 2010 for registration of the lien in such manner as the PRA may determine. Changeover (Amounts) Act (as 13,000 to € SI 546 of 2006 increased the Credit Union Act 1997 the companies nor does it conduct searches at the Companies Registration Officethe against companies as partof its invest- ment process. Accordingly, reliance is placed by Enterprise Ireland on the opinion given by each company’s solicitor to obtain verification on the various points contained in the opinion. The com- mittee considered the form of the opinion sought by Enterprise Ireland and, following discussion with Enterprise Ireland, agreed that an opinion in the form of that set out on the facing page could , with effect from 17 for a three-year period after 1 January any cer- 2007. However, dur- tificate lodged with a dealing ing that three-year period will not be reissued by the PRA, and will be cancelled. Any certificate issued before 1 January 2007, which has not already been can- celled by 1 January 2010, will cease to have force or effect ber. This nomination is revoked by ber. the subsequent marriage, but not the subsequent will, of the mem- ber. sum that a credit union member could nominate under section 21 of the ABOLITION OF LAND CERTIFICATES: LAND CERTIFICATES: ABOLITION OF 23,000 ENTERPRISE IRELAND – LEGAL OPINIONS €€ amended) from October 2006. PROCEDURE FOR REGISTRATION OF A LIEN OF FOR REGISTRATION PROCEDURE ON DEATH: INCREASE IN STATUTORY LIMITS INCREASE IN STATUTORY ON DEATH: JUNE 2007 JUNE notes 2007, the the Business 13,000 by sec- € Credit Union Act Euro Changeover , which nominated Registration of Title . However, any certifi-. However, (as amended) allows a he attention of Law Committee has been CREDIT UNION NOMINATIONS AND PROVISION FOR SMALL PAYMENTS SMALL PAYMENTS AND PROVISION FOR CREDIT UNION NOMINATIONS ince 1 January Property Registration Enterprise Ireland explained T Section 21 nominations As practitioners are aware, sec- tion 21 of the drawn to the practice of Enterprise Ireland to seek a form of opinion from solicitors acting for compa- nies into which Enterprise Ireland proposes to make an equity investment. The committee has taken the matter up with Enterprise Ireland. that, due to the large number of equity investments that Enterprise Ireland makes each year in Irish companies, it does not carry out a review of the statutory books of S Authority (PRA) has ceased to Authority (PRA) has ceased issue land certificates and cer- tificates of charge (certificate) under the tion 6 of the member of a credit union to nom- inate up to (originally £10,000 and increased to Act 1964 www.lawsociety.ie cate already issued before that date will still need to be lodged with applications for registration LAW SOCIETY GAZETTE (Amounts) Act) 1997 practice sum will fall outside the terms of the will or intestacy of the mem-
BRIEFING 52 BRIEFING 53 . cer- is given that: certificate/ . . JUNE 2007 JUNE www.lawsociety.ie in this letter to reflect any throughout the text ‘opinion’ where highlighted Certificate/Opinion stance of the letter where italicised print appears 1. Please use either ‘certificate’ or pany: Note to solicitor acting for com- and on the Assumptions set out in and on the Assumptions clause 3 hereof and the Qualifi- cations and Reservations set out in clause 4 hereof we hereby Insert name of firm of solicitors] 2. Please don’t amend the sub- 3. Please insert relevant text [ pany limited by shares and is the duly incorporated under laws of Ireland. struck off Comp- the Register of anies and has not received any notification of strike off from the Registrar of Companies. shareauthorised and unissued capital of the relevant class to allot the Shares to Enterprise Ireland. the Agreement by the Company to Enterprise Ireland does not violate the most up to date Memorandum and Articles of Association of the Company. issue the Shares to Enterprise Ireland and the Company has been authorised by its board of directors to execute the Agreement under seal and to issue the Shares to Enterprise Ireland. facts or circumstances which may come to our attention or any chan- after ges in the law that may occur, in each case. the date of this letter, faithfully Yours ______opinion 1. com- The Company is a private 2. The Company has not been 3. has sufficient The Company 4. The execution and delivery of 5. The directors are to authorised This as of the date hereof and we are not under any obligation to update or supplement the tify/are of the opinion is is LAW SOCIETY GAZETTE Opinion/Certificate Opinion/Certificate meetings acted bona fide meetings acted bona throughout and in the best inter- the reso- ests of the Company, lutions set out in such minutes were and are duly passed in full force and effect and no further resolutions were passed or cor- taken porate or other action the which would or might alter effectiveness thereof; information or on given to us by behalf of the Company in reply to any enquiries we have made which we have considered nec- essary for the purpose of giving this certificate are true, correct and accurate; the Company were validly appointed and that all persons referred to as directors in the minutes attached to this letter were directors of at the time the relevant board meetings; for filing on, or has appeared on the file of the Company at the Companies registration Office subsequent to the results set out in the online search of the Company. 5. That all representations and 6. That each of the directors of 7. That nothing has been lodged AND 4. QUALIFICATIONS RESERVATIONS 1. This given only to Enterprise Ireland and in connection with the Agreement. It may not be relied upon as constituting a repre- sentation or other statement to any other person or for any other purpose. This certificate may not be provided or copied to any third party without our prior written consent. of Ireland and members of the Law Society of Ireland. Accord- ingly our limited solely to the laws of expressIreland. no opinion We concerning the laws of any other jurisdiction. 2. are solicitors of the courts We 5. CERTIFICATION/OPINION Based solely on the Documents ] . Opinion/ FORM OF THE OPINION: FORM we have assumed, Company at the Companies Registration Office; table of the Company detailing issued (i) the authorised and share of the Company capital share-and (ii) the names of the holders of the Company and their respective shareholdings by number and class, which is certified by either a director or secretary of the Company as being up to date; of the Company confirming that the Company has not received any notice of strike off from the Registrar of Companies. utes of shareholder meetings 5. statement of the share A capital 6. A confirmation from a director [ the certificate, for example, min- ered necessary for the giving of for the company may have consid- of all the copy Documents sub- mitted to us with the originals; tures and seals on the Documents; of all the Documents, and that such Documents remain in full force and effect as at the date of entering into the Agreement by the Company and have not been amended in any way; meetings of directors of the Company and of members of the Company (that comprise part correct- of the Documents) ly record the proceedings of those meetings, the meetings referred to in each of the min- utes were duly convened and held, those present at any such Insert specific details of any fur- ther documents that the solicitor without responsibility on our part if any assumption is incorrect: 1. The authenticity and conformity 2. The genuineness of all signa- 3. The accuracy and completeness 4. of That the signed minutes Certificate (collectively referred to as the ‘Documents’). 3. ASSUMPTIONS In rendering this in Opinion/ insert the ] against the ] Opinion/Certificate , we have examined the insert date ] Limited (‘the Company’) insert name of investee ] in the Company (‘the Shares’) We have been asked by the We Articles of the of Association Company certified by either a director or secretary of the as being a true and Company, the most up to date copy; utes of the Company relating to a meeting of the board of direc- tors held on [ ] approving the execution of the Agreement by the Company and the allotment of the Shares to Enterprise Ireland, certified by either a director or secretary of the Company as being a true copy; ed by all the parties; ed on [ Insert date [ Enterprise Ireland Wilton House Wilton Place Dublin 2 [Headed notepaper of solicitor [Headed notepaper representing the company] pursuant to the Investment Agreement dated [ ] between the Shareholders (as defined in the Agreement) the Company and Enterprise Ireland (‘the Agreement’). Company to give Enterprise Ireland this company 1. CONTEXT representWe the Company in rela- tion to the subscription by Enterprise Ireland for [ Dear Sirs, 2. A copy of the signed board min- 3. The original Agreement execut- 4. The result of searchesconduct- following documents only: 1. A copy of the Memorandum and Matter: [ ted no and class of share being allot- Certificate For the purpose of this 2. EXAMINATION for the Shares. connection with its subscription or to Law , which Architects’ edition of the rd , would not suf- Diplomatic and to practice as a Companies Acts , then it requires to Solicitors Act 1954 Conveyancing Committee Business Law Committee before duly authorised any person to administer oaths there”. C. Declarations for other purposes be awarePractitioners ought to that if a statutorydeclaration is being made outside of Ireland for any purpose in pursuance of or for the purposes of any legislation other than the Solicitors Acts Taxes Acts 85/384 ARCHITECTS’ Solicitors Act Services) Act 1993 TAXES ACTS Consular Officers (Provision of be made before a person entitled under the solicitor in the state must be before a diplomatic or consular officer of Ireland who is posted to that foreign state. D. Companies Registration Office information leaflet The Companies Registration Office has issued an information leaflet (no 20 VNR.doc) on this matter. fice) or in accordance with the pro- visions of the requires that a statutory declara- tion made abroad and not before a solicitor entitled under the the practice as a solicitor in Ireland (which may necessitate a solicitor travelling from Ireland – a person who qualified as a solicitor in Ireland and practised in the for- eign state, but without holding a practising certificate issued under the Taxes on CD-ROM. Stamp OR THE OR THE DIRECTIVE and republished at page 7.53 of the 3 shall, if the decla- 85/384, as per paragraph (g) of the committee’s recom- COMPLIANCE: ARCHITECTS’ CERTIFICATE OF ARCHITECTS’ CERTIFICATE Section 6 of the 2006 act vali- Section 6 of the 2006 act he Conveyancing Committee is of the opinion that practitioners should be in a position to accept a certificate of compliance from (the 1993 act) or any other Diplomatic and Consular , section 157 of the advised that the following proofadvised that the following would be required in such circum- should stances: the declaration be sworn before diplomatic or a consular officer of the relevant with Irish embassy and stamped the embassy’s seal. dates statutory pre- declarations viously sworn abroad by providing that any statutory declaration made outside of the state pur- porting to be in pursuance of or for the purposes of the Taxes Acts Conveyancing Handbook T a person from another jurisdiction in the European Union whose qual- ification is entitled to recognition in Ireland under the mendation entitled “Who Should Certify Compliance?” dated 26 October 1994, circulated with the October 1994 edition of the 1993 For the purpose of any statutory declaration sworn in pursuance of or for the purposes of the states that a statutory declaration can be sworn “outside the state Companies Act Officers (Provision of Services) Act enactment, and anything done on foot of the declaration’s delivery including any sub- to the registrar, sequent registration of that decla- ration, shall be valid and deemed always to have been valid, notwithstanding anything in the 1993 act or in any other enact- ment. B. ration was delivered to the Registrar of Companies before the passing of the 2006 act (24 December 2006), be valid and deemed always to have been valid, notwithstanding anything in the Duty Consolidation Act 1999 Acts EC EC Directive Society News Hague Hague does not with regards COMPANIES ACTS nor the , require such , then (unless the Hague Convention with regards to does not extend to apply, the Registrar of apply, , then (unless the declareracted in making has the declaration; son who has administered the oath to the declarer in accor- for- dance with the law of the eign state. EC Convention of the following must be authenti- of the following must be cated: a) The capacity in which the b) The seal or stamp of the per- If the foreign state is one that is a contracting party to the EC Convention Where the foreignone state is Companies Acts but not a contracting party to the EC Convention Hague Convention Companies in Ireland may, before Companies in Ireland may, receiving any statutory declara- tion purporting to be made in that foreign state in pursuance of or for the purposes of the the foreign state), the provisions of the authentication shall apply in rela- tion to the statutory declaration. to which neither the provisions of the proof as he or she considers appropriate of any particular requirements of the law referred to at (b) above. The registrar has to authentication shall apply. If to authentication shall apply. the foreign state is a contracting party to the extend to the foreign state) the provisions of the Convention Convention Convention Convention JUNE 2007 JUNE to prac- Companies Companies THE PURPOSES OF THE (no 41 of 2006), a statuto- shall be regarded as having . STATUTORY DECLARATIONS MADE ABROAD IN PURSUANCE OF OR FOR OF OR IN PURSUANCE MADE ABROAD DECLARATIONS STATUTORY Solicitors Acts 1954 Companies Acts Where the statutory declara- 2006 THE SERVICE IS COMPLETELY CONFIDENTIAL AND THE SERVICE IS COMPLETELY SOCIETY INDEPENDENT OF THE LAW TOTALLY and Miscellaneous Provisions Act 01 284 8484 SOLICITORS’ HELPLINE The Solicitors’ Helpline is available to assist every member of the profession with any problem, whether personal or professional Practitioners ought to be awarePractitioners that, by reason6 of the of section Investment Funds, Companies A. tion sworn in the foreign state is sworn before a person authorised under the law of the foreign state to administer oaths there, then the signature of the person mak- ing the declaration and, to the extent that the law of the foreign state requires, either or both been validly made, but only in pur- been validly made, but only for the suance of those acts or if it is purposes of those acts before:made outside the state a) A person entitled under the tice as a solicitor in the state (a person holding a valid prac- tising certificate and not mere- ly a person who qualified as an Irish solicitor), or law of that place (the foreign state) to administer oaths in the foreign state. ry of declaration made outside of or for the state in pursuance the purposes of the www.lawsociety.ie LAW SOCIETY GAZETTE Acts Acts b) A person authorised under the In the second situation, there are further provisions that must be complied with before the statuto- ry declaration may be regarded as validly made in pursuance or for the purposes of the
BRIEFING 54 it is it is the
BRIEFING 55 ment of life policies: ment of life Conveyancing view of the that solicitors Committee expected to col- should only be of laterally stamp assignment life policies if the signed assignment forms are fur- nished by the lending institu- tion to the solicitor before the solicitor attends to stamping of the client’s title. It is expect- ed that such requirements will any disappear over time in longer case, given that it is no necessary assign- to stamp ment of life policies. Requirementfor production of an architect’s certificate of compliance with planning per- mission and building regula- tions prior to drawdown: the view of the committee that a purchaser is not entitled to a certificate of compliance until the purchase is completed or, where appropriate, the final stage payment has been made, and it should not be a requirement of any lending institution that the certificate of compliance must be lodged with the lender before the final stage payment/loan cheque issues. The committee is also of the view that the certificate of title and the solicitor’s undertaking, as agreed with all lending institutions, covers planning matters. JUNE 2007 JUNE 6) www.lawsociety.ie Conveyancing Committee LAW SOCIETY GAZETTE that solicitors should not that solicitors give certificates of this nature to any lending insti- aretution. These matters on which the lending insti- tutions can satisfy them- selves by obtaining the nec- essary certificate or letter directly from the borrower. The committee is aware that solicitors have certain obligations under money- laundering legislation and the profession has been of advised as to the type documentation prudent solicitors should obtain from their clients in con- veyancing transactions. it is also the case However, that lending institutions have their own obligations to fulfil under money-laun- dering legislation. These obligations are different to the obligations on a solici- tor vis-à-vis their own client and, in the view of the Conveyancing Committee, solicitors acting for borrow- ers have no function what- ever in attending to satis- faction or fulfilment of the money-laundering require- ments placed on lenders by legislation. These are mat- ters strictly for the attention of the lending institutions themselves. Requirement that solicitors collaterally stamp assign- 5) the Conveyancing it is the view of the A requirement that the borrower’s solicitor certify to the lending institution the source of the borrow- er’s balance of funds applied in the purchase of the property; A requirement that the borrower’s solicitor certify how the borrower will apply the proceeds of the loan cheque/certify the purpose of the borrower’s loan: Conveyancing Committee by the solicitor’s certificateby the solicitor’s of title and there no should be requirementborrower’s that a solicitor furnish letter or any certificate to the lending insti- tution in this regard pre- as a requisite of the to the issuing borrower’s loan cheque. A requirement that the bor- rower’s agree solicitor to act as the borrower’s attorney throughout course of the the loan for the service of pro- insti- ceedings by the lending of tution during the course the loan: above Committee believes the requirement is completely unreasonable and that no solicitor should agree to act as attorney for the borrower in these circumstances, bearing in mind that the solicitor may not even be instructed by the borrower at the time that any proceedings are issued. (b) 3) 4) (a) the
