December 1998 Contents

DECEMBER 1998 CONTENTS

16 Cover Story E-mail as evidence: will it stand up in court? REGULARS Advances in new technology mean that fewer and fewer documents are being produced on paper. Kieron Wood discusses the evidential problems associated with computerisation and asks: can you make it stand up in court? President’s message 3 20 Irish lawyers and the Gazette Reader Survey 4 Great War The First World War ravaged Europe for four years and every Viewpoint 5 section of society suffered its effects. The legal profession in Ireland was no exception. Daire Hogan looks at the contribution of Irish lawyers in Letters 8 the ‘war to end all wars’

News 11 22 Freedom of Information Act: News analysis who’s using it, and why? Expert witness Over 1,000 people have so far made requests under the Freedom of conference 15 Information Act, 1997 to gain access to official records. David Meehan searches for early trends in the figures Briefing 32 Committee reports 32 25 PII and the Legislation update 32 Millennium Practice notes 33 Timebomb Disciplinary Tribunal 34 The insurance industry may refuse professional indemnity cover to ILT digest 37 solicitors who haven’t taken adequate Eurlegal 40 steps to ensure that their systems are Y2K-compliant, as Cefyn James People and explains places 45

Book reviews 51 28 Face to face with the future Webwatch 53 Turn on, tune in and drop all that long-distance travelling associated with business meetings. Professional Video conferencing allows you to link up with information 54 colleagues or clients anywhere in the world, whenever you need a one-to-one. Grainne Rothery reports COVER PIC: ROSLYN BYRNE

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, Ken Murphy, Michael V O’Mahony Published at Blackhall Place, Dublin 7, tel: 01 672 4800, fax: 01 672 4801. E-mail: [email protected] Subscriptions: £45 Volume 92, number 10

DECEMBER 1998 LAW SOCIETY GAZETTE 1 Rochford Brady Legal Services Ltd

OWNERSHIP/TITLEINQUIRYSPECIALISTS TOWN AGENTSLAWSEARCHERSSUMMONSSERVERS COMPANYFORMATION AGENTS

Emmett and Deirdre Brady and all the staff of Rochford Brady wish all of our clients a relaxing Christmas and a booming New Year

Phone: 1850 529732 (20 lines) Fax: 1850 762436 (5 lines)

ISO 9002 PRESIDENT’S MESSAGE Leadership with vision

n this, my first message as President ii) Independence from clients, and PIC: ROSLYN BYRNE PIC: ROSLYN of the Law Society, I take the opportu- iii) Independence from other lawyers. nity of thanking my colleagues on the Council for electing me to the highest In order that we can carry out our duty to office in the solicitors’ profession and protect our clients and achieve justice, we Ialso of expressing my gratitude to all of you must be independent of all improper influ- who have supported me since I was first ences from third parties, including the pow- elected to the Council of the Society in ers of government. Our profession is self- November 1978. My thanks also to all of regulated and can therefore, boldly and my friends and acquaintances in the profes- without fear, when necessary in the public sion who have advised and counselled me interest, oppose the powers of government. through the years. I am humbled by the The solicitor’s independence from his client great honour that has been bestowed upon is often misunderstood by government. A me. lawyer does not act merely as a mouthpiece As we approach the new millennium, we for his client, but is charged with the pro- need to be more conscious of the rapid fessional responsibility of using his legal changes that are occurring daily in the way expertise and skill to act in his client’s prop- our lives are directed and lived. In 1974, er legal interests. A solicitor is bound by a when I was admitted to the roll of solicitors, there were fewer than 1,500 duty to work, to a certain extent, independently of his client to protect his members in the profession. In 1999, the numbers on the roll will increase client’s interest. to around 6,700. Some 7,000 will be on the roll by the year 2000. Confidentiality is the cornerstone of the relationship between a lawyer The increase in the number of lawyers in this country is not untypical and his client. This guarantee of confidentiality and privilege to a client of other jurisdictions in the developed world. As society becomes more is based on the fact that it is essential for the lawyer to be able to provide complex, a greater number of laws, rules and regulations are enacted. his client with the guarantees that are indispensable in order to gain his Can we in Ireland – and particularly in the Law Society – cope with confidence. Any attempt to breach professional confidentiality or inter- the changes that are occurring? The challenge facing all of us, and par- fere with the sacrosanct privilege will be resisted by the profession. Any ticularly for the Officers and Council of the Society, is to plan for the interference with these cornerstones of the relationship of the lawyer and inevitable changes. Leadership with vision and understanding, preceded his client are signs of a breakdown in democracy and the Law Society by consultation, is required. cannot, and will not, ignore key principles underlying the administration The Council of the Law Society is determined to see that the profes- of justice and the rule of law. sion is properly served, now and for the years to come. This cannot be done without properly structured planning and management with the Use of the facilities at Blackhall Place assistance of modern technological tools. Many solicitors do not make use of the facilities available at the Law It is awesome to think that 85% of all technology used today will be Society’s headquarters at Blackhall Place. I do hope that during the next obsolete and redundant within ten years. In the past, the Society has not 12 months every solicitor will put a visit to Blackhall Place on their ‘must sufficiently addressed its own technological requirements to ensure that do’ list. To encourage those of you who might be shy of visiting your own every member of the profession has access to the most modern and up- headquarters, I hope that whenever you receive an invitation to visit it, to-date facilities available. A significant leap forward will be taken by the whether social, educational or otherwise, you will accept it. Society this year. A web site will be launched within a few months, while The establishment of a modern education centre with all of the facili- a state-of-the-art communication system involving telephones, voice- ties necessary for teaching and learning will be advanced during the next mail, computers and e-mail will be fully operational. 12 months. The recommendations of the independent Education Policy Review Group were overwhelmingly endorsed by the solicitors’ profes- Long tradition of legal independence sion in a poll conducted last month. It is now the challenge of myself and Never before has there been such a need for a strong solicitors’ profes- the Council to ensure that what the profession voted for and approved of sion, bonded together with a sense of purpose, idealism and vision to is put in place. The control and direction of pre and post-admission edu- ensure its development. Despite the diverse nature of many of the firms cation for solicitors is a cornerstone of the Society, and it has been fought of solicitors in Ireland, we all share a common bond and objective as for at great cost and with very considerable effort over the past few years. independent lawyers serving the ever-changing needs of our increasingly I pledge to work diligently for the Society and the profession to sophisticated and highly-educated clients. In that togetherness, the pro- attempt to repay the great trust and honour bestowed upon me for the next fession will find strength. 12 months as President. We have a long constitutional, legal and noble tradition in this country Finally, may you all have a happy, peaceful and relaxed Christmas, which recognises the independence of lawyers. There are three aspects to with happiness and prosperity throughout 1999. this independence: i) Independence from third parties such as government and interest Patrick O’Connor groups President

DECEMBER 1998 LAW SOCIETY GAZETTE 3 READER SURVEY Law Society Gazette Reader Survey 1998

It’s been two years since we relaunched the Law Society Gazette – now it’s your turn to tell us what you think! You can help us make the magazine even better by participating in this short reader survey. In return for your help, we’ll enter your name in our prize draw where you could win a weekend for two in London, including flights and accommodation at a top hotel. The five runners-up will each win a bottle of the finest Jameson whiskey!

he winner will be announced in the January/February issue. The 5) Please indicate to what extent you agree or Tresults of the survey (and your personal details) will not be used for disagree with the following statements about the any other purpose than improving the magazine and will not be divulged Gazette? PLEASE TICK ONE BOX PER STATEMENT to any third party. STRONGLY AGREE NO DISAGREE If you wish to be entered for the prize draw, please ensure you give AGREE OPINION your name and address below. Informative Interesting and enjoyable read Name: Well presented and laid-out Keeps me updated on legal Address: developments and legislation Good balance between technical and lighter material Relevant to my work

1) How long have you been practising? 6) How well does the Gazette cover the following 1 to 5 years topics? VERY GOOD ADEQUATELY POOR 5 to 10 years WELL 10 to 15 years Irish legal developments 15 to 20 years European legal developments Over 20 years Feature articles on the law Information technology 2) How often do you read the Gazette? Business and management issues Each issue Every second issue 7) Overall, how would you rate the Gazette? Once every three months Excellent Average Less often Very good Fair Never Good Poor

3) Does anyone else read your copy of the Gazette? 8) Please indicate your opinion of the Gazette in a Yes No word or phrase

If yes, how many others? 1 other 2 others 3-5 others 9) What other publications (other than newspapers) do you read regularly? Legal and management 4) Please indicate how often you read each of the Bar Review The Lawyer magazine (UK) sections listed below. Irish Law Times Accountancy Ireland PLEASE TICK ONE BOX FOR EACH TOPIC ICLR Irish Reports Institute of Taxation Magazine ALMOST OCCASIONALLY RARELY NEVER UK Law Society Gazette Other (Please specify) ALWAYS The Writ (NI Law Society) President’s message General Viewpoint Magill The Phoenix Letters Business and Finance Other (please specify) Dumb and dumber News Feature articles 10) Do you make purchasing decisions on any of the Briefing following? People and places Legal publications Book reviews Computers (hardware/software) Professional information Staff training and development

Thank you for completing this survey. Please return (a photocopy will do) by 31 December 1998 to: The Editor, Law Society Gazette, Blackhall Place, Dublin 7 (fax: 01 672 4801). 4LAW SOCIETY GAZETTE DECEMBER 1998 VIEWPOINT Whose human rights are they anyway?

