LAW SOCIETY
Gazette€3.75 July 2007
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INSIDE: ADVERTISING CAMPAIGN • SOLICITORS IN THE DÁIL • MANSLAUGHTER REDEFINED? • LETTERS
LAW SOCIETY GAZETTE JULY 2007 CONTENTS
On the cover LAW SOCIETY Every time Eastenders’ Phil Mitchell gets hauled in by the Old Bill, he won’t say nuthin’ till he sees his brief. But what Gazette advice should a lawyer give to Gazette a client suspect? July 2007 PIC: GETTY IMAGES
Volume 101, number 6 Subscriptions: €57 REGULARS 5 President’s message 7 News Comment 13 13 Letters 14 Viewpoint: does the 2004 Social Welfare Act discriminate against society’s most vulnerable? Analysis 17 17 News feature: collaborative lawyers in bakery shocker! 18 Human rights watch: deportation and the ECHR 18 18 One to watch: Disability Act 2005 (Part 2) Practice doctor 42 Managing your time – did you do your ‘ecker’? People and places 43 Loads and loads of stuff! 50 Student spotlight Book review 51 Irish Maritime Law Briefing 52 52 Council report 53 Practice notes 43 54 Legislation update: 16 May – 18 June 2007 57 Solicitors Disciplinary Tribunal 58 Firstlaw update 61 Eurlegal: repackaging parallel imports 65 Professional notices 70 Recruitment advertising Editor: Mark McDermott. Deputy editor: Dr Garrett O’Boyle. Designer: Nuala Redmond. Editorial secretaries: Catherine Kearney, Valerie Farrell. For professional notice rates (lost land certificates, wills, title deeds, employment, miscellaneous), see page 65. Commercial advertising: Seán Ó hOisín, 10 Arran Road, Dublin 9; tel: 01 837 5018, fax: 01 884 4626, mobile: 086 811 7116, email: [email protected]. Printing: Turner’s Printing Company Ltd, Longford. Editorial board: Stuart Gilhooly (chairman), Mark McDermott (secretary), Pamela Cassidy, Paula Fallon, Michael Kealey, Mary Keane, Aisling Kelly, Patrick J McGonagle, 44 Ken Murphy, Philip Nolan, William Prentice.
2 www.lawsociety.ie CONTENTS LAW SOCIETY GAZETTE JULY 2007
Get more at lawsociety.ie PROFESSIONAL NOTICES: send your small advert details, with payment, to: Gazette Office, Blackhall Place, Dublin 7, tel: 01 672 4828, or email: [email protected]. Gazette readers can access back issues of the ALL CHEQUES SHOULD BE MADE PAYABLE TO: LAW SOCIETY OF IRELAND. magazine as far back as Jan/Feb 1997, right up to the current issue at lawsociety.ie. COMMERCIAL ADVERTISING: contact Seán Ó hOisín, 10 Arran Road, Dublin 9, tel: 01 837 5018, fax: 884 4626, mobile: 086 811 7116, email: [email protected] You can also check out: • Current news HAVE YOU MOVED? Members of the profession should send change-of-address • Forthcoming events, including LRC public details to: IT Section, Blackhall Place, Dublin 7, or to: [email protected] consultation on law reform on 18 July Subscribers to the Gazette should send change-of-address details to: • Employment opportunities Gazette Office, Blackhall Place, Dublin 7, or to: [email protected] • The latest CPD courses HOW TO REACH US: Law Society Gazette, Blackhall Place, Dublin 7. … as well as lots of other useful information Tel: 01 672 4828, fax: 01 672 4877, email: [email protected]
FEATURES COVER STORY: 22 The sound of silence The 2007 Criminal Justice Act allows for adverse inferences to be drawn from a suspect failing to mention matters subsequently relied upon in their defence. Diarmuid Collins asks what this might mean in practice Dangerous liaisons 26 The LRC’s consultation paper on involuntary manslaughter makes provisional recommendations that could lead to a redefinition of ‘unlawful and dangerous act manslaughter’. Jane Mulcahy opens the dictionary Go, move, shift 30 Tenants may appear to have a right to a new tenancy, but landlords may have a way out. As the law stands, avoiding the grant of a new tenancy is possible. Andrew Sexton calls the bailiffs Living the ethos? 33 The winning entry in this year’s Law Reform Student Essay 30 Competition is abridged here by the author, Mark Coen You’ve been terminated 36 Employers must consult with employees before terminating contracts of employment and cannot implement redundancies until at least 30 days from the start of the consultation process. Ian Moore examines employers’ responsibilities Canterbury tales 39 At a recent meeting in Canterbury of the education committees of the law societies of Ireland, England and Wales, Scotland, and Northern Ireland, Dominic Dowling’s paper won many plaudits and is abridged here by the author
The Law Society of Ireland can accept no responsibility for the accuracy of contributed articles or statements appearing in this magazine, and any views or opinions expressed are not necessarily those of the Law Society’s Council, save where otherwise indicated. No responsibility for loss or distress occasioned to any person acting or refraining from acting as a result of the material in this publication can be accepted by the authors, contributors, editor or publishers. The editor reserves the right to make publishing decisions on any advertisement or editorial article submitted to this magazine, and to refuse publication or to edit any editorial material as seems appropriate to him. Professional legal advice should always be sought in relation to any specific matter. Published at Blackhall Place, Dublin 7, tel: 01 672 4800, fax: 01 672 4877. Email: [email protected] Law Society website: www.lawsociety.ie 36
www.lawsociety.ie 3
PRESIDENT’S MESSAGE LAW SOCIETY GAZETTE JULY 2007 Upholding the right to freely choose a lawyer
any of you will have seen the the Law Society, we are public information campaign constantly being told carried out in various newspapers that people who feel recently by the Law Society. This their rights have been M is in response to repeated calls by infringed are reluctant to our members over the years to have us promote the take cases because of work and the value of solicitors within the some stigma that has community. been portrayed, either in There will be divided opinion as to whether the the media or elsewhere. Law Society should engage in this type of campaign The Law Society will or not. There will also be many views on the nature never condone improper and content of any campaign. It seems to be the or exaggerated claims. It case that the one thing that many people consider will, however, constantly fight for the rights of “In recent themselves expert on is public relations. individuals to be represented by lawyers of their times, there The decision to go ahead was taken only after the choice in the vindication of their rights. A person most careful thought and discussion, and after the always has the right to employ a solicitor or has been a most detailed external advice was obtained. It is an barrister – or not. The public will never hear the concerted innovative and modern campaign. It is designed to Law Society advising them not to consult an draw attention to the profession. We could have independent professional for advice and assistance effort by gone for a predictable and safe option that might and, thus, there is nothing unusual in the Law various groups even have been considered boring. We will shortly Society promoting the services of solicitors to the be assessing the effect of the campaign and this general public. to discourage assessment will form the basis of our views for any However, the public should be very wary when people from future activities. individuals or bodies constantly try to assert the Our members have also been concerned that, in proposition that one need not necessarily employ a taking their recent times, there has been a concerted effort by lawyer. If one could guarantee that a client’s rights case to court” various groups to discourage people from taking would never be infringed, then lawyers would not be their case to court. Hardly a week goes by without necessary, but this situation is not likely to occur any somebody saying to me that the Law Society should time soon. When a solicitor is employed by a do something to redress this imbalance. It is the person, that individual’s rights are paramount to the case that victims – and I am not simply referring solicitor. It is a pillar of our democracy that the here to personal injury cases – have rights too. public should be allowed choose their lawyer without let or hindrance from any other source. Victim compensation This is a fact that those who would prefer to see Very often, the only way that one can redress a people go unrepresented would do well to wrong is to offer a victim compensation. remember. Sometimes a combination of a rights-based judgment and compensation is the answer. There Philip M Joyce are over 10,000 solicitors on the roll in Ireland. In President
www.lawsociety.ie 5 MEDIATION AND DISPUTE RESOLUTION IN IRELAND FRIARYLAW CIVIL & COMMERCIAL PROGRAMME: Waterford, Wednesday 19th– Saturday 22nd September 2007 FRIARYLAW ONE DAY MEDIATION FORUM: Galway, Wednesday 26th September 2007
“Disputes arise in business; how they are commercial society is embracing new and • On April 1st 2005 Friarylaw was appointed by the Minister and dealt with can determine an undertaking’s innovative forms of dispute resolution. Department of Justice as a nominating body under section 15 of ultimate success or failure. Mediation has Recent legislative change at national ( Civil the Civil Liability and Courts Act, 2004. emerged in Ireland as one of the most effec- Liability and Courts Act, 2004 & Statutory • ADR Group was the first mediation trainer and service provider in tive forms of dispute resolution. Its advan- Instrument S.I. No. 2 of 2004 Superior Court the EU to receive ISO9002 accreditation. tages over litigation, arbitration or other forms Rules regarding Commercial Proceedings) and • The training course satisfies 35 hours of the Law Society of of dealing with disputes include: at EU level (pending EU Mediation Directive Ireland’s CPD requirements. • More Economical 2007) underpin the emergence of Mediation • Rapid Settlement as an essential tool in the fast and efficient • Areas of application include: General Civil and Commercial, • Mutually Satisfactory Outcomes resolution of civil and commercial disputes in Personal Injury and Clinical Negligence, Employment, Construction • High Rates of Compliance and Client this jurisdiction also. Sophisticated clients are and Engineering, Banking and Financial Services, Insurance, Satisfaction increasingly aware of the benefits of media- Professional Accounting and Related Services Disputes and • Comprehensive and Customised Agree- tion; namely, a speedier and more cost effi- Environmental Disputes, Matrimonial, Divorce. ments cient method of dispute resolution with the • Friarylaw Mediation Case Management (Friarylaw MCM) is a unique • Greater Degree of Control and Pre- preservation of valuable civil and commercial service offering in Ireland. Friarylaw MCM manages and administers dictability of Outcomes relationships.” Civil, Commercial and Family Mediations from the date of their notifi- • Preservation of an Ongoing Relationship cation to Friarylaw MCM to the conclusion of the proceedings by the or Termination of a Relationship in a more Friarylaw & ADR Group provide the most com- parties in an agreed and formally mediated settlement Amicable Way prehensive Mediation training, professional • Workable and Implementable Decisions accreditation and case management services • Mediated Agreements are Better than in this jurisdiction. Friarylaw administer a The course will be presented by ADR Group, Simple Compromises or Win/Lose structured pupilage programme for our Oliver J Connolly BL FCIArb and the Friarylaw team. Outcomes accredited mediators and we are committed • Decisions that Hold Up Over Time to assisting in the development of mediation If you require any further information please call practice of our panel members. the Friary at tel 8728405, email at admin@the As a result of recent experience in both the UK friary.ie or visit the website at www.friarylaw.ie (by reason of the impact of ADR in the new Training as a mediator with Friarylaw will: Civil Procedure Rules) and the US (by reason • Enhance your professional skill set of the impact of ADR cases going to trial in • Obtain Mediator Accreditation Friary Chambers, The Friary, Bow Street, Dublin 7. New York are at a 40 year low), Irish civil and • Develop a Mediation Practice Tel: 01 872 8405. Fax: 01 872 8409 Email: [email protected]. Web: www.friarylaw.ie NEWS LAW SOCIETY GAZETTE JULY 2007 nationwide
Send your news to: Law Society Gazette, Blackhall Place, Dublin 7, or email: [email protected]
■ WATERFORD on the roll. ‘Cushy’ number The DSBA hosted its annual Waterford Law Society hosted a dinner for senior colleagues – special event to honour two some of whom have been serving eminent members, Edward King the legal world since 1957. and John Goff. The so called President David Bergin and ‘Cushion Dinner’ was held to members of the DSBA Council recognise their half century of attended. practice in the county and to Dun Laoghaire solicitors acknowledge appreciation by gathered in large numbers for a their colleagues for instituting town-hall event, organised by the mandamus proceedings and Waterford Law Society recently recognised a half century of practice by DSBA, and attended by John Goff and Edward King (l to r): John PC Goff (senior), Secretary of providing cushions for the the Waterford Law Society Rosie O’Flynn, John Goff (junior), President of President of the Law Society courthouse. the Waterford Law Society Morette Kinsella, Niall King and Edward King Philip Joyce and director general The well-attended dinner was Ken Murphy. They took hosted by bar association contested. It was obvious from wife Ann, and newly-appointed soundings on the issues of the president Morette Kinsella and the outset, however, that WIT judge Tony Hunt (Circuit day, and the current media was held in the delightful Tan- (proponents of the motion) had Court), who sat in Wexford the campaign in particular. nery. Those attending included thoroughly done their same week. Meanwhile DSBA President John PC Goff (senior) and John homework, while UCC adopted Bar association president David Bergin is putting the (junior) (Nolan Farrell & Goff), a more relaxed, mace-style Helen Doyle and secretary John finishing touches to the Secretary of the Waterford Law approach. Garahy recently attended a arrangements for his conference, Society Rosie O’Flynn (Peter “We are over the moon to meeting of the Court Users’ which takes place in Bordeaux in O’Connor & Son), Niall King have won. As law students in Group, chaired by Gerry the second week in September. (JF Williams & Co), E Hegarty, WIT, we feel we are as good as Nugent. Says Helen: “These are It’s purely coincidental, of course, M Moloney, A Thompson, Fiona any law students in any Irish very useful meetings for keeping that the Rugby World Cup takes Fitzgerald (Neil J Breheny & university and we have proved it us and the profession informed, place at the same time! Places are Co), Kenneth Cunningham tonight,” said Waterford team as there are many changes taking filling fast. Anyone interested (Newell Quinn Gillen), Liz member and president of WIT place in Wexford and ongoing should contact David as soon as Dowling (MM Halley & Son), Law Society, Roisin O’Shea. Best works with the four courthouses possible. Bernadette Cahill (BM Cahill & individual speaker on the night in the county.” Co), Maire Nic Craith (Joseph P was Conor O’Brien, UCC. ■ GALWAY Gordon & Co), Myles ■ DUBLIN Day at the races O’Connor, and Marie Dennehy ■ WEXFORD Having a ball The Galway Bar Association has (Peter O’Connor & Son). In fine voice Great satisfaction was expressed extended an open invitation to all A large group of Wexford throughout the legal community colleagues throughout the WIT and wisdom solicitors enjoyed an evening to at the appointment to the High country to attend its social at the UCC Law Society took up a remember at Wexford Festival Court of solicitor Garrett Galway Races on Monday debating challenge from WIT Opera. To accommodate the Sheehan and former president of evening, 30 July 2007. Law Society. Much to the building of a new opera house, the DSBA Gerard Griffin. The ticket price is €85 per surprise of the seasoned Cork the festival switched dates this The Younger Members’ person and includes coach University Team, the WIT team year from October to June, and Committee of the DSBA held a transfer to and from Ballybrit was unanimously chosen as was relocated to a temporary splendid ball in the Westbury, Racecourse, admission, and winner by adjudicators Nora theatre constructed at Johnstown kindly sponsored by Brightwater supper and refreshments Owen (former minister for Castle, just outside Wexford and organised by Alma Sheehan afterwards in the Radisson Hotel, justice), Mr Justice Roderick town. The double-bill and her hard-working Galway. This fun occasion is Murphy (High Court) and production featured Stravinsky’s committee. Some ‘older fogeys’, being sponsored by AIB. Contact barrister Mark Flynn. The master Pulcinella and Busoni’s Arlecchino. such as David Bergin and John Yvonne Francis at 091 562 531 of ceremonies was President of Guests of the association Glynn, also turned up. The large for tickets. G the Waterford Law Society included Law Society President attendance included Ann Morette Kinsella. The motion Philip Joyce, his wife Rosario Matthews of PC Moore, an ‘Nationwide’ is compiled by Kevin ‘Mandatory sentencing Boyle SC, immediate past- emerging celebrity since O’Higgins, principal of the Dublin extinguishes justice’ was hotly president Michael Irvine and his becoming the 10,000th solicitor law firm Kevin O’Higgins.
www.lawsociety.ie 7 LAW SOCIETY GAZETTE JULY 2007 NEWS CCBE dismayed by Court of Justice decision on reporting obligations
he European Court of Human Rights. (Previously, obligation imposed on lawyers TJustice has ruled against the reporting obligations were participating in financial challenge by the Belgian Bars confined to financial transactions, with no link to against the reporting obligations institutions.) The CCBE did so, judicial proceedings, did not on lawyers imposed by the 2001 believing that the introduction breach the right to a fair trial. Money Laundering Directive of reporting obligations on Responding to the judgment, (Case C-305/05 with regard to lawyers, who are members of a the CCBE said that it has never Directive 2001/97/EC). regulated profession, would accepted that lawyers should In 2004, the Belgian Bars breach article 6, as it would have been included in the scope challenged the implementation compromise the independence of the reporting obligation. of provisions of the 2001 of lawyers. “The CCBE has consistently directive, which imposed The CCBE maintains that requested that the Commission reporting obligations on lawyers such reporting obligations will and the Financial Action Task in Belgium for the first time. lead to the “irrevocable Force on Money Laundering The Council of Bars and violation of the principle of (FATF) provide evidence that Law Societies of Europe client confidentiality”. Access to The European Court of Justice, lawyers are being unwittingly (CCBE) intervened in support legal advice will be jeopardised, Luxembourg used to facilitate money- of the contention by the Belgian it says, and subsequent defence laundering activities which Bars that the reporting cannot be guaranteed if the their suspicions to state would justify reporting obligations were an unjustified necessary confidence of a client authorities. obligations being imposed on infringement of the right to a in his or her lawyer will be In its judgment on 26 June, them. Such evidence has never fair trial, guaranteed by article 6 betrayed by the obligation the European Court of Justice been provided by either the of the European Convention on imposed on lawyers to report decided that the reporting commission or the FATF.” Darragh counts down to ‘Rugby Tour de France’ s the countdown to the recently opened an office in ARugby World Cup 2007 in Dublin. In over 70 countries France begins in earnest, worldwide, MSF provides relief Darragh McElligott of to the victims of war, natural Matheson Ormsby Prentice disasters and epidemics, (MOP) is finalising plans for a irrespective of race, religion, or gruelling three-week charity political affiliation. An entirely cycle around the host country independent organisation, MSF in aid of Médecins Sans won the Nobel Peace Prize in Frontieres (MSF). 1999 in recognition of its A solicitor in the retail and contribution to humanitarian leisure group of MOP causes. For more detailed (specialising in licensing), information about MSF, visit Darragh is, however, not going www.msf.ie. to France for the wine or the The aims of the Rugby Tour Supporting Médecins Sans Frontieres and the ‘Rugby Tour de France’ rugby. Instead, he’ll be de France are twofold – to raise are (l to r): senior Ireland rugby internationals Rob Kearney, undertaking a 1,500km solo Darragh McElligott (not an international rugby player!), much-needed funds for MSF, cycle over a period of 20 days, Bernard Jackman and Jamie Heaslip which relies almost entirely on encompassing 16 days of private donations to finance its cycling while covering an Bordeaux, where Ireland plays heritage city of Lyon on 20 projects, and to increase public average distance of just under its opening match. He’ll then September. awareness in Ireland of MSF 100km per day. pedal southeast to the legendary The cycle is in aid of MSF and its work. Aptly named the ‘Rugby rugby heartland of Toulouse, (often referred to in the For anyone interested in Tour de France’, the cycle will and afterwards to the coastal English-speaking world as learning more about the pass through seven World Cup city of Montpellier. The next ‘Doctors without Borders’) – Rugby Tour de France or in host cities. He’ll set off from stop is Marseille, where he’ll one of the world’s leading making a donation, visit the Nantes on the west coast on 1 turn north towards Saint organisations for emergency event website at www.rugby September, heading south to Etienne, and finish in the world medical aid – which has tourdefrance.com.
8 www.lawsociety.ie NEWS LAW SOCIETY GAZETTE JULY 2007 Three more solicitors elected to Dáil o less than ten solicitors Nwere elected to the 30th Dáil in the recent general election. This is up from seven solicitors in the 29th Dáil. Although the Gazette has not checked the records on solicitor membership of all previous Dáils, it seems likely Dermot Ahern FF Thomas Byrne FF Brian Cowen FF Olwyn Enright FG Charles Flanagan FG that ten is the most TDs the (Louth) (Meath East) (Laois-Offaly) (Laois-Offaly) (Laois-Offaly) solicitors’ profession has ever had at one time. The highest vote for any candidate in the country – a whopping 19,102 first preferences in his Laois-Offaly constituency – was obtained by Tullamore-based solicitor Brian Cowen. A key figure in the election campaign, he was John O’Donoghue FF Jim O’Keeffe FG Peter Power FF Alan Shatter FG Joanna Tuffy Lab subsequently reappointed (Kerry South) (Cork South-West) (Limerick East) (Dublin South) (Dublin Mid West) Minister for Finance in the new government. Added to the Dáil for the first time in the Barristers elected this was his appointment for new constituency of Meath Three barristers were elected to the first time as Tánaiste. East. the 30th Dáil, namely Barry The most senior of the four Andrews for Fianna Fáil in Dun Senior political figures Fine Gael solicitor TDs is the Laoghaire, Willie Penrose for Another solicitor to be party’s outgoing justice Labour in Longford- appointed to one of the most spokesman, Jim O’Keeffe, who Westmeath and Brian Lenihan senior government ministries was returned again in Cork in Dublin West. was Louth-based Dermot South-West. Olwyn Enright, The latter is of most Ahern who, once again, is the whose father Tom was also a significance for the legal Minister for Foreign Affairs. solicitor TD, was re-elected in profession in the 30th Dáil, as Kerry South poll-topper Laois-Offaly. Two very he has very deservedly been John O’Donoghue has ended experienced Fine Gael solicitor Brian Lenihan FF (Dublin West). promoted to full cabinet status ten years as a cabinet minister TDs who lost their seats in the Deserved appointment as as Minister for Justice, Equality to become Ceann Comhairle 2002 general election won them Minister for Justice, Equality and Law Reform. In this role, and Law Reform of the new Dáil. back on this occasion, namely he replaces another barrister, In addition to these three Alan Shatter in Dublin South The voters in Laois-Offaly, former leader of the very senior political figures, and Charles Flanagan in Laois- not for the first time, showed Progressive Democrats Michael two more solicitors were Offaly. exceptionally good judgement, McDowell, who was not re- elected for Fianna Fáil, to The sole Labour solicitor in that no less than three of the elected in Dublin South-East. bring that party’s share of the TD and only the second constituency’s five TDs are The Society has privately ten solicitor TDs to five. Peter completely new TD (in solicitors. communicated, and now Power was re-elected in addition to Thomas Byrne) is Only one outgoing solicitor publicly extends, its warmest Limerick East and 29-year old the former senator Joanna TD, Denis O’Donovan in Cork congratulations to all of the Drogheda-based solicitor Tuffy, who was elected for South-West, was unsuccessful lawyers elected to the 30th Thomas Byrne was elected to Dublin Mid-West. in his bid for re-election. Dáil. WILLS, PROBATE & ESTATES The Law Society is now selling Wills, Probate & Estates, published by the Law Society of Ireland/Oxford University Press. Contact Julianne Ward: email: [email protected] or phone: 01 672 4942 if you wish to order a copy.
www.lawsociety.ie 9 LAW SOCIETY GAZETTE JULY 2007 NEWS
■ FINANCE ACT CERTIFICATES Revenue has recently launched Release of security files a new web-based routine to help solicitors find the correct Finance Act certificates for opens history’s door stamp duty when drafting deeds. he Department of Justice, The released files are likely Members of the Society’s TEquality and Law Reform to become a primary source of Conveyancing Committee and has transferred a total of 187 research in terms of the Technology Committee, along files and records – dealing with development and operation of with other practitioners, have national security matters security policy in the state in worked with Revenue in the relating to the period 1923 to the first decade following analysis and user-testing phases 1933 – to the National independence. of this project and are happy to Archives. Of particular interest will be recommend it to the profession. The release of the security the files relating to the murder Any further suggestions for files results from the advice of of Minister for Justice Kevin improvement or expansion of the the Archives Advisory Group, O’Higgins in Dublin on 10 July routine, or in relation to e- established in February 2006. Kevin O’Higgins – assassinated on 1927 and the file relating to the stamping in general, should be 10 July 1927 by the IRA while The records, which have now disappearance of Laurence directed to: Mick O’Hanlon, walking to Sunday Mass in been released, consist of all the Booterstown, Co Dublin Griffin – the ‘Stradbally E-stamping Project, Revenue files and records relating to Postman’ case. Commissioners, Dublin Castle, national security matters that retained until now in the The papers are available for Dublin 2, or by email to were closed before the end of department under provisions of inspection by members of the [email protected]. 1933. These records were the National Archives Act 1986. public. The new web routine is now live on Revenue’s website and can be accessed through the following link: www.revenue.ie/ Linda O’Shea Farren seeks your Seanad vote revguide/stampduty/stampduty olicitor Linda O’Shea Farren shareholder rights, among other cert1.htm Sis a candidate on the NUI matters. If elected, Linda says Panel in the Seanad Éireann that she will advance ground- ■ COSC HEAD NAMED election. A BCL graduate of breaking, progressive and Éimear Fisher, principal officer, UCC, Linda was enrolled as a balanced legislation on the Department of Justice, Equality solicitor in 1985. She was then issues that affect us all. and Law Reform, has been admitted to the New York Bar She is asking NUI graduates appointed as the first head of and practised as an attorney in among the solicitors’ profession COSC – the National Office for New York and London. After she for their ‘no 1’ vote. If you are the Prevention of Domestic returned to Ireland in 1993, her an NUI graduate, you can Violence. The new office will career brought her into check/update your registration develop the state’s response to investment banking, the details by emailing the NUI at tackling domestic violence and Department of Justice and the [email protected]. Close of poll is related issues. Irish Wheelchair Association, campaigner with a proven track 24 July 2007. For further A career civil servant, Éimear before opening her own record in the areas of disability, information about Linda’s has worked for the Legal Aid solicitor’s practice in 2000. music education, the teaching of candidacy, visit Board, the Courts Service – Linda believes she is an foreign languages in primary www.lindaosheafarren.ie. where she served as registrar in energetic, committed schools, the Irish language, Email: [email protected]. the Dublin Circuit Family Law Court, the Dublin Civil and Criminal Circuit Courts and the Central Criminal Court – and in the policy divisions of the Land certificates – liens and undertakings Department of Justice, Equality s readers of the Gazette institutions or any other parties January 2007 can be and Law Reform. Awill know, land holding land certificates as registered as burdens, and that certificates are being phased security should make the law does not allow for the ■ RETIREMENT TRUST out. It follows therefore that arrangements to have any creation of new equitable liens SCHEME (a) solicitors’ undertakings in equitable lien registered as a since that date, whether by Unit prices: 1 June 2007 respect of land certificates burden on the folios to which way of deposit of land Managed fund: €6.474078 should no longer be sought or the land certificates relate. certificate, certificate of All-equity fund: €1.566962 given, including accountable Practitioners should note charge, or otherwise. Long-bond fund: €1.341916 trust receipts for land that only equitable liens (Please refer to ‘Practice Cash fund: €2.738906 certificates; (b) Lending already in existence from 1 Notes’ in this issue. See page 53.)
10 www.lawsociety.ie NEWS LAW SOCIETY GAZETTE JULY 2007 Promoting the profession to the public
n late May and early June, whether or not such a were tested on focus groups understand and agree to the Ithe Law Society ran a series campaign would benefit the that were representative of the objective of the proposed of five different advertise- image of the profession was Irish adult population as a campaign and its key ments in the national print based on detailed research whole. Simplicity was required messages. The overall media. They were designed to undertaken by McConnells in the ‘storylines’. Based on objective, in summary, was to promote the solicitors’ about the profession’s image this research, some show the value and variety of profession and the services it with the public. There has advertisements were dropped the mainstream services that provides to the public. been pressure on the Law (usually on the basis that they the solicitors’ profession The feedback within the Society from within the were too complex) and others provides to the general public. profession suggests there is, It was deliberately not focused perhaps not surprisingly, a on the business community. range of opinions about the The idea of presenting campaign. Some solicitors narratives was so that the dislike it intensely and value of the services would believe it should never have not merely be asserted, but been undertaken. Some actually demonstrated in very members of the profession brief and simple stories or like some of the ‘parables’. The Society was advertisements but don’t like advised that the use of this others. Still more were surprising, informal, light and delighted with the campaign, humorous style, while still describing it as “excellent”, communicating a message, “clever” and “very effective”. had been received very Based on widespread positively by the focus groups, soundings and on discussions who would have expected at bar associations, however, it something much more seems that the great majority conservative and, frankly, of solicitors agree with the dull from the solicitors’ view expressed by one profession. colleague that “the solicitors’ The Council debated the profession has been on the campaign at length following receiving end of abuse from the presentation by various quarters for years and McConnells. The element of it is great to see the Law risk in the campaign was fully Society fighting back”. recognised. It was certain that it would not please everyone Expert advice and would attract flack from This was not a campaign certain predictable quarters, that the Society rushed into. which it subsequently did. A great deal of thought went However, the Council decided into it. Some considerable ‘House hunters’ – one of the five different advertisements unanimously to proceed with time ago, the Society the campaign based on the conducted a ‘beauty parade’ profession for many years to were adjusted. Those expert advice it had received. of the leading advertising undertake a media campaign recommended for the Now that the three-week agencies in Ireland and chose to try to improve this. campaign received an campaign has ended, what to us was the most McConnells recommended overwhelmingly positive independent research is being impressive agency – which a print rather than broadcast response from these focus conducted into the public’s also happens to be the biggest media campaign, and their groups. reaction to the campaign. and longest-established Irish- creative department devised Members of the Council have owned agency – namely this campaign following a Campaign objective also been gathering views McConnells. Within series of meetings with the At the end of March 2007, the from members of the McConnells, the Society has practitioner members of the entire campaign was presented profession. All will be been advised throughout by Society’s Public Relations and explained by McConnells considered at the July Council probably the most senior Committee. The cartoon for over an hour to a full meeting, when the decision and experienced director of format was chosen for creative meeting of the Law Society will be made whether or not that agency. communication reasons. Council. This was to ensure to proceed with the campaign The decision to explore The specific advertisements that the Council would again in the autumn.
www.lawsociety.ie 11 LAW SOCIETY GAZETTE JULY 2007 NEWS Gardaí quizzed on insurance collusion garda investigation team has investigation is being headed by incident, it is electronically regional or divisional traffic units Aquestioned nearly 50 serving Assistant Garda Commissioner recorded and fully traceable. It is – would have reason to examine gardaí as part of an internal Eddie Rock. It is trying to understood that some gardaí accidents, but the reasons why inquiry into allegations that determine whether the Pulse have accessed several hundred other officers would have members of the force supplied crime-recording system was road incidents on the Pulse accessed the information is less confidential information to improperly used to gather system – they are being asked to obvious. The Data Protection insurance companies relating to information about individuals. account for their actions. Some Commissioner is examining the road-traffic claims. The Every time a garda opens a Pulse gardaí – mainly those based in allegations.
