Contents GazetteLawSociety

Regulars Cover Story Babes in the hood Juvenile crime is a growing issue in more ways than one, and the President’s message 3 12 Children Act, 2001 is the latest attempt to get to grips with the News 4 problem. Geoffrey Shannon looks at how the act deals with kids who fall foul of the law Viewpoint 8 Tech trends 36 Over the hills and far away Briefing 39 18 A UK House of Lords’ decision has implications for the issue of assessing Council report 39 solicitors’ costs in that jurisdiction. Practice notes 40 Tom Murran contrasts this with the Irish position Legislation update 43 Solicitors No longer Poles apart Disciplinary 20 As Poland prepares to take its place in Tribunal 45 the European Union, the society’s EU Personal injury and International Affairs Committee was judgment 46 invited to Warsaw to begin a programme of FirstLaw update 49 mutual assistance. Hugh O’Donoghue reports on this show of solidarity Eurlegal 53 People and The CAT’s pyjamas places 58 24 The administration of capital acquisitions Professional tax is currently undergoing the biggest information 61 shake-up since self-assessment was introduced in 1989. Declan Rigney outlines COVER PIC: EVERETT COLLECTION/ the benefits to practitioners REX FEATURES

Keeping it in the family 28 Solicitors are often asked to advise on cases where beneficiaries want to redivide a will. Anne Stephenson discusses deeds of family arrangement and their possible tax consequences

Alternative remedies 32 Arbitration between businesses has a long and successful history. Now, the European Commission has developed an arbitration service for business-to-consumer contracts. Susan Reilly explains

Editor: Conal O’Boyle MA. Assistant editors: Kathy Burke, Garrett O’Boyle. Designer: Nuala Redmond. Editorial secretaries: Catherine Kearney, Valerie Farrell. Advertising: Seán Ó hOisín, 10 Arran Road, Dublin 9, tel: 837 5018, fax: 884 4626, mobile: 086 8117116, e-mail: [email protected]. Printing: Turners Printing Company Ltd, Longford. Editorial Board: Pat Igoe (Chairman), Conal O’Boyle (Secretary), Tom Courtney, Eamonn Hall, Mary Keane, Ken Murphy, Michael V O’Mahony, Alma Sheehan, Keith Walsh

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. Volume 97, number 9 E-mail: [email protected] Law Society website: www.lawsociety.ie Subscriptions: €57.15

1 Law Society Gazette November 2003

President’s message Rising to the challenge

arting is such sweet sorrow! This has My dream of certainly been a bitter-sweet year for me, holding the society’s but one that I will never forget. It has annual conference in undoubtedly been the most exciting and Istanbul was shattered Penjoyable of my life, and one that by the uncertainty brought challenging developments for the surrounding the war in profession. Iraq. However, a last- One of the most frustrating aspects of my year in minute decision was office was the fact that the radical, practical and cost- made to change the free proposals for reforming the civil litigation venue to Lisbon, a system, contained in the society’s Real reform suitable, sunny and document, were dismissed or ignored by the tánaiste successful alternative. I and the media in the almost unseemly rush to would like to thank the loyal and supportive ‘I leave the introduce the Personal Injuries Assessment Board. In colleagues who attended. I know they enjoyed it. It their desire to satisfy the business lobby’s agenda, the would not have happened, of course, without the presidency interests of victims who have no organised voice to ingenuity and hard work of James McCourt and his in safe speak on their behalf has been ignored. This is very conference committee. wrong and even at this 11th hour, I hope that the hands. I tánaiste will open her mind to consider the positive Go raibh maith agaibh! shall miss proposals and submissions. There are many people without whose help I could not have done my job. My senior vice-president it’ Sterling work at grassroots level Gerry Griffin and junior vice-president John Fish I am delighted that the initiative to re-establish the were always on hand with helpful advice. The Public Relations Committee and to involve the bar support of the Council members – so crucial to associations in our effort to promote the image of every president – was overwhelming. I would the profession has been so successful. Almost all bar particularly like to thank the chairmen and members associations have now participated, and there have of our committees and task forces who undertook a been three meetings of the public relations officers, huge amount of work during the year and devoted who have now begun to do sterling work at local their valuable time to the Law Society’s work. level. I would like to thank Donald Binchy, chairman The boundless enthusiasm and energy of Ken of the PR Committee, and Ken Murphy for their Murphy and Mary Keane was an inspiration: their hard work and enthusiasm in overseeing this and guidance and advice were greatly appreciated. other important PR initiatives. This year would not have been possible without During the course of the year, Ken Murphy and I the loyalty and commitment of my partners Frank visited no fewer than 19 bar associations, and for me, Murphy and David Larney, Margaret Behan and all these visits were among the highlights of my our colleagues and staff at Gleeson McGrath presidency. The Law Society is lucky to have such a Baldwin. They carried a large workload in my strong body of support to call on. absence and made it possible for me to devote the I acknowledge that it has not been an easy year for necessary time to the job. the profession. Apart from the PIAB proposal, My husband Eric, and our daughters Kate and members had to cope with the introduction of Kamala, were unfailingly encouraging and mandatory CPD from 1 July and the designation of supportive, and ensured that I had a home to go to. I solicitors under the money-laundering regulations. leave the presidency and Council in safe hands, and I However, there were a great many highlights. know that we have a highly skilled, dedicated and Among them, I would include the holding of the hardworking profession which will rise to the first-ever council meeting in Sligo in May. It was a challenges that face us. particular pleasure for me as a Sligo woman to be It has been a great honour to be president of the able to do so, in the superb newly renovated Law Society and I am grateful for the trust that was courthouse. We were delighted to have so many placed in me. I shall miss it. representatives of Sligo and surrounding bar associations present as observers, and I know that Geraldine Clarke, they found it informative and interesting. President

3 Law Society Gazette November 2003 News

CONVEYANCING HANDBOOK UPDATE The contact name and details Professions to get for Arthur Dunne and Des Holmes of the Architecture and Surveying Institute that ‘the full Monti’ appear at page 7.36 of the Conveyancing handbook dose of liberalisation’ is Among the earlier speakers should no longer be used. ‘Aon the way for was the chairman of Ireland’s Instead, practitioners should professions across the EU. Competition Authority, Dr contact Kevin Sheridan, 45 This was the phrase used by John Fingleton. He noted that Mount Anville Park, Dublin 14, one of the many speakers at a Ireland, along with the UK and tel: 01 607 0500, fax: 01 607 major day-long conference in Scandinavian countries, was 0651, mobile: 087 222 3985 Brussels on 28 October. The very much at the liberal end of or e-mail: sheridankc@ conference had been called by the scale – lightly rather than eircom.net. European Commissioner for heavily regulated – in terms of Competition Mario Monti. One the level of potentially anti- FLYING THE FLAC representative from each of the competitive regulation of the The Free Legal Advice Centres major professions in every EU Director general Ken Murphy professions as determined in a has a new head office at 13 member state was invited to recent survey by a Vienna-based Lower Dorset St, Dublin 1. The hear a detailed discussion of that consumer protection institute commissioned by the office was officially opened both the economic necessity objectives were achieved by the EU. ‘Although Ireland is “the last month by Mrs Justice and legal basis for the European means least restrictive of good boy in the class”, there are Catherine McGuinness, who Commission’s first-ever competition. still problems’, he said. also launched a book entitled systematic review of Access to justice: the history competition in the professions. of the Free Legal Advice The Law Society of Ireland was Centres, 1969-2004 by represented by director general Women in the law journalist Pádraig O’Moráin. Ken Murphy. aw Society president Geraldine Clarke was one of the keynote As the final speaker of the Lspeakers at last month’s launch of the first-ever report on PARTNERSHIP BOOKLET day, Commissioner Monti women lawyers in Ireland. Gender InJustice is based on research The Law Society’s Guidance announced that he had conducted over 18 months by Trinity College academics Ivana Back and Ethics Committee recently instructed his staff to prepare a and Catherine Costello and statistician Eileen Drew. published a booklet that report on competition in the Clarke pointed out that she was the second woman president of provides basic information for professions in the EU, with the the Law Society in succession and that 42% of the solicitors on the solicitors considering report to issue by the middle of roll in Ireland were now women. Up to 70% of those undertaking becoming partners in law next year. Both state and self- the current professional practice course were also women. She firms. Copies of Partnership? regulation of professional warmly welcomed the report, although she didn’t agree with all of are available free of charge services would be examined to its conclusions. She concluded by saying that ‘we need to raise and can be requested from the ensure that all restrictions on awareness of women lawyers’ issues, and create an atmosphere in committee secretary at the competition operated in the which belittling of women lawyers and the issues affecting them is Law Society or by e-mail from interests of consumers rather not tolerated’. [email protected]. than suppliers of services and PRACTICE MANAGEMENT NEWS he value of a professional very negotiable figure for considerations for the purchaser their practice is worth a multiple of Tpractice is very subjective. practice goodwill. It may be are: gross fees, no well-advised There is no definitive answer to the advisable to use legal costs • The past profitability of the purchaser would consider buying a question ‘what is my practice accountants to help value the practice as a guide to its future practice on this basis. worth?’ work in progress. earnings potential Various rules of thumb have • Factors governing the future What should buyers look for? been used to value practices in the The first two options are extremely continuation of the practice, and Simply put, quality – in terms of past: subjective, and wide differences will • The nature and timing of the clients, work and staff, good •A multiple (between one and exist between the vendor and the consideration to be paid on technology systems and a well- two) of the annual gross fees purchaser. The third option mixes satisfactory completion of a stocked, easily referenced wills •A multiple (between three and hard fact (the real value of work in deal. cabinet. Potential buyers should five) of the maintainable profit progress on a case-by-case basis) determine past profits by getting an before tax, or plus a subjective add-on for In seeking to determine a practice’s accountant to review the accounts •A value based on net assets goodwill. This is the most common value, it is profitability that matters, for the past three years and adjust (including a full work-in-progress method used. not gross fee income. Although for exceptional or non-recurring valuation) plus an additional and In evaluating goodwill, the main vendors may have expectations that items, and beware of attempts to

4 Law Society Gazette November 2003 News

WOMEN LAWYERS’ AGM The Irish Women Lawyers’ It’s a full house for Association will hold its AGM and a seminar on Women in law in Europe from 10am to Drogheda walkout 1pm on Saturday 22 November at Blackhall Place. The ore than 30 Drogheda seminar is free to members. Msolicitors staged a walkout from the District COMPENSATION FUND Court on Friday 23 October in PAYOUTS frustration at the on-going The following claim amount failure to provide a reasonable was admitted by the Law courthouse. Last month, they Society’s Compensation Fund learned that plans to move the Committee and approved for courthouse from the town payment by the Law Society bingo hall, where it has been Council at its meeting in sitting for 12 years, to a more October 2003: Dermot suitable venue had been aban- Kavanagh, 2 Mary Street, New PHOTO FRAN CAFFREY NEWSFILE.IE Ross, Co Wexford – 1,270. doned (see last issue, page 5). Gerry Daly speaking on behalf of the Drogheda Bar Association after € At the start of the day’s court the walkout from the bingo hall that doubles as a District Court sitting, Drogheda Bar SOLICITORLINK Association president Gerry die away again’. building. There are plans to The Law Society provides a Daly made a short statement, • Meanwhile, at the end of eventually build a permanent confidential service, Solicitor- then led the walkout with his September, Navan District courthouse, but, for the Link, to solicitors wishing to colleagues. According to the Court was relocated from a moment, the judge and Navan buy, sell or merge their association’s press officer bingo hall to a purpose-built solicitors are delighted about practices. The service allows Fergus Minogue, the district courthouse in an office the move, after almost 40 years. practitioners to register their judge went ahead with the list firm’s details with the society of the day’s cases but ‘a lot of and, once registered, each bench warrants were issued for Last call for Galway judge practitioner is sent details of people who didn’t turn up’. reception in Galway on Saturday 27 September marked the all firms wishing to buy, sell or ‘We could not quietly accept Aretirement of District Court judge John Garavan. Referred to as merge with another firm within that nothing can be done’, said longest-serving, and the most colourful, genial and animated District a particular area. Firms’ Minogue. ‘We need to get Court judge in Ireland, he made headlines two years ago with his identities are not revealed Drogheda courthouse higher remark about ‘Galway’s dreadful drunken girls’, for which he again until both parties are in on the agenda. About 130 apologised at the reception. agreement, and the society is courthouses have been dealt He graduated as a solicitor and was appointed to the bench in not involved in the with over the past three years, 1974, when he served for some time in the Special Criminal Court negotiations. Interested but the situation in Drogheda before moving to Galway. He was involved in several high-profile members should contact the is rolling’. He added that ‘the cases, including the Mountbatten murder trial and the Sallins train society’s member services walkout was a statement of robbery case. executive, Claire O’Sullivan, intent – we cannot let the issue for further information.

window-dress the past accounts to buyer should try to negotiate a ‘pay obvious benefits: willing to accept a considerably achieve an artificially high profit if they stay’ clause to protect him • Not having to find a large capital lower price where a once-off capital figure. A failure to write off from a sudden haemorrhage of sum sum is involved. Both parties irrecoverable outlay or the absence clients. Second, it is desirable that •Tying the vendor to the practice should bear in mind that there may of a bad debt provision may the vendor should appear (at least for an agreed number of years be differing tax implications for indicate that the profit figures are in the public eye) to retain a • Payments will be made out of both payment methods, and it is being massaged for the vendor’s connection with the firm. revenue generated by the vital that professional tax advice is benefit. practice obtained in all circumstances. G Nature and timing of consideration •Tax relief on the payments which Continuity The parties may have very different could be charged as consultancy Claire O’Sullivan is the Law An important factor in arriving at viewpoints about the nature and fees in the practice account. Society’s member services the final purchase price is the timing of consideration. At its executive. This article was amount of assurance the buyer has simplest, the vendor will generally To obtain these benefits, however, reproduced with the kind that clients will remain and will want a once-off capital payment, the purchaser may have to pay a permission of Charles Russell of continue to refer new work. Two whereas the buyer will want to pay considerably higher price. chartered accountants Russell & factors are important. First, the over an extended period, which has Conversely, the vendor should be Associates.

5 Law Society Gazette November 2003

News

LEGAL DIARY The Courts Service has Court challenge to confirmed that it will continue to produce a fully printable version of the Legal in camera rule diary, as well as the usual web version, on its website he High Court has allowed (www.courts.ie). The service Ta challenge to the is free. mandatory in camera rule in family law cases. The applicant, LIMERICK BASH Dr Bob McCormack, applied The annual Christmas night for permission to seek a judicial out for Limerick city and review of the rule, arguing in county solicitors will be held his affidavit that imposing on Friday 12 December in ‘absolute secrecy’ in family law Freddie’s Bistro. Tickets are cases is unconstitutional and available from association ‘stifles any inquiry into the treasurer Robert Kennedy. workings of the family law Further details will be courts or scrutiny of the circulated closer to the date. behaviour of judges, lawyers, court officials and family is a poverty of written of the constitution says that NEW BOSS AT ARTHUR COX assessors’. judgments’. And he warned justice must be administered in Dublin law firm Arthur Cox Law Society deputy director that the public loses confidence public, with limited exceptions. has appointed Padraig of education Geoffrey Shannon in the judicial system if they Shannon refers to B and P v O’Riordain as new managing expressed surprise that the cannot see how decisions are UK, a landmark case heard by partner at the end of his issue had not been raised reached. the European Court of Human predecessor’s four-year term. before now. ‘Justice must not The High Court has Rights, which ruled that the The firm was recently named only be done, but be seen to be interpreted sections 34 of the mandatory in camera rule is in ‘international law firm of the done’, he said. ‘It is a balance Judicial Separation and Family breach of a fair trial. year’ by the International between the right to privacy Law Reform Act, 1989 and 38 of ‘The issue will have added Financial Law Review. and the right to a fair and the Family Law (Divorce) Act, significance when the European transparent system of justice. 1996 to mean that family law convention on human rights is O’CONNOR HEADS UP DSBA Family law cases are not cases must be heard ‘otherwise incorporated into Irish law on Law Society Council member reported in the press and there than in public’, but article 34 31 December’, he said. John O'Connor was elected president of the Dublin Solicitors’ Bar Association The Innocence Project at its recent AGM. The newly-appointed vice- pplications will be taken outlining the reasons for your accommodation and support president is Orla Coyne, Afor secondment application, the qualities you while in New York. Closing who also sits on the Law placements with the Innocence feel are necessary to the date for applications is 19 Society Council. Project in New York in the project and why you would be December 2003. A seminar on coming months. The of assistance. You should also the project will be held on 26 EUROPEAN PATENTS Innocence Project is a outline how you would arrange November at 1pm. CONFERENCE voluntary organisation set up The second epoline annual by attorney Barry Scheck to conference will be held in address cases of injustice Barcelona from 9 to 11 throughout America using Rules committees to December. The conference is modern forensic science. The organised by the European placement is entirely voluntary get more support? Patents Office (EPO), to and lasts for approximately ten The Court Rules Committees should be provided with a support unit bring together patent weeks during the summer to help them cope with growing volume of domestic and EU professionals from all over months. legislation, a new report has said. The rules committees draw up Europe to learn about Applications are open to all regulations governing practice and procedure in the courts, but a developments in the area. trainees and can be sent to committee chaired by Mrs Justice Susan Denham says that ‘the This theme of this year’s Gráinne Butler in the Law growth in legislation and litigation requires the development of a conference is Cutting edge School or e-mailed to new infrastructure’. It recommends the creation of a Rules issues in intellectual [email protected]. Committee Support Unit in the Courts Service to provide property today. For more The application should administrative, drafting, and other services and skills to the three information, see include a one-page CV and a rules committees. www.epoline.org/events/ short written submission barcelona.

7 Law Society Gazette November 2003 Viewpoint Italy’s other dons make an of European law is all well and good in theory, but what happens when a member state stubbornly refuses to implement it? Irishman Henry Rodgers and his non-Italian colleagues have been fighting for equal employment rights in Italy for a number of years, in the face of intransigence by one of the founding members of the EU. Here is his story

his September, I petitioned four-and-a-half years would pass Tthe European Parliament on before the 1993 court ruling in the unacceptable length of time Allué 2. Three of the judges it is taking for Irish and other from 1989 presided, while the non-national teaching staff in advocate-general and the Italian Italian universities to have defence lawyers were rights under the parity of unchanged. The judgment, an treatment provision of the EU emphatic victory for Allué, treaty (article 39) enforced. The clarified the import of the petition was co-signed by earlier ruling: all time limits on Proinsias De Rossa, vice- the contracts of foreign teachers chairman of the parliament’s were discriminatory while Petitions Committee. The Italian university teachers had committee is empowered to case Commission v Italy, the foreign lecturer, Pilar Allué, open-ended contracts. refer petitions to the European commission opened article 228 challenged the legality of the To comply with the Allué case Commission and demand enforcement proceedings in temporary contracts and, on the law, Italy had merely to appropriate initiatives. January 2002. An eventual ruling grounds that our Italian introduce legislation converting Litigation by non-national in these proceedings, currently at counterparts had open-ended the temporary foreign lecturer teaching staff in Italian the reasoned opinion stage, is contracts, won in the Court of contracts into open-ended universities for parity of unlikely before 2006. By then, Justice in 1989. The case is contracts. The 1995 law that treatment began at European foreign lecturers will have been mentioned in textbooks on EU Italy introduced in response to level in 1987, with the referral fighting 19 years – half an law for the court’s rejection of Allué 2 demoted foreign of a case to the Court of Justice average academic working life – the defence that tenured teachers to a newly-created rank by the Pretura di Venezia for a for rights that should be university teaching fell within of ‘collaborators and linguistic preliminary ruling. The automatic under the EU treaty. the public service exemptions experts’. As applied, the new subsequent clear-cut 1989 provided for under article 39(4). rank was held to constitute a ruling of the court was Decline and fall Italy interpreted the 1989 new employment relationship, repeatedly misinterpreted by Initially, under Italian law, verdict of the court as with the forfeiture of the Italy, causing the foreign foreign language lecturers in abolishing the six-year limit acquired rights to seniority teaching staff and subsequently Italian universities could be (one annual contract plus five payments, raises and pension the commission, in employed on one-year contracts, renewals), but as condoning contributions accumulated over infringement proceedings on with a possibility of five further temporary annual contracts for the years of previous service. their behalf, to return to the annual renewals. Lack of a foreign lecturers. Pilar Allué, Colleagues with years of court for further refinements of continuous employment now joined by co-plaintiffs, experience in their universities the original judgment. In a last relationship gave rise to many challenged this misinterp- were astounded to note that resort to compel Italy to comply abuses – most notoriously, the retation. Recourse to the their first pay slip as with the ruling in infringement denial of maternity leave. A Court of Justice takes time: ‘collaborators and linguistic Stepping into the breach: judi Are we at the point when Irish courts are accepting too much jurisdiction and deciding on matters that should not be in the judicial domain at all? asks Pat Igoe

awyers know better than might of the state, an unfair that the government and the being called on to fill the void. Lmost that the courts are the employer or even a noisy Houses of the Oireachtas have The last issue of the Gazette final bulwarks of protection for neighbour. become less prominent in terms included an article by Professor the ordinary citizens in their Government, like nature, of leadership, for whatever David Gwynn Morgan on the quest for justice – against the abhors a vacuum. It is arguable reason, and that the judiciary is development of the role of the

8 Law Society Gazette November 2003 Viewpoint ffer you can’t refuse VOX experts’ recorded them as member states that ignore its national workers responded to POP having just started employment. rulings. After the commission discrimination and gradually opened article 228 proceedings, educated themselves in EU law. A recent report found Pizza the action Italy responded with a draft Some of the reluctance of that more than one-in- Besides recourse to the contract for foreign lecturers colleagues to educate three women in the European and local Italian containing terms significantly themselves in law may stem legal profession still courts, the foreign teachers worse than those ruled from the lawyer/client suffer discrimination. Do sought political help. The discriminatory in Commission v relationship in Italy. Most of the you think this is true? European Parliament has passed Italy. In a subsequent letter foreign lecturers are in litigation Yes. I don’t four motions condemning the published in European voice, the against their universities before think it’s a discrimination. So far, Dáil authoritative Brussels-based local courts. In my experience, problem with Éireann is the only member- weekly on EU affairs, I urged deference to the competence of salary. I think women are state parliament to have invited the commission to heed lawyers and their handling of a earning as a foreign lecturer to testify, in advocate-general Gellhoed’s case is total, reminiscent much as men, 1996. The Oireachtas Joint criticism and to prosecute the perhaps of the Irish lawyer/ but I think there’s a problem Committee on European Affairs case with urgency. In the same client relationship of 30 years with ‘jobs for the boys’. In subsequently lobbied the newspaper, John Cushnahan ago. areas like insurance companies and tribunals, if commission, which soon after MEP regretted that ‘a founding As Italy has not complied you don’t play rugby you’re opened infringement member of the union verges on with the terms of the reasoned not in! That’s definitely my proceedings against Italy for being the first member state to opinion, the commission must view on it. non-implementation of the Allué be fined for discrimination’, soon decide on referral of its Geraldine Kelly, Geraldine case law. The infringement but concluded that ‘Italy’s enforcement procedures to the Kelly and Co, Solicitors proceedings, with their intransigent behaviour clearly court and the recommendation They may do requirement of dialogue and leaves the commission with of an appropriate fine. The so, but I negotiation with member states, little choice’. A follow-up letter eventual case is unlikely to be haven’t take time. In his from Proinsias De Rossa decided before 2006, 19 years personally recommendations to the Court showed how the Italian state’s from the first referral to the come across of Justice in February 2001, intransigence put it at odds Court of Justice. it. And I don’t believe I have advocate-general Geelhoed was with its own judiciary – the In a recent report on free reached a glass ceiling. scathing of the duration of the local Italian courts have movement of workers, the Helen Sheehy, Sheehy discrimination. The subsequent consistently awarded foreign commission wrote that parity of Donnelly, Solicitors June 2001 judgment in lecturers their full rights under treatment ‘is perhaps the most I think that in Commission v Italy accepted his article 39. important right under the past it recommendations in full, community law, and an essential was true, and finding yet again that Italy’s Just one cornetto element of European I think I was discriminatory treatment of The foreign lecturers in Italy citizenship’. It is tragic that an discriminated foreign lecturers violated are part of the first generation intransigent and protectionist against article 39. of Europeans to move to work member state can avoid its myself. But I qualified in the 1970s and Article 228, introduced under in another member state. I obligations under article 39 for things were very different. the Maastricht treaty, empowers believe our e-group archive of so long. G Younger people may not the Court of Justice, upon messages will in time be seen as realise how bad things were. application by the commission, an important social document, Henry Rodgers teaches English at I think that, particularly in the to impose financial penalties on showing how a category of non- La Sapienza University in Rome. public sector, women are treated quite fairly. Rosalind Hanna, CIE solicitor

It is very apparent. I think that cial activism revisited if a woman wants to be successful judiciary (page 14). It dealt with Ireland. The eminent American judges as ‘interstitial in the profes- an important issue: where do judge, Oliver Wendell Holmes, legislators’, filling the gaps and sion, she has to get a the politicians end and the wrote that if the people of the crevices in the legislation – but reputation for being com- judges begin? United States wanted ‘to go to no more. pletely ruthless. In court, you can see the way that women hell’, it was his duty as a judge Professor Gwynn Morgan solicitors are treated by male No more big gaps to help them get there. No applauded the current barristers or solicitors. This is an old dilemma, and exaggerated judicial activism Supreme Court for effectively Emma Coffee, trainee one that is not unique to there! He saw the role of deciding that major socio- solicitor

9 Law Society Gazette November 2003 Viewpoint economic issues should be left individual and that the courts to the politicians, who can see were custodians of these rights’. the relevant issues from a Mr Justice Kelly noted that wider perspective than the orders against the administrative court can. He approves what branch of government would he sees as the court taking a not be made lightly due to the significant turn away from the need to respect the separation of individual in favour of the powers as provided for in the community. constitution. The basic rules of when the In the 2000 case of TD v courts should and should not Minister for Education, Mr get involved were laid down by Justice Kelly made a similar Mr Justice Costello in O’Reilly order in respect of the v Limerick Corporation (1989). construction of a number of In this case, travellers sought a other high-support units for mandatory injunction children at risk. He said that requiring Limerick the court was trying ‘to fill the Corporation to provide them vacuum which exists by reason with adequate, serviced halting of the failure of the legislature sites. The judge ruled that it and executive’. was up to the government to But in 2001, the Supreme decide how it allocated Court overturned Kelly. ‘If resources. citizens are taught to look to He explained that the courts the courts for remedies for would be abrogating to matters within the legislative or themselves the role of the executive remit, they will government in seeking to progressively seek further order how taxpayers’ money remedies there and should be spent. This would be progressively cease to look to ‘distributive justice’ – that is, the political arm of allocating common goods. By In a significant contribution to protect the health of prison government’, according to Mr contrast, ‘commutative justice’ this debate, barrister and inmates but that it was not the Justice Adrian Hardiman. is concerned with the academic Paul Anthony proper role of the court to So where are we now then? distribution of resources McDermott wrote in a recent direct the government on how Clearly, the Keane-led between individuals in a issue of The Irish jurist on The to allocate resources. The Supreme Court would appear relationship, and is indeed a State (C) v Frawley (1976) and decision was consistent with to carefully seek to interpret matter for the courts. two recent cases before the available precedents. the constitutional separation of Arguably the clearest and High Court, DB v Minister for However, by 1999, the powers and not usurp what it most broad-ranging discourse Justice and TD v Minister for situation was sufficiently regards as the role of the on the role of the courts vis-à- Education. extreme for a High Court judge government, as in the 2001 vis the executive is in Re: Frawley was an example of to push out the court’s Sinnott v Minister for Education Secession of Quebec (1998) how precedent as set down can frontiers. In DB v Minister for case, while fending off excesses before the Canadian Supreme operate so as to deprive Justice (1999), Mr Justice Peter by the legislature as in the Court. The court identified litigants whose constitutional Kelly held that the applicant, a 2002 Abbeylara case of Maguire three clear grounds on which a rights have been breached of a young offender requiring v Ardagh, when the Oireachtas’ court may (and perhaps remedy. The applicant was a secure accommodation in a committee’s powers were should) refuse to address an prisoner in Mountjoy prison. high-support unit, was entitled curtailed. issue on the basis that it was He sought an order of habeas to an injunction directing the non-justiciable. corpus on the basis that he was minister to provide funding for Goldilocks and the forebears The three grounds outlined not getting adequate treatment. such a unit. Where jurisdiction is accepted were: He suffered from a sociopathic The judge quoted former and judicial decisions are taken, • If to take on the case would personality disturbance and chief justice Cearbhall there seems to be a consensus take the court beyond its repeatedly swallowed metal Ó’Dálaigh in the 1965 case of emerging that there is a swing own assessment of its proper objects. His ‘treatment’ The State (Quinn) v Ryan, when away from the rights of the role included that he was kept in he said that ‘it was not the individual towards protecting • If the matter was outside the solitary confinement and intention of the constitution in the rights and assets of the court’s own area of occasionally detained in the guaranteeing the fundamental community. This is consistent expertise, or Central Mental Hospital. rights of the citizens that these with the principle that the • If the issues were too The then-president of the rights should be set at nought courts should not simply apply imprecise or if there was not High Court, Mr Justice Finlay, or circumvented. The intention logic and precedent as enough information on accepted that the state was was that rights of substance hermetically-sealed and handed which to base a decision. under a constitutional duty to were being assured to the down from defunct forebears

10 Law Society Gazette November 2003 Viewpoint and by-gone eras of different course, both the golden rule topics. Judicial review is now social and economic climates. and the mischief rule would be easily the fastest-growing area It is difficult to see how any adopted if the literal rule in litigation, with the courts complaints of over-zealousness would lead to absurdity or being asked to rule on a variety that might be made against the inconsistency and involve the of decisions by various public modern Irish judiciary could court giving words in a statute bodies. The range stretches be sustained. From the Frawley their ordinary meaning and from immigration applications case in 1976 through the suppressing the mischief as to schools to criminal law O’Reilly travellers case in 1989 sought. procedures. to such cases as MacMathuna v But, essentially, Irish judges Judicial activism in Ireland Attorney General (1995), where have not deviated from the was perhaps kick-started in the the Supreme Court decided dicta of Mr Justice Budd in halcyon days of the Ó’Dálaigh that it could not order the Rahill v Brady (1971), when he Supreme Court, confirming Oireachtas and the said that ‘in the absence of citizens’ unenumerated government on how they some special technical or Pat Igoe: judiciary being called constitutional rights, including provide financial assistance to acquired meaning, the on to fill the void the right to sue the state and to citizens, the courts have language of a statute should be protect their good name. The adopted a careful ‘render unto construed according to its be looked at in order to see pendulum may be swinging Caesar’ approach. ordinary meaning and in what the objects and intention back in favour of the Traditionally, the courts accordance with the rules of of the legislature were’. community and a reluctance by look at legislative provisions grammar’. He added that the courts to ‘step into the using one of the three rules of ‘while the literal construction Pit and the pendulum breach’ left by the interpretation – what the generally has prima facie Meanwhile, the courts have government. G textbooks call the literal rule, preference, there is also a never been busier. More judges the golden rule, and the further rule that, in seeking the are being appointed and the Pat Igoe is principal of the Dublin mischief (that is, the avoidance true construction of a section courts are being asked to rule law firm Patrick Igoe and thereof) rule. Essentially, of of an act, the whole act must on an ever-increasing breadth of Company.

