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LAW SOCIETY GAZETTE JUNE 2008 CONTENTS
On the cover LAW SOCIETY Insider trading used to be the golden cow from which executives amassed fortunes at the expense of the market. But surely that’s Gazette just bananas! June 2008 PIC: GETTY IMAGES
Volume 102, number 5 Subscriptions: €57 REGULARS 5 President’s message 7 News Analysis 12 12 News feature: Law Society’s objections to DPP’s ‘reasons’ proposals 14 News feature: you guessed it: more collaborative law!
Comment 16 16 Viewpoint: two opinions, one vote – at least until Lisbon II: the re-run 11 40 People and places 47 Student spotlight 48 Parchment ceremony photographs Book reviews 55 Literature, Judges and the Law; Practice and Procedure in the Superior Courts; Company Law Compliance and Enforcement
Briefing 57 57 Council report 58 Legislation update: 16 April – 20 May 2008 60 Solicitors Disciplinary Tribunal 61 Practice note 16 62 Firstlaw update 64 Eurlegal: public procurement, helicopter gunships? Wow! 68 Professional notices 73 Recruitment advertising
Editor: Mark McDermott. Deputy editor: Dr Garrett O’Boyle. Designer: Nuala Redmond. Editorial secretaries: Catherine Kearney, Valerie Farrell, Laura Wipfler. For professional notice rates, see page 69. Commercial advertising: Seán Ó hOisín, 10 Arran Road, Dublin 9; tel: 01 837 5018, fax: 01 884 4626, mobile: 086 811 7116, email: [email protected]. Printing: Turner’s Printing Company Ltd, Longford. Editorial board: Stuart Gilhooly (chairman), Mark McDermott (secretary), Paula Fallon, Michael Kealey, Mary Keane, Aisling Kelly, Patrick J McGonagle, Ken Murphy, 45 Philip Nolan.
2 www.lawsociety.ie CONTENTS LAW SOCIETY GAZETTE JUNE 2008
Get more at lawsociety.ie PROFESSIONAL NOTICES: send your small advert details, with payment, to: Gazette Office, Blackhall Place, Dublin 7, tel: 01 672 4828, or email: [email protected]. Gazette readers can access back issues of the ALL CHEQUES SHOULD BE MADE PAYABLE TO: LAW SOCIETY OF IRELAND. magazine as far back as Jan/Feb 1997, right up to the current issue at lawsociety.ie. COMMERCIAL ADVERTISING: contact Seán Ó hOisín, 10 Arran Road, Dublin 9, tel: 01 837 5018, fax: 884 4626, mobile: 086 811 7116, email: [email protected] You can also check out: • Current news HAVE YOU MOVED? Members of the profession should send change-of-address • Forthcoming events, including the half-day details to: IT Section, Blackhall Place, Dublin 7, or to: [email protected] FLAC seminar on public interest law in Subscribers to the Gazette should send change-of-address details to: Dublin on 20 June Gazette Office, Blackhall Place, Dublin 7, or to: [email protected] • Employment opportunities • The latest CPD courses HOW TO REACH US: Law Society Gazette, Blackhall Place, Dublin 7. … as well as lots of other useful information Tel: 01 672 4828, fax: 01 672 4877, email: [email protected]
FEATURES COVER STORY: 20 No more monkey business The Fyffes judgment indicates that successful insider- trading claims must show that the insider has information that is not generally available, but, if it were, would be likely to materially affect the price of securities. In the first of two articles, Conor Feeney peels that particular banana
Shock to the system 24 A hundred years ago, Irish tort law on post-traumatic stress disorder was ahead of all other common law jurisdictions, but Michael Boylan asks whether we are now lagging behind
House of the rising sun 28 Part V of the Planning and Development Act 2000 aims to encourage residential integration. But what does it mean in practice? John Gore-Grimes gets down to the bricks and mortar 32
Criminal mind 32 Frank Buttimer has been involved in some of the country’s highest-profile murder cases, describing one trial as “the most extraordinary criminal case I’ve ever been involved in”. Colin Murphy gets on his case
Heigh-ho, heigh-ho... 36 Following last month’s article on overtime, Michael Prendergast considers the 1997 Organisation of Working Time Act and asks whether the legislation was really worker-safety driven – or, in fact, economically motivated
The Law Society of Ireland can accept no responsibility for the accuracy of contributed articles or statements appearing in this magazine, and any views or opinions expressed are not necessarily those of the Law Society’s Council, save where otherwise indicated. No responsibility for loss or distress occasioned to any person acting or refraining from acting as a result of the material in this publication can be accepted by the authors, contributors, editor or publishers. The editor reserves the right to make publishing decisions on any advertisement or editorial article submitted to this magazine, and to refuse publication or to edit any editorial material as seems appropriate to him. Professional legal advice should always be sought in relation to any specific matter. Published at Blackhall Place, Dublin 7, tel: 01 672 4800, fax: 01 672 4877. Email: [email protected] Law Society website: www.lawsociety.ie 36
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Molann an obair an fear
ay 2008 was a proud month for the solicitors’ profession and for the Law Society of Ireland. On 7 May, for the first time in the history of M the state, a solicitor was elected Taoiseach. I know that colleagues throughout the country, of every political persuasion, applaud Brian Cowen on his achievement and wish him well with his important duties. The profession was further honoured by the appointment of Dermot Ahern as Minister for Justice, Equality and Law Reform, and Peter Power as Minister of State at the Department of which is spearheaded by well-known US attorney “Walter Swift Foreign Affairs. Barry Scheck. As colleagues, we wish them well as they discharge Both Walter Swift and Barry Scheck were fulsome was the victim of their duties. in their praise for the work of our colleague, Niamh a miscarriage of Gunn who, while a student here, spent time on a 17 May placement with the Innocence Project and got to work justice brought Given that it was the tenth anniversary of the Calcutta on Walter’s file. Through her continuing efforts, long about by the Run, the organisers were determined that it should be after the placement finished, critical new facts were more successful than ever. They set the ambitious established that led to the exoneration. Barry Scheck gross target of raising €300,000 for the Fr Peter McVerry attributed her success to her Irish brogue and an ability indifference of Trust and GOAL’s orphanages in Calcutta, to bring to charm cooperation out of even the most unlikely the combined receipts generated over the last ten source. I myself suspect it has rather more to do with people in years to €2 million. the tenacity for which the county of Cork is famous. authority to his I am delighted to say that the greatest number ever Amazingly, despite 26 years of illegal detention, of solicitors and their office staff participated. In all, Walter Swift is not a bitter man, as he bravely goes fundamental 1,500 runners/walkers/pram-occupants took part and about rebuilding his life. He has kindly accepted the rights, rights we it looks like the fundraising total will be in the region Society’s invitation to visit Ireland and share his of €340k. Fundraising continues, however, and it is experiences with us, as a reminder of the difference as solicitors are never too late to support these wonderful charities, that committed and conscientious lawyers can make committed to each of which make sure that every euro received is and of the continuing need to be vigilant regarding put to the best possible use. And of course there will miscarriages of justice, whether at home or abroad. uphold” be next year – provisionally, the date has been set for 16 May 2009, so put it in your diary! 23 May Michael Lynn is struck off the Roll of Solicitors by 21 May order of the President of the High Court. Walter Swift from Detroit in the United States, who had spent 26 years in prison for a crime he did not 29 May commit, is exonerated. He, like many others before Niamh Gunn and 58 other highly trained, enthusiastic him, was the victim of a miscarriage of justice brought and principled solicitors received their parchments. about by the gross indifference of people in authority The future looks good. G to his fundamental rights, rights we as solicitors are committed to uphold. His release was brought about James MacGuill through the wonderful work of the Innocence Project, President
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NEWS LAW SOCIETY GAZETTE JUNE 2008 nationwide
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■ DUBLIN PIC: ADRIAN BUTLER, THE LIMERICK LEADER Court areas is at a consultative Well-known District Court stage, with draft proposals practitioner Yvonne Allen has being in line with what was been good enough to let me expected, and the likelihood know of a change in relation to that Mayo will be treated as one the renewal of auctioneers’ district. The Sligo personal licences. A special date has been injury list has just recently fixed for 26 June with a taken place in Castlebar. requirement that the On the social scene, Caroline application be filed by 18 June, Barry is organising a barbecue together with an accountant’s to take place on 18 July in certificate. The hearings will Paddy’s, and a dinner dance take place in Court 52 being arranged by Dermot Richmond. Hewson will take place at Arrangements are well in Mount Falcon on 6 December. place in relation to the so- A visit to the home of the Heineken champions! The Law Society recently called ‘golden oldies’ event for (From l to r): Shaun Elder (president of the Limerick Bar Association), ran a CPD course in those colleagues among us James MacGuill, Julianne Kiely (Limerick Bar Association) and Ken Murphy Claremorris, which is reported before a bar association meeting on 20 May who have fulfilled a half- to have been well received. century of legal practice. This Michael is really a tree- Meath Bar Association, Meanwhile, Caroline Barry is year, the 1958 bunch of hugging, sandal-wearing eco- congratulated Judge Brophy for organising a CPD session in invitees will include Judge warrior! his courtesy and common sense. September on VAT. Timothy H Crowley, Johnny The judge had at all times been Hooper, Judge Gillian Hussey, ■ MIDLANDS fair, he said, and had given the ■ DONEGAL Enda Marren, Franklin Charlie Kelly of the Midland lead when addressing court Brian McMullen and the bar O’Sullivan, Judge Peter Bar Association tells me that a matters that had their basis in association recently organised a Smithwick, Noel Tanham and VAT seminar is scheduled in social problems, and the very successful seminar on Liam Young. The event, to Mullingar for 24 June next, increase in road-traffic offences probate (Paula Fallon), take place in the Four Seasons which has already generated and antisocial behaviour. Law commercial law (Paul Keane), Hotel on 19 June, will be much interest. Society Council member James taxation (Brian Bohan), and hosted by Michael Quinlan The bar association is McCourt thanked Judge transfer of family business. and the DSBA Council. furthermore, and justifiably, Brophy for his many years of Meanwhile, it continues to basking in the afterglow of the service and complimented him ■ CORK be full steam ahead for China, election of one of its Offaly for his directness and frankness. The legal secretary’s course run with Beijing and Shanghai members as Taoiseach! To by the Southern Law being the venues for the DSBA celebrate his achievement, and ■ MAYO Association came to an end, conference in mid-September. to honour one of their own, it is A dinner in honour of Liam with 45 legal secretaries Michael Quinlan reports that hoped to have a special function MacHale (Ballina), to honour successfully completing the the numbers are at a very in the midlands in the near his 50 years in practice, was course, which ran for 23 weeks. healthy level, and rising. future, to which Brian Cowen held in Pontoon. This A reception was held for the And, speaking of Michael, it’s will be invited as guest of coincided also with the annual graduates at the Clarion Hotel not everyone who would take honour. awards, in which Michael on 23 May to celebrate their so well to living cheek-by-jowl (Miko) Browne (Westport) was achievement. The course is run with a TV crew in your home ■ MEATH the popular and worthy first biannually by the association, over several weeks as Michael The retirement of Judge John recipient of the Judge Daniel covering the subjects of and his lovely wife Sarah have Brophy was noted in Shields Perpetual Award for litigation, conveyancing, family done in the making of the eco- Dunshaughlin District Court Mayo-based solicitors (see p41). law and probate. Lectures are series My Family are Wasters! earlier in the month, on the Pat O’Connor advises that delivered by solicitors. G Currently showing on RTÉ occasion of his last sitting, refurbishments of both over six weeks, it’s all in the following 17 years of service as Swinford and Ballina ‘Nationwide’ is compiled by Kevin interest of saving the planet. a judge of the District Court. courthouses are in the pipeline. O’Higgins, principal of the Dublin Deep down, we all know that Liam Keane, on behalf of the The realignment of the District law firm Kevin O’Higgins.
www.lawsociety.ie 7 LAW SOCIETY GAZETTE JUNE 2008 NEWS Legal Practice Irish for solicitors
he old first and second which in effect increases the TIrish examinations will be time the learner is engaged by replaced by the Legal combining traditional teaching Practitioners (Irish Languages) contact time with online Bill 2007, when enacted. resources and tasks. Course manager Maura Butler The abiding strength of the has delegated responsibility for course is that it melts the implementation of this traditional barriers between new legislation in the Law education and technology. Society – initially for trainee Improvements mean that the solicitors taking the Education Centre’s standard Professional Practice Course, Moodle resource now and thereafter for those accommodates a bilingual solicitors who wish to become language interface that registered with the Law incorporates best-practice Society as practitioners as teaching and learning Gaeilge or jurist linguists. In related news, the new Certificate in Legal Irish was launched on outcomes. Adapted core PPC Maura formed a multi-skilled 10 May (l to r): Kevin O’Hara (lecturer), Attracta O’Regan (head of CPD materials are released online on team, which includes Caroline Focus) and participants Judge Carroll Moran, John Dolan, Deirdre a weekly basis using a variety of Thompson, Declan Duggan, Rita Hamilton, Pól Ó Murchu, Alan McCrea Kennedy (IT coordinator for and Áine Sheahan IT tools to facilitate seeing, education), Alison Egan (CPD hearing and speaking as Gaeilge. scheme executive), and Maritta has collaborated on aspects of technologically. Timetable Law Society President James Moran (trainee administrator). the course design, which are restrictions have been MacGuill launched the first A course language instructor specific to the needs of overcome by designing a elementary LPI course on 30 and general translator, Kevin language teachers and which ‘blended learning’ course called April, and it will run until 18 O’Hara, has been engaged. He have been adapted ‘Legal Practice Irish’ (LPI), June.
Diploma programme ’08/09 launched CPD’S NEW ith your Gazette this elements of the corporate legal workshops will be provided for Wmonth you will have structure, to provide an in- specialised IT tuition in RULES received the Diploma depth analysis of more complex, software applications. A session As we enter the second half of Programme Booklet ’08/09, with corporate transactions. on communications and the current annual CPD cycle, details of the diverse range of The diploma will focus also customer service skills will be practitioners should remember diploma and certificate courses on the increasingly provided by The the new rules. There are only offered by the Education indispensable area of corporate Communications Clinic. six months left to complete the Centre for autumn. This governance, setting out the A further innovation for the new CPD scheme requirements includes the launch of two new applicable regulatory and diploma team will be the for 2008, writes James diplomas – a Diploma in legislative framework under the provision of our first online O’Sullivan, chairman of the Corporate Law and Office of the Director of diploma, which will be in the Education Committee. Now an Governance, and a Foundation Corporate Enforcement. area of employment law. In annual requirement, solicitors Diploma in Legal Practice. All addition, the team will also be have to do a mandatory ten diploma courses take place in Motivated staff providing a number of online hours of CPD this year. The the evenings or on Saturday The Foundation Diploma in certificates in the spring of three hours’ management and mornings and run over a period Legal Practice is aimed at legal 2009, including the District professional development of six months, culminating with executives, law clerks, Court Certificate and requirement still remains. an exam. The Diploma in secretaries and those who Certificate in Judicial Review. Finally, as members will be Corporate Law and provide administrative or For full details on all aware, practitioners have been Governance is aimed at secretarial support. The diploma courses, contact a chosen at random over the practitioners who are keen to objective is to provide member of the diploma team or past number of weeks to verify gain an in-depth knowledge of knowledge of procedural access the diploma section on their attendances for 2006/07 corporate transactional work requirements in areas relevant the homepage of the Law – the review is ongoing. and related corporate to support staff, to include Society’s website; email: CPD queries should be governance best practice. The probate, debt-collection and [email protected]; addressed to Alison Egan at 01 course will build upon a basic conveyancing. web: www.lawsociety.ie, tel: 01 672 4802. understanding of the essential In addition, practical 672 4802, fax: 01 672 4992.
8 www.lawsociety.ie NEWS LAW SOCIETY GAZETTE JUNE 2008 Law Society welcomes expulsion of disgraced solicitor from the roll PIC: COLLINS PHOTOS he name of Michael Lynn lending cases. Thas been struck off the Roll In addition, in residential of Solicitors by order of the lending cases, lending President of the High Court, institutions have been much Mr Justice Johnson. less prepared to accept the Reacting to the news on 23 undertakings of solicitors who May, President of the Law are borrowing on their own Society James MacGuill said behalf (not on behalf of that the Society, on behalf of its clients). The Society is at an members, utterly condemned advanced stage in preparations the actions of the former for a regulation to prohibit solicitor. “Mr Lynn has brought solicitors giving undertakings deep disgrace upon himself and to financial institutions where disrepute on his profession the solicitor himself or herself through systematic abuse of the is the borrower. trust placed in him as a “We have taken steps, in solicitor. He has shown he is cooperation with the Irish not fit to be a solicitor and the Bankers’ Federation, to close profession will very much Law Society ‘utterly condemns’ the actions of the former solicitor the gaps that were abused in welcome his expulsion today,” this case,” said Mr MacGuill. Mr MacGuill said. over 4,000 client files. The in court, in relation to the “Ultimately, the introduction of The Society said it was Society wrote to Mr Lynn’s contents of his affidavit, when e-conveyancing, which we pleased that its action to have clients inviting them to transfer he failed to appear. Lynn’s enthusiastically support, will Lynn struck off the roll had their files to other solicitors. current whereabouts are remove a lot of these potential been endorsed by the Where Lynn’s clients have unknown to the Society, areas of abuse. But systems are independent Solicitors sustained loss in consequence although recent media not enough in themselves. By Disciplinary Tribunal and of his dishonesty then, subject speculation has placed him in our actions and deeds, we must ultimately by the President of to the relevant provisions of the Portugal. reassure consumers that the the High Court. Solicitors Acts, they have been Throughout this period, the profession remains one that is entitled to make application for Society has given every trustworthy, independent and €2 million fine grants out of the Society’s assistance it can to the Garda valued in our society”. The Society said it believed that compensation fund. The fund Fraud Investigation Unit, the unprecedented €2 million currently has assets of over €30 which is also investigating Mr fine imposed was commensurate million and insurance of an Lynn. The Society will make with the level of fraud additional €30 million. To no further comment on this to perpetrated by Mr Lynn. The date, €1,010,000 has been paid avoid any risk of prejudicing a SOLICITORS’ Society also thought it very out by the Society to Lynn’s trial in any criminal appropriate that the President clients. The full extent of the prosecution that may be of the High Court ordered claims that may validly be made brought in the future. papers to be sent to the DPP. on the compensation fund in HELPLINE Mr MacGuill went on to say the Lynn case will not be Procedures tightened The Solicitors’ Helpline is that, when concerns about the known for some time. The Society has had numerous available to assist every member nature of Mr Lynn’s activities In October 2007, the Society meetings with the Irish of the profession with any first came to the attention of retained the services of forensic Bankers’ Federation to ensure problem, whether personal or the Law Society in September accountants to investigate the that all possible lessons are professional 2007, the Society had moved financial affairs of Mr Lynn’s learned from the Lynn case quickly. In accordance with its practice and analysed, in depth, and, insofar as possible, that statutory powers and numerous individual what happened in this case obligations to protect the transactions. It reported the cannot happen again. Since the 01 284 8484 interests of clients, the Society progress of its investigations on Lynn case has come to light, THE SERVICE IS COMPLETELY successfully applied to the High an almost weekly basis to the lending institutions have CONFIDENTIAL AND TOTALLY Court to have the bank President of the High Court tightened their procedures INDEPENDENT OF THE LAW SOCIETY accounts of Mr Lynn’s practice and, in December 2007, was considerably on registration of ‘frozen’ and took control of prepared to examine Mr Lynn securities in commercial
www.lawsociety.ie 9 LAW SOCIETY GAZETTE JUNE 2008 NEWS
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10 www.lawsociety.ie NEWS LAW SOCIETY GAZETTE JUNE 2008 First solicitor elected Taoiseach
or the first time in the Fhistory of the state, a solicitor has been elected Taoiseach. Brian Cowen was admitted on the Roll of Solicitors in 1983, subsequently practising in the firm O’Donovan & Cowen in Tullamore, Co Offaly, which continues to proudly bear his name. He could not focus his complete attention on a legal career for long, however, as he was elected to the Dáil in 1984 in a by-election following the untimely death of his father, Ber Cowen. He has continued to represent the voters of Laois-Offaly – a five-seat constituency in which no less than three of the TDs are solicitors – since then. In the May 2007 general election, he recorded the highest vote for An Taoiseach, Brian Cowen any candidate in the country, with a whopping 19,102 first office from the President of Minister of State in the preferences. Ireland, the new Taoiseach Department of Foreign Affairs. Within hours of Cowen’s announced a number of changes Peter Power qualified as a election as Taoiseach, Law in his cabinet. One of these was solicitor in 1990 and practised Society President James the appointment of the former in Limerick in the firm Holmes MacGuill wrote to him: “It is Minister for Foreign Affairs, O’Malley Sexton. my very great honour and Dermot Ahern, as Minister for The Society has also written privilege, on behalf of the Justice, Equality and Law to Ministers Dermot Ahern and solicitors’ profession, to Reform. Peter Power to congratulate congratulate you on your Dermot Ahern qualified as a them and wish them well in election as Taoiseach today. As solicitor in 1976 and practised their new responsibilities. citizens, we wish you every in Dundalk in the firm now success and good fortune in known as Woods Ahern Mullen discharging your onerous until his first appointment as a Dermot Ahern, Minister for responsibilities. As colleagues, minister in 1997. Justice, Equality and Law Reform CLIENT we take a particular pride in Dermot Ahern is by no SERVICE your achievements to date and means the first solicitor to be wish you well in the future.” appointed as Minister for AWARD FOR The president’s letter Justice. Among his predecessors BCM HW continued: “Is abhár bróid é were, in the 1970s, Des dúinne gur aturnae atá tofa mar O’Malley and Paddy Cooney. In BCM Hanby Wallace has Thaoiseach. Sa bhreis ar sin, is the mid 1990s, Mervyn Taylor been named ‘Client Service cúis áthais í do sheasamh láidir ar served as Minister for Equality Law Firm of the Year 2008 son na Gaeilge, anois go háirithe and Law Reform and, from – Ireland’ by legal publish- agus úsáid na Gaeilge sa chóras dlí 1997 to 2002, the Minister for ers Chambers & Partners. faoi chaibidil. Beidh muid ag súil Justice, Equality and Law The announcement was le comhoibriú a dhéanamh leat sa Reform was the now Ceann made in Barcelona on 12 réimse seo, agus réimsí eile, amach Comhairle, John O’Donoghue. May. The award was made anseo.” On the nomination of the following interviews with the clients of law firms. On his return to the Dáil Taoiseach, the government has Peter Power, Minister of State in following receipt of his seal of also appointed Peter Power as the Department of Foreign Affairs
www.lawsociety.ie 11 LAW SOCIETY GAZETTE JUNE 2008 ANALYSIS Society opposes sea change The Law Society has expressed deep reservations about the proposal that the DPP might consider giving reasons for decisions to prosecute or not. Here are those reservations
n January, the Director of suspects in ongoing criminal IPublic Prosecutions sought investigations. views on a discussion paper in “The DPP must be able to relation to the giving of reasons retain total objectivity and be when a decision is made not to able to make unpopular prosecute or to withdraw a decisions, either to prosecute or prosecution. not prosecute, without having Responding to the initiative, to provide reasons, no doubt a the Law Society – through its first step to having to justify Criminal Law Committee – those reasons,” the Society says. made a submission expressing its deep reservations about the If so, should reasons be given proposal that the DPP might, to only those with a direct in future, consider giving interest, the victims of crime reasons for his decisions. or their relations? The Society acknowledges “In most cases, An Garda that cases can arise where a Síochána will liaise with the decision – usually not to victim/family. Experience prosecute – may be suggests that most controversial, and can, on victims/families are kept occasion, be surprising. Indeed, satisfactorily apprised on the in a contemporary framework ongoing investigation,” the of openness, the Society submission says. recognises that the giving of “As a consequence, it is, in reasons in every case would be the experience of the solicitors the ideal. “However, the DPP, who have contributed to the by contrast, occupies a highly- Society’s submission, a specialised and sensitive relatively rare event when a position and more subtle decision to prosecute (or not) considerations must apply,” it comes as a surprise to the says. victim/family.” The Society has taken care Director of Public Prosecutions James Hamilton The Society reiterates the to point out that much of the view that the office of the DPP ‘public interest’ in matters the specific questions raised by to give reasons, such reasons enjoys full public confidence, relating to criminal justice the DPP in the discussion paper. would have to be focused and and it does not believe that the relate “not to justifiable public direct, as banalities would serve relatively limited category of interest in the operation of the Should the current policy be no-one – neither the victim, cases in which the director criminal justice system itself, changed? family of the victim, nor the directs no prosecution – a but is directed at prurient, all- The Law Society believes that proposed accused,” says the family having apparently too-frequently media-driven the current policy should not be Society. “Reasons such as expected one – would justify issues relating to individual changed because of the ‘insufficient evidence’ might changing an established policy. cases. It is of course in relation potential effect it would have on label proposed accused persons to those individual cases that the concept of the presumption as criminals, or such Should reasons also be given this submission is directed”, the of innocence. explanations as ‘a lost exhibit’, to the public at large? Society states. In cases where a decision not ‘death or unavailability of a Since the Society has a In 1983, the DPP issued a to prosecute is made – and the witness’ might easily imply principled position that not even press statement in relation to reasons for not so doing are guilt, with no venue or forum the victim/family should be his policy of not giving reasons. made known, even in limited available to the proposed given reasons, it follows that The Society – notwithstanding circumstances – it is all too easy accused to ventilate the issues. reasons should not be given to changes in other jurisdictions – for questions to be posed as to This is particularly relevant in the public at large. “This is submits that the then-stated the integrity of the reputation today’s changed circumstances, particularly so in any case where policy still holds good. of the proposed accused. where it is now not uncommon a suspect is either named or It goes on to directly address “If the DPP were permitted for newspapers to name identifiable. The reputation of
12 www.lawsociety.ie ANALYSIS LAW SOCIETY GAZETTE JUNE 2008 in DPP’s ‘reasons’ policy
any suspect – and this is linked reasons should be given. aggravated sexual assault, position that communications closely to the presumption of “However, for the record, the sexual assault, and so on. Then “in good faith and without innocence, which is a Society submits that the giving there are additional cases in malice, from the Director of cornerstone of the Irish system of detailed reasons, as opposed this category, such as incest- Public Prosecutions, should be of criminal justice and is a to general, presents a greater type cases or ‘statutory rape’, privileged, and it may be constitutional entitlement – is all risk of harm to any and all which are also extremely necessary to legislate for this too easily put at hazard by aspects as previously outlined.” serious and which, presumably, eventuality, should the DPP publicity. would be subsumed within the decide to amend his policy”. “A decision by the DPP Should they be given in all policy of giving reasons in rape not to prosecute is usually final. cases, or only in certain cases.” How should cases where a Any reasons that might be given categories of serious cases? The Society’s submission reason cannot be given that might suggest that there is If so, which? states that it is difficult, in without injustice be dealt some, but insufficient, evidence The general position of the theory, to see a justification for with? against a suspect, threatens those Society is that the current giving reasons in particular “It has been noted that the constitutional cornerstones policy is not categories of relationship between the outlined above.” only sound, but cases, albeit victim/family and An Garda And there are other aspects is in general a serious ones, Síochána is a continuing one, that must be considered: “The more prudent “A decision by and not to and in cases where there has director has identified other option. “Once extend that been a perceived injustice (by legal issues arising in relation to the principle of the DPP not to policy to all virtue, that is, of not this discussion, which not only having to give prosecute is cases. prosecuting), it should be include the protection of the reasons is possible for the gardaí to reputation of a suspect, but also conceded, it usually final. Any How can reassure concerned reasons be the protection of the reputation becomes very reasons that complainants that the evidence of a witness. The DPP might, difficult to given without in the case was assessed by the for example, if reasons were to impose practical, might be given, encroaching highest authority, reassessed at on the be given in specific cases, feel not to mention that might deputy director level if need constrained to suggest that a theoretical, constitutional be, and that a decision has particular witness was, for one limits. Suppose, suggest that rights to one’s been taken that a prosecution good name reason or another, thought to be for example, that there is some, cannot be brought to meet the unreliable. Witnesses are also the director opts and the required legal onus and citizens, and are equally entitled to give reasons but insufficient, presumption of standard.” Although the innocence? to the protection of their in cases of evidence against Society believes that reasons reputations for (different) murder and This is the should not be given, “if it were constitutional reasons. rape. How is it a suspect, ultimate to be decided that they should “The director has also possible to limit threatens cornerstone of be, then An Garda Síochána identified the possibility of ‘murder’ the Society’s would be the most appropriate future developments in a case otherwise than constitutional objections, body to pass on reasons to being prejudiced by the by reference to cornerstones” based as it is on complainants”. publication of sensitive material, all apparent pure In the discussion paper, the and the protection of police homicides/ constitutional DPP referred to the specific sources. These are, in the view unlawful considerations. context of a nolle prosequi. The of the Society, entirely legitimate killings? What is “The Society director canvassed the considerations and, quite self- the difference, in principle, can imagine no means whereby possibility of an individual’s evidently, the greater the extent between acts of violence that reasons might be given without reputation being sullied if a to which information comes into kill a victim and those that offending these principles, and nolle is entered and no the public domain, whether by maim? If it is decided to admit in that regard the statement of explanation is given. giving reasons or otherwise, the serious assaults to the the DPP in 1983 is entirely The Society is of the greater the potential threat that category, what constitutes apposite.” view that, while this does comes into being in respect of ‘serious’? represent a slightly more those considerations as well.” “Likewise, it is not only Should the communication of complex situation, nonetheless, theoretically, but practically, reasons attract legal the principle remains the If reasons are given, should difficult to limit the category privilege? same and, in its view, the they be general or detailed? of cases of ‘rape’, as many The Society is opposed to the giving of reasons is a sea The Society’s position is that assaults that allege rape also giving of reasons, generally. change in policy to which it is neither general nor detailed constitute allegations of The Society adopts the opposed. G
