MARCH 1999 CONTENTS

16 Cover Story First among equals? Irish language and the law REGULARS Irish lawyers are supposed to be competent in the use of the first official language of the State, but how many could honestly claim any useful knowledge of Irish? And can you really conduct a court case purely as gaeilge? Niamh Nic Shuibhne examines the constitutional position of the Irish language and its relationship President’s message 3 with the law Viewpoint 4 20 Salaried partners: easy targets? A salaried partnership in a law firm might seem to offer the best Letters 11 of both worlds: you get listed as a ‘partner’ on the letterhead but you run none of the risks usually associated with this status. News 13 But, as Michael Twomey explains, a recent case in England may suggest that salaried partners are Briefing 31 much more exposed than they thought Committee reports 31 Danger in the air Practice notes 31 24 Asbestos-related litigation is still in its Legislation update 32 infancy in Ireland, but the long gestation Personal injury period of illnesses linked to asbestos means judgments 35 that we could see an increasing number of cases over the coming years. Niall Hill outlines Relief for home loan what we know of the disease and highlights the interest: rules and legal issues it raises guidelines 37 ILT digest 41 27 On-line Eurlegal 45 opportunities knock Lawyers have rarely been the first to embrace People and new technology, but hopefully all that is set places 49 to change. In the second of three articles on member services, Claire O’Sullivan Book reviews 53 discusses how the Law Society’s new web site can help your practice and make Professional your professional life easier information 55

Editor: Conal O’Boyle MA The Law Society of Ireland can accept no responsibility for the accuracy of contributed Reporter: Barry O’Halloran 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 other- Designer: Nuala Redmond wise indicated. No responsibility for loss or distress occasioned to any person acting Editorial Secretaries: or refraining from acting as a result of the material in this publication can be accept- Andrea MacDermott, Catherine Kearney ed by the authors, contributors, editor or publishers. Professional legal Advertising: Seán Ó hOisín, tel/fax: 837 5018, mobile: 086 8117116, advice should always be sought in relation to any specific matter. E-mail: [email protected]. 10 Arran Road, Dublin 9 Editorial Board: Dr Eamonn Hall (Chairman), Conal O’Boyle Printing: Turners Printing Company Ltd, Longford (Secretary), Mary Keane, Pat Igoe, Ken Murphy, Michael V O’Mahony, Vincent Power Published at Blackhall Place, Dublin 7, tel: 01 672 4800, fax: 01 672 4801. E-mail: [email protected] Subscriptions: £45 Volume 93, number 2

MARCH 1999 LAW SOCIETY GAZETTE 1 LEGAL SERVICES LTD Are you paying too much for your Law Searching/Town Agency work? Change to Rochford Brady with our ‘one stop shop’ service (law searching and town agency under one roof) WE CUT YOUR COSTS

OWNERSHIP/TITLEINQUIRYSPECIALISTS TOWN AGENTSLAWSEARCHERSSUMMONSSERVERS COMPANYFORMATION AGENTS If you are not with Rochford Brady, isn’t it time you changed? We offer monthly retainer fees for town agency work Fixed/maximum prices for closing searches Planning searches carried out in all counties For our brochure Phone: 1850 529732 (20 lines) Fax: 1850 762436 (5 lines) PRESIDENT’S MESSAGE The profession and EU law PIC: ROSLYN BYRNE

s lawyers, we are increasingly up the challenge that European law offers. aware of the huge impact of Neither you nor your clients will be disap- EU law on domestic practice in pointed! Ireland. Some of the more sig- nificant examples include the Report of the National Crime ACompetition Acts, 1991–1996, which have Forum 1998 resulted in principles from EU competition law Our colleague, Professor Bryan McMahon of having a relevance for the way in which all Ennis, acted as Chairman of the National Crime businesses trade, whether corner shops or Forum which was established by the Minister for multi-nationals, and the Liability for Defective Justice, Equality and Law Reform, John Goods Act, 1991, which implemented the O’Donoghue, in February 1998. Product liability directive and introduced a The Forum’s brief was to canvas comments, strict liability regime for some product liability assessments and suggestions on crime and cases. Measures such as the Transfer of under- crime-related issues from the general public takings directive and the Working time directive and from national and international experts. have substantially supplanted Irish employ- The Forum was requested to prepare a report ment law. A similar phenomenon has occurred that would help clarify the issues that will need in environmental law. Conveyancers have also to be addressed in the forthcoming Government been affected through the impact of the Common Agriculture Policy, White Paper on crime and in the establishment of a crime council. specifically in area of milk quotas. And on 1 January 2002, the punt will While (in the words of the chairman) the report ‘presents the citi- be replaced with the euro. zens’ views on crime and crime-related issues’, it is an interesting doc- For those of our profession who have been educated and lived with ument which I commend you to read. Its ‘series of reflections’ are a tes- the certainties of the common law, the changes brought about by tament to all who took part – and particularly our solicitor colleagues European law may seem intimidating. It may appear to be an alien who are members of the Forum. implant – an incomprehensible and exotic transmutation of the civil law. There may be a temptation to ignore it and turn a blind eye to these Law reform initiatives exciting and potentially lucrative legal developments. In November 1997, the Council of the Law Society established the Law But there are many good reasons for wanting a knowledge of the sub- Reform Committee in order to identify and focus on specific areas of ject. European law has opened up whole new areas of practice. Some the law in this jurisdiction that need to be updated and reformed. It aims firms have benefited from navigating around the intricacies of milk quo- to contribute towards improving the quality, fairness and effectiveness tas and other similar agricultural regulations. And solicitors have of Irish legislation in a number of selected areas. Furthermore, it seeks advanced clients’ cases in the areas of gender, equality and employment to represent the views of the Society’s members in relation to a number using European legislation. It is my view that EU law has more signifi- of legislative initiatives and to enhance the Society’s contribution to the cantly advanced gender equality in this country in the last 25 years than development of law in Ireland. was achieved in the preceding 50 years. Members of the public are able This committee is currently consulting with – and making active to assert their rights under EU law only to the extent that solicitors are contributions to – the relevant Government departments on the issues of fully conversant and aware of them. domestic violence, mental health and adoption. A review of existing I know that the Law Society is committed to encouraging a greater legislation, and the development of new legislation, where necessary, is knowledge of European law through educating the profession. This is currently being prepared in each of these areas. The input of the pro- being done in a number of ways. For many years, the CLE programme fession is being considered before firm proposals are published. The of seminars has addressed specific legal developments such as the committee (in my view a worthwhile initiative by a profession that has Transfer of undertakings directive and the Competition Acts. a great deal to offer Irish society) considers it important that solicitors More recently, the Society’s EU and International Affairs Committee should take advantage of the opportunity to contribute to legislation of has put in place an annual ‘healthcheck’ to flag more important EU law such great social significance. I urge you to let the committee hear from developments in a number of different practice areas. you regularly on legislative changes that you feel are necessary. The very successful Diploma in applied European law, now entering its third year, is a more comprehensive educational programme run by Annual conference in May the Law School. This meets the twin objectives of giving a grounding in I am pleased that the Society has decided to hold its Annual Conference the subject to those who know little about it and also goes into consid- in the Ashford Castle Hotel, sited as it is in ‘Magical Mayo’. Gillian and erable depth in specialist subject areas. The Eurlegal section of the I hope to see as many of you there as possible. Gazette seeks to achieve much the same objectives. It takes courage to push yourself to places that you have never been Patrick O’Connor before, to test your limits, to break through barriers. I urge you to take President

MARCH 1999 LAW SOCIETY GAZETTE 3 VIEWPOINT Solicitors to be superio

ast month saw the publication ing, as does the entire report. with the following terms of refer- whether academic lawyers who Lof the Report of the working The origin of this report lies in ence: ‘To consider and make rec- do not otherwise qualify should group on qualifications for the debate on the Courts and ommendations to the Minister for be eligible for judicial appoint- appointment as judges of the Court Officers Bill, 1995, which Justice on the question of qualifi- ment. High and Supreme Courts by the took place before the Dáil Select cations for appointment as judges Some 40 persons and bodies Minister for Justice, Equality and Committee on Legislation and of the High and Supreme courts.’ are listed as having made submis- Law Reform, John O’Donoghue. Security. In the course of that Each branch of the legal pro- sions to the working group, the This points the way for solicitors debate, the committee indicated fession had three members of the greater number being members to be appointed to the High and unanimously that it was prepared working group. The majority of of the judiciary. Supreme court benches. to support an amendment to the the working group, however, Legislation is required for Perhaps the most important Bill which had been put down by were non-lawyers. legal effect to be given to the rec- feature of this report is that it was Alan Shatter TD, which would ommendations, and it is hoped signed by all the members of the have rendered all solicitors quali- Other questions that the Minister for Justice, working group. After 17 meet- fied for appointment as judges of Although it is clear from the Equality and Law Reform, John ings, held over a two-year peri- the High and Supreme courts. report that the issue of whether O’Donoghue, will make propos- od, plus many more drafting ses- The then Minister for Justice, or not solicitors should be eligi- als to the Government in this sions involving sub-groups, a Nora Owen, secured the agree- ble for senior judicial appoint- regard shortly. consensus was reached. ment of the committee that in ment was the main concern of With a number of senior mem- For this to occur, a compro- place of her accepting Deputy the working group, the report bers of the judiciary due to retire mise was necessary between the Shatter’s amendment she would also examines and makes rec- within the next 12 months, legis- initial positions taken by the rep- establish a working group to ommendations on a number of lation to give effect to the working resentatives of both branches of examine further the whole issue other questions, in particular, on groups recommendation will have the legal profession. The respec- of qualifications required to be whether judges of the Circuit to be introduced soon if solicitors tive submissions to the working eligible for appointment as and District courts should con- are to be eligible for the forthcom- group by both the Law Society judges of the High and Supreme tinue to be eligible for appoint- ing appointments. G and the Bar Council are printed courts. ment to higher courts and the in full as an addendum to the On 10 December 1996, she procedures which should govern Ken Murphy is Director General report and make interesting read- established the working group such appointments and on of the Law Society of Ireland.

Recommendations of the Working Group on Qualifications f

Recommendation 1 2) Section 5(2) of the Courts ● Private practice shall mean prac- ment. This provision should not The group recommends that all per- (Supplemental Provisions) Act, 1961 tising as a sole practitioner, in apply to persons deemed to be eli- sons to be eligible for appointment be amended by the insertion of a partnership with other practising gible as barristers by reason of be required to have a significant new paragraph: solicitors or employed by such being judges of the European Court knowledge and experience of the ‘(b) A person who is for the time sole practitioner or partnership of Justice, Court of First Instance or decisions, practice and procedures of being a practising solicitor in private and offering his or her services to Advocate General or Circuit Court the High Court and Supreme Court practice of not less than 12 years’ the public in general’. judges. and that eligibility for appointment standing and who has been in prac- It is recommended that a High be extended to litigation solicitors in tice for a minimum of ten years as a The group draws attention to the Court or Supreme Court litigation private practice who have such regular High Court or Supreme necessity for any legislation giving solicitor should be in private prac- knowledge and experience. Court litigation solicitor shall be effect to this recommendation to be tice for a continuous period of two It is recommended that this rec- qualified for appointment as a judge carefully drafted so as to avoid any years immediately prior to the date ommendation might be implement- of the High or Supreme Court.’ possible room for dispute as to of appointment. ed by the following amendments to The terms High Court or Supreme whether a solicitor had met the eli- the existing legislation: Court litigation solicitor and private gibility criteria of ten years’ practice Employed barristers 1) Section 16(7) of the Courts and practice might be defined in the leg- as a regular High Court or Supreme Recommendation 3 Court Officers Act, 1995 should be islation as follows: Court litigation solicitor. The group recommends that there amended so as to add to the list of ● A High Court or Supreme Court should be no change to the existing criteria to be satisfied by an appli- litigation solicitor shall mean a Proximate practice prior to qualifications for practising barris- cant the requirement ‘that he or she solicitor holding a practising cer- appointment ters whereby employed barristers, has displayed by his or her practice tificate who is regularly engaged Recommendation 2 whether in the public or private sec- either as a barrister or litigation in the conduct of proceedings The group recommends that, for tors, are not deemed to be in prac- solicitor a significant knowledge and before the High Court or the barristers, the requirements of 12 tice at the Bar for the purposes of experience of the decisions, prac- Supreme Court whether as an years practice should include a con- any part of the 12-year period tices and procedures of the High advocate or as instructing solici- tinuous period of two years imme- required for eligibility for appoint- Court and Supreme Court’. tor to counsel diately prior to the date of appoint- ment.

4LAW SOCIETY GAZETTE MARCH 1999 VIEWPOINT

Members of or court judges? the working group

Tom Quigley, Chairperson Ken Murphy, Director General of the Law Society (nominee of the Law Society) Geraldine Clarke (nominee of the Law Society) Ernest Cantillon (nominee of the Law Society) Garrett Cooney SC (nominee of the Bar Council) Mary Finlay SC (nominee of the Bar Council) Turlough O’Donnell SC (nomi- nee of the Bar Council) Tom O’Malley (Law Faculty, NUI Galway) William Fagan (Director of Consumer Affairs) Pat Massey (Competition Authority) Dr Valerie Richardson (Department of Social Policy and Social Work, NUI, Dublin) Edith Wynne BSc (Mgmt) Kevin Condon, Department of Justice, Equality and Law Seated (left to right): Valerie Richardson, Tom Quigley, Minister for Justice, Equality and Law Reform John Reform (Secretary to the O'Donoghue, Ken Murphy, Geraldine Clarke Standing (left to right): Pat Massey, William Fagan, Garrett Cooney, Edith Wynne, Kevin Condon, Turlough working group) O'Donnell, Mary Finlay. Ernest Cantillon and Tom O'Malley are missing from the picture for Appointment as Judges of the High and Supreme Courts Solicitors employed in the officer of the Law Reform b) The board will only make such The group recommends that acade- public service and by Commission Act, 1975 under which recommendation on its own ini- mic lawyers who do not otherwise commercial entities service by a barrister appointed as a tiative without the possibility of qualify should not be eligible for Recommendation 4 commissioner or officer of the Law Circuit Court judges being enti- appointment to the High Court or The group recommends that in Reform Commission is deemed to tled to apply to the board for the Supreme Court. regard to the ten years’ High Court be practice at the Bar for the pur- such appointment or Supreme Court litigation experi- pose of qualification for appoint- c) The same eligibility criteria Change of profession ence to be required of solicitors, that ment as a judge, and also by a solic- should apply for all Circuit Court Recommendation 9 up to five years of that litigation itor in relation to appointment as a judges, regardless of whether It is recommended that the law be experience could be gained whilst district judge, be deleted. they were formerly barristers or amended to provide that the employed in the public service or by solicitors. An appropriate single cumulative relevant professional a commercial entity. For avoidance Eligibility of circuit and provision might be that they experience of a person who has of doubt, the last two years of such district judges should become eligible for practised both as barrister and litigation experience prior to Recommendation 6 appointment to the High Court or solicitor be reckoned for the pur- appointment must be in private The group recommends that judges Supreme Court after four years’ pose of the eligibility criteria for practice. of the Circuit Court should continue service on the Circuit Bench. appointment to the High Court or to be eligible for promotion from Supreme Court. Service as commissioner or the Circuit Court to the High Court Recommendation 7 officer of the Law Reform or Supreme Court subject to amend- The group recommends that there Consolidation of Commission ments to the Courts and Court should be no change to the existing legislation Recommendation 5 Officers Act, 1995, which provide position whereby district judges are Recommendation 10 The group recommends that sec- that: not eligible for appointment to the It is recommended that the relevant tions 14(2) and (3) of the Law a) Such appointments be made only High Court or the Supreme Court. legislative provisions relating to the Reform Commission Act, 1975 on the recommendation of the eligibility for appointment to the under which service by a barrister Judicial Appointments Advisory Academic lawyers High Court and Supreme Court be appointed as a commissioner or Board, and Recommendation 8 consolidated into one Act.

MARCH 1999 LAW SOCIETY GAZETTE 5 VIEWPOINT Why Euro-posts must not become political sinecures uch has been written in Justice, it is imperative to contin- Mrecent months that the ue the tradition of appointing a European structural and regional top quality jurist. funds are shortly to be reformed, The danger in both of these in the light of the expected expan- institutions is that, as the sion of the membership of the European Union grows, it European Union in 2003 or there- becomes increasingly impossible abouts to include Poland, to retain an institutional member- Hungary and so on, with the like- ship which includes at least one lihood being that Ireland will representative from each Member receive somewhat less than in State. A European Supreme Court previous decades. Of greater with 15 members, as at present, long-term significance to Ireland, manages to take decisions effec- however, will be the forthcoming tively, but with 25 members there reform of the institutions of the might be real structural problems. European Union, which will be There is a case being expounded negotiated over the next two or that greater cohesion would be three years. With a potential achieved by a small supreme membership of 26 states in the court of nine members, with an next ten years, it is widely recog- expanded Court of First Instance nised that institutional reform dealing with a much greater must take place. workload. In much the same vein, Following the Amsterdam a Commission of 30 or more treaty, the membership of the members would be an administra- European Parliament has been tive and governmental nightmare. fixed at an upper limit of 700. As Some have suggested that a more Member States join, this Commission of 12 or so members, must mean a reduction in the backed up by junior ministerial numbers elected in each present appointments, might be more Member State. Ireland now has 18 least set the ground for others to might like to return to Dublin and appropriate. members (including three from wield the knife, in agricultural Bar Library gossip speculates as There are, it must be said, also the North), but this might be financial reform; and Pee Flynn to his possible successor at the arguments in favour of retaining reduced to, say, 12. will have bequeathed us a remark- ECJ. In each of these cases, sever- one representative from each able legislative package of social al names have been bandied about Member State. When the court is Shambolic methods and labour law reforms. as replacements. The Taoiseach of faced with difficult constitutional In the Council, the secretive – and At the European Court, it is the day (whoever that might be at issues, it must be sure to be aware somewhat shambolic – methods more difficult to evaluate the indi- the relevant time) will make the of the constitutional effects its of operation and the resultant leg- vidual qualities of Irish choice, no doubt with the good of judgments will have throughout islative mess need a radical over- appointees, given the collective the nation at the front of his mind, the Union. As to the Commission, haul. But the greatest need for nature of ECJ judgments with no but also, just possibly, guided by it has a substantial discretion in change involves the composition dissenting opinions. Certainly, the political considerations as well. the exercise of its mandate, and of the European Commission and quality of judge appointed by no country is yet wholly willing the European Court of Justice. Irish governments has always Fighting Ireland’s corner to relinquish all direct control It is generally assumed in been of the highest order, and has Whatever choices are made, para- over that discretion. Ireland that it is imperative for us included former chief justices as mount consideration should be If Ireland is to argue for contin- to retain the right to make one well as judges who are subse- given to the need to appoint a per- ued representation on these bod- appointment to the European quently appointed to the Supreme son of the very highest qualities to ies, it is absolutely imperative that Commission. It is also generally Court. The present trio of Irish both positions. A political heavy- we show that we are willing to assumed that, for the most part, members of the court (Judge John weight is needed at the appoint the best talent available. we have had a good record in Murray, Advocate General Niall Commission, both in order to That will involve a challenge to appointing commissioners, at any Fennelly and, at the Court of First fight Ireland’s corner in the tough those who see such appointments rate in regard to Peter Sutherland, Instance, Judge John D Cooke) internal negotiations (not just as merely well-paid political Ray MacSharry and Padraig are all very highly regarded. those concerning European fund- sinecures. G Flynn in competition, agriculture Padraig Flynn’s term at the ing) over the next five years and and social policy respectively. Commission is due to end later to prove that smaller countries Conor Quigley is a barrister spe- Suds did much to shake up com- this year, with re-appointment can make a real contribution to cialising in European Union law petition law and practice; Mac the now appearing rather unlikely. the workings of the Commission. and practising at Brick Court Knife lived up to his name, or at Rumour has it that Judge Murray Equally, at the European Court of Chambers, London and Brussels.

MARCH 1999 LAW SOCIETY GAZETTE 7 VIEWPOINT The right to misquote

here is, of course, nothing and Alfred A Knopf Inc, alleging Tnew about quote-dropping. libel and invasion of privacy based From time immemorial, lawyers on fabricated words attributed to in general have been addicted to him within quotation marks and the process; some more addicted misleadingly edited statements. than others. The doctrine of prece- The Ninth Circuit held that an dent almost compels lawyers to author may, under certain circum- bolster their own views with quo- stances, fictionalise quotations to tations from others. some extent. Malice would not be Quote-dropping is as old as inferred from evidence showing man himself. Plato used quota- that the quoted language does not tions frequently. Cicero’s letters contain the exact words used by are noteworthy for their use of the plaintiff provided that the fab- quotations. ricated quotations are either Go into any court any day of ‘rational interpretations’ of the week and the advocate will be ambiguous remarks made by the quoting from some distinguished public figure, and did not alter the judge or jurist. The advocate is substantive content of unambigu- under a duty, whether in a civil or ous remarks actually made by the criminal case, not to quote selec- public figure. tively to the judge. That means The case went to the US that the advocate has a duty to Supreme Court. The court held that bring to the attention of the court quotation marks indicate that the any relevant statute or decision (in speaker’s words are used verbatim terms of a quotation or otherwise) and rejected the theory that authors of which he or she has knowledge. could deliberately alter quotations This includes bringing to the Hawaiian hardman: You don’t mess with Magnum or his dad so long as the quotation contained attention of the court those deci- a rational interpretation of the sions which are not in one’s lishing the uncut version, it could cle conveyed the impression that speaker’s words. The court also favour. However, the advocate can not be liable for deciding to make Robert Selleck granted an inter- rejected the thesis that any alter- quote the unfavourable dicta and the passage less offensive. view to the magazine and divulged ation beyond correction of gram- then, if necessary, attempt to matters about his son. The court mar or syntax by itself proves destroy the reasoning involved. Magnum opus: noted that falsely ascribing state- knowledge of falsity or reckless But how far can you go in Tom Selleck ments to a person which would disregard for the truth. changing remarks attributed to In Selleck v Globe International have the same damaging effect as The Supreme Court concluded someone else or, indeed, in mak- Inc (212 Cal Rptr 838, C App a defamatory statement about him that a test of material change in ing them up altogether? 1985), Robert Selleck, the father is libel. It held that the article was meaning should be applied. On In H v Castillo-Puche (551 F of actor Tom Selleck, sued Globe reasonably susceptible of a defam- reaching its decision, the court 2d 910 [2nd Cir 1997]) (an appel- International for libel and invasion atory meaning. appeared to be influenced by the lant decision), a writer and lectur- of privacy for publishing an article practical issues relating to impossi- er who had been a friend of Ernest that contained quotations about Misquotation and the bility of complete accuracy when Hemingway sued for libel and Tom Selleck that were attributed to US Supreme Court reconstructing a speaker’s words. invasion of privacy because of Selleck senior. The magazine had The issue of quotation and mis- The majority decision of the unfavourable remarks made about carried the headline Tom Selleck’s quotation also arose in the case of United States Supreme Court has him in Hemingway in Spain. The love secrets by his father. Robert Masson v New York Magazine been criticised by some as not pro- court held that, as originally trans- Selleck alleged that he never gave (111 S ct 2419, 1991). In 1983, tecting the true meaning of quota- lated, Hemingway’s words were: an interview to any of the maga- Janet Malcolm published in the tions, as the decision permits delib- ‘[H] is dirty and a terrible ass-lick- zine’s reporters and did not con- New Yorker Magazine a two-part erate alterations even beyond er. There’s something phoney sent to an interview that the maga- article concerning the sacking of grammar and syntax. about him. I wouldn’t sleep in the zine could use. He argued that the psychoanalyst Jeffrey Masson There is legal substance to the same room with him’. The author quotations were falsely attributed from his position as Projects view that it is not unlawful (per se) altered the quotation to the words: to him and that the statements Director of the Sigmund Freud to alter a speaker’s quotation even ‘I don’t trust him’. The court held were published with knowledge Archives. The article apparently beyond grammar and syntax pro- that in transforming the words to that they were falsely attributed to was based on Malcolm’s taped vided that there is no material the much milder version, him or with reckless disregard to interviews with Masson. The mat- change in the meaning of the Doubleday, the publishers, were the fact that he did not make the ters dealt with were of a sensitive words. G fictionalising to some extent. The comments. nature, considering his position as court concluded that if Doubleday The court in the Selleck case psychoanalyst. Masson sued Dr Eamonn Hall is Chief Legal could not have been liable for pub- found that the contents of the arti- Malcolm, New Yorker Magazine Officer with Telecom Éireann plc.