SUPPORT SERVICES FOR MEMBERS FOUR COURTS SERVICE WITH A SMILE! Louise Campbell explains the Society’s facilities at the Four Courts complex
itigation practitioners will coats, umbrellas, excess files Lbe familiar with the Law and so on. Members should Society’s office at the Four note, however, that Courts. This office is managed unclaimed items are by Paddy Caulfield, Delores destroyed at the end of each Maguire and Mary Bissett term. (pictured right) – a longstand- • Members’ writing room – ing, extremely helpful and where members can prepare dedicated team of Law Society for cases in peace and quiet. staff (see contact details below). As a matter of courtesy, The office provides Law members should refrain Society members with many of from using this room for the support services they consultations or for mobile require during their working phone conversations. day, including: • Internet access (since The Law Society has made a January 2007), on a time- rooms can be booked for members who find consultation room available to costed basis, from two new one hour, two hours or the themselves under time the Courts Service, to facilitate computer terminals – one entire day – charges vary pressure while in the technology needed to located in the Law Society’s accordingly. (These consultation at the Four provide a live video link to Four Courts office and the consultation rooms should Courts. Clover Hill prison. This other in the members’ not be confused with the • Faxing, photocopying and service, which has yet to be Writing Room – or from consultation rooms in the phone services are available launched by the Courts personal laptops with Distillery Building, Church to members from the Service, will enable members wireless internet capabilities. Street, which are operated counter at the Law Society’s to conduct consultations with (Full wireless coverage is by the Law Library.) Four Courts office. Black their clients held at Clover available in the Law • The Friary Café provides and white or colour Hill, directly from the Four Society’s Four Courts office, convenient, quality catering photocopying is available. Courts. in all consultation rooms facilities to Law Society The colour photocopier also The Law Society’s Four and their vicinity.) Members members. Open from 9am has the ability to print off Courts office staff can be have the option to pay the to 4pm, Monday to Friday, information from CD or contacted at: Law Society internet charge either by the café provides a varied floppy disc. Office, Four Courts, Inns credit card or by an internet menu of hot and cold • Package delivery and Quay, Dublin 7; tel: 01 668 card purchased in the office. drinks, soups, sandwiches, storage facility – members 1806, fax: 01 873 5615, email: (WiFi is provided by pastries and confectionary. can have packages delivered [email protected]. G Ganag.) Members have the option of to the Law Society’s Four • 26 consultation rooms ordering food and beverages Courts office marked for For information on any Law available to Law Society from consultation rooms, their attention, to be Society member service, contact members. To book a including it on their collected by them in the Louise Campbell, support services consultation room, contact booking invoice, and having course of the day. There is executive, Blackhall Place; the Law Society’s Four these items delivered. This also a storage facility, at tel: 01 881 5712 or email: Courts office. Consultation is particularly useful for members’ own risk, for [email protected].
12 www.lawsociety.ie COMMENT LAW SOCIETY GAZETTE JULY 2007 letters
Send your letters to: Law Society Gazette, Blackhall Place, Dublin 7, or email: [email protected] Gearing up for e-registration and digital mapping From: Peter McHugh, e- The current phase of the themselves aware of these this ‘e-releases’ element is now registration project manager, project will result in the arrangements. under way. Property Registration Authority digitisation of boundary data for Our e-registration project has We have now commenced an each county in turn. Parcel recently commenced and is still extensive programme of Peter McHugh, e-registration boundary data for counties in its early stages. However, we customer consultation and are project manager of the Property Longford, Carlow and Meath is recognise that stakeholder offering all bar associations an Registration Authority, is currently now available online. Boundary engagement is critical to the opportunity, in conjunction writing to all bar associations in data for counties Westmeath success of all such projects. To with the PRA, to organise relation to recent and forthcoming and Kilkenny is expected to be reflect this, representatives from briefing seminars for their developments on their e-registration made available over the coming the Law Society, the Irish members. Feedback received to and digital mapping projects. Bar weeks and, as additional Mortgage Council and the date from attendees at recent associations and solicitors are counties come online, this will Revenue Commissioners have seminars has been very positive, invited to contact Mr McHugh to be notified on our website. joined the e-Registration Project useful and encouraging. arrange briefing seminars on these New arrangements have also Board. While a successful e- Members of our digital projects. The following is the text of been put in place in relation to registration system will be an mapping and e-registration his letter, explaining why solicitors the use of filed plan maps for integral part of any future e- project teams will be available should make themselves aware of registered land in counties that conveyancing solution, it should to attend and make these developments. have been digitised. These also offer an improved and more presentations, as well as arrangements are essential, as efficient service to our discussing relevant issues with t is apparent from recent the new Ordnance Survey customers in advance of e- your members. If interested, Iseminars held in counties digital ‘ITM’ map replaces the conveyancing. It is intended that you should contact Peter Wexford, Kilkenny and national grid map for those the first phase of e-registration McHugh by email at Westmeath that some digitised counties. It is very will result in electronic releases [email protected] or by practitioners may not have been important that customers make of registered charges. Work on phone at 01 804 8011. fully aware of all the features offered by ‘digital mapping’ via our online portal, www.land Members of the bar ‘revel in their direct.ie. Customers can now, in addition to the earlier services, exclusivity’, says former barrister use their online account to: • Conduct mapping searches in From: Julian Deale, Julian Deale Likewise, they have their all counties by navigating the & Co, Solicitors, Monkstown own dining room within the map and using location marks Road, Co Dublin purlieus of the Four Courts; (‘seedpoints’) to identify folios, read with interest the letter of they have adequate dining • Conduct searches by postal IMr Tim Shannon (May facilities in the Distillery address in all counties, Gazette, p15) over the way in Building and adequate dining • View aerial photography in which the café in the basement facilities in what is known as conjunction with Land of the Four Courts is laughs imperiously Shanley Towers. as he orders Registry detail, administered and the way in startled solicitors They now want to take • Search by many other which the bar wishes to try and from the over the one place where methods, such as plan number, make that café, or portions of it, basement café solicitors are able to move map co-ordinates, OSi sheet exclusive for their use. without let or hindrance. This reference, and so on. The bar wants to be alone. I is a public facility and one is speak as a person who not entitled to reserve seats There is no fee payable for practised for a number of there, and I think it is conducting online map searches years at the bar. They revel in iniquitous and I am writing until a folio is inspected, with the their exclusivity. So much so have a benching for him or under separate cover to the exception of the ‘search by plan that if a person is elevated to her. Only barristers are chief executive of the Courts number’. the bench from the bar they entitled to attend. Services.
www.lawsociety.ie 13 LAW SOCIETY GAZETTE JULY 2007 COMMENT
‘Harsh’ law offends against It is unjustifiable that the government continues to deny child benefit payments to children from the more vulnerable sections of society, writes Karen Berkeley
n 1 May 2004, the Social pension, orphan’s (non- mentioned benefits – is decided state. This is because child OWelfare (Miscellaneous contributory) pension, one- by a special unit in the benefit is regarded as a social Provisions) Act 2004 provided a parent family payment, carer’s Department of Social and advantage and EU law prohibits new system of assessing those allowance, supplementary Family Affairs known as the discrimination in respect of who might or might not qualify welfare allowance and disability HRC unit, and in the case of social advantages. Interestingly, for child benefit. Prior to the allowance. Clearly, the HRC child benefit by the child it seems that the habitual implementation of this act, has targeted those sectors of benefit unit. These deciding residence condition continues to child benefit, then known as society who, through vulnerable officers make discretionary apply to EU nationals in respect ‘children’s allowance’, was circumstances, may not be able decisions about the HRC that of the other non-contributory universal in nature and was paid to provide adequately for are not regulated by statute, but benefits that do not come to the designated carer of each themselves. Prior to the instead are made through an within the terms of Regulation child in the state, regardless of implementation of the act, such unaccountable and non- 1408/7, such as unemployment their financial means or their people were guaranteed a transparent system of internal assistance, disability allowance, immigrant status. The benefit minimum means of subsistence, policy decisions. These internal blind person allowance, was also non-contributory, in yet now, for some, the situation guidelines state that, unless a widow’s/widower’s (non- that it could be claimed is much less certain. person has been present in the contributory) allowance and old whether or not the parent had Section 17 of the act does state for two years, is employed age (non-contributory) pension. paid PRSI. It was paid in line not provide a definition of here, and has a settled intention While the HRC still applies with the government’s ‘habitual residence’. While to remain in Ireland, he or she to all families who first claimed commitment to end child completely unsatisfactory, this is will not satisfy the HRC. child benefit after 1 May 2004, poverty and was seen as a major not surprising, as the term is a there is little doubt that the mechanism in the fight against complex legal one that, time Indirect discrimination condition impacts poverty in the state. and again, has deliberately been In practice, the HRC affects disproportionately on specific However, this all changed left vague by legislating bodies only small minority sections of sectors of residents in the state. with the introduction of the to allow for the utmost people residing in Ireland. For These include persons who are 2004 Social Welfare Act. flexibility in respect of their instance, the measure was legally resident in the state but According to section 17 of the social welfare policies. Recently, initially considered to affect all who are not permitted to work, act, to qualify for child the term has been expanded EU citizens and non-EU such as asylum seekers and benefits, one must first prove upon by section 30 of the Social citizens alike. However, it soon those awaiting residency that he or she is “habitually Welfare and Pensions Act 2007, transpired that the HRC was in application decisions such as resident in the state at the time which obliges deciding officers breach of EU law, in that it humanitarian leave to remain in of making the application”. to take account of certain operated as an indirect form of the state. Such people are no This new condition, known as considerations when discrimination between Irish longer entitled to monthly child the ‘habitual residence determining whether a person is and EU citizens within the benefit and are left with only a condition’ (HRC) applies not habitually resident in the state. state, and was therefore an weekly payment of €19.10 per only to applicants of child These considerations include all obstacle to the freedom of adult and €9.60 per child to live benefit, but also to a number the circumstances of the case movement within the EU. on in the direct provision, of other state-funded benefits and, in particular, the length Regulation 1408/7 was including bed and board. This is that provide minimum and continuity of residence, implemented to clarify matters so even after they have resided financial assistance to people length and purpose of absence in respect of EU citizens’ in the state for many years. who fall within the from Ireland, nature and entitlements to social welfare Other groups disproportionately Department of Social and pattern of employment, the payments in other member affected are non-Irish nationals Family Affairs means test. applicant’s main centre of states. with no work record in Ireland, These other benefits interest, and the future The regulation states that including those undocumented restricted by the HRC include intention of the applicant. payments such as child benefit through exploitation, non-EEA unemployment assistance, old- In this state, whether or not are to be granted to EU citizens nationals working here for less age (non-contributory) pension, an applicant classifies as working in another member than two years who cannot blind pension, widow’s/ habitually resident – and is thus state, regardless of how long the prove a centre of interest in widower’s (non-contributory) entitled to one of the above- EU citizen has resided in the Ireland and previous EU work
14 www.lawsociety.ie COMMENT LAW SOCIETY GAZETTE JULY 2007 viewpoint most vulnerable experience, and some Romanian the launch of the campaign, and Bulgarian nationals who FLAC appealed to the have been refused child benefit government to respect its own on the basis that they are now pledge to end child poverty and EU nationals. It seems that to honour its commitments to Irish migrants returning home children by restoring child and members of the Travelling benefit as a universal payment. Community may also be denied About the HRC, the director of child benefit on the basis of the FLAC, Noeline Blackwell, HRC. stated: “On an analysis of the law and the practice, we had no ‘Pull factor’ option but to conclude that the There is little doubt that fear outcome of this policy is that concerning immigration in the child benefit is denied to some context of the EU enlargement of the children most at risk of was the principal factor behind poverty in Ireland and that it this harsh arbitrary legislation. Government has placed immigration policy before the welfare of children discriminates between children To put it simply, child benefit is on the grounds of their status, seen as a ‘pull factor’ in terms of children in the state altogether that, while there might have contrary to the principles and immigration, and any payments by 2007. However, in complete been increases in the quantity of laws contained in the UN that might potentially contradiction of these child benefit payments in the Convention on the Rights of the encourage further migration to statements, 11 months later, our state, the introduction of the Child.” Ireland are resisted by our government introduced the HRC had simultaneously In light of the government’s government. However, such HRC and substantially qualified prevented entire sectors of our many proclamations regarding deliberate restrictions on what the children who would be community from claiming child its promotion of children’s was previously considered the entitled to the benefit. The benefit altogether. rights, and in light of the fact most basic entitlement of government is soon due to On a brighter note, it must that Ireland has signed and children highlights clearly how publish an updated NAPS, and be pointed out that all is not ratified the International the government has placed it will be interesting to see how lost, and a coalition of Convention on the Rights of the immigration policy before the the qualifications for child organisations – including the Child and is seriously welfare of children. benefit will be addressed, if in National Consultative considering creating a new In fact, the restriction on fact they are addressed at all. Committee on Racism and constitutional provision child benefit is in direct conflict Interculturalism, the Free Legal guarding the rights of children, with the government’s self- Government’s hypocrisy Advice Centres (FLAC), the it is unjustifiable that the acclaimed strong stance on the Further evidence of our former Immigrant Council of Ireland, government continues to deny promotion of children’s rights government’s hypocrisy in the Irish Refugee Council, child benefit payments to and the elimination of child relation to the elimination of Integrating Ireland and the children from some of the more poverty in the state. For child poverty in the state can be Migrants’ Rights Centre to vulnerable sections of society. example, in June 2003, the seen from the more recent name a few – have come FLAC is confident that, should government published its Second Report to the UN together in order to research enough people become aware of revised National Anti-Poverty Committee on the Rights of the the HRC for the purpose of this ongoing injustice, pressure Strategy (NAPS) review, in Child 2006. In this report, the highlighting the negative will mount for the abolition of which it reiterated its government commended itself impact it is having on the more the HRC and that universal commitment to eliminate child on significant achievements vulnerable sectors of our society child benefit will be restored. poverty, to promote greater made in terms of the reduction and to campaign for the For information on how to equality for all children and to of child poverty in the state, and abolition of the condition become involved in the break the cycle of disadvantage attributes this to a number of altogether. FLAC has campaign to restore child and exclusion experienced by factors including “significant specifically taken the initiative benefit, visit www.flac.ie. G certain children in society. One real increases in social welfare in regards to campaigning for of the targets of the revised payments, particularly in child- reinstatement of universal child Karen Berkeley is a PPCII NAPS was to eliminate income support”. The report benefits. student in the Law School and is a consistent poverty among completely ignored the fact On 20 November 2006, at volunteer with FLAC.
www.lawsociety.ie 15
ANALYSIS LAW SOCIETY GAZETTE JULY 2007 Ireland waltzes to victory in Vienna Despite some stiff competition, Ireland has won the honour of hosting the Second European Collaborative Law Conference in Cork in 2008
fter a long wet winter, government backing. John AVienna was just the ticket. McDaid of the Legal Aid Two solicitors from Cork city Board is to be congratulated and two from West Cork set on his vision and initiative in off for Vienna on 22 March to this regard. attend a two-day collaborative Collaborative cases are now law conference in Vienna, underway nationwide. In writes Anne O’Neill. They were Cork city and county, joined en route by three practitioners are dealing with solicitors from Dublin and two growing numbers of cases. mental-health professionals The story is the same for from Cork city. The occasion Wicklow-based practitioner was the first European Joe Maguire, who appears to Collaborative Law Irish collaborative law is on a Vienna roll be well ahead of the posse. Conference, held in the Trend Cases have been completed Hotel Schloss interesting journey. practice. We are also well and ruled in Cork and other Wilhelminenberg, an old Discussion with British ahead in terms of the number parts of the country, and hunting lodge in the hills neighbours revealed that there of lawyers trained in the judges are becoming familiar outside the city. are now collaborators country, as there are now over with the practice. For those of us in Ireland practising in Scotland and 300 trained practitioners. The national Association of who had nursed the Wales. On the other side of Most amazingly, we are the Collaborative Practitioners collaborative project from its the globe, the practice is only country that has (ACP) now has members infancy, the Vienna event was growing healthily in Australia collaboratively trained legal- from all over the country. very exciting. We looked and New Zealand. aid solicitors with Two Dublin solicitors sit on forward to meeting lawyers the ACP board. It is hoped in who would impart their Ireland unique the coming months to considerable knowledge and Expecting to be behind increase the breadth of expertise. In all respects, our everybody else, the Irish were representation. As part of that expectations were delivered proud to discover that, while process, the ACP intends to and exceeded. collaborative law is relatively have a ‘think-tank day’ to Lawyers, mental-health new here, it appears that we determine how best to move professionals and accountants have pulled ahead of the other forward as a national were present from European countries in many association and to better serve Switzerland, Germany, France, respects. We are unique in the needs of the growing Czech Republic, Austria, having trained 40 mental- countrywide collaborative Ireland and England. Many health practitioners to work movement. highly experienced with us in the team-based Patricia Mallon: speaking Exciting times lie ahead. collaborative lawyers also model that is collaborative in tongues Ireland will host the second travelled from Canada and the European Collaborative Law United States. The North Conference in Cork in 2008 Americans have led the way in TALK THE TALK at the five-star Carlton Hotel collaborative law, with the ‘Collaboration’ is a lawyer-designed method of resolving family-law on beautiful Fota Island. This Europeans following in their disputes. It continues to evolve in a climate of increasing litigation was despite some very strong wake. and increasing complaints about the adversarial system. competition from our English Over 100 people travelled Collaboration works on a series of face-to-face meetings neighbours. Ireland’s victory to Vienna under the auspices between solicitors and clients, solicitors and solicitors, and finally was due in no small part to of the International both sets of solicitors and clients – so-called ‘two-way and four- the sterling efforts of ACP Association of Collaborative way meetings’ that involve people in round-table talks according chairwoman Patricia Mallon, Practitioners. Collaborative to a preset agenda to try and resolve their problems. whose deft manoeuvring and practice is relatively new to The talks are issue-based rather than position-based and are display of linguistic prowess – Europe. For the North totally client-driven. There are a number of golden rules: she addressed the Vienna Americans, the European • Good faith bargaining is essential, and conference in four languages development is a further stage • A participation agreement must be signed. – sealed Ireland as the venue on what has been a long and for 2008. G
www.lawsociety.ie 17 LAW SOCIETY GAZETTE JULY 2007 ANALYSIS
Deportation and the ECHR –
European courts applying the ECHR have had to make extremely poignant decisions on the deportation of illegal immigrants
livia Agbonlahor came to the ECHR have had to make is absolutely prohibited under to effective enjoyment of the OIreland from Italy with extremely poignant decisions article 3. Private life under right to respect for private life. her twins, fleeing persecution on the deportation of illegal article 8 is considered to include Therefore, article 8 may become there by Nigerian mobsters immigrants where their future “moral and physical integrity” engaged in cases like that of the because of her husband’s health, and even lives, were and protection against Agbonlahor family, where a journalism. Her application for going to be drastically affected treatment that is not severe person’s mental health is asylum was refused and, because of the lack of medical enough to engage article 3 threatened. despite her young son being and social services in their (Raninen v Finland). Mental The general position was diagnosed as suffering from home countries. They had to health is considered a crucial summed up in Henao v The ADHD and intellectual decide whether their actions aspect of private life associated Netherlands as follows: disability, her application for would result in the person with moral integrity, so that the “According to established case permission to remain on concerned suffering inhuman preservation of mental stability law, aliens who are subject to humanitarian grounds was or degrading treatment, which is an indispensable precondition expulsion cannot in principle refused by the minister. Mrs claim any entitlement to remain Agbonlahor anticipates that if in the territory of a contracting they are returned to Nigeria, LOOK IT UP state in order to benefit from her son’s mental disability will Cases: medical, social or other forms of receive no treatment and will • Agbonlahor and others v Minister for Justice and the AG (2006) assistance provided by the result in them becoming IEHC 56, Herbert J – application for leave for judicial review expelling state. However, in outcasts. She argued that these • Agbonlahor and others v Minister for Justice and others, (2007) exceptional circumstances, an were exceptional circumstances IECH 166, Feeney J – judicial review implementation of a decision to that should be considered • Raninen v Finland (1997) 26 EHRR 563 remove an alien may, owing to under article 8 of the European • Henao v Netherlands, ECtHR, 14 June 2003 compelling humanitarian Convention on Human Rights • D v UK (1997) 24 EHRR 423 considerations, result in a Act 2003, the right to private • Bensaid v UK (2001) 33 EHRR 10/205 violation of article 3” – and also, and family life. However, • N v Secretary of State of the Home Department (2003) EWCA Civ in exceptional circumstances, a Feeney J held that the 1369 violation of article 8. circumstances were not • R (Razgar) v Secretary of State of the Home Department (2004) In D v UK, the applicant, sufficiently exceptional to 2 AC 368 extremely ill and dying of AIDS, amount to a breach of article 8 • Baby O (suing by mother and next friend IAO) and IAO v Minister was threatened with expulsion to if the family were returned. for Justice and others (2002) 2 IR 169 St Kitts. He had no family there, European courts applying and no treatment or care would
ONE TO WATCH Assessments start under the necessarily amount to the same adults. Part 2 sets out a detailed determinations of the appeals Disability Act 2005 (Part 2) thing. It also establishes a procedure, involving five different officers. Part 2 of the Disability Act 2005 system of complaints and types of officers, and it makes it The government was was brought into effect for appeals. clear that, while an assessment determined to keep away from the children under five years of age For those who lobbied long and may identify everything a person justiciable model on grounds of by SI no 234 from 1 June 2006. hard to have a ‘rights-based’ should ideally have, what will be cost, arguing that resources It gives people with disabilities an Disability Act, the legislation that available will be subject to the would be spend on litigation entitlement to an independent was finally enacted came as a constraints of budgets and rather than on service provision, assessment of health and disappointment because of the availability. Furthermore, the which was its priority. Is there education needs and a service discretionary and resource-bound entitlements are not justiciable. therefore a role for legal statement identifying the services nature of the services to be Only appeals on a point of law lie professionals? Not a large one, to be delivered – which do not available to disabled children and to the High Court from probably, but in Britain, certain
18 www.lawsociety.ie ANALYSIS LAW SOCIETY GAZETTE JULY 2007 human rights watch the Agbonlahor case
be available, so that he would PIC: COLLINS PHOTO AGENCY condition, which treatment be exposed to acute suffering allowed him a measure of while he was dying. It was held autonomy that would not be that, in these exceptional available in Germany, so that circumstances, it would be a he was at risk of committing breach of article 3 to deport suicide if deported. The House him. This case was described as of Lords (3:2) confirmed the “an extension of an extension”. decision of the Court of In Bensaid v UK, the Appeal that his case could applicant was an Algerian come within article 8 and national undergoing treatment would have to be reconsidered. for schizophrenia in Britain, where he had been living for Ireland 11 years in an alleged marriage In the Baby O case, the mother of convenience. In addition to of the unborn Baby O resisted great mental suffering, he deportation on the ground that risked relapse into this would constitute a failure hallucinations and psychotic Olivia Agbonlahor, with her son Great and daughter Melissa, on the part of the state to delusions involving self-harm outside the High Court in Dublin defend and vindicate the right and harm to others if deprived to life of her unborn child in of appropriate medication, within the scope of article 8, and who anticipated dying breach of the Constitution, as which was likely. The ECtHR and even the dislocation to his within months if deported, the pregnancy would be at risk recognised that his personal life caused by deportation whereas she could live for in Nigerian conditions. (The integrity, including his sanity, would be permissible under the decades in Britain if permitted case arose before the ECHR Act could be breached under article qualifying article 8(2), as being to remain. This was not 2003 came into effect.) The 8. However, the ECtHR found in accordance with law and sufficient to engage her rights lower standard of healthcare that the risk assessment was necessary in a democratic under article 3 and prevent her was held not to be a ground to based on largely hypothetical society. He failed under both from being deported. refuse deportation, and rights factors and that it was not articles 3 and 8. In R (Razgar) v Secretary of that would not be accorded to substantiated that he would In N v Secretary of State for State for the Home Department, born persons would also not be suffer inhuman and degrading the Home Department, the the Kurdish Iraqi applicant was extended to unborn babies. G treatment. Nor had it been applicant was a Ugandan resisting return to Germany established that his moral suffering from AIDS, who under the Dublin Convention. Alma Clissmann is the Law integrity would be substantially would not get the treatment she He was receiving treatment in Society’s parliamentary and law affected to a degree falling required to stay alive in Uganda Britain for a psychiatric reform executive
firms do work in the field of Definition of disability The impairment must be (b)Gives rise to the need for education and disability rights, The first thing to note is the enduring; a temporary disability services to be provided and frustrated parents consult definition of ‘disability’ in section 2: does not qualify. Further, for the continually to the person them when they feel they are not “‘Disability’, in relation to a person, purposes of part 2 of the act, the whether or not a child or, if the getting a fair hearing. It is likely means a substantial restriction in disability only qualifies if it: person is a child, to the need for that there is scope for some work the capacity of the person to carry (a)Is permanent or likely to be services to be provided early in of this nature here also. on a profession, business or permanent, results in a life to ameliorate the disability. The following is a brief occupation in the state or to significant difficulty in summary of some of the more participate in social or cultural life communication, learning or Therefore the disability threshold salient points of the legislation. in the state by reason of an mobility, or in significantly is quite high, and mild disabilities The act itself can be viewed on enduring physical, sensory, mental disordered cognitive processes, that do not need continuous www.irishstatutebook.ie. health or intellectual impairment.” and services may not qualify.
www.lawsociety.ie 19 The Irish Road Haulage Association is seeking to establish a PANEL OF SOLICITORS who specialise in transport law.
Interested parties are asked to contact Jonathan Molony, Research & Development Officer
Email: [email protected] Tel: 01 822 4888 ANALYSIS LAW SOCIETY GAZETTE JULY 2007
Assessment legal representative, advocate service would not result in any account in planning. An annual Independent assessment officers assigned by Comhairle, or HSE expenditure in excess of the report to the minister is to are to carry out assessments official) may apply for an amount allocated to implement indicate needs and the periods of “without regard to the cost of, or assessment, and it must take the approved service plan of time ideally required for the the capacity to provide, any place within three months. There is the HSE in the relevant year, provision of services. service identified in the to be no duplication with assess- (iv)An education service assessment as being appropriate ments under the Education for provider’s capacity to provide Complaints, mediation and to meet the needs of the Persons with Special Educational the service within its annual appeals applicant concerned”. Although Needs Act, and repeat assess- budget. Complaints officers (HSE they are to be independent, ments cannot be undertaken employees, also to be assessment officers are unless a year (if a child) or the The council is required to comply independent) are to investigate appointed for such period as the review date has passed, or there with the service statement, but complaints and refer them, if HSE may determine. If the HSE have been changed circumstances, has considerable discretion not to suitable, to mediation officers, does not like their assessments, further information or a material if it considers, for example, that failing which they are to be sent to will they be reappointed? Their mistake of fact. the assistance is not required, another complaints officer. Parties independence will require a that compliance would be must have an opportunity to be genuine ethos to be established Service statement inconsistent with its functions or heard, and hearings are to be in and protected. Assessment After the assessment is made, it would unduly prejudice their private. Appeals officers are officers may call on the council to is passed to a HSE-appointed performance, or that it would not appointed by the minister and are provide outside expert help with liaison officer, whose task it is to be reasonable, having regard to also independent. Appeals officers educational assessments. Their translate the assessment into its resources. The liaison officer have extensive powers to seek and reports must state the existence specified services in a service may appeal against this to the compel the production of or otherwise of disability, its statement. This is where a council, who can decide information. Hearings are to be as nature and extent, the person’s disconnect can arise between the otherwise. informal as is consistent with the health and education needs, a ideal and reality, as there is no Where a child is concerned, a appeal. Non-cooperation is an statement of services considered guarantee that the health and service statement must not offence. Ultimately, determinations appropriate by the assessment education needs identified in the contain any provisions relating to may be enforced by the Circuit officer and their duration, and a assessment will be met in the education services – perhaps Court on the application of an review date. The person service statement. In developing a because this is intended to come appeals officer, the disabled concerned is to be involved, as statement, the liaison officer within the scope of the Special person or his or her representative. appropriate. If the person must have regard to: Educational Needs Act above. Starting with under-fives is concerned is a child who is (i) The person’s eligibility under taking the first baby steps. already in school, the matter must the Health Acts (which is Records Minister Harney says she aims to be referred to the school for an means-tested, with children Records are to be kept identifying, have Part 2 apply to all persons assessment under the Education deemed to have the same among other matters, the needs with a disability by 2011. G for Persons with Special means as their parents), not covered by service statements Educational Needs Act 2004. (ii) The practicality of providing the and the number of persons to Alma Clissmann is the Law A person or someone on his or services in the assessment, whom services are not provided, Society’s parliamentary and law her behalf (for example, a parent, (iii)The need to ensure that the so that they can be taken into reform executive.