Conditions in letters of offer requiring solicitors to furnish certificates or letters confirm- ing the position regarding planning matters: Conveyancing Committee is of the view that matters relating to planning are coveredthe by solicitor’s certificate of title. There should not, therefore, be any requirement of by way a special condition in a letter of offer or otherwise that the solicitor should be required to furnish a letter or certificate to any lending institution as a prerequisiteof a to the issuing loan cheque. Conditions requiring a solici- tor to confirm the position regarding wayleaves on title: The committee is of the view that matters concerning wayleaves on title are covered LAW SOCIETY CERTIFICATE OF TITLE DOCUMENTATION (1999 EDITION) (1999 TITLE DOCUMENTATION OF CERTIFICATE SOCIETY LAW
t has been brought atten- to the that vari- tion of the committee I ous lending institutions regularlyous lending of offerissue letters to clients partand/or documentation as of that con- the ‘solicitor’s package’ tain requirements from the bor- rower’s solicitor that appear to be in contravention of the certificate- of-title package of documenta- tion, as agreed between the Law lending Society and the various commit- institutions in 1999. The below in tee sets out its views relation these matters to some of that have been brought to its attention by practitioners. 1) 2) G “We will, of course, take “We “The point you have raised the High Court and the Dublin Circuit Court now for approxi- mately four years, and the response from the profession has been very positive. what you say into account in devising the new system for civil cases. There are a number of ways of alerting to solicitors their own cases in an electron- ic diary, and we are keenly aware of the need to explore all possibilities. provides a very useful insight into the needs of the legal pro- fession, and I would be very grateful if you would continue to keep me informed of any other issues or requirements that could be taken into account when we commission our new systems.” Business Law Committee Both the 1992 notice and the Both the 1992 notice and compete clause in an employ- compete clause in an ment agreement will be enforced only if it is reasonable in its scope, in terms of its duration and geographical application. What is reasonable will depend on the circumstances of each case. authority’s revised position reflect of the authority’s understanding They do not constitute the law. definitive statements of the law comparable to judicial decisions. They do, nonetheless, provide a useful guide to the authority’s approach to such matters. Its revised position on employment agreements removesuncer- the tainty introduced by its 1992 notice in relation to the enforce- ability of post-termination non- compete covenants in some employment agreements. . but Competition Act Competition Act Nuala McLoughlin, the dent, the chief executive officer of the Courts Service, PJ Fitzpatrick, responded saying it would seek to quickly, have these concerns addressed and “to ensure that arrangementslisting for of Circuit Court cases on our website are of assistance to practitioners, which is the whole intention of putting them on the website”. chief registrar and director of Supreme and High Court operations, also replied: “The present practice is that all lists are posted to the Legal Diary on the Courts Service website. I appreciate that this system generates a need for changed work prac- tices in solicitors’ offices. It has been in exclusive use in The authority’s revocation of within the meaning of section within the meaning of 4(1). While such an agreement and an between one individual a sub- employer may not have stantial impact on competition, agree-the existence of such of the ments in many sectors com- economy means that their bined effect would be to greatly restrict competition.” to reflectthe 1992 notice seems employ- a view that a contract of ment cannot become an “agree- ment between undertakings” and that such contracts will therefore never come within the scope of section 4 of the will be reviewed under the com- mon law doctrine of restraint of trade. Under this doctrine, a non- Accordingly, any non-compete Accordingly, provisions in employment con- tracts will not fall to be reviewed under the , is erroneous. Following correspondence EMPLOYMENT AGREEMENTS EMPLOYMENT by one Limerick-based solici- who noted that practition- tor, ers had not only to check cases in their local area, but also cases in all Circuit Court areas where they might be dealing with cases. “This is a highly cumbersome and time- consuming process,” he com- have experi- plained. “We enced difficulties here in Limerick where solicitors could not find their case on the website or missed cases where they were listed on the website. This presented diffi- culties in court where a Circuit judge refused to adjourn cases, despite respresenta- tions and even consent by both sides in the light of the obvious difficulties.” from the Law Society’s presi- continue to be) correct, it state- believes that the additional at the ment in the notice that, point in time when an ex-employ- ee becomes an undertaking, the contract original employment becomes an “agreement between undertakings” that is subject to the provisions of the The practical importance of Competition Act WEBSITE CAUSES CONCERN The authority has thereforeThe authority has revoked notice. the 1992 the 1992 notice lay in the effect it had on post-termination non- compete clauses. According to the 1992 notice, “if the former employer were to seek to enforce a non-competition clause in an employment contract in respect of an employee who had left and was seeking to establish his or her own business, the authority believes that this would repre- sent a restriction of competition JUNE 2007 JUNE . The 1992 PUBLICATION OF LISTS ON COURTS OF SERVICE PUBLICATION COMPETITION AUTHORITY REVOKES 1992 NOTICE IN RESPECT OF NOTICE IN RESPECT 1992 REVOKES AUTHORITY COMPETITION n 2 January 2 n 2007, the Authority with- Competition he President of the Law Society of Ireland, Philip Recently, a number of prac- Recently, The matter was brought to The 1992 notice had stated The 1992 notice had T While the authority is happy Joyce, has brought to the attention of the Courts Service the concerns of cer- tain members of the profes- sion relating to the publication of lists on the Courts Service website. titioners informed Limerick Circuit Court, on the morning of the hearing of their cases, that they did not, or could not find their case on the Courts Service website. the attention of the Courts Service Information Office in the hope that the home page of the website would be changed to provide clear direc- tions about locating cases. A particular difficulty was cited Competition Act O drew, with effectdrew, from 12 notice in December 2006, its respect agree- of employment ments dated 18 September 1992. was not that, since an employee an undertaking, a contract of “agree-employment was not an ment between undertakings” for law the purposes of competition agree-and that employment ments were therefore not subject to the provisions of the www.lawsociety.ie LAW SOCIETY GAZETTE notice also stated that an employee who leaves his or her employment and sets up in busi- ness on his or her own account becomes at that point an under- taking. that these statements were (and
BRIEFING 56 BRIEFING 57 , and egula- ribunal Solicitors’ Solicitors’ Ireland as obligation 500 to the n default of e there was JUNE 2007 JUNE € eport for the ument No 421 egard for the egard for his G for the protection www.lawsociety.ie espondent solicitor Instr obligations to com- statutory Solicitors’ Accounts Regulations furnished to theaccountant’s Society r an year ended2005 31 within December sixthat date, in months breach of of r tion 21(1) of the Accounts Regulations Accounts Regulations 2001 of clients and the public. compensation fund, the Law Society of taxed by athe taxing High master Court i of agreement. to monitor compliancethe with showed disr Society’s Statutory of 2001; showed disr statutory ply with the On 20Solicitors Disciplinary T Marchfound the 2007, r guilty of the misconduct in his prac- tice as a solicitor ina) that Failed he: to ensur The tribunal orderedrespondent solicitor: that the a) Do stand censured, b) Pay a sum of c) Pay the whole of the costs of b) Through his conduct, , , , ,, , ,, g g g g -- -- r r J J s s r r t t J J s s t t r r n n 44 e e r r n n 44 e e e e e e i i ii t t t t l l ll 55 o o 55 o o e e e e t t s s t t s s t t e e t t e e i i ii and r r 99 r r 99 a a i a a i ii t t t t t t a a t t a a 11 c c 11 c c LAW SOCIETY GAZETTE c c c c i i ii S S S S h h h h m m m m l l ll a a a a c c c c ss Solicitors (Amendment) Act r r ss r r ] ] i ] ] o o i ii o o tt e e tt e e Solicitors’ dd Ireland as p p dd p p 6 6 6 6 S S S S cc cc h h h h obligation M M nn M M 0 0 nn 0 0 )) t t )) t t 500 to the r r r r A A / / / / r r r r rr aa rr aa e e e e l lll € ; 6 6 f f l 6 6 f f l ll oo o o oo o o n n ee n n ee t t tt n n t t tt n n ss t t ss t t i i ii rr 9 9 rr o o 9 9 o o i rr iii rr i i ii i i ii rr rr ee u u II ee u u II cc egard for his cc c c a a c c a a l i lll egard for the iii T T oo T T oo i d d i ii l d d lll ff tt r r ff tt r r Solicitors’ Accounts tt B B tt B B l l ll n n n i for the protection iii e e oo e e oo oo oo n uu uu D D D D M M M M o o cc J J a a o o t t cc J J a a t t ss ss / / / / i iii obligations to com- t t t t s s s s BB l BB lll yy yy l l ll tt tt statutory , , ,, 0 0 0 0 tt a a tt a a e e e oo e e )) oo Solicitors’ Accounts )) y y y y JJ JJ nn nn ee ee 5 5 5 5 tt tt a a i a a iii dd r r a a dd r r a a SS SS ee e l lll m m m m 1 1 cc 1 1 cc nn nn a a a a a nn nn ee h h ee h h , , ,, oo 2 2 cc aa r r oo 2 2 cc a r r c c aa oo c c aa oo i r r iii r r [ [ [ [ e e e e e e e e i e e i ii e e SS l SS lll 3 3 3 3 pp e e pp e e hh 21(1) of the hh 22 22 h h h h l p p h h h h pp l ll ss p p pp ss 4 4 4 4 cc cc t t t t t t t t t t t t Regulations ee i 00 ee M M iii w 00 M M w Regulations 2001 - - - - pp p p pp p p Accounts Regulations of clients and the public. advised, compensation fund, the Law Society of taxed by athe taxing High master Court in of agreement. default of rr rr i showed disr statutory ply with the i ii aa aa u 00 u 00 aa aa showed disr Society’s to monitor compliancethe with 2 2 2 2 s s s s (( (( u u (( f f (( f f M M 22 n n 22 n n L 4 4 L T T a a 4 4 T T a a o o I I B B o o The tribunal orderedrespondent solicitor: that the a) Do stand admonished and b) Pay a sum of c) Pay the whole of the costs of I I B B c) Through his conduct, s s s s e e e e r r r r , , ,, / / / / d d ss d d ss - - - - e e e o o y y e o o y y rr 6 6 rr 6 6 m m m m n n t t n n t t y y y y h h h h n n i n n oo i ii 7 7 oo 7 7 a a t t a a a a t t a a e e e e tt tt c c c c o o J J o o J J i iii n i i ii T T T T n n n e e e e cc l cc l ll h h h h o o l o o l ll n n n n i iii i t t i ii t t l lll o o o o a a D D a a D D y y y y Ireland as f f f f / / / / s s s s t t S S t t S S oo oo regulation o o s s o o s s dd 500 to the 1 1 dd d d 1 1 d d n default of SS SS M M M M ’ ’ ’’ 3 3 nn 3 3 nn n n n n )) e e )) e e € e there was rr aa rr aa 8 8 a a 8 8 a a 6 6 l h h 6 6 r r lll h h O O r r O O oo oo t t 4 4 t t 4 4 eport for the ee ee e e e e tt 1 1 yy tt 1 1 yy , a a , ,, a a [ [ [ [ e e e e i rr iii t t rr t t r r r r nn 7 7 nn II 7 7 s t t cc II s t t cc s s h h h h i 22 iii e e 22 e e oo e e ribunal found the oo l e e lll a a ff t t a a ff t t 00 00 each of d d t t d d t t oo hh oo hh oo n n oo n n n i n 00 i ii ss 00 a a ss a a m m m m n aa m m n aa m m l , l ll , ,, yy yy 22 22 u u tt a a u u tt a a b b b b y y f f tt y y f f tt -- -- ee e J J )) J J )) M nn M nn ee ee g g tt u u g g tt o o u u n n ’ o o n n ’’’ 44 i , 44 iii dd , ,, dd e e e e e r r cc r r cc nn o o n n nn o o n n 55 55 a nn nn f f O f f O i h h D D i ii h h D D oo cc aa oo o o cc a o o a a a 99 h h 99 h h oo t t oo t t s s s s i iii o o o o t t ss t t ss SS i l SS i ii lll , r r , ,, r r 11 a 11 pp i pp i ii ee ee t t t t r r r r pp ss pp e e ss advised, compensation fund, the Law Society of taxed by athe taxing High master Court i of agreement. e e M M M M c c c c c c c c ss ’ ss ’ ’’ e e t t e e ee t t ee i w furnished to theaccountant’s Society r an year ended 31within August 2005 six monthsdate, in of br that i ii w pp pp e e e e tt m tt m t t t t a a n n l t t t t a a n n l ll rr rr l ] ] l ll aa ] ] aa aa aa cc t t cc aa t t aa r r I I O O r r (( The tribunal orderedrespondent solicitor: that the a) Do stand admonished and b) Pay a sum of c) Pay the whole of the costs of I I O O (( t t t t a a a a (( o o (( o o 6 6 6 6 JJ JJ i i ii L a a On 6 March 2007, the Solicitors Disciplinary T respondent solicitormisconduct guilty in of his practicesolicitor in as that a he: a) Failed to ensur L a a p p p p A A t t t t S S 0 0 S S 0 0 b b b b m m m m l l ll l l ll - - - - ss r r o o ss r r o o s s s s ; tt n n a a tt n n a a e e e e i i ii i i i ii i ii cc cc ] ] C C ] ] C C t t t t p p p p c c 6 6 c c 6 6 and d d A d d A N N N N p p p p a a a a 0 0 0 0 ss ss n n n n & & & & / / r r / / r r rr rr Solicit- a a U U a a U U 7 7 p p 7 7 p p oo oo r r r r , f f , ,, f f breach of tt tt eport in 7 7 7 7 dd dd i iii o o o o r r 1 1 Solicitors’ r r o o 1 1 o o cc cc nn 7 7 nn obligation 7 7 i )) n n iii )) T T n n T T o o o o l lll n n n n rr aa rr t t aa t t 1 1 1 1 i rr i ii n n rr n n l lll i i ii oo oo l / / l ll / / oo D D oo D D ee r r ee oo c c r r oo c c o o o o tt / / tt / / 5 5 SS 5 5 SS b b b b i i ii i iii rr rr e e e e l l ll nn nn Solicitors (Amendment) Act 1994 1 1 1 1 1 1 II 1 1 cc II t t cc t t C C u u C C u u e e e e i iii ’ ’ ’’ o o t t o o t t nn 1 1 egard for the nn egard for his 1 1 l lll ff ff ribunal found the s s s s h h h h a a a a D D oo D D 9 9 oo 9 9 oo for the protection oo oo t t oo O O t t t t O O t t ss ss , , ,, 9 9 9 9 a a a a a a f f C a a f f C t t t t [ [ m m l [ [ m m l ll yy yy ’ ’’’ tt tt obligations to com- ,, l ll l statutory e e tt e e tt o o o o , , e r r e )) r r )) 22 Solicitors’ Accounts 22 nn a a nn a a ee e e ee e e tt O tt O i r r i i ii r r iii dd s s dd o o s s o o e e r r 00 r r 00 cc e e cc e e nn r r t t nn r r t t e e a e e nn nn n n n n 00 00 t t t t N N N N oo aa cc oo a cc
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aa aa i ee Regulations i ii ee w m m w was furnished to thean Society accountant’srespect r of the31 period December ended 2004 notthan later sixaccounting months date, in afterregulation his 21(1) of the m m pp C C pp C C i 55 iii 55 Accounts Regulations l l ll ors’ Accounts Regulations 2001 of clients and the public. b b ’ b b rr ’ ’’ rr aa aa g g g g aa aa showed disr Society’s to monitor compliancethe with showed disr statutory ply with the e e 99 e e (( 99 n n (( n n o o b b o o b b (( (( 2002 N N n n n n L I I O O respondent solicitormisconduct guilty in of his practicesolicitor in as that a he had: a) Failed to ensure that there On 6 March 2007, the Solicitors Disciplinary T L I I
O O Solicitors DisciplinarySolicitors Tribunal These reports Solicitors Disciplinaryof the outcome of inquiries are by the Law Society published Tribunal of Ireland as provided 17 of the by section 23 (as amended for in section 11 11 h h h h i S S i ii S S A A A A t t t t b) Through his conduct, BRIEFING LAW SOCIETY GAZETTE JUNE 2007