www.lawsociety.ie 13 LAW SOCIETY GAZETTE JUNE 2008 ANALYSIS Missionary zeal at At the second European Collaborative Law Conference, in Cork, Colin Murphy encountered the evangelists of this young – yet significant – legal model
had not thought to live PICS: PROVISION day in court with a winner and a family-oriented solutions”, she “Iand be moved by the loser was never designed said. Such was its growth words of an attorney general,” effectively to address the internationally and in Ireland said poet Theo Dorgan, to profound human needs and that it could become the laughter. Dorgan followed vulnerabilities at the heart of mainstream form of resolution of Attorney General Paul family relationships”. family-law disputes within a Gallagher, who were both guest Collaborative practice, she decade, she suggested. speakers at the second European said, promoted “a culture of Collaborative Law Conference, cooperation and openness” that The true function of a lawyer held on the May bank holiday would lead to “less stress and The practice of collaborative law weekend at the Sheraton, Fota more mutually respectful and was first devised by Minneapolis Island, Cork. consensual decisions”. lawyer Stu Webb in the early Though Dorgan went on to “It does so in a controlled and 1990s. Addressing the talk of poetry, and the Attorney professional environment at conference, he quoted Mahatma General had talked of law, there some remove from the otherwise Ghandi as having demonstrated a was, surprisingly, much in Patricia Mallon, of the Association tactical defensiveness or precedent for the collaborative of Collaborative Practitioners common between them. Both aggression that can characterise model. In Ghandi’s words: “I spoke of the dignity of humanity, the negotiating environment of realised that the true function of of the precedence of that dignity “The courts are needed to conventional adversarial systems. a lawyer is to unite parties riven over man-made legal systems, resolve those cases that cannot be “An ever-growing cohort of asunder. The lesson was so and of the trauma that results resolved in any other way, but it solicitors, trained as collaborative indelibly burnt into me that that from marital breakdown. seems to me that, long before practitioners with the backing of a large part of my time during “If law is something that one should ever get to court, one the Legal Aid Board, are set to the 20 years of my practice as a grows from human experience, needs a mechanism whereby help us consciously shift our legal lawyer was occupied in bringing humanity should not be twisted people have an opportunity to culture into a new era.” about private compromises of into law. Rather, human resolve their disputes in a way According to solicitor Patricia hundreds of cases. I lost nothing experience should dictate what that preserves their dignity and Mallon, president of the thereby – not even money, law should be doing,” Paul in a way that maximises the Association of Collaborative certainly not my soul.” Gallagher had said. welfare of their children.” Practitioners in Ireland, Webb, who neither looked nor “Advocacy, and the adversarial Collaborative law, he said, collaborative law is the fastest spoke like a conventional lawyer system, undoubtedly has its place involved “looking at winners and growing legal specialisation – he was casually dressed, with a in our legal system, but we must losers from a different internationally, with 400 Irish gentle, pottering speaking style – mature in our ideas of what law perspective”. lawyers already trained. The brought a dose of American ‘new is about. Human experience “Collaborative law enables adversarial model of dispute age’ psychology and spirituality teaches us that, in the area of lawyers to see things beyond the resolution, which could have to his address. He cited Eckhart family law, we have a crying need immediate demands of a client “sometimes terrible and Tolle’s The Power of Now and for other forms of dispute who is in a very difficult and very destructive effect” on families, spoke of encouraging people to resolution.” charged situation, and to say raised “serious and “get into a serenity space”. The collaborative model, there is a solution that will fulfil uncomfortable questions for Victoria Smith, a practitioner which seeks to achieve dispute your needs, and yet fulfil lawyers”, she said, many of and academic in Toronto, said resolution without recourse to something that is just as whom were more comfortable people needed to think in terms court, could help offer that important, and that is the needs with the traditional system in of a new metaphor for dispute alternative, he suggested. of the dignity of the people who which “distributive bargaining is resolution. The prevailing Family-law situations are involved in the dispute.” king and where victory is the sole metaphor, she said, was ‘war’. contained “difficulties that do not Collaborative law, he said, “is mission”. She suggested, instead, that exist in other forms of litigation”. and will be of even greater Collaborative practice collaborative practice be thought They were “completely bound benefit in this jurisdiction”. offered the possibility that of as ‘a dance’. up with the dignity of the His concerns were echoed considerations of law could be The Irish public, and person” and “with the welfare closely by President Mary joined with considerations of particularly professional and dignity of the children”, he McAleese, who observed that equity, justice and respect, and communities, are typically less said. “the old adversarial model of a could offer “client-centred, comfortable than Americans with
14 www.lawsociety.ie ANALYSIS LAW SOCIETY GAZETTE JUNE 2008 Cork conference
this kind of lyricism being “You have a dispute that has, applied to the professional in many ways, the dynamics of a context. Patricia Mallon was keen divorce. It’s not only a business: to stress that collaborative law this is people’s lives and their was not “some esoteric, touchy- family. feely fad … It is a way of dispute “One of the key ingredients resolution that can be accurately we look for, to identify whether measured in very functional the collaborative model is terms – out-turns and value for suitable for resolving a business clients, speed of delivery, cost dispute, is whether there is the effectiveness”, she said. possibility that the disputants may at some point down the Hard analysis road want to maintain a Yet even those speakers who relationship – as a contractor or indulged in what Irish people subcontractor, as people in might think was ‘touchy-feely’ related synergistic industries, or rhetoric combined this with hard as family members.” analysis of the family-law There was an evangelical context. element to the conference as a Victoria Smith said she wasn’t Minister for Justice Brian Lenihan, with Helen Collins, Rachel Murphy whole that would have surprised suggesting “that lawyers have a and Audrey Byrne of the Association of Collaborative Practitioners at disinterested observers. Although the conference ‘litigation lobotomy’ … We’re the North American advocates not letting go of our primary were typically quicker to talk of duty to our client. We’re there to practice and, accordingly, coaches’ to the separating couple, ‘paradigm shifts’ and ‘changing represent our clients’ interests – designed her presentation to and a child specialist is tasked the world’, it was clear that the as broad as we now understand provoke her mostly lawyer with bringing the child’s opinions Irish Association of Collaborative them to be”. audience into a different mindset. to the table. Practitioners (ACP) is actively Pauline Tesler, a Californian “Lawyers love details, but “Once the lawyers come out pushing the discipline. There was lawyer who has trained all of the we’ve no time for details,” she of the template of litigation, it a proselytising energy about the Irish practitioners, provided a said. So she used metaphors – can be overwhelming for them,” event, and the ACP committee solid social-science context for “which hold so much more she said. “They worry, what to was rallied by the strong this understanding of the clients’ information” – to explain her do with all this emotion?” endorsements from the President interests. ‘teamwork’ approach to The interdisciplinary approach and the Attorney General. Traditional dispute resolution collaborative practice. to collaborative practice, involv- Collaborative practice “could was based on an 18th century The traditional, adversarial ing mental health professionals in become the mainstream form of idea of man as ‘homo- model of litigation was “doubles the process, mitigated these resolution of family law disputes economicus’, she said – the tennis”, she said: both sides difficulties, she said. within a decade”, suggested rational individualist of Adam (lawyer and client, or perhaps Patricia Mallon. Smith’s economic theory, who barrister and solicitor) slugging Evangelical element That seemed like hyperbole could be relied upon to engage in the issues back and forth across A pair of commercial lawyers when stated in the press release, behaviour designed exclusively to the net. came at collaborative practice but when Paul Gallagher said maximise his own economic gain. Collaborative practice, instead, from the opposite angle. Paul there was a “crying need for “We are taught to see our was “hurling” – but all the parties Faxon and Robert Lopich other forms of dispute clients as isolated, self-contained were together on one team, and advocated the use of the practice resolution” in family law – and bundles of legal rights and the enemy – the other team – in business disputes, particularly that collaborative practice might entitlements,” she said. Instead, consisted of the issues that involving small and medium- provide that – Mallon’s claim collaborative practice represented threatened the family, be they sized enterprises. seemed more realistic than a move “towards addressing the concrete, such as financial issues “Think of a family business of idealistic. G entire spectrum of human needs and geographical dislocation, or several generations in Ireland,” that arise in a divorce”. emotional, such as fear. said Paul Faxon. “Father founded For more information on the Susan Gamache, a Gamache advocated using it, he has since passed away, and collaborative law process, see the psychologist from Vancouver, mental-health professionals in the siblings are in a major June 2005 Gazette (p24), available sought to emphasise the mental- the collaborative process. In this dispute over control of the at www.lawsociety.ie/ health aspect of collaborative model, counsellors act as ‘divorce business. Gazette/june05.pdf.
www.lawsociety.ie 15 LAW SOCIETY GAZETTE JUNE 2008 COMMENT
In favour of the Lisbon Treaty Head of EU, Competition and Regulatory law at Eugene F Collins, David Geary argues that the treaty seeks to make the EU more efficient and proactive, while retaining its intergovernmental nature and protecting the sovereignty of its member states he Lisbon Treaty will greatly one of the hallmarks of the EU Timprove the European system and, in future, Irish Union. It introduces reforms to citizens will be able to hold their allow the EU to function more TDs to account for EU effectively and will also allow legislation that affects them. the EU to be a more effective Under the Nice Treaty, it was actor in an increasingly agreed to reduce the number of globalised world. European commissioners to As with all European treaties, make the commission more Lisbon is the result of years of efficient. Lisbon provides that, negotiation and compromise by from 2014, only two-thirds of the 27 member states. Naturally, member states will have the not every element will be to right to nominate a everyone’s liking but, viewed as a commissioner at any one time – whole, it is a very good treaty, this right to be rotated equally. and its skilful negotiation by The EU will have its own will better reflect the number of Ireland won a significant Ireland is a credit to our legal personality, which will citizens resident in each member concession in securing that this politicians and civil servants. enable it to conclude state. The new system will also applies to the large member Lisbon contains many of the international agreements and require a double majority of the states, such as Germany and reforms identified in the join international organisations, member states and population of Britain, who originally had the Constitutional Treaty. This should similar to the current status of the EU to adopt a provision. right to nominate two be no surprise: after all, these the EC, and it is specifically The use of QMV is also commissioners. A citizens’ reforms are necessary. However, foreseen that the EU will sign extended to some new areas initiative procedure will also Lisbon is different in a number of the European Convention on (which mostly concern ‘freedom, allow EU citizens to directly significant respects. In particular, Human Rights. security and justice’). However, petition the European it amends rather than replaces Ireland retains its veto in the key Commission for the first time. the current EC and EU treaties, Democracy enhanced areas of taxation, foreign direct The European Council, and the concept of Lisbon significantly enhances investment, defence and social which gives political direction to constitutionalism (to which democracy in the EU. The security. the EU, will be formalised as an many French and Dutch voters European Parliament is given In practice, the council EU institution, and this will objected) has been dropped. equal status to the Council of operates on the basis of ensure better coherence and Therefore, from a legal Ministers in legislative compromise and consensus and continuity of policymaking. As perspective, Lisbon maintains the procedures, as the ‘co-decision’ the Department of Foreign with all institutions, it will have status quo as regards the position legislative procedure will become Affairs recently confirmed that it a permanent president (the of the European treaties and the ordinary legislative could not identify any instance position currently rotates legislation vis-à-vis national procedure. This marks a sea where Ireland used a veto in the between member states every six constitutional law. change for the European past 25 years. months) whose role will include In terms of the structure of Parliament, which originally was The role of national chairing meetings of the the EU, the treaty drops the little more than a talking shop parliaments in overseeing the European Council and confusing distinction between with very few powers. The work of the EU is also enhanced, representing the EU abroad on the European Union and the parliament’s powers in relation as they gain additional time to certain matters. European Community and, in to the budget and workings of scrutinise draft EU legislation future, just one entity – the the EU are also enhanced. and a right to draw concerns Policy changes European Union – will exist. As Lisbon also improves about proposals to the European An important feature of Lisbon a result, the current EC Treaty democracy in the Council of Commission. The increased is that it identifies the policy will be renamed the Treaty on the Ministers, as a new qualified involvement of national areas over which the EU has Functioning of the EU. majority voting (QMV) system parliaments may well become CONTD ON PAGE 18
16 www.lawsociety.ie COMMENT LAW SOCIETY GAZETTE JUNE 2008 viewpoint Against the Lisbon Treaty Expert witness on foreign and security policy in the landmark Crotty case, Joe Noonan argues that, instead of organising relations between member states, the Lisbon Treaty focuses on asserting the EU’s own interests
he Treaty of Lisbon, if ratified between their peoples: “The Tby all member states, will union shall be founded on the transform the legal structure and European Communities, operation of the EU. At present, supplemented by the policies there are two bodies: the and forms of cooperation European Community and the established by this treaty. Its European Union. After Lisbon, task shall be to organise, in a only one body will remain. Lisbon manner demonstrating consolidates and amends the consistency and solidarity, existing treaties – we will be left relations between the member with two linked treaties, the states and between their Treaty on European Union (TEU) peoples” (article 1, TEU pre- and the Treaty on the Functioning Lisbon). of the Union. These tasks render the Lisbon contains over 90% of present European Community the Treaty establishing a They have simply been designed European Community and the and European Union the Constitution for Europe, rejected to enable certain heads of reconstruction of the European servants of the member states by voters in France and the government to sell to their Union as a new single body and of their citizens. This will Netherlands in 2005. Following people the idea of ratification by with its own legal identity change under Lisbon, which further negotiations, the Lisbon parliamentary action rather than separate from its member removes these tasks and Treaty emerged in December by referendum” (Dr Garret states. Lisbon will change the provides no equivalent 2007. None of the member FitzGerald, The Irish Times, 30 legal relationship between this replacement tasks. Lisbon states, except Ireland, now seek June 2007). new union and the member abolishes the European approval for ratification by Given the implications of states. Some changes have Community, folding its referendum. This has attracted Lisbon for our legal landscape, the attracted public interest, such operations into the new union. some comment. lack of public debate among Irish as the reduced number of Instead of organising relations “The most striking change lawyers is remarkable. In this commissioners, changes in between member states and [between the Lisbon Treaty and article, it is possible only to qualified majority voting, and between their peoples, the new the Constitution Treaty] is perhaps sketch some of the proposed the removal of various national union’s aims and objectives will that, in order to enable some changes. Nothing is a substitute vetoes. Of particular focus on identifying and governments to reassure their for reading the treaty text. On its constitutional significance in asserting the union’s own electorates that the changes will own, it is virtually impenetrable. Ireland, however, will be the interests and the “well-being of have no constitutional Fortunately, an excellent changes to the objectives of the its peoples” (article 3, TEU implications, the idea of a new document showing the effect of union and its increased scope. post-Lisbon). and simpler treaty containing all the Lisbon changes on the existing At present, the stated tasks The aims and objectives of the provisions governing the treaties has been compiled by of the European Community the new union are elaborated in union has now been dropped in Peadar Ó Broin (google ‘Peadar focus on the promotion of that article 3. This should be favour of a huge series of O Broin annotated treaties’). The economic development, social read in full, as it is too long to individual amendments to two changes are colour coded, with progress, and economic and reproduce here. Article 3 existing treaties. Virtual new text shown in yellow or blue. social cohesion and solidarity reflects the fact that the new incomprehensibility has thus Deleted text remains, struck among member states (article union will have more scope replaced simplicity as the key through in red. 2, Treaty Establishing the than the existing bodies. For approach to EU reform. As for European Community). The example, Lisbon gives the union the changes now proposed to be Scope of the union stated task of the present greater competence in the made to the constitutional treaty, The Lisbon Treaty is an European Union is the justice and home affairs area. most are presentational changes important legal document. It organisation of relations Ireland, along with Britain, has that have no practical effect. proposes the abolition of the between the member states and CONTD ON PAGE 19
www.lawsociety.ie 17 LAW SOCIETY GAZETTE JUNE 2008 COMMENT
CONTD FROM PAGE 16 impact of these policies. the neutral position of countries Lisbon, any future changes will competence to act, and it In addition, the security and such as Ireland and Austria, continue to require ratification confirms that the EU is not defence policy, introduced by which became permanently by member states in accordance authorised to act beyond the the Maastricht Treaty, will be neutral following World War II. with their constitutional competences conferred on it by brought more clearly into the The Irish Constitution also requirements, which may member states. EU framework, but will remain prohibits participation in a require a referendum in Ireland Under Lisbon, ‘freedom, subject to special decision- common defence. in accordance with the Crotty security and justice’ will be making arrangements based on The treaty also accords the judgment. subject to the ordinary intergovernmental cooperation. EU Charter of Fundamental The EU is constantly legislative procedure of the EU. Under Rights the same developing and improving and This will allow the EU to better Lisbon, national legal value as the Lisbon Treaty is the next step tackle the trans-border crime security “There is no the treaties, in this process. Many of the that has emerged since the remains the obligation to meaning that arguments against Lisbon are internal barriers in the EU were responsibility of courts in the the same arguments made by removed. Ireland has chosen to member states, increase military EU will be the same people who oppose opt out of the legislative although the spending or take empowered to every referendum on Europe, procedures in this area for an aspiration of a give effect to and developments such as the initial three years, but intends to common part in military the various euro, the single market and opt in whenever possible. defence is cooperation” workers’ rights enlargement. Lisbon enhances the EU’s strengthened. provided by the The reality is that the EU ability to act internationally. There is no charter. Public has been good for Ireland, Given the EU’s inadequate obligation to increase military services (‘services of general Europe and the wider world. It response to crises such as spending or take part in military interest’) also remain a matter is in need of reform, and the Bosnia and the reality of cooperation. Lisbon clarifies the for member states. Lisbon Treaty strikes the right globalisation, this is urgently missions the EU may undertake, Significantly, Lisbon gives the balance between making the required. Lisbon develops such as peacekeeping, conflict EU a specific mandate to EU more efficient and cooperation on ‘external prevention and humanitarian combat climate change. This proactive, while retaining its action’, although decisions in assistance, and Ireland can veto will allow the EU to continue intergovernmental nature and this field will still require operations it does not believe to take the lead globally in protecting the sovereignty of its unanimity by member states. comply with the EU’s values. addressing this crucial issue. member states. It deserves our The new post of High Ireland’s neutrality is also support. G Representative for Foreign protected, as Lisbon confirms Future amendments Affairs and Security Policy will that the security and defence An important legal point that David Geary is head of EU, increase the coherence between policy “shall not prejudice the has arisen in the debate on Competition and Regulatory law the different strands of EU specific character of the security Lisbon concerns future at Eugene F Collins and sits on policies that have an external and defence policy of certain amendments to the treaties. It the EU and International Affairs element and the combined member states” – a reference to is important to note that, under Committee of the Law Society.
18 www.lawsociety.ie COMMENT LAW SOCIETY GAZETTE JUNE 2008
CONTD FROM PAGE 17 same legal value as the significance of these changes: where operational action by the opted out of this part of the treaties”. The guide to the “The new treaty will turn the union is deemed to be treaty, but will review the opt- treaty issued through the European Union into a full required”. A citizen would be out in three years. If Lisbon is Government Publications external political actor by unlikely to have understood ratified by Ireland, despite their Office by the National Forum giving the union legal article 14 as providing for the initial opt-out, the government on Europe says that the treaty personality … It will allow the establishment of the agency, will have authority to opt in to status conferred on the charter emergence of a true common but this became the purported these areas if and when it sees fit will “significantly increase the European defence. It will treaty authority for the agency in the future. (See the former jurisdiction” of the European introduce a mutual defence in 2004. Minister for Justice’s statement Court of Justice. clause and a solidarity clause” Lisbon will oblige member on justice matters relating to the The practical consequences (4 December 2007, speaking at states, for the first time, to Lisbon Treaty, made at the Law for human rights law in Ireland the European Parliament). “progressively improve” their Society’s annual conference and are unclear. Gerard Hogan SC military capabilities. The reported in last month’s Gazette, suggests that the charter could Military/security commitments agency will monitor whether p15, where Minister Brian amount to “the most profound Among the new commitments countries are making the Lenihan stated: “We have change” in relation to judicial are article 28A.7 of the TEU necessary improvements. lodged a declaration making review and the protection of (post-Lisbon), which is a mutual Lisbon weakens the current clear our intention to participate fundamental rights since the defence clause obliging all limitation on EU military to the maximum extent possible adoption of the Constitution member states to come to the action, which in general terms on justice cooperation and (The Irish Times, 24 April 2008, aid of any member state that is confines such actions to justice proposals”). “Charter could the victim of humanitarian or peacekeeping eclipse Supreme armed operations. Lisbon will give the Citizenship Court”). “Lisbon will oblige aggression in union scope to deploy military Under Lisbon, we are no longer its territory. force for such purposes, at such referred to as “the peoples of Ireland and the member states, for This resembles locations and in such the member states” – instead, wider world the first time, to the defence circumstances as it sees fit. we are referred to for the first The freedom to pact in article There is no obligation at time as “its peoples”, that is, the manage ‘progressively V of the NATO present on the EU to seek UN peoples of the new union. relations with improve’ their Treaty. In the sanction before deploying EU Similarly, post-Lisbon, the union other countries NATO pact – forces outside the union. This will refer to us as “its citizens” is a hallmark of military capabilities” as in the new will not change. – a subtle change from present statehood. That Lisbon defence Law is ultimately about references to us as citizens of was at the heart clause – each power and how it is to be member states. EU citizenship of the Crotty judgment. The country reserves a discretion as exercised. The Lisbon as a concept came into Supreme Court found that the to the precise manner in which referendum is about the existence with Maastricht, which Single European Act would be it may respond. Some have redistribution of power provided that EU citizenship unconstitutional without a argued that the existence of a between Irish citizens and the “shall complement national referendum because it would reservation of this kind in Irish government, between big citizenship and not replace it”. commit the government to Lisbon allows Ireland to deny and small states in the EU, and This changes with Lisbon, which endeavour to coordinate that it is a defence pact. By that between member states and the says that EU citizenship shall foreign policy with other logic, NATO itself would not EU. Lisbon will reshape the be “additional” to national member states. Even though be a defence pact either. European Union with citizenship but shall not replace the commitments were Lisbon will also give proper implications that will last for a it. The full implications of this expressed in soft language, the treaty status to the European long time. We cannot afford to change for Irish citizens remain court found that, as a matter of Defence Agency. The agency underestimate the significance to be seen. international law, these was established by the EU of this referendum. G Similarly, members of the commitments would bind the heads in 2004. Ireland was European Parliament, currently government. Lisbon, similarly, is among the first to join when Joe Noonan is a partner in described as “representatives of a treaty written in the language the government committed us Noonan Linehan Carroll Coffey, the peoples of the member of international law. It is to agency membership, which Solicitors, Cork. He was an expert states brought together in the important to remember this includes financial witness on foreign and security community”, will become when considering the Lisbon commitments. The agency has policy in the landmark Crotty “representatives of the union’s articles, which impose new a range of military and security case (1987), in which the Supreme citizens” in the new union. commitments on Ireland in the goals that are not confined to Court decided that the Single areas of EU common foreign the territory of the EU. Article European Act should be put to Charter of Fundamental Rights and security policy (CFSP), 14 of the current TEU, which the Irish people by way of Article 6 of the new TEU including common security and relates to CFSP, allows the referendum. The Crotty makes reference to a Charter of defence policy (CSDP). European Council to adopt judgment is the reason Ireland is Fundamental Rights of the EU, Commission President “joint actions which shall holding a referendum on the which it says “shall have the Barroso has acknowledged the address specific situations Lisbon Treaty on 12 June.
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Successful insider-trading claims must show that the insider has information that is not generally available, but, if it were, would be likely to materially affect the price of securities. Following last year’s Fyffes judgment, Conor Feeney peels that banana
he much-publicised case of Fyffes v DCC involved the first civil MAIN POINTS claim of insider dealing in this jurisdiction. Ironically, the superior • Insider trading and courts’ first opportunity to review the legislation on insider dealing manipulation of came at a time when that legislation was being replaced by a new price-sensitive regime. The Fyffes claim was brought under section 108(1) of part V information T of the Companies Act 1990. Part V has been repealed by section 31 of the • Measuring price Investment Funds, Companies and Miscellaneous Provisions Act 2005 and, pursuant sensitivity in to section 30 of that act, the Market Abuse (Directive 2003/6/EC) Regulations insider dealing 2005 have replaced the old regime with the harmonised EU regime on market claims abuse, including insider dealing. • High Court and Supreme Court The banana skin approaches The appeal from the High Court to the Supreme Court in Fyffes concerned the question of whether the information that was the subject of the claim of insider dealing was price sensitive. The test for price sensitivity of information in both the 1990 act and the Market Abuse Regulations is based on a statutory hypothesis. For an application to be successful under section 108(1), the claimant is required to show that the insider possesses “information that is not generally available, but, if it were, would be likely materially to affect the price of those securities”. Similarly, regulation 5(1) requires proof of “inside information”, which is defined in regulation 2 as “information which, if it were made public, would be likely to have a significant effect on the prices of financial instruments or related derivative financial instruments”. no more MONKEY BUSINESS
20 www.lawsociety.ie COVER STORY LAW SOCIETY GAZETTE JUNE 2008
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typical investor at the time of the share sales at issue in the case was “one who was anxious to own internet stocks or stocks with an internet element”, that was a relevant factor in the profile of the reasonable investor.