t seems that hardly a day goes And, of course, we have the those inconvenienced by the farm- Iby now without some reference courts of the land which are there ers’ ‘antics’ were likely to be to human rights appearing in the to ensure respect for our funda- PAYE workers paying, on average, newspapers. This ought to have mental civil rights in accordance four times more tax than the the desirable result that the notion with the Constitution. farmer. I am at a loss to understand of human rights will be taken The difficulty is that no-one how the amount of tax paid should seriously by the public, politi- seems to be able to agree on what be used as a yardstick for the level cians, lawyers and judges. At the exactly is to be considered as a of protection to be afforded to the very least, some sort of public human right. This is a matter of exercise of one’s fundamental debate does appear to be igniting. acute public concern. In this rights. Last month, the European regard, the important speech Court of Human Rights underwent given by President Mary Rights and a radical overhaul. This involved McAleese at Harvard University responsibilities the amalgamation of the functions in mid-October deserves to be President Mary McAleese: ‘Human By contrast, President McAleese previously undertaken by the read very closely. ‘Human rights rights are the oxygen of civilisation’ called for a balanced appraisal of European Commission on Human are the oxygen of civilisation’, rights and their exercise. One per- Rights and the European Court. declared the President. ‘Nobody assembly is not unrestricted, son’s right was another’s burden, Now, the European convention for owns them. Nobody has authority although permissible restrictions she said, and gave as an example the protection of human rights and to deny them to another’. are carefully circumscribed: ‘No the conflict between the right of fundamental freedoms (ECHR) restrictions shall be placed on the Orangemen to march and the right applies throughout 40 signatory Right of assembly exercise of these rights other than of the residents of the Garvaghy states under the auspices of the ‘Farmers have no right to disrupt such as are prescribed by law and Road not to be subject to abuse. Her Council of Europe. The intention my city’, thundered Bernie are necessary in a democratic message was simple: rights entail is that the reformed court will Malone MEP, barely a week later, society in the interests of nation- responsibilities and should not be actively and efficiently ensure full prior to the march in late October al security or public safety’. used in a way which harms others. respect for the convention. of several thousands of farmers Obstruction may, of course, be She also called for a balance to Moreover, under the Good through Dublin who were protest- unlawful in certain circum- be observed between freedom of Friday agreement, human rights ing at falling prices. It is a little stances. But the inevitable conse- the press and the damage that the commissions are to be established difficult to see how this fits in quence of a large peaceful public exercise of such freedom can to ensure the protection of rights with article 11 of the ECHR, demonstration is that there will cause. It might be thought that for everybody north and south of which states: ‘Everyone has the be some obstruction and some such sentiments would be widely the Border. It is reported that right to freedom of peaceful inconvenience to others. This shared. Not so with one Mary Mary Robinson, in her capacity assembly’. does not of itself warrant restric- Ellen Synon who issued a vitriolic as United Nations Human Rights Ms Malone had two argu- tions on the right of assembly attack in the Sunday Independent. Commissioner, is pressing for the ments. First, she said, blocking unless these are necessary for the Now, why might that be? G commissions to be given wide- the streets of Dublin could be jus- protection of democratic society. (See also Eurlegal, page 40) ranging powers to investigate tified only if the protesters had no The mere fact that farmers have violations and abuses of all forms democratic rights or were exclud- other means at their disposal to Conor Quigley is a barrister spe- of human rights. If successful, ed from the decision-making put their case does not invalidate cialising in European Union law these commissions could serve as processes. Now, admittedly, arti- their right to march. and practising at Brick Court a model for other countries. cle 11 recognises that the right of Secondly, said Ms Malone, Chambers, London and Brussels.

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DECEMBER 1998 LAW SOCIETY GAZETTE 5 ALL LAW SOCIETY PROCEEDS GO DIRECTLY TO THE SOLICITORS’ BENEVOLENT ASSOCIATION

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PLEASE FORWARD ALL ORDERS TO “Undoubtedly, one of the main reasons for the success over ASHVILLE MEDIA as follows: many years of the Law Society Yearbook and Diary has been the BY MAIL fact that all the Society’s proceeds from the diary’s publication Ashville Media Group, ‘Law Society Diary Offer’ go to the Solicitors’ Benevolent Association. I hope that you Pembroke House, will once again support the diary and in doing so also support 8 Lower Pembroke Street, the Solicitors'’ Benevolent Association.” Dublin 2. BY FACSIMILE (01) 678 7222 ––––––––––––– Director General BY TELEPHONE (01) 678 7344 Orders will not be processed unless payment is received with the order. Please allow 28 days delivery. Post & Packaging FREE. VIEWPOINT What constitutes indecency?

he Constitution is a funda- senior counsel for the prosecu- Tmental charter of the Irish tion stating that the play was people. Article 40.6.1.i of the obscene because of ‘undue Constitution specifically pro- dwelling on matrimony and sex vides that the publication or in matrimony’ allied with argu- utterance of ‘indecent matter’ ments based on the legislation (among other things) is an against contraceptives. A Garda offence which shall be punish- witness had given evidence that able in accordance with law. It is the designs of some of the char- noteworthy that the apparent acters in the play were not ‘hon- criminalisation of the publication ourable’. or utterance is of indecent matter The judge took judicial notice rather than obscene matter. The of the definition of the word issue of what constitutes indecen- ‘indecent’ in the Censorship of cy and whether the prohibition on Publications Act, 1929 as includ- indecency in the Constitution ing ‘suggestive of or inciting to should be retained will be consid- sexual immorality or unnatural ered briefly here. vice or likely in any other similar way to corrupt or deprave’. The No definition judge noted that the overall effect of indecency of the play was one of sadness, There is no definition of ‘inde- that a humble woman, ‘a woman cency’ in the Constitution, of great sexual appetite who is although various statutes prohibit widowed by sudden disaster to publication and utterance of inde- her husband, lapses once from the cent matter. The Censorship Acts, path of virtue’. Holding that there 1929-67 and the Video Record- must be evidence that the accused ings Act, 1989, for example, pro- Time to iron out the constitutional problems with ‘indecency’? intended to deprave and corrupt, hibit indecency in various guises. the judge held that a prima facie The Post Office (Amendment) Court of Criminal Appeal A celebrated judgment case had not been made out and Act, 1951, as amended, makes it (England and Wales) held that the Forty years ago, in what must be discharged Simpson. an offence for any person to words ‘indecent or obscene’ con- regarded as one of the finest send, inter alia, by means of veyed one idea – that of offend- judgments ever delivered in the Should they be banned? the telecommunications system ing against the recognised stan- District Court, Justice Cathal Ó Many books, periodicals and operated by Telecom Éireann, dards of propriety – ‘indecent’ Floinn considered the meaning of films available in Ireland today any message or other matter being at the lower end of the scale indecency in the context of a could probably be classified as which is of an indecent character. and ‘obscene’ at the upper end. criminal prosecution, brought in indecent in the sense of offending Penalties range up to £50,000 on The dictionary definition of the name of the Attorney against propriety. Should they be indictment, or five years’ impris- ‘indecent’ is very broad and General, against55 Alan banned? The Constitution onment, or both fine and impris- includes such descriptions as Simpson. Simpson had been Review Group (1996) distin- onment. The Radio and Tele- unbecoming, in extremely bad arrested and charged with show- guished between indecent materi- vision Act, 1998 (section 9) pro- taste, unseemly, offending against ing for gain an indecent and pro- al and material that may be gross- hibits radio stations from broad- propriety or delicacy, immodest, fane performance – the play The ly obscene or which depicts acts casting anything which may rea- suggesting or tending to obsceni- rose tattoo – at the Pike Theatre, of gross violence or cruelty. The sonably be regarded as offending ty. ‘Obscene’ is defined in the Herbert Lane, Dublin, contrary to review group argued that the pro- against ‘good taste or decency’. Shorter Oxford English Diction- the common law. Brian Walsh SC hibition on publication and utter- As stated, there is no defini- ary as offensive to modesty or (later a judge of the Supreme ance of indecent matter as a con- tive legal definition of indecency. decency, expressing or suggest- Court), with Bob Humphries BL, stitutional offence be deleted Pollock CB stated in R v Webb (2 ing lewd thoughts, offensive to appeared for the Attorney from the Constitution. C & K 938) (1848) that the word the senses, or mind, disgusting General. The judgment in The test for indecency is over- ‘indecently’ had no definite legal and filthy. The term ‘indecent’ is Attorney General v Simpson is broad, and should be replaced by meaning. He remembered that in broader than the term ‘obscene’ reported at 93 ILTR 33 (1959). a provision that strikes a sensible the older Courts of Justice the and gives a prosecuting authority Simpson was liable on conviction balance between the right of free judge retired to a corner for a a greater latitude than would be to an unlimited term of imprison- speech on the one hand and the necessary purpose, even in the the case if the constitutional pro- ment. Short of capital offences, protection of the vulnerable on the presence of ladies, and concluded hibition related only to obscene the possible punishment facing other. G that that perhaps would, in 1848, matter. An indecent matter may Simpson was the most severe that be considered ‘indecent’. In R v not be obscene, but an obscene could be imposed for any crime. Dr Eamonn Hall is Chief Legal Stanley [1965] 2 QB 32, the matter would also be indecent. Judge Ó Floinn referred to Officer with Telecom Éireann plc.

