Journal of The Bar of Ireland • Volume 20 • Issue 5 • November 2015 Problems with Suspended Sentences Publishing soon... New titles from Bloomsbury Professional Irish Landlord and Tenant Acts: Annotations, Commentary and Precedents by Professor JCW Wylie This new book by a well-established and much- The book includes comprehensive cross-references respected author contains detailed annotations to other relevant material throughout, including and commentary on all the Landlord and Tenant Law Reform Commission reports and the author’s Acts still in force in Ireland. Landlord and Tenant Law, winner of the DSBA Law Book of the Year Award 2015. Comprehensive coverage includes: · Part 1 deals with pre-1922 legislation, including About the author up-to-date annotations to Deasy’s Act 1860 Professor J C W Wylie holds the degrees of LLB and LLD from Queen’s University Belfast and · Part 2 contains annotations and commentary on LLM from Harvard University. He was Frank Knox ISBN: the Landlord and Tenant (Ground Rent) Acts. Fellow at Harvard Law School and held a Fulbright 9781780438382 · Part 3 covers the other post-1922 Landlord and Scholarship to the USA during 1966-67. After various Format: Tenant Acts. teaching posts at Belfast and Cardiff, Professor Wylie Hardback + eBook These Parts include the associated statutory held a chair of law at Cardiff from 1979 to 2009, and instruments dealing with procedure and providing he has been an Emeritus Professor since then. Price: the relevant forms to be used. €250.00 + 23% VAT He is the leading authority on Irish property law on 50% of product · Part 4 contains precedents from various forms and, apart from his work on law reform, has written of leases and agreements, including licences, the standard texts on land law, conveyancing and Pub date: renunciations and consents. Practitioners will landlord and tenant law and practice, all available October 2015 be able to download each precedent from the from Bloomsbury Professional. He has been a accompanying ebook and amend as required. consultant to A&L Goodbody Solicitors for over 20 years. International Human Rights: Perspectives from Ireland General Editor: Suzanne Egan Contributors: Graham Finlay, Alexa Zellentin, Tamara Lewis, Marie-Luce Paris, Síofra O’Leary, Maeve O’Rourke, Liam Thornton, Ursula Kilkelly, Edward Keegan, Eilionóir Flynn, Alison Mawhinney, TJ McIntyre, Mark Coen, Vicky Conway, Michael O’Flaherty, Karen Murphy and Melanie Hoewer. This new work examines Ireland’s engagement About the editor to date with the international human rights Suzanne Egan is a lecturer in International and regime and the manner in which the regime has European Human Rights Law at the School of Law influenced, and is capable of influencing, the in University College Dublin and Director of UCD’s domestic human rights landscape. Centre for Human Rights. She has published widely on human rights issues in leading peer reviewed International human rights norms are increasingly journals and her recent book, The UN Human being taken into account by legislators, courts and Rights Treaty System: Law and Procedure (2011) was public bodies in taking decisions and implementing ISBN: shortlisted for the Irish Association of Law Teachers, actions that impact on human rights. This title will 9781780439693 Kevin Boyle prize for outstanding legal scholarship. feature articles by leading Irish and international Format: academic experts, practitioners and advocates in Suzanne is a graduate of UCD, Osgoode Hall Law Paperback the area. School (Canada) and the Kings’ Inns. She was formerly a Member of the Irish Human Rights Price: You’ll find practical analysis along with unique Commission (2001-2011). €150.00 perspectives from a broad range of actors in the human rights field. Pub date: October 2015 Order your copy today Contact Jennifer Simpson on +353 (0) 1 637 3920 or email [email protected] Or buy online at www.bloomsburyprofessional.com/ie Editorial Correspondence to: Eilis Brennan BL The Editor Bar Review Law Library Four Courts Dublin 7 DX 813154 Telephone: 353-1-817 5505 Cover Illustration: Brian Gallagher T: 01 4973389 Fax: 353-1-872 0455 E: [email protected] W: www.bdgart.com E: [email protected] Typeset by Gough Typesetting Services, Dublin [email protected] T: 01 8727305 Editor: Eilis Brennan BL Editorial Board: Gerry Durcan SC Mary O’Toole SC Conor Dignam SC Brian Kennedy SC Paul A. McDermott SC Mark O’Connell BL Volume 20, Issue 5, November 2015, ISSN 1339-3426 Tom O’Malley BL Patrick Leonard BL Paul McCarthy BL Contents Des Mulhere Consultant Editors: Patrick MacEntee SC Eoghan Fitzsimons SC 98 Appeals to the Supreme Court and the new Appellate Regime Pat Hanratty SC James O’Reilly SC Ben Clarke BL The Bar Review is published by 103 A Tale of Two Houses Round Hall in association with The Bar of Ireland. Sharon Hughes BL For all subscription queries contact: 105 99|9: Nine Issues with