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McKechnie J preferred the Mr Justice Smyth dismissed CONSTITUTIONAL LAW evidence of the economist wit- CONTRACT LAW the claim, holding that the European law nesses on behalf of the respon- Specific performance duration of a lease and its com- Judicial review – insurance law – dents and notice party, holding Land – lease – terms and condi- mencement date, as well as a health insurance – private medical that risk equalisation was tions – duration and commence- certain rent, were material insurance – state monopoly – risk designed to prevent market ment of lease – construction – terms that had to be certain and equalisation scheme – community instability, which would be cat- whether material termssufficient- precise before there would be a rating – whether BUPA required astrophic for the consumer and ly clear and precise – whether suf- concluded contract for a lease. to transfer large financial sums to would have consequences for ficient note or memorandum to In construing documents, the VHI – whether scheme unconsti- public health and the public comply with Statute of Frauds – court had to deduce the inten- tutional and in breach of articles finances. It amounted to inter- whether completed and enforceable tion of the parties from the 43, 49 and 86 EC – whether del- generational solidarity. The contract. actual words of the document egated legislation unconstitutional scheme was fair, reasonable and The plaintiffs submitted that itself. The fact that material – Health Insurance Act 1994 – proportionate. There was evi- the defendant gave them an terms were not recorded in any Council Directive 92/49/EEC. dence that BUPA had shadow- opportunity to purchase a long of the documents relied upon The respondent health minis- priced the premium policy of lease on their local authority by the plaintiffs meant that ter, in the exercise of statutory VHI. The VHI had not been flat. They filled in an applica- there was no concluded and powers, established a ‘risk motivated by or adapted the tion form and correspondence enforceable contract between equalisation scheme’ pursuant monopolistic practice of max- flowed between the parties the parties. Furthermore, the to the Health Insurance Act 1994 imising profits. Whether or not thereafter, culminating in a let- existence of the words “please for the purposes of maintaining one described the profits made ter from the defendant that submit my offer” in the final ‘community rating’ to neu- by BUPA as ‘super profit’, the stated, among other things, document in the series of cor- tralise differences in claims percentage earned by BUPA that “if you are interested respondence sent by the plain- costs between health insurance was substantially in excess of in purchasing … you should tiffs to the defendants was providers arising out of varia- any other relative indicator in complete and return the inconsistent with the existence tions in the health status of the sector. There could not be attached form … all negotia- of a concluded agreement and, their members, involving cash an obligation on the state to tions and any agreement … therefore, prevented the docu- transfers to insurers with a defer corrective action until the shall be deemed to include a mentation relied upon by the higher risk profile. The appli- presence of a worst-case sce- condition that the [defendant] plaintiffs from constituting a cants alleged that the scheme in nario had been established. shall not be bound until sufficient note or memoran- s12 of the 1994 act constituted, The scheme had been justified statutory approval … has dum of an agreement for sale in among other things, an uncon- to underpin the operation of been obtained”. The plaintiffs accordance with the provisions stitutional delegation of pow- the regulatory regime in the returned the form, which con- of section 2 of the Statute of ers, which was in breach of the country. The impact of the tained the words: “I am willing Frauds. For those reasons, the property rights of the applicant scheme on the property rights to purchase, please submit my doctrine of part performance and was in breach of the appli- of the applicant was an exercise offer”. The defendant did not did not apply, as a pre-condi- cant’s right to free movement of regulation in accordance proceed with the scheme. The tion of its application was the of services and freedom of with the principles of social jus- plaintiffs contended that they existence of a contract certain establishment, pursuant to arti- tice enshrined in the were entitled to an order for and definite in its terms. cles 43 and 49 EC, and was in Constitution, which said such specific performance of a con- Mateer (plllaiiintiiiff) v Dubllliiin breach of articles 82 and 86 EC rights were not absolute. The cluded contract for the sale. Ciiity Counciiilll (defendant),,, insofar as, among other things, proceedings would be dis- The defendants submitted that Ciiircuiiit Court,,, Mr Justiiice the scheme failed to take into missed. the documentation relied on by Smyth,,, 23/1/2006 [FL13528] account differences between BUPA Irellland Ltd & BUPA the plaintiffs was not a suffi- insurers’ premiums or over- Insurance Ltd (appllliiicants) v cient note or memorandum to Telecommunications heads, the scheme resulted in Healllth Insurance Authoriiity & comply with section 2 of the Commer cial law – 3G licence – the less well-off subsidising the Others (respondents),,, Hiiigh Statute of Frauds (Ireland) Act right to negotiate – Comreg deci- more affluent, and it would Court,,, Mr Justiiice McKech- 1695 and, further, that there sion – curial deference – pr opor - impact on the finances of the niiie,,, 23/11/2006,,, 2005/532 was no complotted and tionality and rationality – public smaller insurer. JR [FL13589] enforceable contract. law and private law relief – obli-
58 www.lawsociety.ie BRIEFING 59 oduc- them. vation easons evoked allowed some 18 , articles eser ected the esisted the JUNE 2007 JUNE eturned to the Court daughter was ranged by the Ireland esumption that eturn to welfare could not www.lawsociety.ie and that removing mined, holding that situations of parental opriate place for the (No 7), section 14 – dianship of Infants Act The Supreme 1964 their consent toand sought the her adoption return months afterThey the instituted adoption. proceedings High seeking Court duction her to pro- themamong on other the basis, things,constitutional pr that the the appr upbringing and educationchild of is a withinmandated the her family r unit The High Court granted aditional con- order fortion the of pr thedants child. successfully The r application defen- forabsolute the of thebasis, making among order other things, onthe that the child hadtional developed attachment emo- to thetive adop- parents her from themthe would child’s breach personaltional right constitu- to theof pr her welfare.appealed to the The Supreme Court. plaintiffs the appealrelease and of dir thecustody infant of the from second and the respondents third and r applicants, and that the question as to theand arrangements appropriate by which manner the transfer of theinfant custody from that of of the dents the to respon- thether applicants be deter fur- article 42. 5 of theand Constitution the statutes deriving from it were designedextreme to dealunfitness, with and thetherein test of set compelling out why a r child’s be achieved within the constitu- Guar Constitution of The plaintiffs’ born in July 2004. In September 2004, theyform signed to a herthe consent being second adopted by defendants,adoption was which ar first defendant. They r 40.4.2, 42.5. , r r PP , ,, r r PP o o o o ee ee , , ,, nn nn n ss ss e e e e 7 7 7 7 cc cc PP PP oo oo oo oo nn c c n c c N N i N N M M iii M M elief yy 0 0 yy 0 0 duty of i i ii tt tt D t t C D t t oo C , oo , ,, 0 0 0 0 uu uu JJ t t s s JJ t t s s LAW SOCIETY GAZETTE 6 6 6 6 cc cc 2 2 2 2 r r r r ents – ee u u / / ee u u / / 0 0 0 0 prohibi- ee ee ss ss u u u u J J J J yy yy 1 1 1 1 gg 0 0 gg 0 0 evocation – vv vv oo oo o o / / o o / / nn nn dd 2 2 dd 2 2 rr rr cumstances actual prej- 9 9 9 9 oo oo C C C C uu uu PP s s ther inordi- PP s s 1 1 , 1 1 hh , ,, JJ hh JJ [FL13587] )) )) tt tt cc tt cuit Court had cc tt 7 7 7 7 h h h h i iii M M M M nn ,, nn , , l g g lll g g R R 0 0 R R 0 0 nn nn l l ll tain the applica- rr rr i i ii J J l bb J J l ll bb A A aa 0 0 aa 0 0 i i ii sexual offences uu uu uu cc uu cc 2 2 , 2 2 H H , ,, e e H H e e efused the applica- 9 9 9 9 i oo iii oo / / / / t t t t l lll PP dd PP dd , 7 7 , ,, 7 7 consent – r nn r r nn r r )) 2 2 )) 2 2 N N N N pp pp nn tt nn tt ff ff / / 1 1 / / 1 1 ’ ’ ’’ oo oo u u u u pp aa pp aa oo nn oo nn 5 1 1 5 1 1 o o o o aa aa ee O O ee O O 5 5 H H rr (( rr (( ents – whether child in [FL13529] o o dd o o yy dd y y nn n C C C C oo oo , , ,, hh n hh tt tt e e oo e e oo ss ss N N R R N N R R e e e e cc cc i pp iii pp c c c c pp pp J J J J )) )) i rr ee i ii rr ee ss n n ss n n 4 4 4 4 Dunne J held, in favour of the JJ JJ t t t t rr O’Neill J r rr h h ee H h h ee H uu uu (( 0 0 i (( 0 0 iii n n FAMILY LAW FAMILY parents – whether failure in n n s s s s 0 0 0 0 rr rr g g g g attachment of child to adoptive 3 3 3 3 (( i (( – welfare – unfair trial. i ii u u u u 0 0 0 0 u u u u applicant, that the appellate juris- diction of the Cir been engaged insecond-named this case. respondent The had invoked the appellate jurisdiction of the Circuit Court and theof trial the appealnotwithstanding had the commenced, fact that no evidence hadConsequently, the been first-named respondent was heard. notconcluding that correct he had in nodiction juris- to enter tion to amend underof section the 49 act by reason ofof the desire the second-nameddent to withdraw respon- the appeal. D D was sought was thatnate delay of in inordi- the makingcomplaint of and the fur nate delay onprosecution the authorities. part of the tion, holding that thehad applicant not demonstrated at all that there was specific or udice toother his exceptional cir defencethat or would any exposeunfair trial. him to an Constitution – family rights – child Sexual offences – whetherThis was risk anamong of application other for, tion things, of the applicant’s trial on six charges of alleged to have been committed between 1975 andground 1985. upon The which the r D D M M 4 4 4 4 Delay J J J J vv 2 2 vv 2 2 Adoption D D H H D D H H lawful custody of adoptive par natural par in judge ocedure cumstances judge has jurisdic- Circuit elied on indicated oceedings light. The espondent respondent the request unk-driving matter was eland) Act 1864 ocedure – cuit Court cuit Court appellant has indicated case. Amendment (Ire- stated to have been Civil Bill Courts in the District Court espondent of drunk judge was obliged to con- ding the terms of the appeal – mined that he did not have Civil Bill Courts Pr an intention to withdraw the where the District Court in cir CRIMINAL LAW CRIMINAL the power to amend an order of the whether a Cir Appeal tion on appeal – power to amend – Amendment (Ir Practice and pr deter jurisdiction toapplication deal with toapplicant the amend. in thesesubmitted The pr thatCourt the sider the applicationprior to to amend acceding to of the second-nameddent to withdraw respon- his appeal, and the applicant sought ation declara- thatjudge the did Circuit havedeal Court jurisdiction with to amend. the The applicant application r the to provisions ofthe section 49 of Procedure land) Act 1864. The second-named appeared on charges of drunk drivingbreaking and a red traffic District Court judge stated that he was convictingnamed the second- r driving, disqualifying him from driving for a period of twoand years imposing a fine.charge The other was taken into consideration.second-named The appealed his r convictionCircuit to Court and the an issue arose regar District Court orders. No writ-ten order was recordedtion in rela- tocharge. theadjourned The and dr itthat was theapply applicant for wished an amendmentDistrict to of Court the orders. However, it was subsequently indicated by the appellant that hewithdraw wished his to appeal and, atstage, that the Cir support of its -- -- ss ss vv vv r r r r , , ,, rr aa rr aa )) cc )) 6 6 cc ee 6 6 ee i iii ff ff M M M M 0 0 ff 0 0 hh ff hh nn nn i iii tt tt , , ,, 0 0 tt 0 0 tt uu uu t t t t 2 2 2 2 nn r r O nn r r O i iii / / whether / / m m u u u u aa aa 0 0 0 0 l lll tionality o o o o m m 1 1 1 1 pp pp & & / / / / (( (( oo oo C C C C alone bore Communi- 1 1 1 1 t would not C extension of C dd dd 3 3 3 3 h h h h tt tt nn nn g g g g rr rr oo oo i L i ii L [FL13605] i iii , , ,, oo oo propor tt tt ff ff y y y y ee ee H H H H aa P P aa l P P l lll l ll l i lll iii l l ll , , ,, 2 2 2 2 licence to operate nn )) nn )) bb bb e e e e uu uu of the defendant. ss 0 0 ss 0 0 oo oo oo gg oo gg tt tt i iii 7 7 K K 7 7 K K ee ss ee ss nn nn a a ss ss M i M ii i a o o a R o o R dd dd tt e e tt e e nn nn m m N N N N rr rr c c c c ee ee ss ss i i ii ff aa ff aa nn n m t t 6 6 m t t 6 6 n ee ee oo oo s s s s oo Kelly J dismissed the plain- oo 0 0 0 0 i iii m dd m dd tt C tt C bonds adequate – (( (( u u 0 0 u u 0 0 C SS C SS gations on tenderer – J J J J 2 2 2 2 tiff’s action, holdingplaintiff had that not been the in ation posi- to furnish executedin bonds a formdefendant by acceptable the deadline,which to for the the plaintiff cations Regulations Act 2002. The plaintiff soughtlenge to a decision chal- dant of the that defen- awarded it a would3G not mobile phone be the state. licences The in plaintiff hadtially ini- won the competitionthe for licence and hadextension of sought time an to furnish the financial guarantee. No execut- ed performancepresented bonds to were thetime. defendant in Theamong plaintiff other things, a sought, tion declara- that therecluded existed a contract con- plaintiff between and the the defendanta for 3G mobiletions telecommunica- licence,having the selected defendant the plaintiffsuccessful as tender. The plaintiff alleged that the defendantobliged was to givereasonable the period plaintiff a ofcomply time with to conditions the of terms the licence and petition. com- responsibility. The period stip- ulated by thebeen defendant a had plaintiff reasonable one. wasengineer The attempting a situation where to defendant the wouldpelled feel to offer com- an time. No breachof of principles non-discrimination,parency trans- or wereapproach detectableThe in defendantthat had it the done could haveplaintiff. all to The assist cour the usurp thedefendant. function of the r r vv r r vv -- , -- , ,, chant’s , 7 7 7 7 nn nn M M M M ee ee Dublin 8, 0 0 0 0 Legal ance ff ff vehi- 0 0 0 0 ee ee plain- G bartdaly@ )) )) 2 2 2 2 , , ,, dd dd tt tt / / / / (( t t (( t t r r nn r r nn 1 1 1 1 elated to ffered by eported / / / / aa Quay, aa ss ss u u u u rr 1 1 rr cc 1 1 cc he second o o o o i iii ee ee 3 3 3 3 l lll hh hh C C C C , , ,, pp pp tt tt a a FirstLaw’s a a pp pp r r obtained judg- r r O O oblem was suffi- aa drive the vehicle efore, the e e aa e e l l ll (( fic accident. The (( h h [FL13538] h h oblem r Kinsella v The a a a a g g g g dd dd i i ii 3 3 3 3 V V V V nn nn 0 0 0 0 aa aa emove other matters, H H H H e e e e 0 0 0 0 yy nn yy nn d d d d 2 2 2 2 aa aa / / aa / / aa , , ,, 0057. )) )) e e e e gg gg tel: 01 679 0370, fax: 01 679 P P ding the absence of insur- w P P w ss i ss iii c c Court, Merchant’s c c tt tt i firstlaw.ie or FirstLaw, Mer rr i ii rr nn nn information, contact 5 5 t t 5 5 t t rr rr nn De Valera J held that the at www.firstlaw.ie. For more nn oo oo s s s s published every day on the internet 0 0 0 0 oo oo aa aa Current Awareness Service, C u u C is taken from u u 2 2 2 2 dd dd C C The information contained here The plaintiff ment againstnamed defendant the forfor damages injuries second- sustained as aof result a road-traf second-named defendantnot was insured to that was involveddent in and, the ther acci- tiff sought toment have satisfied that judg- The by second-named the defendant was MIBI. driving the plaintiff’s cle at the timeand of the was accident Coombe en Hospital routeplaintiff, with who was to experiencing the a the medical pr to beascertaining taken into herregar account knowledge in ance. Consequently, the MIBI were obligedjudgment to satisfy obtainedplaintiff the by againstdefendant. the t ( her pregnancy. anxiety and worrythe su plaintiff on the discovery of her medical pr cient to r such as the insurance situation, from her mind, and that consti- tuted a relevant circumst Motor Insurers Bureau of Ireland J J J J 7 7 7 7 Supreme Court,judgment unr of Finlay CJ [1997]IR 3 586 followed.) tt tt yy yy -- eated. -- e e e e r r r r / / / / 1 1 1 1 rr rr nn nn c c c c nn nn 2 2 2 2 i i ii aa 0 0 aa ee 0 0 ee oo t t oo t t M M M M ee ee cc 1 1 cc 1 1 0 0 0 0 s s s s pp pp / / / / called nn ss , nn ss L , ,, 2 2 L 2 2 Motor u u i traffic u u 9 9 iii ’ 9 9 ’’’ t t t t ee ee 75,000 ring to damage – J J J J r r r r rr rr 1 1 1 1 V V (( O (( O € r r r r , u u , ,, u u , , ,, against 6 6 o o 6 6 o o dd of patient with dd n n eland agree- vv n n tt efer vv tt opriately tr tt tt M M i M M i ii 0 0 [FL13551] 0 0 from hospi- SS C C SS C C )) , )) , ,, L 0 0 L 0 0 ff ff t t t t m m m m P P P P ff 2 2 ff 2 2 r r a r r f – prior condition fering from a ss eadmittance to a a ss h h a i h h iii / / existence of the / / vv vv tt octor, not tt ee ee 0 0 g g 0 0 n n u u g g n n u u ocedure – 2 2 2 2 i i ii ee ee e e nn e e nn 8 8 8 8 o o o o tt tt i iii 1 1 1 1 )) )) alleged negligence ss ss 0 0 0 0 / / H H / / ff H H aa ff aa C C C C l M M lll M M ff uu ff 4 4 uu 4 4 0 0 0 0 i iii , , ,, c c / / esult of a road c c / / )) pp )) rr pp rr 2 2 tt tt 2 h h 2 tt h h (( tt (( a a a a 2 2 2 2 gotten about, which T g g [FL13550] T g g nn nn nn nn i 9 9 i ii 9 9 i iii aa l aa lll nn , nn , ,, M M M M 9 9 9 9 aa aa P P P P aa aa l dd H H lll dd H H a a oo a a / / oo ii / / 1 1 tt 1 1 tt tt tt e e e e i i , pp , ,, pp pp nn pp nn 2 2 whether not appr 2 2 n n n n nature of the surgeryother and factor any that could be ob- jectively assessed,personal although to the plaintiff. ss ss , , ,, )) c c )) c c (( whether suffered (( ss ss ee ee i tt i ii 8 8 tt unresolved hernia negligent – 8 8 n n n n ff 6 6 nn ff 6 6 nn oo Hanna J held that the note of t t nn – whether discharge oo t t nn i iii 1 1 ee 1 1 was obliged to satisfy the judgment proof on plaintif ee a a a a s s 0 0 s s ee 0 0 ee ment 1988 – whether the MIBI dence – note of doctor – onus of 2 2 dd 2 2 dd H ( H ( Insurers Bureau of Ir trauma – doctor not called in evi- 0 0 dd 0 0 dd u u u u ( H W ( by the defendants, r Practice and pr H W Medical negligence Discharge from hospital – mental The plaintiff against the defendantsfrom her arising discharge fromtal hospi- with a hernia unresolved and her subsequent r hospital on the day ofcritically discharge ill, causing her physical and mentalexisted injuries. from a A d note the plaintiff suf bowel obstruction, the content of the note being denieddefendants. by the the doctor notdence was called of relevance inconduct and of evi- the thebeen defendants unsatisfactory. had The plain- tiff was discharged tal without adequateexamination and medical without being informed of the hernia, whichThe was negligent. absenceentailed that ofbeen the the hernia for had was note negligent. The plaintiff suf- fered psychological trauma and would begeneral awarded damages. H H H H accident. 