A OIT AET Vl10N July 2006 • Vol 100 No 6 LAW SOCIETY GAZETTE LAW SOCIETY

Gazette€3.75 July 2006

AGE OF CONSENT: Law Society of Ireland The aftermath of the ‘A case’

INSIDE: IT SURVEY OF THE PROFESSION • TSBA GALA NIGHT EVENT • PRACTICE DOCTOR • YOUR LETTERS

LAW SOCIETY GAZETTE JULY 2006 CONTENTS

On the cover LAW SOCIETY The recent judgment on the defence of ‘mistake as to age’ and the subsequent decision in the Mr A case led to political turmoil and fervent Gazette public debate. But how does the resulting law measure up? July 2006 PIC: [email protected]

Volume 100, number 6 Subscriptions: €57 REGULARS 4 President’s message 5 News Computer literacy 10 A Law Society-commissioned survey has found that there is a high level of computer literacy in the profession Viewpoint 12 Is striking out entire tranches of legislation the best way to protect important constitutional rights? asks Brian Foley Letters 14 14 Two words: Prime and Time Practice doctor 41 Pension planning for when you’re 64 People and places 42 Calcutta Run, the TSBA Ball, and more Tech trends 46 All the technology news first – or thereabouts 49 Book reviews Briefing 52 52 Practice notes 45 54 Legislation update: 19 May – 23 June 57 FirstLaw update 60 Eurlegal: Brussels II bis continued 66 Professional notices Recruitment advertising 72 Eleven pages of job vacancies

Editor: Mark McDermott. Deputy editor: Garrett O’Boyle. Designer: Nuala Redmond. Editorial secretaries: Catherine Kearney, Valerie Farrell. For professional notice rates (lost land certificates, wills, title deeds, employment, miscellaneous), see page 67. Commercial advertising: Seán Ó hOisín, 10 Arran Road, Dublin 9; tel: 837 5018, fax: 884 4626, mobile: 086 811 7116, email: [email protected]. Printing: Turner’s Printing Company Ltd, Longford. Editorial board: Stuart Gilhooly (chairman), Mark McDermott (secretary), Pamela Cassidy, Tom Courtney, Eamonn Hall, Philip Joyce, Michael Kealey, Mary Keane, 46 Patrick J McGonagle, Ken Murphy, Michael V O’Mahony, William Prentice.

2 www.lawsociety.ie CONTENTS LAW SOCIETY GAZETTE JULY 2006

Get more at lawsociety.ie HOW TO REACH US: Law Society Gazette, Blackhall Place, Dublin 7. Tel: 01 672 4828, fax: 01 672 4877, email: [email protected] Gazette readers can access back issues of the magazine as far back as Jan/Feb 1997 right up to HAVE YOU MOVED? Members of the profession should send change-of-address the current issue at lawsociety.ie. details to: IT Section, Blackhall Place, Dublin 7, or to: [email protected] Subscribers to the Gazette should send change-of-address details to: You can also check out: Gazette Office, Blackhall Place, Dublin 7, or to: [email protected] • Current news • Forthcoming events, including a CPD seminar COMMERCIAL ADVERTISING: contact Seán Ó hOisín, 10 Arran Road, Dublin 9, tel: on the Registration of Deeds and Title Act 2006 01 837 5018, fax: 884 4626, mobile: 086 811 7116, email: [email protected] • Employment opportunities • The latest CPD courses PROFESSIONAL NOTICES: send your small advert details, with payment, to: Gazette Office, Blackhall Place, Dublin 7, tel: 01 672 4828. ALL CHEQUES SHOULD BE … as well as lots of other useful information MADE PAYABLE TO LAW SOCIETY OF IRELAND.

FEATURES COVER STORY: 18 The hand that robs the cradle Edel Kennedy, author of the Gazette article last October that has been referenced in Dáil debates, revisits the issue to unravel the background to the Mr A and CC cases and the consequent new sexual offences law

To have and to hold 22 It would appear that a party to family law proceedings seeking a property adjustment order has unregistered rights against the interests of the other owning, but estranged, spouse. Patrick Mullins sorts out the priorities

All together now 26 Failure to notify the Competition Authority of certain mergers or acquisitions can lead to void deals, criminal penalties and possible professional negligence claims. Rosemary O’Loughlin untangles the issues

Carving its own course 26 30 You’d be hard pressed to know there was a world war going on from reading the Gazette in the 1940s. Mark McDermott continues our retrospective series

Good deed for the day 34 The new Registration of Deeds and Title Act aims to modernise and streamline registration mechanisms and procedures. Denis Linehan gets to grips with it – section by section – with a little help from the ‘Man of Steel’

Tell me more 38 A number of appeals have been made relating to the Freedom of Information Act 1997. How have the courts dealt with these? Eoin Dee roots through your files

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 38

www.lawsociety.ie 3 LAW SOCIETY GAZETTE JULY 2006 PRESIDENT’S MESSAGE

Law Society plays host to international visitors

“During he month has passed very quickly – a It was a great pleasure for us to host the four sure sign of activity. During the past South African lawyers receiving training in Eugene F the month, month, the first stage of the Client Focus Collins, William Fry, A&L Goodbody and Matheson the Society Seminars has been completed. Seminars Ormsby Prentice to dinner in the Society. It was very were held in Dublin, Cork, Limerick, informative for us to learn more about their work in hosted the T Galway, Sligo, Athlone and Waterford. While the South Africa and to hear at first hand about the law societies numbers of attendees were not as high as expected, difficulties they face in practice in South Africa. the content was generally agreed to be excellent. The The annual human rights lecture took place on 29 of England committee, under the leadership of John O’Malley, June. Mr Justice Kirby of the High Court of and Wales, will now bring forward proposals as to how the work Australia spoke most eloquently on the Dreyfus case. can be enhanced and completed. Two weeks earlier, over 1,000 people crowded into Northern I have continued to visit, with the director general, the French Supreme Court to listen to the Chief Ireland and Bar associations around the country. This month Justice of the French Supreme Court speak on this found us in Kilkenny, Wicklow, Laois and Tipperary. case. Scotland” The profession is busy and in good heart. In Mr Justice Kirby emphasised the lessons the Nenagh, we were present at the opening of the century-old case still holds for the legal professions – revamped courthouse. The courthouse is splendid rights of citizens and the rule of law were and the Tipperary Solicitors’ Bar Association was predominant. Congratulations to Alma Clissmann on rightly praised for its role in this development. all the work involved in this project. During the month, the Society hosted the law I would like to welcome Louise Campbell to the societies of England and Wales, Northern Ireland staff of the Law Society. Louise is the first support and Scotland. It was most interesting to learn, first services executive appointed by the Law Society, as hand, of the proposals made in regard to the reform recommended in the Braiden Report. Her role is to of the legal professions in those jurisdictions. Only help coordinate and deliver the Society’s support Scotland was including a review of the judiciary in its services so that the profession can know and benefit review of legal services. The Law Society of England much more from them in the future. and Wales faces the greatest challenges to its future I would also like to congratulate Geoffrey and it will be interesting to ascertain what happens to Shannon, who was appointed by the Minister for the profession in the future in that jurisdiction. Children, Brian Lenihan, as a special adviser in The Union Internationale Avocats (UIA) held an relation to child law. This appointment is well executive meeting in the Law Society in June. The merited and I wish Geoffrey well in his new role. Law Society was delighted to participate in this event and to meet lawyers from many different Michael G Irvine jurisdictions. President

4 www.lawsociety.ie NEWS LAW SOCIETY GAZETTE JULY 2006 nationwide

Send your news to: Law Society Gazette, Blackhall Place, Dublin 7, or email: [email protected]

■ CORK respected doyenne of the Declining standards? profession and former Law There has been a ‘noticeable Society President Moya decline’ in conveyancing Quinlan, who is more than 60 standards in the profession, years in practice. according to the Southern Law Association (SLA). Back to basics The association’s ‘CPD Online’ is now conveyancing committee has operational by the DSBA – due decided to try to assess the in no small measure to the extent of the problem and has unpaid work of former DSBA recently written to all members President Orla Coyne, John asking for information, on a Glynn and Pauline O’Donovan. no-names basis, of poor The recent and well- conveyancing practices. attended practice management Some of the complaints seminars run by the DSBA received by the association The President and Council of the Southern Law Association (SLA) were followed last month by include failure to respond to recently held a lunch at Hayfield Manor Hotel to mark the service of sessions on company law. A colleagues, failure to deal with solicitors in Cork city and county who have been qualified for 50 years seminar on the new legislation pre-contract enquiries and to or more. (Back, l to r): Dermot Moloney, John A Phelan, establishing the Property Edward O’Driscoll, Patrick J O’Driscoll and Nicholas Hughes. comply with undertakings, (Front, l to r): John Russell, SLA President Sinead Behan, and Registration Authority was also many of which, according to Charles Hennessy scheduled. the association, “should not have been given in the first by local Circuit and District of such events is the ■ CAVAN place”. Court judges, as well as the networking opportunities they Mystery tour Other unacceptable practices courts’ staff and the Gardaí. provide. The highly-successful ‘mystery include inserting unlawful Many of them will be taking There’s already a waiting list tour’ organised every year by conditions in draft contracts, part in the event. for the Dublin solicitors’ the Cavan Bar Association will which is contrary to the To register, contact Colette annual conference in Rome in be held in August this year. “It’s guidelines of the Law Society’s Curtin, secretary of the SLA. September. Yes, ambling a great event, purely to meet Conveyancing Committee, and dreamily along the Via Cavour colleagues and barristers also not having closing ■ DUBLIN in the autumn sunshine practising in the courts here, documents at closings. It’s a Hands across the borders (between sessions, of course) and is a fun day,” says long list… Dublin hosted a major beats rushing to another Jacqueline Maloney. international conference of closing in Dublin. On the lighter side lawyers in June, when leading CPD in Cavan This year’s nominated charity European lawyers attended the Are you experienced? CPD continues. Further of the SLA is the Irish Heart Union of International Lawyers Dublin colleagues with more lectures are planned for later Foundation. On 21 July, there event. than 50 years’ experience in the this year to follow the recent will be a 10k run (even a walk Colleague James Grennan of profession were fêted last scheduled lecture by David will do) starting and ending at A&L Goodbody, vice-president month at a lunch under the Leonard BL on the practical the Cricket Club, via the of the European lawyers’ body, aegis of the DSBA. aspects of judicial review, habeas Mardyke, past the Sacred led the Dublin conference. Organised by colleague corpus and bail applications. Heart Church, over Leemount The Dublin Solicitors’ Bar Helene Coffey, of Coffey & “What we need, to a significant Bridge and by the Association (DSBA) hosted a McMahon, the get-together extent, is practical subjects Carrigrohane Straight/Lee reception for the visitors. “This was held in the Four Seasons being addressed in lectures and Fields. is a very appropriate ‘hands- Hotel in Ballsbridge (where seminars. This is what we are “We felt that we would get across-the-border’ type of else would lawyers go?) and trying to do here,” concluded you all off your couches and event and we are delighted that was very well attended. The Jacqueline. G onto the streets,” say Gail they decided to come to anecdotes, reminiscences and Enright and Patrick Mullins, Dublin,” says Kevin O’Higgins humour continued into the Nationwide is compiled by Pat both SLA council members. of the DSBA. He added that evening. The lunch included a Igoe, principal of the Dublin law The run is being supported one of the more useful aspects special presentation to firm Patrick Igoe & Co.

www.lawsociety.ie 5 LAW SOCIETY GAZETTE JULY 2006 NEWS

■ STATUTORY RAPE CASES ADJOURNED TSBA celebrates reopening of A number of men charged with unlawful carnal knowledge had he refurbished courthouse in beautiful courthouse. I hearings, the current site was their cases adjourned in the TNenagh was officially congratulate your president, Mr procured. The courthouse was Dublin Circuit Criminal Court on opened on 23 June by the Pat McDermott. He has been a laid out in 1841 by a local 29 June 2006. Minister for Justice, Equality marvellous ambassador for years builder, John Hanley, to a plan The cases included the man and Law Reform, Michael to the Law Society and we are designed by Dublin architect who successfully challenged the McDowell TD. The board of very lucky to have him John B Keane. The cost of the constitutionality of the the Courts Service was representing you. I would also building was £7,000. It followed legislation in the Supreme Court. represented by the President of like to thank Maura Derivan for Mr Keane’s design of Tullamore Judge Catherine Delahunt the Circuit Court, Mr Justice her hard work. I know that Courthouse, with its distinctive agreed to adjourn six cases of Matthew Deery, who presided things like this just don’t happen Ionic pillars and two semi- statutory rape of girls aged over the event. by accident, so I would like to circular courts. This design, in under 15 and girls between 15 Members of the Tipperary thank everybody who was fact, followed that of Carlow and and 17 until 31 October. Solicitors’ Bar Association concerned with the restoration Tralee courthouses by the Issues were raised by defence (TSBA) got a sneak preview of of this courthouse.” highly-distinguished architect, counsel, Marie Torrence, in the €11.6 million refurbished William Morrison. relation to the court’s jurisdiction facilities a week earlier, however, Proud tradition In September 1843, as the in these cases, given the when, on 16 June, the highly Judge Michael Reilly reminded building was almost completed, Supreme Court ruling. She has active association held a pre- the TSBA of its proud tradition. it was linked to the nearby now indicated she will bring these president’s gala dinner reception “It has always been to the county gaol by an underground issues before the High Court. at the courthouse. Speakers forefront in legal thinking and passage that has been tastefully included President of the Law innovation over the years. It has retained in the reconstruction ■ PAC REPORT HIGHLIGHTS Society Michael Irvine, District arranged seminars for its and is on public view. SPEED CAMERA FLAWS Justice Michael Reilly and TSBA members and, for as long as I The first assizes were held in Areport from the Public Ac- President Peter McDermott. can remember, has guided the the then new courthouse on 18 counts Committee has shown that Michael Irvine spoke of his legal profession in this county in March 1844 and presided over nearly half of all photographs fond memories of travelling to a sensible way. It also has a by Judge Nicholas Ball. Judge taken by garda speed cameras are Tipperary to lecture members of proud standing with the Law Ball had been Attorney General, useless. The figures are contained the TSBA on company law. The Society, having contributed a MP, for the Borough of Clonmel in a study of the penalty points advice from his late senior number of presidents to that and a member of the Privy system that the committee partner, Peter Prentice, was that august body.” Council that decided to divide published on 21 June 2006. it was a very sensible procedure The district justice shared Tipperary into two ridings in The committee undertook an “because they are very nice some of the history of the 1837. analysis of the penalty points people and will treat you well”. courthouse. In 1838, Nenagh One famous trial lasted 14 system as part of its “I have very good friends was designated an assize town. days and sat until 10pm most examination of the Department here,” said Michael. “I have Prior to that, court business was nights and to midnight on one of Justice, Equality and Law many happy memories and I am transacted in a small building in occasion. Four people were Reform. Its figures indicate that delighted to be with you on this Pound Street. As that location convicted and the death of over 100,000 photos taken by beautiful evening to see your was not suitable for assize sentence was pronounced. The fixed cameras – just under half – were defective. The PAC study also found that just over 50% of on-the-spot fines were paid up – Medico-Legal Society to celebrate and that only one in seven of the remainder were successfully Golden Jubilee with conference pursued through the courts. As a result, the PAC report he Medico-Legal Society is Siobhán O’Sullivan, Bioethics Brady will open the says that the effectiveness of T50 years old this year. To Council; Dr Simon Mills BL; conference, while Mr Justice the penalty points system has mark the occasion, the society and Prof Gerry White, Peter Kelly, President of the been seriously eroded by will hold a one-day conference Trinity College) and ‘Acquired Society, will formally close the administrative inefficiency. in Dublin Castle on Saturday Infections – The Lawyers’ event. 7 October. This will be Dream?’ (speakers: Prof Hilary If you’re interested in ■ RETIREMENT TRUST SCHEME followed by a gala dinner. Humphries, Royal College of further details, please Unit prices: 1 June 2006 A number of distinguished Surgeons in Ireland; Dr Brian contact: Dr Antonia Lehane, Managed fund: €5.47912 speakers from the medical and Farrell, Coroner, Dublin; and 59 Main Street, Swords, Co All-equity fund: €1.25901 legal worlds will speak on a Deirdre Hegarty, Solicitor, Dublin. Tel: 01 840 7430 or Cash fund: €2.65327 number of issues, including Hepatitis C Compensation email: antonialehane@ Long bond fund: €1.28656 bioethics (speakers: Dr Board). Attorney General Rory eircom.net.

6 www.lawsociety.ie NEWS LAW SOCIETY GAZETTE JULY 2006

■ COMPENSATION FUND €12M Nenagh courthouse PAYOUT The following claim amount was

PIC: ELEANOR REILLY admitted and approved for payment by the Regulation of Practice Committee at its meeting in May 2006: Thomas Flood, Dargan House, Fenian Street, Dublin 2 – €12,255.03.

■ IRISH LAW FIRM LAUNCHES PUBLIC AFFAIRS PRACTICE Mason Hayes + Curran has established a new practice area that offers public affairs support to existing and potential clients. The firm will provide advice to clients on public affairs issues and will assist in drafting, tracking and amending relevant legislation. four were hanged in the contains a secure area for those congratulated on your Approximately 40 acts, as adjoining county goal. Many in custody and secure endeavours, which have resulted well as an additional 900 more notable trials were held consultation rooms. in a courthouse as fine as can be statutory instruments, are made here over the years. “I hope that, in future, the seen anywhere in the country.” each year in Ireland alone. “To the great credit of ‘the building will be maintained to its Since the state was founded, Led by Dr Brian Hunt, the powers that be,” said Judge present standard as it is only five District Court judges have team will advise clients on Reilly, the building has been fitting that, as the focal point for presided at Nenagh Courthouse: current and proposed changes in restored to its original glory and the town of Nenagh, it should District Justice Flood, District legislation and offer advice on has been upgraded to provide remain a structure for all to be Justice Coffey, District Justice de the various ways in which they for, not only the ordinary courts, proud of.” Burca and District Justice can contribute to the shaping of but has a family court, The district justice went on to Michael Reilly since 1983, with legislation. consultation rooms, waiting congratulate the President of the To m O’Donnell presiding for a areas, a victim-support room, a TSBA, Pat McDermott. “I know short period. There have only ■ COURT RULES AGAINST media room and facilities for the that without the effort of your been three District Court clerks GUANTANAMO TRIBUNALS taking of video-link evidence. It association none of this would serving in Nenagh – Denis The US Supreme Court has has, also, a modern public office, have happened. If it had not Hogan until 1934, followed by ruled that the Bush a chief clerk’s office, a county been for the courageous step in the late Dan Murphy who administration does not have registrar’s office and excellent issuing proceedings, this served until 1971, after which, the authority to try terrorism facilities for solicitors and building would be a ruin. You the current clerk, John Buckley, suspects by military tribunal. In barristers. The basement and your colleagues are to be was appointed. a landmark decision on 29 June 2006, the court said the administration had violated the Geneva Convention and the US ‘MOPS’ named ‘Irish Tax Firm military code of justice in ordering a military tribunal to of the Year’ at London event prosecute Salim Ahmed Hamdan, a Yemeni and former eading Irish corporate law Review European Awards performance in the tax-law driver for al-Qaeda leader, Lfirm, Matheson Ormsby ceremony on 24 May 2006 in arena over the past 12 months. Osama bin Laden. Prentice, has been named ‘Irish London. It boasts the largest tax team of The Supreme Court also Tax Firm of the Year’ by the The International Tax Review any Irish law firm and is the rejected the argument that the International Tax Review. The European awards are seen as only Irish law firm that has a congressional authorisation to firm has been chosen as the the benchmark for excellence in tax presence in the US. declare war gave the president leading tax advisors from a pool the field of tax advice. In September 2005, “a sweeping mandate” to comprising both Irish law firms Matheson Ormsby Prentice was Matheson Ormsby Prentice was establish military commissions and accountancy practices. identified as ‘Irish Tax Firm of honoured with the ‘Clients whenever necessary. Managing partner Liam Quirke the Year’ following Choice 2005’ award for Ireland The ruling could have far- accepted the award at the comprehensive client and peer from the International Law reaching consequences for the annual International Tax research, indicating outstanding Office. conduct of the US ‘War on Terror’.

www.lawsociety.ie 7 LAW SOCIETY GAZETTE JULY 2006 NEWS

■ NET UNDERMINES MARRIAGE The growing trend for people to ‘Communication is key’ meet over the internet is having a profound effect on Australian marriages, says the Sydney says tribunal report Morning Herald. Cyber-romances are playing a role in thousands ccording to the annual in 1998, in a timely manner, or of break-ups. Areport of the Solicitors at all. He also failed to respond New research shows that as Disciplinary Tribunal, the to his clients and explain the many as 50% of Australians number of applications it dealt situation. He further dabbling in online romances are with increased by almost two- compounded the situation by, already in relationships – and thirds in 2005. There were 24 inter alia, failing to reply to the many are having multiple affairs. findings of misconduct by the Law Society’s correspondence, Tom Altobelli, a family law tribunal, which is a statutory misleading the then Registrar’s practitioner with 25 years’ body that operates Committee [now the experience and a spokesman for independently of the Law Complaints and Client the Law Society of New South Society. It mainly hears Relations Committee] of the Wales, says that about one in complaints of professional Law Society and failing to 20 of the cases he has handled misconduct against solicitors comply with an undertaking has involved internet infidelity. and trainees. given to them. The tribunal He estimated that this figure Of the total number of imposed penalties ranging from also took into account the would be echoed in other applications received, the Law monetary fines to 12 findings of misconduct lawyers’ practices – the internet Society referred 45 solicitors to recommending to the President previously made by the tribunal could play a role in about 2,500 the tribunal in 2005. A further of the High Court that the against the respondent solicitor, Australian divorce cases a year. 38 complaints were received respondent solicitor not be when it recommended to the from members of the public permitted to practise as a sole President of the High Court ■ JUDICIAL TRAINING PLANS and other bodies. This practitioner and should be that the name of the respondent On 29 June 2006, the European compares with 24 complaints permitted only to practise as an solicitor be struck off the Roll Commission adopted a from the Law Society and 27 by assistant solicitor under the of Solicitors.” communication on judicial other groups in 2004. direct control and supervision The report of the Solicitors training in the European Union The rise in the number of of another solicitor of at least Disciplinary Tribunal states that (refer to: http://europa.eu/ complaints by members of the ten years’ standing, this to be solicitors must continue to be rapid). The aim is to devote public reflects the fact that lay approved in advance by the cognisant of the fact that more resources to judicial applicants are becoming more Law Society. “clients have very high training at European level – aware of the existence of the expectations of their solicitors even though responsibility in tribunal. According to the Obligation and require a constant flow of this area lies primarily with the tribunal chairman, Frank Daly, The tribunal was conscious of information regarding the member states. The commission “this awareness has resulted in the responsibility of the Law progress of their affairs. As a says that judicial training an incremental increase in the Society in ensuring that result of this expectation, lack should focus on three main number of direct applications accountants’ reports are filed in of communication and delay by areas: from lay applicants for the past a timely and prompt manner. In a solicitor in progressing a case • Increasing the familiarity of three years. During the year the report, it points out the are still major sources of legal practitioners with the under review, 118 people obligation that rests with every complaint … Notwithstanding union's legal instruments, applied for, and received, member of the profession to see this, the onus is on solicitors to • Improving mutual knowledge information on how to make a that this is achieved. “It is time- keep clients informed about of the judicial systems of the direct application to the consuming and, at times, such delays and their reasons. member states, and tribunal.” difficult to comply with the Whether the delay is • Improving language training. Of the 83 applications to the regulations, but it is an unavoidable or not, it is tribunal, there were 24 findings obligation that is part and imperative to communicate and It is seeking to support training of misconduct. Eleven of these parcel of practising in the explain matters to a client. and networking by related to the failure by profession.” Communication is the key to strengthening the existing respondent solicitors to file The report also highlights avoiding complaints in regard European Judicial Training accountants’ reports, within the the failure of a particular to delay.” Network. In order to develop its permitted time, with the Law solicitor to carry out the In all, solicitors found guilty policy, it intends to assign more Society. instructions of a client. “In one of misconduct were ordered to resources to training justice The tribunal, after hearing particular case, the respondent pay sums ranging from €250 to practitioners under the new submissions from the solicitor was found guilty of €5,000 to the compensation financial programmes, in respondent solicitors in respect misconduct in failing to register fund of the Law Society. The particular the ‘Fundamental of mitigating factors and the his clients as owners of their total amount of such sums in Rights and Justice’ programme. submissions of the Law Society, property, which was purchased 2005 amounted to €22,600.

8 www.lawsociety.ie NEWS LAW SOCIETY GAZETTE JULY 2006 human rights watch

Prosecuting war criminals There is legal foundation attaching liability for torture, regardless of the location of the crime or the nationality of the victim or perpetrator, writes James Mehigan ringing cases against war In the case of an indictable Bcriminals in Ireland has little offence, the common informer precedent. The procedure for can only conduct the taking such a case is largely prosecution until it is passed up untested. If the DPP or the to the higher court. At that gardaí aren’t interested, there is point, the DPP takes over the the option of initiating the case prosecution completely. If the privately in the District Court as District Court judge receives a ‘common informer’. Once the information in such a case, the District Court has seised the common informer is entitled to case and passed it on to the assume that the DPP will Central Criminal Court, the proceed with the prosecution to DPP will run the prosecution. trial on indictment and a While the AG must consent to Prisoner abuse at Abu Ghraib Prison, Iraq decision not to prosecute can the prosecution of grave only be taken after the fullest breaches of the Geneva The Genocide Act 1973 is not ILRM 349). In order to initiate consideration and for very good Conventions, such consent is not as unambiguous about the proceedings, the common reason. However, the AG’s required for the prosecution of universal jurisdiction of the Irish informer must make a complaint permission is required to torture. courts as a venue for to a district judge who, if prosecute a grave breach, and if prosecution. Similarly, the satisfied, will issue a summons to this is withheld, it is possible Two in the bush International Criminal Court Bill the defendant. However, in the that the case could not proceed Criminal proceedings can be 2003 is not as clear about the case of an alleged war criminal, any further. brought in Ireland for grave question of universality for the who is likely to flee the state, it A common informer action breaches of the Geneva crimes it defines (crimes against may be more useful to obtain a was taken in Ireland in Conventions as well as for humanity, war crimes and bench warrant for the arrest of November 2004 against the breaches of the UN Convention genocide). It is clear, however, the defendant. Once the warrant Chinese deputy prime minister Against Torture, regardless of the that for grave breaches of the has been issued, the gardaí are Huang Ju. The victim claimed nationality of the accused or the Geneva Conventions and for obliged to arrest the defendant, to have been tortured in Chinese location of the alleged offence. torture, there are no territorial if practicable. ‘re-education camps’ because of Section 3 of the Geneva restrictions with regard to the In State (Ennis) v Farrell his membership of the Falun Conventions Act 1962 provides location of the alleged offence or ([1966] IR 107), the Supreme Gong movement. that “any person, whatever his the nationality of the accused. Court considered to what extent The application for a bench nationality, who, whether in or Grave breaches under s3 of a common informer could pro- warrant for Mr Huang’s arrest outside the state, commits, or the Geneva Conventions Act 1962 ceed with the prosecution of an was rejected by the district aids, abets or procures the and acts of torture under s2 of offence that could not be tried judge, as the matter had been commission by any other person the Criminal Justice (UN summarily. Ó Dálaigh CJ held: laid before the Garda of, any such grave breach of any Convention Against Torture) Act “the duty of the district justice in Commissioner and, as such, of the scheduled conventions” 2000 are both indictable the case of a private prosecution would only be investigated by shall be guilty of an offence. offences, and as such there is no in respect of an indictable the gardaí. G Section 2 of the Criminal statute of limitations. offence is therefore clear. He Justice (UN Convention Against must permit the private James Mehigan is a PhD candidate Torture) Act 2000 criminalises Blair Witch Project prosecutor to direct and conduct at the International Centre for acts of torture carried out by a The citizen’s right to prosecute the entire of the preliminary Comparative Criminological perpetrator, regardless of as a common informer has investigation – and at the Research, Open University. Anyone nationality and location of survived the establishment of the conclusion of the evidence, and interested in exploring the use of commission. Unlike the Geneva DPP, and the DPP has no power including any evidence offered universal jurisdiction law is invited Conventions Act, this act does not to intervene in the District by the defendant, must consider to contact the Human Rights have a provision that demands Court to prevent such a whether he should refuse Committee, c/o Alma Clissmann, the AG’s consent for prosecution (State (DPP) v informations or return the Law Society; a.clissmann@ proceedings to be instituted. District Justice Ruane, [1985] accused for trial.” lawsociety.ie.

www.lawsociety.ie 9 LAW SOCIETY GAZETTE JULY 2006 NEWS FEATURE Computer literacy high among Results of the TNS mrbi survey – commissioned by the Technology Committee of the Law Society indicate a high rate of computer literacy among members of the profession

olicitors have a high rate of broadband. “This was far ahead Scomputer literacy, a Law of our expectations,” says the Society-commissioned survey has chairman of the Technology found – but smaller firms need Committee, “and shows that to catch up with the advanced solicitors and firms have computer systems used in larger embraced the new technology.” firms. Among the headline (Those without broadband are findings, one-fifth of (mainly more likely to be smaller firms, smaller) firms were found to be located outside Dublin.) Internet still managing their accounts usage is correspondingly high manually, while many others among staff. Almost all assistant have failed to embrace the solicitors and support staff use opportunities posed by web the internet, including nearly marketing. nine out of ten Results of the TNS mrbi principals/partners. survey – commissioned by the The internet tends to be used Technology Committee of the most frequently to access Law Society – are very positive, information from the Land indicating a high rate of firms have some form of three reasons, mainly: Registry, the Courts Service computer literacy among computer network in place and •To advise the eConveyancing website, the Companies members of the profession. two-thirds use scanners. Task Force about how ready Registration Office, government Over 200 solicitors’ firms were Similarly, almost all firms are the profession is for it, bodies, the Revenue surveyed. The sample was using a basic word-processing •To advise the Society in Commissioners and the Law designed to be nationally package. Larger firms, based in relation to communicating Society members’ web page. representative, with quotas Dublin, are most likely to use with its own members, and There were lower levels of access taking account of the regions advanced hardware and software, •To help when devising plans for BAILII, law searchers and where firms operate and their such as digital dictators, PDAs for the education of the the planning authorities. size. The questionnaire included and accounts management profession on IT matters.” Email is widely used by a screening question, to ensure software. solicitors, with over nine in ten that the interview was conducted “Because eConveyancing is Web marketing using it in the course of their with the solicitor responsible for coming up, we wanted to know The survey found that internet business. It is most widely used IT decisions in the firm. the level of IT proficiency within access within law firms is to communicate with clients, Fieldwork took place between 19 the profession,” says Andrew. virtually universal, with four out (with almost two-thirds using it and 30 January 2006. “We carried out the survey for of every five (80%) using for this purpose on a daily basis). Ownership of basic IT Almost half of solicitors use hardware was found to be e-mail to communicate internally practically universal – all firms COMPUTERISED ACCOUNTS PACKAGES with colleagues every day. own a computer and a printer. Again, this application is most “This is all the more It is noteworthy that, although more than four out of five firms frequently used by larger firms in interesting,” says Andrew Cody, are using some form of computerised accounts management the Dublin area. Chairman of the Technology package, one-fifth (mainly smaller firms) are still managing their Committee, “when you consider accounts manually. There is no clearly dominant accounts Own websites that when we carried out our last management package on the market. “There are 35 different Despite high levels of internet survey of the profession in 1994, accounts management software packages being used by usage, only one-quarter of firms internet and email weren’t even members of the profession,” says Andrew. “Solicitors and firms have their own website. Less mentioned! Back then, the should be using accounts management packages that are than one-fifth of these, however, survey results revealed that tailored specifically for solicitors’ offices. In order to find out the regard it as a useful tool for approximately 75% of solicitors kind of package you should be using, you should visit the Law generating business. The in Longford were using Society’s website (www.lawsociety.ie). Go to the ‘Society findings have indicated that law typewriters instead of computers, committees’ page, select ‘technology’ and click on the article firms will need to embrace web while in Leitrim, there were no Accounts Packages, written by chartered accountant and marketing into the future. computerised accounts.” investigating accountant, Munro Moore.” The vast majority (over nine Now, almost four out of five in ten) have developed a back-up