Banana split The Supreme Court, while agreeing that section 108(1) set down an objective test, rejected the use by the High Court of the reasonable investor approach and found that the jurisprudence relied upon in the High Court was not of assistance in interpreting the section. The court found that the reasonable investor approach was not expressly or impliedly required by the section and that, in any event, it was not an appropriate or useful legal tool. Denham J stated: “There is a myriad of factors and investors in a market, and to choose some or either as representative of a reasonable investor appears subjective and arbitrary. The issue is the effect on the share price in the market of the information if the information were generally available.” The Supreme Court favoured an objective test, closely based on the wording of the section, which asked whether the information at issue, “if it were generally available, would be likely to materially affect the price of the shares having regard to the total mix of information available in the market”. Now that’s real inside trading Significantly, the Market Abuse Regulations expand on the statutory hypothesis and expressly require the In the High Court, Laffoy J interpreted the phrase use of the reasonable investor test in assessing “would be likely materially to affect the price of whether information, if made public, would be likely those securities” as setting down an objective test. to have a significant effect on share price. This She further found that this test was to be approached results from regulation 2, which provides the from the viewpoint of the ‘reasonable investor’ and following definition: “...‘information which, if it were found support for this approach in foreign case law made public, would be likely to have a significant dealing with similar legislative provisions. effect on the prices of financial instruments or Laffoy J gave the reasonable investor test the related derivative financial instruments’ means following formulation, within the factual matrix of information that a reasonable investor would be the case: “The hypothetical test is whether on 3 likely to use as part of the basis of the investor’s February 2000, 8 February 2000 and 14 February investment decisions, and includes cognate 2000, had it been available to him, the information expressions”. contained in the November and December trading This definition does not appear in the Market reports, viewed by him against the ‘total mix’ of Abuse Directive, to which the Market Abuse Regulations information about Fyffes’ trading and earnings give effect. However, it is provided by article 2(1) of available on those dates, would have impacted on the Commission Directive 2003/124/EC (the judgment of the reasonable investor in relation to an implementing directive). (The Market Abuse Directive investment decision about Fyffes’ shares to the extent was the first directive to be implemented under the that he would have concluded that the information ‘Lamfalussy process’, which involves four levels or probably would have a substantial effect on Fyffes’ stages for properly implementing EU legislation. shares.” Under level 2, implementing directives flesh out the In terms of the profile of the reasonable investor, provisions of the principal directive.) Laffoy J was of the view that, in general terms, it was not necessary to profile the reasonable investor any Banana republic more than it was necessary to profile the reasonable While the state was required to transpose the man in applying the principles of the tort of provisions of the implementing directive into negligence. However, she did provide that the national law, there are question marks over whether reasonable investor had to “represent the type of the expanded definition reflected in regulation 2 investor who was typically found in the market at the replaced the basic test for price sensitivity laid down time”. Thus, if, on the evidence before the court, the by the Market Abuse Directive (that the information, if
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made public, “would be likely to have a significant was as follows: would the information have impacted on effect” on price), with a reasonable investor test. the judgement of the reasonable investor in relation to an Indeed, the Committee of European Securities investment decision about the shares to the extent that he Regulators (CESR), in its second set of level 3 would have concluded that the information probably would implementing guidance on the Market Abuse have a substantial effect on the shares? Directive, has pointed out that article 17(2) of the It is submitted that there is a subtle, yet directive provides that the implementing measures potentially significant, difference between the test provided in the implementing directives shall not adopted by Laffoy J and that set out in the modify the provisions of the Market Abuse Directive regulations. While the regulations ask whether the (July 2007, CESR/06-562b, paragraph 1.11). information would have been used by the reasonable One could foresee an argument being made on investor in his decisions, Laffoy J’s test merely asks the basis of article 17(2) that, despite the wording whether the information would have impacted on the adopted by the state, the court can interpret the judgement of the reasonable investor. Market Abuse Regulations in line with the wording of the Market Abuse Directive and apply the statutory Bananarama hypothesis simpliciter, without resort to the It could be argued that, for a piece of information to reasonable investor. There would seem to be support be price sensitive under the new statutory test, it is for this from the CESR’s comment that the not enough that it would have been a mere ‘factor in reasonable investor test merely “assists in the mix’ with all other market factors at the time of determining the type of information to be taken into the reasonable investor’s decision. It would have had account for the purposes of the ‘significant price to have been positively used by the reasonable effect’ criterion”. “In terms investor and formed part of the basis of his decision. However, in the absence of such an argument of price By contrast, Laffoy J’s test might be considered to being run successfully, the wording of the new cover such information on the basis that, as a factor legislation means that, in terms of price sensitivity, sensitivity, in the mix, however small, it had an ‘impact’. the Supreme Court judgment in Fyffes may have less the Supreme As will be seen in the second part of this article impact in the future than the High Court judgment (next month), this distinction may have some bearing it overturned. Regardless of the unanimous rejection Court judgment on the question of whether the court can look at the of the reasonable investor approach in the Supreme in Fyffes may information standing alone or can ‘offset’ the Court judgments, that is the approach required potential impact of the information against other under the wording of the new statutory regime. The have less market factors. obvious question in this regard is whether the test as impact in the While it is true that the Supreme Court rejected formulated in the new provision is the same as that the use of the reasonable investor primarily on the adopted by Laffoy J in the High Court in Fyffes. future than the basis that it was not required by the statute, and that The test in the Market Abuse Regulations can be High Court in rejecting the test it focused on the formulation of construed from regulation 5(1), in conjunction with the test adopted by Laffoy J, the judges undoubtedly the definitions in regulation 2, and is as follows: was judgment it also expressed more general criticism of the principle the information such as a reasonable investor would be overturned” of the reasonable investor being employed as a tool likely to use as part of the basis of his investment decisions? in measuring price sensitivity. It will thus be The reasonable investor test employed by Laffoy J interesting to see, in any future claim of insider dealing, how a court will approach the provisions of the Market Abuse Regulations and, in particular, whether it draws a distinction between the test LOOK IT UP adopted by those regulations and that employed by Cases: Laffoy J in Fyffes or, indeed, whether it seeks to steer • Fyffes plc v DCC plc, S & L Investments Ltd, around the wording of the new provisions and James Flavin and Lotus Green Ltd (Supreme employ the simple objective test used by the Court, 27 July 2007, [2007] IESC 36; High Supreme Court in Fyffes. Court (Laffoy J), 21 December 2005, [2005] In the next issue, we will look at the following IEHC 477) additional issues arising from Fyffes: • Can the court look at the information standing Legislation: alone, or can it ‘offset’ the potential impact of the • Commission Directive 2003/124/EC information against other market factors? • Companies Act 1990 • Can a post-disclosure market event be of • Investment Funds, Companies and evidential value in assessing price sensitivity? Miscellaneous Provisions Act 2005 • Can a statutory claim of insider dealing be • Market Abuse Directive (2003/6/EC) defeated by a fundamental incongruity in the • Market Abuse (Directive 2003/6/EC) plaintiff’s position? G Regulations 2005 (SI 342 of 2005) Conor Feeney is a Dublin-based barrister.
www.lawsociety.ie 23 LAW SOCIETY GAZETTE JUNE 2008 TORT
SHOCKto the SYSTEM Damages for nervous shock have been recoverable for over 100 years in this country, but Michael Boylan asks whether Irish law relating to post- traumatic stress disorder is now lagging behind
he recent decision of the Supreme Court Devlin suffered ‘nervous shock’, that is, post- in Devlin v National Maternity Hospital traumatic stress disorder. She instituted the makes disappointing reading for the proceedings that were ultimately dismissed following many hundreds of parents whose the Supreme Court’s decision last November. children’s organs were wrongfully T Leading the van removed and retained by hospitals in this state in past decades during the post-mortem process. Damages for nervous shock (pure psychiatric injuries Effectively, the decision heralds the death knell for unaccompanied by physical injury) have been organ retention claims. Thus, many hundreds of recoverable for over 100 years in this country. parents who have suffered because of overly Indeed, it is fair to say that Irish tort law was ahead paternalistic and defective hospital policies that of other common law jurisdictions, and two leading existed from the 1970s onwards are now left with no 19th century Irish cases placed the Irish legal remedy and are not entitled to be compensated jurisprudence in the vanguard of developments of for any psychiatric injuries suffered. the law in this area. In the first case, Byrne v Southern In Devlin, a baby girl was stillborn in May 1988. & Western Railway Company, a train, having sped into The hospital unlawfully carried out a post-mortem a siding after a railway point had been negligently without the knowledge and against the express wishes left open, crashed through the wall of a telegraph of her parents. Later, the parents were led to believe office at Limerick Junction. On hearing the noise that performing a post-mortem was standard practice and seeing the wall collapse, the plaintiff, a railway MAIN POINTS within the hospital. They were not informed that employee working in the office, “sustained a nervous many organs had been removed and were retained by shock which resulted in certain injuries to his • Nervous shock, or the hospital. Some 12 years later, following extensive health”. He sustained no physical injuries but post-traumatic media publicity surrounding the retention of organs, suffered “great fright and shock”. The plaintiff stress disorder Mr Devlin made discreet enquiries through his obtained a substantial award of damages. • Relevant case law solicitor (not wishing to upset his wife) as to whether In the second case, Bell v Great Northern Railway • Divergence in the his daughter’s organs might have been retained. The Company of Ireland, the court – with a perception of law relating to hospital informed Mrs Devlin personally, by letter, the relationship between mind and body well ahead nervous shock that the organs had in fact been retained and of its time – followed Byrne and, from that time between Ireland continued to be retained by the hospital up to that onwards in Ireland, damages for pure nervous shock and Britain time. Consequent to this shocking information, Mrs were recoverable. These two Irish cases were cited
24 www.lawsociety.ie TORT LAW SOCIETY GAZETTE JUNE 2008
with approval in subsequent leading English cases. 5) The plaintiff must show that the defendant owed One hundred years later in Kelly v Hennessey, the him or her a duty of care not to cause him a plaintiff’s husband and two daughters suffered severe reasonably foreseeable injury in the form of injuries in a motor accident. The plaintiff was nervous shock. informed by telephone of the incident and suffered shock that was then aggravated by the sight of her Rigid boundaries injured family in hospital. Hamilton CJ set out five These criteria have been followed in many subsequent conditions to be satisfied in order to succeed in an Irish cases and were cited with approval in the action for nervous shock: subsequent Supreme Court decisions in Fletcher and 1) The plaintiff must establish that he/she actually Devlin. I doubt if Hamilton CJ envisaged, when suffered ‘nervous shock’ – this term has been used setting out these criteria, that he was effectively going to describe any recognisable psychiatric illness, to rigidly set the boundaries of the law in this area for 2) A plaintiff must establish that his/her recognisable decades to come and was going to set Irish law on a psychiatric illness was shock induced, more restrictive path than British law. However, 3) A plaintiff must prove that the nervous shock was following Devlin, it would appear that the test caused by a defendant’s act or omission, formulated by Hamilton CJ in respect of a specific set 4) The nervous shock sustained by the plaintiff must of ‘aftermath’ circumstances now effectively governs be by reason of actual or apprehended physical all cases of pure nervous shock, irrespective of their injury to the plaintiff or a person other than the particular facts. plaintiff, and In Devlin, Denham J applied and approved the
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criteria set out in Kelly v Hennessey. The court held that, because Mrs Devlin’s negligently inflicted, EXTRACT FROM DENHAM J’S foreseeable nervous shock was not caused by reason of the actual or apprehended physical injury to the JUDGMENT IN DEVLIN plaintiff or a person other than the plaintiff, therefore “It is clear that the common law was stated by Hamilton CJ in Kelly v Hennessey she was not entitled to damages. Although Mrs Devlin with five conditions subsequently endorsed by Keane CJ in Fletcher. On this law, was found to have satisfied all of the other criteria in the plaintiff is not entitled to succeed, because the fourth condition is not met ... Kelly, her case failed condition 4, as the wrongful On this basis, the plaintiff is not entitled to succeed and the appeals would be desecration of the remains of her stillborn child dismissed. However, counsel for the plaintiff pressed the court if it found that the against her express wishes did not constitute actual or current law did not apply to extend the general principles of the law of negligence. apprehended injury to either herself or another This is a matter of significant general importance. Such a decision could have ‘person’. serious repercussions. In considering extension of the common law liability for The rationale for the court’s decision would appear nervous shock, policy issues arise ... Thus there are limits in law to liability for to be based on policy grounds and is summarised in nervous shock. The common law provides illustrations of successful cases where the panel (right). damages for nervous shock were awarded. However, those cases relate to It is perhaps unfortunate that the Supreme Court’s persons perceiving an accident or its immediate aftermath ... This is a tragic case judgment does not deal at all with the line of British ... It is a hard case. However, the law as it stands does not entitle them to cases of Owens v Liverpool Corporation or Athia v British damages and I would not extend the law. Any such development would give rise to Gas, despite both of these cases forming a major part uncertainty in the law of liability generally and to potentially unforeseeable of the plaintiff’s submissions on appeal in Devlin. The repercussions.” facts and the judgment in both these cases illustrate that the British courts approach nervous shock cases in a far more flexible and sympathetic manner. In Owens, a family of mourners were deeply shocked when the EXTRACT FROM BINGHAM’S hearse that bore the remains of a family member collided with a tramcar, causing the coffin to be upset. JUDGMENT IN ATHIA The Court of Appeal found that the right to recover “I should not for my part erect the boundary stone ... it would not be long before damages was not limited to cases in which a case would arise so compelling on its facts as to cause the stone to be moved apprehension as to a person’s human safety was to a new, more distant resting place. The suggested boundary line is not, involved. moreover, one that commends itself to me as either fair or convenient ... I do not Similarly, in Athia, the plaintiff was entitled to think a legal principle which forbade recovery in these circumstances could be recover damages solely for mental injury sustained as a supported. The only policy argument relied on as justifying or requiring such a result of a shock she sustained on seeing her restriction was the need to prevent a proliferation of claims. The familiar unoccupied home and valued contents being ‘floodgates’ argument. This is not an argument to be automatically discounted, destroyed by fire. The defendants argued that, as a but nor is it, I think, an argument which can claim a very impressive record of matter of policy, the law should not allow Mrs Athia success. All depends on one’s judgment of the likely result of a particular to recover damages because her shock arose from fear extension of the law.” of injury to her property rather than another person. However, such an approach was explicitly rejected by Bingham LJ in the Court of Appeal (see panel) between Ireland and Britain. We have somehow gone from being in the vanguard of the development Legion of the rearguard of the law in this area 100 years ago, to now being It would now appear that there is a marked considerably more restrictive and less sympathetic divergence in the law relating to nervous shock than the approach being adopted by our British counterparts. Effectively, the Supreme Court has decided, on policy grounds, to fix the boundary stone LOOK IT UP and not to expand or develop the law in this area, in Cases: favour of having ‘certainty’. It is difficult to imagine • Athia v British Gas (1987) 3 AER 455 how the ‘floodgates’ could have been opened to • Bell v Great Northern Railway Company of many more claims, given that a plaintiff (such as Mrs Ireland (1890) 26LR (IR) 428 Devlin) would still have to satisfy all the other • Byrne v Southern & Western Railway Company control mechanisms and criteria set out in Kelly v (1884) 26 LR (IR) Hennessey. Undoubtedly, we will have to wait a • Devlin v National Maternity Hospital, 2007 IESC considerable time before we find a case “so 50 (14 November 2007) compelling on its facts” to tempt the Supreme Court • Fletcher v Commissioners of Public Works in to revisit the matter and find out whether they would Ireland [2003] IESC 13 ever be prepared to move the boundary again. G • Kelly v Hennessey (1995) 3 IR 253 • Owens v Liverpool Corporation (1939) 1QB394 Michael Boylan is a partner with Augustus Cullen Law, Wicklow.
www.lawsociety.ie 27 LAW SOCIETY GAZETTE JUNE 2008 INTERVIEW CRIMINCRIMIN MIND Frank Buttimer has been involved in some of the country’s highest-profile murder cases. He describes the trial of Wayne O’Donoghue as “the most extraordinary criminal case I’ve ever been involved in”. Colin Murphy got on his case for the Gazette
rederick Flannery was charged with murder “That was the most extraordinary criminal case in 1995, and Frank Buttimer took the case. I’ve ever been involved in. Of all the cases I’ve done, “It was my first exposure to a serious it was the one where the need for strategy was of the criminal trial. I put vast amounts of work gravest importance.” F into the case, with Patrick McEntee, my He recalls being called and asked to go down to senior counsel.” the O’Donoghues to talk to Wayne, after he had Parsing the book of evidence, he noticed discrepan- confessed to his parents. “I had never spent a day like cies. The sequence of statements didn’t seem to add up: that in my life. I arrived about two o’clock and left names of witnesses appeared briefly, not to be mention- around midnight. I was sitting there, listening to this ed again. The prosecution case involved evidence that utterly stunning tale of psychological collapse, and the murder had occurred at a specific time in a specific grief, and all the emotions that flow from that. place, but it seemed there was evidence that the victim “But still, you have to detach yourself from that had been seen alive elsewhere, later. and remember that, at the end, there is going to be a “I was going to interview witnesses myself – literally criminal trial. going door to door. I was gathering up information “Going into the room to meet him, my guiding that there may have been sightings of this individual principle was that, months down the line, there after he had allegedly been killed. I was digging and would be 12 anonymous people reviewing and digging and digging. evaluating what went on.” “The trial became a trial about how the guards had MAIN POINTS investigated the case, until Judge Bobby Barr stopped Ultimate determination • High-profile murder it. He said there had been a concerted and deliberate This strategic approach is crucial in criminal cases, cases effort to suppress the giving of relevant material to the he says. “The minute I go into a garda station, I’m • The trial of Wayne defence. It was sensational.” trying to determine what the jury is ultimately going O’Donoghue It was the first of a number of high-profile murder to be dealing with. • The importance of cases Frank Buttimer would act in – most notably, of “People always ask ‘did you win the case? Did you strategic analysis late, the trial of Wayne O’Donoghue over the death get your client off?’ My position always is ‘did what of Robert Holohan. you predicted at the outset of this process happen?
28 www.lawsociety.ie INTERVIEW LAW SOCIETY GAZETTE JUNE 2008 ALAL
Did it happen the way you thought it would?’ If it “He was vilified as a paedophile. If I hadn’t done “It’s all word did, you’ve done a decent job.” it, I would have felt less of myself, because he had of mouth. You Clearly somebody thinks he’s doing a decent job. nobody to speak for him. I would do it again. But Frank Buttimer & Co is the largest criminal firm there were unique circumstances whereby it had to can advertise outside Dublin, he says. be done. till the cows “It’s all word of mouth. You can advertise till the “We’re criminal practitioners, but it was a public cows come home. But one good case gets you four relations exercise, primarily, because he wasn’t able come home. good cases, and four good cases get you 16 good to speak for himself – he was locked up.” But one good cases…” He speaks of O’Donoghue, and of other clients he That word of mouth is typically based on has defended on murder charges, with evident case gets you performance in the courtroom. But, at times in the sympathy. But at one point he breaks off to say he is four good recent past, Frank Buttimer has seemed ubiquitous in “very, very conscious of the fact that there is a family the media. The occasion has normally been the out there – the family of the victim”. cases, and four defence of his client, Wayne O’Donoghue, who was “One ought never to be glib, to be triumphalist, to good cases get recently released from jail after serving three years for be anything but completely aware of the tragedy that the manslaughter of 11-year-old Robert Holohan. has been visited upon a family. One has to be you 16 good At Wayne O’Donoghue’s sentencing hearing, mindful of their sensitivities and concerns. They are cases…” O’Donoghue was implicitly accused of sexual abuse not only suffering the trauma of the loss, but also of Robert Holohan in the victim impact statement. suffering the trauma of having to listen to it teased Frank Buttimer’s reaction was immediate. “I went on out and probed in every way in court.” a media rampage. For three days, I did nothing else. I did 17 radio and TV interviews – I counted them In contact with the real world up. I did Prime Time and others. Frank Buttimer is the first generation of lawyer in his “I never made a public statement about Wayne family. His father, from outside Dunmanway in West O’Donoghue until then, apart from a short Cork, and his mother, from Ballylongford in North statement thanking judge and jury when Kerry (“so that’s a good mix of volatility in the Gaelic O’Donoghue was acquitted of murder. football field”), were both teachers. The family lived in
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INTERVIEW LAW SOCIETY GAZETTE JUNE 2008
Kilcrea Park, near UCC in Cork, and Frank attended the school where his father taught – ‘the Mon’, the Christian Brothers’ North Monastery. He was the second of five children. His two brothers and sisters are all involved in education. Sport was clearly a big influence. Though the Mon was a big hurling school – and he dabbled – soccer was his first love. Today, he is a keen golfer and plays off a handicap of 13. He decided to study law at UCC “by a process of elimination – I just figured it was something that would interest me”. He studied there from 1974 to 1976. Academically, he “just about managed – I always knew just what had to be done”. He played sport and spoke at Law Society debates. “Those days were amongst the happiest days of my life,” he says. It’s a cliché, but he says it with obvious passion. After graduating, he took off and spent two years away, most of it in California – heady days, though he missed the height of the 1970s Californian experience Given the stakes in, for example, a murder trial, “My position by a few years. The experience was a formative, if not a and the public exposure, one might expect a lawyer financially successful, one – he had to get a loan to involved to experience an adrenalin rush? “No”, he always is, did come home. says. “It requires calm. The ability to listen. The what you “I was working on sites, working in McDonald’s, ability to piece together the context in which working on roofs, working in painting … I don’t know evidence slots in. predicted at how many jobs I did out there. “It’s a strategic event. What you’re doing is an the outset of “That exposes you to a different kind of life – it exercise that involves creating the impression that takes you out of the academic confines. you desire, opposite 12 people. They’re the judges of this process “The best lawyers are those who are in contact with fact. The issues of law will take care of themselves, happen? Did it the real world, with real people. Life experience is a but it’s the facts that influence the jury.” great teacher for anybody keen on going into law.” He relishes watching a good counsel at work: “It’s happen the way He had started his apprenticeship, under Fachtna a performance. The finest barristers are the finest you thought it O’Driscoll at O’Flynn, Exham & Partners in the South actors – in the subtlety of their words, the subtlety of Mall, while studying at UCC, and had qualified before their intonation, the creation of a view which would? If it did, he left for the US. On his return, he went to work with suggests that what they’re being told is to be treated you’ve done a Gerard O’Keefe in Kanturk, North Cork, who ran “a with disdain, with disbelief. The best of them can do very large rural litigation practice”. There, he had it without even opening their mouths.” decent job” “immediate exposure to court-related work”. Yet the strategy in a criminal trial can often be In Kanturk, he was also exposed to another surprisingly simple. “You often operate on the basis significant influence – a young woman by the name of of never actually receiving instructions but just Ger Murphy, who was working as a legal secretary and probing the evidence as is presented. The happened to live next door. They married, and now instructions may simply be ‘I’m pleading “not guilty” have four children, Aoife, Julie, Frankie and Mikey. – now challenge the evidence’. The criminal process In 1986, Frank Buttimer and Gerard O’Keefe set up is all about the burden of proof, which rests on the a joint practice, and shortly afterwards the firm moved state.” to Washington Street in Cork city. Gerard O’Keefe left Given that traditional burden of proof, he worries in the early ’90s, when the firm became Frank about a steady threat to the “sacrosanct position” of Buttimer & Co. Today, it has two additional partners, the right to silence. “The Criminal Justice Act 2007 Emmet Boyle and Ger Hanley, and employs two more significantly curtails the right to remain silent, where solicitors, Michael Quinlan and Niamh McNamara. the prosecution can draw inference from material The firm does some non-litigation work, but is facts that are put to a person in custody, if the primarily a criminal practice and he is explicit that that accused person refuses to answer. The jury can be is where his interests lie. told that the accused’s silence regarding a material fact can be corroborative of other evidence. That is a Judges of fact significant attack on something that has worked very “I’ve no interest in conveyancing or commercial law. well for centuries.” I like the challenge of litigation, the cut and thrust. At the very least, he says, if there is going to be Your interaction with people is constant and regular. such significant legislative change, “it merits much There’s always something new, you’ve never learned more serious attention” than that received by the it all.” Criminal Justice Act. G
www.lawsociety.ie 31 LAW SOCIETY GAZETTE JUNE 2008 PLANNING AND DEVELOPMENT
Part V of the Planning and Development Act 2000 aims to encourage residential integration. But what does it mean in practice? John Gore-Grimes gets down to the bricks and mortar House of the RISING he purpose of part V of the Planning and where an unspoken anxiety often damages both the Development Act 2000 (as amended by the social and physical fabric of the lives of the residents Planning and Development (Amendment) and the dwelling units that they inhabit. Act 2002) is to address the manifest T shortage of land for social and for Obligations affordable housing. In an open market economy, the If an application for planning permission is lodged cost of purchasing a site, or indeed a developed for “the development of houses” or for mixed house, is beyond the means of a very large number of development with a residential element, and the land residents in Ireland. that is the subject matter of the application is zoned The legislation has introduced a mechanism or partly zoned for residential use, the planning whereby developers of residential developments are authority must impose a part V condition in any required to cede land at its existing use value to the permission it grants, provided that its development planning authority. As a matter of social policy, a plan contains a housing strategy that requires that a planning authority is required under the act to take percentage of residentially zoned land – up to a into account the need to counteract undue maximum of 20% – shall be made available for social segregation in housing between people of different and for affordable housing. social backgrounds. More particularly, the planning All planning authorities in Ireland have provided a authority must also take into account the needs of housing strategy in their development plans. The elderly people and people with disabilities in housing strategy requires that, in appropriate cases, a MAIN POINTS preparing a housing strategy. percentage of land will be made available for social • Social and The aim of part V is to encourage residential and for affordable housing development. It is affordable housing integration. Conversely, part V is also designed to unlikely that the social and affordable housing • Planning counteract undue segregation. It is a process that strategy will be omitted from future development permission issues does and will produce its own problems, but the plans, at least until the aims of the policy have been • Obligations, sacrifices that are made now will be well worthwhile. achieved. For the moment, it can be readily assumed conditions and Part V proposes to integrate communities in a that no objection can be made against the imposition preconditions manner that will demolish and replace ghettos and of a part V condition on the grounds that the poorly developed, underspecified residential areas, planning authority has not incorporated a housing
32 www.lawsociety.ie PLANNING AND DEVELOPMENT LAW SOCIETY GAZETTE JUNE 2008
SUN strategy into its development plan. excluded from the social and affordable housing It is important to note that the maximum percentage provisions of part V: of residentially-zoned land to be provided is 20%. A • Development consisting of the provision of houses planning authority may decide to request a lower by an approved housing body for social housing, percentage or, perhaps, no percentage at all, where the where the houses are for letting only, particular area already has a high level of social and • The conversion or reconstruction of a building to affordable housing and where the opposite balance is create one or more dwellings, provided 50% of the required (for example, the provision of market housing) existing external fabric building is retained, or in order to encourage social integration. • The carrying out of works on an existing house. As stated, the application for permission must be for development of housing or for mixed The act also provides for the exclusion of certain development with a residential element. A house is small housing developments from the social and defined as: affordable housing provisions of part V. A person • A building or part of a building that has been built intending to apply for permission to develop four for use as a dwelling, and houses or fewer, or for housing on land on 0.1 • In the case of a block of apartments or other hectares or less (approximately half an acre or less), building or part of a building comprising two or may apply for an exemption under section 97. The more dwellings, each of those dwellings. applicant who applies for planning permission for one of these types of small development must apply (The second of these is a new definition provided by to the planning authority for a certificate of section 4(96b) of the Planning and Development exemption. This section 97 exemption certificate will (Amendment) Act 2002.) certify, in appropriate cases, that the part V The final part V obligation is that the land to conditions do not apply to the grant of a planning which part V is to apply must be zoned for permission. If a section 97 certificate is refused, there residential use or, if not wholly zoned for residential is a right of appeal to the courts. Planning use, it must be zoned for a mixture of residential and permission will, of course, still be required for a other uses. housing development, even where a certificate has The following types of planning applications are been granted. No permission will be granted without
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PLANNING AND DEVELOPMENT LAW SOCIETY GAZETTE JUNE 2008
social and affordable housing conditions unless the 1) To transfer to the planning authority the ownership section 97 certificate is available. The application for a of any other lands within its functional area, certificate of exemption under section 97, in respect of 2) To build or transfer, on completion, to the a proposed housing development on land of less than ownership of the planning authority, or persons 0.1 hectares, should be made and the exemption nominated by them, new houses on other lands certificate should be obtained prior to the submission within the functional area of the planning authority, of an application for planning permission in respect of 3) Transfer partially-serviced sites on other lands that development. within the functional area of the planning authority, Considerable trouble has been taken in the 4) To pay an amount of money as specified in the legislation to ensure that developers do not try to avoid agreement to the planning authority, social/affordable housing-supply conditions by making 5) A combination of the transfer of land within the site multiple applications for small-scale residential of the developer, but for a lesser amount of land developments. It is a criminal offence to make a than specified in the housing strategy, and doing statutory declaration or to provide information or any of the matters referred to in paragraphs (a), (b) documentation that is false or misleading in any and (c) above and in paragraphs 1 to 4 above, or material respect when application is being made for a 6) A combination of doing any two or more of the section 97 certificate of exemption. things referred to in paragraphs (a), (b) and (c) above and in 1 to 5 above. Consultation In all cases where social and affordable conditions are a “Before The 2002 amendment act provides that the developer necessary part of a developer’s application for planning or other applicant for planning permission cannot be permission, it is best to assess and anticipate the type development compelled to provide serviced sites or completed units of condition that is likely to be imposed. With this in takes place, and, where the developer does not wish to take mind, it would be of benefit to make use of the pre- advantage of the various options referred to above, the application consultation that is provided for in section a part V only option that he can be compelled to comply with 247 of the 2000 act. In endeavouring to reach an agreement is the option to transfer to the planning authority an agreement with the planning authority, it is essential, area of up to 20% of the land that is the subject at the earliest possible stage, that the most must have matter of his application for planning permission. advantageous conditions required by the developer in been entered relation to a part V condition should be communicated Preconditions to the planning authority and the required conditions into, In conclusion, it must be stressed that the conditions that the planning authority have in mind should be concluded, that must be imposed by a planning authority in any communicated to the developer. A consensus between grant of planning permission for the development of the developer and planner is more likely to be achieved signed and land for housing that is zoned or partially zoned for by using the consultation process in section 247. exchanged residential development under part V are preconditions in a planning permission. In effect, this Conditions between the means that, before development takes place, a part V The 2000 act offers three types of conditions that the planning agreement must have been entered into, concluded, planning authority may impose by way of agreement signed and exchanged between the planning between the authority and developer: authority and authority and the developer before work commences. a) Transfer land that is subject to an application for the developer” Since it is a precondition, it is essential that a copy of permission for residential property to a planning the agreement is furnished with the developer’s authority for provision of social and/or affordable contract. housing up to a maximum of 20%. If the part V agreement is not furnished or if it is b) Build units and transfer completed houses to the not available, the contract should not be signed and planning authority or to persons nominated by the exchanged until the purchaser is fully aware of the authority over an agreed area at a price determined contents of the agreement. If the agreement requires on the basis of site cost plus the cost of the houses, payment of money, the planning authority’s receipt for calculated at existing use value, allowing some the full amount of the payment must be obtained. Pre- margin of profit for the builders. The house must be contract requisitions must be raised requiring the located on the developer’s own site. LOOK IT UP production of the concluded agreement and a full c) Alternatively, a developer can transfer partially Legislation: receipt for all monies payable. G serviced sites to a planning authority or to its • Planning and nominee. Development John Gore-Grimes is the author of Key Issues in Act 2000 Planning and Environmental Law. He continues to The 2002 amendment act has not undermined the • Planning and lecture on planning subjects for the Law Society. His principle of a ‘housing strategy’, but it has been Development sailing days in Arctic waters (see March 2003 Gazette) extended in a pragmatic way. In addition to the (Amendment) have come to an end. In his own words: “The trouble with existing options listed above, the following options are Act 2002 being a tough skipper is that you are left with nobody to also available: sail with!”