1 1 J J Personal injuries 1 1 J J 2 2 2 2 tained as a r damages for personal injuries sus- the second-named defendant for obtained by the plaintiff tain falli- ascer age, pre- dingly, not e inconsis- ence in rec- ticularly writ- elied on con- ecords in rela- cumstances, in ffer cumstances, the memory was would have done in ried the possibility of MacMenamin J dismissed porting evidence, thehad court to lookrounding at cir allparticular the anything sur- contem- poraneous, par ten records, to ble on theand issue that the in contemporane- ous dispute written r tion thereto wer tent therewith; question of risk ofdealt with pain as described was by the defendant; that car grave consequencespatient for was confined a toconsequences such as may be fore- seeable or predictable; sonable personinformed properly the plaintiff’sshould position, be done in the it context of theexisting plaintiff’s health, familyfinancial cir and which version tenderedthe court was the to more likely; plaintiff’s The defendant had performed a vasectomy onThe the plaintiff plaintiff. ceedings instituted seeking pro- damagespain for andthereby. He alleged suffering that he had not been caused fullyof informed of the all riskswith and associated had, there- accor given a full, freeconsent and informed toThere was a the di operation. ollection of evidence,defendant but had the r temporaneous notesproffering his evidence. when the claim, holding that: 1) In the absence of close sup- 3) It was more probable that the 4) The duty to disclose any risk 5) When deciding what a rea- 2) It was more likely that the )) )) -- ss -- ss ee ee r r r r ss ss e e e e rr ocess. rr 6 6 vv tt 6 6 vv nn tt nn ee i ee iii i iii & & & & 0 0 tt 0 0 nn tt nn M M M M m m m m aa aa hh hh l lll aa aa 0 0 tt 0 0 uu tt uu e e e e , l , ,, lll JUNE 2007 JUNE pp l pp cc lll 3 3 cc t t r r 3 3 t t r r 2 2 eason- 2 2 (( refrom (( O ee O ee ee r r ee / / r r / / 7 7 ough inad- 7 7 p p p p xx 2 2 pp xx 2 2 pp 2 2 2 2 u u u u dd dd u u u u pp tt pp tt 1 1 E o o 1 1 E o o S S S S , , ,, aa / / aa & / / & L L // // 5 5 C C C C 6 6 proof – estab- 6 6 5 5 ss ss of privilege – ee ee tt tt 0 0 0 0 dd dd cc cc ofessional privi- hh hh h h h h i iii nn nn ofessional priv- 0 0 0 0 tt nn tt nn , , ,, g g which had been g g attendance note – aa aa vv vv aa i aa aa 2 2 i ii aa 2 2 h h h h cc l cc lll rr rr / / rr / / rr i t t iii t t ee ee ee l ee lll r its solicitors. emoval the , H H , ,, H H 1 1 1 1 )) espect of an atten- )) rr rr y y y y G G pp SS pp SS ss [FL13552] ss II II 1 1 , babilities, a r 1 1 , ,, cc cc tt tt )) [FL13514] )) cumstances. pp pp / / / / m m m m ss ss 6 6 6 6 aa nn aa nn 3 3 tt 3 3 tt PP PP (( 5 5 (( 5 5 S S S S hh hh M ee M ee 0 0 0 0 1 1 tt nn 1 1 tt nn 0 0 0 0 dd & dd l & lll 0 0 0 0 tently disclosed to the aa aa dd dd 0 0 0 0 aa aa nn nn 2 2 N 2 2 N , E , ,, E vv vv e e e e nn nn ee 2 2 ee 2 2 t t t t oo oo f f f f / / / / ee c c l ee c c lll r r r r l i pp lll ff i ii pp ff s o o o o )) H )) & H & P P t t P P ss t t s ee Smyth J held that, on the bal- ee vertence – whether abuse of pr ee ee ee u u ee u u ff ff TORT PRACTICE AND PROCEDURE whether privilege lost thr s s s s rr 0 0 rr 0 0 i ff ii ff dd 3 3 dd hh plaintiff’s claim 3 3 hh o o o o i tt (( (( tt lege – solicitor’s v (( (( u u 4 4 u u 4 4 8 8 SS N vv 8 8 Evidence – burden of SS The plaintiffprivilege sought in to r claim dance docket from thefor solicitors the plaintiff, defendants. It was common case that the documentation was pro- tected by legal pr ilege and the solesideration issue was for whether the con- privi- lege had beendance lost. docket The evidenced atten- sideration a of con- the various options open to theassessment plaintiff of and certainconsiderations in an tactical thelitigation. course of ance of pro able solicitorrealised that woulddocket the had come have attendance todants the defen- ininformation error was and privileged and was that clearly the given advice during the sought course ofproceedings. or legal Thereabuse of was process or no moraltude turpi- or impropriety on behalf of the plaintiff o Evidence – legal pr inadver N tional, naturalrequired its family r was so exacting and that itbe could not met other thanextreme cir in the most v www.lawsociety.ie LAW SOCIETY GAZETTE – causation. J J J J C C C C 8 8 inadequate counselling and consent 8 8 Medical negligence 2 2 Legal profession 2 2 temporaneous notes – allegation of liability unless supported by con- after long elapse of time establishes notes – whether oral evidence alone probability – contemporaneous lishing negligence as matter of BRIEFING 60 BRIEFING 61 eted otec- eper- ooms espec- principal ective. If by JUNE 2007 JUNE eward for the ECJ. The ECJ communication communication authorisation by manages. SGAE oceedings in the www.lawsociety.ie egard to the efore of opriate r equires legal ambient music bydent the in respon- its hotelmunication involved com- toworks the belonging public totoire of the that r it brought pr Spanish courtscopyright. for breach Thereferred of to matter the held was that “communicationthe public” to must bebroadly. interpr Thisachieve is the in principalof order objective the to establish directive, a high which leveltion is of pr in to favourothers of to allow authors theman and to appr obtain the author forby communication which theaccessible work to isprivate the or made public. publicplace nature The where of the the takes place isright immaterial. of The communicationthe covers making available to the pub- lic of works inthey such may a way accessplace that them and at from a a chosen time by individually them. Thatmaking right available of toand the ther public, objective of the dir means of televisionhotel distributes sets, the the customers staying signal in to or its present r in anythe other hotel, area a of the communication public to takes place,tive irr of thetransmit the technique signal. used Thetive to direc- r use of their works. It is necessaryto take into accountcustomer generally that succeed each hotel other quickly. A large number of people are involved, so they may be considered tohaving be r a public, eur This ,7 sector LAW SOCIETY GAZETTE de España Directive as undertak- esponsible taking is “any Sociedad General dless of the legal vices in a market. m a place and at Editores rights in Spain. It charge to those who egar cial, purposes. operty COPYRIGHT rejected the claim. Competition law is only applicable to ‘under- takings’. An under entity engaged in anactivity, economic r status of that entity and thein way which itcharacteristic is for financed”. an Iting undertak- is to buygoods or and ser alsoThe to ECJ held offer thatin institutions the public healthcare are not considered ings, as they provide theirices serv- free of are compulsorily insured. was rejected by the court onbasis the that it was notto permissible separate thisthe subsequent activity use from tois which put and it to assess itPublic separately. bodies are thus notered cov- bywhen EC they competition purchase law services goods for or commer their own, non- Case C-306/05, (SGAE) v Rafael Hoteles SA de Autores y December 2006. 201/29/EC on copyright ininformation the societythat provides authors have theright exclusive to authoriseany communication or to the prohibit pub- lic of their works. Thisthe includes making available to the pub- lic of their worksthat in members such of a the way publicaccess may them fro a time chosenSGAE is by the them. body The r for the management of intellec- tual pr took the view that the useevision of tel- sets and the playing of opean mark- oceed- Official Leniency other sup- Federación e justified, an oducts. The behaviour that , [2006] OJ News fromthe EU and International Affairs Committee management bodies chasers of these prod- from discovery in civil . Communities ecnología Sanitaria (FENIN) v er system. Wher application can be acceptedthe basis on of onlymation. limited The infor- applicantgranted is time then information to and perfectqualify evidence the for to immunity.to In order ensure thatcooperate with applicants the that commission investigation dotheir not position weaken in civil pr also the period whencant the was appli- contemplating making an application. Another innova- tion in the revision isduction of the a intro- discretionary ings comparedwho to do not companies cooperate, the com-mission has developed adure proce- to protect corporatements state- given under the Commission of the Eur T Case C-205/03, damage procedures. The revised notice cameDecember into 2006, force whenpublished on it in 8 was the EU Española de Empresas de Notice Journal C212/1. FENIN is an industri- al federation whosemarket medical members pr main pur ucts are that run the Spanish healthcare system. FENIN accusedbodies these ofissued delaying by its members invoices tling and invoices set- from pliersFENIN considerably argued thatdiscriminatory faster. this was abused their dominant position on thehealthcare demand market. side The of ECJ the Edited by TP Kennedy, Director Law Society of Ireland of Education, Edited by TP Kennedy, falsify quali- Notice mation mation mation Leniency wise have equires, in eduction of not mislead- ). This allows mation to cover eduction in the equires little or to provide more geted’ inspection setting out in an dopted a revised clarifies the infor
Leniency Notice
COMPETITION Reduction of Fines in Cartel Cases Leniency Notice (the On 7 December 2006, the com-mission a Recent developments in European developments Recent law an applicant needs to providethe to commission to benefit from immunity, by and evidenceshould the submit in order applicants to explicit and unambiguous man- ner what type of infor fy and by linkingfor the threshold immunity toneeded by infor thecarry out commission a to ‘tar in connection withcartel, the which alleged will allowinspections to for be the better focused. The notice makesevidence it that clear that r no corroborationgreater will value.for have The immunity conditions and r fines haveexplicit been by madegenuine (a) more cooperation r clarifyingparticular, that that theprovides accurate applicant and complete information that is ing and (b)obligation not by to destroy, extending the or conceal infor Notice on Immunity from Fines and guidance to applicantsenhance the and transparency of to the procedure. The revised fines that would other the commission toimmunity or offer a r full been imposed on a cartelber mem- in exchange for disclosure of information on thecooperation cartel with the and investiga- tion. Improvements havemade been in several areas of the efer- inven- allow a mine the ts closely tainty. To jurisdiction cumvention raised by way edictability of eted by r ticle 16(4). This oceedings in fact light of the posi- mine the binding with cour the pr fers would be liable to seised of an action for whatever the form of pro- the rulesdown of by jurisdiction theconsequently laid to convention under and tion in question.established It from the wording cannot of article be 16(4) whether the rulejurisdiction of applies only to cases in whichpatent’s the validity is question of a ence to its objective and itstion posi- in the schemevention. In of relation the to the con- tive, objec- the rules ofdiction exclusive seek juris- to ensure thatdiction juris- rests linked to the pr and law. The rulestion of set out jurisdic- inan article 16 exclusive arenature. of and In the mandatory tion of articlescheme 16(4) within of the thethe convention objective pursued, and the court held that the exclusivetion jurisdic- provided forapply, by it should ceedings in which the issuepatent’s of validity a isapplies raised. This whetherraised the by way issue orplea is an action in or a objection.court, To infringement or fortion a that declara- thereinfringement, to has establish indi-rectly been the invalidity of no the patent would under nature of the rulelaid of down in ar would enable the cir of the mandatoryrule nature of of jurisdiction the laid downarticle in 16(4). Thethat this of possibility undermine principle of legal cer tion in anceeding. It infringement can also pro-in be a case invoked such asof this a in declaratory support to action establish seeking that thereno has infringement, been wherebyclaimant seeks the to establishthe that defendant hasable no right in enforce- regard to the of anextends action to or casesquestion in whether is which raised it objection. the as Thus, a plea articlemust in be 16(4) interpr , being ticle ence eted respon- eady been oprietor. national respondent cial purposes, excise duty is egistration of ench patents of Gesellschaft für oceedings con- , 13 July 2006. made a refer an inter the patents were Brussels Convention guing that it was not ought to declare a ovides for exclusive application in all con- oceedings where one of JURISDICTION Beteiligungs KG poses. Where levied in thewhich member the state productsheld in are for commer although they have alr released foranother consumption in memberexcise duty state, paidmember the in state that shouldbursed. other be reim- Case C-4/03, Lamellen und Kupplungsbau Antriebstechnik mbH & Co KG v to the ECJ. Iton sought the guidance interpretation16(4) of of ar the The applicant and are two German companies that compete in thevehicle field technology. The of motor dent (LuK)mechanical argued dampenerused spring that by a theinfringed two Fr applicant (GAT) which LuK was theGAT pr broughtGermany an ar actionin breach in of thesefurther, patents that and, either voidGerman or court invalid. The convention deemedtaken to place. have Itarticle 16(4) only asked applied to whether pro- ceedings br patent invalid orcould be whether invoked it ment pr in infringe- the parties argues that a patentinvalid is or void.that The ECJ proceedings held with “concerned the registration orof validity patents” must bein interpr an independent manner with uniform tracting states. Inissue practice, of a the patent’s validityquently is raised fre- as a plea in objec- which pr jurisdiction, in pr cerned with thevalidity r of patents, in theof the courts contracting state in which the registration has been applied for, has taken placethe or is terms under of efore eleased equires ograde products 906.20 on oducts in € egarded as also pointed private indi- it if necessary. exempt from ective r oducts that are private individuals oducts be intended rangements for prod- by the private individ- on behalf of considered that there pointed out that, in order egard, it is for the EC leg- acquired by for their ownordered by use. Mr Joustra, The aof citizen the Netherlands, wine was r general ar ucts subject toexemptions excise duty and for for consumption in Franceexcise and duty was paidThe in Netherlands tax France. authorities levied excise duty of for the personal usevate individual of who the has acquired pri- them andexcludes that products it acquiredone by private ther individualuse of for other private the Furthermore, individuals. the pr question must be transported that those pr that wine. Mr Joustraliability for disputed that excise duty. The court for products to beexcise exempt duty from in the state of impor-tation, the dir personally A proposed amendment todirective the has inmitted fact by the been commission to sub- the council forextending the the purposeexemption benefit of to ofported products the trans- would be anfraud for increased the competent risk author- ities of of the memberwere state not if so. this Theconvinced court was by not theargument commission’s that such an interpre- tation would bestep for a the citizens retrinsofar of as the EU smallof, consignments for example,were not of wine, a commercial nature which from one privateanother, individual to were excise duty in the state of impor-tation. The ECJthe stated directive contains that a lacuna in if this r islature to remedy ual who purchasedcourt them. The out that the directive is basedthe on idea thatnot pr held formust necessarily private be r purposes being held for commercial pur- viduals. The court tain JUNE 2007 JUNE exceed ective mecha- create a On 23 etaris Van cases. The creates a individual dinary civil ried out in being held exempt from mined by nation- individuals buy Staatssecr It seeks to personally by pri- fees of or oducts acquired and cial purposes for the oss-border deter debt recovery tation. Products that egarded as FREE MOVEMENT OF GOODS DEBT RECOVERY to the public,ingless would be if mean- itcommunications did car not also cover Regulation 1896/2006 entered into force inThe December 2006. regulation private places. European order forprocedure. payment uniform nism for usestates in cr in theprocedure is member based onof a standard system forms.dure The is written, proce- and legalsentation repre- isCosts are not mandatory. al law, but they are notthe to “court Case C-5/05, proceedings” instate the of issue. member Financien v BF Joustra. www.lawsociety.ie LAW SOCIETY GAZETTE November 2006, the ECJthat only held pr transported vate individuals are excise duty in the memberof state impor are not held for privatees purpos- must necessarily beas regarded being heldpurposes for for the commercial the application of directiveTherefore, on if excisewine duty. for personal useholiday while in France, on the individu- als must accompanyhome that and wine consumeselves. If, however, it an them- buys wine for personal useFrance from on the internet, thenwine the is r for commer application of theexcise directive duty, since on thedoes individual not personallythe wine home. transport This casenated origi- in the Supremethe Court of Netherlands andthe involved interpretationprovisions of cer 92/12/EC, as of amended, on the Dir
