LAW SOCIETY

Gazette€3.75 May 2008

GOODGOOD SPORTS?SPORTS? HowHow thethe GAA’sGAA’s DisputesDisputes ResolutionResolution AuthorityAuthority worksworks

INSIDE: DNA DATABASE CONCERNS • MEDIATION VICTORY • FOCUS ON OVERTIME • ANNUAL CONFERENCE REPORT

LAW SOCIETY GAZETTE MAY 2008 CONTENTS

On the cover LAW SOCIETY Recent on-pitch events may ultimately lead to referrals to the GAA’s sports disputes resolution body. But what is the Disputes Resolution Authority and how Gazette does it work? PIC: GETTY IMAGES May 2008

Volume 102, number 4 Subscriptions: €57 REGULARS 5 President’s message 7 News Comment 12 12 Viewpoint: investigation into the death of Brian Rossiter Analysis 14 14 News feature: annual conference report 16 Human rights watch: the right to an expeditious trial 16 One to watch: Income Tax (Relevant Contracts) 14 (Amendment) Regulations 2008 45 People and places 53 Student spotlight 54 Obituary Book review 55 Defamed! Famous Irish Libel Trials 56 Tech trends Briefing 58 58 Council report 59 Practice note 46 60 Legislation update: 11 March – 15 April 2008 62 FirstLaw update 64 Eurlegal: recent developments in European law 67 Professional notices 71 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 67. Commercial advertising: Seán Ó hOisín, 10 Arran Road, Dublin 9; tel: 01 837 5018, fax: 01 884 4626, mobile: 086 811 7116, email: [email protected]. Printing: Turner’s Printing Company Ltd, Longford. Editorial board: Stuart Gilhooly (chairman), Mark McDermott (secretary), Paula Fallon, Michael Kealey, Mary Keane, Aisling Kelly, Patrick J McGonagle, Ken Murphy, 50 Philip Nolan.

2 www.lawsociety.ie CONTENTS LAW SOCIETY GAZETTE MAY 2008

Get more at lawsociety.ie PROFESSIONAL NOTICES: send your small advert details, with payment, to: Gazette Office, Blackhall Place, Dublin 7, tel: 01 672 4828, or email: [email protected]. Gazette readers can access back issues of the ALL CHEQUES SHOULD BE MADE PAYABLE TO: LAW SOCIETY OF IRELAND. magazine as far back as Jan/Feb 1997, right up to the current issue at lawsociety.ie. COMMERCIAL ADVERTISING: contact Seán Ó hOisín, 10 Arran Road, Dublin 9, tel: 01 837 5018, fax: 884 4626, mobile: 086 811 7116, email: [email protected] You can also check out: • Current news HAVE YOU MOVED? Members of the profession should send change-of-address • Forthcoming events, including the 2008 details to: IT Section, Blackhall Place, Dublin 7, or to: [email protected] conference of the International Council for Subscribers to the Gazette should send change-of-address details to: Commercial Arbitration, Dublin, 8-10 June Gazette Office, Blackhall Place, Dublin 7, or to: [email protected] • Employment opportunities • The latest CPD courses HOW TO REACH US: Law Society Gazette, Blackhall Place, Dublin 7. … as well as lots of other useful information Tel: 01 672 4828, fax: 01 672 4877, email: [email protected]

FEATURES COVER STORY: 20 A game of two halves? The courts are not always the most appropriate forum for the resolution of sports disputes. Liam Keane fists one over to the GAA’s Disputes Resolution Authority ...lest ye be judged in turn 26 In the second of two articles on judicial conduct, Brian Hunt examines the various proposals for reform that have been put forward by a range of committees – but which have never been implemented – and argues that there is a pressing need for immediate action Mediation meditation 30 A High Court judge recently urged Pat Kenny and his neighbours to consider mediation as a means of resolv- ing their property dispute. Caroline Murphy looks at the advantages that mediation holds for dealing with con- tentious litigation issues Oracle of truth? 34 In October 2007, the government brought forward the 26 Criminal Justice (Forensic Evidence) Bill 2007 – suggesting that the establishment of a DNA database is on the cards. Patrick McGonagle focuses his spectrometer Work, rest and play 38 When is overtime not really overtime, and when do you get paid for it? Using examples, Michael Prendergast assesses whether overtime is an outmoded concept or a phoenix rising from the ashes End of the age 42 There are two ways to look at well-funded retirement: the end of employment income or the start of a pension. Jo Kenny and Philip Smith consider the interaction between employment and pension law definitions of retirement

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 42

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PRESIDENT’S MESSAGE LAW SOCIETY GAZETTE MARCH 2008 Éist le fuaim na habhann agus gheobhaidh tú breac

hankfully, the year is flying in. There is a Law Society adage that, once the annual conference is over, the president is yesterday’s man and any available respect T is directed at the heir apparent. Proof positive of this is that my good friend John Shaw’s forehead is a little more furrowed these days! The conference was a great success, largely due to the high-quality presentations from our speakers: Barry Donoghue (deputy director of public On 22 April, the Minister for the Environment “The present prosecutions), John Bruton (EU ambassador to the John Gormley launched the Society’s detailed report position, US), and Minister for Justice Brian Lenihan. entitled Enforcement of Environmental Law: The Case Despite the fact that some speakers had a clear for Reform. This wonderful document shows that, whereby position on the Lisbon Treaty, the general view was while media headlines are consumed with regulatory legislation that a lot of useful non-partisan information was issues, it is business as usual in all our other exchanged – much of it for the first time. departments. I would like to compliment all involved emanating Irrespective of anyone’s perspective, I would with the project and, in particular, our full-time from Brussels encourage colleagues to fully participate in public personnel, Alma Clissman, who is now with the Law information events concerning the treaty. From a Reform Commission, and Elaine Dewhurst. is immune from legal point of view, the minister outlined that it will One of the great pleasures of the presidency is fundamental now be possible to challenge Brussels’ directives by that it gives an opportunity to record the reference to the provisions of the Charter of appreciation of the profession for many of the challenge by Fundamental Rights. This is a type of jurisdiction unsung heroes who do so much good work on our virtue of with which we are all familiar, both in the context of behalf. Recently, I attended the annual general constitutional challenges and incompatibility meeting of the Solicitors’ Benevolent Association, article 29 of declarations by reference to the European Convention whose members put in an enormous effort to assist the Constitution, on Human Rights. colleagues or their families who have fallen on hard It remains to be seen how practical this remedy times. In thanking members for their contribution is a most will be in the event that the treaty is passed, but each year (with the practising certificate fee), I frustrating one” certainly the present position, whereby legislation would nonetheless ask colleagues to consider emanating from Brussels is immune from incorporating a bequest to the association in their fundamental challenge by virtue of article 29 of the own will. The good work of the SBA has been Constitution, is a most frustrating one. essential since 1863, and there is no reason to Next year, our conference will be in Bilbao, with believe other than that they will be needed long precise dates and arrangements to be confirmed after we are all gone. G shortly. I would encourage all members, especially younger colleagues, to attend the conference and see James MacGuill for themselves. President

www.lawsociety.ie 5 6 www.lawsociety.ie NEWS LAW SOCIETY GAZETTE MAY 2008 nationwide

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

■ DUBLIN Service proposal for solving DSBA President Michael the county’s chronic backlog of Quinlan’s trip in September to cases. “Their solution is to China has created tremendous hive off Donegal Town and interest among members of the Ballyshannon to Sligo, but this profession. Colleagues seem to will have a negligible effect, as appreciate that a conference of the heart of the problem is the this nature represents a chance huge caseload in Letterkenny.” in a lifetime. While there is still Brendan tells us that, as of availability, places are filling up, February of this year, there and those seriously interested were 3,123 cases on the in going are strongly District Court lists throughout encouraged to secure a place by the county, with Donegal and putting down their deposit now. Ballyshannon accounting for a It promises to be an amazing mere 15% of the total, experience. compared with Letterkenny’s The DSBA is to hold a lunch 61%. Says Brendan: “The for esteemed colleagues who Rosie O’Flynn, Bernadette Cahill and Marie Dennehy at the problem can only be solved have soldiered on in practice Waterford Law Society’s dinner on 4 April (see p48) with the appointment of a for over 50 years. While a date second permanent judge, as for the event has yet to be miles outside the town, with registration of title based on the ceding to Sligo will not fixed, it is likely to be in the the considerable inconvenience possession. John Murphy, address the problem, making early summer. We would be that entails for practitioners examiner of titles, who had negligible difference to the particularly pleased to hear and witnesses alike. The new gone to school in the town, was overall situation.” Likewise, from any colleagues who Gorey courthouse is under delighted to return and meet up Brendan feels the county is qualified in 1958. construction, but is not due for with many of his former crying out for the appointment completion until next year. The classmates at a very well- of a second Circuit Court ■ LEITRIM Enniscorthy courthouse attended seminar. He was judge, where again there is a Colleagues throughout the renovations are to be assisted by Brenda Feeney, chronic overhang of 800 cases, county and beyond have completed next year also. Funds examiner of titles for the north with the county having only 64 welcomed the appointment of are to be made available for the midlands region. The bar court days in the year. Mohill solicitor Kevin P renovation of the New Ross association also held a seminar However, he is fulsome in Kilraine to the bench. Kevin courthouse during the current on issues affecting the elderly his praise of the heroic efforts has been an outstanding year. The present courthouse in and the practical aspects of of Judge O’Hagan to deal advocate for many decades and New Ross is located in a GAA caring for the elderly in with matters, but feels that his appointment will bring to club. vulnerable situations. Charlie without the assistance of the bench a huge amount of Helen has recently arranged hopes to hold a further seminar another full-time judge, there common sense and legal for a number of seminars in the on tax issues and conveyancing. is no hope of ever clearing the expertise. county, one on the new VAT backlog. G regime, as well as a ■ DONEGAL ■ WEXFORD presentation from the Property Bar association president ‘Nationwide’ is compiled by Kevin The provision of courthouses Registration Authority. Anne Brendan Twomey is distinctly O’Higgins, principal of the Dublin throughout the county has been Neary’s seminar ‘Succeeding in unimpressed by the Courts law firm Kevin O’Higgins. of huge concern to bar a Downturn’ will be held in association president Helen June and a dinner will take SOLICITORS’ Doyle and her colleagues for place in July. many years. She tells us that the Courts Service has now ■ MIDLANDS HELPLINE acquired the municipal Charlie Kelly tells us that the buildings in Wexford town for bar association organised a 01 284 8484 the provision of court facilities. most successful seminar in THE SERVICE IS COMPLETELY CONFIDENTIAL AND Currently, the District Court Mullingar in early April on TOTALLY INDEPENDENT OF THE LAW SOCIETY and offices are in Ardcavan, two compulsory registration and

www.lawsociety.ie 7 LAW SOCIETY GAZETTE MAY 2008 NEWS France’s highest court supports lawyers on money laundering

he French Conseil d’Etat – Belgian Constitutional Court Tthe highest administrative (23 January 2008). court in France – has The CCBE has warmly effectively ruled against the welcomed the decision. CCBE implementation of the second President Péter Köves said: Money-laundering Directive in “This decision, as well as the France. recent decisions given by the In a challenge mounted by European Court of Justice and the French Bar and the the Belgian Constitutional Council of Bars and Law Court, are a very firm warning. Societies of Europe (CCBE) It is not possible to impose on against the implementation of the European legal order an the directive in that country, obligation on lawyers to betray the Conseil d’Etat ruled (10 the trust of their clients, nor to April 2008) that EU member impose on them obligations states should not just have the other than those of guarding option to respect lawyers’ with independence the interest professional secrecy within the of their clients alone.” framework of judicial activities The CCBE states that, at a and legal advice (as mentioned time when the third Money- in the directive) – but are laundering Directive – which under an obligation to do so. increases the information and The Conseil d’Etat also cooperation duties on lawyers – stated that, in order to is about to be implemented, safeguard professional secrecy, ‘It is not possible to impose on the European legal order an obligation on the member states have a all direct contacts between the lawyers to betray the trust of their clients’ – Péter Köves, CCBE president compelling need to take lawyer and the national account of the respect for financial intelligence unit d’Etat gave the widest possible 6 of the directive. fundamental rights, should be forbidden. meaning to ‘legal advice’, The decision complements unanimously called for by the In referring to article 8 of putting to one side the recent case law decision of European Court of Justice, the the European Convention on ‘ascertaining the legal position the European Court of Justice Belgian Constitutional Court Human Rights, the Conseil of a client’ mentioned in article (26 June 2007) and that of the and now by the Conseil d’Etat. Litigation Committee in Courts Service dialogue he Litigation Committee The Courts Service has service it provides in respect of Thas continued its ongoing asked the Gazette to remind filed documents. dialogue with the Courts practitioners of express services The Courts Service has Service. On 27 March last, its available. In the event that you stated that it is very anxious to chairman Stuart Gilhooly and have less than five documents to liaise closely with the legal its secretary Colette Carey met file, you may avail of the express profession before introducing with Nuala McLoughlin and queue – it also operates an even these changes and will be in Angela Brennan of the High quicker express service for those further contact with the Court section of the Courts with only one document. Litigation Committee in the Service to discuss ongoing In terms of improving the near future. service issues with the central general service into the future, In the meantime, the office. Top of the list of following an independent Litigation Committee strongly concerns was the length of review of its services, the Courts advises practitioners with many queues to be served and the new Service plans shortly to documents to arrive early in the closing times. 4.30pm sharp. The effect of this introduce a postal system. It is central office and, if possible, to In January, the Courts has been that anyone still hopeful that this will reduce the avoid Wednesday afternoons, Service announced that the waiting in the queue at this time sizes of queues. In addition, it which are especially busy with central office would close at has not been served. plans to streamline the checking bail application documentation.

8 www.lawsociety.ie NEWS LAW SOCIETY GAZETTE MAY 2008 Law Society launches report on environmental law reform PIC: LENSMEN he Law Society’s Law TReform Committee has launched a new report, focusing on environmental law. The Enforcement of Environmental Law: the Case for Reform was launched by Environment Minister John Gormley, at Blackhall Place on 22 April 2008. The report considers the wide range of regulations currently in force in Ireland relating to environmental At the launch of the report Enforcement of Environmental Law: The Case for Reform on 22 April 2008 were enforcement. It concludes that (l to r): Aoife Shields, Finola McCarthy, Minister for the Environment John Gormley TD, Deborah Spence, a rebalancing of the Owen McIntyre and Alma Clissmann enforcement regime should be implemented. This would effectively deal with many cases actions taken by special interest The committee hopes that encourage and reward in a proportionate and risk- groups in the area of this report will go some way to compliance without hindering based way. environmental law. assisting the legislature in the the effective use of the available The issue of implementing Legal costs have also been task of implementing enforcement measures. environmental agreements is considered. It was concluded legislation and framing policy Environmental enforcement addressed, on the basis of their that such costs could often be a in Ireland in a balanced is considered from a number of successful adoption in other EU barrier to potential litigants manner. Indeed, Minister perspectives – that of public member states. These are taking environmental judicial Gormley was very receptive to enforcement, citizen usually set against a background review proceedings. The report the ideas raised in the report enforcement, environmental of the threat of more formal, recommends that pre-emptive and has invited an open agreements and pre-emptive binding regulation – but costs orders be made available. discussion on the issues raised. costs orders. The report nonetheless offer more The Law Reform Committee The report is available on the strongly supports the negotiation, agreement and endorses the consideration and Law Reform Committee pages introduction of unambiguous flexibility for industry. use of these by the judiciary to of the Law Society’s website: and effective mechanisms for date. www.lawsociety.ie. enforcing environmental law by Citizen enforcement the state and its citizens. The Law Reform Committee report also deals with the Trainee solicitor Human New enforcement measures concept of citizen enforcement. The report recommends new It makes a number of Rights Essay Prize enforcement measures, recommendations on the legal including the use of standing of citizen enforcers he Law Society of Ireland argument for the influence of environmental community and their right not only to Tis pleased to announce the human rights law. service orders, publicising complain to regulatory second annual competition for Entries should be typed and breaches, mandatory audit authorities, but for such the Human Rights Essay Prize. approximately 2,000 – 3,500 orders, the introduction of a complaints to set in motion an Trainee solicitors, those words in length. Entries may be ‘penalty points’ system, as well obligation on the part of that qualified in the previous year, co-authored. Two prizes will be as the imposition of corporate authority to take further action. and those preparing for FE1 awarded in total: a first prize of responsibility for major The issue of partnerships exams are invited to submit an €600 and a runner-up prize of environmental damage. between members of the public, essay identifying a particular €300. The report concludes that NGOs and regulatory bodies in aspect of human rights law that Prize-winning and shortlisted the current model of public the enforcement of they believe will have essays may be published. Infor- enforcement – which relies on environmental law is examined. importance in the application mation in relation to marking, criminal prosecution and fines The report also addresses the or interpretation of Irish law. prizes and eligibility are available consequent on conviction as the possibility of widening the They should briefly explain the on the Law Society website sole penalty – fails to give remit of the Legal Aid Board to current understanding of law in under the Human Rights regulators adequate means to encompass public interest this area and outline their Committee at www.lawsociety.ie.

www.lawsociety.ie 9 LAW SOCIETY GAZETTE MAY 2008 NEWS

HEALTH ADVICE AND SUPPORT FOR LAWYERS YOU CAN MAKE A DIFFERENCE LawCare provides a range of health services to lawyers, their staff and families in Ireland oon after she qualified as a intention of employing more Slawyer, Laurie (not her real solicitors to lessen the burden. I name) got a job with a medium- explained that I wasn’t prepared sized firm. Although she was to work the long hours I had promised that she would be doing been doing.” family law, she was almost immediately placed in the civil Manageable stress litigation department, ‘to help out’. Laurie continued: “After a couple She found herself floundering, but of months, while I felt better, I there was no one to turn to for could see that the firm was a support. “I had no knowledge, shambles and it was a stressful experience or even interest in the environment, even though I did work. I hadn’t a clue what I was my best to apply the stress supposed to be doing, but when I management techniques I’d asked for help, everyone was too learned. So, with Anne’s busy, or they said: ‘Are you support, I left and now I have a qualified or aren’t you?’” Laurie job in a provincial firm doing the spent a large amount of her time family-law work I love, with lots looking through books for the the burden had lifted a little. “Anne phoned several times of autonomy and manageable guidance she needed, and working LawCare sent her some practical during that week,” Laurie said, stress. I can’t thank LawCare, 12-hour days in order to keep up advice about stress “and I really felt she was there for and especially Anne, enough for with both the reading and the management, which she found me. Because she was a lawyer the help they gave me. I dread to workload. very helpful. They also offered too, I felt I had the one-to-one think what might have happened Inevitably, Laurie made a major her the support of a LawCare support I had craved so much in without it.” mistake on a file and was volunteer, which she gratefully the early months. I was able to There are currently over 150 disciplined. “Because of this, I accepted. talk to her about what I might do LawCare volunteers and the was lucky enough to get one-to-one Anne (not her real name) to resolve the problems. She support that they give is time with the senior partner, and called her the next day. Anne reminded me that I needed to put absolutely vital to LawCare’s so I told him why it had happened was a sole practitioner working my health and my relationship work in assisting the legal and he reluctantly agreed that I in a town 30 miles away, but she with my partner first. professions. Currently, around a should be moved to family law well remembered the stress “When I went back to work, I quarter of all LawCare’s cases after all. At least there I had some Laurie described from spoke to the senior partner and are referred to a volunteer for idea what I was doing, but that experiences in her own career. explained the problem. He told help, but this isn’t enough. department was understaffed too. She offered support and, me that, although the firm had a If you have useful life There was only one secretary, so I through talking to her, Laurie problem with people taking time experience, experience of had to do all my own admin, and began to see light at the end of off with stress and various other recovery from addiction or our billing targets were the same the tunnel. related illnesses, he had no mental illness, association with as for those in civil litigation. It such problems through family or was totally unrealistic.” friends, and/or knowledge of Laurie began suffering severe ABOUT LAWCARE counselling techniques (as headaches and mood changes, LawCare is an advisory and support service to help opposed to being a trained which caused problems in her solicitors, their staff and their immediate families to deal counsellor), then please consider relationship with her fiancé. She with health problems such as depression and addiction, and becoming a volunteer for went to her GP, who diagnosed her related emotional difficulties. The service is free and LawCare. You’ll receive no symptoms as being stress-related entirely confidential. monetary reward, but you will and suggested she take at least a For totally confidential, non-judgemental help, ring freephone have the satisfaction of knowing week off sick, before she had a that you are putting something complete breakdown. 1800 991 801 back into the profession and (9am – 7.30pm weekdays and 10am – 4pm helping your fellow lawyers. Like LawCare volunteer at weekends/bank holidays, 365 days a year. Anne, you will have the reward of During that week, Laurie called Web: www.lawcare.ie seeing people you have helped LawCare for help. After talking Email: [email protected] resuming effective professional through all her worries, she felt and personal lives. G

10 www.lawsociety.ie NEWS LAW SOCIETY GAZETTE MAY 2008

■ RETIREMENT TRUST IBA conference to return SCHEME Unit prices: 1 April 2008 Managed fund: €5.197777 to Ireland after 44 years Cash fund: €2.829940 Long-bond fund: €1.385574 he International Bar All-equity fund: €1.193454 TAssociation’s (IBA) annual conference will be returning to ■ ‘PLAIN ENGLISH’ THUMBS UP Ireland in 2012 after a period of The National Adult Literacy 44 years. The last IBA annual Agency (NALA) has awarded its conference was held in Dublin ‘Plain English’ mark for the Law in 1968. Society’s new precedent letter of The National Conference engagement (see insert with this Centre has been booked for the issue). This document, and a pre- event, which will be held cedent letter of disengagement, between 30 September 2012 membership of the IBA very increase in Irish membership of were prepared by the Guidance and 5 October 2012. Around rewarding.” the IBA,” says Michael. “Joining and Ethics Committee as an aid 4,000 lawyers from around the The current membership the association is very easy – a to solicitors. The committee world will descend on the includes around 140 Irish few clicks and your credit card suggests that the precedent capital to discuss a vast range of solicitors. One firm, McCann details on www.ibanet.org will document be used simply as a topics in more than 260 sessions FitzGerald, has signed up all of see you signed up.” letter, with the client’s details throughout the week. its lawyers under the IBA’s Queries about the association added. Alternatively, it can be The Law Society has worked group membership scheme. “I should be addressed to Michael incorporated into a pamphlet or hard to secure Dublin as the would hope that by 2012 we at: michael.greene.ireland@ brochure with the firm’s own choice for this conference. will see a very significant gmail.com or tel: 087 2585 649. logo. It can then be sent to Particular recognition goes to potential clients with a covering Geraldine Clarke, John Buckley letter. and Laurence Shields for their Publication of Legal efforts in securing Dublin as ■ BROWN FACES REVOLT OVER next year’s venue. Services Ombudsman Bill COUNTER-TERRORISM BILL “The International Bar ustice Minister Brian practical amendment to the bill A new Counter-terrorism Bill that Association is the world’s JLenihan has published the that complements the proposes to lengthen the time a leading organisation of Legal Services Ombudsman Bill overarching purpose of this suspect can be detained without international leading 2008. The ombudsman will piece of legislation – the charge seems set for defeat in practitioners, bar associations oversee the handling of improved regulation of the Britain’s House of Commons. Ten and law societies,” explains complaints from clients of legal professions.” former ministers look set to join Michael Greene, the nominated solicitors and barristers by the The current regulatory a growing revolt against Labour’s treasurer of the IBA for 2009 Law Society and Bar Council. arrangements for solicitors plans to hold terrorist suspects and 2010. “The IBA has a The key functions of the include the independent for 42 days. membership of around 33,000 ombudsman will be to: Solicitors Disciplinary Tribunal Separately, on 24 April 2008, individual lawyers drawn from • Provide a form of review for appointed by the President of the High Court ruled against just about every country in the clients of solicitors and the High Court to investigate powers to freeze suspects’ bank world. It also comprises more barristers who are dissatisfied complaints of misconduct accounts after five men than 195 bar association and law with the handling of a against solicitors and an successfully challenged the societies spanning every complaint made to the Law Independent Adjudicator. British government’s powers to continent. Society or Bar Council, In addition, the Civil Law freeze bank accounts, stop “People join the IBA for a • Oversee the complaints (Miscellaneous Provisions) Bill benefit payments and control the variety of reasons,” says procedures in place in the 2006 – currently before the spending of people it has Michael. “Sometimes it is for Law Society and Bar Seanad – provides for a designated as terrorist suspects. the purpose of networking and Council, and majority of lay membership of ensuring a regular stream of • Monitor and report annually Law Society complaints ■ LOST IN TRANSLATION foreign referrals; sometimes it in to the minister and the committee. Provision is also Interpretation and translation order to be at the cutting edge Oireachtas on the adequacy made to ensure better services provider, Lionbridge of international practice and to of the admissions policies of enforcement of orders of the Technologies, has secured a raise awareness of the latest both professions. Solicitors Disciplinary Tribunal. major contract for the provision of developments in the relevant The Legal Services services to the Courts Service. practice area in other “As the bill progresses through Ombudsman Bill 2008 is The contract is the second jurisdictions. Whatever their the Oireachtas,” said the available on the Oireachas largest interpretation contract in reasons, most lawyers find minister, “I will consider any website, www.oireachtas.ie. the country.