MARCH 1999 LAW SOCIETY GAZETTE 9 VIEWPOINT Letters

Of God and Dumb and dumber From: Denise Kirwan, Conway charges. The judge was confused by tion to a road traffic accident and it Mammon Kelleher Tobin, Cork the physical likeness between the included a description of a tele- From: TC Gerard O’Mahony, t a recent sitting of the District two and asked: ‘Were you up before phone conversation between our Court in Kanturk, Co Cork, a me this morning?’, to which the sec- client and the father of the driver of Dublin A young female defendant who was in ond brother replied: ‘I don’t know, the other vehicle. The father stated aw Society President Patrick custody was granted legal aid and judge, what time were you up at?’ that he could not understand how so LO’Connor, in reference to the the district judge enquired which much damage could have been done last opening of the new law term solicitor she wished to represent her, From: Damien Moynihan, to our client’s car. Subsequently, it church services in the separate to which she replied, ‘she didn’t Moynihan, Mulvihill & Company, seems, the telephone conversation Catholic and Protestant church- know any of them so it didn’t matter Cork degenerated to such an extent that es, found the Protestant service to her’. The district judge said he was recently consulted by a client the father ultimately denied that the couldn’t choose for her, and he whose mother wished to have him car was ever out of his driveway on ‘a fitting and appropriate ser- I asked her to point to a practitioner barred from the family home. When the night of the accident. In the cir- vice’ (Gazette, Letters, of her choice in the court. The young asked if his mother had any reason cumstances, it seems somewhat apt November 1998, page 9). As a girl pointed vaguely across the court- to bring this application, the client that the following sentence appears result, he advocated a (single) room in the direction of two local related his sorrowful story as follows: in our client’s statement: ‘He also non-denominational service to practitioners so the judge told her to ‘I came home from town, loaded said that he would like his maniac to include all lawyers, since we be more specific, and asked whether with drink. I went up to my bedroom look at the car’. We assume that live in a ‘non-sectarian, united, it was the solicitor who appeared to and turned on the television to ‘mechanic’ was intended, but one open tolerant society’. be ‘follicly challenged’. At this, the watch Coronation Street. The mot- can never be too sure! other practitioner replied: ‘I’m glad her came up ranting about the telly I would be one of the first to you didn’t say “phallically”, judge, or being so loud, so I took off my shoe Denise Kirwan wins the bottle of cham- endorse Mr O Connor’s sugges- I would have to take instructions and threw it down the room. I didn’t pagne this month tion if I thought it would from my friend’. throw it at her; I just threw it out of A bottle of the finest champagne will increase the spirituality of the pure frustration. The problem is that go to the reader who sends in the fun- occasion, and presumably the At a sitting the previous week in the the shoe rebounded off the armchair niest contribution to Dumb and dumber fervent desire of all participating same District Court area, the district and broke the f***ing window’. each month. Send your examples of the in giving as much recognition to judge dealt with a young gentleman wacky, weird and wonderful to the Editor, Law Society Gazette, Blackhall the Law of God as to the Law of who appeared before him on crimi- From: Seamus Roe, Maguire nal charges. Later on in the morning, McClafferty, Dublin Place, Dublin 7, or you can fax us on 01 the Land, divorced from the lure 672 4801, or e-mail us at c.oboyle@law- a brother of the first fellow ecently, a client furnished to us a society.ie of Mammon and the euphoria appeared before the court on similar Rhand-written statement in rela- generated by the ‘Celtic Tiger’.

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MARCH 1999 LAW SOCIETY GAZETTE 11 NEWS Report points way for solicitors to become superior court judges olicitors could be appointed and with at least ten years’ expe- Currently, solicitors can only be debate in 1995 referred to the Sto superior court benches if rience of regular Supreme and appointed as District and Circuit ‘ridiculousness’ of the ‘arcane the Government acts on recom- High Court litigation, should Court judges. While in opposition, rule’ whereby all solicitors were mendations made in the Report of qualify for appointment as judges Justice Minister John O’Donoghue denied the opportunity of serving the working group on qualifica- of these courts. Section 16(7) of – himself a solicitor – in a Dáil as judges of the superior courts. tions for appointment as judges the Courts and Court Officers Law Society President Pat of the High and Supreme Courts, Act, 1995 and section 5(2) of the O’Connor welcomed the findings published recently by Justice Courts (Supplemental Provisions) in the report. ‘The Society is Minister John O’Donoghue. Act, 1961, should be amended to pleased that the recommendations The report says that solicitors make this possible, the working in this report are made on a con- with 12 years in private practice, group says. sensus basis by the members of the working group’, he said. ‘We look forward to the early enact- US firm sees huge demand ment of legislation to give effect to these recommendations. he first US law firm to open about opening the office has been ‘We believe it to be in the pub- Tan Irish office is seeing a huge that the interest was real and that lic interest that solicitors be eligi- demand for American legal ser- there has been a huge demand for ble to be appointed as judges of vices in Ireland, according to one American legal service in Ireland’, the High Court and Supreme of its senior partners. Galway-born he told the Mid-West legal paper. Court’, he added. James Fahy of Schiff Hardin & Schiff Hardin is based at Copies of the report are available Law Society President Patrick Waite told the Illinois legal times Dublin law firm McKeever O’Connor: ‘We believe it’s in from Government Publications, recently that there has been huge Rowan’s offices in the capital. The the public interest that solicitors Molesworth Street, Dublin 2. interest since they opened in two firms are affiliated, but remain be eligible to be appointed’ (See also Viewpoint, page 4.) Dublin last summer (see Gazette, separate businesses responsible July 1998, page 11). ‘The best part for their own work. Call for FLAC volunteers he Free Legal Advice Centres ics, where members of the public Compensation Fund payouts T(FLAC) is a non-governmen- can get instant access to prelimi- The following claim amounts were admitted by the Compensation tal organisation which campaigns nary legal advice from qualified Fund Committee and approved for payment by the Council at its for full and equal access to justice lawyers. The centres located in the meeting in January 1999: Conor McGahon, 19 Jocelyn Street, Dundalk, and provides a range of services greater Dublin area are looking for Co Louth – £4,996.32; Michael Owens, 5 Lower Main Street, Dundrum, designed to achieve that aim. One volunteers. If you would like to Dublin 14 – £200. such service is the network of part- volunteer or need further informa- time (mostly evening) advice clin- tion, contact Áine on 01 6794239.

IHCA/IIF medico-legal fees revised he note in last month’s Gazette (page 13) about the revised Consultation with counsel other than on day of hearing TIHCA/IIF medico-legal fees contained a number of small inaccu- At consultation rooms...... £104 racies. The following are the correct fees and practitioners should note At court ...... £155 that they apply only to consultants who are members of the IHCA. The Consultation with another party’s medical adviser fees apply from 1 January 1999 to 30 September 2001. By telephone ...... £32 By correspondence...... £65 IIF/IHCA recommended medico-legal fees By attendance at examination...... £91 Examination and first report Standard ...... £155 Standby fees Psychiatrist’s ...... £170 For standby within 20 miles of consultant’s hospital: 25% of appropri- Follow-up report ate attendance fee. For standby for a court more than 20 miles from Standard ...... £136 consultant’s hospital: 50% of appropriate attendance fee. Psychiatrist’s ...... £149 Court attendance cancellation Attendance at court (to include consultation with counsel on day of Cancellation within two working days will attract full court attendance hearing, if necessary) or standby fee, as appropriate. Cancellations advised more than two Half day (am or pm) ...... £381 working days but less than five working days will attract 50% of the Full day ...... £534 court attendance or standby fee, as appropriate.

MARCH 1999 LAW SOCIETY GAZETTE 13 INDEPENDENT FINANCIAL ADVICE FOR CLIENTS – COMMISSION FOR YOU

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Beneficiaries hit by Wards of BRIEFLY New disclosure rules: Court staff shortage a clarification In last month’s article Expert evi- undreds of beneficiaries age and the loss of three senior bring a legal challenge. dence: the new rules explained, Hunder ward-of-court estates officials. This is leaving it unable The problem is worsened by the it was stated that the new statu- are losing out because of staff to deal with the dismissal orders fact that longer life expectancy tory instrument applies to ‘any shortages in the Wards of Court needed to release the deceaseds’ means more people are being made report or statement coming into office, according to Law Society assets to personal representatives wards of court, O’Connor added. existence after 1 September President Pat O’Connor. He for distribution to beneficiaries. Also, the Powers of Attorney Act, 1997 for the purposes of any revealed that the Society is receiv- In a letter to Justice Minister 1996 requires all enduring powers proceedings (whether instituted ing angry letters from solicitors John O’Donoghue, O’Connor of attorney to be registered by the before or after that date)’. This who cannot finish administering said: ‘Hundreds of beneficiaries Registrar of Wards of Court, should have read: ‘… instituted ward-of-court estates because of are delayed in receiving their adding to the workload. He called on or after that date’. the problem. legal entitlements from estates’. on the Minister to sanction the O’Connor said that the office is And he warned that beneficiaries appointment of extra staff to the Latent damage struggling to cope with an prevented by staff shortages from office and to replace the three paper published increased workload, a staff short- getting their distributions could departed officials. The Law Reform Commission has published a paper on latent damage in contract and tort. Minister plans army deafness tribunal The Consultation paper on the Statutes of Limitation: claims in he Department of Defence is the law governing tribunals of contract and tort in respect of Tcurrently laying the ground- inquiry, their difference from latent damage (other than per- work for a proposed tribunal to courts, immunity from prosecu- sonal injury) is available from deal with the 11,500 army deaf- tion, their costs, compensation tri- the Government Publications ness claims it is facing. According bunals, and the constitutional and Office, Molesworth Street, to Defence Minister Michael procedural issues involved in Dublin 2, price £5. Smith, the tribunal will base its obtaining injunctions to prevent findings and awards on the so- publication of materials in vari- Non-executive directors called Green book, which lays ous circumstances. booklet available down a system of calculating On the Minister for Defence’s A booklet dealing with the role hearing loss. proposal, Murphy pointed out that of non-executive directors is Law Society Director General compensation tribunals did work now available from the Ken Murphy gave a preliminary successfully in the Stardust and Boardroom Centre. The non- response to this in the course of a Hepatitis C cases, but only executive director: role and con- 45-minute interview on Marian because the potential applicants tribution deals with the advan- Finucane’s programme on RTE believed that the level of compen- tages, tasks, powers and duties Director General Ken Murphy: Radio One. In the course of the told Marian Finucane that tribunal sation that the tribunals would of non-executive directors. For interview, he explained and quantum would have to match award would match that of the copies and other information, answered a series of questions on the courts courts. contact Kevin O’Connell, direc- tor, or Rosemary Wilson, admin- istrator, at the Boardroom Defence Work starts on Society’s Centre, Irish Management lawyers sought Institute, Sandyford Road, new education centre Dublin 16 (tel: 01 2078537, e- for Rwanda mail: [email protected]). he International Criminal TTribunal for Rwanda is cur- German law course rently recruiting lawyers who set for May speak English or French to act as A preparatory course for the defence counsel. The tribunal’s qualifying exams for lawyers in registrar keeps a list of indepen- Germany will be held in Baden- dent counsel who are assigned to Baden next May. Passing the suspected or accused persons. exams means you will be a qual- Cases can take up to several ified lawyer in Germany, but months to run and lawyers are there is no obligation to practise responsible for their own training. there. For more information, For more information, contact the contact Dr Grannemann & von Now you see it – soon you won’t. Demolition is underway on the Law Society’s Criminal Law Hendrick Place site at Blackhall Place in preparation for construction of Furstenberg, Freiburg, (tel + 07 Committee, Blackhall Place, the Society’s new education centre. Its scheduled completion date 61 207 330). Dublin 7 (tel: 01 6724800). is June 2000

MARCH 1999 LAW SOCIETY GAZETTE 15 FirstFirst amonamon Irish language and the law

Irish lawyers are supposed to be competent in the use of the first official language of the State, but how many could honestly claim any useful knowledge of Irish? And can you really conduct a court case purely as gaeilge when there is no such thing as an Irish language legal dictionary? Niamh Nic Shuibhne argues that it would be better all round if artificial linguistic requirements were abandoned in favour of making sure that Irish speakers could conduct their legal business on an equal footing with English speakers

he legal status of the Irish language is governed by article 8 The relevant legislative obligations date back to 1929; 70 years on, the of the Constitution, which provides that Irish is the national Minister of State with responsibility for Irish language policy is current- and first official language of the State; English is recognised ly preparing a comprehensive Language Bill. In the specific context of as a second official language. Article 8 provides the legal lawyers and the Irish language, this article will examine the need for basis for successive government policies aimed at the renew- reform, distinguishing the revival of Irish per se from the contemporary Tal and promotion of Irish as a contemporary vernacular language. While perspective of fundamental language rights. the ethos of the provision lies in the post-independence quest for ways to affirm a separate identity, its implementation in real terms was assigned Language and the law: the current position largely to schoolchildren and to members of the civil service. The Legal Practitioners (Qualification) Act, 1929 is grounded in article In the context of the official use of language, the legal profession was 4 of the 1922 Constitution, which was similar to article 8 (1937) except earmarked for the impo- that Irish and English sition of a duty of lin- were recognised equally guistic competence. But ‘The Irish people have a complex relationship with as official languages, can such requirements be the Irish language. Most do not use it in their daily lives with Irish as the national justified? Certainly, it is language of the Free both reasonable and yet profess an emotional commitment to its status State. But equal official pragmatic to require that and preservation in Irish society’ status belies the fact that, lawyers should be com- even in 1922, Irish was a petent in the first official de facto minority lan- language of the state in which they practise. Consider, for example, arti- guage. Upgrading the status of Irish to first official language in 1937 con- cle 3 of the Spanish Constitution, which provides (among other things) trasts further with its position in reality. So policies based on the consti- that ‘Castilian is the official Spanish language of the state. All Spaniards tutional status of Irish are derived from an exaggerated premise at the have the duty to know it and the right to use it’ (emphasis added). But outset. By focusing on the revival of the language as an embodiment of Irish is the first official language of the State in a constitutional rather status and identity, the actual needs of its speakers are often demoted. than literal sense. Can a universal requirement of linguistic competence Section 1 of the 1929 Act defines the required competence as ‘such a continue to be justified in this context? degree of oral and written proficiency in the use of the language as is suf-

16 LAW SOCIETY GAZETTE MARCH 1999 COVER STORY ngng equals?equals?

MARCH 1999 LAW SOCIETY GAZETTE 17 ficient to enable a legal practitioner efficiently to receive instructions to ing content of the examination papers has included more ‘legal’ essay top- advise clients, to examine witnesses and to follow proceedings in the Irish ics in recent years but the option of the old reliable – the schooldays com- language’. The right to use the Irish language in the courts was estab- position – still remains. The syllabus for the second examination in Irish lished in 1927 (R (Ó Coileáin) v Crotty [61 ILTR 81]) and has been con- notes that ‘a knowledge of basic legal terminology in Irish is desirable’. firmed by both High Court and Supreme Court decisions. It generates a Surely such knowledge should be required. The oral examination is number of reciprocal duties, including the onus on the State to provide described in the syllabus as ‘a very brief and simple conversation’, which, and pay for interpretation services where another party to the proceedings again, does not bear much likeness to the criteria envisaged in the 1929 does not understand or speak Irish. Act. The legislative duty on lawyers to acquire and demonstrate compe- A short series of lectures on legal terminology is delivered over two tence in Irish would seem to be a corollary of the realisation, in practical weeks as part of the BL degree course, with written and oral examinations terms, of the right to use the language in the courts. But neither the exam- held at the completion of the period of instruction. This approach is cer- ination structures developed to assess linguistic competence nor the com- tainly more favourable but it is highly unlikely that the level or intensity of plex web of judicial interpretations of article 8 of the Constitution have instruction provided ensures adequate fulfillment of the legislative criteria. created an environment in which the Irish speaker can transact legal busi- So a citizen who wishes to use the Irish language in court proceedings ness through the first official language on an equal footing with citizens faces a significant obstacle at the outset, since few lawyers are truly com- who proceed through English. petent to work through that medium. But even where this initial challenge has been overcome, a range of practical difficulties still thwart the sup- Approach that does more harm than good posedly free linguistic choice in the official use of language. The standard of linguistic competence required by the 1929 Act may Take, for example, a citizen presenting his side of court proceedings accord with the constitutional status of Irish, but imposing the require- through Irish who has engaged a solicitor to act on his behalf. The solic- ment on all legal practitioners ignores the fact that most will never actu- itor may not be able to derive appropriate legal terminology in Irish, as the ally use Irish in their professional lives. The policy formulators in the Irish Legal Terms Orders have not been updated since 1956. Furthermore, Free State chose to defer to the illusory, or perhaps potential, rather than an Irish language legal dictionary does not exist. Not all official forms and the actual position of the language. Ironically, this optimistic approach documents are available in Irish or bilingual versions, so a preliminary has done more harm than good, generating token respect for Irish in the claim for the translation of appropriate documentation may have to be ini- abstract but not as a real vernacular language. tiated in the High Court. It is more or less certain that this claim will suc- The Irish examinations of the Law Society perpetuate this culture of ceed, with costs borne by the State, but individual cases still need to be superficial compliance. Potential solicitors are deemed to fulfil the leg- initiated since a general State duty of translation has not been sanctioned islative criteria for linguistic competence, which were framed in the prag- by the courts (Ó Mhurchú v Registrar of Companies and the Minister for matic skills of legal practice, by reproducing translations of literary Irish Industry and Commerce [1988]; Delap v Minister for Justice, Ireland and fiction and writing essays on the joys of A day at the beach. The evolv- the Attorney General [1990]). Leave it to the experts!

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18 LAW SOCIETY GAZETTE MARCH 1999 COVER STORY

Whether the case involves the State or another private individual, a cit- Most do not use it in their daily lives yet profess an emotional commitment izen can present all oral and written evidence through Irish, including to its status and preservation in Irish society. If the present constitutional cross-examination of witnesses who testify in English, using interpretation position of Irish reflected the linguistic reality, then it would be necessary if necessary. The State cannot, however, be compelled to use the first offi- as well as reasonable to demand that lawyers should know the first official cial language when presenting its side of the case or issuing relevant doc- language of the State. But in view of the de facto minority status of Irish, umentation, even at the request of a citizen (Attorney General v Coyne and the continued imposition of a blanket duty of linguistic competence is not Wallace 101 ILTR 17 [1963]; Ní Cheallaigh v An tAire Comhshaoil justifiable in moral terms; nor does it actually serve the needs of Irish [1992]). speakers in real terms. We should not require the illusory competence of Oral evidence delivered through Irish might not be set down as spoken; many over the actual competence of few. the English translation may instead be recorded. This places an additional The introduction of a specialised, but optional, structure for Irish lan- burden on the solicitor to ensure that the evidence is being translated cor- guage competence was recommended by Fasach in 1986 and continues rectly (Attorney General v Joyce and Walsh [1929] IR to make legal, moral and practical sense. Specialised 526). The judge might not actually understand courses would concentrate on Irish legal termi- the proceedings without the assistance of an nology, as well as oral instruction interpreter, notwithstanding the duty to designed to develop both competence the contrary contained in sections 44 ‘Languages do and confidence in communications and 71 of the Courts of Justice Act, not have fundamental with clients and in courtroom 1924 (Ó Monacháin v An procedure. The burden of lan- Taoiseach [1986] ILRM 660). rights, but their guage revival is thus correctly Finally, where relevant, speakers do’ taken from the legal profes- there is no entitlement to an sion in general terms, while Irish-speaking jury (Mac those who choose to partici- Cárthaigh v Éire, An tArd- pate in the optional structures Aighne agus Stiúrthto an Irish- will actually be capable of car- speaking jury ( [1998]). Is it any rying out legal business through wonder, then, that most Irish- Irish. speaking citizens prefer to proceed This reform has two principal quietly through English than to attempt effects: in a specific sense, it addresses to exercise their right to linguistic ‘choice’? the needs of Irish speakers more comprehen- sively and, in broader terms, it does so more hon- The framework for reform estly. The majority can rarely be justifiably burdened with Suggestions on changes to the legal status of Irish are often interpreted as the the goals and objectives of minorities, but it can be held responsible for the antithesis of respect for the language, but its overblown constitutional status, creation of a context within which members of a minority can realise their as currently implemented, has not succeeded in achieving linguistic equali- own choices. ty, at least in the domain of the official use of language. The real and practi- The Constitution Review Group recommended substantive amend- cal obstacles faced by those who wish to transact official business through ments to article 8, framed in the abstract objectives of linguistic survival, Irish must be addressed; but it must also be acknowledged that these diffi- calling for the Irish language to be ‘nurtured’. This is not the way to go. culties are not faced by everyone, since the vast majority of Irish people Constitutional reform is desirable, but the Irish people should assess their choose to speak English. true intentions in respect of the Irish language. Where we hope that the The de facto minority position of Irish speakers does not diminish their very existence of a constitutional provision will suffice, without a gen- fundamental language rights; it must, however, colour the way in which uine commitment to its implementation, our respect for the nature of con- these rights can be implemented to optimum effect. To ascertain the policy stitutionalism is correctly called into question. Even if article 8 remains direction most favourable to the language rights of Irish speakers, it is nec- as it is, its interpretation should be directed towards the achievement of essary to establish moral and legal justifications for imposing language com- linguistic equality in a real and not exaggerated sense. Reform of the petence duties on others, and to establish the nature and scope of such duties. structures for assessing the linguistic competence of legal professionals is Policies directed towards preserving the Irish language in a cultural sense long overdue. are mostly designed to secure linguistic survival. This is a perfectly valid The present regime does not really serve anyone efficiently, apart from ambition in itself but it is difficult to justify the imposition of duties on oth- bolstering a deceptively artificial concept of linguistic honour. The immi- ers solely on this basis. nent introduction of language legislation provides an ideal opportunity Languages do not have fundamental rights, but their speakers do. Since for a reassessment of the 1929 Act: will it be taken? G the implementation of fundamental rights imposes duties on others, espe- cially on states, linguistic security provides a more acceptable theoretical Niamh Nic Shuibhne is a PhD candidate at the Europa Institute in the framework. This means that an individual can use his or her language with Faculty of Law at the University of Edinburgh. dignity, on the basis of full equality and respect for identity and related choices. Responsibility for the viability of the language is placed primarily BIBLIOGRAPHY on the speakers themselves but only where an appropriate linguistic envi- Fasach, An Ghaeilge agus an Dlí: Tuarascáil (Dublin: Fasach, 1986). ronment exists, where conditions are favourable to the exercise of a genuine Green, Leslie, ‘Are language rights fundamental?’, (1987) 25 Osgoode right to choice of language. Hall Law Journal, pp639-669. The declaration of language rights in the absence of a commitment to Nic Shuibhne, Niamh, ‘The Constitution, the courts and the Irish lan- their realisation in practical terms is a meaningless exercise. The discrepan- guage’, in Tim Murphy and Patrick Twomey (eds), Ireland’s evolving cies between the legal and actual status of Irish in the domain of official lan- constitution 1937-1997: collected essays, (Oxford: Hart Publishing, guage use illustrate this truth. 1998), pp253-263. The Irish people have a complex relationship with the Irish language. Report of the Constitution Review Group (1996).