BRIEFING 62 BRIEFING 63 tain riding eedom must also over Italy, there suitable for lawyers can- G elating to the proper adminis- JUNE 2007 JUNE capable of justify- ficult to judge the ough professional otection and effec- vices. The objectives www.lawsociety.ie other means of ensur- ements r outside Italy. Such not requestthose fees set lower by thecannot than compete scale more and effective- thus ly with lawyers establishedstable on a basisrestricts the in choice of recipients of Italy. legal ser This of protecting consumers and the proper administration of justice may be regarded as requir consider whetherof the setting minimumprotects consumers and fees isessary nec- for actually the tration of justice. In are a largeand number the scale of might serve lawyers tovent pre- competitionform taking of services being the offered at a discount with the riskrioration of dete- in theirnational quality. court The mustinto also account take information between asymmetry clients and lawyers. of Lawyers havelevel a of high that technical consumers knowledge maywith not the have, resultmay that find it consumers dif quality of the servicesto provided them. Themust national also court there consider are whether ing client pr tive administration ofsuch as justice, thr rules in respect of lawyers (relat- ing totions, organisation, professional ethics, qualifica- super- vision and liability). factors. Itwhether there is mustbetween the a level of correlation fees consider andquality the of the servicesby provided lawyers. The court public interest ing a restriction on theto fr provide services. Thisject is sub- to thenational conditions measure that is the securing the attainmentobjective of the pursued anddoes not go that beyond what is it essary nec- in orderobjective. to That attain nationalmust that make court thisdoing assessment. so, the In ECJ indicatedit that must take into account cer cised egard LAW SOCIETY GAZETTE minimum oceedings. services per- ogating from efused to pay copyright mat- Interministerial oceedings in the efused to pay and the case is easy to ts. In the second on to find that the vices market more tionate having r enders access to the Italian 2,130, which was a scale fee. The clients r he brought pr Italian cour case, Mr Meloni hadsulted been con- by Mr MacrinoCapodarte and on a Ms ter. The clientshis r fees, arguing thatdispropor they were to the importancedealt of with and the the formed. case The scalefees is of set on lawyers’ thelaid basis of down criteria byNational decisions Lawyers’ Council of and approved the by theJustice after he Minister has obtained of opinion the of the Committee on PricesCouncil and of the State.are The determined criteria onthe the monetary basis value of ofthe disputes, level of the courtthe duration seised of and the pr Any agreement der the minimum feesscale for lawyers’ set services is by void. It the is only atment of the the fees time that a of courtmayexceed settle- the maximumcases limit of exceptional (in importance) or fix fees belowlimit the (where minimum deal with). The ECJ heldwas that the it Italian state, and notprofessional the body, that exer the power to takeminimum fees decisions for on lawyers.court The went prohibition ofagreement, derogation, from by the fees r legal ser difficult for lawyers established sought a further€ payment of ticle tolese some elating equired ,19 Luxem- ective to 955 to Mr tolese and € ement. using the Graham Wilson ective 98/5). The equir Brussels Convention Luxembourg was ement was discrimi- (Dir oficiency in the three , 5 December 2006. In equir Claudia Capodarte v Roberto LEGAL PROFESSION Lawyers Meloni against a state. Martial actstypical are a example of the authority of a state. Thus,to claims r damage causedforce in a by war are armed ters” not “civil for mat- the purposes1, of ar and the Federico Cipollaand v Rosaria Por should not apply. Case C-506/04, Establishment Directive for v Luxembourg Bar Cipolla. After the settlement, he the first case, Mr Cipolla was the lawyer of Ms Por some others. He drewsummonses up for histhe clients, dispute was but resolved in atlement set- without hisment. The involve- clients hadadvance made payment of an Luxembourgincoming Bar lawyers tostrate r pr demon- official languages of theFrench, state German – and bourgish. The ECJthis r held that natory and was anbarrier. unnecessary ordered toimplementing amend the its dir remove this r rules Cases C-94/04 and C-202/04, September 2006.solicitor An and English an Englishter barris- applied to theBar Luxembourg to establishLuxembourg, themselves in fell has mine ected ried out applicants ficial role ffered as a many had occupation number of eement that cial matters” ought a claim The Advocate Lechouritou and iure imperii contrary to the . He suggested ticular patent is Court of Appeal in fell within the scope opean agr origin of the claim. In eferred a , opinion of Advocate iure imperii allow decisions in which courts, other than thosewhich of a a state par in Case C-292/05, issued, rulevalidity indirectly of on thatmultiply the the patent risk would decisions, of which conflicting the convention seeks specifically to avoid. Others General Ruiz-Jarabo Colomer, 8 November 2006. A number of Greek nationals br forGermany compensation under civil law for acts of against itsWorld War armed II. forces Thewere seeking during compensationcover to physical, moralchological and damage psy- su result of a massacreby car German soldiers in Kalavrita during the German of Greece. The applicantstend con- that these actsmitted were during com- a warsion of and aggres- were prevents other memberfrom claiming states damagesmanner. in The this Patras r questions to the ECJ.was The ECJ asked whethercompensation a brought claim against a for contracting stateomissions for of its armed acts forces within or the scope of thetion. conven- It asked whether a claimthis of nature of article 1,invoked as the Ger defenceeign of immunity. sover- General indicated“civil the and commer term in article 1 doesacts not extend to laws of war andered can as crimes be against consid- humanity. Greece is not1972 a Eur signatory of a whether an act two criteria to deter doubt, as the action was dir one must look at the of ondly, the one of the parties was beyond to be identified as such. Firstly, of the parties involved and, sec- this case, the official character of ris; o o o o y y y y rclogh a a a a o o o o o o o o o o o o C C C C C C M M o o rill, M M o o o o o o C C C y y y y C C o o C o o C C C tul- r r r r rrett; folio: nan- a a C C a a C o o o o r r o o r r o o g g g g e e e e o o o o C y y y y o o o o i i ii l rickbeg in l ll a a p p y y Monantin, a a p p y y y y y y umee and n n n n a a a a S S S S p p p p a a a a ound situate i i ii o o M M o o M M umhillagh, o o o o M M M M M M n n T T M M n n T T h h h o o o o m m Martin; folio: m m a a a a g g Drumhillagh; C C g g C y y o o y y o o aterford; C o o o o o o l o o l ll C C C a a a a h ony of Carbury; yefield, Virginia, m m m m h h a a h h a a C C C C C f f n n C C t t f f n n C t t o o o o Co Monaghan; f f Monaghan; folio: f f a a c c o o a a c c o o d d d d s s s s e e e e O O O O r r r r o o o o M M M M o o o o M M M M o o o o f f R R f f R R Knockataun, Cor o o o o n n n n g g ove, and barony of g g d d ound situate in the town- d d C C C o o o o mond; C o o o o o o eet, Duleek, Co Meath; r r C C r r C n n n n C C C o o o o o o o o o o o o o o m m n n m m n n f f f f g g g g C C a a C r r a a r r L L L L 35501; lands: townland of(ED Co Belmullet) and barony ofarea: Er 2.9780 hectares; C Finnegan; folio:townland of 6753F;barony Coolnahasouth of Costello; lands: and C i i ii m m h h h h m m h h h l e e e e h h h h t t l t t ll t t o t t o o y y o o g g y y g g evagh and barony of Athlone a a a a Regd owner: Sean Ba Regd owner: John Finnegan and Mary S S h a a S S a a c c c c a a a a a a a a C C C t t e e t t e e s s s s n n n n a a a a w w o o w w o o o o o o W W Mai Donnelly; folio: 17953F;plot lands: of gr W land of Spring (Marquis) in the l l ll e e e e o o o o M M 1998F; lands: plot of gr in thethe townland of baronycounty Car of UpperthirdW in of the W O’Brien; folio: 7795F;land lands: town- of GlenbowerLower Or and barony of barony of Tirerrill; C 7956;Kiltycloghan lands: and Dr townland of Ballybay, Co 3730;Ballybay, lands: C at Edenaferkin, M M Knocknaveagh, R Co Cavan;Rahard; C folio: 1134; lands: Main Str folio: 171; lands: Bey Beg; C a a a a R R C C R R 1117F; lands:Beg townland and of baronyarea: of Barry Athlone 10 South; acres, 3520055; acres;Aghamore and lands: C bar townland of C C M M Regd owner: Patrick Donnelly and 597; lands: townlandbarony of of Murrisk; C Glen and 4011F;Weatherfort, lands:agh, Mountpleasant andCarra townland barony and Kilmaine; of C of M M Oberstown, Lusk, Co Dublin;10945F; folio: lands: Ballymurphy; C M M area:M M 0.1289 hectares; C Donal McMahon,Smithboro Dr PO, folio: 1499F; lands: North; area:perches; 64 C acres, 1 rood, 30 lagh orGarrycastle; C Gr folio: 27021;Glenr lands: townland of (deceased);Coolreagh folio: or 865F; Cloganhill, Cor lands G G G G Regd owner: John McGrath; folio: Regd owner: Catherine and Caimin Regd owner: Kevin O’Grady; folio: Regd owner: John Cassidy, Regd owner: John Cadden, Regd owner: Elizabeth Mary Ber o o o o Regd owner: Michael Regd owner: Joseph Finan; folio: o o o o C C C Regd owner: Mary B McCabe; folio: Regd owner: Peter Hughes; folio: Regd owner: Nicholas Rooney, Regd owner: Evelyn McMahon and Regd owner: Thomas Kelly (deceased); Regd owner: James Coughlan o o o o o o o o o o o o C C C folio: C C o o o o C o o o C C C C C C k k k k c c c c C C C i i ii r r r r e e e e e e e e r r eany; C r r m m a a m m a a y y y y i i ii y y y y r r r r d d d d l Carroll; folio: ll y y y y y y y y r r r r r r l r r i L L i ii L L h of Limerick; r r r r eaney and r r r r r r 1.9248 hectares; r r e e e e e and barony y y y y r r r r r r r r e e e K K K K o o o o r r r r e e e e e e e e ony of Ikeathy K K K K K K K K y y y y y y y y r r r r C C o o C o o folio: 91; lands: a a a a a a a a K K K K e e K K K K e e o o o o o o o o ony of Ida; C raduff and barony riter and Mary C C w w C w w w w w w K K K K l o o o o l ll o o o o l l ll C C C C d O’Connell; folio: folio: 1055F; lands: a a een, Sallins, Co a a a a k k a a k k d d C C C C o o d d C C o o c c c c folio: 27548F; lands: r r r r i C C G G i ii G G G G G G C C C r r r r o o o o eaney; folio: 29431; e e o o f f e e o o f f o o o o g g g g C C C C C 57735F;Woodquayand barony lands: of Clare; C townland of 10175F;Tallowroe and lands: barony ofC Dunkellin; C townland of 33378; lands: townland ofand Castlegar barony of Galway; C m m m m n n ritersquarter n n o o i o o i ii y y k k y y k k L L L L L L L L c c c c Regd owner: Thomas Fleming; folio: Regd owner: John Rooney; folio: Regd owner: Patrick O’Brien; folio: e e e e n n n n i i ii r r r r r r r r n n o o o o n n o o o o y y y y y y y y a a a a e e e e e e e e a a a a a a a a C C C C d d Cloonrallagh; area: C C Clonrallagh,Longford; Longford, Co 9537F; lands: Rootiagh andof Pubblebrien; barony C and countyC C boroug d d k k k k l l ll l Ballymahon, Co2829; Longford; lands: Cloonbr l ll m m m m i i ii w w w w w w w w i i ii i i ii l l l ll l ll 2580 and 1043L; lands: townlandKnockaunmore of andClanmaurice; C barony of9145F;Farranwilliam lands:Clanmaurice; and C townland baronyMcGovern; of of townland of Cur of Corkaguiny; C Regd owner: Brigid Fitzpatrick, Regd owner: Robert o o o o a a a a K K o o o o a a a a 38766F;Nicholastown, Kilcock, Co Kildare, and lands: townland(Ikeathy By) of andand bar Oughterany; Fernslock, Nicholastown C 45023F;Illauncaum lands:Corkaguiny; C and townland of Walder; barony folio:Castlesize 26974F; of lands:Kildare, Gr and 16 townland ofand Castlesize baronyK K of Naas North; C L L K K 34188F; lands: parish of St Patrick Caroline Mason;lands: townland folio:barony of 7573F; of Coolruss Connello and Upper; C L L Elizabeth Slattery; Kilmurry and bar K K Regd owner: Anthony Cassells, C C C C C C G G G G Patrick Jlands: Gr townland of KnockereenKilcoona and and barony of Clare; C of Corkaguiny; C G G 9981;Glennacloghaun North and lands: barony of Tiaquin; C townland of G G Ferriter; folio: 7665F;land lands: of town- Fer Regd owner: Michael Hurley; folio: Regd owner; Joseph Egan; folio: Regd owner: James and Aisling o o o o Regd owner: Seamus Daly; folio: Regd owner: Dorothy Gillespie; folio: Regd owner: Eva Hickey and Mark k k k k Regd owner: Gerar Regd owner: Sam Magwood and Regd owner: Mark Slattery and r r r r C C C n n n n ound Regd owner: Dympna Gr Regd owner: Padraig McGann, folio: Regd owner: Pat Fer o o o o i i ii l l ll known k k k k C C C C b b known b b operty operty r r r r Duhallow u u u u o o o o o o o o D D ound situate C C D D C C C C C n n n n i i ii o o o o o o o o of Kinalea, in n n l n n l ll operty i i ii n n n n b b k k b b operty k k l l ll C C i C i ii C C C r r r r l l ll b b b b u u u u McCarthy; folio: n n n n nelscourt and b b o o b b o o i i ii u u u u eet, situate in the t of the townland l l ll D D ound situate in the D D u u u u C C C C b b b b F); lands: plot of D D D D emiah Murphy and o o o o D D D D u u u u o o o o k k k k situate in the town- k k k k o o o o r r r r C C r r r r C o o o o D D D D C C C endan White and Mary o o o o C C o o o o C ound known as 38 C C C o o East and the county of o o C C C C C C C C C C C o o o o o o o o r k k k k operty y y y y r r r o o o o a a a a C C C C C C k k k k C C C C n n w w n n w w gian Hamlet, situate in the r r r r l i othery; C l ll i ii l l ll a a o o o o a a o o o o b b b b C C G G C C in the county of Cork; C 107688F; lands: plot of groundate situ- in thethe townland barony of of Imokilly Gearaghty in of in the Cork; coun- C Margo Murphy;lands: plot folio: of gr 28582F; in theKanturk) townland in the of barony of Curragh (ED townland of Killuragh in theof barony FermoyC inC the county of Cork; 1467F; lands; plot of gr G G Barnwellsgrove andKillian; area: barony 0.0910 of hectares; C C C in the townland of Lahanaghtbarony in the of Carbery Westsion) (east in divi- the county of Cork; C u u u u GrainneDN29678F; lands: pr as 5 Donnelly; Hampton Str town ofBalr Balbriggan and folio: parish of White; folio: 52613F; lands:ground plot of situateBoulaling in and the barony townlandthe county of of Cork; C Collins (deceased);(part folio: of 19212F ground 44889 being par of BallygibbonMuskerry in theCork; C barony of folio: 6254;situate lands: plot inArdagh, of (2) the gr Cloonaghlinthe townland Lower barony in of of BearCork; in C the (1) county of Marie McDonough;lands: DN88925F; pr DN48820F; lands: pr as 31parish Joyce of Road, ClonturkDrumcondra; C situate and in district of the Connors; folio: DN10338F; lands: a plot ofGeor gr townland of Baldoyle andCoolock; barony of C o o o o D D 6279F; lands: townland of D D folio: DN69578F;situate lands: in the pr townland ofand Dundrum barony of Rathdown; C barony of Rathdown; C folio: DN12966L;situate lands: pr Cornelscourt to Hilltownland the Road of in northwest Cor the of land ofCastleknock; Coolmine C and barony of o o o o o o o o Regd owner: Irene Regd owner: Jer Regd owner: Sean Hynes; folio: C C C Regd owner: John Donnelly and Regd owner: Br Regd owner: Marie Collins and John Regd owner: Bernard Harrington; C C C C C C Regd owner: Patrick McDonough and Regd owner: Ciaran Duggan; folio: Regd owner: Brian White and Ann Regd owner: Peter Briggs; folio: Regd owner: Mide Roisin O’Connor; Regd owner: Brian Joseph Molloy; ough, ss ss tt e tt tificate tificate owner. l lll cc cc tt tt i iii Chancery e e e e A A within 28 w w w w r r tificate is r r T T o o o o a a a a e e JUNE 2007 JUNE e e ee e l l ll l l ll r r n n r r n n r r r r dd dd eceived from a a a a a a a a C C C C a a a a l nn l ll nn n n n n land cer v v v v aa aa ound situate a a C C a a C C o o o o a a a a C C C C egistered Redmond; folio: egistry o v v McGrath; folio: v v ss ss C C C o o C C o o C C ground situate w w w w a a a a o o o o C C C ough, Co Cavan; dd dd e e e e o o o o eet, Bailiebor C C C o o an order dispensing o ee C C ee l C C r r l ll r C C r C ee r r ee r r a a a a o o l o o l ll a a a a Cavan; folio: 8958; k k k k D D e e e e r r C C r r C C C C C C C C C r r r r ff o o ff o o owners mentioned in the date of publication of this a a a a o o o o l o o l ll o o oo oo C C C C C C C C C C C C C C nn nn o o o o Main Str 66 66 o o o o oo oo w w w w 00 i 00 iii C C Registration Authority, C w w w w tt tt n n C C n n o o C o o 00 00 o o o o l l ll aa aa a a a a l l ll 22 22 r r rr r r rr r r r r v v v v tt tt a a a a a a ss a a a a ss a a dd dd i iii C C Brady, Co Cavan;Tanderagee; C folio: 21452; lands: House, Bailiebor 17204F;Kennedy lands: AvenueCarlow; south C and barony side of of C C Council;Carlow folio: and barony 10033F; of Carlow; lands: C nn gg nn gg C C C C lands: Lisnatinny; C Kilcogy, Co (closed to 3434F);and barony lands: of Clonogan StC C Mullins Upper; C C C 1571F; lands:barony of Forth; Ballintemple C and folio: 12960; lands: Corronagh; C LOST LAND LOST LAND CERTIFICATES ee ee aa aa (Published 1 June 2007) Street, Dublin 7 R Regd owner: Anne Brady and Patrick Regd owner: Ann Brady, Corner Regd owner: Carmel days from the Property Regd owner: Carlow Urban District schedule hereto for with therespect land ofschedule, certificate the which original issued landsis specified stated in to intently have the destroyed. beenwill lost The or be land inadver- dispensedtion cer with is received unless in the notifica- r notice that theexistence original certificate and is inperson in other the than the custody r of some An application hasthe been registered r Any such notificationgrounds should state onbeing the held. which the cer R 44 44 Regd owner: John McCabe, Cloncovid, Regd owner: Robert Regd owner: John McCabe; folio: 949 www.lawsociety.ie 33227; lands: plot of 79999F; lands: plot of gr 30984F; lands:ruragh townland and barony ofarea: of 4.9400 Gar- hectares; Tulla C Upper; in the townland of Cloongownbarony in the of Dunhallowof in Cork; the C county Margaret Meade; folio:townland 2996; of lands: Fintraof Beg Ibrickan; and C barony Hassett; folio: 1069F;land lands: of town- CloonboolyIslands; C and barony of 10496; lands: townlandSouth of Glendine andbarony of Ibrickan; Knockloskeraun C and LAW SOCIETY GAZETTE 66 66 99 99 Regd owner: Donal Driscoll; folio: Regd owner: Cyril Hooper; folio: Regd owner: Ted Nugent; folio: Regd owner: Michael Meade and Regd owner: Eileen Hassett and Jarlath Regd owner: Patrick Griffin; folio: 11 11 PROFESSIONAL NOTICES 64 PROFESSIONAL NOTICES LAW SOCIETY GAZETTE JUNE 2007