www.lawsociety.ie 11 LAW SOCIETY GAZETTE MAY 2008 COMMENT

Justice delayed is justice

Whenever there is an allegation that a person may have been ill-treated in custody, there must be an ‘effective’ investigation. Mark Kelly reviews the summary of the report into the death of Brian Rossiter

n early September 2002, finds that there was no I14-year-old Brian Rossiter adequate investigation of this was found unconscious in a cell possibility” and “certain in Clonmel Garda Station. He investigative steps were not died in hospital, without taken after the possibility of an having regained consciousness, assault in custody was raised”. three days later. According to a In particular, the inquiry number of witnesses, he had found that there was a failure been ill-treated by a member to direct that a material or members of An Garda witness be interviewed in Síochána during his arrest or relation to what he had seen or detention. heard while in custody. Dr This April, the Department The European Court of Human Rights, Strasbourg Marie Cassidy, who carried out of Justice released a summary an autopsy, was never asked by of the Hartnett Inquiry’s report investigations into Brian satisfied that Brian Rossiter was gardaí if any of Brian Rossiter’s into the circumstances Rossiter’s death are thrown assaulted in the course of arrest injuries could have been surrounding his death. Hugh into sharp relief. or when he was in custody” incurred in an assault other Hartnett SC found that “the [emphasis added]. It is plain than one known to have taken documentation produced in the Benchmarks of effectiveness from the summary of the inquiry place before his detention. course of the investigation into 1. The persons responsible report that the original criminal This was despite the fact that, the death of Brian Rossiter and for and carrying out the investigation failed to take while the criminal investi- the evidence heard at this investigation should be adequate steps to establish gation was active, the inquiry does not show any independent from those whether or not force was used at investigating superintendent indication of there being any implicated in the events. or after detention. As a result, received a letter from the real investigation in relation to The investigation was carried the inquiry was simply not in a regional director of the South the possibility of Brian Rossiter out by Superintendent Richard position to satisfy itself on the Eastern Health Board setting having been assaulted or his Burke who, according to the issue of whether – or not – Brian out an allegation that a ‘Mr C’ having received a fatal injury Hartnett Inquiry, failed to Rossiter was assaulted by gardaí. had witnessed ill-treatment of while in custody”. arrange for witness statements 3. All reasonable steps a young man in Clonmel In a line of judgments “to be taken by members of An should be taken to secure Garda Station between 9.30pm stretching back to 2001 (see Garda Síochána other than evidence concerning the and 10pm on 10 September panel), the European Court of Clonmel members”. incident, including, among 2002. The inquiry finds that Human Rights has stated 2. The investigation must other things, eyewitness the failure to make adequate unequivocally that, whenever be capable of leading to a testimony, forensic evidence, inquiries after the receipt of there is an allegation that a determination of whether and, where appropriate, an the allegation contained in that person in custody may have force used was or was not autopsy that provides a letter is “inexplicable”. been ill-treated by police justified under the complete and accurate 4. The investigation must officers, there must be an circumstances and to the record of injury and an be conducted in a prompt ‘effective’ investigation. identification and, if objective analysis of clinical and reasonably expeditious The jurisprudence of the appropriate, the punishment findings, including the cause manner. Strasbourg court has provided of those concerned. of death. The Hartnett Inquiry found a series of clear benchmarks Some media reports have According to the Hartnett that “there was a failure to against which the effectiveness suggested that the Hartnett report, “despite the evidence of investigate all the circum- of an investigation may be report finds no evidence that Superintendent Burke to the stances surrounding the death judged. When the findings of any member of the gardaí effect that the possibility of an of Brian Rossiter and that this the Hartnett report are set assaulted Brian Rossiter. assault on Brian Rossiter during was a neglect of duty on the against those benchmarks, the This is not the case: rather, his arrest or detention was a part of Superintendent Burke”. shortcomings of the the inquiry records that it “is not line of enquiry, this inquiry Moreover, it was more than

12 www.lawsociety.ie COMMENT LAW SOCIETY GAZETTE MAY 2008 viewpoint denied

three years after Brian Rights – been involved in the responsibility”. Rossiter’s death before the investigation to “the extent ECtHR To date, no one has been Hartnett Inquiry itself was set necessary to safeguard their held accountable for the death up, and its full report has yet to legitimate interests”. judgments of Brian Rossiter, and there has be made public. • Assenov and others v yet to be an investigation into 5. There must be a ECHR and article 2 Bulgaria, N 90/1997/ his death that complies with sufficient element of public Article 2 of the European 874/108 Ireland’s obligations under scrutiny of the investigation Convention on Human Rights • Hugh Jordan v United article 2 of the ECHR. or its results in order to requires that, whenever there is Kingdom, N 24746/94 In future cases, investigations secure accountability in an allegation that someone has • Kelly and others v the by the independent Garda practice as well as in theory. been injured or has died as the United Kingdom, Síochána Ombudsman Five-and-a-half years after result of a garda assault, that N 30054/96 Commission may well meet the Brian Rossiter’s tragic death, allegation must be investigated in • McKerr v United standard required by the only a redacted summary of a way that is independent, Kingdom, N 28883/95 convention. However, where the Hartnett report has been effective, prompt and transpar- • McShane v United the death of Brian Rossiter is published. Brian’s parents ent. In the leading case of Hugh Kingdom, N 43290/98 concerned, it would appear that were reportedly informed only Jordan v the United Kingdom, the • Sevtap Veznedaroglu v justice delayed is truly justice a few hours beforehand that Strasbourg court made clear that Turkey, N 32357/96 denied. G this material would be “the essential purpose of such published. It seems plain that investigation is to secure the Mark Kelly is an international they have not – as is required effective implementation of the involving state agents or bodies, human rights lawyer and director by the case law of the domestic laws which protect the to ensure their accountability for of the Irish Council for Civil European Court of Human right to life and, in those cases deaths occurring under their Liberties.

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www.lawsociety.ie 13 LAW SOCIETY GAZETTE MAY 2008 ANALYSIS Sweet Liberty, I speak of thee The Law Society’s annual conference in Budapest tackled big questions like the Lisbon Treaty, EU/US relations, and the possibility of an EU federal prosecutor. Mark McDermott reports

f the Minister for Justice had PIC: GETTY explain to people that this [the Iventured to gaze to his right Lisbon Treaty] is only a marginal as he took to the podium in the change in the structure of the Academy of Sciences in European Union. People Budapest, he would have seen, rightly think there is something through the nearby window, the afoot here. And one of the graceful form of Lady Liberty biggest difficulties in the standing guard over the city. referendum is going to be ‘Lady Liberty’, the explaining to people that there ‘Liberation Monument’, or the isn’t all that much in the Lisbon ‘Liberty Statue’ – take your pick Treaty. Because people naturally – has been standing guard over say, ‘Well, why are we having a the Hungarian capital since referendum then?’” 1947, as a monument to the The minister addressed some Soviet Army’s liberation of the of the key features of the treaty, city in 1945. The statue including the Charter of survived the 1992 purge of Lady Liberty holds aloft the palm of victory on Gellért Hill in Budapest Fundamental Rights, which will more than 40 busts, statues and have legally-binding status if plaques of Soviet-era leaders, “The treaty has to be ratified “I think one of the problems the treaty carries and will be heroic workers and communist by all 27 states to have legal with our Constitution is that we seen as a significant martyrs that, till then, had effect. And the other member have had it since 1937. It’s an development in underpinning graced the city’s public spaces. states ratified the treaty by excellent document. How could the values of the EU in the The statue’s beauty – and its parliamentary process. So this I say anything else, since the areas of citizens’ rights and universal theme of liberty – referendum is unique to Ireland drafter was the founder of my freedoms. ensured that its place was and to the Irish people, and party? But it has gone through Another feature of the treaty secure. It’s now a fitting iconic that’s a constitutional a minute-by-minute analysis by is its proposal for a greater role connection between Hungary’s requirement,” he said. “And my the Supreme Court, which has for national parliaments in darker, historic past and its script writer has kindly said that led to an extraordinary set of relation to EU legislation. “I brighter, Europe-focused I should not see this as a conclusions. For example, our think that’s important. I think future. negative and potentially present Supreme Court requires that, given the volume of And it was on Europe’s embarrassing process. I have to that we have a referendum European legislation, it’s future that the gaze of Justice say I’m on the record on this as every time there is a marginal important that the scrutiny Minister Brian Lenihan was saying it is a negative and change in the structure of the measures that do exist at a firmly fixed during his address embarrassing process. I don’t European Union. Now, of national level in national to the 180 Law Society actually agree with it. course, it was very difficult to parliaments are strengthened,” members who had travelled to he said. Budapest for this year’s annual conference. Justice matters The minister next turned to Quasi-religious terms justice matters, specifically the Minister Lenihan emphasised issue of majority voting in the the government’s view that fields of criminal law and police Ireland’s future would be best cooperation. served by a reformed Europe in “We were prepared to go which Ireland was a fully along with majority voting in committed member. He spoke criminal law and police of the treaty in quasi-religious cooperation. But Chancellor terms: the plebiscite on the Merkel was anxious to bring treaty would “give us all an finality to the treaty. There opportunity to renew our faith were certain redline issues Speakers at the business session of the annual conference were (l to r): in the European project, which EU Ambassador to Washington John Bruton, Minister for Justice, Equality which Prime Minister Brown, has been such a benefit to the and Law Reform Brian Lenihan TD, President of the Law Society James in my view, wrongly identified nation”. MacGuill, and Deputy Director of Public Prosecutions Barry Donoghue as important issues for the

14 www.lawsociety.ie ANALYSIS LAW SOCIETY GAZETTE MAY 2008 ALL PICS: MARK MCDERMOTT United Kingdom – and one of them was this area. And he secured for the United Kingdom an opt-out in relation to justice matters, which allows the United Kingdom to decide not to accept qualified majority voting in this area. Now, when Chancellor Merkel agreed this with Mr Brown, Chancellor Merkel simply went to our Taoiseach and said, ‘We are giving the British this – we have to offer it to you as well, because you are a common-law country’. “So, we were offered an opt- out. We are not opting out of justice cooperation, of course. We are opting out of qualified Law Society members and guests in front of a Soviet-era monument in the quirky Statue Park, outside Budapest majority voting if we want to [but] I don’t see us, I have to establishing such a body in the policing role, will you agree say, exercising an opt-out very short-to-medium term. In the that you won’t do any policing often … But again, I think what absence of such unanimity, of unless we agree – both of us? we have negotiated on the course, a group of at least nine Then they get a little bit less justice front is in our interests. members could establish the keen. They are happy for us to It allows us to look at matters EPP on the basis of enhanced play – but they want to have the on a case-by-case basis. We cooperation between them. final say.” have lodged a declaration However, this EPP could only making clear our intention to operate in the territories of The meaning of freedom participate to the maximum those states and would have to As the business session drew to extent possible on justice work alongside Eurojust, which a close, Lady Liberty continued cooperation and justice Is it a bird, is it a plane? … would continue to operate on a to stand guard over Budapest, No it’s ‘heroic worker’ Gulliver – proposals. But we do have the demoted from pride of place in union-wide basis. Would such her giant palm frond lying right to opt out if a significant downtown Budapest to the an arrangement enhance the steely still through the windows cultural problem presents itself suburbs in Statue Park fight against EU fraud?” he of the magnificent Academy of – and significant cultural questioned. Sciences building. problems can present “If the EPP is established, It remains to be seen what themselves in the legal area.” what will its functions be?” How the US sees us the Irish people will decide in asked the Deputy DPP. “The The EU Ambassador to the impending vote on the European public prosecutor? EPP will be ‘responsible for Washington, John Bruton, Lisbon Treaty. Will the result The Deputy Director of Public investigating, prosecuting and speaking on the future of signal a cataclysm in European Prosecutions, Barry Donoghue, bringing to judgment, where EU/US relations, addressed the politics, or will it be seen as a addressed the topic of ‘The appropriate in liaison with issue of American perceptions mere ripple, leading simply to European Public Prosecutor: Europol, the perpetrators of, of the EU and European the smoother running of the Will it Happen?’ Mr Donoghue and accomplices in, offences countries. “I think they regard 27-member union? pointed out that article 69E of against the union’s financial us with a mixture of admiration One thing you have to the treaty made specific interests’. In carrying out this and adoration,” said the admire about Ireland’s position, reference to a European public role, it shall exercise the ambassador. “They do admire whether it accepts or rejects the prosecutor (EPP). “As there is functions of prosecutor in the the fact that we have been able treaty, is the opportunity no European criminal code and courts of the member states.” to come together voluntarily – presented to her people to vote no European criminal court The idea of establishing the that the union has worked. on an issue that they care very before which such a prosecutor office of EPP remained a “They, however, feel that we deeply about – having a say in could lay a charge,” he said, controversial proposal, he Europeans are not fully shaping Europe’s future. No “the question arises as to what continued. “Having regard to prepared to take our military other European country can such a prosecutor would be the reaction of a number of share of the policing role in the make that boast – which makes expected to do and why it was member states to the Green world that they feel they are you wonder about where liberty felt necessary to signal in the Paper, one wonders whether being asked to bear. stands in the modern treaty the possibility of there would be unanimity at “But, of course, we say that if experiment that is the European establishing such an office.” European Council level about you want us to share the Union. G

www.lawsociety.ie 15 LAW SOCIETY GAZETTE MAY 2008 ANALYSIS

Delay and the right to an Two recent cases provide an insight into how the Supreme Court will examine the issue of prosecutorial delay, writes Elaine Dewhurst

n two recent cases, Devoy v prosecution had been delayed and the circumstances in the norm”, this would be an IDPP and McFarlane v DPP, to such an extent that it which the remedy of important factor to consider the Supreme Court was faced constituted a violation of their prohibition could be granted. in determining whether that with the challenge of balancing rights to an expeditious trial delay was excessive or the entitlement of the in the due course of the law Test under the Constitution inordinate. Evidence should community to have an accused under article 38.1 of the Article 38.1 of the Constitution be adduced to the court as to prosecuted for the offences of Constitution and article 6.1 of provides that no person shall the normal timeframe for a which he/she is suspected and the European Convention on be tried on any criminal charge particular proceeding to be the right of the accused to an Human Rights. In Devoy, the save in the due course of the taken. The court may also expeditious trial. The cases Supreme Court held that, law. This includes a right to take into account the type of provide a great insight into the while the delay did constitute a trial with reasonable exped- crime alleged against the manner in which the Supreme a breach of the applicant’s ition. accused. The delay that Court will examine the issue of rights under the Constitution The Supreme Court held might be tolerated for a prosecutorial delay and the and the convention, the that a court should consider relatively minor crime would factors that will be taken into applicant was not entitled to the following four conditions be considerably less than account in determining prohibition of the trial, taking in determining whether the that for a complex case. whether a trial should be into account all the applicant had suffered a b) Reason for the delay. First, prohibited where the right of circumstances of the case. In breach of their right to an the court should consider the accused to a fair and McFarlane, the applicant did expeditious trial: whether there was a expeditious trial has been not succeed in establishing a) Length of the delay. The deliberate attempt to delay breached. that the delay was a breach of length of the delay suffered on the part of the The applicants, Devoy and either his constitutional or by the applicant and a prosecution. If this is found, McFarlane, had faced lengthy convention rights. However, determination as to whether then this will weigh heavily delays in the prosecution of the Supreme Court did set this constitutes a breach of against the prosecution. the offences of which they down the test that would be the applicant’s rights will Secondly, the court should were accused. They sought followed in determining depend on all the examine the more neutral the prohibition of the criminal whether the right to an circumstances of the case. reasons for a delay, such as proceedings against them on expeditious trial had been Where the delay constitutes negligence or overcrowded the grounds that the breached in a particular case a “significant deviation from courtrooms. The court ONE TO WATCH: NEW LEGISLATION Income Tax (Relevant Contracts) regulations stem from a answerable for the carrying out of be made on the RCT 1 form. This (Amendment) Regulations 2008 commitment made by the social such operations by others, or to declaration is to be retained by (SI no 80 0f 2008) partners in Towards 2016 to furnish the contractor’s own the principal for a period of six strengthen the RCT system by labour or the labour of others in years, or a shorter period, as may Recent regulations on relevant putting in place new procedures the carrying out of such be prescribed in writing by the contracts tax (RCT) came into to help ensure that workers operations. Revenue Commissioners. force on 1 April 2008. These are correctly classified as The declaration must be regulations amend the Income employees or self-employed DECLARATIONS delivered to the Revenue Tax (Relevant Contracts) subcontractors. The principal and subcontractor to Commissioners within seven days Regulations 2000 (SI no 71 of A relevant contract is defined in a relevant contract must make a where: 2000) and govern the operation section 530(1) of the Taxes joint declaration to the Revenue • The relevant contract is the of RCT in respect of payments Consolidation Act 1997 as a Commissioners, prior to entering first such contract to be made by principal contractors to contract whereby a person (the into the contract, to the effect entered into by the principal subcontractors in the contractor) is liable to another that they are satisfied that the and the subcontractor with construction, meat processing person (the principal) to carry out contract is not a contract of each other, and forestry industries. The relevant operations, to be employment. The declaration is to • The PPS number or tax

16 www.lawsociety.ie ANALYSIS LAW SOCIETY GAZETTE MAY 2008 human rights watch expeditious trial should be aware that anxiety and concern of the extraordinary to prohibit the ultimate responsibility for accused and, most trial in such circumstances. this lies with the state. With importantly, limits the this in mind, the Supreme possibility of an impaired Test under the ECHR Court held that it would be defence. These are all The Supreme Court held that advisable to give the state important matters to be the rights under article 38.1 of agencies responsible the weighed up by the court in the Constitution and article opportunity to be heard, as making a determination as to 6.1 of the convention are issues such as the failure of a prejudice. indistinguishable. Article 6.1 court to sit or the absence of protects the right of the facilities may be amenable to Prohibition under the accused to a fair and public an explanation from the Constitution hearing within a reasonable responsible authority. The Supreme Court held that, time by an independent and Finally, the court should where the delay is inordinate impartial tribunal established consider other valid reasons and exceptional, prejudice will by law. A reasonableness test for the delay, for example, a be presumed and prohibition has been applied by the missing witness. will be granted. However, European Court of Human c) Role of the applicant. The where the delay is less than Rights in many cases and applicant should make sure excessive and where there is no provides useful guidance on that he/she asserts the right proof of actual prejudice, the Prosecutorial delay: Cyril was only the question of whether there to a speedy trial. Where an court will revert to a balancing 22 when he was first indicted for has been a breach of the right crimes against facial hair applicant makes such an exercise as to whether of an accused person to a trial assertion, this should be prohibition will be granted. within a reasonable time. The given strong evidential The court must weigh up the certain factors, including the court, in considering whether weight. entitlement of the community gravity and seriousness of the a particular delay is d) Prejudice. The court should at large to have the accused offence alleged, the delay itself, reasonable, should look at the take into account the prosecuted for the offences of and the role of the various complexity of the case, the interests protected by the which he is suspected, against parties in contributing to the conduct of the applicant, the right to an expeditious trial. the right of the accused to an delay. The Supreme Court also conduct of the relevant The right protects against expeditious trial. In making held that, where there was a authorities, and what is at oppressive pretrial this determination, the court is confession made by the stake for the applicant in the incarceration, reduces the entitled to take into account applicant, it would be case. At the end of this, a

reference number, the VAT EXCLUSIONS exclusion, which will be valid for a Revenue Commissioners at registered number, or the The principal and the period of up to three years from the www.revenue.ie. The Revenue employer registered number of subcontractor will not have to date of issue. Commissioners have also the subcontractor is not make a declaration where the A notice of exclusion will be produced a series of electronic entered on form RCT 1, subcontractor has been issued cancelled where false or misleading briefings on the matter, which are • The subcontractor is not with a notice of exclusion by the information is given to the Revenue available on their website: e-Brief registered for income tax or Revenue Commissioners. Commissioners or where the notice 16/2008 on the eligibility for corporation tax, is not A notice of exclusion will be is misused. Where a notice is exclusion from the new form RCT 1 registered for VAT, or is not issued to the subcontractor where cancelled, the Revenue Commis- process for subcontractors in the included in the register of the average annual sales of the sioners will notify the contractor in construction, meat-processing and principals maintained by the contractor arising from relevant writing and the contractor will be forestry sectors and e-Brief 17/ Revenue Commissioners, operations exceed €6.34 million in obliged to return the notice to the 2008 on the new regulations. G where the subcontractor the last three years. Exclusions can Revenue Commissioners. intends to subcontract some be applied for by using form RCT 1- More information on the new Elaine Dewhurst is the Law or all of the work to other E. If the contractor qualifies, it will RCT regulations as well as the new Society’s parliamentary and law subcontractors. be issued with a notice of RCT forms is available from the reform executive.

www.lawsociety.ie 17 New VAT on Property Regime

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determination can be made as law of the European Court of unfortunate, the court did determination effectively to whether there has been a Human Rights to suggest that provide that the rights under means that, if an applicant can breach of the applicant’s rights. a prosecution must be stopped article 6.1 of the convention show a breach of article 6.1, it where a breach is established. and article 38.1 of the will follow that a breach of Prohibition under the ECHR This was based on a reading of Constitution are article 38.1 can also be In deciding whether such a article 41 of the convention, indistinguishable. This established. The Supreme remedy was available, the which allows an applicant to Court also held that, in cases Supreme Court made a claim just satisfaction but does where a breach of article 38.1 distinction between the not entitle the applicant to LOOK IT UP is found, the remedy of remedies available under the relief not otherwise available to • B v DPP [1997] 3 IR 140 at prohibition would be available convention and those available him. 202 as long as the applicant can under the Constitution. While • Barker v Wingo [1972] 407 satisfy the balancing test laid the remedy of prohibition is Structured determination US 514 down by the court. While this available under the In these two cases, the • Barry v Director of Public test sets a high bar for the Constitution, the Supreme Supreme Court provides for a Prosecutions [2003] IESC 63 applicant, it does at least Court held that this was not very structured determination • Devoy v DPP [2008] IESC 13 provide an avenue through available where a breach of the of whether a breach of the • DPP v Arthurs [2000] 2 ILRM which the applicant can argue convention was established. A accused’s rights has occurred in 363 for a tangible method of determination that there has a case involving prosecutorial • DPP v Byrne [1994] 2 IR 236 enforcing his/her been a breach of article 6.1 of delay. While the determination • McFarlane v DPP [2008] constitutionally protected the convention will have no of the Supreme Court that IESC 7 rights. G effect on the decision as to there is no entitlement to • PM v DPP [2006] 3 IR172 whether a remedy of prohibition in cases where the • PM v Malone [2002] 2 IR 560 Elaine Dewhurst is the Law prohibition could be granted. applicant establishes a breach • SA v DPP [2007] IESC 43 Society’s parliamentary and law There is nothing in the case of article 6.1 of the ECHR is reform executive.

www.lawsociety.ie 19 LAW SOCIETY GAZETTE MAY 2008 COVER STORY A GAME OF

The courts are he role of the law in sport is increasing, as people become more conscious of their rights and as the role and profile of sport increases. often the only This applies both to professional and amateur sport. The courts have avenue available traditionally been slow to intervene in sports disputes, but will do so in certain circumstances. The position was summarised by McMahon J in to obtain T Barry and Rogers v Ginnity and Others when he pointed out: “The law will demand a satisfactory level of fair procedures which is sufficient in all the circumstances to ensure justice for the player or member affected by the decision. The more serious the resolution of a consequences, the higher the standard that will be required.” sports dispute, While the courts are often the only avenue available to obtain a satisfactory resolution of a sports dispute, they are not always the most appropriate forum but they are not for a number of reasons: always the most • Court procedures can be slow and inflexible, • Legal proceedings can be costly, appropriate • The publicity attendant on a court hearing is rarely beneficial for either the forum. Liam sports governing body or for the person or body challenging a disciplinary decision. Keane fists one over to the Of major concern to sporting bodies is the concept of the ‘ambush injunction’, where a player who has been the subject of a disciplinary sanction by a GAA’s Disputes governing body applies ex parte to the court for a temporary injunction to allow Resolution him/her to participate in an imminent sporting fixture. The legal test applied is the requirement to show that the party seeking such relief can establish a prima Authority facie case and that the balance of convenience favours the granting of an injunction (Campus Oil) – not a difficult hurdle to cross in the sporting context.

Jumpers for goalposts Internationally, many sports disputes are dealt with by the Court for Arbitration in Sport, to which some – though not all – international sporting bodies are affiliated. In some jurisdictions there is an equivalent local body, for example, the Sports Resolution Disputes Panel in Britain. There is currently no equivalent body in Ireland. In 2004, the then president of the GAA set up a Rule Book Task Force

OFF THE BALL The Disputes Resolution Authority of the association, are properly (DRA) comprises a secretary who qualified to resolve disputes relating to maintains a panel of arbitrators the rules of the association” (section available to sit on arbitration tribunals. 1.1 of the Disputes Resolution Code). The secretary and the arbitrators all At present, there are 65 arbitrators MAIN POINTS work in a voluntary capacity. There are in group 1 – of whom 37 are solicitors • Dispute resolution two sections to the panel – one – and 38 in group 2. It is most in sport comprised of qualified solicitors, heartening to witness the large • Sports arbitration barristers and arbitrators (group 1) number of solicitors prepared to give • GAA’s Disputes and a second (group 2) comprised of freely of their time and expertise to Resolution persons “who, by virtue of their assist in the provision of a Authority experience and expertise in the affairs professional sports arbitration system.