10 www.lawsociety.ie NEWS FEATURE LAW SOCIETY GAZETTE JULY 2006 solicitors’ firms, survey finds

policy for their computer formulating advice and systems. Most of the firms (88%) DOES THE LAW SOCIETY HAVE YOUR recommendations on possible that have a back-up policy use a PERSONAL BUSINESS EMAIL ADDRESS? seminars and workshops to manual back-up system. Less promote the use of information than one-tenth (8%) of such The IT section in the Law Society wishes to update its email technology among the firms use an external company to address files for members of the profession. Many members profession. It is also preparing back up their computer files – of currently receive the Society’s regular e-zine through their personal recommendations for the Law whom the majority are the larger business email addresses – but many more are not receiving such Society on how best to advance firms, located in the capital. The information, either because members’ email addresses are out of its communication, using IT, findings point to a need to date, are not on the Society’s records, or because members have with members. It will also make improve back-up policies. “In all, supplied only their generic business email addresses to the IT recommendations to the Law 6% have absolutely no back-up section. School on the training and use of policy, whether that’s disk, CD, If you would like to be kept up to date by receiving information IT internally, and will provide tape or server,” says Andrew. from the Society about the profession – directly to your desk – and advice to working groups within Almost all firms do have anti- would like to receive the Society’s e-zine, please forward your the Society and, in particular, the virus software installed on their personal business email address (rather than your generic eConveyancing Task Force. computer systems, and in four- company email address) to: [email protected]. Says Andrew: “There has fifths of cases, this anti-virus been a huge take-up of solicitors software is up-dated manually by who lodge land registry deeds staff at least once a week. online. I’d like to see a cost Almost one-third of legal who have upgraded some parts the high levels of hardware reduction for those who do use firms allow their solicitors of their network or servers ownership. The main the technology to lodge their remote access to their office within the past year. That’s a opportunities for growth in this land registry deeds.” network. Of the one-fifth of strong uptake of people moving area include: “One of the areas we need to firms with external support, forward with technology.” • Standardising the types of work on, however, is the whether staff or typists for In addition, smaller firms accounts management relatively low level of legal instance, one-quarter can must look to the example set by packages used, research that’s being carried out provide remote access to their their larger counterparts in • Encouraging the use of newer online. We studied the usage of networks. embracing a more sophisticated technologies, and 15 legal research databases and “Some of the findings have level of technology. • Placing greater emphasis on found that the take-up was exceeded our expectations,” says web-based resources, such as significantly below our Andrew. “In our survey, the Relatively advanced BAILII, law searchers, and expectations. In order to amount of solicitors who have It is clear that solicitors’ firms email contact with the Courts encourage the use of such remote access to their office is are relatively advanced in terms Service, to name a few. research databases, we are 31%. In addition, there is almost of embracing the digital intending to provide seminars to 100% email usage, which is revolution. It is obvious, also, The Technology Committee is members of the profession about heartening to see. Other good that the foundations for further now considering the survey’s how to use these databases to news was revealed in the 73% advancement are in place, given results in detail with a view to their professional advantage.” G

www.lawsociety.ie 11 LAW SOCIETY GAZETTE JULY 2006 VIEWPOINT

Time to think about the The recent Supreme Court ruling in CC v Ireland should really make us think about whether the ‘nuclear option’ is really the best way to go about vindicating and protecting important constitutional rights, argues Brian Foley

or the most part, no one has an example from Canada (which Fcome out of the statutory our courts may have to deal rape debacle with much credit. with in the future). Assume that On the one hand, one can legislation criminalises all wonder how the legislature did possession of sexual images of not see something like this persons under the age of 18. coming. On the other hand, Suppose also that a mature, but one may query whether the young couple, in an expression Supreme Court dealt with the of intimacy and love, wish to problem in as proportionate create images of themselves for and sensitive a manner as their own use. If they possible. There comes a point, successfully argued that this however, where the blame- legislation was unconstitutional, game can obscure the lessons and if that legislation was that we, as a polity, should take nuked, it would result in a from the whole saga. In legislative vacuum – there particular, the Supreme Court would be no laws prohibiting ruling in CC v Ireland ([2006] the possession of such images – IESC 33) should really make us throwing the baby out with the think about whether the Sex bomb: nuking legislation can lead to a legislative vacuum bathwater, if you will. ‘nuclear option’, whereby the So, when the Canadian court invalidates prosecute someone who does usually taken to mean that it was Supreme Court invalidated laws unconstitutional legislation, is not have a guilty mind. The never carried over into the post- like these in R v Sharpe ([2001] really the best way to go about problem, however, is that the 1937 constitutional order at all. 1 SCR 45) on the basis of the vindicating and protecting same offence has been used to Basically (and although one can ‘Romeo and Juliet’ argument, it important constitutional rights. prosecute those who never disagree with this), the Supreme was consciously aware of the Of course, you may think could have raised this defence. Court may say it didn’t really ‘gap’ that the nuclear option that I am talking rubbish. If So, nuking the legislation gave have a choice – the legislation could create. So, rather than legislation is unconstitutional, ‘real’ rapists a gap through (so said the court) was always nuking the legislation, the court shouldn’t it be automatically which they could march right unconstitutional under Bunreacht read an exclusion clause into invalid? How could we, a into the High Court and na hÉireann and so it had to be the relevant legislation to cover people committed to demand their release. seen as invalid in an ab initio these ‘peripheral’ cases. Of constitutional governance, even Indeed, it is not being sense. Moreover, the Supreme course, one may be very tolerate the idea that alarmist to label the A case and Court has attempted to plug this uncomfortable with this, and unconstitutional legislation its consequent public reaction as gap with its decision in A case. view it as a form of judicial could ‘live on’ beyond its one of the severest crises of So, crisis averted? legislation. Indeed, the judicial condemnation? Well, legitimacy that our Supreme Maybe so. What is Supreme Court in CC seemed the CC case illustrates just how Court has faced in its near 70- important, however, are the to feel this way about ‘reading this way of thinking can cause year existence. However, a good lessons we take from this. The in’ a defence of reasonable problems. There, the offence of deal of criticism levied at the problem with the nuclear mistake as to age into s1(1) of what is colloquially referred to court may be slightly too harsh. option is that it fails to take the Criminal Law (Amendment) as ‘statutory rape’ was held to The nuclear option was used in seriously the significant Act 1935. But this is not the be unconstitutional because it CC largely because the difference between deciding only way that Canadian Courts did not allow for a defence of legislation under challenge pre- legislation is unconstitutional, avoid the problems associated reasonable mistake as to age. dated the Constitution. A and invalidating legislation with the nuclear option. For Indeed, many of us may agree decision that pre-constitutional based upon that decision. To example, in Attorney General for with this – maybe it is wrong to legislation is unconstitutional is illustrate this, let us draw upon Ontario v M & H ([1999] 2 SCR

12 www.lawsociety.ie VIEWPOINT LAW SOCIETY GAZETTE JULY 2006 viewpoint ‘nuclear option’?

3), the Supreme Court held that Slovenian or South African constitutional questions. To boundary into poorly targeted, certain exclusions of same-sex constitutions will take effect. A give credit where it is due, our scatter-shot invalidation of laws, couples from spousal support somewhat different model is courts have, on occasion, shown which resonate far beyond the schemes was an operated in Britain. Under the some interest in developing a context of the case-at-bar. unconstitutional discrimination. Human Rights Act 1998, a court better range of remedies, but as Our courts are, perhaps, the Again, the Supreme Court may declare legislation to be the CC and A cases indicate, best institution to decide what chose not to nuke the relevant incompatible with the European greater certainty is needed. our rights mean in any given provisions, but to suspend its Convention on Human Rights. Nothing here, however, means case. Our legislature is, in some declaration that the offending However, the court cannot that we would have weaker cases, perhaps, the best section was of no force or effect invalidate that legislation. rights. It simply means that we institution to put those decisions for a period of six months, Rather, the legislation remains should think about the into action. One may well thereby shifting the resolution on the statute books until possibility that nuking disagree with this, but at the of the matter to parliament, parliament repeals or amends it. legislation can be a very least, it may be best to get which could amend the relevant Whatever one thinks about disproportionate response to this disagreement out in the legislation to meet the Supreme the merits of any particular successful rights claims. Rather, open, so we can decide on just Court’s constitutional views. model, the A case debacle Irish political life can have the how we want our courts to deal Indeed, the constitutional suggests that it is perhaps time best of both worlds. We can with constitutional questions courts of Slovenia and South to think seriously about have a strong judiciary, vigilant before the next crisis looms. G Africa enjoy similar power, formally amending the in the stewardship of our most whereby those courts may set a Constitution to introduce a cherished of rights. However, Brian Foley is a barrister and time period after which greater degree of sophistication starved of the nuclear option, PhD candidate at Trinity College ‘abrogation’ of a law under the about how our courts resolve that vigilance will not cross the Dublin.

www.lawsociety.ie 13 LAW SOCIETY GAZETTE JULY 2006 LETTERS letters

Send your letters to: Law Society Gazette, Blackhall Place, Dublin 7, or email: [email protected] Prime Time highlights solicitor problems From: René Rosenstock, Solicitor, in believing this to be the Law created an impression of the investigation into either of Delgany, Co Wicklow Society’s approach, but this was defensiveness on your part, these events. Quite simply, the wish to make some brief the impression conveyed by your rather than a candid engagement matter begins and ends with the Iobservations in relation to the responses. From what I saw, with the issues at hand. I would 1,100 or so complaints that are Prime Time programme and the Oonagh Smyth did not press have favoured a far briefer made to the Law Society and context in which it was you on this issue but if this is the defence of the profession by, for how well the complaints are broadcast. Law Society’s approach, it seems example, firmly pointing out investigated and resolved. Firstly, in relation to the most unsatisfactory. I suggest (merely once) that solicitors Sixthly, it should be noted context, I would say as follows. that the proper approach is for operate to high standards and that the figure of 1,100 that you It appears to me that for the the Law Society to adopt a more that almost inevitably, not quite quoted did not account for what most part, the Law Society’s proactive stance and to seek everyone meets those standards. must be at least the same approach to investigating substantiation or independent Fifthly, I thought it was number of potential complaints complaints in relation to verification in all cases in respect wrong for you to defend the that are unreported. Prime Time solicitors is laudable and well of a solicitor’s responses to profession by reference to the bore witness to the vulnerability intentioned. Indeed, Indecon and enfeebled mental state of consultants described the Law some people that encounter the Society’s procedures as well legal profession and who would structured and logical. be reluctant to report their Secondly, Prime Time problems to the Law Society. It highlighted problems would be foolish to suggest that concerning several solicitors. the figure of 1,100 complaints The negligent omissions and represents the full extent of commissions of these solicitors public dissatisfaction. It would were of a serious nature. also be wrong to use this figure Thirdly, without offering a as an indicator of some sort of a detailed commentary on those ‘converse satisfaction level’. cases or the Law Society’s The Law Society’s procedures handling of them, one feature of work well in many respects. In the Law Society’s approach to principle, however, I object to investigations concerned me. It questions during the course of small number of complaints that self-regulation by any profession. appeared from your own an investigation. It is beyond the it receives, relative to the Solicitors have, in my view, more responses to a number of scope of this letter to suggest number of legal transactions that to gain from independent questions put by Oonagh Smyth, detailed legislative reforms. I take place in the State. The regulation than by maintaining that the Law Society’s would, however, suggest that latter has no relevance to the the status quo. The interests of investigations have on occasion, providing for a power to former. As an argument it the profession are not well fallen below an acceptable summons witnesses to give seemed spurious. If a plane served by either avoiding or standard of rigour. I am evidence on oath before the crashes, the aviation authorities denying the problems that exist. referring to the practice of the regulatory body (whatever it do not explain their investigation In the greater context, the ability Law Society of corresponding may be in the future) might be into the crash by saying that, to recognise that reform is with solicitors in relation to the desirable. statistically, it is actually safe to necessary must exist. So, too, progress they have made in Fourthly, it seems to me that fly. The fact that it is statistically must the desire to reform. Once resolving a client’s complaint the appropriate response of the safe to fly or the fact that many that exists, it must be motivated and the Law Society’s apparent Law Society was to defend solicitors are good practitioners by the positive things that can be omission to seek supporting and/or answer questions solely might inform your choice to fly achieved for the profession and documentary evidence from the in relation to how the Law or to take legal advice. However, our clients and not, for example, solicitor under investigation, but Society addresses complaints but these facts tell one nothing by the negative incentives of the instead to rely only on the not to embark upon a wider about why a particular plane threat of reform being forced solicitor’s written word. I defence of the profession. The crashed, why the solicitor was upon solicitors by some external sincerely hope that I am wrong approach that you adopted negligent or the effectiveness of party.

14 www.lawsociety.ie LETTERS LAW SOCIETY GAZETTE JULY 2006 ‘Sensationalist, hostile and unbalanced’ Law Society Director General minutes of this interview was Ken Murphy responds broadcast and these small hank you for your letter in segments were chosen by Prime Trelation to the Prime Time Time to fit in with the programme. The Society programme’s own agenda. I welcomes and values feedback had asked if, instead of having from the profession on such a pre-recorded interview, matters. which inevitably would be I would like to comment on severely edited by Prime Time, the main points raised in your I might undertake a live studio letter in accordance with your interview at the end of the numbered paragraphs. programme in which I would Firstly, I am glad you have at least had some control acknowledge that the Law over what would be broadcast. Society’s approach to The Prime Time Investigates investigating client complaints series will not permit this, against solicitors is, as you Ken Murphy: “the term ‘self-regulation’ as a description of the system of however. describe it, laudable and well regulation of solicitors in this jurisdiction is completely misleading” Fifthly and sixthly, I believe intentioned. I pointed out to it was very right to defend the the makers of the Prime Time the nature of allegations rather an early stage in the Society’s profession by reference to the programme and, in fairness to than findings based on a extensive dealings with the small number of complaints it them, they did briefly balanced and impartial process programme-makers that the receives, relative to the number acknowledge in the broadcast that assessed all relevant facts. effect, if not the actual of legal transactions that take that the Society’s complaints- Generally speaking, the intention, of the programme place in the State. Things can handling system has been programme only highlighted would be to show the solicitors’ only be viewed properly and described by the Minister for one side of these cases. profession in a bad light. This proportionately if seen in their Justice, Equality and Law Thirdly, I can assure you is why when I wrote to Oonagh true context. We would all Reform as “exemplary”, by the that the Society does not Smyth of Prime Time on 19 wish that the number of 1,100 Independent Adjudicator as unquestioningly accept written May 2006, I expressed concerns complaints received on average “fair and adequate” and by the assurances from solicitors that about balance. I pointed out each year was much lower. It is Competition Authority’s own they are now making progress that focussing heavily on a relevant and appropriate, economic consultants, in delay cases. Indeed, as I series of specific cases, in which however, to point out that, on a Indecon, as “logically pointed out in the programme people had very serious conservative estimate, structured, fair and open”. In as broadcast, in such cases complaints about their practising solicitors in this fact, all three have made much solicitors are regularly required solicitors, would very likely jurisdiction every year deal more positive and to attend in person before the have the effect of suggesting with some 750,000 cases and wholeheartedly approving Complaints and Client that the experiences of these transactions. statements about the system Relations Committee and to people are typical of the On this basis, the proportion than were included in the meet specific deadlines set by experiences of a very high of cases and transactions that Prime Time programme. All the committee for stages of the proportion, if not the majority, result in complaints to the three, I would suggest, also work to be completed. The of clients of solicitors in Society is 0.1%. Of course, have studied and know a great Society’s first and foremost Ireland. Such a suggestion even many of these complaints deal more about the system objective in such cases is to get would give a very false and are revealed, on examination, than does Prime Time. the delayed legal work damaging impression to the to have no proper basis. Prime Secondly, the majority of completed as quickly as viewers of the programme. It is, Time did, under pressure from the cases dealt with by Prime possible in the interest of the of course, impossible for you to the Society, broadcast my Time were cases of alleged client. assess the pre-recorded comment that it is hardly misconduct rather than alleged Fourthly, you are of the interview I gave to Prime Time. surprising, given that Prime negligence. While the general view that, in my interview with You have not seen it. It lasted Time had chosen their cases public may consider matters to Prime Time, I should have for almost an hour-and-a-half going back over a number of be ‘proved’ by television focused almost exclusively on without a break. I answered as years, that – from literally programmes of this kind, the answering questions about the helpfully and comprehensively millions of potential cases – appropriate legal processes for Society’s complaints’ handling as possible every question put Prime Time found a number of dealing with these matters are rather than embarking upon a to me, other than questions people who were dissatisfied. not yet completed in most of wider defence of the relating to specific complaints What Prime Time did not the cases. It is important to profession. I disagree. I believe about individual solicitors, broadcast was my going on to recognise, therefore, that much it was important that I should which I cannot discuss as a say with emphasis that every of what was broadcast was of do both. I formed the view at matter of law. Only about four one of the complaints received

www.lawsociety.ie 15

LETTERS LAW SOCIETY GAZETTE JULY 2006

is a very serious matter for the ‘self regulation’ in relation to under statutes passed by the Minister for Justice, Equality individual concerned and a very the solicitors’ profession in Oireachtas and must, by law, and Law Reform in the context serious matter for the Society. Ireland is a misnomer, and the operate in the public interest. of our general welcome for the Nor did Prime Time broadcast sooner everyone stops using the The Law Society plays an very significant changes that are my pointing out that the term the better. The ultimate important part, along with the in the course of being Solicitors Disciplinary Tribunal regulatory authority in relation others mentioned, in all of this introduced under the Civil Law and the Independent to solicitors is not the Law but it is misleading to call it (Miscellaneous Provisions) Bill Adjudicator can effectively Society but the President of the ‘self-regulation’. For some years 2006, which is now published overrule and redress a decision High Court. now, we in the Society have and awaits passage through the made by the Society if the The main regulatory and used the more accurate term Oireachtas. Society gets it wrong. disciplinary powers are vested ‘co-regulation’. Of course, there was validity As I said in the course of the in the Solicitors’ Disciplinary I must also take issue with in some of the criticisms made, interview – although it did not Tribunal, which is independent the suggestion towards the end both of the Society and of the make it through the thousand of the Law Society, with a third of your letter that the Law solicitors’ profession, in the cuts of Prime Time’s editing of its members being non- Society and the profession are Prime Time Investigates process – “We are a human lawyers nominated by the opposed to reform. Quite the programme. We have to be big institution like any other. We Minister for Justice, Equality contrary is the case. enough to recognise this and don’t get absolutely everything and Law Reform. Entirely on the Society’s own open enough to learn from it. right all the time – no The Law Society’s initiative in recent years, it Nevertheless, it was essential to institution does. Where we get Complaints Committee, a third undertook a root-and-branch point out, in the face of a it wrong, other bodies can of whose members currently are review of its regulation with a programme that a great many redress it.” non-lawyers nominated by task force chaired by the former solicitors and non-solicitors At the end of your letter you IBEC, ICTU and the Director secretary general of the alike perceived to be say that, in principle, you object of Consumer Affairs, will Department of Justice, Joe sensationalist, hostile and to self-regulation by any shortly have a lay majority. The Brosnan. The Regulatory Review unbalanced, that the number of profession. So do I. Self- existing Independent Task Force Report was published cases that give rise to complaint regulation has the potential to Adjudicator, with extensive in 2004, with a copy sent to is very small indeed. be self-interest regulation at the powers, is shortly to be replaced every solicitor. The extensive Is it wrong for people to expense of the people whom the by a Legal Services reforms, comprising 56 specific conclude from this that the profession exists to serve. Ombudsman with even greater changes, were adopted and overwhelming majority of However, the term ‘self- powers. All this exists under the subsequently implemented by solicitors give an excellent regulation’ as a description of close eye of the Minister for the Society. Space does not service, which satisfies their the system of regulation of Justice, Equality and Law permit me to list many other clients in the overwhelming solicitors in this jurisdiction is Reform who frequently must reforms voluntarily undertaken majority of cases? No, it is completely misleading. Indeed, approve, in the public interest, over the years by the Society. not wrong. I believe it is the in the modern world I believe it Law Society regulations before However, the Society’s very truth and the solicitors’ is only in the media that true they can take effect. The entire positive attitude to reform has profession should not be afraid self-regulation exists. The term system is designed and operates been warmly praised by the to say it. G

www.lawsociety.ie 17 LAW SOCIETY GAZETTE JULY 2006 COVER STORY

The hand that The recent judgment on the defence of ‘mistake as to age’ and the subsequent decision in the Mr A case led to political turmoil and fervent public debate. Edel Kennedy examines the background to the newly-enacted law

s a result of the Supreme Court Mr A did not raise any constitutional argument for a judgment in CC v Ireland, DPP and right to advance a defence relating to mistake, as he AG, the Criminal Law (Sexual Offences) did not at any stage assert that he had reasonable Act 2006 was enacted – effectively grounds for believing that the girl was over 15. The A restoring the offence of statutory rape judgment will provide further reasoning for the to the statute books. Essentially, section 1(1) of the Supreme Court’s decision that Mr A’s warrant for Criminal Law (Amendment) Act 1935 was deemed detention and his detention on foot of that warrant unconstitutional by the Supreme Court, on the basis was still lawful. It would appear that the reasoning that it wholly removed the mental element of an provided to date does not reject the principle that a offence and expressly criminalised the mentally law found to be unconstitutional is retrospectively innocent. By virtue of the absence of a defence as to invalid but seems to instead represent a limitation of age, the 1935 act was entirely inconsistent with the its application. The imposition of temporal generally subjective nature of criminal liability in restrictions on the unconstitutionality of challenged Ireland and was wholly discriminatory. The CC law was also raised in the course of arguments for judgment represents a carefully considered and against the appeal, and is perhaps an issue that evaluation of the operation of the criminal justice will be given further consideration. The full system. Section 1(1) of the 1935 act criminalised a reasoning of the judgment is currently awaited. person without mental guilt, contrary to justice The Criminal Law (Sexual Offences) Act 2006 has guaranteed under article 40.3.1 of the Constitution. addressed the central issue of the CC decision by The potentially far-reaching implications of the providing the defence of honest belief that the child CC decision were illustrated by the initial release of was older than the statutory age. The court must Mr A and the numerous other applications for also consider whether or not there are ‘reasonable release by individuals serving sentences under grounds’ for such a belief. This insistence that any section 1(1) of the 1935 act. When a law is found to mistake as to age must be reasonable as well as be unconstitutional, it is deemed to be honest constitutes an objective approach. The unconstitutional from the enactment of the requirement for reasonable grounds applies an outer Constitution. This reasoning was highlighted in standard to the individual, but child protection Murphy v AG (1982), in which the constitutionality interests could justify the use of the objective test. of the taxation regime for a married couple was successfully challenged and found to be Acts and omissions retrospectively inoperative. The Supreme Court For the purposes of the new act, ‘sexual act’ means MAIN POINTS ruling in the Mr A case signifies a marked departure an act consisting of sexual intercourse or buggery • Criminal liability from the retrospectivity that would usually apply in between persons who are not married to each other. in sexual offences such instances and limits the possible consequences The definition also encompasses an act described in • Supreme Court of the CC judgment. sections 3(1) and 4(1) of the Criminal Law (Rape) decision in CC v (Amendment) Act 1990. By virtue of section 2, life Ireland, DPP and Rock of ages imprisonment is reinstated as the maximum AG In an ex tempore decision, Chief Justice John Murray sentence for those convicted of sex or attempted sex • Criminal Law stated that section 1(1) of the 1935 act was declared with a child who is under the age of 15. Under (Sexual Offences) unconstitutional because the applicant was unable to section 3(2), for those who attempt to engage in a Act 2006 plead that he had reasonable grounds for believing sexual act with a child under 17, the maximum that the girl was over 15. It was further stated that penalty is two years – but this increases to a possible

18 www.lawsociety.ie COVER STORY LAW SOCIETY GAZETTE JULY 2006

ROBS [email protected] PIC: the cradle

www.lawsociety.ie 19 LAW SOCIETY GAZETTE JULY 2006 COVER STORY

CRIMINAL LAW (SEXUAL OFFENCES) ACT 2006: MAIN FEATURES •Defence of honest belief available that the child had attained 15 act with a child. This offence is gender neutral. years (s2) or 17 years (s3) in accordance with the CC judgment. •Maximum penalty of life imprisonment reinstated on conviction of • Persons in authority defined (s1) and are subject to higher penalty on offence of engaging in sexual act with child under the age of 15 (s2). conviction under section 3. • Females under 17 years of age cannot be guilty of an offence under •A person convicted of offence under s3(1) shall be liable to a heavier section 1 or 2 by reason only of her engaging in an act of sexual sentence in respect of any subsequent conviction of an offence under intercourse. that subsection. • No proceedings for an offence against a child under 17 years of age • New offence created of engaging or attempting to engage in a sexual can be brought except by the Director of Public Prosecutions.

four years if the person convicted is ‘a person in child consented to the sexual act. authority’, a term that includes parents, step-parents, Under section 5, it is an offence to engage in a guardians, grandparents, aunts or uncles, a person in sexual act with any young person under the age of loco parentis or a person responsible for the 17, but it also states: “A female child under the age education, supervision or welfare of the victim. of 17 shall not be guilty of an offence under this act Under section 3(1), for those who engage in a sexual by reason only of her engaging in an act of sexual act with a child under 17, the maximum penalty is intercourse.” By virtue of section 5, if a male and five years, but this increases to ten years if the female who are both under 17 engage in sexual person is a person in authority. intercourse, the boy is guilty of a serious offence but Under section 3(3), a person convicted of an the girl is not. It is claimed that the differential offence under subsection 1 shall, in respect of any treatment of boys and girls in the new act may not subsequent conviction of an offence under section sustain a constitutional challenge or the scrutiny of 3(1), face a maximum penalty of ten years’ the European Convention on Human Rights. The imprisonment and 15 years if committed by a person Oireachtas has explained this apparent in authority. A second conviction for an attempt to discrimination as a necessary measure to avoid the engage in a sexual act carries a sentence of four years criminalisation of teenage mothers. Arguments and seven years for a person in authority. against this claimed justification state that this It will not be a defence for a person accused of a measure makes it more difficult for young fathers to sexual act with a child under 17 to plead that the be part of their child’s life and sends the message that the male should not share in the same duties and responsibilities of parenthood as a female. The government has further defended this section by arguing that criminalising young girls would lead to practical difficulties. An example involving a charge of statutory rape against an older male was given. It was stated that if a young girl was criminalised, she would become an accomplice to the offence and, as such, her evidence would need corroboration.