DECEMBER 1998 LAW SOCIETY GAZETTE 7 Letters

Cooking the books ‘Usual terms’ under

From: Paul R Beckett MA, guilty within France of tax eva- examination Douglas, Isle of Man sion: he will have committed a From: Robert Pierse, Kerry counsel have said to me that it is at Igoe’s article in the crime. If he had evaded Manx tax write to remind colleagues that negligent of a solicitor not to PNovember edition of the in the Isle of Man, it would, as a Iit is, or ought to be, their duty insist on these rules being Gazette (page 16) strikes a chord fraud on the Manx Revenue, have to insist that the ‘usual terms’ in adhered to. All of us are familiar with those of us who are members been regarded as a criminal medical examinations are with the defence doctor who is of the Law Society outside offence. Fraud is fraud. adhered to. I find it disconcerting far from independent and goes Ireland. The new legislation clearly that the Litigation Committee way beyond his or her medical The Isle of Man Government applies to crimes generically, seems to be slipshod in its brief. has introduced sweeping amend- whether committed in the Isle of approach to rule 2 in its practice I trust the committee will recti- ments to the Criminal Justice Act Man or not. If the Isle of Man has note published in the November fy their acceptance of the ‘conve- 1990, together with its Anti- been involved in some way, the issue of the Gazette (page 35). nience’ trap of these doctors. The money laundering code 1998, committing of a crime in France On two occasions that I can plaintiffs have these rights for a which now bring within the ambit will be treated as if a crime of that remember in the High Court in good purpose and they should be of ‘money laundering’ any con- sort had been committed in the relatively recent times, senior enforced and not slid around. duct which would be considered Isle of Man, and anyone involved criminal if it had occurred in the – whether in the Isle of Man or Isle of Man, and not merely not – will be open to prosecution crimes relating to drug trafficking before the Manx courts under the Dumb and or terrorism as was previously the new legislation. From: Denis Murnaghan, Dublin into a girl; will it make a differ- case. Knowledge or even suspicion y late father had among ence? The position may be illustrated of such a crime places on the indi- Mhis papers extracts from 10. Please send my money at once, I by considering the evasion of vidual concerned a duty to report letters received in the old need it badly. I have fallen into taxes in a European jurisdiction the fact to the Isle of Man author- Pensions Department and you errors with my landlord. I have (although all crimes are caught by ities. might like to share these with no children yet. My husband is a the new legislation and not mere- The Isle of Man guards its rep- your readers: bus driver and works day and ly fiscal crimes). A Frenchman utation as jealously as does 1. I cannot get sick pay, I have chil- night assisted through the Isle of Man to Ireland. Perhaps Celtic neigh- dren, can you tell me why? 11. In accordance with your instruc- evade his French taxes will have bours can learn much from each 2. This is my eighth child, what are tions, I have given birth to twins committed no offence in the Isle other in this area and gain you going to do about it? in the enclosed envelope of Man. However, he will be strength from mutual support. 3. Mrs X had no clothes for about a 12. I want my money as quickly as year and has been regularly visit- you can send it. I have been in ed by the clergy bed with the doctor for a week 4. I am forwarding my marriage cer- and he does not seem to be A NOTE FROM THE EDITOR tificate and two children, one of doing me any good and if things which is a mistake as you will see do not alter I shall have to get 5. Unless I get my husband’s money another doctor Gazette I will be compelled to lead an 13. Dental enquiry: The teeth on the Reader Survey 1998 immortal life top are alright but those in my 6. I am very annoyed that you have bottom are hurting terribly branded my eldest son as illiter- 14. Please find out for certain if my t’s been two years since we Please note also that the ate. Oh, it is a crying shame and husband is dead, as the man I am relaunched the Law Society next issue of the magazine I a dirty lie because I was married living with won’t eat or do any- Gazette, and on page 4 of will be the traditional joint to his father a week before he thing until he knows for certain. January/February issue, pub- this issue we are carrying our was born first reader survey. This is lished on 5 February 1999. 7. I am writing these few lines for From: McCann FitzGerald, Dublin your opportunity to tell us In the meantime, best Mrs F who cannot write. She he following was obtained what we’re doing right and wishes for Christmas and the expects to be confined next Toff the Internet. where we’re going wrong. New Year from all on the week and can do with it Please take just a few min- Gazette team. 8. In answer to your letter, I have The Safe Fax Guide utes to complete the survey, given birth to a boy weighing 1. Do I have to be married to and you could win a weekend Conal O’Boyle, ten pounds. I hope this is satis- have safe fax? for two in London. Editor factory Not at all! Although married 9. You have changed my little boy people fax quite often, there are

8LAW SOCIETY GAZETTE DECEMBER 1998 VIEWPOINT Brains and brawn Parking for members From: Mark McParland, I can understand the concept Dublin of intellectual property rights in From TC Gerard O’Mahony, who felt that same should be dealt n the sports pages of the patents, copyright, trademarks Brendan Garvan and Anthony with at an early preliminary meet- Inational press of late much and, indeed, in the growing Murphy, Dublin ing of concerned members, and if ink has been allocated to the field of computer software, but ar parking is absolutely necessary to convene an urgent intellectual rights of one Keith try as I might I have great diffi- Cessential for modern busi- EGM of all members. Woods. This was the main culty in understanding how a ness. Parking is almost impossible This should also give the obstacle to him accepting a con- horse owner can claim intellec- in Dublin City, and the authorities Council an opportunity to appre- tract offered by the IRFU, tual property rights in a picture plan to preclude such before 11am ciate that there has been a consid- which was acceptable to every of his horse jumping the final (for example, Carleton Shopping erable change of circumstances one of his 85 teammates. fence in Leopardstown – even if Centre, off O’Connell Street). seriously affecting the economic I have myself been involved that picture might subsequently The extensive Law Society and reasonable convenient needs in defending an advertising be used for monetary gain by a grounds at Blackhall Place appear of the members since such a grave agency against a claim brought third party. to offer welcome parking relief to matter had previously been con- by a gaelic football player who Might I suggest that the pub- our members, which should, at sidered by them. (although only one of a number licity surrounding Keith Woods’ least, be considered with equal To overcome any inconve- of players) was clearly identifi- intellectual property rights priority to the expensive £5 mil- nience to the new Law School able in a photograph taken at a might be a useful entrée to a lion Law School to be provided at project in the meantime, the emer- football match and which was Gazette article on these ‘new’ our members’ expense for our stu- gency provisions already in place subsequently used in a nation- intellectual property rights? dents (£1,000 from each member). could be invoked to meet the situ- wide advertising campaign. Keep up the good work. The primary objective of the ation, especially with the first- Society’s originating charter is for year professional course. This ‘the general benefit of their (the would allow the parking problem solicitors’) profession … and for members being considered d dumber more conveniently [emphasis simultaneously with the proposed many single people who fax 7. I have a personal and a busi- added] discharging their profes- Law School building project, and complete strangers every day. ness fax. Can transmissions sional duties’. without being prejudiced by such 2. My parents say that they become mixed up? Whilst this subject caused inci- proceeding prematurely. never had fax when they Being bi-faxual can be confusing dental concern at the AGM on 4 We would emphasise that we were young and had to write but, as long as you always use a November to the Council mem- fully approve of our students memos to each other until cover, you won’t transmit any- bers and ex-members, it was only enjoying the very best legal edu- they were 21. How old do thing you’re not supposed to. at informal discussion afterwards cation with the appropriate facili- you think someone should in the Members’ Lounge that the ties, but this should not be done, be before they fax? magnitude was appreciated by unwittingly, to the fundamental Faxing can be performed at any From: Brendan Walsh, Dublin many. We were amongst those detriment of our members. age, once you have learnt the y firm is acting in a case correct technique. Mwhere a lady client was stand- 3. If I fax myself, will I go ing minding her own business in an What happens to the blind? Irish airport when a wall fell on her. Certainly not, as far as I can see. Thankfully she wasn’t seriously deposit? 4. There is a place on our street injured, but did sustain some injury where you can go and pay and considerable expense. From: Owen Binchy, Co Cork solicitor as stakeholder a deposit for fax. Is this legal? Proceedings were instituted and refer to the practice note that of the amount stated in the mem- Yes! Many people have no other the defendants filed their defence Iappeared in the November issue orandum in part-payment of pur- outlet for their fax drives and so which included paragraph 3: ‘the of the Gazette (page 35). chase price’. must pay a professional when plaintiff is guilty of contributory The practice note states ‘a ven- Condition 5(a) applies to a their need to fax becomes too negligence in failing to avail of a dor is entitled to know that the deposit paid ‘before the date of great. safety belt’. deposit has been validly ten- the sale’. Surely this condition 5. Should a cover always be dered’. Why then are general con- would apply to a deposit paid on used when faxing? Denis Murnaghan wins the bottle of ditions 31 and 32 (‘failure to pay foot of a contract signed by a pur- champagne this month. Unless you are really sure of the the deposit’) included in the con- chaser and awaiting the signature person you are faxing, a cover A bottle of the finest champagne tract for sale? of the vendor. should always be used to ensure will go to the reader who sends in The practice note states the In most cases, you have a will- the funniest contribution to Dumb safe fax. and dumber each month. deposit is not held by the ven- ing vendor and a willing purchas- 6. What if I fax prematurely? dor’s solicitor as stakeholder until er and what happens to the Don’t panic! Many people fax Send your examples of the wacky, such time as the contract comes deposit does not matter. Where a weird and wonderful to prematurely when they haven’t the Editor, Law Society into effect. Condition 5(a) of the sale falls down and a solicitor is faxed for a long time. Just start Gazette, Blackhall Place, contract provides that ‘where the instructed by the vendor not to over (most people don’t mind if Dublin 7 or you can fax us on sale is by private treaty, the pur- communicate further with the 01 671 0704. you try again). chaser shall on or before the date purchaser or his solicitor, how is of the sale pay to the vendor’s the deposit to be returned?