MARCH 1999 LAW SOCIETY GAZETTE 19 A salaried partnership in a law firm might seem to offer you the best of both worlds: Salarie you get listed as a ‘partner’ on the letterhead but you run none of the risks usually associated with this status. Or do you? A recent case in easy England suggests that salaried partners could be much more exposed than they thought, as Michael Twomey explains targets

ccording to a recent Law Society sur- ner. After Mr Williams’ arrival, the Nationwide vey of Irish law firms (Gazette, March requested Mr Lewis to provide it with a report A 1998, page 30), 8% of the firms sur- on the title of a property which was being veyed have salaried partners. As the size of law financed by the building society. The property firms continues to increase, it seems likely that was duly mortgaged to the Nationwide, and a the percentage of salaried partners in those short time after that the mortgagee fell into firms is also likely to increase. It is against this arrears on his payments. In order to realise its backdrop that this article considers the recent security, the property was sold by the action against a salaried partner in an English Nationwide but at a considerable loss. The firm of solicitors (Nationwide Building Society Nationwide alleged negligence on the part of v Lewis [1997] 3 All ER 498). Mr Lewis in the preparation of the report on This case concerned a negligence action title and it instituted proceedings against both taken by the Nationwide Building Society Mr Lewis and Mr Williams. against the solicitors’ practice of Bryan Lewis In its claims against Mr Williams, the and Company. Mr Lewis was the founder and Nationwide made two basic allegations. principal in this practice until 1990 when Mr Firstly, it alleged that Mr Williams was not a Williams agreed to join him as a salaried part- salaried partner but was in fact a true partner

20 LAW SOCIETY GAZETTE MARCH 1999 PRACTICE ed partners: ss??

and therefore was liable for the damage caused a true partner in the firm. The evidence estab- In doing so, it confirmed the well-established by the negligent report on title issued by his lished that, after agreeing to become a salaried principle that just because a person is listed on partner. This claim was based on a partner’s partner in the firm, Mr Williams was paid a the firm’s notepaper as a partner does not make liability for the acts of his co-partners under salary by Mr Lewis and tax was deducted from him a partner. It was therefore held that Mr section 5 of the Partnership Act 1890. his salary under the PAYE system. He was not Williams was not liable under s5 of the Secondly, the Nationwide alleged that even entitled to a share in the firm’s profits and Partnership Act 1890 for the allegedly negli- if Mr Williams was not a true partner in the indeed he had baulked at Mr Lewis’ suggestion gent title report prepared by Mr Lewis since he firm, he was nonetheless liable for the damage that he pay £100,000 to buy his way into the was not his partner. caused to Nationwide under the principle of practice. holding out – that is, he allowed himself to be However, in favour of a finding that he was Liable as a partner by holding out? represented as a partner in the firm and thus he a true partner was the fact that he was listed on The second line of argument adopted by the was liable as if he was a partner under s14(1) the firm’s notepaper as a partner and had indi- Nationwide was that Mr Williams was liable to of the Partnership Act 1890. cated his willingness to become a signatory on the Nationwide as a partner by holding out. the firm’s bank account. Nonetheless, the Under s14(1) of the Partnership Act 1890, True partner or a salaried partner? English High Court had no hesitation in hold- ‘everyone who by words spoken or written or The Nationwide’s first allegation was that Mr ing that the relationship between Mr Williams by conduct represents himself, or who know- Williams was not in fact a salaried partner but and Mr Lewis was one of master and servant. ingly suffers himself to be represented, as a

MARCH 1999 LAW SOCIETY GAZETTE 21 ARBITRATION SEMINAR ALTERNATIVE WEDNESDAY, 24 MARCH 1999 DISPUTE 9.00am to 1.00pm RESOLUTION VENUE President’s Hall, Law Society of Ireland, SEMINAR Blackhall Place, Dublin 7 WEDNESDAY, 28 APRIL 1999 10.00am to 1.00pm PROGRAMME VENUE ■ Introduction by Chairman, Frank Murphy President’s Hall, Law Society of Ireland, Blackhall Place, Dublin 7 ■ Arbitration • How does a party get to arbitration • Arbitration schemes • Statutory arbitration PROGRAMME • Advantages and disadvantages of arbitration ■ Arbitration clauses • Drafting arbitration clause pre-dispute SESSION 1 CONCILIATION and appointment • Drafting arbitration clause post-dispute SESSION II MEDIATION of arbitrator • Appointment of arbitrator SESSION III INDEPENDENT EXPERT ■ Power of arbitrator • Section 19 of the 1954 Act SESSION IV MINI TRIAL • Attendance of witnesses • Procedural issues ■ Control by the • Section 22 of the Arbitration Act, 1954 SPEAKERS INCLUDE courts • Case stated • Section 5 of the Arbitration Act, 1980 Gerald O’Sullivan, ■ Enforcement and • Rules of the Superior Court McBains Cooper International challenging award • Power of court to remit award David Keane, • Power of court to set aside award McGreevey Keane Mediation Timothy Bouchier-Hayes, ■ Costs • Power of the arbitrator Solicitor, McCann FitzGerald • Power of the court Anthony Hussey, ■ International • How it applies to domestic arbitration Solicitor, Hussey & O’Higgins (Arbitration Commercial) Act, 1998 ■ Panel Discussion

SPEAKERS INCLUDE

Solicitors Michael Carrigan, Solicitor, Eugene F.Collins, Dublin Bernard Gogarty, Smyth & Son, Louth Kevin Kelly, McCann FitzGerald, Dublin Frank Murphy, Gleeson McGrath Baldwin, Dublin Legal cost accountant Robert Connon, Cyril O’Neill & Company, Dublin

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Please reserve place(s) for me on the arbitration seminar Please reserve place(s) for me on the alternative dispute resolution seminar I enclose cheque £ Please return to: Mary Lynch, Law Society of Ireland, Blackhall Place, Dublin 7 PRACTICE partner in a particular firm, is liable as a part- be followed in Ireland. This is because s14(1) ner to anyone who has on the faith of any such states that, before a person can be liable on the representation given credit to the firm’. basis of a holding-out, there must be a repre- It is worth emphasising that, under the sentation that he is a partner ‘in a particular terms of s14(1), a person who holds himself firm’. Similarly, s14(1) also requires the third out as partner is not deemed to be a partner but party to have given credit ‘to the firm’. only ‘liable as a partner’. For this reason, this These both indicate that the firm must actu- part of the Nationwide’s case was completely ally exist. Where there is no firm in existence, separate from its unsuccessful claim that Mr it is difficult to see how a person can be liable Williams was a true partner in the practice. under s14(1) since there can be no firm in Indeed, this aspect of the case represented the which he represents himself as a partner. greatest likelihood of success for the In Nationwide Building Society v Lewis, Nationwide. This was because, while denying there was no partnership in existence. After all, liability under s14(1), Mr Williams accepted Mr Lewis was at all times the sole principal in that he had held himself out as a partner by the firm of Bryan Lewis and Company and the allowing his name to be listed as such on the High Court, in the first aspect of the case, held firm’s headed notepaper. that there was no partnership between Mr It is to be noted that the requirement that the Lewis and Mr Williams. third party give ‘credit to the firm’ has not Yet this argument does not appear to have been given a technical meaning by the courts been pleaded by Mr Williams’ counsel. Nor but has been interpreted as requiring a third It is significant that the High Court did not has it been considered to date by the Irish party to act to its prejudice on the faith of the look for proof that the Nationwide took notice courts. When it does arise, it is thought that the holding-out being true. It is probably for this of Mr Williams’ name on the headed notepaper Irish courts will follow the strict wording of reason that Mr Williams’ lawyers did not seek but rather was prepared to make this assump- s14(1) of the Partnership Act 1890 and refuse to contest the contention that the Nationwide tion. to follow this aspect of the decision in the had given credit to the practice by seeking and Having assumed that the Nationwide read Lewis case. accepting advice on the mortgage. the headed notepaper, the court then made a However, the other aspects of the Lewis Having accepted that he held himself out as bigger leap still, namely, it assumed that the case do not raise the same concerns and are a partner and that the Nationwide had given Nationwide relied on the representation that likely to be followed in Ireland. Thus, in the credit to the firm, Mr Williams’ defence was Mr Williams was a partner. On this basis, the absence of evidence to the contrary, an Irish that the Nationwide had not given credit to the High Court held that under s14(1) of the court is likely to assume that a third party in firm ‘on the faith of’ the holding out as Partnership Act 1890, Mr Williams was liable receipt of the headed notepaper of a firm is, required by s14(1) of the Partnership Act ‘as a partner’ and was thus liable for the firstly, aware of a salaried partner’s name on 1890. He claimed that when the Nationwide allegedly negligent report of Mr Lewis. the notepaper and, secondly, that the third instructed Mr Lewis to prepare the report on The approach taken by the English High party has relied on this holding-out so as to title on the property, it was unaware of Mr Williams’ presence in the practice and there- fore could not be said to have acted on the faith ‘The position of a salaried partner might be described of the holding-out. as the worst of both worlds – he does not share in the The High Court seemed to accept that the Nationwide was unaware of Mr Williams’ profits of the firm or have any say in its management existence when it issued its instructions to but is nonetheless liable to third parties’ Bryan Lewis and Company. However, it held that in assessing whether the Nationwide had acted on the faith of the holding-out, its knowl- Court, if followed here, simplifies the task of a make the salaried partner liable under s14(1) of edge on the date of the issue of its instructions third party who alleges that a salaried partner is the Partnership Act 1890. In this way, the bur- was only part of the issue. The High Court liable for holding himself out as a partner den of proof is transferred to the salaried part- held that one had also to take into account the under s14(1) of the Partnership Act 1890. The ner to show that the third party was not aware Nationwide’s state of mind on the date Bryan effect of Nationwide v Lewis is that, in the of his name on the notepaper or that the third Lewis and Company replied to this request, absence of evidence to the contrary, if a party did not rely on this fact. which it did by issuing the report to the salaried partner’s name is on the headed Finally, Nationwide Building Society v Nationwide. notepaper, a third party who receives the let- Lewis is interesting for one other reason, The evidence established that the report on terhead will be assumed, firstly, to have seen namely, it illustrates why the position of a title was received by the Nationwide under his name and, secondly, to have acted on the salaried partner might be described as the cover of the firm’s headed notepaper, which faith of this holding-out. So the onus of proof worst of both worlds – he does not share in the had Mr Williams listed as a partner. For this is on the salaried partner to prove that the third profits of the firm or have any say in its man- reason, the High Court held that the party did not see his name or, if he did, that he agement but is nonetheless liable to third par- Nationwide was entitled to assume that the did not rely on this holding-out. ties who have relied on the representation that report on title was in fact that of a two-partner he is a partner. G firm. The High Court concluded, without fur- Will Lewis be followed in Ireland? ther analysis, that for this reason the There are good reasons for arguing that some Michael Twomey is a solicitor and a consultant Nationwide must be taken to have relied on the aspects of the High Court’s decision in in partnership law to the Law Society’s Law representation that Mr Williams was a partner. Nationwide Building Society v Lewis will not School.

MARCH 1999 LAW SOCIETY GAZETTE 23 Asbestos-related litigation is still in its infancy in this country, but the long gestation period of asbestos-related illnesses means that we could be seeing more and more cases over the coming years. Niall Hill outlines what we know about the disease and highlights the legal issues it raises Da

nowledge of the link between asbestos exposure and certain diseases has accumulated slowly since the turn of the century. Exposure to asbestos fibres can, Kin certain circumstances, lead to diseases or illnesses which can be divided into four cate- gories: a) Pleural plaques b) Asbestosis c) Lung cancer, and d) Mesothelioma.

Asbestos is the name given to a group of natu- rally-occurring silicate minerals commonly found in rocks world-wide. Although there are many types of asbestos, only three are of any significance industrially, the remaining types having been exploited to a minor extent. The exposure can also occur in the home. Claims Asbestosis. The first case of asbestosis to common names of the three main types of for damages for asbestos-related illnesses have be described fully in medical literature was by asbestos are ‘blue’, ‘brown’ and ‘white’ been brought successfully in the courts of Dr WE Cooke in 1924 (‘Fibrosis of the lungs asbestos, with white asbestos being the more Great Britain and Northern Ireland for at least due to the inhalation of asbestos dust’, British common in recent years. the last 30 years, but are only beginning to sur- Medical Journal, Vol 2, p147) and it was he During the Industrial Revolution and face in the Republic. who later coined the word ‘asbestosis’ in beyond, asbestos was heralded as the wonder- Pleural plaques. This is a benign condi- 1927 (‘Pulmonary asbestosis’, British product. It is light-weight, insulates against tion which affects the lungs. The pleura is a Medical Journal, Vol 2, p1024). This is a con- both electricity and sound, it is heatproof, does membrane which surrounds the lungs and dition of the inner lung which affects breath- not decay, it is resistant to water, is flexible and some asbestos fibres can work their way out ing. It can be quite trivial but can also be pro- can be woven into fabric. Over the years the to the pleura where they get lodged and cause gressive; it can become disabling and can uses for this new product multiplied, with the fibrosis or scarring to occur. As a result, the even cause death. Asbestosis occurs when the result that it can now be found in cement prod- pleura can thicken and this in turn would fibres of asbestos are inhaled and retained and ucts, fire resistant textiles, brake linings and restrict the expansion of the lungs and lead to attach to the cells of the lung which lay down insulation, to name but a few. The main areas breathlessness. Pleural plaques are not clini- new fibrous tissue. The fibres are microscop- of industrial exposure would be in the con- cally harmful but do act as a useful marker of ic. The fibrous tissue is useless as a substitute struction and ship-building industries, but asbestos exposure. for air cells.

24 LAW SOCIETY GAZETTE MARCH 1999 MEDICO-LEGAL

in the angerair

pleura. Unfortunately, individual lung cancers more dangerous than other types. It is well that are caused by asbestos are indistinguish- documented that mesothelioma has been found able from those that are caused by cigarette among the families of asbestos workers and smoking or other causes. The latency period even among those who live in the neighbour- for lung cancer caused by asbestos exposure hood of factories that use asbestos. is usually between 15 and 35 years. If a tumour can be detected early enough, the lung Asbestosis: the legal issues may be removed and in some cases the patient Although asbestos-related litigation is com- may recover. monplace in the UK, few cases actually get to Mesothelioma. Asbestosis can be associ- trial on liability. The case of Gunn v Wallsend ated with lung cancer but is not to be con- Slipway & Engineering Co Ltd ([1988], The fused with mesothelioma. Mesothelioma is a Times, 23 January 1989) is unusual in this cancer but it occurs outside of the lung, in respect in that it took a detailed look at the either the pleura or the peritoneum (the lining issues of foreseeability and causation. The of the abdomen). This condition is always only common ground in this case was that the fatal, with the tumour doubling in size cause of death was mesothelioma. approximately four times every year. The The judge found that the deceased’s expo- symptoms become apparent only two years or sure to asbestos was in the course of shaking- Asbestosis normally takes between 15 and less before death and the lag period between out her husband’s working clothes. The issues 25 years to manifest itself and it is difficult to first exposure to asbestos and the develop- were whether the defendant owed a duty of diagnose in its early stages. It is an irre- ment of a tumour averages 40 years, although care to the deceased in relation to her exposure versible condition for which there is no cure. this can vary greatly. Unlike lung cancer, a and, if so, from what date. Symptoms include shortness of breath, cough- past history of smoking is irrelevant. Until 1960, the danger of asbestos was ing, chest pains and clubbing of the fingers. Exposure to asbestos is the only recognised attributed only to heavy exposure. The link Many sufferers experience increasing disable- cause of mesothelioma. The link between between asbestos exposure and mesothelioma ment and pain until their heart or lungs even- asbestos and mesothelioma was first made in was not established prior to 1960 and no rele- tually fail. South Africa in 1960 (see Wagner, JC, vant statutory rules were in place prior to 1969. Lung cancer. During the 1930s, attention Sleggs, CA and Marchand, PE [1960], No annual report of the chief inspector of fac- was drawn to the occurrence of lung cancer in ‘Diffuse pleural mesothelioma and asbestos tories prior to 1965 hinted at a potential risk to workers with asbestosis (Wood, WB and exposure in the North Western Cape an employee’s family, and it was not until 1965 Gloyne, SR [1934], ‘Asbestosis: 100 cases’, Province’, British Journal of Industrial that the incidence of mesothelioma among Lancet, Vol 2, pp1383-5). The 1947 British Medicine, Vol 17, pp260-71). immediate families of asbestos workers annual report of the chief inspector of facto- Mesothelioma risk is not confined to work- became publicly known. ries reported evidence of the association ers in the asbestos industry and all types of The defendant did not in fact foresee the between asbestosis and cancer of the lungs or asbestos can cause it, although blue asbestos is risk of injury to an employee’s wife from the

MARCH 1999 LAW SOCIETY GAZETTE 25 MEDICO-LEGAL employee’s exposure to asbestos dust. The mortality in Britain’, Lancet, Vol 345, 4 March plaintiff in this instance lost the case as the 1995, pp535-539). If it transpires that a defen- judge held he failed to establish that the defen- dant covered up his knowledge of the risks of dants owed any relevant duty of care to his asbestos in order to prevent a flood of cases deceased wife when she initially contracted being taken against him, and in the meantime the mesothelioma. took no precautionary measures, this may lead It is important then to try to ascertain the to awards of exemplary damages. ‘date of guilty knowledge’ in the case of a It will also be important to consider the potential defendant in these cases. The hist- limitation period in asbestos litigation. The ory of the development of asbestos-related Statute of Limitations (Amendment) Act, 1991 illnesses is well documented and no employ- has eased the situation for potential plaintiffs er nowadays could reasonably say that they but it is still a factor that cannot be forgotten. are not aware of the risks that come with The legal and medical worlds must ready working with this substance. Diseases may, themselves to assist the increasing number of however, only manifest themselves 30 to 40 asbestos disease victims. Potential defendants years after initial exposure and it is the must also be prepared to meet the claims knowledge of the defendant at that date which are arising. Because of the long latency which will be important. period of the recognised asbestos-related ill- In the early 1960s, a defendant might have Deaths from asbestos-related illnesses are nesses, a likely defendant may no longer be been justified in stating that certain informa- expected to rise over the next 20 years trading. Tracing the company and its insurers tion in relation to asbestosis was highly spe- is – and will remain – an obstacle for cialised, appearing only in medical journals knowledge, even of up-to-date medical opin- claimants to overcome, and they may well go and such like. The defendant may not there- ion published in journals. uncompensated unless an insurer can be fore have been expected to foresee these Even in the UK, where asbestos-related liti- found. types of risk. But by the late 1960s, most of gation has been a feature for a much longer The legal profession clearly has an impor- the risks were widely known, even outside of period than here in Ireland, it is expected that tant role to play in informing victims and the specialised medical journals. If a defen- deaths arising from mesothelioma will increase defendants alike of their respective rights and dant works with or manufactures asbestos on for the next 20 years or so (see Peto, J, duties. G a full-time basis, it could be argued that they Hodgeson, JT, Matthews, FE and Jones, JR should be expected to have specialised [1995], ‘Continuing increase in mesothelioma Niall Hill BL is a practising barrister.

I.R.F.U. Legal Advisor

The Irish Rugby Football Union governs the game of Rugby Union in Ireland. Given the changing nature of the administration of the game, the I.R.F.U. seeks to appoint a Legal Advisor to its staff to provide legal advice and support on all aspects of the Union’s affairs including player contracts, commercial contracts, general and competition regulations, disciplinary regulations and hearings.

The person appointed will have considerable post-qualification experience as a practicing solicitor along with a strong interest in sport. Whilst an interest or involvement with rugby football is desirable, it is not essential.

Renumeration package is negotiable and will be commensurate with experience and the nature of

26 LAW SOCIETY GAZETTE MARCH 1999 MEMBER SERVICES On-line opportunities knock Lawyers have rarely been first in the queue to embrace new technology, but hopefully all that is set to change. In the second of three articles on member services, Claire O’Sullivan explains how the Society’s new web site can help your practice and make your professional life easier

ince the first computers began to appear in the workplace, the Irish legal profes- S sion has managed, in large part, to resist the pressures to come to grips with the Information Technology age. Paid-up members of a profession which prides itself on its adher- ence to history and tradition, many solicitors freely admit that they often feel uncomfortable with the pace of technological change and the lack of the old certainties in the new high tech world. As one legal computer supplier wryly commented: ‘The difficulty with solicitors is not trying to get them to buy your product; it’s a much more fundamental problem of getting them to adjust their mindsets from the 19th to the 21st century’. But anecdotal evidence would now suggest that this period of splendid isolation may be nearing an end. Today, many solicitors, prompt- ed in some instances by the demands of clients, are keen to learn more about the computer hard- ware, software packages and information ser- vices available to the legal profession and indeed to explore new areas of work or attract new clients through the judicious use of new technologies. One of the most revolutionary technological advances in recent years, and one which has the potential to alter the workings of legal practice forever, has been the development and growth of the Internet and e-mail communication. The Internet is now the fastest-growing communica- tions and information medium in the world, and within a number of years is destined to become the principal method of developing and con- ducting business globally – a fact which all lawyers would do well to consider. At the end of 1998, there were approximately 100 million Internet users worldwide, and this number is expected to grow to 300 million by the year

MARCH 1999 LAW SOCIETY GAZETTE 27 2002. Christmas trading on the Net at the end of lawyers to become Irish solicitors and the entire last year was $2.3 billion – three times the figure syllabus of the qualified lawyers transfer test. for the previous year. Clearly, those solicitors Details of post-qualification diplomas and cer- who conquer their technophobia and master the tificates organised by the Law School’s Legal new medium will find rich pickings indeed, both Education Co-ordinator, TP Kennedy, are also in Ireland and abroad. provided. A small number of Irish solicitors have now The Regulatory pages detail the work of the developed their own web sites and use them in a three committees coming under the auspices of myriad of ways to attract new business, impress this department, with a section devoted to com- existing clients and generally advertise their plaints against solicitors and the Law Society’s presence to the world. One such firm is Lanigan role in such circumstances. Malcomson & Law, based in Carlow, which has For browsers who haven’t had the opportuni- become one of the first legal practices in the ty to read the latest issue of the Gazette, it is now country to offer building estate property on e- possible to download the leading articles from mail. each issue on-line and we hope to archive previ- One of its clients, Nariton Construction, ous editions for ease of reference. recently sold 100 houses at the Laurels in The member services area gives details of the Carlow over the course of a weekend. As there entire range of services available to solicitors, was considerable pressure to complete the trans- including information about the retirement action within the shortest possible timeframe, scheme, the company formations service, and Lanigan Malcomson & Law offered contracts, Out of site: President Patrick O’Connor launches conference and entertainment facilities at title and subsidiary documentation to pur- the Society’s Internet site Blackhall Place. chasers’ solicitors on e-mail. The booklet of title consisted of word-processed text, pictures, text jects and publications. But the site contains Plans to develop the site boxes and scanned images. As the development much more than details about the committees. A Unlike other publications, a web site is not static proceeds, they hope to post the title on their web great deal of consideration has been given to and to be successful requires constant updating site. According to senior partner, Frank Lanigan: developing aspects of the site that will have par- and expansion. The Society has a number of ‘We feel that this development will enable our ticular appeal to solicitors and provide useful plans for the development of the site over the clients and ourselves to conduct better business’. information and advice in the conduct and man- coming months, the most significant of which This is just one example of how the Internet, agement of their practices. will be the creation of a restricted access area, and e-mail in particular, can be employed by As a result, a number of interesting features which will be available to members through the solicitors to deliver faster and more cost-effec- have been developed on the site including a use of a specially allocated PIN number. tive services to their clients. ‘what’s new’ page, which, as its name suggests, Essentially, what this means is that every solici- provides up-to-the-minute information on activ- tor in the country will be sent their own random- Practical benefits for the profession ities and events at the Law Society (such as ly-generated PIN number over the next few As many members will now be aware, the Law forthcoming conferences and seminars), recent months and, using this number, they will be able Society recently launched its Internet site (you Society publications, and professional informa- to gain access to a specially designed area of the can access it at www.lawsociety.ie). The site has tion for members. The site also includes a site where they will be able to view the text of all a dual focus: to educate and inform the general recruitment page where members can search the practice notes and directions issued by the public about the work of the Law Society and list of current employment opportunities, updat- Society since 1986 and download precedent the solicitors’ profession in Ireland, and to act as ed on a weekly basis. Full details of the contin- forms and letters, such as the recommended fam- an information resource for members regarding uing legal education (CLE) programme are also ily law declarations. This area will also be used the activities and functions of the Society. We published on the site and it is hoped that mem- by the Society to send information to its mem- also hope that the site will tweak that 19th cen- bers will shortly be able to book and pay for bers on policy issues and practice matters of a tury mindset into becoming more technology- courses on-line. more sensitive nature. conscious, allowing members to observe for For students and prospective lawyers, a large In association with LawLink, the Society will themselves the practical benefits that the section of the site has been devoted to education, shortly be able to offer a ‘case a day’ from the Internet can deliver to the development of their with comprehensive details on how to become a FirstLaw service edited by Bart Daly and within practices solicitor, the application and examination proce- the next few months we will be launching a new The site has been structured around the activ- dure, the syllabi of the various courses and the service known as ‘Friday legal’. This will be an ities of the various committees of the Society. current Law School fee structure. These pages e-mail alert facility sent to all members of the Each committee has been allocated its own web also provide information about the procedures society, advising them of changes in legislation, page which details its objectives, activities, pro- relating to applications from non-national policy or practice and providing legislative updates and other useful information.

INTERNET TRAINING OFFER LawLink The Law Society, in association with LawLink, has arranged a number of Internet training courses for LawLink was established by the Law Society’s members at a specially reduced rate. The course will provide a basic overview of the Internet, how Technology Committee in 1989 to research and to get around the web, sites of interest to solicitors, and an overview of the uses of the Internet for develop a nationwide communications service the legal profession. Courses will be held in three venues around the country and will be adminis- for the legal profession and also to set up elec- tered by Professional Training. The course costs £50 for a half-day, and bookings can be made tronic access to government databases and those through LawLink on 01 676 6222. Courses are subject to a minimum number of six per class. of other relevant private bodies. Now managed by the IFG group, which

28 LAW SOCIETY GAZETTE MARCH 1999 MEMBER SERVICES acquired a majority shareholding in 1994, Office. It is possible to search by any criteria, uments and files from their computer to clients LawLink offers a wide variety of services to including registered office, principal object, and colleagues with little or no time delay, guar- Irish solicitors, including direct access to the charges, designation, and date of incorporation, anteed delivery, no fear of interception and Companies Office, the Dublin Land Registry, and these databases are updated monthly. which have been virus-checked to protect the the legal diary, a tax research library and a vari- recipient’s software. Further details on ety of business information databases such as SecureMail SecureMail and other services are available Dun and Bradsheet and Financial Times infor- E-mail is now universally from LawLink (tel: 01 6766 222). mation. Subscribers can also access live busi- acknowledged by all Through its new web site and ness news from Business and Finance maga- business profession- its association with Law- zine, legal, company and business news from als as the most Link, the Law Society RM on-line, and regular information on stocks efficient way to hopes to promote and and shares from the Dialog Corporation (a lead- cut communi- encourage aware- ing provider of on-line, high value information cation costs ness and use of to business executives, professionals and acad- and free-up technology among emics worldwide, which also provides reports valuable time. solicitors. The Law on Irish, UK and US companies). At its most Society’s Technol- LawLink has recently added two new ser- basic, the sim- ogy Sub-committee is vices to its portfolio, FirstLaw and Enki ple installation of always pleased to help Information Systems. e-mail facilities practitioners with technol- First Law, produced in association with means that an individ- ogy queries and provides legal publisher Bart Daly, offers a current ual has the power to receive information and advice to mem- awareness service which tracks on a daily basis, and send documents instantly from bers through its seminars and publications. legislation, Bills, Acts, statutory instruments computer to computer, without ever printing Remember, opportunity comes to pass, not to and EU directives. It also includes Irish weekly them. No posting, no faxing, no couriers and no pause – and it is only those solicitors who reach law reports which contain reports of all waiting. out and embrace the opportunities presented by reserved judgments of the superior courts and SecureMail, LawLink’s e-mail service, the Information Age who will be ready to meet the Circuit Court hearing lists. which has been endorsed by the Law Society as the challenges of legal practice in the new mil- Enki Information Systems provides access the standard for legal mail transmission since lennium. G to information on over 400,000 trading entities May 1997, offers secure, cost effective and effi- (every limited company and all business cient electronic messaging. Using SecureMail Claire O’Sullivan is the Law Society’s Member names) as filed in the Companies Registration means that members can now send letters, doc- Services Executive.