Different strokes Before the enactment of the new legislation, it was proposed that an exception should be provided for consensual sexual activity between teenagers who were both under 17. It was suggested that if both parties were aged between 14 and 16, no offence would be committed if there was no more than a two or three-year age gap between them. However, consensual sexual acts other than intercourse between a 16-year-old girl and boy are criminalised under the new legislation. For example, if a young girl performs oral sex on the boy, they are both guilty of a serious offence – but if the boy performs oral sex on the girl, then neither of them is guilty. Another seemingly bizarre anomaly of the new Edel Kennedy’s article, titled ‘Age-Old Problem’, published in the Gazette, October 2005, legislation is this: if a boy attempts to have was the first published article that drew attention to the fact the the unanimous decision of A, B, C v Ireland, AG and DPP signified a substantial change in Irish law. Edel’s article consensual intercourse with a girl but fails, the girl is was quoted extensively in the media and was referred to on several occasions by the Fine rendered guilty. Therefore, the girl can protect her Gael leader Enda Kenny in the Dáil legal innocence by proceeding to natural

20 www.lawsociety.ie COVER STORY LAW SOCIETY GAZETTE JULY 2006

intercourse, deemed complete upon proof of suggested that behaviour previously covered by this penetrative intercourse. section would be open to prosecution as a ‘sexual The prevention of exploitation should be a assault’. However, it might be argued that it was not priority of the new legislation, but it appears that necessary that physical contact take place for the the legislation confuses the treatment of a situation offence of ‘gross indecency’ under section 4 of the involving an older paedophile abusing a younger girl Criminal Law (Sexual Offences) Act 1993. It remains with that of teenagers having consensual sexual to be seen whether or not this assertion will stand intercourse. It should be considered whether such up to closer scrutiny in the event that it is tested, as criminalisation is unrealistic, and a public debate on each case will turn on its own set of individual facts. the moral and sociological issues of teenage sex is Furthermore, the procurement of an act of gross urgently required. indecency was an offence under this section and this offence has not been replaced with a similar Sex, lies and videotape provision. Upon the introduction of the new legislation, Further consideration is also required regarding concerns were raised about the adversarial court the issue of whether a child who is compelled by procedure that would result in young girls being fear or threat to sexually touch another person, asked questions about their appearance. The without being touched in return, is protected as a potential for such questioning exists, but safeguards victim by the application of the offence of sexual should be put in place. The government has assault. The Law Reform Commission’s Consultation expressed regret for the delay in bringing forward Paper on Child Sexual Abuse stated: “There is clearly the necessary video evidence procedures that were “Consensual a need for an offence of procuring an act of agreed and found expression in the Criminal Justice sexual acts indecency with a young person. A child may be (Evidence) Act 1992. compelled as a result of a threat, or having A further claim levied against the new law is that other than otherwise been put in fear, to perform an indecent it decriminalises some homosexual acts involving intercourse act with an adult, which would not, strictly speaking, older men and boys under 17. Previously, the law constitute an indecent assault by that adult.” It has stated that a man could be prosecuted for engaging between a 16- been suggested that a legislative provision on this in acts of gross indecency with a boy between the year-old girl matter, modelled on the Canadian Criminal Code, ages of 15 to 17, even if the boy had consented. should be enacted into Irish criminal law. This section of the Criminal Law (Sexual Offences) and boy are Act 1993 has been repealed under the new criminalised Where angels fear to tread legislation. It has been claimed that, if a situation The Criminal Law (Sexual Offences) Act 2006 occurred in which an older man was involved in under the new represents the beginning of a process of certain sexual acts that are not within the ambit of legislation” comprehensive consideration of the important issue the ‘sexual acts’ definition of the legislation with a of child protection. The government’s appointment consenting 15-year-old boy, then that older man of a legal expert to carry out an annual audit of the would not be guilty of such an offence. operation of laws, both national and international, Section 4 of the 1993 act provided that a male related to child-protection issues and the committing, or attempting to commit, an act of establishment of an all-party committee to examine gross indecency with another male under 17 shall be all laws on sex crimes against minors are further guilty of an offence, punishable upon conviction of welcome steps in this process. up to two years’ imprisonment. The abolition of It is unfortunate, however, that the tendency to section 4 was defended by the government, which rush through important legislation in response to a particular event is a familiar aspect of Irish criminal law (see Viewpoint, p12). The murder of Veronica LOOK IT UP Guerin led to the Proceeds of Crime Act 1996 in Cases: response to the public realisation that organised • CC v Ireland, DPP and AG (23/5/2006) crime had become a powerful force within the state. • Murphy v AG [1982] IR 241 (SC) Similarly, the Omagh bombing led to the enactment of the Offences Against the State Act 1998. The Legislation: formulation of new legislation on sexual activity • Criminal Justice (Evidence) Act 1992 involving young people merited a considered • Criminal Law (Amendment) Act 1935 approach – however, the government was not • Criminal Law (Rape) (Amendment) Act 1990 afforded that opportunity due to the overwhelming • Criminal Law (Sexual Offences) Act 1993 public disquiet. G • Criminal Law (Sexual Offences) Act 2006 • European Convention on Human Rights Edel Kennedy is a trainee solicitor with Dublin law firm • ‘Megan’s Law’ Partners at Law. She is the author of the October 2005 • Sex Offenders Act 2001 Gazette article ‘Age-old problem’, which highlighted the significant legal issues in this area.

www.lawsociety.ie 21 LAW SOCIETY GAZETTE JULY 2006 FAMILY LAW TO andhave TO HOLD A judgment last December makes clear that a party to family-law proceedings seeking a property adjustment order has unregistered rights against the interests of the other owning, but estranged, spouse. Patrick Mullins sorts out the priorities

n a very interesting judgment delivered by Mr judgment into a judgment mortgage against the Justice Clarke on 12 December 2005, the interest of Mr Markham, in relation to a particular position of a judgment mortgage (see panel, p25) property in County Clare. The property was in relation to priorities was considered by the registered in the Land Registry. Mr Markham and IHigh Court. The judgment – in ACC Bank Plc v his estranged spouse were the registered owners of Vincent Markham and Mary Casey – seeks to clarify the lands. The judgment mortgage was registered by the requirement on the part of a family-law litigant the plaintiff against the interests of Mr Markham to register a lis pendens and its effect as against a only. judgment mortgage creditor of that person’s spouse. The plaintiff sought a declaration to the effect Mr Justice Clarke effectively ruled that the law that the judgment mortgage stood well charged, and relating to the registration of a lis pendens as a burden sought an order for partition, or a sale in lieu of a on registered land is as follows: partition, which would enable ACC to seek payment. • Any party making a claim for a property Prior to the date of registration of the judgment adjustment order in family-law proceedings is mortgage, the second-named defendant, estranged entitled to register a lis pendens in respect of such spouse of the first-named defendant, issued property. proceedings for a judicial separation and sought, • The registration of a lis pendens binds any party among other things, a property adjustment order. who is a purchaser or mortgagee for value. Any direction to transfer the property that might In a bind MAIN POINTS ultimately be made will rank in priority over the ACC was not on notice of the family-law • Clarifying the interest of any purchaser or mortgagee for value proceedings. No lis pendens was lodged by the requirement to who acquire their interest subsequent to the estranged spouse to put any party on notice of register a lis registration of the lis pendens. proceedings pending in relation to the property. pendens and its • Because a judgment mortgagee is deemed to be a The judgment dealt with the issue of priority effect volunteer rather than a mortgagee for value, the between the estranged spouse and the bank. Mr • Ranking of the judgment mortgagee will – even in the absence of Justice Clarke drew a distinction between a judgment actual notice or the registration of a lis pendens – purchaser or mortgagee for value, and a volunteer. mortgagee and rank behind the interest of a spouse to whom a The court also considered section 10 of the the interest of a transfer order is made, provided that family-law Judgments (Ireland) Act 1844, which states: “No lis spouse proceedings have started before the registration of pendens shall bind or affect a purchaser or mortgagee • Start date of the judgment mortgage. without express notice thereof unless and until a family-law memorandum or minute containing the name and proceedings In this case, the plaintiff obtained judgment against usual or last-known place of abode” is registered. Mr Markham, and subsequently converted the The court affirmed a decision by Mr Justice

22 www.lawsociety.ie FAMILY LAW LAW SOCIETY GAZETTE JULY 2006 I:REX FEATURES PIC:

Geoghegan in AS v GS (1994). In that case, the of it, and irrespective of whether a lis pendens by way judge held that the protection to purchasers or of documentation has been registered. mortgagees in the act of 1844 was intended only for Mr Justice Clarke held that the position of the those acquiring an interest for value. On the basis estranged spouse ranked in priority to the judgment that a judgment mortgagee has been held to be a mortgage in favour of ACC. The court also volunteer, he found that a volunteer is done by lis considered the provisions of section 71(4) of the pendens, irrespective of whether he or she had notice Registration of Title Act 1964, which provides that a

LIS PENDENS Lis pendens (‘pending action’). The registration of an Estate ([1885] 15 LR Ir 373). action against a landowner: Judgment (Ireland) Act A judgment mortgagee, being a volunteer, is bound 1844, s10; Byrne v UDT Bank Ltd ([1984] ILRM 418). by a lis pendens irrespective of whether or not he or A lis pendens does not bind or affect a purchaser or she has notice of it and irrespective of whether or not mortgagee, who has no express notice of it, unless the lis pendens has been registered: AS v GS and AIB and until a memorandum containing the requisite ([1994] 2 ILRM 68, HC). details concerning the suit is registered in court, for A registered lis pendens may be vacated on the example, the name and usual or last known abode order of the court, even without the consent of the and title, trade or profession of the person whose person who registered it: RSC Ord 63, r1(29); Flynn v estate is intended to be affected by the suit, the Buckley ([1980] IR 423); Lis Pendens Act 1867. court, title of action, and day filed: Re O’Byrne’s (From Murdoch’s Dictionary of Irish Law, 4th Edition.)

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charge against the interest of a judgment debtor in favour of a judgment mortgagee is subject to JUDGMENT MORTGAGE existing registered burdens and burdens affecting A judgment mortgage is a mortgage created by the registration as a mortgage, by the interest without registration and “all a judgment creditor against the lands of the judgment debtor, of a judgment of a unregistered rights subject to which the judgment court for the payment of a sum of money: Judgment Mortgage Acts 1850 and debtor held that interest at the time of registration 1858. Judgments that may be registered are such money judgments of the of the affidavit”. Supreme, High, Circuit and District Courts: Circuit Court (Registration of Judgments) Act 1937; Courts Act 1981, s24. Priority ranking A judgment may be registered against all legal and equitable interests of the The court considered the Supreme Court’s 1976 judgment debtor in freehold and in leasehold property; a judgment mortgage is decision in Tempany v Hynes, where the Supreme rarely registered against leaseholds, as the judgment mortgagee then becomes Court held that a purchaser from the registered liable for rent and covenants therein. owner of land had such an unregistered right under When a judgment is validly registered as a mortgage, the registration has the a contract for sale before execution of the transfer or effect of a mortgage by deed over the debtor’s beneficial interest at the time of payment of the purchase monies. In that case, the registration in the lands set out in the judgment mortgage affidavit which is sworn purchaser was held to take the property free of a by the judgment creditor: Judgment Mortgage Act 1850, s7. post-contract judgment mortgage registered against (From Murdoch’s Dictionary of Irish Law, 4th Edition.) the interest of the vendor. Mr Justice Clarke also held that Ms Casey might be said to be a person who had an unregistered right subject to which the first-named defendant held his virtue of the fact that the family-law proceedings interest at the time of registration of the affidavit, had started and were in process at the time of on the basis that she was a person who had brought registration of the judgment mortgage affidavit. In a claim that might, if the outcome were successful, the circumstances, Mr Justice Clarke adjourned the entitle her to a direction that certain lands be proceedings pending the determination of the transferred to her. It followed, therefore, from the family-law proceedings. provisions of section 71 of the Registration of Title Act 1964, that the judgment mortgage was subject to Unregistered rights that right, and that her right had priority over the It is clear, therefore, that a party to family-law judgment mortgage. proceedings, seeking a property adjustment order, Mr Justice Clarke concluded that any interest that has unregistered rights against the interests of the Ms Casey would become entitled to as a result of other owning, but estranged, spouse. family-law proceedings would rank in priority to the These ‘unregistered’ rights take priority over a interest of ACC under the judgment mortgage, by judgment mortgage registered against the interest of the other owning, but estranged spouse, provided that the proceedings before the family law courts LOOK IT UP have been issued prior to the date of registration of Cases: the judgment mortgage. ACC Bank Plc v Vincent Markham and Mary Casey There is no requirement under law for such a [2005] IEHC 437 party to family-law proceedings to register a lis AS v GS (1994) 1 IR 407 pendens to obtain priority against a subsequent Tempany v Hynes (1976) IR 101 judgment mortgagee, who registered a judgment mortgage against the interest of the other owning, Legislation: but estranged, spouse. G Judgments (Ireland) Act 1844 Registration of Title Act 1964 Patrick Mullins is a partner in Dillon Mullins and Company, Solicitors. www.lawsociety.ie Have you accessed the Law Society website yet?

www.lawsociety.ie 25 LAW SOCIETY GAZETTE JULY 2006 COMPETITION LAW

Companies engaged in certain mergers or acquisitions are required to notify the Competition Authority of their intentions. Failure to do so can lead to void mergers, criminal penalties and possible negligence claims against legal advisers. Rosemary O’Loughlin untangles the issues ALL REX FEATURES PIC: together NOW

26 www.lawsociety.ie COMPETITION LAW LAW SOCIETY GAZETTE JULY 2006

MAIN POINTS • The Competition Authority and merger enforcement • Mandatory notifications ‘out of time’ • Criminal penalties for failure to notify ailure to notify the Competition It is important to remember that the term Authority of a merger or acquisition can ‘undertaking involved’ includes more than just the have serious consequences for the parties particular acquiring or merging company. It involved and for their legal advisors. includes the entire corporate group, except in the F Where a transaction that is the subject of case of an acquisition, where only the target a mandatory notification is not notified to the company is included on the acquired side, and not authority, and subsequently implemented by the its parent vendor company or person(s). parties, the merger or acquisition is void. This will There are no financial thresholds applicable to remove all legal certainty for any actions taken media mergers. Therefore, for notification purposes, following the merger, including any contracts it does not matter what level of sales are achieved by entered into or appointments of personnel that are the media business concerned. This, coupled with made. the fact that only one of the merging parties need Additionally, there may be criminal penalties for carry on a media business in the state, renders this failure to notify, as well as possible negligence provision very far-reaching in its application. claims against a solicitor for failure to properly advise. Awareness on the part of practitioners as to I want you what transactions must be notified to the Once the merger or acquisition is a notifiable Competition Authority – particularly media mergers transaction, the undertakings involved must notify – is therefore fundamentally important. the Competition Authority of the proposal to put it Since January 2003, the Competition Authority into effect within one month from the conclusion of has been primarily responsible for merger an agreement or the making of a public bid (section enforcement in Ireland. The Competition 18(1) of the act). Authority’s powers and functions in this regard are Consequences include criminal sanctions. Section set out in part 3 of the Competition Act 2002. 18(9) provides that failure to notify renders the Section 18(1) of the Competition Act 2002 (the act) person in control of the undertaking guilty of an provides for the mandatory notification of certain offence and liable: mergers and acquisitions to the Competition a) On summary conviction, to a fine not exceeding Authority. Mandatory notification depends on €3,000; whether: b) On conviction on indictment, to a fine not a) The financial and nexus criteria set out in section exceeding €250,000. Section 18(10) provides for 18(1) are met, or recurring penalties for each day that the offence b) The merger falls within a class of merger or continues. acquisition specified in an order under section 18(5). Section 18(11) defines “a person in control of an undertaking” as: Come together • In the case of a body corporate, any officer of the To date, one class of merger has been specified by body corporate who knowingly and wilfully virtue of SI 622 of 2002. This class is the ‘media authorises or permits the contravention; merger’, which is defined in section 23(10) of the act • In the case of a partnership, each partner who as “a merger or acquisition in which one or more of knowingly and wilfully authorises or permits the the undertakings involved carries on a media contravention; business in the state”. • In the case of any other form of undertaking, any A ‘media business’ is defined in section 23(10) individual in control of that undertaking who also as: knowingly and wilfully authorises or permits the a) A business of the publication of newspapers or contravention. periodicals consisting substantially of news and comment on current affairs, Therefore, in order for an offence to be committed, b) A business of providing a broadcasting service, or it is necessary that the person concerned “knowingly c) A business of providing a broadcasting services and wilfully” allowed the contravention. This platform. requires a high standard of evidence.

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in relation to a separate transaction. The parties’ LOOK IT UP Irish-based solicitors had not been consulted in Legislation: relation to the first transaction. Competition Act 2002 The legal basis on which the Competition Authority can consider notifications of implemented Notifications: transactions is as follows: the merger that has been Notification M/04/003 Radio 2000/Newstalk 106 implemented is void, therefore no merger has taken Notification M/05/079 Radio County Sound/Dooley place at all. The parties, therefore, are notifying a and Feeney proposed merger, which the Competition Authority Notification M/06/017 CRH Deutschland/Syncotec can review in the usual way. If the Competition Authority clears it, it may be lawfully implemented. Website: This may involve the parties re-doing legal acts such The Competition Authority’s website: www.tca.ie as contracts and appointments of staff, among other things. If the Competition Authority should block such a merger, it would mean that the purported Moving a step further, a merger or acquisition new entity would have to undo the merger. falling under section 18(1), which is implemented Unscrambling the eggs in such a situation can be without a prior clearance determination by the very tricky. Competition Authority, is void. Section 19(1) There is a further risk involved in putting a media provides that a merger or acquisition to which merger into effect prior to clearance by the section 18(1) applies shall not be put into effect until Competition Authority – media mergers are subject to the Competition Authority so determines. Section further scrutiny by the Minister for Enterprise, 19(2) provides that any putting into effect contrary Trade and Employment. So even if the Competition to section 19(1) renders the merger or acquisition Authority clears a media merger on competition void. Therefore, failure to notify a transaction can grounds, the minister may prohibit it on other non- have further consequences for the undertakings competition grounds. involved where that non-notified transaction is implemented. Hello goodbye The Competition Authority is required to publish its Got to get you into my life determinations – with due regard for commercial A number of mandatory notifications to the confidentiality – within one month. Where a Competition Authority have been made outside of the transaction has been notified ‘out of time’ or allocated timeframe. This has been more likely to implemented prior to a determination by the happen in the case of media mergers, due to the wide Competition Authority, this is noted in the text of the category of transaction captured by this provision of reasoned determination. The public nature of the act and the absence of a turnover requirement. determinations means that any employee, customer, The first ‘out of time’ transaction considered by the supplier or competitor has knowledge of any period of Competition Authority was notification M/04/003 voidness. Moreover, any client company has Radio 2000/Newstalk 106. This media merger was knowledge of any delay by their solicitor in notifying a implemented prior to notification. Once the solicitors transaction. for the undertakings concerned were informed by the Although ignorance will certainly protect parties Competition Authority of the obligation to notify, the against criminal liability for failure to notify a merger notification was made promptly. Since the transaction to the Competition Authority, the same cannot be said did not give rise to competition concerns, it was in relation to the consequences resulting from cleared. A subsequent media merger – M/05/079 implementation. Radio County Sound/Dooley and Feeney – was not Voidness arises automatically once a notifiable notified until four to five months after the solicitors transaction is implemented without a clearance for the undertakings involved were informed by the determination from the Competition Authority. Competition Authority of their obligation to notify Criminal penalties may be imposed if the failure or the transaction. This was another transaction that had continuing failure to notify is a deliberate action. been put into effect without knowledge of the Awareness on the part of solicitors of these provisions of the act. The considerable delay in consequences is vital in order to protect themselves notifying thus extended the period during which the and their clients. merged entity legally did not exist. More information on the Competition Authority’s An example of a late-notified non-media merger is procedures in relation to mergers, as well as the M/06/017 CRH Deutschland/Syncotec. This transaction determinations, are available on the authority’s was implemented without notification to the website: www.tca.ie. G Competition Authority. The failure to notify was only subsequently discovered when solicitors for one of the Rosemary O’Loughlin is a solicitor and case officer in the undertakings involved were carrying out due diligence mergers division of the Competition Authority.

www.lawsociety.ie 29 LAW SOCIETY GAZETTE JULY 2006 LOOKING BACK CARVING its own course World War II engulfed Europe from 1939-45, but you wouldn’t have known it from reading the Gazette. Instead, it was more concerned with the effects of petrol and paper shortages. In the ongoing series celebrating the 100th volume of the Gazette, Mark McDermott reads between the lines of the censor’s pencil

he Gazette in the 1940s is notable for its – and its impact on the profession as it went about almost total lack of reference to the its daily business. “A deputation was received by the biggest event of the century – World War Ministry of Supplies at Ballsbridge, Dublin, upon II. In total contrast to the period from the 3rd May, to consider an application from the T 1914-18, where significant numbers of Solicitors practising in the cities of Dublin, Cork, solicitors and apprentices joined the Allies to fight Galway and Limerick for an increased allowance of Cobh in the 1940s: against Germany – a fact then celebrated by the petrol to enable them to carry on their professional petrol shortages during Gazette – there appeared to be a studious attempt to duties… the Emergency meant that the Law Society’s disregard the slaughter taking place across the water “After considerable discussion the deputation was president in December and on the Continent. As a neutral country, it informed that applications from Solicitors practising 1941, Jasper Travers appeared that Ireland was carving its own course and in the four cities, stating reasons and necessities for Wolfe, spent six-and-a-half so could not appear to show favouritism to either side. special consideration for an increased allowance of hours travelling from Cork city to Cobh – a distance One of the more significant matters discussed in petrol, based exclusively on wants for professional of over 50 miles – and 11 the pages of the Gazette from 1940-45 was the purposes, and stating registration number, make, hours from Dublin to Cork shortage of petrol (as a result of the anonymous war) and horse-power of car, would receive consideration…” (Gazette, May 1940, p5). Their pleas fell on deaf ears, however, with delegation after delegation being listened to during the war years, but ultimately being refused extra petrol rations. “With a serious curtailment of REPRODUCTION RIGHTS: THE NATIONAL LIBRARY OF IRELAND litigation due to the petrol shortage, the curtailment of Land Purchase and the war conditions now prevailing, I am afraid that the position is not a hopeful one,” the Law Society’s president, Jasper Tr avers Wolfe, opined in a rare reference to the war during his half-yearly general meeting speech on 16 May 1941 (Gazette, June 1941, p7). It would be a full year after the war’s end before solicitors would enjoy an increase of petrol rations. The president addressed another matter during the same speech: “When the Courts of Justice Act was passed it was understood that the appointment of District Justices would be divided fifty-fifty between Counsel and Solicitors. For some years past

30 www.lawsociety.ie LOOKING BACK LAW SOCIETY GAZETTE JULY 2006 PIC: INDEPENDENT NEWSPAPERS PLC. REPRODUCTION RIGHTS: THE NATIONAL LIBRARY OF IRELAND

30/31 May 1941: Ireland’s neutrality did not protect it from German attack. On the night of 30/31 May 1941, German bombers dropped their bombs on the northern part of Dublin. The North Circular Road, Summerhill Parade and North Strand (seen here) were hit – 38 people died and 70 houses were destroyed MAIN POINTS •World War II

AGENCY/GETTY IMAGES PIC: JA HAMPTON/TOPICAL PRESS The Society obtained a Charter on the 5th April, ignored 1852, and a supplemental Charter on the 14th • Petrol and paper December, 1888, and under the latter its title was shortages altered to that of ‘The Incorporated Law Society of • Centenary of the Ireland’. Society “The Council had hoped to celebrate the event in a manner fully appropriate to the occasion but felt that owing to the present national emergency the time was inopportune for the holding of any public social function. The Council has decided in order to mark the event, to found a Centenary Incorporated 2 May 1939: the first conscripts queue up to register for Law Society of Ireland annuity, to be administered the army at King’s Cross, London, at the start of World by the Solicitors’ Benevolent Association, and to War II. A notice requires them to provide their birth invite subscriptions with this object in view from the certificate, or failing that, certain personal information members of the Society, and it is intended to issue this appeal at an early date” (Gazette, July 1941, that has not been followed, but I am glad to say that p10). the last appointment was that of a Solicitor. We can Some £1,400 was raised through donation by only hope that a gentleman’s agreement of 1924 will August 1942 and presented to the Solicitors’ be observed for the future” (Gazette, June 1941, p7). Benevolent Association (SBA), with an annuity of some £40 to be administered by the SBA. Centenary of the Society It was back to the petrol and coal shortage in the The centenary of the Society was marked in the July half-yearly address of the president, Jasper Travers 1941 issue with a potted history of the previous 100 Wolfe, in December 1941: “Owing to the shortage years. “On the 17th day of June, 1841, The Society of petrol and coal, travelling facilities, so important of Attorneys and Solicitors of Ireland was instituted. especially for the Country Solicitors, have proved a

www.lawsociety.ie 31 LAW SOCIETY GAZETTE JULY 2006 LOOKING BACK

SOLICITORS AND APPRENTICES IN THE EUROPEAN WARS When World War I broke out in 1914, numerous Irish solicitors and regiments in the British or Commonwealth countries. apprentices readily joined the military service. The Law Society The Gazette is strangely quiet about World War II, with none of suspended its annual outings, dinners and other social functions for the ‘roll of honour’ obituaries or indeed any discussion on any Irish the duration of the war, contributing £127 annually (the cost of the soldiers, let alone solicitors or apprentices involved, as was the annual dinner) to the Irish Motor Ambulance Service. case during the Great War. Obituaries during this period only refer to Over 110 solicitors, 71 apprentices and 126 barristers (together solicitors/apprentices dying in Ireland (and not as a result of war with 175 sons of solicitors and 166 sons of barristers) had enlisted service). by mid-1916. A roll of honour began to appear in the Gazette in The Law Society decided to make special provision for solicitors’ relation to those solicitors and apprentices who had died in military apprentices serving in the Irish Defence Forces – but did not extend service, with letters of condolence being sent to members of their this provision to those serving with the Allies in World War II. “It families, which was acknowledged in the Gazette. Honours and was decided to ask the Government to make an Order under the awards for valiant service by Irish soldiers were also noted. The war Emergency Powers Act, 1939, entitling the Council, at their is mentioned frequently throughout the 1914-1918 Gazette. discretion, in cases where they are satisfied that a solicitor’s The Council met in November 1918 and almost immediately apprentice has, during the period of his indentures, served in the started a subscription for a war memorial for the 20 solicitors and 18 Defence Forces of the State or in any public service connected with apprentices who died during the war. The money was eventually raised the present emergency, declaring that the period of such service by 1921 and a memorial now in the Four Courts (near the double shall for all purposes be reckoned as time duly served under his doors in the solicitors’ area) was created. indentures of apprenticeship” (Gazette, May 1943, p2). Another issue that concerned the Law Society was how military The conclusion of the war in Europe merits scant attention in the service was to be considered for apprentices. It was decided that president’s address in May 1945, which notes that the end of the military service could be counted towards the three-year time war would hopefully mean that restrictions on petrol rations would requirement from apprentices. The sentiment emerging from the soon be lifted. Gazette during this period is one of great sadness – with honour – It is also of interest that, in 1944, over 1,422 solicitors were for those who had fallen during the war. registered to practice in Ireland – a peak that was not seen again for over 30 years. A note of caution was uttered by the then World War II president in relation to the excessive numbers in the profession The Gazette’s coverage of World War II is in total contrast to its and, in particular, the difficult economic situations that faced all treatment of the Great War. Shortages of petrol, paper and other solicitors during the ‘Emergency’. By the end of 1945, however, the basic necessities during the ‘Emergency’ were noted in the Gazette focus of the Law Society and its members returned to Ireland and – though the war’s part in such shortages is barely referred to. its legal concerns. Despite the Irish Government’s neutral policy, 50,000 Irish men and women contributed to the war effort in Europe, joining various Thanks to Pamela Marin PhD for contributing the above.

very serious matter. It now means to me that every William George Wakely, who died at his residence, time I come to Dublin to attend a Meeting of the ‘Elmhurst’, Temple Gardens, Rathmines, on the 26th Council I am absent three and often four nights. The March, 1942… journey from Cobh to Dublin prior to the “The history of the Society is his life story. When curtailment of the train service took three-and-a-half he was appointed Secretary, the Society was working hours. I have recently made the journey from Dublin under its Charters with very limited powers. The to Cork in eleven hours, but I am told that many scope and influence of the Society were considerably others have been less fortunate. I have made the extended during his term of Office, and largely as a journey from Cork to my home town, a distance of result of his personality and efforts… (Gazette, April just over fifty miles, in six-and-a-half hours, but 1942, p41). again, I do not hold the record” (Gazette, December “The President and the Press have paid their 1941, p28). tributes to his character … As the resolution passed by the Council truly states he was in all respects a Death of Mr Wakely truly great-hearted Christian gentleman and The Gazette marked the death-in-service of the possessed himself all the Christian virtues. He was Society’s Secretary, William George Wakely, in most courteous and kind in his dealings with all, and March 1942, with the publication of a black- regarded everyone with whom he came in contact bordered issue – a unique event in the publication’s primarily as a human being, no matter what his history. It very obviously showed the esteem in which station in life” (Gazette, April 1942, p43). the secretary was held. Mr Wakely served for over 53 The death of former vice-president of the Society, years between 1888 and 1942. The Gazette’s tribute John R Brennan, was also covered in an obituary in was emotional and praiseworthy: “It is with feelings the April 1942 issue. Mr Brennan was the maternal of deepest sorrow and regret that we announce the grandfather of the current president, Michael Irvine: death of the beloved Secretary of our Society, “Mr John R Brennan, Solicitor, died on the 28th

32 www.lawsociety.ie LOOKING BACK LAW SOCIETY GAZETTE JULY 2006

February, 1942, at his residence, ‘Glena’, Wexford. “Mr Brennan, along with his wife, lost his life most tragically in a fire, which destroyed their residence. Mr Brennan served his apprenticeship with the late Mr Thomas Huggard, Tralee, obtaining second place and a silver medal at his final examination, and was admitted a Solicitor in Trinity Sittings, 1900, and practised as senior partner in the firm of Huggard, Brennan & Godfrey, in Wexford. He became a member of the Council in the year 1929 and filled the Office of Vice-President in the year 1938-39. He gave valuable assistance in the work of the Council and was very effective in debate. He had a most genial manner and was held in high regard by his colleagues” (Gazette, April 1942, p47).

Paper shortage Petrol and coal weren’t the only commodities in short supply as a result of the ‘Emergency’: “The Society has received from the Minister of Supplies a PHOTO BY FOX PHOTOS/GETTY IMAGES letter pointing out the gravity of the position regarding paper and inviting the co-operation of the profession in endeavouring to alleviate the shortage of raw materials by increasing the collection of waste paper. It is pointed out that even a partial

COURT BEHAVIOUR 2 August 1940: a British ARP worker reads a piece of Nazi propaganda, dropped from “A provincial member writes: The recent a German bomber. It featured an English translation of a speech by Adolf Hitler made at announcement that the occupant of the almost the Reichstag forgotten (to us) Woolsack has come to the conclusion that women appearing in Court and breakdown of the supply of paper would be taking the oath on giving evidence may do so sufficient to cause a stoppage in the business without affecting the elaborate head-dress beloved activities of the country carried on in professional of the well-known coloured sporting tipster, or even and commercial offices and would give rise to great the modest handkerchief, raises the question of unemployment hardship and dislocation of essential how far our own Courts may be disposed to services…” (Gazette, January 1943, p36). recognise women litigants appearing without head “The Gazette Despite the paper shortage, the Gazette covering. At least in our Circuit and District Courts, underwent a design change for the July 1943 issue men are admonished to ‘take off your hat, Sir’, will aim neither (vol 37, no 3). Rather strangely, it and the while women sweep by arrayed in all their glory. to emulate nor subsequent issue were printed on superior quality There is the case of the sprightly junior who wished paper, but reverted to type for the November 1943 to draw the attention of a certain County Court to compete issue: “The Council in deciding to adopt this new Judge to his gorgeously befeathered bar-maid with other form have had in view the desirability of increasing witness in a Licensing appeal, and sought his the utility and interest of the Gazette within the Honour’s approval of ‘the manner in which his publications of limits imposed by war-time restrictions. While the proofs were presented’ – the witness, of course, greater legal Gazette is and will continue to be published failing to appreciate the reason for the resulting primarily as a record of the Society and will aim laughter in Court. interest” neither to emulate nor to compete with other “However, in the matter of proper deportment, or publications of greater legal interest, the Council dress, it seems but right to regard the woman who hopes to increase its scope by keeping the profession appears in our Courts without head-dress as in no in touch with recent decisions of the Irish and way acting disrespectfully, but what of the two English Courts of peculiar interest to solicitors … It persons of the weaker sex, who were seen recently should, however, be borne in mind by contributors in the back of a certain Court in the country calmly that brevity is essential in the present circumstances indulging in a surreptitious cigarette?” (Gazette, of paper shortage…” (Gazette, July 1943, p16). November 1943, p27). Not quite the excuse we use today – but still sound advice nevertheless! G

www.lawsociety.ie 33 LAW SOCIETY GAZETTE JULY 2006 LAND LAW GOOD for the day

The new Registration of Deeds and Title Act is supposed to modernise and streamline registration mechanisms and procedures. Denis Linehan gets to grips with it, section by section

he Registration of Deeds and Title Act 2006 The act is divided into five parts and has one was signed into law on 7 May. Its schedule. Part 1 deals with such matters as preamble describes it as “an act to interpretation and repeals, part 2 provides for the establish a body to be known as an establishment of the Property Registration Authority, T tUdarás Clárucháin Maoine or, in the part 3 deals with the registration of deeds, part 4 deals English language, the Property Registration Authority, with other amendments to the Registration of Title Act with the functions conferred on it by this act, 1964 and part 5 is headed ‘Miscellaneous’. It provides, including the management and control of the Registry for instance, for the establishment of a Registration of of Deeds and the Land Registry, to repeal and re- Deeds and Title Rules Committee. enact, with amendments, the law relating to the The schedule deals with the enactments repealed registration of deeds and other documents affecting by it. The first part of the schedule refers to the land, to amend the law relating to the registration of repeals relating to the Registry of Deeds and the the title to land and to amend sections 16 and 28 of second part refers to enactments relating to the Land the Landlord and Tenant (Ground Rents) (No 2) Act Registry. 1978.” Minister of State Brian Lenihan explained the Pocketful of kryptonite rationale of the legislation in the following terms: A lengthy definition of ‘deed’ is contained in section “While it contains many technical proposals and 32(1). The definition includes, for instance, a MAIN POINTS measures, it also establishes the Property Registration conveyance and a document not attested. • Registration of Authority to manage and control the Land Registry Anticipating e-conveyancing, the definition also Deeds and Title and the Registry of Deeds. The aim of the bill is to includes information in electronic or other non- Act 2006 modernise and streamline registration mechanisms legible form that is capable of being converted into • The new Property and procedures. any of the preceding documents. Registration “The government recognises the contribution an It is noteworthy that the definition does not Authority efficient and accessible land registration system can include: • Substantive make to improving the climate for business and •Any document affecting, or insofar as it affects, changes to the enhancing business activity. It is an essential registered land, or legislation relating requirement in a modern successful economy. We •Any lease for a term not exceeding 21 years to the Land should not underestimate its practical importance for (or such other period as may be prescribed) Registry individual homeowners wishing to dispose of their where actual occupation is in accordance with the property or to borrow funds for whatever reason.” lease.