DECEMBER 1998 LAW SOCIETY GAZETTE 9 ‘‘As a sole practitioner, it provides me with legal news which I wouldn’t otherwise come across’’

FINNIAN DOYLE, DUBLIN

‘‘I find it of great benefit in keeping my head above water with all the material that is sent to me’’

MICHAEL KANE, CARRICK -ON-SHANNON

‘‘There was one item in particular which made me aware of a very important point I needed for a certain case’’

JOHN SHAW, MULLINGAR

‘‘It makes me feel that my time in the car isn’t wasted’’ BRENDAN DILLON, DUNDRUM Sound Law has completed its first series of ‘‘The material on the tape eight issues.This new development in legal is to the point and very information has been enthusiastically received professionally presented’’

SHARON MURPHY, NEWBRIDGE by the Solicitors profession. We are now launching the second series. We have plans for some very interesting interviews and will continue to bring you the latest developments in the law. NEW DEVELOPMENTS We have new developments in the forthcoming series which our subscribers have suggested: TEXT ON DISC At the end of the second series we will provide, at no extra cost, the text of each tape on disc in a word processor file to allow you to word-search quickly for information in the series. EXTRA TAPES Solicitors have often told us that one of their partners has kept the tape to themselves! In the forthcoming series, we will provide extra tapes (up to 4 in total) for other fee earners at a nominal cost of £20.00 plus VAT per series for each extra tape. SUBSCRIPTION The subscription is being maintained at a very reasonable £195.00 plus VAT. Take this opportunity to subscribe to something you will learn from and that won’t be yet another publication thrown onto your good intentions file!

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New Courts Service will be BRIEFLY Only proven specialists to ‘uniquely Irish’, says Denham act in UK clinical claims Only solicitors with proven spe- he establishment of a new computers. She also predicted that cialist knowledge will be allowed TCourts Service next year will video conferencing would be intro- to act for legal aid clients in neg- ‘complete unfinished business duced sooner rather than later, ‘so ligence claims brought against from the 1920s’, according to Mrs we could see solicitors in Dingle hospital doctors, general practi- Justice Susan Denham. Speaking applying by video conference to a tioners and dentists under a new at the Law Society’s technology judge in Dublin for an order’. quality assurance scheme seminar in Blackhall Place last ● The Chief Executive Designate launched by the British Lord month, the Supreme Court judge of the new Courts Service has been Chancellor. Lord Irvine of Lairg said that the new service would be named as PJ Fitzpatrick, the former confirmed recently that solicitors ‘an absolutely unique system for CEO of the Eastern Health Board. who wish to act in legal aid clin- organising our courts’. Welcoming the appointment, Law ical negligence cases will have to She added that a number of del- Society President Patrick get special franchises earned by egations from other countries had O’Connor said: ‘The establishment proving specialist competence Mrs Justice Susan Denham: already come to see how the new ‘an absolutley unique system’ of the new Courts Service should and membership of professional courts system would operate, even see the most radical and fundamen- accreditation panels. though it is not yet up and running. ing to set up new courts systems tal reform of the courts since the The legislation setting up the themselves. ‘We’re doing some- foundation of this State. The Law £20 million legal aid Courts Service is based on the thing historic, exciting and unique- Society warmly welcomes Mr shake-up for UK report of a working group chaired ly Irish’, she said. Fitzpatrick’s appointment and A comprehensive network of by Mrs Justice Denham, and she ‘The next five years will see looks forward to the great improve- advice points across England and told delegates at the seminar that more changes to the courts than ments in the administration of jus- Wales will deliver advice and the Council of Europe had asked if we’ve seen over the last 200 tice that should result. We wish him representation to disadvantaged it could use the group’s reports to years’, she added, pointing to well in the months ahead and people in a stg£20 million shake- help the authorities in Eastern judges in the recent Bula court case promise him our full help and co- up of Britain’s legal aid service. Europe and Russia who were try- taking down evidence on their operation in his endeavours’. The community legal service – based on the Legal Aid Board’s existing regional legal services Year 2000 and computerised accounts committee – will deliver services where they are most needed, the he Law Society’s Technology emphasised that the onus lies remedying the problem unless British Lord Chancellor pledged TCommittee would like to bring with each office to ensure that you formulate a plan of action recently. to the attention of members of the their system is in order. The fol- now profession the dangers for their lowing points should be borne in ● It is not enough to accept your CLASP reception practices regarding their comput- mind: software supplier’s assurance. Concerned Lawyers for the erised accounts and the Year 2000 ● It is the responsibility of each Follow the matter up until you Alleviation of Social Problems problem. office to ensure their accounts receive your new software and (CLASP) will hold its annual Many solicitors will have system works properly have it fully approved by your cheese and wine reception on accounts packages that are not ● The Law Society does not own accountant. Friday 11 December at 7.30pm at Year 2000 compliant. It will be the have the resources to take part King’s Inns. Proceeds from the responsibility of each office to in remedying the problem (See also page 25-27 and practice evening will go to a number of ensure that their system operates ● There will be little chance of note on page 33.) charities. For tickets and infor- correctly on 1 January 2000. They mation, contact Josepha should immediately contact their Madigan (tel: 01 6689143) or supplier to confirm whether their Volunteers needed for Murrough O’Rourke (tel: 01 package is Year 2000 compliant 8724379). and, if not, what steps will be taken solicitors’ helpline to remedy the situation and when he solicitors’ helpline has selves in personal and professional Compensation Fund payouts these will be put in place. This con- Treceived over 1,000 calls from difficulties and need advice. The following claim amounts firmation should be obtained in members since it was set up four The line is open 24 hours a day were admitted by the writing and the promised date fol- years ago. The Dublin Solicitors’ and is ‘manned’ by two consul- Compensation Fund Committee lowed up. If proper steps are not Bar Association (DSBA), which tants, one in Dublin and one out- and approved for payment by taken, the packages involved will set up the service, is now looking side the capital. Callers simply the Council at its meeting in not be operable after 31 December for more volunteers to join the phone the helpline number, and November: Conor McGahon, 19 1999. committee which runs it. are given the consultants’ num- Jocelyn Street, Dundalk, Co The Law Society does not have According to one of the helpline bers. They can then ring the con- Louth – £163,151.04; John J the resources to ensure that soft- founders, Hugh O’Neill, the sultants in complete confidentiali- O’Reilly, 7 Farnham Street, ware suppliers take the necessary helpline was set up four years ago ty and anonymity. The helpline Cavan, Co Cavan – £200. measures, and the Society has to aid solicitors who find them- number is 01 2848484.

DECEMBER 1998 LAW SOCIETY GAZETTE 11 NEWS

Ireland poised for big slice of BRIEFLY President to chair billion-dollar e-commerce cake licensing debate Law Society President Patrick reland could win a major share of O’Connor will chair a conference Ithe $300 billion e-commerce on liquor licensing reform at the market, according to the Minister Red Cow Inn, Moran’s Hotel, for Public Enterprise and Employ- Naas Road, Dublin, on 26 ment Mary O’Rourke. Speaking at January 1999. Speakers will a recent Law Society New horizons include Justice Minister John business breakfast on the future of O’Donoghue and Fine Gael TD the telecommunications industry, Charlie Flanagan, chair of the the Minister said that the Govern- Oireachtas liquor licensing ment’s recently-unveiled blueprint reform sub-committee. for the future should ensure that this country would become ‘a Taxman launches euro guide European hub for e-commerce’. The Revenue Commissioners ‘We have a great deal of advan- have launched a booklet giving It’s for you: Minister Mary O’Rourke and Law Society President Patrick tages going for us’, O’Rourke told advice to businesses considering O’Connor, with Donal O’Connor (left) of PriceWaterhouseCoopers, at the her audience. ‘We have a very edu- New horizons business breakfast changing their tax from punts to cated workforce, which has shown euros. Revenue and the euro: a significant skills in computer soft- ness breakfast that the legal profes- he said. ‘Statutory protection is business guide was launched by ware and IT. Equally as important sion had a substantial role to play essential to prevent fraudulent Finance Minister Charlie is the fact that Ireland will be the in the growth and imminent liberal- uses of new technologies. Data McCreevy last month. Copies only English-speaking country in isation of the telecoms industry. protection, rights of privacy and of the guide will be available the Eurozone’. ‘New forms of work and new intellectual property rights are from all tax offices or from Law Society President Patrick methods of communication require issues that must be looked at in the Revenue Commissioners’ O’Connor told guests at the busi- an appropriate legal framework’, their technological context’. changeover unit (tel: 1890 200 255). It will also soon be available on the Commissioners’ Society ‘has will to police advertising’ Internet site www.revenue.ie. ith the enactment of the in the previous year, and dis- been allowed. ‘WBill, the Law Society cussing the subject with solici- Responding to telephone Male victims of domestic will have the teeth, and I can tors all over Ireland, he was per- callers, complaining about fraud- violence speak out assure you, Marian, that we also fectly satisfied that over 95% of ulent claims being brought by AMEN, the voluntary support have the will to enforce this leg- solicitors supported the pro- solicitors, the Director General group for male victims of islation’, Law Society Director posed ban. Advertising of this said: ‘the fact of the matter is that domestic violence which was set General Ken Murphy recently type had contributed to the the people of Ireland are served up last year, is hosting what it told Marian Finucane on RTE decline in public esteem for the by a legal profession which is claims is the first-ever European Radio 1’s Liveline programme. legal profession, and most solic- extremely honest, conscientious conference on male victims of Murphy was participating in a itors regretted that it had ever and able’. domestic violence. The confer- solicitor advertising 45-minute ence, called The silence is over, debate and phone-in which also will be held on Thursday 10 involved Dublin solicitor Tom Younger Members December at the University Baldwin. Industry Conference Centre in Baldwin strongly defended Remuneration Survey University College Dublin. what he described as his right as he responses to the Younger are paid considerably less than Further information can be a plaintiff personal injury lawyer TMembers Remuneration their male counterparts. This obtained from Mary Cleary on to advertise his services. He Survey have been examined and a appears to be the case even at 046 23718. believed that such advertising preliminary report has been pre- newly-qualified level and the gap was in the interest of the public sented to the Law Society increases with each extra year fol- Newspaper ‘free wills’ and a ban would only serve the Council. It was recognised that, as lowing qualification. There also promotion: a clarification interests of the insurance lobby. the survey was not carried out on appears to be a considerable dis- The Law Society is aware that a However, Murphy replied a professional basis, total reliance parity between salaries paid to Sunday newspaper is running a that a ban on personal injury could not be placed on its find- Dublin solicitors and those work- ‘free wills for readers’ promo- advertising by solicitors was a ings. The Council decided that the ing outside Dublin. The results tion. The Society points out to public policy decision taken by report should be referred to the are being submitted to further members that it in no way the Government and unani- Society’s Co-ordination Commit- evaluation, perhaps with profes- endorses this promotion. It is mously supported by the Law tee for further consideration. The sional assistance, with a view to entirely up to the discretion of Society Council. In his personal preliminary results raised some producing, in due course, a valid members if they wish to partici- experience, having visited 27 interesting issues. It suggested and reliable analysis of the data pate in this promotion. county-based bar associations that, on average, female solicitors that has been collected.