www.lawsociety.ie 35 LAW SOCIETY GAZETTE JUNE 2008 EMPLOYMENT LAW Heigh-ho, heigh-
Following last he Organisation of Working Time Act 1997 categories of workers, types of work, public holidays, month’s article transposed European Council Directive and so on, while in part II, conditions as to piece 93/104/EC into Irish law. This directive had work, employment of certain classes of people and on overtime, been adopted as a health and safety measure annual leave were outlined. In part III, basic Michael T on the basis of article 118A of the Treaty conditions of employment were detailed. This establishing the European Community. While article 118A legislation was later supported by the Industrial Prendergast states that “member states shall pay particular attention Relations Act 1946, allowing for employment considers the to encouraging improvements especially in the working regulation orders (EROs) and registered environment, as regards the health and safety of employment agreements (REAs) to be agreed Organisation of workers, and shall set as their objective the between employers and employees within specific Working Time harmonisation of conditions in this area, while industry sectors. It was within this framework that maintaining the improvements made”, the 1997 act the 1997 act, and de facto, the European directive Act 1997 and incorporated, perhaps inadvertently, both economic and were introduced. asks whether the social legislation tangential to the core objective of The focus of the 1936 act was industrial article 118A. In this article, I will seek to highlight this employment, and it outlined in section 3 what did legislation was tangential legislation and pose the question ‘Was the and what did not constitute industrial work. The 14 worker-safety 1997 act really about health and safety?’ classifications of industrial work in section 3 led The transposition of Directive 93/104/EC into Irish inevitably to the EROs and REAs, as the driven or law repealed existing legislation dating back to 1936. classification in themselves were not all inclusive and economically The relevant repealed Irish legislation was outlined in did not include agricultural, domestic or schedule IV of the Organisation of Working Time Act commercial-type work. driven, and if the 1997, and included the Conditions of Employment Acts Further classifications were outlined in the act, balance struck in 1936-1944, the Night Shift (Bakeries) Acts 1936-1981, the covering ‘adult worker’ (man or woman), ‘woman’ and Shops (Conditions of Employment) Acts 1938-1942, the ‘young person’ (aged between 14 and 18), and the 1997 is as Holidays (Employees) Act 1973 and section 4 of the Worker working restrictions that applied to the employment applicable today Protection (Regular Part-Time Employees) Act 1991. of young people and female workers, with neither being able to start work before 8am and the latter not as it was a Legislative foundation being able to work more than 40 hours per week. decade ago Prior to the enactment of the 1997 act, the Conditions Female workers were not permitted to work between of Employment Act 1936 was the legislative foundation 10pm and 8am, while young persons were restricted of employment law in Ireland, defining in part I to working only between 8am and 8pm.
36 www.lawsociety.ie EMPLOYMENT LAW LAW SOCIETY GAZETTE JUNE 2008 ho...ho... They work all day and get no pay: Dopey, Sneezy, Bashful, Sleepy, Happy, Grumpy and Nobby
Annual leave was covered under section 24, Young Persons (Employment) Act 1996, which allowing the worker six days’ leave per annum and distinguished between children (14 and 15-year-olds) requiring the employee to give two weeks’ clear and young persons (16 and 17-year-olds), and outlined notice of his intention to take leave. Section 32 employment restrictions applicable to both. prohibited shift work, unless on a continuous process under licence, and then only under strict conditions Driving force as determined by section 33. Similarly, under section As outlined at the outset, the 1936 act was repealed in 49, work on Sundays or public holidays was not its entirety by the Organisation of Working Time Act permitted, unless under conditions as laid down by 1997, and while the driving force for the repeal may the act – and even then for a limited period not indeed have been Directive 93/104/EC, the outcome exceeding three hours on aggregate over two or implies that other factors may have been salient. more periods. Saturday was referred to as a ‘short Most notable about the 1997 legislation – in day’ within the act, requiring the payment of premia contrast to the 1936 act – is that (a) it applies to all for work performed on that day. employment types (other than industry-related), save Overtime and the maximum working week were those as outlined in sections 3 and 4, and to sectors also legislated for by the 1936 act, with the working or businesses that are subject to collective week being limited to 48 hours and overtime being agreements; and (b) no distinction is made between limited to 240 hours per year for ‘adult workers’ and worker types – rather, all workers are collectively 200 hours per year for ‘young persons’. The referred to as ‘employees’. overtime pay rate was set at a minimum premium of Annual leave was increased to four weeks, and the 25% on the standard rate. nine public holidays were outlined in the second Section 7 of the act designated six public holidays, schedule. Sunday work was, as in the 1936 act, given MAIN POINTS and the working time provisions provided a specific mention. However, no restrictions were • Health and safety mandatory half-hour rest period after five hours, and allotted to this work, with the act focusing on the in the workplace a further half hour before the commencement of compensation for such work, but refusing to quantify • Overtime overtime exceeding one-and-a-half hours’ duration. it. The act also introduced the concept of ‘night compensation In the intervening years prior to 1997, annual leave work’, being the period between midnight and 7am lacuna was extended to seven days in 1939, ten in 1961 and on the following day, and of ‘zero-hour’ working, • Redefinition and 15 in 1973, with public holiday entitlements increasing which includes the practice where an employee is extension of to seven days in 1974, eight in 1977 and nine in 1994. asked to stay available for work without there being a working week Also enacted during this period was the Protection of guarantee of that work.
www.lawsociety.ie 37 21st Century Wedding in 18th Century Elegance IT specialists to the legal profession
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The act maintained the maximum working week at 48 hours. No reference is made in the act to LOOK IT UP overtime or to the compensation levels applicable to Legislation: any overtime worked by an employee. This omission, • European Council Directive 93/104/EC in conjunction with the simultaneous repeal of the • Industrial Relations Act 1946 1936 act, created an overtime compensation lacuna • Organisation of Working Time Act 1997 unregulated by the new act for employments not • Protection of Young Persons (Employment) Act covered by collective agreements. 1996 Rest periods and intervals were also addressed by • Treaty establishing the European Community the act, with the employee being entitled to 11 hours’ consecutive rest in 24 hours and a 15-minute break after 4.5 hours or a 30-minute break after six provide adequate rest and recovery periods, hours. No requirement for a rest period prior to the including holidays. The act, while addressing these commencement of overtime was outlined in the act, issues, also addressed unrelated issues in the areas of and the concept of ‘additional hours’ was introduced industrial relations. By its repeal of the Conditions of in section 17. Employment Act 1936, the act also redefined and Part VI of the 1997 act dealt with collective extended the working week, liberalised the work agreements and the Labour Court, the making of performed by various employee types, extended the complaints to the Rights Commissioner, and the categories of employment to which the act applies, enforcement and penalties for non-compliance with introduced the concept of zero-hour working, and the provisions of the act. Also included in part VI are omitted any reference to ‘overtime’, as defined in the the requirement for the maintenance of records, the earlier act. This omission negated the 25% premium prohibition of double employment and provisions in that had been applicable to overtime after 48 hours’ relation to outworkers. work – thus contravening article 7 of the Resulting from the introduction of the act, some International Labour Organisation’s Hours of Work 17 statutory instruments have been passed outlining Convention 1930 (No 30) – a convention that has yet exemptions and inclusions (nos 392 and 475 in 1997; to be ratified by Ireland. nos 20, 21, 44, 49, 52, 57, 444 and 485 in 1998; no It is in this light that one must ask whether the 10 in 1999; no 11 in 2000; nos 419 and 473 in 2001; 1997 legislation, presented in the shadow of the and nos 494, 817 and 819 in 2004). European directive but more wide-ranging in its scope, was worker-safety driven or economically Liberalisation or protection? driven, and if the balance struck in 1997 is as The Organisation of Working Time Act 1997 was applicable today as it was a decade ago. G primarily to be viewed as a piece of safety, health and welfare at work legislation, designed to protect Michael Prendergast is a practising barrister on the employees against excessive working hours and to Western Circuit.
www.lawsociety.ie 39 LAW SOCIETY GAZETTE JUNE 2008 PEOPLE AND PLACES
We did it – Calcutta Run breaks the €2M barrier! rey clouds threatened met by a cheering crowd of Gthroughout the morning, (patient!) supporters. They not but nothing could dampen the only met their target but spirits of the 1,500 participants surpassed it, to achieve a total who made their way over the of €340,000. This has pushed finishing line at the end of the the overall funds raised by the 10k Calcutta Run on 17 May, Calcutta Run over the past ten writes Maree Crowley. As the years to an astonishing €2 warm-up began, the sun finally million. Each year, the charities to benefit include GOAL orphanages in Calcutta and the Fr Peter McVerry Trust in Dublin – helping to keep homeless youngsters off the streets in both cities. The organisers of the Calcutta Run ensure that every Warm up act: President James MacGuill and RTÉ’s Michael Lester cent raised goes directly to these two charities. This is made possible by the generous support of IrishJobs.ie – proud main sponsor again this year – and the valuable support of Riverrock, DX, File Stores and Greyhound Recycling. Last year, the run was Send in the clowns designated a ‘green’ event for the first time – and this year was no different. Greyhound recycled almost 95% of the material collected throughout the day. The organising committee is Bend me, shape, any way you want me grateful to everyone who participated in any way. showed, lending its support to – or surpass – that target was a Congratulations to all the what would be the biggest year great mix of solicitors, trainees, runners and walkers, to the yet for this, the tenth Law Society staff, families and numerous volunteers who anniversary year of the Calcutta friends, who set off from the donated their valuable time and Run. Society’s headquarters on the energy, and to all who lent A hugely ambitious fund- 10k run/walk through the their financial support. Keep raising goal of €300k was set Phoenix Park, before heading your diary free for next year’s Three-legged race for the day. Attempting to meet back to Blackhall Place to be event!
The hokey cokey in action The relaxing aftermath
40 www.lawsociety.ie PEOPLE AND PLACES LAW SOCIETY GAZETTE JUNE 2008 MSBA awards dinner 2008 ayo Solicitors’ Bar MAssociation (MSBA) held an awards dinner in honour of Liam MacHale (Ballina) to honour his 50 years in practice in Pontoon. This coincided with the annual awards, in which Michael ‘Miko’ Browne (Westport) was the popular and worthy first recipient of the Judge Daniel Shields Perpetual Award for Mayo-based solicitors, in recognition of his years of hard work for the MSBA.
Swinford solicitors – Brendan Donnelly, Samantha Geraghty, Anne Liam MacHale celebrates his golden anniversary of legal service with his family (l to r): Liam Jnr, Elizabeth, Leonard and Patrick O’Connor Jacqueline, Liam, Catherine, Jennifer and Patrick O’Connor (president of MSBA)
Michael Browne received the ‘Judge Dan Shields Perpetual Award’ from MSBA president Patrick O’Connor, in recognition of his many years of Ballina solicitors out in force – Leo J Loftus, Lorraine Davenport, Liam hard work for the MSBA, seen here with Liam MacHale MacHale, Jacqueline MacHale and Assumpta Joyce
Linda Lenehan, Eanya Egan and Leo J Loftus and Liam MacHale – Ian Dodd, Denis Molloy, Ward McEllin, Rosemarie Loftus, John Gordon Sheila Ryan 100 years of legal practice! and Patrick O’Connor
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PEOPLE AND PLACES LAW SOCIETY GAZETTE JUNE 2008 PIC: LENSMEN
Political party! Visitors to the Law Society on 22 April 2008 for a dinner to honour the election of solicitor John O’Donoghue as Ceann Comhairle included (front, l to r): Senator Lisa McDonald, Thomas Byrne TD, John O’Donoghue TD, James MacGuill (Law Society president), Nora Owen, Peter Power TD and Charlie Flanagan TD. (Back, l to r): Philip Joyce (past-president), Mary Keane (deputy director general), Gerry Doherty (Council member), John O’Connor (Council member), Ken Murphy (director general) and John D Shaw (senior vice-president) PIC: LENSMEN
Garda Commissioner visit Visiting Blackhall Place on 17 April 2008 were (front, l to r): Mary Keane (deputy director general), Claire Loftus, Mr Justice Garrett Sheehan, Garda Commissioner Fachtna Murphy, President of the Law Society James MacGuill and Frank Cassidy. (Back, l to r): Barry Donoghue (deputy DPP), Michael Staines, John D Shaw (senior vice-president), Ken Murphy (director general), Stuart Gilhooly (Council member), Philip Joyce (past president), Thomas D Shaw (past president), Michelle Ní Longáin (Council member), Shane Murphy SC and Dara Robinson PIC: LENSMEN
Just desserts! At the dinner held in honour of members of the High Court bench at Blackhall Place on 19 May 2008 were (l to r): Liam Kennedy, Ken Murphy (director general), Mr Justice John Edwards, Tony Burke, James MacGuill (Law Society president), Mr Justice George Birmingham, John D Shaw (senior vice-president), Mary Keane (deputy director general) and Philip Joyce (past president)
www.lawsociety.ie 43 LAW SOCIETY GAZETTE JUNE 2008 PEOPLE AND PLACES PIC: LENSMEN PIC: LENSMEN
CCBE gathering Two former Ministers for Justice At the Law Society CCBE lunch on 29 April (l to r): John Fish, At the Law Society on 22 April were dinner guests (l to r): Michael Irvine (past president), Peter MacNamee, James MacGuill John O'Donoghue TD, James MacGuill (Law Society president), (Law Society president), Ken Murphy (director general), Mary Keane Nora Owen and Ken Murphy (deputy director general) and Eva Massa (Law Society) PIC: LENSMEN Panel workshop to assist solicitors
workshop focusing on the Apanel of solicitors to assist solicitors in difficulty with the Law Society was held on 23 April 2008. The workshop was facilitated by the director of Meet the panel to assist solicitors regulation, John Elliot, members of the Guidance and Ethics Committee, and panel members. The scheme exists to assist solicitors with their initial response to the Law Society, following notice to the solicitor of a complaint or other difficulty in relation to their practice. However, panel solicitors often find that they are also asked to become involved later on in the regulatory process. Panel work within the ambit of the scheme itself is on a voluntary basis. However, if a solicitor is taken on as a client Birthday boy! later in the regulatory process, At the Law Society dinner for criminal list judges on 28 April (when, incidentally, Mr Justice Paul Carney also it is presumed that a fee is celebrated his birthday) were (back, l to r): Dara Robinson, Mr Justice Barry White, Mr Justice Paul Butler, charged. The solicitor’s Claire Loftus, Mr Justice Pat McCarthy, Mary Keane (deputy director general), Alan Gannon, Mr Justice professional indemnity Kevin C O’Higgins, Pat McGonagle, Barry Donoghue and Emer O’Sullivan. (Front, l to r): Ken Murphy (director general), Mr Justice Paul Carney (who had just come from the Nelson Mandela Day insurance cover includes this celebrations in the South African Embassy) and James MacGuill (president, Law Society of Ireland) work, as it would any other legal service.
44 www.lawsociety.ie PEOPLE AND PLACES LAW SOCIETY GAZETTE JUNE 2008 RDJ scores with Munster Rugby! n a first for Irish rugby, Blacks, whose game versus IRonan Daly Jermyn (RDJ) Munster has been confirmed has scored something of a for 18 November at the new commercial try and conversion Thomond Park Stadium.” by winning the contract to Munster chief executive, provide legal services to Garrett Fitzgerald (no, not the Munster Rugby. former taoiseach), says that the John Dwyer, managing team had grown significantly in partner at Cork-based RDJ, the past number of years: “We says: “Our firm has a long are delighted to have a law firm history with Munster Rugby, in place who can offer us advice and this agreement makes the on our growing commercial connection official … One of agenda and a wide range of Odd-shaped balls At the announcement of RDJ becoming the official legal advisor to our first projects has been issues that arise in successfully Munster Rugby were (from l to r): Peter Stringer, John Dwyer advising Munster Rugby on running a professional (managing partner RDJ), Garrett Fitzgerald (CEO Munster Rugby), their agreement with the All organisation of our size.” Doug Howlett and Tomás O’Leary May Day merger for Connacht’s CallanTansey he legal practices of CE nearly 90 years. Damien Tansey TCallan & Co (Boyle, Co & Associates have concentrated Roscommon) and Damien on specialist litigation services, Tansey & Associates (Sligo) have particularly in the area of merged to become CallanTansey. medical negligence. It The announcement was made on represents many parents of 1 May. The merger creates the children with autism who are largest law firm in Connacht, challenging the state for better with over 20 solicitors and 35 education and services. support staff providing a full CallanTansey will continue range of legal services to to operate and develop its corporate and private clients offices in Boyle and Sligo. The throughout Sligo, Roscommon, development reflects a growing Donegal, Leitrim, Mayo, and trend in the Irish legal sector further afield. towards mergers to create CallanTansey merger Partners of the newly merged firm of CallanTansey (front, l to r): CE Callan & Co has been practices of sufficient scale to Christopher Callan, Damien Tansey. (Back, l to r): John Duggan, John delivering private client and provide a comprehensive and O Kelly, Roger Murray, Niamh Ni Mhurchú, Brian Gill and John V Kelly business services for clients for efficient service to clients.
www.lawsociety.ie 45 TIMES ARE TOUGH IN THE LEGAL PROFESSION MAKE SURE YOU ARE GETTING THE BEST DEAL FROM YOUR BANK Are you Happy with the Interest you are Earning? Happy with the interest you are Paying? Are you paying Set-Off Interest on all Facilities? Paying Uncleared/Surcharge Interest?
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Call us now Finnan Financial Limited Dublin: Merchants House, Merchants Quay, Dublin 8 (opposite Four Courts) 01 675 0819 Waterford: 21 O’Connell Street, Waterford. DX 44058 Waterford 051 850672 [email protected] www.finnanfinancial.com STUDENT PAGE LAW SOCIETY GAZETTE JUNE 2008 student spotlight Cork trainees negotiate their way to the top tudents at the law school in Britain and Northern Ireland, SCork have done it again! Val will converge on London during Moran and Anthony Murphy the second week of July in a bid showed dexterous negotiation for the laurel wreath. skills to win out at the National The week-long competition Negotiations Competition at will see each team participating King’s Inns in Dublin on 26 April. in three negotiations. Marks will Four teams took part in the be awarded for team work, national final – two teams of effectiveness, negotiating ethics trainee barristers from the Inns and the relationship that is and one team each from the law established between the schools in Cork and Dublin. The negotiating teams. students were given separate sides Anthony Murphy, trainee at Holmes O’Malley Sexton, with his training Both Val and Anthony have of a negotiation and were solicitor Robert Bourke (partner) and Siobhan Buckley (partner) just completed their PPCI course required to negotiate for their at Cork and are currently back ‘client’ against their opposite training at their respective offices number. The negotiation – Val at the Ballincollig firm of problem involved the teams McCarthy & McCarthy attempting to agree terms and Solicitors, and Anthony in conditions for a prospective Limerick at Holmes O’Malley employee of a not-for-profit Sexton. hospital. Both offices have been The Cork duo will now travel extremely supportive of their to London in July to take part in trainees and, together with the the International Negotiations Law Society, are sponsoring the Competition 2008. Teams from team at the international event in around the world, including Val Moran, trainee at McCarthy & McCarthy Solicitors, with the two July. We wish them every success Australia, the USA, Canada, principals in the firm, Mary McCarthy (left) and Phil McCarthy (right) in London. Blackhall Builders tool up for Zambia ollowing on from the great used in the construction. Fsuccess of the Blackhall The fundraising campaign Builders last year, another team started in earnest in May with an of trainee solicitors will head for event in the Laughter Lounge, Zambia this July to build houses and others will run until July. with Habitat for Humanity. The volunteers have a target of Together with Jane Moffatt €48,000 – and they need all the (course manager) and Caitriona support they can get. Moran (Law Society), the 14 Donations to the project can trainee solicitors will travel to be made via credit or debit card Lusaka, the capital of Zambia. on the Blackhall Builders’ website Under the supervision of local at: www.mycharity.ie/event/ tradesmen, the volunteers will blackhall_builders_2008. All labour on a building site, internet contributions go working hand-in-hand with securely and directly to Habitat some of the families who will will also provide financial fundraising for the purchase of for Humanity, charity number occupy the houses. The team support to the community by some of the building materials CHY 15187. G
www.lawsociety.ie 47 LAW SOCIETY GAZETTE JUNE 2008 PARCHMENT CEREMONIES ire McAuley Adams, Emily-Jane McGuire, Kate McInerney, ire McAuley Adams, Emily-Jane McGuire, Kate McInerney, Director General of the Law Society Ken Murphy were , Sarah Griffiths, Una Hanahoe, Kevin Harnett, John Higgins, Trevor Murphy, Deirdre Nagle, Patrick Nelson, Louise O’Brien, Murphy, Trevor Owen Sweeney, Ciara Tierney, Elizabeth Veale and Fiona Zellman Elizabeth Veale Ciara Tierney, Owen Sweeney, e, Davinia Brennan, Hugh Byrne, Claire Colfer, Karen Carmody, orcain, Mary O’Reilly, David O’Shea, Niall Pelly, Michael Purcell,orcain, Mary David O’Shea, Niall Pelly, O’Reilly, parchments on 9 November 2007 Newly-qualified solicitors at the presentation of their President of the High Court Mr Justice Richard Johnson, Professor Lonni Rose, President of the Law Society James MacGuill, and guests of honour at the 9 November 2007 parchment ceremony for newly-qualified solicitors: Noman Ali, Orla Begley, Melanie Boyl guests of honour at the 9 November 2007 parchment ceremony for newly-qualified solicitors: Noman Ali, Orla Begley, Ronan McInerney, David Mangan, Deirdre Mitchell, Keira-Eva Mooney, Cliona Mulligan, Fiona Murphy, Stephen Mulvey, Kate Murphy, Kate Murphy, Stephen Mulvey, Cliona Mulligan, Fiona Murphy, David Mangan, Deirdre Mitchell, Keira-Eva Mooney, Ronan McInerney, Shane O’Brien, Diarmuid O’Comhain, Allan O’Connor, Nigel O’Connor, Eimear O’Gara, Ciara O’Leary, Mary Nigel O’Connor, Shane O’Brien, Diarmuid O’Comhain, Allan O’Connor, Gill O’Leary, Uilliam O’L Niamh Keegan, Emma Jane Kelly, Deirdre Kennedy, Lee-Ann Kennedy, Dylan Latimer, Ciaran Leavy, Desmond Lynch, Sinead Lyons, Maca Ciaran Leavy, Dylan Latimer, Lee-Ann Kennedy, Deirdre Kennedy, Niamh Keegan, Emma Jane Kelly, Diarmuid Cunniffe, Stephen Cooney, Ronan Curran, Eimear Daly, Caroline Deacy, Yvonne Flanagan, Sarah Fleming, Siobhan Gallagher Diarmuid Caroline Deacy, Cunniffe, Ronan Curran, Eimear Daly, Stephen Cooney, Jane Quinn, Seetha Ramkissoon, Joanne Redmond, Ronan Regan, Mary Finian Scallan, Barbara Sherry, Julie Anne Sweeney, B Sankey,
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48 www.lawsociety.ie PARCHMENT CEREMONIES LAW SOCIETY GAZETTE JUNE 2008 ), President of the
The Irish Times iadhna Sheridan, Michelle Spellissy and Dervla Sugrue r newly-qualified solicitors: John Bermingham, Louise Boland, Carol Coulter (legal editor with Fay, John Paul Feeley, Lyn Flanagan, Owen Henson, Roisin Hickey, John Lyn Flanagan, Owen Henson, Roisin Hickey, John Paul Feeley, Fay, parchments on 20 December 2007 Newly-qualified solicitors at the presentation of their Kealy, Eileen Kelleher, Michelle Lee, Ciaran McNamara, Dermot Monahan, Aoife Mulligan, Graham Quinn, Greg Rogers, Paul Ryan, Eileen Kelleher, Cl Kealy, Former Minister for Justice, Equality and Law Reform Brian Lenihan, President of the High Court Mr Justice Richard Johnson, Dr Elaine Burke, Adrian Carey, Killian John Carty, Pierce Cooney, Nigel Crawford, Aoife Crowley, Michelle Egan, Orla Ellis, Susan Nigel Crawford, Aoife Crowley, Killian John Carty, Pierce Cooney, Elaine Burke, Adrian Carey, Law Society James MacGuill, and director general Ken Murphy were guests of honour at the 20 December 2007 parchment ceremony fo
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www.lawsociety.ie 49 LAW SOCIETY GAZETTE JUNE 2008 PARCHMENT CEREMONIES llo Cortes, Maria Boyce, Alice Cowman, Sharon Davern, Ross Phillips, Karen Ruddy, Padraig Sheehan, Andrew Whitty Ross Phillips, Karen Ruddy, he Law Society James MacGuill, and Director General of the ayes, James Hunt, John Kerr, Aoife Langan, Lochlann MacDonald, ayes, James Hunt, John Kerr, parchments on 25 January 2008 Newly-qualified solicitors at the presentation of their President of the High Court Mr Justice Richard Johnson, Sir Brian Kerr (Lord Chief Justice of Northern Ireland), President of t Law Society Ken Murphy were guests of honour at the 25 January 2008 parchment ceremony for newly-qualified solicitors: Angel Be Niamh MacEvilly, David McAlinden, Marcus McDwyer, Jane Moffat, Karen David McAlinden, Marcus Nevin, Ciara O’Connell, Conor O’Sullivan, McDwyer, Patrick Moroney, Niamh MacEvilly, Catherine Deignan, Sarah Deignan, Hilary Delahunty, Patrick Dempsey, Bridin Farren, Kenneth Fitzgibbon, Cliodhna Foley, Robin H Bridin Farren,Catherine Deignan, Sarah Hilary Kenneth Fitzgibbon, Cliodhna Foley, Patrick Dempsey, Delahunty,
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50 www.lawsociety.ie PARCHMENT CEREMONIES LAW SOCIETY GAZETTE JUNE 2008 chelle Kellegher, Lauren Martin,chelle Kellegher, Conor Matthews, Daniel Murphy, Orla Nally, Tomas Nyhan, Tom O’Byrne, Nyhan, Tom Tomas Orla Nally, Daniel Murphy, field, David Clery, Hugh Clohessy, Tony Collier, Maeve Doyle, Collier, Tony field, David Clery, Hugh Clohessy, k Ryan, Robert Roisin Slattery, Ryan, Anna Scanlan, Silke Shanley, director general Ken Murphy were guests of honour at the 13 March Keith Underwood, and Aishling Walsh Dorothy Walsh Yvonne Walsh, parchments on 13 March 2008 Newly-qualified solicitors at the presentation of their Francis Fox, Simon Fraser, Leonora Frawley, Gerard Gallagher, Naomi Gardiner, Salome Hennessy, Melanie Hughes, Declan Hynes, Mi Salome Hennessy, Naomi Gardiner, Gerard Gallagher, Leonora Frawley, Francis Fox, Simon Fraser, 2008 parchment ceremony for newly-qualified solicitors: Eimear Buckley, Brendan Burke, Audrey Byrne,2008 parchment ceremony Ciara Cahill, Michele Caul for newly-qualified solicitors: Eimear Buckley, Andrew McCudden, Terry McLoughlin, Ross McMahon, Sinead McNelis, Conor Minogue, Cliodhna Mulcahy, Conrad Murphy, Louise Murphy, Andrew Conrad Murphy, McCudden, Terry McLoughlin, Ross McMahon, Sinead McNelis, Conor Minogue, Cliodhna Mulcahy, Jane O’Flynn, Sarah O’Keeffe, Fiona O’Keeffe, Donal O’Regan, Claire Reilly, Philippa Reilly, Suzanne Roche, Wendy Ruddy, Patric Jane O’Flynn, Sarah O’Keeffe, Ruddy, Suzanne Roche, Wendy Fiona O’Keeffe, Philippa Reilly, Donal O’Regan, Claire Reilly, Mr Justice Michael Peart, O’Donnell SC (chairman of the Bar Council), President Turlough of the Law Society James MacGuill, and
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www.lawsociety.ie 51 LAW SOCIETY GAZETTE JUNE 2008 PARCHMENT CEREMONIES O’Carroll, Deirdre O’Sullivan, Jane Marie Dermott, Jolene McElhinney, Stephen McKenna, John McNulty, Stephen McKenna, John McNulty, Dermott, Jolene McElhinney, d director general Ken Murphy were guests of honour at the 17 April ke, John Peter Cleary, Peter Corkery, Neil Cosgrave, Alice Cowman, y, Emer Gallagher, Karen Grant, Eimear Grealy, Karl Griffin, Karen Grant, Eimear Grealy, Jamie Hart, Emer Gallagher, y, parchments on 17 April 2008 Sinead Roycroft, and Alma Whelan Martina Stephen Walsh Yvonne Snow, Ryan, Sam Saarsteiner, Newly-qualified solicitors at the presentation of their Ciaran Maguire, Brian Malone, Padraig Mawe, Carolann Minnock, Stephen Murphy, Owen Nicholson, Aine Ní Dhuibhir, Mark Nixon, Roy Owen Nicholson, Aine Ní Dhuibhir, Ciaran Maguire, Brian Malone, Padraig Mawe, Carolann Minnock, Stephen Murphy, Cathy Heneghan, Aileen Hogan, Anthony Hughes, Damian Jordan, Jason Kelly, Yvonne Kelly, Michael Lane, Gillian McAuley, Aoife Mc Michael Lane, Gillian McAuley, Yvonne Kelly, Cathy Heneghan, Aileen Hogan, Anthony Hughes, Damian Jordan, Jason Kelly, 2008 parchment ceremony for newly-qualified solicitors: James Allen, Collette Bennett, Andrea Brennan, Rory Byrne, William Clar Rachel Coyle, Mairead Cronin, Conor Dalton, Laura Daly, Diane Dawson, Lisa Marie Deegan, Laura Duffy, Susan Elliott, Carol Feel Rachel Coyle, Mairead Cronin, Conor Dalton, Laura Daly, Mr Justice Garret Sheehan of the High Court, President of the Law Society James MacGuill, an Garda Commissioner Fachtna Murphy, PIC: JASON CLARKE PHOTOGRAPHY
52 www.lawsociety.ie BOOK REVIEWS LAW SOCIETY GAZETTE JUNE 2008 books
Literature, Judges and the Law
WN Osborough. Four Courts Press (2007), 7 Malpas Street, Dublin 8. ISBN: 978-1-84682-079-3. Price: €55.