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11 Law Society Gazette November 2003 Cover story Babes in t Juvenile crime is a growing issue in more ways than one. The Children Act, 2001 is the latest legislative attempt to get to grips with the scourge of problem children and those with special needs. Geoffrey Shannon looks at how the act deals with kids who fall foul of the law

he Children Act, 2001 is the culmination • Family of three decades of debate, and attempts conferencing to put in place a modern statutory • Children in framework for dealing with juvenile garda stations justice. The act reflects a rights-based • Parental T approach to youth justice, imported in large measure responsibilities from international examples. Among other measures,

MAIN POINTS it provides for family welfare conferences and special care orders (see panels) to deal with unruly children or those children with special needs. It also introduces a comprehensive strategy on restorative cautioning. Broadly speaking, the 2001 act supports the philosophy that children in conflict with the law must be treated as children first. It is based on the premise that detention should be used only as a last resort and should only be considered after a range of community-based measures have been exhausted. The 2001 act repeals the Children Act 1908 and was signed by the president on 8 July 2001, but several of its provisions are not yet in force. While it signals a movement towards a more progressive juvenile justice system, it certainly has a number of significant shortcomings. For example, the act does not acknowledge the socio-economic context that encourages deviant behaviour in children; instead, it sees the family as the primary cause. Sections 111 to 114, for instance, attempt to sanction failed parenting (see below), but a similar approach is not adopted when the state is fulfilling a parenting role. In fact, although the state as a parent has had a disturbing history, it is effectively immune from prosecution. There is a real question of double standards here.

Children in need The Children Act, 2001 amends the Child Care Act, 1991 by inserting a new part IV(a). The 1991 act was widely criticised for failing to make provision for

12 Law Society Gazette November 2003 Cover story the hood secure placements for unruly children in need of Court, Kelly J, 25 February 2000). Before this, care. The High Court partly filled the gap, using unruly children could only be detained by being its inherent jurisdiction over children to order charged with an offence so that the courts could have secure detention (FN v Minister for Health (1 IR jurisdiction over them. 409 [1995]); DB v Minister for Justice (1 IR 29 The new approach was sanctioned by the [1999]); and TD v Minister for Education, Ireland, the Supreme Court in DG v Eastern Health Board (1 Attorney General, the Eastern Health Board and the ILRM 241 [1998]). There, the court ruled that Minister for Health and Children, unreported, High although the High Court’s jurisdiction involved the deprivation of the child’s right to liberty, this was justified by the requirement that the child’s welfare be promoted as a paramount consideration. The Supreme Court decision in DG v Eastern Health Board was subsequently appealed to the European Court of Human Rights, which issued its judgment on 16 May 2002. The case challenged the legality of detaining in St Patrick’s Institution a 16- year-old non-offending child with serious behavioural problems. Article 5 of the European convention on human rights and fundamental freedoms guarantees the right to liberty and security, though this is not an absolute right, and allows for ‘the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority’. Article 5 has been invoked in cases involving disturbed children, for whom there are at present insufficient high-support units in Ireland and where, in many cases, these children are held in penal institutions for want of appropriate accommodation. The European Court held that the detention of the child in St Patrick’s Institution in DG was in contravention of rights guaranteed under the convention. The court ruled that the Irish state acted unlawfully in failing to provide the disturbed child with a safe, suitable therapeutic unit and upheld the claim that the child’s human rights were violated and his right to compensation under the convention denied. It noted, in particular, the fact that St Patrick’s was not ‘an interim custody measure for the purpose of an educational supervisory regime which was followed speedily by the application of such a regime’. It is unlikely that the European Court’s judgment

PIC: EVERETT COLLECTION/REX FEATURES in DG will impact on the constitutionality of special

13 Law Society Gazette November 2003 Cover story

matched by financial resources, aimed at enhancing the number and quality of suitable places available for such children.

Cops and robbers The 2001 act raises the age of criminal responsibility from seven – the lowest age in Europe – to 12 years of age. This means that children under the age of 12 will no longer have the capacity to commit offences. Part 6 of the act deals with the treatment of child suspects in garda stations. It obliges the gardaí to have due regard to the dignity of children and their vulnerability because of their age and level of maturity. This part of the act, with the exception of Fagin, with his sections 59 and 61(1)(b), came into force on 1 May bunch of loveable, care orders, given the wide interpretation afforded last year. It says that a detained child must be kept singing petty criminals by the European Court to educational supervision. A separate from a detained adult and must not be kept relevant and instructive case is that of Koniarska v in a cell, unless there is no other place available. UK (European Court of Human Rights, judgment of When a child is arrested, he must be informed of 12 October 2000), where the court held that placing the details of the alleged offence in language a child in secure accommodation was not contrary to appropriate to his age and understanding and told the convention as it amounted to ‘educational that he is entitled to consult a solicitor and that his supervision’ within the meaning of article 5. parent or guardian has been notified. If the parents Section 16 of the 2001 act is unfortunately vague. cannot or will not attend, the child is to be told of There is, for example, no satisfactory definition of his ‘entitlement to have an adult relative or other ‘substantial risk’, or of ‘health’, ‘safety’, adult reasonably named by him or her given the ‘development’ or ‘welfare’. Without further information specified in (section 58(1)(a)) and clarification, the precise meaning of these terms will requested to attend at the station without delay’. have to be worked out on an ad hoc basis in the The act also sets out in detail how gardaí must courts. The fact that such provisions lie in the conduct their interviews. A child cannot be middle of a criminal justice act is also worrying. interviewed unless his parent or guardian is present. Modern legislation, by contrast with the Children Act But significantly, section 61(4) allows the garda in 1908, deliberately separates child care proceedings charge of the station to remove an adult from from juvenile criminal proceedings, the obvious logic where a child is being questioned or where a being that action seeking to promote the welfare of written statement is being taken if he has the child should at all costs avoid ‘criminalising’ him. reasonable grounds for believing that the conduct It is at least arguable that the provision for special of the adult amounts to an obstruction of the care orders should have been contained in a separate course of justice. amending act. Section 61(7) defines parent or guardian as The creation of a formal duty to make special including the adult reasonably named by the child provision for troubled youth in care is welcome. It is under section 58. In the absence of the parent or hoped that this legislative reform, however, will be guardian or the other adult reasonably named by SPECIAL CARE ORDERS The Children Act, 2001 introduces a ‘special care order’, designed to with behavioural problems who are the subject of special care orders provide for children in need of special care or protection. This part of and child offenders are to be placed in separate residential the act is to be commenced by the end of the year, with the exception accommodation. Part 11 will come into effect later this year. of section 23(d), which provides for an emergency special care order, As with care orders and supervision orders, only the health board – allowing the gardaí to deliver a child into the care of the health board. the statutory body with responsibility for promoting the welfare of The concept of special care orders is imported from New Zealand and children at risk – can make the final decision on whether to apply for a is designed to maximise the use of the child’s social and family special care order. However, the parents of a child may request the support networks at a time of crisis in his life. health board to make such an application. If the board refuses, it The philosophy behind the 2001 act is that the application for a must inform the parents in writing. special care order should be used only as a last resort. Before Once made, the order has the effect of committing the child to the applying for the order, the relevant health board must arrange for a care of the health board that has applied for the order. The child is to family welfare conference. The board may still wish to proceed with an be kept in a special care unit for a specified period of between three application for a special care order. If so, the views of the Special and six months. During this time, the board is required to provide for Residential Services Board, established in part 11 to co-ordinate the care, education and training of the child. On the expiry of the residential services for children placed in special care units or order, the board can apply for an extension, but only where the detained in detention schools, must be sought. Non-offending children conditions that gave rise to the original order still exist.

14 Law Society Gazette November 2003 Cover story FAMILY CONFERENCES The Children Act, 2001 provides for three types of conferencing. The second type of conference is the garda conference. Part IV of The family welfare conference, provided for in part 2, is to be the 2001 act places the garda juvenile liaison scheme on a statutory convened by the health board. It deals with young people who are not footing and renames it the diversion programme. The garda offenders but whose behaviour presents a serious risk either to conference has been in force since 1 May 2002. It is convened by the themselves or others, and children before the court for their criminal Garda Síochána, and involves the formulation of an action plan for the behaviour but whom the court considers may need care and child. It provides an opportunity to confront the child with the protection. consequences of his offence in the presence of the victim and allows A family welfare conference must be convened before the board the child to apologise and make reparation to the victim. It will provide can apply for a special care order. It provides a framework by which a a forum for the child, his parents and other family members, possibly child, his family and appropriate agencies can find solutions to the other interested parties and, where appropriate, the victim to discuss problems that have led to the child being vulnerable. One of the most the child’s offending and the reasons for it. significant and progressive elements of the family welfare conference The third type of conference is a family conference, which is is that children will be present at the conference. convened under part 8 of the act by the Probation and Welfare The basic purpose is to produce a plan for the future care, Service where a child is charged with an offence and the court protection and development of the child. This will involve the family considers that a family conference is desirable. The conference is taking responsibility for the child and coming up with proposals for the court-supervised and enforceable. The principle is that the child is plan with the assistance of the professionals attending the best looked after within his own family. The family conference is not conference. yet in force. the child, the garda in charge can nominate another The former Juvenile Court has been abolished. adult. The act supplies little guidance as to what In its place, section 71 of the 2001 act establishes a ‘reasonably named’ means. This is likely to cause new Children’s Court, which will now deal with confusion and affords a wide discretion to the garda anyone under the age of 18. The Children’s Court in charge of the station in deciding whether to has been given a new central role in implementing allow the adult named by the child to attend the the restorative justice provisions in the 2001 act. interview. A parent or guardian must be given a copy of the Up before the break charge sheet and is to be notified in writing, as Part 8 of the act allows the court to adjourn the soon as practicable, of the date of the child’s first criminal proceedings where it considers that a appearance in court. child’s real problem is a need of care or protection. Sections 70(b) and (c) of the 2001 act allow the In such cases, the local health board will be minister for justice, equality and law reform to make directed by the Children’s Court to convene a regulations governing the role of any of the adults family welfare conference in respect of the child present at the interviewing of children in garda and report back to the court on what action, if any, stations. These regulations will provide useful it intends to take. Following the outcome of the guidance as to whether the adult present during the family welfare conference, the court will have the questioning of the child is there to ensure discretion to dismiss the charge against the child. procedures are complied with, to ensure the child is In this jurisdiction, remanding young offenders properly treated or to offer support to the child. in custody has been the subject of considerable

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Bank of Ireland Asset Management Limited, 40 Mespil Road, Dublin 4. Tel 01 637 8000. Fax 01 637 8100. www.biam.ie BIAM Group • AUSTRALIA • CANADA • GERMANY • IRELAND • JAPAN • JERSEY • UNITED KINGDOM • UNITED STATES Bank of Ireland Asset Management Limited is authorised by the Irish Financial Services Regulatory Authority under the Investment Intermediaries Act, 1995. Investment values can fluctuate. ASM 5783 10/03 Cover story debate due to the fact that children on remand have This provision, which enables the court to compel been mixed with children being detained. Section parents to pay compensation to the victim of an 88(5) of the 2001 act is to be criticised in that it offence committed by their child, seeks to bring empowers the minister for justice, equality and law home to parents the fact that their responsibilities reform, with the agreement of the minister for extend to the consequences of their children’s education and science, to designate as a junior actions. In similar fashion, the courts can order the remand centre any place (including part of any parent or guardian of a child offender to enter into children’s detention school) which in his opinion is a recognisance to exercise proper control over the suitable for children who are remanded in custody. child. If the remand centre is part of a children’s The use of parental control mechanisms in the detention school, it is difficult to see how children Children Act, 2001 demonstrate a reluctance to on remand can be kept apart from those in acknowledge the social context that contributes to a detention. child’s delinquent behaviour, such as poverty, drug Parents are required to attend all stages of addiction or disadvantage. proceedings in court where a case is being heard The provisions in the Children Act relating to against their child (section 91). Failure by the parents family welfare conferences and the juvenile liaison or guardians to do so without reasonable excuse will scheme (which has been restructured and renamed be treated as if it were contempt of court. the diversion programme) are positive steps Part IX of the act sets out the powers of a court forward. The latter introduces a system based on on finding a child guilty. Those powers must be restorative justice. The benefits of restorative exercised in accordance with the principles set out justice are well documented, providing, as it does, in section 96 of the 2001 act relating to the exercise an opportunity to turn young offenders away from of criminal jurisdiction over children, one of which crime. Replacing the categorisations of is the need to adopt and implement alternatives to reformatories and industrial schools with children formal criminal prosecution, wherever possible, in detention schools, under the control of boards of order to divert young offenders away from the management, and the establishment of a special criminal justice system. residential services board to co-ordinate the provision of care for children in detention are all Bringing it on back home evidence of a more long-term approach to solving The Children Act, 2001 imposes responsibilities and the problem of youth crime. obligations on parents to participate in their The 2001 act has enormous potential, but that children’s welfare. Under section 111, the court potential will only be realised with adequate may make a parental supervision order. This gives resources. In this regard, the delay in implementing the court the power to instruct parents to undergo the early intervention sections of the act, and in treatment for substance or alcohol abuse and/or to particular part 2 of the 2001 act, is to be regretted. attend a course in parenting skills. Failure to Early intervention is critical to the success of the comply with a parental supervision order can be Children Act, and means galvanising resources and treated as contempt of court. proper care plans for families in crisis, while children Parents can be ordered to pay compensation are still of an age to be rescued from permanent instead of their child. Before making a alienation. G compensation order, the court must be satisfied of the parents’ ability to pay and that a wilful failure Geoffrey Shannon is the Law Society’s deputy director of on the part of the parents to take care of or control education and author of Children and the law (Round their child contributed to the child’s offending. Hall, 2001).

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17 Law Society Gazette November 2003 Legal costs OVER THE HILLS A House of Lords’ decision has implications for the issue of assessing solicitors’ costs in England and Wales. Tom Murran contrasts the system in that jurisdiction with the Irish position

n the July/August 2002 edition of the Gazette, • Solicitor-and- taxing master James Flynn wrote about the client costs legal basis for ‘solicitor-and-client’ costs and • Legislation in ‘party-and-party’ costs. He said that ‘there is a England and mistaken impression among some solicitors Wales I that a solicitor-and-client fee is chargeable in every • Callery v Gray case. Quite to the contrary is in fact the case’. MAIN POINTS It is not my intention to comment on the views expressed by the taxing master (which must, of necessity, be of persuasive, if not binding, authority), but rather to look at the system in the neighbouring jurisdiction in light of the law lords’ judgment in the case of Callery v Gray on 27 June 2002. In England and Wales, the Access to Justice Act 1999 (building on the Courts and Legal Services Act 1990) ‘introduced a new regime for funding litigation, and in particular personal injury litigation’ (paragraph 2, Callery v Gray). Before this legislation, legal aid provided out of public funds was the main source of funding those of modest means to make or defend contemplate incurring the costs of contested claims in the civil courts. litigation. There was no access to the courts for them’ As time passed, the defects of the legal-aid system (paragraph 1). became more and more apparent: ‘While the scheme According to Lord Bingham, the 1999 act had served the poorest well, it left many with means above three aims: a low ceiling in an unsatisfactory position; too well-off •To contain the rising costs of legal aid to public to qualify for legal aid, but too badly-off to funds CALLERY V GRAY The case was a straightforward personal injury claim. On 2 April 2000, including the premium of stg£350 plus VAT on the ATE insurance policy. Callery was injured as a passenger in a car when it was struck from the On assessment of the costs in the first instance, district justice side by Gray’s car, which was insured by Norwich Union. He consulted Wallace fixed costs at stg£1,941 (including VAT) and ordered that costs his solicitors and the following is the sequence of events: of the assessment be paid. The costs award included a success fee of • 28 April: he instructed his solicitors, Amelans, and signed a CFA that 40% and the ATE premium. Norwich Union appealed to Judge Edwards provided a success fee of 60% on the basis that the 40% success fee was too high, and, on a further •4 May: he took out an ATE insurance policy with Temple through his appeal, it was held by the Court of Appeal that the appropriate uplift solicitors for a premium of stg£367.50, inclusive of VAT would be 20% rather than the 40% ordered by the lower court in •4 May: his solicitors wrote to the defendant intimating a claim on his respect of the success fee. behalf Ultimately, the House of Lords had to determine whether the Court of • 19 May: Norwich Union wrote to his solicitors admitting liability Appeal was correct: a) in allowing a success fee of 20% in what was, by • 12 July: Amelans offered to accept stg£3,010 plus costs common consent, a very low risk case; and b) in allowing a premium of • 24 July: Norwich Union counter-offered to settle at stg£1,200 stg£350 for an ATE insurance policy taken out before the claimant had •7 August: settlement was agreed in the sum of stg£1,500 plus issued proceedings and, indeed, before the defendant insurers were on costs. notice of the claim. While the view of the House of Lords was not unanimous (four to There followed a dispute about costs, which were submitted by Amelans one), and almost all law lords expressed some reservations, the court in the sum of stg£4,709.34 inclusive of outlays and disbursements, refused to interfere with the decision of the Court of Appeal.

18 Law Society Gazette November 2003 Legal costs S AND FAR AWAY claimant who enters into it from having to remunerate his lawyer if the claim fails’.

After-the-event insurance A CFA does not protect the claimant from the risk that, if litigation is commenced, he may find himself ordered to pay the costs of the defendant. In order to protect himself from that risk, he may take out after-the-event (ATE) insurance. A typical ATE policy indemnifies the claimant up to an agreed figure against an order for costs awarded against him and indemnifies him for disbursements paid out by his own solicitor in unsuccessful litigation. A noteworthy feature of the policy in Callery was that the premium would not become payable until the conclusion of the case. Furthermore, the recoverable amount of the premium would be so much as might be successfully recovered by the claimant from the paying party. So a CFA is a ‘no foal, no fee’ arrangement between the claimant and his solicitor with a success fee built in, and an ATE is also a ‘no foal, no fee’ agreement between the claimant and his insurer with a guarantee that his insurer would pay any costs awarded against him. Under this regime, the claimant who makes •To improve access to the courts for members of the appropriate arrangements can litigate without any public with meritorious claims, and risk and a lawyer participating in those arrangements •To discourage weak claims and enable successful is rewarded for the risk undertaken by him by way of defendants to recover their costs in actions brought the success fee. Not only is this lawful, but it is against them by indigent claimants. actually encouraged by the legislature as part of its policy to help achieve the three aims outlined above. Pursuant to the first of these aims, publicly-funded While undoubtedly there is no statutory basis for assistance was withdrawn from run-of-the-mill a success fee in this jurisdiction, a success fee based personal injury claimants. ‘The main instruments on a percentage of the award, or indeed a percentage upon which it was intended that claimants should rely of the claimant’s costs, would appear to be ruled out to achieve a second and third of these aims … are by section 68 of the Solicitors (Amendment) Act, 1994. conditional fee agreements and insurance cover Nevertheless, the Callery case does raise the obtained after the event giving rise to the claim’ interesting question as to whether or not in this (paragraph 68). jurisdiction a solicitor for a claimant is entitled to any reward for the risks undertaken in effectively acting Conditional fee arrangements (CFAs) for the claimant on a ‘no foal, no fee’ basis, as most The Callery judgment continued: ‘A feature of a CFA solicitors do. If there is to be any reward for is that, if the claim fails, the lawyer … receives no undertaking this risk, is the defendant obliged to pay remuneration but, if the claim succeeds, the lawyer it or is it a charge that properly belongs as a solicitor- becomes entitled not only to the normal fee for his and-client item? If so, on what basis is it computed? services but also to a success fee, calculated as a If, on the other hand, the instruction fee contains percentage of the normal fee. The percentage uplift no element of reward for risk undertaken, then is it ... must not exceed 100% of the normal fee. not something that we as a Law Society should look ‘The logic of the success fee is that its size will for, in the interest not only of impecunious claims but reflect the risk the lawyer is incurring in taking on also of properly rewarding us for risk undertaken? G the case. The more difficult the case and the less clear that the outcome will be a successful one, the Tom Murran is a member of the Law Society Council and higher the percentage uplift that can be justified; is managing partner with the Waterford firm Peter and, of course, vice versa. The CFA protects the O’Connor & Son.

19 Law Society Gazette November 2003 International NO LONGER

As Poland prepares to take its place as a member of the European Union, members of the society’s EU and International Affairs Committee were invited to Warsaw to begin a programme of co-operation and mutual assistance with their Polish counterparts. Hugh O’Donoghue reports on this show of solicitor solidarity

he EU and International Affairs Committee may not be as well known, • Structure of nor its activities as widely appreciated, as the Polish legal other Law Society committees. This may profession Tbe understandable, as the committee’s • Constitutional remit has not traditionally been of foremost history relevance to the daily concerns of the average Irish • Mutual solicitor. recognition of But now it’s a different story: international law, qualifications

including EU and human rights law, is a rising star MAIN POINTS

20 Law Society Gazette November 2003 International POLES APART

the same time, the enforcement of court judgments across national frontiers is now a more familiar chore in the life of a general practitioner. Bearing in mind the committee’s role in fostering relations with other bars, and given the growing importance of EU and international law, it frequently happens that the committee responds to other law societies who request co-operation and assistance. The course of lectures in company law to South African lawyers last year (see Gazette, May 2002) is one example. An approach from the Warsaw Chamber of Legal Advisors earlier this year fell into the same category. The proposal was that the Warsaw bar and the Irish Law Society begin a programme of co-operation and mutual assistance, sharing common know-how and experiences. As a result, the Warsaw lawyers suggested a series of lectures on European law for the benefit of their qualified lawyers and trainees. No doubt they had in mind the proposed accession of Poland to the EU in May 2004. In all, six lectures were suggested and committee members delivered the first of the proposed talks in June. The Chamber of Legal Advisors in Warsaw is part of the statutory architecture of self-government designed for legal advisors. Advocates – the other branch of the profession – have a separate organisational structure. Chambers are organised on a regional basis and – like law societies elsewhere – have responsibility for practitioners within their area. They also have a disciplinary function. However, it is their role in organising professional training that brought them into contact with the Law Society earlier this year.

PIC: AVIKAINEN/REX FEATURES PIC: AVIKAINEN/REX Polishing your knowledge Scales of justice: the mermaid Before being admitted as a trainee legal advisor in of the legal family. European law provides us with Syrenka, emblem Poland, candidates must have a basic law degree the most obvious example of this ascendancy. Not of Warsaw from either a Polish or a compatible non-Polish only is knowledge of aspects of public international university. The entrance exam for the Warsaw law now indispensable to Irish lawyers, but the reach professional course is considered to be extremely of a typical practice has also expanded beyond daunting: the success rate is approximately 15%. national boundaries. How many solicitors have not Candidates must also be of good character, with had an enquiry from a client buying property no history of criminal convictions and have full legal abroad? Most solicitors will also have had a client capacity and civil rights. They must be fluent in who has had an accident while travelling or who may Polish and must undergo a three-and-a-half-year be involved in a dispute beyond national borders. At professional course and pass the requisite exams.