20 www.lawsociety.ie COVER STORY LAW SOCIETY GAZETTE MAY 2008 TWO HALVES?

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FUN RUN/WALK AT BLACKHALL PLACE FUN RUN/WALK www.calcuttarun.com COVER STORY LAW SOCIETY GAZETTE MAY 2008

(RBTF) to examine the association’s administrative (as distinct from playing) rules. As part of this review, the RBTF looked at the concept of sports arbitration as an alternative to the courts. After looking carefully at various models internationally and taking into account the particular nature and structure of the GAA, the RBTF proposed the establishment of the Disputes Resolution Authority (DRA) – a sports arbitration body to be created by, but independent of, the GAA. This proposal was ultimately adopted unanimously at the GAA congress in 2005. The basic principles underpinning the operation of the DRA are that it is fast, flexible, fair and final. This is reflected in the rules under which the DRA operates – the Disputes Resolution Code. The code is incorporated into the rules of the GAA (the Official Guide). The secretary can amend the code, though any such amendments must be approved by the Central Council of the GAA. Arbitration is conducted under the provisions of the Arbitration Acts. The Official Guide is the contract governing the relationship between GAA members, and rule 154 of that guide is its arbitration clause. try to ensure that at least one member of each tribunal “One observer has sat on a previous tribunal, to ensure a level of described [a Breaking balls consistency in procedure. This consistency in Where a member or unit of the association wishes to procedure is also helped by the presence of the DRA tribunal refer a matter to arbitration, it must submit a request secretary at each hearing. hearing] as for arbitration to the DRA secretary within seven Tribunal hearings are conducted with a reasonable days of the date of its last appeal under the rules of degree of formality, though much less so than at full being midway the GAA. This time limit is to ensure that disputes court proceedings. One observer described it as being between a are resolved with due expedition. In appropriate cases, midway between a raucous GAA county board the secretary has the power to extend time limits, but meeting and a solemn High Court hearing! All raucous GAA the practice has been to use this power sparingly. decisions are given in writing, though it is common county board Respondents to claims must deliver a reply within for tribunals to give an oral decision at the conclusion seven days, though again, in appropriate cases, this of the hearing, followed by a written reasoned meeting and a time limit can be reduced or extended. decision. Hearings are not open to the public, but all solemn High The secretary then appoints a tribunal from the decisions are published on the DRA website panel of arbitrators. Each tribunal contains at least (www.sportsdra.ie). This is done in the interest of Court one lawyer and one non-lawyer. This balance has openness and consistency. It also contributes to the hearing!” proved most useful in ensuring that all issues are fully development of a body of sports law jurisprudence. understood by the tribunals, even where cases are Despite the flexibility of the procedures and the presented by non-lawyers. The practice has been to speed at which tribunals can be assembled – often at a

JUST SPORT IRELAND Just Sport Ireland (JSI) was established as an independent organisation the way in which the Court of Arbitration for Sport/Tribunal Arbitral du to resolve sporting disputes by solicitor Deirdre McCarthy and barrister Sport (CAS/TAS) arbitrators are empowered to act. Ercus Stewart. The JSI panel of mediators and arbitrators comprises solicitors, JSI aims to ensure the independent and cost-effective resolution of barristers and arbitrators familiar with/and or experienced in some field sports disputes through the intermediaries of mediation and/or of sport. The Law Society of Ireland and the Bar Council are supporting arbitration so that the disruption of sports seasonal patterns by the involvement of qualified members who act as JSI arbitrators or as frequent High Court challenges will be reduced and, hopefully, advocates on a pro bono basis to represent indigent parties, be they eliminated. athletes or national governing bodies, who are without the resources to Arbitration proceedings are conducted in private and remain private afford legal representation, where legal representation is necessary. unless there is an issue in the proceedings that becomes the subject of Incidents of doping, employment disputes or industrial relations a reference to the courts. JSI panel members have the ability to act disputes of any nature are not subject to appeal or amenable to review quickly should the case in question require urgent resolution, similar to by JSI.

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COVER STORY LAW SOCIETY GAZETTE MAY 2008

day’s notice in urgent cases – there are occasions when an emergency application for interim relief is the only LOOK IT UP possible course of action. While these can be heard ex parte, the practice has been to conduct them in a Cases: manner akin to an interlocutory hearing. This is only • Barry and Rogers v Ginnity and others, possible with the cooperation of all parties to a unreported, Circuit Court, 13 April 2005 particular dispute. Where it is impossible to assemble • Campus Oil v Minister for Industry and a tribunal, the secretary can hear applications for Commerce, 1983 IR 82 interim relief pending a full hearing. • Mark Vaughan and others v Mícheál Ó Dubhshláine, DRA 1/2005 Take your point Has the DRA worked? Because the DRA provides a Legislation: forum that is considered to be more accessible than • Arbitration Acts the courts, a greater number of disputes have been referred to arbitration than would heretofore have Literature: been dealt with in the courts. The only requirements • Disputes Resolution Code, section 1.1 are the exhaustion of internal GAA remedies, the • Official Guide 2007, rule 154 completion of a claim form, and the submission of a • Sport and the Law (Dr N Cox and A Schuster, deposit of €1,000. In its first year of operation, the Firstlaw, Dublin, 2004) DRA was dealing with an average of one case per week. This frequency has now reduced. During 2006, the DRA dealt with 37 requests for arbitration, while forum where disputes can be satisfactorily finalised in the reduction in the number of cases continued a setting that is more appropriate than the courts. As through 2007, with 24 being dealt with in that year. hearings are conducted under the provisions of the To date this year, the average number of cases has Arbitration Acts, decisions can really only be set aside continued to fall, to about one per month. This means where arbitrators have misconducted themselves that, since 2005, the average number of cases dealt within the meaning of section 38 of the Arbitration Act with per month has fallen from five to one. For some, 1954. Despite having dealt with 99 cases since its the relatively large number of cases suggests that the inception, there has been no legal challenge to either existence of the DRA encourages litigation – but for the structure of the DRA or to any decision made by others, it suggests that there is now an independent a DRA tribunal. It is undoubtedly the case that some senior GAA administrators were dismayed to see certain decisions made by GAA committees set aside. Indeed, the very first case dealt with by the DRA, Mark Vaughan and others v Mícheál Ó Dubhshláine, involved a successful challenge to the interpretation of a rule in the GAA’s Official Guide (incidentally, this hearing took place at the Law Society building in Blackhall Place). However, most GAA members, including their senior officials, recognise that the price of a fair and independent sport arbitration system is that decisions made by respected and experienced officials may well be overturned. The real test of a system such as that operated by the DRA is its general acceptance and its efficacy. On both these counts, the DRA has been successful. Other sporting bodies are becoming aware of the benefits of sports arbitration. Some are, indeed, in the process of setting up a system similar to the DRA. The Federation of Irish Sports has recently established an arbitration system for its affiliates, called Just Sports Ireland (see panel). Ultimately, consideration might be given to the establishment of a national sports arbitration body to which sporting disputes arising from all sports could be referred. G

Liam Keane is partner in the Meath law firm Liam Keane & Partners, secretary of the DRA, and a member of the Law Society’s Arbitration and Mediation Committee.

www.lawsociety.ie 25 LAW SOCIETY GAZETTE MAY 2008 JUDICIAL CONDUCT ...lest ye be

In the second of two articles on judicial conduct, Brian Hunt examines the various proposals for reform that have been put forward by a range of committees – but which have never been implemented – and argues that there is a pressing need for immediate action

t is now de rigueur for policymakers to precede disciplining” body that would be “controlled by the any radical reform measures with the referral of judiciary” and thus be comprised of existing and the matter to an Oireachtas committee, a panel retired members of the judiciary and be headed up by of experts, or even external consultants. In the the Chief Justice. It was envisaged that that body Icase of introducing reforms in the area of judicial would be responsible for preparing a code of ethics. conduct, it’s very definitely a case of ‘been there, seen The matter was subsequently examined by the all- that, done that’. party Oireachtas Committee on the Constitution and This issue has been in the spotlight since 1996 – was reported on in its Fourth Progress Report on the and even long before that. When speaking on the Courts and the Judiciary, published in 1998. That Second Amendment of the Constitution Bill 1940, Senator report restated the need for improved procedures Douglas emphasised the absence of any detailed surrounding judicial conduct and recommended the mechanism on how the removal of a judge, pursuant establishment of a judicial council whose function to article 35.4.1, was to take place: “Machinery to deal would be to review judicial conduct and, to that end, with that is not in the Constitution, and I do not think it proposed a number of constitutional changes. The it is anywhere. It seems that, if in the future it should report also recommended the establishment of a be necessary for the minister to move for the removal committee to examine the report and prepare for its of a judge from office, there should be some specific implementation. That committee took the form of machinery by which a representative committee of the Committee on Judicial Conduct and Ethics, both houses would immediately be called and the chaired by then Chief Justice Ronan Keane and facts, or alleged facts, put before them. It would which reported in January 2001. obviously not be a party matter. Responsible members The Keane Committee found that the existing of the house would be able to give a considered procedures in place to deal with judicial misconduct judgment, and parliament would exercise its functions are inadequate. It proposed the establishment of a as between the executive and the judiciary.” judicial council, comprised solely of judges. It In 1980, when contributing to the second stage envisaged that the council would have a number of debate on the Courts Bill 1980, Deputy Keating spoke subcommittees, one of which would be a judicial at length on the need to make improvements on conduct and ethics committee that would receive article 35.4.1. He spoke about the measures in place in complaints about the conduct of judges and would Japan for dealing with the misconduct of judges and then send the more serious complaints to a panel of said: “There should be some way in which the public inquiry. can ventilate displeasure and disquiet at events in the court.” First steps In more recent times, the terms of article 35.4.1 The first piece of concrete action emerged in the MAIN POINTS were the subject of detailed consideration by the form of the 22nd Amendment of the Constitution Bill • Past and current Constitution Review Group. In giving its prognosis of 2001, which would have formed the basis of a efforts at reform the article in 1996, the group stated that “the present referendum. The bill proposed the insertion of a new • Oireachtas impeachment procedures are unsatisfactory” and went article 35.4 of the Constitution, which would provide committees, on to recommend that a process similar to the article that a body (comprised of judges and laypeople) could working groups 12.10 impeachment process relating to the President be established to investigate the misbehaviour or and consultants should also be provided in respect of the judiciary. incapacity of judges. The new provision would also • Need for a more have given effect to the Report of the Constitution elaborate Ethics: not a place near Sussex Review Group by spelling out how a charge of “stated mechanism for The question of judicial conduct and ethics was the misbehaviour or incapacity” was to be pursued dealing with the subject of scrutiny by the Working Group on a through the provision of a process similar to the conduct of judges Courts Commission, whose 1998 Sixth Report article 12.10 presidential impeachment process. advocated the establishment of a non-statutory “self- The opposition parties strenuously opposed the

26 www.lawsociety.ie JUDICIAL CONDUCT LAW SOCIETY GAZETTE MAY 2008 judged in turn

bill, and that opposition was given as the reason for amendments to the Courts and Court Officers Bill the government’s subsequent abandonment of its 2001, which, if accepted, would have required proposal to put the bill to the people. Informing the members of the judiciary to abide by a code of house of the withdrawal of the bill, the taoiseach conduct. Deputy Howlin was prevented from stated: “The government considered that a tabling additional amendments that sought the fundamental proposal touching on the separation of establishment of a judicial ethics tribunal to inquire powers between the respective organs of into complaints about alleged misconduct by judges. government in the state should not be proceeded with in a situation in which there is such Current efforts fundamental disagreement as was seen in this House Successive programmes for government and on Tuesday night.” numerous legislative programmes have promised The issue of reform was raised again in 2002, and signalled the imminence of legislation in the when Deputy Brendan Howlin tabled a number of area of judicial conduct. However, ever since the

www.lawsociety.ie 27

JUDICIAL CONDUCT LAW SOCIETY GAZETTE MAY 2008

abandonment of the 22nd Amendment of the Constitution Bill 2001, no new legislation in this LOOK IT UP area has been initiated. In 2006, the minister for Cases: justice circulated a draft of the Judicial Council Bill. • Curtin v Clerk of Dáil Éireann [2006] 2 ILRM 99 It provided for the establishment of a judicial council that would feature lay participation, a code Legislation: of ethics for judges, and a mechanism for the • 22nd Amendment of the Constitution Bill 2001 investigation of complaints of judicial misconduct. • Bunreacht na hÉireann In view of the persistent absence of the • Courts and Court Officers Bill 2001 necessary reform measures, in 2007 the Irish • Courts Bill 1980 Council for Civil Liberties published its own • Judicial Council Bill 2006 report on the matter, Justice Matters: Independence, • Second Amendment of the Constitution Bill Accountability and the Irish Judiciary. The report 1940 was prepared following a process of engagement with members of the judiciary and it Literature: recommended the establishment of a judicial • Committee on Judicial Conduct and Ethics, council and ethics committee, as already advocated Report of the Committee on Judicial Conduct in the Report of the Committee on Judicial Conduct and Ethics (2001) and Ethics. • Constitution Review Group, Report of the In March 2007, it was reported that the Constitution Review Group (1996) government’s plans to introduce a code of conduct • Irish Council for Civil Liberties, Justice Matters: for judges were to be deferred until after the Independence, Accountability and the Irish general election. One of the reasons given for the Judiciary (2007) deferral was, in part, due to a delay in the judiciary • Oireachtas Committee on the Constitution, making a formal submission on the process. In an Fourth Progress Report on the Courts and the interview in The Irish Times on 28 December 2007, Judiciary (1998) Justice Minister Brian Lenihan revealed that he • Working Group on a Courts Commission, Sixth was still awaiting a submission from the Chief Report of the Working Group on a Courts Justice, and the minister informed the Dáil on 31 Commission (1998) January 2008 that he had still not received a final • www.justice.ie/en/JELR/Pages/Civil_law_ response to his department’s proposals from the reform_proposed_legislation Chief Justice. According to the Department of Justice website (as of 15 April 2008): “Work is proceeding on the development of a Judicial necessary. We can only console ourselves with the Council Bill. The intention is that the bill will thought that, should the reforms be preceded by establish a judicial council representative of the yet another controversy, the Supreme Court in judiciary of all the courts. The council will have Curtin v Clerk of Dáil Éireann very helpfully shone functions relating to judicial ethics and judicial a light into the dark and untouched corner that is information.” article 35.4.1. The need to introduce reforms that will provide Astonishing inaction a mechanism for the investigation and handling of By virtue of the sparse nature of article 35.4.1, it incidents of judicial misconduct is not urgent in the is clear that the framers of the Constitution sense that judicial misconduct is problematic or intended that the legislature would, after the commonplace in the day-to-day workings of our coming into force of the Constitution, devise a courts – it goes without saying that our judiciary is statutory mechanism along with parliamentary honourable, fair-minded and courteous. However, procedures under which the stated misbehaviour the need to introduce reforms in this area is urgent or incapacity of a judge could be investigated and in the sense that it is in the interests of the public, adjudicated upon. The fact that we have lawyers and even the judiciary itself that a fair, experienced a number of controversial and serious efficient, transparent and manageable code of incidents of judicial misconduct in recent years, conduct and disciplinary mechanism is put in place followed only by inaction in terms of reform, is for dealing with those incidents that do occur. The astonishing. price for not doing so is a very high one, as was A number of controversies later, five expert demonstrated by the failure, through no fault of its reports and 12 years after the Constitution Review own, of the Oireachtas committee to conclude its Group identified the pressing need for the work on the conduct of Brian Curtin in a timely provision of a more elaborate mechanism for and efficient manner. G dealing with the conduct of judges, we seem no closer than ever to seeing the implementation of Dr Brian Hunt is the head of public affairs at Mason the constitutional and legislative reforms Hayes & Curran.

www.lawsociety.ie 29 LAW SOCIETY GAZETTE MAY 2008 MEDIATION MEDIATION Ms Justice Maureen Harding Clark recently urged Pat Kenny and his neighbours to consider mediation as a means of resolving their property dispute. Caroline Murphy looks at the advantages of mediation in dealing with contentious litigation

s a solicitor working in an adversarial that we were ‘reserving our judgment’ until the and litigious environment for almost course was completed. Nothing had prepared me, 14 years, I began to wonder whether however, for the change that followed my training there really was a better way. Rising and subsequent qualification as a mediator, insofar A legal costs, delays in court timetables, as I recognised the potential held by mediation to complexities in PIAB/personal injury claims, and the bring back satisfaction into a process that, up to inflexibility and formality surrounding litigation is now, has caused so much dissatisfaction – and to often reason enough for clients to be left with some bring back that elusive ‘feel-good’ factor to the residual dissatisfaction as to the process itself. Not solicitor/client relationship. surprisingly, they often blame their lawyers for this. Undoubtedly there are other factors at play. The What is mediation? historic lack of any really viable alternative to It is a voluntary and non-binding ‘without litigation, and a legal system over which the solicitor prejudice’ process, in which a specially trained has no control, play a role. Delays in court independent person – the mediator – attempts to timetables due to overworked and under-resourced bring parties in dispute to a mutually acceptable court staff are also factors. and binding written agreement regarding the issues Perhaps, however, though difficult to admit, we in dispute, which can be enforced like a contract. have to recognise that this dissatisfaction could also All of the information revealed in a mediation is be fed by our own traditional prejudices and fears as entirely confidential and ‘without prejudice’ and, if solicitors. We therefore stick with what we know no settlement is reached, the parties can still and trust – regardless. Although clients look to us as exercise their legal rights. the experts to give them all the options, is it possible, just maybe, that we are in fact partially Why do we need to know about it? responsible for our own fate? The March Gazette (p21) reported on the first The ‘feel-good’ factor that we desperately crave medical negligence case to be referred to mediation for our profession rarely exists in the process of by Mr Justice Kevin Feeney, under section 15 of the dispute resolution and is a challenge for even the Civil Liability and Courts Act 2004. Where one judge best and most committed of solicitors. While some has gone, others are likely to follow. clients are often delighted with the excellent service Part 6 of the Commercial Court Rules provides for and advice provided, this sentiment is, more often mediations in the Commercial Court, and Mr Justice than not, influenced by a favourable outcome – but Peter Kelly has indicated a desire to see claims go to for every ‘winning’ client there is, in turn, a ‘losing’ mediation if it can assist in reaching a settlement client, who may not share those happy sentiments. without the need for a full trial. He has also indicated The penalty of significant legal costs being borne by a willingness to apply costs against the party who the losing client plays no small part in their unreasonably refuses to consent to the process of response, especially after, perhaps, several years of mediation. A similar power exists under section 16(3) litigation. of the 2004 act in a personal injuries case.

A rose by any other name Why consider mediation? When an opportunity arose for me to study and • It is estimated that 95% of litigated cases settle qualify as a mediator, I approached the subject with prior to trial, with a portion of the value of the interest, though not without a certain level of settlement being incurred for legal costs, scepticism (which, as it happens, was initially shared • Consumers are demanding more creative and by a lot of my colleagues on my training course – efficient ways to resolve disputes, many of whom were solicitors also). Let’s just say • More business leaders, particularly those with an

30 www.lawsociety.ie MEDIATION LAW SOCIETY GAZETTE MAY 2008 MEDITATION

Mediation evangelists: coming to a town near you international presence, want to resolve disputes the complexity of the issues and the number of without the publicity of litigation, parties involved. • Mediation has proved hugely successful in the US • Bear in mind that a minor or a person with a and Britain to date – in the US, litigation rates disability cannot enter a mediation session for are at a 40-year low, and obvious legal reasons. The next friend could act, • Almost 80% of disputes that go to mediation are however, but would need formal legal advice in successful. order for the settlement to be ruled, so there will be a certain amount of legal costs involved. What’s involved? • The mediation takes place over the course of a Why is it different from litigation? day, at a suitable (neutral) venue, where both • It is the parties who arrive at the solution – not parties have their own separate meeting rooms, the mediator, who does not ‘sell’ any particular and one joint meeting room. solution, unlike a judge or an arbitrator, • The mediator, who is suitably competent to deal • Because the process is not ‘legal’, the mediator is with the subject matter of the dispute, is jointly not adjudicating on the rights or wrongs of the chosen by the parties. He or she hears both dispute, and any solution – as long as the parties parties give their account of the dispute and – are happy to accept it – can be used, through the application of a variety of different • While litigation limits the remedies that can be techniques and private meetings with the parties – claimed to purely legal ones, such as damages or a attempts to facilitate them in arriving at a court order, mediation, on the other hand, can solution to the dispute. deal with ‘non-legal’ remedies also, such as • The solicitors will then draft the written preserving a commercial relationship or settlement agreement. negotiating a new one, • The mediator’s costs are set relative to the • The process takes place behind closed doors: estimated time it will take to resolve the dispute, unlike a traditional court case, where ‘evidence’ is

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Garrett Sheehan & Partners, Solicitors in association with Keith Borer Consultants, Forensic Scientists PRESENT FORENSIC SCIENCE IN CRIMINAL TRIALS

Date: Thursday 5th June 2008 5.30pm to 7.30pm Venue: Education Centre, Law Society, Blackhall Place, Dublin 7 Presenters: Robert Eagar, Garrett Sheehan & Partners: Forensic Science and Irish Trials Samantha Raincock, Keith Borer Consultants: Telecommunications (Cell Site Analysis) & Limitations Helen Davey, Keith Borer Consultants: DNA Profiling and Current Issues CPD Hours: 2 Fee: No admission fee Contact: [email protected] www.keithborer.co.uk MEDIATION LAW SOCIETY GAZETTE MAY 2008

given and then goes ‘on the record’ – and is sometimes reported in the media (as we have seen HOW DOES MEDIATION DELIVER in the Charlton v Kenny case) – any information provided during mediation remains confidential CLIENT ADDED VALUE? and no transcript is recorded. • It can be set up very quickly, thereby allowing a much speedier form of dispute resolution, which keeps legal costs, management time costs and resources Turkeys voting for Christmas? focused. Well maybe not. Here’s the good bit – if you speak • If the claim is settled quickly, those resources can be freed up more quickly and to any experienced mediator, any mediation body, or applied elsewhere, allowing the client to get back to running the business more any client who has been through the mediation swiftly. process, all will tell you that the solicitor’s role is • As it allows parties to come together in a non-threatening, non-legal environment, vital, insofar as he/she guides the client through the mediation avoids the stress, cost and delay involved in traditional litigation. process, explains the implications of any decisions • It allows for a more flexible type of settlement, which might better meet the reached at a mediation, finalises the terms of any business needs of the commercial client and the personal needs of the claimant. settlement, and draws up the written settlement It can often be the quickest and most cost-effective method of putting an income- agreement. generating relationship back on track. Mediation could, if supported, significantly free • It offers a discreet and confidential means by which to resolve sensitive disputes. up the judiciary’s time, help clear backlogs and long • The costs can be set and agreed in advance, giving better financial certainty to waiting lists, and enable the courts to deal with clients. priority cases. It could also free up a solicitor’s time, allowing him or her to deal with other clients, or simply go out and find new ones! mediation instead of litigation, therefore, could well exceed client expectations. A bird in the hand Similarly, many people who have suffered a There is no reason why mediation cannot be personal injury, and even those who are being sued mutually advantageous. I also believe that it’s time in connection with it, often don’t want to go to for a fresh approach to dispute resolution. We are court – they just want their compensation or, if experiencing a changing economy, globalisation is liable, want to pay that compensation as quickly and creeping in, and clients are demanding more for cheaply as possible. less. Most do not want to go to court and deal with By promoting mediation as a viable alternative to all that this involves. It is time to constructively litigation, the solicitor can deliver on many client address this fear, however, and remember that we objectives. His or her role in facilitating a successful are in the service of our clients. outcome becomes vital, if not essential. Bringing When it comes to commercial clients, about client satisfaction without compromising fee understanding their underlying needs and what drives income should surely amount to that elusive ‘win- their business is paramount in maintaining a profitable win’ situation. It could, in fact, increase income, solicitor/client relationship. This is especially so if, because as we all know, a satisfied client is a repeat through the delivery of practical, commercially client. G focused and client-specific advice, the solicitor can help to continue to drive that business forward. The Caroline Murphy is a solicitor specialising in civil requirement to reduce the overhead of legal costs, and litigation. Previously a partner in private practice, she is the need to stay out of court for certain disputes (not currently the principal of Dawson Solicitors, an accredited all!) is often paramount to commercial clients and to mediator and member of the Mediators’ Institute of preserving corporate reputation. A successful Ireland).

www.lawsociety.ie 33 LAW SOCIETY GAZETTE MAY 2008 CRIMINAL LAW Oracle of

In October 2007, the government brought forward the Criminal Justice (Forensic Evidence) Bill 2007 – suggesting that the establishment of a DNA database is on the cards. Patrick McGonagle uses his spectrometer to analyse the bill’s strengths and weaknesses

here can hardly have been a development (general scheme). As we go to press, the proposals are in the area of criminal forensic at outline stage and the bill is yet to be brought in its investigation that has quite captured the final form before the Dáil. However, the bill would public imagination like the advent of seem to be destined to become law with some T DNA profiling. High-profile cases, variations, and it is timely at this stage to consider whether at home or abroad, that resort to the use of some of the significant changes for suspects and the DNA evidence are seized upon by media novel ideas that could follow in its wake. commentators and members of the general public – almost to the exclusion of any other evidence in such The right profile cases. Just as the Victorians hailed the advent of As envisaged, the legislation would repeal our current fingerprinting as the dawn of a new and better crime- Forensic Evidence Act 1990 and provide for the setting free world, now similar claims are being made in up of a national DNA database. The database would some quarters on behalf of DNA sampling. store profiles derived from samples – rather than the Of one thing there can be no doubt: the persuasive samples themselves – and would have two functions: value of DNA evidence taken from a crime scene – if 1) An identification division that would consist of its integrity has been impeccably preserved – is very profiles for use in identifying missing and high indeed, as very ably demonstrated by John unidentified persons, and Dolan in the October 2007 issue of the Gazette. 2) A criminal investigation division. The various branches of law enforcement in the MAIN POINTS country seem equally uniformly enthusiastic for the The database would consist, firstly, of profiles taken • Provision for the use of DNA evidence in criminal trials. This from samples from suspects and convicted people establishment of enthusiasm is reflected in a new bill currently being and, secondly, what are called ‘evidential samples’. a national DNA promulgated by the Department of Justice and soon This article is concerned with the criminal database to go before the Dáil. investigation aspects of the database and lays aside • Criminal As far back as February 2003, the former attorney discussion of the identification division. investigation general, Rory Brady SC, charged the Law Reform The bill proposes, at head 8, that samples may be aspects of the Commission with the task of reporting on the taken from suspects in custody, and indeed from DNA database establishment of a national DNA database and to convicted people serving prison sentences, and those • ‘Reasonable consider the “constitutional and human rights issues on the sex offenders’ register. These will be used to force’ and the that may arise”. The commission subsequently supply a DNA profile for retention on the DNA taking of samples reported in 2005, recommending the establishment of database. These samples are investigatory in their • Investigatory and such a national database, a framework for the taking nature and can be used for comparison with samples evidential of samples, and administration of the database. taken from the particular crime scene under samples In October 2007, the government brought forward investigation or from other crime scenes if, for the Criminal Justice (Forensic Evidence) Bill 2007 example, it is believed the suspect in another matter

34 www.lawsociety.ie CRIMINAL LAW LAW SOCIETY GAZETTE MAY 2008

‘REASONABLE FORCE’

Very significantly, it is intended to empower the gardaí to use reasonable force to take a sample. Couple this with the fact that the suspect’s consent truth? will not be required for non-intimate samples, and that a sample may be taken from a citizen against his or her will and by use of force, and it will be understood why closer analysis is merited. Under the Forensic Evidence Act 1990, there was no specific power to use reasonable force bestowed upon the Garda Síochána. During the life of the act, the view came to be formed that such power was implicit. This view was recognised by the Law Reform Commission in its report on the establishment of a DNA database and commented upon. The commission’s view was that, if there were to be such a power of using reasonable force in the taking of samples, it should be explicit and its parameters should be set out. The powers proposed in the current heads of bill under head 8D would appear to be an attempted response to this concern.

or an already convicted prisoner, might have been involved in another crime scene.