www.lawsociety.ie 21 LAW SOCIETY GAZETTE JULY 2007 COVER STORY
The 2007 Criminal Justice Act allows for adverse inferences to be drawn from a suspect failing to mention matters subsequently relied upon in their defence. Diarmuid Collins ain’t sayin’ nuthin’ till he sees his brief
s of 1 July, solicitors attending garda just the place of arrest. MAIN POINTS stations will be in the unenviable Sections 18, 19 and 19A contain a proviso • Criminal Justice position of having to advise detainees preventing these provisions being employed where Act 2007 about how to deal with garda the questioning is not recorded, unless the suspect • Adverse inferences questioning in the wake of the consents to this. There is, however, no requirement to be drawn from A changes made by the Criminal Justice Act 2007. The that charging the suspect, or informing him or her remaining silent act allows for adverse inferences to be drawn from a that they may be charged, must be recorded. In the • Sections 18, 19 failure to mention matters subsequently relied upon light of the recent jurisprudence on the area of and 19A – in their defence. As such, simply advising a detainee unrecorded confessions, it has to be doubted that an principal changes to remain silent will no longer be best practice. inference could be drawn from an unrecorded There are substantial questions as to how these failure to account for or mention matters, whether provisions will operate in practice, and it will take consented to or not. several years for the courts to begin to put a definitive shape on them. In the meantime, solicitors will be left Learn how to fall somewhat in the dark as to how best to advise on A key difference between the three provisions is that them. This position is all the more unenviable since, sections 18 and 19 must be formally invoked by the as has been the case in England, the actual advice of gardaí when calling for an account. Of themselves, attending solicitors may come into issue in some cases these can form a positive part of the prosecution and become the subject of reported decisions. case at trial. Section 19A (see panel, page 25) is only The scope of these changes is broad and cannot be triggered by an accused relying on a fact they have adequately covered here, but this article flags some of not mentioned before (see DPP v Bowes). the issues and contributes to the discussion that must It seems likely, then, that we will see an increase now take place among practitioners about these in the use of sections 18 and 19. It is more difficult provisions. to say what the effect of the new section 19A will be. Similar provisions, now repealed by this act, have Slip slidin’ away only resulted in one reported case, DPP v Bowes, The act makes two principal changes. The first is a which merely reminds us that the defence must substantial redrafting of the existing inference- trigger the provision by relying on facts. drawing provisions in sections 18 and 19 of the However, there is a body of English and ECtHR Criminal Justice Act 1984, which, it will be recalled, authority on a similar provision in England that allow for the drawing of inferences from a failure to might assist in determining some of the issues that account for the accused’s presence at a place, or for will arise, subject, of course, to the rider that Irish objects or marks found on them or at a place where courts may interpret section 19A differently. In they were present. These provisions are rarely used – England, the concept of a fact relied upon in one’s some of the purported reasons for this are addressed defence has been given a broad interpretation, such in this legislation. In particular, any garda, and not just that it incorporates a scenario where an accused the arresting member, will now be able to put the does not give evidence but elicits matters from matters to the suspect. The matters that the suspect witnesses in order to put forward a specific and may be required to account for have also been positive case (R v Webber). An admission or denial of broadened, now covering the presence of any object, an aspect of the prosecution case may, in some substance or mark, in any place where the suspect was circumstances, constitute a fact relied upon (R v during any specified period, not just the place of arrest. Betts and Hall and R v Daly). This means that, in Similarly, in section 19, the suspect may now be some circumstances, even if the accused is not required to account for his or her presence at any putting forward any positive defence at trial, the particular place at or about the time the offence, not provision may operate against him if he has failed to The sound 22 www.lawsociety.ie COVER STORY LAW SOCIETY GAZETTE JULY 2007 PIC: GETTY IMAGES
of SILENCE www.lawsociety.ie 23 LAW SOCIETY GAZETTE JULY 2007 COVER STORY PIC: GETTY IMAGES
Let’s see the interrogator make admit or deny certain matters at interview. furnishing a statement setting out such matters. sense of that! How, then, might these provisions alter current Provided the accused does not stray beyond its terms advices? Simply advising suspects to remain silent is at trial, this mere mentioning of matters without no longer the best advice, since the jury will be invited answering questions has been held to prevent the to infer that any defence subsequently advanced at operation of the inference-drawing provisions (see, trial is false. However, the dilemma facing a suspect among others, R v Knight). It is to be presumed that and their attending solicitor is that, in some cases, by this approach would be followed here since, as section mentioning matters, they might incriminate 19A restricts the recognised constitutional right to themselves and contribute to an otherwise weak silence, it must be construed strictly. prosecution case that would have dissolved had they Of course, in England, solicitors are able to sit in remained silent. This may be the principal effect of on interviews and read out their clients’ statements, the new provisions – in borderline cases, the giving or which is not yet possible here. It would then fall on withholding of an account may be the difference the suspect to read their statement, or at least between a prosecution being brought or not. remember to mention all the given matters. While The best-case scenario from a defence perspective this solution would be most plausible in those rare is that the accused’s silence does not go to the jury at cases where a suspect has anticipated his questioning all, since they will invariably draw a negative and sought legal advice prior to being arrested, it is inference from it. In an ideal world, therefore, the possible that a list of matters could be produced on accused would mention all matters they would rely consultation during detention. It would, however, be on in their defence at interview stage, including a brave lawyer indeed who would be willing to tie admissions or denials. This can have the added their client to a given version of events in the bonus of enabling the defendant to adduce this absence of full disclosure of the prosecution case or defence at trial without him actually giving evidence, clear and complete instructions – neither of which by leading the prosecution garda through the will often be available in a detention scenario, since relevant sections of the interview. the inferences would still arise if the accused If the accused puts his version of events to the changed or added to their story at trial. gardaí during questioning, his barrister can ask the Another consideration is that an accused who gardaí about it at trial. Thus the defence can put might subsequently plead guilty might tie their case to the jury without giving evidence themselves to a particular version of events. Giving themselves, thus avoiding the danger of prosecution no comment could offer a plea in mitigation based cross-examination. This already occurs and is a on a more favourable interpretation of events. This significant advantage to a weak defence. underscores how important it is that attending In England, the practice has developed of solicitors attempt to assess the strength of the case
24 www.lawsociety.ie COVER STORY LAW SOCIETY GAZETTE JULY 2007
against the suspect before advising them. There remains the option of the suspect remaining silent, but advice to this effect could MATTER OF FACT – SECTION 19A come back to haunt a solicitor. In Britain, where Practitioners will have more immediate interest in the new section 19A, which is defendants have sought to rebut inferences being much broader, in that it allows inferences to be drawn where the accused fails to drawn against them by stating that they remained mention any fact subsequently relied upon in their defence – such a fact, in the silent on legal advice, evidence is led as to the basis circumstances existing at the time, clearly calling for an explanation from them. for the solicitor having given that advice. The jury is There is a certain amount of overlap in relation to the application of sections then asked to assess whether it was reasonable for 18, 19 and 19A and the ‘safeguards’ that are imposed when they are operated. the suspect to remain silent. There are conflicting All three apply to a failure by the suspect to account for or mention matters that decisions in this regard, but some at least, including take place, not just during questioning, but also on being charged or informed the ECtHR in Condron v UK, indicate that, once this that they may be charged with an arrestable offence. These latter inclusions are has occurred, the accused may lose privilege and the curious and seem to have been copied from English legislation. They may allow solicitor can be cross-examined as to what the for situations where a file has been sent to the DPP and comes back with suspect told them. This would be an unattractive instructions to invoke the provisions on charge, perhaps after a failure to enough proposition from a solicitor’s point of view, properly do so during detention, or new information being received since. but would also involve the accused’s silence being Whether this will occur or will be tolerated by the courts remains to be seen. put to the jury, which is to be avoided. It is In each instance, the suspect must have been told in ordinary language what submitted that the only instances where it would be the effect of a failure to account for or mention matters might be – and they correct for a solicitor to counsel silence would be must have been afforded a reasonable opportunity to consult with a solicitor where it seemed that there was no evidence against before the failure occurred. In accordance with ECtHR jurisprudence, a person the accused, and he therefore only stood to lose by cannot be convicted solely or mainly on the basis of an inference drawn. talking and possibly incriminating himself, or where the account that the suspect offered to the solicitor was plainly unsustainable. scene, perhaps where drugs or stolen items were found, would have to mention why they were there, Homeward bound as would someone seeking to rely on self-defence. It may be that, over time, lawyers will be able to Unless such matters were mentioned, the position identify specific facts that ought to be mentioned in would revert to pre-DPP v Finnerty, with the jury certain circumstances, or where certain offences are being invited to infer that a defence had more alleged, and may therefore be able to advise detainees recently been fabricated. what to mention on a case-by-case basis. It seems It should also be stated that, where these provisions likely, for instance, that a no-comment interview will inevitably be challenged, the Supreme Court in “Simply would fail to best serve someone accused of a sexual DPP v Finnerty stated that statutory incursion on the advising offence, since they would invariably have to put right to silence was possible. The ECtHR, in a long forward a positive defence, and as such would then line of cases including Condron, has upheld similar suspects to have to mention this in interview. Similarly, someone provisions, provided they operate fairly. As such, remain silent is maintaining they were innocently present at a crime practitioners should await an individual case where there is a specific unfairness arising out of the no longer the operation of the section during detention or at trial, best advice, LOOK IT UP rather than mounting a general challenge to the Cases: provision. It seems that this unfairness is most likely since the jury • Condron v UK [2000] Crim LR 215 to arise from the giving of inadequate or conflicting will be invited • DPP v Bowes [2004] 2 IR 223 cautions, from non-provision of legal advice or from • DPP v Finnerty [1999] 4 IR 364 misapplication of the provisions, particularly in the to infer that any • Lavery v Member in Charge, Carrickmacross Garda District Court. defence Station [1999] 2 IR 390 In the meantime, it seems that the most • R v Betts and Hall [2001] 2 Cr App R 257 appropriate advice should be the caution most likely subsequently • R v Daly [2002] 2 Cr App R 201 to be given by gardaí – you do not have to say advanced at • R v Knight [2004] 1 WLR 340 anything, but you may harm your defence if you fail • R v Webber [2004] 1 WLR 404 to mention matters you subsequently rely on. It may trial is false” also be that, like the existing sections 18 and 19 Literature: (contingent as they are on gardaí asking the right • Archbold, Criminal Pleading, Evidence and Practice questions at the right time), section 19A will not as (2007), pp1,651-1,662 often become a feature of the trial process as might • Blackstones, Criminal Practice (2007), pp2,647- be expected. It is only in those borderline cases that 2,664 this provision is likely to be the difference between • Final Report of the Balance on the Criminal Law an acquittal and conviction. G Review Group (available at www.justice.ie) Diarmuid Collins is a Dublin-based barrister.
www.lawsociety.ie 25 LAW SOCIETY GAZETTE JULY 2007 CRIMINAL LAW Dangerous
The LRC’s consultation paper on involuntary manslaughter makes provisional recommendations that could lead to a redefinition of ‘unlawful and dangerous act manslaughter’. Jane Mulcahy opens the dictionary
he Law Reform Commission’s recent “horseplay end of things” did not mean that the act Consultation Paper on Involuntary could not also be justly described as “dangerous”. In Manslaughter was prepared with a view that respect, the court affirmed that the death was to determining whether the existing capable of amounting to unlawful and dangerous act T configuration of involuntary manslaughter. manslaughter should be retained as it is, or whether the scope of involuntary manslaughter should be Gross negligence readjusted. Involuntary manslaughter currently The objective test for gross negligence manslaughter comprises two subcategories, unlawful and was laid down in People (AG) v Dunleavy, where the dangerous act manslaughter and gross negligence accused, a taxi driver, drove his unlit car on the wrong manslaughter. The commission’s provisional side of the road and killed a cyclist when he hit him. recommendations might entail redefinition of In quashing his conviction for manslaughter, the unlawful and dangerous act manslaughter and/or Court of Criminal Appeal held that a conviction for placing gross negligence outside manslaughter into a gross negligence manslaughter will not arise unless separate, possibly lower, homicide offence. the prosecution proves that the negligence was of a very high degree and involved a high degree of risk or Unlawful and dangerous likelihood of substantial personal injury to others. Unlawful and dangerous act manslaughter occurs Under the current test, the capacity of the accused to where the killing involves an act constituting a appreciate the risk at the time when the negligent act criminal offence, carrying with it the risk of bodily or omission causing death took place is not relevant harm to the person killed. Generally, the unlawful act to liability. will involve an assault. The second arises where the Convictions for gross negligence manslaughter are death arose from a negligent act or omission by the extremely rare in Ireland. In People (DPP) v Cullagh, accused that involved a high risk of substantial the defendant was convicted of manslaughter where personal injury. the victim died after her chair became detached from In establishing unlawful and dangerous act a ‘chairoplane’ ride at a funfair. The ride was 20 years manslaughter in Ireland, dangerousness is judged old at the time of the accident and had lain in an objectively and liability is constructive. An accused’s open field for three years before the defendant intention to inflict some minor injury to another purchased it. The trial judge directed the jury that the person makes him legally accountable for the defendant had owed a duty of care, both to the unexpected result of his behaviour, that is, death. In deceased and to members of the general public using People v Crosbie and Meehan, the victim died from a the chairoplane. Although the defendant did not knife wound inflicted during the course of a fight at know about the rust in the inside of the machine, the docks. The accused were acquitted of murder, but which caused the accident, he was generally aware of MAIN POINTS convicted of manslaughter. The Court of Criminal the decrepit state of the ride. The Court of Criminal • Involuntary Appeal held that the act must be both unlawful and Appeal refused the defendant’s application for leave to manslaughter dangerous. Here, the act was unlawful and dangerous appeal and affirmed the conviction for gross • Redefining because the knife was brandished in order to frighten negligence manslaughter. ‘unlawful and or intimidate, and not in self-defence. dangerous act People v O’Donoghue is a recent example of unlawful Reform options manslaughter’ and dangerous act manslaughter where death arose The LRC provisionally concluded that, in general, • ‘Gross negligence’ out of an assault – that is, the accused caught the the current law of involuntary manslaughter is as a lower deceased boy in a headlock and forcibly grasped his satisfactory, but that a number of specific homicide offence? neck. The Court of Criminal Appeal noted that the amendments should be considered. As regards trial judge’s description of the act as being at the moderate reform of unlawful and dangerous act
26 www.lawsociety.ie CRIMINAL LAW LAW SOCIETY GAZETTE JULY 2007 liaisons PIC: REX FEATURES
When conga lines go bad
manslaughter, the commission discussed the responsible for whatever consequences ensue, possibility of restricting this category of constructive regardless of whether they were unforeseen or homicide to those who deliberately attack others. The unforeseeable. commission suggested that this offence might be The commission observed that the severity of named ‘causing death by assault’ or ‘killing by attack’, unlawful and dangerous act manslaughter might be so as to describe the essence of the wrongdoing in the tempered by requiring the act to be unlawful and life offence label. The commission did not ultimately threatening, rather than simply ‘dangerous’. Such a subscribe to such a change to the law, but would reform would mean that people who unforeseeably welcome submissions on this point. caused death due to a minor act of violence would The commission believes that the most escape liability, because the acts of punching someone problematic aspect of unlawful and dangerous act once in the face or pushing them in the supermarket manslaughter is the fact that it very severely punishes queue are highly unlikely to end in death. people who deliberately engage in low levels of violence. An accused who punches a person with a Radical options thin skull in the face once, with fatal results, can be The commission also looked at radical options for found guilty of manslaughter, despite the fact that reform. It discussed the structure of homicide under neither the accused nor a reasonable person in a the Indian Penal Code and the Model Penal Code and similar situation would have foreseen death or serious suggested that radical reform of involuntary injury as a likely outcome of the assault. A manslaughter might involve making subjective manslaughter conviction is possible because the act of recklessness the mens rea for the offence. On this deliberately harming someone renders the wrongdoer basis, therefore, a conviction for manslaughter would
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dangerous act manslaughter and be prosecuted as DANGEROUS DRIVING assault instead. Under this proposal, a person who Most fatal road-traffic cases caused by negligent or aggressive driving lead to pushes someone, causing them to fall and fatally hit charges of dangerous driving causing death. This offence was introduced in the their head off the ground, would be charged with 1960s, after juries persistently acquitted drivers who had been charged with assault rather than manslaughter. In relation to manslaughter. In addressing reform of motor manslaughter and the related punishment, the commission was of the view that the statutory driving offences, the commission discussed the option of simply fact of death renders the assault more serious and maintaining the legal status quo, as well as the possibility of excluding road therefore justifies the imposition of a more severe deaths from the scope of manslaughter. The potential abolition of the statutory sentence than in a case of a minor assault where no driving offences was also considered. fatality results. The commission expressed the provisional opinion that the specific offence of Secondly, the commission provisionally dangerous driving causing death should continue to exist alongside the more recommended that, in the event of a person assisting serious offence of manslaughter. The commission believed that prosecutions for another by supplying drugs, preparing a syringe manslaughter might be appropriate in extreme road-death cases of very high containing heroin, holding a belt as a tourniquet or culpability, such as in the English case of R v Spree and Keymark Services Ltd directly injecting a drug, and death results, that (2004). There, the manager of a trucking company was convicted of manslaughter person should not be charged with such a serious after one of his employee truck-drivers fell asleep at the wheel halfway through an homicide offence as manslaughter. The commission 18-hour shift and crashed through a motorway crash barrier, killing himself and took this stance, not simply because of the difficulties two other motorists. It emerged that the manager had organised a bonus scheme involved in identifying the base unlawful act for the for employees who drove shifts longer than those prescribed by law. purposes of causation in unlawful and dangerous act The commission also provisionally recommended that judges should be able to manslaughter, but because typical English drug- take the fact that a death occurred into account when imposing sentence in injections cases such as R v Kennedy and R v Dias careless driving cases, where the prosecution clearly established the culpability of involved a free, deliberate and knowing act of the the accused. deceased. The commission considered that moderate reform of gross negligence manslaughter might include only arise if the prosecution proved that a person who making the capacity of the accused at the time of the assaults another foresaw that death or serious injury alleged gross negligence relevant to the issue of was a probable (as opposed to a virtually certain) culpability and/or raising the level of risk from “risk consequence of the assault. or likelihood of substantial personal injury” to “risk of The commission made two main provisional death” or “risk of death or serious injury”. Since recommendations in relation to unlawful and 1994, when the House of Lords upheld an dangerous act manslaughter. Firstly, it provisionally “A conviction anaesthetist’s manslaughter conviction in R v recommended that low levels of deliberate violence Adomako, the English test for establishing gross should be removed from the scope of unlawful and for manslaughter negligence manslaughter is stricter than the Irish one, would only by requiring that the risk posed by the defendant’s negligence apply to death only. LOOK IT UP arise if the The commission also investigated the possibility of Cases: prosecution placing death caused by gross negligence into a lesser • People (AG) v Crosbie and Meehan [1966] IR 490 category of killing, such as negligent homicide. The • People (AG) v Dunleavy [1948] IR 95 proved that a homicide ladders of the Indian Penal Code and the • People (DPP) v Cullagh (93/1998 IECCA, person who Model Penal Code position negligent, inadvertent unreported), Irish Times report, 31 May 2000 killings in a less culpable category than manslaughter. • People (DPP) v O’Donoghue [2006] IECCA 134 assaults another The commission provisionally recommended that • R v Adomako [1994] 3 All ER 79 foresaw that the current test for gross negligence manslaughter • R v Dias [2001] EWCA Crim 2896 should be amended so that a person would only be • R v Kennedy [1999] Crim LR 65 death or serious liable for gross negligence if he or she was mentally • R v Spree and Keymark Services Ltd, Crown Court, injury was a and physically capable of averting to, and avoiding December 2004 the risk of, substantial personal injury at the time of probable the fatality. The commission was satisfied that Legislation: consequence criminal liability for negligence should only arise • Indian Penal Code 1860 where a person was capable of meeting the law’s of the assault” expectations but failed to behave as a reasonable Literature: person in the same situation would. G • American Law Institute, Model Penal Code and Commentaries (2nd ed, 1980), part II §210.0-210.6 Jane Mulcahy is a legal researcher at the Law Reform • Law Reform Commission, Consultation Paper on Commission. Those who wish to comment on any of the Involuntary Manslaughter (LRC CP 44-2007) – commission’s provisional recommendations may make available online at www.lawreform.ie. their submission in writing by post to the commission or by email to [email protected].
www.lawsociety.ie 29 LAW SOCIETY GAZETTE JULY 2007 LANDLORD AND TENANT GO, MOVE,
Tenants may appear to have a right to a new tenancy, but landlords may have a way out. As the law stands, avoiding the grant of a new tenancy is possible. Andrew Sexton calls the bailiffs
n an era of quickening development and precluding or undermining the termination of the redevelopment of property, landlords and tenancy. tenants must tune into the minutiae of their Where a periodic tenancy is terminated, however, statutory rights. Legal advisors of clients the complication of relief against forfeiture does not I embroiled in (or heading towards) a dispute arise, and a well-advised landlord may seek to build over the granting of a statutory tenancy need to up a case for the application of section 17(1) by examine closely the provisions of the Landlord and carefully worded correspondence in advance of Tenant (Amendment) Act 1980. A tenant may appear serving a notice to quit. It is not customary to state to have a right to a new tenancy, but does the act in the notice itself why the tenancy is being provide the landlord with a way out? terminated (and to suggest doing so here might add The answer is contained mainly in section 17, to the heap of mistakenly drafted notices), but pre- which is entitled ‘Restrictions on right to a new notice correspondence provides an opportunity to tenancy’. To understand this section, it is helpful to lay the foundation for reliance on section 17(1). consider that there are two broad categories within Given the distinction between service of a it. The first is contained in subsection 1, which lists forfeiture notice and service of a notice to quit, the a number of ways in which (generally speaking) the landlord with a tenant on a long periodic tenancy tenant’s own conduct causes the loss of the right. (or a periodic tenancy after a fixed term) is the The second category is contained in subsection 2, landlord most likely to try to rely on section 17(1). which lists various ways in which the tenant can lose If there is non-payment of rent or a breach of the right by virtue of the landlord’s particular covenant, and the landlord serves a notice to quit circumstances. expressly for either reason, the tenant will be in difficulty. Legal advisors of tenants with prima facie The errant tenant rights to new tenancies ought to be aware of these If the right is lost by the application of section 17(1), potential difficulties. In the case of a tenant with the tenant gets no compensation for disturbance, so rights who is nearing the end of a fixed term, it it can be of great financial benefit to a landlord to would seem sensible to address the issue of a new find that the provisions of this subsection apply. lease before the tenant drifts (as many do) into a These provisions do need to be read in full, but post-term periodic tenancy. frequently encountered circumstances that are covered by the provisions consist of termination of a Real reason tenancy due to non-payment of rent or termination Aside from cases involving non-payment of rent or on account of a breach of covenant. In either breaches of covenant, section 17(1) also allows for MAIN POINTS circumstance, the right to a new tenancy is lost. new tenancy rights to be lost if the tenancy is • Landlords can Given that non-payment of rent is widespread, terminated for “good and sufficient reason”. This is avoid granting new and breaches of covenant are common, it is on the broadly defined in section 17(1)(b) as “a reason tenancies face of it surprising that more landlords do not avail which emanates from or is the result of or is • Landlords can of this subsection. One practical reason may be that, traceable to some action or conduct of the tenant avoid paying when the time comes around for claiming the right and which, having regard to all the circumstances of compensation to a new tenancy, the tenant is less likely to give the the case, is in the opinion of the court a good and • Tenants must landlord an opportunity to terminate for these sufficient reason for terminating or refusing to know when reasons. Furthermore, the attempted forfeiture of a renew (as the case may be) the tenancy”. exceptions apply lease within term rarely provides an opportunity for This definition is narrowed by the requirement • Periodic tenants considering whether a new lease ought to be that the reason be both “good” and “sufficient” and, need to be careful granted, and it opens up the possibility of relief while the case law on this subsection is limited, it is against forfeiture, which is itself a means of generally accepted that the reason must be a very
30 www.lawsociety.ie LANDLORD AND TENANT LAW SOCIETY GAZETTE JULY 2007 SHIFT PIC: REX FEATURES
convincing one: “[The tenant] is not to forfeit the then section 17(2) becomes important. Its provisions immense advantage promised by statute, unless the are detailed and require careful reading, but court is of the opinion, in all the circumstances of generally speaking they enable a landlord to avoid the case, that he ought to pay that penalty” (per granting a new tenancy if the landlord intends or Gavan Duffy J in McEvoy v Arnott & Co). has agreed to pull down and rebuild or reconstruct It has been said that the reason must be the real the buildings at issue and has planning permission reason and not, for example, a device to enable a for the work. The same applies if the landlord landlord to obtain possession for redevelopment requires vacant possession for the purpose of purposes. If a real reason does exist, however, the carrying out a scheme of development and has fact that the landlord requires possession for planning permission for the scheme. development purposes ought not to nullify it. In It must be emphasised that these provisions only these circumstances, legal advisors need to take arise for consideration in the context of an careful instructions as to the wider activities of a application for a new tenancy, so they are of no given tenant. The usual reasons for termination, assistance in bringing an existing tenancy to an end. such as failure to pay rent, failure to repair, Furthermore, if they do apply, the tenant has to be commission of nuisances by tenants and suchlike, compensated fully, so they are costly in their will often be covered by the specific categories operation. referred to above, but the “good and sufficient In the case of both development exceptions, the reason” category can be useful to landlords faced planning permission provisions are probably of with difficult tenants not constrained by express overriding significance, since the landlord, and not covenants capable of being breached. some other party, must have the planning If the tenant has done nothing wrong, but the permission. If the landlord’s real reason for seeking landlord wants to do something with the property, to avoid a new tenancy is to facilitate an onward sale
www.lawsociety.ie 31 LAW SOCIETY GAZETTE JULY 2007 LANDLORD AND TENANT
to a developer, careful advice needs to be given to that is of potential assistance to the landlord seeking avoid falling outside the provisions of the 1980 act. to recover possession from a tenant who might The landlord could seek to assign his interest to a otherwise be intent on staying put and availing of developer who has obtained planning permission (or new tenancy rights as they arise. The section in is seeking it), leaving the developer to then try and question is the seldom, if ever, invoked section 60. rely on section 17(2). However, the landlord who This section again requires careful reading, but it tries to sell on undeveloped property that has generally provides that, where buildings are situate already benefited from a section 17(2) restriction is in an obsolete area, or their age, condition and at the very least running the risk of a punitive character is such that repairing them would involve damages award pursuant to section 17(4). It is a expenditure excessive in relation to their value, or situation calling for careful consideration and advice. they cannot be profitably used unless reconstructed There is one helpful paragraph tucked into the or altered, the court may terminate the tenancy if it end of section 17(2), enabling the landlord to avoid considers it reasonable to do so. It only applies if the granting a new tenancy if “for any reason the tenant holds for a term of which not less than three creation of a new tenancy would not be consistent and more than 25 years are unexpired, and the with good estate management”. These provisions landlord must have a scheme for the redevelopment are made helpfully vague by the lack of any defining of the property and have planning permission. Its section in the act. They have been relied on in application is therefore limited, but it may represent various cases and held to include prudent the only option open to a landlord faced with an management of adjoining or contiguous properties intransigent tenant who might otherwise succeed in (Stakelum v Ryan) and the desire to achieve a good thwarting an entire scheme of development. ‘mix’ of tenants in a shopping centre (OHS Ltd v Subsection 3 gives the court very wide Green Property Co). compensatory powers, but these may be palatable to a landlord if the alternative is a tenant refusing to The hidden exception surrender at any price. The concept of an ‘obsolete The Law Reform Commission’s recent consultation area’ has recently been redefined as an area to which paper on business tenancies suggests that a further an ‘integrated plan’ relates (per the Residential exception should be created to cover the Tenancies Act 2004), and shifting trends and property circumstance of a landlord requiring a building for values may now lead to the dust being shaken from personal use. In advance of any legislative change in section 60. this area, it is arguable that the “good estate management” provisions are so vague as to already The last refuge allow for this further exception – an argument that Apart from the statutory restrictions referred to may create some commercial leverage at times, but above, there is the possibility of a new tenancy being not a convincing one. avoided by means of an equitable estoppel. Take, for Aside from the statutory provisions referred to example, a tenant who gains possession of premises above, there is one further section in the 1980 act by representing that it is for temporary purposes, pending relocation to another premises, and that no statutory rights will be enforced. If the landlord LOOK IT UP relies on such a representation, to its ultimate Cases: detriment, can an estoppel be raised to avoid • Bank of Ireland v Fitzpatrick, unreported, High granting a new tenancy? The anti-contracting out Court, 28 July 1988 provisions contained in the 1980 act (section 85) • Dolan v Corn Exchange Corporation [1983] IR 269 militate against this argument succeeding, and there • McEvoy v Arnott and Co Ltd [1943] IR 214 is the principle that there ought to be no estoppel in • OHS Ltd v Green Property Company Limited the face of a statute, but the continued development [1986] IR 39 of the law of estoppel is such that one could not rule • Stakelum v Ryan (1979) 114 ILTR 42) it out entirely. As the law stands, avoiding the grant of a new Legislation: tenancy is possible, and legal advisors need to be • Landlord and Tenant (Amendment) Act 1980 aware of the various possibilities. The entire area of • Landlord and Tenant (Amendment) Act 1994 landlord and tenant law is soon to be reported on by • Residential Tenancies Act 2004 (section 199) the Law Reform Commission, and legislative • Urban Renewal Act 1998 (section 7) changes will no doubt be proposed. Even if proposals are adopted, however, certain restrictions Literature: on the granting of new tenancies are likely to • Law Reform Commission, Consultation Paper on remain, so this is an area that needs to be monitored Business Tenancies (LRC CP 21-2003) carefully. G • Wylie, Irish Landlord and Tenant Law (2nd edition) Andrew Sexton is a barrister in general practice.