barony of Decies without Drum in the county of Waterford; Co LAW SOCIETY Waterford Regd owner: Michael Bourke and Nicola Cunningham; folio: 26180F; Gazette lands: plot of ground known as no 32 The Estuary, Somerville, in the parish of Tramore and in the town PROFESSIONAL NOTICE RATES of Tramore and the county of Waterford;C o Waterford RATES IN THE PROFESSIONAL NOTICE SECTION ARE AS FOLLOWS: Regd owner: John Grennan and Patrick Grennan, Aharney, Tullamore, Co • Lost land certificates – €132 (incl VAT at 21%) Offaly; folio: 1186; lands: Kilgaroan; • Wills – €132 (incl VAT at 21%) area: 21.5419 hectares;C o Westmeath • Title deeds – €132 per deed (incl VAT at 21%) Regd owner: Maurice Keogh and • Employment/miscellaneous – €132 (incl VAT at 21%) Elizabeth Keogh; folio: 10344; lands: townland of Dunlavin Lower and barony of Talbotstown Lower; HIGHLIGHT YOUR NOTICE BY PUTTING A BOX AROUND IT – €31.50 EXTRA Co Wiiicklllow Regd owner: John McElroy and All notices must be paid for prior to publication. CHEQUES SHOULD BE MADE PAYABLE Deirdre McElroy; folio: 8402F; lands: townland of Newcastle TO LAW SOCIETY OF IRELAND. Deadline for July Gazette: 18 June 2007. Middle and barony of Newcastle; For further information, contact Catherine Kearney or Valerie Farrell on tel: Co Wiii cklllow 01 672 4828 (fax: 01 672 4877) Regd owner: Wendy Heavener; folio: 141; lands: situate in the townland of Ballycapple, barony of Arklow and March 2007. Would any person having made by the above-named deceased, named deceased, who died on 11 county of Wicklow; Co Wiiicklllow knowledge of the whereabouts of any who died on 12 September 1985, please March 2007, please contact Regd owner: Irish Forestry Property will made by the above-named contact Messrs Wolfe & Co, Solicitors, Rutherfords, Solicitors, 41 Fitzwilliam Management Limited; folio: 975; deceased please contact G O’Nualláin Market Street, Skibbereen, Co Cork; Square, Dublin 2, fax: 01 678 5914 lands: townland of Crone More and & Co, Solicitors, of 12 Main Street, tel: 028 21177 barony of Ballinacor South; Co Donnybrook, Dublin 4; tel: 01 218 Organ,,, Wiiilllllliiiam (deceased),,, late of Wiiicklllow 9992, fax: 01 218 9994, email: gonual- McHallle,,, Anthony (deceased),,, late of Riverchapel, Courtown, Gorey, Co Regd owner: Irish Forestry Property [email protected] Tirrane, Clogher Post Office, Wexford, who died on 3 June 1978. Management Limited; folio: 977; Belmullet, Co Mayo and University Would any person having knowledge lands: townland of Crone More and Dunne,,, Carmelll (deceased) late of College Hospital Galway. Would any of the whereabouts of any will made by barony of Ballinacor South; Co Avondale Terrace, Crumlin, person having knowledge of the the above-named deceased please con- Wiiicklllow Perrystown, Dublin 12, who died on 6 whereabouts of any will made by the tact Maeve Breen, MT O’Donoghue & Regd owner: Daniel McCarthy and October 2006. Would any person hav- above-named deceased, who died Co, Solicitors, 11 Main Street, Gorey, Mary McCarthy; folio: 7821F; ing knowledge of the whereabouts of at University College Hospital Galway Co Wexford; tel: 053 942 1137, fax: lands: at 31 Ardmore Park, Herbert any will made by the above-named in February 2007, please contact 053 9421725, email: maeve.breen@ Road, Bray, Co Wicklow, and town- deceased, please contact Quinn & Anne Leonard, solicitor, of Messrs mtodonoghue.com land of Killarney and barony of Company, Solicitors, 23A Village P O’Connor & Son, Solicitors, Rathdown; Co Wiiicklllow Green, Tallaght, Dublin 24; tel: 01 452 Swinford, Co Mayo; tel: 094 925 1333, Robiiinson,,, Stanllley,,, Ian Derek 1744, fax: 01 452 1819, email: fax: 094 925 1833, email: aleonard@ (deceased),,, late of 103 Leighlin Road, [email protected] poconsol.ie Crumlin, Dublin 12, who died on 27 February 2007. Would any person WILLS Johnston,,, Maureen (deceased),,, late O’’’Loughllliiin,,, Anne (otherwiiise Ann,,, having knowledge of the whereabouts of Ballytore, Mullamast, Athy, Co otherwiiise Nancy) (deceased),,, late of of any will made by the above-named Bauer,,, John Collliiin Callldecott (de- Kildare, formerly of 149 Cherryfield Punchersgrange House, Milltown, deceased please contact Egan O’Reilly, ceased),,, late of ‘Blairfinde’, Portland Road, city of Dublin, who died on 26 Newbridge, Co Kildare. Would any Solicitors, 19 Upper Mount Street, Road, Greystones, Co Wicklow (former- May 2006. Would any person having person having knowledge of the where- Dublin 2; tel: 01 613 0100, fax: 01 613 ly of 1 Dunsborough Cottages, Ripley knowledge of the whereabouts of any abouts of a will dated 15 August 2003, 0101, email: [email protected] Green, Ripley, Surrey, GU23 6AL, will made by the above-named executed by the above-named deceased, England), retired wool-broker, who died deceased person please contact O’Hare who died on 3 January 2005, please Statutory notiiice to miiissiiing on 23 January 2007. Would any person O’Connor Walshe Solicitors, Ulysses contact Peter Flanagan & Co, benefiiiciiiariiies and/or crediiitors having knowledge of the whereabouts of House, Foley Street, Dublin 1; tel: 01 Solicitors, The Square, Kildare, Co In the estate ofN ora Hiiiggiiins a will made by the above-named 878 0055, fax: 01 878 0056, email: Kildare; tel: 045 521 252, fax 045 521 (deceased), late of Clogher, Tang, deceased please contact Rutherfords, [email protected] 636 Ballymahon, Co Westmeath. Notice is Solicitors, 41 Fitzwilliam Square, Dublin hereby given pursuant to section 49 of 2; tel: 01 661 5732, fax: 01 661 2071 Kavanagh,,, Mary Chriiistiii na O’’’Neiiillllll,,, John (deceased),,, late of the Succession Act 1965 that particulars in (deceased),,, late of 59 Coolatree Road, Sragh, Rhode, Co Offaly, who died on writing of all claims against the estate of Beattiiie,,, Teresa (otherwiiise Catheriiine Beaumont, Dublin 9, who died on 21 18 March 2004. Would any person hav- the above-named deceased, who died Teresa) (deceased),,, late of 5 Castle December 2005. Would any person ing knowledge of the whereabouts of intestate at Loughloe House Nursing Park, Castle Street, Roscommon, who having knowledge of the whereabouts any will made by the above-named Home, Abbey Road, Athlone, Co died on 2 April 2007. Would any person of any will made by the above-named deceased please contact Byrne Carolan Westmeath on 10 March 2005, should having knowledge of the whereabouts of deceased please contact Fagan Bergin, Cunningham, Solicitors, Main Street, be furnished to the undersigned solici- any will made by the above-named Solicitors, 57 Parnell Square West, Moate, Co Westmeath; tel: 090 648 tors for the legal personal representative deceased please contact Timothy JC Dublin 1; tel: 01 872 7655, fax: 01 873 2090, fax: 090 648 2091, email: bcc- within three months of the date of this O’Keeffe & Co, Solicitors, Abbey 4026, email: [email protected] [email protected] notice, after which date the assets will be Street, Roscommon; tel: 090 662 6239 distributed having regard only to the Murphy,,, Patriiick (deceased) (farm- O’’’Neiiillllll,,, Mauriiice (deceased),,, late of claims furnished. Doelll,,, Peter (deceased),,, late of er),,, late of Gortnadrohid, Reengaroga, Frenchfort, Dublin Road, Oranmore, Date: 1 June 2007 DeVesci Terrace, Monkstown, Co Baltimore, Co Cork. Would any Co Galway. Would any person having Signed: Groarke & Partners, Solicitors, Dublin, who died in or around 23 person having knowledge of a will knowledge of a will made by the above- 32/33 Main Street, Longford
www.lawsociety.ie 65 land. years eoranta ting that ound Rents) est, includ- egistrar for eoranta, being the per- egistrar for the enant (Gr of £4.16s. opriate on the basis gistrar at the end of party asser nish evidence of title unknown or unascer- date of this notice and n Chrócaigh T reversion in the afore- , intends to submit an Take notice that the applicant, Páirc emises or any of them are county re son entitled underthe sections 9 and 10 of of the second part andthe Patrick third Hozier part of forfrom the 25 term of Marchyearly 400 rent 1873, subject toAn the Chrócaigh T FIELD OF PRACTICES: eneral Practice, Administra- Civil and Commer- tive Law, Landlord and T mediate interests in the aforesaid Place, Dublin 1 esaid pr tors for the applicant), 12 Fitzwilliam lease years Signed: Reddy Charlton McKnight (solici- cial Law, Company Law, Banking Company Law, cial Law, and Foreign Investments in Spain, Arbitration, Taxation, International Law, Family Law, Litigation in all Courts. In default of any such notice being G Date: 1 June 2007 (No 2) Act 1978 Erskine ing the freehold said premises, are tained. 21 days from the will apply to the countycounty/city r of Dublintions as for may be suchthat appr the direc- personentitled or to the persons superior beneficially inter premises, and any the county/city of Dublinsition for the of acqui- theinter freehold interest and any they holdafor a superior interest in the application to the county r called upon toto fur the aforementionedbelow premises within to 21this the days notice. from the date of received, Páirc A intends to proceedbefore with the the application lease dated Erskine Erskine of the Robert lease dated 6 Shapland Edgar emises known as ABOGADOS Thomas Wall of Robert Avda. Ricardo Soriano, 29, Avda. Robert www.berdaguerabogados.com Robert SPANISH LAWYERS SPANISH Erskine of the second part Erskine of the second part f lease dated 9 April 1868 of £6.15; all that and those [email protected] PROFILE: TWENTY YEARS ADVISING CLIENTS TWENTY YEARS ADVISING Tel: 00-34-952823085 Fax: 00-34-952824246 Tel: IN REAL ESTATE TRANSACTIONS IN SPAIN TRANSACTIONS IN REAL ESTATE Web site: site: Web panish Lawyers Firm focused on serving the need of the e-mail: 3, held under16 indenture April 1866 between of Mauriceof Butterly the firstsecond part, part and of the thirdyears part from 25 forthe March yearly the 1866, rent term subject ofthe £8; of to premises all 300 known that47, 49 and as Jones those Road, 39, Dublinindenture 41, 3, held 43, of under 45, between lease Maurice dated Butterlypart, 8 Robert of May the 1867 first and Denis Doylethe of term the of1967, third subject 300 part to years for all the from that yearly and 25 those rent the March 59, of pr 61, £19; 63under Jones Road, indenture DublinNovember 3, of held 1867Butterly of the first between part, of the Maurice second partthe and third part forfrom the 29 September term 1867, ofyearly subject 300 rent to the the premises knownJones as Road, 33,indenture 35, Dublin o 37, 3,between 57 Maurice held Butterlypart, Robert under of theand Denis first Doylethe of term the of1868, third 300 part subject years for £11.13s; from to all that 25 the and March known those yearly the as premises Dublin rent 27 3, held of and under indenture 27A of Jones Road, Edificio Azahara Oficinas, 4 Planta, 29601 Marbella, Malaga, Spain Edificio Azahara Oficinas, 4 Planta, 29601 Marbella, RAFAEL BERDAGUER foreign investors, whether in company or property transac- tions and all attendant legalities such as questions of inheritance, taxation, accounting and book- keeping, planning, land use and litigation in all Courts. S dated 5Butterly April of the 1873 first part, between Maurice tt tt s s y y s s y y , , ,, , , ,, nn nn e e e e b b man, b b dd e e dd e e 1 1 1 1 aa aa 1 1 1 1 n n n n n n nn n n nn h h h h 5 5 5 5 i third i ii nn 3 3 nn 3 3 t t ys@eir- t t aa aa o o o o n n n n ee ee , , ,, J J , J J , ,, d d d d o o o o 9 9 9 9 T T i i ii 9 9 dd 88 9 9 dd 88 n n n n n n n n relating to 9 9 t t 9 9 t t 4 4 i 4 4 rr i ii rr 77 2 2 77 a a a a 2 2 a a a a a a a a 6 6 6 6 t t oo dd t t oo dd , years from , ,, 99 99 emises: all l c c , lll c c , ,, , , ,, i i ii nn 7 7 n n nn 7 7 n n d d 11 d d 11 dd dd l 7 7 l ll 7 7 7 7 7 7 aa aa a a a a 4 4 4 4 tt tt n n n n nn p p nn 2 2 p p 2 2 6 6 6 6 r r r r cc cc , a a , ,, a a aa aa p p p p e e , e e , ,, f lease dated 16 o o o o t dd dd 5 5 A 5 5 A a a a a t t L 44 rr e e 5 5 t L 44 rr e e 5 5 h h h h 4 4 )) 4 )) t t t t a a 4 a a oo 99 oo 6 6 99 6 6 T T T T l lll 22 22 Erskine of the sec- , , 99 , ,, , ,, 99 n n n n s s s s dd f f Dublin 18, tel: 01 213 d d f f emises known as 65 11 3 3 3 3 a a h h oo 11 3 3 3 3 a a h h oo e e e e nn o o nn o o - - s s g g s s - g g - 4 4 4 4 6 aa i aa i i ii lease dated 16 April i ii N 6 6 : N 6 : :: 77 77 , (( , ,, (( r r a a r r a a , L , ,, L 3 3 66 66 3 3 m m e e c c m m 1 1 e e )) c c 1 1 )) 1 1 1 1 t t t t ss 99 ss e e 99 e e 4 4 ó ó 4 4 ó ó t t tt t t tt 6 6 6 6 r r r r Robert 11 11 r r r r n n , a a n n , ,, a a nn nn , , ,, p p e e i p p e e i ii e l 9 9 e h h l ll 9 9 h h e e 9 9 9 9 ss ss h h h h f f m m f f m m b b b b 3 3 tt 3 3 tt t t t t 5 5 5 5 R C C R C C o o o o cc cc Sandyford, u u u u , , ,, , , ,, e e e e dd dd f f f f A 7 7 r r n n A 7 7 r r n n 7 7 7 7 D D D D h h h h nn nn o o e e o o e e 3 3 3 3 5 5 5 5 t t t t A A A A t t t t tt tt uu uu , t t , ,, , , t t , ,, , ,, r r r r c c oo c c nn oo nn a a 5 5 a a 5 5 5 5 d d 5 5 d d e e n n e e r r n n rr r r rr aa aa i t t 5 5 i ii a a t t 5 5 a a 3 3 3 3 I I the original title27 documents Shandon Park, Grangegor com.net I I Dublin 7,Solicitors, Suite please 10,Court, The contact Mall,5940, Beacon fax: Amorys, 213 5946, email: amor t t t t m m nn m m nn á á á á , , ,, G o o G o o , , ,, ee a a ee a a (( (( 1 May 1863, subject to£175; the yearly all rent of known that as 51, and 53,3, 55 those held Jones under Road, the indenture Dublin o premises Take notice any person having anyest inter- in theinterest freehold estate in ofthat the or and superior those following the pr and pr 67 Jones Road, Dublinan 3, held under indenture1864 of made betweenthe one Robert part and Fowler Mauriceother Butterly part of of for the the term of 500 May 1866 between Mauricethe Butterly first part, of ond part and Thomas Wall of the part for theMarch 1866, term subject to of the yearly£9; 300 rent years of all fromknown 25 as that 29 and and 31 Jones Road, those Dublin the premises 3 3 3 3 P P P P 3 3 e e 3 3 e e R R R R T T 5 5 5 5 3 3 l 3 3 l ll m m m m h h h h t t t t a a a a r r r r 7 7 7 7 e e e e blin 7. 0 0 0 0 elating / / / / obate, liti- n n n n JUNE 2007 JUNE 0 0 0 0 e e e e Dublin 7. g g 5 5 g g 5 5 late of 11 late of 11 o o o o , company/com- , ,, , , ,, ) ) ) ) ) ) ) ) n n s s n n s s ’ ’ ’’ please contact d d d d d d d d esswell, 567/569 r r r r will be pleased to x x fitts.co.uk x x e e e e e e e e e e oadway; tel: 0044 e e e e s s s s o o s s o o s s handle pr s s c c s s c c a a a a n n a n n a b b a b a r r r r e e e e e e e e e e o o o o o o o o d d d d i c c i ii c c t t t t ( ( ( ( t t t t e e i e e i ii i i ii operty c c c c fitt Cr d d t t d d t t i i ii a a a e e ( ( e e ( ( l l ll c c c c r r r r r r r r with substantial client o o o o a eet, Phibsboro, Du eet, Phibsboro, a a p p a a p p s s e e s s e e l l ll r r r r com.net obbins@par e e e e C C a a C C a a c c c c n n n n l l ll i i ii e e e e o o o o l t t , l ll t t , ,, C C C C c c e e c c d d e e d d o o o o t t t t a a a a n n , n n , ,, S S S S r r r r base for sale inPlease North reply Tipperary. to b r r r r TITLE DEEDS MISCELLANEOUS ys@eir e e e e o o o o a a a a t t t t p p p p Publication of advertisementsPublication not represent and does a fee basis is on in this section of Ire Law Society by the endorsement an r r r r L L L L advise on UKagency work. matters We and undertake mercial. Par 2073 818311, fax:email: 0044 ar 2073 814044, gation, property and Fulham Road, London SW683800 1EU; DX Fulham Br H H H H www.lawsociety.ie a a LAW SOCIETY GAZETTE a a H H H H Amorys, Solicitors, Suite 10, TheBeacon Mall, Court, Sandyford,tel: Dublin 01 213 18; 5940,amor fax: 213 5946, email: to the above pr Would any personof having the original knowledge title documents r Shamrock Str Shamrock Str Would any person having knowledge of
PROFESSIONAL NOTICES 66 PROFESSIONAL NOTICES LAW SOCIETY GAZETTE JUNE 2007