ial Osborough is to be imagine students faced with Secondly, that same student Nwarmly applauded for his judgments exceeding a should remember that law has excellent new book. It is a reasonable number of pages no earthly purpose but to delightful collection of easily may legitimately roll their eyes facilitate the implementation of read passages on judges’ use of at the inclusion of yet another political ideas and the conduct literary citation in the course of unnecessary reference to of transactions and industry. giving written judgments. It is Socrates, St Mark or Allusions to a world outside the beautifully structured, so as to Shakespeare. A person, in this strict confines of legal allow the reader to adopt a context, can’t help but wonder education is, in this sense, more comprehensive or thematic if judges don’t have rather than merely enriching – it approach or simply to pick it up more time on their hands than reminds us that we work with from time to time and read a the average mortal in having the rules only to achieve a short excerpt on a series of recourse to such works in the higher external goal. cases with the same literary very serious, and expensive, But finally, and most theme. With issues ranging business of giving judgment. importantly, Osborough shows from the lung capacity of swans In some ways the use of modern legal system, where the that the use of literary to the true meaning and origin these references offers an volume of litigation and its references in judgments serves of ‘shibboleth’, this book is a insight into the mind of the inherent cost is so high. to achieve what law sometimes genuine trove of esoteric and judge – their knowledge of, and However, the use of relevant cannot – the clearest expression value-laden accounts of the law interest in, such subjects and and considered references to of the idea at hand. Why in operation. whether they choose to display the arts in law is to be shouldn’t it be true that the arts Osborough describes the use it. Certainly it is clear that welcomed and richly enjoyed would offer a more eloquent of literary and biblical knowledge of the arts is not for three reasons. The first is elucidation of the principles that references in a range of key necessary for appointment as a that it allows the writer to draw inform our conceptions of areas of law. When faced with judge, and we should be on the invocations of logic and governance than can be such references in the course of concerned if our assessment of learning from sources outside achieved through that most their work, the pragmatist or the quality of judgments was the law in an earnest rigorous, and ultimately practitioner under pressure may based on the frequency or consideration of the matter at unsatisfactory, set of expressions wonder what their use could obscurity of literary references. hand and, in doing so, offers a of norms – the law. possibly contribute to the It is never a mark of quality degree of colour and joy to the quality of the judgment and work to include references that sometimes very dull world of Jennifer Carroll, solicitor, is a whether in fact a simple, short distract, obscure or alienate, legal analysis. Even the most lecturer in UCD’s School of and straightforward approach especially where lives and exasperated student or Politics and International to written decisions is more livelihoods are at stake. practitioner must accept and Relations and legal advisor in the appropriate in contemporary Judgments should be concise, enjoy the occasional ode in a Fine Gael Leader’s Office, legal practice. Certainly, I precise and accessible in the field full of prose. Leinster House. Practice and Procedure in the Superior Courts (second edition) Benedict Ó Floinn. Tottel Publishing (2008), Fitzwilliam Business Centre, 26 Upper Pembroke St, Dublin 2. ISBN: 978-1-84766-058-9. Price: €225. nowledge of the law of US 673, 681 [1930]), observed university. I do not proclaim aspects of legal scholarship. Kpractice and procedure is that he was not “one of those that the law of practice and The same Judge Frankfurter, in essential for the successful judge, who thinks that procedure is procedure is the most McNabb v United States (318 US practising solicitor and barrister. just folderol or noxious moss”. important aspect of legal study, 322, 348 [1943]), noted that The great US judge Felix Sadly, the law of practice and but it is a fertile subject in its “the history of liberty has Frankfurter, in Cook v Cook (342 procedure is not taught in own right, rich in potential largely been the history of
www.lawsociety.ie 53
BOOK REVIEWS LAW SOCIETY GAZETTE JUNE 2008
observance of procedural Apparently there are publication of the first edition in safeguards”. approximately 100 statutory 1996 and I frequently perused The law of practice and instruments amending the its pages in my search for procedure is thus of pivotal primary Rules of the Superior answers to practical queries interest for anyone who claims Courts 1986. The author, who is posed in legal practice. I found to be a practising lawyer. an Irish language enthusiast, answers to my frequent queries Mr Justice Peter Kelly of the observes that not one of the in the book. Accordingly, this High Court referred, in his amending statutory instruments second edition is to be foreword to the first edition, to is publicly available in the Irish welcomed. the Herculean task of the language, despite the declaratory Benedict Ó Floinn has written author, barrister Benedict Ó judgments of a number of judges an accessible, intellectually Floinn, in bringing this book to of the High and Supreme strong, perceptive and practical fruition. Courts. account of the rules of the Ten years have elapsed since The book contains an erudite superior courts of Ireland, which the publication of that first annotation on each individual deserves to be on the shelf of edition. The author notes that rule of the superior courts. Each overall effect of the book and every lawyer who practises in the the large number of amending rule is set out in one typeface, leaves the reader in no doubt as superior courts. statutory instruments reflects while the annotation is set out in to what text belongs to the rules “exciting initiatives”. There is another. There is a physical and to the annotation. Dr Eamonn G Hall is the also an increasing number of separation of the two by means I have been in legal practice principal of EG Hall & Co cases on procedural law. of a line – which enhances the for many years. I welcomed the Solicitors. Company Law Compliance and Enforcement Nessa Cahill. Tottel Publishing (2008), Fitzwilliam Business Centre, 26 Upper Pembroke St, Dublin 2. ISBN: 978 1 84592 105 7. Price: €175.
ompany law enforcement obligation that is as overlooked in its various submissions on Chas been getting a bit of a by companies as by journalists, recent company law rough press recently. On the who rarely exercise their enactments, has urged that one hand, the regulators are statutory right to inspect what honest accounting be at the assailed for alleged inactivity by are (or should be) informative centre of the focus of corporate those who would see corporate records of ownership of compliance, as opposed to the wickedness at every turn, and, companies. obsessive box-ticking of on the other, for their ‘Delphic It then deals with a procedural compliance with posture’ towards the blameless. company’s obligation to keep legal provisions, as envisioned Company law – and the what the law still quaintly calls in the Companies (Auditing and enforcement processes that are “books of account”. At the same Accounting) Act 2003, mercifully available to the regulators and time as I was reading Ms not commenced. to which companies, their Cahill’s book, I was rereading Ms Cahill concludes the officers and insolvency Barbara Ley Toffler’s Final section on corporate practitioners are subject – are Accounting, which narrates the compliance with the regulation complex. Dozens of enactments nursery slopes of filing downfall of Arthur Andersen of shareholder meetings. – primary, secondary and obligations, to the Cresta Run for its complicity in the The book then progresses European – litter the legal of restriction and preparation of false accounts by into the area of compliance horizon, encompassing disqualification orders, in a Enron, WorldCom and others. demanded of individuals – insolvency law and securities most readable style. If there is one area of law where directors, auditors, receivers, law as well as company law. The structure of the book enforcement must be liquidators and examiners. In Into this arena of complexity starts the reader at corporate unbending, it is this. Technical the case of directors, it includes and controversy comes an compliance – that is, – and more importantly, ethical a succinct narrative of the excellent legal textbook, which compliance demanded of – lapses in the area of arcane provisions on self- is both timely and welcome, companies. Beginning with accounting are at the core of dealing by directors in the not only for being a first, but public filings at the Companies many, if not most, corporate Companies Act 1990, as well as a also on account of its rigour in Registration Office, it then failures, and bring an discourse on what is expected of dealing with its subject matter. deals with the obligations of accompanying corrosion of directors in their report on the Ms Cahill takes us from the companies to keep registers, an investor trust. The Law Society, accounts of a company. Ms
www.lawsociety.ie 55 LAW SOCIETY GAZETTE JUNE 2008 BOOK REVIEWS
Cahill then moves into the guidance on this law. 200 pages and a fifth of the book, the chapters on restriction meaty area of fraudulent The book then moves into book. This is compulsory are essential reading for anyone trading, which includes a the area of enforcement and reading for all solicitors with a seeking an understanding of the detailed examination of its investigation, dealing with commercial practice, be it for law and procedures. constituent factors. This is agencies of enforcement, the high-street businesses or In the chapters on restriction followed by a detailed powers of the ODCE, and multinational groups. In brief, and also on disqualification, exposition of the law relating to company inspections. Under if a company is wound up and there is ample relevant case law, auditors and their obligations the heading of ‘criminal cannot pay its debts, all of the as well as a thorough with respect to disclosure to prosecutions’, there is an directors of the insolvent explanation of procedures. the Office of the Director of excellent exposition of section company are liable to be In conclusion, this is an Corporate Enforcement 383 of the Companies Act 1963, restricted and must prove that excellent book, well researched (ODCE) of breaches of the as amended by section 100 of they acted “honestly and and accessible to read. The Companies Acts. the Company Law Enforcement responsibly in the conduct of ultimate test of a law book is The duties of receivers, Act 2001. This is the section the affairs of the company” and this: will it be on my personal liquidators and examiners are that puts a positive obligation that there is no other reason shelves and will I read it? dealt with in a broadly similar on company directors to why it should be just and Unquestionably, yes. fashion, starting with procure compliance of their equitable to make a declaration I recommend it to all solicitors rudimentary duties and moving company with the Companies of restriction. with a practice in this area, which into more complex areas of Acts. It also provides that, where The caprices of the law on means every solicitor that has a compliance. In the case of a company is in default, a restriction of directors and company, a director, an auditor liquidators, this brings us into director is presumed to be in attendant ODCE procedures or an insolvency practitioner as a the area of ‘section 56 reports’ default unless the director can have been the subject of a client. G – reports required to be made prove otherwise. recent Supreme Court by liquidators to the ODCE. Ms Cahill then moves into judgment in Re Tralee Beef and Paul Egan is chairman of the As well as dealing with the the area of restriction and Lamb Ltd ([2008] IESC 1, 1 Corporate Department of Mason statutory provisions, Ms Cahill disqualification of directors, February 2008). Although that Hayes & Curran and a member of takes us through the ODCE which accounts for more than judgment came too late for the the Company Law Review Group.
56 www.lawsociety.ie BRIEFING 57 JUNE 2008 JUNE G www.lawsociety.ie Mr Murran said that the Society of Ireland was repre- Society of Ireland was of sented on the board and LawCare by Mr Murran (support Louise Campbell meet- services executive). Two been held ings of the board had the previ- since January and, on had been interviews ous day, conducted for the appointment of an Irish coordinator. chief executive of LawCare was delighted with the level of sup- port being provided by the Law Society of Ireland. In addition, the Society was keen not to cut across the very valuable work being done by the Southern Law Association and the Dublin Solicitors’ Bar Association via their help lines. The statistics for LawCare for the first quar- ter of 2008 indicated that the level of uptake in Ireland was slightly ahead of the level of uptake in the first quarter for England and Wales. Calcutta Run 2008 The president urged Council members to participate in or to support the Calcutta Run, which would be held on 17 May. On behalf of the Council, he complimented the Calcutta Run the team and, in particular, Society staff members involved: Blennerhassett, Cillian Tom Morgan, MacDomhnaill, Tony Maree Crowley and Gayle Ralph, together with the staff of the facilities and premises sec- tion of the Society for their huge effort in organising the Calcutta Run. LAW SOCIETY GAZETTE Report on eport SOLICITORS’ HELPLINE was being exam- The Law Society of Ireland THE SERVICE IS COMPLETELY CONFIDENTIAL AND THE SERVICE IS COMPLETELY SOCIETY INDEPENDENT OF THE LAW TOTALLY 01 284 8484 The president paid tribute to The president paid tribute of James McCourt (chairman Annual Conference the Society’s to the event Force) and Task He organisers, Ovation-MCI. noted that the 2009 conference Spain, would be held in Bilbao, to and he encouraged colleagues participate. CCBE Michael Irvine reported that the EU Commission’s Conveyancing ined by the CCBE’s Competition Committee, which was adopting a methodology approach. He noted also that a questionnaire had been issued on multi-jurisdictional practice, which was being considered by the relevant committee within the CCBE. In addition, the Force was Financial Action Task holding meetings with lawyers to discuss the ‘risk-based approach’ in relation to money laundering. LawCare Murran reported that Tom LawCare, which had been established initially in England to assist solicitors and Wales with alcohol problems, had extended its services to assist legal practitioners suffering from stress, depression and other health issues. had agreed to provide the LawCare service to its mem- bers from 1 January 2008. The service operated with a freep- hone number and the Law ). council r council Immigration, Gazette Immigration, Council recorded its apprecia- Council recorded its the lay tion for the work of of the members and the work complaints staff in the Society’s section. Provisions) Bill 2006 2008 The Council noted the Society’s submission on the Residence and Protection Bill 2008 and expressed its appreciation for the work of the Human Rights Committee in its prepa- ration, in particular Colin Daly, Noeline Blackwell and Elaine Dewhurst. Submission to the DPP on the discussion paper on the giving of reasons for decisions The Council noted the Society’s submission to the DPP on the discussion paper on the giving of reasons for decisions, in which the Society had expressed reservations about the proposal (see p12 of this Annual conference Geraldine Clarke congratulated the president on a successful annual conference, which had been held in Budapest, with excellent presentations from the Deputy Director of Public Prosecutions, the EU Ambassador to the US and the Minister for Justice, Equality and Law Reform. She noted that attendance at the conference provided an interesting means of rewarding or incentivising staff. Civil Law (Miscellaneous The director general reported that the bill had completed its reading in the Dáil and was under consideration by the Seanad. Submission on Residence and Protection Bill for Report of the Lay , but that the
. It was noted that there
Relations Committee the Complaints and Client Laundering) Bill 2008 Bill 2008
11 April 2008 11 April Law Society Council meeting, meeting, Council Society Law Members of the Complaints and Client Relations Committee John P Shaw referred the Council to the Report of the Lay Members of the year 2006/2007. He noted that the number of complaints by was increasing year-on-year approximately 10%, which matched the percentage increase in the practising pro- He also fession year-on-year. noted that the lay members had expressed concerns in relation to the number of repeat offend- ers and the level of non-compli- ance with section 68. The The president noted that the Society was due to meet with the departments of justice and finance to discuss the content of the draft heads of bill. Criminal Justice (Money had been a number of changes to the provisions that had previ- ously been contained in the Civil Law (Miscellaneous Provisions) Bill effect of the bill remained sub- stantially the same. Legal Services Ombudsman The Council considered the contents of the newly published Legal Services Ombudsman Bill 2008 Appointments to other bodies Appointments to other the The Council approved Patrick reappointment of Discipli- Dorgan to the IAVI appoint- nary Committee, the to the ment of John Costello Steering National Elder Abuse appoint- Committee, and the to ment of Rosemary Horgan COSC. (SI 7/4/ Taxes European European Appoints Appoints . Consequent on SI 105/2008 SI 104/2008 SI 96/2008 (SI 752/2004) to lawyers 30(1)) Order 2008 54(1)(a)(i)) Order 2008 (Commencement of Section (Commencement of Section Consolidation Act 1997 Number: Contents note: Finance Act 2008 Number: Contents note: 17/4/2008 as the commence- ment date for section 30(1) of the act. Section 30(1) deals with decommissioning of fishing ves- sels: the amendment of section 288 (balancing allowances and balancing charges) of the Finance Act 2008 1/5/2008 as the commencement date for section 54(1)(a)(i) of the act. Section 54(1)(a)(i) deals with capital gains tax: amend- ment of chapter 6 (transfers of business assets) of part 19 of the Number: Contents note: and the accession of Bulgaria regu- Romania to the EU, these lations extend the Establish- Communities (Lawyers’ ment) Regulations 2003 723/2003) and the Communities (Lawyers’ Establish- Communities (Lawyers’ ment) Regulations (Amendment) 2004 from those member states. SI 723/2003 brought into force in Ireland the measures necessary to comply with Directive 98/5/EC, to facilitate practice of the profession of a lawyer on a permanent basis in a member state other than that in which the qualification was obtained. SI 752/2004 extended the provi- sions of that directive to lawyers from the ten accession EU member states. Commencement date: 2008 7/4/ 15/4/ European Appoints Specify the Consequent on to lawyers from SI 97/2008 SI 126/2008 SI 102/2008 2008 (Amendment) Regulations Regulations 2008 (Amendment) Regulations Services) (Lawyers) Commercial Matters) (Lawyers’ Establishment) (Freedom to Provide (Evidence in Civil or European Communities European Communities Number: Contents note: the accession of Bulgaria and Romania to the EU, these regu- lations extend the to Provide Communities (Freedom Services) (Lawyers) Regulations 1979-2004 those member states. The latter regulations gave effect to Council Directive 77/249/EEC, so as to enable lawyers from other member states to pursue activities in this state by way of provision of services. Commencement date: 2008 Number: Contents note: 5/5/2008 as the commencement the act. date for all sections of European Communities Number: Contents note: District Court as competent to take evidence for the purpose of article 1.1(a) of Council Regulation (EC) no 1206/2001 on cooperation between the courts of the member states in the taking of evidence in civil or commercial matters. Designate the Courts Service as the central body in the state for the purpos- es of articles 3 and 17 of the council regulation. Commencement date: 2008 Sex 7/6/ , and Child the Com- , and the ) to confer Amends the 7/5/2008 15/4/2008 Voluntary Health Voluntary Health Insurance Health Insurance Act 6/2008 (as amended by the , the , the 2008 (one month after the pass- ing of the act – per s15(2) of the act) Commencement date: provides for related matters. Date enacted: Criminal Evidence Act 1992 Offenders Act 2001 in persons, especially women in persons, especially and children, supplementing against the UN convention crime transnational organised 15/11/2000. done at New York, of Gives effect to the Council action Europe convention on against trafficking in human beings done at Warsaw, 16/5/2005. Amends the Trafficking and Pornography Act Trafficking 1998 Criminal Law (Sexual Offences) (Amendment) Act 2007 (Commencement) Order 2008 (Amendment) Act 2008 additional functions on the Health Insurance Voluntary Board and to empower the board to form and establish or acquire subsidiaries to perform certain functions of the board. Specifies the borrowing powers of the board and such sub- sidiaries and provides for related matters. Date enacted: Commencement date: mencement order(s) to be made (per s22(3) of the act) SELECTED STATUTORY INSTRUMENTS Control of Exports Act 2008 Number: Contents note: (Amendment) Act 2001 Voluntary Health Insurance Health Insurance Act Voluntary 1957 1994 Insurance (Amendment) Act 1996 and the , legislation update legislation 16 April – 20 May 2008 16 April JUNE 2008 JUNE Com- Criminalises Gives effect to 28/4/2008 7/2008 8/2008 Criminal Justice Act 1994 Trafficking) Act 2008 Assistance) Act 2008 www.lawsociety.ie Number: Contents note: the selling or purchasing of human beings, both children and adults, for any purpose. Creates offences criminalising trafficking in persons for the specific purposes of their sexual or labour exploitation or the removal of their organs. Gives effect to the Council Framework Decision of 19/7/2002 on com- bating trafficking in human beings. Gives effect, in part, to the UN protocol to prevent, suppress and punish trafficking Criminal Law (Human Criminal Justice (Mutual Number: Contents note: certain international agree- ments, or provisions of such agreements, between the state and other states relating to mutual assistance in criminal matters. The text of the agree- ments or provisions of agree- ments are set out in the sched- ules to the act. Repeals and re- enacts, with amendments, part VII (international cooperation) of the and provides for related matters. Date enacted: Details of all bills, acts and Details of all bills, since statutory instruments cata- 1997 are on the library logue – www.lawsociety.ie (members’ and students’ infor- areas) – with updated stage mation on the current and the a bill has reached of commencement date(s) each act. ACTS PASSED Commencement date: mencement order(s) to be made (per s1(2) of the act) LAW SOCIETY GAZETTE
BRIEFING 58 BRIEFING 59 Bunkers ( Appoints JUNE 2008 JUNE Prepared by the Prepared G Law Society Library www.lawsociety.ie SI 120/2008 ). (SI 504/2006) to change (SI 504/2006) Safety, Health and Welfare at and Welfare Health Safety, (Construction)Work Regulations 2006 date from the operational 6/7/2009 for cer- 6/5/2008 to to the tain regulations relating possession of a construction under the skills registration card construction skills certification to certain scheme, as it applies tasks – see SI for details. (Commencement) Order 2008 Provisions) Act 2006 (Part 2) Sea Pollution (Miscellaneous Number: Contents note: 21/11/2008 as the commence- ment date for part 2 (ss3-18) of the act. Part 2 gives effect to the International Convention on Civil Liability for Bunker Oil Pollution Damage 2001 Convention , 6/5/ LAW SOCIETY GAZETTE Amend the SI 130/2008 Taxes Consolidation Act 1997 Consolidation Taxes 2008 the the Revenue which allow to make regula- Commissioners the consent of the tions, with Finance, requiring Minister for assurance financial institutions, funds and companies, collective an annual state bodies to make in return of customers resident or the state to whom interest a certain other payments above par- threshold are made. These for ticular regulations provide building the reporting by banks, and sav- societies, credit unions and simi- ings banks of interest lar payments. Commencement date: 2008 (Amendment) Regulations at Work (Construction) Safety, Health and Welfare Number: Contents note: of 6/5/ 10.30am each day. 10.30am each day. : hearing of summary 5/8/08 to business from Tuesday from 10.30am each day. from 10.30am each day. (No sitting Monday 4/8/08). Tuesday to Friday (inclusive) from 10.30am each day. to Friday (inclusive) from 10.30am each day. Tuesday Monday to Friday (inclusive) from 10.30am to 5pm each day Give partial Monday to Saturday (inclusive) from 10.30am to 5pm each day. Monday to Saturday (inclusive) from 10.30am to 5pm each day. Give effect to Give effect hearing of summary 5/8/08 to Friday 8/8/08. business from Tuesday hearing of criminal business Monday 11/8/08 to Friday 29/8/08 from juvenile business – each Tuesday and Thursday from 10.30am. juvenile business – each Tuesday Friday 29/8/08 from 10.30am each day. Friday 29/8/08 from 10.30am each day. Finance Act 2006) SI 136/2008 SI 139/2008 Monday 11/8/08 to Friday 15/8/08 – hearing of summary business REGULAR HOLIDAY SITTINGS REGULAR HOLIDAY Monday to Friday (inclusive) from10.30am each day. (No sitting Monday 4/8/08) Monday to Friday (inclusive) from10.30am each day. ADDITIONAL COURT SITTINGS Regulations 2008 2008 Unions and Savings Banks) 2005/36/EC) Regulations Building Societies, Credit Qualifications (Directive Number: Return of Payments (Banks, Contents note: effect to the provisions of sec- tion 891B (inserted by section 125 of the Recognition of Professional Number: Contents note: Contents on the Directive 2005/36/EC profes- mutual recognition of in sional qualifications obtained in or, another EU member state country, certain cases, in a third Directive as amended by the acces- 2006/100 by reason of sion of Bulgaria and Romania. Commencement date: 2008 . in SUMMER HOLIDAYS 2008 SUMMER HOLIDAYS 29/4/ SITTINGS OF THE DMD FOR SITTINGS OF THE The Court at Cloverhill: Court No 55 Smithfield: Declares that Court No 46 Chancery Street: Dun Laoghaire Court: Court Courts No 51 The Richmond Court No 44 Chancery Street: SI 132/2008 Industrial Relations Act Court No 53 The Richmond Courts: Court Courts: No 53 The Richmond Court No 41 Dolphin House: The Criminal Law Committee wishes to clarify that it has opposed vacation sittings, and continues to do so. The Committee’s The Criminal Law Committee wishes to clarify that it has opposed vacation sittings, and only involvement in relation to the vacation 2008 sittings was to seek full details of same in order that the information could be published as soon as possible. No inference should be drawn from this fact to suggest that the Committee has participat- ed in any agreement on dates for vacation sittings. . The purpose of the code . The purpose of the (Declaration) Order 2008 Information and Consultation) (Code of Practice on the code of practice set out in the code of practice is a the schedule to this order purpos- code of practice for the es of the 1990 of practice is to assist employers, employees and their representa- tives in developing effective arrangements for communica- tions and consultation, in accor- dance with the provisions of the Employees (Provision of Inform ation and Consultation) Act 2006 Number: Contents note: relation to compensation in relation to decommissioning respect of the of fishing vessels. Industrial Relations Act 1990 Commencement date: Taxes Consolidation Act 1997 Consolidation Taxes 2008 the and Solicitors ), that: and amended by Solicitors (Amendment) Solicitors (Amendment) Act ) of the (as substituted by section shall not be permitted to practise as a sole practitioner or in partnership, that he be permitted only to practise as an assistant solicitor under the direct control and super- vision of another solicitor of at least ten years’ standing, to be approved in advance by the Law Society of Ireland, solic- deliver to Marian Petty, all or any documents, itor, files and papers in his posses- sion or within his procure- ment arising from his prac- including tice as a solicitor, all ledger cards and funds held for or on behalf of clients’ files, the cost of the proceedings herein and the cost of the proceedings before the Solic- itors Disciplinary Tribunal. On 10 March 2008, the section 9 of the 1) solicitor The respondent 2) respondent solicitor do The 3) Society do recover The Law In the matter of James P a solicitor of Doire, Murphy, Co Ballygaddy Road, Tuam, and in the matter of Galway, tor before the High Court, tor before the High of the together with the report Court, tribunal to the High the opin- which report includes to the fit- ion of the tribunal as respon- ness or otherwise of the of dent solicitor to be a member having the solicitors’ profession, regard to their findings tribunal recommendations of the should be as to the sanction that imposed, having regard to their findings in respect of the respon- dent solicitor. President of the High Court ordered, pursuant to section 8 of the 1960 18 of the Act 1994 (Amendment) Act 2002 Solicitors [3387/DT21/ undertaking given to the complainant that he would deal with outstanding Land Registry queries, which undertaking was given at the time of closing of the sale in 1994, in a timely manner or at all, correspondence, Society’s and in particular the Society’s letters of 19 July 2006, 1 August 2006, 10 August 2006, 13 September 2006, 20 October 2006, 13 November 2006 and 11 December 2006 in a timely manner or at all, spondence from the com- plainant to him in connection with the outstanding under- taking, which correspon- dence spanned a number of years. taxed by a taxing master of taxed by a taxing master of the High Court, in default agreement. Solicitors (Amendment) Act 2002 07 and High Court record no 3SA 2008] Law Society of Ireland (applicant) Michael T Petty solicitor) (respondent On 27 November 2007, the Solicitors Disciplinary Tribunal found the respondent solicitor guilty of misconduct in his prac- tice as a solicitor in that he: a) an Failed to comply with b) Failed to respond to the c) Failed to respond to corre- The Solicitors Disciplinary ordered that the Law Tribunal Society of Ireland do bring such findings of the tribunal in respect of the respondent solici- In the matter of Michael T In the matter of Michael formerly of a solicitor Petty, M Petty & Company, Street, Solicitors, Parliament and in Ennistymon, Co Clare, the matter of the Acts 1954-2002 1,000 to the € his undertaking given to the Irish Nationwide Building Society and dated 9 Dec- ember 2002 in respect of a named property in Co Galway by failing to com- plete and register the mort- gage in favour of the Irish Nationwide Building Society having in a timely manner, only completed same in January 2006, undertaking dated 9 Dec- ember 2002 in relation to another named property in Galway, sale of the last-mentioned named property in Co Galway without obtaining the consent of the Irish Nationwide Building Society in advance, correspondence, Society’s and in particular the Society’s letters of 11 October 2005, 28 October 2005, 17 Nov- ember 2005, 20 December 2005, 10 January 2006, 6 February 2006, 14 February 2006, 16 March 2006, 29 March 2006, 6 April 2006. compensation fund, the Law Society of Ireland, as [6687/DT78/06] Law Society of Ireland (applicant) Joseph Fahey solicitor) (respondent the On 6 November 2007, Tribunal Solicitors Disciplinary solicitor found the respondent his prac- guilty of misconduct in he: tice as a solicitor in that a) Delayed in complying with b) Failed to comply with his c) Released the proceeds of the d) Failed to reply to the The tribunal ordered that the respondent solicitor: a) Do stand censured, b) Pay a sum of c) Pay the whole of the costs of JUNE 2008 JUNE 350 to the € Solicitors Acts 1954-2002 Solicitors Acts 1954-2002 undertaking dated 7 Nov- ember 2003 to ACC Bank to stamp and register the deed of charge and deed of transfer and as soon as practicable to lodge the deeds together with the certificate of title with the bank in respect of a named property in Co Galway on behalf of a named client, correspondence, Society’s and in particular the Society’s letters of 31 March 2006, 25 April 2006, 5 May 2006 and 19 May 2006, cific enquiries set out in the letter of 31 March Society’s 2006. compensation fund, the Law Society of Ireland, as taxed by a taxing master of the High Court, in default of agreement. www.lawsociety.ie Solicitors DisciplinarySolicitors Tribunal LAW SOCIETY GAZETTE [6687/DT70/06] Law Society of Ireland (applicant) Joseph Fahey solicitor) (respondent On 6 November 2007, the Solicitors Disciplinary Tribunal found the respondent solicitor guilty of misconduct in his prac- tice as a solicitor in that he: a) an Failed to comply with b) Failed to respond to the c) Failed to respond to the spe- The tribunal ordered that the respondent solicitor: a) Do stand censured, b) Pay a sum of In the matter of Joseph In the matter of of Ballygar a solicitor Fahey, Co Road, Mountbellew, in the matter of and Galway, the In the matter of Joseph a solicitor of Ballygar Fahey, Co Road, Mountbellew, and in the matter of Galway, the c) Pay the whole of the costs of Solicitors (Amendment) Act 1994 Reports of Solicitors Disciplinary of the outcomes are inquiries of Ireland by the Law Society published Tribunal as provided of the by section 17 23 (as amended for in section