32 www.lawsociety.ie LAW REFORM LAW SOCIETY GAZETTE JULY 2007
PIC: GETTY IMAGES LIVING the
ethos?The winning entry in this year’s Law Reform Student Essay Competition is ‘Section 37(1) of the Employment Equality Act: living the ethos?’ This version of the winning essay has been abridged for the Gazette by the author, Mark Coen MAIN POINTS n an age where the focus of employment law is ethos-based exemption in the European Framework on eliminating discrimination and fostering Directive on Discrimination in Employment. • Employment equality in the workplace, any derogation from A statutory provision that legitimises Equality Act 1998 these principles is noteworthy. A derogation discrimination demands the strictest scrutiny. There • Exemption relating rooted in the ever-controversial sphere of must be balance – in this case, balance between the to certain religious I religion becomes doubly conspicuous. Ireland, with rights of the religious employer to maintain a institutions its historical dependence on religious denominations religious ethos and the rights of the employee to • Religious ethos as providers of education and healthcare, has earn a livelihood and have their privacy respected. It and matters of enshrined an exemption relating to certain religious is arguable that present Irish legislation fails to discrimination institutions in the Employment Equality Act 1998 and attain the appropriate balance. was instrumental in securing the inclusion of an At the time of the drafting of the Employment
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sexual orientation and relationships. How else could an employer identify those candidates who must be ruled out of consideration for fear that they would undermine the ethos? The application of the second limb of the exemption to existing employees raises the question of those employees who work diligently and in apparent harmony with the ethos of the institution concerned, but whose private lives are not in
PIC: GETTY IMAGES conformity with the tenets of that religion. Should the inspirational English teacher, who takes his or her responsibilities seriously and has never criticised or disrespected the school’s ethos, live in fear that, if his or her relationship with a partner of the same gender becomes known, they may be removed from their job? To paraphrase the dissent of Henchy J in Norris v AG, does section 37 not condemn such people to “intolerance, harassment, blackmail and other forms of cruelty” to an extent that is “inimical Equality Act, it was felt that, in order to avoid to the common good”? constitutional difficulties, an exemption for It could be said that section 37 retrospectively institutions under religious management would be validates the decision in the infamous case of Flynn v required. The proposed exemption led to much Power, in which the dismissal of a teacher from a debate and was opposed by the National Women’s convent school because of her relationship with a Council of Ireland, the Irish Congress of Trade married man was upheld by the High Court. Unions and the Irish National Teachers’ However, the section raises issues beyond the realm Organisation (INTO), among others. of the private sexuality of employees. If a teacher The passage of the then bill was dogged by intervenes to stop homophobic bullying and, in the heated accusations that various sections were process, discusses sexual diversity, is that teacher discriminatory, but the religious exemption was undermining a religious ethos? retained and is found in section 37(1) of the act. Given that ‘religious ethos’ embraces much more The exemption allows a religious, educational or than mores of sexuality, but generally includes medical institution under the control of a religious broader values such as charity, honesty and civic body to discriminate on the grounds of religion responsibility, could a nurse in a hospital managed regarding employees or prospective employees. This by a religious congregation be dismissed if it was is reasonable and proportionate, as it is arguable that discovered that he or she was exploiting an asylum a religious ethos cannot be preserved unless co- seeker as a cleaner or had stolen from a local religionists can be favoured. Further, the decision of supermarket? Crucially, what religions come within the Supreme Court in Quinn’s Supermarket v AG, to the terms of section 37(1)? In an increasingly the effect that discrimination can be required to give multicultural Ireland, this is a matter of no little effect to freedom of religion, would appear to make import. Would the Church of Scientology or this limb of the exemption a constitutional Druidism qualify? prerequisite. It is the second limb of the exemption that is Out of sight objectionable. This permits an institution under Section 37(1) would appear to be in breach of article religious management to take any action that is 4(2) of the Framework Equality Directive, which states reasonably necessary to prevent an employee or that a difference of treatment in relation to prospective employee from undermining its ethos. preservation of a religious ethos may only have its This provision of the act is extremely wide-ranging, basis in a person’s religion or belief, and should not as it is not limited to discrimination on the grounds justify discrimination on another ground. of religion. Furthermore, the directive requires that such a discrimination “constitute a genuine, legitimate and Burning ground justified occupational requirement, having regard to The subsection applies to prospective, as well as the organisation’s ethos”, whereas, as we have seen, existing, employees and therefore allows an section 37(1) refers only to “reasonable” or employer to refuse employment to an applicant on “reasonably necessary”. Section 37 is also in conflict the basis that they would undermine the ethos of the with Smith and Grady v UK, in which the European institution. Thus, it would seem that an interview Court of Human Rights held that a breach of article for a job in a religious institution could involve 8, on the right to respect for one’s private life, had questions about deeply personal matters such as occurred in the case of the applicants, who were
34 www.lawsociety.ie LAW REFORM LAW SOCIETY GAZETTE JULY 2007
members of the British armed forces. A breach the reference to prospective employees would be occurred both in relation to investigations deleted, and the following additions would be made: conducted into their sexual orientation and in their “The undermining of an ethos does not arise by subsequent discharge on the grounds of their virtue of the fact that an employee possesses a homosexuality. characteristic which constitutes a discriminatory The Supreme Court has upheld the ground under section 6 of the act. constitutionality of the exemption. In Re Article 26 “The ethos of an institution may only be and the Employment Equality Bill 1996, Hamilton CJ, undermined by the conduct of an employee in the speaking for the court, said that the question of course of his/her employment. The private life of the what is reasonably necessary to protect an ethos employee may not be so invoked.” “will rest with the court, and the court in making its Under the revised subsection (1)(a), a religious overall decision will be conscious of the need to institution could favour an existing or prospective reconcile the various constitutional rights involved”. employee on the religion ground, thus maintaining This provides scant solace to an employee whose their ethos. The language used is that of the lifestyle conflicts with the ethos of the institution, Framework Directive, ensuring greater compliance however, as the Irish courts have been consistently with European law. The revised subsection (1)(b) deferential to religious interests. “The exemption would render the private life of the employee off The Supreme Court was undoubtedly correct in allows a limits, but failure to support and adhere to the Re Article 26 and the Employment Equality Bill when it institutional ethos in one’s professional capacity said that, under the Constitution, freedom of religious, would constitute grounds for action by the religious religion had to be given “life and reality”. The educational or employer. Thus a prospective or existing Protestant creation and maintenance of a religious ethos in teacher could be preferred for appointment or institutions managed by various denominations is medical promotion in a Protestant school, but a Catholic obviously an important aspect of this freedom. institution under teacher could not be dismissed on the grounds that However, the current law is arguably weighted too his or her non-adherence to the religion of the much in favour of the institution, without regard to the control of a school was undermining its ethos. Similarly, a doctor the rights of the individual. religious body to in a religiously managed hospital could be dismissed for advocating euthanasia in defiance of the ethos, Philosopher’s stone discriminate on but could not be dismissed if it were discovered that A reform is proposed in which section 37(1)(a), the grounds of he/she was cohabiting with a same-gender partner. permitting the favouring of co-religionists, would be Any reform would be wise to consider the amended so that this could only occur where, in the religion workability of including a definition of ‘ethos’ and words of the directive, “religious belief constitutes a regarding the incorporation of a procedure whereby religious genuine, legitimate and justified occupational denominations could apply for recognition as a requirement, having regard to the organisation’s employees or religion for the purposes of the act. ethos”. prospective At present, section 37 – and in particular, In section 37(1)(b), relating to action reasonably subsection (1)(b) – is more redolent of a draconian necessary to prevent the undermining of an ethos, employees. disciplinary code than a provision of an equal- This is opportunities statute. In effect, it undermines the egalitarian ethos of the Employment Equality Act as a LOOK IT UP reasonable and whole. It has been criticised by the United Nations Cases: proportionate” Human Rights Committee. The formation of a • Campaign to Separate Church and State v support group for lesbian, gay, bi-sexual and Minister for Education [1998] 3 IR transgendered teachers within the INTO, and their • Flynn v Power [1985] IR 648 attempts to have the imbalance of section 37 • Loscher v Mount Temple Comprehensive School addressed, is but one indicator of the need for [1994] ELR 84 reform in this area. Given the increasing numbers of • McGrath and O’Ruairc v Trustees of Maynooth cohabiting couples – of every sexual orientation – the College [1979] ILRM 166 number of employees who could fall foul of the • Quinn’s Supermarket v Attorney General [1972] IR 1 exemption is not insignificant. The preponderance of • Re Article 26 and the Employment Equality Bill religiously managed schools, especially at primary 1996 [1997] 2 IR 321 level, makes this a pressing issue. Uncertainty • Smith and Grady v UK [1999] 29 EHRR 493 regarding one’s security of tenure leads to under- performance, stress and anxiety in an employee. If an Legislation: enlightened approach is taken, the preservation of • Bunreacht na hÉireann, article 42 religious ethos and the promotion of equality need • Employment Equality Act 1998 not be mutually exclusive. G • European Framework Directive on Discrimination in Employment, 200/78/EC, 27 November 2000 Mark Coen is an LLB candidate and scholar at Trinity College, Dublin.
www.lawsociety.ie 35 LAW SOCIETY GAZETTE JULY 2007 EMPLOYMENT LAW You’ve been TERMINATED Employers must consult with employees before terminating contracts of employment and cannot implement redundancies until at least 30 days from the start of the consultation process. Ian Moore examines employers’ responsibilities
ollective redundancies have been employers now had to give the information and regulated by a 30-year-old piece of embark upon consultation, arguably for those 30 legislation, the Protection of Employment days, and only after consultation could they give Act 1977. The act’s provisions are notice of intention to make the employee Ctriggered where there might be as few redundant. The effect of this was to prolong the as five employees being made redundant over a 30- period between initiation of the process and the day consecutive period by an employer who implementation of redundancies. The 1977 act was employs between 20 and 50 employees. This not amended, but employers now had to be advised minimum number increases depending on the size that they could not give notice to employees until of the workforce. The effect of the 1977 act was to such time as the consultation had concluded. add a layer of information and consultation that was not otherwise required in respect of individual Hasta la vista, baby redundancies covered by the Redundancy Payments The 2007 Protection of Employment Act (Exceptional Act 1967. Collective Redundancies and Related Matters) Act is, In short, the employer must give certain therefore, welcome to the extent that it tidies up this information to the representatives of the employees gap in legislation. With section 12, it amends the likely to be affected by the proposed redundancies, 1977 act so that it now provides: “Consultations and give that information to the Minister for under this section shall be initiated at the earliest Enterprise, Trade and Employment, and also enter opportunity and in any event at least 30 days before into consultations with a view to reaching an the first notice of dismissal is given.” agreement with the representatives. The employer The 2007 act did not, however, have its origins in is prohibited from implementing those redundancies the Junk case. Instead, it had its origins in the very until at least 30 days expire from the public Irish Ferries dispute. The partnership commencement of the process. Historically, discussions were concluded in ‘Towards 2016’, therefore, employers have given the information to where the social partners agreed on measures the representatives and the minister on the first day, designed to prevent its recurrence. This has, in turn, and probably also issued notices of redundancy at been converted into legislation in the 2007 act. the time or shortly thereafter, and have then The issue that ‘Towards 2016’ and, in turn, the embarked upon consultation with employee 2007 act was intended to address was the “collective MAIN POINTS representatives, but not implemented the compulsory replacement of workers by lower-paid • Terminating redundancies until the expiry of those 30 days. workers” from the newer EU member states. contracts of While the 1977 act was amended by statutory Legislative effect is given to this by section 16 of the employment instrument on a number of occasions over the years, 2007 act, which in turn amends section 7(2) of the • Section 12 and the perhaps the most significant impact on it came with Redundancy Payments Act 1967. It defines an 30-day the decision of the European Court of Justice in the ‘exceptional collective redundancy’ as being the consultation phase case of Junk v Kühnel. That case imposed upon involuntary redundancy of a number of employees • The Redundancy employers an obligation to consult prior to deciding and their replacement by the employer at the same Panel and the to terminate contracts of employment. This meant location or elsewhere in the state (except where the Labour Court that an employer could not on ‘day one’ inform, employer has an existing operation with established give notice, and then start consultation. Instead, terms and conditions) by other persons who are
36 www.lawsociety.ie EMPLOYMENT LAW LAW SOCIETY GAZETTE JULY 2007
HR in the 21st century is a tough business either directly employed by the employer, or by • The employment of agency workers for others who are provided to the employer. temporary or recurrent business needs, Effectively, the same functions are performed but • The use of outsourcing, contracting out or other the terms and conditions of employment of the forms of business restructuring. substitute workers are “materially inferior to those of the dismissed employees”. Parallels can be seen However, this is subject to the proviso that the with the Irish Ferries circumstances. circumstances are “other than” those referred to in While the circumstances of the Irish Ferries the amendment made to the Redundancy Payments dispute may well be unique, there have been many Act, which defines exceptional collective situations when businesses have contracted out or redundancies. Therefore, if agency workers are outsourced some of their core functions and that, in brought in or if there is a contracting out, it is still turn, have sometimes led to redundancies. In some possible for an argument to be made that the cases, those employees have been replaced by others. circumstances are not excluded if the elements of the Unlike the Irish Ferries situation, these definition of exceptional collective redundancies can redundancies may have arisen from an amalgamation be said to apply. of employee functions with those of other individuals. The key driver for such decisions is Judgment day often cost, and in many such cases it may well be The 2007 act establishes a process by which a that the replacement employee costs less. On the determination can be made by the Labour Court as face of matters, such outsourcings might now be to whether or not particular circumstances constitute caught by the issue we are told the 2007 act was an exceptional collective redundancy. Where an meant to address. employer proposes to create collective redundancies, Section 4(2) states that, “for the avoidance of they or the employee representatives can write to the doubt”, the provisions of the 2007 act do not chairman of the Redundancy Panel (established by apply to: section 5), referring the particular circumstances to
www.lawsociety.ie 37 LAW SOCIETY GAZETTE JULY 2007 EMPLOYMENT LAW
the panel for its consideration. lifted – in the case of an employee with under 20 The panel informs the Minister for Enterprise, years’ service to 208 weeks’ pay, and in the case of Trade and Employment and also invites the parties employees with over 20 years’ service to a limit of to make submissions in relation to the proposed 260 weeks’ compensation; collective redundancies. The panel, having • Where the collective redundancy is implemented considered the matter, either requests the minister in disregard of the required consultation period to seek an opinion from the Labour Court as to and notice, the employer is guilty of an offence whether the proposed collective redundancy is an and liable on conviction on indictment to a fine exceptional collective redundancy, or it expresses the not exceeding €250,000. view that certain preconditions to the panel’s determination of matters have not been satisfied. I’ll be back The minister can make a request to the Labour It will be the brave, or perhaps foolish, employer Court to issue its opinion. As a result of section 8(4), who will press ahead with redundancies in no appeal lies from an opinion given by the Labour circumstances where there has been an opinion of Court. the Labour Court that the circumstances constitute The giving of an opinion by the Labour Court an exceptional collective redundancy. For most that the circumstances constitute an exceptional employers awaiting the opinion of the Labour collective redundancy can have very serious Court, the concern – if not frustration – is going to implications for the employer who, despite the be around the delay it will cause to the ability of the court’s opinion, progresses with those redundancies: employer to implement the redundancy. • Where the employer pays statutory redundancy Immediately after a matter is referred to the lump sums to the affected employee, the minister redundancy panel, it will have the effect of extending can refuse to pay the 60% rebate; the time during which a dismissal may not take • The exemption from income tax that usually place. This is less likely to be an issue where the applies to statutory redundancy payments will not referral is made early in the 30-day consultation apply; period, but will become one the later the referral • If a claim is brought by an employee made takes place. compulsorily redundant under an exceptional Of the “related matters” referred to in the title of collective redundancy, the ceiling of the the act, the most significant measure is the removal Employment Appeals Tribunal’s award can be of the previous upper age limit of 66 years for the entitlement of an individual to a redundancy payment and the protection of the Redundancy LOOK IT UP Payments Act. Cases: The 2007 act may ultimately prove to be a storm • Junk v Kühnel (2005) IRLR 310 in a teacup. This will depend upon the extent to which we see referrals being made to the Legislation: Redundancy Panel, the delay factor that it has on • Protection of Employment Act (Exceptional proposed collective redundancies, and the Collective Redundancies and Related Matters) Act interpretation that the Labour Court places on the 2007 particular circumstances. G • Protection of Employment Act 1977 • Redundancy Payments Act 1967 Ian Moore is a partner and head of employment law at A&L Goodbody.
38 www.lawsociety.ie EDUCATION LAW SOCIETY GAZETTE JULY 2007
PIC: NATIONAL GEOGRAPHIC/GETTY IMAGES Canterbury Tales The education committees from the law societies of Ireland, England and Wales, Scotland, and Northern Ireland met in Canterbury this year to discuss policy and strategy. Dominic Dowling’s paper ‘On being a solicitor – or a member of the legal profession – in 2007’ won many plaudits and is abridged here by the author
n the years before the Norman Conquest, for Common Pleas and, finally, the King’s Bench. the ‘well off’, resolution of serious disputes was This common-law court process was, almost from largely accomplished by force of arms. For the beginning, hopelessly rigid and procedure more ordinary folk, local custom, enforced by bound. It was expensive, slow and delivered MAIN POINTS Iinformal arbitrary public assemblies, served the remedies ‘as of right’ instead of just decisions. purpose. For rich and poor alike, either route could People began to petition the king seeking to • The development be dangerous, unpredictable and expensive. During alleviate the consequences of some of the more of the legal the 300 years after William the Conqueror, the bizarre common-law decisions. The king quickly profession kings (in some respects pushing an open door) delegated the hearing of these petitions to his • The legal system unified diverse local customs and courts into a chancellor and, from this, there emerged equity and and the evolution system that became broadly known as common law the Courts of Equity. Equity set about the of society (common to the whole country). recognition and enforcement of a diverse set of • Competency and As society developed, so dispute resolution by ‘natural law’ principles. In 1474, there is the first fitness of negotiation and adjudication became more valued record of the chancellor issuing a decree in his own character and widespread. From the king in council (the name. The modern court system was substantially • The desire to see precursor to parliament), there emerged (in an early born. Common law (and equity) essentially vest in justice done manifestation of the doctrine of the separation of appellate courts the power to make legal decisions in powers) the Court of Exchequer, the Court of accordance with statute, the constitution, EU and
www.lawsociety.ie 39 LAW SOCIETY GAZETTE JULY 2007 EDUCATION PIC: HULTON ARCHIVE/GETTY IMAGES ‘operated’ the law for society. As part of this process, judges, barristers and solicitors (being ‘operators’ of the law) recognised the need to establish and maintain high standards of character and competency within their professions and for entry to them. They coalesced with each other in the form of societies – called by different names over the years – to ensure the maintenance of high standards. Government took note of the aims and the effectiveness of these societies. It liked what it saw. It empowered them to regulate their professions in the interests of the public. To that end, lawyers were given certain monopolistic rights, which were backed by force of law. The government made it illegal for anybody other than a qualified lawyer to provide certain legal services for reward. This status quo endured for some time. Change was then precipitated by a number of factors including: • Better standards of universal education, • A legal system that was made easier to operate, • The emergence of legal service providers who were non-lawyers, • The emergence of more vigilant consumers, Ride a cock horse: • The operation of competition law, (above) this 15th century engraving depicts the other superior international laws. The decisions of • Abuses by minorities within the legal professions, Man of Lawe from these courts, when so made (based on a system of and Chaucer’s Canterbury precedent), are – with certain ‘exception principles’ • Society posing the question “Quis custodiet ipsos Tales – binding on other courts in the future. custodes?” (“Who guards the guardians?”). (Previous page): Crying This was never an easy system to understand or to out for justice – the operate. There emerged, even in the earliest days, a There is emerging, and in some jurisdictions there murder of Thomas à more directed group of professional advocates who has emerged, state regulatory authorities. In the case Becket, as depicted in could operate the courts system on behalf of others. of solicitors in England and Wales, they are no this stained-glass image in Canterbury Cathedral From their ranks, eventually, judges began to be longer regulated by their Law Society but are appointed. A judgeship was no longer a matter of regulated by the Solicitors Regulation Authority. grace and favour. Judges, barristers and solicitors, in terms of ultimate purpose and in different ways, are all Significance of the profession serving justice through the operation of the legal and In 2007, against this background, what ought it to courts system. Collectively, we term them lawyers. mean to be a solicitor or a member of the legal In tandem with the emerging legal system, society profession? was also evolving. As each developed, so it affected At a macro level, the legal profession is a societal the operation of the other. Parliamentary tool with almost 1,000 years of development behind democracy, property rights, rights of succession, civil it. It helps government devise, administer and war, international wars, the industrial revolution, the enforce the rule of law. It has a proven (but not British Empire, the abolition of slavery, female perfect) track record in so doing. It helps people to emancipation, the universal franchise, two world oppose government and ‘big business’ in wars, the rise and fall of communism, and global circumstances of oppression. Think of the lawyers of communications and corporations – all these events South Africa, in particular Nelson Mandela. and developments took place over the space of Motivated and effective lawyers can, and do, affect centuries. In all cases, law and the rule of law acted the lives of very many people for the better. as prompter, catalyst, facilitator, thwarter, enforcer At a micro level, lawyers carry out and get paid and destroyer. The rule of law (based on justice) was for performing legal tasks that clients are not and is recognised as one of society’s essential competent to do themselves or which, for reasons of components. Governments and political parties cost, expedition or efficiency, they ask lawyers to come and go, but even in times of momentous perform. events, people (and the state), by and large, had At micro and macro level, there is a useful, sufficient confidence to submit themselves to, or illustrative scale upon which a legal task or the assert themselves by, the rule of law. undertaking of an item of legal business can be The rule of law was and is authoritative, graduated. At one end of the scale there is simple pervasive, important and complex. As the law grew transactional and completely non-contentious work. and matured, so too did the body of people who At the other end, there are disputed cases, fully
40 www.lawsociety.ie EDUCATION LAW SOCIETY GAZETTE JULY 2007
contested in open court, where final judgment is If government, or the people whom lawyers serve, enforced by state sanction. Between both ends of cease to view lawyers as people who can be trusted this scale, there have emerged areas of alternative then, in my view, all the technical competencies in dispute-resolution, such as arbitration, mediation the world will not save the profession from and conciliation. Since it is all part of the one degradation, and in some of its branches, possible seamless system, the same principles of justice, truth dissolution. and fair procedure should apply throughout. This If lawyers themselves accept this proposition, then appears sometimes to be forgotten, and so there has we should be doing something now, in 2007, to grown among lawyers a slightly two-faced approach, ensure that the profession is not only technically depending on whether a matter is transactional or competent (for this is a sine qua non for any service contested. This disconcerts clients and governments. provider) but also that those who engage in the In the provision of any service for reward, there is profession have the attributes of character that an element of entrustment. As the matter of the would enable people by and large to ‘trust’ lawyers. subject of the service becomes more grave, so the The old common lawyers in the 12th and 13th level of entrustment increases. The expectations of centuries were noted for their technical the trustor must be matched by manifested and competencies, but these skills weren’t enough to verifiable high standards on the part of the trustee keep the system working. Then, as now, if technical (in this case the lawyer). The standards themselves competency is to be the predominant characteristic “If government, should be constant, regardless of the size, value or for a lawyer, what will motivate a lawyer to seek nature of the service. justice on behalf of his or her clients? From where or the people Since entrustment forms such an essential part of will substantive reforms in the law come? If clients whom lawyers the relationship between lawyer and client – and at a no longer believe that lawyers are particularly macro level between government and the legal interested in justice, then to whom do they turn serve, cease to profession – then, if the former cannot trust the when they encounter occasions of injustice? view lawyers as latter, the whole relationship is in jeopardy. Being technically competent to transact a The desire to see justice done people who can particular piece of legal business is not of itself a From a training and educational standpoint, it seems be trusted sufficient measure to mark out the complete lawyer. to me that the profession ought to produce people A lawyer must also be someone who can be trusted. in whom the public and government can have trust then, in my A lawyer must be a fit and proper person. He or she and confidence for the reasons, among other things, view, all the must be fit for purpose – in terms of character and that they are of good and suitable character and are suitability. He or she must be not only motivated (at least in part) by a desire to see justice technical psychologically sound, but also sound in matters of done. competencies character, morals and behaviour. Technical It seems to me that this is one of the reasons why competency can be objectively measured with we have a period of in-office training (historically in the world will relative ease. Character, suitability, fitness and called an apprenticeship) for solicitors – or devilling not save the propriety are more problematic. at the bar. The best lawyers and the best societies of lawyers profession from Good character have always sought to bring something to society degradation” The distinction between competency and fitness of and to their clients. They have added value, not just character goes further. Technical competencies can in the economic sense of that term, but in its moral be taught with relative ease. Good character is an and ethical sense. So long as lawyers continue to do internal attribute of a person. It is, in turn, based on this (or at least strive to do this), they will hold a belief in a standard of behaviour or a moral code. worthwhile place in society. ‘Teaching’ it is far more problematic. You can I recently heard it said that the small-town lawyer certainly impart all the superficial characteristics of who goes to help his or her client in the local police trustworthiness to a student, but at the end of the station in the early hours of the morning no longer day, it is a ‘hearts and minds’ issue. has anything in common with their colleague who – A good lawyer is someone who is technically at an equally early hour of the morning – is advising competent in the practice of law but is also someone a major corporation in a takeover or merger. I who at least aspires to be of good character, and who disagree. There are many things that separate them, doesn’t just imitate the surface features of ‘good but I believe both lawyers are viewed by their character behaviour’ as part of some quality respective clients as people who are technically assurance exercise. In the same context, and competent and people whom their respective clients returning for a moment to the concept of can trust. They would both probably also view each entrustment, which I believe is central to the work other as colleagues. In 2007, just as in 1207 or 1707, of a lawyer, I pose the question: would a person be lawyers ought to be far more than mere providers of more inclined to trust someone who has a virtuous legal services. G character as opposed to someone who has a vicious character? Dominic Dowling is a solicitor in private practice.
www.lawsociety.ie 41 LAW SOCIETY GAZETTE JULY 2007 PRACTICE MANAGEMENT practice doctor
Got an issue you would like addressed by our panel of practice doctors? Email: [email protected] The times they are a CHANGIN’ ast month we suggested that you keep a ■ Email interruptions: don’t read your email every log of all your day’s activities. Have you time your computer beeps to say you have new mail. done this? The log that you kept during If using Microsoft Outlook, go to ‘tools’, then Paul Davis: “Strive for the last month will show you which ‘options’, under the ‘preferences’ section, click on accuracy instead of problem needs to be solved. Now that ‘email options’, then ‘advanced email options’, and perfection” L you have pinpointed the problem, here are some un-tick all the boxes in the section headed ‘when new initial tips to help you manage your time more items arrive in my inbox’, then click ‘ok’. Depending effectively. on how busy you are, set aside certain times to read your mail throughout the day and stick to them. ■ Not prioritising what is important: the evening ■ People interruptions: allow time to talk to before or at the start of the day, pick the top three colleagues and employees, stick to the point and things you want to get done. Doing the most wrap up brief meetings by standing up and heading difficult or boring tasks first means you will look for the door. Postpone interruptions and say ‘no’ if forward to the easier ones, rather than dreading the you have to. difficult ones. If you get to lunchtime, and you have ■ Not being able to say ‘no’: ask if you need to already done your top three, guess what that will do make the task a priority before saying ‘yes’, to a for your performance? colleague or employee. If it isn’t a priority, then ■ Procrastination: identify the things you usually offer to do it later. Before taking on a new avoid and start them now. Give yourself a time limit commitment, ask yourself if the task or piece of and stick to it. Break the task down into smaller work fits in with your objectives or goals. If it goals and reward yourself with a break or perhaps a doesn’t, then justify why you’re saying ‘no’. snack so that you’re feeling positive before starting ■ Disorganised workspace: organise your the next one. workspace and invest in a good filing system that ■ Perfectionism: strive for accuracy instead of includes document scanning. Keep your desk clear, perfection, use realistic standards and forgive read effectively and write efficiently. Consider mistakes. You’re not being rewarded for your investing in the latest technology to help organise perfectionism, you’re being rewarded for your your workflow. expertise. ■ Ineffective/inefficient meetings: have an ■ Slow decision-making: start by defining the goal agenda. Appoint a timekeeper, and more of a task, then gather the information and the facts. importantly a leader who can ask people to get back Next, see what other options there are and evaluate to the point if it starts to meander. Remember to them. Select an option and implement your agree what the next action is, who is responsible for decision. By evaluating your decision, you can learn carrying it out and within what timeframe. G from and improve your decision-making process. ■ Phone interruptions: carry out easy jobs while Paul Davis is principal of Davis Business Consultants on the phone. Return calls at specific times and be and is a fellow of the Chartered Institute of Management firm but polite with long-winded callers. Accountants.
42 www.lawsociety.ie PEOPLE AND PLACES LAW SOCIETY GAZETTE JULY 2007
Calcutta Runners pound their way towards €200,000
ver 1,000 brave souls ran, ALL PICS: PATRICK BOLGER Owalked, strolled and crawled their way to a damp finishing line at this year’s Calcutta Run on 26 May. Organised annually by the solicitors’ profession under the auspices of the Law Society of Ireland, the 10k event in the Phoenix Park raised over €200,000 for two charities: GOAL in Calcutta and the Peter McVerry Trust for homeless youngsters in Dublin. The money will be divided equally between both charities, which are involved in rescuing street children at home and abroad. Over the past 30 years, GOAL has rescued over 70,000 The hokey cokey, samba and Viennese waltz wouldn’t have looked out of place during the warm-up exercises at Blackhall Place children, while the Peter McVerry Trust has helped Most important of all were numerous homeless youngsters the 1,000 runners, walkers and to break the cycle of supporters who gave so homelessness. generously of their time and For the fourth year running money. As a thank-you gesture, (pun intended), the main all were invited to the post-run sponsor of this year’s event was barbecue at the Law Society’s IrishJobs.ie. The recruitment headquarters in Blackhall Place, agency’s support helps to ensure where 750 participants enjoyed that every cent raised goes to hot food and cool music. the nominated charities. Next year, the Calcutta Run Valuable support was also celebrates its tenth anniversary. provided by numerous Planning has already begun. An volunteers, as well as Riverrock, ambitious fund-raising target of DX, File Stores and Greyhound €300,000 has been set. If Recycling and Recovery. achieved, it will bring overall It’s a family affair. The Calcutta Run attracted contestants – Calcutta Run donations over and supporters – of all ages the past decade to €2 million. The organising committee is grateful for all the support to CALCUTTA RUN GOES GREEN date and looks forward to your Enough plastic bottles and cups to hold 5,000 litres of water, 1,000 assistance next year. Here’s to bananas skins, the leftovers of a barbeque that catered for 750 achieving that momentous people and a lot of paper and other waste besides – the Calcutta Run milestone in 2008! generates a huge amount of money for worthy causes each year, but also a significant amount of waste. For the first time since it began in 1998, this year’s run was billed as a ‘green’ run, with the organisers seeking to minimise the waste generated from the day. The Law Society engaged Greyhound Recycling and Recovery to help develop an environmentally-friendly plan for the day. Its success was due in great part to the co-operation of all those attending the run, and to the ‘green police’ appointed by the Law Society to oversee the waste management for the day. A big thank you to everyone for doing your bit! Over the coming weeks, Leading from the front! President of the Law Society Philip Joyce Greyhound will recycle almost 95% of the material collected on the “I’d like to place an emergency takes on the challenge of the day of the run. call…” The pain kicked in early for Calcutta Run this gravity-challenged contestant
www.lawsociety.ie 43 LAW SOCIETY GAZETTE JULY 2007 PEOPLE AND PLACES Annual dinner a spectacular success
he annual dinner of the Law PICS: LENSMEN McGrory, was also present. TSociety was held on 22 June A guest of note was John in the Presidents’ Hall, Blackhall Hennessy, the solicitor of Baiba Place. Special guests included Saulite, who was murdered in a the Chief Justice Mr Justice suspected contract killing. John’s John Murray, President of the own life continues to remain High Court Mr Justice Richard under threat and he receives Johnson, other members of the armed garda protection, 24 judiciary, Attorney General Paul hours a day. The president Gallagher SC, guest speaker thanked Garda Commissioner Minister for Education and Noel Conroy for the manner in Science Mary Hanafin, various which the force had dealt with members of the Oireachtas and Mr Justice Declan Budd, the former Minister for Justice, Equality and the threat against our many other guests with whom Law Reform Michael McDowell SC, Past President Walter Beatty and colleague’s life. Director General Ken Murphy the solicitors’ profession comes Other luminaries included in contact throughout the year. students of the Law School in The President of the Law Cork, Michelle Cronin and Society Philip Joyce took the Melaine Evans, who earlier this opportunity to acknowledge the year won world first place in the help and assistance the Law International Client Counselling Society receives from various Competition in Sydney. bodies in public life. Finally, the president paid He also acknowledged the tribute to his wife, Rosario work and commitment of the Boyle SC, for her support down judiciary and said that the the years, but particularly during Society welcomed the his year as president. opportunity to meet with its friends in a social setting. Congratulating the new Winners of the International Client Counselling Competition Michelle Attorney General Paul Cronin and Melanie Evans met Boyce Shubotham at the annual dinner Gallagher SC, Philip pointed out that both Paul and he had other,” he joked. Ireland James Cooper and been in the same class in Other guests included Junior Vice-President Donald secondary school. “Academically, Chairman of the Bar Council, Eakin. The first solicitor Paul always came at one end of Turlough O’Donnell, President appointed Queen’s Counsel in the class while I was towards the of the Law Society of Northern Northern Ireland, Barra
Past president Michael V O’Mahony and Labour Party leader Pat Rabbitte
Sean Kelly (executive chairman, Irish Institute of Sport) and President Philip Joyce, Minister for Education and Science Mary Hanafin TD, who was the guest speaker, President of the Law Society Senior Vice-President James MacGuill and Junior Vice-President John Costello Philip Joyce
44 www.lawsociety.ie PEOPLE AND PLACES LAW SOCIETY GAZETTE JULY 2007
FACES IN THE CROWD
Sinead Kearney (BCM Hanby Solicitor John Hennessy, Garda Commissioner Noel Conroy, Wallace) and Gazette Editor Mark Deputy Director General Mary Keane and Deputy Garda McDermott Commissioner Fachtna Murphy
Maura Derivan (Council member), Rosario Boyle SC, Mary Delahanty (County Registrar, Tipperary), Minister Mary Hanafin TD and Judge Elizabeth McGrath
Paul O’Higgins SC (Vice-Chairman of the Bar Council), Peter Boyle (President of the IRFU), John F Buckley (solicitor) and Chief Justice, Mr Justice John L Murray
www.lawsociety.ie 45 LAW SOCIETY GAZETTE JULY 2007 PEOPLE AND PLACES
Goodness, gracious, great balls of fire!