21 Law Society Gazette November 2003 International PIC: ISOPRESS/REX FEATURES Big stone lions have been terrorising the centre of Warsaw for years

the first talk would give an introduction to Irish law AND INTERNATIONAL and the Irish legal system. THE EU AFFAIRS COMMITTEE The Polish lawyers who attended were both qualified and trainees. They were particularly The committee has existed for over 40 years. It currently consists of ten solicitors interested in the Irish constitutional story and how it and meets once a month. Wendy Hederman is the current chair and Bríd Moriarty, related to common law. They were also interested in the sole barrister, is secretary. how fundamental rights may be restricted or even The duties of this non-standing committee are to advise the president and circumscribed in Ireland in the interest of the Council of the Law Society on European law and transnational juridical common good and especially how the courts have developments. The committee also has the function of informing the profession of explained these limitations of rights. They also current international legal developments and achieves this through seminars and learned about the jurisdictional structure of our publications. The European law healthcheck is now a hardy annual in the diary of courts and received an outline of the doctrine of the profession. The Eurlegal section of the Gazette is also part of the process. The precedent. Finally, the first lecture dealt with the way committee also aims to foster relations with legal professions in other countries. that qualified lawyers in the European Union may practice in Ireland, the regulations in force at present The course consists of both formal training/lectures, and the practice adopted by the Law Society in and time spent in professional offices. There are implementing the new rules. now nearly 650 trainees at various stages of professional courses in Warsaw. Return of the professor In June, Bríd Moriarty and I travelled to Warsaw The first talk was intended to prepare participants to deliver the inaugural lectures. The idea was that for the following specialist lectures on EC laws. The THE POLISH LEGAL PROFESSION Poland is served by two legal professions – legal advisors and legal advisors are the dominant profession. advocates. The allocation of their functions is more a result of Advocates do exactly what is says on the tin, and, by comparison, haphazard development than can be explained by systematic legal advisors are not allowed to practise in the family and criminal planning, the qualifications of the constituent members or the courts, with only rare exceptions. Litigation is not, however, rampant existence of distinct fields of competence. The professions overlap, in Poland and commercial litigation is uncommon. Legal advisors see even more so than in Ireland. their primary role as preventing the expense and hazard of litigation. In Poland, legal advisors largely correspond to solicitors, especially But the demarcation between the professions can often be blurred. as specialists in the broad field of commercial or business law. But This overlap has been accentuated by recent legislation, where both while in Ireland solicitors and barristers work as a team in litigation, may now represent economic and other entities as well as individuals. and barristers are engaged by solicitors as consultants of last resort, Moreover, legal advisors may now play a part in certain business- no such commerce between the two categories of the profession related criminal proceedings, though their role there is not co- exists in Poland. Both branches operate independently. If anything, extensive with advocates, whose field was traditionally criminal law.

22 Law Society Gazette November 2003 International SHARED CONSTITUTIONAL HISTORY The Poles, like us, have been at the vanguard of constitutionalism. drafting of what came to be known as the Saorstát constitution. More so for Poland, where the venerated constitution of 3 May 1791 But the shared constitutional experience runs deeper still in that is second only in time to the constitution of the United States of there is a seam of human rights values embedded in both the 1791 America and more or less contemporaneous but somewhat earlier than and 1921 Polish charters. For example, the constitutional right of the constitution of the Republic of France of 1791. The 3 May access to the courts (art 98), the right to property (art 99) ‘as one of constitution, cast as it was in the cauldron of Enlightenment ideas, the fundamental principles’, the inviolability of the dwelling (art 11), contained then what we now characterise as a bill of rights, a novelty freedom of movement (art 101), the right to dispose of one’s labour in the absolutist milieu created by dominant church and state that was (art 102), the rights of the child (art 103), freedom of expression (art then the rule throughout Europe. 104), freedom of the press (art 105), privacy (art 105), freedom of History repeated itself in Poland with the inauguration of the association (art 108), minority protection (art 110), freedom of religion constitution of the Polish Republic on St Patrick’s Day 1921. The and conscience (art 111), and the right to free primary education all structure and character, as well as the wording of the preamble of that parallel our own cherished constitutional freedoms. 20th century document, for example, displays striking correspondence Unhappily, neither the rights proclaimed by the 1791 or 1921 to the terms of the Free State constitution of 1922. Indeed, that very documents ever got the chance to be developed juridically by the same Polish document of 1921 was studied in the course of a courts, as Poland was overrun shortly after their commencement, first comparative evaluation of continental constitutions by the Free State by Germany and then by the Soviet Union during World War II, after government with a view to providing a working framework for the which Poland became a Soviet satellite. first of those was delivered by Bríd Moriarty, who triggered until Poland becomes a member of the spoke on the assimilation by the Irish legal system of EU. But now that accession is only a matter of the aquis communautaire. The talk ranged over a course following the recent referendum, we might broad range of European constitutional topics, in look, for comparison purposes, at the Polish particular the primacy of EU law in areas of requirements. community concern, summarised by Blaney J in First, the lawyer in question must be a national Meagher v Minister for Agriculture ([1994] 1IR 29), of, or entitled to pursue a recognised professional when he said: ‘It is well established that community qualification in, one of the EU states. Second, he law takes precedence over all domestic law. Where must know Polish. Third, he must pass an aptitude they are in conflict, it is community law which test to ‘evaluate the skills needed to practise the prevails’. profession of advocate or the profession of legal The lecture also covered the legal necessity for counsellor’. The test is in two parts, all conducted constitutional amendment to allow EU competence in Polish. One part examines the candidate’s over what would otherwise be exclusive Irish law. knowledge of the civil law; the candidate himself This feature of the Irish constitution is of direct selects the other. The oral part tests the lawyer’s relevance to the Poles, as they also operate a dualist knowledge of Polish professional rules and ethics. (or pluralist) approach to foreign law, evidenced by Candidates can only enter the oral exam if they the necessity for a recent referendum to authorise first pass the written. Should a candidate not the reception of EC laws by the Polish system. succeed at first, he may repeat the process one Now that the Polish people have agreed to more time after an interval of six months from the become part of the European Union, their legal first attempt. practitioners, like other European lawyers, will An important exemption from the need to do have a right not only to provide services but, more the aptitude test is extended to candidates who can significantly, to practise outside their own country prove that for three years they ‘pursued effectively and within other member states. Irish lawyers, of and regularly’ a practice in the law of the Poland. course, have the same reciprocal privileges to ply ‘Regular pursuit’, according to the legislation, is their trade in Poland. considered to consist of exercising the practice of Indeed, the lecture on the Irish legal system set law without interruption, other than those out the rules applicable in Ireland to lawyers from resulting from the events and requirements of other member states, particularly Polish legal everyday life. advisors. It will therefore be interesting to Irish A shared temperament and outlook, and a lawyers to learn that the Polish government (in common tradition in human rights, make the Poles contrast to the Irish authorities) has already and Irish compatible allies, as well as being likely prepared legislation to transpose the Establishment master builders of the emerging constitutional directive (98/5/EC) into law. The Polish approach, European Union. The recent initiative by the seen in their July 2002 act, is to embody the Warsaw bar and the Law Society was a significant Services directive (249/77/EC), the Mutual recognition first step in that process. G directive (89/484/EEC) and of course the far- reaching Establishment directive (98/5/EC) into one Hugh O’Donoghue is the principal of the Cork law firm piece of legislation. In Poland, the Establishment, HV O’Donoghue and a member of the Law Society’s EU Mutual recognition and Services directives will not be and International Affairs Committee.

23 Law Society Gazette November 2003 Taxation The CAT’s

The administration of capital acquisitions tax (CAT) is currently undergoing • Changes in CAT admin- the biggest shake-up since self-assessment was introduced in 1989. Declan istration Rigney explains the rationale behind the Revenue’s modernisation programme explained • Benefits to and outlines the benefits to practitioners practitioners • Finance Act, he reason for modernising the customer’s taxes and duties would be linked, so that 2003 administration of capital acquisitions tax the complete Revenue picture (including all taxes MAIN POINTS (CAT) is to provide a quicker turnaround and duties) for each customer would be managed. service to practitioners (and their clients) Tand to make it easier for the compliance requirements of the tax to be met. Revenue wants to see CAT become a modern, fully self-assessed tax: • Which is increasingly filed and paid over the internet using the Revenue Online Service (ROS) • Which is easier for the customer to understand • Where forms are processed quickly and non- judgementally for the compliant customer • Where the non-compliant customer is swiftly targeted and penalised • Which joins the other taxes in the Revenue-wide Integrated Taxation Processing information technology system, and • Which is audited using Revenue audit norms.

It is a vision that brings CAT administration into the 21st century. It will mean a move away from paper- based, judgemental forms processing into computer- based, self-assessed processing where new computer systems will help speed up the turnaround time for a case. For those filing through ROS, the system will provide prompts, do all the calculations required and give the bottom-line tax payable.

Self-assessment The ideal self-assessment system – which applies to all taxes – is to have a very simple return form (with no supporting documents) that would be sent in by the customer along with the payment of tax. The return and payment would be correct and would be processed quickly and non-judgementally and, ideally, both would be received in electronic form. The computations and supporting documents would be retained by the customer for a finite length of time in case of an audit. Information about every

24 Law Society Gazette November 2003 Taxation pyjamas

While there are certain constraints that preclude us from achieving this ideal, we feel that the changes CHANGES being introduced deliver substantial efficiencies for IN THE FINANCE ACT, 2003 both practitioners (and their clients) and for the Revenue. Section 146 of the Finance Act, 2003 introduced a In the past, a significant Revenue resource was number of changes to the CAT Consolidation Act tied up in judgementally examining each return, which will help to underpin the administrative issuing queries and, in a high proportion of cases, changes, particularly the move to true self- ‘repairing’ or perfecting the returns following assessment for gift and inheritance tax returns. The consultation with the customer and/or his agent. features introduced in the Finance Act are found in the other self-assessed taxes. The changes, brief details of which are set out below, were signed into effect by ministerial order in September.

Strengthened penalties regime Section 58 of the CAT Consolidation Act, 2003 is amended to increase the penalty for failure to deliver a return from a flat €2,565 to that amount plus an additional 100% of the tax due in respect of the return where the person acted negligently in not delivering the return. A higher penalty applies if the person acted fraudulently.

Obligation to retain records A new section 45A has been inserted into the CAT Consolidation Act which imposes an obligation on an accountable person to retain certain specified records (themselves or by someone on their behalf) in connection with a gift/inheritance tax return for a period of six years from the date the return was received by the Revenue.

Expression of doubt A new section 46A has been inserted into the CAT Consolidation Act which enables an accountable person to indicate on the IT38 return that he has some doubt as to the appropriate tax treatment of a particular item which is to be included in the tax return. The accountable person files the return and makes the payment based on his interpretation of the law. If any additional tax arises following a consideration of the matter at issue, the accountable person has 300 days after the resolution of the point to pay any balance of tax without incurring any interest penalty on that additional tax.

25 Law Society Gazette November 2003 Taxation OF USING ROS • Notify customers of returns selected for audit (and BENEFITS to complete these audits) more quickly.

There are many compelling reasons to file the IT38 and pay tax via ROS. The Overall, this will give an improved service to benefits for practitioners include: compliant customers. For IT38 forms returned using •All the calculations are done automatically, including business relief, the ROS, because there is less manual intervention farmer test for agricultural relief, double-taxation credits (a notoriously difficult involved, the turnaround will be quicker than where area) and the value of limited interest or joint life interest (the practitioner IT38 forms are returned in paper format, and this merely inputs the date of birth and the calculation is done immediately) should encourage the use of ROS. Nevertheless, the • When claiming any reliefs or exemptions, supplementary forms are not validation checks will be the same whether the required customer returns the IT38 form on-line or on paper. •On-screen prompts build the form dynamically in accordance with the Identical audit selection processes will apply to paper beneficiary’s individual circumstances (for example, if business relief is being returns and ROS returns, so filing under ROS will claimed, then the relevant fields are shown but, if not, these fields do not have no impact on the probability of an audit. appear) The non-compliant customer will be identified •In terms of the territoriality rules for capital acquisitions tax, ROS clarifies the quickly and will receive more detailed scrutiny. The CAT implications for gifted/inherited property where both the disponer and audit policy will be designed to target the cases of beneficiary are non-resident greatest risk. • Every field has associated help text (this is based on the Guide to completing the gift/inheritance tax return (IT38)). Benefits for practitioners • It apportions the liabilities and/or consideration between various benefits The benefits of the changes for practitioners include: • It saves time in a case where more than one beneficiary is taking the same • When filing the IT38 return and paying tax using share of an estate ROS, the system will provide prompts, do the • The print feature allows the practitioner to get a hard copy of what exactly calculations, lower costs, be quicker than filing the was filed for his records paper version of the return, and improve • It calculates the bottom-line tax and interest efficiency • It is guaranteed accurate and secure. • An expanded Lo-Call phone service (1890 20 11 04), which will be of particular use to sole practitioners who might deal with CAT only very occasionally • Redesigned Inland Revenue affidavit and IT38 forms which are much easier to use • An expression of doubt facility on the IT38 return which will enable genuine concerns to be identified •Two completely new booklets, the Guide to completing the gift/inheritance tax return (IT38) and the Guide to completing the Inland Revenue affidavit (CA24), which are fully comprehensive and provide detailed examples clarifying every area of complexity •More decisive case-processing through moving to greater self-assessment coupled with prompt audit •Much quicker turnaround of cases and the elimination of backlogs.

However, the modernisation will also mean that forms must be completed properly and the onus will This undoubtedly was a drain on the resources be on the customer to get it right. Returns that are required to process affidavits, returns and issue poorly or inadequately completed will not be certificates of discharge. Under the new approach, accepted for processing; they will be returned to the this will change and we will accept the payment and filer, which will lead to delays in finalising the case the details on the return as filed by the customer. and may give rise to the imposition of additional This change in approach, together with the penalty charges. There will also be a more rigorous development of computer systems to do much of the penalties regime for non-compliant customers. routine processing, will enable us to: • Issue certificates of discharge more quickly where Gift/inheritance tax return (IT38) the gift/inheritance tax return and payment are in The IT38 has been redesigned to make it easier to order understand and to complete. It now incorporates the • Move resources away from the current old IT41 (agricultural relief form) and the IT5 judgemental checking of forms to more focused (business relief form). The net effect is that three old compliance and audit of high-risk cases forms totalling ten pages have been combined to give

26 Law Society Gazette November 2003 Taxation CAT DIVISION CUSTOMER SERVICE BRANCH The work of the Customer Service Branch of the CAT Division has now The four regional teams deal with the following counties: been divided into four regions (previously five) and a team for each region will deal with the following matters in relation to gift and East/South Border/Midlands/ South West Dublin inheritance tax: East region West region region region •Processing of Inland Revenue affidavits •Processing of CAT returns Tel: 01 674 8196/ Tel: 01 674 8439/ Tel: 01 674 8592/ Tel: 01 674 8585/ • Issuing of certificates of discharge 674 8195 6748 689 674 8594 674 8688 • All matters relating to the collection of CAT. [email protected] [email protected] [email protected] [email protected] Carlow Cavan Clare Dublin These changes are immediately effective and are in anticipation of Kildare Donegal Cork Non-Irish the wider Revenue restructuring project, whereby the administration Kilkenny Galway Kerry domicile/ of CAT will be divided up between four Revenue regions and a Large Laois Leitrim Limerick resident Cases Division next year. Meath Longford Tipperary Louth The new regional structure is driven by the place of residence of Waterford Mayo the disponer, so, for example, if the disponer lives in County Cavan, Wexford Monaghan contact the Border/Midlands/West region team. Wicklow Offaly Practitioners should also note that general queries in relation to Roscommon gift tax and inheritance tax will continue to be dealt with by the Sligo Taxpayer Information Unit (tel: Lo-Call 1890 20 11 04) and should not Westmeath be directed to the teams.

one new IT38 form totalling six pages. In addition, when this stage has bedded down, is to look at forms used in the past to claim certain exemptions providing the certificate of discharge (CA11) and and reliefs will no longer be required. Instead, a Inland Revenue affidavit (CA24) on-line. claim for a relief or an exemption should be made on This is a multi-faceted project embracing a the IT38 return form and evidence supporting the number of different initiatives, but all aspects went validity of the claim to the relief/exemption should ‘live’ in September. Our revised approach to the be retained for a finite period (generally, six years). audit of CAT returns is fully operational and we The Inland Revenue affidavit CA24 form has also have become more active in imposing penalties for been changed so that it is easier to complete; it now certain categories of non-compliance. incorporates the revamped schedule of lands and While we appreciate that it will take time for buildings (CA6) for convenience. practitioners and customers to become familiar with our new approach, and we acknowledge that the On-line filing using ROS remainder of the year will be something of a The ability to file the IT38 and pay the tax on-line transitional phase for all of us, we hope that that using the ROS facility on the Revenue website (at practitioners will embrace the new arrangements as www.revenue.ie) represents a significant change in the soon as possible. G delivery of customer service for CAT return filers. It is the first stage in providing full electronic services Declan Rigney is responsible for the CAT modernisation for CAT; the next stage, which we will embark on project with the Revenue Commissioners.

Tel 01 872 8881 • Email [email protected]

27 Law Society Gazette November 2003 Probate Keeping it in

Solicitors are increasingly asked to advise personal representatives in cases where beneficiaries wish to redivide the will. In the second of three articles, Anne Stephenson discusses deeds of family arrangement and their sometimes unwelcome tax consequences

• Deeds of family arrangement • Succession Act, 1965 • Stamp duty and capital gains tax MAIN POINTS

‘Creatures crawl in search of blood, to terrorise y’awl’s neighbourhood’ – but that’s enough about probate lawyers

n the context of administration of estates, the the following questions, because if you don’t know phrase ‘family arrangements’ would apply to a what action is required to effect their wishes, you situation where the beneficiaries in the will or cannot advise correctly: the parties entitled on intestacy decide among •Will there be an assurance of all or any part of Ithemselves how the property is to be vested. the property by the personal representative to Where such arrangements are being considered, it is persons who are not beneficiaries? necessary to be extremely careful, to be clear, and to •Will there be an assurance of all or any part of document precisely what is taking place. the property by the personal representative and is Before attempting to give advice or draft such a that an appropriation under the will or under deed, it is important (as a minimum) to ask yourself section 55 of the Succession Act, 1965?

28 Law Society Gazette November 2003 Probate the POST-DEATH PLANNING FAMILY Practitioners need to be absolutely certain of all the taxes that can arise, taking into account what the beneficiaries wish to do. Above all, you need to be certain who will fund the tax. The funding of the tax in itself can constitute an additional gift. A family, in reaching an agreement, frequently forgets the issue of tax – and when it is explained to them, they are horrified that their ‘altruistic’ agreement will cost money. It is not unheard of for the deal to fall apart at this point.

Tom, Dick and Harry An example of a situation where a family arrangement might arise is where a testator leaves the family home to his five daughters as tenants-in- common in equal shares. One of those children is very successful, married, living abroad and decides to voluntarily release her share to three of the other beneficiaries. Another child wishes to sell her share to the same three beneficiaries. Such an arrangement would necessitate a deed of family arrangement involving a sale by one beneficiary of her share and a voluntary disposition by another beneficiary of her share to the remaining three beneficiaries. Under section 10 of the Succession Act, 1965, the personal representative will need to join in to assign the legal estate vested in him to the other three beneficiaries. Instead of joining the personal representative in the deed, the transaction could be effected by two separate deeds: first, a deed of family arrangement between the five beneficiaries; and second, an assent by the personal representative either in writing or under seal in favour of the three

PIC: SIPA PRESS/REX FEATURES PIC: SIPA beneficiaries who, by virtue of the combined operation of the will of the testator and the deed of family arrangement, became entitled to the entire •Will there be an assent of all or part of the beneficial interest in the premises. property by the personal representative? A deed along the lines of such a family •Will there be a gift by a person/persons entitled arrangement would be kept off the title and any to all or part of the property to persons who are purchaser dealing with the people named in the not so entitled? assent referred to would be entitled to rely on the •Will there be a sale by a person/persons entitled protection given by section 53(3) of the Succession to all or part of the property to persons who are Act, 1965 and should regard the assent as conclusive not so entitled? evidence that the person in whose favour it was •Will there be a tax liability by putting their given was the person entitled to have the premises wishes into effect? vested in him. The section states that ‘an assent or

29 Law Society Gazette November 2003

Probate CAPITAL GAINS TAX A second tax that should be borne in mind when advising on a deed of An example of this would be as follows: Helen Maguire dies on 1 family arrangement is capital gains tax (CGT). The CGT legislation is January 2003, leaving her company and her investments and other significantly more liberal than the capital acquisitions tax legislation in assets equally to her two children, Patrick and Danielle. By deed of this area. The question that is most frequently asked by practitioners family arrangement dated 6 June 2003, it is agreed with Helen is whether the disposition by the various parties gives rise to a CGT Maguire’s personal representatives that Patrick will take the company liability. and Danielle will take the shares and the other assets. This will not be Section 573(6) of the Taxes Consolidation Act, 1997 provides the regarded as a disposal for CGT purposes. answer. It states that there is no capital gains tax liability where a A CGT difficulty often arises when a family comes to the deed of family arrangement is made within two years of the date of professional advisor many years after the date of death to seek to death or such longer period as the Revenue may agree in writing. vary the terms of the will. In that event, CGT is a very real concern. There is a concession in such a case so that the dispositions made by Note that the Revenue may extend the period under section 573(6), the parties to the deed are deemed to be the deceased’s dispositions but this is a concession of the Revenue and must be applied for and (see the UK case of Marshall v Kerr [1991] STC686). obtained.

conveyance of unregistered land by a personal where a ‘submitted value’ is less than the value of the representative shall, in favour of a purchaser, be property. conclusive evidence that the person in whose favour Prior to the Finance Act, 1991 (which first the assent or conveyance is given or made is the person introduced the duty), some practitioners used to take who was entitled to have the estate or interest vested in the view that you had no obligation to stamp such him, but shall not otherwise prejudicially affect the deeds of family arrangement where a form of assent in claim of any person originally entitled to that estate or favour of the nominated party/parties was lodged in interest or to any mortgage or encumbrance thereon’. the Land Registry, on the basis that the personal Taxes to be considered in relation to deeds of family representative could be confident that the settlement arrangements are stamp duty (discussed below), capital would never need to be relied upon or, if relied upon, gains tax (see panel), and capital acquisitions tax and that it could be stamped at a late penalty. residential property tax (discussed in the final article in This view was always questionable. The reason this series). practitioners adopted this viewpoint in Land Registry cases (apart from not having to pay stamp duty) is Stamp duty because the Land Registry does not actually register The deed in the previous example would attract ad the deed of family arrangement. It is only concerned valorem stamp duty on the value of the one individual with the form of assent duly executed by the person fifth share conveyed by way of gift, and, assuming that named in the grant of representation. In other words, the consideration for the one undivided fifth share the Land Registry does not look behind the deed of conveyed by the second beneficiary represents the full assent but accepts it at its face value. It will register the value of that share, stamp duty is payable on that new owner in accordance with the terms of the assent consideration or alternatively on the full value of that (section 54(2) of the Succession Act, 1965 and section share, if greater. 61(3) of the Registration of Title Act, 1964). This section In each case, stamp duty will be payable at half the provides that ‘it shall not be the duty of the registrar, normal rate if the consanguinity certificate is included nor shall he be entitled to call for any information as as per paragraph 15 in schedule 1 of the Stamp to why any assent or transfer is or was made and shall Consolidation Act, 1999. There is a simple consanguinity be bound to assume that the personal representative is certificate in Revenue leaflet SD10, certificate 10. The or was acting in relation to the application, assent or deed will, of course, have to be adjudicated in the transfer correctly and within his powers’. normal manner and so the requirements in relation to The fact that the deed does not have to be sent to full disclosure to the Revenue Commissioners should the Land Registry persuaded some practitioners that it be noted. was not necessary to have it stamped. This practice still A duty is imposed on the practitioner to set out all prevails among some practitioners. the facts and circumstances affecting the liability of any It is clearly wrong now in the light of the provisions instrument to duty, either in the instrument or in a of part V of the Finance Act, 1991 and subsequent statement attached to the instrument. Penalties are legislation, and in particular the consequence of the incurred by anybody who fraudulently or negligently duty of disclosure now imposed on professional executes any instrument not containing all such facts advisors. and circumstances, and anybody employed in or Remember that even though the deed of family concerned in the preparation of any such instrument arrangement, duly stamped, is not produced to the who fraudulently or negligently prepares it shall also Land Registry, it still forms part of the title deeds to incur the same penalties. So a professional advisor will the property and must be retained. G be deemed to be negligent if he fails to take reasonable care. We must further note that section 15 of the Anne Stephenson is the principal of the Dublin law firm 1999 act sets out a surcharge that will be imposed Fallon and Stephenson.

31 Law Society Gazette November 2003 Mediation Alternative

Business-to-business arbitration has a long and successful history. Inspired by this success, the European Commission has developed an arbitration service for business-to-consumer contracts. Susan Reilly explains

n October 2001, the European Commission and and business in the ADR body which they choose to • Alternative member states established the European Extra- resolve their dispute, and the ADR body is dispute Judicial Network (EEJ-Net). The network aims recognised by the European Commission, which resolution to help consumers resolve their cross-border adds value to the body. • European Extra- disputes through alternative dispute resolution Judicial Network I (ADR) schemes. It operates through clearing houses • European located in each member state, as well as in Norway Commission and Iceland. recommendations The euro, the internet and cheap travel make it MAIN POINTS easier to shop across borders. To ensure consumer confidence when shopping in the internal market, it is crucial that cross-border consumer disputes can be handled effectively. The EEJ-Net was born out of the need to ensure that consumers have access to appropriate mechanisms for settling disputes with traders, without incurring the costs of going to court. The EEJ-Net aims to provide a communication and support structure to facilitate the work of ADR bodies across borders. It also addresses the practical obstacles that consumers face when using an ADR body in another country. Indeed, lack of information about foreign ADR bodies, linguistic and/or geographical barriers can make it difficult for consumers to introduce a case in the first instance. The network covers any dispute concerning goods and services – for example, problems with deliveries, defective products, or products or services that don’t fit their description. The clearing house provides consumers with information and support to introduce a case to an appropriate ADR scheme in the trader’s country of business. The network is made up of ADR bodies that comply with the recommendations on the principles for the bodies responsible for out-of-court settlement of consumer disputes (see panel overleaf).