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he seminar is part of the consultation process HARVEST SOFTWARE Ltd of the Commission and follows the publication 15 PARNELL ST WATERFORD T TEL 051-872111 of our Consultation Paper on this subject last FAX 051-872880 E-MAIL December. [email protected] The seminar will take the form of an oral hear- THE GOLDEN PATH TO PROFIT ing. Its purpose will be to enable the Commission to ascertain the views of a wide range of interested COURTESY OF THE LEADING MANAGEMENT parties. ACCOUNTS PACKAGE FOR LEGAL FIRMS

MARCH 1999 LAW SOCIETY GAZETTE 29 WHERE THERE’S A WILL Irish Statute Book THIS IS THE WAY… on CD-Rom Recall of certain CDs When a client makes a will in favour of the Society, it would be appreciated if the bequest were stated in the following words: It has come to notice that there is a fault on a “I give, devise and bequeath the sum of X pounds to the Irish batch of CDswhich issued between Cancer Society Limited to be applied by it for any of its 17 and 31 December 1998. charitable objects, as it, at its absolute discretion, may decide.” Faulty CDs can be exchanged through the All monies received by the Society are expended within the Government Publications Sales Office, Republic of Ireland. Molesworth Street, Dublin 2 “Conquer Cancer Campaign” is a Registered Business Name Telephone (01) 6613111 and is used by the Society for some fund-raising purposes. or the The “Cancer Research Advancement Board” Office of the Attorney General, allocates all Research Government Buildings, Grants on behalf of the Upper Merrion Street, Dublin 2 Society. Telephone (01) 6616944. The fault was corrected on all CDs purchased after December. 5 Northumberland Road, Dublin 4. Tel: (01) 668 1855 These need not be replaced.

IRISH KIDNEY Irish ASSOCIATION Donor House, 156 Pembroke Road, Stenographers Ballsbridge, Dublin 4. Tel: 01 -668 9788/9 Fax: 01 - 668 3820 Ltd

The Irish Kidney Association was formed in 1978 to: Director: Sheila Kavanagh 1. Promote the general welfare of persons suffering kidney failure - financial and psychological. Experts in 2. To give advice and guidance to parents and relatives. Overnight Transcripts 3. To arrange lectures, conferences and meetings Specialists in pertaining to kidney disease. Court Reporting 4. To support research projects into the causes and Medical Cases / Arbitrations effects of inherited disorders and kidney failure. Conferences / Board Meetings 5. To print and distribute the Multi-Organ Donor Card and actively promote public awareness of organ Contact: failure. Hillcrest House, Dargle Valley, Bray, Co. Wicklow. REMEMBER US WHEN Telephone/Fax: (01) 286 2184 or MAKING A WILL! 4b Arran Square, Dublin 7 Certified by the Revenue Commissioners as a charity: 6327 Telephone: (01) 873 2378 OUR FINANCIAL ASSISTANCE IS NATIONWIDE BRIEFINGBRIEFING Committee reports

ers meet the justice of the Employment Appeals lem. The committee also wishes to LITIGATION AND case, on the outstanding Tribunal know whether practitioners would ARBITRATION amount of the award (includ- Practitioners are advised that the be interested in attending a meeting ing an award of interest under Employment Appeals Tribunal has aimed at highlighting difficulties Arbitrators given sub-section (2) and an award produced new guidelines for per- encountered with the scheme and to the power to award of costs)’. sons representing parties before consider what courses of action are compound interest the tribunal. The tribunal has also open to and/or favoured by practi- Practitioners should be aware that It should be noted that this sec- updated its statutory forms as tioners. Members should write section 17 of the Arbitration tion does not apply to an arbitra- referred to in the guidelines. A to/telephone Colette Carey, Solici- (International Commercial) Act tion commenced before 20 May copy of the guidelines and revised tor, Criminal Law Committee, Law of 1998 amended the Arbitration 1998 nor does it apply to an arbi- forms has been forwarded to each Society of Ireland, Blackhall Place, Act of 1954 by substituting a new tration conducted by the property bar association for information Dublin 7 (tel: 01 6724800). section 34. This section which arbitrator appointed under sec- and can be obtained directly Criminal Law Committee applies to domestic arbitrations tion 2 of the Property Values from the Employment Appeals provides that ‘unless otherwise (Arbitration and Appeals) Act, Tribunal, 65a Adelaide Road, PROBATE, agreed by the parties, the arbitra- 1960. Dublin 2 (tel: 01 661 4444). ADMINISTRATION tor may award simple or com- Litigation and Arbitration AND TAXATION pound interest from the dates, at Consumers may ignore Committee the rates and with the rests that he arbitration clause in or she considers meet the justice respect of a ‘small claim’ Stamp duty and rental CRIMINAL of the case: Practitioners should note that income changes: Finance a) On all or part of any amount section 18 of the Arbitration (No 2) Act, 1998 awarded by the arbitrator or (International Commercial) Act Have you something Practitioners will be aware that the umpire, in respect of any peri- of 1998 amends section 5 of the to say about the deductibility of loan interest from od up to the date of the award Arbitration Act, 1980, which criminal legal aid fees rental income from residential b) On all or part of any amount requires a court to stay proceed- regulations? property and the imposition of claimed in the arbitration and ings in relation to a matter arising The Criminal Law Committee is stamp duty on the purchase of new outstanding at the commence- out of a contract containing an receiving an increasing number of residential property by non-owner ment of the arbitration but paid arbitration clause (provided no complaints from practitioners occupiers as from 23 April 1998 do before the award was made, in step has been taken) and provides regarding anomalies in the above not apply to contracts in writing respect of any period up to the that ‘nothing in this section shall regulations – for example, the non- entered into before that date if the date of payment prevent any party to an arbitra- payment of fees in adjourned transaction was completed by 31 c) Unless otherwise agreed by the tion agreement from invoking the indictment cases where prosecu- December 1998. In the 1999 parties, the arbitrator or umpire alternative method, provided by tion counsel is not briefed. The Budget Measures Statement of the may award simple or com- the rules of court (as amended committee will be raising these Minister for Finance, the deadline pound interest from the date of from time to time) of commenc- and other issues with the of 31 December 1998 has been the award (or any later date) ing and dealing with a civil pro- Department of Justice in the near extended to 31 March 1999. until payment, at the rates and ceeding in respect of a small future. For the present, it would Probate, Administration and the rests that he or she consid- claim’. like to know the extent of the prob- Taxation Committee

PRACTICE NOTE Change in law governing legalisation of foreign public documents Ireland has recently ratified three con- and/or seals on the documents con- to be used in Ireland. The Department cation of any kind as from 9 March ventions (EU, Hague and Council of cerned. As from 9 March 1999, docu- of Foreign Affairs will maintain an 1999. Europe) relating to the authentication ments intended for use in countries updated list of the countries where an A register of sample signatures/ of Irish ‘public documents’ for use party to the Hague and Council of ‘apostille’ only will be required. seals of practising solicitors (similar to abroad and the authentication of for- Europe conventions abolishing the Documents destined for use in coun- that already in place in respect of eign ‘public documents’ for use in legalisation of foreign documents will tries which are not party to the above notaries public and commissioners for Ireland. ‘Public document’ includes all require only a single certificate, called conventions will still require to be sub- oaths) will now be required and documents signed before notaries an ‘apostille’ to be stamped thereon. mitted to the legalisation procedure as arrangements will be put in place public, commissioners for oaths and In the case of Irish documents, this cer- heretofore. shortly in this regard. For further infor- practising solicitors. Heretofore, the tificate will be affixed and signed by an Under the terms of the EU conven- mation, contact Consular Services, Dept legalisation procedure required certifi- officer of the Department of Foreign tion, documents destined for or origi- of Foreign Affairs (tel: 01 4780822). cation by successive authorities of the Affairs (fee £10). Reciprocal arrange- nating from Belgium, Denmark, France Litigation and Arbitration authenticity of a series of signatures ments will apply to foreign documents and Italy will no longer need authenti- Committee

MARCH 1999 LAW SOCIETY GAZETTE 31 BRIEFING

LEGISLATION UPDATE: ACTS PASSED IN 1998 Adoption Act, 1998 Child Trafficking and Pornography Defence Explan-memo: Yes, with Electoral Number: Act 10/1998 Act, 1998 Date enacted: 8/7/1998 (Amendment) (No 2) Bill, 1998 Minister/Department: Minister of Number: Act 22/1998 Commencement date: 1/10/1998 State at the Department of Health Minister/Department: Minister for (per SI 366/1998) Employment Equality Act, 1998 Date enacted: 29/4/1998 Justice, Equality and Law Reform Explan-memo: Yes, with Defence Number: Act 21/1998 Commencement date: 29/4/1998 for Date enacted: 29/6/1998 (Amendment) Bill, 1998 Personal author: Senator D Cassidy s1 and ss10-18; 90 days after 29/4/1998 Commencement date: 29/7/1998 Date enacted: 18/6/1998 for ss2-9 (per s17 of the Act) (per s1(2) of the Act) Economic and Monetary Union Commencement date: Various (see Explan-memo: Yes, with Adoption Explan-memo: Yes, with Child Act, 1998 Act) and commencement order/s to be (No 2) Bill, 1996 Trafficking and Pornography Bill, Number: Act 38/1998 made (per s1(2) of the Act) 1997, as introduced and with Bill as Minister/Department: Minister for Explan-memo: Yes, with Employ- Air Navigation and Transport passed by both Houses of the Finance ment Equality Bill, 1997 (Amendment) Act, 1998 Oireachtas Date enacted: 13/7/1998 Number: Act 24/1998 Commencement date: Commence- European Communities Minister/Department: Minister for Civil Liability (Assessment of ment order/s to be made (per s1(2) of (Amendment) Act, 1998 Public Enterprise Hearing Injury) Act, 1998 the Act). 28/7/1998 for ss6(2), 11(1), 12, Number: Act 25/1998 Date enacted: 5/7/1998 Number: Act 12/1998 13, 20, 23, 27-29 (per SI 279/1998); Personal author: Senator D Cassidy Commencement date: 11/9/1998 Minister/Department: Minister for 1/1/1999 for all other sections, with Date enacted: 6/7/1998 (per SI 327/1998); 1/1/1999 as the vest- Defence the exception of s11(2) (per SI Commencement date: Commence- ing day for the purposes of the Act Date enacted: 11/5/1998 527/1998) ment order to be made (per s2(3) of (per SI 326/1998) Commencement date: 12/5/1998 Explan-memo: Yes, with Economic the Act) Explan-memo: Yes, with Air Navi- (per s5(2) of the Act) and Monetary Union Bill, 1998 Explan-memo: Yes, with European gation and Transport (Amendment) Explan-memo: No Communities (Amendment) Bill, 1998 Bill, 1997 Education Act, 1998 Comptroller and Auditor Number: Act 51/1998 Finance Act, 1998 Appropriation Act, 1998 General and Committees of the Minister/Department: Minister for Number: Act 3/1998 Number: Act 48/1998 Houses of the Oireachtas (Special Education and Science Minister/Department: Minister for Minister/Department: Minister for Provisions) Act, 1998 Date enacted: 23/12/1998 Finance Finance Number: Act 47/1998 Commencement date: Commence- Date enacted: 27/3/1998 Date enacted: 18/12/1998 Minister/Department: Minister for ment order/s to be made (per s1(2) of Commencement date: Various – see Commencement date: 18/12/1998 Finance the Act). 5/2/1999 for ss2, 3, 4, 5, 6, 13, s138 of the Act. 1/7/1998 for s90 (per SI Explan-memo: No Date enacted: 16/12/1998 25, 26, 37, and Parts VIII and IX of the 206/1998); 31/12/1998 for Sched 2, Commencement date: 16/12/1998 Act (per SI 29/1999) paras 1, 5, 9, 10 and 1/1/1999 for Sched Arbitration (International Explan-memo: Yes, with Comptroller Explan-memo: Yes, with Education 2, paras 2, 3, 4, 6, 7, 8 (per SI 502/1998) Commercial) Act, 1998 and Auditor General and Committees (No 2) Bill, 1997 Explan-memo: Yes, with Finance Bill, Number: Act 14/1998 of the Houses of the Oireachtas 1998, as introduced and with Bill as Minister/Department: Minister for (Special Provisions) Bill, 1998 Eighteenth Amendment of the passed by Dáil Éireann Justice, Equality and Law Reform Constitution Act, 1998 Date enacted: 20/5/1998 Courts Service Act, 1998 Minister/Department: Minister for Finance (No 2) Act, 1998 Commencement date: 20/5/1998 Number: Act 8/1998 Foreign Affairs Number: Act 15/1998 Explan-memo: Yes, with Arbitration Personal author: Senator D Cassidy Date enacted: 3/6/1998 Minister/Department: Minister for (International Commercial) Bill, 1997, Date enacted: 16/4/1998 Commencement date: 3/6/1998 Finance as introduced and with Bill as passed Commencement date: 16/4/1998 for Explan-memo: Yes, with Eighteenth Date enacted: 20/5/1998 by both Houses of the Oireachtas Part I (ss1, 2) and s36; 16/5/1998 for Amendment of the Constitution Bill, Commencement date: Various – see Part VIII (ss37-43); commencement 1998 Act Carriage of Dangerous Goods order/s to be made for remaining sec- Explan-memo: Yes, with Finance (No by Road Act, 1998 tions (per s1 of the Act) Electoral (Amendment) Act, 1998 2) Bill, 1998 as introduced and with Number: Act 43/1998 Explan-memo: Yes, with Courts Number: Act 4/1998 Bill as passed by Dáil Éireann Minister/Department: Minister for Service (No 2) Bill, 1997 Minister/Department: Minister for Public Enterprise the Environment and Local Govern- Firearms (Temporary Provisions) Date enacted: 2/12/1998 Criminal Justice (Release of ment Act, 1998 Commencement date: Commence- Prisoners) Act, 1998 Date enacted: 31/3/1998 Number: Act 32/1998 ment order/s to be made (per s21 of Number: Act 36/1998 Commencement date: 31/3/1998 Minister/Department: Minister for the Act) Minister/Department: Minister for Explan-memo: Yes, with Electoral Justice, Equality and Law Reform Explan-memo: Yes, with Carriage of Justice, Equality and Law Reform (Amendment) Bill, 1998 Date enacted: 13/7/1998 Dangerous Goods by Road Bill, 1998 Date enacted: 13/7/1998 Commencement date: 13/7/1998 Commencement date: 13/7/1998. Electoral (Amendment) (No 2) Explan-memo: Yes, with Firearms Central Bank Act, 1998 23/7/1998 appointed by the Minister Act, 1998 (Temporary Provisions) Bill, 1998 Number: Act 2/1998 for Justice, Equality and Law Reform Number: Act 19/1998 Minister/Department: Minister for as the establishment day for the Personal author: Senator D Cassidy Fisheries and Foreshore Finance Release of Prisoners Commission, pur- Date enacted: 16/6/1998 (Amendment) Act, 1998 Date enacted: 18/3/1998 suant to s2(1) of the Act Commencement date: 16/6/1998 for Number: Act 54/1998 Commencement date: Commence- Explan-memo: Yes, with Criminal all provisions except s5(1) (Repeal of Minister/Department: Minister for ment order/s to be made (per s1(2) of Justice (Release of Prisoners) Bill, 1998 the Electoral (Amendment) Act, 1995) the Marine and Natural Resources the Act). 1/1/1999 for ss13, 14, 15 and which will come into operation on the Date enacted: 23/12/1998 16 (per SI 526/1998) Defence (Amendment) Act, 1998 dissolution of Dáil Éireann that next Commencement date: 23/12/1998 Explan-memo: Yes, with Central Number: Act 31/1998 occurs after the passing of this Act Explan-memo: Yes, with Fisheries Bank Bill, 1997 Minister/Department: Minister for (per s5(2) of the Act) and Foreshore (Amendment) Bill, 1998

32 LAW SOCIETY GAZETTE MARCH 1999 BRIEFINGBRIEFING

LEGISLATION UPDATE: ACTS PASSED IN 1998 (contd) Food Safety Authority of Ireland Explan-memo: Yes, with Industrial Local Government (Planning and Oireachtas (Allowances to Act, 1998 Development (Enterprise Ireland) Bill, Development) Act, 1998 Members) and Ministerial, Number: Act 29/1998 1998 Number: Act 9/1998 Parliamentary, Judicial and Court Minister/Department: Minister for Minister/Department: Minister for Offices (Amendment) Act, 1998 Health and Children Intellectual Property the Environment and Local Govern- Number: Act 5/1998 Date enacted: 8/7/1998 (Miscellaneous Provisions) Act, ment Minister/Department: Minister for Commencement date: Commence- 1998 Date enacted: 16/4/1998 Finance ment order/s to be made for Part IV Number: Act 28/1998 Commencement date: 16/4/1998 Date enacted: 1/4/1998 (ss44-57) (per s44 of the Act); 8/7/1998 Minister/Department: Minister for Explan-memo: Yes, with Local Commencement date: 19/12/1996 for other sections; 1/1/1999 appointed Enterprise, Trade and Employment Government (Planning and Develop- for ss24-28, and s30 (per s31 of the as the establishment day for the Food Date enacted: 7/7/1998 ment) Bill, 1997 Act); 1/4/1998 for all other sections. Safety Authority of Ireland (per SI Commencement date: 7/7/1998 for Explan-memo: Yes, with Oireachtas 540/1998) ss1, 2, 3 and 6; 17/8/1998 for ss4 and 5 Merchant Shipping (Allowances to Members) and Explan-memo: Yes, with Food Safety (per SI 285/1998) (Miscellaneous Provisions) Act, Ministerial, Parliamentary, Judicial Authority of Ireland Bill, 1998 Explan-memo: Yes, with Intellectual 1998 and Court Offices (Amendment) Bill, Property (Miscellaneous Provisions) Number: Act 20/1998 1998 Gas (Amendment) Act, 1998 Bill, 1998 (changed from the Copyright Minister/Department: Minister for Number: Act 17/1998 (Amendment) Bill, 1998) the Marine and Natural Resources Parental Leave Act, 1998 Personal author: Senator D Cassidy Date enacted: 16/6/1998 Number: Act 30/1998 Date enacted: 3/6/1998 International War Crimes Commencement date: 16/6/1998 Personal author: Senator D Cassidy Commencement date: 3/6/1998 Tribunals Act, 1998 Explan-memo: Yes, with Merchant Date enacted: 8/7/1998 Explan-memo: Yes, with Gas Number: Act 40/1998 Shipping (Miscellaneous Provisions) Commencement date: 3/12/1998 (Amendment) Bill, 1998 Minister/Department: Minister for Bill, 1997 (per s1(2) of the Act) Justice, Equality and Law Reform Explan-memo: Yes, with Parental Geneva Conventions Date enacted: 10/11/1998 Minister for Arts, Heritage, Leave Bill, 1998 (Amendment) Act, 1998 Commencement date: 10/11/1998 Gaeltacht and the Islands (Powers Number: Act 35/1998 Explan-memo: Yes, with Internat- and Functions) Act, 1998 Plant Varieties (Proprietary Minister/Department: Tanaiste and ional War Crimes Tribunals Bill, Number: Act 7/1998 Rights) (Amendment) Act, 1998 Minister for Foreign Affairs 1997 Minister/Department: Minister for Number: Act 41/1998 Date enacted: 13/7/1998 Arts, Heritage, Gaeltacht and the Minister/Department: Minister for Commencement date: Commence- Investor Compensation Act, Islands Agriculture and Food ment order/s to be made (per s18(5) of 1998 Date enacted: 8/4/1998 Date enacted: 16/11/1998 the Act) Number: Act 37/1998 Commencement date: 8/4/1998 Commencement date: Commence- Explan-memo: No Personal author: Senator D Cassidy Explan-memo: Yes, with Minister for ment order to be made (per s24(3) of Date enacted: 13/7/1998 Arts, Heritage, Gaeltacht and the the Act) George Mitchell Scholarship Fund Commencement date: 1/8/1998 (per Islands (Powers and Functions) Bill, Explan-memo: Yes, with Plant Act, 1998 SI 266/1998) 1997 Varieties (Proprietary Rights) Amend- Number: Act 50/1998 Explan-memo: Yes, with Investor ment) Bill, 1997 Minister/Department: Minister for Compensation Bill, 1998 Nineteenth Amendment of the Education and Science Constitution Act, 1998 Protections for Persons Reporting Date enacted: 23/12/1998 Jurisdiction of Courts and Minister/Department: Taoiseach Child Abuse Act, 1998 Commencement date: 23/12/1998 Enforcement of Judgments Act, Date enacted: 3/6/1998 Number: Act 49/1998 Explan-memo: Yes, with George 1998 Commencement date: 3/6/1998 Personal author: Deputy A Shatter Mitchell Scholarship Fund Bill, 1998 Number: Act 52/1998 Explan-memo: No Date enacted: 23/12/1998 Personal author: Senator D Cassidy Commencement date: 23/1/1999 Housing (Traveller Date enacted: 23/12/1998 Offences Against the State (per s7(2) of the Act). Accommodation) Act, 1998 Commencement date: Commence- (Amendment) Act, 1998 Explan-memo: Yes, with Protections Number: Act 33/1998 ment order/s to be made (per s1(2) of Number: Act 39/1998 for Persons Reporting Child Abuse Bill, Personal author: Senator D Cassidy the Act) Minister/Department: Minister for 1998 (changed from Children Date enacted: 13/7/1998 Explan-memo: Yes, with Jurisdiction Justice, Equality and Law Reform (Reporting of Alleged Abuse) Bill, Commencement date: 11/9/1998 for of Courts and Enforcement of Date enacted: 3/9/1998 1998), and with Act all sections of the Act, other than ss6, Judgments Bill, 1998 Commencement date: 3/9/1998 19, 20, 25 (per SI 328/1998); 3/11/1998 Explan-memo: Yes, with Offences Referendum Act, 1998 for s6 (per SI 428/1998); 20/11/1998 for Local Government Act, 1998 Against the State (Amendment) Bill, Number: Act 1/1998 ss19 and 20 (per SI 448/1998) Number: Act 16/1998 1998 Minister/Department: Minister for Explan-memo: Yes, with Housing Minister/Department: Minister for the Environment and Local Govern- (Traveller Accommodation) Bill, 1998 the Environment and Local Govern- Oil Pollution of the Sea (Civil ment as introduced and with Bill as passed ment Liability and Compensation) Date enacted: 26/2/1998 by both Houses of the Oireachtas Date enacted: 29/5/1998 (Amendment) Act, 1998 Commencement date: 26/2/1998 Commencement date: Commence- Number: Act 13/1998 Explan-memo: Yes, with Referendum Industrial Development ment order/s to be made (per s15(4) of Personal author: Senator D Cassidy Bill, 1998 (Enterprise Ireland) Act, 1998 the Act). 30/5/1998 for ss9, 10 and 15 Date enacted: 14/5/1998 Number: Act 34/1998 of the Act (per SI 178/1998); 30/6/1998 Commencement date: 16/5/1998 Roads (Amendment) Act, 1998 Personal author: Senator D Cassidy for s12 (per SI 222/1998); 1/8/1998 for (per SI 159/1998) Number: Act 23/1998 Date enacted: 13/7/1998 s8 (per SI 223/1998); 1/1/1999 for ss1, 2, Explan-memo: Yes, with Oil Pollution Minister/Department: Minister for Commencement date: 23/7/1998 3, 4, 5, 6, 7, 13, 14 (per SI 490/1998) of the Sea (Civil Liability and the Environment and Local Govern- appointed as the establishment day Explan-memo: Yes, with Local Compensation) (Amendment) Bill, ment for Enterprise Ireland (per SI 252/1998) Government Bill, 1998 1998 Date enacted: 1/7/1998

MARCH 1999 LAW SOCIETY GAZETTE 33 BRIEFING

LEGISLATION UPDATE: ACTS PASSED IN 1998 (contd) Commencement date: 1/7/1998 State Property Act, 1998 Minister/Department: Minister for 29/7/1998 for ss9-12, 14-17 (per SI Explan-memo: Yes, with Roads Number: Act 44/1998 Justice, Equality and Law Reform 271/1998); commencement order/s to (Amendment) Bill, 1998 Minister/Department: Minister for Date enacted: 12/6/1998 be made for remaining sections (per Agriculture and Food Commencement date: 12/6/1998 s2(1) of the Act) Scientific and Technological Date enacted: 8/12/1998 Explan-memo: Yes, with Tribunals of Explan-memo: Yes, with Urban Education (Investment) Fund Commencement date: 8/12/1998 Inquiry (Evidence) (Amendment) (No Renewal Bill, 1998 (Amendment) Act, 1998 Explan-memo: Yes, with State 3) Bill, 1998 Number: Act 53/1998 Property Bill, 1998 Voluntary Health Insurance Minister/Department: Minister for Turf Development Act, 1998 (Amendment) Act, 1998 Education and Science Tourist Traffic Act, 1998 Number: Act 26/1998 Number: Act 46/1998 Date enacted: 23/12/1998 Number: Act 45/1998 Minister/Department: Minister for Minister/Department: Minister for Commencement date: 23/12/1998 Minister/Department: Minister for Public Enterprise Health and Children Explan-memo: Yes, with Scientific Tourism, Sport and Recreation Date enacted: 7/7/1998 Date enacted: 15/12/1998 and Technological Education Date enacted: 12/12/1998 Commencement date: 7/7/1998; Commencement date: 15/12/1998 (Investment) Fund (Amendment) Bill, Commencement date: 12/12/1998 31/12/1999 appointed as the vesting Explan-memo: Yes, with Voluntary 1998 Explan-memo: Yes, with Tourist day for Bord na Mona for s20 (per SI Health Insurance (Amendment) Bill, Traffic Bill, 1998 191/1998) 1998 Social Welfare Act, 1998 Explan-memo: Yes, with Turf Devel- Number: Act 6/1998 Tribunals of Inquiry (Evidence) opment Bill, 1997 Western Development Minister/Department: Minister for (Amendment) Act, 1998 Commission Act, 1998 Social, Community and Family Affairs Number: Act 11/1998 Urban Renewal Act, 1998 Number: Act 42/1998 Date enacted: 1/4/1998 Minister/Department: Minister for Number: Act 27/1998 Minister/Department: Minister for Commencement date: Various – see Justice, Equality and Law Reform Minister/Department: Minister for Agriculture and Food Act. 5/6/1998 for s19 (per SI 190/1998); Date enacted: 6/5/1998 the Environment and Local Govern- Date enacted: 25/11/1998 4/6/1998 for s20 (per SI 191/1998); Commencement date: 6/5/1998 ment Commencement date: 1/2/1999 26/5/1998 for s23 (per SI 192/1998); Explan-memo: Yes, with Tribunals of Date enacted: 7/7/1998 appointed as the establishment day 14/7/1998 for s18 (per SI 255/1998); Inquiry (Evidence) (Amendment) Bill, Commencement date: 1/5/1997 for for the Western Development 14/7/1998 for s21 (per SI 256/1998); 1998 ss1-8 (per s2(2) of the Act); 1/2/1998 Commission (per SI 9/1999) 16/11/1998 for s22 (per SI 467/1998); for s13 (per s2(3) of the Act); 28/5/1998 Explan-memo: Yes, with Western 16/11/1998 for s16 (per SI 469/1998) Tribunals of Inquiry (Evidence) for ss18 and 20(2) (per s2(4) of the Development Commission Bill, 1998 Explan-memo: Yes, with Social (Amendment) (No 2) Act, 1998 Act); commencement order to be Prepared by the Law Society Welfare Bill, 1998 Number: Act 18/1998 made for s20(1) (per s2(5) of the Act); Library