he fourth annual DSBA ALL PICS: EDEL KENNEDY TYounger Members’ Summer Ball was held in the Westbury Hotel, Dublin, on Saturday 26 May. The committee’s great efforts ensured an evening to remember. The superb meal was followed by a raffle, with impressive prizes on offer. The post-dinner dance encouraged just about everybody onto the dance floor until the early hours. The summer ball has now firmly Hilary Flynn and Michael Shoebridge established itself in the social represented sponsors Brightwater It was all grace and style at the DSBA Younger Members’ Summer Ball calendar. Keep an eye out for Recruitment at the DSBA Younger (l to r): Sandra Maloney of A&L Goodbody, Alma Sheehan and Andrea the summer barbeque in July! Members’ Summer Ball Carroll of Sheehan & Co
At the Westbury Hotel for the ball on Saturday 26 May were (l to r): Colm Hickey, Adding glamour were Deborah Flood (left) and Aoife McKelvey, Neil Kidd, Lorraine Staunton, Evelyn Savage, Veronica Walsh and Susan Gray of Partners at Law Jonathan Groome of Frank Ward & Co, Solicitors SOLICITORS’ HELPLINE The Solicitors’ Helpline is available to assist every member of the profession with any problem, whether personal or professional
01 284 8484 Young solicitor socialites Emer Carey (right) and 10,000th solicitor THE SERVICE IS COMPLETELY CONFIDENTIAL AND TOTALLY on the roll, Ann Matthews (both of INDEPENDENT OF THE LAW PC Moore & Co) enjoying SOCIETY themselves at the DSBA Younger Amy Hayes of Tottel Publishing, John Savage of AXA Legal and Evelyn Members’ Summer Ball Savage of Frank Ward & Co enjoy the convivial atmosphere of the ball
46 www.lawsociety.ie PEOPLE AND PLACES LAW SOCIETY GAZETTE JULY 2007
Top woman Keira-Eva takes Spring in their step he annual Society of Intercollegiate Championship TYoung Solicitors (SYS) eira-Eva Mooney has spring conference was held in Kdone it again. Following the Slieve Donard Hotel, on from her recent win at the Newcastle, recently. World Corporate Triathlon Tony O’Sullivan, Imogen Championships in Mexico, McGrath and Susan Frisby the newly-qualified solicitor gave informative and at Matheson Ormsby enlightening talks on current Prentice took to bike, road legal issues during the and water to see off all other working session. The black-tie Michelle Tierney and female contenders at this gala ball on Saturday got off Mary-Michelle O'Connor year’s Irish Intercollegiate to a great start with a Triathlon Championships in sparkling wine reception, Camlough, Newry, Co followed by a sumptuous meal Armagh. and dancing to the sounds of Queen’s University the ’80s, courtesy of Triathlon Club hosted this Springbreak. year’s event on 9 June. “Thirty athletes represented The organising committee Trinity College, Dublin, stole Ireland at the European extends its thanks all who the show that day, but Keira- Championships and we attended and to loyal sponsor, Eva did the Law Society brought home two medals.” Brightwater Recruitment. The Tony O’Sullivan (about to start proud, taking first place in Both medals were won by autumn conference takes place the women’s event, despite women – Anne Paul took part 2 of his talk on ‘VAT on from 16-18 November in property’) with attentive listener some technical problems with gold, while Keira-Eva Mount Juliet, Co Kilkenny. Deirdre Walsh! her bike and being on the received a bronze – quite apt wrong end of a bicycle when one considers that, this smash! It was a case of year, the Sports Council is dusting herself off and promoting women’s keeping going. Her participation in sport. determination paid off with a “Conditions made it a very well-deserved first-place tough race and I was victory. Second home was absolutely thrilled to bring Joanne Doran from the home a medal,” Keira-Eva University of Ulster, closely told the Gazette. Her followed by Frances Buckley colleagues, Joanne and Paul, (UCC). also put in creditable performances. Joanne came European Duathlon medal 11th in her category while The following weekend, Paul finished 21st in his Keira-Eva was joined in category. Edinburgh by fellow MOP Keira-Eva has had great The hard-working SYS Committee members (l to r): Karen Dunleavy, Catherine Allen, Victoria Clarke and Elizabeth Bradley (chairperson) met colleagues Joanne O’Sullivan success in the past year. In with guests representing loyal sponsors Brightwater Recruitment (l to r): and Paul Gillick for the addition to her win in Mexico John Macklin, Eileen Moloney, Allanah O’Reilly and Hilary Flynn European Duathlon last November, she has won Championships (10k run/40k a number of duathlon races cycle/5k run) on 16 June. in the Irish league. Despite it being the middle Her attention now turns to of June, Keira-Eva described triathlon as the season is in the conditions as “horrific”, full swing. Her next race will with cold temperatures, be ‘The Hell of the West’ in strong winds and driving, Kilkee and a number of other horizontal rain! races on the Irish circuit “The cycle and run before she prepares for the brought us around Arthur’s World Triathlon Enda Hurley and his girlfriend Here's looking at you kid! Seat, with very sharp inclines Championships in Hamburg, Gill Woods enjoyed the convivial Gareth Murphy, Marie O’Brien and descents,” she said. Germany, in September. atmosphere at the annual SYS and Adam Donoghue at the SYS conference conference
www.lawsociety.ie 47 LAW SOCIETY GAZETTE JULY 2007 PEOPLE AND PLACES Donegal one week, Dun Laoghaire the next – face to face with members of the profession eople tell me I am PICS: DERMOT DONAGHUE “P‘sad’, but I really enjoy attending bar association meetings,” quips director general Ken Murphy. “For me, it is not only essential but a very enjoyable part of the job to travel around the country, with the president, meeting the members face to face to explain what the Law Society is doing and to listen to their views on any issue they want to raise. The feedback is invaluable. We constantly make changes, large and small, when we get back to Blackhall President of the Law Society Philip Joyce and director general Ken Murphy met the Donegal Bar Association Place based on what we hear.” at the Castlegrove Country Hotel, Letterkenny, on 12 June. The attendance included Margaret Mulrine (Council Over a typical two-week member), Brendan Twomey (president of the Donegal Bar Association) and Brian McMullin period recently, president (CPD coordinator of the Donegal Bar Association) PICS: LENSMEN
Round of applause at the DSBA meeting Director general Ken Murphy Support services executive makes a point at the Louise Campbell explains the Dun Laoghaire meeting Society’s useful services
Sharing a laugh in Dun Laoghaire were (l to r): DSBA Vice-President All smiles – President of the Law Society Philip Joyce, DSBA President Michael Quinlan and Joan O’Mahony David Bergin and director general Ken Murphy
48 www.lawsociety.ie PEOPLE AND PLACES LAW SOCIETY GAZETTE JULY 2007 PIC: LENSMEN
The Dublin Solicitors’ Bar Association organised a town-hall event on 20 June in Dun Laoghaire, where members met with Law Society President Philip Joyce and director general Ken Murphy
Philip Joyce and the director against a solicitor; and the education issues generally, these meetings play a vital role general spent an evening with Society’s successful judicial improving client care in in helping the Society to stay the members of the Donegal review of the Competition solicitors’ practices, the in touch with the views of Bar Association in Letterkenny. Authority’s attempt to appointment of more solicitors rank-and-file members of the The following lunchtime, they illegally restrict citizens’ as judges, proposed legislation profession throughout the met with Leitrim solicitors in freedom of choice of solicitor. on judicial conduct and ethics, country. The meetings are also, Carrick-on-Shannon. An Then there’s the Society’s concern about the questionable he believes, usually found both evening a week later was spent advertising campaign to conduct of certain insurance genuinely informative and, yes, with members of the Dublin improve the image of the companies in dealing with enjoyable by the many Solicitors’ Bar Association who profession, the Competition personal injury claims, issues in members who participate. practice in the Dun Laoghaire Authority study of the legal relation to the Personal Injuries Make sure that you attend and Blackrock areas, at a profession, the implications of Assessment Board, and a great the next time you hear, from meeting held in Dun Laoghaire the Civil Law (Miscellaneous variety of other topics that your bar association, that the town hall. Provisions) Bill, the Society’s colleagues wish to raise. president and director general Nowadays, such meetings new Law School in Cork and Ken Murphy knows that are coming to a town near you. typically begin with a Powerpoint presentation by the PIC: SEAN DUIGNAN Society’s support services executive, Louise Campbell, on the range and value of services that the Society has available for its members.
Wide-ranging briefings Briefings are then given by the president and director general, and feedback is obtained on a wide range of subjects. Currently, these include the report of the Legal Costs Working Group (the ‘Haran’ and ‘Miller’ reports and their implications for solicitors); the Society’s litigation which overturned, in the public At the 13 June meeting of Leitrim Bar Association (LBA) attended by president Philip Joyce and director general interest, the decision of the Ken Murphy were (back, l to r): secretary of the LBA Gabriel A Toolan, Elaine Gorman, Gerard Cullen, Master of the High Court to Peter Collins, Elaine Gordon and James Faughnan. (Front, l to r): Mary McDermott, President of the Law Society make a ‘wasted costs’ order Philip Joyce, Director General of the Law Society of Ireland Ken Murphy and Evelyn Doherty
www.lawsociety.ie 49 LAW SOCIETY GAZETTE JULY 2007 STUDENT PAGE student spotlight
Blackhall Builders: ‘Project Build It’
n July, a team of 16 trainees PIC: BOB DIXON, WWW.MYSPACE.COM/DRBOBDIXON bag-packing in Tesco and Iwill be getting their hands Superquinn have added greatly dirty in Nkwazi, Zambia, to the fund. providing assistance to BCM HanbyWallace, Arthur international charity Habitat Cox and William Fry have been for Humanity, writes Julie very generous, as have many O’Neill. While there, they will small businesses around the be working hard to provide country. Wherever there is a financial and physical support team member, people have been to underprivileged families to amazingly generous. We are build simple, decent and particularly thankful for the affordable houses in the anonymous donation of community. €10,000 via Matheson Ormsby Habitat for Humanity works Prentice. Contribu-tions may on the principle of “give a man be made to any group member. a fish and you feed him for a Members of the Blackhall Builders share the limelight at the Laughter Cheques should be made day; teach him how to fish and Lounge (l to r): Frankie Rafferty, Jane Moffat, Louise Fernandez, Ronan payable to Habitat for you feed him for a lifetime”. Dunne, Saorlaith Bourke, Julie O’Neill and Cliodhna Guy Humanity. The charity doesn’t build The valiant few are: Saorlaith houses for people – it builds closed their exam books in quiz, kindly sponsored by Burke (Reddy Charlton with them, working with April, and while the daunting Arthur Cox. Another successful McKnight), Sadhbh Burke (Collins homeowners and volunteers to target figure of €54,000 event, sponsored by Cuisine de Crowley), Julie O’Neill (Arthur construct the houses using seemed at times unattainable, I France, Superquinn and Fresh, Cox), Ronan Dunne (William donations of land, money, am glad to report that it is now was the barbecue held at the Fry), Diana Geraghty (Connolly materials and professional almost in their clutches, thanks Neptune Rowing Club, where, Sellors Geraghty), Cliodhna Guy expertise. Each homeowner to the kindness and after the sun went down, (BCM Hanby Wallace), Martin family invests hundreds of compassion shown by fellow students battled for the much- Fallon (Hugh J Campbell & Co), hours of their own labour into students, families and coveted title of karaoke Louise Fernandes (Paul H Moore the building of their home and corporate donators. The team queen/king. Another great & Co), Kevin Moore (MG Ryan the homes of other families. would like to thank everyone night was the comedy night at & Co), Erika O’Leary (O’Rourke This fosters community who has supported them by the Laughter Lounge in Eden Reid), Regan O’Driscoll (Mathew development, increases the donating on the website and by Quay, the comedians donating Ormsby Prentice), Nigel O’Neill pride of ownership, and reduces attending the various their talent being Steve (Eugene Collins), Patrick Quinn the cost of labour – thereby fundraising events over the last Cummins, John Colleary, (Opren Franks), Francis Rafferty making the homes affordable to few weeks. Colm O’Regan and Paddy (Bowman McCabe), Christina families on low incomes. The first event, which was Courtney. Other events, such Sauer-Dechant (Michael E The trainees have been busy sold out to the delight of the as the golf day in Athlone, Hanahoe) and Jane Moffat (course fundraising ever since they team, was the Blackhall table raffle at the Blackhall Ball, and manager). G
50 www.lawsociety.ie BOOK REVIEW LAW SOCIETY GAZETTE JULY 2007 books Irish Maritime Law, Statutes Annotated 2000-2005
Prof Clive Symmons. Thomson Round Hall (2006), 43 Fitzwilliam Place, Dublin 2. ISBN: 1-85800-470-5. Price: €190.
or those interested in Shipping (Investigation of Marine One drawback of the book, Fmaritime law, this book Casualties) Act 2000, the Criminal which is acknowledged by the heralds the entry of a Justice (Illicit Traffic by Sea) Act author himself, is that the comprehensive handbook on 2003, the Fisheries (Amendment) compilation of annotated recent maritime legislation into Act 2003, the Maritime Security statutes does not include the what is the dearth of any Act 2004, the Dumping at Sea Sea Fisheries and Maritime substantial works on Irish (Amendment) Act 2004, the Sea Jurisdiction Act 2006. Given this maritime law. Clive Symmons Pollution (Hazardous Substances) was one of the most provides us with the second (Compensation) Act 2005 and the controversial acts at the time of main Irish title in the area of Maritime Safety Act 2005. its enactment and made maritime law, Clive being the The book provides very headline news, it is perhaps author of the only other main detailed commentary on these unfortunate that we do not have title in this area, Ireland and the pieces of legislation and gives Clive Symmons’s input on this Law of the Sea. For this the reader a very clear insight ‘hot’ statute. It can only be achievement alone, Clive into the purpose of the hoped that, in a revised edition Symmons must be legislation and the state of the of this book or a further book congratulated. legislation prior to the relevant international practice. of this nature, this statute might As identified by Clive in the introduction of the statutes. The The author suggests the book be covered in the same amount introduction to this title, author’s commentary includes will be of use to those in of detail. maritime law generally has not recommendations of the review national local government This book represents good had a high priority in the group, changes and input at the service, including law value and is an exceedingly legislative process in Ireland. committee stage, and detailed enforcement personnel or water well-written, interesting Clive Symmons’s book, however, commentary on various safety officers who are charged reference guide. As the Irish is perhaps a good indicator that definitions used within the with implementing or enforcing maritime lawyer’s library at last this state of affairs is pieces of statute. The author the law. This book will, however, hopefully develops, this work changing. The book is an goes beyond simple annotations appeal to a much wider audience should certainly be on the annotated review of seven by providing useful commentary and indeed will be a useful shelf. G maritime statutes, all of which on potential loopholes and handbook and reference guide have been passed in the last drafting errors in the statutes for the maritime lawyer Helen Noble is a partner in Mason seven years: the Merchant and insight in some cases on the practising in Ireland. Hayes & Curran.
www.lawsociety.ie 51 , to provide G article in which Gazette 45 per hour) € it was alleged that a named insurance company was obtain- ing access to garda reports and was also pressurising clients to accept settlements. The allega- tions were hotly denied by the and the insurance company, Garda Commissioner had commenced an investigation in relation to the allegation that insurance companies had access to garda reports. A detective inspector and detective ser- geant had met with the Society and, as a consequence, it had been agreed to ask the profes- sion, via the mence on 26 May 2007. The mence on 26 May 2007. had Council noted that there profes- been demands from the to engage sion over many years and that in such a campaign, of the the style and content had proposed advertisements by been advised upon McConnells Advertising, one of the leading advertising agen- Each of the cies in the country. proposed advertisements had been received positively by a number of focus groups. Garda investigation The Council discussed a recent Sunday Tribune any evidence they might have of the allegations made. 60 for one hour € 60 for 2 hours 200 per day 45 for one hour if payment on the If invoiced € € € spot and used before 4pm (if greater than 1 hour, (if greater than 1 hour, ■ ■ ■ partners in this initiative The Law Society’s are GlobalAirNet International Ltd. ■ Donald Binchy said that the The Council noted that the to engage in any meaningful its mer- way with the claim on that there its. Mr MacGuill said those was deep disquiet among who members of the profession He said practised criminal law. one of that the issue was not one of fees for colleagues, but justice. The response of the department to date had been most unsatisfactory. Society had been waiting for a response since 1996. Since the process began, Ireland had had three general elections, the entire peace process had con- Blair had cluded and Tony served ten years in govern- it was time ment. In his view, that the Society should set a deadline for an appropriate response. president and director general had raised the matter personal- ly with the tánaiste and that meetings with department offi- cials had commenced. It was agreed to review progress at the July Council meeting. Media advertising campaign On the recommendation of the PR Committee, the Council approved a proposed media advertising campaign, to com- had Report of At the request of the depart- Mr MacGuill said that, in tiating with the Department of tiating with the Department Law Justice, Equality and for an Reform for ten years legal increase in the criminal had sub- aid fees. The Society increase mitted a claim for an establish- in fees prior to the Criminal ment in 1996 of the Legal Aid Review Committee (the Buchanan Committee). ment, the Society had agreed to defer consideration of its claim until that committee had com- pleted its work. The the Buchanan Committee been published in February 2002. One of its central conclu- sions was that the work per- formed by solicitors in criminal cases differed from that carried out by barristers, that the fees for solicitors should not be linked to the fees for barristers, and that solicitors should be paid fees for cases under the Criminal Legal Aid Scheme that reflected the work done. the five years since the publica- tion of that report, repeated efforts to agree a basis upon which fees should be calculated had yielded no meaningful response from the Department of Justice, Equality and Law Reform, which had not sought report Report Council Society of Law 2007 held on 11 May meeting JULY 2007 JULY TEL: 01 668 1806 CONSULTATION ROOM HIRE RATES ROOM CONSULTATION Appreciation the The president thanked Association, Bar Tipperary Mary county registrar Courts Delehanty and the of the Service for the use facilities Clonmel Courthouse He for the Council meeting. Ronan welcomed John Joy, Kennedy and Susanna Manton, members of the local bar asso- ciation, who were in atten- dance. Congratulations On behalf of the Council and the profession, the president congratulated Council mem- bers Gerard Griffin and Eamon O’Brien on their recent appointments to the bench. He also extended the congratula- tions of the Council to Garrett Sheehan, Bryan McMahon, Petria McDonnell, Elizabeth McGrath, John Lindsay and Denis McLoughlin. Criminal Legal Aid Scheme The Council considered an exchange of correspondence between the Society and the Minister for Justice, Equality and Law Reform in relation to the Criminal Legal Aid Scheme. James MacGuill said that the Society had been nego- www.lawsociety.ie LAW SOCIETY GAZETTE council
BRIEFING 52 shall sit shall sit BRIEFING 53 dated 11 JULY 2007 JULY from 13 August to Friday 23 August 2007 for the hearing of criminal cases and possibly the week commencing 27 August 2007 for the hearing of road traffic cases. 20 and 27, Tuesdays 21 and 28, 20 and 27, Tuesdays 22 and 29, Wednesdays Thursdays 23 and 30 and Fridays 24 and 31 August 2007, com- mencing at 10.30am each day. The Court at Cloverhill Wednesday, each Tuesday, commenc- Thursday and Friday, ing at 10.30am each day. Dun Laoghaire Court www.lawsociety.ie Taxation Committee Official Journal of the notes Criminal Law Committee Conveyancing Committee ry’s practice direction this on the topic, which also contains necessary forms of application and notice for this procedure. duced in the Practitioners should note that only equitable liens already in existence as of 1 January 2007 can be registered as burdens and that the law does not allow for the creation of new equitable liens since that date, whether by way of deposit of land certificate, certifi- cate of charge, or otherwise. European Communities December 2006 or may be accessed on the internet at www.eur-lex.europa.eu/JOH tml.do?uri=OJ:L:2006:347:SOM: EN:HTML. and VAT LAW SOCIETY GAZETTE is effective . This new shall sit for the hearing shall sit for the hearing Registration of practice Monday (except Monday 6 August 2007), Tuesday, Thursday and Wednesday, commencing at 10.30am Friday, each day. Court no 52, the Richmond Courts, of summary business on 7 and 14, Monday 13, Tuesdays 1, 8 and 15, Wednesdays Thursdays 2, 9 and 16, and Fridays 3, 10 and 17 August 2007, commencing at 10.30am each day. Court the Richmond no 52, Courts, of criminal business on Mondays (Directive 2006/112) to VAT Directive the EU Council of Ministers adopted a revised (recast) trust receipts for land certifi- cates; other parties holding land cer- exam- tificates as security (for ple, on equitable deposit, and so on) should make arrange- ments to have any equitable lien registered as a burden on the folios to which the land cer- tificates relate, in accordance with the provisions of section 73 of the VAT Directives b) Lending institutions or any Deeds and Title Act 2006 shall The new directive is repro- as set out in the Land Regist- replace both the first and the sixth principal from 1 January 2007. Directive VAT DIRECTIVE NEW shall sit for the hearing It is the view of the It is the view of , that: cates still in circulation will no forcelonger have any legal or effect, and possession of them will not prevent further dealings relate.on the folios to which they conse- Conveyancing Committee, quent on the changes in the law arising from section 73 of the Tuesday, Wednesday, Thursday Wednesday, Tuesday, commencing at and Friday, 10.30am to 5pm each day. Court no 41, Dolphin House, shall sit each Monday (except Monday 6 August 2007), Thursday Wednesday, Tuesday, commencing at and Friday, 10.30am each day. Court Smithfield, no 55, sit for juvenile business each com- and Thursday, Tuesday mencing at 10.30am. Court the Richmond no 51, Courts, of summary business each directives to provide a coherent legal text where the structure is modified but the substance remains unchanged. Some non- substantive amendments were made to ensure that the text is simple and precise as as clear, possible. On 28 November 2006, respect of land certificates should no longer be sought or given, including accountable Act 2006 Registration of Deeds and Title a) Solicitors’ undertakings in , in order underway at LIENS AND UNDERTAKINGS FOR LAND CERTIFICATES FOR LAND LIENS AND UNDERTAKINGS 2007 VACATION SITTINGS – DUBLIN DISTRICT COURT 2007 VACATION
ioners will be aware, and sets out the
VAT Directives
ork has been EU level to codify the first Gazette s practit land certificates are being
he following is an update to the practice note that A
T W appeared in the May issue of the phased out. The PRA stopped phased out. The PRA issuing new land certificates as of 1 January Between now 2007. and 1 January2010, any land certificates already issued will still need to be lodged in relation to any dealings where lodgement of a land certificate is normally land cer- these required. However, tificates will be cancelled and will not be reissued following comple- tion of the dealings. After 1 January 2010, any land certifi- and sixth Court Chancery no 46, Street, shall sit each Monday (except Monday 6 August 2007), Court Chancery no 44, Street: Tuesday, each Monday, Friday Thursday, Wednesday, commencing at and Saturday, 10.30am to 5pm each day. details of the sittings to be held in Court 52 (the Richmond Courts) and Dun Laoghaire District Court for the month of August 2007. revise (recast) the text of the this objective, it was decided to EU VAT legislation. To achieve legislation. To EU VAT give a clear overview of existing to produce an instrument that will 13/6/ 15/6/ Amend the Make provision 10,000 or more, fails (SI 307/2003) by: (a) SI 271/2007 SI 281/2007 € Regulations 2007 (Framework) (Amendment) Regulations 2007 Networks and Services) Leaving the Community) (Electronic Communications (Controls of Cash Entering or European Communities Number: Contents note: European Communities (Electronic Communications Networks and Services) (Framework) Regula- tions 2003 moving the determination of appeals against ComReg deci- sions from electronic communi- cations appeal panels to the High Court, (b) creating new summary offences, (c) increas- ing the penalties for new and existing summary offences, (d) creating certain indictable and continuous offences and provid- ing for the penalties that may be imposed on conviction of those offences. Commencement date: 2007 European Communities Number: Contents note: of regu- for the implementation and for lation (EC) 1889/2005 the measures to be taken when a person entering or leaving the and carrying cash of community, a value of to make a declaration to cus- toms or makes an incorrect or incomplete declaration. Specify that the Revenue Commission- ers, as the customs authority in the state, are the competent authority for the control of cash entering or leaving the commu- Also create offences and nity. provide for related penalties and enforcement powers. Commencement date: 2007 (SI 1/6/ 13/6/ , as it Defence Act Appoints Replace the Make various Transparency Directive Transparency SI 263/2007 SI 286/2007 SI 234/2007 Transparency (Directive Transparency . Disability Act 2005 Regulations 2007 2007 committee’, into the 1954 Miscellaneous Provisions) and Redress) Regulations (Admissions to Listing and mencement) Order 2007 Needs, Service Statements Number: Contents note: provisions to enable part 2 of the relates to persons under five years of age, to have full effect and provides for procedures and timescales for the making of applications for assessment of needs and preparation of service statements. Commencement date: European Communities Number: Contents note: European Communities (Stock Exchange) Regulations 1984 282/1984) as amended, includ- ing further amendments arising as a result of the implementa- tion of the (see 2004/109/EC) Regulations 2007 (SI 277/2007) below). The Irish Stock Exchange will continue as the competent authority for the purposes of these regulations. Commencement date: 2007 Disability Act 2005 (Com- Number: Contents note: 1/6/2007 as the commencement date for part 2 (ss7-23, ‘Assessment of needs, service statements and redress’) of the act in relation to persons under five years of age. Disability (Assessment of 2007 : (SI , are Garda Firearms ’) (other than Appoints 7/5/ ’); part 7 (ss41- Appoints 18/5/ Criminal Justice Act Coroners Act 1962 SI 236/2007 SI 204/2007 Criminal Justice Act 2007 Coroners Act 1962 (Fees and : part 1 (other than section 2007 order, for the purpose of section order, 57 of the from prescribed with effect of 1/1/2007. Other provisions from the regulations have effect the mak- 18/5/2007, the date of ing of the regulations. Revoke the Expenses) Regulations 2006 122/2006). (Commencement) Order 2007 2007 (Section 71) (Commencement) Order Defence (Amendment) Act Number: 2007 as the commencement date for the following provi- sions of the 2007 3); part 2 (ss5-23, ‘Amendment of enactments relating to bail’) (other than sections 6, 9-15, 18 and 19); part 3 (ss24-27, ‘Sentencing’); parts 5 (s33, ‘Misuse of drugs’) and 6 (ss34- 40, ‘Amendment of Acts 1925 to 2006 Contents note: 2007 as the commencement date for section 71 of the act. Section 71 inserts a new section 240A, ‘Courts martial rules Number: Contents note: 43, ‘Amendment of Síochána Act 2005 Criminal Justice Act 2007 section 41); part 9 (ss45-60, ‘Miscellaneous’) (other than sec- tion 57); schedule 2. Appoints 1/7/2007 as the commencement date for the following provisions of the section 3; sections 6, 9, 10, 14, 15 and 18; part 4 (ss28-32, ‘Inferences to be drawn in cer- tain circumstances’); section 57 and schedule 1. legislation update legislation 16 May – 18 June 2007 16 May JULY 2007 JULY Consumer Coroners Act . Appoints 1/5/ Appoints 1/5/ Prescribe vari- Appoints 16/5/ SI 240/2007 SI 179/2007 SI 178/2007 SI 229/2007 . The fees and expenses 2007 (Commencement) Order Order 2007 Order 2007 (Sections 28, 29 and 30) Expenses) Regulations 2007 2007 (Commencement) 2007 (Establishment Day) (Amendment) Act 2005 www.lawsociety.ie 1962 specified in schedule 1 of the Coroners Act 1962 (Fees and Number: Contents note: ous fees and expenses for the purposes of the 2007 as the establishment day for the National Consumer Agency under the Protection Act 2007 Number: Contents note: 2007 as the commencement date for all sections of the act, except sections 48 and 49 (deal- ing with surcharges). Contents note: Consumer Protection Act Consumer Protection Act Number: Number: Contents note: 2007 as the commencement date for sections 28, 29 and 30 of the act. Civil Service Regulation 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’ informa- area) – with updated stage a tion on the current the com- bill has reached and of each mencement date(s) act. SELECTED STATUTORY INSTRUMENTS LAW SOCIETY GAZETTE