DECEMBER 1998 LAW SOCIETY GAZETTE 13 NEWS All-party support for ban on compo adverts

The Dáil debated the second stage of the Solicitors (Amendment) Bill, 1998 for some two hours on 18 November 1998. To give a flavour of the debate, here are the opening remarks of the Minister and of the two opposition Justice spokesmen.

ohn O’Donoghue TD sion about it. There was a great J(Minister for Equality and deal of soul-searching and the Law Reform): ‘The main pur- decision, when made, was by way pose of this Bill is to place more of postal ballot and was carried by effective controls on the nature the slimmest of margins. and extent of advertising by solic- ‘The second instrument itors, particularly in the area of responsible in part for encourag- personal injuries. The Bill speci- ing the culture of compensation fies what may and may not be was the Solicitors (Amendment) contained in solicitors’ advertis- Act, 1994. There is no doubt that ing generally. It prohibits adver- this opened the door further. tising which expressly or by While it sets down a series of implication refers to claims for guidelines, rules, strictures and damages for personal injury and sanctions for any breaches, the treats contravention of the adver- reality is that not alone have these tising provisions in the Bill as not been effective but the relax- misconduct by a solicitor for the Dáil Eireann, where the Solicitors (Amendment) Bill is entering ation of the ban on advertising has purposes of the Solicitors Acts. its final stages been the single greatest stimulus The Bill also removes difficulties for the spate of compensation and anomalies in certain proce- times personalised. The advertis- relevant in the context of this Bill claims which annually records a dures of the Disciplinary Tribunal ing in question has brought the as it was in 1988. He stated that dramatic increase. That legisla- for the solicitors’ profession, and good name of the solicitors’ pro- “sound ethical conduct is the tion lifted the lid, and it is impos- it strengthens the power of the fession into disrepute. Advertising foundation on which any profes- sible at this stage to put the genie Law Society to prohibit contra- by solicitors in relation to army sion should base the conduct of its back in the bottle’. vention of the Solicitors Acts in hearing impairment cases is but business”’. Pat Upton TD (Labour): ‘I relation to advertising and other one example of the kind of adver- Jim Higgins TD (Fine Gael): welcome the opportunity to matters concerning the conduct of tising which this Bill aims to deal ‘While I welcome the Bill, it is address the House on this Bill. It solicitors. with. The intention of the Bill is to too little too late. It is akin to clos- is necessary to protect the con- ‘The Law Society has indicat- ensure that the solicitors’ profes- ing the stable door when the horse sumer from being enticed into ed its support for the Bill and I sion as a whole will work within a has bolted. The compensation taking legal action arising from welcome that support. It is impor- reasonable standard advertising culture rampant in this country advertising, but it will also put a tant that the Society has made code. The reality, which cannot be derives from two decisions in halt to the emergence of large- clear its position because it is the ignored, is that the actions of a which the Minister’s party played scale advertising by companies, general regulatory body in rela- few, have tended to lower the pub- central roles. First was the Law not operated by solicitors, who tion to the solicitors’ profession. lic’s respect for the profession. It Society decision of 1988 to relax offer legal services in respect of The Society has indicated that is time now for this matter to be the rules governing advertising by personal injuries. while the present law provides for addressed. solicitors. It is worth recalling the ‘While the Bill is a measure to limited control of advertising, it is ‘The Law Society carried out Law Society made its decision in protect the consumer, it must be not adequate to deal with the admirable work on a code of con- 1988 after much agonising and remembered that when the ban on excesses which have become duct over a long period of time under threat from the advertising by solicitors was lift- prevalent among some of its which culminated in 1988 in a Government of the day that, if it ed, it was not done at the behest members. code, A guide to professional con- did not drop the prohibition on of the Law Society. Therefore, I ‘Advertising by a small num- duct for solicitors in Ireland. It is advertising, the Government advise against large-scale solici- ber of solicitors is blatantly liti- the work of many eminent solici- would introduce legislation to tor-bashing during this debate. gious. It openly invites persons to tors and it is a monument not only ensure it did so. It was the era of However, I also acknowledge make claims and it stirs up busi- to them but to the wisdom of the open and free competition. Knife- there are legal practices which ness involving claims against Society in promulgating the work edge, cut and thrust competition take huge advantage from the lift- employers, occupiers, State and bringing it to finality. The was the order of the day. It may ing of the ban which have done organisations or any other mark foreword to that code of conduct have seemed a sensible decision nothing to abate the compensa- for damages. This advertising is by the then President of the at the time, but there was grave tion culture that has emerged in pushy, “in your face”, and some- Society, Thomas D Shaw, is as anxiety within the legal profes- recent years’. G

14 LAW SOCIETY GAZETTE DECEMBER 1998 NEWS ANALYSIS La Touche Bond Solon Expert Witness Conference 1998 The first-ever Irish conference on the role of expert witnesses was held in Dublin last month and boasted an impressive line-up of speakers that included Supreme Court judges, practising lawyers and experienced experts. Barry O’Halloran was there to hear what they had to say

he new court rules (Statutory sel and judges. ‘It follows that such TInstrument 391) governing the reports should be factually accurate use of expert evidence will oblige and opinions should be carefully experts to be much more objective reasoned’, he said. in their testimonies, according to ‘They should contain all relevant Mark Solon, managing director of information known to the expert Solon Bond. Solon, whose compa- which he believes is necessary for a ny trains expert witnesses in the fair, objective assessment of the par- UK, told the Gazette that the rules ticular problem in question. If that introduced in October mean that necessarily includes information experts will have to be independent which is prejudicial to the plaintiff, servants of the court and not advo- so be it’. (From left): Mark Solon, managing director of Solon Bond, former Law cates for one side or the other. Justice Barr added that, in those Society President Laurence K Shields, and solicitor Caroline Conroy, circumstances, it was up to the plain- managing director of La Touche Bond Solon Training tiff and his legal advisors to decide whether they should pursue the experience’. As well as qualifica- with any solicitor they were work- claim. Alternatively, he said, they tions, he added, experts had a duty ing with to withdraw from the case could consider the possibility that to be objective, keep records, and to or to expressly limit their involve- applying to the court to have the explain technical or scientific points ment if the situation was not prejudicial information excluded in layman’s terms. cleared up. from the report might be successful. McCann FitzGerald partner Other speakers at the conference Former Law Society President Roderick Bourke urged greater included Paul Behan, managing Laurence K Shields, who opened the communication between experts partner of Behan & Associates, who conference, argued that neither side and the solicitors instructing them. dealt with the taxation of experts’ should pay expert witnesses, thereby ‘Good communication from the costs, Garret Cooney SC, who dis- Mr Justice Hugh O’Flaherty: experts guaranteeing their objectivity. ‘Be- start about expectations, costs and cussed cross-examination, and con- have a duty to be objective and to cause they are paid, they must have other relevant matters will help sultant hand-surgeon John Varian, explain technical terms some leaning one way or the other’, avoid difficulties’, he said. And he who spoke about the relationship he said. ‘The expert must always try advised experts who had difficulties between solicitors and experts. G ‘We have maintained the fiction to be honest and objective’. that expert witnesses are objective He added that because each party New expert witness book published servants of the court, but the fact is pays experts, they often end up as that they are being paid by one side advocates and not as balanced and and they give evidence to that side fair witnesses. Shields pointed out because they will want to be that it was not in any litigating instructed again’, he argued. ‘But party’s interest to have an expert now they will have to assess cases witness whose evidence clearly sup- on both their strengths and weak- ported one client’s position unless nesses and be transparent, because their opinion actually coincided with otherwise they will be caught out’. that position. Solon was speaking after last Mr Justice Hugh O’Flaherty told month’s Expert witness conference, the conference that one of his idols – organised by his firm’s Dublin- Peter Falk’s TV cop Columbo – set A panel of experts: (from left) radiologist Professor Max Ryan, based sister company, La Touche a lot of store by ‘the boys down in publisher Bart D Daly, Adrian Hardiman SC, and State Pathologist Bond Solon, in Dublin’s Royal the lab’. But he said the courts had Professor John Harbison Hospital in Kilmainham. to take a different approach before Last month’s expert witness conference was also the venue for the launch Justice Robert Barr echoed this their evidence could be given its of a new book on the subject. The role of the expert witness, edited by sentiment in a talk which assessed proper weight, or was found admis- Bart D Daly and published by Inn’s Quay Ltd, was officially launched by the impact of the new court rules. sible. the most experienced expert witness in the country – State Pathologist He warned potential expert wit- ‘It is a general principle that the Professor John Harbison, who also contributed a chapter to the book. The role of the expert witness (1998), edited by Bart D Daly, Inn’s Quay nesses that their reports would opinions of a skilled witness are Limited, Richmond Business Campus, North Brunswick St, Dublin 7. ISBN: become evidence and would be admissible’, he said. ‘Those skills 1-902354-01-X. Price: £24. scrutinised by both opposing coun- are based on specialised study and