RONAN DALY JERMYN SOLICITORS D ENIS C GUERIN CORK Attorney at Law FAMILY LAW UNIT

is pleased to announce the appointment of the following new attorneys:

John O’Gara Kathleen Mc Carthy Andrew Cook and ROSEMARY HORGAN Thomas Miller BCL, LLB, LLM and osemary Horgan, Chairman of the Family Law R Committee of the Law Society of Ireland, has joined the relocation of his law office to: Ronan Daly Jermyn as the new head of their Family Law Unit. 19 West 44th Street, She qualified as a Solicitor in 1979 and has since spe- cialised in Family Law, holding a number of prestigious Suite 407, National posts. She is a member of the Law Reform New York, NY 10036 Committee of the Law Society; a member of the International Bar Association and is on the Editorial Board of the Irish Family Law Journal. Ph: (001) (212) 398-9238 She was head of the Civil Legal Aid Offices at the Law Fax: (001) (212) 869-0944

34 LAW SOCIETY GAZETTE MARCH 1999 BRIEFINGBRIEFING Personal injury judgments

Sexual assault – minor – upon him by the defendant. The The facts ery. He assessed damages to date damages – issue of judge accepted unconditionally Rita Hegarty stumbled on an at £20,000, damages into the exemplary damages his evidence in its entirety. He uneven footpath, fell heavily future at £3,000, and awarded found the plaintiff to be a most backward and suffered a fracture special damages between loss of Case impressive witness who had to her ankle. wages of £8,489.51 – a total of Noel Kellagher v Liam Walsh, shown immense courage and Ms Hegarty received medical £31,489.51. High Court on Circuit, Cork, immense strength in dealing with attention including surgery. Ms Mr Carson SC for Donegal before the Hon Mr Justice John the ordeal he had to endure. Hegarty was left with a scar 8.5 County Council asked for a stay Quirke, judgment of 29 April Quirke J considered that the dam- centimetres on the outside of her on the award and the costs. 1998. age done to him had been ankle, and had suffered a fracture Counsel for Ms Hegarty argued immense. In effect, years had of the fibula necessitating the that the normal practice was that The facts been taken from the plaintiff’s life insertion of a screw and plate. if a stay were granted that money Noel Kellagher was born on 7 and replaced with the sort of hor- Medical reports indicated that the is paid out and he suggested a December 1974. He was 23 years ror that most people should not plaintiff was, on the day of the sum of £20,000 be paid out. of age at the time of the High have to endure. trial, a healthy young woman with O’Sullivan J stated that the diffi- Court hearing. He alleged that he Quirke J awarded Noel a full range of movement in her culty was that if he, the judge, suffered assault and abuse of a Kellagher damages from the date right ankle and that the fracture of were wrong on the issue of liabil- very serious nature on a number of the assaults up to the date of the fibula had healed with the ity (and he stated it was not the of occasions in the autumn of the judgment in the sum of removal of the screw and plate. clearest case in liability), he ques- 1988 at the hands of Liam Walsh. £50,000. The judge was satisfied Overall alignment of the fracture tioned the justice in giving The alleged assaults, which on the evidence that Noel was excellent and the ankle joint £20,000 to the plaintiff at this were more than 25 in all, were Kellagher had suffered a perma- and lower tibia and fibula were stage. inflicted on Mr Kellagher when nent injury and he remained at well maintained. There was med- Counsel for Ms Hegarty he was 13 years of age. Mr risk, particularly in respect of ical evidence to the effect that Ms argued that because the judge had Walsh, the defendant, was then in depression. Hegarty was unlikely to have sig- awarded in excess of £31,000, the his fifties and was a person who He stated that the plaintiff was nificant long-term residual dis- county council had to convince exercised authority over Mr entitled to a life of full normality. ability as a result of this accident. the judge of the high probability Kellagher. He was also a person In the context of future damages, Donegal County Council had that he was wrong. The judge in whom Mr Kellagher had Quirke J awarded him an addi- denied liability. repeated that it was a reasonably placed his trust and was in the tional £50,000. The judge stated close call on liability. In the cir- nature of a father figure. that the defendant had abused the The judgment cumstances, he was not prepared The alleged assaults, which trust of an innocent child and Having outlined the facts, to make any order as to an imme- were grossly indecent, affected damaged him permanently. The O’Sullivan J dealt with the issue diate payment pending an appeal. the plaintiff’s health. Noel judge awarded exemplary dam- of liability. Having considered the Kellagher endured during his ages of a further £50,000. He stat- relevant photographs, the judge Public liability – water youth feelings of guilt, remorse, ed that if he believed for a considered that there was a hid- on road – fatal crash – loneliness and insecurity which moment that the defendant had den differential on the pavement dispute as to liability had resulted in a depression resources and had the means, then and, while accepting that a pedes- for water on road which had been so severe that he the award of exemplary damages trian must take care for her own had attempted suicide on at least would be commensurate with safety, particularly when going Case three occasions and required reg- whatever property or resources down a steep slope, he considered Josephine Meegan v Monaghan ular and on-going treatment. the defendant possessed. that there was a differential in County Council and Patrick Noel Kellagher issued High In total, the award was for height in the pavement and held Pepper, the High Court on Court proceedings against Liam £150,000 and costs. The case was Donegal County Council liable. Circuit, before the Hon Mr Justice Walsh for damages. not defended. Counsel for Donegal County Paul Carney, judgment of 28 May Council had argued that Ms 1998. The judgment Public liability – Hegarty had been guilty of con- An ex tempore judgment was footpath – pedestrian – tributory negligence. On this The facts given by Quirke J on 29 April liability of county issue, the judge held that the step Water on a road caused a fatal 1998 in the High Court on Circuit council in dispute was not visible and that reason- crash. It was alleged that water in Cork. able care had been taken by Ms had come on to the road from the Having outlined the facts of Case Hegarty. He held, therefore, that bath or boiler of the second defen- the case, the judge stated he had Rita Hegarty v Donegal County Ms Hegarty was not guilty of any dant, Patrick Pepper. There had heard the evidence of Noel Council, High Court on Circuit in contributory negligence. even been an allegation that Kellagher as to the nature and Sligo, before the Hon Mr Justice O’Sullivan J said that Ms somehow there had been a malev- character of the assaults and Philip O’Sullivan, judgment of 24 Hegarty had only residual symp- olent helicopter dumping a load abuses which were perpetrated April 1998. toms and had made a good recov- of water on the road for purposes

MARCH 1999 LAW SOCIETY GAZETTE 35 BRIEFING

of mischief. Further, there was belonged to the county council respect of its responsibility for had formed as a pond by a failure also an issue of a tanker carrying and that there had been a failure in drainage and, secondly, viewing in the council’s drainage system. water and depositing its load at the council’s drainage system. the matter as a single juror, he In the context of damages, spe- the point of the accident. It was Accordingly, the judge found came to the conclusion that the cial damages were agreed at also alleged that the water came Monaghan County Council liable water probably belonged to £2,890. Carney J found mental on the road from the county coun- first of all as a matter of law in Monaghan County Council and distress for the statutory amount cil because of a failure in its of £7,500. He stated that there drainage system. The widow of CASE NOTE was a conflict between the actuar- the deceased sued Monaghan ies. He stated that it was settled County Council and Mr Pepper Re: Ann Higgins v Analog Devices BV and Another, Limerick Circuit law that figures furnished by an for damages. Court, 11 February 1999, before Judge Michael White actuary were for the guidance of he plaintiff suffered an occupational injury in May 1995. She the trial judge and the judge must The judgment T returned to work in November of that year. In July 1996 she took vol- come to his own conclusion. He The judge stated that this had been untary redundancy. However, as a result of her injuries, effectively an assessed the actuarial loss arising, an extremely difficult case in exacerbation of a quiescent condition, she has been unable to take up after taking Reddy and Bates into which experts admitted that they work elsewhere since. An issue arose as to whether her redundancy pay- consideration, in the sum of were baffled by the accident. He ments should be deductible from her continuing loss of earnings claim. At £80,000 and gave a total decree stated that he had to look at the Limerick Circuit Court on 11 February 1999, Judge Michael White heard for £90,390. case, first of all as a judge dealing counsel for the parties state that there was little or no authority on the Counsel for Josephine Meegan with matters of law and applying point. He deducted the non-statutory element of the redundancy pack- stated that it was the wishes of the matters of law, but secondly he age but not the statutory element when making his award. family, subject to the judge’s had a major function to act as a As an addendum by consent the judge exercised unlimited jurisdiction approval, that the sum in regard to single juror. In acting as a single and awarded £111,000 in total damages, a huge award for the Circuit mental distress be paid to Mrs juror, he had to apply probabilities Court, if not one of the largest-ever personal injury awards and certainly Meegan because the children as they appear and also to assess believed to be the largest such personal injury award in Limerick. were very young. The judge probabilities in the light of credi- John Edwards SC and Gerard Kiely BL appeared for the plaintiff, agreed to pay the total sum to Mrs bility and the credibility of evi- instructed by Shaun Elder, Solicitor, Limerick, with Andrew Sexton BL Meegan. G dence. appearing for the defendant, instructed by Desmond Deeney & Company, He dismissed the action against Solicitors, Limerick. G These judgments were sum- Mr Pepper. marised by Dr Eamonn Hall, Carney J considered on the bal- This case note was submitted by Shaun Elder, Solicitor, Limerick. Solicitor, from Doyle court reports ance of probability that the water of personal injury judgments.

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36 LAW SOCIETY GAZETTE MARCH 1999 BRIEFINGBRIEFING Relief for home loan interest: rules and guidelines

This article, first published in the Revenue Commissioners’ Tax briefing, sets out the rules, guidelines and procedures regarding interest relief on home loans

ax relief is allowable on loan tion 466(2)(a) or (b) of the ● Mobile homes, caravans and gage interest and so on is paid Tinterest if the loan has been TCA, 1997. (If the residence is other moveable structures in would normally be accepted as used for qualifying purposes. The provided by the claimant, it use as a residence. the sole or main residence in relevant legislation is contained in must be provided free of rent preference to one which is section 244 of the Taxes or other consideration.) These items are covered in detail rented where both are in regu- Consolidation Act, 1997. in the following paragraphs. lar use The topics covered are as fol- A loan which is used solely to ● Where a single person has a lows: replace a loan used for qualifying 3. Two residences in separate residence, the parental 1. Meaning of ‘qualifying pur- purposes is regarded as used for regular use home would not be accepted as poses’ qualifying purposes even if the In most cases where a person has the sole or main residence 2. Sole or main residence new loan differs in type from the two residences, it is possible to unless the circumstances are 3. Two residences in regular use old loan (for example, a mort- determine which is the sole or exceptional 4. Residences under construction gage replacing a term loan). main residence on the basis of fre- ● Except for the circumstances and purchase of sites quency of occupation – for exam- mentioned below in relation to 5. Joint purchase of a residence 2. Sole or main residence ple, a holiday home used for short residences under construction in anticipation of marriage In general, the sole or main resi- periods in the year compared to a or purchased in anticipation of 6. Job-related accommodation dence of any person will be the residence used throughout the marriage, a claim that a particu- 7. Mobile-homes, caravans and residence which is the person’s year. However, frequency of lar residence is the main one so on home for the greater part of the occupation alone is not the test would normally be admitted 8. Meaning of purchase, repair time and where friends and cor- and situations can arise where the only if the residence is fur- development or improvement respondents would expect to find question is not clear-cut, for nished and suitable for occupa- of a sole or main residence him. The residence does not have example, a house in one town tion, is in fact occupied (except 9. Evidence of purposes for to be owned by the person, for which is owned and is used at for periods of temporary dis- which a loan is used example, a parent’s residence weekends and holidays compared use) and is not used for any 10. Loans used partly for qualify- may also be the sole or main res- to digs or rented accommodation other purpose (for example, let) ing purposes and partly for idence of any of the children of in another town which is the per- ● Where both residences are non-qualifying purposes the parents who commonly son’s place of employment. In owned and one is used during 11. Re-mortgages and second reside there. To qualify for relief, determining which of two resi- holidays only, a claim that the mortgages the residence must be in use as a dences is a person’s sole or main holiday home is the main resi- 12. Fines on mortgages sole or main residence. This con- residence, the following guide- dence would be resisted. 13. Treatment of interest on joint dition is not interpreted in an lines are followed: accounts overly-strict manner and tempo- ● The fact that a greater period is If, on applying the above guide- 14. Joint accounts – mortgage rary periods of disuse do not spent in one residence does not lines, it is not possible to deter- interest paid to local authorities result in a loss of relief provided necessarily preclude the other mine which of two residences is a 15. First-time buyer relief that the residence is not used for from being treated as the main person’s sole or main residence 16. Standard rating of interest. any other purpose and it is the residence. In particular, where because: clear intention of the claimant to the person has to use other ● Both residences are owned by 1. Qualifying purposes use the residence as his sole or accommodation by reason of the person ‘Qualifying purposes’ means the main residence at the end of the his employment, the residence ● He resides in both residences purchase, repair, development or period of disuse. Difficulties may used at weekends and non- for significant periods on improvement of the sole or main arise in the following cases: work periods would normally account of his office, employ- residence of: ● Two different places of resi- be regarded as the individual’s ment, business interests or ● The claimant dence which are both used on sole or main residence (for other requirements, and neither ● A former or separated spouse a regular basis example, a commercial trav- residence can be regarded as a of the claimant ● A residence under construc- eller or a person temporarily holiday home, and ● A dependent relative of the tion absent from home or a person ● The inspector and the person claimant or his or her spouse in ● The joint purchase of a resi- obliged to find employment in (or his accountant) have been respect of whom the claimant dence in anticipation of mar- another town) unable to reach agreement on is in receipt of the dependent riage ● A residence which is owned which residence is the sole or relative allowance under sec- ● Job-related accommodation and in respect of which mort- main residence

MARCH 1999 LAW SOCIETY GAZETTE 37 BRIEFING

then the person may be permitted Where the taxpayer has an existing the interest charged, and 7. Mobile homes and to select by notice in writing residence which he intends to dis- ● The house is unoccupied or is caravans which residence is to be regarded pose of and in respect of which he occupied by one of the parties While mobile homes, caravans and as his sole or main residence on is paying mortgage interest and so concerned and is not occupied so on are not specifically dealt with the understanding that the selec- on, the 12-month rules in relation by any other person (for exam- in legislation, such a residence can tion will have effect for both inter- to bridging interest will be rele- ple, there are no friends or be a sole or main residence for tax est relief and capital gains tax pur- vant. The taxpayer can only obtain workmates occupying rooms in purposes. The question is one of poses. relief for interest paid in respect of the house and contributing to fact. In general, a mobile home or the first residence for a period of the repayments or paying rent) caravan which would suit the 4. Residence under 12 months from the date he requirements of a main residence construction and acquires the second residence. relief will be allowed to each in would be one which: purchase of sites Depending on borrowings, it may accordance with the amount of ● Is on a permanent site Where a residence is under con- or may not be to his advantage to interest actually paid on the basis ● Has been immobilised by struction, various payments may claim that the second residence that the house is the sole or main removal of wheels, by being have to be made throughout the became his sole or main residence residence of both claimants. The jacked up, by being mounted on course of construction in respect when the site was purchased. In claimant or claimants to relief not blocks or otherwise supported of which money must be bor- such cases, the taxpayer may spec- actually occupying the house are on fixed supports rowed, for example, on purchase ify any date between the date of advised that the relief is granted on ● Is of a reasonable size in rela- of the site and at various stages of purchase of the site or, if later, the an administrative basis only and tion to the requirements of use the construction. The taxpayer granting of planning permission subject to withdrawal if the house as a permanent dwelling may seek relief in respect of the and the date the second residence does not become the sole or main ● Has electricity and other ser- interest paid on the loans even commences to be actually used by residence of the claimant or vices supplied to it. though the residence is not in use the taxpayer as being the date on claimants. In practice, however, as a sole or main residence and is which the second residence is to be relief will not be withdrawn in 8. Purchase, repair, not capable of such use. The prob- treated as a sole or main residence genuine cases if due to unforeseen development or lem may be further complicated by of the taxpayer. Once that date is circumstances the house does not improvement of a sole a claim in respect of bridging specified, the 12-month period is to become the sole or main residence or main residence finance. In dealing with such be treated as commencing on that of one or both of the claimants – Any expenditure on a sole or main cases, the following guidelines are date. The taxpayer may pick the for example, if differences arise residence other than expenditure followed: date most beneficial to his circum- and the marriage does not take on furniture, removable fittings ● Inspectors, as far as possible, stances. In the absence of a specifi- place and a settlement is made in (for example, light fittings, cur- establish that the residence when cation, relief will not be granted relation to the house. tains, drapes and removable floor completed will become the sole until the second residence is in coverings) may be accepted as or main residence of the taxpay- actual use as the sole or main resi- 6. Job-related being qualifying expenditure. er and any relief is given on the dence of the taxpayer and the 12- accommodation Examples of qualifying expendi- understanding that it will be month period referred to above is Where a person occupies job-relat- ture are: withdrawn if the residence does treated as commencing at that time. ed accommodation provided by ● Purchase of another person’s not become the sole or main res- his employer and also has a private part-interest in the residence, idence. In cases of hardship 5. Joint purchase of residence of his own, difficulties for example, where a residence where it is clear that the taxpay- residence in anticipation may arise in determining which is is owned jointly by two persons er intended to use the residence of marriage his main residence. In such cases and one buys out the other’s as a sole or main residence but It is common practice for couples if: interest due to circumstances beyond his to purchase a house on joint ● The provisions of section ● Legal and other fees incidental control is unable to do so (for account in anticipation of their 118(3) of the TCA, 1997 apply to the purchase or development example, if he loses his job or is marriage. Until the marriage takes to the accommodation provided of the residence transferred or is unable to sell place, the house may be unoccu- by the employer (that is, non- ● Cost of extensions, purchase the existing residence), the relief pied or occupied by one of them application of benefit-in-kind and/or construction of garages, granted would not be withdrawn only. In the former case, the house provisions where employee is garden sheds, greenhouses and ● No relief is given in respect of would not be the sole or main res- required to live on the premises swimming pools loans to purchase a site unless idence of either party and in the to perform his/her duties), and ● Cost of construction of drive- and until there is planning per- latter case, it would be the sole or ● The private residence owned by ways and paths, landscaping of mission to construct a residence main residence of the person in the person is used by that per- gardens on the site occupation only. In such cases, if: son as a residence and is not ● Cost of conversions, general ● In the case of a first-time house ● The house has been purchased used for any other purpose (for maintenance and painting and purchaser, the residence may be in anticipation of marriage and example, it is not let for any decorating accepted as his sole or main res- will be used by the couple as part of the year) ● Cost of installing central or solar idence with effect from the date their sole or main residence heating (including cost of gas or of purchase of the site or, if after marriage it will be accepted that the private solid-fuel cookers in use as part later, the date planning permis- ● The loan account is in the joint residence is the main residence of a central heating system), sion for the construction of the names of the couple and each is for the purposes of a claim for rewiring, new plumbing, includ- residence is granted. jointly and severally liable for interest relief. ing bathroom suites, and so on

38 LAW SOCIETY GAZETTE MARCH 1999 BRIEFINGBRIEFING

● Cost of insulation, replacing attributable to the portion of a loan residence strictly qualifies for qualifies or relief, the following windows and double-glazing used for qualifying purposes. relief only if the amount or addi- steps are followed: ● Cost of purchasing and tional amount borrowed is used ● Step 1 – determine the propor- installing burglar and fire Example 1 for qualifying purposes. However, tion of the balance of £35,000 alarms and other security A five-year term loan of £10,000 if the re-mortgage or second mort- on the first re-mortgage which devices is taken out: £6,000 is used for gage is used partly for qualifying is attributable to the original ● Cost of installing damp courses qualifying purposes and £4,000 purposes and partly for a purpose mortgage. This is: and general treatment for damp, for other purposes. Relief is other than a qualifying purpose, *£40,000 x £35,000 = £28,000 dry rot, woodworm and similar allowed in respect of six-tenths of apportionment of the interest paid £50,000 problems the interest each year. may be made. *(Balance of original mortgage) ● Cost of purchase and installa- ● Step 2 – determine what frac- tion of bedroom and kitchen Example 2 Example 1 tion of the second re-mortgage units which are affixed to and A five-year term loan of £10,000 A taxpayer had an original mort- the £28,000 represents: become part of the building was taken out and the entire gage of £40,000 on a main resi- £28,000 = two-fifths ● Stamp duty on the purchase of a amount was used for qualifying dence. On 10 February 1998, the £70,000 residence purposes. In year three, when the balance on the mortgage stood at ● Step 3 – allow two-fifths of the ● Contributions to group water balance of the loan was £6,000, £35,000. On that date, the resi- interest paid on the second re- schemes and sewage schemes the loan was replaced by a new dence was re-mortgaged for mortgage. ● Construction of tennis courts. loan of £8,000 and repayment of £60,000 and £15,000 of the addi- the new loan of £8,000 is over four tional £25,000 was used to pur- 12. Fines on mortgages 9. Evidence of the years. £1,000 of the further bor- chase a car and £10,000 on In certain circumstances, a build- purposes for which a loan rowings is used for qualifying pur- replacement windows/central ing society may impose a fine of is used poses and the other £1,000 is used heating for the main residence. an additional amount of interest on Except in the case of a loan which for other purposes. Relief is Relief for interest paid (subject to the cancellation of a mortgage or is clearly related to the initial pur- allowed in respect of: the usual limits/restrictions and on a re-mortgage. The amount of chase of a sole or main residence, £6,000 + £1,000 standard rating, as appropriate) on the fine is treated in the same man- documentary evidence may be £8,000 the re-mortgage of £60,000 will be ner as any other interest paid on required to prove that a loan has allowed to the extent of: the mortgage which gives rise to been used for qualifying purposes. That is, seven-eighths of the inter- £35,000 + £10,000 the fine and relief is allowed The evidence may take the form of est paid each year on the new £60,000 accordingly. builders’ specifications, receipts, £8,000 loan. paid cheques and so on. It is nei- That is, three-quarters throughout 13. Treatment of joint ther necessary nor, in many cases, Example 3 the term of the re-mortgage. accounts practicable to require that evidence A three-year term loan of £3,000 Relief under section 244 of the be produced for the entire proceeds was taken out and the entire Example 2 TCA, 1997 is confined to interest of the loan. Similarly, the fact that amount was used for non-qualify- A taxpayer had an original mort- actually paid by the claimant. In some or all of the work has been ing purposes. In year one, when gage of £60,000 on a main resi- the case of joint accounts, where carried out by the taxpayer is not a the balance of the loan was dence. On 10 February 1996, the each of the account holders is bar to claiming relief in respect of £2,000, the loan was replaced by a balance on the mortgage stood at jointly and severally liable for the a loan applied in purchasing the new loan of £10,000 repayable £40,000. On that date, the resi- payment of the interest, the normal materials with which the work is over five years. All of the further dence was re-mortgaged for procedure is to regard any interest carried out, for example, a pre-fab- borrowing, £8,000, is used for £50,000 and the additional paid as having been paid in equal ricated garden shed, ‘do-it-your- qualifying purposes. Relief may £10,000 was used to purchase a proportion by each account holder. self’ presses and double-glazing. be allowed on: car. No relief is due for interest on If proof is given that the interest £8,000 the additional £10,000 but relief was paid in unequal proportions or 10. Loans used partly for £10,000 for interest paid (subject to the was paid in its entirety by one per- qualifying purposes and usual limits/restrictions and stan- son only, relief, where due, is partly for other purposes That is, four-fifths of the interest dard rating, as appropriate) on the given to each account holder in Strictly, in order to qualify for tax paid each year on the new £10,000 new mortgage of £50,000 is allow- respect of the interest actually paid relief, a loan must be used entirely loan. able to the extent of by him. for qualifying purposes. If the loan £40,000/£50,000 (that is, four- The degree of proof required is used partly for some other pur- 11. Re-mortgages and fifths) throughout the term of the will depend on the circumstances pose, no relief is due in respect of second mortgages re-mortgage. of each case. In a straightforward any portion of the interest paid. The fact that a loan involves a re- The residence was subsequent- case where there is no obvious tax However, in practice the Revenue mortgage or a second mortgage ly re-mortgaged again for £70,000 advantage to be gained from an will apportion interest in certain does not make it eligible for any at a time when the balance on the unequal apportionment of the circumstances (including situa- special treatment for tax purposes. first re-mortgage of £50,000 stood interest, the claim from the taxpay- tions where the qualifying and It is treated in the same manner as at £35,000. ers may be sufficient. Similarly, non-qualifying amounts have been any other loan. Interest paid on a In order to determine the frac- where it is obvious from the borrowed at different times) and loan secured by a re-mortgage or a tion of the interest on the second income resources of the claimants will give relief for the interest second mortgage on a sole or main re-mortgage of £70,000 which that it would be reasonable to