If you’re not in, you can’t win In Ireland, the Department of Enterprise, Trade and Employment is responsible for recommending ADR bodies to the European Commission. The Irish clearing house works closely with the department to nominate suitable ADR bodies. The benefits of becoming a recommended ADR body are that it creates confidence for consumers

32 Law Society Gazette November 2003 Mediation remedies

In Ireland, there are six nominated ADR bodies In all, there are 444 recommended ADR bodies listed under the commission’s recommendations: throughout the European Union listed with the • ELCOM, the Electricity Supply Board European Commission. •Arbitration scheme for tour operators (Chartered Institute of Arbitrators) How has it worked? • Ombudsman for Credit Institutions In October 2002, the European Commission prepared • Centre for Dispute Resolution an interim report on the activity of the clearing •Insurance Ombudsman of Ireland, and houses. At the time, over 1,100 complaints had been • The Advertising Standards Authority for Ireland. dealt with. On 31 March 2003, the number of

33 Law Society Gazette November 2003

Mediation THE COMMISSION’S RECOMMENDATIONS In 1998, the European Commission adopted a recommendation on the be binding on the parties only if they were informed of its binding principles applicable to bodies responsible for the out-of-court nature in advance and specifically accepted this. The consumer’s settlement of consumer disputes. The principles set out under recourse to the out-of-court procedure may not be the result of a recommendation 98/257/EC are: commitment prior to the materialisation of the dispute, where such • Principle of independence. The independence of the decision-making commitment has the effect of depriving the consumer of his right to body is ensured in order to guarantee the impartiality of its actions bring an action before the courts for the settlement of the dispute • Principle of transparency. Appropriate measures are taken to ensure • Principle of representation. The procedure does not deprive the the transparency of the procedure. Provision of information, whether parties of the right to be represented or assisted by a third party at in writing or any other form, should be made available to all parties all stages of the procedure. involved on request • Adversarial principle. The procedure to be followed allows all the In April 2001, the 98/257/EC recommendations were followed by parties concerned to present their viewpoint before the competent recommendation 2001/310/EC, which clearly listed the principles for body and to hear the arguments and facts put forward by the other out-of-court bodies involved in the consensual resolution of consumer party, and any experts’ statements dispute. The principles set out under this recommendation are: • Principle of effectiveness. The effectiveness of the procedure is • Impartiality. This should be guaranteed by ensuring that those ensured through measures guaranteeing that the consumer has responsible for the procedure be appointed for a fixed term, have no access to the procedure without being obliged to use a legal conflict of interest with either party, and should supply information representative with regard to their impartiality to both parties prior to the • Principle of legality. The decision taken by the body may not result in commencement of the procedure the consumer being deprived of the protection afforded by the • Transparency. Information on ADR bodies, their procedures and the mandatory provisions of the law of the state in whose territory the cost of the services should be made available to the consumer body is established. In the case of cross-border disputes, the • Effectiveness. The effectiveness of the procedure should be decision taken by the body may not result in the consumer being guaranteed deprived of the protection afforded by the mandatory provisions • Fairness. The participants should be informed of their right to applying under the law of the member state in which he is normally withdraw from the procedure at any time. They should be able to resident in the instances provided for under article 5 of the Rome freely and easily submit arguments, and both parties should be convention of 19 June 1980 on the law applicable to contractual encouraged to fully co-operate in the procedure. The consumer obligations should be informed in clear and understandable language before • Principle of liberty. The decision taken by the body concerned may both parties accept the suggested solution. complaints and enquiries received by all clearing over ticket refunds. Eight cases were sent to ADR houses had already reached 2,182. In six months, bodies, four were closed unresolved when the there had been a 100% increase. consumers decided not to pursue the issue further, 32 In June of this year, the commission held a were resolved through direct contact with the conference in Brussels to mark the end of the EEJ- company by the clearing house, two were referred to Net’s pilot and consolidation phase. An activity FIN-Net (the financial services network), and 56 cases report was presented to representatives from the were closed unresolved due to the lack of relevant European Commission, clearing houses, European ADR bodies. consumer centres, government officials, ADR It is clear from these statistics that there is a bodies, business associations and the accession distinct lack of recommended ADR bodies in Ireland. countries. The European Commission wants consumers and The report took 1,336 cases into consideration and, businesses to be made aware of the existence and of this number, 956 were closed. Of these, 11% (107) added-value of ADR to help the greater resolution of were enquiries to the clearing house and resulted in disputes and increase confidence in shopping in the no further action. Over half resulted in settlement: internal market. 7% (66) resulted in a final solution reached by an The commission is also driving the network to ADR and 44% (422) were settled without an ADR bring awareness of the EEJ-Net and promote the resolution but by the direct intervention of the EEJ- clear benefits of the commission’s recommendations Net. Unfortunately, 38% (361) remain unsolved. to the ADR bodies themselves. It is for this reason There are various reasons for this – for example, no that the Irish clearing house would like to invite any ADR body was available and no amicable settlement legal professionals involved in ADR schemes who was found or the consumer simply did not want to maybe interested in becoming a recommended ADR pursue the case. body to contact it. G

The luck of the Irish Susan Reilly is the Irish clearing-house co-ordinator. Since the Irish clearing house started up in May 2002, Contact details for the ADR bodies are available on the it has handled 102 cases, ranging from Irish European Commission’s website at www.europa.eu. consumers with disputes against Spanish holiday int/comm/consumers/redress and will also be on resorts over non-refund of deposits, to Norwegian www.eej-net.org and on the Dublin European consumers with complaints against an Irish airline Consumer Centre website www.eccdublin.ie.

35 Law Society Gazette November 2003 Gadgets Tech trends Ape-pocalypse now! ow they’ve gone and done strength depending on the Nit. How many times did we object’s weight. tell them? ‘Don’t wire up a The process involved ten TM monkey’s brains to robotic arms’, hours of surgery on the monkeys we said. ‘They’ll kill us all’, we to implant 320 tiny electrodes, warned. ‘Get your hands off me, each of them thinner than a you damned dirty ape’, we human hair. The holes in the screamed, as the gardaí dragged monkeys’ skulls were then filled us away. But did they listen? with ‘a substance resembling Now comes the news that dental cement’. The wires were scientists in North Carolina have linked up to a computer and built a brain implant that allows connected to a large mechanical monkeys to control a robotic arm arm. The monkeys were reward- with their thoughts. Read that ed with juice when they per- sentence back to yourself again. formed their tasks successfully. Monkeys controlling robotic Duke University hopes to get arms. With their monkey minds. permission to begin testing on PIC: ROS BYRNE/GAZETTE STUDIO, SHOT IN BOOZARAMA Don’t these people watch TV? humans next year. A spokesman Top boffins predict the future could look something like this According to an American for the college denied that the scientific journal, the monkeys were in any way put out hurling faeces at them. Plans enhanced super-dinosaurs to ‘breakthrough’ at Duke by the experiments. ‘If anything, are reportedly afoot in Japan to counter the perceived threat University Medical Centre could they’re enjoying themselves’, he develop a race of genetically- from the simian cyborgs. some day allow people paralysed is quoted as saying. ‘It enriches through spinal injury to operate their lives’. machines or tools with their As a result of this scientific Business or pleasure? thoughts. It might even allow marvel, citizens of downtown he EP725 from Optoma diminutive size, it is more than quadriplegics to move their own Tokyo might well find their lives Tclaims to be one of the capable of handling all your arms and legs by transmitting enriched in the coming years by world’s smallest and lightest presentational needs, with a orders from the brain to the giant monkey-controlled robots digital projectors. Despite its brightness of 1,150 lumens and muscles in the paralysed limbs. a contrast ratio of 2000:1. But The journal PLoS Biology says that’s not the good bit: if you this is the first time that any can persuade your boss to animal has learned to use its spring for the EP725, you can brain to use robotic devices in all use it as a home cinema by directions and perform a series linking it up to your DVD, of inter-related movements, such video, laptop or PDA. as reaching for an object, Available from Noltech Ltd in grasping it and adjusting the grip Naas for around €2,999. Anytime, anyplace, anywhere

he insatiable appetite is a very impressive piece of kit networks, no matter where you Tfor PDAs (personal indeed, with an extremely are. All three models feature digital assistants) shows no powerful 400Mhz Intel PXA integrated infrared, allowing sign of abating, with Toshiba 255 processor. There are three cable-free data exchange. But launching a new range of Pocket specific products in the range, what will really catch your eye is PCs. The company describes its and you can choose between the full colour screen, which Pocket PC e740 range as integrated wireless LAN or makes it a pleasure to run all ‘revolutionary’ and setting ‘a new Bluetooth connectivity. Don’t your old familiar programs such benchmark for top-end PDA worry about the technobabble: as Pocket Word, Pocket Excel technology’. Well, they would what it means is that you will and Pocket Internet Explorer. say that, wouldn’t they? But get hassle-free access to e-mail, Prices range from €649 to €768 there’s no denying that the e740 the internet and office (ex VAT).

36 Law Society Gazette November 2003 Gadgets On the game t had to happen, I suppose. describe it as a phone; And you can make calls on IWe’ve had mobile phones instead, it’s a it, if you’re not too busy that play music, mobiles that ‘game deck’. playing. take pictures, and even mobile As well as When Nokia gets around phones that you can use as a playing files, to adding a camera and a telephone. Now, Nokia has classic video and a web mobile monkey-alert system trumped the lot by games such as browser with (MMAS), the future will introducing the N-Gage, a To mb Raider, the e-mail facilities. You really have arrived. mobile phone that is really a N-Gage also can also download Microsoft The Nokia N-Gage will be miniature Playstation. In fact, contains a radio, an MP3 player and Lotus software so that launched shortly, prices are to be Nokia doesn’t even bother to for playing or recording music you have a functioning PDA. announced. Sites to see

Knowledge at your fingertips (www.questia.com). You know Racing (www.horseracingireland.ie). It’s the sport of kings, how there’s something on the tip of your tongue, but you can’t apparently, though you don’t see too many of them down in quite get it? Well, this site is guaranteed to put you out of your Paddy Power’s of a lunchtime. This site provides comprehensive misery. Questia claims to be the world’s largest on-line library, information on race meetings, festivals, results, race cards, boasting over 45,000 books and 360,000 articles: legal, historical courses, sponsorship and corporate hospitality. ‘Wherever you or just about anything you want. For a fee, you no longer have an are in Ireland’, they say, ‘you’re never far from a race meeting’. excuse not to be your best mate’s ‘phone a friend’. And that’s straight from the horse’s mouth.

Financial facts (www.finfacts.com). This finance and business Keeping up appearances (www.awfulplasticsurgery.com). A site portal should help even the most avid stock-watcher keep up that will let a smug smile creep across your face as you with the times. The Finfacts Finance Centre represents an on- congratulate yourself on growing older gracefully. line financial resource – or so they say – with links to news, Awfulplasticsurgery.com is filled with pictures of celebrities who share prices, mortgage rates, pensions, currency prices and can no longer smile smugly for fear that their face will split. An comparative salary surveys, among other things. Go ahead: interesting glimpse at the results of excess vanity, this could be impress your accountant! your feel-good site of the week.

37 Law Society Gazette November 2003 Money needs to be astutely managed

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Because it’s only money, after all.

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Tel: (01) 616 2000

Experience the difference Briefing Report of Law Society Council meeting held on 5 September 2003

Motion: delegation of establish a system of counselling the fact that the regulations Donald Binchy said that it was functions and support for such colleagues. provided for two, rather than important to inform and educate ‘That the following functions shall be Following discussions with an three, exemptions from the the profession on the matter, and are hereby delegated to the eminent psychologist, agreement reporting obligations, and b) the both by mailshot via the Gazette Compensation Fund Committee and had been reached on the fact that solicitors were and through CPD seminars. He to the Registrar’s Committee and establishment of a referral service prohibited from informing their noted that there was a meeting of that regulation 16 of the on the basis of payment by the clients that a report had been the bar association PROs to be Regulations of the Council, society of an annual retainer and made. held on 15 September and he 2002-2003 be amended to include the initial consultation fee, with As a result of the society’s suggested that they should be the following: “The functions of the the cost of further consultations representations, the minister had briefed on the content of the society under sections 58 and 59 of being met by the individual agreed to introduce amending regulations. the Solicitors (Amendment) Act, solicitor. The scheme would be regulations reflecting the three 1994”.’ highly confidential and would exemptions from the reporting Personal Injuries Proposed: John O’Connor operate outside the structures of obligations. In addition, he had Assessment Board Seconded: Simon Murphy the regulatory functions of the provided a letter to the society The president reported on the society. The scheme would indicating his view, formed on society’s meeting with the Joint John O’Connor and Simon provide immediate access to a the basis of advice from the Oireachtas Committee on Murphy noted that the power to counsellor for individual attorney general, that there was Enterprise and Small Business on suspend a practising certificate solicitors within two days of nothing in the act or the 16 July. The Council discussed during the currency of a practice contact being made, with a panel regulations that would prohibit a the contents of the society’s year and the power to impose of counsellors being available on solicitor from informing his submissions on the Personal conditions attaching to a stand-by. client that he was ceasing to act Injuries Assessment Board Bill and practising certificate during the James McCourt said that the for the client or, indeed, that he the Civil Liability and Courts Bill. currency of a practice year had scheme represented a response was ceasing to act for a client The director general noted not yet been delegated by the by the society to the needs of its because he was unhappy with any that there were certain aspects of Council to the regulatory vulnerable members, although transaction in which the client both bills about which the committees. The Council he believed that the society was involved. society had grave concerns, and approved the amendment of the should remain vigilant and The director general said that it was intended to bring these Council regulations to reflect the identify further ways to improve the reporting obligations for matters to the attention delegation of functions, as its support structures. Gerard solicitors under the Money of both opposition and govern- requested. Griffin said that he intended to laundering directives had been an ment TDs. establish a task force to review issue for the previous seven years. Gerard Griffin noted that, Motion: referral scheme to and co-ordinate all of the The society had opposed the arising from a recent decision of provide counselling and society’s support structures designation of solicitors the judiciary, it appeared that guidance during the coming year. vigorously from the outset and certain medical reports in High ‘That this Council approves the Moya Quinlan suggested that had persuaded the former Court actions might be passed to establishment of a referral scheme to the review should also encompass minister, John O’Donoghue, not the PIAB. These reports would provide counselling and guidance for the support structures provided to designate solicitors, pending contain sensitive information in solicitors at risk from occupational to trainee solicitors, so that the the enactment of the second relation to the medical condition stress or similar health problems.’ society could develop an on- Money laundering directive. This of plaintiffs, who might not wish Proposed: Gerard Griffin going pattern of support and was now in place and, such information to be circulated Seconded: John O’Connor assistance for its members and consequently, it was not open to to third parties. The Council prospective members. the society to challenge the agreed that solicitors should be Gerard Griffin outlined the obligation to report. advised to inform their clients background to the proposed Implementation of the second James MacGuill said that the that their medical reports might scheme and noted the support of Money laundering directive minister’s letter introduced a be copied to the PIAB and to the independent adjudicator and The president reported on formula that ameliorated the seek the client’s authority to hand the lay members of the meetings with the minister for circumstances for solicitors faced over those reports in such cases. Registrar’s Committee for the justice, equality and law reform with making a report to the The director general noted initiative. held in July and September to authorities. The expansion of the that, while insurance companies John O’Connor said that a discuss the society’s concerns two exemptions to three meant had shown significant profits number of members of the regarding aspects of the that a significant proportion of recently and the level of awards profession were suffering from regulations giving effect to the any solicitor’s dealings with a had fallen, premiums for stress and other health-related Money laundering directive. The client would be exempt from any employer and public liability had problems and there was a need to two principal concerns were: a) reporting obligation. not matched these reductions. G

39 Law Society Gazette November 2003 Briefing

Practice notes REGULATIONS FOR PROFESSIONAL NAMES, NOTEPAPER AND NAMEPLATES

he Guidance and Ethics the Oireachtas unless their status is unam- islation, anyone not holding a TCommittee frequently receives 4. i) The name of a practice under biguously stated practising certificate from the Law queries from solicitors in relation which a solicitor or a firm of vi) If one or more solicitors or Society of Ireland. to what is permitted on a solici- solicitors carry on business firms practise in association tor’s professional notepaper. shall consist only of the name with each other, their respec- Registration of Business Names Queries are also received in rela- or one of the names of the solic- tive notepaper may refer to the Act, 1963 tion to professional names for itors or one or more of the pres- solicitors or firms with whom Section 3(I) (a) of the act provides solicitors’ firms. These matters ent or former principals of the they are in association. that every firm having a place of are regulated under SI no 178 of firm as the case may be, or business in the state, and carry- 1996. As seven years have such other name as is approved Explanatory note ing on business under a business passed since the enactment of in writing by the society This statutory instrument should name which does not consist of this statutory instrument, the ii) Section (4)(i) will not apply to be read in conjunction with the the true surnames of all partners committee has decided to publish any name which is in use on Registration of Business Names who are individuals, shall be reg- the full text again for the assis- the first day of July 1996 Act, 1963, which also contains istered in the manner directed by tance of solicitors. 5. The nameplate of a practice important provisions relating to the act. Section 4 provides that shall not include matters other professional names and note- every person required under the Statutory instrument no than the following: paper. act to be registered shall furnish, 178 of 1996 i) The name of the practice Signed on behalf of the Law by sending by post or delivery to The Law Society of Ireland, in ii) The names of solicitors Society of Ireland this fourth day the registrar, a statement in writ- exercise of the powers conferred and/or their qualifications of June 1996 ing in the prescribed form con- on it by sections 4,5 and 71 of iii) The date of establishment taining, among other things, the the Solicitors Act, 1954 (no 36 6. The following provisions shall Northern Ireland solicitors list of partners of the firm. of 1954) as amended by the apply to the professional When a Northern Ireland firm In addition, section 18(1)(b) re- Solicitors (Amendment) Act, notepaper of a practice: wishes one partner to set up an quires all business letters, circu- 1994, hereby makes the following i) Even if a practice is carried office in this jurisdiction and use lars and catalogues on or in which regulations: on under the true surnames of the partnership name, the follow- the business name appears, and 1. i) These regulations may be all the partners, the notepaper ing are the Law Society’s require- which are sent by that person to cited as the Solicitors shall list their names ments: any person, to state in legible char- (Professional Practice, Conduct ii) If the names of assistant • The written permission of all acters, in the case of a firm, the and Discipline) Regulations solicitors are listed on the the partners to the use of the present christian names or the ini- 1996 notepaper, a differentiation name shall be furnished to the tials thereof and the present sur- ii) These regulations shall shall be made between their Law Society of Ireland names, and former christian names come into force on the first day names and the names of the • The office letterhead to be and surnames, the nationality, if not of October 1996 partners used in this jurisdiction shall Irish, of all partners in the firm or, 2. i) In these regulations, unless iii) Where the practice compris- show only the name of the in the case of a body corporate be- the context otherwise requires: es a solicitor in salaried solicitor who holds a practising ing a partner, the corporate name. • ‘The society’ means the Law employment acting for his non- certificate in this jurisdiction Thus, the act requires: Society of Ireland solicitor employer, the profes- and he/she shall be shown as 1) That all solicitors list the • ‘Solicitors’ has the meaning sional notepaper shall state ‘principal’ names of partners on their assigned to it in section 3 of the name of the solicitor and • If the partners in the Northern notepaper the Solicitors (Amendment) may list the names of other Ireland firm wish to be shown 2) That solicitors using other than Act, 1994 solicitors who assist that solic- on the letterhead, they must their own name as the name of • ‘Practice’ means the profes- itor be admitted to the Roll of the firm should register those sional practice of a solicitor iv) All solicitors who are listed Solicitors here and hold a cur- names as business names • Other words and phrases in on the notepaper of a practice rent practising certificate from under the act and must provide these regulations shall have shall hold a current practis- the Law Society of Ireland. details of the partners of the the meanings assigned to ing certificate issued by the firm, when registering same. them by the Solicitors Acts, society It should be noted that the 1954 to 1994 v) No names other than the Solicitors Acts, 1954 to 2002 pro- A statement on the notepaper 3. The Interpretation Act, 1937 names of solicitors holding cur- hibit a solicitor practising in this saying that a list of partners is applies to the interpretation of rent practising certificates jurisdiction from sharing profits available on request would not be this regulation as it applies to issued by the society shall with an ‘unqualified person’, that sufficient to comply with the act. the interpretation of an act of appear on the notepaper, is, within the meaning of the leg- Guidance and Ethics Committee

40 Law Society Gazette November 2003 Briefing

MILK QUOTA AMENDMENT REGULATIONS 2003 (SI NO 123/2003) number of changes have been a number of ways and anyone if the lease existed prior to 1 April Farm retirement leases Amade to the milk quota regu- involved in setting up a 2000 (the previous cut-off date The new regulations provide for a lations by the above statutory partnership arrangement would had been 13 October 1999). new regulation 11 to be inserted in instrument. need to be aware of these amend- Where the lease is to a the Milk Quota Regulations. This ments. In particular, a new cate- member of the family (as new regulation replaces regulation Family transactions gory of milk production partner- defined), the lessee may now 10 (paragraphs 3, 4 and 5). Regulation 6, which deals with ship has been created. This purchase the milk quota where Regulation 10 of the 2000 regula- family transactions, has been allows for a partnership between the lease existed prior to 1 April tions (paragraphs 3,4 and 5) had amended to provide that, subject a parent and his or her child, 2001. (The regulation appears to allowed the minister to grant new to the approval of the minister for where the child ‘has received an relate to family leases as defined leases of land and quota where a agriculture, a beneficiary may allocation of milk quota under by regulation 6(2) of the regula- farm retirement lease of land and lease land to a relative of the New Entrant Farming in tions. As such leases would have quota had been entered into but deceased owner. (Up to now, the Partnership’. come into existence pursuant to the lessee no longer wished to con- lessee had to be a relative of the the 2000 regulations, it is pre- tinue the lease. beneficiary.) Purchase of milk quota by lessee sumed that the right to purchase Under the new regulations, the There has been a substantial the quota would arise only in new lease to the new lessee must Partnerships amendment to regulation 9 of the respect of leases which came be signed within six months of the The partnership regulations (SI no 2000 regulations. A lessee can into existence after 1 April ending of the previous lease. 97/2002) have been amended in now purchase the lessor’s quota 2000.) Conveyancing Committee

PLANNING CONDITION REQUIRING RESIDENCE OR EMPLOYMENT OF APPLICANT IN PLANNING AUTHORITY AREA planning condition in the fol- that solicitors would be asked to the county. The certificate is to Purchasers’ solicitors faced Alowing terms has been certify matters in relation to the be signed by the solicitor for the with requests to complete these brought to the attention of the residence or place of work of purchasers and dated. There is certificates should: Conveyancing Committee: their clients. These are matters no requirement that the matters 1) Advise their clients/pur- ‘5) a) Houses to be restricted to on which the clients/applicants referred to in the certificate chasers to write to the local persons who have been resi- for permission can easily satisfy should be co-signed or endorsed authority applying for a waiver dent in County Wicklow for at the local authority directly by way by the purchasers. The certificate or a variation of this condition least one year and/or those of completing their own certifi- is not stated to be based on in the planning currently in full-time employ- cate or statutory declaration. information supplied by the pur- 2) Give the clients a copy of this ment in County Wicklow or The planning condition brought chasers. practice note for enclosure other such class of persons to the attention of the committee The committee noted the for- with their application for waiv- that the planning authority may was accompanied by a draft cer- mat of the certificate required by er/variation agree to in writing tificate which was to be typed on the local authority and in particu- 3) Advise the clients/purchasers b) Confirmation from a solici- a purchaser’s solicitor’s headed lar noted that there is no provi- to offer their own certificates tor or other suitable qualified notepaper. This certificate is sion for the purchasers them- and/or statutory declarations professional with indemnity addressed openly ‘To whom it selves to certify relevant matters to verify the facts required by insurance that the dwellings concerns’ and is required to con- to the local authority. Rather, the the local authority. have been sold in accordance firm, inter alia, that the solicitor local authority seeks to hold pur- with this condition shall be currently holds professional chasers’ solicitors liable for the In addition, the committee would submitted to the planning indemnity insurance, that the pur- veracity of the statements con- recommend to the bar associa- authority upon the sale of the chasers’ purchase with full knowl- tained in the certificate. The com- tions in counties which regularly dwellings. edge of the provisions of the mittee said it could only specu- include conditions of this type in Reason: To ensure that the planning permission and the limi- late as to what the reasons are their planning permissions to dwellings are suitably restricted tations imposed by conditions for the requirement that a solici- engage with the planning authori- to meet local growth needs as 5(a) and (b) thereof, that the tor has professional indemnity ties in those counties with a view opposed to regional needs, to solicitor certifies that house num- insurance, but it seemed to the to having planning conditions of ensure the development meets ber X in the development has committee that the most obvious this nature either removed from with the requirements of the been sold in compliance with the reason would be that the local planning permissions or varied so strategic planning guidelines and provisions of conditions 5(a) of authority intends to sue solicitors as to require the appropriate cer- the county development plan with the relevant planning permission on foot of their certificates tification from the clients/pur- respect to development in the by virtue of the fact that the pur- should the need arise. chasers and not from their solici- hinterland areas, in the interest chasers/one of them have/has The committee was unani- tors. The committee is prepared of proper planning and sustain- been resident in the county for at mously of the view that solicitors to assist any affected bar associ- able development.’ least one year and/or the pur- should not complete these cer- ations with such meetings with The committee unanimously chasers/one of them currently tificates under any circum- local planning authorities. agreed that it is not acceptable are/is in full-time employment in stances. Conveyancing Committee

41 Law Society Gazette November 2003 Briefing

SIGHT LINES: NEW PROBLEMS FOR PROPERTY OWNERS AND THEIR CONVEYANCERS number of local authorities anyone of the requirement. is a clear risk that there will be Compliance with the condition may Aare imposing conditions in In at least one case, the appli- problems on re-selling. The com- be impossible because it would planning permissions requiring cant had offered to reduce the mittee advises that such advice require the applicant to acquire the applicant to secure sight lines height of a hedge (with the per- should be confirmed in writing. land perhaps from both adjoining at the entrance to a house site mission of a neighbour who owned In addition, when acting for a owners to provide the necessary from the public road. the land on which the hedge in client purchasing a site with the lines of sight. The following is an example of question was located) and no benefit of a planning permission, it The current situation is creating a condition imposed by a planning thought seemed to have been is yet another reason to advise the problems for property owners and authority as a general condition: given to what was to happen when client to have the position regard- their solicitors and in some cases Prior to commencement of the hedge grew again. In another ing the planning permission properties will not be saleable development, vision lines of 68 case, the applicant (again with the checked out by a competent without the problem being regu- metres shall be provided in each permission of a neighbour) con- person. larised. direction, at a point 3.05 metres firmed that an arrangement had The committee doubts that it is In the opinion of the back from the road edge at loca- been made with a neighbour to wise for solicitors themselves to Conveyancing Committee, the tion of vehicular entrance. Said provide an appropriate sight line. brief an architect or engineer on planning authority should not grant vision lines should be based on In that case, the neighbour did not behalf of their client in such situa- permission until the applicant sat- eye object height equal to 1.06 really understand what was tions but recognises that, from isfies it that the applicant has metres over height of 1.06 required of him and the planning time to time, solicitors will find such legal rights or perhaps own- metres. Documentary evidence of authority in question did not clarify that they have to do this. The com- ership necessary to enable it to consent for location of vision lines the position. mittee feels that such briefing comply with any such condition. over third-party lands shall be sub- It is not satisfactory that plan- should be in general terms rather Planning authorities already do mitted to the planning authority ning authorities in some cases do than trying to anticipate all the this routinely in some areas in for written agreement prior to not deal with the long- term impli- issues that could arise. However, relation to easements for drainage commencement of development. cations. the issue of sight lines and other if a site cannot be drained without Clearly, planning authorities are It seems clear that conditions easements could be addressed by a grant of easements over proper- entitled to take into account the like this are going to cause prob- asking the surveyor to review ty in the ownership of third parties. need for traffic exiting a site to lems for architects and engineers whether the house, its access and Alternatively, the planning have an acceptable view of traffic who may be asked to certify com- any facilities such as a septic tank authority should ask applicants to approaching and the need for that pliance. They will also clearly cause or percolation area or water supply submit with a planning application traffic approaching to have an ade- problems for people who buy sites can be provided without passing (or seek further information for- quate opportunity of seeing a car subject to such conditions. over or acquiring rights over land in mally of anyone who does not com- which might exit into its path. Solicitors who are advising clients the ownership of any third party. ply) confirmation of the position in The committee has seen a in relation to the purchase of a The practical problem is that an relation to sight lines, and then number of different conditions. It property subject to such a condi- applicant who already owns a site elect to grant permission (other has also been informed that, in tion will have to advise their clients and who has received a grant of things being equal) if the sight some cases, applicants anticipat- very carefully, particularly if the planning permission subject to lines are adequate and refuse ing the requirement have offered condition is not going to be proper- such a condition might not realise them if they are not. Informal to provide the necessary sight ly dealt with. In such circum- the full implications of such a con- arrangements or letters from lines in the application so that stances, solicitors should point out dition and might have the house friendly neighbours are simply not there was nothing on the face of that they are likely to have a prob- half-built before realising that acceptable. the planning permission to alert lem in certifying title and that there there may be a problem. Conveyancing Committee

CAT CLEARANCE CERTIFICATES he Conveyancing Committee ance certificate at a later date. The date, Revenue will, on request, CAT clearance certificate is not Trecently made inquiries with Revenue Commissioners have issue a letter discharging the required’. the Revenue Commissioners’ replied along the following lines: property from the CAT charge and In relation to such letters Capital Taxes Division regarding ‘Section 60(1) of the Capital attaching the charge instead to attaching CAT to the proceeds of the CAT clearance certificate and Acquisitions Tax Consolidation whatever assets represent the sale, it is up to both vendors’ the status of the letter attaching Act, 2003 states that the tax due proceeds of sale of the property at solicitors and purchasers’ solici- CAT to the proceeds of sale rather in respect of a taxable gift or the valuation date. tors to ensure that this letter is than to the property. The commit- inheritance shall be and remain a The issue of this letter is con- used only in appropriate circum- tee had asked if, having obtained charge on the property of which firmation from Revenue that there stances, that is, where a sale of such a letter attaching CAT to the the taxable gift or inheritance con- is no charge to CAT attaching to the property takes place in the proceeds of sale rather than to the sists at the valuation date. If prop- the property disposed of. course of administration prior to property, a purchaser would still erty is sold in the course of admin- Therefore, any purchaser is fully the valuation date. require production of the CAT clear- istration prior to the valuation protected and the production of a Conveyancing Committee