BRIEFING 54 BRIEFING 55 (SI Rules (SI 30/ Appoints , Rules for the JULY 2007 JULY Prescribe new Appoints 22/5/ (SI 320/1947), www.lawsociety.ie (SI 135/1983), Rules for the Govern- SI 252/2007 SI 243/2007 SI 194/2007 Rules for the Government of (SI 90/1987), and regula- (SI 114/1955) Rules for the Government of 2007 (Commencement) Order for the Government of Prisons 1987 tions 4, 5, 6, 7, 8 and 10 of the Institution Saint Patrick’s Prisons 1947 Prison Rules 2007Number: Contents note: prison rules for the government of prisons. Revoke the follow- ing: Regulations as to the Measuring and Photographing of Prisoners 1955 Government of Prisons 1955 127/1955), ment of Prisons 1976 1976), Prisons 1983 Pharmacy Act 2007 Number: Contents note: 2007 as the commencement date for the following provi- sions of the act: part 1 (other than section 4), part 2 (ss5-9, ‘The Pharmaceutical Society of Ireland’), part 3 (ss10-12, ‘The council of the society’), section 18 (‘Regulation of retail phar- macy businesses’), section 76 (‘Codes, rules and regulations’), schedule 1. Number: note: Contents the commencement 1/5/2007 as 3, 4, 16, 27 and date for sections These provisions 29 of the act. prescribing and relate to nurse schools’ the extension of the primary dental service to all level pupils. (SI 23/4/ 18/5/ LAW SOCIETY GAZETTE Prescribe a Declares that SI 239/2007 SI 159/2007 Industrial Relations Act . (Declaration) Order 2007 Order 2007 in Other People’s Homes) Authority may appoint autho- Authority for investigations rised persons by the authority in undertaken with sections 8(1)(d) accordance will also and 9 of the act, and persons provide the authorised in part 9 with the powers set out investi- of the act respecting the gations undertaken. Act 2006 (Commencement) Protecting Persons Employed (Age Card) Regulations 2007 (Miscellaneous Provisions) (Code of Practice for Intoxicating Liquor Act 1988 Number: Contents note: new form of National Age Card for persons between the ages of 18 and 21 years with enhanced security features and processing procedures. Revoke the Intoxicating Liquor Act (Age Regulations 1999 Card) 4/1999). Commencement date: 2007 Irish Medicines Board Industrial Relations Act 1990 Number: Contents note: the code of practice for protect- ing people employed in other homes, set out in the people’s shall be a schedule to the order, code of practice for the purpos- es of the 1990 Commencement date: 2007 ; (b) 1/6/ and all Garda and the Appoints Garda Síochána Garda Prescribe new SI 262/2007 SI 214/2007 (SI 94/1989). (Police Co-operation) Act 2003 (Police Co-operation) Act ‘Inter- chapter 8 (ss50-58, co-opera- national service and services’) tion with other police 67(1), of part 2; (c) sections (d) part 67(2), 73, 74(3) and 81; inves- 4 (ss82-112, ‘Complaints, tigations and other procedures’); 126; (f) (e) sections 125 and schedules 3 and 5. repeal of all provisions of the repeal of all 1989 Síochána Act Garda provisions of the 1, insofar as they relate to the 1, insofar as section 12 of the repeal of Act 1924 Dublin Police Order 2007 (Commencement) (No 2) Regulations 2007 Number: Health Act 2007 Contents note: 6/6/2007 as the commencement date for sections 8(1)(d) and 9 of the act and for a number of sec- tions in parts 9 (‘Inspections and investigations’) and 10 (‘Offences’) of the act – see SI for details. The sections com- menced will provide that the Health Information and Quality Garda Síochána (Discipline) Number: Contents note: discipline regulations for An Garda Síochána, providing for the procedures to be followed in less serious cases of minor, breaches and serious breaches of discipline. Revoke the Síochána (Discipline) Regulations 1989 Commencement date: 2007 . 29/5/ (SCE) Appoints Appoints 2/5/ Give effect to Give effect Statute for a Garda Síochána Act Garda SI 259/2007 SI 259/2007 SI 217/2007 SI 216/2007 Statute for a European : (a) section 4 and schedule Regulations 2007 Order 2007 Order 2007 (Employee Involvement) (Commencement) (No 3) (Commencement) (No 2) pean Cooperative Society) Number: Contents note: 9/5/2007 for the following pro- visions of the 2005 Garda Síochána Act 2005 Number: Garda Síochána Act 2005 Contents note: 2007 as the commencement date for section 123 (‘Disciplinary regulations’) of the act. enables the establishment of an enables the establishment which is SCE, the objective of coopera- to make it easier for the EU. tives to operate across that Directive 2003/72 provides a new SCE cannot be registered without first negotiating with employees on their involvement in the cooperative, whether through information and con- in certain cir- sultation and/or, cumstances, participation at board level. Commencement date: Regulation (EC) 1435/2003 on Regulation (EC) 1435/2003 the Cooperative Society 2007 European Cooperative Society European Cooperative Directive 2003/72/EC supple- Directive 2003/72/EC menting the Contents note: Contents Number: European Communities (Euro- stop 13/6/ but the NOT an assess- Practitioners These regula- Prepared by the Prepared Law Society Library SI 277/2007 SI 277/2007 demand Litigation Committee European Communities G (SI 286/2007) above). In PI claims falling within any 2007 2004/109/EC) Regulations Number: note: Contents Transparency (Directive with part 3 of the tions, together Investment Funds, and Companies Act 2006 Miscellaneous Provisions may be and certain rules that author- made by the competent and ity (The Central Bank of Financial Services Authority 40(3) Ireland) under regulation effect to of the regulations, give the har- Directive 2004/109 on monisation of transparency to requirements in relation information about issuers whose securities are admitted to trad- ing on a regulated market and to Directive 2007/14 on laying down detailed rules for the implementation of certain provi- sions of Directive 2004/109 (see also (Admissions to Listing and Misc- ellaneous Provisions) Regulations 2007 Commencement date: 2007 ment/authorisation from PIAB in good time to enable a sum- mons to be issued within the two-year period. clock is still ticking against the claimant. should of the above categories, the time limit for issuing a personal injuries summons is two years from the date of the incident giving rise to the claim. The claim must be lodged with PIAB in the ordinary way the clock ticking against the claimant. application with PIAB in respect of the above three types of claim does . , is Social Civil Pensions Appoints ; PIAB Act ), and (c) part 3 Pensions Act 1990 Civil Liability Act SI 181/2007 Warsaw Convention ; ; of a deceased person – section 9 of the 1929 1961 injuries suffered while on board, embarking or disem- barking an aircraft – gov- erned, among other things, by the of limitation is two years. 2007 inclusion of the managers of inclusion of branch offices and social welfare in the categories of their staff by the min- persons designated certain ister to decide claims for wel- payments under the social fare code. (Commencement) Order Liability Act 1961 injuries suffered on boarda maritime vessel – section 46 of the Act 2007 (Section 37) Social Welfare and Pensions Number: Contents note: 27/4/2007 as the commence- 37 of the ment date for section act, insofar as it relates to: (a) part 1 of schedule 2, (b) part 2 of schedule 2 (except insofar as it relates to section 3A of the Pensions Act 1990 of schedule 2 of the and Pensions Act 2007 Welfare These provisions in schedule 2 of the act provide for amend- ments to the including amendments relating to trust retirement annuity con- tracts (trust RACs) and relating to fines and penalties that may be imposed under the Act 1990. d) period In all such claims, the Because of the way in which section 50 of the c) An action for personal b) An action for personal worded, the lodging of a valid or , the . the only Appoints Appoints CIVIL LIABILITY AND COURTS ACT PIAB ALERT : Appoints Statutes of not are SI 268/2007 SI 256/2007 SI 219/2007 Statute of Limitations reckoning any period of time under the provisions of the injuries against the estate 2007 2007 (Commencement) Order For the purposes of the However, the However, (Commencement) Order 25(1), 35 and 36) (Amendment) Act 1991 Statute of Limitations 1957 Statute of Limitations Act 2007 (Section 34) Act 2007 (Sections 18, 20, Social Welfare and Pensions Number: Contents note: Social Welfare and Pensions Number: Contents note 22/5/2007 as the commence- ment date for section 18 of the act; 6/6/2007 for sections 25(1), 35(b)(i), (c)(i) and (d), and 36 of the act; 4/7/2007 for section 20 of the act. 5/6/2007 as the commencement date for section 34 of the act. Section 34 provides for the Number: Contents note: Contents the commencement 1/5/2007 as 5, 8 and 28(b) date for sections 3/5/2007 for of the act; appoints and 23 of the act and sections 22 of the 7/6/2007 for section 28(a) act. acts that set time limits in respect of personal injury actions. For example: a) An action for personal Limitations AND OTHER ACTS – EFFECT OF s50 OF THE AND OTHER ACTS – EFFECT clock stops on the date a valid application under section 11 is deemed to be received by the board and does not start ticking again until six months after the issue of the authori- sation. the to years Civil 1/10/ JULY 2007 JULY 2004 PIAB Act TWO Pensions Act PERSONAL INJURIES ASSESSMENT BOARD ACT 2003 ). TIME LIMITS UNDER (SI 224/1960). : Appoints 2/4/ Gazette years to SI 136/2007 Pensions Act 1990 came into effect on 31 provides that the period ection 7 of the Liability and Courts Act Section 50 of the S Order 2007 ment) Order 2006 of time beginning on the mak- ing of an application under section 11 in relation to a claim, and ending six months from the date of the issue of an authorisation, shall be dis- regarded for the purposes of March 2005 and reduced the limitation period for the issu- ing of proceedings for person- al injury claims, including med- ical negligence claims, from THREE from the relevant date (see practice note, March 2007 issue of 23 and 28) (Commencement) (Section 42) (Commence- 2004 2003 Act 2007 (Sections 5, 8, 22, and Pensions Act 2006 Social Welfare and Pensions 2007 as the commencement date 2007 as the commencement Section for section 42 of the act. 51A inserts a new section 42 into the Social Welfare Law Reform Number: Contents note Regulations 1960 Regulations date: Commencement 2007 provide that the minister may provide that the minister the make regulations requiring a pension work carried out by scheme actuary to be reviewed to ensure that it complies with the provisions of the and any regulations made under the act. Section 51A further provides that the review shall be carried out in accordance with professional guidance issued by the Society of Actuaries in Ireland. www.lawsociety.ie LAW SOCIETY GAZETTE
BRIEFING 56 BRIEFING 57 10,000 as € G 10,000 to the € JULY 2007 JULY www.lawsociety.ie scheme map, tion of management com- pany, of association of manage- ment company, ment between a named part company of the one and the management com- pany of the other part to transfer the common areas; iii)Certificate of incorpora- iv) Memorandum and articles v) Memorandum of agree- letters, and in par- Society’s ticular those letters dated 14 April 2005, 18 May 2005, 24 May 2005, 14 June 2005, 4 July 2005, 12 August 2005, 21 October 2005, 9 October 2005, 5 December 2005, in a timely manner or at all. compensation fund, restitution to his clients, without prejudice to any legal right they may other- wise have, same to be paid within seven days of the mak- order; ing of the tribunal’s the Law Society of Ireland, together with witnesses’ expenses, as taxed by a taxing master of the High Court in default of agreement. b) Failed to respond to the The tribunal ordered that the respondent solicitor: a) Do stand advised, b) Pay a sum of c) Pay the sum of d) Pay the whole of the costs of LAW SOCIETY GAZETTE Solicitors (Amendment) Act 2,000 to the € Solicitors Acts at the Four Courts LAW SOCIETY ROOMS LAW MARY BISSETT OR PADDY CAULFIELD BISSETT OR PADDY MARY [3995/DT64/06] apartment, sistently failing to deal with sistently failing to deal to correspondence and failing to attend meetings and failing provide any information. compensation fund, the Law Society of Ireland as taxed by a taxing master of the High Court in default of agreement. ing documentation in a time- ly manner or at all: i) Counterpart lease for each ii) Land Registry-approved The tribunal ordered that the The tribunal ordered respondent solicitor: a) censured, Do stand b) Pay a sum of c) Pay the whole of the costs of In the matter of Michael A Dowling, a solicitor carrying on practice under the style and title of Michael A Dowling & Company, Solicitors, Church Street, and in the Co Kerry, Tralee, matter of the 1954-2002 Law Society of Ireland (applicant) Michael A Dowling solicitor) (respondent On 20 March 2007, the Solicitors Disciplinary Tribunal found the respondent solicitor guilty of misconduct in his prac- tice as a solicitor in that he: a) Failed to furnish the follow- 250 to the € FOR BOOKINGS CONTACT FOR BOOKINGS CONTACT TEL: 1806 668 Court eet at the Four Courts M Solicitors Acts 1954-2002 administration of an estate in a timely manner, complainants and/or to explain the reasons for the delay in the administration of the estate, to the beneficiaries the estate in a timely manner, investigation of the com- plaint by the Society by per- compensation fund, as the Law Society of Ireland, of taxed by a taxing master of the High Court, in default agreement. b) Pay a sum of [2851/DT90/06] Law Society of Ireland (applicant) Ambrose Steen solicitor) (respondent On 6 March 2007, the Solicitors the found Disciplinary Tribunal respondent solicitor guilty of misconduct in his practice as a solicitor in that he had: a) Failed to deal with the b) with the Failed to correspond c) Failed to properly distribute d) Failed to co-operate in the c) whole of the costs of Pay the Ambrose In the matter of Steen, a solicitor previously practising under the style and title of Ambrose Steen House, Solicitors at Tara Navan, Co Street, Trimgate Meath, and in the matter of the Solicitors (Amendment) Act 1994
) of the
Solicitors Acts 1954-2002 250 contribution towards advised, direction of the Complaints and Client Relations Committee, made at its meeting on 30 November 2005, to make a payment of € the costs of the investigation. Society’s correspondence in Society’s the investigation of a com- plaint in a timely manner or at all, and in particular to the letters of 5 October Society’s 2005, 19 October 2005, 1 November 2005 and 9 November 2005;
2002 Solicitors DisciplinarySolicitors Tribunal These reports Solicitors Disciplinaryof the outcome of inquiries are by the Law Society published Tribunal of Ireland as provided 17 of the by section 23 (as amended for in section The tribunal ordered that the respondent solicitor: a) Do stand admonished and b)comply with the Failed to On 6 March 2007, the Solicitors the found Disciplinary Tribunal respondent solicitor guilty of misconduct in his practice as a solicitor in that he had: a) Failed to reply to the In the matter of Ambrose In the matter of Steen, a solicitor previously style and practising under the Steen title of Ambrose House, Solicitors at Tara Street, Navan, Co Trimgate of Meath, and in the matter the [2851/DT67/06] Law Society of Ireland (applicant) Ambrose Steen solicitor) (respondent BRIEFING LAW SOCIETY GAZETTE JULY 2007
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had been deprived of his right to detention of the applicant DPP (respondent) v O’Neill CRIMINAL LAW a fair trial. The applicant alleged remained lawful, having regard (applicant), Court of Criminal Case stated that the circumstances of the to the delay in the arrival of a Appeal, 16/3/2007, CCA Evidence – proof of controlled drug case were unique, whereby he doctor at the garda station. 100/06 [FL13608] – nature of consultative case stated. had initially brought the matter Charleton J refused the The defendant was charged to the attention of the gardaí. application, holding that there Evidence with the possession of cannabis O’Neill J held that no prose- was sufficient evidence before Prohibition – application to resin. The district judge cutorial delay existed, as the the Circuit Court judge to have restrain trial on basis that prosecu- referred a question for the actions of the gardaí had been enabled him to decide that tion failed to gather CCTV footage opinion of the High Court, reasonable in dealing with alle- there had been no culpable – whether evidence of such proba- namely, whether the defen- gations relating to a family. The delay on the part of the gardaí tive value such that its absence dant’s admission that the sub- decision of the Supreme Court in ensuring the attendance of a would hinder fair defence of charge stance was cannabis was suffi- in H v DPP applied and the doctor for the purpose of the – whether trial should be cient evidence that it was applicant had not discharged procedure under the 1961 act, restrained – whether discretion cannabis in the absence of a cer- the onus of proof in demon- as amended, in taking samples should be exercised in applicant’s tificate of analysis from the strating that a real risk of an for analysis by the Medical favour – judicial review – time Garda Forensic Science unfair trial existed. The reliefs Bureau of Road Safety. limits – whether application made Laboratory confirming that the sought would be refused. O’Neill (applicant) v Judge promptly – exercise of discretion by substance was in fact cannabis. (S)K (applicant) v Director of Patrick McCartan and DPP the courts to enlarge time for Charleton J held that the Public Prosecutions (respon- (respondents), High Court, Mr bringing proceedings – whether admission by the accused that dent), High Court, Mr Justice Justice Charleton, 15/3/2007, discretion should be exercised in he was in possession of cannabis O’Neill, 2/2/2007, 2006 No 2006 No 611 JR [FL13629] applicant’s favour. constituted an admission 319 JR [FL13643] The applicant became against interest and was there- Evidence obstreperous in and around a fore admissible against him. In Drink driving Appeal – whether a statement licensed premises and was sub- all the circumstances of the Judicial review – unlawful deten- could be severed so as to exclude sequently arrested outside the case, there was sufficient prima tion – Road Traffic Act 1961 – inculpatory portions but preserve premises. In the patrol car leav- facie proof through the admis- whether the applicant’s detention and admit into evidence those parts ing the scene, he was alleged to sion of the accused, coupled was rendered unlawful by the of the statement that could be have assaulted a garda. He was with the pipe and the knife, that alleged delay in a doctor attending regarded as exculpatory. subsequently convicted in the the substance in his back the garda station in order to take a The applicant sought leave to District Court of various trouser pocket was the relevant sample from him. appeal his conviction for rape offences relating to public controlled drug. The applicant sought an order on the grounds that the trial order and assault of a barman DPP (complainant) v Buckley of certiorari quashing his con- judge erred in law in excluding arising out of the incidents. (defendant), High Court, Mr viction on appeal in the Circuit all the contents of a memoran- Subsequently, he was charged Justice Charleton, 8/5/2007, Court for the offence of drunk- dum of interview of the accused under section 3 of the Non- 2006 1638SS [FL13660] en driving on the grounds that in circumstances where objec- Fatal Offences Against the Person the prosecution failed to com- tion had only been taken to the Act 1997 in relation to the Delay ply with the terms of the Road admissibility of part of the assault of the garda in the Judicial review – sexual offences – Traffic Act and failed to vindi- memorandum of interview. patrol car, the return for trial delay – prohibition of trial – whet- cate the applicant’s constitu- The Court of Criminal being in December 2003. In her prosecutorial delay – whether tional rights by ensuring the Appeal (Kearns, Dunne, July 2004, the applicant sought H v DPP applied – whether unique timely attendance of a doctor at MacMenamin JJ) refused the an order of prohibition circumstances of case – whether the garda station for the pur- application for leave to appeal, restraining the trial of that deprived of right to a fair trial. pose of taking a sample from holding that once the trial charge on the basis that the The applicant sought to pro- the applicant. It was submitted judge reached the conclusion prosecution failed to obtain hibit his trial for sexual offences on behalf of the applicant that that the entire interview CCTV footage from the relating to his stepchild on there was no evidence upon process was tainted, the trial licensed premises, which he ground of delay, including pros- which the Circuit Court judge judge was correct to exclude the contended would assist his ecutorial delay, alleging that he could have decided that the entirety of the interview. defence of self-defence.
58 www.lawsociety.ie BRIEFING 59 Copyright [FL13712] JULY 2007 JULY , High Court, Ms . The matter was www.lawsociety.ie Laffoy J held that the judg- ous judgment and the order ous judgment of that judgment made on foot the determination relating to remuneration of the equitable a nightclub owner payable by of the under s17(4)(b) Act 1963 court by brought before the to the way of motion to “speak and minutes of the judgment a dis- order”, so as to resolve as to pute between the parties of an the correct interpretation and aspect of the judgment the issue was Essentially, order. in computing the whether, equitable aforementioned remuneration, the relevant price to be applied was the full admission price or the average admission charge. ment was silent on the issue and that issue never featured in the submissions before this court on the hearing of the if the issue appeal. However, had been raised, the court would have determined that the full admission price ought to be used. Carrickdale Hotel Ltd (plain- tiff) v The Controller of Industrial and Commercial Property and Phonographic Performance Ltd (Ireland) (defendants) 23/2/2007, Justice Laffoy, 2002/350 SP Breach of contract Nuisance – damages – whether the damage caused to the plain- of tiff’s was as a result premises any negligence, nuisance or breach of contract on the part of the defendant. The plaintiff claimed damages for negligence, breach of duty, nui- breach of statutory duty, sance and breach of contract against the defendants, arising out of damage to a factory premises let by the plaintiff to the the defendant. Essentially, plaintiff claimed that the defendant caused or permitted sulphuric acid to escape into TORT LAW SOCIETY GAZETTE [FL13612] , Supreme Court, 28/ The Supreme Court (Murray 3/2007, 172/03 of court – interpretation Procedure order. This judgment concerned an issue that arose out of a previ- plying with its obligation of dis- plying with by delaying closure, specifically the details of the in providing various notes con- authors of the medical tained in previously dis- reports/notes received closed. The applicant collapse in 2001, following the contain- of his earlier trial, notes fact that ing references to the the complainant previously abuse by complained of sexual a refer- her uncle and also made Centre. ence to the Rape Crisis CJ, Denham, Hardiman, appeal Fennelly JJ) allowed the (Kearns J dissenting), holding that the prosecution complied with their undertaking to dis- close the reports of the com- The Chief doctor. plainant’s State Solicitor endeavoured to assist the defence in tracing the identity of the authors of certain notes contained in the doctor’s even assum- reports. However, ing that the prosecution had accepted responsibility for car- rying out further inquiries, as was suggested and indeed as found by the trial judge, it was not clear how the prosecution was said to be in breach of that Furthermore, it responsibility. was not suggested that the information that arose in due course regarding a previous complaint of sexual abuse had been in the possession of the prosecution or that they were even aware of it. The applicant failed to make out any case for In any prosecutorial delay. event, applying the balancing trial ought test, the applicant’s not to be prohibited. v O’H (applicant/respondent) of Public The Director Prosecutions (respondent/app- ellant) INTELLECTUAL PROPERTY , High Peart J ordered the surrender Peart J ordered commission of the offences that commission constitutional the respondent’s rights to a fair and convention within a reason- trial and trial been breached. able time had that of the respondent, holding the the difficulty regarding that identity of the respondent case did arose in the previous the cir- not arise in this case. In case, the cumstances of this the per- court was satisfied that was the son before the court the person in respect of whom issued. The alleged acts EAW warrant, set forth in the amounting to gross indecency, would, if committed in this state, give rise to the offence of sexual assault. There was no abuse of process in this case nor was there any breach of the respondents constitutional and convention rights. Minister for Justice, Equality and Law Reform (applicant) v McG(C) (respondent) Court, Mr Justice Peart, 30/1/2007, 2006 No 55 Ext [FL13744] Practice and procedure – prose- Sexual offences – disclosure cutorial delay – whether the prose- specifi- cution was guilty of delay, to its duty to pro- cally in relation to the applicant. vide disclosure The DPP appealed against the decision of McKechnie J in the High Court restraining the fur- ther prosecution of the appli- cant in respect of charges for sexual offences allegedly com- mitted by him in the early 1980s. McKechnie J held that there had been such delays by the prosecution in complying with its obligations to make full disclosure promptly as to amount to blameworthy delay. the applicant alleged Essentially, that, notwithstanding the compliance with respondent’s the undertaking given on behalf of the DPP to disclose to the applicant copies of the com- psychiatric reports plainant’s prosecu- the from her doctor, tion was guilty of delay in com- [FL13737] , High Court, Mr Justice Mr Justice O’Neill refused Mr Justice the relief sought, holding that, the relief sought, fact that the prose- despite the failed in their duty to cution had CCTV footage, the retrieve the of such evidence probative value was not such that the applicant’s would be right to a fair trial as the compromised, in as much occurred relevant incident had from the in the patrol car away appli- camera in question. The was cation for judicial review time also outside the prescribed had limit and, as no explanation it was been given for the delay, to extend not open to the court the time for making the applica- tion. of Harte (applicant) v Director Public Prosecutions (respon- dent) O’Neill, 19/2/2007, 2006 No 242 JR Extradition warrant – identi- European arrest ty – delay – abuse of process – of the whether the surrender on ought to be refused respondent the grounds of lack of correspon- dence, delay and/or an abuse of process. The surrender of the respon- dent was sought on foot of a European arrest warrant (EAW) in order for him to face trial in London in respect of offences of rape, indecent assault and gross indecency allegedly committed between 1995 and 1999. The surrender of the respondent on was pre- foot of an earlier EAW viously refused by the court on the basis that the court was not satisfied that the person before the court was the person in had respect of whom the EAW issued. The respondent submit- ted that there was no correspon- ding offence in relation to the The offence of gross indecency. respondent also submitted that the applicant was guilty of an abuse of process by seeking the surrender of the respondent a second time, having failed on the first occasion, and further- more that there was such delay since the date of the alleged 300,000, G € [FL13685] – Statute of – Statute , High Court, Mr Statute of Limitations . s48(A) s2 – Statute of Limitations – Statute of . The second, third, fourth Johnson J assessed damages bility 1957, (Amendment) Act Limitations 2000, years 1969 and Between the was sexually 1971, the plaintiff abused by the first-named plaintiff defendant. The the claimed damages against and first-named defendant third, claimed that the second, defen- fourth and fifth-named liable for dants were vicariously defen- the conduct of the first contend- dant. The defendants were ed that the proceedings statute barred. against the first-named defen- dant in the sum of holding that the plaintiff fell within the provisions of s48(A) of the 1957 and fifth-named defendants were not vicariously liable for the actions of the first-named defendant. M(T) (plaintiff) v H(J) (defendant) Justice Johnson, 18/7/2006, 1998 No 9749P The information contained here Legal is taken from FirstLaw’s Service, Awareness Current published every day on the internet at www.firstlaw.ie. For more information, contact bartdaly@ Merchant’s or FirstLaw, firstlaw.ie Dublin 8, Quay, Court, Merchant’s tel: 01 679 0370, fax: 01 679 0057. Sup- [FL13661] 2,250,000 by way of com- 2,250,000 by way of 1,000,000 was appropriate. pensatory damages. were exemplary damages neces- compelling and it was to display the in order sary, level of disapproval court’s with the conduct of the two gardaí, to make a separate and distinct award under this heading, and the sum of € findings in the trial judge’s relation to special damages failed, as the judge, in assess- losses in ing the plaintiff’s that regard, relied on facts that he was entitled to find on the basis of the evidence before him and the infer- ences drawn from those facts were reasonable and correct. to make a global award that to make a general included ordinary and aggravated damages any damages. Furthermore, of the plain- future aspect was to be damages tiff’s in the taken into account overall award of compensa- tory damages. The plaintiff of was entitled to an award € 2) case, the grounds for In this 3) appeal against The plaintiff’s Shortt (plaintiff/applicant) v The Commissioner of An Síochána & Others Garda (defendant/respondent), reme Court, 21/3/2007, 394/05 Personal injuries Sexual abuse – whether proceed- – vicarious lia- ings statute barred 4,623,871 to the € The Supreme Court (Murray general damages far in excess of that awarded in the High Court. The appropri- ate approach in this case was 1,923,871 by way of compen- ed by the High Court for the ed by the suffered as a result wrongs he conduct and of disreputable of power by shocking abuse of An Garda two members the con- Síochána, specifically led to cocting of evidence that conviction for the plaintiff’s to be knowingly allowing drugs result- sold on his premises and sen- ed in a three year custodial convic- tence. The plaintiff’s set aside tion was ultimately Criminal and the Court of he had Appeal certified that a miscar- been the subject of judge riage of justice. The trial in the High Court awarded the plaintiff the total sum of € sation. The judge excluded the making of an award under the heading of aggravated damages on the basis that it would con- stitute double compensation, having regard to the award for general damages, and reduced the award for exemplary dam- ages so as to avoid providing double compensation to the plaintiff. CJ, Denham, Hardiman, Geog- hegan, Fennelly JJ) allowed the appeal and substituted an award of a total of plaintiff against the defendants, holding that: 1) The plaintiff was entitled to JULY 2007 JULY [FL13636] Criminal Proced- of damages award- , Mr High Court, quantum O’Neill J dismissed the O’Neill J dismissed the ground underneath the fac- the ground acid reacted with tory and this the ground form- materials in compound ing an expansionary caused the dam- that ultimately The defen- age to the building. the dants vehemently denied plaintiff’s scientific basis of the and explanation for the damage was no contended that there acid into discharge of sulphuric the ground. that, claim, holding plaintiff’s evidence, having regard to the that there it was highly unlikely of was any significant discharge sulphuric acid into the ground. explanation for The plaintiff’s the damage that occurred was not established on the balance of probabilities. There was no negligence on the part of the defendant as alleged. Furthermore, the plaintiff’s cause of action in nuisance and breach of contract failed. Údarás Na Gaeltachta (plain- tiff) v Uisce Glan Teoranta (defendant) Justice O’Neill, 13/3/2007, 1996 No 6285P Damages of damages made Whether award in the High Court was sufficient to compensate the plaintiff for the of as a result wrongs he suffered conduct of the the disreputable defendants – ure Act 1993. The plaintiff appealed against the www.lawsociety.ie LAW SOCIETY GAZETTE
BRIEFING 60 BRIEFING 61 clarifies JULY 2007 JULY www.lawsociety.ie sary to market the product (in in the country of import other words, reliance on trademark rights by the trademark owner to oppose the marketing of repackaged products would contribute to the artificial partitioning of the markets between member states); affect the original condition of the product inside the packaging; states who repackaged the product and the name of the manufacturer; repackaged product is not liable to damage the reputa- tion of the trademark and its owner (that is, the repackag- ing must not be defective, of or untidy); and poor quality, the trademark owner before the repackaged product is put on sale and, on demand, supplies him with a sample of the repackaged product. The ECJ judgment in to relabelled products as well as repackaged products. legal 2) The repackaging does not 3) The new packaging clearly 4) The presentation of the 5) The importer gives notice to Once the parallel importers have fulfilled these conditions, the trademark owner cannot oppose the further commer- cialisation of a repackaged pharmaceutical product. Boehringer v Swingward the application of these condi- court the tions. In particular, held that: • The BMS conditions apply [2002] eur LAW SOCIETY GAZETTE [2003] EFTA [1999] ECR I- Bristol-Myers Squibb Upjohn These provisions have been third party from using its third party from using is liable trademark if such use to impair the guarantee of the origin identity of the product’s or of its integrity. interpreted by the European courts in a line of cases (see, for example, Joined Cases C- 427/93, C-429/93 and C- 436/93, [1996] ECR I-3457; Case C- 379/97, Paranova v Merck Court Report 2004, p1). The principle emerging from the case law is that, once trade- marked goods are legally mar- keted in one EU country by the can be they trademark owner, repackaged or relabelled by parallel importers and resold in a different EU member states as long as the parallel importers comply with the fol- lowing five conditions (also known as the Bristol-Myers Squibb or BMS conditions): 1) The repackaging is neces- 6927; Case C-143/00, Boehringer Ingelheim ECR I-3759; and Case E-3/02, EC Treaty ) provides News fromthe EU and International Affairs Committee Directive 89/104/EEC Article 28 of the Trademark Directive Trademark effect. Article 30 provides an exemption to this general pro- hibition where such restric- tions are justified by the pro- tection of industrial and com- provided mercial property, such restrictions do not consti- tute a means of arbitrary dis- crimination or a disguised restriction on trade between member states. ( trademark was reproduced and trademark was reproduced bear the in boxes that did not original trademark but the generic name of the product). Boehringer Ingelheim and oth- ers objected to these alterations and brought proceedings before the English High Court, which in turn made a reference to the ECJ. provides for the free movement of goods between member states by prohibiting quantita- tive restrictions on imports and measures having an equivalent that, once goods have been marketed in the EU, a trade- mark owner can only prevent a Edited by TP Kennedy, Director Law Society of Ireland of Education, Edited by TP Kennedy, . While the ECJ
Boehringer and Others v
he ECJ has provided fur- he ECJ has provided ther guidance on the extent
Boehringer Ingelheim and T others manufactured medicinal products under various trade- marks in the community. Swingward and Dowelhurst imported these products into Britain. In order to market them there, they altered the packaging and the information leaflets of the products. The alterations varied from product to product and included rela- belling (where a label setting out certain critical information was attached to the original packaging and the original trademark remained unaltered) and repackaging (in boxes designed by the parallel importer on which the original to which parallel importers may repackage and relabel pharmaceutical products. The latest ruling was handed down on 26 April 2007 in Case C- 364/04, Ltd Swingward has previously established the right of a trademark owner to object to the repackaging of its product if certain conditions are not met, it has now clarified that this right extends to rela- belled products. In addition, the judgment means that paral- lel imports of pharmaceutical products can be challenged if the repackaging or relabelling does not match the standards of the original packaging. The judgment also clarifies the bur- den of proof applicable to the parallel importer and the trade- mark owner.