34 www.lawsociety.ie LAND LAW LAW SOCIETY GAZETTE JULY 2006

DEED REX FEATURES PIC:

Superman – he knows a good deed when he sees one

www.lawsociety.ie 35 LAW SOCIETY GAZETTE JULY 2006 LAND LAW

WHAT YOU NEED TO KNOW ABOUT THE REGISTRATION OF DEEDS AND TITLE ACT 2006 This act has recently passed all its stages in the Oireachtas and and the conversion of existing equitable mortgages into legal some sections have been brought into force. Others will be brought charges (section 73). into effect by ministerial order, with some parts being implemented 7) An amendment to section 25 of the 1964 act to make it clear on different dates. Among the sections that have been brought into that it relates only to the requirement to register under section force are: sections 58, 59 and 60, 63, and 70, the effects of which 24 of that act, as amended. (Section 24 applies to situations are noted below. where registration becomes compulsory under a ministerial Much of the act relates to the conversion of the Land Registry and order.) (Section 54). Registry of Deeds into a new Property Registration Authority and will 8) A provision that enables compulsory registration to be extended be of little immediate concern to solicitors and their clients. A number by ministerial order, to include specified areas, specified land or of the changes will require the making of new rules before the specified land in such an area. This would enable multi-apartment changes can be brought into operation – some of these will provide buildings to be included (section 53). for greater flexibility in the operation of the registers. 9) A provision that where a registered owner leases land in the folio, In advance of this legislation, significant changes were made in the lessee is to be registered as owner of the leasehold interest. 2005, in that compulsory registration was extended to three further Previously, an application for first registration had to be made counties – Longford, Westmeath and Roscommon – as from 1 April (section 58). 2006. As and from 1 January 2006, certificates of title on first 10) Rules may provide for the amendment of the periods of leases, registration are being accepted where the amount of the purchase which will come within section 69 and for which leasehold folios money or compensation does not exceed €1 million, the previous must be opened (section 59). figure having been €320,000. Among the changes in the law which have been introduced are: In addition, there are two sections which are, at best, peripheral to 1) A provision enabling adverse possession to a leasehold interest the registration systems, and which are already in force: to be registered (section 50). • The amendment of section 16 of the Landlord and Tenant (Ground 2) The amendment of section 90 of the 1964 act to enable persons Rents) (No 2) Act 1978 to provide generally that a person who who are entitled to be registered as owners of registered land to holds an interest under which that person would not be entitled to grant leases and to grant easements, etc (section 63). acquire the fee simple in the property cannot grant a sub-lease 3) Clarification that words of limitation will no longer be required to under which the sub-lessee would be become entitled to acquire effect a grant of easements or profits a prendre (section 70). the fee simple (section 76). 4) The abolition of the need to register titles covered by the Irish • The amendment of section 28 of the same act to provide that only Church Act 1869 (section 52). covenants in the lease the fee simple interest in which is being 5) The ability to apply ab initio for registration with qualified title acquired are to be extinguished on the acquisition of the fee (section 57). simple (section 77). 6) The phasing out of land certificates and certificates of charge, Conveyancing Committee

‘Land’ is also defined in section 32(1). It includes, for between registered deeds, and between registered instance, land of any tenure, houses or other and unregistered deeds, is governed by section 38. buildings or structures whatsoever and parts The priority between registered deeds is thereof, mines and minerals, as well as incorporeal determined by the serial numbers allocated to hereditaments. them. An unregistered deed is void against a Every application for registration is to be registered deed affecting the land concerned. allocated a serial number under section 37. Priority However, section 38(3) provides: “This section is without prejudice to the application of any rule of law or equity in cases where a person claiming under a registered deed had knowledge, or is PROPERTY REGISTRATION AUTHORITY deemed to have had knowledge, of a prior The Property Registration Authority is established under section 9. It is provided in unregistered deed.” section 4(2) that “references in the act of 1964 to a registering authority and the Provision is also made in part 3 for a variety of registrar, and references in it and in any other enactment to the Registrar of Titles other matters, including rectification of errors in or Registrar of Deeds, are deleted and references to the authority inserted”. section 40 and searches and inspection in sections The authority’s functions are set out in section 10(1). As well as research, 43 and 44. reporting and policy-making functions, the authority is established: •To manage and control the Registry of Deeds and the Land Registry, The Guardian •To promote and extend the registration of ownership of land, and Part 4 deals with other amendments to the •To deal with applications under part 111 of the Landlord and Tenant (Ground Registration of Title Act 1964. Here, also, e- Rents) (No 2) Act 1978. conveyancing is anticipated. Thus, in section 50(a), both ‘index’ and ‘record’ are defined to include

36 www.lawsociety.ie LAND LAW LAW SOCIETY GAZETTE JULY 2006

ones that are in electronic or other non-legible form that is capable of being converted into a SECTION 73(1) AND (2) permanent legible form. “The authority shall cease to issue land certificates Section 53 amends section 24 of the Registration of and certificates of charge under the act of 1964, Title Act 1964. Under the amended section 24(1), the and, accordingly: Minister for Justice, after consultation with the a) Sections 28, 32(2), 32(3), 51(3), 51(4), 62(5) authority, may provide for the extension of and 64(3) of that act are repealed, and compulsory registration to a specified area or b) Section 105 (certificates) thereof specified land. The new section 24(2) prescribes i) Applies only in relation to land certificates and when registration becomes compulsory – “where this certificates of charge issued before the section applies, the registration of ownership of the commencement of this subsection and not land concerned shall, if not already compulsory, already cancelled, and become compulsory: ii) Ceases to have effect three years after the •In the case of freehold land, upon its conveyance commencement of subsection 2.” on sale, and • In the case of a leasehold interest, upon the grant or assignment on sale of such an interest.” fundamental change and is being done in part to Compulsory registration was applied to counties facilitate e-conveyancing (see panel, above). Carlow, Laois and Meath in 1970. It was extended to Section 74 provides for the establishment of Longford, Roscommon and Westmeath by the Registration of Deeds and Title Rules ministerial order in September 2005 with effect Committee. from 1 April 2006. A new section 25 was substituted for the existing The Justice League one in the 1964 act by section 54. This provides The rules committee will consist of five members, that, where registration is compulsory, it must be under section 74(2). These include a High Court effected within six months of the disposition, or at judge, the chairperson of the authority, the chief such later date as the authority (or, in case of refusal, executive of the authority, a practising barrister the court) may sanction in a particular case. nominated by the General Council of the Bar of Otherwise, the disposition is ineffective. Ireland, and a practising solicitor nominated by the Council of the Law Society of Ireland. Filthy Luthor Under section 75, the rules committee must meet Rectification of errors in registration originating in at least once every year to consider practice, the Land Registry by the authority is provided for in procedure and administration under the legislation. section 55. Compensation for error, forgery or fraud It must report to the minister as to any amendments in relation to registration is provided for in section it considers should be made to improve its operation 69, which amends section 120 of the Registration of and effect. Title Act 1964. Sections 76 and 77 make minor amendments to A number of substantive changes to the legislation section 16 (restricting a right to acquire fee simple) relating to the Land Registry were introduced at and section 28 (effect of acquisition of fee simple on committee stage. First, provision was made for the covenants), respectively, of the Landlord and Tenant phasing out of land certificates and certificates of (Ground Rents) (No 2) Act 1978. charge. Secondly, provision was made for applications for qualified titles. Thus, in relation to The Watchtower freehold land, an application shall be for registration Extensive repeal of earlier legislation is provided for with an absolute title, a qualified title, or a in the schedule to the act. In relation to the Registry possessory title. of Deeds, 23 acts are affected, either in whole or in In relation to leasehold land, an application shall part. For instance, the whole of the Registration of be for an absolute title, a good leasehold title, a Deeds Act (Ireland) 1707 is repealed. qualified title or a possessory title. Thirdly, provision In relation to the Land Registry, three acts are was made that leases of registered land will also be affected. These include sections 73 and 75, so far as registered. Thus, section 58 reads as follows: it applies to the Registration of Title Rules “section 51 (transfer of registered land) of the act of Committee, of the Courts of Justice Act 1936. 1964 is amended by the insertion of the following Also repealed are sections 4, 9 to 15 and 17 of the subsection after subsection 2 ... in this section Registration of Title Act 1964 and the whole of the ‘transfer’ includes ‘lease’ and cognate words shall be Registration of Title (Amendment) Act 1997. G construed accordingly”. Part 5 of the act is headed ‘Miscellaneous’. Denis M Linehan is the author of Irish Land and Section 73 provides for the phasing out of land Conveyancing Law and the forthcoming Irish certificates and certificates of charge. This involves Conveyancing Law and Practice.

www.lawsociety.ie 37 LAW SOCIETY GAZETTE JULY 2006 FREEDOM OF INFORMATION Tell me MORE MAIN POINTS A number of appeals have been made to the High Court relating to the • Appeals under Freedom of Information Act 1997. How have the courts dealt with these? the Freedom of Information Act Eoin Dee delves into the filing cabinet 1997 n recent times, there have been a number of the legislature when enacting the Freedom of • Justifying the appeals under the Freedom of Information Act Information Act 1997 that it was only in exceptional decision to refuse 1997. How have these been dealt with? The first cases that members of the public at large should be • Access to appeal to the High Court under the 1997 act deprived of access to information in the possession of records held by was Minister for Agriculture and Food v public bodies.” the courts and I Information Commissioner. In this case, an individual In Minister for Justice v Information Commissioner, certain tribunals made a request to his employer, the Department of the matter of section 46 of the 1997 act was Agriculture and Food, under section 7 of the Freedom considered. Section 46 of the act deals with of Information Act 1997, for sight of his personnel file. restrictions to the right of access to records held by The department granted access to records on the file the courts and certain tribunals. In this particular case, from 21 April 1995, but, relying on section 6(6)(c), a relative of the defendant in a criminal trial sought refused to grant access to records created prior to that access to records arising from the trial. These records date on the grounds that those records were not included the shorthand notes and transcript, the book being used, or were not proposed to be used, in a of evidence, the original statements and other manner or for a purpose that would affect the party documents compiled for the book of evidence. The requesting the information. request was denied but, following a review by the The requester applied to the Information Information Commissioner, access was granted to a Commissioner to review the decision in accordance typed transcript of the hearing, certain of the witness with section 34 of the 1997 act. The commissioner statements, claims in respect of payment of fees and a duly varied the decision and granted the requester full statement of the accused in the trial, subject to certain access to certain specified records. Access was further deletions. partially granted for other records. The department The commissioner’s decision was subsequently appealed the decision of the commissioner to the appealed to the High Court on the ground that the High Court. There, it was held by O’Donovan J that, documents were exempt and access to them was except where access to records is specifically restricted by section 46(1) of the 1997 act. Finnegan J prohibited by the 1997 act, there is a heavy onus on noted that the exemption does not apply to records the public body to justify its decision to refuse access. relating to court or tribunal proceedings held in When considering whether or not a record for which public, where the records concerned are not created access was sought was being used, or proposed to be by the court or tribunal and where disclosure to the used, in a manner that could adversely affect the general public is not prohibited by the court. It was interest of the person to whom the records related, it held that a court transcript was not generally available was held that account could only be taken of what to the public at large and, consequently, was exempted was happening to the record at that particular time from production/access within the meaning of section and the stated intention of the record keeper – unless 46 of the 1997 act. Commenting on the role of the there was reasonable ground for doubting the stated court stenographer, Finnegan J noted that “at all intention. Certain comments of O’Donovan J in the times, the official stenographer has a relationship case are of note: exclusively with the court, and transcripts are only “There can be no doubt that it was the intention of provided by the registrar to a party interested in an

38 www.lawsociety.ie FREEDOM OF INFORMATION LAW SOCIETY GAZETTE JULY 2006 I:GETTY IMAGES PIC:

Now there are easier appeal or application for leave to appeal”. The judge the overall spirit, function and effect of the 1997 act. ways to get access to went on to note that: He noted that the purpose of the act was “to create your files “… the shorthand note and transcript which may be accountability and transparency and this to an extent produced from same is created by the court. It not heretofore contemplated, let alone available, to therefore falls outside the exception of section the general public”. The judge noted that the act “is 46(1)(a)(1) … the shorthand note and transcript fall on any view, a piece of legislation independent in outside the exception to section 46(1)(a)(1) in that it is existence, forceful in its aim, and liberal in outlook a record whose disclosure to the general public is and philosophy”. prohibited by the court”. The judge expressed the view that traditional, LOOK IT UP Taking these considerations into account, it was literally-based rules of statutory interpretation might Cases: clear that the Information Commissioner had erred in not necessarily be appropriate in relation to the • Minister for law in directing access to these records. interpretation of the terms of the 1997 act. It was Agriculture and Food In the case of Deely v Information Commissioner, the noted that the traditional approach to statutory v Information appellant sought to invoke the provisions of the 1997 interpretation was to ascertain the will of parliament Commissioner, act in order to obtain details of a decision of the and to identify the intention of the legislature. The 2000 1 IR 309 and notice party – the Director of Public Prosecutions – judge noted, however, that this approach “may not in 2001 ILRM 40 to prosecute him. The case arose from a road traffic all cases be a complete answer to the exercise • Minister for Justice accident that occurred on 1 April 1999. The demanded” and felt that “one is entitled to look at the v Information appellant, no doubt feeling rather aggrieved at being act as a whole, and if there is any doubt or ambiguity, Commissioner, the only party prosecuted, sought to invoke the the purpose, intention and objects of the act may be unreported, High provisions of the 1997 act against the Director of considered”. Court, Carroll J, 11 Public Prosecutions in order to obtain the reasons for These comments by McKechnie J are highly July 2003 his prosecution. significant. They seem indicative of a desire within the • Deely v Information The DPP declined to provide the information. judiciary to steer towards a liberal interpretation of Commissioner The appellant then sought a review of this decision by the terms of the 1997 act and appear to signal an McKechnie J, HC, the respondent. The respondent refused the intention not to stick rigidly to the specific terms of 11 May 2001 and appellant’s request. An appeal was subsequently dealt that act, but rather to look to the purpose and intent 2001 3 IR 439 with before McKechnie J and was dismissed by him, of the legislation in terms of granting or refusing permitting the refusal of the request for information access to records. G Legislation: contained in a record, that was exempt from • Freedom of production/access under section 46 of the 1997 act. Eoin Dee is an associate in the Waterford law firm Information Act Some of the most significant features of this Nolan Farrell and Goff, and is the author of Discovery, 1997 judgment are the comments by the judge regarding Thomson Round Hall 2004.

www.lawsociety.ie 39

PRACTICE MANAGEMENT LAW SOCIETY GAZETTE JULY 2006 practice doctor

Got an issue you would like addressed by our panel of practice doctors? Email: [email protected] When I’m SIXTY FOUR s part of sound practice management, cost on an individual’s gross income available for solicitors should review the retirement investment is removed from the financing decision; investment structures available to them. the value of tax-free growth over a 20- or 30-year Bespoke retirement structures have horizon cannot be overlooked. Arecently become available to the self- Solicitors with clients holding a portfolio of David Rouse: “Bespoke employed, allowing the individual complete control investment properties will be familiar with the circle retirement structures over investment in the full range of assets, including of chasing rental shelters as their portfolio expands. A have recently become property, equities, bonds and cash, to name a few. suitable retirement planning structure eliminates this available to the self- Borrowing can be arranged within the structures, s23/s50 merry-go-round. employed” subject to certain guidelines and restrictions. Practitioners might consider establishing a Inheritance issues corporate structure; a salaried employment can fund For death arising before retirement, the majority of an occupational retirement arrangement through retirement plans provide for spouse’s or dependants’ company special and annual contributions, which may benefits. If no such provision is made, the fund can be amount to a multiple of salary. paid to the deceased’s estate. There is an earnings limit of €254,000 (indexed The implications of death after retirement are from 2007) and an indexed €5 million cap on more complex and depend on the particular structure retirement funds. Amounts in excess of the cap are you entered at retirement. In the past, you had little taxed on drawdown. choice in deciding what to do with the funds you built The self-employed can access benefits (including a up; they were handed over to a life company who tax-free lump sum of up to 25% of the fund) from guaranteed you an annual payment – the annuity age 60. Company directors can do so from age 50, on route. On death, a spouse’s/dependants’ benefit was early retirement. paid – however, the fund accumulated during your career went to the life company. An approved Tax relief retirement fund (ARF) now allows you to retain and Given the tax reliefs involved, the benefits of control the retirement assets you have built up. An investment through a tax-exempt vehicle are obvious. ARF is a tax-exempt vehicle designed to pay out For marginal rate tax-payers, up to 48 cent extra in retirement benefits. It can be left to your spouse or the euro becomes available for investment. Tax as a dependants to be inherited tax efficiently, or indeed tax free in certain cases. BY THE NUMBERS Income tax relief on personal contributions is What next? restricted to an age-related proportion of earnings: Conduct a prudent retirement planning health- Age % of earnings check of: Up to 29 15% • Suitability of current arrangements and 30 to 39 20% investment performance, 40 to 49 25% • Contribution levels for maximum tax relief, 50 to 54 30% • Expected retirement date. G 55 to 59 35% Over 60 40% David Rouse is an account manager with Independent Trustee Company Ltd.

www.lawsociety.ie 41 LAW SOCIETY GAZETTE JULY 2006 PEOPLE AND PLACES

Solicitors’ summit in Dublin The leaders of the 150,000 solicitors in Britain and Ireland held a business meeting in Blackhall Place in June. The presidents, vice-presidents and chief executives of the four law societies meet twice a year to learn from each other about the way common challenges facing the profession are being addressed. The meeting takes place in Dublin once every two years. (Seated, l to r): Kevin Martin (President, Law Society of England and Wales), Rory McShane (President, Law Society of Northern Ireland), Michael Irvine (President, Law Society of Ireland) and Ruthven Gemmell (President, Law Society of Scotland). (Standing, l to r): Douglas Mill (Chief Executive, Law Society of Scotland), Janet Pareskeva (Chief Executive, Law Society of England and Wales), James Cooper (Vice-President, Law Society of Northern Ireland), John Bailie (Chief Executive, Law Society of Northern Ireland), Fiona Woolf (Vice-President, Law Society of England and Wales), Philip Joyce (Senior Vice-President, Law Society of Ireland), Ken Murphy (Director General, Law Society of Ireland) and John MacKinnon (Vice-President, Law Society of Scotland)

Presidential gathering Attending the summer dinner at Blackhall Place were (l to r): Past Old friends President Tony Osborne, President of the Law Society Michael Irvine and Former Registrar of the Law Society PJ Connolly is greeted by Law Senior Vice-President Philip Joyce Society President Michael Irvine and his wife Anne

Bowled over ILP and Fáilte Ireland Chairman Gillian Bowler was conferred with Griffith College’s Distinguished Fellowship Award at the College’s Diamond service recent graduation ceremony. Also present are College Chairman Law Society Council member, Moya Quinlan, recently celebrated her Diarmuid Hegarty, Minister for Justice, Equality and Law Reform 60th year in practice and is congratulated here by her son Brendan. Michael McDowell, and Professor Wallace Ewart of Griffith A special presentation was made to Moya at the summer dinner to College’s Graduate School mark her remarkable achievement

42 www.lawsociety.ie PEOPLE AND PLACES LAW SOCIETY GAZETTE JULY 2006

Tipperary Solicitors’ Bar Association ball he Tipperary Solicitors’ TBar Association (TSBA) held a special function to celebrate the reopening of Nenagh Courthouse on 16 June 2006, followed by the President’s Ball at a marquee at Lough Derg Yacht Club in Dromineer. Over 200 guests attended, including members of the judiciary, senior executives from the Law Society and members of the legal profession. President of the TSBA, Pat McDermott, thanked those who travelled long distances to Men in black attend, especially the President On the steps of Nenagh Courthouse at its reopening were (front, l to r): Ronan Kennedy (Secretary of the of the High Court, Mr Justice Tipperary Solicitors’ Bar Association), Brendan Hyland, Pat McDermott (President of the TSBA), Michael Irvine Joseph Finnegan, judges of the (President of the Law Society), Joe Kelly (Treasurer of the TSBA) and Donal Smyth. (Back, l to r): Tim Tracey, Philip Joyce (Senior Vice-President of the Law Society), Donald Binchy, Suzanna Menton, Ken Murphy (Director Circuit and District Courts, the General of the Law Society) and David Hodgins President of the Law Society Michael Irvine, Director Court, Mr Justice Joseph General of the Law Society Finnegan, who, in a humorous Ken Murphy, former Law speech, congratulated the Society President John TSBA’s longest-serving Carrigan, and the many other member, John Carrigan, on the invited guests. impending publication of his Pat thanked Allied Irish memoirs, titled County Tipperary Bank for sponsoring the event. and Offaly (Birr Division) He said that the Bar Sessional Bar Association – A Association was particularly Personal Memoir. Former TSBA delighted to receive permission President Brendan Hyland also to hold the evening reception applauded John on his book, in Nenagh’s new courthouse, saying that it set a precedent for Brought to book! where guests were allowed to other Bar associations to follow. President of the High Court, Mr Justice Joseph Finnegan, congratulates tour the facilities. Pat also Copies of John’s memoirs can John Carrigan on the announcement of the launch of his memoirs of his years in the Tipperary Solicitors’ Bar Association at the Lough Derg expressed his appreciation to be obtained by contacting any Yacht Club (l to r): Yvonne Chapman, Shirley Carrigan, Brendan Hyland, the hard-working TSBA member of the TSBA John Carrigan, Pat McDermott, Mr Justice Joseph Finnegan, Janet committee members. “None of committee. Carrigan, Ann Hyland, Kay Finnegan, Ken Murphy and Philip Joyce this would have been possible without the dedication of the committee.” Committee member David Hodgins told the Gazette: “The success of the reception and President’s Ball reveals the strength of the TSBA and shows the way forward for future similar events.” Following the reception in Nenagh, guests travelled to Dromineer on the shores of Lough Derg, where they enjoyed a gala dinner and Holding court! Beautiful in blue partied the night away. After- At the reopening of Nenagh Courthouse were (l to r): Tim Tracey, Marcella Sheehy and Michael dinner speeches were made by Liz McKeever, David Hodgins, Paul Anglim (representing the event Ryan attended the TSBA the President of the High sponsors, AIB) and John Cleary President’s Ball on 16 June

www.lawsociety.ie 43 LAW SOCIETY GAZETTE JULY 2006 PEOPLE AND PLACES

‘SLAGS’ in sunny Spain Members of the Southern Law Association Golf Society (SLAGS) travelled with their captain, Sean Durcan, to Soto Grande in Spain on their annual golf trip

Longest day spells brightest future Felton McKnight Solicitors have moved to bigger and brighter offices in Greystones. The new offices on Church Road were officially opened by the Minister for the Environment, Heritage and Local Government, Dick Colourful bouquet Roche TD, on the longest day of the year, 21 June. The firm, headed by Kevin O’Higgins of the Dublin Solicitors’ Bar Association makes a Mark Felton and Paul McKnight, has been successfully operating in presentation to Moya Quinlan to celebrate her reaching 60 years of Greystones for the past 14 years and now employs ten people service in the profession

44 www.lawsociety.ie PEOPLE AND PLACES LAW SOCIETY GAZETTE JULY 2006

Jogger-sloggers pound the pavement to raise €0.25M!

ver 1,400 racers, runners, PICS: [email protected] Owalkers and crawlers shared the winners’ podium at this year’s 10k Calcutta Run – by raising close to €0.25 million on Saturday 27 May. The ‘charity champions’ included those from solicitor firms, other professional service companies and financial institutions. They helped raise badly-needed funds for two worthy causes – GOAL’s orphanages in Calcutta and Fr Peter McVerry’s shelters in Dublin. The starting gun sounded at Blackhall Place at 2pm. The 10k route wended its way through the Phoenix Park and back to the Law Society’s Rehearsals began for the new Michael Jackson video headquarters, where a giant barbecue awaited tired participants. There, an estimated 900 people enjoyed food, refreshments and entertainment late into the evening. Over €150,000 was donated Former Rose of Tralee and on the day – but this figure is Celebrity Farm contestant Tamara expected to climb to €250,000 Gervasoni limbers up for the run from additional sponsorship collections, firms matching employee sponsorships, the President’s Appeal and the On your marks ... proceeds from the day’s barbecue, bar and raffle. This were achieved, though many profession, GOAL’s will push the overall amount raised significantly higher orphanages and Fr Peter raised over the last eight years sums, with some sponsorship McVerry’s shelters can expect to an incredible €1.5 million. cards raising between €2,000 to receive €125,000 each. All participants set and €3,000. While there were no themselves aggressive fund- Thanks to the wide support record-beating times among raising targets. Average that the annual event receives the runners, many seemed to amounts of €150 to €200 from those in the legal better their personal targets,

Today FM’s Matt Cooper

which appeared to be 40, 50 or 60 minutes. About half of the participants walked – something to bear in mind for next year’s event. Go on, put that date in your diary for May Your flexible friend and, er, friends Calcutta Run winner Eoin Brady next year!

www.lawsociety.ie 45 LAW SOCIETY GAZETTE JULY 2006 GADGETS tech trends

Read all the technology news here first, in your glorious Gazette. Or not, as the case may be Spectacles, tentacles, wallet and watch bloke I know recently they say is the leading theft Aasked me: “What would recovery and secure asset- youse do if yeh won ten tracking software in the world. million squid in de lottery?” I The software simply sits on the thought: ten million? That’s laptop – undetectable to most roughly two for every man, marine life – and when you woman and child in the report it stolen, it is tracked country. The answer was over the internet. Gardaí can obvious. I’d bide my time, then retrieve it. Stealth Shield train them into an evil army, says that, in its experience, and overpower the defence 95% of computers are forces and their poxy little retrieved within 60 days. tanks with my calamari And in another plus for the cohorts. My inky-fingered bean counters, the software squid squadrons would reign also allows an administrator to supreme, even if they tasted a track and monitor all bit rubbery, by clamping computers within their themselves to the faces of my organisation, including the political opponents. software that has been installed One can only dream. Still, on them. it makes you think about what As the company rightly says, might happen if, suddenly, it’s too late to close the office waves of giant octopi door after the squid has swarmed up the side of your scarpered. building seeking out your A one-year licence costs about secret files. So what should €46, including VAT. you do to avoid your laptop Stealth Shield is currently falling into the wrong hands, offering a 10% discount on even if they don’t have the price of a first purchase to opposable thumbs? enables your laptop or desktop Irish company Stealth Law Society members. Well, you could consider computer to be traced if it is Shield is the only Irish Contact them directly on employing technology that snatched. provider of Computrace, which 01 202 2639. High on the hog – just like Diggedy Dog t may not be very tech. Or, It has an internal of liquid volume equal to half a Iindeed, trendy. But it sounds aluminium frame that can be kilderkin, just so you know – pretty cool. We are talking, of used to support additional costs Stg£4,379. course, about the inflatable lighting or sound systems and The largest pub in the range pub: the perfect alternative to can also double as a safety is called the ‘Hogshead’ and is getting a marquee for next barrier, and the company 40ft long, 19ft wide and 22ft year’s summer barbecue. claims you can get it up in high. The downside is that it Coming from the designer of only ten minutes with the aid costs Stg£16,500. At that price, the world’s first inflatable of two blowers. you’d want it to come with a church, it can apparently be There are four versions of lot of hogs. customised for use as a fully the pub in the range. The The Airquee inflatable pub is functioning pub, with room for smallest, known as the ‘Firkin’ available from English distributors a real bar. – which is a small cask or a unit Piglet’s favourite bar Amber Iris, www.amberiris.co.uk.