DECEMBER 1998 LAW SOCIETY GAZETTE 15 E-mail as evid willwill itit stasta

Advances in new technology mean that fewer and fewer documents are actually being produced on paper. The fax is increasingly preferred to the postal service, and e-mail is poised to overtake them both. Kieron Wood considers the evidential problems associated with computerisation and asks the important question: can you make it stand up in court?

here is a tale – apocryphal, I’m sure – of an eminent senior counsel in the Law Library who was observed standing for a quarter of an hour in front of a fax machine. A young librar- ian asked him if he needed any help. ‘This machine’s not working properly’, he complained. ‘Every time I put this fax Tinto it, it comes back out the other side!’ Perhaps one should not judge the man too harshly. After all, it was only a very few years ago that a senior Bar Council official expressed conster- nation at the suggestion that every barrister should have his own telephone. Traditionally, Irish lawyers have not been noted for being technophiles, but all that is changing. Increasingly, solicitors and barristers are turning to new technology to reduce costs and improve efficiency. A feature on Irish firms on the Web in the December 1998 edition of the Internet newsletter for lawyers (http://www.venables.co.uk/legal) describes Irish legal web sites as a ‘growth industry’. Almost 40 firms of Irish solicitors now have their own sites on the Internet. Hundreds of solicitors have e-mail addresses. In Britain, solicitors’ practices are even more heavily computerised. A survey by LawNet this summer showed that almost two thirds of UK solicitors’ practices had e-mail, while one third had their own web site. Every practice surveyed used computerised accounting and reporting systems and all planned to adopt computerised case-management systems. Computers are being used to communicate between lawyers and clients, as well as between solicitors and counsel. Electronic mail is replacing letter post. The fax machine – still an indispensable part of almost every solicitor’s practice – is rapidly being replaced by the paperless fax, e-mail. Similarly in industry, e-commerce is taking the place of ledgers, order books and written contracts. But the advent of new technology has brought with it new legal problems. Should the law and the rules of court be changed to account for the IT revolution and to facilitate the admission of computer evidence, such as faxes and e-mails? The common law allows only evidence which complies with the rules

16 LAW SOCIETY GAZETTE DECEMBER 1998 COVER STORY dence: BYRNE PIC: ROSLYN andand upup inin court?court?

governing admissibility. In general, admissible evidence must be relevant to the proof of a fact in issue, to the credibility of a witness or to the relia- bility of other evidence, and the evidence must not be inadmissible by reason of some particular rule of law. In relation to computer evidence, a dis- tinction must be drawn between real evidence (such as evidence of a computerised calculation performed without human assistance) and evidence which may be hearsay, such as a printout of an e-mail. Other jurisdictions have already begun to grapple with the evidential difficulties caused by computerisation. The seminal 1965 English case of Myers v DPP – in which computer records were disallowed as hearsay – led to a change in the law in England. Section 4 of the UK’s Civil Evidence Act 1968 allows the admissibility in civil proceedings of a statement in a document ‘as evidence of any fact stated therein of which direct oral evidence would be admissible, if the document is, or forms part of, a record compiled by a person … who had … personal knowledge of the matters dealt with’. Twenty years later, section 24 of the UK’s Criminal Justice Act 1988 similarly permitted the admission in criminal proceedings of a statement in a document ‘as evidence of any fact stated therein of which direct oral evidence would be admissible’, subject to certain conditions. Ireland began to catch up in 1992 with the Criminal Evidence Act, which allows the admission of certain computer evidence in criminal trials. Section 5(1) says that ‘information contained in a document shall be admissible in any criminal proceedings as evidence of any fact therein of which direct oral evidence would be admissible if the information: a) Was compiled in the ordinary course of a business b) Was supplied by a person (whether or not he so compiled it and is iden- tifiable) who had, or may be reasonably supposed to have had, personal knowledge of the matters dealt with, and c) In the case of information in non-legible form that has been reproduced in permanent legible form, was reproduced in the course of the normal operation of the reproduction system concerned’.

The definitions of ‘document’ in the Act include computerised reproduc- tions in a permanent legible form of information stored in non-legible form, such as printouts of data on a hard drive, floppy disk, Zip or Jaz drive or the older forms of magnetic tape and punched card. The contents of a document could include anything from a fax or e-mail to information on drugs deals (as in the 1996 Scottish case of Rollo v HM Advocate, where the Court of Criminal Appeal decided that an electronic notepad qualified as a ‘document’). Section 30 of our 1992 Act also allows admission of an authenticated copy or fax of a document. Throughout the common-law world, the courts have come to appreciate that the advent of the paperless society is a reality which can no longer be ignored. Clearly, the courts cannot insist on production of the originals of letters, contracts, business records, invoices or other communications if such items were never committed to paper in the first place. As long ago as 1966, in the English case of R v Maqsud Ali (where a jury

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Please return to Law Society Gazette, Blackhall Place, Dublin 7. COVER STORY had to be supplied with a transcript of a tape record- does not need to be served personally may be ing of a conversation in Punjabi), the Court of served by fax. Appeal said: ‘It does appear to this court wrong to The usefulness of the rule became evident in deny to the law of evidence advantages to be gained the 1998 case of Lady Elizabeth Anson v Ivana by new techniques and new devices, provided the Trump ([1998] 3 AER 331). Mrs Trump had asked accuracy … can be proved; provided also that the Lady Anson to organise a party for her and paid evidence is relevant and otherwise admissible’. her a £10,000 deposit, but she baulked at the final Ten years later, in the English case of Senior v bill for a further £26,500. The defence was served Holdsworth, the court stressed: ‘These new inven- out of time by fax at 9.42am on 22 November tions are capable of providing the most valuable 1996. At 10am – without having seen the fax – the evidence and the court should have the means of plaintiffs entered judgment in default. making them available. We are the masters of our The High Court dismissed an application to set own procedure and have the authority to adopt it to aside the default judgment, but on appeal Lord meet the needs of the time’. Otton said that a faxed document should be Other common-law jurisdictions have taken the deemed served as soon as it arrived in the recipi- same view. In the 1990 Australian case of ANZ ent’s fax machine, even if it was not printed out or Banking Group Ltd v Griffiths, Millhouse J said: seen until some time later. He remitted the claim to ‘Courts are accused of being old-fashioned in out- the County Court for determination of the out- look, conservative in method, resistant to change standing sum. and behind the times. We try not to be, and sometimes succeed. We can at The English experience has shown that the rules and legislation can be least try to keep up with current business practices. Computers seem to rule successfully updated. Now is the time for Irish legislative draughtsmen to in business today. Courts should accept that, and be prepared to facilitate consider wide-ranging provisions to permit the introduction in evidence of proof of business transactions generated by computers’. printed material derived from computers. They might do worse than con- And in September of this year, the New South Wales District Court in template section 25 of the UK’s Criminal Justice Act 1988, which says that Australia ruled that internal e-mails sent between staff at the NSW a court considering the admissibility of a statement shall look at: Environmental Protection Authority could be discovered as ‘documents’ a) The nature and source of the document containing the statement, and under the Freedom of Information Act. whether or not … it is likely that the document is authentic b) The extent to which the statements appear to supply evidence which The next big challenge facing the law would otherwise not be readily available Lord Justice Henry Brooke, president of the Society for Computers and Law, c) The relevance of the evidence … to any issue … to be determined in the has predicted that electronic commerce is ‘the next big challenge which the proceedings, and law must face’ and has urged that documents in electronic form need to be d) Any risk … that its admission or exclusion will result in unfairness to the treated by the courts as equivalent to traditional paper documents. Such a accused. proposal requires changes in the rules and in the law – particularly in the area of statutory interpretation. In Britain, the Society for Computers and Law has That broad range of considerations would seem to encapsulate the mat- recommended changes to the law to allow companies to convert existing ters to which effect could be given in Irish law to permit the statutory hard-copy records to electronic form and to allow electronic messages to be admissibility of computer records as evidence in civil matters. G treated as writing and to be signed electronically. The Society also proposes changes to the UK’s Interpretation Act 1978 to allow electronic documents Kieron Wood is a practising barrister. A member of the Bar Council’s to be treated as writing. ‘Signature’ would be newly defined as ‘any process working party on web sites, he is currently the only Irish barrister with performed on a thing to be signed which alters or adds to its information or his own web site (at http://welcome.to/barrister). He is the author of The content and identifies the signatory and evinces his adoption of the writing High Court: a user’s guide (Four Courts Press) and co-author – with or other things to be signed’. solicitor Paul O’Shea – of Divorce in Ireland (O’Brien Press). But in Ireland there is still no legislation or rule which would allow for the unchallenged admission of Bibliography computer documents in civil cases. The Bradgate, R: The evidential status of computer output, (1990) 6 Computer Department of Justice says a Civil Evidence Bill Law and Practice 142 is ‘in preparation’, but its completion is ‘a matter Brooke, Lord Justice: IT and the English courts, Computers and Law of priorities’. Ireland’s Law Reform Commission (June-July 1998, p11) has similarly not grasped the nettle. Kelleher D and Murray M: Information technology law in Ireland The Rules of the superior courts remain mired in (Butterworths, 1997) the pre-computer age. ‘Writing’, for example, is defined Law Commission: Consultation paper no 138: Evidence in crimi- by order 125 as ‘printing, typewriting, lithography, photog- nal proceedings: hearsay and related topics (HMSO London, raphy and other modes of representing or reproducing words in 1995) visible form’. Miller, CG: Computer-generated evidence: implications for the The old-fashioned tenor of the rules is further reflected in order 117, rule corporate user (1990) 6 Computer Law and Practice 178 5 (e), which says that ‘a printed copy’ of any document to be attested shall be Reed, C: Computer records as evidence: back to the beginning? left with the Superintendent of Typists’, while order 117, rule 8(1) says every (1993) Journal of Business Law 505 copy of a document furnished to another party shall be ‘clearly and legibly Tapper, Colin: Reform of the law of evidence in relation to the out- written on paper of durable quality’. The computer age is similarly ignored put from computers, 3 International Journal of Law and by order 123, which concerns the appointment of ‘a shorthand writer’. Information Technology 79 The English courts, on the other hand, have begun to bring their rules up- Tapper, Colin: Evidence (Encyclopedia of Information Technology to-date. Order 65, rule 5, for example, provides that any document which Law, Sweet and Maxwell, 1997).