42 Law Society Gazette November 2003 Briefing

INSURANCE COMPANY DELAYS IN ISSUING CHEQUES n recent months, the Litigation in relation to costs cheques, with Officers Act, 2002 provides for paid. ICommittee has received a num- some practitioners reporting interest on the costs of a judg- In the case of judgments, a ber of complaints from practition- delays of a number of months ment at a rate of 2% from the rate of 8% (SI 12/1989) applies ers regarding delays in the issuing before payment is received. time of judgment until same from the time of judgment until of cheques by insurance compa- Practitioners should note that are agreed or taxed. A rate payment is made. nies. The problem primarily arises section 30 of the Court and Court of 8% applies thereafter, until Litigation Committee

THE PRESUMPTION OF UNDUE INFLUENCE any practitioners are Signed acknowledgements Setting up the independent advice facts and it also shows that the Munaware that, in the volun- Some solicitors get the transferor to When organising the independent person giving the independent tary transfer situation, there may sign an acknowledgement that the advice, it is good practice to do a advice has been made aware of be a presumption of undue influ- transferor has been offered inde- letter to the person giving the these facts.) ence in relation to the transac- pendent advice but has declined independent advice setting out all tion. What this means is that if the offer. This is not sufficient, as it the facts relative to the transfer. Wills the transaction is challenged, it does nothing to rebut the presump- In particular, the letter should set This presumption does not apply to fails unless the donee is in a tion of undue influence. out details of the property being wills. Where a will is challenged on position to rebut the presump- From the point of view of profes- transferred (market value, which the basis of undue influence, then, tion of undue influence. In itself, sional negligence, the solicitor is at should be based on a profession- in every case, that undue influence the fact that there was no risk if he has not ensured that he is al valuation and so on), details of must be proved. undue influence is not sufficient. in a position to rebut the presump- the transferor’s other assets and The presumption must be tion of undue influence. He is full details of the family situation, Actual undue influence rebutted. unlikely to be at risk in so far as the identifying the educational and Actual undue influence is outside Where a solicitor acts on both transferor is concerned. If a trans- financial circumstances of each the scope of this practice note. sides of a voluntary transfer, it feror gets back a farm he had trans- family member. When giving inde- However, in doing a voluntary has been held that, as he is not ferred, he is not at a loss. However, pendent advice, a full attendance transaction, a solicitor should take independent of either party, he the same cannot be said in relation should be done and this atten- all steps necessary to minimise can not give evidence which will to the transferee. If a transferee dance should be returned to the the risk of actual undue influence. rebut the presumption. In order loses because the solicitor has not solicitor doing the transfer so that For example, the transferee should to rebut the presumption, inde- taken the necessary steps to rebut it can be stored on the main not be present when the transferor pendent advice, usually, but not the presumption of undue influ- transfer file. (By doing this, the is instructing the solicitor in rela- necessarily, independent legal ence, then the transferee will have transferor’s solicitor is setting out tion to the proposed transaction. advice, must be obtained. his remedy against the solicitor. that he has knowledge of all the Conveyancing Committee

LEGISLATION UPDATE: 18 SEPTEMBER – 20 OCTOBER 2003 SELECTED STATUTORY European Communities (Manu- 2003 as the commencement alleged to be in breach of section INSTRUMENTS facture, Presentation and Sale date for section 146 of the 2 of the Immigration Act, 2003 European Communities of Tobacco Products) Finance Act, 2003 (amendments Commencement date: 19/9/ (Cableway Installations Regulations 2003 to the Capital Acquisitions Tax 2003 Designed to Carry Persons) Number: SI 425/2003 Consolidation Act, 2003, in Regulations 2003 Contents note: Implement relation to CAT returns) Immigration Act, 2003 Number: SI 470/2003 directive 2001/37/EC on the (Removal Direction) Regulations Contents note: Give effect to manufacture, presentation and Immigration Act, 2003 2003 directive 2000/9/EC relating to sale of tobacco products. Deal (Approved Ports) Regulations Number: SI 446/2003 cableway installations designed with health-warning labeling, 2003 Contents note: Prescribe the to carry persons new maximum yields of tar, Number: SI 445/2003 form to be used by an Commencement date: 3/10/ nicotine and carbon monoxide Contents note: Specify the ports immigration officer or a member 2003 in cigarettes, product des- approved for entry into the state of An Garda Síochána to give a cription and further product for the purposes of the Aliens Act, direction in writing to a carrier to European Communities information 1946 remove a person from the state (Licensing and Inspection of Commencement date: Various – Commencement date: 19/9/ Commencement date: 19/9/ Zoos) Regulations 2003 see SI 2003 2003 Number: SI 440/2003 Contents note: Give effect to Finance Act, 2003 (Section Immigration Act, 2003 (Carrier Immigration Act, 2003 directive 1999/22/EC relating to 146) (Commencement) Order Liability) Regulations 2003 (Removal Places of Detention) the keeping of wild animals in zoos 2003 Number: SI 447/2003 Regulations 2003 Commencement date: 19/9/ Number: SI 466/2003 Contents note: Set out the forms Number: SI 444/2003 2003 Contents note: Appoints 1/10/ of notice to be given to carriers Contents note: Specify the

43 Law Society Gazette November 2003 Briefing

places where a non-national being 211/1979), which order is now Planning and Development Act, Contents note: Appoints 24/9/ removed from the state following revoked 2000 (Certification of 2003 as the commencement refusal of, or failure to obtain, Commencement date: 29/9/ Fairground Equipment) date for section 239 of the leave to land may be detained 2003 Regulations 2003 Planning and Development Act, Commencement date: 19/9/ Number: SI 449/2003 2000 (control of funfairs) 2003 Occupational Pension Schemes Contents note: Deal with and Personal Retirement matters of procedure, Solicitors Act, 1954 (Section Intoxicating Liquor Act, 1962 Savings Accounts (Transfer) administration and control in 44) Order 2003 (Section 9) Order 2003 Regulations 2003 relation to applications for, and Number: SI 459/2003 Number: SI 442/2003 Number: SI 429/2003 grant of, certificates of safety for Contents note: Brings section 44 Contents note: Provides that, for Contents note: Provide for transfer funfair equipment of the Solicitors Act, 1954 the purposes of the Licensing payments from an occupational Commencement date: 1/10/ (inserted by section 52 of the Acts and the Registration of Clubs pension scheme to a personal 2003 Solicitors (Amendment) Act, Acts, the minimum guideline price retirement savings account (PRSA) 1994) into operation on for a substantial meal will be €9 and from a PRSA to an Planning and Development Act, 1/10/2003 in relation to the in substitution for the £2 provided occupational pension scheme 2000 (Commencement) Order profession of attorney and in the Intoxicating Liquor Act, Commencement date: 16/9/ 2003 counselor at law in the State of 1962 (Section 9) Order 1979 (SI 2003 Number: SI 450/2003 California of the United States of America. The effect of the order is Social Welfare (Consolidated monies received by way of commencement of employment that an attorney or counselor at Payments Provisions) (Amend- compensation, awarded by was in receipt of a payment law qualified in California may be ment) (No 5) (Compensation the Residential Institutions under the back-to-work allow- admitted as a solicitor in Ireland Payments) Regulations 2003 Redress Board, will be regarded ance scheme. Revoke SI 145/ subject to the corresponding Number: SI 427/2003 in the assessment of means 1996 conditions under which solicitors Contents note: Provide that any for supplementary welfare Commencement date: 16/9/ whose names are on the roll in monies received by way of allowance purposes (in the 2003 this state may be admitted to compensation, awarded by the same way as regulations practice in the State of California Residential Institutions Redress currently apply in relation to Social Welfare (Miscellaneous Board, will be regarded in the compensation awarded to Provisions) Act, 2002 Taxes (Electronic Transmission assessment of means for social people who have contracted (Section 16 (No 3)) of Capital Acquisitions Tax assistance purposes (in the hepatitis C or HIV and to people (Commencement) Order 2003 Returns) (Specified Provisions same way as regulations who have disabilities caused by Number: SI 455/2003 and Appointed Day) Order 2003 currently apply in relation to Thalidomide) Contents note: Appoints 25/9/ Number: SI 443/2003 compensation awarded to Commencement date: 16/9/ 2003 as the commencement Contents note: Applies the people who have contracted 2003 date for section 16 of the act legislation governing the hepatitis C or HIV and to insofar as it relates to specified electronic filing of tax information persons who have disabilities Social Welfare (Employers’ items in the schedule to the act to the principal capital caused by Thalidomide) Pay-Related Social Insurance relating to amendments to the acquisitions tax returns (that is, Commencement date: 16/9/ Exemption Scheme) Registration of Births and section 46 of the Capital 2003 Regulations 2003 Deaths (Ireland) Acts and the Acquisitions Tax Consolidation Number: SI 452/2003 Marriages (Ireland) Acts and the Act, 2003, apart from sub- Social Welfare (Consolidated Contents note: Provide for electronic registration of births sections 3, 7, 13 and 15). Supplementary Welfare amendments to the employers’ and deaths in the civil Appoints 28/9/2003 as the Allowance) (Amendment) PRSI exemption scheme in registration office in Skibbereen. appointed date in relation to (No 1) Regulations 2003 relation to employers who, on or Appoints 29/9/2002 for the these returns. G Number: SI 426/2003 after 16/9/2003, take on an same purposes in relation to the Contents note: Provide that any employee who on the date of civil registration office in Mallow Prepared by the Law Society Library

CRIMINAL LAW COMMITTEE SEMINAR AND RECEPTION FOR JUDGES OF THE DISTRICT COURT Friday 5 December 2003, the Education Centre, Law Society, Blackhall Place, Dublin 7. SPEAKERS: BOOKING FORM European Convention on Human Rights Act, 2003 Name: • Judge William GJ Hamill, judge of the District Court European arrest warrant and mutual legal assistance Practice name and address: • Niall Dolan, solicitor Registration: 6pm Reception: 7.30pm Seminar: 6.30pm Admission: Free Please reserve place(s) for me MEMBERS ARE INVITED TO ATTEND BOTH THE SEMINAR AND RECEPTION. Booking forms should be returned to Colette Carey, Solicitor, Criminal Law Committee, MATERIALS WILL BE CIRCULATED ON THE NIGHT. Law Society, Blackhall Place, Dublin 7, to be received no later than 3 December 2003.

44 Law Society Gazette November 2003 Briefing SOLICITORS DISCIPLINARY TRIBUNAL In the matter of Brendan Solicitors, of 35 Beaufield On 23 January 2003, the months thereafter, that is, by McManus, solicitor, who car- Manor, Stillorgan, County Solicitors Disciplinary Tribunal 31 March 2002. ried on practice under the Dublin and in the matter of found that the respondent solici- style and title of Brendan the Solicitors Acts, 1954 to tor was guilty of misconduct in The tribunal ordered that the McManus & Company, 2002 [4089/DT324] his practice as a solicitor in that respondent solicitor: Solicitors, of 35 Beaufield Law Society of Ireland he had: a) Do stand censured Manor, Stillorgan, County (applicant) a) Up to the date of the second b) Pay the sum of €15,000 to Dublin and in the matter of Brendan McManus referral by the Registrar’s the society’s Compensation the Solicitors Acts, 1954 to (respondent solicitor) Committee to the Disciplin- Fund 2002 [4089/DT360] ary Tribunal failed to comply c) Pay the costs of the society. Law Society of Ireland On 3 July 2003, the Solicitors with an undertaking given to (applicant) Disciplinary Tribunal found that (named complainants) in The tribunal took into account Brendan McManus the respondent solicitor was March 1996 in a timely man- that there appeared to be a per- (respondent solicitor) guilty of misconduct in his prac- ner or at all sistent disregard by the respon- tice as a solicitor in that he had: b) Failed repeatedly to respond dent solicitor of his obligations On 3 July 2003, the Solicitors a) Failed to file an accountant’s to the society’s correspon- under the regulations. The Disciplinary Tribunal found report in respect of his finan- dence respondent solicitor had that the respondent solicitor cial year ended 15 September c) Failed to attend at the breached precisely the same was guilty of misconduct in his 2000 in accordance with the Registrar’s Committee meet- regulation in failing to deliver practice as a solicitor in that he provisions of regulation 20(1) ings on various dates despite to the society an accountant’s had: of the Solicitors’ accounts regu- being requested to do so. report covering his financial a) Delayed in the administra- lations no 2 of 1994 with the year ended 30 September 2000. tion of an estate and failed to society in a timely manner or The tribunal ordered that the administer same in a timely at all respondent solicitor: In the matter of David Fagan, manner or at all b) Failed to hold professional a) Do stand censured solicitor, carrying on practice b) Failed to correspond with indemnity insurance cover b) Pay the sum of €2,500 to the under the style and title of (named complainant) who from the commencement of Compensation Fund Murphy Fagan Solicitors at 4 was beneficiary to the the practice year on 1 January c) Pay the whole of the costs of Talbot Street, Dublin 1 and estate 2001 up to 20 June 2001 in the Law Society to be taxed by in the matter of the Solicitors c) Failed to respond to letters breach of the Professional a taxing master of the High Acts, 1954 to 2002 [7850/ sent to him by the Law indemnity insurance regulations Court in default of agreement. DT339] Society of Ireland (SI no 312 of 1995, as amend- Law Society of Ireland d) Failed to attend at the ed). In the matter of James M (applicant) Registrar’s Committee meet- Sweeney, solicitor, carrying on David Fagan ings on a number of occa- The tribunal ordered that the practice under the style and (respondent solicitor) sions despite being requested respondent solicitor: title of James M Sweeney at to do so a) Do stand censured 14 New Cabra Road, On 4 September 2003, the e) Failed to furnish progress b) Pay the sum of €3,000 to the Phibsborough, Dublin 7 and Solicitors Disciplinary Tribunal reports to the society Compensation Fund in the matter of the Solicitors found that the respondent although directed to do so by c) Pay the whole of the costs of Acts, 1954 to 2002 [3572/ solicitor was guilty of miscon- the Registrar’s Committee. the Law Society of Ireland, DT381] duct in his practice as a solicitor including witnesses’s expenses Law Society of Ireland in that he: The tribunal ordered that the as taxed by the taxing master (applicant) •Breached regulation 21(1) of respondent solicitor: of the High Court in default James M Sweeney the Solicitors’ accounts regula- a) Do stand censured of agreement. (respondent solicitor) tions no 2 of 1984 in failing to b) Pay the total sum of €3,000 deliver to the society an to the Compensation Fund In the matter of Thomas On 4 September 2003, the accountant’s report covering c) Pay the whole of the costs of Flood, solicitor, carrying on Solicitors Disciplinary Tribunal his financial year ended 30 the Law Society of Ireland, practice under the style and found that the respondent solic- April 2001 within six months including witnesses’s expens- title of Esmond Reilly itor was guilty of misconduct thereafter, that is, by 31 es, as taxed by the taxing Solicitors, Dargan House, in his practice as a solicitor in October 2001. master of the High Court in Fenian Street, Dublin 2 and in that he: default of agreement. the matter of the Solicitors •Breached regulation 21 (1) of The tribunal ordered that the Acts, 1954 to 1994 [4412/ the Solicitors’ accounts regula- respondent solicitor: In the matter of Brendan DT306] tions no 2 of 1984 in failing to a) Do stand admonished McManus, solicitor, who car- Law Society of Ireland deliver to the society an b) Pay the sum of €500 to ried on practice under the (applicant) accountant’s report covering the society’s Compensation style and title of Brendan Thomas Flood his financial year ended 30 Fund McManus & Company, (respondent solicitor) September 2001 within six c) Pay the costs of the society. G

45 Law Society Gazette November 2003 Briefing Personal injury judgment

Negligence – issue of whether hysterectomy was necessary – Statute of Limitations – whether a claim was statute- barred – issue of when certain knowledge was ascertained – whether damages awarded were excessive CASE Alison Gough v Michael Neary and Basil Cronin, Supreme Court (Hardiman, Geoghegan and McCracken JJ), with separate judgments delivered by Hardiman J (dissenting) and Geoghegan and McCracken JJ, delivered on 3 July 2003. THE FACTS rs Alison Gough was a 27- would come to terms with her there was a local medical consult- treatments were not attempted or Myear-old woman in situation. ant in trouble of some unspecified adequately attempted. It was October 1992 and was awaiting She had no further significant sort. Later that year, she saw claimed she did not know the rel- the birth of her first child. The conversation with Dr Neary media reports dealing with other evant facts until 1998. child was expected on 25 October while in hospital. On 23 patients of Our Lady of Lourdes Dr Neary and Mr Cronin 1992 and she was admitted to Our December 1992, she attended Hospital in precisely her situa- pleaded the Statute of Limitations Lady of Lourdes Hospital in him for her check up. He exam- tion. She reacted very emotional- among other defences. The Drogheda, Co Louth. Various ined her. A nurse asked Mrs ly to these reports. Statute of Limitations provides for steps were taken to induce the Gough to wait until the doctor She heard a radio programme a three-year limitation period but birth. When these were unsuc- was free so that she could ask him in 1998 which gave the phone important amendments made in cessful, it was decided in the early questions. Mrs Gough told him number for the ‘Lourdes Hospital 1991 related, among other things, hours of the morning of Monday she was very upset over what had Helpline’. This was a service pro- to the limitation period com- 27 October 1992 that she should happened and asked: ‘What did I vided by the hospital for anyone mencing from the date of knowl- have a caesarean section. Her son do wrong?’ She asked if he could who had been affected by the edge of the person injured. was born by this procedure. explain. She added that, due to media items which they had seen Section 3 of the Statute of Dr Michael Neary had been her distress, she could not sleep at or read. She said that she contact- Limitations (Amendment) Act, the consultant obstretician and night. She said that she could not ed them because ‘I wanted them 1991 provides that ‘an action … gynaecologist. Mrs Gough was in come to terms with what had hap- to tell me that it wasn’t true, it claiming damages in respect of some pain and discomfort after pened to her. wasn’t true … that Dr Neary was- personal injuries to a person the birth. While in hospital, Mrs Dr Neary said that if he were n’t the doctor being investigated’ caused by negligence, nuisance or Gough remarked to the nurses to tell her what had happened on in relation to unnecessary hys- breach of duty … shall not be that if she were to have another the night of the operation, she terectomies. The helpline, how- brought after the expiration of child she would like to have a would never sleep again. He said ever, told her that Dr Neary was three years from the date on planned caesarean section. A she was better off not knowing the doctor being investigated for which the cause of action accrued nurse advised her to discuss this and advised her to just go home performing unnecessary hysterec- or the date of knowledge of the with the doctor who would be and get on with her life. tomies. person injured’. around to see her. When he Mrs Gough was subsequently Mrs Gough contacted her The meaning of the expression came, she expressed her prefer- attended to by her general practi- solicitor on the morning of her ‘date of knowledge’ is set out in ence for a caesarean section to tioner who referred her for coun- conversation with the helpline. section 2 of the act. That section him and asked if it would be pos- selling, which she did not find The solicitor requisitioned the reads as follows: sible. He said ‘no’. She asked helpful. She continued to be pre- hospital notes, instructed an ‘2(1) For the purposes of any provi- what he meant, and he said: ‘I occupied with the fact of her hys- expert and generally took the nec- sion of this act whereby the time had to remove your womb; you terectomy. In 1996, she was in her essary steps to investigate within which an action in respect of had a hysterectomy’. She was solicitor’s office in connection whether she had a statable action. an injury may be brought depends on very disturbed and could not with a mortgage transaction and On 21 December 1998, pro- a person’s date of knowledge, refer- believe what Dr Neary had told she said something to the solicitor ceedings were issued in the High ences to that person’s date of knowl- her. Dr Neary said to her that he along the lines of whether she Court by Mrs Gough for dam- edge are references to the date on had saved her life. He said he (the solicitor) could explain what ages for personal injuries against which he first had knowledge of the could have sent her son out to her had happened, which, of course, Dr Michael Neary and Mr Basil following facts: husband without a mammy, but she could not. Mrs Gough said: Cronin, who was sued in his a) That the person alleged to have he had saved her life. He said that ‘All I wanted was an explanation. capacity as trustee of Our Lady of been injured had been injured she had lost so much blood that That’s all I wanted’. Lourdes Hospital in Drogheda, b) That the injury in question was he had never witnessed anything Mrs Gough was employed in where the delivery took place. significant like it. He said that he had used the kitchen of another hospital. In Mrs Gough alleged that the hys- c) That the injury was attributable all the top drugs. He said he had the course of 1998, she heard terectomy performed on her was in whole or in part to the act or left the ovaries and that she rumours in that hospital that unnecessary and that alternative omission which is alleged to con-

46 Law Society Gazette November 2003 Briefing

stitute negligence, nuisance or the defendant and knowledge tainable by him, or help of expert advice so long as he breach of duty that any acts or omissions did or b) From facts ascertainable by him has taken all reasonable steps to d) The identity of the defendant, did not, as a matter of law, with the help of medical or other obtain (and, where appropriate, and involve negligence, nuisance or appropriate expert advice which to act on) that advice, and e) If it is alleged that the act or breach of duty is irrelevant. it is reasonable for him to seek. b) A person injured shall not be omission was that of a person (2) For the purposes of this section, a (3) Notwithstanding sub-section (2) fixed under this section with other than the defendant, the person’s knowledge includes knowl- of this section: knowledge of a fact relevant to identity of that person and the edge which he might reasonably a) A person shall not be fixed under the injury which he has failed to additional facts supporting the have been expected to acquire: this section with knowledge of a acquire as a result of that bringing of an action against a) From facts observable or ascer- fact ascertainable only with the injury’. JUDGMENT OF THE HIGH COURT rs Gough’s action was sarean hysterectomy was an Mheard in the High Court enormously rare event. THE HIGH COURT AWARD before Johnson J on 17, 18, 19 Finding against both Dr Neary Johnson J awarded damages as follows: and 23 April 2002 and on 14 and Mr Cronin (as trustee of 1) General damage for loss and suffering to date of the trial – €150,000 May 2002. Judgment was given the hospital), Johnson J held 2) Damage for loss and suffering in the future – €100,000 on 15 November 2002. the action was not statute- 3) Special damages – €23,223.27. Johnson J held that, in Mrs barred and the defendants had Total: €273,223.27 Gough’s circumstances, a cae- been negligent. JUDGMENT OF THE SUPREME COURT r Neary and Mr Cronin (as injury on her within the meaning stitute negligence, nuisance or of limitation from expiring until Dtrustee of Our Lady of of the Statute of Limitations and breach of duty was the unneces- she had discovered the fraud or Lourdes Hospital, Drogheda) she undoubtedly knew that this sary hysterectomy; there could be could with reasonable diligence appealed to the Supreme Court, injury had been inflicted as early no allegation against Dr Neary have discovered it. Since this con- claiming that the High Court as a few days after the operation. had the operation been necessary. tention had not been pleaded or had erred, that Mrs Gough’s The other aspect of the case Therefore, McCracken J consid- argued, he would make no find- claim was statute-barred and was when Mrs Gough first had ered that the only normal and ing on it, but having regard to his that the damages awarded by the knowledge ‘that the injury was sensible meaning of the statutory findings about what the doctor High Court were too high. attributable in whole or in part provision as applied to the facts of said and the interpretation of it in The case came before to the act or omission which is the present case was that the req- light of the now-established facts, Hardiman, Geoghegan and alleged to constitute negligence, uisite knowledge related to the there was plainly a strong case for McCracken JJ, who delivered nuisance or breach of duty’. fact that the operation had been this view. judgment on 3 July 2003. McCracken J posed the ques- unnecessarily performed. Mrs The kernel of the present case, tion: ‘what is the act or omission Gough had issued these proceed- according to Hardiman J, was Was the claim statute-barred? which is alleged to constitute ings within the statutory time that Dr Neary performed an The Supreme Court examined negligence, nuisance or breach limit dating from the time she unnecessary hysterectomy on considerable case law relating to of duty?’ He did not consider it had this knowledge. Mrs Gough, made false represen- the issue of ‘knowledge of the could be the act of performing Hardiman J (dissenting from tations to the effect that the oper- person injured’ and related mat- a hysterectomy simpliciter. Geoghegan and McCracken J) ation had been necessary, and ters in the context of the time Performing a hysterectomy stated that Mrs Gough knew used his professional position in within which proceedings must where it is necessary could not from late 1992 that she had had a an overbearing and melodramatic be instituted. be said to constitute an act of hysterectomy. This represented, manner to prevent her, until the Geoghegan J, referring to sec- negligence, nuisance or breach of course, a very significant limitation period had run out, tions 2 and 3 of the Statute of of duty. The ‘knowledge’ which impairment and she was deeply from making further enquiries. Limitations (Amendment) Act, Mrs Gough had in the present distressed about it. She did not Hardiman J stated that this 1991 (set out above), stated that case was that a hysterectomy had know that it was unnecessary amounted to concealing her he was firmly of the view that the been necessarily performed. She because she accepted the false cause of action from her, a state of relevant knowledge of Mrs was told that by her surgeon in information to the contrary given affairs for which the law provides Gough included knowledge that graphic terms and had no reason to her by the doctor. a remedy in the form of section the operation was unnecessary whatever to disbelieve it. That the most obvious way to 71 of the 1957 act. and that the knowledge did not Therefore, the knowledge that set up an action on those facts, Mrs Gough, however, pursued exist more than three years before she had was false knowledge. It according to Hardiman J, would her remedy along other lines. It the commencement of the action. was also knowledge of some- be to explore the possibility that was not, in Hardiman J’s view, a McCracken J considered that thing, if it had been true, which Mrs Gough’s cause of action was matter of merely technical signif- Mrs Gough undoubtedly knew would not have constituted negli- concealed by fraud within the icance whether she achieved her that a hysterectomy had been gence, nuisance or breach of duty. meaning of section 71 of the remedy by reason of section 71 or performed. The act of perform- McCracken J stated that what Statute of Limitations, 1957, which on the basis of what he regarded ing the hysterectomy inflicted an was in this action alleged to con- would have prevented the period as a novel interpretation of sec-