BRIEFING 60 BRIEFING 61 100 to the € JUNE 2008 JUNE G www.lawsociety.ie Conveyancing Committee compensation fund, in respect of the disciplinary hearings held on 19 July 2007 and 25 October 2007 as taxed by the taxing master of the High Court in default of agreement. admonished, of Ireland, as Law Society taxing master of taxed by a in default of the High Court, agreement. The tribunal ordered that the advised, c) Pay the costs of the applicant a) advised and Do stand b)of the 50% of the costs Pay J In the matter of Michael solicitor of 4 Dun a Murphy, Co Ard, Knockcroghery, the mat- Roscommon, and in by ter of an application the Sol- Stephen Glanville to Tribunal icitors Disciplinary of the and in the matter Solicitors Acts 1954-2002 [4803/DT57/06] Stephen Glanville (applicant) Michael J Murphy solicitor) (respondent On 20 February 2008, the Solicitors Disciplinary Tribunal found the respondent solicitor guilty of misconduct in his prac- tice as a solicitor in that he deprived the applicant of his fees. respondent solicitor: a) Do stand admonished and b) of Pay a sum Property website Registration Authority at www.prai.ie. at the Four Courts LAW SOCIETY ROOMS LAW LAW SOCIETY GAZETTE her former clients’ new solic- her former clients’ new of itor requesting the transfer with her former clients’ files new their authority to their solicitor, clients’ costs to her former despite being new solicitor, requested to do so by letter dated 30 August 2005, the costs of the legal costs accountant she proposed to engage to prepare her own bill of costs would be dis- charged by her former clients, when in fact this was her liability and not theirs, dated a letter to the Society, 13 April 2006, that she was sending the files to her for- mer clients’ new solicitor that but did not in fact for- day, ward the files, over the files within ten days, as directed by the committee on 26 April 2006. Deirdre Nic Fhionnlaoich Deirdre solicitor) (respondent 2008, the On 17 January Tribunal Solicitors Disciplinary respondent solicitor found the in her guilty of misconduct that she practice as a solicitor in had: a) to reply to letters from Failed b) Failed to furnish a bill of c) Sought an undertaking that d) to the Society in Represented e) to hand Subsequently failed The tribunal ordered that the respondent solicitor: MARY BISSETT OR PADDY CAULFIELD BISSETT OR PADDY MARY PRACTICE NOTE Wexford and Wicklow and will come into Wexford effect The full text of on 1 October 2008. SI 81 of 2008 can be viewed on the , that the respon- 104,885 as of 30 May 2006, 104,885 as of 30 May 77,150 in total. was evidence that the poten- was evidence had made two tial beneficiary to gain previous attempts money the man’s control over in circum- and had failed it was not stances where such appropriate to take instructions, based on information clients, obtained from received and misappropriated € although the respondent that solicitor only admitted he had received and retained € On Monday 7 April 2008, the e) solicitor, The respondent The Solicitors Disciplinary the recommended to Tribunal High Court that the name of the respondent solicitor should be struck off the Roll of Solicitors. President of the High Court ordered, pursuant to the Solicitors Acts dent solicitor shall be suspended from practising as a solicitor until further order. In the matter of Deirdre Nic Fhionnlaoich, a solicitor prac- tising as MacGinley Solicitors, 3 Inns Quay, Chancery Place, Dublin 7, and in the matter of the Solicitors Acts 1954-2002 [2828/DT29/07] Law Society of Ireland (applicant) FOR BOOKINGS CONTACT FOR BOOKINGS CONTACT TEL: 668 1806 eet at the Four Courts M KILKENNY, LOUTH, SLIGO, WEXFORD AND WICKLOW KILKENNY, EXTENSION OF COMPULSORY REGISTRATION TO COUNTIES CLARE, REGISTRATION EXTENSION OF COMPULSORY Solicitors Acts 1954-2002 Solicitors Acts 43,400 after his dismissal 77,150, received in all but Statutory Instrument no 81 of 2008 extends compulsory registration to coun- Louth, Sligo, ties Clare, Kilkenny, to a will, a power of attorney and enduring power of attor- ney from a named elderly man in a nursing home, who could not speak or write, in circumstances where there extent of his misappropria- tion when originally request- ed to do so, having only dis- closed a misappropriation of € from a named firm of solici- tors, received and retained € one case in cash from clients on foot of costs, which monies were retained by the respondent solicitor and never put through the books of named firms of solicitors, received from clients when received from clients of he was in the employment a named firm of solicitors, d) in relation instructions Took c) Failed to disclose the full b) Admitted that he had On 17 January 2008, the On 17 January 2008, Tribunal Solicitors Disciplinary solicitor found the respondent his prac- guilty of misconduct in he: tice as a solicitor in that a)money Misappropriated the and High [3438/DT36/07 no 2008 no Court record 17SA] of Ireland Law Society (applicant) James P Murphy solicitor) (respondent , on the , Court of Criminal The Court of Criminal Fair procedures Jury of indict- trial – amendment case ment after close of prosecution – appeal from jury – juryverdict – risk of deliberating until late error on part of jury – whether of jury as a result unsafe verdict tiredness. A jury convicted the applicant on counts of indecent assault. The applicant alleged that the trial judge had erred in law in amending the indictment after the close of the prosecution case and in allowing the jury to deliberate until 10pm, when they had been sitting all day and deliberating since 5pm. The applicant alleged that a real risk of an unfair verdict existed. Appeal held that it was clear from the transcript that the day had been hot, oppressive, clam- my and draining. There was a real danger that the jury were extremely tired and that a real risk of error on their part arose. It would not be safe to allow the verdict to stand. of Public Prosecutions Director v (M)J (appli- (respondent) cant) Appeal, 14/3/2008, 236/06 [FL15014] Practice and procedure of search warrant – dis- Validity trict judge not sitting with juris- diction when warrant obtained – extraordinary excusing circum- stances – whether evidence obtained pursuant to warrant was admissible. The applicant appealed his conviction for keeping prohib- ited goods, contrary to the Finance Act 1999 grounds, among other things, that the search warrant used was invalid, in that the district , Supreme [FL15101] The Supreme Court dis- CRIMINAL LAW Delay Sexual offences – prosecutorial delay – leaking of information by and anxiety – – stress gardaí risk real imprisonment – whether of unfair trial. This was an appeal from a High Court judgment refusing to prohibit the trial of the appli- cant in the Circuit Criminal Court on 104 charges of inde- cent assault on a number of pupils in a national school. The applicant raised issues of prose- He also empha- cutorial delay. sised that there had been leaking of information by the gardaí that led to vilification in the media. He submitted that the publicity had a detrimental effect and had caused pretrial The applicant stress and anxiety. also submitted that important witnesses had died or could not be traced and there was an absence of necessary documen- tation. The applicant also relied on his inability to remember persons and circumstances. missed the appeal and affirmed the order of the High Court refusing the application to injunct the trial, holding that the applicant had failed to establish matters so as to invoke the exceptional jurisdiction of the court. The applicant did not meet the required test for inter- vention and prohibition of a trial. In the circumstances as a whole, there was no real risk of an unfair trial. The trial would proceed under the control of a judge, who had a duty to ensure that the trial was fair. T(J) (applicant/appellant) v DPP (respondent) Court, 17/4/2008, SC no 270 of 2007 habeas , High ultra vires , High Court, proceedings to inquire Edwards J refused the appli- tional. It was hard to see how tional. It was hard to to the any liability could attach where it bank in circumstances lawfully complied with a member issued direction by a The of An Garda Síochána. lifting garda authorities, in not when the direction at a time not going they knew there was to be any prosecution of the plaintiff in respect of the funds held by the direction, acted in a manner that was their powers as provided for by section 31(8) of the act of 1994 and as substituted by section 21 of the act of 2001. Burns (plaintiff) v Bank of (defendant) Ireland Court, Mr Justice Gilligan, 4/5/2007, 2005 no 2898P [FL15099] Mr Justice Edwards, 21/3/2008, 2008 no 423 SS [FL15029] into the legality of his deten- tion pursuant to a warrant of execution. The applicant was convicted of public order offences and did not pay a fine imposed, resulting in the war- rant of execution. The appli- cant alleged a conspiracy to incarcerate him. cation, holding that no basis was presented for an inquiry pursuant to article 40.4. There was no evidence of a conspira- cy to incarcerate him. Riney (applicant) v Governor of Loughnan House Prison (respondent) Habeas corpus Lawfulness of detention – District Court warrant – default of pay- ment of penalty – unpaid fine – offences – article public order 40.4 of the Constitution. The applicant initiated corpus – , to , sec- News fromIreland’s online legal awareness service Compiled by Flore Bouhey for FirstLaw update JUNE 2008 JUNE ultra vires Criminal Justice Criminal Justice Criminal Justice Act , as substituted by section , to the bank not to deal , section 21. Gilligan J held that the fail- CONSTITUTIONAL LAW CONSTITUTIONAL www.lawsociety.ie firstlaw Garda Síochána by gardaí given Whether direction to deal with bank not directing plaintiff’s account contravened plaintiff’s constitutional rights – – of constitutionality presumption acted whether gardaí Criminal Justice Act 1994 tion 31 – (Theft and Fraud Offences) Act 2001 The plaintiff successfully con- tested a US extradition war- rant. He had received a cheque for US$95,890.07 through a US bank and lodged it to an account in the Bank of Ireland. The bank made a report, under section 57 of the Criminal Justice Act 1994 the gardaí, who issued a direc- tion pursuant to section 31(8) of the 1994 21 of the (Theft and Fraud Offences) Act 2001 in any way with the proceeds of the account. When the plaintiff sought payment out of the monies, the bank refused and the plaintiff issued proceedings. The plaintiff alleged that the direction given by the gardaí under sec- tion 31 contravened his con- stitutional and convention rights. The plaintiff alleged that the statute made no provision for a reasonable time limit within which the direction should remain oper- ative. ure of the impugned section to provide for a time limit in rela- tion to the direction to the bank was not, of itself, enough to displace the presumption that the section was constitu- LAW SOCIETY GAZETTE
BRIEFING 62 63
BRIEFING . [FL1 prima de novo and that Solicitors Acts – case for inquiry – , Supreme Court, JUNE 2008 JUNE www.lawsociety.ie Rondel v Worsley de novo case and the case law as prima facie The Supreme Court allowed G 1954-2002. a deci- The appellant appealed in turn sion of the High Court, Solicitors on appeal from the rejecting Disciplinary Tribunal, the his complaint against The respondent solicitor. other appellant alleged, among Court things, that the High had erred in law in its applica- tion of Appeal The categorisation by the High Court of the complaints as pro- cedural was correct. The appel- lant had not established a facie invoked by the High Court was correct. O’Reilly (appellant) v Lee (respondent) 23/4/2008, 333/06 the court had failed to address matters in the appeal. the appeal, holding that the appeal to the High Court from the Solicitors Disciplinary was an appeal Tribunal 5148] Solicitors’ law Solicitors’ Disciplinary – – appeal procedures – Solicitors Disciplinary Tribunal no PRACTICE AND PRACTICE PROCEDURE This information is taken from awareness legal current FirstLaw’s service, published every day on the internet at www.firstlaw.ie. [FL1 LAW SOCIETY GAZETTE Hague Convention , Supreme Court, The Supreme Court dis- return– jurisdiction of Australia settled in jurisdic- – whether child was grave there tion – whether of child. risk to welfare Court made an The High order in a to case that a child be returned its place of habitual residence, arose, Australia. The issue among other things, as to grave risk whether there was a child if as to the welfare of the Allega- returned to Australia. to sexual tions were made as respon- contact between the parties dent and the child. The had separated in Australia. Statements made by an Australian judge in proceed- ings were raised so as to demonstrate that grave risk existed as to the child if they had stayed in Australia. missed the appeal and affirmed the order of the High Court. If the appellant was dissatisfied with the decision of the Australian court, she could appeal the decision. The appel- lant could not make out a grave risk. There was no credible evi- dence that the Australian courts were unable or unwilling to protect the interests and wel- fare of the child. An undertak- ing would be required from the respondent. L(P) (applicant) v C(E) (respondent) 11/4/2008, 065/2008 5071] , , so as to – removal to – removal [FL15145] Interpretation Act Interpretation Interpretation Act Interpretation Road Traffic Act 1961 Road Traffic , High Court, Ms . The applicants had . Dunne J held that the effect Dunne J held that the FAMILY LAW FAMILY Ireland from Australia – order to from Australia – order Ireland Justice Dunne, 1/4/2008, 2008 no 57 SS Child abduction Hague Convention 29 of the by section 7 of the was affected Act 2006 Road Traffic court of its discre- remove the alleged that tion. The applicant expectation he had a legitimate to that he would be entitled for make an application licence. restoration of a driving The respondent contended act of that the wording of the 2006 was clear and undisputed. applica- An issue arose as to the tion of the 2005 new act of the provisions of the was to remove the provision permitting an individual to apply to court to remove an imposed disqualification. The narrow interpretation asserted for by the respondent could not be adopted. The right to bring the application was ‘acquired’ within the meaning of section 27 of the 2005 acquired the right to apply for a restoration of their application. O’Sullivan (appellant) v Superintendent in charge of Station (respon- Garda Togher dent) Road Road deprives Interpreta- – , Court of Crim- [FL15149] The Court of Criminal inal Appeal, 21/4/2008, 105/07 Road traffic from fine Case stated – hardship – discre- and disqualification order tion of District Court – whether enactment of section 7 of the Act 2006 Traffic District Court of jurisdiction to disqualification order remove under section 29 of the Act 1961 Traffic tion Act 2005. A district judge posed a case stated to the High Court as to whether the jurisdiction to remove disqualifications imposed for a road traffic offence, as contained in section Appeal held that the warrant Appeal held that the juris- used was issued without diction and could not thus be relied upon. The conviction would thus be quashed. v Joyce DPP (respondent) (applicant) judge who issued the warrant judge who in the district was not sitting to. The appli- he was assigned alleged that the cant further erred in law in per- trial judge prosecution to mitting the comple- reopen its case after The issue tion of the evidence. the evi- arose as to whether dence obtained was inadmissi- ble and whether any extraordi- nary excusing circumstances evidence existed to render the admissible. of a Stadt , , para 49). In that regard, the court The court averred that, in stated that it had been shown annexed to the by the study, defence, of the Italian state’s shareholdings in EFIM, Finmeccanica and Agusta that the latter had, since its forma- tion, been a company governed by private law and that it had, since 1974, always been a pri- vate company with govern- ment participation – that is, a company whose capital is held in part by that state and in part by private shareholders. It fol- lowed that, since Agusta is a company in part open to pri- vate capital, the Italian state cannot exercise over that com- pany a control similar to that which it exercises over its own departments. those circumstances and with- out the necessity of examining whether Agusta carries out the essential part of its activities with the concession-granting the Italian public authority, argument that there republic’s was an ‘in-house’ relationship between that company and the Italian state must be rejected. Halle and RPL Lochau tant to note that the participa- tant to note that the tion, even as a minority private undertaking in the cap- ital of a company in which the contracting authority in ques- tion is also a participant excludes in any event the possi- bility of that contracting authority exercising over that company a control similar to that which it exercises over its own departments (see . Asemfo Commission v Commission v Spain [2005] ECR I-9705, [1999] ECR I-8121. , para 50; Case C-26/03, It therefore fell to be exam- In relation to the first con- as ‘in-house’ relations, as as ‘in-house’ relations, referred to in Case C-107/98, Teckal ‘In-house’ relationship The court averred that it was settled case law that a call for tenders under the directives relating to public procurement even if the is not compulsory, contracting party is an entity legally distinct from the con- where two tracting authority, conditions are met. First, the which is a public authority, must contracting authority, exercise over the distinct entity in question a control that is similar to that which it exercis- es over its own departments and, second, that entity must carry out the essential part of its activities with the local authority or authorities that control it (Case C-107/98, Teckal Stadt Halle and RPL Lochau [2005] ECR I-1, para 49; Case C-84/03, [2005] ECR I-139, para 38; Case C-29/04, Austria para 34; Case C-340/04, Carbotermo and Consorzio Alisei [2006] ECR I-4137, para 33; and Case C-295/05, [2007] ECR I-2999, para 55) ined whether the conditions required by that case law were met in the case under consid- eration. dition, which concerned the control, the public authority’s court stated that it was impor- Italy submitted that the sup- purchased helicopters without purchased helicopters any competitive tendering procedure. The commission further observed that the fleets of the state corps concerned were formed exclusively of such helicopters, none of which was purchased following a competitive tendering proce- dure at community level. As those contracts satisfied the conditions specified by Directive 93/36, the commis- sion submitted that they should have been the subject of an open or a restricted proce- dure, in compliance with arti- cle 6 of that directive, but not of a negotiated procedure. plies intended for the military corps of the Italian state are covered by articles 296 EC and 2(1)(b) of Directive 93/36. Those provisions were appli- cable, it submitted, because the helicopters in question are ‘dual-use’ items, that is, they may serve both military and civilian purposes. It further contended that, because of the technical specificity of the hel- icopters and of the additional dual nature of the supplies in question, it could, pursuant to article 6(3)(c) and (e) of Directive 93/36, use the nego- tiated procedure. More gener- it stated that its practice ally, did not differ from that imple- mented in the majority of the member states that produce helicopters. It argued finally, that, until the end of the 1990s, the relations of the Italian state with Agusta could be analysed ,8 JUNE 2008 JUNE News fromthe EU and International Affairs Committee Director Law Society of Ireland of Education, Edited by TP Kennedy, legal Commission eur he decision of the he decision of European Court of Justice The European Commission The commission submitted www.lawsociety.ie Public procurementPublic the ECJ: and appropriate award tender procedures LAW SOCIETY GAZETTE T April 2008, provides guidance as to the circumstances in which the negotiated proce- dure, in the context of public supply contracts falling with the scope of Directive 93/36/EEC of 14 June 1993, are permitted. applied to the ECJ for a decla- ration that Italy had failed to fulfil its obligations under Council Directive 93/36/EEC (coordinating procedures for the award of public supply contracts, as subse- quently amended by Directive 97/52/EC of 13 October 1997) by adopting a procedure of directly awarding contracts to Agusta SpA for the purchase of helicopters without any com- petitive tendering procedure without and, in particular, complying with the procedures provided for under those directives. that it had established the exis- tence of a general practice of directly awarding contracts for the purchase of Agusta and Agusta Bell helicopters to cover the requirements of var- ious military and civilian corps of the Italian state. It referred to several contracts concluded in the period 2000 to 2003 with various state agencies. In relation to the period prior to the year 2000, the Italian authorities admitted having v Italian Republic (Agusta) in Case C-337/05,
BRIEFING 64 BRIEFING 65 those JUNE 2008 JUNE www.lawsociety.ie artistic reasons, or for rea- sons connected with pro- tection of exclusive rights, the products supplied may be manufactured or deliv- ered only by a particular supplier, contracts, the contracting the authorities shall apply article procedures defined in 1(d), (e) and (f) in the cases set out below. may award their supply con- tracts by negotiated proce- dure in the case of irregular tenders in response to an open or restricted procedure or in the case of tenders that are unacceptable under national provisions that are in accordance with provi- as insofar sions of title IV, the original terms for the contract are not substantially altered. The contracting authorities shall in these cases publish a tender notice unless they include in such negotiated procedures all the enterprises satisfying the cri- teria of articles 20 to 24, which, during the prior open or restricted procedure, have submitted tenders in accor- dance with the formal requirements of the tender- ing procedure. may award their supply con- tracts by negotiated proce- dure without prior publica- tion of a tender notice, in the following cases: • When, for technical or • For additional deliveries properly be invoked to justify properly be negotiated proce- the use of the purchase of dure for the helicopters. of the fleet Homogeneity the The court then addressed attempt to justify Italian state’s procedure use of the negotiated 6(3)(c) by reference to article 93/36. and (e) of Directive directive Article 6(1) to (3) of the part: provides, in the relevant 1) public supply In awarding 2) The contracting authorities 3) The contracting authorities LAW SOCIETY GAZETTE Therefore, the court found As regards the fact that Italy As regards the fact that or other member states, the court stated that the require- ment to impose an obligation of confidentiality “in no way prevents the use of a competi- tive tendering procedure for the award of a contract”. that resort to article 2(1)(b) of Directive 93/36 to justify the purchase of the helicopters in question by the negotiated pro- cedure seemed to be dispropor- tionate as regards the objective of preventing the disclosure of sensitive information relating to their production. Italy had not shown that such an objec- tive was unattainable within a competitive tendering proce- dure such as that specified by the same directive. It followed that article 2(1)(b) could not question, as Italy had admitted, question, as for civilian use were certainly for military use, and possibly stated that article the court to which article 3 296(1)(b) EC, 93/36 refers, could of Directive to jus- not properly be invoked tify recourse to the negotiated of procedure for the purchase those helicopters. for had not stated the reasons the con- which it submitted that fidentiality of the information of submitted for the production the helicopters manufactured less well by Agusta would be guaranteed were such produc- tion entrusted to other compa- nies, be they established in Italy It was clear from the word- The court stated that it was The court stated that rials – provided, however, “that rials – provided, however, such measures do not alter the conditions of competition in the common market regarding products which are not intend- ed for specifically military pur- poses”. ing of that provision that the products in question must be intended for specifically mili- tary purposes. It followed that the purchase of equipment, the use of which for military pur- poses is hardly certain, must necessarily comply with the rules governing the award of public contracts. The supply of helicopters to military corps for the purpose of civilian use must comply with those same rules. As it had been estab- lished that the helicopters in which are declared secret or which are of which must be the execution by special securi- accompanied in accordance with ty measures or admin- the laws, regulations in force in istrative provisions the member states concerned of the or when the protection member basic interests of the security so requires”. state’s out that, important to point EC, any under article 296(1)(b) such member state may take neces- measures as it considers of the sary for the protection security essential interests of its and which are connected with the production of or trade in arms, munitions and war mate- Italy takes a direct hit for failure to engage in competitive tendering [1999] Johnson , para 31). Sirdar [2003] ECR I- [2000] ECR I-69, Dory Commission v Spain Dory Kreil The recognition of the . In that regard, the court stat- The court referred to the In relation to measures In relation ed that it is for the member state that seeks to rely on those exceptions to furnish evidence that the exceptions in question do not go beyond the limits of such exceptional cases (see Case C-414/97, contention that Italian state’s the purchase of Agusta and Agusta Bell helicopters met the legitimate requirements of national interest foreseen in articles 296 EC and 2(1)(b) of Directive 93/36 on the ground that those helicopters are dual- use items. Article 2(1)(b) pro- vides that the directive is not to apply to “supply contracts [1999] ECR I-5585, para 22). para 16; and ECR I-7403, para 16; Case C- 285/98, [1986] ECR 1651, para 26; Case C-273/97, existence of such an exception would be liable to impair the binding nature of community law and its uniform application (see Case C-222/84, 2479, para 30). As the court 2479, para 30). As the treaty had already held, the appli- provides for derogations may cable in situations that in partic- involve public safety, in articles 30, 39, 46, 58, ular, 64, 296 and 297 EC, which deal with exceptional and clearly defined cases. The court stated that it could not be inferred from those articles “that the treaty contains an inherent general exception excluding all measures taken for reasons of public security from the scope of community law” adopted by member states in adopted by with the legitimate connection of national inter- requirements noted that such est, the court not excluded in measures are applica- their entirety from the solely tion of community law in the because they are taken or interests of public security Case- national defence (see 186/01, fer- annual in vitro G pro rata protection against dismissal provided by Austrian legislation. She claimed payment of her salary and Further, the Italian state had Further, James Kinch is a senior executive solicitor in the law department of Dublin City Council. the Italian state had not dis- the Italian burden of proof as charged the reason for which regards the produced by only helicopters be endowed with Agusta would technical specifici- the requisite ties. out confined itself to pointing the advantages of the interoper- used ability of the helicopters had not, by its various corps – it demonstrated in what however, supplier respect a change of it to would have constrained acquire material manufactured tech- according to a different nique and likely to result in incompatibility or dispropor- tionate technical difficulties in operation and maintenance. The court, having regard to all the above, gave a declaration in the terms as sought by the commission. remuneration. The Austrian courtguidance on asked for under the directive on whether, the safety and health at work of pregnant workers (92/85/EEC), a woman is pregnant before her fertilized been trans- ova have ferred into her uterus. The ECJ held that the protection of the directive cannot be extended to a worker where the tilised ova have not yet been transferred into her uterus. The court reached this decision on the basis of the principle of legal certainty. Otherwise, the benefit of the protection could be granted even where the transfer of the fertilised ova is postponed, for whatever rea- son, for a number of years, or even where such a transfer is in , para fer- [2005] , para 33). Commission v Commission in vitro fertilisation treat- Commission v Italy [1996] ECR I-1949, [1996] ECR Commission v Spain in vitro fertilisation ova took of her To prevent Directive 93/36 prevent Directive To The court averred that, in February Mayr was 2008. Ms employed as a waitress by the respondent in Salzburg from3 January 2005. She was under- going Case C-318/94, Case C-318/94, Germany Case C-394/02, para 13; and v Greece Commission para 33). ECR I-4713, effective- being deprived of its could ness, the member states for the not, therefore, provide use of the negotiated procedure by that in cases not provided for condi- directive, or add new pro- tions to the cases expressly that vided for by that directive easier to make that procedure Case C- use (see, to that effect, 84/03 48). addition, the burden of proving the existence of exceptional cir- cumstances justifying the dero- gation from those rules lies on the person seeking to rely on those circumstances (see Case C-199/85, [1987] ECR 1039, para 14, and Commission v Greece In the case under consideration, place, she was entitled to the ment. She was certified sick by her doctor from 8-13 March 2005. On 10 March, she was informed by telephone that she was dismissed from 26 March. By letter of the same date, she informed her employer that, in the course of her treatment, the transfer of the fertilised ova was planned for 13 March. On the date when she was dis- missed, her ova had been fer- tilised and thus , vitro tilised ova already existed. Three days after she was informed of the dismissal, two fertilised ova were transferred into her uterus. She argued that, from the date on which , 26 recital in the Sabine Mayr v th Commission v Italy , para 43, and Case Commission v Spain The court, referring in par- The court, Teckal EMPLOYMENT ‘Parmesan’ and is phonetically visually similar to ‘Parmigiano’. For this reason, use of the name ‘parmesan’ must be regarded as an evocation of ‘Parmigiano Reggiano’. Germany had failed to show that the name ‘parmesan’ is generic. Member states have a duty to take national measures to ensure full application of the reg- ulation. The German legal system provides instruments that are capable of guaranteeing protec- tion of the interests of producers and consumers alike. A member state is not obliged to take, on its own initiative, measures in order to penalise the infringement on its territory of designations from another member state. Case C-506/06, it was necessary to ensure the it was necessary of its fleet of interoperability particular- in order, helicopters, opera- to reduce the logistic, ly, costs. tional and pilot-training ticular to the 12 Gerhard Flöckner OHG preamble to Directive 93/36, preamble to Directive that the stated that it was clear is excep- negotiated procedure only tional and may be applied in an in cases that are set out that end exhaustive list. It is to of the that article 6(2) and (3) and directive exhaustively excep- expressly lists the only to the tions for which recourse negotiated procedure is allowed (see C-84/03, para 47). According to settled the derogations from case law, the rules intended to ensure the effectiveness of the rights con- ferred by the treaty in connec- tion with public contracts must be interpreted strictly (see Case C-57/94, [1995] ECR I-1249, para 23; Bäckerei und Konditorei , 26 JUNE 2008 JUNE Commission of Recent developments in EuropeanRecent developments law by the original supplier by the original either as that are intended of a partial replacement or instal- normal supplies the extension lations or as supplies or of existing a installations where change of supplier would oblige the contracting authority to acquire mate- rial having different tech- nical characteristics, in which would result incompatibility or dispro- portionate technical diffi- and culties in operation maintenance. The length of such contracts as well as that of recurrent con- as a general tracts may, rule, not exceed three years. DESIGNATION OF DESIGNATION ORIGIN Case C-132/05, Federal Republic of Germany www.lawsociety.ie the European Communities v LAW SOCIETY GAZETTE The Italian state submitted that, first, having regard to the their technical specificity, manufacture of the helicopters in question could be entrusted only to Agusta and, second, that February 2008. Regulation 2081/92 protects designations of origin registered with the EC against “any misuse, imitation or evocation”. Generic names may not be registered. The com- mission brought proceedings against Germany on the basis that it did not protect the desig- nation ‘Parmigiano Reggiano’ sufficiently. It called on Germany to take action to stop the mar- keting of products sold under the name ‘parmesan’ that do not comply with the specification for the designation of ‘Parmigiano Reggiano. The ECJ held that it is not only the exact form in which a designation has been registered that is protected under EC law.