In the matter of the Landlllord and In default of any such notice being premises are held by the applicant To: Reps the Honourable John Robert Tenant (Ground Rents) Acts 1967- received, the applicant intends to pro- under indenture of lease dated 24 July William Viscount deVesci, the 2004 and iiin the matter of the ceed with the application before the 1947, Percival J Hanna to Julia Honourable Sarah Cecelia Mandeville, Landlllord and Tenant (Ground Rents) county registrar at the end of 21 days McGeeney), should give notice to the Louisa Charlotte Fanny Countess (No 2) Act 1978 and the matter of from the date of this notice and will undersigned solicitors. d’Espons de Paul Algernon Barlow and premiiises siiituate at 2 Terenure apply to the county registrar for the Take notice that the applicant, Lyonell Barlow. Plllace iiin the pariiish of Rathfarnham,,, city of Dublin for such directions as Austin Cripps, intends to apply to the 1... Descriiiptiiion of llland to whiiich thiiis barony of Rathdown and county of may be appropriate on the basis that county registrar for the county of notiiice refers::: all that shop with apart- Dubllliiin::: an appllliiicatiiion by Joseph the person or persons beneficially enti- Dublin for the acquisition of the free- ment overhead situate at Newry Street, Criiipps tled to any such superior interest, hold interest and all intermediate inter- Carlingford, Co Louth, as more partic- Take notice that any person having any including the freehold reversion in the ests in the above-mentioned property, ularly delineated and described on the interest in the freehold estate of or any aforesaid property, are unknown or and any party asserting that they hold map annexed hereto and thereon superior or intermediate interest in the unascertained. an interest superior to the applicant in coloured red. hereditaments and premises situate at Date: 1 June 2007 the aforesaid property is called upon to 2... Partiiiculllars of appllliiicant’’’s lllease or 2 Terenure Place, being part of the Signed: Sheehan & Company (solicitors for furnish evidence of title to same to the tenancy::: lease dated 1 July 1902 made lands formerly called the Terenure the applicant), 1 Clare Street, Dublin 2 under-named solicitors within 21 days between the Honourable John Robert Estate, being part of the lands at from the date hereof. William Viscount deVesci, the Terenure in the parish of Rathfarnham, In the matter of the Landlllord and In default of any such notice being Honourable Sarah Cecelia Mandeville, barony of Rathdown and county of Tenant (Ground Rents) Acts 1967- received, the applicant intends to pro- Louisa Charlotte Fanny Countess Dublin (which said premises are held 2004 and iiin the matter of the ceed with the application before the d’Espons de Paul Algernon Barlow and by the applicant under indenture of Landlllord and Tenant (Ground Rents) county registrar at the end of 21 days Lyonell Barlow of the one part and lease dated 4 October 1947, Percival J (No 2) Act 1978 iiin the matter of from the date of this notice and will William Charles Browne of the other Hanna to Homestores Limited), premiiises siiituate at 4 Terenure apply to the county registrar for the city part for a term of 150 years from 1 May should give notice to the undersigned Plllace iiin the pariiish of Rathfarnham,,, of Dublin for such directions as may be 1902 at a yearly rent of £20 per annum. solicitors. barony of Rathdown and county of appropriate on the basis that the person Take notice that Sean Malone of Take notice that the applicant, Dubllliiin::: an appllliiicatiiion by Austiiin or persons beneficially entitled to any Castletowncooley, Riverstown, Dun- Joseph Cripps, intends to apply to the Criiipps such superior interest, including the dalk, Co Louth, being a person county registrar for the county of Take notice that any person having any freehold reversion in the aforesaid entitled to buy out the fee simple under Dublin for the acquisition of the free- interest in the freehold estate of or any property, are unknown or unascer- section 8 of the Landlord and Tenant hold interest and all intermediate superior or intermediate interest in the tained. (Ground Rents) (No 2) Act 1978 interests in the above-mentioned prop- hereditaments and premises situate at Date: 1 June 2007 proposes to apply, after 28 days from erty, and any party asserting that they 2 Terenure Place, being part of the Signed: Sheehan & Company (solicitors for the date hereof, to the Louth county hold an interest superior to the appli- lands formerly called the Terenure the applicant), 1 Clare Street, Dublin 2 registrar to vest in it under the Landlord cant in the aforesaid property is called Estate, being part of the lands at and Tenant (Ground Rents) Acts 1967- upon to furnish evidence of title to Terenure in the parish of Landlllord and Tenant (Ground Rents) 2005 the fee simple in the property set same to the under-named solicitors Rathfarnham, barony of Rathdown Acts 1967-2005::: notiiice of iiintentiiion out in paragraph 1 hereof. within 21 days from the date hereof. and county of Dublin (which said to appllly to buy out the fee siiimpllle Date: 1 June 2007
www.lawsociety.ie 67 tt tt nn nn aa aa n n n n nn nn 88 88 a a y y a a y y ee ee 77 77 h h h h ence ence : : :: T t t 99 T t t 99 ests if r r r r gistrar 11 11 known includ- a a a a dd dd tt tt nish evi- aforesaid nn nn C C C cc cc Laur C aa aa inter A c c A c c operty, and ementioned dd dd )) )) rr M M rr M M 22 22 operty set out oo oo l e e lll e e interest, oo oo the date of this c c egistrar for the c c dd dd nn nn n n n n e e e e N N Road, Cork, being aa (( aa (( mediary e e opriate on the basis e e the property h h h h r r r r the county re the afor t t t t L ‘Araglen’, Menloe L )) )) u u u u ss ss whereby the applicant, tt tt f f f f a a a a eehold estate of, or any nn o o nn o o L L L L Dublin 6W. e e e e AUDITORS r r r r called upon to fur y y R y y R 7 Argus 7 Argus House, Harold’s Cross, Harold’s e e e e REGISTERED b b b b intends to proceed with the t t t t Bookkeeping and t t dd t t dd Phone: 01 4737455 please contact us at: please contact us at: n n n n a a a a Accountants Reports nn nn Email: [email protected] ACCOUNTANTS & ACCOUNTANTS our Solicitor services, in the aforesaid pr Specialists in Solicitor o o o o and all inter uu uu i CERTIFIED PUBLIC CERTIFIED i ii For Enquiries regarding m m m m t t t t Greenmount Office Park, Greenmount Office oo TD Fitzpatrick TD Fitzpatrick oo a a rr a a rr c c c c i i ii tt tt nish G Take notice that Laur G l l ll In default of any such notice being (( (( nn nn dd dd p p e e e e dd dd p p e e e e aa aa p p nn nn p p nn nn h h h h h h h h n n n n Take notice that anyinterest in person the having fr superior an interest in, as all that andOld those numbers Market 23 Place, and situateof 24 in Saint the parish Cork, Mary held under Shandon aing yearly on and tenancy holding aris- overindenture city on of the lease of expiry ofmade of an between 31 Henry July C 2006,the Cave, one and lessor, part, of and Patrickof Honan, the lessee, other part, property was demised for ayears term of from 100 25the March yearly 1905, rent of subject £6. to any such existabove in and will the applyistrar pr to for the the county countytions reg- as of may Cork be for appr that direc- the personentitled or to the persons superior beneficially McCarthy, application before any party or partieshold asserting a that superior they interestproperty in are the aforesaid dence of title in notice. received, the McCarthyGardens, of Blackrock the person entitled1978 under act, part intends 2 totion of submit the to an applica- county the of county Corkthe for r freehold theinterest acquisition and of any intermediate property towithin the 21 days party from named below at the endthis of notice 21 to days vestinterest in from him the the date fee simple of nn nn 88 t t t t 88 t t t t aa aa ned. a a aa aa a a a a y y a a y y ee ee 77 77 h h h h ence ence : : :: years T t t 99 T t t 99 dd dd dd dd Solicitors, 4 ests if n n n n n n n n r r r r i i rr rr i ii i ii rr rr ementioned 11 11 known includ- Lapps Quay, egistrar a a a a oo oo dd oo oo dd l l lll lll tt tt nish evi- lessee, of nn nn d d d d d d d d that they cc C C cc C dd dd dd dd Laur aa C aa inter n n n n n n n n nn nn nn nn A A c c c c operty, and ementioned a a a a a a a a aa aa aa aa e e e e e e e e dd dd )) )) 44 44 44 44 rr L rr L h h L L M M h h h h M M h h 22 22 t t operty set out t t the afor t t t t 99 99 99 oo 99 oo l lll e e e e ections as may be interest, 99 99 99 99 oo oo the date of this egistrar for the f f dd c c f f f f dd c c f f called upon to fur 11 11 11 11 that o o o o nn o o o o nn n n - n n - - - below named within 21 N - N - - - asserting Road, Cork, being (( aa mediary (( aa e e opriate on the basis e e date of this notice. 77 77 77 77 r r r r r r r r r r the county r r r the afor L ‘Araglen’, Menloe L )) )) 66 66 66 66 e e e e e e e e unknown or unascer- u u u u ss ss t t t t t t t t 99 99 99 99 tt in the property tt a a a a eehold estate of or any t t t t t t t t 11 11 11 11 nn nn a a a a a a a a eet, Enniscorthy, Co Wexford egistrar for the county of L L L L e e e e e e e e ence McCarthy, emises comprised in and unknown of unascertai ss ss ss ss h h h h m m m m called upon to fur m m m m y y R y y tt tt R tt tt t t t t cc cc cc b b cc b b intends to proceed with the of £16.7s.4d. e e e e e e e e dd dd f f f f A A A A opriate on the basis that the person n n n n h h h h nn h h h h nn o o o o esaid are in the aforesaid pr t t t t t t t t In default of any such notice being o o o o and all inter tt tt tt tt uu uu i i ii r r t t r r t t oo nn nn oo nn nn Cork applicant), City Quarter, Castle Str e e e e n n n n a a n n n n rr a a rr property to the days from the any of them) are evidence of title to received, the applicantceed intends with tocounty pro- the r applicationWexford before for the appr dir or persons beneficiallysuperior interest, entitled including the to freehold reversion in the each ofises, the aforesaid are prem- aa aa aa aa Signed: GJ Moloney (solicitors for the Signed: Garahy Breen & Co, t t t t I I I I Date: 1 June 2007 I I Date: 1 June 2007 I I c c c c t t t t nn nn i nn nn i ii tt tt G G l l ll In default of any such notice being Take notice ee ee a a ee ee a a (( (( nn nn dd e e p p dd e e p p T T T T aa aa s m m includ- p p nn m m p p nn h h h h s s nock in n n s n n Take notice that anyinterest in person the having fr superior an interest as all that andOld those numbers Market 21 Place, and situateof 22 in Saint the parish Cork, Mary being a Shandonments portion and and of pr thedemised city by heredita- an of indenture28 of March lease 1911Arthur made de and Moleyns,part, made and lessor, Laur of between the the other one part forfrom the 25 term of Marchyearly 200 rent 1910, subject to the dence of title in notice. received, theMcCarthy, applicant,application before Laur at the endthis of notice 21 to days vestinterest in from him the the date feeany simple of such existabove in and will the applyistrar pr to for the the county countytions reg- as of may Cork be for appr that direc- the personentitled or to the persons superior beneficially ing the freehold reversion,erty in afor the prop- tained. McCarthyGardens, of Blackrock the person entitled1978 under act, part intends 2 totion of submit the to an applica- county the of county Corkthe for r freehold theinterest acquisition and of any party any or parties intermediate hold a superior interestproperty in are the aforesaid property towithin the 21 days party from named below nn nn 88 t t 88 t t aa a a aa a a n n n n a a a a ee ee 77 77 Bantry,Co o o o o : : :: T 99 T 99 operty are dd dd n n n S S S S side of ‘St rr rr 11 in 11 tmar oo dd oo dd operty to the l lll egistrar at the tt tt nn nn cc cc dd d d mack of dd d d & & & & aa known as a plot aa interest, ent of 1 penny nn n n nn n n A A aa a a aa a a Square, e e e e race, Ardee dd dd )) e e )) e e unknown and/or rr L rr L h h r r h h r r opriate on the basis 44 emises com- 22 44 22 t t t t sublease dated 11 oo oo a a a a 99 99 l lll nish evidence of title ounty r e e eversion in the afore- e e oo oo 99 dd 99 f f dd f f egistrar for the P P 1 P P 1 nn o o 1 nn o o 1 N N est in the afore- -- -- (( aa (( aa 77 r r 77 r r L L )) )) olfe Tone e e e e 66 T T 66 T T ss ss ties, and any party t t t t tt tt 99 99 t t t t nn nn ned. 11 11 a a a a eehold estate of follow- Strand Road, Por y y e e y y e e e e e e in the aforesaid pr b b b b h h h h oper m m tt m m tt R R t t t t exford for the acquisition cc cc tion of the pr e e e e dd dd f f f f A n n A n n mediate interest in the aforesaid ties: all that and those the h h nn h h nn o o o o o o o o t t And further take notice that Sean In default of any such notice being t t i i ii tt tt uu uu in the aforesaid premises (or t t t t r r r r oo nn oo nn Cork d d a a d d a a applicant), W e e e e n n n n rr rr (old money). Hayes andsubmit Kathleen an application to King theistrar county reg- intend foracquisition to the of city theinter of fee Dublin simpleproperty, for and and any the asserting any party thatinterest or they parties hold a superior unascertai October 1945Helena M and EarleyBrendan of Fogarty made the of thesaid one between other sublease part part, being and the lease a sublease dated undermade 20 a between SeptemberMichael James 1853 Howard,Elizabeth and Doyle Daniel Rev ofPatrick the O’Neill one and of200 part the years and othersubject from Catherine part to 29 the for September yearly r 1852, called upon toto fur the aforementionedparty pr below namedthe date within of 21 this notice. days of received, SeanKing Hayes intend to andcation proceed before with the Kathleen the c end appli- of 21notice and days will apply to fromistrar the country the for reg- the datetions city as of may of be this appr that Dublin the for person direc- entitled or to the persons superior beneficially said property, are the county of Dublin,premises being comprised part in of the andan demised indenture by of ing the freehold r interest in the property of groundHelen’s’, on the north aa aa Signed: Hennessy & Co (solicitors for the e e t t e e c c t t c c I I Date: 1 June 2007 I I t t i t t t t i ii t t nn nn tt tt tt tt G 88 i G 88 i ii l l ll a a ee a a ee (( (( nn nn 77 nn nn 77 p p p p f f dd dd f f e e e e dd dd e e e e Take notice that T Peare & Sons T T , , ,, f f m m f f m m aa aa aa aa : : :: 99 99 p p m m i o o : p p m m nn nn i ii o o , : :: nn nn n n , ,, h h h h n n h h h h e e n n d d e e d d n n e e d d o o d d e e o o nn nn 11 nn nn C C 11 t t t t C C t t t t aa aa a a 88 aa aa e e a a 88 e e a a t t a a t t r r L L r r a a L L Take notice that anyinterest person in having the any fr ing proper dwellinghouse and premisesand known situate as no at 3 Alma Ter the one part andthe William other part, Blackburn subject of of to the £5. yearly rent Limited intends totion submit to ancounty applica- the of W countyof r thementioned freehold inter pr asserting thatinterest they hold a superior Street, Bray inbeing the county a of por prised Wicklow, in andlease demised dated by 23 indenture Octoberbetween 1900 of James and Ernest made McCor ee ee a a a a ting e e ee ee a a n n e e n n i t t i ii t t r r , r r tt , ,, tt 77 77 i i ii a a o o d d a a o o d d oper- , cc T T e e , ,, cc T T e e a a a a u u dd f f dd u u dd f f dd 99 99 n n n n i n n n n i ii i t t i ii t t y y y y u u u u i i rr rr i ii i ii rr rr known i s s o o i ii s s R R A 11 o o R R A 11 JUNE 2007 JUNE t t t T T t T T egistrar oo dd dd oo oo dd dd oo T T T T s s uite and s s u u u u l l lll lll )) )) n n tt n n tt r r r r h h nn nn h h nn nn d d d d e e d d d d e e r r r r dd dd cc dd dd 22 cc 22 T T t t T T t t e e e e u u u u aa aa aa aa e e e e y y n n n n y y n n n n emises, are t r r t nn nn r nn nn e e A t t e e A t t o o o o t oo t oo d d a a a a a a d d a a a a r i a a k k i ii aa aa k k t t aa aa t t intermediate e e e e e e uite, Ciaran e e c c dd dd c c dd dd e e e e r r uite, Michael )) r r )) c c c c o o o o a a n n a a n n 55 55 55 55 rr rr L rr rr L N h h L L i N h h h h i ii h h H H H H a a 22 a a 22 P P P P (( (( t t a a t t t t a a om the date of n n t t r r n n r r 00 00 oo oo 00 00 oo oo called upon to l l lll lll m m t t r r m m t t r r nOige, Church )) e e )) e e 00 00 00 00 t t oo d d t t oo d d e e e e f f dd dd M M f f f f a a dd dd M M f f ss a a ss operty forms part 22 22 22 22 h h h h tt tt n n n n S S S S ections as may be n n o o n n nn nn h h o o o o nn nn h h o o e e - - e e t t - - P P t t P P - - N - - N esaid pr from 1 November a a tained. t t a a nn t t nn aa aa a a aa aa (( a a (( the property h h h h 77 77 , 77 77 , ,, ee e e ee ementioned pr e e the county r y y r r y y r r r r r r t t t t L L L L e e Mullen, Dundalk, Co Louth e e )) )) e e 66 66 o o e e 66 66 o o Marie T eehold estate or any e e S S e e e e S S b b e e b b R R t t t t ss t t ss t t t t t t n n n n t t t t t t t t 99 99 i Patrick T 99 99 i ii tt i uite and Peter Tuite tt i ii , i , ,, i ii t t t t t t t t ’ ’ ’’ n n dd 11 11 n n dd ound at St Margaret’s 11 11 e e u u e e u u nn nn u u u u a a a a a a i a a i ii s s s s t t t t company of the Bank of e e e e y y e e e e y y e nn e ’ nn n n e ’ ’’ n n e T T T T T T T T a a g g a a ss ss g g ss ss b b b b h h h h h h h h u k k o o m m u oods (solicitor for the applicant), m m k k o o m m m m n n n n tt tt R u tt tt R u l operty are l ll t t t t t t t t i d d i ii d d u u n n u u n n c c c c e e d d cc cc e e d d cc cc e e t t oo e e t t i oo i ii t t t t i i ii l l ll n n n n e e e e i uite of the third part, for the e e o o e e i ii dd o o rr 1978 and made between the dd rr f f f f a a f f f f a a a a albot of the first part, the a a A A A A e e n n e e v v n n v v s s a a s s a a K K K K h h h h nn c c h h h h n n nn c c n n o o o o o o o o h h h h egistrar for the county and city a a G a a in the afor o o G o o i t t t t i ii t t t t r r uite intend to proceed with the r r tt tt s s oods Ahern tt (( tt s s c c i uu (( c c i ii H H l uu H H l ll , n n , ,, n n i i ii t t t t a a e e a a r r r r e e r r r r D D oo nn nn D D oo nn nn p p p p ss e e ss e e n n s s n n the applicant), 11 Herbert Street, Dublin 2 W s s a a e e e e a a e e e e n n n n n n n n rr rr tt tt aa aa aa aa i Signed: Gerald Kelly & Co (solicitors for John W , i i ii , ,, e e i ii e e p p p p t t t t opriate on the basis that the person t t t t I I M M I I m m I I Date: 1 June 2007 M M Signed: Executed on behalf of Sean Malone; I I c c m m l c c l ll cc l cc l ll esaid pr e e www.lawsociety.ie t t t t e e t t t t nn nn i nn nn LAW SOCIETY GAZETTE t t i ii t t a a a a G G t t b b In default of such notice being Take notice that Marie Tuite, t t b b l l ll h h ee ee m m a a a a h h ee ee m m a a a a (( A r r (( A r r i i ii t t t t t t t t u u u u e e p p e e p p T T T T o o o o u u S S u u S S a a r r a a r r m m m m m m m m ‘ p p ‘ ‘‘ received, the said application before furnish evidence ofmentioned title property innamed within the to 21 afore- daysthis fr notice. the below Tuite, Patrick Tuite,Peter Ciaran T T Michael Tuite, intend to submitcounty an r application to the Take notice that anyinterest person in havingsuperior the an interest fr in Malahide Estate of theMichael second T part and term of1968, 999 subject years toshilling, the which yearly said rent pr of of the one gardenly of the known premisesRoad, common- as Malahide TirDublin. na in the county of Tuite, David T of Dublinfreehold for interest the andinterest any acquisition ofty, and the anythat party they hold or aafor parties superior interest asser in the Ireland andMaude the T Honourable Rose as “plot of gr governor and Road, MalahideCoolock in andmore the particularly the delineated county andon barony shown of the map of Dublin”, attachedFebruary to a lease dated 14 at the endthis of notice 21 and days willregistrar from apply for to the such the dateappr county dir of or persons beneficiallysuperior interest, entitled including the to freehold reversion in the the afor unknown or unascer p p n n n n D D P P D D P P T T T T p p p p a a a a K K K K Take notice any person havingest an inter- in the freehold estate or superior a a a a PROFESSIONAL NOTICES 68 PROFESSIONAL NOTICES LAW SOCIETY GAZETTE JUNE 2007