47 Law Society Gazette November 2003 Briefing tion 2(1) of the Statute of ‘justice had been done’. This Even if one were to view Mrs that she should perhaps have Limitations (Amendment) Act, seemed clear from Dr McCarthy’s Gough’s injuries and ill effects realised earlier what the true sit- 1991. The 1991 act resulted in answers under cross-examination. exclusively in the way she and her uation was, and might have saved considerable easing in the posi- Mrs Gough, on the other lawyers saw them, Geoghegan J other women from that same tion of plaintiffs suing in respect hand, strongly challenged what did not consider it possible to fate. She suffered severe depres- of diseases or impairments which she perceived as an underplaying justify an award of €250,000, sion, and while she was able to were latent in their nature or their of her injury. Geoghegan J repro- having regard to the levels of look after her family and hold a true significance. Its wording was duced a list of ill effects relied on awards in relation to different job, this must have been with apt to meet the difficulties of such by Mrs Gough and in respect of types of physical injuries. The great difficulty for her. He was persons. It did not, according to which transcript references were High Court arrived at that figure quite satisfied that the award of Hardiman J, extend to circum- given in the written submissions. by awarding €150,000 for gener- €150,000 for general damages to stances where the disease or As listed in the written submis- al damages to date, together with the date of the trial was correct. impairment was all-too-painfully sions, they are as follows: another €100,000 for pain and McCracken J considered that patent but some qualitative aspect a) She had major surgery unnec- suffering into the future. the situation was somewhat dif- of it had been concealed. In such essarily Without in any way minimis- ferent in relation to the future. circumstances, the law provided a b) She thereby lost her ability to ing Mrs Gough’s injuries and ill Mrs Gough’s own psychiatrist remedy in respect of equitable have children effects, they did not, according to gave evidence, not just under fraud, but not otherwise. c) She was devastated by this Geoghegan J, compare with cross-examination but also as an Hardiman J (dissenting) stated d) She had a sense that this was physical injuries of a kind that addendum to his report, that if that he would allow the appeal by caused by something she had would attract that kind of dam- Mrs Gough continued her cur- Dr Neary and Mr Cronin, as he done wrong ages. Bearing in mind and paying rent rate of progress, he expected considered Mrs Gough’s claim to e) She was unable to sleep respect to the view that the High her to make a full recovery from be statute-barred. f) She felt like crawling into a Court took after having had the her clinical depression, and hole benefit of seeing Mrs Gough in indeed would be able to stop tak- The issue of damages g) She had irrational feelings that the witness box, Geoghegan J ing anti-depressants a few weeks As Geoghegan J and McCracken if she lost her womb she could would not interfere with the after the final judgment, as she JJ held that Mrs Gough’s claim lose her son amount of €150,000 damages for would then perceive that justice was within the time period per- h) She could not think pain and suffering to the date of had been done. He considered mitted by the Statute of i) She did not feel like a woman the trial, but he considered that that all courts now accepted that Limitations, the issue of the dam- j) She had a sense of guilt about having regard to Dr McCarthy’s there were many cases, particu- ages awarded to Mrs Gough in the way she was feeling evidence in particular, a figure of larly of psychological injury, the High Court arose for consid- k) The counselling she received €50,000 was appropriate for pain where the condition of a plaintiff eration. was of no help to her and suffering in the future. improved enormously after the Geoghegan J stated that the l) Her external appearance of Geoghegan J mentioned that in final outcome of the case. He points on which Dr Neary and getting on with her life masked this case the special damages immediately stated that this was Mr Cronin primarily relied were an internal turmoil were relatively low, being a sum not to imply any form of malin- that while Mrs Gough was m)She assumed a guilt about the of €23,223.27. He would gering of the part of Mrs Gough undoubtedly upset by her loss of patients of the defendant who therefore allow the appeal on in this case, as he was quite satis- capacity to reproduce, coupled had hysterectomies after hers quantum to the extent of fied that her complaints were with a sense of guilt, she was nev- n) In 1998, when she heard that reducing the award for general totally genuine. However, by the ertheless able to continue with the defendant was being inves- damages of €250,000 to an nature of psychological com- her normal activities looking after tigated for carrying out unnec- award of €200,000. The total plaints, they can be, and fre- her husband and her child and essary hysterectomies, she just award would therefore be quently are, affected by the out- keeping down a responsible job. cried and cried €223,223.27. come of a case, and in the judge’s Although she had her operation o) She had been on medication McCracken J stated there was view an award of €100,000 for as far back as October 1992, she since 1998 no doubt whatsoever that Mrs general damages into the future never came under the care of a p) She required psychiatric help Gough suffered serious psycho- was not sustainable in light of her psychiatrist until October 1999. q) She was ashamed to admit logical trauma from the time she own psychiatrist’s evidence. She By that stage, she had issued depression in case she would be realised what had happened to would, of course, still have to High Court proceedings by a ple- deemed unfit to mind her son. her. She suffered feelings of guilt bear the burden of having gone nary summons dated 21 Dec- through an unnecessary hys- ember 1998. She had undoubted- THE SUPREME COURT AWARD terectomy with all of its connota- ly been under the care of different Geoghegan and McCracken JJ (Hardiman J dissenting on the basis that tions, and this would last for the general practitioners and had the claim was statute-barred) found that: rest of her life. However, some counselling from a psychol- 1) The award by the High Court of €150,000 for general damages to the McCracken J considered that the ogist. In the written submissions date of the trial was correct award of €100,000 was not justi- to the court, it was pointed out 2) The award of €100,000 for general damages into the future was not fied in the circumstances and that the evidence of Dr sustainable; the award for damages into the future should be reduced reduced the general damages McCarthy, a competent psychia- to €50,000 into the future to €50,000. G trist, was to the effect that Mrs 3) Special damages – €23,223.27. Gough was likely to make a full Total: €223,223.27 This judgment was summarised by recovery when she perceived that solicitor Dr Eamonn Hall.

48 Law Society Gazette November 2003 Briefing Update

News from Ireland’s on-line legal awareness service Compiled by Karen Holmes for FirstLaw

COMPANY McCarthy v Keane, Éireann the respondent’s draft interpretation as being an International Finance Brokers development plan. The claimant objective for the use of a Award, bias Ltd, High Court, Mr Justice then applied for compensation particular area for a particular Application to set aside award – Lavan, 24/7/2003 [FL7891] for the alleged reduction in value purpose – in other words, a ‘land grounds – misconduct – whether of the property, which claim was use’ objective. However, it was arbitrator misconducted himself – Case stated, planning and referred to an arbitrator for important that the public and, in bias – whether plaintiff allowed to development law determination. In the course of particular, people seeking to allege bias after award given – Case stated – arbitration – planning the arbitration, the arbitrator develop their property should whether plaintiff acquiesced in and development – development plan referred the question as to have certainty and precision as to procedure adopted by arbitrator – – statutory interpretation – plain whether, as a result of the the relevant criteria by which whether court should interfere with and ordinary meaning of words used decision of the planning any application for permission award – Arbitration Act, 1954 – whether objective in development authority to refuse permission, would be judged and the It was agreed that the fourth plan is land use objective – status of the claimant was precluded from circumstances in which defendant be appointed draft development plan – whether claiming compensation by virtue compensation may or may not be arbitrator for the purposes of planning authority can refuse of the reason for refusal falling payable by the planning valuing shares which were to be permission on grounds that proposed within section 12(1)(b) and authority. Accordingly, a bought by the third defendant development would contravene land paragraph 11 of the third planning authority can have from the plaintiff. This followed use objective in draft development schedule to the 1990 act, as a case regard only to the development an application under section 205 plan – Local Government stated to the High Court for plan currently in force and not a of the Companies Act, 1965 by the (Planning and Development) determination. The respondent draft development plan when plaintiff, alleging that the affairs Act, 1963, sections 2, 19 – Local submitted that the claimant was considering whether a proposed of the second defendant, of Government (Planning and not entitled to compensation as development would contravene a which he had been a member, Development) Act, 1990, section the proposed development would land use objective set out in any had been conducted by the first 12(1) contravene a land use objective in such plan. defendant in an oppressive Section 12(1)(b) of the Local the draft development plan and Ebonwood Ltd v Meath County manner and in disregard of his Government (Planning and accordingly fell within the ambit Council, High Court, Mr interests. The plaintiff sought an Development) Act, 1990, when of section 12(1) of the 1990 act. Justice Peart, 30/4/2003 order setting aside the fourth read in conjunction with reason The claimant submitted that [FL7911] defendant’s award on the 11 of the third schedule thereto, reason 11 in the 1990 act referred grounds that he had precludes a property owner from to ‘the development plan’ and misconducted himself and the claiming compensation in respect not to the draft development CONSTITUTIONAL proceedings in the manner in of refusal of permission for any plan. The claimant further which he had decided the development ‘if the development submitted that even if the words Case stated, practice and valuation of the plaintiff’s would contravene materially a ‘development plan’ were to be procedure shareholding by applying a development objective indicated construed as including a ‘draft Constitution – power to refuse to minority discount thereto. in the development plan’. Section development plan’ as contended state case – limitations on power – Lavan J dismissed the 19(3) of the Planning and by the respondent, the reason for whether proviso to section 4 of 1857 plaintiffs’ claim and upheld the Development Act, 1963 provides the refusal relied on by the act inconsistent with constitution – award of the arbitrator, holding that ‘a development plan may respondent was not a land use Summary Jurisdiction Act 1857, that the arbitrator had not indicate objectives … for the use objective permitted by section section 4 – Bunreacht na misconducted himself and that solely or primarily … of 19(3) of the 1963 act but was a hÉireann, article 50 no mistake of law appeared on particular areas for particular ‘route selection corridor’ similar This was an appeal from a the face of the award. Any bias purposes (whether residential, to a road reservation. judgment and order of the High perceived by the plaintiff should commercial, industrial, agri- In answering the question Court (Kearns J), which have been asserted during the cultural or otherwise)’. The posed in the negative, Peart J determined that the proviso to course of the arbitration and not claimant applied for planning held that use of the words ‘or section 4 of the Summary subsequent to the making of the permission to develop its otherwise’ in section 19(3) of the Jurisdiction Act 1857 was award. All questions of fact are property, which application was 1963 act meant that a broad inconsistent with the con- within the sole domain of the refused by the respondent on the interpretation was to be given to stitution and had not remained arbitrator and only a limited grounds that the property in the words used in that section, part of the law by virtue of article control will be exercised over question was within an area of and the retaining of a route 50 of the constitution. The him in relation to questions of investigation in relation to the selection corridor for a rail link proviso was to the effect that law. re-opening of a rail link set out in must come with that broad while a district judge may refuse

49 Law Society Gazette November 2003 Briefing to state a case on the ground that relation to comparator cases. judge had erred. The trial judge submitted that, being treated as the application was ‘merely Ó Caoimh J reduced the attached insufficient weight to summary offences, they ought to frivolous’, he may not do so amount of costs. The taxing the fact that the applicant should have been endorsed for where the application was made master had erred in rejecting be treated as a first offender. The execution in this jurisdiction on behalf of the DPP. comparative evidence and erred court imposed a sentence of only in the event that he was The Supreme Court (Keane in estimating the complexity of seven years, with the last two already before the court in CJ, Denham, Murray, the plaintiff’s case. The years suspended on terms. Northern Ireland, or had failed McGuinness and Hardiman JJ) allegations raised in the case DPP v Galligan, Court of to appear having been duly allowed the appeal and regarding anti-competitive Criminal Appeal, Mr Justice served with the summonses, substituted for the order of the practices did not raise issues of Peart, 23/7/2003 [FL8022] pursuant to the provisions of High Court an order dismissing great complexity. Comparator section 51 of the 1965 act. It was the applicant’s claim, holding cases were a valuable guide to the Extradition, statutory submitted that there was no that it was perfectly legitimate assessment of costs and the interpretation evidence of those matters before for the legislature to proceed on taxing master was in error in Warrant – whether offences charged the court and therefore he was the basis that the law officers rejecting comparisons. The thereon correspond to offences not lawfully before the court. would not have the same motives solicitor’s instruction fee would known to Irish law – statutory The final warrant related to an for prosecuting specious and be remitted to another taxing interpretation – respondent charged offence of assault occasioning time-wasting appeals as others. master for assessment. The brief with making false instruments with actual bodily harm contrary to Fitzgerald v DPP, Supreme fee would be reduced to £15,750. an intention to deceive – definition section 47 of the Offences Against Court, 25/7/2003 [FL7966] Doyle v Deasy and Company of ‘false’ – whether exhaustive – the Person Act 1861. The Limited and Guinness Ireland summary offences – whether respondent submitted that that Group Limited, High Court, respondent properly before court for offence corresponded with the COSTS Mr Justice Ó Caoimh, extradition in respect of summary offence provided for in section 3 21/3/2003 [FL7909] offences – Extradition Act, 1965, of the Non-Fatal Offences Against Solicitors, taxation CRIMINAL sections 47 and 51 – Non-Fatal the Person Act, 1997, which Practice and procedure – taxation of Offences Against the Person Act, required an element of mens rea, costs – solicitors – litigation – Drug offences, sentencing 1997, section 3 – Criminal Justice unlike the Northern Ireland principles of taxation – whether Sentence – appeal – drugs offences – (Theft and Fraud Offences) Act, provision. allowances made by taxing master exceptional and specific 2001, section 30 In granting an order for the unjust – Rules of the Superior circumstances justifying departure The applicant sought an extradition of the respondent Courts 1986 – Courts Act, 1981 from mandatory maximum extradition order for the under section 47 of the – Courts and Court Officers Act, sentence – whether trial judge erred rendition of the respondent to Extradition Act, 1965, Peart J 1995 – Misuse of Drugs Act, 1977 – Northern Ireland to face trial on held that there could be The plaintiff had initiated Criminal Justice Act, 1999 charges set out in 15 warrants on situations where a legal entity proceedings in the High Court This was an application for leave foot of which he had been could be an unlimited company for damages for personal injury. to appeal against sentence only. arrested in this jurisdiction. The or drop the word ‘limited’ from The claim also included alleged The applicant pleaded guilty to respondent submitted that his its title and the court could not breaches of competition law. drugs offences involving rendition to Northern Ireland assume that a mistake had been The proceedings were settled cannabis worth £22,170 and should not be ordered in view of made in making out the charge. and the defendants undertook to ecstasy worth £10,608 and was the fact that the offences with It would be a matter for evidence pay the plaintiff’s costs. The sentenced to seven years’ which he was charged did not at any trial as to whether Lisburn plaintiff’s costs were assessed by imprisonment. The applicant correspond with offences in this Proteins was in fact the entity the taxing master and the argued that two matters jurisdiction. Warrants one to ten which suffered prejudice. The defendants issued proceedings constituted exceptional and charged the respondent with word ‘false’ in section 30 of the contending that the taxing specific circumstances making and using instruments 2001 act had a specific meaning master had erred in his taxation permitting the judge to depart which were false with the and the allegation contained in of costs. A sum of £145,000 was from the mandatory maximum intention of using it to induce the charges set out in warrants allowed for the plaintiff’s sentence of ten years’ another person to act to their one to ten did not come within solicitor’s instruction fee and imprisonment, namely his plea prejudice contrary to section 1 of any of the paragraphs of section £22,000 was allowed as the brief of guilty and his provision of the Forgery and Counterfeiting 30 and the order sought in fee for senior counsel. It was material assistance in the Act, 1981. The respondent respect of those warrants would submitted that the plaintiff’s investigation of the offence. The submitted that the allegation of be, accordingly, refused. Given case was not one of great applicant also addressed the falsity contained in warrants one the provisions of section 31(1) of complexity and was essentially court more generally on the to ten did not correspond to the the 1997 act, the offences one that the plaintiff was subject severity of the sentence, having definition of ‘false’ in section 30 charged were summary offences, to unreasonable pressure at regard to his personal of the 2001 act, which definition the DPP for Northern Ireland work. In addition, it was circumstances and his lack of was exhaustive, not being having certified that they were to contended that the taxing previous convictions. qualified by the words ‘includes’ be tried summarily, and master had erred in principle in The Court of Criminal or ‘without prejudice to the accordingly the provisions of holding that there were no Appeal treated the application generality of the foregoing’ or section 51(1) of the 1965 act comparable cases and had failed for leave as the hearing of the such like. In respect of warrants were applicable. As the court had to apply the applicable law in appeal and held that the trial 11 to 14, the respondent not been furnished with

50 Law Society Gazette November 2003 Briefing evidence that the summonses result of the shortcomings in the in the property to which the suit their name on a resulting trust had been served, or notice of procedures adopted by the relates, request the court to for both parties and desertion such summonses, on the respondent. It was contended direct a sale of the property and could not disentitle a spouse to respondent, he did not come that the respondent had a distribution of the proceeds any pre-existing property rights. within sub-paragraphs (a), (b) frustrated the legitimate instead of a division of the Section 4 of the 1868 act was or (c) of that sub-section and expectation of the applicants. On property between … the parties the most appropriate provision the court would therefore behalf of the respondent, it was interested, the court shall, to be applied to the refuse the order sought in contended that liability for unless it sees good reason to the circumstances of the case and respect of those warrants. For damages in such circumstances contrary, direct a sale of the the defendant had discharged the purposes of a trial of an arose only when it was property accordingly’. The the onus under that section of offence under section 3 of the established that a statutory body plaintiff sought an order for sale proving that there was a good 1997 act, it was unnecessary to acted negligently or with malice, of premises occupied by the reason why the court should not charge the respondent with which had not been found in this defendant, her former husband, order the sale of the premises, intent on the charge sheet and, case. pursuant to sections 3 and 4 of being a family home within the accordingly, the offence of O’Donovan J awarded the Partition Act 1868. The meaning of section 2 of the assault under section 47 of the damages. The applicants had Circuit Court made an order Family Home Protection Act, 1976 1861 act corresponded to the suffered a quantifiable loss which that the premises be sold and as, in the absence of an offence in this jurisdiction was directly attributable to the that the proceeds be divided as agreement between the parties, contrary to section 3 of the shortcomings in the procedures to 40% to the defendant and an order for sale could not be 1997 act, and, accordingly, an adopted by the respondent. This 60% to the plaintiff. That order made under the Partition Acts order would be made in respect loss was readily foreseeable by was appealed to the High Court unless the court was also of warrant 15. the respondent in the event that by way of re-hearing. The satisfied that it should dispense Attorney General v Fay,High the determination was not valid. premises in question had with the consent of the non- Court, Mr Justice Peart, The respondent had a duty of previously been occupied by agreeing spouse under section 4 22/7/2003 [FL7988] care to the applicants when both parties since 1966, after of the 1976 act. making its determination, a duty they moved in with the BM v AM, High Court, Mr that it had breached. plaintiff’s parents, until the Justice Peart, 3/4/2003 DAMAGES Accordingly, in the absence of plaintiff deserted the family in [FL7913] any compelling exemption based 1989. The property had been Housing, landlord and tenant on public policy, the respondent purchased from Dublin Judicial review – damages – land was liable and a decree €5,817 Corporation by the plaintiff’s TRIBUNALS law – landlord and tenant – tort – would issue in favour of the parents, who up to then had negligent – state liability – applicants. been its tenants, so as to obtain Child abuse, fair procedures controlled dwellings – Beatty and Beatty v Rent a 30% discount on the price, Statutory tribunals – practice and determination of rent – whether Tribunal, High Court, Mr but the defendant thereafter procedure – direction by commission applicants had right to recover Justice O’Donovan, 16/5/ discharged the repayments to witness to attend before it – damages – Housing (Private 2003 [FL7989] under the transfer order and purpose for which direction issued – Rented Dwellings (Amend- under subsequent loans for its whether proper purpose – direction ment) Act, 1982 improvement. The plaintiff’s issued for purposes of discussing at The applicants had been FAMILY father subsequently left the public hearing witness’s capacity to granted an order of certiorari in premises to the plaintiff and give evidence – whether direction judicial review proceedings in Family home defendant jointly in his will. ultra vires – fair procedures – respect of the determination of Partition – family home – sale in The defendant sought a whether procedures adopted by the Rent Tribunal (the lieu of partition – court’s discretion declaration that he was entitled commission observed constitutional respondent) of the terms of a to refuse order for sale if good to the total beneficial interest in requirements of natural justice – tenancy with regard to a reason to contrary –– consent of the property on the basis that whether witness afforded fair property that the applicants spouse to sale of family home not the plaintiff had provided no procedures – whether direction owned. The rent had been set at forthcoming – appeal from order of consideration for it and on the should be quashed – application by £500 by the respondent and this Circuit Court – whether court fact of her desertion. He also commission to order witness to determination was quashed by should order sale of family home pleaded that the court should comply with direction – whether order of the High Court, owing and dispense with consent of non- exercise its discretion in order compelling compliance with to the procedures adopted by agreeing spouse – Partition Act refusing to order a sale on the direction should be granted – the respondent which had been 1868, sections 3 and 4 – Family grounds of the respective Commission to Inquire into found to be in breach of natural Home Protection Act, 1976 economic circumstances of the Child Abuse Act, 2000, section 14 and constitutional justice. Some Section 4 of the Partition Act parties. Following a series of 18 months later, the respondent 1868 provides that in ‘a suit for Peart J set aside the order of correspondence between the made its determination and this partition, where, if this act had the Circuit Court and declared parties concerning the time set the rent at €1,004 a not been passed, a decree for that both parties were entitled applicant’s ability to tender month. The applicants now partition might have been to be registered as joint owners evidence to the Commission to sought to recover damages, made, then if the party or of the premises on a 50-50 basis, Inquire into Child Abuse due to contending that they had parties interested … to the holding that the plaintiff’s his health, the applicant had suffered a quantifiable loss as a extent of one moiety or upwards parents held the premises in been issued with a direction to

51 Law Society Gazette November 2003 Briefing attend at the commission in issued in March 2003. The High commission only to issue a applicant might be avoided, the March 2003. The letter issuing Court dismissed the applicant’s direction to attend at its public exercise of the court’s discretion the direction stated that it was claim for an order of certiorari of hearings for the purposes of was in favour of granting the for the purpose of investigating that direction and acceded to the giving evidence to it. relief sought. the applicant’s capacity to give respondent’s application for an Accordingly, the direction to the Meenan v Commission to evidence at a public hearing of order pursuant to section 14(3) appellant to attend at a public Inquire into Child Abuse, the commission and that the of the 2000 act requiring the hearing for the purposes of Supreme Court, 31/7/2003 investigation into the applicant’s applicant to comply with the investigating his ability to give [FL7866] G health would itself be held in direction. The applicant evidence had been issued for an public. The prior correspond- appealed that decision to the unlawful purpose. As the The information contained here ence between the parties Supreme Court. applicant had not been treated is taken from FirstLaw’s Legal concerning the manner of The Supreme Court allowed fairly by the respondent, having Current Awareness Service, pub- dealing with the question of his the appeal, quashed the direction regard to the course of dealings lished every day on the Internet at capacity to give evidence had and dismissed the application of between the parties and the fact www.firstlaw.ie. For more infor- indicated to the appellant a the respondent pursuant to that the respondent was not mation, contact [email protected] different procedure than the one section 14(3) of the 2000 act, entitled, without stating reasons, or FirstLaw, Merchants Court, ultimately adopted by the holding that section 14(1) of that to discount the possibility that Merchants Quay, Dublin 8, tel: 01 commission in its direction act gave power to the public examination of the 679 0370, fax: 01 679 0057.

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52 Law Society Gazette November 2003 Briefing Eurlegal News from the EU and International Affairs Committee Edited by TP Kennedy, director of education, Law Society of Ireland

EU immigration and asylum law and policy

ast month’s article (Eurlegal, which nationals of third coun- the Greek Olympics/Para- country nationals for paid Lpage 49) outlined the cur- tries shall have the freedom to lympics in 2004 is provided in employment and self-employed rent EC treaty framework for travel within the territory of the regulation 1295/2003 (OJ 2003 economic activity was presented immigration and asylum law and member states for up to three L183/1). Building on the by the commission in July 2001 policy, provided an overview of months. Article 63(3) provides Schengen acquis, there are com- (COM (2001) 386 final) and is ‘headline’ developments, briefly for the adoption of measures mon consular instructions on currently being considered by outlined the position of Ireland covering conditions of entry visas for diplomatic missions the council. Ireland has opted in with its opt-out protocol and and residence, procedures for and consular posts (OJ 2002 to this process. The council is considered the implications of the issue of long-term visas and C313/1, amended by regula- also considering a commission the proposed treaty establishing residence permits, including for tions 415/2003 and 693/2003), proposal, presented in October a constitution for the EU. family reunion, and illegal the common manual (OJ 2002, on entry and residence for This purpose of this article is immigration/residence. Article C313/97, amended by regula- the purposes of studies, voca- to provide a snapshot of current 63(4) provides for measures tion 693/2003), regulation tional training and voluntary and proposed EU measures defining the rights and condi- 415/2003 on the issue of visas at service (COM (2002) 548 final). based on the immigration and tions under which third-country the border to seamen in transit The commission is currently asylum provisions of the EC nationals legally residing in one (OJ 2003 L64/1), and regula- preparing a communication on treaty, and to indicate where member state may reside else- tions 693/2003 and 694/2004 entry and residence of research these impact on the Irish posi- where in the union. (OJ 2003 L99/8 and 15) on workers from third countries. In tion. It attempts to be as com- Last year, the council adopt- facilitated transit documents. the longer term, it is working on prehensive as possible in the ed decision 2002/463 on an Regulation 1683/95, laying proposals for a union-wide space available. However, it action programme for adminis- down a uniform format for quota for immigrants. does not address the pre- trative co-operation in the fields visas, was amended by regula- In June of this year, political Amsterdam acquis, much of of external borders, visas, asy- tion 333/2002 (2002 OJ L53/4) agreement was reached on the which continues to be relevant lum and immigration (OJ 2002 and is the subject of a proposed directive concerning the status pending the adoption and entry L161/15). amending regulation to enable of third-country nationals who into force of measures under the Border checks. The devel- the integration of biometric are long-term residents (council post-Amsterdam provisions, or opment of a common and inte- identifiers into the uniform for- doc 10214/03, MIGR 45). the Schengen arrangements (to grated policy for the manage- mat (COM (2003) 558 final). Formal adoption appears to which Ireland has partly signed ment of external borders has The commission has been depend on parliamentary scruti- up), and it does not deal with been the subject of a commis- working on a feasibility study ny procedures in one member measures taken under other EC sion communication in May on a common identification state being completed. The treaty provisions (the 2000 2002 (COM (2002) 233 final), system for visa data, and the directive will address the condi- Equality directives, for example). which was endorsed by a coun- council adopted guidelines for tions for obtaining (and losing) cil plan in June 2002 (council the further development of the the status and the rights attach- Immigration doc 10019/02). These and other visa information system (VIS) ing to such status, including Article 61(1) of the EC treaty initiatives were endorsed by the in June 2003. Ireland has decid- those of equal treatment with provides for the adoption of June 2002 Seville European ed to stay out of all of these and host nationals in a wide number measures to ensure the absence Council. other short-term visa arrange- of areas. The directive will not of internal border controls. Visas for short visits. ments. apply to Ireland, the UK or Article 62(2) of the EC treaty Regulation 539/2001 lists the Freedom to travel for Denmark. provides for measures on the third countries whose nationals short visits. A 1995 commis- Residence permits. In June crossing of the external borders require visas or are exempt from sion proposal for a directive on last year, the council adopted of member states, covering the this requirement (OJ 2001 the right of third-country regulation 1030/2002 laying standards and procedures to be L81/1). This has been amended nationals to travel in the com- down a uniform format for resi- followed by member states in by regulation 2414/2001 (OJ munity (COM (95) 346 final) dence permits for third-country carrying out border checks as 2001 L327/1) and regulation remains on the council table. nationals (OJ 2002 L157/1). well as rules on visas for stays of 453/2003 (OJ 2003 L69/10). A Conditions of entry and The commission has proposed less than three months. Article temporary derogation from this residence. A proposal for a an amending regulation (COM 62(3) provides for measures set- regime for members of the directive on the conditions of (2003) 558 final) to allow the ting out the conditions under ‘Olympic family’ taking part in entry and residence of third- integration of biometric identi-

