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Issue April 99 APRIL 1999 CONTENTS 14 Cover Story Drunken driving: is the Supreme Court REGULARS rewriting the rules? Recent judgments from the Supreme Court suggest that it has changed the way it interprets legislation, particularly the drunken driving provisions of the Road Traffic Acts. Gerard President’s message 3 Gannon discusses the decisions in question and asks whether the Supreme Court is rewriting the rules Viewpoint 4 18 Banking law in the 1990s Developments in banking law over the last ten years have been Letters 11 a factor in the unprecedented growth in this country’s prosperity. William Johnston summarises those developments and assesses their impact News 12 on the economy’s health Briefing 33 23 Planning for Council reports 33 your golden Practice note 34 years Recent legislation has improved Committee reports 35 the tax regime for pension Legislation update 36 schemes, including the Law SBA report and Society’s own scheme for accounts 37 members, as Claire O’Sullivan explains Personal injury judgments 38 25 Cry freedom! ILT digest 41 The latest technology means that you can carry around a virtual office in Eurlegal 48 your briefcase or even your pocket. Grainne Rothery looks at what you need to get you going – and how much it will set you back People and places 51 28 The great escape: can tenants walk away from a lease? Professional The traditional view that a landlord’s failure to perform information 55 his duties under a lease does not release the tenant from his obligations has been challenged successfully in the English courts. Professor JCW Wylie reviews the relevant cases 31 Gazette Reader Survey Last December we invited readers to tell us what they really think of the magazine through our reader survey. Conal O’Boyle details the results Editor: Conal O’Boyle MA The Law Society of Ireland can accept no responsibility for the accuracy of contributed Reporter: Barry O’Halloran 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 other- Designer: Nuala Redmond wise indicated. No responsibility for loss or distress occasioned to any person acting Editorial Secretaries: or refraining from acting as a result of the material in this publication can be accept- Andrea MacDermott, Catherine Kearney ed by the authors, contributors, editor or publishers. Professional legal Advertising: Seán Ó hOisín, tel/fax: 837 5018, mobile: 086 8117116, advice should always be sought in relation to any specific matter. E-mail: [email protected]. 10 Arran Road, Dublin 9 Editorial Board: Dr Eamonn Hall (Chairman), Conal O’Boyle Printing: Turners Printing Company Ltd, Longford (Secretary), Mary Keane, Pat Igoe, Ken Murphy, Michael V O’Mahony, Vincent Power Published at Blackhall Place, Dublin 7, tel: 01 672 4800, fax: 01 672 4801. E-mail: [email protected] Law Society web site: www.lawsociety.ie Subscriptions: £45 Volume 93, number 3 APRIL 1999 LAW SOCIETY GAZETTE 1 LEGAL SERVICES LTD Are you paying too much for your Law Searching/Town Agency work? Change to Rochford Brady with our ‘one stop shop’ service (law searching and town agency under one roof) WE CUT YOUR COSTS OWNERSHIP/TITLEINQUIRYSPECIALISTS TOWN AGENTSLAWSEARCHERSSUMMONSSERVERS COMPANYFORMATION AGENTS If you are not with Rochford Brady, isn’t it time you changed? We offer monthly retainer fees for town agency work Fixed/maximum prices for closing searches Planning searches carried out in all counties For our brochure Phone: 1850 529732 (20 lines) Fax: 1850 762436 (5 lines) PRESIDENT’S MESSAGE Client privilege and confidentiality had the pleasure of representing the solicitors’ great change for the courts with the establish- branch of the legal profession at the 27th ment of the Courts Service – the transitional I meeting of the presidents of the law societies board, bringing forward an independent and and bars of Europe in Vienna last month. The unified Courts Service and the fundamental issues that face the legal profession in Europe are realignment of functions within the Irish legal similar to those that we in this country now find system’. before us. The European Union and individual The Minister, a colleague of ours in the state governments are justifiably concerned at solicitors’ branch of the profession, is to be the current level of money laundering in the commended for the dedication of himself, the world. They are determined to try to ensure that staff in his department and the Government in any opportunities for the criminal activity of general for the work they have done in the area money laundering are reduced and prevented in of change for the courts thus far. Much still their jurisdictions. This objective is supported by remains to be done. the vast majority of law-abiding citizens who PJ Fitzpatrick, the new Chief Executive of observe that money laundering is carried on by the Courts Service, and