Police on my back Of equal significance under this head is that a sample taken from a suspect could not be treated as evidence unless it were taken in connection with the specific offence for which the person had been detained. However, the bill goes further and proposes a framework whereby such a sample could become evidence in a prosecution. The sample that is intended to be used as evidence in a case is given separate treatment in the bill. The gardaí are empowered, at head 14, to require the taking of an evidential sample. That sample taken in the correct statutory circumstances, can be used in a subsequent trial as evidence, and presented to a jury as such. What is of particular interest here is what happens if a suspect in a particular case who gave an investigatory sample refuses to give a further evidential sample. In that situation, the bill allows, at head 8G, for the prosecution to apply for leave of court to use the investigatory sample as an evidential sample, and to rely on it as evidence in the prosecution of any particular offence.

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What this means, then, as the bill currently stands, can be transformed into an evidential sample if certain is that a suspect in custody could have a sample taken circumstances are triggered. As currently proposed, a from him without his consent, with the application of person from whom a sample has been taken, whether force – and the profile extracted from that sample, if he was a volunteer or part of a mass screening, who relevant, could be used as evidence to convict him. then fails or refuses to give a second sample for the Significant fines and terms of imprisonment are purposes of providing an evidential sample admissible envisaged for those who refuse to cooperate (€5,000, in court, can have their original sample entered in and three years respectively). evidence as part of a prosecution, once leave has been How this proposed situation squares with what granted by the court. remains of the rule against self-incrimination in this The significance of this from a citizen’s point of jurisdiction is open to comment. The view that the view is obviously quite worrying. From a criminal power to use reasonable force was implicit under the investigation standpoint, the cooperation of volunteers 1990 act was always open to question, given the rule on an individual basis and in relation to mass that criminal statutes should be strictly construed. screening demands faith in the process. A clear The commission, in its comments on the subject, understanding of its significance must be a merely accepted the existence of the implicit power prerequisite for the citizen. and, “considered” that the powers should be explicitly prescribed but, in terms of recommendations, Complete control confined itself to recommending “implementation of Absent from the bill at the moment is an appropriate safeguards to ensure that the power to use reasonable statutory warning to be given to any participant, to the force is not arbitrarily exercised” (see LRC report, “As the bill effect that the sample that he is about to provide could The Establishment of a DNA Database). – should he fail to cooperate further if required – be The widely adopted view that the proposed bill will currently used as evidence in a potential prosecution against simply be recognising a de facto situation in making stands, a him. In the absence of such a statutory admonition, explicit the power to use excessive force will, no the courts, no doubt, will feel constrained to agree doubt, inevitably short-circuit debate on the issue – a suspect in with the first defendant who argues that he was not regrettable situation in my view. custody could warned of the consequences of his failure to give the sample, and that the evidence was illegally obtained. I fought the law have a sample Given the general consensus in the Department of The other main area of concern is the taking of taken from Justice, the Garda Siochána, and other arms of the samples from people not in custody, such as criminal prosecution process on the desirability of volunteers and those taking part in a wider mass him without setting up and maintaining a database, its screening. Where a person volunteers to give a his consent, establishment would appear to be a foregone sample, that sample may be analysed both for the conclusion. Powers of the type outlined above (in purposes of general criminal investigations or in with the some shape or form) are likely to become the law of connection with a particular offence (or to assist in application of this country within the next 12 months. the identification of a missing person or unidentified Confidence in the integrity of the database, and in person). Mass screening is only to be undertaken as force – and the investigative procedure in the taking of samples, is part of an investigation for a particular offence under the profile of fundamental importance for the proposal to have the bill. However, unhelpfully, the bill as currently credibility. Public fascination with the science of DNA drafted does not say whether a sample taken under a extracted from and its reputation as an oracle of guilt or truth is mass screening for a particular offence can be then that sample, if almost symmetrically balanced in the public mind by used for the investigation of other offences. Orwellian fears of the misuses of personal information A volunteered sample will not be capable in the relevant, could on its innocent citizens by the state. first instance of being presented as evidence in a be used as The proposed use of physical force requires close criminal prosecution. However, a volunteered sample examination. At a minimum, the commission’s evidence to recommendations that the safeguards should be convict him” similar to those “suggested by the Irish Human Rights LOOK IT UP Commission”, and should be explicitly used “only Legislation: where it is strictly necessary to the extent required by • Criminal Justice (Forensic Evidence) Bill 2007 the performance of the garda duty”, should be (general scheme) immediately addressed by the draftsman. • Forensic Evidence Act 1990 We might all spare a thought for colleagues who have to advise in relation to the above proposal when Literature: enacted. For solicitors attending upon clients in • ‘DNA under the microscope’, by John Dolan, garda stations, life is about to become significantly Law Society Gazette, October 2007, p24ff more interesting. G • Law Reform Commission, The Establishment of a DNA Database (LRC 78-2005) Pat McGonagle is a partner in the Dublin law firm McGonagle.

www.lawsociety.ie 37 LAW SOCIETY GAZETTE MAY 2008 EMPLOYMENT LAW

When is overtime not really overtime, and when do you get paid for it? Using a couple of examples, Michael Prendergast assesses whether overtime is an outmoded concept or a phoenix rising from the ashes

recently encountered Monika and Lasma. such qualifying activities, section 43 of the act MAIN POINTS Monika was employed as a cleaning/kitchen stipulates that overtime should be remunerated at a • Irish law on assistant in a nursing home, worked on rate 25% above the standard rate. The act is silent overtime and average 42 hours per week, and was not paid on overtime rates for activities not covered under European norms above the standard rate of €9 per hour for any section 3. • Employment I overtime worked. No specific mention of overtime The Industrial Relations Act 1946, while not contracts was made in her contract of employment; however, specifically addressing overtime, introduced the • US trends the contract did state that she would be required to concepts of JLCs (joint labour committees), which work approximately 36 hours per week or such other are independent bodies made up of equal numbers hours/days as directed by management. of employers’ and workers’ representatives, Similarly, Lasma was employed in an industrial appointed by the Labour Court and chaired by the launderette where she was, as per her contract of Minister for Enterprise, Trade and Employment. employment, required to work 39 hours per week Currently, there are 19 JLCs covering bottling, and any overtime as requested by management. She, agriculture, catering, cleaning, hairdressing, hotels, like Monika, was again paid €9 per hour for all groceries, clothing, millers, law clerks, security and hours worked, regardless of what days of the week contract cleaning. Agreements on pay and she worked or what hours she worked. conditions made by the JLCs are known as These two scenarios contrast starkly with the employment regulation orders (EROs), and there evolving growth of overtime litigation in the US, as are18 such agreements currently in place. highlighted by Michael Orey in the September 2007 The 1946 act, under section 25, also introduced issue of Business Week. The article detailed recent class the concept of REAs (registered employment actions that disgruntled workers and professionals are agreements) where “the remuneration and taking against stockbroking, trucking and IT conditions of employment of workers of any class” companies, claiming overtime – notwithstanding the can be agreed between trade unions and employers fact that there was no requirement for overtime in and registered with the Register of Employment their contracts of employment. These class actions Agreements. There are currently 45 such have resulted in settlements, with employers paying agreements, covering drapery, footwear and allied out more than $1 billion in compensation. trades, construction, printing and electrical contracting. Irish status quo EROs and REAs can essentially therefore be In Ireland, legislation on overtime is fragmented, described as industry-specific collective agreements disconnected and not all-inclusive, consisting of acts that bind all employers and employees within a and statutory instruments dating back to the 1930s. specific sector but, unfortunately, it is not all- WORK, REST The main acts of the Oireachtas dealing with inclusive, and stockbrokers, truckers, Lasma, Monika overtime are the Conditions of Employment Act 1936 and many other workers are not covered by such and the Industrial Relations Act 1946; however, agreements. qualifications apply to both acts. The Employment Act applies only to activities outlined in section 3 of European status quo the act, such as manufacturing, construction, This contrasts greatly with the European norm, quarrying, shipbuilding, printing, public utilities, where legislation directly intervenes to define animal slaughtering and industrial cleaning. For overtime and set overtime rates. In 1919, the ILO

38 www.lawsociety.ie EMPLOYMENT LAW LAW SOCIETY GAZETTE MAY 2008

Factory girls, beavering away AND PLAY with their tools Hours of Work Convention (No 1) introduced the conflict with the directive. This brings into question standard maximum working week as 48 hours, and whether the 25% overtime premium, also this was adopted across Europe with the 1993 mentioned in section 43(3) of the act, is any longer Directive 93/104/EC. This 48-hour week is applicable. inclusive of overtime. It is interesting to note that, To do a normative comparison between various in this regard, the 1936 Conditions of Employment Act countries, a threshold is set above which overtime defined “weekly overtime” as hours worked after a must be paid. This threshold is normally below the worker had completed 48 hours, and was thus in maximum 48 hours. The hourly thresholds above

www.lawsociety.ie 39

EMPLOYMENT LAW LAW SOCIETY GAZETTE MAY 2008

which overtime is paid are set by legislation and are as follows: Austria (40), Belgium (38), Hungary (40), EMPLOYMENT Finland (40), France (35), Greece (40), Italy (40), Luxemburg (40), Norway (40), Poland (40), CONTRACTS Portugal (44), Spain (40), Slovakia (40), and Sweden One cannot broach the subject of overtime without (40). In Ireland, Britain, Denmark, the Netherlands encountering the contract of employment, which an and Germany, the thresholds are determined by employer is now mandated to give to an employee collective or sector agreements, and in both within two months of his or her start date. Section Germany and the Netherlands, they must be ratified 3(i) of the Terms of Employment (Information) Act by works councils. Denmark has a 37-hour 1994 states that, in the terms of employment, the threshold determined by an industry sector employer must outline “any terms and conditions agreement, and no common national sub-48-hour related to hours of work (including overtime)”. No threshold exists in either Ireland or Britain, above further mention of overtime was made within the which overtime must be paid. 1994 act, thus creating the lacuna of the definition Furthermore, it is common practice that overtime of overtime. Under the act, it was not necessary for pay rates are also subject to legislation in countries overtime to be included in the contract, nor was it “In Ireland, our where overtime thresholds are legislated for. In necessary to define overtime, with the result that Portugal, overtime pay is at the rate of +50% for the the default definition is that as laid down in the labour laws are first hour and +75% thereafter. For rest days and 1936 act (that is, hours above 48 hours per week). founded on a holidays, the rate is +100% above normal rates, plus This lacuna was somewhat filled following the Lange time in lieu at 25% of the hours worked. In Greece, v Schunemann decision, which directed that an vintage 1930s the rate is +50% for the 40th to 43rd hour and +150% employer must inform an employee in writing if there mindset, and thereafter, while in Italy, the legislated rate is +10%. is a requirement on him or her to work overtime. The directive, however, fell short on a requirement to they have not Trends stipulate the terms and conditions associated with been updated As noted earlier, there is growing litigation in the such overtime, and today all that is required in a US over overtime, primarily due to the evolution of contract of employment is for the employee to be or reviewed to the workplace from an industrial/manufacturing, informed of a requirement for overtime. cater for the blue-collar environment to a services, white-collar one. Technology and economics are blurring this technological distinction, with always-on technology redefining In Ireland, like the US, our labour laws are advances that when the working day begins and ends, and the founded on a vintage 1930s mindset, and they have inadequacies in the federal Fair Labor Standard Act not been updated or reviewed to cater for the have since of 1938 are beginning to appear. Mark Thierman, a technological advances that have since occurred or occurred or the US specialist in labour law, has highlighted two the subsequent changes in work practices that have circumventions of the act: (a) the misclassification of resulted. Subsequently, the overtime penumbra has subsequent employees and (b) the off-the-clock work that is not become less clear, with workers working longer changes in compensated for. Thierman contends that when hours, while not necessarily being compensated as employees of Starbuck’s are called store managers, the legislation had intended. work practices or when employees check emails and the like Interestingly, a recent Labour Court decision that have remotely or telecommute, they are still eligible for (LRC18673) reinforced this US litigation trend when overtime. Settlement in these areas alone have cost it mandated that academic staff of the National resulted” Siebel Systems $27.5m, IBM $65m, Wal-Mart College of Art and Design are entitled to Saturday $72.5m, Merrill Lynch $37m and Morgan Stanley overtime, notwithstanding that they were not party $42.5m. to any labour agreement. Irish legislation in the area of overtime is fragmented and not all-inclusive, leaving employees LOOK IT UP open to working 48 hours per week without any Cases: additional premium compensation for the first nine • Case C-350/99, Lange v Schunemann hours of ‘overtime’ above the standard 39-hour week. In addition, misclassification of work and off-the-clock Legislation: overtime can allow for the circumvention of the • Conditions of Employment Act 1936 requirement to pay overtime. However, it would • Directive 93/104/EC appear that some employees are becoming enlightened • Fair Labor Standard Act 1938 (USA) to these circumventions. How they choose to address • Industrial Relations Act 1946 it – through the industrial relations processes or • International Labour Organisation Hours of Work through litigation – remains to be seen. G Convention (No 1) • Terms of Employment (Information) Act 1994 Michael Prendergast is a practising barrister on the Western Circuit.

www.lawsociety.ie 41 LAW SOCIETY GAZETTE MAY 2008 PENSIONS LAW End of the

AGEThere are two ways to look at well-funded retirement: the end of employment income or the start of a pension. Jo Kenny and Philip Smith consider the interaction between the employment and pension law definitions of retirement

ast month’s article on age discrimination, ambiguity by reference to the custom and practice ‘No Country for Old Men’, concluded, applicable to the group of employees in question. following the ECJ’s Palacios judgment, that a So what does ‘retirement age’ really mean? In the member state’s competence to impose a employment approach, ‘contractual retirement age’ L mandatory retirement age is subject to an means the date an employer can force an employee EU yardstick of objective justification – and that the to retire and the date the employee can elect to exemption in the Employment Equality Act 1998 for the retire without seeking anyone’s consent. ‘Normal setting of retirement ages is open to challenge. In the retirement age’ may, in practice, be another date on best Hollywood tradition, the author provided a which an employee has an expectation (from custom cliffhanger ending in raising the question of or practice) of retiring. occupational pension schemes. In the pension approach, ‘contractual retirement There are two ways to look at well-funded retire- age’ has no significance for the rights under a pension ment – as either the end of employment income or the scheme. ‘Normal retirement age’ means the date start of a pension. There is a continuing debate as to specified in a scheme for the purposes of Revenue where employment law ends and pension law starts. limits, Pensions Act preservation, and benefit You might think ‘retirement age’ was an obvious calculations. This is the date at which members will term but, as with mortality statistics, the difficulty lies retire provided they haven’t already left service (or in moving from the general to the individual. Ideally, been permitted to retire late). ‘Normal pensionable MAIN POINTS the employment ‘contractual retirement age’ and age’ is a Pensions Act definition for preservation and • Definitions of pension scheme ‘normal retirement age’ would be one funding standard purposes. It means the normal retirement and the same. Often, the employment and pension retirement age under the scheme unless a member • Contractual documentation do not agree. This can create can receive benefits before then without obtaining retirement age difficulties if a member wishes or is forced to leave employer/trustee consent, in which case such earlier has no impact on service in line with the contract, but before the date is treated as the normal retirement age. benefits under pension scheme normal retirement age, as she may Having worked out the terminology, where do you most pension suffer early retirement penalties. Alternatively, a turn for the law on pension-related discrimination trusts member may wish to remain in service until the date disputes? • Beware – ‘normal in the pension booklet – does this override his pensionable age’ employment contract? Part VII of the Pensions Act and ‘early A number of British cases have had to consider The curious nature of part VII of the Pensions Act retirement rule’ such situations. It’s difficult to draw direct analogies, 1990 is evident even before reading its provisions. Its have specific and not least because of Britain’s statutory provisions title, ‘Equal Pension Treatment in Occupational technical meanings concerning retirement age, but the general approach Benefit Schemes’, provides the clue, referring both to (see Waite and Jayawardane) has been to resolve ‘pensions’ and ‘occupational benefits’. Part VII is

42 www.lawsociety.ie PENSIONS LAW LAW SOCIETY GAZETTE MAY 2008

Does having to fiddle for your crock of gold broader in scope than any other part of the Pensions on the age ground, provided it does not discriminate count as pension- Act. While the rest of the act is concerned with on the gender ground. This is implemented into Irish related discrimination? ‘occupational pension schemes’ (and the similar trust law (sections 72(1)(c) and 72(4) of the Pensions Act) as RACs and PRSAs), part VII covers any form of one of a number of exemptions in respect of age “benefit … in the form of pension”. discrimination. There is no requirement for objective The Pensions Act provides (section 69) that every justification in relation to this exemption. occupational benefit scheme must comply with the However, matters are less clear-cut if a member principle of equal pension treatment – that is, the ceases to accrue pension benefit while still employed. scheme rules must not be discriminatory on the For a number of reasons, but primarily Revenue familiar grounds (including age discrimination). requirements, benefit accrual has traditionally stopped at normal retirement age. With flexible working, this Exempting retirement ages may no longer be the case (see comments on the EC Directive 2000/78 provides that the fixing of ages Green Paper, p33). It would seem at odds with the for entitlement to benefit under ‘occupational social Palacios approach to justification of a mandatory security schemes’ shall not constitute discrimination retirement age if the effect of a pension scheme’s

OCCUPATIONAL BENEFITS ‘Occupational benefits’ mean benefits (other than remuneration, to other benefit corresponding to a benefit provided by virtue of the which sections 19 and 29 of the Employment Equality Act 1998 apply) Social Welfare Acts, the Maternity Protection Act 1994 or the Health in the form of pensions, payable in case or in kind in respect of: Acts 1947 to 2001, payable as a consequence of his employment. a) Termination of service, b) Retirement, old age or death, The definition, therefore, captures, among other things, income c) Sickness or invalidity, replacement arrangements, ex gratia pensions and maternity benefit d) Accidents, injuries or disease, schemes. Technical exclusions include benefits to the extent that they e) Unemployment, or are financed by a member’s voluntary contributions, one-member f) Expenses incurred in connection with children or other dependants – schemes for the self-employed, and insurance contracts to which the and, in the case of a member who is an employee, includes any employer is not a party.

www.lawsociety.ie 43 LAW SOCIETY GAZETTE MAY 2008 PENSIONS LAW

WHAT YOU SHOULD KNOW • Occupational benefit schemes may impose The statutory provisions governing equal treatment retirement ages, as long as imposing a retirement occupational benefit schemes disputes are to be found age is not discrimination on the gender ground, in sections 81D-J in part VII of the Pensions Act 1990. • Less favourable accrual of defined Section 81J(2) sets out which of the administrative benefits/contribution rates on the ground of age provisions of the Employment Equality Act 1998 are requires justification, relevant. Section 81J(3) modifies those provisions (as • The government is considering proposals to prohibit set out in the fourth schedule to the Pensions Act). a mandatory retirement age of less than 68. These modifications mainly alter cross-references to part VII of the Pensions Act and effect amendments to HOW TO FIND THE PROVISIONS GOVERNING DISPUTES cater for the role that the Pensions Board has under CONCERNING OCCUPATIONAL BENEFIT SCHEMES some of the relevant sections. Disputes are still The age exemptions for occupational benefit schemes referred primarily to the director of the Equality Tribunal are contained in s72 of the Pensions Act 1990. (s81E of the Pensions Act).

Flatley reinvents his routine once again normal retirement age were to hinder a member from incorporated into the Pensions Act for these purposes building up reasonable pension provision. (see ‘What you should know’ panel above for details). The normal retirement age in itself is not subject to challenge (unless its imposition gives rise to a claim of Green Paper on pensions gender discrimination). However, age-related The recent Green Paper on pensions proposes: conditions to the accrual of benefits/contributions are • An optional later retirement age, subject to justification (section 72(e) of the Pensions • Prohibiting mandatory retirement ages (at all or Act). If, in future, employment and retirement overlap, below a given age), and a rule that terminates or diminishes • Increasing the flexibility of tax legislation to allow accrual/contributions after normal retirement age may employees to draw partial pensions while working. be held to be subject to a requirement for justification. “You might The government proposes that retirement age needs think Dealing with disputes to “be appropriate to make it possible to provide an Discrimination claims under part VII of the Pensions adequate pension; to rise in a rational way as life ‘retirement Act are referred to the Equality Tribunal and, on expectancy increases; and to enable labour market age’ was an appeal, to the Labour Court. The Pensions Board has flexibility permitting a phased move from full-time jurisdiction to prosecute all breaches of the Pensions work to full-time retirement”. obvious term Act, including those under part VII. The mechanism The proposal for flexible working arrangements but, as with is essentially that under the Employment Equality Act envisaged under the Green Paper would appear to 1998, but the machinery of that EEA has been result in the employment/retirement overlap referred mortality to above. Comments on the Green Paper are invited statistics, the to www.pensionsgreenpaper.ie, and consultation closes on 31 May 2008. difficulty lies LOOK IT UP in moving from Cases: Heyday judgment • Bloxham v Freshfields Bruckhaus Deringer As noted last month, any default retirement age in the general to (2007, Pensions Law Reports 375) Ireland will need to take into account the realities of the individual” • HM Customs & Excise v Jayawardane (2003, the Irish labour market. The Heyday judgment should Pensions Law Reports 1) be instructive, as it considers the imposition of a • Palacios de la Villa v Cortefiel Servicios SA, blanket retirement age that is not dependent on a C-411/05 trade-specific collective agreement. • R (on the application of the Incorporated For clients, the message is that, to minimise Trustees of the National Council for Ageing exposure, they should ensure that retirement dates in (Age Concern England) v Secretary of State their employment and pension documentation are for Business, Enterprise and Regulatory aligned and that the written word is not contradicted Reform, C-388/07 (‘Heyday’) by custom and practice. They may also wish to • Waite v GCHQ [1983] IRLR 341 consider whether their late retirement policies are justified. G Legislation: • Employment Equality Act 1998 Philip Smith is a partner in the pensions group at Arthur • Pensions Act 1990 Cox and a former chairman of the Association of Pension • Council Directive 2000/78/EC Lawyers in Ireland. Jo Kenny is an associate in the pensions group at Arthur Cox.