BRIEFING 66 BRIEFING 67 JUNE 2008 JUNE www.lawsociety.ie G Olympic, while the old company Olympic, while the old retained liabilities. substantial The commission considered the restructuring of the company to company be state aid. The new had also received other financial assistance and support, as well as various forms of subsidies. These included rental payments aircraft,for the subleasing of overvaluationassets when of the new company was created, payment by the Greek state instead of the airline of certain bank loans and leases, and the Greek state’s forbearance with regard to taxes and social secu- rity contributions. The commis- sion rules that these forms of support were state aid and that Greece was under an obligation to recover the various aids with- The Greek state was out delay. also to immediately suspend the granting of any additional aid. Greece challenged the validity of the commission decision and also submitted that the commis- sion had failed to provide a reli- able method of calculation to make possible a determination of the aid amounts to be recov- ered. The ECJ upheld the validity of the commission decisions and found that Greece had not fulfilled its obligations on foot of these decisions. The court held that, in the context of an action for failure to fulfil obligations, a member state to which a state- aid decision has been addressed cannot validly justify failure to implement that deci- sion on the basis of its alleged illegality. you can sign up by visiting the members’ website at section on the Law Society’s Click on the ‘New e- www.lawsociety.ie. zine for members’ in the left-hand section You menu bar and follow the instructions. which will need your solicitor’s number, can be obtained by emailing the records department at: [email protected]. LAW SOCIETY GAZETTE , 14 February Commission of Convention on . She found the limita- exclusion from liability is a per- full use missible way of making to the of the scope granted member states in relation to the polluter- implementation of the looked pays principle. She then at the 1971 STATE AID STATE Damage Compensation for Oil Pollution tion on the liability of both the tion on the liability of ship’s owner and the internation- with the al fund to be compatible It is justi- polluter-pays principle. fied to apportion to the general public a causal contribution for oil accidents and some of the risk, since the contracting states to that convention – which include almost all of the EU member states – permit risky maritime oil transportation and accept the risk of having to bear further costs. Thus, it is compat- ible with the polluter-pays princi- ple to limit the liability of the pro- ducer of heavy fuel oil and/or the seller and carrier in accor- dance with the liability and the fund conventions. Case C-419/06, International Fund for Hellenic Republic the Establishment of an the European Communities v 2008. The Greek national air- line, Olympic Airlines, encoun- tered severe financial difficul- ties. The company was restruc- tured but eventually a new com- pany was set up in late 2003. The new company received the assets of the ‘flights’ division of , the Waste precludes EC Waste , they would International The Law Society’s e-zine is the legal The Law Society’s newsletter of the solicitors’The profession. e-zine issues once every two months and brings news and information directly to your computer screen in a brief and easily- If you’re not receiving digestible manner. the e-zine, or have opted out previously and would like to start receiving it again, . The ducing, selling or carryingducing, selling the actually heavy fuel oil, without transporting it, are also liable for dam- disposing of the pollution General age caused. Advocate fuel Kokott concluded that heavy oil is to be treated as waste for if it is the purposes of EC law discharged in a tanker accident and sed- and is mixed with water iment. In accordance with the Waste Framework Directive Oil Pollution Damage Convention on Civil Liability for Directive have to be ordered to bear the cost of disposing of the oil waste following the tanker accident, insofar as they can be accused of contributing personally to causing the leak of the heavy fuel oil. The advocate general went on to analyse the effects that international agreements binding on France might have on liability under the Framework Directive any claim for compensation in France against anyone other than the owner of the ship, unless the damage was caused That intentionally or recklessly. financial burden of the disposal the per- operations should be on This sons who cause the waste. areapplies whether these the holders or former of the holders waste or even producers of the product from which the waste companies are came. The Total the producers of the heavy fuel oil and/or the seller and the car- If responsibility for costs rier. were to be assessed solely on the basis of the fer-
in vitro
in vitro , 13 March Commune de
ENVIRONMENTAL Are you getting yourAre e-zine? Case C-188/07, fertilisation treatment. definitively abandoned. A work- definitively er who is undergoing Total International Ltd Mesquer v Total France SA and whether those involved in pro- for the purposes of EC law and falls within the meaning of waste charged heavy fuel-oil discharge French court asked whether dis- Directive 75/442 on waste. The interpretation of provisions of a referencefor an to the ECJ French Cour de Cassation made tanker sinking in 1999. The clean-up of oil pollution from a costs it incurred respect in of its Group seeking repayment of the an action against the Total of Mesquer in Brittany brought General Kokott. The Commune 2008, opinion of Advocate that she was undergoing essentially based on the fact whether the dismissal was the referring court to decide sued by the directive. It is up to the objective of protection pur- dismissal would be contrary to tion on grounds of sex. Such a constitutes direct discrimina- is undergoing such treatment worker essentially because she worker essentially because women. The dismissal of a women. The dismissal treatment directly affectsonly women (76/207). This sortwomen (76/207). This of equal treatment for men and granted by the directive on nation on grounds that is of sex the protectiondiscrimi- against tilisation treatment rely can on Co Co Co Co Co Laois Co Limerick Co Limerick Co Offaly Co Meath Co Meath Limerick and Kelleher; folio: 13070F of 11639F; lands: townland of Newcastle and barony Clanwilliam; 10470; lands: townland of Feloree 10470; lands: townland of and barony of Clanwilliam; Routagh 5302F; lands: townland of folio: 18547; lands: Durrow 18547; lands: folio: barony of and Townparks Clarmallagh; townland of 18959; lands: and barony of Ballysimon Clanwilliam; Co Mayo Regd owner: Cornelius and Margaret Regd owner: Cornelius and Regd owner: Catherine Ryan; folio: Catherine Ryan; Regd owner: folio: Regd owner: Dalach Carey; Regd owner: Liam Hickey; folio: Regd owner: Co Mayo Co Limerick 11730; lands: townland of Glenquin and barony of Glenquin; Co Limerick folio: 21930; lands: townland of Kilbreed and barony of Coshma; Co Limerick 3190; lands: townland of Knockanes and barony of Coshma; Co Limerick Georgina Conlon, 16 St Mary’s Road, Dundalk, Co Louth; folio: 826L; lands: Marshes Upper; and barony of Clanwilliam; and barony of Clanwilliam; Louth 38368 and 38369; lands: townland of Massbrook South and barony of Tirawley; 39976; lands: townland of Rockfield and barony of Carra; area: 26 acres, 2 roods, 16 perches; Co Mayo 44918; lands: townland of Belgarrow and barony of Gallen; Co Mayo Knauss (as ten- and Frances Taylor ants-in-common); folio: 8265; lands: townland of Clooncah and barony of Costello; area: 14.9733 hectares; Ennistown, Fairyhouse Road, Ratoath, Co Meath; folio: 10544; lands: Ennistown; Ballinabrackey, Co Meath; folio: Ballinabrackey, 16594; lands: Toor; Junior; Drumbarragh, Newbliss, Co Monaghan; folio: 2551F; lands: Drumbarragh and Cormoy; Monaghan 2139F; lands: Barnan and barony of Philipstown Lower, 12593; lands: Shinrone and barony Regd owner: Denis Collins; folio: Coughlan; Regd owner: Timothy Regd owner: Martin Griffin; folio: Regd owner: James Coburn and Regd owner: Thomas Cawley; folio: Regd owner: James Doherty; folio: Regd owner: Patrick Naughton; folio: Doyle Regd owner: Margaret Taylor Regd owner: Patrick Birt, Site 1 Regd owner: Rose Grehan, Toor, Regd owner: Christopher Crowe, Regd owner: Kevin Daly; folio: Regd owner: Seamus Houlihan; folio: Co Galway Co Kilkenny Co Galway Co Galway Co Kildare Co Kerry Co Kilkenny Co Galway Co Galway Co Kerry Co Kerry lands: townland of Glennamucka townland of lands: area: 7 of Tiaquin; and barony acres, 1 rood; lands: townland of folio: 34009F; barony of Galway; Pollagh and area: 1.445 hectares; town- folio: 19127F; lands: Lynch; South, land of Loughglass of Fairfield and Leaha, and barony Ballymoe and Leaha; of 76135F; lands: townland and Gortnasteal and Tirneevin barony of Kiltartan; 36403; O’Shaughnessy; folio: lands: townland of Knockogonnell area: and barony of Ballymoe; 0.4550 hectares; 35499F; Margaret Hickey; folio: lands: townland of Knocknacar- ragh and barony of Galway; area: 0.02 hectares approximately; Galway folio: 14252F; lands: townland of Knoppoge and barony of Clanmaurice; 35356; lands: townland of Glanfahan and barony of Corkaguiny; Sullivan; folio: 10914F; lands: and townland of Claddanure West Dunkerron and barony of Dunkerron South; Deirdre Brassil, 738 Rowanville, Kildare, Co Kildare; folio: 12071F; lands: townlands of Dunmurry known as Dunmurry West, West, Kildare, in the barony Dunmurry, of Offaly East, in the electoral divi- sion of Dunmurry; Therese Duffey of Ballymount, Colinstown, Co Kildare; folio: 351; lands: townland of Ballymount and barony of Narragh and Reban East; Co Kildare deceased; folio: 3698; lands: Rathduff, known as Killarney Cross, Rathduff, Thomastown, and barony of Philipstown Lower; Co Kilkenny 11644; lands: Ballyhale and barony of Knocktopher; 10678; lands: Killoshaulan and barony of Crannagh; folio: 4120F; lands: Springhill, known as Killeshin Road, and Carlow; barony of Slievemargy, Co Laois John Burgess Lawson; Mercier, Regd owner: William J Kennedy; William Regd owner: and Julia Seamus Lynch Regd owner: folio: Regd owner: Liam McGloinn; Patrick Regd owner: Joseph and Regd owner: Donal Hickey Regd owner: Christopher Houlihan; folio: Regd owner: Thomas Lynch; Regd owner: Dermot and Ann Regd owner: Martin Brassil and Regd owner: Michael Duffey and Regd owner: Thomas O’Connell, Regd owner: Noeleen Phelan; folio: Regd owner: Eamon Gibbons; folio: Regd owner: James and Susan Hanly; Lily Regd owner: Harry Mercier, Co Co Co Co Co Dublin Co Dublin Co Dublin Co Dublin Co Dublin Co Dublin Co Dublin in the townland of Santry and townland in the barony of Coolock; share) and Maura undivided half undivided half Cummins (one DN92923L; lands: share); folio: as apartment 69, property known House, Spencer Fourth Floor, in the Custom House Square, the dis- parish of St Thomas and in in the trict of North Central and county borough of Dublin; Dublin lands: Duffy; folio: DN9839F; of property situate in the townland of Huntstown and barony Castleknock; lands: Frances Daly; folio: 31601L; side property situate on the south in the parish of Rise of Walnut Clonturk, district of Drumcondra; area: approximately 0.66 hectares; Co Dublin DN48114L; lands: property situat- ed to the east of the Belgard Road in the town of Tallaght; Dublin DN39997F; lands: property Road, situ- known as 12 St Enda’s ate in the parish of Rathfarnham and district of Rathmines; Dublin Kennedy; folio: DN30695L; lands: property situate to the east side of Ballymun Road in the parish and district of Santry; folio: DN29751F; lands: a plot of ground known as 1 Clarence Mangan Road, situate in the parish and district of of St Catherine’s South Central; DN3557F; lands: a plot of ground shown as 10 Huntstown Lawn, being part of the townland of Blakestown and barony of Castleknock; Rose Ellen Maria John; folio: DN8526L; lands: property situate in the townland of Sheepmoor and barony of Castleknock; Dublin DN 6124; lands: property situate in the townland of Killakee and property situate in the townland of and barony of Woodtown Uppercross; folio: DN74370L; lands: the prop- erty known as 31 Achill Road Drumcondra, situate in the Upper, parish of Clonturk and district of Drumcondra; Pauline Coppinger; folio: 4313; Regd owner: William Cummins (one Cummins William Regd owner: and Eva Regd owner: Patrick Duffy Daly and Regd owner: Christopher Regd owner: Paul Howard; folio: Regd owner: James Kenny; folio: Regd owner: James and Margaret Regd owner: Christopher J Toal; Regd owner: Maire Ni Uaiteir; folio: Regd owner: David Harold John and Regd owner: Francis McGrath; folio: Regd owner: Ethel Dora Murdock; Regd owner: Martin Coppinger and JUNE 2008 JUNE Co Cavan Co Dublin Co Carlow Co Carlow Co Cork Margaret Burke, folio: DN5286F; lands: property situate in the townland of Cornelscourt and barony of Rathdown; DN6099L; lands: property situate 522F; lands: plot of ground situate in the townland of Rodeen and barony of Bear in the county of Cork; Porthall, Lifford, Co Donegal; folio: 6525F; lands: Coneyburrow; Co Donegal Vogan; Drutamon, Cannings- Drutamon, Vogan; town, Cootehill, Co Cavan; folio: 11349; lands: Drutamon, Legland, Dooreagh and Turfad; Catherine Croston; folio: 23631F; lands: plot of ground situate in the townland of Gortnamucklagh and (East barony of Carbery West Division), in the county of Cork; Co Cork (deceased); folio: 1726F; lands: Aclare and Myshall and barony of Forth; 44441; lands: plot of ground situ- ate in the townland of Cummery Connell South and barony of Duhallow in the county of Cork; Co Cork 936F; lands: Ardnehue and barony of Carlow; O’Byrne; folio: 496F; lands: and barony of Carlow; Tinriland Co Carlow LOST LAND LOST LAND CERTIFICATES Regd owner: John Burke and Regd owner: James Corr; folio: Regd owner: Finbar Power: folio: Regd owner: Geraldine Browne, Regd owner: William Rowntree Regd owner: William Regd owner: Frank Croston and Regd owner: Patrick Keogh Regd owner: John McAuliffe; folio: Regd owner: Patrick Kennedy; folio: Registration of Deeds and Title Acts of Deeds and Title Registration 1964 and 2006 has been received An application men- from the registered owners for an tioned in the schedule hereto land cer- order dispensing with the the lands tificate issued in respect of which orig- specified in the schedule, to have inal land certificate is stated destroyed. been lost or inadvertently dispensed The land certificate will be received in with unless notification is from the the registry within 28 days notice that date of publication of this in existence the original certificate is person and in the custody of some Any owner. other than the registered state the such notification should grounds on which the certificate is being held. Property Registration Authority, Chancery 6 Dublin 7 (published Street, June 2008) Regd owner: Patrick and Sheila www.lawsociety.ie LAW SOCIETY GAZETTE
PROFESSIONAL NOTICES 68 PROFESSIONAL NOTICES LAW SOCIETY GAZETTE JUNE 2008
of Clonlisk; Co Offaly
Regd owner: Patrick Seery; folio: LAW SOCIETY 10368; lands: Ballindown and barony of Eglish; Co Offaly Regd owner: Denis and Natalyia Gazette Shiel; folio: 6950F; lands: Kilcruttin, in the barony of Ballycowan; Co Offaly PROFESSIONAL NOTICE RATES Regd owner: John Healy; folio: 32754; lands: townland of RATES IN THE PROFESSIONAL NOTICE SECTION ARE AS FOLLOWS: Bunnamucka, Cloonsreane, Mongagh, Drinagh and Falsk, in • Lost land certificates – €138.50 (incl VAT at 21%) the barony of Roscommon; Co • Wills – €138.50 (incl VAT at 21%) Roscommon • Title deeds – €138.50 per deed (incl VAT at 21%) Regd owner: Oliver Trimble and • Employment/miscellaneous – €138.50 (incl VAT at 21%) Ruth Malone; folio: 22329F; lands: townland of Cloonaddra These rates will apply from Jan/Feb 2008 to Dec 2008 and barony of Ballintober South; area: 0.3237 hectares; Co HIGHLIGHT YOUR NOTICE BY PUTTING A BOX AROUND IT – €33 EXTRA Roscommon Regd owner: Eileen T McLoughlin; ALL NOTICES MUST BE PAID FOR PRIOR TO PUBLICATION. CHEQUES SHOULD BE folio: 35908; lands: townland of Derriniskey and barony of Boyle; MADE PAYABLE TO LAW SOCIETY OF IRELAND. Deadline for July Gazette: Co Roscommon 18 June 2008. For further information, contact Valerie Farrell or Laura Wipfler on tel: Regd owner: Frank McGowan; folio: 01 672 4828 (fax: 01 672 4877) 10688; lands: townland of Tunnagh and barony of Corran; area: 7.3122 hectares; Co Sligo Regd owner: Brendan Gallagher and Regd owner: Joseph Kelly (farmer) Donnelly, Kathleen (deceased), Regd owner: Noel and Nuala Coffey; Noeleen Gallagher; folio: 11449F of Lisheens, Brittas, Co Dublin; late of 80 Kilgobbin Road, 14171F; lands: townland of and 3630; lands: Dunmore and folio: 4606F; lands: townland of Sandyford, in the county of Dublin. Shower and Foxhall and barony of barony of Gaultiere; Co Lisheens and barony of Would any person having any knowl- Owney and Arra; Co Tipperary Waterford Talbotstown Lower; Co edge of a will made by the above- Regd owner: Martin Egan; folio: Regd owner: Philip and Margaret Wicklow named deceased, who died on 6 June 2659F; lands: townland of Monroe McGuire; folio: 937L; lands: 2007, please contact Messrs Cullen & East and barony of Iffa and Offa Whiterock South and barony of O’Beirne, Suite 338B, The Capel West; Co Tipperary Forth; Co Wexford WILLS Building, Mary’s Abbey, Dublin 7; tel: Regd owner: Thomas Larkin; folio: Regd owner: James and Ingrid 01 888 0855, fax: 01 888 0820, email: 7469F; lands: the property being O’Connor; folio: 16915; lands: Brady, Daniel Frank (deceased), [email protected] certain lands at Kilsheehan, Ballinesker and barony of late of 5 Calderwood Avenue, Clonmel, in the county of Ballaghkeen; Co Wexford Glasnevin, Dublin 9, who died on Faherty, Ann (deceased), late of Tipperary; Co Tipperary Regd owner: John McDonagh; folio: 23 February 2007 at Hampstead 54 The Green, College Road, Regd owner: James Phelan; folio: 9988F; lands: Enniscorthy and Private Hospital, Glasnevin. Would Galway; date of death: 10 January 26842; lands: townland of barony of Scarawalsh; Co any person having knowledge of a 2008. Would any person with Cappaghnagarrane and barony of Wexford will made by the above-named any knowledge of a will executed Slievardagh; Co Tipperary Regd owner: Marita Ryan, Beech deceased please contact Gerrard L by the above-named deceased, Regd owner: Pat and Sheila Lee; Loose, Beech Road, Arklow, Co McGowan, Solicitors, The Square, who died on 10 January 2008, folio: 2910F; lands: townland of Wicklow; folio: 7826; lands: town- Balbriggan, Co Dublin; tel: 01 841 please contact Messrs Padhraic Regaile and barony of land of Shelton and barony of 2115, fax: 01 841 2037, email: Harris & Company, Solicitors, Middlethird; Co Tipperary Arklow; Co Wicklow [email protected] Merchants Gate, Merchants Road, Regd owner: Mary Tobin; folio: Regd owner: Frederick Arthur Galway; tel: 091 562 062, fax: 14393F; lands: townland of Fennell (deceased) of Park House, Conroy, James (deceased) (other- 091 566 653, email: cirwin@ Bowling Green and barony of Clonegal, Co Carlow; folio: 777; wise and/or also known as Jimmy), harrissolrs.ie Eliogarty; Co Tipperary lands: townland of Park (ED late of Urney House, Cloneygowan, Regd owner: Michael Halley; folio: Ballingate), known as Park, Co Offaly, who died on 14 August Gunning, Angela (deceased), late of 13688F; lands: plot of ground sit- Clonegall, Enniscorthy, in the 2007. Would any person having 27 Martin Street, Portobello, Dublin uate in the townland of barony of Shillelagh, in the elec- knowledge of a will being made by 8. Would any person having knowl- Ballyshonock and barony of toral division of Ballingate; Co the above-named deceased please edge of the whereabouts of a will exe- Decies without Drum in the coun- Wicklow contact Rollestons, Solicitors, cuted by the above deceased on 3 ty of Waterford; Co Waterford Regd owner: Margaret Kavanagh Church Street, Portlaoise, Co Laois, October 2001, who died on 14 March Regd owner: Block Drug Dungarvan (spinster) (deceased) of tel: 057 862 1329, fax: 057 862 0737, 2007, please contact John C Walsh & Ltd (formerly Stafford-Miller Sraghmore Hill, Sraghmore, email: [email protected] – ref: Company, Solicitors, 24 Ely Place, (Ireland) Limited); folio: 3785L; Roundwood, Co Wicklow; folio: CON0004 12 59 62 Dublin 2; tel: 01 676 6211, fax 01 661 lands: plot of ground situate in the 4021; townland of Sraghmore, in 1420 townland of Clogherane and the barony of Ballinacor North in Coghlan, Michael (deceased), late barony of Decies without Drum in the electoral division of Togher; of 11 Orchardstown Drive, Horan, James (Jim) (deceased), late the county of Waterford; Co Co Wicklow Templeogue, Dublin 14. Would any of St Julien, Clash Road, Little Island, Waterford Regd owner: Brid Heinl (school- person having knowledge of a will Cork, who died on 9 February 2007. Regd owner: Esther Cleary and teacher), c/o 29 Wicklow Street, made by the above-named deceased, Would any person having any knowl- Michael Cleary; folio: 8866F; Dublin, is full owner of property who died on 17 November 2006, edge of a will made by the above- lands: plot of ground in the parish number(s) 1 and 2; folio: 3280F; please contact Killeen, Solicitors, 14 named deceased please contact Eoin of Trinity Without, Division C, lands: townland of Tinode and Mountjoy Square, Dublin 1; tel: 01 C Daly Mallon, Solicitors, 38 South and barony of Waterford; Co barony of Talbotstown Lower; Co 855 5587, fax: 01 855 4091, email: Mall, Cork; tel: 021 427 5244, fax: Waterford Wicklow [email protected] 021 427 5243
www.lawsociety.ie 69 :an and in the Landlord and Landlord Landlord and Tenant Landlord In default of any such notice being In default of any such notice Dublin for the acquisition of the free- Dublin for the intermediate interest in hold and any any party and property, the aforesaid that they hold a or parties asserting in the aforesaid superior interest called upon to furnish property are title in the aforemen- evidence of to the solicitors for tioned property within the applicants, named below, 21 days of this notice. Thomas received, the applicants, O’Donnell, O’Donnell and Martina the applica- intend to proceed with for tion before the county registrar end of 21 the city of Dublin at the notice and days from the date of this registrar for shall apply to the county as the city of Dublin for directions, basis that may be appropriate, on the beneficially the person or persons interest entitled to the superior in including the freehold reversion the aforesaid premises are unknown or unascertained. Date: 6 June 2008 Signed: Daniel J Byrne & Co (solicitors for the applicant), 11/11a Ormond Dublin 1 Court, Ormond Quay, In the matter of the Acts 1967-1994 Tenant matter of the (Ground Rents) (No 2) Act 1978 application by Simon Curley Limited notice that any person having any Take interest in the freehold estate of the following property: rear 67 and 69 Upper Rathmines Road, Dublin 6, being portion of the premises known as numbers 67 and 69 Upper Rathmines Road in the city of Dublin, more particularly described in an indenture of lease dated 15 February 1975 made between Michael Devlin, Michael Campbell, Heather Hewson and Patrick Campbell of the one part and Simon Curley Limited of the other part for the term of 678 years from 1 May 1974 at the yearly rent of the sale. and client base. second office , pro- Well established Well Lease included in FOR SALE PRACTICE Ideal opportunity for SOLICITORS solicitor starting out or fee income by way of a solicitor wanting to grow and in the Clare/Limerick City area Landlord and Landlord Landlord andLandlord Tenant Landlord and Tenant Landlord Take notice that Michael Bourke notice Take on 9 And further take notice that, notice that Thomas Take was ultimately assigned to the said was ultimately and paying the applicants yielding of 0.88c (£0.69p) but yearly rent against payment thereof. indemnified Bourke, being the per- and Maureen to acquire the fee simple sons entitled described above under in the land part 11 of the 1978 (Ground Rents) (No 2) Act in the pose to purchase the fee simple land described above. in the June 2008 at 10 o’clock available forenoon or at the first this applica- opportunity thereafter, in the tion to purchase the fee simple be deter- lands described above shall sit- mined before the county registrar in ting at the courthouse, Clonmel, the county of Tipperary. Date: 6 June 2008 Co (solicitors Signed: Anne Fitzpatrick & for the applicants), Slievenamon Road, Thurles, Co Tipperary In the matter of the Acts 1967-2005 Tenant matter of the (Ground Rents) (No 2) Act 1978 in the matter of an application by Thomas O’Donnell and Martina O’Donnell notice that any person having any Take interest in the freehold estate of, or any superior interest in, the property situ- ate in the parish of St George in the county and city of Dublin but now known as 86 Summerhill, Dublin 1, and held under an indenture of lease dated 22 November 1894 made between Fanny Mooney and Maria Cleary of the one part and William Gardner Snowdon of the other part for a term of 132 years from 1 August 1894 and subject to a yearly rent of £4 and to the covenants and conditions therein. O’Donnell and Martina O’Donnell intend to submit an application to the county registrar for the county/city of Co Dublin. Established sole SOLICITORS with complimentary PRACTICE Russell & Company, Russell & Company, practitioner in North Email [email protected] 6 Hyde Park, Dalkey, 6 Hyde Park, Dalkey, practice in Drogheda. family law and general litigation seeks merger Leinster specialising in FAMILY LAW FAMILY Replies in confidence to: – any solic- will be pleased to will be pleased and in the matter of an Landlord and Tenant Acts and Tenant Landlord the personal representatives, the personal representatives, And to: 1. This notice refers to all that and 2. The applicants, of Kilbrennal, arbitration: an application by Michael Bourke and Maureen Bourke, Kilbrennal, Killenaule, Co Notice dated 14 Tipperary. February 2008 To : trustees and persons beneficially enti- tled in the estate of