pharmaceutical products Repackaging and relabellingRepackaging G This most recent judgment This most While the ECJ has previous- In delivering this judgment, allel importer’s infringement, allel importer’s with the and in accordance proportionality. principle of concerning the of the ECJ and relabelling of repackaging is wel- pharmaceutical products the comed, as it further clarifies parallel extent to which and importers can repackage products. relabel parallel traded of the ly established the right object to trademark owner to product the repackaging of its are not if the BMS conditions that met, it has now clarified this right extends to relabelled products. In addition, the judg- ment means that parallel imports of pharmaceutical products can be challenged if the repackaging or relabelling does not match the standards of the original packaging. the ECJ is once again attempt- ing to strike a balance between the fundamental principle of the free movement of goods bet- ween member states and the leg- itimate right of trademark own- ers to protect their marks. Trade- is fully effective. Finally, the court addressed Finally, allel importer to provide evi- allel importer leads to the reason- dence that that the con- able presumption fulfilled. dition has been of failure by the consequences to give the parallel importer owner notice to the trademark of the intended repackaging ECJ held (fifth condition). The failure that compensation for be deter- to give notice must prin- mined in accordance with on finan- ciples of national law that cial remedies, provided those principles are compatible interna- with community and tional law and, in particular, with the principles of equiva- lence, effectiveness and pro- Those measures portionality. must not only be proportionate but must also be sufficiently effective and a sufficient deter- rent to ensure that the mark Directive It is for the national court to determine the amount of the financial remedies according to the circumstances of each case, in particular in the light of the extent of damage to the trade- mark owner caused by the par- forms of repackaging and forms of are likely to dam- relabelling reputa- age the trademark’s of fact to tion is a question by the be determined In principle, national courts. are the following actions trade- liable to damage the reputation: failure to mark’s to the affix the trademark (de- new exterior carton of the branding), application own logo parallel importer’s to or house style or get-up the product (co-branding), positioning of an additional par- label so as to wholly or tially obscure the original trademark, failure to state on the additional label that the trademark in question belongs to the trademark or printing the name owner, of the parallel importer in capital letters. The ECJ also clarified that the burden of proof lies on the par- allel importers to prove the existence of the BMS condi- in relation to tions. However, the second and fourth condi- tions, it is sufficient for the par- JULY 2007 JULY repackaging is necessary) is repackaging at the fact of directed only the product for repackaging of allowing the purposes to be marketed that product and in the importing state in not at the style or manner which it has been repack- nec- aged. It is not therefore essary for a parallel importer in to prove that the way is which the packaging of styled is a requirement national law. the the presentation of repackaged product must not be liable to damage the trade- reputation) is not lim- mark’s ited to cases where the repackaging is defective, of For poor quality or untidy. example, a repackaged prod- uct may damage the trade- reputation where the mark’s carton or label detracts from the image of reliability and quality attaching to such a product and the confidence it is capable of inspiring in the public concerned. • (that The first condition • (that The fourth condition • The question as to what www.lawsociety.ie LAW SOCIETY GAZETTE
BRIEFING 62 BRIEFING 63 , para- JULY 2007 JULY , paragraph , a fiercely www.lawsociety.ie Franco-Netherlands , to a difference in the Saint-Gobain ZN Franco-Netherlands Conven- did not serve to avoid the dis- SERVICES Council Directive 90/435/EEC on taxation the common system of of parentapplicable in the case of companies and subsidiaries different member states. It stat- ed that freedom of establishment seeks to guarantee the benefit of national treatment in the host member state by prohibiting any discrimination, even minimal, based on the place in which com- panies have their seat ( Commission v France Services Directive tion criminatory measure. It accord- ingly ruled that articles 43 and 48 EC preclude national legislation that, in imposing a liability to tax on dividends paid to non-resident parent companies and allowing resident parent companies almost full exemption from such tax, constitutes a discriminatory restriction on freedom of estab- lishment. On 18 December 2006, the Although, in tax law, a taxpay- Although, in tax law, Convention tax treatment of dividends accord- ing to whether a parent company is resident or non-resident, which amounts to a discriminatory measure that is incompatible with The combined effectthe treaty. of the Netherlands legislation and the debated piece of EU legislation aimed at rejuvenating Europe’s 14, and graph 35). er’s residence may constitute a factor that might justify rules involving differing treatment for resident and non-resident taxpay- ers, those two categories of tax- payer must be categorised as discrimination where there is no objective difference such as to justify that difference in treatment. The French legislation at issue gave rise, irrespective of the LAW SOCIETY GAZETTE . in this Franco- Franco- Denkavit , 2006. 14 December ESTABLISHMENT Case C-170/06, The court the dis- noted that Under the French tax code, a Denkavit Internationaal was l’Industrie Denkavit Internationaal, having its registered officethe in Netherlands, is the parent com- and Agropany of Denkavit France areFinances, both of which resi- dent in France for tax purposes. Denkavit Dividends paid by France and Agro Finances to Denkavit Internationaal were levied with a withholding tax of 5% in accordance with the L’Économie, des Finances et de France SARL, Minstre de Internationaal BV, Denkavit Netherlands Convention Netherlands Tax Convention regard. pute related to matters that occurred before the adoption of parent company, having its regis- having parent company, tered or permanent place of busi- ness in France, was entitled, under certain conditions, to almost full exemption from corpo- ration tax in respect of dividends paid by its subsidiary. repaid the amount of withholding tax following an action brought before the Administrative Court, Nantes. The Administrative Court of Appeal, Nantes, subsequently set aside the judgment of the Administrative Court and reinstat- ed the liability of Denkavit Internationaal to pay the tax. Denkavit Internationaal and Denkavit France brought an appeal in cassation against that judgment before the Conseil d’É- tat, contending that the French tax law contravened article 43 EC. The Conseil d’État asked the court the French (ECJ) whether tax code was open to challenge in light of the principle of freedom of establishment regarding the taxa- tion treatment of resident and non-resident parent companies and the status of the and Merger Regulation On 1 February 2007, the com- clarifying the requirements of cer- by modi- tain conditions, and (d) fying or replacing some other conditions through the imposi- tion of ‘new requirements’ for EON’s acquisition of control over Endesa. letter mission sent an additional of formal notice where it request- ed Spain to explain why it had not fully withdrawn the conditions declared incompatible with EU particular, In the commis- law. sion concluded that the reduction of the duration and scope of some conditions and the clarifi- cations introduced by the minis- terial decision were not sufficient to comply fully with the commis- sion decision of 26 September. As far as the ‘new requirements’ introduced by the ministerial decision are concerned, by a decision of 20 December 2006, the commission declared some of them incompatible with article 21 of the The Spanish authorities’ required Spain to withdraw them by 19 January 2007. The Spanish authorities have failed to inform of any the commission steps or measures taken in order to comply with the 20 December decision. replies to both the October letter of formal notice and the February additional letter of formal notice failed to inform the commission that the illegal measures had been withdrawn. Therefore, in its reasoned opinion, the commis- sion concluded that Spain has failed to comply with the two deci- sion adopted on 26 September 2006 and 20 December 2006 and formally requested Spain to comply with the article 21 deci- sions by withdrawing the condi- tions that have been declared illegal. The commission subse- quently announced that it will be referring the case to the ECJ, as Spain has failed to withdraw the alleged illegal conditions. by Merger . Merger Regulation . Moreover, this deci- . Moreover, RECENT DEVELOPMENTS IN EUROPEAN LAW EUROPEAN IN DEVELOPMENTS RECENT EC Treaty COMPETITION As part the reply, of their If there is no satisfactory reply The European has Commission formally requested Spain to com- deci- ply with the commission’s sions requiring the withdrawal of certain conditions, concerning imposed EON’s bid for Endesa, by the Spanish Energy Regulator con- (CNE) in July 2006 and other ditions imposed by a ministerial 2006. decision of 3 November wereThe conditions in question declaredunder article illegal 21 of the EU sion required Spain to withdraw without delay the conditions imposed by CNE’s decision, which had been declared incom- The patible with community law. Spanish authorities did not take any action in this respect and therefore, on 18 October 2006, the commission sent Spain a first letter of formal notice. Spanish authorities referred to the ministerial decision of 3 November 2006, which modified CNE’s decision (a) by withdraw- ing some of the conditions imposed by CNE, (b) by reducing the duration or the scope of some other conditions, (c) by within seven working days, the commission may decide to refer Spain to the ECJ for breach of the commission’s two article 21 decisions. On 26 September 2006, the commission adopted a decision to the effect that CNE’s decision, subjecting EON’s bid for Endesa to a num- ber of conditions breached, arti- cle 21 of the EU Regulation the proceedings under article 226 of the second stage of infringement the form of a ‘reasoned opinion’, effect. The formal request takes sions have immediate binding December 2006. These deci- on 26 September 2006 and 20 commission decisions adopted G he latest CPD ; t The ECJ noted that the aim of It held that a system of taxa- than two years old, the level of than two years old, the 13.6%, excise duty is 3.1% or For depending on engine capacity. old, the vehicles over two years percentagevaries according to a the age of the vehicle, attaining applicant maximum of 65%. The Golf in purchased Volkswagen a 1989 in Germany and imported it as to Poland. He paid PLN855 He requested reim- excise duty. arguing bursement of the duty, that it was contrary to the provi- sions of the treaty. article 90 of the treaty is to ensure the complete neutrality of internal taxation as regards com- petition between products already on the domestic market and imported products. The court found it necessary to compare the effects of the excise duty imposed on vehicles imported from another member state with the effects of the residual excise duty imposed on second-hand vehicles already on the Polish market. tion may be considered compati- ble with article 90 only if it is so arranged as to exclude any possi- bility of imported products being taxed more heavily than similar domestic products, so that it can- not in any event have discrimina- tory effect. Thus, the court held that EC law precludes an excise insofar as the amount of the duty, duty imposed on second-hand vehicles over two years old, acquired in a member state other than Poland, exceeds the resid- ual amount of the same duty incorporated into the purchase price of similar vehicles already registered in Poland. 200,000 € Maciej EC Treaty 1.5 million. Forms € , 18 January 2007. 100,000), granted over € lation exempting small subsidies lation exempting from them the obligation to notify by the in advance for clearance commission under Loan guarantees will also be TAXATION 100,000 will apply to this For cars that are new or less state-aid rules. Under the new regulation, to aid of up (compared the current with ceil- ing of any period of three years, will not be considered as state aid. The new regulation also apply to will the transport sector and to the processing and marketing of agri- cultural products. Nevertheless, in the since many companies road transport sector are relative- of ly small, a specific ceiling € sector. sector. covered, to the extent that the guaranteed part of the loan does not exceed of aid for which the inherent aid amount cannot be calculated pre- cisely in advance (so-called ‘non- transparent’ aids) and aid to firms in difficulty have been excluded from the regulation in order abuses. The regu- to avoid lation entered into force on 1 January 2007. Case C-313/05, lawsociety.ie Polish legislation applies excise duty to the acquisition of second- hand vehicles originating from other member states but not to the acquisition of second-hand vehicles already registered in Poland. These vehicles have already been subject to the duty upon their initial registration. Warszawie Brzezinski v Dyrektor zby Celnej w EC Treaty Services Directive stakes in law firmsstakes in law remainsbe to seen. The These guidelines allow individ- Under the framework, member STATE AID STATE state-aid rules. The framework sets out a series of guidelines for specific types of state-aid measures – such as aid for R&D projects, aid to young innovative enterprises and aid to innova- tion clusters – that could encour- age additional R&D&I invest- ments by private firms, thus stimulating growth and employ- ment and improving Europe’s competitiveness. ual member states to tailor aid measures to particular situa- tions, subject to the overall test that the aid must address a defined market failure, must be well designed and the identified benefits must outweigh distor- tions to competition resulting from the aid. The new framework applied from 1 January 2007. states will still be obliged to noti- fy aid measures to the commis- sion for verification and authori- sation, but if the measures have been drawn up in accordance with the guidelines, authorisation The European will be faster. Commission has adopted a regu- belongs to the field coveredbelongs to by procedurethe co-decision and will enter into force at the by 2010 latest. The European Commission to adopted a new framework how clarify to member states aid to, best they can give state not only research and develop- proj-ment, but also innovation ects without infringing JULY 2007 JULY You can also check out: current news; forthcomingYou events; employment opportunities Services Directive readers can access back issues of the magazine as far back as Jan/Feb 1997 right up to the current issue at There is a requirement for The final directive, substantial- will cover lawyers, and so will apply to solicitors. There is, how- an exemption for notaries ever, who are appointed by an official act of government. The directive endorses multidisciplinary prac- tices but allows a derogation for the regulated professions insofar as is necessary to comply with rules relating professional to ethics and conduct. member states to examine whether the exercise of a service activity is subject to compliance with requirements that relate to the shareholding of a company and to ensure that such require- ments comply with the principles of non-discrimination, necessity and proportionality. This could concern requirements relating to ownership of law firms or mem- bership of legal partnerships. Whether it could eventually be invoked to allow for non-lawyers to have shareholdings or equity services into was signed sector, finally approved Parliament law. after morethe law in November of debate and revi-than two years the parliament, the sion between It is council and the commission. one of the most important texts to be agreedby the EU in recent the years, as it aims to make ‘free of services movement’ with- in the EU a reality. ly rewritten by parliament, positions attempts to balance the of the enthusiasts of greater lib- fear a eralisation and those who decline in social protection. It is balance an attempt to strike a between the interests of con- sumers, workers and service providers. The Gazette Get more at www.lawsociety.ie LAW SOCIETY GAZETTE lawsociety.ie.
BRIEFING 64 courses, as well as lots of other useful information. PROFESSIONAL NOTICES LAW SOCIETY GAZETTE JULY 2007
LOST LAND LAW SOCIETY CERTIFICATES
Registration of Deeds and Title Acts Gazette 1964 and 2006 An application has been received from the registered owners mentioned in the PROFESSIONAL NOTICE RATES schedule hereto for an order dispensing with the land certificate issued in RATES IN THE PROFESSIONAL NOTICE SECTION ARE AS FOLLOWS: respect of the lands specified in the schedule, which original land certificate • Lost land certificates – €132 (incl VAT at 21%) is stated to have been lost or inadver- • Wills – €132 (incl VAT at 21%) tently destroyed. The land certificate Title deeds – 132 per deed (incl VAT at 21%) will be dispensed with unless notifica- • € tion is received in the registry within 28 • Employment/miscellaneous – €132 (incl VAT at 21%) days from the date of publication of this notice that the original certificate is in HIGHLIGHT YOUR NOTICE BY PUTTING A BOX AROUND IT – 31.50 EXTRA existence and in the custody of some € person other than the registered owner. Any such notification should state the ALL NOTICES MUST BE PAID FOR PRIOR TO PUBLICATION. CHEQUES SHOULD BE grounds on which the certificate is MADE PAYABLE TO LAW SOCIETY OF IRELAND. Deadline for Aug/Sept Gazette: being held. 17 August 2007. For further information, contact Catherine Kearney or Valerie Farrell Property Registration Authority, Chancery Street, Dublin 7 on tel: 01 672 4828 (fax: 01 672 4877) (Published 6 July 2007)
Regd owner: Roderick Cummins and Donegal Castlequin and barony of Iveragh; 16506; lands: parish of St Patrick’s Maureen Cummins; folio: 10285F; Regd owner: Joseph Dowling and Co Kerry and electoral division of Abbey A; lands: Court Place and barony of Patricia Dowling; folio: Regd owner: Daniel B Linehan; folio: Co Limerick Carlow; Co Carlow DN63386F; lands: property situate 32022; lands: townland of Shinnagh Regd owner: Michael O and Geraldine Regd owner: Fintan and Brigid Lalor; in the townland of Piercetown and and barony of Magunihy; Co Kerry White; folio: 15243F; lands: town- folio: 8204F; lands: Shangarry and barony of Balrothery East; Co Regd owner: Patrick Mulhall (farmer) land of Kilbane and barony of barony of Forth; Co Carlow Dublin of Dunbyrne, Kilmeague, Co Clanwilliam; Co Limerick Regd owner: Nora Harte; folio: 19424 Regd owner: Kevin Joseph Dowling; Kildare; folio: 4320; lands: town- Regd owner: Mary P Doran; folio: and 22433; lands: townland of folio: DN2111; lands: property sit- land of Dunbyrne and barony of 52340; lands: townland of Cloonbony and barony of Ibrickan; uated in the townland of Milverton Connell, containing 28.0093 Lisdoonaun and Townparks and Co Clare and barony of Balrothery; Co hectares, shown as plan(s) 4320 barony of Longford; Co Longford Regd owner: Moira Hannon; folio: Dublin edged red on the registry map (OS Regd owner: Thomas McNally, 11469; lands: townland of Regd owner: Kevin Joseph Dowling map ref(s) 18/5, 9), and townland of Lanesboro, Co Longford; folio: Lisbarreen and barony of Tulla and Patricia Dowling; folio: Dunbyrne and barony of Connell, 15SD; lands: Lanesborough (part); Upper; area: 10.5290; Co Clare DN1187F; lands: (1) property situ- containing 1.2798 hectares, shown Co Longford Regd owner: Liam Carroll; folio: ate in the townland of Holmpatrick as plan(s) 4320 edged red on the Regd owner: John Kearns; folio: 15434F and 17251F (both closed to and barony of Balrothery, (2) prop- registry map (OS map ref(s) 18/9); 48235; lands: townland of (1) 19565F); lands: plot of ground situ- erty situate in the townland of Co Kildare Murrisk, (2) Tawnyameeltoge or ate in the townland of Knockacur in Piercetown and barony of Regd owner: Seamus Donohoe and Midgefield and barony of (1) and (2) the barony of Fermoy in the county Balrothery; Co Dublin Sarah Campbell of 9 Newtown, Midgefield; area: (1) 14.3790 of Cork; Co Cork Regd owner: Noel Fitzpatrick; folio: Glendale, Leixlip, Co Kildare; folio: hectares and (2) 14.4040 hectares; Regd owner: Thomas Ernest Cotter DN72869L; lands: property known 12218F; lands: townland of Co Mayo (deceased) and Jane Cotter; folio: as flat no 8 on the second floor of Newtown (ED Leixlip) and barony Regd owner: Patrick Lynott; folio: 5946; lands: plot of ground situate in Crescent House, situate on the of North Salt, shown as plan(s) 820 26621; lands: townland of Croghan the townlands of (1) Fountainstown north of Marino Crescent in the edged red on the registry map (OS and barony of Tirawley; area: North, (2) Fountainstown in the parish and district of Clontarf; Co map ref(s) 3194/12); Co Kildare 1.7753; Co Mayo barony of (1) Kerrycurrihy, (2) Dublin Regd owner: Finbar and Sheila Regd owner: John Fitzsimons, Kinalea, in the county of Cork; Co Regd owner: Patricia Kent; folio: O’Sullivan; folio: 7699F; lands: Derrypatrick, Drumree, Co Meath; Cork DN433; lands: property situate in townland of Naas East and barony folio: 41691F; lands: Laracor; Co Regd owner: William Christopher the townland of Kiltiernan and of Naas North; Co Kildare Meath O’Brien; folio: 5173; lands: plot of barony of Rathdown; Co Dublin Regd owner: Eamonn Lawlor of Regd owner: Meath Vocational ground situate in the townland of Regd owner: Sarah Maguire; folio: Clonsast, Rathangan, Co Kildare; Education Committee, County Derreennatra in the barony of DN74315L; lands: property known folio: 8760; lands: townland of Office, Navan, Co Meath; folio: Carbery West (west division) in the as 52 Reuben Avenue, South Pollagorteen in the barony of 5340F; lands: Dunshaughlin; Co county of Cork; Co Cork Circular Road, situate in the parish Offaly West; Co Kildare Meath; area: 7.2388 hectares; Co Regd owner: Pat Cotter and Laura of St James and South Central Regd owner: Alphonsus and Maura Meath Cotter; folio: 63929F; lands: plot of District; Co Dublin Harte, Main Street, Carrigallen, Co Regd owner: Vincent Matthew ground known as no 64 Ashford Regd owner: Barbara M Wadland and Leitrim; folio: 13713; lands: O’Reilly and Brendan Joseph Steen, Heights, situate in the townland of John Clancy (as tenants-in-com- Bredagh; Co Leitrim c/o Steen O’Reilly & Company, Lota More in the barony and city of mon); folio: 6729F; lands: townland Regd owner: Michael Coffey and Solicitors, 31/34 Trimgate Street, Cork; Co Cork of Kilroe East and barony of Adreina Coffey; folio: 25807F; Navan, Co Meath; folio: 4292F and Regd owner: Thomas Hunter; folio: Moycullen; Co Galway lands: townland of Newcastle and 25406F; lands: Kilcarn; Co Meath 44579F; lands: plot of ground situate Regd owner: Michael Daly; folio: barony of Clanwilliam; Co Regd owner: Patrick Oliver Tallon and in the townland of Castlewidenham 27210; lands: townland of Limerick Elizabeth Anne Tallon, Main Street, in the barony of Fermoy in the Lurganshanny and barony of Regd owner: Anne Kennelly; folio: Slane, Co Meath; folio: 26631; county of Cork; Co Cork Longford; Co Galway 5725F; lands: parish of St Nicholas lands: Slane; Co Meath Regd owner: Francis Russell, Dooen Regd owner: Christopher Camillus and electoral division of Rathbane; Regd owner: Edward Stone (deceased); Glebe, New Mills, Co Donegal; Gavin, John Leonardi Gilmore; Co Limerick folio: 18945 (closed to 5342F); folio: 7929; lands: Doon Glebe; Co folio: 1681L; lands: townland of Regd owner: Mary Maurer; folio: lands: Raheen and barony of
www.lawsociety.ie 65 late of late of late of late of late of 47 late of 34 late of 16 The Bailey, late of Murphy, Joseph (deceased), Joseph Murphy, Co Louth. Chord Road, Drogheda, the knowl- any person having Would will made edge or whereabouts of any Joseph by the above-named deceased, died on 8 February 1999, who Murphy, Messrs please contact Deirdre Moran, The & Co, Solicitors, Tallan Louth; tel: Haymarket, Drogheda, Co 9111, email: 041 983 8708, fax: 041 983 [email protected] (deceased), Michael Murphy, Broadmeadow Green, Ashbourne, Co Meath, who was born on 15 July 1916 and died on 22 November 2006. Would any person having knowledge of the whereabouts of any will made by the above-named deceased please contact Dillon Eustace, Solicitors, 33 Sir John Dublin 2; tel: 01 667 Quay, Rogerson’s 0022, fax: 01 667 0042, email: info@dil- loneustace.ie O’Sullivan, James (deceased), 47 Chord Road, Drogheda, Co Louth. 47 Chord Road, Drogheda, any person having the knowl- Would edge or whereabouts of any will made by the above-named deceased, Michael who died on 27 March 2007, Murphy, please contact Deirdre Moran, Messrs & Co, Solicitors, The Patrick Tallan Haymarket, Drogheda, Co Louth; tel: 041 983 8708, fax: 041 983 9111, email: [email protected] John (deceased), O’Reilly, any per- Would Waterford. Knockboy, son having knowledge of a will dated 7 March 1968 executed by the above- named deceased, who died on 26 July 1971, please contact Dobbyn & McCoy, Solicitors, 4/5 Colbeck Street, tel: 051 874 087, fax: 051 Waterford; 855 249 Gladys (deceased), Rigley, Mississauga, 3068 Merritt Avenue, Ontario, L4T IP2, Canada (formally of Cut Bush, The Curragh, Co Kildare), who died retired quality-control officer, any per- on 22 February 2006. Would son having knowledge of the where- abouts of a will made by the above- named deceased please contact Larke Street, Doyle Solicitors, 50 Tullow Carlow; tel: 059 913 4988, fax: 059 913 9272, email: [email protected] Skehan, Patrick (deceased), Boola, Rathgormack in the county of who died on 19 December Waterford, any person having knowl- 1990. Would edge of the whereabouts of a will exe- cuted by the above-named deceased please contact Mary T Ronayne, Shandon, The Brewery, Solicitor, tel: 058 Dungarvan, Co Waterford; 48717, fax: 058 48718, email: [email protected] Desmond (deceased) (retired Walsh, bus driver), Circular Road, Galway, and place of Circular Road, Galway, birth Fedamore, Co Limerick, on 16 any person having June 1938. Would late of 15 late of late of 15 Father Matthew Ennis, Co Clare, who died on 3 June Ennis, Co Clare, having knowl- any person 2007. Would whereabouts of any will edge of the above-named deceased made by the contact Desmond J person please Co, Solicitors, Salthouse Houlihan & Co Clare; tel: 065 684 Lane, Ennis, 065 684 2233, email: 2244, fax: [email protected] Noel (deceased), Edward Gardiner, Vicar late of 2 Michaelmallon House, died on 26 Street, Dublin 8, who hav- any person February 2006. Would will dated ing knowledge of an original the above- 7 August 1998, executed by Niall named person, please contact 3 Greenhills Murphy & Co, Solicitors, Centre, Greenhills Road, Walkinstown, fax: 01 450 Dublin 12; tel: 01 450 6626, 6701, email: [email protected] Una) Gleeson, Winifred (otherwise (deceased), retired housekeeper. Street, Tipperary, any person having knowledge of Would the whereabouts of any will made by the above-named deceased please contact Kennedy Frewen O’Sullivan, Solicitors, tel: 062 St Michael Street, Tipperary; 51184, fax: 062 51718, email: pasqua- [email protected] James (deceased), Hegarty, Clondalkin, Dublin Moorefield Avenue, any person having knowl- 22. Would edge of a will or a grant of probate or letters of administration extracted or about to be extracted in relation to the who died on 12 goods of James Hegarty, Hospital, January 1996 at St James’s please contact John Sherlock & Co, 9- 10 Main Street, Clondalkin, Dublin 22; ref: EC Monica (deceased), Hegarty, Clondalkin, 15 Moorefield Avenue, any person having Dublin 22. Would knowledge of a will or a grant of pro- bate or letters of administration extract- ed or about to be extracted in relation to who died the goods of Monica Hegarty, Hospital, on 27 May 1998 at St James’s please contact John Sherlock & Co, 9- 10 Main Street, Clondalkin, Dublin 22; ref: EC Jackson, Samuel (Sam) Desmond, Co late of Avalon, Seafield Avenue, late of Avalon, any person Clontarf, Dublin 3. Would with knowledge of a will executed by the above-named deceased, who died on 25 May 2007 at home, please contact Cullen & O’Beirne, Solicitors, 1 Castle Street, Christchurch Place, Dublin 2; tel: 01 478 9031 (deceased), McEntee, Terence 24 Clyde House, Serpentine Avenue, any person having Dublin 4. Would knowledge of a will executed by the above-named deceased, who died on 29 January 1991, please contact Kelly & Manorhamilton, Co Solicitors, Ryan, Leitrim; tel: 071 985 5034, email: kier- [email protected] late of 89 late of 15 late of 15 Co Wexford Co Wexford Co Wexford Co Wexford late of Cahercalla Road, late of Joristown, Killucan, 6685F; lands: Ballyhote, Kilrane, and 6685F; lands: barony of Forth; 23373; lands: Ballindinas and barony 23373; lands: Ballindinas and of Shelmaliere West; Woodview, Castletown, Celbridge, Woodview, lands: Co Kildare; folio: 15360F; in townland of Blessington Demesne Lower; the barony of Talbotstown Co Wicklow (tenant-in-com- Michael O’Toole share mon of one undivided half each); folio: 3748L; lands: apartment Deerpark known as apartment 52 floor, Court, situate on the ground townland of Blessington Demesne, barony of Talbotstown; Wicklow 8710F; lands: Raheenahoon and 8710F; lands: barony of Bantry; of Scarawalsh; of Scarawalsh; Regd owner: Raymond Parle; folio: Regd owner: Regd owner: Patrick Gilmartin; folio: Regd owner: Mourne Road, Drimnagh, Dublin 12. any person having knowledge of Would the above-named deceased, who died on 25 July 2000, please contact Nelson Village, & Co, Solicitors, Templeogue tel: 01 490 0159, fax: 01 Dublin 6W; 490 4899 Howard Gerard Flannery, (deceased), Co Westmeath, a retired farmer who Co Westmeath, with anybody died on 5 June 2007. Will knowledge of the whereabouts of a will made by the above-named deceased please contact Hamilton Sheahan & Co, Solicitors, Kinnegad, Co tel: 044 937 5040, fax: 044 Westmeath; 937 5041, email: [email protected] Crowe, Mary (deceased), New Houses, Ruan, Ennis, Co Clare. any person having knowledge of Would a will made by the above-named deceased, who died on 29 November 2005, please contact the Office of the General Solicitor for Minors and Wards of Court, Courts Service, 15/24 Phoenix Street North, Smithfield, Dublin 7; ref: DS/1784; tel: 01 888 6231, fax: 01 872 2681 Farrell, Thomas (deceased), Regd owner: Patrick Dolan, 11 Regd owner: Patrick and Regd owner: Stephen O’Toole Coughlin, James (otherwise Jimmy) (deceased), New Houses, Ruan, Ennis, Co Clare. any person having knowledge of Would a will made by the above-named deceased, who died on 31 May 2001, please contact the Office of the General of Solicitor for Minors and Wards Court, Courts Service, 15/24 Phoenix Street North, Smithfield, Dublin 7; ref: DS/1784; tel: 01 888 6231, fax: 01 872 2681 Crowe, Patrick (deceased), Regd owner: Philip Rochford; folio: Regd owner: WILLS Co Co Co Co JULY 2007 JULY Co Offaly Co Sligo Co Sligo Co Waterford Co Offaly Co Offaly Co Waterford Co Waterford Co Waterford Co Waterford Co Tipperary Co Tipperary Co Roscommon (closed to 3274F); lands: Clonony (closed to 3274F); of Garrycastle; Beg and barony Offaly lands: Crinkill and folio: 3402F; barony of Ballybrit; 3403; Elizabeth Murphy; folio: and lands: townland of Creggaslin 4.8663 barony of Castlereagh; area: hectares; and lands: townland of Creggameen barony of Castlereagh; Roscommon Coolbock 9934F; lands: townland of area; and barony of Tirerrill; 10.9590 hectares; Westmeath 15280; lands: Ballyprecas and barony 286; lands: townland of 286; lands: townland of Farranyharpy and barony area: 8.8146 hectares; Tireragh; Sligo 2348; lands: townland of Drinaghan area: Beg and barony of Tireragh; 27.5180 hectares; Maura Durack; folio: 12918F; lands: townland of Ballyhenry and barony of Ikerrin; Purcell; folio: 10785F; lands: town- land of Killinane and barony of Eliogarty; Brennan; folio: 2685F; lands: plot of ground situate in the townland of Coxtown East, in the barony of Gaultiere, in the county of Waterford; folio: 2516; lands: plot of ground sit- uate in the townland of Affane Hunter in the barony of Decies- without-Drum in the county of Waterford; Norris; folio: 22674F; lands: plot of ground situate in the townland of Lahardan in the barony of Upperthird in the county of Waterford; 4039; lands: plot of ground situate in the townland of Knockane (Decies- without-Drum By), in the barony of Decies-without-Drum in the county of Waterford; Nicola Cunningham; folio: 26180F; lands: plot of ground known as no 32 Somerville, in the The Estuary, and in the town of parish of Tramore and the county of Tramore Waterford; Margaret Connell, Mardyke Street, folio: Athlone, Co Westmeath; 2662F; lands: Hillquarter; Kilcoursey; Regd owner: John Guinan; folio: 15882 Regd owner: John Pierre and Mary Boissel; Regd owner: and Regd owner: John Murphy folio: 3357; Regd owner: John Rourke; Regd owner: Eamonn Jinks; folio: Regd owner: Eamonn Jinks; Regd owner: Thomas Foley; folio: Regd owner: James Connolly; folio: Regd owner: James Connolly; Regd owner: Joseph O’Dowd; folio: Regd owner: Thomas Durack and Regd owner: Patrick Purcell and Teresa Regd owner: James Brennan and Myra Regd owner: Mary Bridget Stapleton; Norris and Mary Regd owner: Walter Regd owner: Ann Fitzgerald; folio: Regd owner: Michael Bourke and Regd owner: Denis Connell and www.lawsociety.ie LAW SOCIETY GAZETTE
PROFESSIONAL NOTICES 66 PROFESSIONAL NOTICES LAW SOCIETY GAZETTE JULY 2007