46 www.lawsociety.ie GADGETS LAW SOCIETY GAZETTE JULY 2006

Missiles and monkeys Value for money? very office has one. You he techie world was all functional, Intel Celeron D Eknow, the guy who hangs Tabuzz with the news that Processor 336 and comes loaded around your desk or office computer giant Dell was with Windows XP Home Edition. because he’s nothing introducing a cheap, desktop Of course, that remarkably low better to do. He’s PC especially for small price doesn’t include VAT and usually called ‘the businesses. Touted as delivery. Or a monitor. Or even a boss’. But now starting (and that’s the floppy disc drive. In fact, unless there are several key word) at just €229, you’ve got those things lying ways to deal with the 3100c features a around the office somewhere, the the problem. pretty basic, but inclusive cost of what you’ll need First up, we to get the PC up and running, have the desktop even for basic applications, rises. USB Missile First, you’ll probably want a Launcher, which monitor. And, although they’re fires foam ‘missiles’ on their way out, a lot of people from a swivelling and still use floppy drives. You’ll need tilting base – all controlled Office Professional, if you want to by your mouse via your do anything more than computer. Aim for the eyes. It’s rudimentary word-processing. more fun than running with realistically mimics the And some sort of technical scissors. authentic sounds of a live chimp support and virus protection More sophisticated by far is – appropriately reflecting his would be handy. Ticking even this animatronic life-size, ‘emotions’. the cheapest or ‘free trial’ boxes lifelike chimp bust, with soulful Chimpy, as I like to call in their online store, but not eyes that can track movements him, has four modes in which tinkering with the choice of basic using infrared vision, ears that he can interact with people: memory or processor, and have stereoscopic sound curious, happy, fearful and certainly not going for any fancy- sensors, and touch reactive skin. feisty. You can also put him in pants multimedia options, and It also boasts ‘vocal chords’ and guard mode, where you can our price for this PC rose to program him to screech with €559 – still excluding VAT and outrage when yer man comes delivery. near your desk. Not a bad price for a fully The desktop missile launcher is functioning basic desktop, but a available from www.iwantoneof far cry from €229. And when we those.com for Stg£29.99. The went back to check, three days ‘Alive’ chimpanzee costs $99.95 later, the price had risen further from www.sharperimage.com – and the model number was just type the word ‘monkey’ in the slightly different. Go figure. search box. Visit Dell online at www.dell.ie. SITE FOR SORE EYES See the world as the CIA does (http://maps.google.com). It’s happened to us all. You’ve got a conference somewhere in some godforsaken part of the country like (insert regional prejudice as preferred). You know the name of the town but don’t know your way around. Well, Google to the rescue: here’s an online version of their Google Earth program. Use your mouse to navigate literally (well, virtually) all over the world. Our version kicks off with a ‘map view’ of the USA, but the navigation buttons or the ‘click-and-grab’ function will soon have you back at the old sod. And we’re not talking about your father-in-law. Zoom in to see excellently detailed Dublin street maps or satellite imagery of your location to about 100 feet to one inch. You can superimpose street names on satellite photos or just go with the maps. Left, you’ll see a ‘hybrid’ shot of Blackhall Place at 200 feet to one inch. And you can do this for New York, New Delhi or New Zealand. Just don’t forget to look for your house.

www.lawsociety.ie 47 “As a society, perhaps the most sensitive measurement of our maturity is the manner in which we care for those who are facing the ultimate challenge – the loss of life.”

(REPORT OF THE NATIONAL ADVISORY COMMITTEE ON PALLIATIVE CARE, 2001)

QUALITY Over 6,000 people use hospice care each year. Hospice care involves the total care of patients and their families at the stage in a HOSPICE serious illness where the focus has switched from treatment aimed at cure, to ensuring quality of life. It seeks to relieve the symptoms of illness and cater for a CARE FOR person's entire needs – physical, emotional, psychosocial and spiritual. ALL The demand for hospice care is growing. While the service has expanded in recent years, much more needs to be done to ensure quality end-of-life care for all. Please remember the Irish Hospice Foundation when drafting a will. Irish Hospice Foundation, Morrison Chambers, 332 Nassau Street, Dublin 2 Tel: 01 679 3188; Fax: 01 673 0040 www.hospice-foundation.ie No-one should have to face death without appropriate care and support. BOOK REVIEWS LAW SOCIETY GAZETTE JULY 2006 books Wigs and Guns: Irish Barristers in the Great War Anthony P Quinn. Four Courts Press (2006), 7 Malpas Street, Dublin 8, in association with the Irish Legal History Society. ISBN: 1-85182-9350. Price: €45 (hardback).

o many Irish died in the Anthony P Quinn BL, states in action, originally erected in SGreat War of 1914-18, and that the main purpose of his the Solicitors’ Buildings, Four we should be proud of them. book is to record and Courts, in 1921 and sub- The poem of Rupert Brooke, commemorate 25 barristers sequently in the Law Society 27 years old, already remarkable who died in the Great War and headquarters in Blackhall Place. for his looks, charm and poetry, who are listed on the Bar The author, in his prologue, a soldier who died in the Great Memorial in the Four Courts. states and nobly adheres to his War – albeit of septicaemia These lives and their objective that his book is not brought on by a mosquito bite backgrounds are described in intended to glorify war nor to – is frequently in my mind: narrative form in his book. encourage divisive bitterness. “If I should die think only The book is the 16th in the The purpose of the book was this of me; celebrated Irish Legal History stated to “redress past neglect That there’s some corner of a Society series – whose principal and to remedy remaining foreign field that is for ever...” founder is Prof WN imbalances”. I come from a place called Osborough. Anthony Quinn’s book is a Broomfield. In the cemetery Irish solicitors and solicitors’ work of remarkable scope. It is there lies a soldier who was that we can no longer apprentices are not forgotten. a valuable contribution to awarded the VC in the Great distinguish between the They are listed in the book, current discussion of the role War. No-one ever seemed to realities of what has happened and aspects of their careers, played by our brothers and care, or think of him. But there in this island, from the myths death and remembrance are sisters in an event of is some corner of a foreign we have chosen to weave”. included in the text. Thirty- momentous significance. Quinn field that is forever Broomfield. Thankfully, that is changing eight solicitors and solicitors’ has opened up a vista of great FS Lyons, the celebrated and this book helps in this apprentices died in the Great understanding; his book is historian, wrote in 1978 of how process. War. There is the Law Society commended to readers. G we in Ireland have locked Solicitors and barristers were Memorial by Oliver Sheppard ourselves into “a hall of among the dead who served in for those solicitors and Dr Eamonn Hall is the chief disturbing mirrors so grotesque the Great War. The author, solicitors’ apprentices who died solicitor of Eircom Group plc. Casebook on the Irish Law of Torts (3rd edition) Bryan ME McMahon and William Binchy. Tottel Publishing (2005), Fitzwilliam Business Centre, 26 Upper Pembroke St, Dublin 2. ISBN: 1 845920317. Price: €120. his latest edition of than in the previous edition. is “the most significant decision TMcMahon and Binchy’s Furthermore, the casebook on the nature and scope of the well-known casebook serves as serves as a useful update on the duty of care since Ward v a companion to the same textbook, taking account of a McMaster”. Also included is the authors’ definitive textbook Law number of important recent important defamation case of Torts (third edition), which superior court decisions in the O’Brien v Mirror Group was published in 2000. field; for example, the Newspapers Limited ([2001] IIR1 Since the publication of the important decision of the SC). Interesting cases in the legislative changes are covered, second edition, the landscape of Supreme Court in Glencar limitation of actions include including the passing of the tort litigation in Ireland has Exploration Plc v Mayo County Devlin v Roche ([2002] 2IR 360 Civil Liability and Courts Act been transformed, reflected in Council ([2002] ILRM 481), SE) and Gough v Neary ([2003] 2004 and the Personal Injuries the inclusion of 150 more cases which, as the authors point out, 3IR92 SE), while important Assessment Board Act 2003.

www.lawsociety.ie 49 LAW SOCIETY GAZETTE JULY 2006 BOOK REVIEWS

As with the previous edition, begins with an overview of the perhaps surprised common law and its companion textbook, will the casebook is clearly arranged law of tort and continues with a world the existence of a prove indispensable for legal and attractively set out. Full comprehensive treatment of the significant body of Irish tort practitioners who require extracts are taken from all the subject through 45 chapters. As law”, as stated by Mr Justice accurate and reliable tort law, key decisions, and each chapter one would expect, the topic of Walsh in his foreword to that quickly. It is another significant concludes with a section of notes negligence dominates the book, edition. This third edition shows achievement for the authors. G and questions relating to the and is dealt with in chapters 5 that tort law in Ireland remains a subjects covered. Like the text- through 21. The first edition of growing and vibrant area. This Daniel Scanlon is an associate at book, chapter 1 of the casebook the textbook revealed “to a book, as with its earlier editions Matheson Ormsby Prentice. Environmental and Land Use Law Yvonne Scannell. Thomson Round Hall (2005), 43 Fitzwilliam Place, Dublin 2. ISBN: 1-85800-359-8. Price: €320 (hardback). ince Dr Scannell’s other together all of the law from the environmental law, and the Sbook in this area, 20 years of that discipline, powers and functions of the Environmental and Planning Law adding important material on EPA and licensing authorities (1995), there have been major the new strategic environmental are all covered. The book looks developments: our impact assessment. The 200- ahead to big questions such as comprehensive system of waste page chapter on waste law may the impact on Irish environ- management (dating largely on its own be considered the mental and public law of the from 1996), important measures standard work in that area, Environmental Liability Directive on biodiversity and protected explaining everything from the (providing for a harmonised areas (including the Habitats case law relating to bin-charge system of liability for Regulations 1997), and, of bye-laws to how key European environmental damage) and of course, the Planning and environmental principles – such the European Convention on Development Act 2000. as the proximity principle and Human Rights Act 2003. Are Important European directives the polluter pays principle – features of the Irish system (like include the Landfill Directive shape Irish waste controls, lack of entitlement to an oral (1999) and the Water enforcement and infrastructure. hearing and the ‘manifest Framework Directive (2000). accessibility for the practitioner, Remedies are discussed in detail unreasonableness’ (O’Keeffe) So while both books have the law student, the citizen, and – not just specific test for striking down admin- been timely (the earlier work the environmental NGO alike. environmental law remedies, istrative action) compatible followed, for example, the This starts with the table of but all the relevant with the convention? The book establishment of the Irish contents – which, on its own, is constitutional, common law and captures the full breadth and Environmental Protection worth some study for how it tort remedies, and of course detail of a subject that is now Agency), the author prefaces maps out the entire corpus of judicial review – as they apply truly vast in its scope and reach the latest book by cautioning environmental law in Ireland. to the environment. into civic, commercial and that it should not be considered Early on, there is further The book’s 1,000 pages are industrial life. G “a mere update”, adding “too essential context, with a balanced between law, practice much has changed for that to consideration of the wider and possibility. There are core Conor Linehan is a partner at be feasible”. European and international chapters on all the substantive William Fry. Graeme Hughes is a The subject is presented with legal and policy setting. The controls on air, water, and so business and law student (UCD) clear progression of the various section on environmental on. Few subjects are as full of and currently an intern at topics and with characteristic impact assessment brings the ‘regulatory’ approach as William Fry. Stamp Duties for Business and Property Michael O’Connor and Patrick S Cahill. Thomson Round Hall (2005), 43 Fitzwilliam Place, Dublin 2. ISBN: 1-85800-423-3. Price: €220. n the preface, the authors many instances, the book does glossaries explaining the duty system and, within the first Istate: “We hope that our work give alternative views that are meaning of various concepts three chapters, covers the will provide an alternative view legally balanced and stateable. that are necessary to understand affinity of stamp duty and and assist practitioners to give This is an easily readable in the context of the various documentation, which was balanced advice.” This is in face book, containing many matters discussed in the book. It originally required before stamp of the Revenue commentaries references to statute, case law is a useful aid. duty became payable. It goes on that are available on the and Revenue commentaries. The book starts with a to explain the Crest system and website, and I agree that, in The book also provides general overview of the stamp- electronic transactions other

50 www.lawsociety.ie BOOK REVIEWS LAW SOCIETY GAZETTE JULY 2006

than Crest and the taxation requirements when presenting intelligent and informative. consequences of those. Having documentation to the Revenue. There are certain aspects that explained that, it sets out the The work contains various I would like to see dealt with basic rules of stamp duties, with appendices. The Stamp Duties more comprehensively, perhaps the decisions of some of the Consolidation Act 1999 (with in the next edition – for most famous cases in stamp- references to previous example, an examination of duty history. It goes on to legislation) with amendments to disclaimer, both for explain the territoriality rules the Finance Act 2005 is in consideration and voluntary, and and the general exemptions appendix 1. Forms required by an in-depth consideration of the from stamp duty, including the Revenue and different problems of the case of Te mpany those dealt with in the stamp- statements of practice and other v Hynes, both in its own regard duty code and others based on information that the Revenue and in relation to the timing territoriality and on special has given in relation to stamp requirements relating to exemptions contained in non- duties are set out in appendix 2. reconstructions and Revenue legislation. In appendix 3, extracts from the amalgamations. The book then proceeds to Revenue Practice Manual on The authors, in a previous deal with conveyances on sale relating to the manner of share valuations are set out. ‘life’, published books annually under three headings: stamping and the enforcement A useful contribution is the on stamp duty – I find this book conveyance on sale, conveyances of the stamp legislation, and if a precedents set out in appendix easier to access and superior in on sale of residential property, solicitor is caught within this 5, particularly in relation to its layout but, as usual, the and deeded conveyances of sale. aspect of stamp-duty law, it can reconstruction and knowledge set out in the book is These three chapters are be difficult and worrisome. In amalgamation. All in all, this is obvious to those who read it. I particularly useful – I would say this context, it deals with an extremely useful and cannot recommend this book essential – for the conveyancer, adjudication, appeals and comprehensive book. There is highly enough for the and for that reason alone the ultimately with the enforcement no doubt that it is essential for practitioner. G book is invaluable. of the stamp-duty code, all conveyancers and tax The book also covers the including the surcharge advisors, both in relation to Brian A Bohan is the principal of administrative provisions penalties and the various property and companies. It is Dublin law firm Bohan Solicitors.

FRIARYLAW & ADR GROUP – MEDIATION AND DISPUTE RESOLUTION IN IRELAND Mediation Training and Professional Accreditation Programme Wednesday 19 – Saturday 23 July Venue: DUBLIN. Friary Chambers Arbitration and Mediation Suites, The Friary, Bow Street, Dublin 7.

ADR (Alternative Dispute Resolution) has brought about a remarkable • On April 1st 2005 Friarylaw was appointed by the change in the solving of civil and commercial disputes worldwide. The latest Minister and Department of Justice as a nominating statistics available from the US reveal the extraordinary impact of ADR, body under section 15 of the Civil Liability and Courts where civil and commercial litigation in the public fora of the courts is at a Act, 2004. forty year low; similar trends are now emerging in the UK. • ADR Group was the first mediation trainer and service provider in the EU to receive ISO9002 accreditation. As a result of the lessons learned in both the US and the UK, Irish civil and • The training course satisfies 35 hours of the Law commercial society is embracing new and innovative forms of dispute reso- Society of Ireland’s CPD requirements. lution. Recent legislative change at national (Civil Liability and Courts Act, 2004 & Statutory Instrument S.I. No. 2 of 2004 Superior Court Rules regard- •Areas of application include: General Civil and ing Commercial Proceedings) and at EU level (pending EU Mediation Commercial, Personal Injury and Clinical Negligence, Directive 2007) underpin the emergence of Mediation as an essential tool Employment, Construction and Engineering, Banking in the fast and efficient resolution of civil and commercial disputes. and Financial Services, Insurance, Professional Sophisticated clients are increasingly aware of the benefits of mediation; Accounting and Related Services Disputes and namely, a speedier and more cost efficient method of dispute resolution. Environmental Disputes. Friarylaw & ADR Group provide the most comprehensive Mediation train- ing, Professional accreditation and Case Management Services in this The course will be presented by ADR Group, jurisdiction. Friarylaw administer a structured pupilage programme for our Oliver J Connolly BL FCIArb and the Friarylaw team. accredited mediators and we are committed to assisting in the develop- If you require any further information please call ment of mediation practice of our panel members. the Friary at tel 8728405, email at admin@the friary.ie or visit the website at www.friarylaw.ie Training as a mediator with Friarylaw will: • Enhance your professional skill set • Obtain Mediator Accreditation Friary Chambers, The Friary, Bow Street, Dublin 7. • Develop a Mediation Practice Tel: 01 872 8405. Fax: 01 872 8409 Email: [email protected]. Web: www.friarylaw.ie

www.lawsociety.ie 51 ent fixed as a result of the rent eview. ______Date: ______in the presence of: Revenue has confirmed that a liability to stamp duty will not arise in connection with an increase in rent arising on foot of a rent-review provision in an existing lease, and, accordingly, a stamp-duty liability will not arise in the case of a memoran- dum recording the details of the r r , p37, and on the Technology Committee, Conveyancing Committee ber), and the index of docu- ber), and the index of first ments should comprise the on the page of the materials CD-ROM/DVD. All pages should be numbered. The index should indicate the date on which the materials were compiled. The CD-ROM/DVD itself should be physically marked or labelled to generally indicate its con- tents and the date of its pro- duction. All materials should be easily printable in their entirety and clearly readable in their printed form. Conveyancing Committee Gazette • • • Practitioners are also reminded of the issues dealt with in the prac- tice note on the storage of docu- ments in electronic format, which deals with similar matters (pub- lished in the April 2005 issue of the Law Society’s website at www.law society.ie/newsite/documents/ committees/retention.pdf). for and on behalf of the for and on behalf of the on request.” eview. even if there is agreement between the builder’s solicitor and the purchaser’s solicitor in agreement such the matter, to may not necessarily extend the lending institution or a sub- It sequent purchaser’s solicitor. should further be borne in mind that the standard certificate of title envisages the delivery of hard of the documenta- copies tion to the lending institution. The matter remains under r The materials should be acces- sible in an openly readable for- mat, for example, Adobe 2) It must be borne in mind that 3) Where a booklet of title is being provided on CD-ROM/DVD, the fol- lowing procedures should be observed: • dance with the provisions of the lease at ______per annum (______per annum), payable from the ______. Such rent is to be exclusive of any additional rent or rents referred to in the lease. SIGNED landlord ______Date: ______in the presence of: SIGNED tenant . Acrobat The format pre- should also serve the security of the origi- nal documents. All materials should be clearly indexed (by way of page num- dated • • that the and The purchasers’ solicitors are entitled to obtain the documentation in hard copy at any time; All closing documents must be in hard copy; The procedure is only appro- priate to Land Registry cases and particularly new developments; The furnishing of documen- tation by this method should be by agreement only and should not be imposed; When issuing a booklet of title on CD-ROM, the ven- dor’s solicitor’s initial letter should contain the following are entitled sentence: “You to receive a hard copy of this booklet of title immediately endorsing the practice, they areendorsing the practice, they awareoccurring, that it is and, the fol- if it is being adopted, lowing matters are considered by the committees to be good practice: • • • • • ent payable under the lease eview memorandum was in the the committees’ views on the the committees’ views matter. 1) While the committees are not r following terms: BY THIS MEMORANDUM the ______1. ______(the ‘landlord’) r dated the ______and made between the landlord, of the one part, of the other and the tenant, part, relating to the premises ______has been fixed in accor- 2. ______(the ‘tenant’) DESIRE TO RECORD notes JULY 2006 JULY STAMP-DUTY TREATMENT OF RENT REVIEW MEMORANDUM TREATMENT STAMP-DUTY Conveyancing Committee BOOKLETS OF LAND REGISTRY TITLE ON CD-ROM FOR NEW HOMES TITLE ON CD-ROM LAND REGISTRY BOOKLETS OF eceived a query from a prac- he r has come to the notice of both has come to the notice of This practice note is according- The following is a summary of The committee forwarded a t and Conveyan- the Technology ent e-conveyancing initiative being T I cing Committees that the issue of cing Committees that the solici- booklets of title by builders’ startingtors on CD-ROM/DVD is to become prevalent. Both commit- tees agree that the procedure should only be used to issue docu- mentation where the title is Land Registry and relates to new hous- ing estates only. ly being issued by the Conveyancing and Technology Committees so that practitioners are aware of the practice recom- mended by both committees and that the matter is receiving the continuing attention of both com- mittees. It should be emphasised that, given the speed of the devel- opment of technology and the cur- r carried out by the Law Reform Commission, it is likely that the comments in this practice note may not represent of the the views committees for more than the short term. titioner as to whether or not stamp duty is payable on an increase in rent in a 35-year lease following a five-year rent review. On an initial telephone inquiry with Revenue Stamps Branch, it was indicated that much would depend on the type of the instru- ment in question. sample of the type of rent-review memorandum in question in order to ascertain position Revenue’s The sample rent- on the matter. www.lawsociety.ie LAW SOCIETY GAZETTE practice

BRIEFING 52 BRIEFING 53 . The espect of which they may espect of which they espect of which the pur- espect of which the ing with possession of pur- ing with possession of may chase monies (which include loan proceeds, in r have chasers’ solicitors will given undertakings to lending institutions) before they re- prop-ceive title deeds to the erty being purchased, and (in ing with title deeds r have given undertakings/ accountable trust receipts to lending institutions) before they receive the bal- ance of purchase monies due to complete the sale. JULY 2006 JULY has been asked to providehas been on how to addressguidelines the difficulties for: 1) Purchasers’ solicitors in part- 2) part- solicitors in Vendors’ The committee has decided to deal with the matter by way of amending the existing provi- sions of General Condition 24 of the current Law Society www.lawsociety.ie Conveyancing Committee General Conditions of , pending the introduction Sale of the next edition of the stan- dard document. Pending the next print run, a Special Condition should be used to incorporate the revised word- ing of General Condition 24 into the standard contract. The revised wording of 2001 (Revised) Edition General Conditions of Sale un of the current edition of text of the revised General Condition 24 is set out in this practice note, and practition- ers should familiarise them- selves with these changes. General Condition 24 will be implemented in the next print r the LAW SOCIETY GAZETTE Solicitors Advertising Regulations. (SI No 9 of 1973). Advertisements that refer to VAT tors for completion of sales, tors for completion Committee the Conveyancing Conveyancing and Law Order, 1973 exclusive prices are not only in breach of the order but also may be in breach of the NOTICE NON-PERSONAL CLOSING NON-PERSONAL FIXED-FEE ADVERTISING tors not personally attending at tors not personally the offices vendors’ solici- of LAW SOCIETY GENERAL CONDITIONS OF SALE 2001 ) and immediately thereafter to dispatch to you all of the completion docu- place at the office of the Vendor’s Solicitor when the Vendor’s Solicitor: place at the officewhen the Vendor’s Solicitor of the Vendor’s endor’s Solicitor is immediately able to satisfy these closing requirements,endor’s Solicitor is immediately able to satisfy these then: Prices and Charges (Tax-Inclusive Statements) : where applicable, redemption figures for any mortgage title shall be or charge on the Vendor’s furnished to the Purchaser’s Solicitor; Solicitor shall undertakethe Vendor’s with the Purchaser’s Solicitor in the following form and in consideration of your furnishing“In consideration of the completion of the within sale the balance of the Purchase the agreed Price to us (in manner), we hereby undertake with you to properly exe- immediately furnish be signed by the Vendor copies of all completion documents to cuted and to act as your agent (without charge) in accepting delivery of Assurance of the Deed containing the receipt clause (thereby complying with Section 56 of the he increasing prac- t s in a position to satisfactorily explain all acts appearing on any closing searches received and ments in accordance with the agreed documents and the mode of dispatch list of completion nominated or otherwise agreed.” has received the balance of the Purchase Price is in a position to satisfy all of the Purchaser’s closing requirements, in accordance with the terms of the contract. pletion documents are to be dispatched (registered post, courier, DX, collection or other agreed DX, collection pletion documents are to be dispatched (registered post, courier, mode of dispatch will be at the purchaser’smode of dispatch). The solicitor’s sole risk and by the Solicitor uses the mode of dispatch nominated expense, provided that the Vendor’s Purchaser’sSolicitor or otherwise agreed Solicitor a list of closing requirements in accordance with the terms of the contract and as agreed in replies to Requisitions on Title and rejoinders on title (if any) (hereafter referred to as ‘the com- pletion documents’). It is the responsibility of the Purchaser’s to ensure Solicitor that closing Solicitor on or beforesearches Date, and failure the Closing are to do furnished to the Vendor’s so will not be a reason to postpone the completion of the Sale. - -

to - -i - the Closing Date. lowing provisions shall apply: (i) the Purchaser’s in which all com- seven days prior to closing the manner Solicitor shall nominate (ii) than four days prior to closing the Purchaser’s not later Vendor’s Solicitor shall send to the (iii) when the V

ue tice of purchasers’ solici- mode of dispatch nominated or otherwise agreed to include satisfactory explanation of all acts appearing on searches and the property’s Solicitor keys or authority for their collection. The Vendor’s shall communicate with the Purchaser’s Solicitor in a recorded form advising that completion has Solicitor shall be entitled to release the purchase moneys taken place, and thereupon the Vendor’s and the Purchaser shall thereupon be entitled to vacant possession. Solicitor as other than the deposit, shall be held by the Vendor’s Solicitor, pletion by the Vendor’s trustee for the Purchaser. of Property Act 1881 (iv) completion shall take (b) otherwise Unless agreed, shall take completion place at the office Solicitor. of the Vendor’s (c) Where is to take place otherwise completion then the fol- at the office than Solicitor, Vendor’s of the NEW GENERAL CONDITION 24 OF THE CONDITION 24 OF THE NEW GENERAL

Solicitors are reminded that any advertisement that includes fixed inclusive. This requirementfees for services provided must be VAT is contained in the D (d) All of the completion documents shall thereupon be dispatched to the Purchaser’s Solicitor by the (e) Pending completion in accordance with these Conditions, any moneys received in advance of com- Completion and interest 24. (a) and the balance of the Purchase The Sale shall be completed Price paid by the Purchaser on or before (REVISED) EDITION 20/5/ 31/5/ ). Garda in rela- Dir 2004/ Appoints , for the Establishes Prescribe each SI 297/2006 SI 289/2006 SI 256/2006 . Freedom of InformationFreedom Finance Act 2006 by their inclusion in para- Freedom of InformationFreedom Act Commencement date: Commencement date: 2006 Leg-implemented: 25 Panel Act 1997 Takeover Panel Act 1997 (Amendment) Rules 2005 Regulations 2006 18(1)(a)) Order 2006 1997 (Prescribed Bodies) Order 2006 (Commencement of Section Síochána Act 2005 2006 criteria, for the purposes of sec- tion 38(3)(c) of the installation and operation of CCTV systems by a category of persons who, in accordance with s38(3)(c), have met estab- lished criteria and whose appli- cation to the Garda Commissioner for authorisa- tion of the installation and operation of a CCTV in respect of a specified area within the administrative area of a local Contents note: of the bodies listed in the schedule to the regulations as a public body for the purposes of the 1997 graph 1(5) of the first schedule to the Act 1997 Commencement date: Contents note: Freedom of Information Act Number: Garda Síochána (CCTV) Number: Finance Act 2006 Number: Contents note: 18/5/2006 as the commence- ment date for section 18(1)(a) of the tion to the tax relief for invest- ment in films. 13/6/ Irish 30/5/ (SI Dir 2001/ . Circuit Implement Implement Irish Takeover Irish Takeover SI 290/2006 SI 255/2006 and the (as amended by the Employment Equality Acts 2006 Circuit Court Rules 2001 Protection Laws) Regulations the Enforcement of Consumer the author. Commencement date: 2006 Leg-implemented: 84 akeover Panel Act 1997 akeover (Amendment) Rules 25/EC)) Regulations 2006 Authorities Responsible for over Bids (Directive 2004/ operation between National Contents note: directive 2004/25 on takeover bids. Amend the Rules Panel Act 1997 Takeover 2001 European Communities (Take- Number: T T 2002 European Communities (Co- Number: Contents note: regulation 2006/2004 on co- operation between national authorities responsible for the enforcement of consumer pro- tection laws. Commencement date: 2006 31/5/ 5/6/2006 Appoints Implement Substitute a new rule 2 in order 3 of the Substitute a new rule 6, ‘ Employment Equality Acts 1998 and 2004 (SI 510/2001) to prescribe the mode of address 31/5/2006 26/6/2006 ’, in order 57 of the SI 275/2006 SI 274/2006 SI 273/2006 SI 312/2006 2006 Number: Contents note: Circuit Court RulesNumber: (Mode of AddressContents note: of Judges) 2006 Circuit Court Rules (Employment Equality Acts 1998 and 2004) 2006; establishment-day order 2006; establishment-day establish- to be made for the Safety ment of the Road Authority (per s2 of the act) SELECTED STATUTORY INSTRUMENTS Commencement date: states before the convention comes into force. Date enacted: Regulations 2006 Order 2006 (Artist’s Resale Right) 2006 (Commencement) 1/6/2006 as the commence- ment date for all sections of the act, other than s13(1). Number: Contents note: European Communities Number: Contents note: Criminal Law (Insanity) Act directive 2001/84 on the resale right for the benefit of the during his or her life- author, time, of an original work of art. Grant a right to the author of an original work of art to a roy- alty on any sale of the work that is a resale subsequent to the first transfer of ownership by in courtof the Circuit of judges Court. Commencement date: to 1998 and 2004 2/6/ Court Rules 2001 19 May – 23 June 2006 19 May legislation update legislation Commencement date: JULY 2006 JULY 510/2001) to prescribe Circuit Court procedures for proceedings brought under the (unlaw- Provides for Provides for Criminal Law 2/6/2006 CC v Ireland 15/2006 14/2006 Road Traffic Act 2002 Road Traffic Act 2006 Offences) Act 2006 Road Safety Authority Number: Contents note: the establishment of the Road defines its Safety Authority, functions and provides for con- nected matters. Amends section 9 of the provide for the procedures in section 9 in relation to disqual- ification under the European convention on driving disquali- fication to apply to bilateral arrangements between member (23/5/2006), in which the Supreme Court declared sec- tion 1(1) of the (Amendment) Act 1935 Commencement date: 2006 Criminal Law (Sexual Number: Contents note: offences in relation to the com- mission of sexual acts with chil- dren under the age of 17 years, with the inclusion of a defence of honest belief that the child had attained 15 years (for the purposes of section 2) or 17 years (for the purposes of sec- tion 3), in accordance with the decision in ful carnal knowledge of a girl under the age of 15 years) to be unconstitutional. 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- area) – with updated stage mation on the current and the a bill has reached of commencement date(s) each act. ACTS PASSED www.lawsociety.ie LAW SOCIETY GAZETTE