MARCH 1999 LAW SOCIETY GAZETTE 39 BRIEFING

expect that the bulk of the interest other person named on the certifi- 1991/92, he sold this house and 1996/97, Peter sold the house and, could only be paid by one party, a cate if there is only one or in equal emigrated. In 1995/96, Martin jointly with his wife, purchased claim to that effect would be proportions to each other person returned to Ireland and purchased another principal private residence accepted. However, if: named if there is more than one. another principal private resi- financed by a loan in their joint ● One of the account holders is dence financed by a mortgage. names. For the purposes of calcu- outside the tax net and is 15. First-time buyer relief Martin qualifies for ‘first-time lating relief due on interest paid alleged to have paid a smaller First-time buyers are entitled (for a buyer’ relief for: for 1996/97 and the years follow- proportion or none of the inter- period of five years) to more ● 1995/96 – as this is the third ing, Helen does not qualify for est, or favourable tax relief than is gener- year of interest relief ‘first-time buyer’ relief for any ● One of the account holders is ally available on the payment of ● 1996/97 – as this is the fourth year. Similarly, if the couple had liable to tax at the higher rates mortgage interest. Tax relief for year of interest relief separated in 1996/97 and Helen and it is alleged that he or she these individuals is calculated ● 1997/98 – as this is the fifth had purchased a house in that year, paid a higher proportion or all without the percentage restriction year of interest relief. she would not be a ‘first-time of the interest, or or the £100/£200 restriction. The buyer’. She is treated, for this pur- ● One of the account holders has term ‘first-time buyer’ means an Example B pose, as having been granted inter- reached or exceeded the ceiling individual who has not previously In 1990, Mary inherited her par- est relief for each year for which for relief under section 244 of been entitled to relief in respect of ents’ house. In 1993/94, she sold her husband was granted relief and the TCA, 1997, and it is alleged interest paid on loans used for the this house and purchased another ‘first-time buyer’ relief would not that he or she has paid a small- purchase, repair, development or principal private residence apply for any year. er proportion or none of the improvement of an individual’s financed by a mortgage. Mary interest, or sole or main residence. The ‘first- qualifies for the ‘first-time buyer’ Example E ● The interest is allegedly paid time buyer’ relief applies to an relief for all years 1993/94 to Tom and Anne married in in such a manner as no reason- individual provided that the year of 1997/98 inclusive as she had not 1993/94 and purchased their first able person would be expected claim is one of the first five years previously been entitled to relief principal private residence in that to pay it (for example, the loan for which relief falls to be given to on interest paid on qualifying year financed by a mortgage. In is used to purchase an asset for that individual in respect of inter- loans. 1994/95, the couple separated, the equal use of two persons est paid on qualifying loans. sold the house, and each then but one person is allegedly In deciding whether or not the Example C purchased a principal private res- paying all or the bulk of the ‘first-time buyer’ relief is due for In 1985, Joan purchased her prin- idence. Both Tom and Anne qual- interest) any year, the number of years for cipal private residence and she ify for the ‘first-time buyer’ which interest relief falls to be has been granted interest relief for relief in 1995/96, 1996/97 and an unequal apportionment of the granted must first be established all years to date in respect of the 1997/98. interest will not be allowed with- (see examples A and B). interest paid on the loans to pur- out a thorough investigation of the Joint loans. Where the parties chase the property. In July 1993, 16. Standard-rating of facts. In particular, a copy of the to a joint loan are not married to Joan sold her principal private interest loan agreement will be requested each other, the question of whether residence and acquired, jointly Standard-rating of home loan and a detailed explanation for any one or other of the parties is a with Frank (who has never previ- interest was phased in with effect inconsistencies will be required. ‘first-time buyer’ is determined by ously claimed relief in respect of from 1994/95 as follows: reference to the facts applicable to a qualifying loan), another princi- Tax year Proportion of 14. Mortgage interest each individual. Accordingly, it is pal private residence. In calculat- allowable interest to paid to local authorities possible in the case of joint loans ing the relief due on the interest be standard-rated In cases where a local authority that one of the parties is a ‘first- paid on the loan to acquire the 1994/95 25% house is being purchased jointly time buyer’ and the other is not new house, Joan is not a ‘first- 1995/96 50% by an elderly parent and one or (see example C). time buyer’ but Frank is. 1996/97 75% more members of the family Married couples. Where a Accordingly, Frank qualifies for 1997/98 onwards 100% under a formal transfer order married couple are charged to tax the ‘first-time buyer’ relief for the under section 90 of the Housing on the basis of either joint assess- years 1993/94 to 1997/98 inclu- The part (or full amount for Act, 1966, the local authority ment or separate assessment and sive but Joan does not. 1997/98 and the years following) of issues the interest certificate in either spouse has been granted the allowable interest which is stan- the names of all the joint pur- relief in respect of a qualifying Example D dard-rated is no longer deductible chasers. Where any person loan, the relief is treated as having In 1983, Peter purchased his prin- in computing total income (other named on the certificate is in been given equally to both spouses cipal private residence, financed than for exemption and marginal receipt of an old age pension for the purposes of deciding by a mortgage in his sole name. relief purposes). Relief for this from the Department of Social, whether or not the ‘first-time He married Helen in 1985. Since amount at the standard rate is Community and Family Affairs buyer’ relief is due (see examples the marriage, the couple have deducted in computing income tax and has no other income, and D and E). elected to be taxed under joint payable for the year. G where the inspector is satisfied assessment and the relief granted that such a person has not, in fact, Example A in respect of the interest paid on This extract from Tax briefing made any payment in respect of In 1990/91, Martin purchased his the home loan was calculated by (issue 34, December 1998) was interest, the full amount of the first principal private residence reference to the general ceilings reproduced by kind permission of interest may be allowed to the financed by a mortgage. In applicable to a married couple. In the Revenue Commissioners.

40 LAW SOCIETY GAZETTE MARCH 1999 BRIEFINGBRIEFING

ILT digest of legislation and superior court decisions Compiled by David P Boyle

so on behalf of the company. took place, that there was an ADMINISTRATIVE EDUCATION The company was in liquidation intention on their part to help and only the liquidator could one another, by force if neces- Western Development take that step sary, against anyone who might Education (No 2) Bill, 1998 Commission Bill, 1998 ● In these circumstances, such oppose them in execution of the This Bill has been passed by Dáil This Bill has been amended in the matters as the quite remarkable common purpose, and that Éireann. Select Committee on Agriculture, length of time which had elapsed there was force or violence Food and the Marine. since the order was made or used and displayed whether C had formed at the ● There was clear evidence, on EMPLOYMENT time a bona fide intention to which the trial judge could act, appeal need not be considered. that the persons behaving in a COMPANY very aggressive fashion would Code of practice on Cork County Council v CB be capable of combining to retail Sunday working Liquidator alone has Readymix Ltd (Supreme Court) (ex oppose anyone who interfered published locus standi tempore), 12 December 1997 with their common purpose. The Department of Enterprise, ● When a company is in liquida- The decision whether to so hold Trade and Employment has pub- tion, only the liquidator has was for the trial judge. lished a Code of practice on com- locus standi to bring an appeal pensatory rest and related matters COMPENSATION on behalf of the company. Kennedy v Tipperary (North and this order declares the code to Riding) County Council (Supreme be a code of practice for the pur- The defendant was a limited liabil- Factors involved in Court), 20 February 1998 poses of the Organisation of ity company in liquidation. By way malicious injuries Working Time Act, 1997. The code of an order of the High Court dated The plaintiff claimed compensation is appended to the order. 20 July 1992, pursuant to s27 of for malicious injuries to his car. It Organisation of Working Time CRIMINAL the Local Government Planning was necessary to show that the (Code of Practice on Sunday and Development Act, 1976, the damage was caused in the course of Working in the Retail Trade and defendant was prohibited from car- a riotous assembly. The case came Power to commute Related Matters) (Declaration) rying out certain developments in before the Supreme Court by way delegated Order 1998 (SI No 444 of 1998) Co Cork and was also ordered to of case stated on a question of law With the exception of capital reinstate and landscape these from Judge Sheridan of the Circuit cases, the power of the govern- lands. C, who was a respondent in Court. In finding there was evi- ment to commute or remit any ENVIRONMENTAL the proceedings, was not named in dence on which the judge could punishment of forfeiture or dis- that order and the order was not find the necessary elements for qualification imposed by a court made against him. C, in the present holding that a riot had occurred, it has been delegated to the Minister Oil pollution measures case, sought an order extending the was held that: for Justice, Equality and Law proposed time for appeal that order. In dis- ● The elements of a riot were that Reform. In 1990, the International missing the application for an there were at least three persons Criminal Justice Act, 1951 Maritime Organisation (a sub- extension of time, it was held that: involved, that they assembled (Section 23) (Delegation of sidiary organisation of the United ● C had no locus standi to bring with a common purpose, execu- Powers) Order 1998 (SI No 416 Nations) adopted the Oil pollution an appeal and he could not do tion of that common purpose of 1998) preparedness, response and co-

MARCH 1999 LAW SOCIETY GAZETTE 41 BRIEFING

operation convention. New legis- Health (Eastern Regional Health was not, whether a videotape tape represented such a lation has been proposed to pro- Authority) Bill, 1998 could be a ‘copy’ within the sequence and had been put on vide for the application within the meaning of the same section. the tape with a view to repro- State of the convention. For the Voluntary Health The defendant contended that ducing the sequence purposes of the legislation, the Insurance (Amendment) there was a cassus omissus in Irish ● There was no requirement in area of the State is extended to Bill, 1998 law, in that the definition of cine- the definition that the sequence include sea areas within 200 miles This Bill has been amended in the matograph film contained in of visual images should be of baselines. Select Committee on Health and s18(10) in its ordinary meaning observable on the material Sea Pollution (Amendment) Bill, Children. did not capture videotapes as visu- ● There was no requirement in 1998 al images were not recorded on the definition that the tape itself videotape. The defendant argued should be capable of reproduc- that other jurisdictions had ing the sequence of visual INTELLECTUAL amended their legislation to cor- images without the interven- HEALTH SERVICES PROPERTY rect this lacuna. In reply, the tion of other technology plaintiffs argued that the charges ● The language of s18(10) admit- Proposed eastern Videotape a cinemato- wrought by legislation in the other ted of production or reproduc- health authority graph film within the jurisdictions had not necessarily tion of visual images by means A Bill has been presented which meaning of the Act been intended to cure an infirmity of videotape technology seeks to: ● The proper approach to adopt in their existing legislation. ● A videotape was a cinemato- ● Establish a body to be known as when determining whether a Further, the plaintiffs contended graph film within the meaning the Eastern Regional Health videotape was encompassed by that the definition in s18(10) was of that expression in s18(10) of Authority which will be respon- the definition in s18(10) of the wide enough to encompass video- the 1963 Act. sible for planning, commission- Copyright Act, 1963 was to tapes. In answering the first ques- ing and overseeing all health look at its language in the light tion in the affirmative, it was held Universal City Studios Incorpor- and personal social services in of the expert evidence as to the that: ated v Mulligan (Laffoy J), 28 Dublin, Kildare and Wicklow nature of a videotape and the ● The type of videotape technol- November 1997 ● Establish three new area health process by which a moving pic- ogy which existed today was boards (the Northern Area ture was produced by it. not in contemplation by the Health Board, the South- draftsmen of the 1963 Act LEGAL PROFESSION Western Area Health Board and The defendant was accused by the when they defined the expres- the East Coast Area Health plaintiffs of copying videotapes in sion ‘cinematograph film’ Board) which will have dele- contravention of their copyright ● The proper approach was to Rules on solicitors and gated responsibility from the contained in s18(10) of the look at the language of the def- investment business Eastern Regional Health Copyright Act, 1963. The defen- inition in s18(10) in the light of With effect from 1 December Authority for the management dant contended that videos were the expert evidence as to the 1998, a solicitor who is not an and delivery of services cur- not ‘copies’ within the meaning of nature of a videotape and the authorised investment business rently provided by the Eastern the Act in that they were not cine- process by which a moving pic- firm or who does not hold himself Health Board, and matograph films and, as such, that ture was produced by it out as a provider of investment ● Provide that voluntary service he had not breached its provi- ● In the case of a videotape, a services or advice must undertake providers (including the major sions. A trial of a preliminary metal particle tape clearly qual- to the Law Society, when seeking voluntary hospitals) will be issue was ordered in order to ified as ‘material of any a practising certificate: funded by the Eastern Regional answer the questions whether a description’ ● Only to provide investment Health Authority rather than by videotape was a cinematograph ● While a sequence of visual business services (including the Department of Health and film within the meaning of images was not observable on acting as an insurance interme- Children as at present. s18(10) of the 1963 Act and, if it the tape, the information on the diary) or advice to clients inci-

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Principal: Áine O’Farrell

42 LAW SOCIETY GAZETTE MARCH 1999 BRIEFINGBRIEFING

dental to the provision of legal conveying information to an formance of the contract. On foot the person or body in question services to those clients owner or occupier of land, such of those proceedings, the plaintiff who issued the notice should ● Not to hold him or herself out as person could not be regarded as sought a mandatory injunction have legal competence to effect, being an investment business having been notified or given compelling the defendants to com- either immediately or prospec- firm, and notice of a decision, proposal or plete the sale. The defendants dis- tively, the land to which the ● When providing such incidental intention of a public body in puted the making of an order for order or notice related in the services and acting as an inter- relation to the land merely by specific performance on the manner in which it purported to mediary, not to hold a written the publication or advertisement grounds that the plaintiff had not do so in the order or notice as of appointment other than from in a local newspaper. been in a position to close the sale the time of the making or issu- persons or firms authorised by on 30 October 1997, as there were ing of the order or notice the Central Bank. The plaintiff was the vendor of a still undischarged charges on the ● By June 1997, no steps had been farm and claimed a possessory title folio, and the agreement had been taken which would have Similarly, a solicitor who has a over tidal lands which lay to the to sell the farm free from all advanced the proposed designa- practising certificate and who also east of the farm. The farm was sub- encumbrances. The defendants tion as regards the farm beyond operates as an authorised invest- ject to a charge in favour of one Bio contended that the plaintiff was the stage of being a mere pro- ment business providing invest- Enterprises Limited (BEL). The bound to furnish evidence of the posal or statement of intent and, ment business services (including previous owner of the charge had discharge of all encumbrances at accordingly, the second pub- acting as an insurance intermedi- obtained an order for possession of the time of the closing and that the lished notice was not a notice ary) or advice to clients not inci- the farm against the plaintiff. BEL plaintiff was not able to do that. In ‘affecting’ the farm within the dental to the provision of legal ser- was given leave to execute the pos- granting an order for specific per- meaning of clause 35 vices to those clients will be session order in 1985. The plaintiff formance, it was held that: ● The publication of the second required to provide forms of appealed to the Supreme Court ● As the second notice printed notice did not have the conse- indemnity against losses due to his against that order, but before the effectively negatived the first quence of the plaintiff having default. appeal was heard, the plaintiff notice, the defendant’s claim to been ‘notified or given’ notice The Solicitors Acts, 1954 to decided to sell the farm to the first- rescission had to rest on the sec- of the proposed designation 1994 (Investment Business and named defendant and its beneficial ond notice within the meaning of clause 35 Investor Compensation) Regula- owner, the second-named defen- ● Neither the plaintiff nor the ● In the absence of a statutory tions 1998 (SI No 439 of 1998) dant. The deal was concluded in defendants had been aware of provision, a contractual obliga- June 1997. the publication of the two tion or some other legally- The second-named defendant notices, or of the decisions enforceable mechanism which had been negotiating with BEL in reflected in those notices deemed publication in a local MONETARY UNION order to buy their interest, but then ● The effect of clause 35 was to newspaper to be notice for the decided to deal directly with the impose a positive duty of dis- purpose of conveying informa- Redenomination of plaintiff. As part of the agreement, closure upon a vendor in rela- tion to an owner or occupier of negotiable instruments the plaintiff had to procure the dis- tion to the orders and notices land, such person could not be into euros charge of BEL’s charge. On the which came within its ambit, so regarded as having been noti- An order has been made which compromise of the charge, the that the caveat emptor maxim fied or given notice of a deci- empowers the Minister for plaintiff was to withdraw her appeal did not apply in relation to such sion, proposal or intention of a Finance, or the National Treasury to the Supreme Court. The plaintiff orders and notices or the subject public body in relation to the Management Agency on his agreed to pay BEL £1,000,000 in matter of them land merely by the publication behalf, to redenominate into euros compromise of its charge, and then ● It was for a purchaser to estab- or advertisement in a local any bonds, bills or notes issued by withdrew her appeal. lish that an order or notice newspaper or on behalf of the Minister and Before the deal was finalised, it which came within the ambit of ● The plaintiff failed to establish currently denominated as pounds emerged that the farm fell within a clause 35 known to the vendor on both aspects of the question under Irish law. proposed natural heritage area des- was not disclosed by the vendor that the second published notice Economic and Monetary Union ignation. That fact had not been prior to the sale, and the onus came within the ambit of clause Act, 1998 (Redenomination of disclosed to the defendants despite was then on the vendor to estab- 35 and, accordingly, the entitle- Negotiable Debt Instruments) the fact that notices to that effect lish the existence of one or ment of the defendants to Order 1998 (SI No 424 of 1998) had been published in the local more of the four factors which rescind did not arise papers. The defendants were of the obviate a rescission even where ● Had the sale closed on 30 opinion that the information should there has been a failure on the October, the plaintiff would REAL PROPERTY have been disclosed to them pur- part of the vendor to disclose have been in a position to fulfil suant to clause 35 of the General ● The definition of ‘competent her contractual obligations in Clause 35 of the General conditions of sale. The defendants authority’ contained in clause relation to discharge of the conditions considered decided that the plaintiff’s failure 35 was intended to cast a wide encumbrances affecting the title ● In the absence of a statutory pro- to disclose that information entitled net and to capture every con- ● The defendants’ solicitors had vision, a contractual obligation them to rescind the contract and ceivable public person or body no genuine concern in relation or some other legally enforce- they served notice of rescission on who could make or issue a to the discharge of the encum- able mechanism which deemed the plaintiff. legally effective order or notice brances publication in a local newspaper The plaintiff issued the current in relation to land ● Even if the plaintiff had not to be notice for the purpose of proceedings seeking specific per- ● What was also required was that been in a position to fulfil her

MARCH 1999 LAW SOCIETY GAZETTE 43 BRIEFING

contractual obligations in rela- ● The plaintiff was in a position public service vehicles. TOURISM tion to the encumbrances on to redeem the charge in favour Road Traffic (Traffic and the date of closing, such would of BEL and set at nought BEL’s Parking) (Amendment) (No 2) not have amounted to a breach entitlement to execute for pos- Regulations 1998 (SI No 441 of Shooting licences of contract which would have session and the plaintiff’s 1998) A private member’s Bill has been entitled the defendants to ter- obligation to deliver possession introduced which aims to regulate minate the contract or regard ● Neither the existence of the the licensing of promoters and the itself discharged from further orders nor the compromise evi- granting of firearm certificates to SHIPPING performance thereof forthwith, denced by a letter was a bar to non-residents for the purpose of time not being of the essence an order for specific perfor- hunting and shooting wildlife with- ● The service of a notice to com- mance New roll-on/roll-off in the State. See also Firearms plete under clause 40 of the ● The plaintiff was entitled to an safety rules (Temporary Provisions) Act, 1998. General conditions by the order for specific performance New rules implement the provi- Control of Wildlife Hunting and defendants and a failure to of the agreement to sell the sions of the Stockholm agreement Shooting (Non-Residents’ Firearm comply with it by the plaintiff farm. of 1996 in relation to survivabili- Certificates) Bill, 1998 would have been a necessary ty standards for roll-on/roll-off prerequisite to rescission by Browne v Mariena Properties passenger ferries and seek to the defendants Limited (Laffoy J), 23 January enhance the safe management, TRANSPORT ● Had such a notice to complete 1998 operation and pollution preven- been served by the defendants, tion of such ferries operating to or it was clear that the plaintiff from ports within the State. Carriage of Dangerous would have been able to com- European Communities (Safety Goods by Road Bill, 1998 ROAD TRAFFIC ply with it Management of Roll-on/Roll-off This Bill has been passed by Dáil ● The purchase price payable to Passenger Ferries) Regulations Éireann. G the plaintiff by the defendants All large PSVs to 1998 and the Merchant Shipping was sufficient to discharge the use bus lanes (Ro-Ro Passenger Ship Surviv- The ILT digest is reproduced by indebtedness of BEL and all As and from 23 November 1998, ability) Rules 1998 (SI Nos 413 kind permission of the Irish Law other encumbrances bus lanes may be used by all large and 429 of 1998) Times. Donkeys are part of Ireland’s heritage

The donkeys in Ireland have for many years worked tirelessly and patiently for man and it is sad that many of these animals, now no longer needed, are neglected and suffer as a consequence.

Daisy has spent much of her life roaming around the housing estates of Dublin. She was often left to fend for herself, sometimes for a couple of months, before being caught and returned to the estate in Ballymun where she lived. Sadly her lifestyle left her with very arthritic back legs and she had great difficulty walking.

Daisy’s life improved dramatically when she was taken into the Donkey Sanctuary at Liscarroll. She receives all the love, care and medical help she needs to ensure the rest of her life is as long and happy as possible.