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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knowledge of a will made by the above- Secure office storage, space available acquisition of the fee simple interest in and made between Annie Crinion and named deceased, who died on 23 April for up to 1,500 bankers’ boxes in James’s the aforesaid property, and any person Elizabeth Crinion of the one part and 2007, please contact Niamh Kavanagh Street, Dublin 8. Contact Andrew asserting that they hold a superior Edward Kevelighan of the other part of Keane Solicitors, 2nd Floor, Turner/Marie Doyle of Hamilton interest in the aforesaid property is for the term of 100 years from 1 January Hardiman House, Eyre Square, Turner, Solicitors, on 01 671 0555 called upon to furnish evidence of title 1945 at a rent of £4 per annum. Galway; tel: 091 566 767, email: nka- to the solicitors for the applicant with- Take notice that Gerard Nolan and [email protected] in 21 days from the date of this notice. Philomena Nolan, being the persons TITLE DEEDS Unless such details have been currently entitled to the lessees’ inter- received, the applicant intends to pro- est under the said lease, intend to apply MISCELLANEOUS ceed before the county registrar and to the county registrar for the county Joseph Murphy (deceased) and will apply for directions as may be and city of Dublin for the acquisition Michael Murphy (deceased), late of appropriate on the basis that the per- of the freehold interest and all inter- London solicitors will be pleased to 47 Chord Road, Drogheda, Co Louth. son or persons beneficially entitled to mediate interests in the aforesaid prop- advise on UK matters and undertake Would any person having the knowl- the superior interest including the erty, and any party asserting that they agency work. We handle probate, litiga- edge or whereabouts of any title freehold reversion in the aforesaid hold a superior interest in the aforesaid tion, property and company/commer- documents for 47 Chord Road, property are unknown or unascer- property is called upon to furnish evi- cial. Parfitt Cresswell, 567/569 Fulham Drogheda, in the county of Louth, tained. dence of title to same to David Walley Road, London SW6 1EU; DX 83800 please contact Deirdre Moran, solicitor, Date: 6 July 2007 & Co, solicitors for the applicants, Fulham Broadway; tel: 0044 2073 Messrs Patrick Tallan & Co, Solicitors, Signed: CCK Law Firm (solicitors for the within 21 days from this notice. 818311, fax: 0044 2073 814044, email: The Haymarket, Drogheda, Co applicant), 11-12 Eastmoreland Place, In default of any such notice being [email protected] Louth; tel: 041 983 8708, fax: 041 983 Ballsbridge, Dublin 4 received, Gerard Nolan and 9111, email: patricktallandrogheda@ Philomena Nolan intend to proceed eircom.net In the matter of the Landlord and with the application before the county For sale – solicitor’s practice. Tenant Acts 1967-2005 and in the registrar at the expiration of 21 days Sole practitioner. Prime location In the matter of the Landlord and matter of the Landlord and Tenant from the date of this notice and will 15 miles from Cork city centre. Tenant No 2 Acts 1967-1994 and the (Ground Rents) (No 2) Act 1978: an apply to the county registrar for the Excellent potential for further Landlord and Tenant (Ground Rents) application by Gerard Nolan and county of Dublin for such directions as development. Apply in the first (No 3) Act 1978 Philomena Nolan maybe appropriate on the basis that instance to: Baxter & Associates, Take notice any person having an Any person having a freehold estate or the person or persons beneficially enti- Certified Public Accountants and interest in the freehold estate in the any intermediate interest in all that tled to the reversionary interest includ- Registered Auditors, 9 Grenville property known as 6 Mary’s Abbey in and those the premises at the rear of ing the freehold reversion in the prem- Place, Cork; tel: 021 427 2820, the city of Dublin. Take notice that number 56 Amiens Street, also known ises is unknown or unascertained. fax: 021 427 2011, email: bax- John Meagher intends to submit an as 56A, in the parish of St Thomas and Date: 6 July 2007 [email protected] application to the county registrar for in the city of Dublin, the subject of an Signed: David Walley & Co (solicitors for the county of the city Dublin for the indenture of lease dated 4 May 1945 the applicant), 54 Amiens Street, Dublin 1
www.lawsociety.ie 67 PROFESSIONAL NOTICES LAW SOCIETY GAZETTE JULY 2007
In the matter of the Landlord and to proceed with the application before Catherine Byrne, Reverend Jonathan In the matter of the Landlord and Tenant Acts 1967-1994 and in the the county registrar at the end of 21 days Bruce, James Dalbiac of the one part and Tenant (Ground Rents) Acts 1967- matter of the Landlord and Tenant from the date of this notice and will Hampden Evans of the other part), 2004 and in the matter of the (Ground Rents) (No 2) Act 1978:an apply to the county registrar for the should give notice to the undersigned Landlord and Tenant (Ground Rents) application by Simon Curley Limited county/city of Dublin for directions as solicitors. (No 2) Act 1978 and the matter of Take notice that any person having any may be appropriate on the basis that the Take notice that the applicant, John premises situate at 41 Hill Street, interest in the freehold estate of the fol- person or persons beneficially entitled to Kelly, intends to apply to the county reg- Dublin 1: an application by John lowing property: rear 67 and 69 Upper the superior interest including the free- istrar for the county of Dublin for the Kelly Rathmines Road, Dublin 6, being por- hold reversion in each of the aforesaid acquisition of the freehold interest and Take notice that any person having any tion of the premises known as numbers premises are unknown or unascertained. all intermediate interests in the above- interest in the freehold estate of or any 67 and 69 Upper Rathmines Road in the Date: 6 July 2007 mentioned property, and any party superior or intermediate interest in the city of Dublin, more particularly Signed: Brian Matthews & Co (solicitors for asserting that they hold an interest supe- hereditaments and premises situate at described in an indenture of lease dated the applicant), 7 Main Street, Dundrum, rior to the applicant in the aforesaid 41 Hill Street, Dublin 1 (which said 15 February 1975, made between Dublin 14 property is called upon to furnish evi- premises are held by the applicant Michael Devlin, Michael Campbell, dence of title to same to the under- under indenture of lease dated 14 Heather Hewson and Patrick Campbell In the matter of the Landlord and named solicitors within 21 days from the December 1773 between Sarah of the one part and Simon Curley Tenant (Ground Rents) Acts 1967-2004 date hereof. Archdall, Luke Sterling, Alexander Limited of the other part for the term of and in the matter of the Landlord and In default of any such notice being Nixon, Richard Hall, Samuel Baker of 678 years from 1 May 1974, at the year- Tenant (Ground Rents) (No 2) Act 1978 received, the applicant intends to pro- the one part and Thomas Oldham of ly rent of £0.05 (if demanded). and the matter of premises situate at ceed with the application before the the other part), should give notice to Take notice that Simon Curley 40 Hill Street, Dublin 1: an applica- county registrar at the end of 21 days the undersigned solicitors. Limited intends to submit an application tion by John Kelly from the date of this notice and will Take notice that the applicant, John to the county registrar for the Take notice that any person having any apply to the county registrar for the city Kelly, intends to apply to the county county/city of Dublin for the acquisition interest in the freehold estate of, or any of Dublin for such directions as may be registrar for the county of Dublin for of the freehold interest in the aforesaid superior or intermediate interest in, the appropriate on the basis that the person the acquisition of the freehold interest premises, and any party asserting that hereditaments and premises situate at 40 or persons beneficially entitled to any and all intermediate interests in the they hold a superior interest in the afore- Hill Street, Dublin 1, previously known such superior interest including the free- above-mentioned property, and any said premises (or any of them) are called as 36a and 36b North Great Georges hold reversion in the aforesaid property party asserting that they hold an inter- upon to furnish evidence of title to the Street (which said premises are held by are unknown or unascertained. est superior to the applicant in the aforementioned premises to the below the applicant under indenture of lease Date: 6 July 2007 aforesaid property is called upon to fur- named within 21 days from the date of dated 29 April 1784 between Alexander Signed: Thomas Byrne & Company (solici- nish evidence of title to same to the this notice. Nixon, Sarah Archdall, Robert Archdall, tors for the applicant), Unit 4, 78 under-named solicitors within 21 days In default of any such notice being Richard Archdall, Nicholas Archdall, Walkinstown Road, Walkinstown, Dublin from the date hereof. received, Simon Curley Limited intends Edward Archdall, James Byrne, 12 In default of any such notice being FREE LOCUM RECRUITMENT UNDER PRESSURE AND OVERWORKED? REGISTER EXPERIENCED SOLICITORS AVAILABLE ON A SHORT TERM, PROJECT OR CONSULTANCY BASIS For Law Society members seeking a Put your mind at rest, contact us to: • Clear your Backlog position as a locum solicitor or seeking • Cover Holiday / Sick Leave / Change of Personnel to employ a locum solicitor. • Provide Specialist Expertise ALL PRACTICE AREAS COVERED Log onto the new self-maintained locum recruitment register, on the members' area of Conveyancing / Probate / Registrations: the Law Society website www.lawsociety.ie [email protected] or contact Trina Murphy, recruitment adminis- trator, at the Law Society's Cork office, tel: 021 Litigation / Employment / Family Law: 4226203 or email: [email protected] [email protected]
EXCELLENT SERVICE AT COMPETITIVE RATES CONFIDENTIALITY GUARANTEED
68 www.lawsociety.ie PROFESSIONAL NOTICES LAW SOCIETY GAZETTE JULY 2007
received, the applicant intends to pro- Wicklow): an application by David ceed with the application before the Tew county registrar at the end of 21 days Take notice any person having any TD Fitzpatrick from the date of this notice and will interest in the freehold estate of the apply to the county registrar for the following property: all that and those CERTIFIED PUBLIC city of Dublin for such directions as the premises known as ‘The may be appropriate on the basis that Boathouse’, Esplanade, Bray, Co ACCOUNTANTS & the person or persons beneficially enti- Wicklow and also known as ‘The REGISTERED tled to any such superior interest Boathouse Shop’, Strand Road, Bray, AUDITORS including the freehold reversion in the Co Wicklow, being the property aforesaid property are unknown or demised by indenture of lease dated 14 unascertained. November 1944 and made between Specialists in Solicitor Date: 6 July 2007 Marion Naylor of the one part and Bookkeeping and Signed: Thomas Byrne & Company John Cowen of the other part for a Accountants Reports (solicitors for the applicant), Unit 4, term of 99 years from 30 September 78 Walkinstown Road, Walkinstown, 1944, subject to the yearly rent of Dublin 12 £7.10.0d. For Enquiries regarding Take notice that David Tew intends our Solicitor services, In the matter of the Landlord and to submit an application to the county please contact us at: Tenant (Ground Rents) Acts 1967- registrar for the city of Dublin for the 7 Argus House, 2004 and in the matter of the acquisition of the freehold interest in Landlord and Tenant (Ground Rents) the aforesaid property and that any Greenmount Office Park, (No 2) Act 1978 and the matter of party asserting that they hold a superi- Harold’s Cross, premises situate at 42 Hill Street, or interest in the aforesaid property are Dublin 6W. Dublin 1: an application by John called upon to furnish evidence of title Kelly to the aforementioned property to the Phone: 01 4737455 Take notice that any person having any below named within 21 days from the interest in the freehold estate of or any date of this notice. Email: [email protected] superior or intermediate interest in the In default of any such notice being hereditaments and premises situate at received, David Tew intends to pro- 42 Hill Street, Dublin 1 (which said ceed with the application before the interest in the aforesaid property are tled to the superior interest including premises are held by the applicant county registrar at the end of the 21 called upon to furnish evidence of title the freehold reversion in the aforemen- under indenture of lease dated 16 June days from the date of this notice and to the aforementioned property to the tioned property are unknown or 1785 between Francis Ryan of the one will apply to the county registrar for below named within 21 days from the unascertained. part and John Moore of the other the county of Dublin for directions as date of this notice. Date: 6 July 2007 part), should give notice to the under- may be appropriate on the basis that In default of any such notice being Signed: Cahill & Co (solicitors for the signed solicitors. the person or persons beneficially enti- received, Sangrove Properties Limited applicant), 21 Windsor Place, Dublin 2 Take notice that the applicant, John tled to the superior interest including intends to proceed with the application Kelly, intends to apply to the county the freehold reversion in the afore- before the county registrar at the end of In the matter of the Landlord and registrar for the county of Dublin for mentioned property are unknown or the 21 days from the date of this notice Tenant Acts 1967-2005 and in the the acquisition of the freehold interest unascertained. and will apply to the county registrar matter of the Landlord and Tenant and all intermediate interests in the Date: 6 July 2007 for the county of Dublin for directions (Ground Rents) (No 2) Act 1978: an above-mentioned property, and any Signed: Cahill & Co (solicitors for the as may be appropriate on the basis that application by Clylim Properties party asserting that they hold an inter- applicant), 21 Windsor Place, Dublin 2 est superior to the applicant in the the person or persons beneficially enti- Limited in respect of the rear of 34, aforesaid property is called upon to In the matter of the Landlord and furnish evidence of title to same to the Tenant Acts 1967-1994 and in the under-named solicitors within 21 days matter of the Landlord and Tenant from the date hereof. (Ground Rents) (No 2) Act 1978 and FREE EMPLOYMENT In default of any such notice being in the matter of property 340A and received, the applicant intends to pro- 336B North Circular Road, parish ceed with the application before the of Grangegorman and city of RECRUITMENT county registrar at the end of 21 days Dublin: an application by Sangrove from the date of this notice and will Properties Limited apply to the county registrar for the Take notice that any person having any city of Dublin for such directions as interest in the freehold estate of the may be appropriate on the basis that following property: all that and those REGISTER the person or persons beneficially enti- the premises know as 340A and 336B tled to any such superior interest North Circular Road in the parish of including the freehold reversion in the Grangegorman and city of Dublin, aforesaid property are unknown or being part of the property demised by For Law Society members to advertise unascertained. indenture of lease dated 25 August Date: 6 July 2007 1877 and made between Sir Francis for all their legal staff requirements, not Signed: Thomas Byrne & Company (solic- William Brady of the one part and just qualified solicitors. itors for the applicant), Unit 4, 78 William Martin of the other part for a Walkinstown Road, Walkinstown, Dublin term of 200 years from 25 March 1874, 12 subject during the first year to the Log onto the new expanded employment recruitment register, yearly rent of one shilling and there- on the members' area of the Law Society website www.lawso- In the matter of the Landlord and after to the yearly rent of £40. ciety.ie or contact Trina Murphy, recruitment administrator, at Tenant Acts 1967-1994 and in the Take notice that Sangrove the Law Society's Cork office, tel: 021 422 6203 or email: matter of the Landlord and Tenant Properties Limited intends to submit [email protected] (Ground Rents) (No 2) Act 1978 and an application to the county registrar in the matter of the property ‘The for the city of Dublin for the acquisi- Boathouse’, Esplanade, Bray, Co tion of the freehold interest in the Wicklow (also known as ‘The Boat aforesaid property and that any party House Shop’, Strand Road, Bray, Co asserting that they hold a superior
www.lawsociety.ie 69 box no: Post-PPCI, . or email: postppc1@ 2004 box no 61/07 and Thinking of 62/07 gmail.com Trainee solicitor seeks new solicitor Trainee training contract. enthusiastic, confident and hard- working student seeks transfer of training contract. Law graduate with extensive experience in legal and IT environments. CV on request. Enquiries to START Dublin area? opportunities box 63/07 Enquiries to December 2007. Experience in com- December 2007. Experience essential. mercial and conveyancing Reply to Talk to us about Talk exciting practice currently available PRACTICE legal practice in the YOUR OWN establishing your own box . Cavan th NO recruitment advertisements will required , has a vacancy for an experi- LAW SOCIETY GAZETTE Employment Equality Acts 1998 NOTICE TO THOSE PLACING THOSE PLACING NOTICE TO Editorial Board has taken this decision based on of Dublin and partly by the South of Dublin and partly by Circular Road, on the north west by Mr holding and on the north east Leeche’s holding partly by Mr Laurence Byrne’s and partly by premises in the tenure of the south Coleman, on the said William Barn Lane, which said east by Dolphin’s premises are now known as 35 Barn as more particularly Dolphin’s described on the map endorsed there- on”, formerly known as 4 Margaret’s and later as 22 South Circular Terrace Road, Rialto, and now as 418 South Circular Road, Dublin. Date: 6 July 2007 Signed: Donal Reilly & Collins (solicitors for the applicant), 20 Manor Street, Dublin 7 Dermot G O’Donovan & Partners, Limerick, enced conveyancing solicitor on 12- month contract. Part-time work avail- able to suitable candidate. Salary highly competitive. Send CV to [email protected] or to Dermot G O’Donovan & Partners, Solicitors, 5 Law Society Gazette Gazette RECRUITMENT ADVERTISEMENTSRECRUITMENT IN THE be published that include referencesbe published that include to years of post- (PQE) qualification experience The legal advice, which indicates that such referenceslegal advice, which indicates may be in breach of the Please note that, as and fromPlease note 2006 issue August/September the of the RECRUITMENT town, three to four month period – gen- eral practice/residential and commer- cial conveyancing. Please reply to no 60/07 Part-time locum solicitor for Dublin 2 practice from October – Floor, Riverpoint, Lower Mallow Floor, Street, Limerick – www.dgod.ie Locum solicitor required. all that part of the premises Take noticeTake that Paul O’Reilly, In default of any such notice being 418 South Circular Road, Dublin 8: 418 South Circular Road, O’Reilly, an application by Paul Larry O’Reilly and Derek O’Reilly, Gerard Moore any notice that any person having Take being part interest in the freehold estate an indenture of the property held under between of lease dated 29 June 1896 Hamilton Maffet of the one William and Lisa part and Richard McHale for the term McHale of the other part subject of 150 years from 1 April 1896, indemni- to the yearly rent of £50 but of £44.15s fied against the payment and condi- thereof and the covenants tions therein contained. and Larry O’Reilly Derek O’Reilly, Gerard an Moore intend to submit application to the county registrar for the city of Dublin at Áras Uí Dhálaigh, Dublin 7, for the acquisition Inns Quay, of the freehold interest in the aforesaid and that any party asserting property, that they hold a superior interest in the aforesaid property are called upon to furnish evidence of title to the said property to the below named within 21 days from the date of this notice. Derek O’Reilly, received, Paul O’Reilly, Larry O’Reilly and Gerard Moore intend to proceed with the application before the county registrar at the end of 21 days from the date of this notice and will apply to the county registrar for the city of Dublin for directions as may be appropriate on the basis that the person or persons beneficially entitled to the superior interest including the freehold reversion in the aforesaid property are unknown or unascertained. Schedule: comprised and demised by the said lease and therein described as “all that and those dwellinghouse, tanyard, drying house and small field at the rear thereof situate on the north side of Dolphin’s Barn Lane in the county of the city of Dublin, together with the several han- vats leches now in and upon the dler’s said premises, which said premises are meared and bounded on the south west partly by premises in the possession of partly by land Coleman and William property of the Corporation of the city and JULY 2007 JULY and in the Landlord and Landlord 15.24). € Landlord and Tenant Landlord Take notice that Clylim Properties Take In default of any such notice being UNKNOWN OWNER OF FEE SIMPLE INTEREST In the matter of the Acts 1967-1994 Tenant matter of the (Ground Rents) (No 2) Act 1978 in the matter of the purchase of the freehold estate of property situate at 35, 36 and 37 Catherine Street and 35, 36 and 37 Street, Limerick Upper Mallow person having any notice any Take freehold estate or the interest in the of the following prop- superior interest of 34, 35, 36 and 37 erties: rear and Upper Mallow Catherine Street all that and those the Street, Limerick, of 34, 35, 36 premises situate at the rear and Upper and 37 Catherine Street of Saint Mallow Street in the parish held Michael and city of Limerick, 17 July under indenture of lease dated Henry 1908 and made between William William Fogarty of the one part and a term of Christy of the other part for subject to an 99 years from 1 July 1908, annual rent of £12 ( Limited intends to apply to the county Limited intends to apply to of registrar for the county/city of the free- Limerick for the acquisition premises, hold interest in the aforesaid they hold a and any party asserting that superior interest in the aforesaid prem- ises (or any of them) are called upon to furnish evidence of title to the afore- mentioned premises to the below named within 21 days from the date of this notice. received, Clylim Properties Limited intends to proceed with the application before the county registrar at the end of the 21 days from the date of this notice and will apply to the county registrar for the county/city of Limerick for directions as may be appropriate on the basis that the person or persons benefi- cially entitled to the superior interest including the freehold reversion in each of the aforesaid premises are unknown or unascertained. Date: 6 July 2007 Signed: Eugene F Collins (solicitors for the applicant), 3 Burlington Road, Dublin 4 www.lawsociety.ie LAW SOCIETY GAZETTE
PROFESSIONAL NOTICES 70 RECRUITMENT 71 JULY 2007 JULY www.lawsociety.ie LAW SOCIETY GAZETTE LAW SOCIETY GAZETTE JULY 2007 RECRUITMENT
72 www.lawsociety.ie RECRUITMENT LAW SOCIETY GAZETTE JULY 2007
www.lawsociety.ie 73 SOLICITORS or BARRISTERS REQUIRED FOR POSITIONS AS Assistant Parliamentary Counsel (Grade II)
The Office of the Parliamentary Counsel to the Government, which is a constituent part of the Office of the Attorney General, will shortly be looking for Solicitors or Barristers interested in developing their careers in a challenging and modern legal environment. The position involves legal drafting work of the highest level and importance to the Government and provides an oppor- tunity for developing expertise in new and existing areas of law both here and abroad. The work is interesting, topical and stimulating. The Office provides opportunities for further education and has up to date IT facilities and a well resourced Library.
OFFICE OF THE PARLIAMENTARY LOCATION: COUNSEL TO THE GOVERNMENT: The Office is currently located in Government Buildings, The Office of the Parliamentary Counsel to the Government is Merrion Street, Dublin 2. It has not been listed by the responsible for the drafting of Government Bills and Government as part of its decentralisation programme. The Government Orders and for the drafting or settling of most Office has been adopted for accessibility for persons with dis- statutory instruments made by Ministers of the Government. abilities.
TRAINING: FUTURE VACANCIES: Each new entrant at Assistant Parliamentary Counsel Grade II A panel may be established from which future vacancies may be level will be trained by working on drafting assignments of filled. All the posts are permanent and pensionable. increased complexity. Initially, the Assistant Parliamentary Counsel Grade II will work with senior colleagues on drafts and QUALIFICATIONS: gradually begin to work on his or her own initiative. Practical Applicants must, on 1 August 2007, have been called to the bar training on the job is the key element in the training process for or have been admitted and be enrolled as a Solicitor in the State, entrants at Grade II level which will be supplemented by semi- and since qualifying, have relevant experience practising as a nars on aspects of drafting. Barrister or Solicitor in the State. (Periods spent in a wholetime position in the Civil Service, for appointment to which qualifi- SALARY SCALE: cation as a Barrister or Solicitor was an essential requirement, The salary scale as at 1 June 2007 is; will be reckonable for the purpose of practice). €69,179 - €88,895 (Modified scale, conditions apply) €72,823 - €93,582 (PPC Scale)
CLOSING DATE: The above recruitment competition, including the closing date, will be advertised shortly. Full details will be available on the Office website at www.attorneygeneral.ie and will also be published in the national newspapers.
If you would like any additional information on these vacancies please feel free to contact the Human Resources Unit on (01) 6314000.
BARRISTERS REQUIRED FOR POSITIONS AS Advisory Counsel (Grade III)
The Office of the Attorney General will shortly advertise for Barristers who are interested in developing their careers in a challenging and modern legal environment.
ROLE: LOCATION: The role of the Advisory Counsel is to assist and advise the The Office, which is located in Government Buildings, Merrion Attorney General in carrying out his or her functions. It Street, Dublin 2, has not been listed by the Government as part involves advising in the fields of domestic, European and inter- of its decentralisation programme. The Office has been adapted national law, participation in the formulation of legislation and to facilitate access to persons with certain disabilities. legal policy at these levels, representing the State in interna- Secondment to another Government Department or Office may tional fora and advising on the conduct of litigation in which the be to a location outside Dublin. State is involved. This comprises a very wide range of legal top- ics including Constitutional, administrative, European and PANEL: Human Rights Law. It involves giving legal advice to A panel may be established from which future vacancies may be Government Departments and Offices in relation to all areas of filled. All the posts are permanent and pensionable. public administration. The Office is unique among law practices due to the scope and variety of the work it undertakes. Advisory QUALIFICATION EXPERIENCE: Counsel will be required to be available for secondment from Applicants must, on 1 September 2007, have relevant experi- time to time to other Government Departments or Offices and it ence practising as a Barrister in the State. (Experience in certain is expected that such secondments will be for approximately 2 whole-time positions in the Civil Service may also be accept- years. able as practice as a Barrister in the State).
SALARY SCALE: The salary scale as at 1 June 2007 is; €69,179 - €88,895 (Modified scale, conditions apply) €72,823 - €93,582 (PPC Scale)
CLOSING DATE: The above recruitment competition, including the closing date, will be advertised shortly. Full details will be available on the Office website at www.attorneygeneral.ie and will also be published in the national newspapers.
If you would like any additional information on these vacancies please feel free to contact the Human Resources Unit on (01) 6314000. RECRUITMENT LAW SOCIETY GAZETTE JULY 2007
IN-HOUSE BANKING LAWYER – BANKING / FINANCIAL SERVICES – DUBLIN SOUTH €70-90K DUBLIN 2 €80K+ Our client, a retail banking organisation with its Irish One of Dublin's leading commercial law firms requires a Banking Headquarters is now looking for an in-house counsel to join its Solicitor to join its growing team. The successful candidate will legal team. The successful candidate will provide advice and have a number of years' experience working in the banking and support to the management as and when required regarding a financial services sector, either in-house or in practice. broad range of relevant legal issues which arise in the business as well as translate regulatory legal issues to the business to TAX SOLICITOR – DUBLIN CITY CENTRE €65K+ ensure that the business is compliant. This is an interesting and varied position that has very little compliance or tax return filing duties with a leading commercial IN-HOUSE LEAD COMMERCIAL COUNSEL – law firm. It provides an excellent opportunity for a qualified tax DUBLIN 3 €80-100K person (A.I.T.I.) with appropriate experience to be exposed to A software company based in East Point Business Park is now complex national and international tax planning opportunities. looking for in-house legal counsel. Dealing with all legal affairs and functions for the group of companies throughout Europe, NQ SOLICITOR – DUBLIN 2 €50K the incumbent will take an active and pivotal commercial role A leading Wealth Management Consultancy, with an emphasis on in providing strategic commercial legal advice and protecting a good work life balance, is now seeking a newly/recently the intellectual property and trademarks of the company. qualified solicitor to join its team in providing advice to its high net Strong experience in IP and commercial contract negotiation is worth individuals and corporate clients on a wide range of issues. required. Ideally you will have gained some experience of commercial legal For information drafting during your traineeship. You will have the intention of on these vacancies CONVEYANCING – obtaining professional tax qualifications. or to discuss DUBLIN CITY CENTRE €60-80K other career A leading Commercial Law firm in Dublin are now seeking a EMPLOYMENT SOLICITOR – DUBLIN 2 €70K+ opportunities, Conveyancing Solicitor with experience in commercial and Excellent opportunity has arisen for an employment solicitor to please contact residential conveyancing. The successful candidate will have join a prestigious employment law team. The ideal candidate will John Cronin experience in conveyancing transactions advising investors, have strong non-contentious employment law experience in developers and financial institutions and investigating title. advising clients in matters of equality/discrimination, employment Solicitor, PRC contracts, health and safety statements, staff handbooks, etc Recruitment CORPORATE LAWYERS – DUBLIN & CORK €70K+ Limited, 1D Corn Top law firms in Dublin and Cork are now looking for commercial PROJECTS LAWYER – DUBLIN CITY CENTRE €60K+ Exchange, Poolbeg solicitors. You will have experience in some of the following An opportunity now exists to join an expanding team within a top Street, Dublin 2. areas: Mergers and Acquisitions both public and private, tier firm. The team has experienced a high level of involvement in Tel: 01-6139510 securities, private equity, restructuring, fundraising, commercial a wide range of PPP projects dealing with private and public or e-mail contracts and compliance. These firms offer great opportunities sector clients. The successful candidate would gain exposure to [email protected] for career development. high profile projects.
Arbitration and Mediation Committee
Panel of mediators COMHAIRLE CATHRACH CHORCAI/CORK CITY COUNCIL The Arbitration and Mediation Committee of the Law Applications are invited from suitably qualified persons for inclusion on a Society of Ireland is now taking applications for panel from which appointments, either permanent or temporary, may be inclusion in a panel of mediators to be maintained by the made to the position of: committee and that will be available to members of the Society. EXECUTIVE SOLICITOR ESSENTIAL REQUIREMENTS: The panel will also include mediators available for Candidates shall: nomination pursuant to section 15(4)(b)(ii)(II) of the a) Have been admitted and enrolled as a Solicitor in the State Civil Liability and Courts Act 2004. b) Have satisfactory experience as a solicitor, including adequate experience of court work, after admission and enrolment as a Guidelines for membership of the panel and applications solicitor, and forms are available from Colleen Farrell, Law Society of c) Possess a high standard of professional training and experience. Ireland, Blackhall Place, Dublin 7; tel: 01 672 4800 SALARY: €46,387 – €48,137 – €49,890 – €51,645 – €53,400 – €55,154 – €56,909–- €58,655 – €60,417 – €62,166 (max.) – €64,181 (fol- lowing three years service on the maximum) – €66,202 (following six years service on the maximum). Application forms and full particulars may be obtained from the Reception Desk, Cork City Council, City Hall, Cork or alternatively, may be downloaded from Law Society of Ireland Cork City Council's web site at: http://www.corkcity.ie/recruitment Completed application forms must be returned to the Personnel Dept., Cork City Council, City Hall, Cork, not later than 5.00pm on Friday, 3rd August 2007 www.lawsociety.ie Applicants may be shortlisted on the basis of the information supplied on the appli- cation form. Cork City Council is an equal opportunities employer.
www.lawsociety.ie 77