BRIEFING 54 BRIEFING 55 . . 24/5/ may may 24/5/ inserted to expressly to expressly Revoke and Revoke and , which was , which was JULY 2006 JULY www.lawsociety.ie SI 294/2006 SI 293/2006 Pensions Act 1990 Pensions Act 1990 may be used to implement may be used . Pensions Act 1990 2006 1990 EC legislation. date: Commencement Regulations 2006 Regulations 2006 Schemes (Trustee) Schemes (Investment) be used to implement EC legis- lation. Set out certain invest- ment rules under directive 2003/41 on the activities and supervision of institutions for occupational retirement provi- sion and under provisions of the be used to implement EC legis- lation. Make provision in rela- tion to qualifications and expe- rience requirements for trustees of pension schemes, in accordance with article 9 of directive 2003/41 on the activi- ties and supervision of institu- tions for occupational retire- Contents note: was replace SI 593/2005, which 3 of the made under section Act 1972 European Communities are These new regulations 5 of the made under section Pensions Act 1990 44 of the amended by section Law Reform and Social Welfare Pensions Act 2006 state that regulations made under the Occupational Pension Number: Contents note: replace SI 594/2005, which was made under section 3 of the European Communities Act 1972 These new regulations are made under section 5 of the Pensions Act 1990 amended by section 44 of the Law Reform and Social Welfare Pensions Act 2006 state that regulations made under the Occupational Pension Number: by sections 33 and 36 of the and Pensions Act Social Welfare 2005 Commencement date: 2006 , to , to 1/6/ . LAW SOCIETY GAZETTE ’, in Pensions Act Pensions Act Revoke and (SI 93/1997) Pensions Act 1990 Social Welfare Law Social Welfare Pensions Act 1990 Social Welfare Law Social Welfare SI 295/2006 , as amended by the Employment Equality may be used to implement (SI 93/1997) to provide Taxi Regulation Act 2003 Taxi Regulation Act 2003 2006 which was amended by section 44 of the Reform and Pensions Act 2006 expressly state that regulations made under the 1990 EC legislation. Regulate the disclosure of financial and other information by trustees of occupational pension schemes. Commencement date: 2006 and 1/1/2007 for various articles – see art 1(2) of the SI for details implemented some aspects of directive 2003/41 on the activi- ties and supervision of institu- tions for occupational retire- ment provision. These new regulations are made under sec- tion 5 of the (Amendment) Regulations ’, to provide the procedureand Schemes (Funding Standard) which was amended by section 44 of the Reform and Pensions Act 2006 expressly state that regulations made under the Occupational Pension Number: Contents note: replace SI 595/2005, which implemented some aspects of directive 2003/41 on the activi- ties and supervision of institu- tions for occupational retire- ment provision. These new regulations are made under sec- tion 5 of the to 24/5/ Social 20/6/2006 District Court Rules 1997 Pensions . These European may be used Revoke and Insert a new rule 7, ‘ Amend the Employment Equality Act 1998 District Court Rules 1997 19/6/2006 Equal Status Act 2000 Pensions Act 1990 SI 314/2006 SI 263/2006 to expressly state that , which was amended and SI 301/2006 elfare Law Reformelfare and Pensions Equal Status Act 2000.Commencement date: District Court (TaxiNumber: Regulation) RulesContents note: 2006 District Court (EmploymentNumber: Equality Act 1998) Rules 2006 Contents note: Contents note: 2006 Communities Act 1972 new regulations are made under section 5 of the Act 1990 by section 44 of the W Act 2006 regulations made under the Pensions Act 1990 to implement EC legislation. These regulations provide for the member protection provi- sions of the be applied to Irish-based mem- bers of overseas schemes; the information required when an application for authorisation to operate cross-border is submit- ted to the Pensions Board; additional conditions of autho- risation; and the information required to be submitted to the Pensions Board once a scheme proposes to accept contribu- tions from a foreign employer. Commencement date: sion provisions of directive 2003/41 on the activities and supervision of institutions for occupational retirement provi- sion. SI 592/2005 was made under section 3 of the 2006 Information) Regulations Schemes (Disclosure of Contents note: replace SI 633/2005, which Occupational Pension Number: forms for appeals to the District Courtsec- under section 63(6) or tion 71(6) of the Act 1998 for applications under section 36 of the for applications under section 3/7/ by the insertion of rules4 in order 1 to 99B, ‘ 30/5/ order 97 of the Commencement date: Appoints Health Act Revoke and Provide that a Appoints 10/5/ . SI 292/2006 SI 306/2006 SI 307/2006 SI 252/2006 , ‘Regulations for preven- Grangegorman Development Order 2006 2006 Regulations 2006 Act 2006 (Commencement) (Establishment Day) Order Schemes (Cross-Border) (Miscellaneous Provisions) Beef) Regulations 2006 Agency Act 2005 Number: Occupational Pension Contents note: replace SI 592/2005, which implemented cross-border pen- Number: Irish Medicines Board Contents note: 8/6/2006 as the commence- ment date for section 25 of the act. Section 25 substitutes a new section 54 of the 1947 tion of danger from food and drink’. Contents note: food business operator provid- ing prepared beef to consumers shall not: (a) advertise the beef (b) present it for sale or supply, or (c) sell or for sale or supply, supply it unless the country or countries of origin of the beef are indicated at the point of advertising, presenting, sale and supply in clear legible type on the advertisement, menu or other presentation used. Commencement date: Number: Agency Act 2005 Health (Country of Origin of 2006 2006 as the establishment day 2006 as the establishment for the Grangegorman Development Agency under the Number: Contents note: Grangegorman Development authority has been approved by authority has after con- the local authority the joint policing sulting with for that administra- committee tive area. date: Commencement 2006 , as 8/6/ and pro- Appoints Dir 2000/ . . Section 3B Prepared by the Prepared Implement the Law Society Library SI 265/2006 SI 282/2006 Pensions Act 1990 axi Regulation Act 2003 G T aste Management (End-of- 2006 inserts section 3B into the inserts section 1990 Pensions Act relates to the proceedings that relates to the Board may bring the Pensions offence under for a summary the vides that certain documentary a prose- evidence submitted in with- cution is now admissible officer of out the need for the to attend the Pensions Board the court proceedings. 2006 (Commencement) Order axi Regulation Act 2003 Life Vehicles) Regulations (Section 36(2A) to (4)) Contents note: 25/5/2006 as the commence- ment date for subsections (2A), (3), (3A) and (4) of section 36 of the amended by section 36 of the Act 2004 Road Traffic W Number: Contents note: provisions of directive 2000/53 on end-of-life vehicles. Pre- scribe a national system for the collection, treatment and recov- ery of vehicles discarded as waste. Commencement date: 2006 Leg-implemented: 53 T Number: ’, Taxi CHOOSE THE LAW SOCIETY Appoints ; appoints , insofar as it Appoints 8/5/ . SI 246/2006 SI 169/2006 (SI 15/1986) to provide Taxi Regulation Act 2003 Social Welfare Law Reform Social Welfare l: (01) 672 4802, fax: (01) 672 4803 ebsite: www.lawsociety.ie mencement) Order 2006 ou can obtain more information CPD seminar on any Pensions Act 1990)) (Com- 2006 inserts section 3B into the 33) (Commencement) Order Y by contacting the CPD team at: Te e-mail: [email protected] W (Section 39 (insofar as it (Sections 4(4), 4(5), 31 and and Pensions Act 2006 and Pensions Act 2006 Contents note: 2006 as the commencement 33 of date for sections 31 and the and Pensions Act 2006 28/7/2006 as the commence- 4(4) and ment date for sections 11, 12, 4(5) and items 8, 9, 10, 1 of the 13 and 14 of schedule Law Reform and Social Welfare Pensions Act 2006 Contents note: 12/4/2006 as the commence- ment date for section 39 of the Law Reform and Social Welfare Pensions Act 2006 Number: Social Welfare Law Reform Number: Social Welfare Law Reform 21/6/ will come into operation on the com- Social Provisions relating to section 35(7) of the Dir 2001/ Appoints . CONTINUING PROFESSIONAL DEVELOPMENT Insert a new order 91A, ‘ SI 315/2006 SI 291/2006 Rules of the Superior Courts 1986 ). Number: Contents note: Taxi Regulation Act 2003 Rules of the Superior Courts (Taxi Regulation) 2006 elfare Law Reformelfare and Pensions 2006 relating to the use of work relating to when carrying out equipment Set out specif- work at a height. for organisa- ic requirements assess- tion, planning and risk avoid- ment of work at height, work at ance of risks from equip- height, selection of work and ment for work at height inspection of work equipment, falling fragile surfaces and objects. Commencement date: 2006 Leg-implemented: 45 3) (Commencement) Order and Pensions Act 2006 (Part Number: Contents note: 24/5/2006 as the commence- ment date for sections 38, 41, 43 and 44 (insofar as it relates to items 1, 2, 3, 4, 5, 7, 8, 9 and 10 of schedule 8 of the W Act 2006 Social Welfare Law Reform Commencement date: [CPD] mencement of section 35(7); 19/6/2006 for all other provisions 20 discount (www.lawsociety.ie for applications and appeals under section 36 of the for applications and appeals under section € 1/6/ Regulation Act 2006 24/5/ JULY 2006 JULY into the Appoints Make an Pensions Act Implement the . Gazette. SI 318/2006 SI 271/2006 SI 264/2006 . inserted by section 34 of inserted by Social Welfare and Pensions Social Welfare Personal Injuries Assessment itle Act 2006 (Commence- APPLYING IS EASY APPLYING Apply on-line and receive a and follow links for CPD) or simply return the application form at the back of the CPD brochure which is enclosed with each issue of the DISCOVER THE EASYDISCOVER WAY GET TO CPD HOURS – YOUR Regulations 2006 Regulations 2006 ment) Order 2006 at Work (Work at Height) T Board (Fees) (Amendment) Safety, Health and Welfare Number: Contents note: provisions of directive 2001/45 Registration of Deeds and Number: Contents note: 26/5/2006 as the commence- ment date for ss1, 2, 3, 5, 6, 50 (except paragraph (e)), 52 (except paragraphs (b) and (d)), 58, 59, 60, 63, 65, 68, 69 and 70 of the act. Number: Contents note: Act 2003 Board Personal Injuries Assessment the amendment to the charges Personal Injuries Assessment claimants Board may make on and respondents in respect of the processing by the board of applications under section 11 of the Commencement date: ment provision, and under sec- ment provision, of the tion 59A 2006 1990 the Act 2005 date: Commencement 2006 www.lawsociety.ie LAW SOCIETY GAZETTE

BRIEFING 56 BRIEFING 57 JULY 2006 JULY www.lawsociety.ie Clarke J granted limited update The applicant was granted The applicant was by way leave to restrain his trial on three of judicial review counts of counts of rape, two count indecent assault and one of unlawful carnal knowledge, on the basis of the inordinate of the delay in the institution proceedings. The offences were alleged to have occurred during a period between 1985 and 1992 against three of his cousins. The complainants did not make their complaints until 2002 due, among other things, to abuse they had suffered from an uncle and another cousin. relief sought by the applicant, holding that the court had to first examine whether there had been a long delay and then consider the adequacy of any explanation offered for such and that the court had to delay, be satisfied that the actions of the accused, on the assumption of the truth of the allegations, had contributed in a material way to the overall psychologi- cal inhibition in respect of any complainant making the com- plaint. The court then had to notwith- consider whether, standing that the complainant had delayed in complaining due to dominion exercised by the accused, the accused would no longer be able to have a trial in accordance with fair proce- dures. From the evidence, it was not possible to conclude that the applicant was responsi- ble for the circumstances lead- ing to the first complainant’s delay in making the complaint and there was a presumption that there would be some prej- udice to the applicant as a No suffi- result of the delay. cient explanation had been given for the delay in respect of . LAW SOCIETY GAZETTE igh Court, ,H firstlaw Peart J refused the relief determining the lapse of time was from the earliest date for the commission of the offence up to the date of the issuing of the special summons. In the circum- stances, the lapse of time in the present case was not suf- ficient to merit the release of the plaintiff. rant would, if done in this state on the date on which the warrant was produced to the assistant commissioner for endorsement, have given rise to an offence of conspir- acy to defraud. the lapse of time since the com- the lapse of time since and other mission of the offence it exceptional circumstances, or would be unjust, oppressive him up invidious to deliver specified and/or that the offence that in the warrant, namely he con- between 1996 and 1999 spired with another named per- son “dishonestly to obtain money transfers from the Department for Education and Employment by deception, by allegedly falsely representing that certain organisations would provide training for service industries”, did not correspond with any offence under the law of this state. sought by the plaintiff, holding that: 1) The appropriate period for 2) The acts alleged in the war- Egan v O’Toole Mr Justice Peart, 13/12/2005 [FL12277] Fair procedures Complainant delay – whether inor- dinate and inexcusable – right to trial with due expedition – whether adequate explanation given for delay in making complaint – risk of unfair trial whether real Compiled by Flore Bouhey for FirstLaw High , – whether News fromIreland’s online legal awareness service [FL12295] Peart J refused the relief put back to a date on which put back to a date could District Judge Brophy However, dispose of the matter. District Judge Fitzpatrick facts refused and, having heard and a in relation to the offences which plea in mitigation, report, included the probation the judge imposed a term of imprisonment. sought, holding that the District Court had jurisdiction to dispose of the matter once the report was available. Once fair procedures were observed by way of the facts being out- lined to the sitting judge and the appropriate and necessary opportunity to be heard in mit- igation being afforded to the applicant and his legal team, there was no obstacle to the matter being disposed of by District Judge Fitzpatrick. The detention of the applicant was made within jurisdiction and was lawful. O’Keeffe v Governor of St Institution Patrick’s Court, Mr Justice Peart, 13/12/2005 Extradition – Delay – correspondence Extradition Act 1965 it would not be fair to deliver the to the applicant up, having regard lapse of time since the commission of the offence and whether the offence specified in the warrant with an offence in corresponded this jurisdiction. On the same date as the making of an order for the surrender of the plaintiff to the appropriate police authority in Britain, the plaintiff issued a special sum- mons in the High Court seeking an order for his release pursuant to section 50 of the 1965 act, on the grounds that, by reason of . European , High Court, Constitution of [FL12363] European Convention , article 40. De Valera J made the order De Valera CRIMINAL LAW The applicant submitted that his detention was unlawful. The applicant pleaded guilty and, having considered matters, District Judge Brophy directed that the Probation and Welfare Service prepare a report. When the case next appeared at the District Court, District Judge Fitzpatrick was sitting. The applicant submitted that it was appropriate that the matter be Ireland of prohibition, holding that the complainants had been free for a period of 18 years to make complaints and they had freely chosen not to do. There was unexplained and excessive in violation prosecutorial delay, of article 6(1) of the Detention Whether person entitled to expect that punishment would be imposed by same district judge before plea of guilty – whom he entered detention whether applicant’s unlawful – on Human Rights Act 2003. The applicant sought an order of prohibition of his prosecu- tion on 120 counts of rape and indecent assault against his sis- ters, occurring between 1971 and 1981, alleging both delay in making the complaint against the applicant and pros- ecutorial delay. Convention on Human Rights W(M) v DPP Delay Sexual offences – constitutional of – order law – judicial review evi- prohibition – psychologist’s dence – Mr Justice de Valera, 11/1/2006 igh ,H Murphy J allowed the Murphy J allowed Dunne J ruled in favour of made by the individual, was made by access that docu- entitled to on the basis that the mentation under the control records were The appellant of the appellant. refused the had previously to the request for access that records on the grounds they related to the day-to-day of the operational matters by the board and were not held appellant. appel- appeal, holding that the board lant did not control the requested and the information of the was not in the possession the appellant. Consequently, records sought were not infor- mation that was under the con- trol of the appellant and the decision directing the appellant to grant access to the records ought to be discharged. Minister for Enterprise, Trade and Employment v The Infor- mation Commissioner Court, Mr Justice Murphy, 25/1/2006 [FL12273] Solicitor’s lien Whether the defendant was enti- the title deeds to the tled to retain plaintiff’s of the property by reason plaintiff’s to discharge the failure fees for professional defendant’s to the plaintiff. services rendered The plaintiff sought an order compelling the delivery by the defendant to the plaintiff of title deeds to the plaintiff’s The defendant had property. acted as solicitor for the plain- tiff in relation to the re-mort- gaging of her property and for that purpose obtained the title deeds from the mortgagee. The defendant claimed that he was entitled to hold onto the lien deeds by way of solicitor’s in respect of fees due and owing to him for services ren- dered to the plaintiff in his capacity as her solicitor. the plaintiff, holding that, as a lien arises by operation of law, PROPERTY , . ex tem- Civil Legal Rules of the igh Court, Miss . s33. . Hague Convention ,H [FL12300] Rules of the Superior . The applicant asked, in . The applicant asked, ) allowed an order in favour Finlay Geoghegan J ( Justice Finlay Geoghegan, 10/2/2006 Access to documents Request for copies of internal docu- ments – whether the documenta- was within the con- tion requested trol of the appellant and ought to be furnished – to the requestor Freedom of Information Acts 1997 to 2003 The appellant sought an order discharging the order made by the respondent, whereby the respondent determined that a named individual, who had sought access to internal docu- mentation compiled and pre- City sented by Waterford Enterprise Board Limited to its Evaluation Committee, con- cerning a grant application pore of the respondent, holding that, in view of the nature of the proceedings, the impor- tance of the children, the fail- ure of the applicant ultimately in the proceedings, and the expenses incurred by the respondent, costs were to fol- low. L(F) v L(C) cessful interim applications – cessful interim Superior Courts Rules of the rule 99, order 1(3) – Aid Act 1995, was unsuccessful The applicant for the return in an application Northern of his children to made Ireland. The applicant pur- applications for access, suant to the Superior Courts The respondent applied for The respondent applied 99, rule costs pursuant to order 1 of the Courts he the circumstances where successful had brought certain as to interim applications access, that the court ought to have exercised its special dis- cretion pursuant to order 99, rule 1 of the FREEDOM OF INFORMATION – – consent – igh Court, igh Court, [FL12306] . ,H [FL12331] ,H Child Abduction . Hague Convention ongful retention The applicant father sought The applicant that Finlay Geoghegan J held Finlay Geoghegan J made Michigan – Michigan – of Custody and Enforcement 1991. Orders Act the return of chil- an order for place of habitual dren to their USA, residence, Michigan, been alleging that they had Ireland wrongfully brought to The without his consent. she had respondent alleged that children sole custody of the under the laws of Michigan. be the proceedings would the appli- adjourned to permit in cant to seek a further affidavit Michigan to establish his rights to custody under Michigan law, pursuant to article 8(f) of the Hague Convention D(T) v P(A-M) Miss Justice Finlay Geogh- egan, 8/3/2006 Wr Hague Convention – acquiescence – habitual residence Child Abduction and Enforcement of Court Orders Act 1991 The applicant sought an order for the return of his children to the USA, where the children were born and where they had been habitually resident until they left the USA. The chil- dren were brought to the juris- diction with his consent for the purposes of a vacation. an order for a return of the children to the State of Massachusetts, holding that the children had not lost their habitual residence. The appli- cant had not acquiesced to the children remaining in the juris- diction. No defence of grave risk of harm had been made out by the respondent. R(S) v R(MM) Miss Justice Finlay Geogh- egan, 25/1/2006 Practice and procedure Costs – whether court should exercise spe- – unsuccessful out- cial discretion come of access proceedings – suc- – . JULY 2006 JULY ,High European ([2003] 2 IR Sex Offenders , High Court, Mr , High Court, [FL12356] Hague Convention AMILY LAW AMILY ongful removal Clarke J dismissed the appli- F etrospective nature of certain of of etrospective nature change of residence – laws of change of residence Court, Mr Justice Clarke, 16/2/2006 Wr Custody – 321), which held that the 2001 act was not unconstitutional, as the registration requirement did not constitute a penalty. The plaintiff failed to establish any reasons/grounds for departing from that decision. the AttorneyH(P) v Ireland, General and the DPP cation, holding that the sub- stance of the challenge that the applicant brought in relation to the 2001 act was the subject of a comprehensive and recent adjudication by this court in and the Enright v Ireland Attorney General Convention on Human Rights the first complainant but there the first complainant of the other two had in respect complainants. C(T) v DPP 16/12/2005 Justice Clarke, [FL12248] Sexual offences uncon- Whether the 2001 act was to the stitutional, having regard r its provisions – Act 2001. plead- The applicant, who had sexual ed guilty to certain certain offences, claimed that act were provisions of the 2001 unconstitutional. Specifically, the applicant claimed that the act was retrospective to the extent that it imposed certain reporting obligations on per- sons, such as himself, who had been convicted of specified sex- ual offences, irrespective of whether the offence was com- mitted prior to or subsequent to the coming into force of the 2001 act, and therefore the act was in breach of articles 15.5 and 38.1 of the Constitution and article 7.1 of the www.lawsociety.ie LAW SOCIETY GAZETTE

BRIEFING 58 59

BRIEFING , JULY 2006 JULY www.lawsociety.ie G The Supreme Court allowed The Supreme ildgust v Bank of Ireland Supreme Court, 22/3/2006 [FL12284] the second defendant that the the second for that par- premium payment had been paid by ticular month method. an alternative holding that the the appeal, of a proximity test in respect includ- negligent misstatement and iden- ed persons in a limited maker of tifiable class when the the statement could reasonably of a par- expect, in the context that reliance ticular inquiry, by per- would be placed thereon in a par- sons to act or not to act to ticular manner in relation was a that transaction. There special relationship between the plaintiffs and the second defen- dant sufficient to create a duty of care on the defendant for the accuracy of its statement, even though the statement was not made directly to the plaintiffs but to a person identified with the plaintiffs them. Moreover, were, vis-à-vis the person giving the information, proximate neighbours who could foresee- ably be damaged by the inaccu- racy of the information. W The information contained here Legal is taken from FirstLaw’s Service, Awareness Current published every day on the inter- net at www.firstlaw.ie. For more information, contact bartdaly@ or FirstLaw, firstlaw.ie Court, Merchant’s Merchant’s Dublin 8, tel: 01 679 Quay, 0370, fax: 01 679 0057. LAW SOCIETY GAZETTE [FL12307] High Court, , 530,000 was made against 530,000 was eliance on statement necessary for ecovery of damages – whether defendants and 50% from the defendants defendant. second-named in the sum of Judgment € each defendant. Joosub and Dublin Larkin v City County Geogh- Miss Justice Finlay egan, 23/2/2006 Duty of care for Negligence – scope of liability – insur- negligent misstatement – ance company – proximity creat- whether special relationship plain- – whether ing duty of care so as to tiffs sufficiently proximate within con- be persons reasonably templation of defendant as being likely to be affected by its acts or omissions – whether personal r r plaintiffs entitled to damages. The first plaintiff had obtained life cover from the second defendant to protect loan repayments to Hill Samuel bankers. The premiums were paid by direct debit from an account with the first defen- one of dant. Due to an error, the premium payments was not made, as a result of which the second defendant contended that the plaintiffs’ policy lapsed. Hill Samuel had been aware of the error with the direct debit and made enquiries at the time to the second defen- dant to ensure that the monies due on that premium instal- ment had been paid by some alternative method. Hill Samuel had been assured by THE SERVICE IS COMPLETELY CONFIDENTIAL AND THE SERVICE IS COMPLETELY SOCIETY INDEPENDENT OF THE LAW TOTALLY 01 284 8484 SOLICITORS’ HELPLINE The Solicitors’ Helpline is available to assist every member of the profession with any problem, whether personal or professional , Civil nds v ylands v . . A joint R , s21 – Ryla – claim for contribution . The defendants Finlay Geoghegan J held The Supreme Court The Supreme Supreme Court, 12/4/2005 [FL10550] Liability Nuisance – rules in Fletcher to mitigate loss – – failure Liability Act 1961 Derelict Sites Act 1990 A fire occurred in an adjoining terraced residence that resulted in a hole in the roof of one which caused damage property, to the adjoining residence. The plaintiffs instituted proceed- ings in negligence, nuisance and under the rule in Fletcher alleged that the plaintiffs had failed to mitigate their loss. that the defendants were liable in negligence and nuisance for the damage to the premises resulting from their failure to abate the nuisance and for the damage caused by water ingress to the party wall and for failing to carry out regular inspections The defen- of their property. dants were concurrent wrong- doers pursuant to s11 of the Civil Liability Act 1961 contribution was to be made of 50% from the first and third The plaintiff brought proceed- The plaintiff the defendant, who ings against claiming dam- was a solicitor, professional negli- ages for of duty and gence, breach contract. The trial breach of that the judge (O’Neill J) held guilty of defendant had been held negligence, but further not suf- that the plaintiff had The fered any loss as a result. the plaintiff appealed against and the dismissal of her claim defendant, in turn, challenged the finding of negligence. and (Hardiman, Geoghegan Kearns JJ) dismissed the plain- appeal, holding that the tiff’s defendant was not negligent, in breach of duty or in breach of contract. The trial judge also correctly decided the issue of causation. O’Carroll v Diamond High , igh Court, ,H Road Traffic Acts Road Traffic [FL12330] O’Neill J held that the dis- TORT ROAD TRAFFIC Professional negligence Causation – whether defendant negligent – whether plaintiff suf- loss as a result. fered trict judge was entitled to make the order where the prosecu- tion had failed to raise any objections. DPP v Moore Mr Justice O’Neill, 5/5/2006 [FL12342] 1961-1994. The applicant had sought an order compelling the prosecu- tion to disclose documents relating to an intoxilyser machine and an order for inspection of the machine, in addition to an order authoris- ing the presence of an engineer at the next servicing and testing of the machine. The case stated posed the question as to whether the district judge was correct in authorising the pres- ence of the engineer and whether it would be correct to hear the charges where no inspection was carried out. Drink driving to Case stated – whether correct of engineer at authorise presence testing and servicing of intoxilyser to hear case – whether correct when inspection sought and not carried out – Court, Judge Dunne, 16/12/ Court, Judge Dunne, 2005 the lien in this case could only the lien in during the currency have arisen Accordingly, of the mortgage. have come into no lien could operation of law existence by dispute arose when the regarding between the parties reason of payment of fees, by then the fact that the defendant to held the title deeds subject of the an express trust in favour mortgagee. Conroy v Mc Ardle is Brussels II , the court to . A choice of juris- Brussels II Brussels II Regulation The judge concluded that O’Higgins J rejected the [Irish] Constitution because [Irish] Constitution of an they were as a result enabling constitutional the amendment, whereas of the divorce provisions Constitution were enacted by direct referendum.” the High Court had no juris- in that, diction in the matter, under which the application is first brought must hear the case. As the French court was the court to which this case was first brought, it had the right to hear the case and deter- mine the issues: “The part of Irish law. It specifical- part of Irish law. ly allows for a choice of juris- diction in some circum- stances, including those which are applicable in the case of the respondent. Under the regulations, he was entitled to bring proceedings in the jurisdiction of the French courts. By so doing, there were indeed conse- quences for the applicant which may well be different than those following a judicial separation under Irish law. there is in my view, However, nothing in law to support the contention that because the seat of the marriage was in Ireland, the respondent was precluded from exercising the options specifically given to him under the Regulation diction was available to him and he was legally entitled to exercise that choice to seek divorce in France.” contention that the conse- , are was was Brussels Brussels II Brussels II : Brussels IIA were constitution- Brussels II bis and was part of Irish law and The applicant challenged, The High Court rejected that the High Court had no that the High Court French jurisdiction due to the of the court having seisin case. among other things, the con- stitutionality of contending that the “main seat of the marriage is within this jurisdiction”, such that the divorce petition should not proceed in France. Furthermore, it was submit- ted that invalid having regard to the Irish Constitution, in that Irish law places a high status on marriage and will only allow a dissolution of mar- riage where proper financial provision has been put in place for the parties. It was also contended that, even if Brussels II ally permissible, the French court did not have the juris- diction to determine the property rights of the parties. the contention that was in any way less valid or in any way improperly brought into force in Ireland. O’Higgins J held that II was constitutional as it arose out of the ‘yes’ vote in the Treaty Amsterdam the adoption of “In my view, Brussels II pursuant to a mandate given by the people of Ireland, who voted on article 29.4.5 and article 29.4.6 of the Constitution. I cannot agree that the provisions of the Brussels II/IIA Regulations in some way less valid than the divorce provisions in the YNR v MN, is about jurisdic- (unreported, High : its impact in Ireland: its impact (part 2) the Attorney General YNR v MN, Ireland and Brussels II bis ancillary tion and not about said, the financial relief. That reality is that choice of juris- diction may well determine how the ancillary financial issues are disposed of, as can be seen from the Irish High Court case of and the AttorneyIreland General Court, O’Higgins J, 3 June 2005). This case concerned a French couple who married in France in June 1978 and moved to Ireland in 1998. The applicant returned to France in 2002. Shortly on 22 November thereafter, 2002, the respondent filed for divorce in France. On 23 December 2002, the French court fixed a hearing date for 4 February 2003. On 23 December 2002, the appli- cant instituted family pro- ceedings in the Irish High Court. On 4 February 2003, when the hearing came before the French court, the applicant contested the juris- diction of the French court to the hear the case. However, applicant did not appeal the 25MarchFrench court’s 2003 ruling that it had jurisdiction to hear the proceedings. In fact, in the French proceed- ings, the applicant counter- claimed for divorce on the grounds of fault and sought a variety of financial orders. Meanwhile, the respondent, by notice of motion dated 13 October 2003, brought an application to the Irish High Court seeking a declaration JULY 2006 JULY News fromthe EU and International Affairs Committee Director Law Society of Ireland of Education, Edited by TP Kennedy, , sec- . The legal Brussels Judicial . Under European was given Family Law , sections 29 . eur to take account of and section 39(1) of Brussels II bis ssels II bis applies. (These provi- .) Article 8 amends the effect in Ireland by regu- ru Family Law (Divorce) Act regulations came into force on 1 March 2005. Article 2 covers matters of interpre- tation, while article 3 establishes the Minister for Justice, Equality and Law Reform as the central author- ity for Ireland for the purpos- es of lations entitled the in Communities (Judgments and Matrimonial Matters Respons- Matters of Parental ibility) Regulations 2005 article 4 of the regulations, applications for the recogni- tion or non-recognition of a judgment or for a declaration of enforceability of a judg- ment are made in the Irish High Court. Article 5 pro- vides that a declaration of enforceability of a judgment on the exercise of parental responsibility has the same force and effect for all pur- poses as if it were an order of the District Court. Of partic- ular importance is article 7, which provides that certain Irish statutory provisions do not have effect where II bis sions are section 5 of the Domicile and Recognition Of Divorces ActForeign 1986 tion 31(4) of the and 39(1) of the Act 1995 the 1996 Child Abduction and Enforcement of Custody Orders Act 1991 Brussels II bis Separation and Family Law Reform Act 1989 Brussels II bis www.lawsociety.ie B LAW SOCIETY GAZETTE

BRIEFING 60 BRIEFING 61 provi- provi- JULY 2006 JULY . lis alibi lis pendens www.lawsociety.ie . This required the Brussels II The respondent appealed In January 2004, the On the legal position of sions of that regulation, in that the 1994 order in dealing with maintenance, covered relief identical to which the applicant was seeking in the Irish judicial separation pro- the ceedings. Moreover, respondent pleaded the tran- sitional and sions of without employment. Morris without employment. to state that he was J went on that the respon- not satisfied formulated any dent had of abandoning intention his domicile of ori- Ireland as Morris J gin. In this regard, evidence stated that the only with this that was consistent of the intention was the sale the can- family home and of celling of membership clubs. When weighted that the against the evidence to respondent returned holi- Ireland for his summer days, that he visited his fami- ly in Ireland on a number of occasions, and that he had arranged for his wife to return to Ireland when diffi- culties arose in the marriage, Morris J considered that it was clear that the respondent had never abandoned his domicile of origin. to the Supreme Court. In a unanimous decision delivered by Keane CJ on 26 November 2003, the respon- appeal was dismissed dent’s and the order of the High Court was affirmed. respondent commenced a further High Court challenge entitlement to the applicant’s to seek a decree of judicial separation in Ireland. He argued that the maintenance element of the 1994 Dutch order was entitled to recogni- tion and enforcement under Brussels I Irish court to apply to the Irish judicial separation pro- ceedings the the 1994 maintenance order, LAW SOCIETY GAZETTE Re Joyce; ([1946] IR the basis, among other things, that he was domiciled in the Netherlands at the time of the divorce. However, the High Court rejected this argument. Morris J, applying the test set out in Corbet v Fagan 277), held that, in order to discharge the onus of proving that he had relinquished his domicile of origin and acquired a domicile of choice in the Netherlands, it was not sufficient for the respondent to adduce evidence of pro- longed actual residence in While such another country. evidence was important, it had to be supplemented by other facts and circum- stances, indicative of inten- tion to choose the Netherlands as his permanent home. On the facts, Morris J was prepared to accept that the respondent was content with working in the Netherlands and that he was happy to remain there for the purposes of his work. that he he stated However, could not foresee that the respondent would remain in the Netherlands if he were In 2000, the applicant McKechnie J, 22 February 2006). Both the applicant and the respondent had a domi- cile of origin in Ireland. They were married in Ireland on 30 August 1980. There were three children of the mar- riage. In 1987, they moved to the Netherlands to enable the respondent to take up employment with a Dutch In 1992, differences company. arose between the parties and the applicant and her chil- dren moved back to Ireland. In March 1994, the respon- dent instituted divorce pro- ceedings in the Netherlands. The applicant, who did not resist the divorce proceed- ings, sought maintenance for herself and the children. On 12 September 1994, a divorce was granted on the basis of residence in the respondent’s the Netherlands for more than 12 months. A mainte- nance order was also made in favour of the applicant. sought a decree of judicial separation in Ireland. The respondent submitted that the divorce, obtained in 1994 was valid on under Dutch law, Brussels II DT v FL Another relevant and instruc- tive judgment is (unreported, High Court, DT v FL quence of adopting was to restrict the proper provision imperative in arti- cle 41.3.2 of the Irish Constitution. The applicant argued that the French court had no jurisdiction concern- ing the property rights of the parties insofar as they related to lands, bank accounts and other property in Ireland. O’Higgins J, declining the request to inter- applicant’s stated: vene in this matter, “It would be unwarranted and irresponsible of this court to act on the assumption that the French courts will act other than in any way permitted by the relevant legislation, and it is clear that the Irish courts have no role in the supervi- sion of the French courts in doing their legitimate busi- ness … it is clear that the French courts have jurisdic- tion in this case and that it is appropriate for this court to declare … that it has no juris- diction in this matter.” Is your Firm getting the best deal from your Bank? Are you Happy with the Interest you are Earning? Happy with the Interest you are Paying? Getting proper Set-Off Interest? Paying Uncleared Interest / Surcharge Interest?