Section Ninety-Nine Round Hall James Dwyer BL Thomson Reuters Ireland Limited 43 Fitzwilliam Place, Dublin 2 Telephone: + 353 1 662 5301 110 The Bar of Ireland Retirement Trust Scheme – The Benefits Fax: + 353 1 662 5302 E: [email protected] web: www.roundhall.ie lxix Legal Update Subscriptions: January 2015 to 113 Don’t name names! A New SI on Naming Judges in Judicial December 2015—6 issues Annual Subscription: €390.00 + VAT Review Cases For all advertising queries contact: Matthew Holmes BL David Dooley, Direct line: + 44 20 7393 7775 116 Passing Off: An Uncertain Remedy: Part 2 E: [email protected] Directories Unit. Sweet & Maxwell Peter Charleton and Sinéad Reilly Telephone: + 44 20 7393 7000 Contributions published in this journal 124 Human Rights, freedom of religion and the demand for State are not intended to, and do not represent, control over access to faith schools legal advice on the subject matter contained herein. This publication should Sunniva McDonagh SC not be used as a substitute for or as a supplement to, legal advice. The views 128 Eileen Finn raises over €80,000 for Motor Neuron Association expressed in the articles herein are the views of the contributing authors and do not represent the views or opinions of the Bar Review or The Bar of Ireland. The Bar Review November 2015 Appeals to the Supreme Court and the new Appellate Regime Ben Clarke BL Introduction and therefore it would save in both time and costs were the Supreme Court to retain the appeal. The introduction of the Court of Appeal has led to major changes in the work of the Supreme Court and the At the outset, the Court set out the mechanics of the introduction of a new practice direction. This article will applicable process for such applications. The Court examine recent determinations and judgments from the acknowledged that the mechanism provided for by Article Supreme Court which give an indication of how it now deals 64.3.3° was in recognition of the fact that the Direction was… with efforts to avail of a second ‘last chance’ appeal. made without consultation with the parties to the appeals… Determinations are concise and unanimous written and that the Court was entitled to allow that application ‘if judgments that are now delivered by the Supreme Court it is just to do so’. following its consideration of an application for leave to The Court set out the following presumptions, which it appeal. Such applications are made in writing. In the new held were applicable under the new constitutional regime: Judgments & Determinations section of courts.ie, these written Determinations and supporting documentation are available. 11. The new constitutional regime, therefore, The 32 Determinations delivered over the past legal year presumes:- provide a clear indication of the approach that the ‘new’ (i) that the ordinary entitlement to have an Supreme Court is taking in developing a new appellate appeal from a determination of the High jurisprudence. Court continues but is now to be fulfilled by This article considers a number of particular an appeal to the Court of Appeal; and Determinations, each addressing distinct issues relevant (ii) that, [absent] exceptional circumstances, even in respect of both appeals that were in being prior to the where an appeal to this Court might be… introduction of the Court of Appeal and also new or warranted by reason of it raising an issue upcoming appeals. of general public importance or it being otherwise in the interests of justice that such Fox v Mahon & ors – 22nd January 2015 an appeal be brought, it is presumed that such An application for a determination cancelling the inclusion of a specific an appeal is better taken when the issues have appeal within a class of appeal specified within the direction made by been refined by the hearing of an appeal in the Chief Justice pursuant to Article 64.3.1°, transferring such appeals the Court of Appeal… it does… have to be to the Court of Appeal acknowledged that the Constitution itself recognise[s] that there may be exceptional On 29th October 2014 the Chief Justice gave a direction circumstances where the latter imperative transferring cases falling within a certain class of appeal from does not apply. That leap-frog jurisdiction is, the Supreme Court list to the Court of Appeal. This once- however, expressly stated in the Constitution off direction could only be made in circumstances where to be an exceptional one. the Court was satisfied that it [was] in the interest of the administration of justice and the efficient determination of In light of these presumptions, the Court stated that the appeals that such a Direction should be made. The Applicant purpose of such an application is to enable a party to an sought an Order pursuant to Article 64.3.3° cancelling the appeal to bring to the attention of the Court any special factors… effect of that direction in so far as it related to that appeal.