TWN Quinn, which estate formerly held lands and premises adjoining the town of Killenaule and houses and premises in the town of Killenaule containing 219 acres and 20 perches statute measure or thereabouts, in the barony of Sliev- under ardagh and county of Tipperary, a lease of lives renewable forever. London solicitors 1967-1994 advise on UK matters and undertake advise on UK handle probate, liti- We agency work. and company/com- gation, property Cresswell, 567/569 mercial. Parfitt London SW6 1EU; DX Fulham Road, Broadway; tel: 0044 83800 Fulham fax: 0044 2073 814044, 2073 818311, email: arobbins@parfitts. co.uk Estate of Patrick Farrell of an itor holding/having knowledge made 4 July original deed of transfer Hynes and 1957 between Michael part and Patrick Hynes of the one Farrell Andrew Farrell and/or Patrick to lands in of the other part, relating please con- folio 45451, Co Galway, & Son, O’Donoghue tact TA Co Tuam, Solicitors, Dublin Road, Galway; tel: 093 24751, email: [email protected] Notice of intention to acquire the fee simple (section 4). In the mat- ter of the trustees and persons beneficially enti- which tled in the estate of PV Waldron, estate formerly held lands and premises adjoining the town of Killenaule and houses and premises in the town of Killenaule containing 219 acres and 20 perches statute measure or thereabouts, in the barony of Slievardagh and coun- in fee simple. ty of Tipperary those the premises comprising the dwellinghouse, garage and out offices situate at Bailey Street, Killenaule, in the barony of Slievardagh and county more particularly delin- of Tipperary, eated on the map annexed hereto. are Killenaule, county of Tipperary, yearly tenants of the aforesaid prem- ises, pursuant to deed of assignment dated 16 July 1973 made between Richard Davey of the one part and Michael Bourke and Maureen Bourke of the other part, in which the yearly tenancy made between the estate of TWN Quinn and John McCormack TITLE DEEDS late late of JUNE 2008 JUNE late of 27 born on 25 August Lacey, Ellen (deceased), Lacey, Crescent, of 17 St Patrick’s Farm, Dun Monkstown Co Dublin, who Laoghaire, February 2008. died on 19 having any any person Would a will made by the knowledge of please above-named deceased tel: contact Margaret Lacey; 01 282 0424 MISCELLANEOUS www.lawsociety.ie McArdle, Noel (deceased), 192 Larkhill Road, Whitehall, Dublin 192 Larkhill Road, Whitehall, knowl- any person having 9. Would the origi- edge of the whereabouts of executed nal will, dated 31 July 1990, on 6 July by Noel McArdle, who died McKeever 1995, please contact Solicitors, 31 Laurence Taylor, tel: 041 Street, Drogheda. Co Louth; 983 8639, fax: 041 983 9762 McGurgan, Maureen (deceased), late of Cedarville Bough, Rathvilly, any person having Would Co Carlow. knowledge of a will made by the above-named deceased, who died on 6 March 2008, please contact Francis & Co, Solicitors, Edmund B Taaffe Co Kildare; tel: Rice Square, Athy, 059 863 8181, email: fbtaaffe@indi- go.ie O’Beirne, John Anthony (other- (deceased), wise Tony) Missing person: Cullen, Christ- opher Patrick, 1938 at 11 Loreto Road, Maryland, any person Dublin 8. Would having knowledge of the whereabouts of the aforementioned Christopher Cullen, who it is believed moved to North Hampton, England, circa 1956 and may also have lived in either Devon or Portsmouth in England. Christopher last returned to Ireland in 1982 for a number of months, following which it is believed he returned to England and has not any per- been heard of since. Would son having any knowledge of his whereabouts please contact John Gaynor & Co, Solicitors, 42/46 Thomas Street, Dublin 8; tel: 01 454 0068 or 01 453 7375, email: [email protected] Greentrees Road, Dublin 12, retired garda, who died on 26 September having any person 2007. Would knowledge of a will by the above- mentioned deceased after 6 October 1988 please contact Thomas Montgomery & Son, Solicitors, 5 Anglesea Buildings, Upper Georges St, Dun Laoghaire, Co Dublin; tel: 01 280 8632, fax: 01 284 3845, email: [email protected] LAW SOCIETY GAZETTE
PROFESSIONAL NOTICES 70 PROFESSIONAL NOTICES LAW SOCIETY GAZETTE JUNE 2008
£0.05 (if demanded). the date hereof, and will apply to the Take notice that any person having an Take notice that Simon Curley said county registrar for such direc- interest in the freehold estate or any Limited intends to submit an applica- tions as may be appropriate on the intermediary interest in the premises LEGAL DIGITAL tion to the county registrar for the basis that the person or persons ben- known as Belturbet Post Office, situ- TRANSCRIPTION county/city of Dublin for the acquisi- eficially entitled to any such superior ate in the townland of Corporation SERVICE tion of the freehold interest in the interest up to and including the fee Lands on the south side of the aforesaid premises, and any party simple in the aforesaid property is Diamond, Butler Street, in the town 24 HOUR TURNAROUND asserting that they hold a superior unknown and unascertained. of Belturbet, barony of Loughtee and OF DOCUMENTS interest in the aforesaid premises (or Date: 6 June 2008 county of Cavan, being the property any of them) is called upon to furnish Signed: Alfred Thornton & Company demised by an indenture of lease REASONABLE RATES evidence of title to the aforementioned (solicitors for the applicants), Shankill dated 30 August 1680 and made premises to the below named within House, Ferndale Road, Rathmichael, Co between William Copland and John 087-9490381 21 days from the date of this notice. Dublin Pearson for the term of 999 years In default of any such notice being from 1 November 1680 at the yearly received, Simon Curley Limited In the matter of the Landlord and rent of £4.12.4. perpetual yearly fee farm rent of intends to proceed with the applica- Tenant Acts 1968-1994 and in the Take notice that An Post intends to £46.3.1d (since adjusted to £46) tion before the county registrar at the matter of the Landlord and Tenant submit an application to the county and subject to the covenants on the end of 21 days from the date of this (Ground Rents) (No 2) Act 1978 and registrar for the county of Cavan for part of the grantee and conditions notice and will apply to the county in the matter of applicants Eamon the acquisition of the freehold interest therein contained, registrar for the county/city of Dublin Keating, Alan Tracey, Dermot and any intermediate leasehold inter- 3) Indenture of fee farm grant dated 2 for directions as may be appropriate Clarke, Terence Ruane, Brian ests in the aforesaid premises and that November 1850 and made on the basis that the person or persons Foran, John Walsh, Seamus any party asserting that they hold a between John Chambre, Earl of beneficially entitled to the superior O’Brien and Hugh Paul Ward and superior interest in the aforesaid prem- Meath, of the one part and James interest including the freehold rever- unknown respondent ises is called upon to furnish evidence Edkins of the other part, subject to sion in each of the aforesaid premises Take notice that any person having of the title to the below named within the payment of the yearly rent of 1 are unknown or unascertained. any interest in the freehold estate of 21 days from the date of this notice. £4.13.3 /2d thereby reserved (now Date: 6 June 2008 the following property: all that piece In default of any such notice being adjusted to £4.9.4d) and subject to Signed: Brian Matthews & Company of land being part of the land of received, An Post intends to proceed the covenants on the part of the (solicitors for the applicant), 7 Main Artane North barony and county of with the application before the coun- grantee and conditions therein Street, Dundrum, Dublin 14 Dublin, with the messuage or ty registrar at the end of 21 days from contained, dwellinghouse, shop or building the date of this notice and will apply 4) Indenture of fee farm grant dated In the matter of the Landlord and erected thereon, now known as 4 to the county registrar for the county 25 November 1853 and made Tenant Acts 1967-2005 and in the Kilmore Road, Artane, in the city of of Cavan for directions as may be between John Busby of the first matter of the Landlord and Tenant Dublin, held under lease dated 31 appropriate on the basis that the per- part, Edward Sharkey of the second (Ground Rents) (No 2) Act 1978: an December 1949 between Bernard son or persons beneficially entitled to part and the Reverend John Cotton application by Francis Gilmer and Hannon of the one part and Patrick J the freehold reversion and any inter- Walker of the third part, subject to Louise Gilmer Mahon of the other part. mediate leasehold interests in the the payment of the yearly fee farm Take notice that any person having an Take notice that the applicants aforesaid premises are unknown or rent of £44.6.0d thereby reserved interest in the freehold interest or any intend to submit an application to the unascertained. and subject to the covenants on the superior interest of the following county registrar for the county/city of Date: 6 June 2008 part of the grantee and conditions property: all that and those the Dublin for the acquisition of the free- Signed: Hugh O’Reilly, solicitor, An Post, therein contained. dwellinghouse and premises known as hold interest in the aforesaid proper- GPO, Dublin 1 ‘Buena Vista’, previously known as ties, and any party asserting that they Take note that Allied Bath Investment ‘Bella Vista’, Tower Hill, Killiney, in hold a superior interest in the afore- In the matter of the Landlord and Company Limited intends to submit the county of Dublin, held along with said premises (or any of them) is Tenant Acts 1967-2005 and in the an application to the county registrar other property under an indenture of called upon to furnish evidence of the matter of the Landlord and Tenant for the county of the city of Dublin at lease dated 25 January 1861 made title to the aforementioned premises (Ground Rents) (No 2) Act and in the Áras Uí Dhálaigh, Inns Quay, Dublin between Charles Henry Chaytor and to the below named within 21 days matter of the purchase of the free- 7, for the acquisition of the freehold Mary Chaytor of the first part, the from the date of this notice. hold estate of property situate at interest in the aforesaid property and said Charles Henry Chaytor of the In default of any such notice being Millstreet and Warrenmount, that any party asserting that they hold second part and Edward Courtnay of received, the applicants intend to pro- Dublin 8: an application by Allied a superior interest in the aforesaid the third part, subject to a yearly rent ceed with the application before the Bath Investment Company Limited property is called upon to furnish evi- of £21 and to the covenants and con- county registrar at the end of 21 days Take note that any person having an dence of title to the below named ditions therein contained for the term from the date of this notice and will interest in the freehold estate of the within 21days from the date of this of 500 years from the first day of apply to the county registrar for the property at Millstreet and Warren- notice. January 1861. county/city of Dublin for directions mount, Dublin 8, being property held In default of any such notice being The above-named applicants as may be appropriate on the basis under the following fee farm grants: received, Allied Bath Investment intend to submit an application to the that the persons beneficially entitled 1) Indenture of fee farm grant dated 22 Company Limited intends to proceed county registrar for the county of the to the superior interest including the May 1851 made between the with the application before the coun- city of Dublin to acquire the freehold freehold reversion in each of the Honourable William Earl of Meath ty registrar at the end of 21 days from interest in the aforesaid property, and aforesaid premises are unknown or of the one part and John Busby of the date of this notice and will apply any party asserting that they hold a unascertained. the other part, subject to the pay- to the county registrar for the county superior interest, including the free- Date: 6 June 2008 ment of the perpetual yearly fee of the city of Dublin for directions as hold reversion of the aforesaid prop- Signed: Marcus Lynch (solicitors for the farm rent of £78.16.6d (since adjust- may be appropriate on the basis that erty, is called upon to furnish evi- applicant), 12 Lower 0rmond Quay, ed to £75.11.1d) and subject to the the person or persons beneficially dence of title to the applicants’ Dublin 1 covenants on the part of the grantee entitled to the superior interest below-named solicitors within 21 and conditions therein contained, including the freehold reversion in days of this notice. In the matter of the Landlord and 2) Indenture of fee farm grant dated the aforesaid property are unknown And take notice that, in default of Tenant (Ground Rents) Acts 1967- 11 September 1855 made between or unascertained. any such notice being received, the 2005 and in the matter of the Teresa Watson, Katherine Rorke Date: 6 June 2008 applicants intend to proceed with the premises known as Belturbet Post and Eleanor McGrane of the one Signed: Arthur Cox (solicitors for the application before the county regis- Office, Co Cavan: an application part and John Busby of the other applicant), Earlsfort Centre, Earlsfort trar, on the expiry of the 21 days from by An Post part, subject to the payment of a Terrace, Dublin 2
www.lawsociety.ie 71 Landlord Landlord and Landlord and in the matter of an appli- , for the acquisition of the free- , for the acquisition of the Take notice that Olwyn Byrne and Take In default of any such notice being by indenture of sublease dated 13 by indenture 1904 made between September of the one part Samuel Worthington of the other and Maude Worthington of 147 years from 1 part for a term of £24 per September 1904 at a rent per annum annum, apportioned to £6 the subject in respect of the property of this application. persons McGovern, being the Tony inter- currently entitled to the lessees’ intend to est under the said lease, pur- Titles, apply to the Registrar of suant to section 21(1) of the (Groundand Tenant (No 2) Act Rents) 1978 hold interest and all intermediate properties, interests in the aforesaid they hold and any party asserting that a superior interest in the aforesaid property is called upon to furnish evi- dence of their title to same to the below named within 21 days from the date of this notice. received, the said Olwyn Byrne and McGovern intend to proceed Tony with the application before the at the end of the Registrar of Titles 21 days from the date of this notice and will apply for such directions as may be appropriate on the basis that the person or persons beneficially entitled to the superior interests including the freehold reversion in the aforesaid premises are unknown and unascertained. Date: 6 June 2008 Signed: Hughes & Liddy (solicitors for the applicant), 2 Upper Fitzwilliam Dublin 2 Street, In the matter of the (Ground Rents) Acts 1967- Tenant 1987 cation by Irish Nationwide Building Society: notice of inten- tion to acquire the fee simple notice that the applicants, being Take for all their and and in the Landlord and Landlord , not just qualified solicitors. Landlord and Tenant Landlord EMPLOYMENT Take notice that Colin Doyle notice Take being In default of any such notice (Ground Rents) (No 2) Act 1978 in the matter of an application by McGovern Olwyn Byrne and Tony Any person having a freehold estate or any intermediate interest in all that and those that plot of ground with the house and premises erected thereon known as no 7 Gilford Avenue, Sandymount (formerly known as no 4 situate in the Alexandra Avenue), Donnybrook, for- parish of St Mary’s, merly in the county but now in the city of Dublin, being a portion of the premises comprised in and demised Cornelius O’Brien of the one part and Cornelius O’Brien of the other part for a term James Troy 25 March 1868, sub- of 200 years from rent of £10 sterling. ject to the yearly to the intends to submit an application of Cork county registrar for the county freehold for the acquisition of the and interest in the aforesaid property, they hold a any party asserting that prem- superior interest in the aforesaid evidence ises is called upon to furnish of the title to the aforementioned within 21 premises to the below named notice. days from the date of this Doyle received, the said Colin the applica- intends to proceed with at the tion before the county registrar the date of end of the 21 days from this notice and will apply to the coun- ty registrar for the county of Cork for directions as may be appropriate on the basis that the person or persons beneficially entitled to the superior interest including the freehold rever- sion in the said premises are unknown or unascertained. Date: 6 June 2008 Signed: J Hodnett & Son, Solicitors (solicitors for the applicant), Nelson Co Cork House, Emmet Place, Youghal, In the matter of the Acts 1967-2005 Tenant matter of the : an For Law Society members to advertise Log onto the new expanded employment recruitment register on the members’ area of the Law Society website, www.lawsociety.ie, recruitment Murphy, or contact Trina at the Law Society’s administrator, Cork office, tel: 021 422 6203 or email: [email protected] FREE RECRUITMENT REGISTER and in the Landlord and Landlord legal staff requirements Landlord and Tenant Landlord is a prominent is a prominent In default of any such notice being In default of any such notice date of this notice. received, the applicant intends to pro- ceed with the application before the at county registrar for Co Tipperary the Court House, Nelson Street, for such Clonmel, Co Tipperary, directions as may be appropriate on the basis that the person or persons beneficially entitled to the superior interest including the freehold rever- sion in the property aforesaid are unknown or are unascertained. Date: 6 June 2008 Signed: Lynch and Partners (solicitors for the applicants), Jervis House, Parnell St, Clonmel, Co Tipperary In the matter of the Acts 1967-2005 Tenant matter of the application by Colin Doyle notice that any person having Take interest in the freehold estate or any immediate interest in the following property: all that the premises known as number 2 South Main Street, in the Saint Mary, parish of town of Youghal, barony of Imokilly and county of Cork, held under a lease dated 10 March 1868 and made between (Ground Rents) (No 2) Act 1978 at LOCUM JUNE 2008 JUNE : an applica- Landlord and Landlord or seeking to employ a locum solicitor. www.kleemanlawfirm.com www.kleemanlawfirm.com
represent of Ireland. endorsement by the Law Society an Michael Kleeman, Esq.,
Travel law: Representing foreign visitors seriously law: Representing Travel States injured in the United in the United States Personal injury litigation and in the matter of the Publication of advertisementsPublication of basis and does not in this section is on a fee Contact (toll free) 00-800-221-56970 or by (toll free) 00-800-221-56970 e-mail at [email protected] our law firm visit For more information about our website at Take notice that Thomas Kennedy, Take U.S. law firm that specializes in providing the following that specializes in U.S. law firm States: legal services in the United 1 2 Kleeman, AbloeserKleeman, P.C. & DiGiovanni, Log onto the new self-maintained locum recruitment register on the or members’ area of the Law Society website, www.lawsociety.ie, recruitment Murphy, contact Trina at the Law Society’s administrator, Cork office, tel: 021 422 6203 or email: [email protected] For Law Society members seeking a position as a locum solicitor UNITED STATES LAWYERS STATES UNITED FREE
RECRUITMENT REGISTER the party currently entitled to the interest in the said lease, lessee’s intends to submit an application to the county registrar for the county of for the acquisition of the Tipperary freehold interest in the aforesaid and any party asserting that property, they hold a superior interest in the aforesaid property is called upon to furnish evidence of title to the afore- mentioned property to the below- named solicitors within 21 days of the tion by Thomas Kennedy notice that any person having an Take interest in the freehold estate of the following property: 30 Mitchell St, more particu- Clonmel, Co Tipperary, larly described in an indenture of lease dated 19 August 1930 between Guilford Dudley and Robert Ambrose Dudley of the one part and Patrick Joseph Condon of the other part from 1 July 1930 for the term of 99 years, subject to the yearly rent of £14 and to part and the covenants on the lessee’s conditions therein contained. In the matter of the Acts 1967- (Ground Rents) Tenant 2005 (Ground and Tenant Landlord Rents) (No 2) Act 1978 www.lawsociety.ie LAW SOCIETY GAZETTE
PROFESSIONAL NOTICES 72 PROFESSIONAL NOTICES LAW SOCIETY GAZETTE JUNE 2008
the persons entitled under the above- Hamilton Long and Company mentioned acts, propose to purchase Limited as lessee, of the other part, NOTICE TO THOSE PLACING RECRUITMENT the fee simple in the lands described whereby the lands and hereditaments ADVERTISEMENTS IN THE LAW SOCIETY GAZETTE at no 1. as therein described (of which the 1. Description of land to which applicant’s premises form portion) Please note that, as and from the August/September 2006 issue of the this notice refers: all that and those were demised to the lessee therein for Law Society Gazette, NO recruitment advertisements will be published that include references to years of post-qualification experience (PQE). the premises now known as 276/278 a term of 99 years from 25 June 1964, Lower Rathmines Road, Rathmines, subject to a yearly rent of £650 ster- The Gazette Editorial Board has taken this decision based on legal advice, in the county and city of Dublin, one ling, in respect of which the applicant which indicates that such references may be in breach of the Employment portion of which forms part of the herein is principally liable for a moi- Equality Acts 1998 and 2004. lands and premises originally ety of £325. described in the schedule to an inden- The applicant holds the fee farm 1984 made between Florizel Limited Experienced qualified solicitor with ture of lease dated 23 November 1964 grantee’s interest in the second por- of the one part and Irish Nationwide a number of years’ experience in made between the Reverend Rupert tion of the said lands under the said Building Society of the other part. conveyancing, family law and general Lennon and Sheila Lennon as lessors indenture of fee farm grant dated 29 3. Parts of land excluded: exclud- practice work seeks new immediate of the one part and Hamilton Long February 1872 made between James ing the lands comprised in the 1964 position. Preferably in Midlands/ and Company Limited as lessee, of the McEvoy of the one part and John lease, which were not contained in Mid-West/South-East areas. Apply to other part, and a further portion of Holmes of the other part, whereby the two indentures of assignment set box no 50/08. Strictest confidence which forms part of the premises orig- the lands and hereditaments as there- out at paragraph 2 herein. assured. inally described in an indenture of fee in described (of which the applicant’s Date: 6 June 2008 farm grant dated 29 February 1872, premises form portion) were granted Signed: Sharon van Sinderen (solicitor Law graduate seeking training con- made between James McEvoy of the to the said John Holmes forever, sub- for the applicant), Irish Nationwide tract. Hardworking and able law stu- one part and John Holmes of the other ject to the yearly fee farm rent of £45, Building Society, Nationwide House, dent with keen attention to detail. part and all of which premises are against payment of which the appli- Grand Parade, Dublin 6 Excellent academic record (BBLS, more particularly described in the two cant herein is indemnified. LLM) and all FE1s obtained. Available indentures of 3 December 1984 set out The applicant holds its interest in to commence employment straight below and delineated on the maps the said lands under and by virtue of RECRUITMENT away. CV available on request. Please attached thereto. an indenture of assignment dated 3 contact Bernard at 086 193 3422 2. Particulars of applicant’s December 1984 made between lease: the applicant holds the lessee’s Edward Lee and Company (1974) Solicitor, semi-retired: experi- Solicitor with excellent experience interest in the first portion of the said Limited of the first part, Florizel enced general practitioner experi- in commercial and residential con- lands under the said lease dated 23 Limited of the second part and Irish enced in all areas of law, interested veyancing and other areas of general November 1964 made between the Nationwide Building Society of the in part-time/full-time or locum practice available for locum/long-term Reverend Rupert Lennon and Sheila third part and under a second inden- work. Please contact: 086 320 7180 position in Limerick and surrounding Lennon as lessors of the one part and ture of assignment dated 3 December area. Please contact: 087 221 3386
Publication of advertisements in this section is on a fee basis and does not represent an endorsement by the Law Society of Ireland.
SPANISH LAWYERS RAFAEL BERDAGUER ABOGADOS TWENTY YEARS ADVISING CLIENTS IN REAL ESTATE TRANSACTIONS IN SPAIN
PROFILE: FIELD OF PRACTICES: panish Lawyers Firm focused eneral Practice, Administra- Son serving the need of the Gtive Law, Civil and Commer- foreign investors, whether in cial Law, Company Law, Banking company or property transac- and Foreign Investments in tions and all attendant legalities Spain, Arbitration, Taxation, such as questions of inheritance, Family Law, International Law, taxation, accounting and book- Litigation in all Courts. keeping, planning, land use and litigation in all Courts.
Avda. Ricardo Soriano, 29, Edificio Azahara Oficinas, 4 Planta, 29601 Marbella, Malaga, Spain
Tel: 00-34-952823085 Fax: 00-34-952824246 e-mail: [email protected] Regulated by the Solicitors Regulation Authority of England and Wales Web site: www.berdaguerabogados.com
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