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Signature: Please return to Law Society Gazette, Blackhall Place, Dublin 7. BRIEFING 63 ), in France Chorley v Rome III ( , issued by JULY 2006 JULY quête equête re www.lawsociety.ie r , the draft regula- European Enforce- ([2005] EWCA Civ ([2005] EWCA court under the regulation. A court under instructive case relevant and is in this regard Chorley 1 WLR 1469). In 68; [2005] a that case, which the husband in France, initiated the conciliation French process leading to a be the divorce, was held to in the first manifest step LJ, divorce process. Thorpe judg- providing the leading Appeal ment in the Court of stated: partic- “If this regulation and ularly article 11 of this regu- lation are to achieve the objectives that all member states intended during the course of the lengthy negoti- ation of the text, then mani- festly it is essential that the filing of the be held to be the first mani- fest step. If the Cour de Cassation were to reach the conclusion that as a matter of proper characterisation only the issue of the assignation amounted to an initiation, then it would seem to me imperative that France amend its internal proceed- ings to ensure that the first manifest step, even if it only be a step towards a concilia- tion process, constitutes initi- ation.” Impending developments There are currently four sep- arate European Commission initiatives in the family law area: the ment Order tion on maintenance, the Paper on Applicable Law Green in Divorce Matters and a proposed green paper on property rights arising out of the matrimonial relation- ship and other unions (to be published in June 2006). Rome III In March 2005, the EU Commission presented a Paper on Applicable Law Green and Jurisdiction in Divorce . In LAW SOCIETY GAZETTE oblige Service , section reduces the time Brussels II bis Service Regulation . and section 20 of the Family Law (Divorce) set out the duties of the Articles 2 and 3 of the Articles 2 The time limits and the ance on which state is first ance on which divorce jurisdic- seised with must now serve in tion. One with the accordance Regulation Service Regulation establish member states to transmitting and receiving for serv- agencies responsible central ing documents and bodies to provide information and to transmitting agencies difficul- resolve any service are ties. The county registrars the designated ‘transmitting agencies’ in Ireland. The cen- tral body in Ireland is the Master of the High Court, and communications in English or Irish may be effected by post or by fax to the Central Office of the High Court. Articles 4 to 9 deal with procedure for the service of documents. Article 7(2) of the is of particular importance, in that it requires the service agency to effect all steps for service of the proceedings as soon as possible. priority given to the court that is first seised are core features of Ireland, section 5 of the Judicial Separation and Family Law Reform Act 1989 6 of the Act 1996 of Infants Act Guardianship 1964 solicitor acting for either applicant or respondent in relation to advising the client of the alternatives to litiga- tion. Solicitors for both appli- cant and respondent must file a certificate with the originat- ing document confirming that they have fulfilled their duties under the foregoing provisions. It is arguable that Brussels II bis for investigation of the suit- ability of alternatives to liti- gation, in that the respondent may be about to institute pro- ceedings before a foreign . ) is was , stat- Brussels Brussels II Brussels II Brussels II bis Brussels II was adopted (29 in circumstances regulation which in relation to civil and provide guid- Service Regulation provides that Council Service Regulation Brussels II A preliminary issue for con- A preliminary issue for introduced to complement Brussels II May 2000), the EU also adopted Council Regulation 1348/2000 on the service in the member states of judicial and extrajudicial documents in civil or commercial mat- ters. Preamble 15 of II bis Regulation 1348/2000 (here- after the to apply to the service of all documents in proceedings instituted under The marriage was dissolved by the marriage was Court and DM Irish High the first-named later married death, On DM’s respondent. sought a decla- the applicants the marriage ration that first- between DM and the was void named respondent and/or voidable. or not sideration was whether the provisions of relying applied. O’Higgins J, on article 2 of having ed that the only parties locus standi proceedings were spouses. The judge held that the refer- ence to joint applications in article 2 implied joint applica- tion by the spouses as distinct from a spouse and third party. O’Higgins J stated: “There is no provision in the Brussels II confers jurisdiction in civil proceedings like the granting of an annulment where one of the parties is dead. Article 2 refers to territory where the spouses are habitually resi- dent, where the spouses were last habitually resident inso- far as one of them still resides there. The article does not contemplate annulment juris- diction under the Convention where the spouses or either of them is dead.” Service On the same day as the origi- nal . On (case , held rules can provisions, lis alibi pen- enforcement, Hoffman Brussels II bis lis pendens or (unreported, High lis pendens had no application. Hoffman v Krieg Hoffman EM & Others v VC & The High Court also held Others Court, O’Higgins J, 27 May 2004), the applicants were the children of the marriage between DM and FM. This In Others EM & Others v VC & the McKechnie J stated that there must be in existence proceed- ings that are concurrent before the As that was not the apply. position in the instant case, the provisions of dens that the 1994 decree of divorce did not come within Brussels II as to “enforce the mainte- nance order would be direct- ly in conflict with the deci- sion of the Supreme Court”. McKechnie J placed reliance McKechnie on ECR 645), 145/86 [1988] judgment where a German maintenance was awarding clearly irreconcil- held to be Dutch able with a subsequent respon- divorce, in that the the dent tried to enforce in the maintenance order courts of the Netherlands. on the McKechnie J, relying defence of ‘irreconcilability’, as set out in the the basis upon which was maintenance judgment issued was irreconcilable with the aforementioned decision of the Supreme Court. The recognition and enforcement of the 1994 maintenance order could only take place where both parties were divorced in Ireland. That was not the case, in that the conclusion reached by the Supreme Court was to the effect that the parties remained legally married in Ireland. Therefore, McKechnie J held that the maintenance aspect of the 1994 order was not capable of LAW SOCIETY OF IRELAND Diploma in Employment Law 2006/2007

For a complete timetable and application form please visit the Law Society’s website www.lawsociety.ie and click on the Diploma Programme on the home page OR contact a member of the Diploma Team – [email protected] BRIEFING 65 , . This are no JULY 2006 JULY Child Law is therefore Brussels II bis www.lawsociety.ie G Brussels Convention One unfortunate matter is One unfortunate matter ecently published divorce and finances can be divorce and finances mem- dealt with in different cause ber states, which can unnecessary costs and delay. Brussels II bis unlikely to achieve the uni- formity realised by the origi- nal is, in part, due to the fact that the conditions that heralded the success of the original Brussels Convention longer present. Indeed, reaching agreement in the future will be more difficult, in that a number of features of the family law systems in the newer member states do not appear to be compatible with the family law systems of the original member states. It will now require consensus among 24, possi- bly 25, European member states. courts of other member courts of the expense of states at court with first whether the is the most jurisdiction venue for the appropriate parties’ case. family that a comprehensive been law regulation has not all negotiated to cover aspects of child and matrimo- exam- nial jurisdiction. For ple, under Geoffrey Shannon is the Law Geoffrey of edu- deputy director Society’s cation and the author of the r (Thomson Round Hall). LAW SOCIETY GAZETTE vade Brussels II lis pendens is likely to Brussels II is likely to . In summary, forum non conve- . It will be of consider- is to be welcomed, as is is to be welcomed, , published by the bis of the the limited availability principle of niens. Brussels II bis give greater certainty intra- Europe in children matters. For instance, forum disputes in parental responsibility matters between member states are now less likely, given the clear hierarchical basis for jurisdiction and the application of the rule. The practice guide for the application of bis European Commission in consultation with the European Judicial Network, is admirable. This guide, has although not mandatory, proven to be a useful mecum able help in ensuring unifor- mity in the application of Brussels II bis Brussels II bis increase transfrontier judi- cial co-operation and repre- sents an equitable balance between placing a premium on ease of access to the will allow a maintenance will allow to obtain easily, creditor generally free of quickly and enforceable order charge an recognition and capable of in the EU with- enforcement out any obstacles. Equitable balance scope The greatly extended ‘parental of the expression responsibility’ in pro- limited number of places are still available. A exequatur ANNUAL CONFERENCE The draft maintenance Dublin Solicitors Bar Association emerged that reflected the emerged the consultation results of of the key rec- process. One was the ommendations the removal of also included pro- cedure. It “precise posals permitting debtor’s identification of a of the assets in the territory mutu- member states” so that occur in al recognition could that an environment enhances cooperation states’ between member the har- courts. Measures for monisation of conflict-of-law rules were also included in the legislative package. regulation emerging from the green paper shall apply in full from 1 January 2009. Under the draft maintenance regulation, which Ireland has opted into, Irish courts are to be given powers to order the freezing of bank accounts of spouses or of ex-spouses liv- ing in other EU member states, who have failed to pay maintenance due. Further, under the proposal, the spouse or ex-spouse required to pay maintenance will have 20 days to challenge a court As with other order. European Commission ini- tiatives, a court decision in one member state shall be recognised and enforceable in another member state without any possibility of recognition being chal- lenged. The draft regulation Ovation Group (contact Deborah Hayden on 01 280 2641 or [email protected]). MAKE THE EVENTMAKE AFTER HOUR’S SPECIAL EVEN MORE ORGANISED PRIVATE, WE HAVE

he DSBA conference in Rome will take place from Tuesday 5 September place from Tuesday will take in Rome conference he DSBA ou can register for this event by visiting www.dsba.ie or by making contact with our event organisers ou can register for this event by visiting www.dsba.ie ACCESS FOR ALL DELEGATES TO THE VATICAN MUSEUM AND SISTINE CHAPEL, EXCLUSIVELY MUSEUM ALLACCESS FOR THE VATICAN TO DELEGATES HOSTED BY DSBA TO Y T until Saturday 9 September 2006. in September in Rome The Excelsior Westin of combination the perfect provides superior accommodation, star quality and optimum time ofdestination to ensure a memorable year event. ), which Rome III ( The green paper puts for- The green paper puts I believe there should be a Maintenance In April 2004, the commis- sion published a green paper on the questions arising in the recovery of maintenance claims, as part of a public consultation on this difficult issue. A ‘legislative package’ highlighted a number of highlighted of the current shortcomings to the system. According the shortcom- green paper, system include ings of this and flex- the lack of certainty party insufficient ibility, of results that risk autonomy, to the do not correspond of the legitimate expectations citizens, risk of difficulties living for community citizens the ‘rush in a third state and to court’. ward suggestions to overcome current difficulties. One sug- gestion made, for example, is that parties should be able to choose the law under which their divorce will proceed, irrespective of the court where the divorce is heard. hierarchy of connecting fac- tors governing jurisdiction on divorce, legal separation and marriage annulment instead of the current free for all. A hierarchy between the juris- dictional criteria would which is as improve certainty, important in family law as other areas of the law. Matters Co Co Co Co Co Co Dublin Co Galway Co Dublin Co Kerry Co Kerry Co Kerry Co Dublin ughanacmy; est and barony of Galway; Kathleen Nulty; folio: DN76864F; town- lands: property situate in the barony land of Schollarstown and of Uppercross; 22937 Co Kerry; lands: townland of Cloghaneanode and barony of Corkaguiny; Dolores Daly; folio: 458F; lands: townland of Dromhale and barony of Magunihy; folio: 30272; lands: townland of Galway folio: 26461; lands: townland of (1) Corrabaun (Kilconnel By), (2) Derrynamanagh and barony of (1) and (2) Kilconnell; area: (1) 5.1091 hectares, (2) 1.2165 hectares; Galway 70271F; lands: townland of Rahoon and barony of Galway; Galway Giles; folio: 3061F; lands: town- and land of Muing West Cloonalour and barony of Tr Barbara Kelly; folio: 29915F; lands: townland of Ballymoneen W Cooney; folio: DN5800; lands: Cooney; folio: DN5800; of property situate in the townland of Johnstown and barony Rathdown; Dublin (deceased); folio: 28405; lands: townland of Lissaniska (Tiaquin area: By) and barony of Tiaquin; 17.6060 hectares; DN9362L; lands: property situate DN9362L; lands: property in the townland of Windmill Lands and barony of Nethercross; Co Dublin John Lundberg; folio: DN28228L; lands: property situate on the east Park in the side of Watermeadow townland of Tallaght; O’Brien; folio: DN39269F; lands: property situate in the townland of Burrow and barony of Nethercross, and property situate in the townland of Portraine and barony of Nethercross; Dublin folio: DN2932L; lands: property being part of the townland of Santry and barony of Coolock; Regd owner: Thomas Nulty and Regd owner: Thomas Nulty Regd owner: Shirley Copeland; folio: Regd owner: Bridget Croke and Regd owner: Shannon Free Airport; Regd owner: Thomas McGuinness; Regd owner: Paul Clancy; folio: and Rhona Regd owner: William Regd owner: William Kelly and Regd owner: William Regd owner: Fergus and Sheila Regd owner: Fergus and Regd owner: Thomas Hughes Regd owner: Patrick Clarke; folio: Regd owner: Patrick Clarke; Regd owner: Maura Lundberg and Regd owner: Roderick Martin Regd owner: Denis McSweeney; Co Co Co Co Dublin Co Cork Co Cork Co Dublin Co Dublin Co Dublin Co Dublin Co Dublin 49029; lands: plot of ground being 49029; lands: plot of ground part of the townland of Ballycotton and in the barony of Imokilly county of Cork; Brinny in the barony of Kinalea Brinny in the barony of and county of Cork; Ballyness, Falcarragh, Co Ballyness, Falcarragh, lands: Donegal; folio: 26418; Falcarragh; area: 0.0420 hectares; Co Donegal Co Derryreel, Falcarragh, lands: Donegal; folio: 12; Derryreel; area: 5.4633 hectares; Co Donegal Irene McGinn, c/o Sheridan and Solicitors, Lower Main Company, Co Donegal; Street, Letterkenny, folio: 37209F; lands: Lehardan; area: 0.5140 hectares; Donegal DN23572F; lands: property situ- ate in the townland of Burrow and barony of Nethercross; Dublin Maureen Kelly; folio: DN19802L; lands: property situate in the town- land of Kingstown and barony of Rathdown; DN16125; lands: property situate in the townland of Balally and barony of Rathdown; Geraldine Harris; folio: DN472L; lands: property known as no 85 Home Farm Road, situate on the north side of the said road and on the east side of Bantry Road in the parish of Clonturk, district of Drumcondra; DN91575L; lands: an apartment known as 103, level 2, block A/B in and the the parish of St Michan’s district of North Central; Dublin folio: DN3969L; lands: property known as 64 Seapark Drive, situate on the south side of Seapark Drive in the parish and district of Clontarf; 28LSD; lands: property known as no 46 St Ignatius Road, situate in the parish of St George, North Central district; McCarthy and Helen Mary McCarthy; folio: DN17619; lands: property situate in the townland of Dundrum and barony of Rathdown; Regd owner: William Fahy; folio: Regd owner: William Regd owner: Annie Doogan, Regd owner: Annie McClean, Regd owner: Cecilia Regd owner: James McGinn and Regd owner: John P Bryan; folio: Regd owner: Michael Kelly and Regd owner: Patricia Lenehan; folio: Regd owner: Philip G Harris and Regd owner: John Kealy; folio: Culhane; Regd owner: Wilhelmina Regd owner: Patrick Mulroy; folio: Regd owner: Cornelius Anthony Co Co Co Co Co Clare part); th Co Clare Co Cavan Co Cavan rfad, Mountain Lodge, rfad, Mountain Co Cork Co Cork resa Larkin; folio: 22292; lands: resa Larkin; folio: 22292; Cavan; folio: 6892; lands: Cavan; folio: area: 0.2385 Magheranure; hectares; Tu Cavan; folio: 13588; Cootehill, Co area: 28.2041 lands: Turfad; hectares; Freaney; folio: 31243F; lands: Freaney; folio: 31243F; and townland of Sixmilebridge barony of Bunratty Lower; Clare Te townland of Einagh and barony of Ibrickan; area: 16.9970 hectares; Co Clare folio: 2207; lands: townland of Ballyvannan and barony of Tulla Upper; area: 14.6591 hectares, 0.1922 hectares, 0.0910 hectares; Co Clare folio: 8971F; lands: townland of Feeard and barony of Moyarta; area: 0.8020 hectares; 16542; lands: townland of Cahermaclanchy and barony of Corcomroe; area: 5.0054 hectares, 2.5343 hectares, 34.1200 hectares (one undivided 20 Maureen Casey; folio: 23882F; Maureen Casey; folio: of lands: townland and Murrooghtoohy North 0.0630 barony of Burren; area: (1) (3) hectares, (2) 0.2060 hectares, 0.0610 hectares; Regd owner: Mary Fitzpatrick, Regd owner: Regd owner: Donie Kelly and Mary Regd owner: Donie Kelly and Regd owner: Brendan Larkin Regd owner: John Martin O’Brien; Regd owner: Anthony E Donlan; Regd owner: George Scales; folio: Regd owner: Joseph Casey and Regd owner: Joseph Casey Clare 12078; lands: townland of Cloontra and barony of Tulla Lower; area: 9.7124 hectares; Clare Eileen McCaul; folio: 32225; lands: plot of ground being part of (2) the townland of (1) Ballyviniter, Ballyvorisheen in the barony of Fermoy and county of Cork; Cork Leader; folio: 32923; lands: plot of ground being part of the townland of Glenleigh in the barony of and county of Muskerry West Cork; 26156F; lands; plot of ground being part of the townland of Ballynakilla (ED Bear) in the barony of Bear and county of Cork; 29228F; lands: plot of ground being part of the townland of Regd owner: Michael Dillon; folio: Regd owner: Owen McCaul and and Margaret Regd owner: Timothy Regd owner: Kevin O’Byrne; folio; Regd owner: Neil Kelleher; folio: JULY 2006 JULY Co Carlow Co Cavan and Solicitor to Litigation, in Commercial may amount to Legal disputes. Legal el: +353 1 8416022 ax: +353 1 8416024 penalised in costs. & Clients may be Accredited Mediator T F MEDIATION ESMOND REILLY ailure to Mediate first, ownparks, Ballyhaise, Co Cavan; An effective alternative An effective F Road, Corbeagh, Cootehill, Co T area: folio: 8380; lands: Townparks; 4.3268 hectares; 3464F; lands: Clonmullen and barony of Forth; professional negligence, LOST LAND LOST LAND CERTIFICATES COMMERCIAL Centre for Effective Dispute Centre for Effective www.resolvitmediation.ie Resolution, London (CEDR) [email protected] RESOLVIT MEDIATION RESOLVIT Regd owner: Martin Ellis, Old Bridge Regd owner: Marie Plunkett, Registration of Title Act 1964 of Title Registration has been received from An application owners mentioned in the registered issue of a the schedule hereto for the for the land certificate in substitution issued in original land certificate in the respect of the lands specified certifi- schedule, which original land or inad- cate is stated to have been lost certificate vertently destroyed. A new is will be issued unless notification 28 days received in the registry within of this from the date of publication is in notice that the original certificate of some existence and in the custody registered person other than the Any such notification should owner. state the grounds on which the certifi- cate is being held. Central Office, Land (Register of Titles), Chancery Dublin Registry, Street, (Published 7 July 2006) Regd owner: Samuel Jacob; folio: www.lawsociety.ie LAW SOCIETY GAZETTE

PROFESSIONAL NOTICES 66 PROFESSIONAL NOTICES LAW SOCIETY GAZETTE JULY 2006

Kilcolgan Lower and barony of Iraghticonnor; Co Kerry LAW SOCIETY Regd owner: Denis J Reen, Sean O’Connor, Denis O’Dowd, Sean Kelly, Donal O’Nialain; folio: Gazette 29118F; lands: townland of Shanakill and parish of Tralee; Co Kerry PROFESSIONAL NOTICE RATES Regd owner: Michael Aylward; folio: RATES IN THE PROFESSIONAL NOTICE SECTION ARE AS FOLLOWS: 11959F; lands: Kilmakevoge and • Lost land certificates – €126 (incl VAT at 21%) barony of Ida; Co Kilkenny Regd owner: Richard Brennan and • Wills – €126 (incl VAT at 21%) Mary Brennan; folio: 7897F; lands: • Title deeds – €126 per deed (incl VAT at 21%) Knockanaddoge and barony of • Employment/miscellaneous – €126 (incl VAT at 21%) Fassadinin; Co Kilkenny Regd owner: Thomas McGovern, Drumarigna, Ballinamore, Co HIGHLIGHT YOUR NOTICE BY PUTTING A BOX AROUND IT – €30 EXTRA Leitrim; folio: 2375F; lands: Drumarigna, Lisroughty, Legana- All notices must be paid for prior to publication. CHEQUES SHOULD BE MADE PAYABLE mer, Leganamer, Drumarigna, and TO LAW SOCIETY OF IRELAND. Deadline for August/September Gazette: 18 August Leganamer; area: 4.3503 hectares, 2006. For further information, contact Catherine Kearney or Valerie Farrell on tel: 0.5414 hectares, 0.5362 hectares, 01 672 4828 (fax: 01 672 4877) 0.2784 hectares, 4.3503 hectares and 0.0214 hectares; Co Leitrim Regd owner: William Powell Harris; Co Meath Regd owner: Richard Quinn 19405F; lands: townland of folio: 10491F (parts 3017 and Regd owner: Fergus and Gena (deceased) and Nuala Quinn; folio: Moyneard and Garranroe and 21427); lands: townland of Meegan, 7 Park Drive, Grange 7151; lands: townland of barony of Eliogarty; Co Fairyfield Glebe and Fanstown and Rath, Dublin Road, Drogheda, Co Ballaghaderreen and barony of Tipperary barony of Kilmallock and Coshlea; Louth; folio: 40625F; lands: Colp Costello; area: 0.0385 hectares; Co Regd owner: Michael and Mary Co Limerick West; Co Meath Roscommon Stapleton; folio: 13559F; lands: Regd owner: Bernadette McGrath; Regd owner: Zuger Limited, First Regd owner: Paul Halford, Hugh townland of Windmill and barony folio: 6937; lands: townland of Floor, 14/15 Parliament Street, Regan and Michael Regan; folio: of Middlethird; Co Tipperary Ballinvana and barony of Coshlea; Dublin 2; folio: 8817F; lands: 9951F; lands: townland of Regd owner: David Whittle; folio: Co Limerick Cookstown; area: 0.3217 hectares; Mockmoyne and barony of Boyle; 8877F; lands: plot of ground situ- Regd owner: Mary Sheehy; folio: Co Meath Co Roscommon ate in the parish of St John’s 2762F; lands: townland of Regd owner: John McGoldrick; folio: Regd owner: Thomas P Devine; folio: Without, Division D, in the coun- Churchtown and parish of 26185; lands: Strokestown; area: 25691; lands: townland of ty borough of Waterford and Glenquin; Co Limerick 18.3084 hectares; Co Meath Ardkeenan and barony of county of Waterford; Co Regd owner: Mary Bridget O’Reilly; Regd owner: Patrick Boylan, Ardkeenan; area: (1) 2.3755 Waterford folio: 4258L; lands: townland of Drumboat, Inniskeen, Co hectares, (2) 1.6466 hectares, (3) Regd owner: James N Monahan and To oreen and parish of Coshma; Co Monaghan; folio: 16407; lands: 1.5280 hectares, (4) 1.9299 Ruth Monahan; folio: 3245; lands: Limerick Carrickykelly; area: 3.6522 hectares; Co Roscommon plot of ground being part of the Regd owner: John Flynn, hectares; Co Monaghan Regd owner: James Giblin (Junior); townland of Crooke in the barony Newtownforbes, Co Longford; Regd owner: John McQuaid, folio: 1446F; lands: townland of (1) of Gaultiere and county of folio: 4543; lands: Currygranny; Aghallisabeagh, Scotstown, Co to (8) Montiagh and barony of (1) Waterford; Co Waterford area: 10.8076 hectares; Co Monaghan; folio: 2398; lands: to (8) Leyny; area: (1) 2.8453 Regd owner: Terri Hennessy; folio: Longford Aghallisabeagh; area: 3.6168 hectares, (2) 0.3666 hectares, (3) 9297; lands: plot of ground being Regd owner: John Miley, Derrylough, hectares; Co Monaghan 3.7239 hectares, (4) 0.9028 part of the townland of (1) Kenagh, Co Longford; folio: 7167; Regd owner: David Edgar Noel hectares, (5) 5.1496 hectares, (6) Rathanny, (2) and (3) Carrigeen, lands: Derrylough; area: 1.6643 Greer, Drumleck North, 4.8663 hectares, (7) 0.4933 (4) Ballyvohalane, in the barony of hectares; Co Longford Castleblayney, Co Monaghan; hectares, (8) 2.8266 hectares; Co Decies without Drum and county Regd owner: Dan Kelly, Greenhall, folio: 10461; lands: Oram; area: Sligo of Waterford; Co Waterford Newtowncashel, Co Longford; 3.8167 hectares; Co Monaghan Regd owner: Arthur Pettipiece; folio: Regd owner: Edmond Flynn; folio: folio: 3137F; lands: Greenhall; Regd owner: Sean Mullen, Mullyera, 9346; lands: townland of 9505; lands: plot of ground being area: 5.5138 hectares; Co Tydavnet, Co Monaghan; folio: Cllonacurra and barony of part of the townland of Longford 11368F; lands: Mullyera; area: Tirerrill; area: 13.5974 hectares; Castlecraddock in the barony of Regd owner: Elizabeth F Evans- 0.273 hectares; Co Monaghan Co Sligo Middlethird and county of Tipping, Bellurgan Park, Regd owner: Peter Marron and Celia Regd owner: Eileen Brennan and Waterford; Co Waterford Ravensdale, Dundalk, Co Louth; Marron and Bridget Loughlin, James Anthony Brennan; folio: Regd owner: John Caulfield, folio: 22; lands: Bellurgan; area: Latinalbany, Carrickmacross, Co 1176 and 1192; lands: townland of Leecarrow, Knockcrockery, Co 3.8496 hectares; Co Louth Monaghan; folio: 16192; lands: Clogher and barony of Roscommon; folio: 9326F, 1429F; Regd owner: Irene Walsh (deceased); Latinalbany, Corrybrackan; area: Kilnamanagh Lower; Co lands: Grange South; area: 0.1214 folio: 8853F; lands: townland of 0.7208 hectares, 1.8818 hectares Tipperary hectares (folio 9326F); Co Drum (ED Knock South) and and 4.4827 hectares; Co Regd owner: Sean and Brigid Mary Westmeath barony of Costello; area: 0.1561 Monaghan Fogarty; folio: 25371 and 25372; Regd owner: Mary McManus, hectares; Co Mayo Regd owner: Joseph Dunne lands: townland of Moyneard and Moate, Co Westmeath; folio: Regd owner: Meath County Council, (deceased); folio: 7632; lands: barony of Eliogarty; Co 3848; lands: Curraghbrack, County Hall, Navan, Co Meath; Aghanvilla and barony of Tipperary Drinmore, Brittas and Drinmore; folio: 2204F; lands: Donacarney; Philipstown; Co Offaly Regd owner: Robert Manton; folio: area: 27.1418 hectares, 38.2074

www.lawsociety.ie 67 for all late of will be pleased to Kilroan, Glanmire, Co Cork, who Kilroan, Glanmire, any 2003. Would died on 29 August knowledge of the person having by the whereabouts of any will made contact above-named deceased, please 53 South JW O’Donovan, Solicitors, fax: 021 Mall, Cork; tel: 021 730 0200, 427 3704, email: [email protected] Northern Ireland agents contentious and non-contentious Dublin if matters. Consultation in envisaged. required. Fee sharing D&E Contact Norville Connolly, Hill, Solicitors, 8 Trevor Fisher, Newry; tel: 048 3026 1616, fax: 048 3026 7712, email: norville@dande- fisher.com London solicitors advise on UK matters and undertake Gallagher Shatter, Solicitors, 4 Upper Solicitors, Gallagher Shatter, 2; tel: 01 661 0317, Ely Place, Dublin fax: 01 661 1685 (deceased), Punch, Stefan MISCELLANEOUS www.lawsociety.ie late ebsite: W late of Glen uesday 19 September 2006 November/December 2006 Saturday2006 9 September T Saturday 4 November 2006 September/October 2006 01 672 4890. : Fax est, Kilmacthomas, Co Waterford. ould any person having knowledge ould any person having any knowl- late of which will commence on Thursday 5 October 2006, Heidleberg, Roebuck Road, Dublin Heidleberg, of the city of 14, and formerly any person Would Oshawa, Canada. of a will made by having knowledge deceased, who died the above-named 2006 at Saint Vincent’s on 27 April Park, Dublin 4, please Hospital, Elm McTiernan, contact Cusack Place, Solicitors, 6 Fitzwilliam ref: PC Dublin 2; tel: 01 676 2833; (otherwise Kathleen Foley, Catherine) (deceased), W W dated 22 of the whereabouts of a will by the February 1995, executed died on above-named deceased, who contact T 15 September 2004, please 17 Kiersey & Co, Solicitors, tel: 051 Catherine Street, Waterford; 874 366, fax: 051 870 390 McHugh, Michael (deceased), of 33 The Rise, Glasnevin, Dublin 9. W edge of any will, and in particular a will made 30 September 2003 by the above-named deceased, who died on 16 December 2003, please contact , late of 9 01 672 4802. : Co Wicklow Employment Law Tel (CORK) Autumn 2006 Limited; folio: 7066F; lands: town- Limited; folio: and barony of land of Kilbride Arklow; townland of 24344F; lands: barony of Arklow; Lamberton and Co Wicklow Robinstown (otherwise Rathangan), date of Duncormac, Co Wexford; any Would death: 4 November 2005. of a will person with any knowledge executed by the above-named November deceased, who died on 4 Hospital, General 2005 at Wexford White of please contact Feargal Coughlan White & Partners, Main Street, Newbridge, in the county of Kildare; tel: 045 433 4332, fax: 045 433 096, email: info@coughlansolici- tors.ie (otherwise Darcy) James D’Arcy, John (deceased), Cullen, Kathleen (deceased), Regd owner: Akaire Investments Regd owner: Thomas Fallon; folio: Regd owner: Diploma in (certificate) September/October 2006 (certificate) November 2006 WILLS the Law Society is please to announce the following courses: Co Co NEW details of your name, address and area of interest. JULY 2006 JULY Co Wexford Co Wexford Commercial ConveyancingDiploma in Property TaxLegal French Legal German Spanish Law Certificate in Trust andFinance Estate Law Planning Co Westmeath [email protected]. For further information and application forms, please access the diploma In addition to its section on the homepage of the Law Society’s website or email us giving section on the homepage of the Law Society’s website or DIPLOMA PROGRAMME ANNOUNCED Co Wexford Co Wexford Email: estmeath; folio: 5481; lands: estmeath; folio: estmeath; folio: 13559; lands: estmeath; folio: 13559; exford estmeath lands: Corbally and barony of Gorey; and Hermione Ruddell; folio: 13939; lands: Ballyshanock and barony of Scarawalsh; 6078; lands: Killann and barony of 6078; lands: Killann and barony Bantry; W folio: 2260F; lands: Ballaghablake East; and barony of Shelamliere Ranaghan; area: 12.3809 hectares Ranaghan; area: 12.3809 and 0.607 hectares; and 9048F; lands: Medophall barony of Scarawalsh; Ranaghan, Collinstown, Co Ranaghan, Collinstown, W W Cornamagh; area: 3.9355 hectares; Cornamagh; Co Westmeath hectares, 1.9728 hectares and hectares, 1.9728 7.9622 hectares; Athlone, Co Carrickobrien, W www.lawsociety.ie Regd owner: John Doyle; folio: 3207; Regd owner: Susan Braddell Smith Regd owner: Patrick Coakley; folio: Regd owner: Patrick Coakley; Regd owner: Daniel Deasy (deceased); Regd owner: Daniel Deasy Regd owner: Francis Burke; folio: Regd owner: Francis Burke; Regd owner: Joseph Bartley, Regd owner: Regd owner: Michael Macken, Regd owner: LAW SOCIETY GAZETTE