The Donkey Sanctuary at Liscarroll, Mallow, Co. Cork

provides a refuge for mistreated, neglected or unwanted don- ▲ ▲ ▲ ▲ keys and promotes the better care of donkeys For further details please contact: throughout the country. Paddy Barrett, Manager, The Donkey Sanctuary, (Dept ILT), Knockardbane, Liscarroll, Mallow, Co. Cork. Tel (022) 48398 Fax: (022) 48489 E-mail: [email protected] UK Registered Charity Number 264818

44 LAW SOCIETY GAZETTE MARCH 1999 BRIEFINGBRIEFING

Eurlegal

News from the EU and International Affairs Committee Edited by TP Kennedy, Legal Education Co-ordinator, Law Society of Ireland

Gender discrimination and limitation periods

elinda Levez v TH Jennings salary of Ms Levez did not reach The ECJ emphasised that it is ately misled. She was not in a B(Harlow Pools) Ltd (Case £11,400 until April 1992. for national law to establish the position to realise the extent of 326/96), judgment of 1 December Ms Levez left the employment procedural rules for the safe- the discrimination against her 1998. In February 1991, Ms of Jennings in March 1993. She guarding of rights that individuals until April 1993. The ECJ held Levez had been recruited as man- then discovered that, until April derive from EC law. Such rules that to allow an employer to rely ager of a betting shop owned by 1992, she had been paid less than may not be less favourable than on a national rule imposing such a the defendant at an annual salary her male predecessor. She brought those governing similar domestic time limit in these circumstances of £10,000. In December 1991, a claim under the Equal Pay Act claims. These rules also must not would be incompatible with the she was appointed manager of in September 1993. However, the make virtually impossible or principle of effectiveness of EC another shop belonging to the Act provides that arrears of pay excessively difficult the exercise law. Enforcement of the rule same employer, replacing a man can only be paid in respect of a of rights conferred by EC law. In would make it virtually impossi- who had received an annual two-year period before the pro- this sense, a national rule limiting ble or excessively difficult to salary of £11,400 since ceedings commenced. Thus, she arrears of pay to two years before obtain arrears of remuneration in September 1990. The work per- was not entitled to arrears of pay the initiation of proceedings was respect of gender discrimination formed and the conditions of before 17 September 1991. The not open to criticism. and would facilitate the breach of employment for managers in the Employment Appeals Tribunal However, in the circumstances EC law by an employer whose betting shops run by Jennings Ltd referred two questions to the of the case, Ms Levez had been deceit caused the employee delay were the same. However, the European Court of Justice (ECJ). inaccurately informed or deliber- in bringing proceedings. G

Pregnancy rights held to apply before maternity leave

erit Høj Pedersen and Ors v ings against their employers tion with no medical condition or The court finally considered BFællesforeningen for Dan- relating to their receiving special risks for the unborn child, whether Danish law fell under the marks Brugsforeninger and Ors reduced pay for absences from the loss of some of her regular conditions in Directive 92/88 on (Case 66/96), judgment of 19 work due to pregnancy-related salary cannot be regarded as dis- the safety and health at work of November 1998. The ECJ has conditions. crimination. In such circum- pregnant workers authorising the ruled on the validity in EC law of The court pointed out that stances, the loss of salary is due to employer in certain circumstances Danish legislation on non-manual pregnancy brings about incapaci- her choice not to work. to give a pregnant worker leave employees. This legislation pro- ty for work by reason of disor- Legislation providing for some or from her duties. The Danish legis- vided that pregnant women who, ders and complications inherent all of the salary to be forfeited in lation is aimed at protecting the for a reason connected with their in the condition. Depriving a such a case is not incompatible interests of the employer, rather pregnancy, are unfit for work woman of an entitlement to full with EC law. than the biological condition of before the beginning of the mater- pay when her incapacity is due to The court also considered a the female employee. In addition nity leave period are not entitled a condition connected with her Danish rule that an employer the directive requires the employ- to full pay. The employee is only pregnancy is treatment based may, when he considers that he er to first examine whether it is entitled to receive half pay from essentially on her pregnancy and cannot provide work for a woman possible to adjust the employee’s her employer. In contrast, an thus is discriminatory. However, who is pregnant, although not working conditions and/or work- employee who is unfit for work if a pregnant woman is absent unfit for work, send her home ing hours before granting leave. on grounds of illness is in princi- from work before her maternity without paying her salary in full. Thus, the Danish legislation does ple entitled to full pay. Ms leave, by reason of routine preg- The court held that if such a rule not satisfy the requirements of the Pedersen and other female nancy-related inconveniences or only affected female employees, directive for giving the employee employees had brought proceed- of mere medical recommenda- it is discriminatory. leave from her duties. G

MARCH 1999 LAW SOCIETY GAZETTE 45 BRIEFING

Protection of animal species may justify trade barriers

itlev Bluhme (Case 67/97), Mr Bluhme was prosecuted laws remain applicable subject to by ensuring the survival of that Djudgment of 3 December before the Danish criminal courts compliance with the treaty. The population. They are thus intended 1998. Danish law provides that for keeping on Læsø bees other court recognised that by prohibit- to protect the life of those animals only nectar-gathering bees of the than Læsø brown bees. He argued ing the importation of bees into the and may be justified on that sub-species apis mellifera mellif- that the Danish legislation hindered island the legislation was capable ground. era (Læsø brown bees) may be the free movement of goods and of hindering trade between The Læsø brown bee is in dan- kept on the island of Læsø and cer- was thus contrary to the treaty. The Member States. Thus, it was a ger of disappearance as a result of tain neighbouring islands. This is Danish criminal court referred to measure having an effect equiva- cross-breeding with the golden bee. done to protect an indigenous pop- the ECJ the question whether the lent to a quantitative restriction. Due to this, the court found that the ulation of bees in these areas. The legislation complied with the treaty. Nonetheless, the court recognised establishment of a protection area legislation also prohibits the The court held that in the that measures to preserve an such as the one on Læsø is a mea- importation into Læsø of live absence of any harmonisation of indigenous animal population with sure appropriate to the aim of pro- domestic bees or reproductive the laws of the Member States on distinct characteristics contribute tecting the species and is therefore material for them. the marketing of bees, national to the maintenance of biodiversity in accordance with EC law. G

RECENT DEVELOPMENTS IN EUROPEAN LAW Mediaprint to include Der Standard minuted in writing, as at present. against Mr Bickel and Mr Franz. Mr COMPETITION in its delivery service was an abuse Regulation 2843/98/EC deals with Bickel is an Austrian lorry driver. He Abuse of a dominant position of a dominant position. The ECJ held competition cases in the transport was stopped in Italy and charged Oscar Bronner GmbH & Co KG v that the refusal would only breach sector. It sets out how to lodge with driving while under the influ- Mediaprint Zeitungs-und Zeitschrift- article 86 if it was likely to eliminate applications and notifications in ence of alcohol. Mr Franz, a German enverlag GmbH & Co KG (Case 7/97), all competition in the daily newspa- such cases. It introduced new rules national, was also arrested in Italy judgment of 26 November 1998. per market on the part of the per- and a new Form TR for transport for possession of a type of knife pro- Oscar Bronner publishes the son requesting the service. companies wishing to notify agree- hibited by Italian law. In each case, Austrian newspaper Der Standard. Furthermore, such a refusal must be ments. It covers transport by air, by they declared that they had no In 1994, that newspaper’s share of incapable of being objectively justi- sea and by land. Both regulations knowledge of Italian. They request- the Austrian daily newspaper mar- fied and the service must be indis- came into force on 1 February. They ed that the proceedings be conduct- ket 3.6% of circulation and 6% of pensable to carrying on the business replace five existing regulations. ed in German, relying on the rules advertising revenues. Mediaprint of the person requesting the service. for the German-speaking citizens of To establish this, the person must the Province of Bolzano. The Italian publishes the newspapers Neu CONSUMER LAW Kronen Zeitung and Kurier. They show that there is no actual or court asked whether a right to have have a combined market share of potential substitute in existence for Product liability criminal proceedings conducted in a 46.8% of circulation in the Austrian that home-delivery scheme. The The Council of Ministers has reached language other than the principal daily newspaper market and 42% of court pointed out that there were agreement on a directive to amend language of the state falls within advertising revenues. They reached other methods of distributing news- and extend the scope of the 1985 the scope of the treaty and is subject 53.3% of the population from 14 in papers such as through the post and directive on liability for defective to article 6. Article 6 prohibits dis- private homes and 71% of all news- through their sale in shops or kiosks. products. The directive was imple- crimination on grounds of national- paper readers. For distribution, they The court did not accept the argu- mented in Ireland through the ity. If article 6 was applicable the had established a nation-wide ment that establishing a rival home- Liability for Defective Products Act, court asked whether it precluded a home-delivery scheme (delivering delivery system would not be eco- 1991. It introduced a strict liability rule granting citizens in a certain the newspapers directly to sub- nomically viable. regime in product liability cases. area the right to have their case scribers in the early hours of the Agricultural products were excluded heard in their language while deny- morning). Bronner sought an order Competition proceedings from the scope of the 1985 directive. ing that right to nationals of other requiring Mediaprint to include Der The Commission has recently adopt- The new proposal would extend the states travelling or staying in the Standard in its home-delivery ed two competition regulations. product liability directive to agricul- area whose language is the same. scheme in return for a reasonable Regulation 2849/98/EC simplifies tural products. The ECJ held that article 59 covers all fee. Bronner argued that postal competition procedures. It provides nationals of other Member States that different parties in competition who visit another state where they deliveries took place in the late DISCRIMINATION morning and was not an equivalent proceedings have the right to be intend or are likely to receive ser- alternative and further argued that heard. It sets out the procedural Language vices. Such persons are free to move in view of its small number of sub- rights of parties in competition Horst Otto Bickel, Ulrich Franz (Case around within that state. The right scribers that it would be unprof- cases, dealing with the Hearing 274/96), judgment of 24 November to move around and reside freely is itable for it to organise its own Office and access to the file. It pro- 1988. The Italian courts referred a enhanced if those exercising it are home-delivery service. The Austrian vides that statements made at hear- question to the ECJ which had arisen able to use a given language to court asked whether the refusal of ings will be recorded, rather than in criminal proceedings taken communicate with state authorities

46 LAW SOCIETY GAZETTE MARCH 1999 BRIEFINGBRIEFING

on the same footing as the state’s marketing, or licensing of manufac- relating to the payment of debts no provision made for repayment of own nationals. Thus, such persons ture or marketing of products bear- arising under a contract containing amounts collected in breach of EC are entitled under article 6 to treat- ing the design). an arbitration clause. When a dis- law. Aprile sued, seeking to have the ment no less favourable than that pute arose concerning the operation amounts reimbursed. The case was given to nationals of the state so far Exhaustion of rights of a charter agreement, Van Uden defended on the basis that the rele- as concerns the use of language spo- Parfums Christian Dior SA v Evora instituted arbitration proceedings in vant limitation period barred the ken there. German-speaking Italian BV, 11 November 1998, Financial the Netherlands, on foot of the action being taken. The Italian court nationals are placed at a consider- Times. Christian Dior manufactures agreement. It subsequently applied asked the ECJ whether national able advantage in having criminal luxury perfumes in France and dis- for interim relief under article 24 of rules providing for a limitation peri- proceeding tried in German over tributes them in other EC Member the convention, claiming that the od of three years for reimbursement German-speaking nationals from States through exclusive distributors other party was not displaying the of customs charges rather than the other Member States. who are responsible for national necessary diligence in the appoint- ordinary limitation period of ten territories. Evora, through its sub- ment of arbitrators and that non- years for actions for the recovery of INTELLECTUAL sidiary, operated a chain of chemists payment of invoices was disturbing sums paid but not due was compati- in the Netherlands. Dior perfumes its cashflow. The Dutch courts ble with EC law. The ECJ emphasised PROPERTY which had been put on the market referred a number of questions to that national laws safeguarding Designs in France were obtained by Evora the ECJ for its interpretation. The rights derived from EC law must be Directive 98/71/EC on the legal pro- and sold in the Netherlands through ECJ held that where the subject mat- as favourable as those governing tection of designs (OJ 1998 L298/28) its chemists. The Dior perfumes were ter of an application for provisional equivalent domestic actions and has been adopted. This aims to har- advertised by Evora in a sales pro- measures falls within the scope of must not render virtually impossible monise the laws of the Member motion. Dior brought proceedings the convention, the national court or excessively difficult the exercise States on design protection. The in the Netherlands claiming that can hear the application even where of those rights. Reasonable time lim- directive is to be brought into effect Evora had infringed trade marks arbitral proceedings may or have its which meet these requirements by 29 October 2001. The directive and copyright in the packaging of been commenced on the substance are permissible. The court held that applies to the protection of designs the perfumes by advertising them in of the case. The granting of provi- a time limit of three years appeared by registration. The directive sets out catalogues. The Dutch Supreme sional measures is conditional on reasonable. It pointed out that the the criteria for registration and the Court referred a number of ques- the existence of a real connecting actions for reimbursement of protection to be given to a regis- tions to the ECJ concerning the right link between the subject matter of charges levied in beach of EC law tered design. Other matters, includ- of the owner of a trade mark or the measures sought and the terri- should be governed by limitation ing the registration process and copyright to enforce those rights to torial jurisdiction of the contracting rules which are equivalent to limita- enforcement mechanisms, are left to prevent the resale of goods lawfully state before which those measures tion rules applying to the reimburse- domestic law. Designs are registrable purchased within the EU. The ECJ are sought. The court went on to ment of such charges under nation- when they are new and have an indi- reaffirmed the primacy of the provi- hold that ordinarily interim pay- al law. The limitation period need vidual character. A design is the sions of the treaty providing for free ment of a contractual sum does not not match the most favourable peri- appearance of a product (its lines, movement of goods. The ECJ held constitute a provisional measure. od available under national law. The contours, colours, shape, texture and that Dior could not rely on the However, it can where repayment to court went on to consider its earlier materials of the product or its orna- defences to free movement for pro- the defendant of the sum awarded ruling in Emmott. It held that the mentation). The design must be visi- tection of intellectual property in is guaranteed if the plaintiff is Emmott principle applied only in its ble and have a distinctive appear- article 36 of the treaty or Article 792 unsuccessful in the substance of the particular circumstances – where a ance. A design is new if no identical of the Trade mark directive claim and the measure sought time-bar deprived the plaintiff of design has been made available to (Directive 89/104/EEC). The court relates only to specific assets of the any opportunity to rely on his or her the public. A design is identical if the held that the mere fact that Dior’s defendant located or to be located right to equal treatment under a only differences are immaterial. The products were advertised in the cus- within the territorial jurisdiction of directive. It now has to be read in design is made public by use, exhibi- tomary manner for perfumes in gen- the court to which application is the light of subsequent judgments tion or other disclosure. The directive eral by Evora was not of itself a made. in Steenhorst-Neerings and Fantask. gives the designer a period of 12 ground for enforcement of intellec- months before registration to pub- tual property rights. It would have Limitation periods TAXATION lish and use the design without the to be shown that serious damage Aprile Srl, en liquidation v design being treated as if it lost its had been done to the owner’s repu- Amministrazione delle Finanze dello VAT novelty. Designs which are contrary tation in order to justify restraint on Stato (Case 228/96) judgment of 17 The Commission has put forward a to public policy or accepted princi- the reseller’s advertising activities. November 1998. The Italian State proposal for a directive (OJ C 409 ples of morality are excluded from Finance Administration had collect- 20.12.98 p13) proposing a 15%- the scope of the directive. Designs ed certain customs charges from 25% band for the standard rate of LITIGATION can be registered for 25 years. Aprile, a company in liquidation. In VAT from 1 January 1999. A similar Member States can decide whether Brussels convention two cases in 1989 and 1991, the ECJ proposal was put forward in this period should be continuous or Van Uden Africa Line/Kommand- held that these customs charges December 1995. The Council accept- renewable in five-year periods or itgesellschaft in Firma Deco-Line ea were contrary to EC law. Italy abol- ed the objective of preventing a multiples of five years. During the (Case 391/95) judgment of 17 ished these charges from 13 June widening of the gap between the registration period, the registered November 1998. The case arose 1991 and 1 November 1992. standard rates of VAT of the owner has the exclusive right to use from an application before the However, these measures did not Member States. However, it did not the design (through manufacture or German courts for interim relief have retrospective effect. There was set a maximum rate.

MARCH 1999 LAW SOCIETY GAZETTE 47 BRIEFING

Conferences and seminars Academy of European Law Topic: Co-operation in the area Date: 18-19 November Date: 15 October Contact: (tel: 0049 651 937370) of education and the recognition Venue: Alicante, Spain Venue: Marseilles, France of diplomas on a European level Topic: Proposed directive on Date: 17-19 June Topic: The eco-label as a Hawksmere guarantees for consumer goods Venue: Trier, Germany voluntary measure and consumer Contact: (tel: 0044 171 8811858) Date: 25-26 March interests Venue: Trier, Germany Topic: European Community law: Date: 29-30 November Topic: Mediation and dispute an introduction for young Venue: Trier, Germany resolution skills Topic: Judicial remedies at the lawyers Date: 11-16 April crossroads between Community Date: 12-16 July Topic: Human rights and Venue: Cambridge, England and national law Venue: Trier, Germany combating racism in the European Date: 16 April Union IBC Venue: Brussels, Belgium Topic: Fundamental economic Date: 4-5 December Contact: Scott Forbes (tel: 0044 171 rights in international law: Venue: Trier, Germany 4535495) Topic: The increasing role of the Community law and WTO law European Parliament in the field of Date: 2-3 September AIJA (International Association Topic: European environmental law after the Treaty Venue: Stockholm, Sweden of Young Lawyers) telecommunications law of Amsterdam Contact: Gerard Coll (tel: 01 Date: 19-20 April Date: 19-20 April Topic: Biotechnological inventions: 6761924) Venue: Brussels, Belgium Venue: Copenhagen, Denmark legal protection and limits Date: 14-15 October Topic: Annual congress Law Society of Scotland Topic: Interaction between double- Venue: Trier, Germany Date: 22-27 October Contact: (tel: 0044 141 5531930) taxation conventions and the rul- Venue: Brussels, Belgium ings of the ECJ on fundamental Topic: Legal aspects of tourism and Topic: 50th anniversary conference freedoms travel in the European single mar- Topic: Tourism law Date: 8-10 July Date: 26-27 April ket Date: 24-27 June Venue: Trier, Germany Date: 21-22 October Venue: Capri, Italy Solicitors’ European Group Venue: Trier, Germany Contact: (tel: 0044 1905 724734) Topic: Current developments in Topic: Private-public partnership Community law Topic: International private law in Date: 20-21 November Topic: Litigation in Luxembourg Date: 3-4 May the single market: the Venue: Warsaw, Poland Date: 26 April Venue: Trier, Germany Europeanisation of liability law Venue: London, England Date: 25-26 October European Lawyers’ Union Topic: The future of professional Venue: Trier, Germany Contact: Martine Karsenty-Ricard Topic: The new Merger rules associations in the single market (tel: 0033 1 47637475) one year on and other recent devel- Date: 17-18 May Topic: Current developments in opments Venue: Trier, Germany European distribution law: panora- Topic: Fourth European intellectu- Date: 18 May ma after the green paper al property rights forum Venue: London, England Topic: Consumer protection in the Date: 4-5 November Date: 24 March field of banking law Venue: Trier, Germany Venue: Brussels, Belgium Topic: Annual conference Date: 27-28 May Date: 20-22 May Venue: Trier, Germany Topic: Licensing contracts under Contact: Antonio Debiasi or Laura Venue: Lille, France European cartel law Agopyan (tel: 0039 2 783341) Topic: New and forthcoming devel- Date: 8-9 November Topic: Public procurement policy in opments in employment law in the Venue: Trier, Germany Topic: Antitrust between the EC the Community European Community law and national law Date: 16 June Date: 31 May-1 June Topic: Telebanking and cyber- Date: 13-14 May Venue: London, England Venue: Trier, Germany money in the European single mar- Venue: Treviso, Italy ket Topic: Broadcasting, pay-per-view Topic: Value-added tax in the sin- Date: 15-16 November Contact: Klaus-Ullrich Link and sports competition law gle market Venue: Trier, Germany (tel: 0049 711 4897923) Date: 6 July Date: 1-2 June Venue: London, England Venue: Stockholm, Sweden Topic: Current developments in Topic: Setting up companies in the European fiscal law European Union Translex Topic: Decentralised application Date: 18-19 November Date: 17-18 June Contact: Franz Heidinger (tel: 0043 of European antitrust law: Venue: Amsterdam, Holland Venue: Dresden, Germany 1526 8478) should the European Commission give up its monopoly of Topic: The Community trade mark: Contact: Gérard Abitbol Topic: Introduction to the French exemption? caselaw of the Boards of Appeal of (tel: 0033 0491 338195) legal system Date: 10-11 June the Office for Harmonisation in the Date: 12-16 April Venue: Trier, Germany Internal Market Topic: European social law Venue: Paris, France

48 LAW SOCIETY GAZETTE MARCH 1999 PEOPLE AND PLACES

Solicitors’ Benevolent Association Notice is hereby given that the 1. To consider the Annual Report 135th Annual General Meeting of and Accounts for the year the Solicitors’ Benevolent ended 30 November 1998 Association will be held at the Law 2. To elect directors Society, Blackhall Place, Dublin 7, To deal with other matters appro- on Wednesday 7 April 1999 at priate to a general meeting. 12.30pm. Geraldine Pearse, Secretary

The leading cases of the Twentieth Century

he Irish Association of Law over the course of the weekend A major series of seminars on employment law was recently held as part of TTeachers’ annual conference taking a fresh look at the facts and the Law Society’s continuing legal education (CLE) programme. The speak- on the theme of The leading cases holdings of this century’s leading ers were (from left): Gary Byrne, Michael Kennedy and Desmond McMahon, of the Twentieth Century will be cases, each of which represents a all from solicitors’ firm BCM Hanby Wallace held from 9-11 April in the crucial legal development which Killarney Park Hotel, Killarney, has exercised a profound influ- Co Kerry. The keynote papers ence on the law since it was will be delivered by the Hon Mr decided. Justice Ronan Keane, judge of the All are welcome to attend. Supreme Court, Advocate Further details, and booking General Niall Fennelly of the forms, are available from Eoin European Court of Justice, and O’Dell, President, IALT, School Professor Sir John Smith of the of Law, Trinity College, Dublin 2 University of Nottingham. More (tel: 01 608 1178; fax: 01 677 than 20 papers will be delivered 0449; e-mail: [email protected]).

IRELAND’S LANGUAGE & CULTURE A number of CLE seminars on the new disclosure rules in relation to High Court personal injury actions have been run in venues around the country. Pictured at the Dublin seminar were Patrick Groarke (right), who delivered IRISH LANGUAGE COURSES FOR ADULTS the lecture and is a member of the Litigation and Arbitration Committee, Absolute Beginner - Intermediate - Advanced and the committee’s chairman James McCourt, who chaired the seminar CULTURAL ACTIVITY HOLIDAYS with separate week-long programmes in: Law Society’s new web site * Playing the Bodhrán & Flute * Donegal Dances * Marine Painting * Hillwalking * Archaeology * Celtic Pottery * Landscape & Culture * Tapestry Weaving CÚRSAÍ EILE *Cruinneas sa Ghaelige * Oiliúint do Mhúinteoirí i Múineadh na Gaeilge

1999 Brochure OIDEAS GAEL Gleann Cholm Cille Co. Dhún na nGall Fón: (073) 30248 Fax: (073) 30348 Last month Law Society President Patrick O’Connor officially launched email: [email protected] the Law Society’s new web site. He is pictured here at the launch with www.oideas-gael.com Member Services Executive Claire O’Sullivan ‘Saoire den Scoth i nDún na nGall’

MARCH 1999 LAW SOCIETY GAZETTE 49 PEOPLE AND PLACES

Singing practice

Fifteen years ago Declan Branagan left the world of show business behind to enter the IT industry. He had been a Pictured at the recent Mayo Bar member of the Branagans Association dinner dance in Showband alongside his sister Ashford Castle were (back row, Geraldine (pictured above at from left): Judge Oliver her recent wedding to musician McGuinness, Judge John Garavan, Judge Jarlath Ruane, Patrick and composer Phil Coulter), but Murphy, Law Society President decided to focus on a new Patrick O’Connor, Bernard Daly, career providing IT solutions to Ann McEllin, Catherine Dixon Irish business. In 1997, (President of the Law Society of Branagan Business Systems Northern Ireland), Law Society Finance Committee Chairman launched The Practice, a Ward McEllin Windows-based case manage- (front row, from left): James Cahill, ment system for the legal pro- Jacqui Durcan, Mayo Bar fession. The Practice has proved Association President Brendan to be another hit for Branagan, Flanagan, Helena Boylan, Lord Justice Turlough O’Connell QC, who has so far notched up a At a recent conference on liquor licensing reform were Minister for Judge Padraig Brennan, and client base of almost 250 firms. Consumer Affairs Tom Kitt, Law Society President Patrick O’Connor, confer- Gillian O’Connor ence chairman JJ Bunyan of Licensing Information and Consultancy Services, who organised the event, and William Prasifka of the Competition Authority International network looking for its Irish member

European Economic Interest doing quality work for local and AGroup (EEIG), registered in foreign corporations, and run by a Luxembourg, comprising a num- permanent officer with a small ber of European law firms, would staff actively engaged in market- like to invite an Irish firm interest- ing and organising the network. ed in international work to join its Each firm participating in the net- network. The member firms are work is guaranteed a degree of small to medium law firms with a exclusivity in its jurisdiction. The general practice in business and founding members have decided corporate law. Most of the partners to have an open recruitment policy of these firms are in their forties in order to substantially increase and are experienced lawyers. They the number of countries represent- are very keen to work on adding a ed in the network. If any Irish firm Barristers were recently offered the chance to subscribe to Ireland’s premier new international dimension to is interested or would like more law magazine, the Law Society Gazette. As if the special subscription rate was not enough of an incentive, all new subscribers were entered into a their current activities by creating information, it should contact prize draw for a Compaq C-Series Handheld PC, kindly sponsored by a truly multinational structure. Marc Jobert (tel: 0033 1 Compustore. Here, Arthur Moore, Sales Manager of Compustore, presents They feel that there is a need for a 45252515; fax: 0033 1 45254781; the prize to barrister Maire Kirrane, flanked by Mary-Rose O’Sullivan of Rose network for medium-sized firms e-mail: [email protected]). Communications and Gazette editor Conal O’Boyle

MARCH 1999 LAW SOCIETY GAZETTE 51 BOOKS

Book reviews Commercial secrecy: law and practice

John Hull Sweet & Maxwell (1998), 100 Avenue Road, London NW3 3PF, England. ISBN: 0 421 58040 2. Price: IR£97

e all have personal secrets. Hull is a practising solicitor at role of the public interest and the of commercial agreements, confi- WAll businesses have com- Wilde Sapte, a well-known media, and the range of remedies dentiality disclosure letters and mercial secrets. The evolution of a London law firm, and is co-author available. confidentiality provisions and right to privacy or secrecy illus- of Welfare rights and a writer of Of particular relevance to prac- restrictive covenants in an trates the vitality of the common numerous articles. In his first titioners are chapters considering employment agreement. law and our jurists. Judge Tomas words in the preface to his book, interim remedies in breach of Appendices B and C M Cooley, author of The elements he writes: ‘I have never run a confidence actions, such as the (Protecting business information: of torts (1878), wrote that one of a marathon but now I think I know anton piller order, where a party understanding the risks and keep- person’s rights might be said to be what it feels like’. seeks a court order to enter the ing it confidential) are intended to ‘the right to be let alone’. Many Writing a book is like embark- defendant’s premises, or premises make the reader aware of the readers will be familiar with the ing on a lonely journey: the under his or her control, and to potential vulnerability to loss of classic and seminal article written author hit his personal ‘wall’ sev- search for, and take away, or oth- information and provide general by two young lawyers, Samuel D eral times, but completed the erwise preserve, evidence relating guidance that, if implemented, Warren and Louis D Brandeis, course. Yes, he has done so suc- to or supporting the plaintiff’s can reduce but not eliminate the published on 15 December 1890 cessfully and with style. Style (in cause of action where there is a vulnerability of the business. in volume IV, number 5, of the the positive sense), as one great danger that the defendant might It is appropriate to mention Harvard law review. In their arti- authority once wrote, is the neat destroy such evidence before any here that Paul Lavery, a solicitor cle, The right to privacy, these dress of thought. inter partes hearing. The issue of in McCann FitzGerald, has writ- young lawyers added a new chap- The author examines how the interlocutory injunctions, other ten Commercial secrets: the ter to the law. By taking the exist- law views those who disclose interim measures, and final reme- action for breach of confidence in ing law of contract, trust, confi- sensitive or valuable confidential dies including damages for Ireland, a valuable reference for dence and property, and by information in the course of their breach of contractual duty of con- practitioners. This was published stretching well-established con- commercial or professional work. fidence, examined in the book are by Round Hall Sweet & Maxwell cepts of laws, the authors and, Concentrating primarily on com- of great practical benefit. in 1996. subsequently, judges have devel- mercial information, the author Another very useful chapter is Lucid, eminently readable, and oped laws relating to confidential- also examines how private secrets entitled Confidentiality and liti- well presented, the book is a sig- ity and privacy. Commercial con- and government secrets are pro- gation: aspects of practice and nificant contribution to the law of fidentiality is an aspect of this law tected. Core issues, such as what procedure. The first section of commercial secrecy. The book and is the subject of John Hull’s makes information confidential, this chapter deals with pleading has a very practical focus and, by book. how the law recognises a relation- breach of confidence in court doc- virtue of our shared common law, I have a fascination for pref- ship of confidence and the conse- uments. practitioners will find it of aces. Show me the preface to a quence of a breach of confidence Appendix A of the book pro- immense assistance. G book and I will endeavour to are examined in some detail. Also vides 14 precedents, including ascertain the thought-processes examined in some detail are standard confidentiality provi- Dr Eamonn Hall is Chief Legal and personality of the writer. John employment relationships, the sions for inclusion in a wide range Officer with Telecom Éireann plc.