DECEMBER 1998 LAW SOCIETY GAZETTE 19 Irish lawyers and the

The First World War ravaged Europe for four years and every section of society, every profession, suffered its effects. The legal profession in Ireland was no exception, and here Daire Hogan looks at the contribution of Irish lawyers in the ‘war to end all wars’

he carnage that took place in Europe The greater integration of women in econom- between the declaration of war in August ic activity outside the home during the war was T 1914 and the Armistice in November a factor which contributed to the passing of the 1918 transformed political structures and social Sex Disqualification (Removal) Act 1919, which life and human sensibility generally across set aside the long-standing prohibition on the Europe. The fact that the War of Independence admission of women to the legal profession and and the Civil War followed almost immediately other walks of life. in this country, and lasted almost as long, and On 11 November this year, on the 80th that from 1916 onwards public opinion turned Anniversary of the Armistice, a Peace Park in against the war and conscription, has tended to which stands a new round tower was opened at minimise public recognition of the effect which Messiness in Belgium by President Mary it had in this country and of the part played by McAleese, in the presence of Queen Elizabeth Irish men and women. of Britain and the King of the Belgians, as a commemoration of all people from the island of Ireland who lost their lives and suffered in the war. The park is the work of many people on both

© IRISH TIMES sides of the Irish border, working through the Journey of Reconciliation Trust, under the leadership and joint chairmanship of Paddy Harte and Glen Barr. (I should declare an interest as a friend and admirer of Mr Harte and his untiring work for many years for peace and reconciliation and mutual respect for all traditions throughout Ireland.) Members of the Irish legal profession and their families made a significant contribution to the war, and the sacrifices of life and health made by so many deserve to be recalled and honoured. Over 50 members of the profession died in the course of the war, 25 members of the Bar, 20 Irish solicitors and 18 apprentices. Over 125 members of the Bar joined the armed forces, and 155 solicitors and 83 apprentices. Many of those who survived (and there were clearly significant odds that a volunteer would not survive) were wounded in body or mind by their experiences. Memorials at the Bar Library Paddy Harte and Glen Barr speaking at the and at Blackhall Place commemorate these The memorial at Blackhall Place dedication of the Island of Ireland Peace Park brave people (see picture opposite). commemorating solicitors and apprentices in Messiness last month The best-known members of the legal profes- who died in the First World War

20 LAW SOCIETY GAZETTE DECEMBER 1998 LEGAL HISTORY Great War sion who died in the war were Major Willie Redmond, who died at Messines on 7 June 1917, and Tom Kettle who died at the Somme in September 1916. Major Redmond was the MP

PIC: ROSLYN BYRNE PIC: ROSLYN for East Clare and at the by-election following his death Eamon de Valera was elected for the first time to represent the people of Clare. Eugene Sheehy, who was called to the Bar in 1910 and afterwards served for over 20 years as a judge of the Circuit Court, gave a long account of his service on the Western Front in his pleas- ant memoirs May it please the court (1951). Many people who did not join up played a part in the war effort. One example out of many direct and indirect contributions was the Four Courts Auxiliary Munitions Association. This was set up in 1916 to arrange lawyers and officials in the Four Courts to work in factories at weekends to manufacture ammunition with, as the Irish Law Times reported, ‘due precautions having been taken to prevent friction with the ordinary workers who, with their employers, have welcomed the scheme most heartily’. On 11 November 1919, as the Irish Law Times also reported, ‘the judges were in attendance a few minutes before 11 o’clock and at the appointed time their Lordships, the barristers and all others in the several courts stood up for the appointed time. In the Court of Appeal the Lord Chancellor, addressing Mr Serjeant Sullivan, who, with a large number of King’s Counsel, was seated in front, said that as this was the anniversary of Armistice Day they, in compliance with the expressed desire of His Majesty the King and in memory of the glorious dead, would suspend the business of the courts and remained standing in silence for two minutes’. Thousands of Irish people, including judges and lawyers, have been killed in the course of war or terrorism during this century. The Peace Park and its new war memorial will be a testimony to the heroism and sacrifice of those who served in the Great War, and hopefully increase interest in the part that people in Ireland played in the war and in the lessons that can be learned from the healing effects of time and of states- manship in the resolution of conflicts. G

Daire Hogan is a partner with the solicitors’ firm McCann FitzGerald and a former president of the Irish Legal History Society.

DECEMBER 1998 LAW SOCIETY GAZETTE 21 Freedom of Information Act: who’swho’s usinusin

Official statistics show that so far over 1,000 people have made requests under the Freedom of Information Act, 1997 to gain access to records held by the Irish government and public bodies. So who is using the new legislation and what are they looking for? David Meehan examines the figures for early trends and discusses how we compare with other FOI jurisdictions

22 LAW SOCIETY GAZETTE DECEMBER 1998 FREEDOM OF INFORMATION ngng it,it, andand why?why?

he Freedom of Information Act, 1997 in Canada, while in the United States business- has been in operation for central gov- es operating in the highly-regulated food man- T ernment and specified statutory bodies ufacturing and pharmaceutical sectors have since 21 April 1998, and only recently entered submitted as much as 85% of requests to the into force in October 1998 for local authorities Food and Drug Administration, either them- and health boards. Initial figures on the use of selves or through agents. In contrast, the media the Act for the period 21 April to 31 July have – acknowledged high-profile supporters of FOI been collected centrally by the Department of legislation – have turned out to be less prolific Finance. It is too early to assume that the fig- users in practice, coming in at 10% or less in ures accurately represent what will be normal Canada and the United States. usage once the Act settles down. Nevertheless, The early indications from Ireland suggest they make for interesting reading and suggest that user profiles conform to international pat- that trends in Ireland are already beginning to terns to the extent that most requests for access reflect some particular characteristics of our to officially-held records are for personal files. FOI legislation. However, with regard to non-personal files, use by business interests at 10% is a fraction of Some international comparisons the commercial exploitation of FOI in other The first observation to be made is that the countries. In contrast, the 20% share of overall level of use of FOI compares requests currently attributed to Irish journalists favourably with other systems operating is at least twice that of the media in other coun- abroad. In little over three months, 1,208 tries. Another significant category is members requests have been lodged with Irish central of the Oireachtas who have put in just over 7% government departments and statutory bodies. of requests, a figure which mirrors the 8% Projected on an annual basis, this suggests that share of Australian parliamentarians early in there could be up to 5,000 requests in the first the life of their FOI Act. full year of the Act’s operation, exclusive of the additional requests which will have been Personal records made to local authorities and health boards. Of the 602 exclusively personal requests, the Whether the first quarter figure reflects ini- burden has fallen on six bodies, namely the tial enthusiasm or a low platform from which Revenue Commissioners (112), the Civil there will be substantial growth in future years Service Commission (54), the Defence Forces remains to be seen. However, to put the Irish (45), and the departments of Social, figures in some sort of context, the Australian Community and Family Affairs (109), Justice federal FOI Act produced approximately 5,000 (65) and Agriculture (51). The identities of requests in its first year of operation, taking personal user-types and their purposes are not three further years to reach what would now be easy to discern. Nevertheless, it is possible to considered a normal level of approximately draw some tentative conclusions from avail- 35,000 requests a year. The Canadian federal able statistics. FOI Act, generally considered to be more For instance, at 259 requests, public service restrictive than the disclosure regimes in staff represent the largest single FOI user- Australia and the United States, was running group. At the very least, individual members of consistently at just over 10,000 requests a year, the public service were responsible for over 50 with figures moving up towards 15,000 in the requests for personal records to the Revenue latter half of the 1990s. Commissioners, 30 to the Department of The breakdown of FOI user-types produces Social, Community and Family Affairs and 20 some interesting results. In the United States to the Defence Forces. The motivation for and Canada, a high proportion of FOI requests these requests is not stated, and indeed the FOI are made by business and corporate interests. Act does not require requesters to give reasons This segment accounts for 55% of all requests for their queries. However, in other countries,