53 Law Society Gazette November 2003 Briefing fiers. Ireland is not party to 2002 L328/1). Ireland is party The Council of Ministers framework to some extent, the these arrangements. to each. Following a French ini- adopted a return action pro- October 1999 Tampere Directive 2003/86 on the tiative, there has been a direc- gramme in November 2002 European Council set out the right to family reunification was tive on carrier’s liability, supple- (council doc 14673/02) and a objective of a common adopted in September and is to menting article 26 of the agree- specific return programme for European asylum system, based be implemented by October ment implementing the Afghanistan (council doc on the full and inclusive applica- 2005 (OJ 2003 L251/12). It Schengen agreement, in which 14654/02). In January 2003, tion of the Geneva convention and determines the conditions for Ireland participates and which is Germany proposed a directive maintaining the principle of the exercise of the right by to be implemented by February on assistance in cases of transit non-refoulement. A two-step third-country nationals residing 2003 (OJ 2001 L187/45). for the purposes of removal by approach was set out. In the lawfully in the territory of mem- Operational co-operation has air (OJ 2003 C4/4) and this has short term, there should be a ber states. The directive does been promoted by the February been followed by a Spanish pro- clear and workable determina- not bind Ireland, the UK and 2002 action plan, by the com- posal for a directive on the obli- tion of the state responsible for Denmark. mission proposal in February gation of carriers to communi- examining an asylum applica- Illegal immigration and 2002 for a directive on a resi- cate passenger data (OJ 2003 tion, common standards for a residence. In February 2002, dence permit issued to victims of C82/23). In September 2003, fair and efficient procedure, the Council of Ministers adopt- trafficking (COM (2002) 71 Italy made proposals for a direc- common minimum standards of ed a comprehensive action plan final), and by the council adop- tive on assistance in cases of reception of asylum seekers and to combat illegal immigration tion in May 2003 of the Brussels transit in the context of removal the approximation of rules on and the trafficking of human declaration on the prevention of orders taken against third-coun- refugee status. In the longer beings (OJ 2002 C14/23) and, in trafficking in human beings and try nationals (council doc term, community rules should June of that year, the council combating the phenomenon (OJ 12026/03) and for a decision on lead to a common asylum proce- adopted a plan for the manage- 2003 C137/1). the organisation of joint flights dure and a uniform status for ment of the union’s external In relation to countries of ori- for removals of third-country those granted asylum, which borders (council doc 9620/02). gin and transit, co-operation nationals (council doc 12025/ should be valid throughout the Combating illegal migration has networks to combat illegal 03, MIGR 75). The commission union. become a political priority, and immigration from China and is planning to present a propos- Ireland has opted in to a large this is reflected in the amount of the western Balkans have been al for a directive on minimum number of the adopted and pro- current and proposed legisla- set up. The council has adopted standards for return procedures posed asylum measures. tion. Ireland is party to many of conclusions in November 2002 before the end of the year. The member state respon- these measures. It should also be and May 2003. In June 2003, the Free movement of third- sible. As from September 2003, noted that Ireland is participat- commission proposed a regula- country nationals. Chapter 3 the Dublin convention has been ing in relevant parts of the tion establishing a multiannual of the directive concerning the generally replaced by council Schengen acquis by virtue of programme for financial and status of long-term resident regulation 343/2003 establish- decision 2002/192 concerning technical assistance to third third-country nationals (see ing the criteria and mechanisms Ireland’s request to take part in countries in the area of migra- above) sets out the conditions for determining the member some of the provisions of this tion and asylum (COM (2003) under which those who have state responsible for examining acquis (OJ 2002 L64/20). Ireland 355 final). Readmission agree- acquired the status under the an asylum application lodged in is currently undergoing a ments between the community directive in one member state one of the member states by a process of adaptation to these and Hong Kong, Sri Lanka and may reside in other member third-country national (OJ 2003 provisions. Macao have been initialled or state for periods of more than L50/1). Norway and Iceland In relation to trafficking, in signed. Negotiations for such three months. Ireland has not have agreed to be bound by the July 2002 the council adopted a agreements are on-going with signed up to this directive. regulation. The Dublin conven- framework decision under the Albania, Algeria, China, tion remains in force in relation justice and home affairs (JHA) Morocco, Pakistan, Russia and Asylum to Denmark, pending an agree- provisions on combating traf- Turkey. Article 63(1) of the EC treaty ment to allow participation in ficking in human beings (OJ In relation to the develop- provides for the adoption of the regulation. Ireland (as well 2002 L203/1), which is binding ment of common minimum measures in relation to deter- as the UK) participated in the on Ireland and is due to be standards on expulsion and mining the member state adoption of the regulation and implemented by August next return, the council in May 2001 responsible for considering an section 22 of the Refugee Act, year. adopted directive 2001/40 on asylum application, minimum 1996 has been amended by the Following a French initiative the mutual recognition of expul- standards on reception, mini- Immigration Act, 2003 to reflect in 2000, the council adopted in sion orders (OJ 2001 L149/34), mum standards on the qualifica- the new regulation as well as to November 2002 directive in which Ireland now partici- tion of a person as refugee and enable the conclusion by Ireland 2002/90 defining the facilitation pates. In February 2003, the minimum standards on proce- of agreements with ‘safe third of unauthorised entry, move- commission presented a propos- dures for granting or withdraw- countries’ such as Canada and ment and residence (OJ 2002 al for a decision setting out the ing the status. Article 63(2) pro- Switzerland. L328/17) and a framework deci- criteria and practical arrange- vides for measures on refugees The application of the Dublin sion 2002/946 (under the JHA ments for the compensation of and displaced persons to cover convention and the 2003 regula- provisions) on the strengthen- the financial imbalances result- temporary protection and bur- tion has been facilitated by the ing of the penal framework to ing from the application of this den sharing. introduction by regulation prevent such facilitation (OJ directive (COM (2003) 49 final). Developing the EC treaty 2725/2000 of the ‘Eurodac’ sys-

54 Law Society Gazette November 2003 Briefing tem for the comparison of fin- refugee status (COM (2000) 578 gerprints (OJ 2000 L316/1). final), which was amended in This community-wide informa- 2002 (COM (2002) 326 final). tion technology system for The proposal sets out a series of comparing the fingerprints of minimum standards covering applicants for asylum took some matters such as procedural time to implement and entered guarantees, the decision-making into operation only in January process and common standards 2003. Ireland and the UK have for applying concepts such as opted in to the arrangements, ‘manifestly unfounded applica- but Denmark is not involved. tions’ and ‘safe third country’. Reception. In January 2003, The Seville European Council the council adopted directive called for agreement by the end 2003/9 laying down minimum of 2003. Ireland has opted in. standards on the reception of Temporary protection. In asylum applicants in member July 2001, the council – driven states (OJ 2003 L31/25). The by the effects of conflicts in the directive, which is designed to Balkans – adopted directive ensure that applicants be given a 2001/55 on minimum standards dignified standard of living in for giving temporary protection the member state of reception in the event of a mass influx of and to prevent secondary move- displaced persons and on meas- ments based on differences in ures promoting a balance of reception conditions, is to be efforts between member states implemented by February 2005. in receiving such persons and The UK has opted in to the bearing the consequences there- directive, but Ireland has, so far, of (OJ 2001 L212/12). Member remained out, as has Denmark. states had to implement the Qualification as refugee. In provisions of this directive by 31 September 2001, the commis- December 2002. Ireland has sion proposed a directive laying recently signed up to the direc- down minimum standards for tive and, under commission the qualification and status of decision 2003/690 (OJ 2003 third-country nationals and L251/23), has until the end of stateless persons as refugees or 2003 to make the necessary as persons who otherwise need implementing provisions. international protection (COM Burden sharing. The (2001) 510 final). The proposal European Refugee Fund was sets out the framework for deal- established by council decision ing with refugees in the strict in September 2000 (OJ 2000 sense and those seeking sub- L252/12). The aim of this sidiary (or complementary) pro- financial instrument, in which tection; it defines refugees, Ireland participates, is to sup- addresses the issue of non-state port and encourage the efforts agents where a state is unable or made by the member states in unwilling to provide protection, receiving and bearing the con- provides for the internal protec- sequences of receiving refugees tion alternative and defines and other displaced persons. It when a person is unable to avail covers measures on reception, of the status. It also includes on integration of refugees/other provisions on the rights and people seeking protection and benefits to be enjoyed. Ireland voluntary return. The first has opted in. The June 2003 phase of implementation of the Thessaloniki European Council fund ends in December 2004, called for adoption of the direc- and the commission is currently tive before the end of this year. proposing to submit a proposal Procedures. The commis- for a new instrument, to be sion made a proposal in operational from 1 January September 2000 for a directive 2005. G on minimum standards on pro- cedures in member states for John Handoll is a partner in the granting and withdrawing Dublin law firm William Fry.

55 Law Society Gazette November 2003 Law Society of Ireland Annual Conference 2004

S14 – 18 Aprilicily 2004

DUEDUE TOTO LIMITEDLIMITED AVAILABILITYAVAILABILITY –– BOOKBOOK NOWNOW CHARTER PACKAGE PRICE: €1,050 (may be subject to surcharges) (includes return charter flight to Sicily, transfers, four nights’ bed and breakfast, reception, conference and gala dinner) Additional charges: registration fee, optional tours, transfers for non-charter package delegates, and insurance Note: due to the limited hotel accommodation and scheduled flight availability, it is recommended that you book for the direct charter flight package now to avoid disappointment. The conference brochure and booking form will be published in the December issue of the Gazette. Please ensure to complete the booking form in full and submit it to the Law Society in order to confirm your booking. Bookings cannot be guaranteed without receipt of a completed booking form.

ADVANCE BOOKING FORM & PAYMENT

Delegate name:

Name(s) of accompanying person(s):

Firm:

Tel: Fax: E-mail:

Flight preference (PLEASE TICK): Charter: Scheduled:

BY CHEQUE: I enclose a cheque in the sum of € (€400 per person travelling) OR representing booking fee (non refundable after 20th February 2004). Sicily BY CREDIT CARD: Name of cardholder

Expiry date: ____/____/____ Amount:

Type of card & credit card number:

Signed: Date:

Please return the above completed form and payment to: Sarah Ellins, Law Society of Ireland, Blackhall Place, Dublin 7. DX79. Tel: 01 672 4823, fax: 01 672 4833, e-mail: [email protected] Briefing Recent developments in European law EMPLOYMENT later, in 1998, the Italian pension ESTABLISHMENT pass the entrance examination of was reduced on account of the the French National School of Case C-422/-01 Försäkringsak- award of a French pension. Later Case C-246/00 Commission of the Public Health. Ms Burbaud argued tiebolaget Skandia and Ola that year, he was granted a retire- European Communities v Kingdom that this requirement did not recog- Ramstedt v Riksskatteverket, 26 ment pension by Luxembourg but of the Netherlands, 10 July 2003. nise the equivalence of her Portu- June 2003. Swedish legislation was late in informing the Italian The EC directive on driving licences guese qualification and was thus in distinguishes between pension institute about it. In 2000, the provides for the mutual recognition breach of the 1988 directive on insurance and endowment insur- institute recalculated the Italian of driving licences issued by the mutual recognition of diplomas. ance. To be considered as pen- pension and reduced it retrospec- member states. Member states are The ECJ held that confirmation of sion insurance, a policy must be tively from 1 July 1988. To offset free to apply their own national pro- passing this examination could be taken out with an insurer estab- the overpaid sums, all pension visions in relation to the duration of regarded as a diploma. It is for the lished in Sweden. The two types payments ceased. Mr Pasquini the licence, medical checks and national court to ascertain its eq- of insurance are subject to differ- brought legal proceedings chal- fiscal provisions. Member states uivalence to the Lisbon school of ent taxation rules. The effects of lenging the Italian legislation that are also entitled to enter onto the public health qualification. Requir- these rules are less favourable for permitted recovery of overpay- licence matters essential for ing qualified candidates to pass endowment insurance. Ola ment of pensions. He argued that administrative purposes where the the examination is an obstacle to Ramstedt is a Swedish national the legislation was incompatible licence-holder takes up residence the free movement of workers that employed by Skandia, a Swedish with the EC regulations on the pro- in a state other than the one that is incompatible with the EC treaty. undertaking. Skandia took out an tection of employed persons. issued the licence. Dutch legisla- This requirement does not take occupational pension for Mr Italian law did not provide a limi- tion requires holders of a licence into account qualifications in the Ramstedt with an insurance com- tation period for the bringing of an issued in another member state to area of hotel management gained pany established in another mem- action to recover such sums. The register with the Dutch authorities. in other member states and thus ber state. The Swedish Council for ECJ pointed out that the purpose In the absence of registration, the places nationals of those states at Advance Tax Rulings determined of the EC regulations on social licence is deemed valid from one a disadvantage and makes it diffi- that this policy should be classi- security schemes are to co-ordi- year of establishment in the cult for them to exercise their fied as endowment insurance. nate rather than harmonise Netherlands. For those who regis- rights, as workers, to freedom of Skandia and Mr Ramstedt national legislation in this area. ter, their licence is approximated to movement. The court could not find appealed this ruling to the For the calculation of limitation the position of a Dutch licence. The a justification for this restriction. Supreme Administrative Court, periods, it is national rules which commission argued that the Dutch which made a reference to the are applicable. In relation to rules failed to fulfil the obligation of TORT ECJ. It held that the treaty rules migrant workers, the member mutual recognition of driving on the provision of services apply state must exercise the power of licences set out in the directive. The commission on 22 July 2003 to such a situation. Tax rules such calculating such periods in accor- The ECJ indicated that there are no adopted a final proposal for a regu- as those in Sweden restrict free- dance with EC principles of equiv- discretions left to the member lation on choice of law rules for dom to provide services. The alence and effectiveness. states in the directive and that non-contractual obligations. This is rules are liable to deter Swedish Procedures regulating rights deriv- mutual recognition is to be carried known as the ‘Rome II’ proposal – employers from taking out occu- ing from a freedom conferred by out without any formality. The Dutch ‘Rome I’ refers to the proposal to pational pension insurance with the treaty must not be less requirement for registration is a for- convert the Rome convention on institutions established in a mem- favourable than those laid down mality that runs counter to the pro- choice of law in contract into a reg- ber state other than Sweden and for internal situations. They must visions of the directive. The Dutch ulation. The objective of the Rome to deter those institutions from not make it impossible or exces- government justified its measure II proposal is to ensure that courts offering their services on the sively difficult to exercise rights on public interest grounds in con- in all the member states apply the Swedish market. The ECJ did not conferred by the treaty. The court nection with road safety. However, same law to cross-border disputes find a convincing justification for looked at Italian law on pensions the ECJ held that the measure was relating to non-contractual obliga- the rules. and noted that for domestic disproportionate. tions and thus facilitate mutual Case C-34/02 Sante Pasquini schemes that there was a provi- recognition of court rulings in the v Istituto Nazionale di Previdensa sion requiring the institute to FREE MOVEMENT OF EU. The proposal focuses on civil Sociale, 19 June 2003. Mr review, once a year, the income PERSONS liability for damage caused to oth- Pasquini lives in Luxembourg. He received by pensioners and its ers, particularly in case of accident had worked for 140 weeks in Italy, effect on entitlement to, or the Case C-285/01 Isabel Burbaud, 9 such as traffic accidents or acci- 336 weeks in France and 1,256 amount of, their pension. If a sim- September 2003. Ms Burbaud is a dents caused by a defective prod- weeks in Luxembourg. The day ilar approach had been taken for Portuguese national. She secured uct or in the case of invasion of pri- before his 60th birthday, he migrant workers, any overpayment a qualification as a hospital admin- vacy. It is hoped that the regulation received a retirement pension would have been limited to one istrator from the National School of will reduce forum shopping in from the Italian institute of social year. Therefore, EC law principles Public Health, Lisbon, and worked these cases. The basic rule in the insurance to which was added a of equivalence and effectiveness in that capacity in Portugal. She regulation is that the law applied further sum to bring it up to the required the institute to review sought admission to the hospital will be that of the state where the level of Italian pensions, as he once a year the situation of managers’ corps in the French civil damage is sustained. A number of was not receiving either a French migrant workers in receipt of a service and was refused on the exceptions are allowed to cover or Luxembourg pension. A year pension. basis that it was first necessary to specific cases. G

57 Law Society Gazette November 2003 People and places

Crystal clear Word perfect Pictured at a recent CPD seminar on conveyancing and taxation issues IT consultant Mark Hainbach (second from left) helping on farm disposals held in Waterford are: Brian Bohan of Bohan practitioners to master the core skills of word processing in the first Solicitors, Dublin; John Purcell of Purcell & Cullen Solicitors, Waterford; of a series of five workshops organised by the CPD department in and Owen Binchy of James Binchy & Son Solicitors, Co Cork the Tipperary Institute, Thurles

Rights and wrongs The Law Society and the Human Rights Commission (HRC) hosted a conference on new human rights legislation on 18 October at Blackhall Donegal catch Place. Pictured at the conference are: (from left) Mr Justice Brian Kerr, The Donegal Bar Association held a dinner in July to honour the High Court of Northern Ireland; Lord Justice Laws of the Court of Appeal appointment of Geraldine O’Connor as the new county registrar. of England and Wales; Alma Clissmann of the society’s task force on the Pictured at the event are (from left) Mairin McCartney, Monaghan European convention on human rights; James MacGuill, task force county registrar Josie Duffy, Circuit Court judge Matthew Deery, chairman; Chief Justice Ronan Keane; Michael Kealey of William Fry; Geraldine O’Connor, bar association secretary Margaret Mulrine, Aideen Alpha Connolly, chief executive of the HRC; Dr Maurice Manning, HRC Collard, assistant county registrar Anne McGinley and (standing) bar president; and Justice Rosalie Abella of the Ontario Court of Appeal association chairman Niall Sheridan

Down on the farm Ballinabrackey was the venue for this year’s National Ploughing Championships. Once again, the Law Society had a stand at the three- day event. Local solicitors helped out at the stand and were kept busy by a constant stream of people looking for advice on matters such as making a will and land law. The society would like to thank those Head office solicitors – the stand would not have been possible without their Pictured at the official opening of the new offices of Holmes O’Malley support. Pictured are (from left) Anthony Murphy of Regan MacEntee & Sexton in Limerick are (from left) attorney general Rory Brady, managing Partners, Co Meath; Claire O’Sullivan, Law Society members’ services partner Seán Hayes, chairman Gordon Holmes, justice minister Michael executive; and Michelle Nolan, information and professional McDowell, and James Sexton development executive

58 Law Society Gazette November 2003 People and places

Caring profession The Law Society and the Institute of Professional Legal Studies at Queen’s University, Belfast, recently held a client care workshop in Enniskillen. Pictured are (from left) the institute’s Ruth Craig, Antoinette Moriarty, Law Society student welfare executive, and the institute’s Anne Fenton

Arguing the toss Judges, tutors and participants are pictured here at Blackhall Place on the final evening of the advanced advocacy for solicitors course, held from 15-19 September

The go-betweens Pictured at the graduation ceremony for recipients of You’re claimed Grand designs diplomas in mediation studies At the launch of Small claims court in Ireland: a The new offices of Dillon Mullins and Company have are Joanne Dwyer of the Chief consumers guide (2003), published by FirstLaw, were won the Royal Institute of Architects of Ireland’s State Solicitor’s Office (who (from left) Carmel Foley, director of the Office of 2003 National Architectural Award. Pictured outside achieved first place) and William Consumer Affairs, FirstLaw’s Bart Daly and the the Kinsale offices are architect Tom O’Sullivan, Devine of BCM Hanby Wallace book’s author Damian McHugh Patrick Mullins and Andrew Dillon

Counting the costs Working on the chain gang Pictured in Limerick at the recent annual conference of the Institute of Changing of the guard in the Dublin Solicitors’ Bar Association Legal Accountants are: (from left) Bart Mooney, secretary; Kay on 29 October: John O'Connor receives the chain of office from Webberley, treasurer; guest speaker Paddy Glynn; and chairman John outgoing president James McCourt Hogan

59 Law Society Gazette November 2003 WHERE THERE’S A WILL THIS IS THE WAY… TRIBUNAL&

When a client makes a will in favour of the Society, it would ARBITRATION CENTRE be appreciated if the bequest were stated in the following words: “I give, devise and bequeath the sum of X euros to the Irish Cancer Society Limited to be applied by it for any of its

charitable objects, as it, at its absolute discretion, may decide.” The Law Society’s tribu- nal and arbitration facili- All monies received by the Society are expended within the ties at Bow Street Republic of Ireland. Friary: ■ Five minutes from “Conquer Cancer Campaign” is a Registered Business Name Four Courts and is used by the Society for ■ Tribunal room with PA system and pub- some fund-raising purposes. The lic gallery “Cancer Research Advancement ■ State-of-the-art Board” allocates all Research recording system ■ Grants on behalf of the Society. Six supporting con- sultation rooms

Also suitable for: ■ Board meetings For booking phone: ■ Training sessions 5 Northumberland Road, Dublin 4. Tel: (01) 231 0500 ■ Off-site meetings 15 Bridge Street, Cork. Tel: (021) 4509 918 Web: www.cancer.ie 01 804 4150

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● Christmas parties Contact: ● Christmas lunches ● Annual dinners Hillcrest House, ● Retirement parties Dargle Valley, Bray, Co. Wicklow. ● BBQs ● Family days Telephone/Fax: (01) 286 2184 or CONTACT THE CATERING MANAGER 4b Arran Square, Dublin 7 Tel: 01 672 4800, fax: 01 672 4801 E-mail: [email protected], website: www.lawsociety.ie Telephone: (01) 873 2378 Law Society of Ireland, Blackhall Place Professional information

LOST LAND Regd owner: Philip Murphy and Harriet CERTIFICATES Murphy; folio: 68411F; lands: a plot of LawSociety ground being part of the townland of Gazette Registration of Title Act, 1964 Trabolgan and barony of Imokilly in An application has been received from the the county of Cork; Co Cork registered owners mentioned in the sched- Regd owner: Edmond O’Brien; folio: ADVERTISING RATES ule hereto for the issue of a land certificate 14131F; lands: a plot of ground being Advertising rates in the Professional information section are as follows: as stated to have been lost or inadvertent- part of the townland of Moydilliga and barony of Condons and Clangibbon in ly destroyed. A new certificate will be Lost land certificates – €46.50 (incl VAT at 21%) issued unless notification is received in the the county of Cork; Co Cork • registry within 28 days from the date of Regd owner: Ellen Leslie Jacqueline Day, • Wills – €77.50 (incl VAT at 21%) publication of this notice that the original Moress Farm, Inch Island, via Lifford, • Lost title deeds – €77.50 (incl VAT at 21%) certificate is in existence and in the cus- Co Donegal; folio: 27362; lands: Bo • Employment miscellaneous – €46.50 (incl VAT at 21%) tody of some person other than the regis- Island; area: 1.9526 hectares; Co tered owner. Any such notification should Donegal HIGHLIGHT YOUR ADVERTISEMENT BY PUTTING A BOX AROUND IT – €30 EXTRA Regd owner: Francis Drohan, 9 state the grounds on which the certificate All advertisements must be paid for prior to publication. Deadline for December is being held. Beechmount Grove, Navan, Co Gazette: 21 November 2003. For further information, contact Catherine (Register of Titles), Central Office, Land Meath; folio: 10531F; lands: Registry, Chancery Street, Dublin Cashelshanaghan; area: 0.500 acres; Kearney or Valerie Farrell on tel: 01 672 4828 (fax: 01 672 4877) (Published 7 November 2003) Co Donegal Regd owner: Eamonn Byrne and Regd owner: John and Matthew Lacey, Geraldine Byrne; folio: DN113743F; Regd owner: John O’Byrne and Fiona Regd owner: Joan O’Callaghan; folio: Drumcarey, Corlismore, Co Cavan; lands: property known as site no 32 Foley; folio: DN8712F; lands: proper- 17999; lands: townland of Laharan and folio: 19003; lands: Dingins; area: Springlawn Road situate in the town ty situate in the townland of barony of Trughanacmy; Co Kerry 0.2276 hectares; Co Cavan of Blanchardstown and parish of Priorswood and barony of Coolock; Regd owner: Jeremiah Joseph Lynch; Regd owner: Sean Fennelly; folio: 4388; Castleknock; Co Dublin Co Dublin folio: 18194 Kerry; lands: townland of lands: Kilcarry, Clonegal in the county Regd owner: Oliver Canniffe and Mary Regd owner: Colm Christopher Perry; Derreen and barony of Iveragh; Co of Carlow; Co Carlow Canniffe; folio: DN60017L; lands: folio: DN19208; lands: property situ- Kerry Regd owner: Daniel Boland and Margaret property known as 32 Swilly Road sit- ate in the townland of Oldcourt and Regd owner: Michael and Majella Boland: folio: 25633; lands: (1) uate in the parish of Grangegorman barony of Uppercross; Co Dublin Bermingham; folio: 12420F; lands: Kilballyowen, (2) Carrowmore South and district of North Central; Co Regd owner: Bernard (senior) Williams townland of Aghards and barony of and barony of (1) Moyarta, (2) Ibrickan; Dublin and Mary Williams; folio: DN21410L; North Salt; Co Kildare area: (1) 0.3970 hectares (2) 0.2402 Regd owner: Alan Bennett; folio: lands: property known as 26 Leighlin Regd owner: Eamonn and Stella Hogan; hectares; Co Clare DN115492F; lands: (1) property situ- Road situate in the parish of Crumlin, folio: 11315; lands: townland of Regd owner: Frank Doherty; folio: ate in the townland of Ballisk and district of Terenure; Co Dublin Garterfarm and barony of Kilkea and 24047F; lands: townland of Lifford and barony of Nethercross (plan G5J2), (2) Regd owner: the county council of the Moone; Co Kildare barony of Islands; Co Clare property situate in the townland of county of Dublin; folio: DN14005; Regd owner: Edward McBride and Regd owner: The Council of the Urban Ballalease North and barony of lands: (1) property situate in the town- Mairead Rohan; folio: 32092F; lands: District of Ennis; folio: 19510; lands: Nethercross (plan G5J3); Co Dublin land of Roebuck and barony of townland of Barnhall and barony of townland of Lifford and barony of Regd owner: Marion Coyle; folio: Rathdown plan no 143; (2) property North Salt; Co Kildare Islands; area; 1.2899 hectares; Co DN65874L; lands: property known as situate in the townland of Roebuck and Regd owner: Patrick Murphy; folio: Clare no 47 Thornville Road situate in the barony of Rathdown plan no 13, 16, 1653; lands: townland of Brownstown Regd owner: Michael Kennelly parish and district of Kilbarrack; Co 18; (3) property situate in the townland Lower and barony of Offaly East; Co (deceased); folio: 17644; lands: town- Dublin of Roebuck and barony of Rathdown Kildare land of Leeds and barony of Ibrickan; Regd owner: Andrew Crichton; folio: plan no 5; Co Dublin Regd owner: Christopher Ward; folio area: 7.6232 hectares; Co Clare DN141778F; lands: a plot of ground Regd owner: John Valentine Butler, 12381; lands: townland of Mulgeeth Regd owner: Denis McInerney (deceased) known as 1 Bramblefield Drive, Kilkieran, Kilmane, Co Galway; folio: and barony of Carbury; Co Kildare and Mary McInerney (deceased); folio: Blanchardstown situate in the town- 13613F; Co Galway Regd owner: John Egan (junior); folio: 648; lands: townland of Lisduff and land of Huntstown and barony of Regd owner: Patrick J Kerins (deceased) 14479; lands Clonfinlough and barony barony of Tulla Upper; area: 8.1038 Castleknock shown as plan H43M; Co folio: 8033; lands: townland of Garrycastle; Co Kings hectares; Co Clare Dublin Ballinastaig (Kiltartan By); Co Galway Regd owner: Liam Davis; folio: 26526; Regd owner: Joseph Mulvihill (deceased); Regd owner: Gerald D Furey and Regd owner: George Nelissen and Mary lands: townland of Gortboy and folio: 24080; lands: townland of (1) Philomena Furey; folio: DN5986F; Nelissen; folio: 35709F; lands: town- barony of Glenquin; Co Limerick Killerk West, (2) and (3) Islandavanna lands: property situate in the townland land of Ballinderreen and barony of Regd owner: Mary O’Brien, Upper (Intake) and barony of (1), (2) of Rathmines Great and barony of Dunkellin; area: 0.164 hectares; Co Rawleystown, Grange, Kilmallock, Co and (3) Islands; area: (1) 10.0413 Rathdown; Co Dublin Galway Limerick; folio: 25705; lands: town- hectares, (2) 1.0825 hectares, (3) 1.0598 Regd owner: David and Bernadette Regd owner: Brian Noone; folio: 53384; land of Rawleystown and barony of hectares; Co Clare Keith; folio: DN21042F; lands: prop- lands: townland of (1) and (2) Smallcounty; area: 33.250 acres or Regd owner: Francis O’Halloran erty situate in the townland of Gortnaboha, (3) Caraun More and (4) thereabouts like measure; Co (deceased) and Maura O’Halloran; Kellystown and barony of Cappaghnanool and barony of (1), (2), Limerick folio: 6134F; lands: townland of Castleknock; Co Dublin (3), and (4) Kilconnell; area: (1) Regd owner: Josephine O’Brien; folio: Cahircalla More and barony of Islands; Regd owner: Eamonn Peel and Karen 13.3684 hectares, (2) 1.5428 hectares, 2813F; lands: townland of Ballymartin area 0.481 acres; Co Clare Lafford; folio: DN137982F; lands: (3) 3.7028 hectares, (4) 0.9231 and barony of Kenry; Co Limerick Regd owner: Timothy Tuohy and Patrick property known as site no 71 Fforster hectares; Co Galway Regd owner: Nicola O’Halloran and Tuohy; folio: 1240; lands: Garryeighter Park, Ballydowd Manor, Lucan, situ- Regd owner: Michael Seoighe and Patrick Frawley; folio: 3894L; lands: and barony of Leitrim; area: 3.8825 ate in the townland of Ballyowen and Grainne Seoighe; folio: 39628F; lands: Co Limerick, Co Borough; Co hectares; Co Clare barony of Newcastle; Co Dublin townland of Keeraunbeg and barony of Limerick Regd owner: Clodagh Gleeson; folio: Regd owner: Tarig Mohamed and Eiman Moycullen area; Co Galway Regd owner: Jeremiah Ryan; folio: 5450; 93552F; lands: a plot of ground being Salih; folio: DN128213F; lands: prop- Regd owner: Patrick Spellman and Mary lands Moohane and barony of part of the townland of Castleredmond erty situate in the townland of Spellman, Ballyglass, Ahascragh, Smallcounty; Co Limerick and barony of Imokilly in the county of Porterstown and barony of Ballinasloe, Co Galway; folio: 20865F; Regd owner: John and Lucy Walsh; folio: Cork; Co Cork Castleknock; Co Dublin lands: townland of (1) Ballyglass, (2) 4901 and 31079F; lands: townland of Regd owner: Thomas Kenneally Regd owner: Kieran Murray and Fairfield, (3) Cool, (4) Cool, (5) Cool Bilboa and barony of Coonagh; Co (deceased); folio: 59791; lands: a plot of Margaret Murray; folio: DN33880L; and barony of (1), (2), (3), (4), (5) Limerick ground being part of the townland of lands: property situate on the east side Clonmacnowen; area: (1) 6.9930 Regd owner: John Dermot and Briege Glengarrif More and barony of of Crawford Avenue in the parish of hectares, (2) 0.5470 hectares, (3) McArdle, ‘Hawthorn’, Dublin Road, Barrymore and county of Cork; Co Saint George and district of 1.3030 hectares, (4) 1.7270 hectares, Dundalk, Co Louth; folio: 10285; Cork Drumcondra; Co Dublin (5) 1.5120 hectares; Co Galway lands: Marshes Upper; area: 0.1694