FEATURES INCLUDE: LAW SOCIETY ROOMS Revised layout with two additional rooms Meet Improved ventilation and lighting at at the Four Courts Telephone extension in every room FOR BOOKINGS CONTACT Conference facility telephones the Mary Bissett or Paddy Caulfield Room service catering facility Four Courtat the Four Courts 873 1806 Friary Café Courts MARCH 1999 LAW SOCIETY GAZETTE 53 BOOKS Tax Book 98, Tax Law 98, Tax Disc 98 Alan Moore (consultant editors: Norman Judge, Sean Murphy; editors: Alan Moore, Thomas F Berg) Taxworld Ltd (1998), 73 Bachelor’s Walk, Dublin 1. ISBN: 1-902065-02-6 (Tax Book 98), 1-902065-03-4 (Tax Law 98). Price: Tax Book 98 – £95; Tax Law 98 – £55; Tax Disc 98 – £186.50 (all three: £245.75) he Tax Book 98 is the second English guide to each section of A point made by this reviewer tive and useful guide to the Taxes Tedition of the Tax Book the Act as amended, have, in in considering the first edition Consolidation Act; the Tax Book (which was reviewed in the April many cases, been expanded, thus was that the book, though useful, 98 stands as a reference work in 1998 issue of the Gazette). As providing further assistance to did not contain the text of the its own right. It deserves a place was noted in that review, the Tax specialist and non-specialist Taxes Consolidation Act, 1997. on the bookshelf and in the com- Book provides a guide to each readers alike. In addition, refer- This point has been addressed by puter of every practitioner. G section and sub-section of the ences to caselaw have increased: the publication of a companion Taxes Consolidation Act, 1997. the table of cases in the first edi- volume, Tax Law 98, which Niall O’Hanlon BA (Hons) (Acct The Tax Book 98 not only tion ran to four pages; the equiv- reproduces the legislation as & Fin), LLM (Comm Law), ACA, updates this guide to reflect the alent part of the second edition amended to 1 July 1998. In addi- AITI is a practising barrister spe- amending legislation to 1 July runs to 39 pages. The second edi- tion, both books are available on cialising in general commercial 1998; it also contains significant tion also contains a useful list of one fully-searchable CD-ROM, and taxation law and is a consul- new material. The explanatory Revenue addresses, phone and the Tax Disc 98. tant to the Law Society’s Law notes which follow the plain fax numbers. The Tax Book was an innova- School. European business litigation Abla Mayss and Alan Reed. Ashgate: Dartmouth Press (1998), Gower House, Croft Road, Aldershot, Hants GU11 3HR. ISBN: 1855216876. Price: stg£45 ew litigators or commercial of excellent commentaries on the Union. Thus, while there is some European Court of Justice on the Flawyers have not encountered two conventions, but many of discussion of common-law rules interpretation of the convention. the complexities of legal rules on these are now sadly out of date such as forum non conveniens, This is done in a clear and very jurisdiction, enforcement of foreign and very few attempt to place the this is confined to a consideration readable manner. Anyone with an judgments and choice of law. Any conventions in context with the of whether these rules survive the interest in the subject matter will case involving a party from another common-law rules. The practi- entry into force of the Brussels find this a surprisingly enjoyable country, or where the subject matter tioner is also hampered by the convention. The only exception to read. Tracking developments in of a dispute is in a foreign country, common-law bias of general texts this approach is a brief chapter on the interpretation of some of the throws up these issues. of conflict of laws. These texts the recognition and enforcement convention’s more difficult arti- The common-law rules in these tend to adopt a historical approach of judgments at common law. The cles (such as article 5.1, concern- areas are complex and pose chal- and analyse the common-law book focuses on a number of dif- ing jurisdiction in contractual dis- lenges to the most experienced rules before dealing with the con- ferent subjects: jurisdictional putes) is done in a very immediate lawyer. In recent years there have ventions, treating them as exotic rules under the Brussels conven- way. The difficulties of interpreta- been significant additions to these and not altogether welcome new tion, choice of law under the tion are where problems arise for rules in the shape of Ireland’s developments. This runs contrary Rome convention, choice of law in the practitioner, and accessible accession to the Brussels and to the manner in which practition- tort and recognition and enforce- guidance of the variety provided Lugano conventions on jurisdic- ers approach this area of the law. ment of judgments under the by this work can be invaluable. In tion and the enforcement of judg- The conventions are the first line Brussels convention and at com- addition, the authors guide the ments and the Rome convention on of approach; only if the subject mon law. The authors also give a reader through the other provi- choice of law in contractual mat- matter of a dispute falls outside brief overview of the operation of sions of the convention and relat- ters. their scope are the common-law the conventions to date. ed problems of private interna- Unfortunately, there have been rules of relevance. This practical focus means that tional law in a very direct and few attempts to put together a European business litigation this work will be of great assis- lucid manner. G comprehensive commentary on confines its treatment to legal tance to the practitioner. The book this new private international law issues of relevance to commercial traces recent decisions of the TP Kennedy is the Law Society’s regime. There have been a number litigation within the European English courts and of the Legal Education Co-ordinator.

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54 LAW SOCIETY GAZETTE MARCH 1999 PROFESSIONAL INFORMATION

Regd owner: Charles Gallagher, Calhame, LOST LAND Castlefin, County Donegal; Folio: Prop 1 – CERTIFICATES 18571F, Prop 2 – 2516 and Prop 3 – 9169; Lands: Prop 1 – Ballybofey, Prop 2 – Registration of Title Act, 1964 Drumdoit and Prop 3 – Calhame; Area: Prop 1 – 0.019 hectares, Prop 2 – 4.251 hectares and ADVERTISING RATES An application has been received from the regis- Prop 3 – 42.431 hectares; Co Donegal Advertising rates in the Professional information section are as follows: tered owners mentioned in the schedule hereto for Regd owner: Patrick McGettigan, Legnahoory, the issue of a land certificate as stated to have Kilmacrenan, County Donegal; Folio: 68; • Lost land certificates – £30 plus 21% VAT (£36.30) been lost or inadvertently destroyed. A new cer- Lands: Legnahoory; Area: 28.481 acres; Co tificate will be issued unless notification is • Wills – £50 plus 21% VAT (£60.50) Donegal Lost title deeds – £50 plus 21% VAT (£60.50) received in the registry within 28 days from the Regd owner: Ault and Wiborg Ireland Limited; • date of publication of this notice that the original Folio: 16038; Lands: Townland of Bluebell • Employment miscellaneous – £30 plus 21% VAT (£36.30) certificate is in existence and in the custody of and Barony of Uppercross; Co Dublin some person other than the registered owner. Any Regd owner: Patrick Balfe of Coolmine, HIGHLIGHT YOUR ADVERTISEMENT BY PUTTING A BOX AROUND IT – £25 EXTRA such notification should state the grounds on Clonsilla, Co Dublin; Folio: 2759; Lands: which the certificate is being held. Townland of Diswellstown, and Barony of All advertisements must be paid for prior to publication. Deadline for April (Register of Titles), Central Office, Land Registry, Castleknock; Co Dublin Gazette: 19 March 1999. For further information, contact Catherine Kearney Chancery Street, Dublin Regd owner: Alan Cooney; Folio: 41401F; or Andrea MacDermott on 01 672 4800 (Published 5 March 1999) Lands: Property known as 150 Curlew Road, situate in the Parish and District of Crumlin; Regd owner: Christopher Dalton, Headfield, Co Dublin Regd owner: John Brophy; Folio: 14612; Lands: Dunboyne, Co Meath; Folio: 10993; Lands: Ballymurphy, Co Carlow; Folio: 1236; Lands: Regd owner: James Cranny and Annette Cranny; Newtown; Area: 53a 0r 39p; Co Carlow Turra and Drumagh and Barony of Warrenstown; Area: 21.813 acres; Co Meath Folio: 75187F; Lands: Property situate in the Slievemargy; Co Laois Regd owner: Noel Thomas Cunningham, Regd owner: Philip McEntee, Annagharnett, Townland of Jobstown and Barony of Virginia, Co Cavan; Folio: 16408; Lands: Regd owner: Patrick and Julia O’Doherty; Folio: Julianstown, Drogheda, County Meath and Uppercross, situate at 2 Maplewood Avenue, 2610L; Lands: Townland of 26 Pennywell Gaffney Road, Duleek, County Meath; Folio: Corradooa; Area: 20.338 acres; Co Cavan Springfield, in the town of Tallaght; Co Regd owner: John McCarthy and Patrick J Road, Parish of St John’s; Co Limerick 24879; Lands: Julianstown West; Area: Dublin Regd owner: Thomas Kehoe (otherwise Keogh); 0.275 acres; Co Meath McCarthy, Tonovoher, Knock, Co Clare; Regd owner: John Dorney and Joan Dorney; Folio: 12837; Lands: Prop 1 – Townland of Folio: 92L; Lands: Bridge Street, Longford Regd owner: Patrick Dunne, Kellystown, Slane, Folio: 41070L; Lands: Townland of and Demesne, Battery Road, Longford; Co County Meath; Folio: 3389; Lands: Tarmon and Barony of Clonderalaw, Prop 2 – Kilnamanagh and Barony of Uppercross, Townland of Tarmon and Barony of Longford Starinagh; Area: 28a 2r 1p; Co Meath property situate to the North East of Belgard Regd owner: Sarah Mary O’Callaghan, Regd owner: Patrick Mullen, Shallon, Clonderalaw, Prop 3 – Townland of Tarmon (1 Road in the town of Tallaght; Co Dublin th Doylesfort Road, Dundalk, Co Louth; Folio: Julianstown, County Meath; Folio: 10254; undivided 12 ) and Barony of Clonderalaw; Regd owner: James and Marie Mullaney; Folio: Area: Prop 1 – 28a 3r 11p, Prop 2 – 0a 2r 36p, 373F; Lands: Dowdallshill; Area: 0a 0r 18p; Lands: Shallon; Area: 33a 1r 25p; Co Meath 16935; Lands: Property situate in the Co Louth Regd owner: Leo Deery, Tullygoney, Tydavnet; Prop 3 – 0a 3r 35p; Co Clare Townland of Carrickmines Little and Barony Regd owner: The Lord Mayor Aldermen and Regd owner: Michael and Maura Boyle, Imeall, Folio: 20863; Lands: Tullygony; Area: 3.313 of Rathdown; Co Dublin 68 Inver Edie, Malahide, County Dublin, also acres; Co Monaghan Burgesses of Cork; Folio: 32396F; Lands: Part Regd owner: Brendan McKenna; Folio: 99311F; of the Townland of Mahon, situate in the Imall, Longford Road, Duleek, County Regd owner: Michael, Margaret and Dominic Lands: Property situate adjacent to 33 Meath; Folio: 10814; Lands: Commons; Co Hughes, 6 Bree, Castleblayney, County Parish of Saint Finbars, County Borough of Limekiln Road, Walkinstown; Co Dublin Cork; Co Cork Meath Monaghan; Folio: 10957F; Lands: Bree; Co Regd owner: James Mulvany and Mary Geraldine Regd owner: Luke Comer, Brookville Lodge, Monaghan Regd owner: Harcon Construction Limited; Folio: Mulvany; Folio: 23482F; Lands: Townland of 20769F; Lands: Situate in the Townland of Old Orchard and Barony of Rathdown, a plot Ballinaspig More, County of Cork; Co Cork of ground known as 17 Willowbank Park, Regd owner: Edith Hyde; Folio: 12726; Lands: Rathfarnham; Co Dublin Part of the lands of Ballyannon, situate in the Regd owner: Sarah Rylands (deceased); Folio: University College electoral division of Middleton Rural and 565L; Lands: Property known as 105 Home Barony of Barrymore, Co Cork; Co Cork Farm Road, situate on the north side of the Regd owner: Jeremiah Lucey; Folio: 4214F; said road in the Parish of Glasnevin and the Dublin Lands: Property situate in the Townland of District of Drumcondra; Co Dublin Ardra and Barony of Carbery West (East Regd owner: Margaret Bradley, Barrack Street, Division), County Cork; Co Cork Dunmore, Co Galway; Folio: 1915F; Lands: Regd owner: Liam O’Brien and Liz O’Brien; Townland of Dunmore and Barony of FACULTY OF MEDICINE Folio: 13619L; Lands: Property known as 7 Dunmore; Area: 0a 0r 12p; Co Galway Applications are invited by the Governing Authority of the Castle Court in part of the Townland of Regd owner: Philip Timpson; Folio: 3808F; College for the following (five year) full-time/part-time Mahon, situate in the Parish of St Finbar and Lands: Turnings, Upper Daars South and Professorship. County Borough of Cork; Co Cork Killeenmore and Barony of Naas North; Co Regd owner: William Doherty, Main Street, Kildare Kilmacrenan, Co Donegal; Folio: 29484; Regd owner: John Bergin, Mount Eland House, Chair in Legal Medicine Lands: Kilmacrenan; Area: 10a 3r 8p; Co Ballyragget, Co Kilkenny and Grange, Donegal Ballyragget, Co Kilkenny; Folio: 10380; (Ref: 28/99) Lands: Grange; Area: 59.537 acres; Co The annual stipend attached to the office is in the range: Kilkenny IR£55,121 (Full-time) Regd owner: Susan Smith; Folio: 11981; Lands: IR£27,560 (Part-time) ENGLISH AGENTS: Goodwinsgarden and Barony of Kells; Co Agency work undertaken Kilkenny Prior to application, further information (including application for Irish solicitors in procedures) should be obtained from the Personnel Office, both litigation and OSBORNE University College Dublin, Belfield, Dublin 4. (Quoting non-contentious matters – RECRUITMENT above reference number). including legal aid. Telephone enquiries: (01) 706 1653, Fax: (01) 2692472. Top Dublin firm Email: [email protected] Fearon & Co, seeks Litigation Sec Closing Date: Not later than 5.00 pm on Thursday Solicitors, c£18K! 25 March, 1999. Westminster House, Ph Gina on UCD is an equal opportunities employer 12 The Broadway, Woking, 6628686 Surrey GU21 5AU. University College Dublin - National University of Tel: 0044 1483 726272 Fax 6628689 Ireland, Dublin Fax: 0044 1483 725807 or email

MARCH 1999 LAW SOCIETY GAZETTE 55 PROFESSIONAL INFORMATION

Regd owner: Michael John McBride, c/o J Moriarty, Donal (otherwise Donnie), deceased, Book-keeper required, Dublin 2, part-time to respect of property in the county of Tipperary Delany Gannon & Company, Solicitors, late of 29 Canon Troy Court, Chapelizod, Dublin, assist in computerisation and to maintain all County: Tipperary Mohill, County Leitrim; Folio: 1683; Lands: and 32 Derravaragh Road, Terenure, Dublin. accounts functions, excellent salary and condi- Unregistered lands at: Glengaddy Townland of Knockhall and Barony of Would any person having knowledge of a tions, please send CV to Box No 22 Dealing no: T5782/98 Ballintober North; Area: 11a 2r 16p; Co will/codicil of the above named deceased, who Roscommon died on 1 December 1998, please contact Manus Take notice that Paul Ronan of Rocklow, Regd owner: Peter McDermott (deceased), Sweeney & Company, Solicitors, Merchants MISCELLANEOUS Fethard, Co Tipperary, has lodged an application Ballygilda, Roscommon; Folio: 23407; House, Merchants Quay, Dublin 8, tel: 01 for registration on the Freehold Register free from Lands: Prop 1 – Townland of Carrick and 6791186, fax: 01 6791267 encumbrances in respect of the above property. Barony of Athlone South, Prop 2 – Townland Northern Ireland agents for all contentious and The original title documents specified in the of Castlesampson and Barony of Athlone Mulvihill, Brian (otherwise Barney), (other- non-contentious matters. Consultation in Dublin if schedule hereto are stated to have been lost or South; Area: Prop 1 – 10.450 acres and Prop wise Bernard) (otherwise Bernard required. Fee sharing envisaged. Offices in mislaid. The application may be inspected at this 2 – 1.394 acres; Co Roscommon Christopher), deceased, late of Claras, Belfast, Newry and Carrickfergus. Contact registry. Regd owner: Thomas Kelly (deceased); Folio: Newtowncashel, Co Longford. Would any person Norville Connolly, D&E Fisher, Solicitors, 8 The application will be proceeded with unless 6844; Lands: Mardyke and Knockabritta and having knowledge of a will of the above named Trevor Hill, Newry, tel: 080 1693 61616, fax: 080 notice is received in the registry within one calen- Barony of Slievardagh; Co Tipperary deceased, who died on 21 November 1998, please 1693 67712 dar month from the date of publication of this Regd owner: Kevin Maher (deceased); Folio: contact Connellan, Solicitors, Church Street, notice and the original documents of title are in 1696 and 20440; Lands: Grange and Barony Longford, tel: 043 46440 Personal injury claims, family law, criminal law existence. Any such notice should state the of Ikerrin; Co Tipperary and property law in England and Wales. We have grounds on which the documents are held and Regd owner: Grainne Sweetman and Nicholas O’Donoghue, Eileen, deceased, late of 33 specialist departments in each of these areas, and quote the dealing reference above. Sweetman; Folio: 1130F; Lands: Sandyvale Road, Headford Road, Galway. Would offices in London (Wood Green and Camden) and Ballycourcymore and Barony of Ballaghkeen any person having knowledge of a will of the Birmingham. One of our staff is in Ireland for one Sean MacMahon, Examiner of Titles, 19 South; Co Wexford above named deceased, who died on 21 January week in every month. Legal aid available to clients January 1999 Regd owner: Margaret Hester Talbot; Folio: 1999, please contact Mary Scanlon, Baile an that qualify. Contact David Levene & Company, 327L; Lands: Killarney and Barony of Lochaigh, Bally David, Tralee, Co Kerry, tel: 066 Ashley House, 235-239 High Road, Wood Green, Schedule Rathdown west side of Dargle Road, Bray; 9155135 London N22 4HF, England, tel: 0044 181 881 Conveyance dated 1 July 1964 made between Co Wicklow 7777, fax: 0044 181 889 6395, and The McLaren Patrick Joseph Leonard and John Leonard of the Roche, Michael, deceased, late of Building, 35 Dale End, Birmingham B4 7LN, tel: one part and Thomas Ryan of the other part. Christianstown, Newbridge, Co Kildare and 0044 121 212 0000, fax: 0044 121 233 1878 WILLS London. Would any person having knowledge of Landlord and Tenants (Ground) Rents Act, a will of the above named deceased, who died on London solicitors will advise on UK matters and 1967-1984: notice of intention to acquire a fee 22 January 1999, please contact Francis B Taaffe undertake agency work. All areas. Corporate/pri- simple (section 4) Buckley, Fr Michael, deceased, late of the & Company, Solicitors, Edmund Rice Square, vate clients. Ellis & Fairbairn, 26 Old Brompton To: The person or persons for the time being enti- Missionaries of the Sacred Heart, Woodview, 34 Athy, Co Kildare, tel: 0507 38181, fax: 0507 Road, South Kensington, London SW7 3DL, tel: tled to the interest of the Sydenham Army St Mount Merrion, Blackrock, Co Dublin. Would 38459 0044 171 589 0141, fax: 0044 171 225 3935 Leger Whitfield Estate in the premises hereinafter any person having knowledge of a will of the described under the lease hereinafter described. above named deceased, who died on 3 November Agents – England and Wales. We are willing to 1. Description of land to which this notice refers: 1997, please contact Matthew G O’Connell & EMPLOYMENT act as agents for Irish solicitors in civil and crimi- All that and those the piece or plot of ground Company, Solicitors, 17 Belmont Park, nal litigation. Contact: Olliers, Solicitors, situate in the Guard Lane in the Municipal Donnybrook, Dublin 4, tel: 01 2605172 Alderman Downward House, 2/3 The Birtles, Borough of Kilkenny. Solicitor required for practice in County Civic Centre, Wythenshawe, Manchester M22 2. Particulars of applicants lease or tenancy: Hayes, Patrick, deceased, late of Orrery Ville, Tipperary, with at least one year’s post-qualifica- 5RF, tel: 0044 161 437 0527, fax: 0044 161 437 lease dated 11 April 1913 whereby the said Orrery Hill, Blarney Street in the County of City tion experience in general practice: particularly 3225 premises were demised by Sydenham Army of Cork. Would any person having knowledge of conveyancing, probate and taxation work. Reply St Leger Whitfield to Richard Duggan for the a will of the above named deceased, who died on to Box No 20 Northern Ireland solicitors. Will advise and term of 99 years from 25 March 1913 at the 17 June 1996, please contact Michael Powell & undertake NI-related matters. All areas corpo- yearly rent of £3 and subject to the covenants Company, Solicitors, 48 Grand Parade, Cork, tel: Newly-qualified solicitor available for part-time rate/private. Agency or full referral of cases as pre- and conditions therein contained and on the 021 270451, fax: 021 270454 work in North Dublin/South Meath area. Reply to ferred. Consultations in Dublin or elsewhere if lessee’s part to be observed and performed. Box No 21 required. Fee sharing envisaged. Donnelly Neary Kelly, George, deceased, late of Harbour Road, & Donnelly, 1 Downshire Road, Newry, Co Take notice that the applicant, Katesan Limited, Ballinasloe, Co Galway. Would any person hav- Down, tel: 080 1693 64611, fax: 080 1693 67000. having its registered office at Main Street, ing knowledge of a will of the above named Contact KJ Neary Loughrea in the County of Galway, being a per- deceased, who died on 18 July 1997, please con- son entitled under the provisions of section 9 and tact Fair & Murtagh, Solicitors, Ballinasloe, Co DUBLIN SOLICITORS’ Northern Ireland solicitors providing an effi- 10 of the Landlord and Tenant (Ground Rents) Galway, tel: 0905 42210, fax: 0905 42213 PRACTICE OFFERS cient and comprehensive legal service in all con- (No2) Act, 1978, proposes to purchase the fee tentious/non-contentious matters. Dublin-based simple interest in the land described in paragraph McGovern, Thomas, deceased, late of AGENCY WORK consultations and elsewhere. Fee apportionment. 1 above. Sraughan, Blessington, County Wicklow. Would IN NORTHERN ML White, Solicitors, 43-45 Monaghan Street, any person having knowledge of a will dated 21 Newry, County Down, tel: 080 1693 68144, fax: Signed: Patrick Sweeney, Director, Katesan March 1972 of the above named deceased, who IRELAND 080 1693 60966 Limited, Main Street, Loughrea, Co Galway, and died on 1 June 1973, please contact Charles E Florence G MacCarthy & Associates, solicitors Coonan, Solicitor, 55 South Main Street, Naas, * All legal work undertaken Solicitors’ practice required, Dublin area. Three- for the Applicant, Loughrea, Co Galway. Co Kildare, tel: 045 897853, fax: 045 875414 on an agency basis man Dublin solicitors’ firm wish to acquire the 8 February 1999 * All communications to clients practice of a sole practitioner or retiring solicitor. through instructing solicitors Consultancy or other flexible arrangements. Reply to Box No 23 LOST A WILL? * Consultations in Dublin if required U. S. AGENTS: Agency work undertaken TRY THE Contact: Séamus Connolly For sale, practice, Munster area. Reply to Box No Moran & Ryan, Solicitors, 24 for Irish Solicitors in REGISTRY OF WILLS Arran House, litigation, civil, estate SERVICE 35/36 Arran Quay, Dublin 7. Irish Law Reports Monthly 1981-1995 (both and corporate matters; incl). Bound (except 1995). Perfect condition. Tel: (01) 8725622 Would cost over £2,600 from the publisher. Will Alfred E. Smith Fax: (01) 8725404 sell for best offer or first offer of £1,500. Tel: 021 Attorney at Law, 354466 The Lincoln Building, E-mail: [email protected] Tuckey’s House, 60 East 42nd Street, 8, Tuckey Street, or Bank Building, Hill Street CORK. Newry, County Down. TITLE DEEDS Suite 1402, New York, Tel: (0801693) 65311 N. Y. 10017. Tel: +353 21 279225 Fax: (0801693) 62096 Tel. 001 (212) 986-2251 Fax: +353 21 279226 E-mail: [email protected] In the matter of the Registration of Title Act, Fax. 001 (212) 986-2238 Dx No: 2534 Cork Wst 1964 and of the application of Paul Ronan in

56 LAW SOCIETY GAZETTE MARCH 1999