44 www.lawsociety.ie PEOPLE AND PLACES LAW SOCIETY GAZETTE MAY 2008 PIC: LENSMEN

At the dinner held in honour of outgoing SMDF chairman Maurice Curran on 3 April were (back, l to r): Ken Murphy, Patrick Dorgan, Maria McCarthy, Pat Howett, Jim Graham, Michael P Houlihan, Cyril Forbes, Philip Joyce, Gerard Doherty, John F Buckley, Mary Keane and John Shaw; (front, l to r): Elma Lynch, Patrick Groarke, Margaret Moran, Thomas D Shaw, Maurice Curran, James MacGuill (president, Law Society of Ireland), Geraldine Clarke and Laurence K Shields Maurice honoured for service to solicitors ast president of the Law by Maurice, who had established healthier, more honest and more and conditions that identify the PSociety, Maurice Curran, the mutual indemnity fund as an competitive marketplace,” said real concerns of the practising has retired as chairman of the alternative protection to its Mr MacGuill. “More profession. Solicitors’ Mutual Defence members, and through them to importantly,” he added, “the The president concluded: “At Fund. Maurice played a leading the public at large”. Solicitors’ Mutual Defence Fund a time where we are, once again, role in establishing the mutual The establishment of the fund had underlined the concern for exposed to the commoditisation indemnity fund back in 1987 in the late ’80s – for solicitors the protection of the public and of every service, with the bottom and has been closely involved in and by solicitors – was of the profession.” line apparently being the only its running ever since. It was welcomed by practitioners Twenty-one years after its consideration, I trust that fitting, then, that the Law throughout the country. Not establishment, the fund is still colleagues will continue to Society should host a dinner in only had it provided an the preferred method of reflect on the great his honour on 3 April at alternative to other insurers, but protection for a majority of the achievements of the Solicitors’ Blackhall Place. it had influenced the offers made profession. It provides excellent Mutual Defence Fund in Law Society President James by insurance companies to cover at reasonable prices – delivering a qualitative MacGuill praised the solicitors. “This achieved particularly to certain difference to practitioners and, “significant achievements of immediate and lasting vulnerable sections of the most importantly, to the public those visionary colleagues, led reductions and ensured a market – and provides terms at large.” PIC: LENSMEN PIC: LENSMEN

The Norsemen cometh A group of Norwegian lawyers recently visited the Law Society on a fact-finding mission on ad hoc government tribunals. The Norwegian law commission members include: Arild O Eidesen (president of the Court of Eating your Greens Appeal of North Norway), Marit Arnstad (former Minister of Oil and Green Party leader John Gormley was the guest of honour at a Energy), Harald Stabell (defence attorney), Professor Aanund Hylland dinner held at Blackhall Place on 14 April 2008. Those who attended (University of Oslo), Edith Irgins (inspector with the Accident included (front, l to r): Ciaran Cuffe TD (Green Party), John Gormley, Investigation Board), Brit Denstad (former permanent secretary of the James MacGuill (president of the Law Society) and John D Shaw (senior Ministry of Government Administration) and Kristian Trygstad (lawyer vice-president). (Back, l to r): Philip Joyce (past president of the Law with the Parliamentary Ombudsman). They are seen here with Law Society), Cllr Mark Deary (Green Party), Donald Binchy (junior vice- Society President James MacGuill and Director General Ken Murphy president) and Ken Murphy (director general)

www.lawsociety.ie 45 LAW SOCIETY GAZETTE MAY 2008 PEOPLE AND PLACES Annual Dinner at Blackhall Place he annual dinner of the servants, members of the the significant benefits that The Gazette camera was on TLaw Society was held on judiciary, members of the Ireland had gained from EU hand to capture the night’s 11 April 2008 in the Defence Forces, past membership. He also proceedings. Presidents’ Hall at Blackhall presidents of the Law Society, reminded guests about the Place, Dublin, writes Mark Council members and senior significant aid that Ireland McDermott. President of the executives, senior executives of continued to invest in Third Law Society, James MacGuill, the Law Society of Northern World countries. He referred welcomed guests to the black- Ireland, members of the to the sterling work being tie event, which included guest General Council of the Bar of carried out in the tsunami-hit speaker, the Minister for Ireland, luminaries of the legal regions of the Far East, in Foreign Affairs Dermot Ahern profession and of various legal Kenya, Darfur in Sudan, TD, the Minister for bodies, specially invited Liberia, Chad and Lebanon, to Education and Science Mary members of the media and name a few. He said that he Hanafin TD, and select other guests. would be happy to consider members of the Opposition. Minister Ahern spoke about certain Law Society projects in Also present were advisors to the impending vote on the South Africa for potential Irish Olive Braiden and government, senior civil Lisbon Treaty, underscoring Aid funding in the future. Michael Carrigan ALL PICS: LENSMEN

James MacGuill (Law Society President) and Pat Rabbitte TD

Mary Keane (deputy director general) and Sinéad Kearney Frances Twomey (Council Member), Carol Ann Casey (Independent Adjudicator) and (Chair of the Family Law Committee) Mairéad Ahern (Dundalk County Registrar)

46 www.lawsociety.ie PEOPLE AND PLACES LAW SOCIETY GAZETTE MAY 2008

FACES IN THE CROWD

John D Shaw (Senior Vice President), James MacGuill (Law Society President), Minister for Foreign Affairs Dermot Ahern TD, and Donald Binchy (Junior Vice President)

James MacGuill, Lisa MacGuill, and Murdo McLeod (Faculty of Advocates, Edinburgh)

Colm Murphy (Minister for Regional Development in the Northern Ireland Ken Murphy (director general), James Assembly), Arthur Morgan TD, Boyce MacGuill (Law Society President) and Shubotham, and James MacGuill (Law Michael McDowell SC Society President)

www.lawsociety.ie 47 LAW SOCIETY GAZETTE MAY 2008 PEOPLE AND PLACES Waterford Law Society does it in style

he glad rags were dusted Clinical Society), Frank Tdown for Waterford Law Treacy (PRA), Superintendent Society’s annual dinner, which Chris Delaney, Owen took place on Friday 4 April O’Mahony (President of 2008 in the Athenaeum Hotel, Kilkenny Bar Association), and writes Fiona Fitzgerald. The Paddy Derivan (Vice President dinner was hosted by of Tipperary Bar Association). President of the Waterford An excellent turn-out from Law Society, Morette Kinsella. city and county solicitors This year, however, the included John Goff Snr, Iain feasting was put on temporary Farrell, Helen Bowe O’Brien, hold for a short questions-and- Frank Heffernan, Fiona answers session. Members FitzGerald, Finola Cronin, submitted their questions in Danny and Edel Morrissey, advance and the result was a John Purcell, Deirdre detailed agenda, which centred McSweeney (our wonderful on representation of solicitors organiser), Niall King, Fiona in and by the Law Society, the Fiona Gillen, Tom Murran, Gillian Mahony and Sinead Gillen and Sinead Gillen, Ronan regulation and discipline of Curran, Bernadette Cahill, solicitors, and the public’s champagne. Guests included Registrar Niall Rooney, Dr Derry O’Carroll, Tom Murran, perception of solicitors and the Judge Bill Harnett, Judge Ann O’Connor (Vice Neil Breheny and Andre Law Society generally. Elizabeth McGrath, County President of Waterford Thompson. Fielding the questions were honoured guests, Law Society President James MacGuill and Director General Ken Murphy. Waterford members left the session with a sense of confidence that the Law Society is, indeed, committed to its constantly evolving role of representation and the defence of its members. It is hoped that a further session can be tabled in Waterford later this year to conclude the lively discussion. Following the business session, the assembled guests feasted on the Athenaeum Hotel’s wonderful culinary offerings, washed down with Frank Heffarnen, John Goff, Morette Kinsella, Peter Cusack and Judge Bill Hartnett

James MacGuill (president, Law Society of Ireland) and Morette Kinsella (president of the Deirdre McSweeney, Fiona Grogan Waterford Law Society) Gerrard O’Connor, Niall Rooney (Jim Halley at rear) and Ian Farrell

48 www.lawsociety.ie PEOPLE AND PLACES LAW SOCIETY GAZETTE MAY 2008 ALL PICS: CIARAN CONNEELY. PHOTOS CAN BE ORDERED BY EMAIL AT: [email protected]

(Back, l to r): Marie Dennehy, Neil Breheny, Deidre McSweeney, Owen O’Mahony, John O’Donovan, Pat Dervan, Gerard Halley, Della Power, Liz Dowling, Orla Kenny, Sonja Kennedy, Gerard O’Connor, Jim Halley, Claire Ryan, Liz McArdle and Niall Rooney. (Sixth row, l to r): Finola Cronan, Peter Cusack, Fiona Grogan, Sinead Gillen, Fiona Gillen and John PC Goff. (Fifth row, l to r): Frank Heffernan, Cyril Cawley, Hellen Bowe O’Brien, Bernadette Cahill, Rosie O’Flynn and Danny Morrissey. (Fourth row, l to r): Derry O’Carroll, Niall King, Judge Bill Hartnett, Jill Murphy, Rosa Eivers, Ellen Hegarty, Leona McDonald and Frank Tracey (Land Registry). (Third row, l to r): Kieran Curran, Sarah Power, Gillian O’Mahony, Ian Farrell, Bridget Hynes and John Purcell. (Second row, l to r): Michael McLaughlin, Paddy O’Riordan, Ronan Curran, Jill Walsh, Laura Farrelly, Judge Elizabeth McGrath, Ann O’Connor (clinical society) and Jill Walsh. (Front row, l to r): Ken Murphy (director general, Law Society), Morette Kinsella (president, Waterford Law Society), James MacGuill (president, Law Society), Tom Murran, William Hackett, Fiona Fitzgerald and Edel Morrissey

Ann O’Connor, Ken Murphy (director general of the Law Society) and Stan Power (proprietor), Michael McLaughlin, Gillian Mahony Morette Kinsella and Niall King

Sarah Power, Ian Cunningham and Andrew Thompson Rosie O’Flynn, Liz Dowling, Sonja Kennedy and Finola Cronin

www.lawsociety.ie 49 LAW SOCIETY GAZETTE MAY 2008 PEOPLE AND PLACES A spring in their step at the Slieve Russell! ne would have been Friday night was all about instead, in response to Ben many generous sponsors, and Oforgiven for wanting to catching up, as many had not Rigby’s reflections on being introduced President of the stay at home on Friday 29 seen friends and colleagues past president of the European Northern Ireland Law Society February 2008. What with since the previous similar Young Bar Association. Donald Eakin, who also spoke sheets of rain pouring down so engagement, and catch up they Addleshaw Goddard, the a few words. The hard, driving to the SYS did until the early hours, newest sponsor of the SYS, entertainment for the night Spring Conference in Cavan mingling with the remnants of finished the morning on a was provided by Spring Break, felt more like being in a a wedding and a GAA ball. lighter note, with an a favourite and frequent carwash, writes Alina Jokinen. Luckily, there was plenty of entertaining quiz. performer at SYS conferences, Some 200 young solicitors room for all. The afternoon golfers got after which DJ Glenn Tector bravely wended their way to their fair share of rain and made sure the dance floor the Slieve Russell Hotel for Unprecedented crowd cold winds, the spa-goers never emptied until the full the joint conference, organised Saturday morning started bright delighted in their choice to lights in the room were by the Society of Young and early, with the impressive stay inside, but one way or turned on and the microphone Solicitors (SYS) and the speaker line-up drawing an another, by 7pm all delegates was removed from the grasp Northern Ireland Young unprecedented crowd. looked primed and ready for of a lone, husky-voiced diva. Solicitors’ Association (YSA). Brightwater Recruitment another night of socialising. Back at the hotel bar, Some of our Northern Specialists, loyal sponsors of delegates yearning for more colleagues took the scenic SYS conferences, took the first Husky-voiced diva managed to carry on for even route, taking in a brief tour of slot, sharing with us the recent Thanks to the pre-dinner longer. the M50 on their five-hour trends in legal recruitment both drinks reception, a lively A roaring success, the 2008 bus journey from Belfast to north and south of the border. crowd took their places for joint spring conference Ballyconnell. There were Unfortunately, Mr Justice the gala ball in the elegant between the SYS and the never travellers so relieved to Treacy had been forced to ballroom. Before dinner was Northern Ireland YSA proved see the bright, beckoning cancel at short notice, so Law served, the outgoing once again that relations lights of the hotel. The Society President James chairperson of the SYS, between north and south are weekend had started! MacGuill took the floor Catherine Allen, thanked the now better than ever. ALL PICS: FINBARR O’DONOGHUE

Niall Pelly, Deirdre St John, Michelle Quinn, Sinead Casey and Tristan Conway-Behan

50 www.lawsociety.ie PEOPLE AND PLACES LAW SOCIETY GAZETTE MAY 2008

James MacGuill (president of the Law Society of Ireland), Catherine Allen (chairperson of the SYS), Donald Eakin (president of the Northern Ireland Law Society) Fionnuala Finn, Fiona Neville and Melissa McCague

Julie Reid, Conor Houston, Claire Reid, Emma Hunt (all from the Mary Hurley, Siobhan Kirrane, Susan Quigley, Eadaoin Ni Chaoimh, committee of the NIYSA) and Ronan Savage (Brightwater Recruitment) Marilyn Walsh and Katie Byrne

Ronan Savage, John Macklin, Kate Coughlan (all Brightwater), Catherine Allen, Donogh O’Donovan, Alina Jokinen, Micheál Grace (all SYS), Hilary Flynn, Alannah O’Reilly, Eileen Moloney (all Brightwater)

www.lawsociety.ie 51 LAW SOCIETY GAZETTE MAY 2008 PEOPLE AND PLACES Annual conference dinner he Law Society’s annual Tconference in Budapest from 26-30 March 2008 was a wonderful success. The welcome reception in the historic Dominican Courtyard of the Hilton Hotel in the Castle District, sponsored by recruitment firm Benson & Associates, broke the ice. Friday’s business session, sponsored by the Solicitors’ Mutual Defence Fund and Jardine Lloyd Thompson Ireland Ltd, proved a major draw (see page 14). This was chiefly due to the pulling power of Minister for Justice, Equality and Law Reform Brian Lenihan TD, EU Ambassador to the US, John Bruton, and Deputy DPP Barry Donoghue. Budapest offered many delights, chief among them being the night at the city’s stunning opera house, where the audience enjoyed a performance of Bizet’s Carmen, with Attila Wendler in the role of Don José and Erika Gál as Carmen. PIC: LENSMEN No one missed out on the opportunity to tour the city by bus, which gave us the opportunity to view the stunning St Mátyás Church in the Castle District, the Royal Palace, the Chain Bridge linking Buda and Pest, the outstanding parliament building, the impressive Heroes’ Square, art museums, the surreal Statue Park, the chilling House of Terror museum, and the Gellért Baths, among so much more. The social highlight of the week was Friday night’s gala dinner, generously sponsored by Bank of Ireland. Here we present a number of photos from a night that had everything – fun, laughter, European Commission survey great food and wonderful At the European Commission Survey dinner at Blackhall Place on 8 April 2008 were (l to r): Julia Bateman, Mr Justice Michael Peart, Dara Robinson, Laura Surano, President of the Law Society James MacGuill, entertainment. See you next Madame Gisele Vernimmen-Van Tiggelen, Barry Donoghue, Kenneth Ruane and Derek Kenneally SC year in sunny Bilbao!

52 www.lawsociety.ie STUDENT PAGE LAW SOCIETY GAZETTE MAY 2008 student spotlight Society team makes final four in Mumbai moot Law Society team of From a field of over 26 APPCI students international participants, the represented Ireland at the Law Society team was the DM Harish International only European team to reach Moot Court Competition, the semi-finals. In the held in Mumbai, India, from preliminary rounds, teams 8-11 February 2008. This was from Cambridge (last year’s the first time for the Law winners), Westminster, Society to enter this Exeter, Southampton, Greece, competition, being Spain, Australia and India represented by Carol Eager were knocked out. The semi- (William Fry), Fionnuala The PPC1 team and friends fly the flag for Ireland finals were also contested by Hynes (Astons Wealth Cornell Law School (USA), Management), Jerry Healy Trainee Moot Court Competition victors NALSAR University of Law

and Michelle Cunningham PIC: JASON CLARKE PHOTOGRAPHY (India) – and the eventual (Arthur Cox). winners, the University of The competition involved Washington St Louis (USA). representing a fictitious Irish trainee Fionnuala nation, through a written Hynes won the competition’s submission and oral advocacy, joint award for ‘best in a hypothetical dispute researcher’, alongside the before the International Court NALSAR’s Indian researcher. of Justice. The focus was on In addition, Carol Eager was human rights issues, including named fifth-best speaker in euthanasia, abortion, secular the competition, with Jerry and economic rights. Judges Congratulating the winners of the recent Trainee Moot Court Healy finishing in a included members of the Competition at the Society’s Law School were (l to r): Ken Murphy commendable eighth position. (director general), Louise Rouse (Arthur Cox), James MacGuill (Law bench of the High Court in Society president), TP Kennedy (director of education), the Mr Justice Given the success of our Mumbai, legal practitioners Nicholas Kearns (Supreme Court), the Mr Justice Michael Peart (High maiden trip to the and scholars. Outside of the Court), winning team members Eleanor Dunne (Autumn 2007 PPCI, competition, it is hoped that competition, there were visits A&L Goodbody) and Maria O’Donnell (Cork 2007 PPCI, Wolfe & Co future teams can emulate or Solicitors, Cork), James O’Sullivan (Chairman, Education Committee), to the state palaces and the Catherine Dolan (commercial manager, Thomson Roundhall, better this year’s performance. High Court, as well as many sponsors) and Mr Justice Joseph Finnegan (Supreme Court) Congratulations to all meetings with dignitaries. concerned. G

www.lawsociety.ie 53 LAW SOCIETY GAZETTE MAY 2008 OBITUARY

Professor Paul O’Higgins 4 October 1927 – 13 March 2008

he contribution to Irish law and these requirements were Tof Professor Paul kept constantly in mind. In the O’Higgins (a former Regius 1966 work, he made reference Professor of Laws at Trinity to over 5,000 legal articles College, Dublin) has been culled from 130 periodicals on significant. As a law student in Irish law from all over the Trinity in the period 1954- world. The 1966 opus was 1957, he found his law followed by two supplemental teachers, for the most part, periodicals in 1973 and 1983. unaware of the vast literature of O’Higgins returned to Irish law. His teachers were Ireland (where his heart lay) in also unaware of the great Irish 1984 as the Regius Professor of lawyers – practitioners and Laws in Trinity College, Dublin. advocates – of the past. The In 1986, O’Higgins law student, Paul O’Higgins, at the Trinity College of the time, published a Bibliography of Irish Trials and other Legal stated that if he were preparing a paper for the Dublin Proceedings, dedicated as a token of affection and respect to University Law Society or drafting a minor piece of research, Colum Gavan Duffy, solicitor, the librarian of the Law he found the basic tools of research, in particular adequate Society of Ireland, whom he described as the doyen of Irish bibliographies of Irish law, to be almost wholly lacking. Trinity law librarians, and Willi Steiner, whom he described as the College was not unique. doyen of British law librarians. O’Higgins’ thesis was that, in These influences compelled Paul O’Higgins, as an a small country such as Ireland, it was important not to lose undergraduate, to commence the mammoth task of preparing a contact with the scholars who had laboured before us in the bibliography of Irish law, which is his permanent legacy to past, often to great effect, and whose work had been largely anyone interested in Irish law and legal proceedings. forgotten and overlooked. Paul O’Higgins was born on 4 October 1927, spent his early O’Higgins was elected to the Royal Irish Academy in 1986. years in Ireland, and studied medicine at Trinity College, Dublin. Sadly, health and personal reasons compelled him to resign His left-wing political views were not to the liking of the medical the Trinity chair, and he returned to England in 1987. King’s establishment and he parted with medicine. He then switched to College London subsequently offered him a chair, which he law. He was called to the Irish and English bars in 1957, at the held for five years until his retirement. Later, he became a age of 30. His doctoral thesis in Cambridge University, under vice-master of Christ College, Cambridge, until 1995. Professor (later Sir) Robert Jennings, on political asylum was Prof O’Higgins was not only a graduate of Trinity College regarded as outstanding, although it has never been published. with an LLB degree, but was a doctor of the university, a Subsequently, O’Higgins lectured in law at Cambridge, with a member of the Royal Irish Academy, the holder of a PhD particular focus on human rights and labour law. degree, and was awarded the degree of honorary doctor of laws The part-time hobby of Prof O’Higgins was, in time, to from Cambridge University. He was an honorary fellow of yield an accumulation of bibliographical data about Irish law, TCD and Christ College, Cambridge. which constitutes (to this day) building blocks for future Paul O’Higgins died (aged 80 years) on 13 March 2008 in generations. Cambridge. His principal interests as a law teacher were in civil In 1966, Paul O’Higgins published his Bibliography of liberties, human rights and social law (described as labour law Periodical Literature Relating to Irish Law. At that time, in the to most of us), of which he was a dedicated pioneer. He wrote general absence of textbooks on Irish law, periodical literature many works on these subjects. He left a legacy to each of us in (for example, articles in the Gazette of the Law Society of the form of his bibliographies of Irish law, which are unique Ireland, which are frequently cited) was the main source on and unrivalled. G Irish law. Paul O’Higgins was primarily interested in the requirements of practitioners as well as the research scholar – EH

54 www.lawsociety.ie BOOK REVIEW LAW SOCIETY GAZETTE MAY 2008 books Defamed! Famous Irish Libel Trials

AJ Davidson. Gill & Macmillan (2008), Hume Avenue, Park West, Dublin 12. ISBN: 978-0-71713-803-6. Price: €12.99.

awyers should declare all Breen). beaten only by the human Lpossible conflicts of interest. Not all of the cases took drama of criminal cases. This I must do so in relation to AJ place in this jurisdiction. The public interest is prompted less Davidson’s book, a racy and now infamous award of one by the minutiae of the law than readable account of what he penny to Albert Reynolds, in by the theatrical element describes as a “litany of libel his case against the British involved in defamation cases highs and lows”. Of the cases edition of The Sunday Times, before a jury. highlighted, I acted in two – was given by a jury in London. While focusing on the one for the defendant and the McCartan, Turkington & personal stories of the victors other for the plaintiff. I lost Breen sued The Times in and vanquished, Davidson is both. Mostly lows for me then! Northern Ireland. They had not afraid to analyse the Davidson’s book is aimed at represented a British soldier, procedural quirks of libel law, the general reader. His book on Lee Clegg, who was convicted including the shameful inability notorious Irish kidnappings was of murdering a young woman of defendants to lodge without also published by Gill & joyrider. Their handling of the an admission of liability, a rule Macmillan. case was criticised at a press that hinders settlement and Davidson highlights 11 well- conference in Yorkshire, upon acts, in my view, to the known defamation actions which The Times reported. tempered by previous detriment of both claimants involving Irish plaintiffs. These They were awarded settlements with three and defendants. Perhaps this range from politicians (Albert stg£145,000 by a Belfast jury, newspapers for an estimated popular publication will help Reynolds, Proinsias De Rossa subsequently reduced on appeal stg£500,000. bring about reform quicker and Beverly Cooper Flynn), to to stg£75,000. However, the The fact that Gill & than the many legal articles members of our own profession House of Lords overturned the Macmillan have published a written on the topic. G (Judge Joseph Mangan and the award, as the report was book on defamation for the Northern Irish solicitors’ firm privileged. The firm’s general reader reflects an Michael Kealey is a partner in of McCartan, Turkington & disappointment was probably interest in such trials that is William Fry.