his staff are wished criminals who create misery for thousands of every success. The standard of court accommo- people through the sale of illegal drugs. Lawyers dation, to mention but one matter that will be of are supportive of the aims and objectives of the concern to the Courts Service Board, is greatly EU and national governments. in need of attention. The facilities are grossly The Minister for Justice, Equality and Law Reform has indicated his inadequate for a modern democratic society. intention to designate solicitors, among other professions, under section 32 The Minister and his colleagues at Cabinet will hopefully seek to of the Criminal Justice Act, 1994. The Minister’s proposal has been the sub- implement the recommendations of the Report of the working group on ject matter of correspondence between the Law Society and his department. qualifications for appointment as judges of the High and Supreme Current proposals both of the European Commission and the Irish Courts soon. These are undoubtedly exciting times for the courts and Government are of concern to solicitors insofar as they may create a con- lawyers in this country. flict between the duty of the State to fight against the unacceptable prac- tice of money laundering on the one hand and a lawyer’s duty of confi- The legal system in Ireland dentiality and of a client’s entitlement to privilege on the other. Our Mrs Justice Susan Denham of the Supreme Court, psychologist European lawyer colleagues are equally concerned that the principle of Maureen Gaffney, with our colleagues, John O’Donoghue, Minister for client privilege and confidentiality (known in Europe as professional Justice, Equality and Law Reform, Frank Lanigan from Carlow and secrecy) is gradually being undermined. These principles of privilege and Brendan Cooke, legal costs accountant, will be the main speakers at the confidentiality are the hallmarks and foundation stones of a free and annual conference of the Law Society to be held next month. democratic society. The theme of the conference is Lawyers in a changing Ireland. The There is a delicate balance to be struck between the rights and obliga- Irish legal system, despite its shortcomings, is reasonably sound, tions of the State to protect itself, its institutions and citizens, and an indi- though there are blemishes and systematic issues that need to be vidual’s own fundamental rights as guaranteed under the Irish addressed. Discrimination, of whatever kind, whether within or out- Constitution. The State must not, and should not, go too far. Solicitors side the legal profession, needs to be eliminated now. The solicitors’ will seek to defend the citizen’s traditional rights and freedoms. branch of the profession does embrace changes that are in the public interest. Continuing legal education The Education Committee, now charged with running continuing legal Murder most foul education for the profession, has extended the number of seminars being The murder of solicitor Rosemary Nelson in Lurgan on 15 March strikes held. Many seminars are held on a regular basis in venues outside Dublin. at the very heart of the rule of law in these islands. Words cannot ade- There is a hunger and desire in the solicitors’ branch of the legal pro- quately express the abhorrence that all right-thinking people have for this fession for regular updating seminars in areas of law that practitioners dastardly act. I attended her funeral in the company of the President of deal with on a daily basis. I hope that you will continue to support the the Law Society of Northern Ireland and representatives from the law CLE seminars. societies of Scotland, England and Wales and other lawyers on these While the Law Society has not yet decided whether to make atten- islands, in St Peter’s Church, Lurgan, Co Armagh. dance at legal education seminars mandatory, it is something that must be The assassination of a lawyer hits at the very core of democratic soci- considered early in the new Millennium. ety. The inquiry into the assassination of Rosemary Nelson must be thor- ough and transparent. Courts Service The Minister for Justice, Equality and Law Reform, John O’Donoghue, Patrick O’Connor in the first edition of Courts Service news, states that: ‘It is a time of President APRIL 1999 LAW SOCIETY GAZETTE 3 VIEWPOINT Why the European Commission must be completely replaced he primary task of the com- Tmittee of independent experts set up by the European Parliament, as defined in its terms of reference, was to seek to estab- lish to what extent the European Commission as a body, or Commissioners individually, bear specific responsibility for recent examples of fraud, mismanage- ment or nepotism which had been raised in the parliament. The result, as we all know, was the mass resignation of the entire 20- member Commission.
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