61 Law Society Gazette November 2003 Professional information

hectares; Co Louth West and Glasshouse and barony of August 2003 at Letterkenny General O’Sullivan, Patrick J (deceased), late of Regd owner: Samuel Strahan, Coolfore, Clonlisk; Co Offaly Hospital, Donegal, please contact Marie No 2 Diswellstown, Castleknock, Dublin Monasterboice, Drogheda, Co Louth; Regd owner: Raymond Mary Milne O’Brien, Sheedy & Co, Solicitors, 1 15. Would any person having knowledge folio: 16010F; lands: Coolfore; area: (deceased) and Teresa Milne; folio: Upper Kilmacud Road, Dundrum, Dublin of a will made by the above named 6.8510 hectares, 1.4860 hectares and 1565F; lands: Crinkill and barony of 14; tel: 01 298 9622 deceased who died on 8 August 2003, 4.2900 hectares; Co Louth Ballybrit; Co Offaly please contact Seamus Maguire & Co, Regd owner: Mary Gibbons (deceased) Regd owner: Christina Garvey (deceased); Downes, Kathleen (deceased) late of 10 Solicitors, 10 Main Street, Blanchards- and Donal Gibbons; folio: (1) 10098F folio: 17316; lands: (1) Tonbaun and (2) Bowman Street, Limerick and also of town, Dublin 15; tel: 01 821 1288, fax: 01 and (2) 10099F; lands: townland of (1) Brierfield and barony of (1) and (2) Roseville House Nursing Home, 821 1442 and (2) Boheh (Ed Knappagh) and Ballymoe; Co Roscommon Killonan, Ballysimon, Limerick. Would barony of Murrisk; area: (1) 0.165 Regd owner: John Keenan (deceased); any person having any knowledge of a will O’Toole, Andrew (deceased), late of 96 hectares, (2) 0.8854 hectares; Co Mayo folio: 4432; lands: townland of Lung made by the above named deceased who Mangerton Road, Drimnagh, Dublin 12. Regd owner: Michael Mulhearn; folio: and barony of Costello; area: 6.2700 died on 17 September 2003 at Rosevillle Would any person having any knowledge 20224; lands: townland of Knockalegan hectares; Co Roscommon House Nursing Home, Limerick, please of a will made by the said deceased who and barony of Tirawley; area: 0.9535 Regd owner: Beatrice Sexton; folio: 3866; contact: Johnson & Johnson, Solicitors, died on 3 July 2002 at St James’ Hospital, hectares; Co Mayo lands: Kilrush-Eighter; Co Sligo Ballymote, Co Sligo, ref: T116; tel: 071 Dublin. The contact details are Cannons, Regd owner: John Walsh, Errew, Regd owner: Brian Murray; folio: 21444; 918 3304, fax: 071 918 3526, e-mail: Solicitors, 1-3 Sandford Road, Ranelagh, Castlehill, Ballina. Co Mayo; folio: lands: townland of Cloghonan and [email protected] Dublin 6; tel: 01 497 6555, fax: 01 497 26319; lands: (1), (2) & (3) Errew and barony of Ormond Upper; Co 1409 barony of Tirawley; area: (1) 30 acres, 3 Tipperary Galvin, Desmond Joseph (deceased), roods 8 perches, (2) 14 acres, 1 rood 20 Regd owner: Sorcha Flannery; folio: late of 43 Hardiman Road, Drumcondra, Skelton, Margaret (deceased), late of perches, (3) 5 acres, 2 roods, 4 perches; 30353; lands: townland of Coolboreen/ Dublin 7. Would any person having Rowan, Clonee, Co Meath. The personal Co Mayo Gortshane Middle/Annaholty and knowledge of a will made by the representatives are Noel and Michael Regd owner: William Davey, Johnstown barony of Owney and Arra; Co above named deceased who died on 12 Skelton. Would any person having knowl- Road, Enfield, Co Meath; folio: 21294; Tipperary August 1980 at Jervis Street Hospital, edge of a will made by the above named lands: Newcastle; Co Meath Regd owner: Cashel Cattle Mart; folio: please contact Bryan F Fox & Co, deceased who died on 10 April 2002 at Regd owner: Ian and Deirdre McKeown, 3082F; lands: townland of Wallers Lot Solicitors, 46 North Circular Road, Rowan, Clonee, Co Meath, please reply 19 Abbeygrove, Navan, Co Meath; and barony of Middlethird; Co Dublin 7 to Oliver Shanley & Co, Solicitors, 11 folio: 19091F; lands: Wyanstown; area: Tipperary Bridge Street, Navan, Co Meath; tel: 046 0.2240 hectares; Co Meath Regd owner: Sean Loran, Milltownpass, Galvin, Ann (deceased), late of 43 902 8333, fax: 046 902 9937 Regd owner: William John Harvey, Co Westmeath; folio: 11471; lands: Hardiman Road, Drumcondra, Dublin 7. Dernashallog, Emyvale, Co Milltown; area: 0.9737 hectares; Co Would any person having knowledge of a Monaghan; folio: 6545; lands: Westmeath will made by the above named deceased EMPLOYMENT Derrynashallog; area: 6.8821 hectares; Regd owner; Kevin Philip Alcorn; folio: who died on 3 March 2002 at Wexford Co Monaghan 8610; lands: townland of Ballydowling General Hospital, please contact Bryan F Locum solicitor required for general Regd owner: Patrick McCartney, and barony of Newcastle; Co Wicklow Fox & Co, Solicitors, 46 North Circular practice in Ennis, commencing January Derryolam, Carrickmacross, Co Road, Dublin 7 2004 for four months – experience in Monaghan; folio: 20732; lands: WILLS conveyancing or litigation required. Derryolam; area: 1.9424 hectares and McCabe, Eithne (otherwise Mary B, Newly qualified solicitor with experience 7.660 hectares; Co Monaghan otherwise Mary Bernadette) (deceased) in general practice will be considered. Regd owner: James O’Neill, Tirnadrola, Cavanagh, Catherine (deceased), late of late of 50 Shanard Avenue, Santry, Dublin Please reply to Cahir & Co, Solicitors, 36 Co Monaghan; folio: 4941; lands: 37 Upper Church Street, Tipperary 9. Would any person having knowledge of Abbey Street, Ennis, Co Clare Tirnadrola; area: 3.6421 hectares; Co Town, otherwise 37 Upper Davitt Street, a will made by the above named deceased Monaghan Tipperary Town, otherwise New Road (or who died on 25 September 2003, please Equity partner required for busy com- Regd owner: Patrick Carey (deceased); Limerick Road), Tipperary Town. Would contact PJ O’Driscoll & Sons, Solicitors, mercial south eastern practice. Would suit folio: 9584; lands: Rusheen, Mucklone any person having knowledge of a will 179 Church Street, Dublin 7; tel: 01 872 somebody wanting to move away from made by the above named deceased, who 8144, fax: 01 872 8425 Dublin. Please reply to box no 90 died on 14 December 1992, please contact Fearghal Holmes, Solicitors, 8 St Mooney, Edward Michael (deceased) late OFFICES TO LET Michael’s Street, Tipperary; tel: 062 of Glencree, Co Wicklow and Brand new office development in 52577 or fax: 062 52729; e-mail: fearghal- Kilnamanagh, Dublin 24 and also of PARTNER conservation building on Capel [email protected] Kiltulla, Co Galway. Would any person Street, minutes from the Four having any knowledge of a will executed by DESIGNATE Courts. From 3,000 to 15,000 Concannon, Thomas (deceased), late of the above named deceased who died in or square feet. Available from March 28 Allen Park, Stillorgan, Co Dublin. around 12 June 2003, please contact John Tired of the big city Rat Race? 2004. For further details please Would any person having knowledge of a O’Connor, Solicitors, Ballsbridge, Dublin Dublin traffic & house prices get- contact 01 4190962 between will made by the above named deceased, 4; tel: 01 668 4366, fax: 01 668 4203 ting you down? Fancy a move to who died on 17 August 2003 at St 11am & 4pm. the Midlands? Are you a highly Vincent’s Hospital, Dublin 4, please con- Redmond, Teresa (deceased) (housewife) tact Michael Sheil & Associates, late of 137 Mount Tallant Avenue, motivated, commercially orien- Solicitors, Temple Court, Temple Road, Harold’s Cross, Dublin. Would any per- tated and enthusiastic self- Blackrock, Co Dublin; tel: 01 288 1150 son having knowledge of a will made by starter with at least 5 years the above named deceased who died on 19 PQE? Have you had excellent TO LET Corcoran, Margaret (deceased), last of November 1992, please contact experience with a particular DUBLIN 4, Church Road, Carrigaline East, Co Cork. O’Connor Buckley & Co, Solicitors, 22 emphasis on conveyancing? If Would any person having any knowledge Upper Ormond Quay, Dublin 7; tel: 01 NORTHUMBERLAND you can answer yes to these of a will made by the above named 872 6583; fax: 01 872 6579, ref: VB questions, our client, a progres- deceased, please contact Michael Quinlan ROAD sive Midlands practice, would of Murphy English & Co, Solicitors, O’Shea, Esther (deceased), widow, late of Office 650 sq ft in three Sunville. Cork Road, Carrigaline, Co 67 Sperrin Road, Drimnagh, Dublin 12. like to hear from you. This excit- self contained rooms Cork, tel: 021 437 2425, fax: 021 437 3978 Would any person having knowledge of ing opportunity offers realistic available for let. a will made by the above named partnership prospects to the Secretarial services Davidson, Claude (deceased), late of 136 deceased who died on 25 December 1987, right candidate. Are YOU up for optional. Broadford Rise, Ballinteer, Dublin 16 and please contact Loraine Hanratty, Egan it? If so contact Charlie Russell, formerly of Flat 3, Castle Street, Cosgrove & Associates, Solicitors, 138 Russell & Company, 6 Hyde Phone: 01-668 2404 Ramelton, Co Donegal. Would any per- Sundrive Road, Crumlin, Dublin 12; tel: Park, Dalkey, Co Dublin, or email E-mail: [email protected] son having knowledge of a will made by 01 473 0222/473 0223/473 0224, fax: 01 [email protected]. Go for it! the above named deceased who died on 31 473 0225

62 Law Society Gazette November 2003 Professional information

Experienced solicitor available for 080 1693 61616, fax: 080 1693 67712 locum/part-time work in north Kerry area, please contact box no 91 Northern Ireland solicitors. Will advise and undertake NI-related matters. All www.liquidations.ie Solicitors (two) required for established areas corporate/private. Agency or full For information on insolvency, employees entitlements, Killarney practice: (1) conveyancing and (2) referral of cases as preferred. litigation. Reply to box no 92 Consultations in Dublin or elsewhere if defending a section 150 application, informal schemes required. Fee sharing envisaged. of arrangement, dealing with the sheriff, services to Solicitor required for a busy west Cork Donnelly Neary & Donnelly, 1 solicitors and free Insolvency Helpline Service. general practice. Please reply with CV to Downshire Road, Newry, Co Down, tel: box no 93 080 1693 64611, fax: 080 1693 67000. Contact K J Neary In the matter of the Landlord and Take notice that Gerard Butler intends to Conveyancing and probate solicitor, Tenant Acts, 1967-1994 and in the mat- submit an application to the county registrar very experienced, seeks position in Dublin England & Wales solicitors will provide ter of the Landlord and Tenant (Ground for the county of the city of Dublin for the or adjoining counties. Please reply to box comprehensive advice and undertake con- Rents) (No 2) Act, 1978 and in the mat- acquisition of the fee simple interest in the no 94 tentious matters. Offices in London, ter of premises situate at no 32/33 aforesaid property and any party asserting Birmingham, Cambridge and Cardiff. Stephen Street in the city of Water- that they hold a superior interest in the Well-established Cork practice seeks Contact Levenes Solicitors at Ashley ford: an application by Edward Roles aforesaid property is called upon to furnish ambitious solicitor with 2/3 years’ PQE to House, 235-239 High Road, Wood Take notice that any person having any evidence of title to the aforementioned work in litigation and commercial property. Green, London 8H; tel: 0044 2088 17777, interest in the freehold estate of or the property to the below named within 21 days Candidate must be self-driven, aspire to fax: 0044 2088 896395 superior interest in the hereditaments and from the date of this notice. partnership and possess high professional premises situate at nos 32 and 33 Stephen In default of any such notice being standards. Salary and excellent package Solicitor wishes to acquire a general prac- Street in the parish of St Stephen’s Within received, the applicant Gerard Butler negotiable. CVs to John McInerney, tice/block of clients in the Dublin area. and city of Waterford, which said premises intends to proceed with the application Personnel Division, Gorman Quigley May suit sole practitioner planning a are held under an indenture of lease dated before the county registrar at the end of the Penrose, Chartered Accountants, 31 phased retirement. Apply in strictest con- 22 April 1965 and made between Ian 21 days from the date of this notice and will Greenmount Office Park, Dublin 6 fidence to Michael J Joyce & Co, Barclay Justly Wilson, Ann RH Weir, apply to the county registrar for the county Chartered Accountants, Claregate Street, Margaret R Daniel and Audrey Nolan of of the city of Dublin for directions as may Kildare Town, Co Kildare the one part and Edward Roles of the other be appropriate on the basis that the person MISCELLANEOUS part for a term of 99 years from 25 March or persons beneficially entitled to the supe- Wanted for purchase, full ordinary 1963 subject to a yearly rent of IR£36. rior interest including the freehold rever- Northern Ireland solicitors providing an seven-day publican’s licence. Contact: Take notice that the applicant, Edward sion in the aforesaid property are unknown efficient and comprehensive legal service in Ronan Connolly, Solicitor, Ennis, Co Roles, being the person entitled under sec- or unascertained. all contentious/non-contentious matters. Clare. Tel: 065 682 3577 tions 9 and 10 of the Landlord and Tenant Date: 7 November 2003 Dublin-based consultations and elsewhere. (Ground Rents) (No 2) Act, 1978, intends to Signed: Reddy Charlton McKnight, 12 Fee apportionment. ML White, Solicitors, submit an application to the county regis- Fitzwilliam Place, Dublin 2 43-45 Monaghan Street, Newry, County TITLE DEEDS trar for the county and city of Waterford Down, tel: 080 1693 68144, fax: 080 1693 for the acquisition of the freehold interest In the matter of the Landlord and Tenant 60966 Philip McGuinness (deceased), and in the aforesaid premises (or any of them) Acts, 1967-1994 and in the matter of the Gertrude McGuinness of 38 Gosworth and that any party asserting that they hold Landlord and Tenant (Ground Rent) (No Northern Ireland agents for all Park, Dalkey, Co Dublin. Would anyone a superior interest in the aforementioned 2) Act, 1978: an application by Liam contentious and non-contentious having knowledge of original title docu- premises are called upon to furnish evi- McGill and respondent successors in matters. Consultation in Dublin if required. mentation relating to 38 Gosworth Park, dence of title to the aforementioned prem- title of Fletcher Moore Fee sharing envisaged. Offices in Belfast, Dalkey, Co Dublin, please contact John ises to the below within 21 days from the Take notice that the above named applicant Newry and Carrickfergus. Contact Henchion & Co, Solicitors, 2 Sunberry, date of this notice. is applying to acquire the fee simple interest Norville Connolly, D&E Fisher, Blarney, Co Cork, tel: 021 438 2870/ 438 In default of any such notice being in the property hereinafter described pur- Solicitors, 8 Trevor Hill, Newry, tel: 2871, fax: 021 438 2876 received, Edward Roles intends to proceed suant to the above acts. Further take notice with the application before the county reg- that any person having an interest in the fol- istrar at the end of 21 days from the date of lowing property: part of the lands com- this notice and will apply to the county reg- prised in indenture of lease dated 15 DUBLIN SOLICITORS’ istrar for the county and city of Waterford November 1877 and made between PRACTICE OFFERS for directions as may be appropriate on the Fletcher Moore of 12 Hume Street, Dublin, AGENCY WORK basis that the person or persons beneficial- barrister at law of the one part and John ABACUS ly entitled to the superior interest including Gillespie of West Port, Ballyshannon, Co IN NORTHERN the freehold reversion in the aforesaid Donegal of the other part, being premises IRELAND BOOK KEEPING premises are unknown or unascertained. located at West Port, town of Balyshannon, Date: 7 November 2003 barony of Tyrhugh and county of Donegal. * All legal work undertaken SERVICES Signed: Nolan Farrell & Goff, Solicitors, Take notice that Liam Magill intends to on an agency basis Newtown, Waterford (Ref MOC) apply to the county registrar of the county of * All communications to clients Donegal for the acquisition of the freehold through instructing solicitors In the matter of the Landlord and interest in the aforesaid property and any * Consultations in Dublin if required SPECIALISING IN Tenant Acts, 1967-1994 and in the mat- party asserting that they hold a superior LEGAL ACCOUNTS, ter of the Landlord and Tenant (Ground interest in the aforesaid property is called Contact: Séamus Connolly Rents) (No 2) Act, 1978: an application upon to furnish evidence of title to the Moran & Ryan, Solicitors, NORTH EASTERN Arran House, by Gerard Butler aforementioned premises to the below 35/36 Arran Quay, Dublin 7. REGION Take notice that any person having an named within 21 days from the date of this interest in the freehold estate in the follow- notice. In default of any such notice being Tel: (01) 872 5622 ing property: all that and those the heredi- received, Liam Magill intends to proceed For further information, taments and premises known as number before the county registrar for the county of Fax: (01) 872 5404 please contact 5 St Ignatius Road, Drumcondra, Dublin Donegal for direction as may be appropriate Fleur @ 9, held under lease dated 14 October on the basis that the person or persons ben- e-mail: [email protected] 1879 and made between Maurice Butterly eficially entitled to the superior interest or Bank Building, Hill Street 042-9382157 of the one part and William Marmion including the freehold reversion in the Newry, County Down. 086-8147270 of the other part for the term of 194 premises are unknown and unascertained. Tel: (0801693) 65311 years from 29 September 1879 subject Date: 7 November 2003 Fax: (0801693) 62096 [email protected] to the yearly rent of £6 (€7.62) and to the Signed: F Hutchinson & Company, Tirconnell E-mail: [email protected] covenants and conditions contained Street, Ballyshannon, Co Donegal (solicitors for therein. the applicant)

63 Law Society Gazette November 2003 Professional information

Take notice that any person having an Publication of advertisements in this section is on a fee basis and does not interest in the freehold estate of the follow- represent an endorsement by the Law Society of Ireland. ing property: the premises known as 32 Avenue Road, South Circular Road, Dublin LAW AGENCY SERVICES 8 (formerly 32 Bloomfield Avenue, South NORTHERN Circular Road, Dublin 8). ENGLAND & W ALES IRELAND Take notice that (the applicant) Patrick Thornton intends to submit an application SOLICITORS to the county registrar for the county of the We will engage in, city of Dublin, for the acquisition of the SOLICITORS freehold interest in the aforesaid property Established 1825 and advise on, all Northern Ireland- and any party asserting that they hold a related matters, superior interest in the aforesaid property (or any of them) are called upon to furnish particularly personal injury evidence of title to the aforementioned litigation. premises to the below named within 21 Consultations where days from the date of this notice. convenient. In default of any such notice being received, the applicant intends to proceed •Fearon & C o act for Irish residents in the fields of with the application before the county reg- probate, property and litigation istrar at the end of 21 days from the date of • Each solicitor is available by direct line, fax or e-mail. OLIVER M this notice and will apply to the county reg- Conferences can be easily arranged istrar for the county/city of Dublin for LOUGHRAN directions as maybe appropriate on the •Fearon & C o is committed to the use of information basis that the person or persons beneficially technology to help improve both the quality and & COMPANY entitled to the superior interest including speed of service for the benefits of all clients both at 9 HOLMVIEW TERRACE, the freehold reversion in the above premis- home and abroad OMAGH, es are unknown or unascertained. • The firm’s offices are within half an hour of London CO TYRONE Date: 7 November 2003 W aterloo station and within a short travel from both Phone (004428) 8224 1530 Signed: Miley & Miley (solicitors for the Gatwick and Heathrow airports, with easy access from Fax: (004428) 8224 9865 applicant), 35 Molesworth Street, Dublin 2, ref the London orbital M25 motorway e-mail: 12/EC [email protected] In the matter of the Landlord and Tenant PHONE NOW FOR A BROCHURE In the matter of the Landlord and Tenant Acts, 1967-1994 and in the matter of the W estminster House Acts, 1967-1994 and in the matter of the Landlord and Tenant (Ground Rents) (No 12 The Broadway, Woking, Surrey GU21 5AU England Fax: +44 (0)1483 725807 Landlord and Tenant (Ground Rents) (No 2) Act, 1978 and in the matter of proper- Email: [email protected] www.fearonlaw.com 2) Act, 1978: an application by Thomas ty situate at the rear of 33 Thomas LITIGATION PROPERTY PROBATE McCormack Street Dublin 8: an application by John Martin Williams John Phillips Francesca Nash Notice to any person having any interest in Clohisey, Finbar Cahill and Andrew Tel: +44 (0)1483 776539 Tel: +44 (0)1483 747250 Tel: +44 (0)1483 765634 the freehold estate of the following proper- Madden ty – the plot of ground in Jail Street (for- Take notice that any person having any merly known as Crabb Road or Crab Road) interest in the freehold estate of the follow- F R O BE in the town of Newport with the premises ing property: all that and those the heredi- M E M erected thereon and now known as The taments and premises situate at the rear of A Hall, Newport, Co Tipperary. 33 Thomas Street, Dublin 8, being part of

P Take notice that the applicant intends to the premises comprised in and demised by

U O submit an application to the county regis- indenture of lease dated 12 June 1928 and R

G E trar for the county of Tipperary for the made between Alnetta Jane Sawyer of the IC T C A acquisition of the freehold interest in the one part and Mary Anne Byrne of the other PR IN L TERNATIONA aforesaid property and any party asserting part. that they hold a superior interest in the Take notice that John Clohisey, Finbar aforesaid property are called upon to fur- Cahill and Andrew Madden intend to sub- SPANISH LAWYERS nish evidence of title to the aforementioned mit an application to the county registrar property to the below named within 21 days for the city of Dublin for the acquisition of at the date of this notice. the freehold interest in the aforesaid prop- RAFAEL BERDAGUER In default of any such notice being erty and that any party asserting that they ABOGADOS received, Thomas McCormack intends to hold a superior interest in the aforesaid proceed with the application before the property are called upon to furnish evi- PROFILE: FIELD OF PRACTICES: county registrar at the end of 21 days from dence of title to the aforementioned prop- panish Lawyers Firm focussed eneral Practice, Administra- the date of this notice and will apply to the erty to the below named within 21 days Son serving the need of the for- Gtive Law, Civil and Commercial county registrar for the county of Tipperary from the date of this notice. eign investors, whether in compa- Law, Company Law, Banking and for directions as may be appropriate on the In default of any such notice being ny or property transactions and all Foreign Investments in Spain, basis that the person or persons beneficially received, John Clohisey, Finbar Cahill and attendant legalities such as ques- Arbitration, Taxation, Family Law, entitled to the superior interest including Andrew Madden intend to proceed with the tions of immigration-naturalisa- International Law, Immigration the freehold reversion in the aforesaid application before the county registrar at tion, inheritance, taxation, and Naturalisation, Litigation in all premises are unknown or unascertained. the end of the 21 days from the date of this accounting and bookkeeping, Courts. Date: 7 November 2003 notice and will apply to the county registrar planning, land use and litigation in Signed: Eamonn O’Brien (solicitors for the for the county of Dublin for directions as may be appropriate on the basis that the all Courts. applicant), 98 O’Connell Street, Limerick person or persons beneficially entitled to In the matter of the Landlord and Tenant the superior interest and that the person or Avda. Ricardo Soriano, 29, Acts, 1967-1994 and in the matter of the persons beneficially entitled to the superior Edificio Azahara Oficinas, 4 Planta, 29600 Marbella, Malaga, Spain Landlord and Tenant (Ground Rents) (No interest including the freehold reversion in 2) Act, 1978: an application by Patrick the aforementioned property are unknown Tel: 00-34-952823085 Fax: 00-34-952824246 Thornton, 32 Avenue Road, South or unascertained. e-mail: [email protected] Circular Road, Dublin 8 (formerly 32 Date: 7 November 2003 Web site: www.berdaguerabogados.com Bloomfield Avenue, South Circular Signed: Cahill & Co Solicitors, 21 Winsor Road, Dublin 8 Place, Dublin 2

64 Law Society Gazette November 2003