D OYLE COURT REPORTERS LTD

VERBATIM TRANSCRIPTS

2 Arran Quay 7. Tel: 872 2833. Fax: 872 4486 Accurate shorthand recording of the Email: [email protected] High Court, Public and Private Inquiries, Web: doylecourtreporters.com AGM’s, Conferences etc.

www.lawsociety.ie 55 LAW SOCIETY GAZETTE MAY 2008 GADGETS tech trends

Read all the technology news here first, in your glorious Gazette. Or not, as the case may be Admissable evidence?

ou know the way you’re direction. Witness the Oregon Ycruising down the dual Scientific ‘action camera’ carriageway, just a tad-and-a- (www.oregonscientific.co.uk, half over the speed limit, stg£99), designed to be worn on flashing your high beams in an the helmets of skiers and aggressive manner at any poor climbers, but equally capable of sod in a Micra who can’t sitting on your shoulder and compete with the girth of your capturing on film the massive torque? And then some outrageous law-breaking of that spotty boy racer in a modified young fellow who was probably But if you’re purple Corsa (with those only boosting his first car stereo serious about portable ridiculous neon lights under the at the time you qualified. cameras, you owe it to door sills) tears up behind you yourself to check out what Sony and sits on your tail until you claims to be the world’s smallest give up and get back into the high-definition digital zoom, optical image lane you should have been in to camcorder, the snappily stabilisation, face detection for begin with? Well now you can monikered HDR-TG3E video and photo, and four take ’em down! (www.sony.ie). Just a bit bigger megapixel still photo recording But not in an Arnie sort of than your mobile, this wee plus “Dual Rec” while way. No siree, we’re talking beastie features HD 1920x1080 recording movies – whatever about the sort of documentary recording on removable that means; we only reproduce evidence that is one step away memory stick, a top-notch Carl the press releases and pocket from hearsay, in the wrong Zeiss lens with 10x optical the cash. It’s good to talk, unless you’re on the run nd in the They’re all basically the same, And if you’re of the green messages and all that jazz from A‘that’s a varying only in the number of persuasion and can’t be doing your phone to your PC. We’re good idea, AA batteries they use: two with those nasty toxic battery surprised we don’t have one must get one batteries good, one battery, er, things, you could always try the already. Indeed, we’re going of those’ a bit less than that. They all wind-up multi-mobile charger out for one now (available folder, we involve batteries, a case, and a (www.iwantoneofthose.com, from Argos at about €15). Just have a few variety of connection leads, about €9). Even if your local watch out for that dodgy- mobile- including adaptors to power up 7/11, 9/11 or 24/7 is closed, looking boy racer in the purple phone- an iPod. Naturally, our you still have the power of the Corsa who’s getting a new related favourite is the PowerChimp oul’ pedal and crank. Three sovereign ring. He’s mental, products. Travel Charger (www.ogormans. minutes winding will get you he is. First up are co.uk/powermonkey, stg£15). “up to” eight minutes the emergency The emergency chargers from talk time. Don’t chargers. www.paramountzone.com forget to bill (stg£4.95) and for all that www.iwantoneof wrist activity. those.com (about Also worthy of €10) are cheaper note is the USB and will do the SIM-card reader, job, but don’t which enables you to have that back up your contacts, monkeyish cachet. appointments, saved

56 www.lawsociety.ie GADGETS LAW SOCIETY GAZETTE MAY 2008

Looks like a calculator, though... t certainly won’t win any opposable thumbs, this quad- Idesign awards – not with the band phone (pretty much overhyped and overpriced meaning that you can use it all iPhone and the new Samsung over the world) handles text Armani on the scene – but the messaging and emails with super-slim Motorola Moto Q aplomb. It also supports various 9h (right) might win out in music files for your ultra-hip terms of functionality for those toons and has an impressive sick of predictive and, indeed, camera and video facility. non-predictive texting. Altogether, quite a tasty Although what your average package, even if it does look stubby-fingered badger-baiter like something you took into hellomoto/ might make of its QWERTY your Leaving Cert maths exam. motoq9h, and keyboard is anyone’s guess. Check out the impressive specs it’s available But for those of us with at http://direct.motorola.com/ through both Meteor and Vodafone. Another story entirely is this dedicated web browser (left) that looks something like those hand-held games units that Nicole Kidman is always trying to flog on TV to increase your brainpower. Bet phone, but promises to allow she wished she’d used one you to wirelessly surf the web before she signed up for Far with full graphics, Java support and Away... and all the other techy stuff Anyway, the Pocket Surfer 2 you can find out about at promises an end to the patchy www.pocketsurfer.co.uk. But and slow web access you might we’re still not sure if it is get on your ‘internet-enabled’ supported by any Irish network phone. This thing isn’t a provider.

SITES FOR SORE EYES

Impress your friends and alienate your boss. Or vice versa Monkeys in the news (www.monkeydaynews.blogspot.com). (http://plato.stanford.edu/contents.html). Why do anarchists only Everyone loves monkeys, and this site will give you your daily fix drink herbal tea? Because all proper tea is theft. If you’ve ever of monkey-related happenings around the world, including “Man had trouble telling your Kropotkin from your Bakunin or tried in trouble for feeding monkey chilli peppers”, “Boozy smoking desperately to understand how libertarians and anarchists seem chimp rescued from navy”, and “How to survive a monkey so similar yet are so different, then this site is for you: the attack”, which is especially important if you happen to be an Stanford University Encyclopaedia of Philosophy online. elected city official in New Delhi.

www.lawsociety.ie 57 Akzo case in rela- Akzo Nobel G case, and it was proposed arate blocks of training. This arate blocks of training. in place structure had been difficul- since 1978, and certain in com- ties were experienced to plying with the requirement all four provide experience in would blocks. The committee review the matter further and feedback would be sought from training solicitors. CCBE Michael Irvine reported briefly on the that the Society would write to the Attorney General indicat- ing its support for the interven- tion announced by the Irish government in relation to the matter. tion to privilege for in-house counsel and also on the con- veyancing study conducted by the EU Commission. He also noted that the Belgian Constitutional Court had con- firmed the decision of the European Court of Justice in relation to money laundering and the priority in law for solicitors’ advices and that there was a discussion being conducted within the CCBE about multi-jurisdictional practices. The president noted that it was the policy of the Society to support the concept of privilege for in-house coun- sel. An unhelpful decision had been handed down in the Nobel you can sign up by visiting the members’ website at section on the Law Society’s Click on the ‘New e-zine www.lawsociety.ie. for members’ the left-hand menu section in will You bar and follow the instructions. which can be need your solicitor’s number, obtained by emailing the records department at: [email protected]. Criminal had been published In relation to the Bar Council In relation to the Bar it had ruling on fee estimates, the Bar been agreed that both Society Council and the Law working would establish small aris- groups to consider issues ing from the ruling. Provisions) Bill 2006 Laundering) Bill 2008 Civil Law (Miscellaneous The director general reported that the report stage of the bill had been taken in the Dáil on the previous Wednesday. the bill was still However, capable of amendment in the Seanad. Education – in-office training period The chairman of the Education Committee, James O’Sullivan, reported that the committee was engaged in an examination of the in-office training period require- the and, in particular, ment of training solicitors to provide trainees with four sep- Criminal Justice (Money The president reported that the draft scheme of the Justice (Money Laundering) Bill 2008 recently and the Society intend- ed to engage in a consultation process with the Department of Justice, Equality and Law Reform on the content of the draft scheme. eport The Law Society’s e-zine is the legal The Law Society’s newsletter of the solicitors’The profession. e-zine issues once every two months and brings news and information directly to your computer screen in a brief and easily- If you’re not receiving digestible manner. the e-zine, or have opted out previously and would like to start receiving it again, Eamonn Keenan presented Registration Authority, the Registration Authority, the Revenue Commissioners, govern- local authorities, the law ment, estate agents, and sur- searchers, architects property veyors, builders and developers, the Ordnance Survey and the Consumers’ of this Association. As part process, the Law Society had been asked to draft its vision for e-conveyancing in Ireland. the principles underpinning ‘eVision’. the task force’s Gabriel Brennan then present- ed a series of diagrams that summarised how the new pro- posed system would operate in practice, both in circumstances where there was a simple e- contract and in circumstances where there was both an e-con- tract and an e-deed. Following a series of questions from Council members, the Council formally endorsed the task was and it eVision, force’s agreed that the proposal should be formally launched at an event to which the Minister for Justice, Equality and Law Reform would be invited. Reportmeeting with the on Bar Council The president reported on a meeting of the Joint Consultative Committee of the Law Society and the Bar Council, held on 21 February. , Law Society Council meeting, meeting, Council Society Law 29 February 2008 MAY 2008 MAY council r council eConveyancing: Modelling of It was noted that the task Dan O’Connor briefed the Are you getting Are your e-zine? the Law Reform Commission had commenced a process of engagement with other stake- holders, including the financial institutions, the Property Vision of an electronic system of conveyancing eConveyancing The Society’s by the Force, represented Task chairman, Dan O’Connor, Gabriel Eamonn Keenan and Brennan, made a presentation the task to the Council of of an Electronic ‘Vision force’s System of Conveyancing’ (‘eVision’). force had been established in 2005 with terms of reference that required them, having regard to the rapid progress in technological development of all systems that supported the conveyancing process, to ascer- tain and define all relevant areas where issues arise, to develop a policy in relation to all such issues, to examine how the current system might bet- and to ter embrace technology, liaise with the Land Registry and the Law Reform Commission to this end. Council on developments in the area of conveyancing since 2003, both in terms of legisla- He noted that, tion and policy. following its 2006 report enti- tled the Irish Conveyancing System www.lawsociety.ie LAW SOCIETY GAZETTE

BRIEFING 58 BRIEFING 59 21 April 2008 MAY 2008 MAY Queries in respect of the non- rently taking approximately 18 date months to get a hearing from the time they are trans- ferred into the list to fix dates. not This waiting period does priority apply to cases to which can be is given or to cases that hearda period of two within hours. Short cases are listed for hearing on Mondays and are heard few weeks of the within a court being notified that the case is ready for hearing. jury or judicial review list to fix dates should be directed to Angela Denning, Registrar, Courts Service,tel: 01 888 6454. www.lawsociety.ie Law Society of Ireland, Litigation Committee notes G ther order court. of the provin- John Elliott, Registrar of Solicitors, LAW SOCIETY GAZETTE should be directed Queries in respect of non- Judicial review cases are cur- practice on any day where there is a shortage of courtrooms in assigned Dublin, cases will be for to venues close to Dublin hearing. It is also very likely that, in the near future, non-jury will be miscellaneous matters listed for hearing at venues out- side Dublin. This ensures that that cases get dates quicker, High Court business is spread across the country, and that courthouses are fully utilised. jury cases assigned to cial venues to Paul Gunning, Registrar, Courts Service,tel: 01 888 6691. James P Murphy, solicitor, of solicitor, James P Murphy, Doire, Ballygaddy Road, Tuam, be suspended from Co Galway, practice as a solicitor until fur- NOTICE . The High Court With additional judicial dates, all remaining cases in the list were assigned hearing dates before the summer vaca- tion. In all, 135 certified non- jury actions were listed for hear- Dundalk, Cork, ing at Castlebar, for both and Tullamore Trim terms 2008. Easter and Trinity Practitioners wishing to ascer- tain the status of a case can check it online using the High Court search facility on www.courts.ie. resources and the resultant increase in the throughput of cases, pressure for courtroom space in Dublin has increased The President of significantly. the High Court has directed that Solicitors Acts 1954–2002 Take notice that, by order of the Take High Court made on Monday 7 April 2008, it was ordered that JUDICIAL REVIEW AND NON-JURY LISTS – WAITING TIMES LISTS – WAITING AND NON-JURY JUDICIAL REVIEW

he Courtshe Service has advised that the waiting Non-jury and chancery cases At the last non-jury list to fix

In the matter of James P of Doire, a solicitor Murphy, Co Ballygaddy Road, Tuam, and in the matter of the Galway, T time for a hearing date for certi-time for a hearing date fied non-jury has recently cases been reduced from in a period excess of three years to less than three months. have been fixed for hearing at a number of courthouses outside Dublin, thereby clearing signifi- date, cant backlogs in lists. To cases have been listed at Bruff, Cork, Dundalk, Castlebar, Limerick, Ennis, Galway, This and Tralee. Tullamore approach has allowed the listing of an additional 140 non-jury cases in Hilary 2008. Term . 15/4/ to give to give and the European Amend the Amend the European Com- SI 89/2008 SI 61/2008 and for section 13 of the and for section 13 of Regulations 2008 2006 13 act, except insofar as section (3) and relates to subsections by (4) of section 9G (inserted of the the said section 13) Act 1999 Electricity Regulation com- The sections being menced assign responsibility for the regulation of electrical contractors, gas installers and gas undertakings with respect to safety and related matters to the Commission for Energy Regulation. 2008 Directive 2006/68/EC) (Railway Safety) Regulations (Public Limited Companies – effect to Directive 2004/49/EC on safety on the community’s railways. Make minor amend- ments to the Communities (Allocation of Number: Contents note: Companies Act 1963 Companies Act 1990 effect to certain provisions of Directive 2006/68/EC, which amended Council Directive 77/91/EEC as regards the for- mation of public limited liabil- ity companies and the mainte- nance and alteration of their capital. The provisions imple- mented by these regulations deal with creditor protection in cases of capital reduction and purchase by a company of its own shares. Commencement date: 2008 European Communities Number: Contents note: Railway Safety Act 2005 munities (Licensing of Railway Undertakings) Regulations 2003 (SI 537/2003) and the European Communities 1/4/ , and , the Family Family Energy Appoints Appoints Report of the , the Social Welfare and the to allow for the . Provides for a num- SI 68/2008 SI 90/2008 30) Order 2008 Provisions) Order 2008 Act 1990 recom- implementation of the mendations in the for to the Minister Pensions Board on Social and Family Affairs Trusteeship amend- ber of miscellaneous ments to the Consolidation Act 2005 Pensions Act 1990 Law Act 1995 Law (Divorce) Act 1996 provides for related matters. Commencement date: 2008 for section 3, 8/5/2008 for section 8, 5/6/2008 for sec- tion 9 and 1/6/2005 for section 10 (per section 1(5) and the respective sections of the act); commencement orders to be made for sections 5, 12 to 17, 18(2) to (4) and 27 to 31 (per section 1(6) of the act); 7/3/2008 for all other sections (per section 1(4) of the act); 14/4/2008 for sections 29, 30 and 31 (per SI 84/2008) SELECTED STATUTORY INSTRUMENTS (Commencement) (Section (Commencement of Certain (Amendment) Act 2007 Provisions) Act 2006 Number: Contents note: 12/3/2008 as the commence- ment date for sections 4, 11 and 12 of the (Miscellaneous Provisions) Act Asset Covered Securities Number: Contents note: 6/5/2008 as the commence- ment date for section 30 of the act. Section 30 relates to the regime for designated com- mercial mortgage credit insti- tutions. Energy (Miscellaneous Com- Pensions and pro- Diplomatic Provides for Provides for 2/2008 4/2008 Act 2008 Contents note: the implementation of certain social welfare measures announced in the 2008 budget. Provides for increases in child benefit, early childcare supple- ment and the respite care grant. Also provides for an increase in income limit for the one-parent family payment and for change in the assessment of income for the purposes of qualification for the payment. Provides for the operation of Council Regulation 259/68 to allow officials employed in an EC institution to transfer the actuarial value of their pension rights from the Social Insurance Fund into the Pension Scheme of the European Communities Institution (PSEC) and vice versa. Makes the necessary leg- islative changes to the Number: Contents note: for the issue by the Minister author- Foreign Affairs, on the of pass- ity of the government, provides ports to Irish citizens; personal for the processing of data, data, including biometric pro- for the issue of passports; vides for the cancellation and surrender of passports in cer- tain circumstances, for offences relating to passports and for the issue of emergency travel certificates in certain circum- stances. Amends the and Consular Officers (Provision of Services) Act 1993 vides for related matters. Commencement date: mencement order(s) to be made (per section 1(2) of the act) Social Welfare and Pensions Passports Act 2008Number: , 1/1/ and legislation update legislation 11 March 2008 – 15 April MAY 2008 MAY 26/3/ emissions 2 Provides for Gives effect to Finance (Excise 5/2008 3/2008 Finance (No 2) Act 1992 Licences) Act 2008 Number: Contents note: Motor Vehicle (Duties and increases in motor taxation with effect from 1/2/2008 and provides for a new motor-tax system based on CO the imposition, repeal, remis- sion, alteration and regulation of taxation, of stamp duties and of duties relating to excise, and otherwise makes further provi- sion in connection with finance, including the regula- tion of customs. Commencement date: Finance Act 2008Number: Contents note: 2008 for part 1, except where otherwise expressly provided in part 1 (per section 144(8) of the act); 13/3/2008 for other parts of the act, except where other- wise expressly provided or where provisions of the act will come into force on the making of commencement orders – see act for details Details of all bills, acts and Details of all bills, since statutory instruments cata- 1997 are on the library logue – www.lawsociety.ie (members’ and students’ infor- areas) – with updated stage mation on the current and the a bill has reached of commencement date(s) each act. ACTS PASSED www.lawsociety.ie LAW SOCIETY GAZETTE Duties) (Vehicles) Act 1952 Duties) (Vehicles) the for new and pre-owned imported cars registered on or after 1/7/2008. Amends and extends the and provides for related mat- ters. Commencement date: 2008

BRIEFING 60 BRIEFING 61 9/4/ Appoints 2 p&p MAY 2008 MAY € magazine See SI for full Prepared by the Prepared www.lawsociety.ie Law Society Library SI 57/2008 G 10 plus Gazette € tion with monetary policy tion with operations. date: Commencement 2008 logo in gold on the front 2008 (Commencement) Order Health Act 2007 Number: Contents note: 29/2/2008 as the commence- 8(1)(c) ment date for section of the and associated provisions Health Act 2007. of the details. Section 8(1)(c) for the act makes provision and Health Information Quality Authority to monitor compliance with standards it sets on safety and quality of services. Gazette LAW SOCIETY GAZETTE , Blackhall Place, Dublin 7. € 7 for orders of between five and ten binders) € MONTH/YEAR Law Society Gazette BINDER mandatory provisions of mandatory on settle- Directive 98/26/EC in payment and ment finality settlement systems. securities aim of the direc- The primary legal risk tive is to reduce the in associated with participation particu- settlement systems, in of lar as regards the legality and the netting agreements collateral enforceability of provi- directive’s The security. European sions apply to any or secu- Community payment oper- rities settlements system or ating in any currency the euro, any European Community institution that participates in such a system, collateral security provided in connection with participation in such a system, and collateral security provided in connec- (SI 6/3/ European Please return to Please send me magazine binders at (special p&p rate of I enclose my cheque for Please charge my Access VisaCredit card number Expiry date: Mastercard Eurocard Name: Address: Telephone: Signature: Solve your storage problems a new-style with Transpose the Transpose (SI 89/2006). and spine. SI 88/2008 7 APPLIES) binder. Each easy-to-use binder takes a year’s worth of issues and is binder. finished in blue leatherette with the € European Communities (Road European Communities 2 POST AND Transport) Regulations 2006 Transport) 88/2006) and the Communities (Road Transport) Regula- Equipment) (Recording tions 2006 Commencement date: 2008 561/2006; and (2) Council 561/2006; (EC) 561/2006 on Regulation of certain the harmonisation relating to social legislation and amending road transport, (EEC) Council Regulations 2135/98 3821/85 and (EC) Regu- and repealing Council Revoke lation (EEC) 3820/85. the Regulations 2008 (Settlement Finality) € Contents note: Number: European Communities 6/3/ 10 PLUS € Prescribe pro- SI 62/2008

(SI 643/2004). Gazette Keep your magazines safe with a Keep your magazines EACH BINDER COSTS PACKAGE (FOR ORDERS OF BETWEEN FIVE AND TEN (FOR ORDERS PACKAGE OF RATE BINDERS, A SPECIAL POSTAGE To order your magazine binder, please fill in the form. order your magazine binder, To Regulations 2008 Conditions and Road Safety) (Road Transport) (Working Number: Contents note: European Communities imple- cedures to facilitate the Council mentation of: (1) Regulation (EEC) 3821/85 on recording equipment in road transport, as amended by Council Regulation (EC) 2135/98 and Commission Regulation (EC) 1360/2002 and Council Regulation (EC) Railway Infrastructure Capacity of Charges for the and the Levying Infrastructureuse of Railway and Regulations Safety Certification) 2004 date: Commencement 2008 , s128. Planning . [FL14486] , part V – , High Court, Mr Kelly J held that there would Clarke J held that he would Planning and Development 214,000. Retail Systems Technology Ltd Retail Systems Technology (defen- (plaintiff) v McGuire dant) 2/2/2007, 2005 Justice Kelly, no 2599 P Social and affordable housing Letters of compliance – legitimate expectation – limits of expectation – Act 2000 and Development (Amend- ment) Act 2002 Related Rights Act 2000 that its The plaintiff claimed copyright in an electronic product point-of-sale software been had known as ‘iTouch’ infringed by the defendants. and the Liability was conceded plaintiff elected for an assess- ment of damages rather than an account of profits. be judgment for the plaintiff against the first and second defendants in the total sum of € These proceedings concerned of the legal entitlement, if any, the defendant to alter the pre- viously existing practice of issu- ing what had come to be called ‘letters of compliance’ in rela- tion to the payment of financial contributions required under a planning permission. The issues concerning certificates of compliance were inextricably linked to the statutory regime in respect of social and afford- able housing. make a declaration to the effect that the defendant was obliged to make available certificates of compliance in respect of any unit within the development PLANNING AND LAW ENVIRONMENTAL certiorari certiorari , s5(2). Copyright and , High Court, Mr Illegal Immigrants McGovern J refused the Court, Mr Justice Hedigan, 1016 JR 18/5/2007, 2004 no [FL14484] Asylum sufficient Delay – whether good or – whether to extend time reasons minister complied with obliga- tions – Act 2000 (Trafficking) This was an application for leave to apply for judicial review for an order of quashing the decision of the second respondent to refuse the applicant refugee status and also for an order of quashing the decision of the first respondent to issue a deportation order in respect of the applicant. relief sought, holding that the applicant was out of time and there were no good or sufficient reasons for extending the period to enable the applicant chal- lenge the decision of the second respondent. The first respon- dent complied with his obliga- tions under the legislation and there was no basis for quashing the deportation order. I(H) v Minister for Justice, Equality and Law Reform (respondent) Justice McGovern, 19/6/ 2007, 2005 no 1035 JR [FL14500] Copyright Assessment of damages – innocent infringer defence – discovery of infringement – quantification of damages – convoyed goods princi- ple – damage to business generally – aggravated and exemplary damages – INTELLECTUAL PROPERTY Illegal . Seven , High , High [FL14498] , s5. Charleton J held that the Charleton J held that Hedigan J refused the appli- IMMIGRATION ous adverse effects from the ous adverse effects incident. and its nature of the attack worse effect on the victim were a sen- than usual and required of the tence at the upper end normal range. The sentence would be imposed under the Sex Offenders Act 2001 years would be imposed, with the last 18 months being sus- pended on an undertaking of a bond to keep the peace and to take a course of counselling. The convicted defendant would be registered as a sex offender. People (DPP) (prosecutor) v Drought (accused) Court, Mr Justice Charleton, 4/5/2007, bill no CC 50/ 2006 Asylum Delay – extension of time – perse- – cution in civil war – credibility of fair procedures whether breach or lack of jurisdiction – Immigrants (Trafficking) Act Immigrants (Trafficking) 2000 The applicant applied for leave con- to apply for judicial review, tending, among other things, that the tribunal applied the incorrect test of persecution in a civil war and erred in finding the applicant not credible. cant leave, holding that the motion was issued well outside the time limit and there were no good and substantial rea- sons to extend the time. There was no breach of fair proce- dures or lack of jurisdiction. B(J) (applicant) v Minister for Justice, Equality and Law Reform (respondent) , News fromIreland’s online legal awareness service Compiled by Bart Daly for FirstLaw update MAY 2008 MAY [FL14485] Hedigan J adjourned the CRIMINAL LAW COMMERCIAL LAW Practice and procedure Rape – sentencing principles – suspension of sentence – aims – Sex Offenders Act 2001. A jury convicted the accused of one count of rape of a student. The accused had not given evi- dence and had claimed in statements that the events had been consensual. He had com- mitted the offence when he was 18 years of age and had had no previous convictions. The victim had suffered seri- Compliance bank Interlocutory requiring relief with man- compliance to resume in date – application imminent nec- Commercial Court – whether essary for court to intervene at this stage. This was an application for an interlocutory order requiring the defendant to, in effect, resume compliance with a mandate given by two compa- nies to pay out on cheques and accept other orders for pay- ment drawn on the account of these two companies. matter for mention, holding that the making of an inter- locutory order at a stage where there was an application immi- nent in the Commercial Court might have the opposite effect to that of helping to resolve the very difficult situation in which the companies and the family found themselves. Sherlock (plaintiff) v Ulster Ltd (defendant) Bank Ireland High Court, Mr Justice Hedigan, 13/7/2007, 2007 no 5072 P firstlaw www.lawsociety.ie LAW SOCIETY GAZETTE

