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 www.lawsociety.ie 3 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%.