ing the freehold reversion, in the prop- Tenant Acts 1967-1994 and iiin the erty aforesaid are unknown or unascer- matter of the Landlllord and Tenant NOTICE TO THOSE PLACING tained. (Ground Rents) (No 2) Act 1978::: an RECRUITMENT ADVERTISEMENTS IN THE Date: 1 June 2007 appllliiicatiiion by Leftbrook Liii miiited LAW SOCIETY GAZETTE Signed: GJ Moloney (solicitors for the Take notice that any person having an applicant), City Quarter, Lapps Quay, Cork interest in the freehold estate or any Please note that, as and from the August/September 2006 issue intervening estate in the property of the Law Society Gazette, NO recruitment advertisements will In the matter of the Landlllord and known as ‘An Sibin’, situate at Main be published that include references to years of post- Tenant Acts 1967-1994 and iiin the Street, Cavan in the county of Cavan qualification experience (PQE). matter of the Landlllord and Tenant (hereinafter referred to as “the premis- (Ground Rents) (No 2) Act 1978::: an es”) should give notice of their inten- The Gazette Editorial Board has taken this decision based on appllliiicatiiion by Paulll Diiillllllon of 78 tions to the under-signed solicitors. legal advice, which indicates that such references may be in Franciiis Street,,, Dubllliiin 8 Take notice that Leftbrook Limited breach of the Employment Equality Acts 1998 and 2004. Take notice that any person having an intends to submit an application to the interest in the freehold estate in the county registrar for the county of Cavan since adjusted to £19.60, and to the property known as 118/119 The for the acquisition of the freehold inter- covenants and conditions therein con- RECRUITMENT Coombe (front and rear), comprised in est in the aforesaid property, and any tained. and demised by indenture of lease dated party asserting that they hold a superior Take notice that Emer Carroll, being Locum sollliiiciiitor requiiired for Dublin 27 January 1911 between William interest in the aforesaid premises are the person currently entitled to the city practice for the months of July to Francis De Visme Kane and W&R called upon to furnish evidence of title lessees’ interests under the said lease, December 2007. Experience required in Jacob and Company Limited, for a term to the aforementioned premises to the intends to apply to the county registrar conveyancing, commercial and probate of 200 years, subject to the annual rent below named within 21 days of the date for the city of Cork for the acquisition areas. Reply to John P Redmond & Co, of £20 and therein described as “all of this notice. of the freehold interest and all the inter- 22/23 Merchant’s Quay, Dublin 8. those two tenements with the yards and In default of any such notice being mediate interests in the aforesaid prop- Reference JC/BC gardens thereunto belonging, formerly received, the applicant, Leftbrook erty, and any party ascertaining that called The Black Horse or Hall and Limited, intends to proceed with the they hold a superior interest in the Conveyanciiing sollliiiciiitor requiiired for known as Garrett Bryan’s holding with application before the county registrar aforesaid property (or any of them) are legal practice in Letterkenny, Co the cottages at the rear in the Lower at the end of 21 days from the date of called upon to furnish evidence of title Donegal. Please forward a curriculum Coombe in the city of Dublin and now this notice and will apply to the county to same to the below named within 21 vitae tob ox no 51/07 known as numbers 118 and 119 registrar for the county of Cavan for days from the date of this notice. Coombe and situate in the parish of directions as maybe appropriate on the In default of any such notice being Sollliiiciiitor requiiired, Co Kerry, to spe- Saint Luke and county of the city of basis that the person or persons benefi- received, Emer Carroll intends to pro- cialise in probate/conveyancing. Reply Dublin”. cially entitled to the superior interest, ceed with the application before the to box no 52/07 Take notice that the applicant, Paul including the freehold reversion, in the county registrar at the end of 21 days Dillon, intends to submit an application aforesaid premises are unknown or from the date of this notice and would Sollliiiciiitor returniiing to work after a to the county registrar in the unascertained. apply to the county registrar for the break seeks position as assistant solicitor county/city of Dublin for the acquisi- Date: 1 June 2007 county of Cork for such directions as in Dublin area. Has experience in gen- tion of the freehold interest in the Signed: Shane Kennedy & Co (solicitors may be appropriate on the basis that the eral practice and criminal legal aid and aforesaid property, and any party assert- for the applicant), 38 Dublin Street, person of persons beneficially entitled lecturing Health Service Executive ing that they hold a superior interest in Monaghan, Co Monaghan to the superior interest including the (HSE) staff on recent legislation. the aforesaid property is called upon to freehold in each of the aforesaid prem- Awaiting results of Law Society diploma furnish evidence of title to the aforesaid In the matter of the Landlllord and ises are unknown and unascertained. in employment law examination. Can property to the below named within 21 Tenant Acts 1967-2005 and iiin the Date: 1 June 2007 finance own practising certificate. Also days of the date of this notice. matter of the Landlllord and Tenant Signed: J&P O’Donoghue (solicitors for the interested in assisting with a new prac- In default of any such notice being (Ground Rents) (No 2) Act 1978::: an applicants), Langford Street, Killorglin, Co tice start-up. Computer literate. Tel: 01 received, the applicant intends to pro- appllliiicatiiion by Emer Carrollllll Kerry 668 6901 or 087 223 5141 ceed with the application before the Any person having a freehold estate county registrar at the end of 21 days or and intermediate interest in all from the date of this notice and will that and those the plot or piece of TRAINEE SOLICITOR SEEKS apply to the county registrar for the ground known formally known as county/city of Dublin for directions as number 68 Barrack Street in the parish NEW TRAINING CONTRACT may be appropriate on the basis that the of Saint Nicholas and city of Cork person or persons beneficially entitled and now known as 79 Barrack Street, Enthusiastic, hardworking post-PPC1 trainee solicitor to the superior interest, including the Cork, otherwise known as Elaine’s, freehold reversion, in the aforesaid Barrack Street, Cork, held under seeks transfer of training contract property are unknown and unascer- indenture of lease dated 26 July 1877 tained. made between Richard Meade of the Extensive experience in legal, business Date: 1 June 2007 first part, Mary Ann Meade of the sec- and IT environments Signed: BCM Hanby Wallace (solicitors ond part, Cork Investment Land and for the applicant), 88 Harcourt Street, Building Society of the third party and Available immediately • CV on request Dublin 2 James McEnery of the fourth part for the term of 990 years from 25 July Enquiries to box 53/07 or [email protected] In the matter of the Landlllord and 1877, subject to the yearly rent of £20,
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www.lawsociety.ie 69 Opportunity at the Law Society Parliamentary and Law Reform Executive
This position reflects the Law Society’s commitment to making the profession, including reporting on human rights law a contribution in the public interest to law reform and the developments and events in the Law Society Gazette and organ- development of human rights law and practice. ising occasional seminars and conferences.
The position entails acting as Secretary to the Society’s Law The successful candidate for this exciting position will be a Reform Committee; researching and writing law reform reports solicitor, barrister or legal academic, with an interest in law and policy papers; organising occasional seminars and reform, human rights law and public policy and with excellent supporting the work of the Committee; monitoring law reform legal, analytical and drafting skills. proposals put forward by Government and others; reporting on new legislation in the Gazette; assisting in the preparation of This is a senior position with an attractive remuneration submissions in relation to law reform proposals and draft package for the right candidate. legislation, and organising an annual student essay competition.
The successful appointee will also act as Secretary to the Applications should be sent to Maureen Seabrook, Human Society’s Human Rights Committee and support the work of Resources Manager, Law Society of Ireland, Blackhall that Committee in promoting awareness of human rights law in Place, Dublin 7, to arrive by Friday, 15 June 2007. www.lawsociety.ie Law Society of Ireland RECRUITMENT 71 JUNE 2007 JUNE www.lawsociety.ie LAW SOCIETY GAZETTE
LAW SOCIETY GAZETTE JUNE 2007 RECRUITMENT
IN-HOUSE LEAD COUNSEL - DUBLIN 3 €80-100K A software company based in East Point Business Park is now looking for in-house legal counsel. Dealing with all legal affairs and functions for the group of companies throughout Europe, the incumbent will take an active and pivotal commercial role in providing strategic commercial legal advice and protecting the intellectual property and trademarks of the company. Strong experience in IP and commercial contract negotiation is required.
CONVEYANCING - DUBLIN CITY CENTRE €60K+ A leading Commercial Law firm in Dublin are now seeking a Conveyancing Solicitor with experience in commercial and residential conveyancing. The successful candidate will have experience in conveyancing transactions advising investors, developers and financial institutions and investigating title.
JUNIOR COMMERCIAL LAWYERS - DUBLIN & CORK €60K+ Top law firms in Dublin and Cork are now looking for commercial solicitors. You will have experience in some of the following areas: Mergers and Acquisitions both public and private, securities, private equity, restructuring, fundraising, commercial contracts and compliance. These firms offer great opportunities for career development.
For information BANKING / FINANCIAL SERVICES - DUBLIN 2 €70K+ on these vacancies One of Dublin's leading commercial law firms requires a Banking Solicitor to join its growing team. The successful or to discuss candidate will have a number of years' experience working in the banking and financial services sector, either other career in-house or in practice. opportunities, please contact PENSIONS SOLICITOR - DUBLIN CITY CENTRE €70K+ John Cronin This is an opportunity to join the pensions team in a leading practice. The successful candidate will be advising a broad Solicitor, PRC range of international and domestic companies, scheme trustees and individuals on all pension scheme aspects and Recruitment related matters. Applicants should have preferably gained experience in a large or medium size practice. Limited, 1D Corn Exchange, Poolbeg Street, Dublin 2. TAX PROFESSIONAL - DUBLIN CITY CENTRE €65K+ Tel: 01-6139510 This is an interesting and varied position that has very little compliance or tax return filing duties with a leading or e-mail commercial law firm. It provides an excellent opportunity for a qualified tax person (A.I.T.I.) with appropriate [email protected] experience to be exposed to complex national and international tax planning opportunities.
74 www.lawsociety.ie Are you a qualified solicitor? Are you looking for temporary work with flexible hours? Are you available to commence from September 2007?
An Post is a major commercial organisation providing a wide range of services which encompass postal, communication, retail and money transmission services. It is one of Ireland's largest companies directly employing almost 9,500 people through its national network of retail, processing and delivery points.
We are now seeking a suitable candidate as temporary solicitor to cover maternity leave from September 2007.
Reporting to the Company Solicitor the post-holder will provide high quality commercially useful legal advice in a timely manner to company management so that An Post's interests are protected
The post holder will be a qualified solicitor with relevant If you feel you meet the experience in commercial law. Applicants will have the ability specification outlined above, to develop productive working relationships with all relevant please send a detailed CV, stakeholders and communicate effectively, both orally and in clearly indicating the position writing across all levels in the organisation. He/she will you are applying for, in strict deploy technical and professional knowledge to exercise confidence, to the HR judgement and execute decisions in support of the business, Resourcing Manager, Block 2D, GPO, O'Connell St., Dublin 1. demonstrating the personal credibility to work and influence E-mail: [email protected] at senior levels. www.anpost.ie
The remuneration will be commensurate with experience and The closing date for receipt of will reflect the importance of this management position. applications is 27/06/2007.
An Post is an equal opportunities employer. We welcome suitably qualified applications from all sections of the community. LAW SOCIETY GAZETTE JUNE 2007 RECRUITMENT
THE CHANGING FACE OF LEGAL RECRUITMENT
The Gartan Group provides innovative and workable solutions for both our candidates and our clients. Our services are highly professional, confidential and discreet which has ensured our continued reputation as a leading professional recruitment firm.
Our Candidates enjoy one to one interviews, employment and salary advice, and a dedicated recruitment professional with practice experience to assist in all aspects of career development, providing a choice of excellent career opportunities.
Our Clients are highly reputable professional firms with whom we play an important role: in their ongoing assessment of recruitment needs to achieve a smooth, successful and cost effective recruitment plan, extending to advertising, comprehensive searching facilities and head-hunting services upon request.
Our hands-on, can do, approach to your specific recruitment needs guarantees our candidates only the best roles, and our clients only excellent, relevantly-experienced and specific candidate profiles in the shortest time.
n IN-HOUSE OPPORTUNITIES Senior Counsel Dublin: up to 150k + Bonus and Benefits Funds: up to 100k + Bonus and Benefits Leading service provider seeks to appoint Senior Counsel This is an exciting opportunity for the right candidate to fast to provide high quality, accurate and effective legal track their career development with a leading law firm who advice on aspects of corporate governance, regulatory can demonstrate strong experience gained in a similar compliance, corporate/commercial issues, EU and environment in Ireland or other leading jurisdictions in this regulatory, environmental and employment law matters. area of practice. The successful candidate must be a senior lawyer with significant and proven experience as a general counsel in Corporate: 80k + Bonus and Benefits a large corporate environment, possessing strong, effective Prestigious niche practice requires two Associate leadership and managerial influencing skills. Corporate Solicitors to join a rapidly expanding practice. This is an exciting and varied role with a high-quality client n PRIVATE PRACTICE OPPORTUNITIES list the candidate must be able to demonstrate strong Professional Support Lawyer: 55k + Bonus and Benefits practice experience of all core corporate practice areas. Leading law firm requires an Associate Solicitor to add to the level of expertise in supporting its fee-earners in n LEGAL EXECUTIVE OPPORTUNITIES revising and upgrading the firms’ data base, templates and Our clients are seeking experienced legal executives with a auxiliary drafting procedures. Great opportunity for career track record in commercial and residential conveyancying, advancement and flexible hours of work. litigation and corporate practice. Excellent opportunities to advance your career and earning potential with prestigious Commercial Property Solicitor: 80k + Bonus and law firms. Benefits This role is for a commercial conveyancying solicitor. The n COMPANY SECRETARIAL OPPORTUNITIES successful candidate must have a strong and proven Prestigious Dublin law firms and corporate consultancy practice experience in a similar role. Exciting and genuine firms seeking Senior Company Secretaries and Company opportunity for career and earnings development. Secretaries candidates with proven track records and suitable academic background for an exciting challenge Commercial Litigator: up to 80K + Bonus and Benefits with excellent rewards and career development This challenging role is ideal for a proven commercial opportunities. litigator who is seeking to develop their career and earning potential and can demonstrate a high quality of work to n LEGAL SECRETARIAL OPPORTUNITIES date. Our clients are seeking highly professional and self- motivated secretaries across the core areas of practice, Employment Solicitor- non-contentious: up to 80K + and excellent working conditions and pay are offered to Bonus and Benefits the right candidates seeking to develop their careers. A prestigious and rapidly growing law firm is seeking the services of a highly motivated and experienced solicitor to provide consultative services to its high-quality client list with the opportunity to develop the role and expand their team.
Gartan Group, tel: 01 231 5255/01 231 4600, email: [email protected] www.gartangroup.com