BRIEFING 62 63

BRIEFING , G MAY 2008 MAY 45 per hour) € [FL14487] www.lawsociety.ie Finnegan J held that High Court, Mr Justice Finnegan, 17/7/2007, 2005 638 Sp Council – cancel decision – onus of Council – cancel – beyond reason- proof – evidence – whether decision of able doubt – correct Medical Council Practitioners Act Medical 1978. lodged a The deceased had Medical complaint with the his med- Council in relation to Medical ical treatment. The Council asked a fitness-to- inquire practice committee to of the into the conduct appellant as to professional an misconduct, which formed mis- opinion that professional conduct existed. Extensive evidence was given as to the treatment. the decision of the Medical Council would be cancelled. Insufficient evidence or find- ings of fact were adduced to support the validity of the decision. The evidence had to establish findings of fact beyond all reasonable doubt. O’Connor (appellant) v Medical Council (respondent) 60 for one hour € This information is taken from awareness legal current FirstLaw’s service, published every day on the internet at www.firstlaw.ie. , High LAW SOCIETY GAZETTE 200 per day 45 for one hour if payment on the 60 for 2 hours € € spot and used before 4pm If invoiced € (if greater than 1 hour, (if greater than 1 hour, ■ partners in this initiative The Law Society’s are GlobalAirNet International Ltd. ■ ■ ■ was an extra fac- European Convention on would be asked to make factual would be asked and the proba- determinations (3) that the delay ble trial date; and inex- was both inordinate that where (a) the cusable; (4) for inordinate responsibility rested and inexcusable delay (b) primarily with the plaintiff, prejudice there was presumed (c) the of a moderate nature, were of issues to be determined a substantial commercial leading nature, (d) the actions were to the delay involved (e) deliberate and conscious, trial had the prospects of a fair (f) the been undermined, and plaintiff had failed after a late start to advance the proceed- the balance ings expeditiously, of justice favoured the dis- missal of the proceedings; (5) that the Human Rights tor to be added into considera- tion, subject to the application of existing Irish law and jurisprudence. Comcast International (plain- tiff) v Minister for Public Enterprise (defendant) Court, Mr Justice Gilligan, 13/6/2007, 2001 no 9223 P [FL14542] Professional negligence – Medical Practice and procedure TORT Mr Justice Gilligan dis- Mr Justice Gilligan inherent jurisdiction of the inherent jurisdiction grounds of delay court on the prosecution and in and want of of justice. The the interest submitted, among plaintiffs as a reason for the other things, that they were the fact delay, of the awaiting the outcome Moriarty inquiries in the before proceeding Tribunal with the High Court action. claims as missed the plaintiffs’ against the state defendants, holding (1) that the inquisitori- Moriarty al inquiry before the could have no bearing Tribunal on the outcome of the within proceedings in the High Court and failed to excuse the delay; (2) that the factors to be con- sidered in exercising the inher- ent jurisdiction of the court to dismiss were (a) whether the defendant contributed to the lapse of time, (b) the nature of the claims, (c) the probable issues to be determined, in par- ticular whether there would be factual issues or only legal issues, (d) the nature of the principal evidence, in particu- lar whether there would be oral evidence, (e) the availability of relevant witnesses, (f) the length of the lapse of time, and in particular the length of time between the acts or omissions in relation to which the court , TEL: 01 668 1806

P [FL14499]

PRACTICE AND PROCEDURE CONSULTATION ROOM HIRE RATES ROOM HIRE CONSULTATION Delay of of prosecution – interest Want justice – whether plaintiffs justi- fied in delaying proceedings – whether balance of justice in favour or against matter proceed- ing – whether proceedings should be dismissed. The plaintiffs brought proceed- ings alleging corruption, mis- feasance in public office, fraud, and deceit against the state defendants in connection with the 1995 decision to award a mobile phone licence to the other defendants in preference to the plaintiffs’ application. The state defendants brought a motion seeking to have the plaintiffs’ claims against them dismissed pursuant to the High Court, Mr Justice High Court, Mr 2006 no Clarke, 26/4/2007, 5574 unless the defendant had rea- unless the for believing sonable grounds of such a certifi- that the grant facilitate a sale that cate would the defendant of would deprive to obtain the the opportunity units in benefit of obtaining part V. the development under Glenkerrin (plaintiff) Homes Rathdown v Dun Laoghaire County Council (defendant) , 27 Nov- C ember 2007. In February 2005, a social welfare board in Sweden ordered the taking into care of two children who were living in that town, with a view to placing them with a foster Both the children have family. Finnish nationality and the older child also has Swedish The following nationality. month, the mother of the two children, Mrs C, took up resi- dence in Finland. An adminis- trative court confirmed the decision of the social welfare board in Sweden, and an appeal taken by C against the decision was dismissed. The Swedish police asked their Finnish coun- terparts to assist them in the that the jobs or conditions of that the jobs or conditions were not employment at issue serious jeopardised or under a serious threat. If there was threat, it would then have to be ascertained whether the collec- tive action is suitable for the achievement of the objective pursued and does not go beyond what is necessary to achieve that objective. The national court will have to under the examine whether, national rules and collective the FSU did not agreement law, have other means at its disposal that were less restrictive of free- dom of establishment in order to bring the collective negotia- tions entered into with Viking to a successful conclusion and whether that trade union had exhausted those means before initiating such action. Case C-435/06, FAMILY LAW FAMILY of which are liable to deter it of which are liable to freedom. from exercising that The establishment provisions private confer rights on a undertaking, which can be relied on against a trade union negotiating about conditions of employment and the pay of workers. The conditions laid down for registration of vessels should not form an obstacle to freedom of establishment. Collective action, such as that envisaged by the FSU, has the exer- effect of making Viking’s cise of its right to freedom of establishment less attractive or pointless. The threatened action of the FSU prevents both sub- and its Estonian Viking sidiary from enjoying the same treatment in Estonia as other economic operators established there. Collective action taken in order to implement the ITF’s policy of combating the use of flags of convenience must be considered to be at least liable exercise of its to restrict Viking’s right of freedom of establish- ment. Such a restriction can only be accepted if it pursues a legitimate aim, such as the pro- tection of workers. It is for the national court to determine whether the objectives pursued by the FSU and the ITF by means of the collective action that they initiated concerned the protection of workers. The objective of the FSU was to protect the jobs and conditions of employment of the members of the union likely to be adversely affected by the reflag- this ging of the ship. However, objective would not be regarded as tenable if it were established in Estonia, Rosella and the conclusion of a collective agreement under which, even if the ship were contin- would reflagged, Viking ue to comply with Finnish labour law and would not lay off crew members. After Estonia brought joined the EU, Viking proceedings in Britain, where the ITF has its seat. Viking requested that the ITF with- draw the circular and that the FSU be ordered not to infringe its right of establishment with regard to the reflagging of the ship. The Court of Appeal referred a number of questions to the ECJ on the application of rules on freedom of establish- ment and free movement to the facts of the case. The ECJ con- firmed that the treaty rules on establishment apply to collec- tion action initiated by a trade union against an undertaking in order to induce it to enter into a collective agreement, the terms which would enable Viking to Viking which would enable crew at a employ an Estonian than that lower rate of pay applicable in Finland. In following a the ITF, November, request from the FSU, sent a circular to its affiliates requiring them to refrain from entering into negotiations with Viking, with the threat of sanctions if This pre- they failed to comply. vented the Estonian trade unions from entering into The negotiations with Viking. FSU laid down conditions on the renewal of the manning and agreement with Viking announced its intention to strike. It required an increase in the number of the crew on the Rosella to reflag the , a MAY 2008 MAY News fromthe EU and International Affairs Committee Director Law Society of Ireland of Education, Edited by TP Kennedy, legal Rosella (44/2001) International was operating at a eur , 11 December 2007. [2008] UKHL 11. The Rosella EMPLOYMENT CONTRACT Recent developments in European developments Recent law www.lawsociety.ie loss. In October 2003, Viking notified the FSU of its intention Scottish & Newcastle v Othon Scottish & Newcastle Galanos case concerned a contract for the sale of goods. The contract was characterised as a contract FOB (free on board). The invoices referred to Cyprus as The ques- the place of delivery. tion considered was the inter- pretation of article 5(1)(b) of the Brussels I Regulation Case C-438/05, Federation & Workers’ Transport v Union The Finnish Seamen’s Line ABP & Oü Viking Viking Line Eesti Line is a Finnish ferry Viking company that owns the ferry that sails between Finland and Estonia, flying the Finnish flag. Its crew are members of Union the Finnish Seamen’s (FSU), which is affiliated to the International Transport Federation (ITF). Workers’ The relating to contracts for the sale of goods or the supply of servic- es. This provides that the courts of the place of performance of the contract have jurisdiction. In the case of contracts for the sale of goods, this is deemed to be where the goods have been or are to be delivered. The House of Lords held that this jurisdiction was England, as possession, title and risk had passed to the seller in England the law gov- under English law, erning the contract. LAW SOCIETY GAZETTE

BRIEFING 64 BRIEFING 65 , 29 . Productores de Productores MAY 2008 MAY www.lawsociety.ie January 2008. Promusicae is a Spanish non-profit-making organisation of producers and publishers of musical and audiovisual records. It applied to the Spanish courts for an should order that Telefónica disclose the identities and phys- ical addresses of certain persons to whom it provided internet access services, whose IP address and date and time of ECJ considered the special ECJ considered rules relating to jurisdictional are contained in insurance that 14. Article 9 allows articles 8 to to be sued in the for an insurer where it is domi- member state is ciled or where the plaintiff is domiciled if the action brought by the policyholder, the insured or a beneficiary. liabil- Article 11(2), concerning back to ity insurance, refers actions article 9 in the case of party brought by the injured The directly against the insurer. a widen- reference back leads to article 9 ing of the scope of the rule to categories of plaintiff the other than the policyholder, insured or the beneficiary of the insurance contract. Thus, the reference adds injured parties to the list of plaintiffs contained in article 9(1)(b). These provi- sions are designed to give more favourable protection to the weaker party in a dispute than the general rules of jurisdiction. deny the injured party the To right to bring a case in the courts of his own domicile would deprive him of the same protection as that afforded by the regulation to other parties regarded as weaker in disputes relating to insurance. This would be contrary to the spirit of the regulation, one of the aims of which was to strengthen such protection relative to the Brussels Convention Case C-276/06, Música de España (Promusicae) v de España SAU Telefónica INTELLECTUAL PROPERTY FBTO LAW SOCIETY GAZETTE , 13 December 2007. sory. Those conditions are sat- Those conditions are sory. case. The legisla- isfied in this act of a public tion is the insurers The fact that authority. to cover any per- are required insurance means son requesting insur- that the private medical ance services are compulsory and universal. The commission consider was thus entitled to the pay- that the imposition of to a serv- ment scheme related interest ice of general economic that mission. The court found in the commission was correct finding that risk equalisation insurers was necessary where are required to cover any per- son at the same price and inde- pendently of the individual risk in order to ensure the cross- subsidy of premiums between the generations to permit each such insurer to bear only the burdens associated with the average market risk profile. In addition, the system seeks only to compensate insurers for the financial consequences arising from the insurance obligations, which prohibit them from set- ting premiums according to the risk insured and from rejecting the ‘bad’ risks. Case C-436/06, Schadeverzekeringen NV v Jack Odenbreit Jack Odenbreit is domiciled in Germany and was injured in a road traffic accident in the Netherlands. The other party to the accident was insured by FBTO. Mr Odenbreit brought proceedings in the German courts against FBTO. FBTO contested the jurisdiction of the German courts and the case reached the Federal Court of Justice. It referred the matter to the ECJ, asking whether article 11(2) of Regulation 44/2001 means that an injured party can bring an action against an insurer in the courts of the member state where the injured party is domiciled, provided that such a direct action is per- mitted and the insurer is domi- ciled in a member state. The and 1996, the Voluntary Health Voluntary and 1996, the (VHI) was the Insurance Board on the private only operator market in health insurance 1994 and Ireland. Between market was liber- 1996, this 1997, alised and, on 1 January Ireland commenced BUPA the VHI’s operations. It is now The legisla- main competitor. competi- tion that allowed for for tion in the market provided a risk the establishment of adminis- equalisation system – the tered by a state body Health Insurance Authority. for a levy This system provides to be paid by insurers with a risk profile below the average market risk profile and for a corresponding payment to insurers with a risk profile higher than the average. The system specifies different thresholds at which the pay- ments may be activated. At should transfer present, BUPA funds to VHI under the system. In 2003, Ireland notified the system to the commission, in accordance with the commis- rules on state aid. The sion’s commission decided not to raise objections to it. BUPA brought an action before the CFI seeking annulment of that decision. The CFI dismissed the action. The court noted that member states have wide discretion as to the definition of services of general economic interest, particularly in the area of health, which falls almost exclusively within their compe- tence. The control that the EC institutions are authorised to exercise is limited to ascertain- ing whether there is a manifest error of assessment. However, where a member state invokes the existence and the need for the protection of a special eco- nomic interest, certain mini- mum criteria must be satisfied. be an that must In particular, action of a public authority entrusting the operations in question with a special general economic interest mission that must be universal and compul- , 12 British United INSURANCE Case T-289/03, Case T-289/03, Provident Association Ltd (BUPA) and Others v Commission of the European Communities enforcement of that decision. enforcement police agreed to The Finnish Mrs C challenged assist, and in the Finnish that decision matter was courts. The to the Supreme appealed which Administrative Court, considered that an interpreta- tion of the scope of Regulation for it 2201/2003 was necessary Decisions to decide the dispute. care and on the taking into are gov- placement of children Finland. erned by public law in from Thus, it sought guidance deci- the ECJ on whether such definition sions fell within the of ‘civil matters’ in the regula- tion. In Finland, child protec- tion requires the adoption of not just one decision, but a whole series of decisions. The court asked for guidance on whether the regulation covers both the taking into care and the placement of children, or solely the placement decision. The ECJ indicated that, while taking a child into care does not feature expressly among the matters that, according to arti- cle 1(2) of the regulation, relate that to parental responsibility, does not exclude a decision to take a child into care from the scope of the regulation. The court then turned to the inter- pretation of ‘civil matters’. It held that if decisions on the tak- ing into care and placement of a child, which in some states are were governed by public law, for that reason alone to be excluded from the scope of the regulation, the very purpose of mutual recognition and enforcement of decisions in matters of parental responsibil- ity would be compromised. The ECJ held that such deci- sions are covered by the term ‘civil matters’. February 2008. Between 1957 G tion of the application, Pages tion of the the registra- Jaunes SA opposed refused the regis- tion. OHIM in 2006 the Board tration and this ruling. It of Appeal upheld the relevant goods said that was the were identical and there in likelihood of confusion applied France. The trademark as the for could be perceived paper- internet version of the the based directory bearing JAUNES’ trade- ‘LES PAGES consider mark. Consumers may to come the goods in question from the same undertaking. that The applicant contested decision before the CFI. The CFI found that that the marks The in question are similar. Board of Appeal was fully enti- tled to find that the similarity between the marks was striking, both at the visual and aural lev- els and at the conceptual level. The court held that there was the likelihood of confusion and, on that basis, upheld the deci- sion of the Board of Appeal. Xentral LLC v , 13 December 2007. In directives on intellectual prop- directives on protection of per- erty and the member states must sonal data, balance to be stuck allow a fair various fundamen- between the by the EC tal rights protected When implement- legal order. ing the measures transposing those directives, the authorities states and courts of member their must not only interpret con- national law in a manner but sistent with the directives, not rely also ensure that they do of them on an interpretation with that would be in conflict rights or those fundamental with other general principles of such as the principle of EC law, proportionality. Case T-134/06, OHIM 2000, the applicant sought to register the word sign ‘PAGES- JAUNES.COM’ as an EC trademark for various goods – periodicals and printed matter, directories. Following publica- directives should be interpreted directives should the EC legisla- as expressing to exclude intention not ture’s scope the protection from their to property or situ- of the right authors seeks to ations in which in civil obtain that protection states are proceedings. Member laying not precluded from disclose down an obligation to of personal data in the context civil proceedings. However, to lay they are not compelled There down such an obligation. on is equally no obligation down an member states to lay per- obligation to communicate sonal data in the context of civil proceedings to ensure effective protection of copyright. This reference raises the question of the need to reconcile the requirements of the protection of different fundamental rights, namely the right to respect for private life on the one hand and the rights to protection of property and effective remedy In transposing on the other. MAY 2008 MAY connection were known. The connection argued that these applicant were using file individuals to pro- exchange programmes to recordings in vide access members held the which their sought exploitation rights. It disclosure of this information civil pro- so that it could bring persons. ceedings against these argued that commu- Telefónica was only nication of this data investi- authorised in a criminal of gation or for the purpose security safeguarding public The and national defence. the ECJ Spanish court asked whether EC law requires mem- ber states to lay down an obli- gation to communicate person- al data in the context of civil proceedings to ensure effective protection of copyright. The ECJ noted that the directives on the protection of personal data permitted exceptions such as measures necessary for the protection of the rights and freedoms of others. These www.lawsociety.ie LAW SOCIETY GAZETTE

BRIEFING 66 PROFESSIONAL NOTICES LAW SOCIETY GAZETTE MAY 2008

LOST LAND CERTIFICATES LAW SOCIETY Registration of Deeds and Title Acts Gazette 1964 and 2006 An application has been received from the registered owners men- PROFESSIONAL NOTICE RATES tioned in the schedule hereto for an order dispensing with the land certifi- RATES IN THE PROFESSIONAL NOTICE SECTION ARE AS FOLLOWS: cate issued in respect of the lands specified in the schedule, which orig- • Lost land certificates – €138.50 (incl VAT at 21%) inal land certificate is stated to have • Wills – €138.50 (incl VAT at 21%) been lost or inadvertently destroyed. • Title deeds – €138.50 per deed (incl VAT at 21%) The land certificate will be dispensed • Employment/miscellaneous – €138.50 (incl VAT at 21%) with unless notification is received in the registry within 28 days from the These rates will apply from Jan/Feb 2008 to Dec 2008 date of publication of this notice that the original certificate is in existence HIGHLIGHT YOUR NOTICE BY PUTTING A BOX AROUND IT – €33 EXTRA and in the custody of some person other than the registered owner. Any ALL NOTICES MUST BE PAID FOR PRIOR TO PUBLICATION. CHEQUES SHOULD BE such notification should state the grounds on which the certificate is MADE PAYABLE TO LAW SOCIETY OF IRELAND. Deadline for June Gazette: being held. 21 May 2008. For further information, contact Catherine Kearney or Valerie Farrell on Property Registration Authority, tel: 01 672 4828 (fax: 01 672 4877) Chancery Street, Dublin 7 (published 2 May 2008) Shanagary North and barony of lands: no 114 Collins Avenue West, townland of Baunoges and barony Regd owner: Padraic Bruen and Imokilly in the county of Cork, (b) Finglas, Dublin 9; Co Dublin of Tiaquin; area: 0.4046 hectares; Matthew Mulvey; folio: 9327F; a plot of ground situate in the Regd owner: Padraig Judge and Eddie Co Galway lands: Staplestown Road, Carlow townland of Ballycotton and Doyle; folio: 108091F; lands: no 11 Regd owner: Hermann Scho; folio: and barony of Carlow; Co Carlow barony of Imokilly in the county of Westbourne Green, Westbourne 44799; lands: townland of Kilkieran Regd owner: Peter Carroll Cork; Co Cork Manor, Clondalkin, Dublin 22; Co and barony of Ballynahinch; area: (deceased); folio: 6051F; lands: Regd owner: Catherine Walsh Dublin 0.3010 hectares; Co Galway Knocklishen Beg and barony of (deceased); folio: 37301; lands: plot Regd owner: Siobhan Reid; folio: Regd owner: Thomas Coyne and Rathvilly; Co Carlow of ground situate in the townland of DN60862F; lands: property situate Bernadette Coyne; folio: 18085F; Regd owner: Hugh Kevin Reilly, Ballymagooly and barony of in the townland of Shanganagh and lands: townland of Ballynahallia Carrigan, Co Cavan; folio: 9828; Fermoy; Co Cork barony of Rathdown, known as no and barony of Moycullen; area: lands: Carrigan; Co Cavan Regd owner: Biddy Barr, Magher- 26 Dorney Court, Shankill, Co 0.555 acres; Co Galway Regd owner: Mary Garry; folio: aclogher, Bunbeg, Co Donegal; Dublin; Co Dublin Regd owner: Bryan Kelly and Alan 1350; lands: townland of folio: 3693F; lands: Magher- Regd owner: Siobhan Reid; folio: Kelly; folio: 39978F; lands: situate Inishmacowney and barony of aclogher; Co Donegal DN74761L; lands: property situate in the townland of Gannoughs and Clonderalaw, Co Clare; area: Regd owner: Elizabeth Fusco, in the townland of Shanganagh and barony of Ballynahinch and county 5.6479 hectares; Co Clare Tirhomin, Milford, Co Donegal; barony of Rathdown, Co Dublin; of Galway; Co Galway Regd owner: Frank J Slattery and folio: 11464F; lands: Tirhomin, Co Co Dublin Regd owner: James Cox; folio: 8585; Mary Slattery; folio: 4770F; lands: Donegal; Co Donegal Regd owner: Siobhan Reid; folio: lands: townland of Cummeen townland of Ballyellery and Regd owner: John James McGuinness, DN74756L; lands: the property Upper and barony of Glanarought; barony of Corcomroe; area: Roshine, Killybegs, Co Donegal; known as 26 Dorney Court, Co Kerry 11.2040 hectares; Co Clare folio: 23071; lands: Roshin, Co Shankill, Co Dublin; Co Dublin Regd owner: Denis Lucey; folio: 8168; Regd owner: Shannon Free Airport Donegal; Co Donegal Regd owner: Patrick V Smyth; folio: lands: townland of Gortnanooran Development Company Limited; Regd owner: Martin McLaughlin, DN30290F; lands: property known and barony of Corkaguiny; Co folio: 5382; lands: townland of Main Street, Kilcar, Co Donegal; as 20 Glasnamana Road, situate on Kerry Ballycasey More and barony of folio: 19812F; lands: Kilcasey; Co the west of Ballygall Road; Co Regd owner: Michael Ashe and Bunratty Lower; area: 10.7848 Donegal Dublin Catherine Ashe, 4 Oldtown, Sallins hectares; Co Clare Regd owner: Matthew Stevenson, Regd owner: Sean Harte and Maria Road, Naas, Co Kildare, folio: Regd owner: William Cronin Ballygay, Milford, Co Donegal; Patricia Harte; folio: DN89044F; 20162F; lands: townland of (deceased) and Marie Cronin; folio: 7710; lands: Ballylin; Co lands: property known as 7 Monread South, known as 4 folio: 45474F; lands: plot of ground Donegal Woodview Grove, Blanchardstown, Oldtown Court, Naas, Co Kildare, situate in the townland of Fergus Regd owner: Margaret Carton and situate to the south of Clonsilla in the barony of Naas North in the and barony of Muskerry East in the Cathleen Oldham; folio: Road in the town of electoral division of Naas Urban, county of Cork; Co Cork DN12619; lands: property situate Blanchardstown; Co Dublin Co Kildare; Co Kildare Regd owner: David Richards; folio: in the townland of Westmanstown Regd owner: James Beckett; folio: Regd owner: Kathleen Cody and Paul 55321; lands: plot of ground situate (ED Rathcoole) in the barony of 46885; lands: townland of Ballygar Duggan, 7 Butterstream Lawn, in the townland of Castleredmond Newcastle; Co Dublin and barony of Killian; area: 22 Clane, Co Kildare; folio: 25413F; and barony of Imokilly in the coun- Regd owner: Denis Feeley and Ellen perches; Co Galway lands: townland of Crockaun ty of Cork; Co Cork Ruane; folio: DN16435L; lands: Regd owner: Donal Hickey and Commons and barony of Clane; Regd owner: (a) CK22829F Liam property situate in the townland of Margaret Hickey; folio: 34599F; Co Kildare Dunne (deceased) and (b) CK432 Sheepmoor and barony of lands: townland of Knocknacarragh Regd owner: Tom Whelan and Angela 64F Liam Dunne (deceased) and Castleknock, situate to the east of and barony of Galway; area: 0.02 Whelan of Tyrrellstown, Athy, Co Rosalie Dunne; folios: (a) 22829F Coolmine Road in the town of hectares approximately; Co Kildare; folio: 6065; lands: town- and (b) 43264F; lands: (a) a plot of Blanchardstown; Co Dublin Galway land of Tyrrellstown and barony of ground situate in the townland of Regd owner: Thomas Finn and Regd owner: Michael McGann Narragh and Reban West; Co (1), (2), (3) Ballylongane and (4) Suphaphorn Finn; folio: 2764L; (deceased); folio: 42820; lands: Kildare