PROFESSIONAL NOTICES 68 PROFESSIONAL NOTICES LAW SOCIETY GAZETTE JULY 2006

agency work. We handle probate, liti- 2) Particulars of lease, the lessor under In the matter of the Landlord and gation, property and company/com- OFFICES TO LET which cannot be found or ascer- Tenant (Ground Rents) Act 1967 and mercial. Parfitt Cresswell, 567/569 tained (note C): lease dated 1 in the matter of a notice of inten- Fulham Road, London SW6 1EU; (4 Bridge Street, December 1944 between Minnie tion to acquire the fee simple (sec- DX 83800 Fulham Broadway; tel: City Gate, Dublin 8) Catherine Burton and Mary Hogan tion 4): an application by Allied 0044 2073 818311, fax: 0044 2073 1,200 sq ft net. for a term of 99 years from 29 Irish Banks plc 816723, email: arobbins@parfitts. Own door, mid terrace September 1943 to an apportioned Take notice that any person having co.uk rent of five punts per year. any interest in the freehold estate or office property arranged Take notice that the Very Reverend any superior interest in the following Grand Canal Docks – offices avail- over ground first and Matthew Cunningham PP and Paul premises: all that and those the prop- able. Solicitor with 1,500 square feet second floor with two car Morris, being the persons entitled to erty now known as AIB Bank, Main has approximately 750 square feet park spaces to the rear, acquire the fee simple in the above Street, Borrisokane, Co Tipperary, available for office-share arrangement available for letting”. land under the above act, require you being the property comprised in and in new Grand Canal Docks area. The to give, within one month after the demised by (a) an indenture of lease unit faces waterfront with natural Enq. F. Doyle service of this notice on you, the fol- dated 2 May 1842 and made between light. Available space includes two 086 2579628. lowing information: Thomas Towers of the one part and offices and shared use of open plan i) The name and address of the per- Joseph Laverite of the other part for a area for up to two full-size desk units son to whom the rent under the term of 999 years from 2 May 1863, with chairs, under-table pedestals etc. person receiving rent (section 7(2)) lease referred to in paragraph 2 is subject to the payment of a yearly rent The offices are modern and built to (see note A). To: Reps Minnie paid by you. of £5, and (b) an indenture of lease the latest specifications with a phone Catherine Burton, Duckett Estate, ii) The nature of the reversion vested dated 24 December 1907 and made system and internet connections Mason Hayes & Curran, Solicitors, in the person entitled to the between Gerard Higginbotham, already in place. Contact Donal on 6 Fitzwilliam Street, Dublin 2 immediate lessor’s interest (note Herbert Dell Littlewood Clarke, 087 230 8408 1) Description of land in respect of D). William Alexander Gardener, John which rent is received (note B): the iii) The name and address of the per- Rowland Cattle, George Frederick parcel of land with buildings there- son entitled to any superior inter- Cattle, Edward Arthur Clarke and on situate at and known as 14 est and the nature of the interest. Edwin Kennedy Hilton of the one part TITLE DEEDS Wellington Street and 1 to 4 Date: 7 July 2006 and the Munster and Leinster Banking Cahill’s Lane in the parish of Saint Signed: Paul Morris (solicitor for the Company Limited of the other part for In the matter of the Landlord and Mary’s, town and borough of applicant), Henry Shannon & Co, a term of 99 years from 1 May 1907, Tenant (Ground Rents) Act 1967: Clonmel, barony of Iffa and Offa Kickham Arch, Davis Road, Clonmel, Co subject to the payment of a yearly rent notice requiring information from a East and county of Tipperary. Tipperary of £2.

Publication of advertisements in this section is on a fee basis and does not represent an endorsement by the Law Society of Ireland.

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www.lawsociety.ie 69 : ke notice Ta Landlord and Landlord Landlord and Tenant Landlord , as amended, and in the mat- In default of any such notice being In default of enant (Ground Rents) Acts 1967- called upon to furnish evidence of called upon premises title to the aforementioned named within 21 days to the below of this notice. from the date T received, Karl Scully and Margaret received, Karl to proceed with the Scully intend the county regis- application before from the trar at the end of 21 days apply to date of this notice and will county of the county registrar for the directions the city of Dublin for such the basis as may be appropriate on beneficial- that the person or persons interest ly entitled to the superior in including the freehold reversion unknown the aforesaid premises are or unascertained. Date: 7 July 2006 McClafferty (solicitors Signed: Maguire Terrace, for the applicants), 8 Ontario Portobello Bridge, Dublin 6 In the matter of the 1978 ter of the that any person having any interest in the freehold estate of, or superior interest in, the following premises: all that and those the premises formerly known as Bayview House, North (Ground Rents) (No 2) Act 1978 Karl Scully and Margaret Scully (applicants); unknown and unascertained persons, being the successors in title to the interest of William Rice Meredith, Harriett Sherwood, Emily Sherwood, Elisa Sherwood, Marianne Atkinson, Louisa Johnson and Susan Butler Notice of application: , UDITORS Dublin 6W. A 7 Argus 7 Argus House, Harold’s Cross, Harold’s REGISTERED Bookkeeping and Bookkeeping CCOUNTANTS & CCOUNTANTS Phone: 01 4737455 please contact us at: Accountants Reports or Enquiries regarding Email: [email protected] A our Solicitor services, ake notice Specialists in Solicitor F CERTIFIED PUBLIC CERTIFIED T Greenmount Office Park, Greenmount Office TD Fitzpatrick Landlord and Landlord : Karl Scully Landlord and Landlord Landlord and Tenant (Ground and Tenant Landlord , as amended, and in the matter , as amended, and in the ake notice that the applicants, T In default of any such notice being In default of wamley of the one part and James enant (Ground Rents) Acts 1967- enant (Ground Rents) Acts enant (Ground Rents) (No 2) Act 1978 that any person having any interest in the freehold estate of or superior inter- est in the following premises: all that and those the premises at 49 North Strand Road, Dublin 3, in the parish of St Thomas, in the county of the city of Dublin, which said premises now con- sist of office premises known as number 49 North Strand Road, Dublin 3, being the property comprised in folio 70351L Co Dublin, held under an indenture of lease dated 20 November 1953 and made between Anne T McKay of the other part for a term of 215 years from 1 June 1953, subject to the yearly rent of £10 thereby reserved and the covenants and conditions therein contained. Karl Scully and Margaret Scully, being the persons entitled under sec- tions 9 and 10 of the T intend to submit an application to the county registrar for the county of the city of Dublin for the acquisition of the freehold interest and any interme- diate interest in the aforesaid proper- and any person asserting that they ty, hold a superior interest in the afore- said premises or any of them are T 1978 of the Rents) (No 2) Act 1978 and Margaret Scully (applicants); unknown and unascertained per- sons, being the successors in title to the interest of Anne Twamley Notice of application: date of this notice. Kennedy intends to received, Michael the application before the proceed with at the end of 21 days county registrar of this notice and will from the date county registrar for the apply to the for directions as may county of Offaly that the be appropriate on the basis entitled person or persons beneficially the to the superior interest including premises are freehold reversion in the unknown or unascertained. Date: 7 July 2006 (solicitor for Signed: Thomas W Enright Co Offaly the applicant), Birr, In the matter of the : an applica- Landlord and Landlord ou can also check out: current news; Y lawsociety.ie ake notice that any person having T rmounth, Isle of Wight, married rmounth, Isle of Wight, ullamore in the county (lessees), enant Acts 1967-2005 lawsociety.ie. tion by Michael Kennedy of Church tion by Michael Kennedy Offaly Co Birr, Street, Kinnity, more All that and those the property a certain particularly described in 9 May 1994 indenture of lease dated Cecile and made between Marguerite of Marina Elizabeth Alexander Ya woman, and Maud Mary Gertrude in Bernard of Castle Bernard, Kinnity, spinster (lessors), the county of Offaly, and P and H Egan Limited of T which said property is more particular- ly delineated on the map referred to therein and thereon endorsed and sur- rounded by a red verge line e and known as number 1 Church Street, and described as being Kinnity, “bounded on the north by William premises and on the west by Peavoy’s Church Street, townland of barony of Ballybritt and Lismooney, county of Offaly”. any interest in the freehold estate or any superior leasehold estate in the fol- lowing property: number 1, Church in the county of Birr, Street, Kinnity, the said freehold of the proper- Offaly, the subject matter of this application ty, was initially held from the Bernard Estate, formerly of Kinnity Castle, notice Take Co Offaly. Birr, Kinnity, that the said Michael Kennedy has sub- mitted an application that the county registrar for the county of Offaly for the acquisition of the freehold interest and any party in the aforesaid property, asserting that they hold a superior interest in the aforesaid premises are called upon to furnish evidence of title to the aforementioned premises to the below named within 21 days from the and will apply to the county registrar and will apply of Dublin for directions for the county on the basis that as may be appropriate persons beneficially enti- the person or interest including tled to the superior reversion in the aforesaid the freehold unknown or unascer- premises are tained. Date: 7 July 2006 (solicitor for Signed: George C McGrath Terrace, the applicant), 11 Clanwilliam Dublin 2 In the matter of the T : an JULY 2006 JULY and in the Landlord and Landlord Landlord and Tenant Landlord eaders can access back issues of the magazine as far back as Jan/Feb 1997 r ake notice that Irish Banks Allied Gazette GET MORE AT ake notice that Kevin Ryan intends ake notice that Kevin Ryan And further take notice that, in And further take notice T In default of any such notice being T right up to the current issue at forthcoming events; employment opportunities; courses, as well as lots of the latest CPD other useful information. ipperary for directions as may be ipperary for directions as ake notice that any person having an enants Acts 1967-1994 www.lawsociety.ie LAW SOCIETY GAZETTE received, the applicant, Kevin Ryan, intends to proceed with the application before the county registrar at the end of 21 days from the date of this notice to submit an application to the county registrar for the county of Dublin for the acquisition of the freehold interest and any party in the aforesaid property, asserting that they hold a superior interest in the aforesaid premises are called upon to furnish evidence of title to the aforementioned premises to the below named within 21 days of the date of this notice. plc intends to apply to the county reg- plc intends to for county of Tipperary istrar of the of the freehold interest the acquisition Any party property. in the aforesaid they hold a superior asserting that aforesaid premises are interest in the furnish evidence of title called upon to to the to the aforementioned premises from the below named within 21 days date of this notice. being default of any such notice plc intends received, Allied Irish Banks before to proceed with the application county of the county registrar for the T the person appropriate on the basis that to the or persons beneficially entitled the freehold superior interest including premises are reversion in the aforesaid unknown or unascertainable. Date: 7 July 2006 (solicitors for Signed: Joynt & Crawford Dublin the applicant), 8 Anglesea Street, 2 In the matter of the T matter of the (Ground Rents) (No 2) Act 1978 application by Kevin Ryan T interest in the freehold estate of the fol- lowing property: all that and those that piece or parcel of ground with dwelling house and premises erected thereon and formerly known as no 33 South Circular Road, Portobello, situate in the parish of St Peter and city of Dublin and which said premises are now known as no 61 South Circular Road, Portobello.

PROFESSIONAL NOTICES 70 PROFESSIONAL NOTICES LAW SOCIETY GAZETTE JULY 2006

Strand Road, Dublin 3, in the parish of St Thomas in the county of the Look to the West! city of Dublin, which said premises RECRUITMENT NOTICE Highly motivated individual with now consist of office premises known The Employment Equality Acts of years of post-qualification 20 years’ industrial experience as number 49A North Strand Road, 1998 and 2004 prohibit dis- experience (PQE) sought might urgently seeks traineeship. Dublin 3, being the property more Honours law graduate and all crimination in employment on reasonably be understood to particularly shown edged red on the FE1s complete. Technical back- nine grounds, which are: gen- indicate an intention to dis- map attached to an indenture of ground and also some limited der, marital status, family sta- criminate on the ground of age, assignment dated 12 April 1990 made legal experience. Living in the between Patrick O’Donnell of the tus, religion, membership of contrary to section 10 of the west but any area of the country one part and Workstations Limited of the Traveller Community, dis- acts. considered. Please contact: 087 the other part, held under an inden- ability, sexual orientation, race The Law Society Gazette 633 7529 or 091 701 172 ture of lease dated 5 September 1868 and age. therefore will not accept recruit- and made between William Rice Recruitment is a key area in ment advertising that could Meredith, Harriett Sherwood, Emily terms of access to employ- reasonably be understood to Assistant solicitor required for con- Sherwood, Elisa Sherwood, ment. As such, the Law Society include an intention to discrimi- veyancing and probate, minimum two Marianne Atkinson, Louisa Johnson Gazette seeks to ensure that nate on any of the above nine years’ PQE. Reply to Regan McEntee and Susan Butler of the one part and recruitment competitions do grounds, including the setting & Partners, Solicitors, High Street, George Russell Price of the other not discourage applications of upper limits on PQE. Trim, Co Meath; email: chiggins@ part, for a term of 300 years from 5 from applicants on any of the To ensure that there is no reganmcentee.ie September 1868, subject to the year- above nine grounds. breach of this code, we have ly rent of £36 thereby reserved and There is generally a clear contacted all of our recruit- County Dublin: general practice the covenants and conditions therein correlation between years of ment advertisers, making solicitor required for progressive, contained. experience and age. Imposing them aware of the need to expanding law firm near Liffey Take notice that the applicants, a maximum limit on years of comply with the employment Valley, Dublin 20. Up to three years’ Karl Scully and Margaret Scully, experience might reasonably equality legislation. No selec- experience preferred but not essential being the persons entitled under sec- be understood to discriminate tion or recruitment advertis- for the right candidate. Excellent tions 9 and 10 of the Landlord and conditions and environment. Apply against older employees. As a ing will be published in the Tenant (Ground Rents) (No 2) Act in writing to Claire O’Brien, Sherrys, result, advertisements for Gazette that includes refer- 1978, intend to submit an application Solicitors, 11 Palmerstown Avenue, positions that set maximum ences to maximum limits on to the county registrar for the county Palmerstown, Dublin 20; email: of the city of Dublin for the acquisi- limits in relation to the number years of experience. [email protected] tion of the freehold interest and any intermediate interest in the aforesaid Solicitor with some clientele: wish- property, and any person asserting known as The Ducking Stool, and RECRUITMENT ing to establish general practice in that they hold a superior interest in which was formerly known as The Dublin 2, offered office on reasonable the aforesaid premises or any of them White Star, situate at Main Street, terms. Reply to box no 62/06 are called upon to furnish evidence of Belturbet, Co Cavan (hereinafter Solicitor required for busy West of title to the aforementioned premises referred to as ‘the premises’). Ireland practice. Experience desirable Solicitor required for conveyancing to the below named within 21 days Ta ke notice that John and Kay but not essential. Enquiries with cur- and probate. General practice in from the date of this notice. Campbell intend to submit an appli- riculum vitae to Edward Fitzgerald & Killarney, Co Kerry. The position In default of any such notice being cation to the county registrar for the Son, Solicitors, Main Street, offers an opportunity for career devel- received, Karl Scully and Margaret county of Cavan for the acquisition of Ballinrobe, Co Mayo opment. Reply to box no 61/06 Scully intend to proceed with the the freehold interest in the aforesaid application before the county regis- property, and any party asserting that Solicitor required for rural general Legal secretary required for general trar at the end of 21 days from the they hold a superior interest in the practice; probate and litigation in par- practice in Dublin 8, minimum two date of this notice and will apply to aforesaid premises are called upon to ticular. West Limerick area. Please years’ experience in conveyancing. the county registrar for the county of furnish evidence of title to the afore- reply to box no 60/06 Reply to box no 63/06 the city of Dublin for such directions mentioned premises to the below as may be appropriate on the basis named within 21 days of the date of Solicitor available for part-time that the person or persons beneficial- this notice. position with four years’ PQE in gen- ly entitled to the superior interest In default of any such notice being eral practice, particular experience in CONNOLLY LOWE, Legal including the freehold reversion in received, the applicants, John and Kay residential conveyancing. Dublin area. Costs Accountants have the aforesaid premises are unknown Campbell, intend to proceed with the Please contact: 086 841 1062 vacancies for qualified or unascertained. application before the county regis- and/or trainee Legal Date: 7 July 2006 trar at the end of 21 days from the Solicitor seeks locum position in Costs Accountants. Signed: Maguire McClafferty (solicitors date of this notice and will apply to Dublin area. Has two years’ PQE in for the applicants), 8 Ontario Terrace, the county registrar for the county of general practice and criminal defence. Excellent salary and Portobello Bridge, Dublin 6 Cavan for directions as maybe appro- Also has 25 years’ experience in the prospects for priate on the basis that the person or civil service. Computer literate. Tel: 01 suitable candidates. In the matter of the Landlord and persons beneficially entitled to the 668 6901 Apply with CV to Tenants Acts 1967-1994 and in the superior interest including the free- Teri Gray, Connolly Lowe, matter of the Landlord and Tenant hold reversion in the aforesaid prem- John McGale Kelly & Company of Legal Costs Accountants, (Grounds Rents) (No 2) Act 1978: an ises are unknown or unascertained. 26 John Street, Omagh, Co Tyrone, 3 Inns Quay, Dublin 7. application by John and Kathleen Date: 7 July 2006 Northern Ireland, require a solicitor FAX 01 6779466 Campbell Signed: HL Fitzpatrick & Co (solicitors with 2/3 years’ conveyancing experi- or e-mail Take notice that any person having an for the applicants, John and Kay ence for cross-border practice. € nego- [email protected] interest in the freehold estate or any Campbell), Church Street, Ballyconnell, tiable. Contact: 048 822 43621 or intervening estate in the property Co Cavan email: [email protected]

www.lawsociety.ie 71 LAW SOCIETY GAZETTE JULY 2006 RECRUITMENT

IRELANDS FASTEST GROWING LEGAL RECRUITMENT AGENCY

AT STELFOX LEGAL WE PRIDE CURRENT OPPORTUNITIES INCLUDE: OURSELVES IN THE FACT THAT

WE ARE A LEGAL RECRUITMENT Private Practice ■ Investment Funds Lawyer. Dublin. €70,000+ ■ AGENCY RUN BY LEGAL PEOPLE Corporate Lawyer – Mid Tier firm. Dublin. A well-established large law firm has a rare vacancy for €75,000. FOR LEGAL PEOPLE. A DIVISION an investment funds lawyer with a minimum of three Solicitor with a minimum of three years experience years experience both advising on and establishing RUN BY SOMEONE WITH FIVE required for a Corporate Department of successful, investment funds. This role offers an exceptional YEARS LEGAL EXPERIENCE WE well known law firm. Role encompasses dealing working atmosphere as well as very attractive benefits with joint ventures, mergers and acquisitions etc. in this city centre location. KNOW THE DEMANDS OF BOTH Must have outstanding client focus and strong THE INDUSTRY AND THE PEOPLE business acumen. Experience in a medium/large ■ Conveyancing Solicitor. Donegal. € Variable. firm a distinct advantage. WHO WORK IN IT. WE CANNOT Highly regarded firm in Donegal has an opening for a solicitor with any level of experience mainly in STRESS ENOUGH HOW ■ Litigation Solicitor – Wexford. Conveyancing. Experience in family law and probate € SERIOUSLY WE RESPECT BOTH Market leading salary. would be an added advantage but not deemed Mid sized progressive practice in Wexford looking necessary. CANDIDATES AND CLIENTS to recruit a solicitor for a varied litigation position. CONFIDENTIALITY. WITH Role encompasses PI, Family Law and Commercial In House Roles Litigation. Ideally around 3 years experience ■ € STELFOX LEGAL, YOU’RE IN THE In House Legal Advisor. Dublin South. 55,000+ required for this busy practice. Excellent salary and International Investments Management Company in DRIVING SEAT. benefits including 25 days holidays per year. Dublin city centre is looking to recruit a lawyer with around two years experience to begin as Legal Advisor. ■ Construction Lawyer – Top Tier firm. Dublin. A background in Corporate/Commercial law is WE HAVE A NUMBER OF €85,000+ necessary with experience of funds and asset POSITIONS FOR ALL LEVELS OF Construction lawyer with experience in both management an added advantage. Excellent location. contentious and non-contentious construction law, LAWYERS AS WELL AS skilled at advising private developers and public ■ In House Solicitor. Dublin South. €55,000+ EXPERIENCED SUPPORT STAFF. sector bodies in all elements of construction law. Life Assurance Company in South Dublin are seeking a Must be familiar with FIDIC type contracts and solicitor with circa two years experience to work in public procurement procedures. Min of four years their Legal Department. This role is mainly litigation experience with genuine career development based with a strong focus on general support to the opportunities with this highly reputable firm. legal department. Excellent salary and benefits.

■ Banking Solicitor – Top Tier firm. Dublin. ■ In House Legal Manager. Dublin West. €90,000+ €85,000+ Rapidly expanding software company in Dublin City Candidate with particular experience in property are looking for a solicitor with a minimum of five years based commercial lending within the banking law experience to provide legal counsel and contract sector required for this leading firm in Dublin. administration services. Experience in drafting and Candidate will have experience of structure and tax negotiating complex commercial contracts, dealing based lending transactions and in advising lenders. with government contracts and dealing with IP Must have impressive track record in this field. agreements. Excellent career advancement opportunities within this firm. Support Roles ■ Legal Executives, Legal Secretaries, Company ■ General Practice Solicitor – Carlow. € Negotiable Secretarial Reputable firm in Carlow seeking to hire a solicitor We have a constant stream of support roles available with mainly residential conveyancing experience. with firms right across the Greater Dublin Area. These General practice and commercial property are with firms of all sizes from small practices to top experience a distinct advantage. Genuine career tier firms. Market leading salaries and benefits progression prospects within this firm. packages.

If you are interested in finding the right position in the right firm with an agency who genuinely respects your need for confidentiality contact Stephen Kelly B.A., LL.B. at Stelfox Legal on (01) 679 3182 or email your CV to [email protected] Log on to our new website for more opportunities www.stelfox.ie

72 www.lawsociety.ie RECRUITMENT LAW SOCIETY GAZETTE JULY 2006

www.lawsociety.ie 73 LAW SOCIETY GAZETTE JULY 2006 RECRUITMENT

Readymix plc General Counsel Company Profile • Ensure the Group is properly represented in all litigation pro- Readymix plc is a major supplier of ready mixed concrete, blocks, mor- ceedings and claims by or against it. tar, precast concrete products and aggregates on the Island of Ireland. • Select, supervise and manage external legal advisors. The Company also operates in the Isle of Man and in the UK. CEMEX S.A., the parent company of Readymix plc, was founded in The Person Mexico in 1906, and has grown into a global industry leader producing, Essential distributing and marketing cement, ready mixed concrete, aggregates • Possession of a good degree (minimum of 2:1). and related building materials, in over 50 countries worldwide. • Qualified Republic of Ireland Solicitor or Barrister. A vacancy exists for the position of General Counsel in Readymix •Minimum of 5 years post qualification experience in Private plc based in Dublin. The successful candidate will report to the Practice or in a Corporate Environment. Finance Director. • Excellent communication, presentation and negotiating skills. • IT skills. The Role • Must be commercially focused •To ensure the provision of support and advice to the Board and •To take stand-alone responsibility when required while working Senior Management on all legal aspects generated by the well as a Team Member. Group's business to include but not limited to: commercial con- •A full driving licence. tracts, corporate law matters, dispute resolution, business • Flexibility towards travel and hours worked. sales and acquisitions, real estate/property, competition, town Desirable and country planning and other regulatory issues. • Knowledge of legal systems in NI, GB and Isle of Man • Draft, review and negotiate a wide range of commercial con- tracts, agreements and related documentation. Applications should be made in writing to:- •Provide legal input into business acquisitions and joint ven- Ms Helen Bennett, Human Resources Director, Readymix plc, Block A1, tures. East Point Business Park, Dublin 3. email: [email protected] • Risk management and corporate compliance issues. •To provide legal management in the resolution of commercial Closing date for receipt of applications is close of business on Friday, disputes. 21st July 2006

An Equal Opportunity Employer

74 www.lawsociety.ie

LAW SOCIETY GAZETTE JULY 2006 RECRUITMENT

CORPORATE SOLICITOR (1+ YEARS PQE) DUBLIN €55-65K Our client, a leading commercial firm is looking for a corporate solicitor. The successful candidate will provide legal advice to public and private clients on M & A, Privatisation, IPO and MBO matters. FUNDS SOLICITORS (ALL PQE) DUBLIN €NEGOTIABLE Our client, an established company with a growing funds department is now looking for solicitors to join its funds team. Ideally you will have experience in a similar environment but enthusiastic candidates from other practice areas will be considered. IN-HOUSE COMMERCIAL CONVEYANCING SOLICITOR DUBLIN TO €80K Our client, a semi-state body is looking to appoint a legal advisor with a minimum of 3 years PQE to join its legal team. Experience of commercial leases as well as landlord and tenant issues required. BANKING / FINANCIAL SERVICES SOLICITOR DUBLIN TO €100K Our client, a prestigious practice require a solicitor to join its Banking team. You will have experience in general cor- porate banking, securitization and structured finance issues in a large or leading mid tier firm. Excellent career opportunities for the right candidate.

For information COMPANY SECRETARY (SNR AND JNR) DUBLIN €NEG on these vacancies Our client, a leading commercial practice is looking for a Junior and a Senior Company Secretary to join its Company or to discuss Secretarial team. Ideally you will have experience of attending client company meetings and drafting relevant com- other career pany documentation. opportunities, IN-HOUSE FINANCIAL SERVICES SOLICITOR (2+ YEARS PQE) DUBLIN €60-70K please contact A major international bank has a fantastic opportunity for a solicitor to join its in-house legal team. You will have expe- John Cronin rience in the area of banking, either in-house or in practice. Solicitor. LEGAL EXECUTIVE DUBLIN €30-40K PRC Recruitment Our client is searching for an experienced Legal Executive in conveyancing/commercial for its Dublin City Centre office. Limited, 11 Hume Street, Dublin 2. LEGAL SECRETARIES DUBLIN €NEG Tel: 01-6381020 A number of permanent positions for secretaries working in large and small practices. Secretaries within the follow- or e-mail ing areas: Conveyancing, Litigation, Banking, Finance and/or Commercial. Excellent PC and Typing/Dictaphone [email protected] skills needed.

COURTS AND COURT OFFICERS ACTS 1995 – 2002 JUDICIAL APPOINTMENTS ADVISORY BOARD IS YOUR FIRM LOOKING FOR Appointment of Ordinary Judge of the District Court THE BEST LEGAL STAFF? Notice is hereby given that applications are invited from practising bar- risters and solicitors who are eligible for appointment to the Office of Ordinary Judge of the District Court for a vacancy that is due to arise in the District Court. Look no further! Those eligible for appointment and who wish to be considered should apply in writing to the Secretary, Judicial Appointments Advisory Board, Phoenix House, 15/24 Phoenix Street North, Smithfield, Dublin 7, for a copy of the relevant application form. Advertise your vacancies in the

Applicants whose applications are currently on file need not reapply for Law Society Gazette, the only magazine this pending vacancy. that has 100% penetration of the Irish The closing date for receipt of completed application forms, in rela- tion to this advertisement, is 5p.m. on Friday 28th July, 2006. legal market.

It should be noted that The Standards in Public Office Act, 2001 prohibits the Board from recommending a person for judicial office unless the per- son has furnished to the Board a relevant tax clearance certificate (TC4) MORE THAN 100 JOBS that was issued to the person not more than 18 months before the date of a recommendation. ADVERTISED IN THIS ISSUE

Applicants may, at the discretion of the Board, be required to attend for interview. Talk to Seán Ó hOisín Canvassing is prohibited. about your advertising needs on Dated the 6th July, 2006. 01 837 5018, 086 811 7116 Brendan Ryan BL Secretary or email: [email protected]. Judicial Appointments Advisory Board

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