www.lawsociety.ie 67 late late of late of late of will be pleased to edge of a will made by the above- edge of a will who died on 14 named deceased, please contact Cora March 2008, McEntee & Partners, Higgins, Regan Co Street, Trim, Solicitors, High 943 1202, fax: 046 943 Meath; tel: 046 chiggins@reganmcen- 1932, email: tee.ie McGann, Patricia (deceased), Finglas, 22 Ratoath Drive, Ratoath, 12 March Dublin 11, who died on any person having 2007. Would by the knowledge of any will made contact above-named deceased please Solicitors, 2 Bowler Geraghty & Co, Dublin 1, Lower Ormond Quay, under reference ‘KOB’ Quail, Christopher (deceased), Cappanahanagh, Murroe, Co Limerick, who died on 24 November having any person 2007. Would knowledge of a will made by the above-named deceased please contact no 119 Patrick J D’Alton, solicitor, O’Connell Street, Limerick; tel: 061 417 2886 Sheridan, Donald JR (deceased), Road, late of St Germans, Vico any person Co Dublin. Would Dalkey, having knowledge of a will made by the above-named deceased, who died on 9 February 2008, please contact Solicitors, Wolfe Coonan Cawley, Centre, House, Naas Town Tone Naas, Co Kildare; tel: 045 899 571, fax: 045 899 572, email: office@coo- nancawley.ie Patrick (deceased), Timothy, who Corgarva, Creggs, Co Galway, died on 19 December 1984. Would any person having knowledge of a will made by the above-named deceased please contact John O’Leary & Co, Solicitors, Millennium House, Main tel: 01 427 Dublin 24; Street, Tallaght, 1000, fax: 01 427 1001, email: info @johnolearysolicitors.com London solicitors advise on UK matters and undertake handle probate, liti- agency work. We gation, property and company/com- mercial. Parfitt Cresswell, 567/569 Fulham Road, London SW6 1EU; of Castletown, Kilberry, Navan, Co of Castletown, Kilberry, 1989 at Meath, who died on 16 March Hospital, Navan, Co Our Lady’s having any person Meath. Would knowledge of a will made by the above-named deceased please contact Oliver Shanley & Co, Solicitors, 62-63 Academy Street, Navan, Co Meath; tel: 046 909 3200, fax: 046 902 9937 Rainsford, Sara (deceased), MISCELLANEOUS late late of late of 10 Co Wicklow late of Bond late of Ballywilliam, Regd owner: Damien Kiernan, 14 Regd owner: Co Co Co Grattan Park, Greystones, Co Grattan Park, folio: 10203; lands: town- Wicklow; Lower and land of Kindlestown barony of Rathdown; WILLS Burke, William (deceased), Fairview, 114 Shelmartin Avenue, 2008. Dublin 3, who died on 1 January knowledge any person having Would of a will made by the above-named is holding deceased, or if any firm O’Sullivan same, please contact Paul 63 Floor, & Co, Solicitors, Upper Co Deerpark Road, Mount Merrion, fax: 01 278 Dublin; tel: 01 278 4050, 4052, email: [email protected] other- Cunnea, Andy (deceased), Quinn, wise known as Andrew Carrick, Co Donegal. of Meenaneary, any person having knowledge Would of a will executed by the above-named deceased, who died on 10 March 2008, please contact O’Donnell McKenna, Place, Donegal Solicitors, Waterloo Co Donegal; tel: 074 974 0444, Town, fax: 074 974 0455 Farrell, Peader (deceased), other- wise Peter Joseph, House, Derrymullen, Robertstown, Co Kildare, haulage contractor (deceased), who died on 23 December having any person 2007. Would knowledge of a will made by the above-mentioned deceased please & Price, Solicitors, contact Wilkinson South Main Street, Naas, Co Kildare; tel: 045 897 551, fax: 045 876 478, email: [email protected] Gillan, William Stuart (deceased), late of 64 Ringsend Park, Ringsend, Dublin 4, who died on 30 January having any person 2008. Would knowledge of a will made by the above-named deceased, or if any firm is holding same, please contact Solicitors, 20 Thomas P O’Reilly, Sandymount Green, Dublin 4; tel: 01 260 2099, fax: 01 260 2195, email: [email protected] Leonard, Gerard (otherwise Jerry) (deceased), any per- Would Kilcormac, Co Offaly. son having knowledge of a will made by the above-named deceased, who died on 5 July 2007, please contact Messrs Donal Farrelly & Co, House, High Solicitors, Tullagh Co Offaly; tel: 057 Street, Tullamore, 932 1324, fax: 057 932 1328 Meehan, Mary Elizabeth (other- wise Maura) (deceased), Annaville Grove, Dundrum, Dublin any person having knowl- 14. Would Co Tipperary Co Tipperary Co Wexford Co Tipperary Co Waterford Co Roscommon Co Tipperary Co Waterford Co Waterford Co Waterford Co Sligo 8697; lands: plot of ground situate in the townland of Kingsmeadow and barony of Middlethird in the county of Waterford; Waterford 4217L; lands: plot of ground situate to the south of Scotch Quay in the Without, parish of St John’s Division A, and in the city of Waterford; Flynn; folio: 20078F; lands: plot of ground known as no 13 Park situate in the Williamstown parish of Ballynakill, Division A1, and in the city and county of Waterford; 254F; lands: Drumgold, known as Clonhaston, and barony of Ballaghkeen South, Co Wexford; Co Wexford 19374F; lands: Rossminogue and barony of Gorey; folio: 27984; lands: townland of folio: 27984; lands: townland Clonoulty Hill and barony of Kilnamanagh Lower; Tipperary O’Meara; folio: 28005F; lands: townland of Stonepark and barony of Ormond Lower; lands: plot of ground situate in the townland of Derrinlaur Lower and barony of Upperthird in the county of Waterford; (deceased); folio: 3423; lands: plot of ground situate in the townland of Ballyroe and barony of Coshmore and Coshbride in the county of Waterford; 2783; lands: townland of Doonfore 2783; lands: townland Carbury; area: 3.288 and barony of hectares; Cashel 35047F; lands: townland of and barony of Middlethird; of 3405; lands: townland of Bawnbrack and barony Clanwilliam; folio: 39914; lands: townland of Shesheraghkeale and barony of Ormond Lower; McDermott (deceased); folio: McDermott townland of 33341; lands: and barony of Strokestown Roscommon; Tipperary of 24695; lands: townland and Cormackstown/Beakstown barony of Eliogarty; Regd owner: James Whelan; folio: Regd owner: Desmond Purcell; folio: and Amanda Regd owner: Paul Walsh Regd owner: John Murphy; folio: Regd owner: Patrick Kenny; folio: Regd owner: Geraldine O’Dwyer; Regd owner: Geraldine Regd owner: Gerard O’Meara and Ina Regd owner: Helen Askins; folio: 2838; Regd owner: Thomas Neville Regd owner: Michael Leyden; folio: Regd owner: folio: Regd owner: Keith Barry; folio: Regd owner: John Hourigan; Regd owner: Sean and Mary Minogue; Regd owner: Annie Maria Regd owner: folio: Regd owner: James Hennessy; Co Co Co MAY 2008 MAY Co Kilkenny Co Offaly Co Offaly Co Limerick Co Roscommon Co Mayo Co Roscommon Co Limerick Co Meath Co Meath Co Limerick Co Kilkenny Co Laois 11810F; lands: townland of Curry and barony of Athlone South; area: 5.767 hectares; McCrann; folio: 13990; lands: townland of Sheepwalk and Runnabehy and barony of Frenchpark, Co Roscommon; Roscommon folio: 12100; lands: Fenter and barony of Geashill; lands: Ballycollin and barony of Co Offaly; Ballyboy, 2229F; lands: townland of Loughlinn Demesne and barony of Frenchpark; Anne M Treanor, Drumbart, Anne M Treanor, Co Monaghan; folios: Tydavnet, 2049 and 2054; lands: Drumfurrer; Co Monaghan Meath Bourne Avenue, Ashbourne, Co Bourne Avenue, Meath; folio: 1471L; lands: Killegland; Johnstown, Enfield, Co Meath; folio: 23033; lands: Johnstown; Birdhill, Drumconrath, Co Meath; folio: 987F; lands: Birdhill; (2) Henry Barrett and Kathleen Barrett, Drumconrath, Navan, Co Meath; folio: 1834F; lands: Rathcoon; folio: 32727; lands: townland of Sraheen and barony of Burrishoole; 27847; lands: townland of 27847; lands: townland of Mongfune and barony Owneybeg; Moyne, Co Drumhaldry, Longford; folio: 389; lands: Lettergullion, Co Longford; Longford 19114F; lands: townland of 19114F; lands: townland of Mountblakeney and barony Coshma; of folio: 6078F; lands: townland of Gortnacreha Lower and barony Connello Upper; 9882; lands: Listorlin and barony of 9882; lands: Listorlin Iverk; lands: Killeen or folio: 16442F; East Killeenlynagh (Maryborough By) and barony of Maryborough East; 17372; lands: Donaguile and 17372; lands: barony of Fassadinin; Regd owner: Mae Keane; folio: Regd owner: Patrick Joseph Regd owner: Brendan Cosgrove; Regd owner: Anne Scully; folio: 9026; Regd owner: Mildred Beirne; folio: Regd owner: Sean G Treanor and Regd owner: Sean G Treanor Regd owner: Elizabeth Burke, 57 Regd owner: Joseph Sheridan, Regd owner: (1) Henry Barrett, Regd owner: Kathleen Sheridan; Regd owner: Daniel Kirby; folio: Regd owner: Daniel Kirby; Regd owner: Peter Reilly, Regd owner: Elsie Moloney; folio: Regd owner: Elsie Moloney; J Ambrose; Regd owner: William Regd owner: Bridget Cleere; folio: Regd owner: John Phelan (deceased); Regd owner: Regd owner: Sophie Shirley; folio: Regd owner: www.lawsociety.ie LAW SOCIETY GAZETTE

PROFESSIONAL NOTICES 68 PROFESSIONAL NOTICES LAW SOCIETY GAZETTE MAY 2008

DX 83800 Fulham Broadway; tel: and those the property known as no 17 0044 2073 818311, fax: 0044 2073 Fairview Strand, in the parish of 814044, email: arobbins@parfitts. Clonturk, barony of Coolock and city co.uk of Dublin, held under an indenture of sublease dated 1 September 1964 English qualified solicitors – is your made between Kathleen Mary Agnes client buying or selling property in the Maguire of the one part and James UK or Northern Ireland? We hold Flynn of the other part for a term of 88 current practicing certificates and years from 25 July 1964, subject to the insurance in the three jurisdictions of yearly rent of £10 and subject to the Ireland, N Ireland and the UK. With covenants on the part of the lessee and large volumes of Irish clients buying conditions therein contained. property in the UK, we can act as Take notice that Mel Bates and agents or take matters on referral. Patricia Bates, being the persons cur- Contact Catherine Allison & Co, 6 rently entitled to the lessees’ interest Roden Place, Dundalk, Co Louth, at in the premises, intend to apply to the 042 932 0854 or [email protected] county registrar for the county of the city of Dublin for the acquisition of Seven-day publican’s licence for the freehold interest and all intermedi- sale. Contact: SF Hughes & Co, ate interests in the aforesaid premises, Solicitors, Castlebar Road, Westport, and any party asserting that they hold Co Mayo; tel: 098 28422 a superior interest in the aforesaid said premises (or any of them) are subject to the yearly rent of £40.0s.0d; premises (or any of them) are called called upon to furnish evidence of title and a lease dated 14 October 1758 Seven-day on-licence for sale. upon to furnish evidence of title to to the aforementioned premises to the made between John Congreve of the Please contact: Gearóid McGann, same to the below named within 21 below named within 21 days from the one part and John Hulings of the Sweeney McGann, Solicitors, 67 days from the date of this notice. date of this notice. other part for the term of 900 years O’Connell Street, Limerick; tel: 061 In default of any such notice being In default of any such notice being from 12 May 1790, subject to the year- 418 277, fax: 061 319 496, email: gmc- received, Mel Bates and Patricia Bates received, the said Colm Carroll ly rent of £3.0s.0d, should give notice [email protected] intend to proceed with the application intends to proceed with the applica- of their interest to the undersigned before the county registrar at the end tion before the county registrar at the solicitors. Thinking of retiring? Dublin north. of 21 days from the date of this notice end of 21 days from the date of this And take notice that the applicant, Shannons of Swords have acquired and will apply to the county registrar notice and will apply to the county Zella (Waterford) Limited, intends to adjoining premises. They now wish to for the county of the city of Dublin for registrar for the county of Dublin for submit an application to the county acquire a solicitor’s practice or take such directions as may be appropriate directions as may be appropriate on registrar for the county of Waterford over a retiring solicitor’s caseload/ on the basis that the person or persons the basis that the person or persons for the acquisition of the freehold clientele. Reply in confidence to beneficially entitled to the superior beneficially entitled to the superior interest in the aforesaid property, and Vincent Shannon at 01 840 1780 or interest including the freehold rever- interest including the freehold rever- any party asserting that they hold a [email protected] sion in the aforesaid premises are sion in each of the aforesaid premises superior interest in the said property is unknown or unascertained. are unknown or unascertained. called upon to furnish evidence of title James Shanley, born at Corgowan, Date: 2 May 2008 Date: 2 May 2008 to the said property to the below Strokestown, Co Roscommon, Signed: Ralph McMahon Solicitors (solic- Signed: Smith Foy & Partners (solicitors named within 21 days from the date of Republic of Ireland, on 26 October itors for the applicants), Suite 130-132 for the applicant), 59 Fitzwilliam Square, this notice. 1936. The above named or any person The Capel Building, Mary’s Abbey, Dublin 2 In default of any such notice being aware of his current whereabouts is Dublin 7 received, the said applicant, Zella requested to contact the under-named In the matter of the Landlord and (Waterford) Limited, intends to pro- solicitors. In the matter of the Landlord and Tenant (Ground Rents) Acts 1967- ceed with the application before the Date: 2 May 2008 Tenant Acts 1967-2005 and in the 2005 and in the matter of the county registrar at the end of 21 days Signed: Peter A Connellan & Co, Solici- matter of the Landlord and Tenant Landlord and Tenant (Ground Rents) from the date of this notice and will tors, Strokestown, Co Roscommon, Repub- (Ground Rents) (No 2) Act 1978 and (No 2) Act 1978 and in the matter of apply to the county registrar for the lic of Ireland; tel: (00353) 71 963 3009 in the matter of an application by the property known as Ferrybank county of Waterford for such direc- Colm Carroll Mills, North Wharf, Dock Road, tions as may be appropriate on the Take notice that any person having Ferrybank, in the city and county of basis that the person or persons bene- TITLE DEEDS interest in the freehold estate or any Waterford: an application by Zella ficially entitled to the superior interest intermediate interest in the following (Waterford) Limited including the freehold reversion are Title deed search re: 1 Churchyard property: all that the premises known Take notice that any person having an unknown or unascertained. Lane, Blackrock, Cork. Any solicitor as number 100/100A Parnell Street, interest in the freehold estate or any Date: 2 May 2008 holding/having knowledge of title formerly Great Britain Street, in the superior interest in part of the proper- Signed: BCM Hanby Wallace (solicitors deeds to the property at 1 Churchyard parish of St Thomas and city of ty known as all that Ferrybank Mills, for the applicant), 88 Harcourt Street, Lane, Blackrock, Cork, please contact: Dublin, held under a lease dated 7 North Wharf, Dock Road, Ferrybank, Dublin 2 John Sheehan, JW O’Donovan, August 1865, made between William in the city and county of Waterford, Solicitors, 53 South Mall, Cork; tel: Todd of the one part and Ellen Cleary held under one of the following leases, In the matter of the Landlord and 021 730 0200, email: jsheehan@ of the other part for a term of 868 namely a lease dated 18 August 1857 Tenant Acts 1967-2005 and in the jwod.ie years from 25 March 1865, subject to made between Thomas Samuel Grubb matter of the Landlord and Tenant the yearly rent of 22 pounds, ten of the one part and William Parle of (Ground Rents) (No 2) Act 1978 and In the matter of the Landlord and shillings sterling. the other part for the term of 300 in the matter of an application by Tenant Acts 1967-2005 and in the Take notice that Colm Carroll years from 25 March 1857, subject to O’Regan Brothers (Electrical) matter of the Landlord and Tenant intends to submit an application to the the yearly rent of £40.0s.0d; a lease Limited of 13 Fitton Street, in the (Ground Rents) (No 2) Act 1978: an county registrar for the county of dated 9 October 1854 made between city of Cork application by Mel Bates and Dublin for the acquisition of the free- Thomas Samuel Grubb of the one Take notice any person having inter- Patricia Bates hold interest in the aforesaid proper- part and Charles Smith and Henry est in the freehold estate of the fol- Any person having a freehold estate or ties, and any party asserting that they Penrose of the other part for the term lowing property: 26b and 26d any intermediate interest in all that hold a superior interest in the afore- of 300 years from 29 September 1854, Wellington Road, otherwise 5/6

www.lawsociety.ie 69 , sections 8 , and in par- Landlord and Landlord Landlord and Landlord Landlord and Tenant Landlord , sections 9 and 10: an applica- 2. Particulars of applicants’ lease: 2. Particulars Take notice that Basil Good, Take as more particularly delineated on the as more particularly thereto. map attached interest the applicants hold the lessee’s said lease in the said lands under the and made dated 14 December 1959 of the first between Frances Bohan the second part, Richard Belton of third part, part and John Quinn of the whereby the lands and hereditaments demised to as therein described were of 288 the lessee therein for a term 1959 years from the 14 December £18). (subject to a yearly rent of Date: 2 May 2008 (solicitors Conlon Solicitors Signed: Tom Leinster for the applicants), 14 South Dublin 2 Street, In the matter of the Acts 1967-2005 Tenant ticular the (Ground Rents) Act 1967 and 17, and the Tenant (Ground Rents) (No 2) Act Tenant 1978 tion by Basil Good, Charles Henry Brett and Christopher Bennett notice that any person having an Take interest in the freehold estate of the property at the rear of 33/35 Talbot Street, in the parish of St Thomas in the city of Dublin, being part of the property comprised in folios 141L and 77848L of the register of leaseholders, Co Dublin, and held under indenture of lease dated 11 February 1891 made between Robert Spencer and Edmund Spencer of the first part, Michael King of the second part and Joseph Downes of the third part for the term of 500 years from 1 July 1889 at the annual rent of £75. Charles Henry Brett and Christopher Bennett intend to submit an applica- tion to the county registrar for the city for all their Landlord and Landlord all that and those , not just qualified solicitors. EMPLOYMENT and in the matter of an appli- 1. Description of land to which 2. Particulars of applicants’ lease: 2. Particulars of applicants’ the applicants hold the lessee’s interest the applicants hold the lessee’s said lease in the said lands under the between dated 30 June 1956 and made part and Richard Bohan of the one other part, Robert Elliott Nixon of the whereby the lands and hereditaments demised to as therein described were of 300 the lessee therein for a term (less the years from 5 October 1955 last three days thereof). Date: 2 May 2008 Signed: Paul MacCormack (solicitor for the applicants), Coyle Kennedy McCormack Solicitors, Thomas Street, Co Monaghan Castleblayney, In the matter of the (Ground Rents) Act 1967- Tenant 1987 cation by Jimmy Conlon and Kathleen O’Neill: notice of inten- tion to acquire the fee simple notice that the applicants, being Take the persons entitled under the above mentioned acts, propose to purchase the fee simple in the lands described in paragraph no 1. this notice refers: the lands and premises now known as in the Crescent, Killiney, 9 Avondale county of Dublin, and as more partic- ularly described in an indenture of lease dated 14 December 1959 and made between Frances Bohan of the first part, Richard Belton of the sec- ond part and John Quinn of the third part, and therein described as site Crescent, number 21 Avondale Killiney Road, situate in the barony of Rathdown and county of Dublin, and number 20 Avondale Crescent, Avondale number 20 situate in the barony of Killiney Road, county of Dublin, and Rathdown and on the as more particularly delineated map attached thereto. Log onto the new expanded employment recruitment register on the members’ area of the Law Society website, www.lawsociety.ie, recruitment Murphy, or contact Trina at the Law Society’s administrator, Cork office, tel: 021 422 6203 or email: [email protected] For Law Society members to advertise FREE RECRUITMENT REGISTER Landlord and Landlord all that and those legal staff requirements and in the matter of an appli- In default of any such notice being In default of any such notice 1. Description of land to which received, the applicant, O’Regan received, the applicant, intends Brothers (Electrical) Limited, before to proceed with the application apply to the county registrar and will county of the county registrar for the be appro- Cork for directions as may person or priate on the basis that the persons beneficially entitled to the superior interest including the free- hold in each of the aforesaid premises are unknown or unascertained. between Margaret Coughlan and between Margaret Brothers (Electrical) O’Regan term of 83 years from 25 Limited for a stables, March 1965 in lands, the the rear of coach house and gardens at as no 26 the premises known of St Road, in the parish Wellington of Cork, Anne Shandon and city their title should provide evidence of to the below named. the lands and premises now known as in the Crescent, Killiney, 10 Avondale county of Dublin, and as more partic- ularly described in an indenture of lease dated 30 June 1956 and made between Richard Bohan of the one part and Robert Elliott Nixon of the other part and therein described as site Tenant (Ground Rents) Acts 1967- Tenant 1987 cation by Richard Power and Jytte Power: notice of intention to acquire the fee simple notice that the applicants, being Take the persons entitled under the above mentioned acts, propose to purchase the fee simple in the lands described in paragraph no 1. this notice refers: Date: 2 May 2008 Signed: Chris O’Shea, Solicitors, Wood- Co Cork Glanmire, view, In the matter of the LOCUM MAY 2008 MAY or seeking to employ a locum solicitor.

lessors. Contact Tel: 8096030 Tel: of ground rents

Valuation advice on advice Valuation Conor Ó Cléirigh & Co Conor Ó Cléirigh & Co purchase and disposal purchase and Appearances before the In particular, such person or per- In particular, both building lessees and both building lessees email: [email protected] For Law Society members seeking a position as a locum solicitor Log onto the new self-maintained locum recruitment register on the or members’ area of the Law Society website, www.lawsociety.ie, recruitment Murphy, contact Trina at the Law Society’s administrator, Cork office, tel: 021 422 6203 or email: [email protected] FREE County Registrar acting for County Registrar acting GROUND RENTS GROUND

RECRUITMENT REGISTER GROUND RENTS GROUND sons who are entitled to the interest of Margaret Coughlan, deceased, pur- suant to a lease of 25 March 1965 Belgrave Avenue, in the city of Cork. Belgrave Avenue, notice that O’Regan Brothers Take (Electrical) Limited intend to submit an application to the county registrar for the county of Cork for the acqui- sition of the freehold interest and all superior interests in the aforemen- and any party assert- tioned property, ing that they hold a superior interest in the aforesaid property are called upon to furnish evidence of title to the aforementioned premises to the below named. www.lawsociety.ie LAW SOCIETY GAZETTE

PROFESSIONAL NOTICES 70 PROFESSIONAL NOTICES LAW SOCIETY GAZETTE MAY 2008

of Dublin for the acquisition of the (Ground Rents) (No 2) Act 1978: renewable forever made 24 October tioned premises to the below named freehold interest in the aforesaid prop- acquisition of fee simple (section 4 1799, and made between Joshua Pimm within 21 days from the date of this erty, and any party or parties asserting of the said act of 1967) of the one part and Issac Gatchell of notice. that they hold a superior interest in To any person having interest in the the other part, are called upon to fur- In default of any such evidence the aforesaid property are called upon following property: all that piece or nish evidence of title to the aforemen- being adduced, Sean Dunne (other- to furnish evidence of title to the plot of ground heretofore built upon wise John Dunne) and Anne Dunne aforementioned property to the below by Issac Gatchell, situate, lying and intend to proceed with the application named within 21 days from the date of being in the town of Rathangan, NOTICE TO THOSE before the county registrar at the end this notice. barony of Offaly East and county of PLACING RECRUITMENT of 21 days from the date of this notice In default of any such notice being Kildare, together with the buildings ADVERTISEMENTS IN THE and will apply to the county registrar received, Basil Good, Charles Henry thereon and appurtenants thereto and for the county of Kildare at Naas Brett and Christopher Bennett intend all other premises comprised in and LAW SOCIETY GAZETTE Courthouse, Main St, Naas, Co to proceed with the application before demised by a lease for lives renewable Kildare, for directions as may be the county registrar at the end of 21 forever dated 24 October 1799 and Please note that, as and from the appropriate on the basis that the per- days from the date of this notice and made between Joshua Pimm of the August/September 2006 issue of son or persons beneficially entitled to will apply to the county registrar for one part and Issac Gatchell of the the Law Society Gazette, the superior interests including the fee the city of Dublin for directions as other part, which said premises are NO recruitment advertisements simple in each of the aforesaid premis- may be appropriate on the basis that subject to a perpetual fee farm rent of will be published that include es are unknown or unascertained. the person or persons beneficially £14.14s.0d, since adjusted to Date: 2 May 2008 entitled to the superior interest £14.11s.6d per annum. references to years of post- Signed: Burns Nowlan (solicitors for the including the freehold reversion in the Take notice that John Dunne (oth- qualification experience (PQE). applicants), 31 Main Street, Newbridge, aforesaid property are unknown or erwise Sean Dunne) and Anne Dunne Co Kildare unascertained. hereby intend to submit an application The Gazette Editorial Board has Date: 2 May 2008 to the county registrar for the county taken this decision based on legal Signed: Rutherfords (solicitors for the of Kildare for the acquisition in fee RECRUITMENT applicants), 41 Fitzwilliam Square, simple in the aforesaid property, and advice, which indicates that such Dublin 2 any party asserting that they hold a references may be in breach of Solicitor, semi-retired: experienced superior interest in the aforesaid the Employment Equality Acts general practitioner experienced in all In the matter of the Landlord and premises (or any of them) to the lease- 1998 and 2004. areas of law, interested in part- Tenant Acts 1967-2005 and in the hold interest created by the said time/full-time or locum work. Please matter of the Landlord and Tenant indenture of lease for life perpetual contact: 086 320 7180

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