DECEMBER 1998 LAW SOCIETY GAZETTE 23 FREEDOM OF INFORMATION many requests for personal records are simply Disclosure and the media development of information consultancy in to inspect officially-held information, with In a pattern which almost exactly mirrors the Ireland, it should be noted that despite the other significant proportions relating to staff breakdown of business requests, three-quar- restrictive commercial confidentiality provi- promotion disputes or to existing or potential ters of the 234 requests made by journalists sions in Canada’s legislation substantial infor- litigation. The latter categories may account have concentrated on six departments: mation-mediating services have developed for some of the requests filed with the Defence Enterprise, Trade and Employment (53); there, for instance, in relation to tax affairs. Forces, and there may be similar reasons Health and Children (38), Justice (31), Some existing arrangements will, however, underlying requests made to the Blood Finance (21); the Taoiseach (17) and Public be significantly affected. The general experi- Transfusion Service Board. Enterprise (16). Responses to FOI requests ence of common-law jurisdictions with reason- have yielded diverse material for articles on ably long-standing FOI laws is that the bulk of Business requests Dublin light rail and Donegal as a manufactur- overall requests is made by individuals for The apparently poor business appetite for dis- ing location, as, indeed, have some con- their own personal records. With the exception closure could be a simple consequence of a tentious refusals of requests. of medical records, access to personal informa- general lack of appreciation of FOI’s potential This early trend runs contrary to research in tion is largely uncontroversial and will proba- for securing officially-held details on, for the United States and Australia which indi- bly be routinely facilitated. instance, public procurement, or on policy and cates that, as FOI procedures are almost The specific case of medical records has decision-making in the regulated sectors. On always too slow to satisfy tight deadlines, given rise to criticisms levelled by, among oth- the other hand, it could be the dividend for journalists in the main prefer to rely on leaks. ers, medical practitioners on the issue of confi- restrictions placed on access to commercial However, recent disclosures of sensitive offi- dentiality in the doctor-patient relationship. information by the framers of the Act who cial reports, memoranda and minutes of meet- Much has been written on the common law and were concerned that FOI should not become an ings suggest that the Irish media are happy to the doctrine of medical confidentiality. instrument of what some United States com- use FOI perhaps not solely in its own right but However, by introducing a statutory right of mentators have described as State-sponsored possibly also as a complement to leaks. access to information held by the State or ‘industrial espionage’. State-supported institutions, the FOI Act has More specifically, it is worth highlighting Prospects and emerging problems radically altered the legal landscape. Although three restrictions on access to business and It is, perhaps, too much to expect the Freedom the Act does indeed lay down specific condi- commercial information under the Irish Act. of Information Act to have immediate and pro- tions under which records can be withheld, Section 27 obliges public authorities to with- found impacts on the attitude of all public bod- general legal concerns lean towards enabling hold disclosure where trade secrets, competi- ies to disclosure. The United States, which in disclosure in an overall context of maintaining tively prejudicial information or information 1966 spawned the first FOI system among the personal privacy. Accordingly, it may well be relating to contractual negotiations are con- common-law countries, had to wait until sub- advisable for medical practitioners to be pre- cerned. There are limited instances, such as the stantial amendments in 1974 to make FOI an pared for worst-case scenarios such as the use ‘public interest’, which override the protec- effective legal instrument. of FOI by patients to support potential claims. tion. However, the dominant character of the Australia, Canada and New Zealand all As for the media, the twin barriers of tradi- section 27 exemption from the Act’s presump- introduced laws in 1982 which were influ- tional official secrecy and restrictive defama- tion in favour of access is to secure commer- enced by the US Act, but also adapted to local tion laws make FOI procedures an attractive cial information from disclosure to third par- considerations. Australian FOI experienced a source of important documentation for inves- ties. slow start followed by a lull at the turn of the tigative reporting. As long as formal requests A further restriction that can apply to dis- 1990s before enjoying a surge in recent years. yield direct results or encourage more open and closure of commercial information is the sec- Progress has been slowest in Canada, where as informal access to significant official information 26 prohibition on the granting requests for late as April 1998 the Information tion, FOI could develop into an important jour- information supplied to a public body ‘in con- Commissioner criticised the culture of secrecy nalistic tool. The surprising number of requests fidence’. This exemption is surprisingly exten- that ‘still flourishes in too many high places’. made by members of the Oireachtas suggests sive insofar as it includes within its terms The greatest success has been enjoyed in the that they see in FOI a credible and relatively information ‘required’ or which ‘could have United States where a simple framework dis- prompt source of relevant material. been required’ by law to be submitted to a pub- closure law interpreted liberally has encour- More reliable trends on use will only be lic body. aged an upward graph of request numbers and confirmed by longer-term statistics. Sounder The third restriction on commercial infor- the development of particularly vigorous busi- judgements on the quality of Irish FOI, and the mation concerns the statutory authorities ness, legal and voluntary FOI activities, assist- types of problems arising from procedures, which are not expressly identified in the list of ed by an increasingly sophisticated public ser- will probably have to wait for the results of lit- public bodies covered by the Act. The most vice. igation on the Act and official data on appeals notable absentees are trade and commercial The Irish system of FOI is a combination of made by requesters to the Information State agencies such as Enterprise Ireland, liberal principles strongly tempered by Commissioner. The Department of Finance has Forfas and the Industrial Development detailed exemptions relating to State interests, already reported that, by 31 July, 34 public Authority. Of course, the FOI Act does not commercial confidentiality and personal pri- body decisions on FOI requests had been prevent requests being made to the govern- vacy. The wider picture would suggest that appealed to the commissioner. A press item in ment departments that may be politically there will be a strong tendency for the govern- late September quoted a figure of 90 appeals, responsible for State agencies. In practice, the ment to be restrictive with respect to govern- and that of the ten cases the commissioner had 118 requests attributed to business have been mental decision-making, security and law decided on, nine were in favour of the mainly targeted at the departments of enforcement issues. As already noted, the requesters. G Enterprise, Trade and Employment (40), State has a broad capacity to restrain access to Health and Children (16), Finance (10), Justice business information held by its institutions. David Meehan is a Dublin solicitor and envi- (9) and the Taoiseach (8). Although this will act as a constraint on the ronmental consultant.

24 LAW SOCIETY GAZETTE DECEMBER 1998 PROFESSIONAL INDEMNITY

and the PIIMillennium TIMEBOMB

What, another article on the Year 2000 problem? hen informed of the Year 2000 problem, most people, including, ’Fraid so, but this one could have a real and sustained W ironically, many computer profes- impact on your practice. Before you dismiss all the sionals, say: ‘Well, I guess it could be a problem, but I’m sure they are working on it’. hype surrounding the so-called Millennium Timebomb, ‘They’ are the computer programmers who bear in mind that the insurance industry may refuse have been methodically scanning hundreds of millions of program instructions, replacing two you professional indemnity cover if you haven’t digit representations of the year with four digit taken adequate steps to ensure that your systems are years in computer systems. This massive task probably won’t be finished on time; there’s Y2K-compliant, as Cefyn James explains simply too much to do and most companies have started far too late. In addition, there is the date recognition problem of 9.9.99 and

DECEMBER 1998 LAW SOCIETY GAZETTE 25 TREAT YOUR STAFF OR CLIENTS TO CHRISTMAS LUNCH AT THE LAW SOCIETY!

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29.02.00, so many people from it. It is therefore rec- shrug their shoulders and ommended that, in the case refer to a different category of larger firms, their IT of ‘they’ – politicians, cor- advisers assist in providing porate managers and risk the information required to management agencies who complete the form. For the will be expected to organise single practising solicitor, it and plan an appropriate may be necessary to contact response to whatever goes the retailer from whence the wrong. computer system was purchased. In any event, a com- Anticpating the plete questionnaire has to be problem returned for insurers’ If you are willing to put inspection. your fate in the hands of Should the questionnaire ‘they’, then read no further not be fully completed to – but bear in mind that the their satisfaction, insurers Year 2000 problem is unlike will request written confir- normal forms of disaster. mation that each practice’s With Year 2000, we can computer system will be anticipate when the problem Year 2000 compliant by will begin occurring, but we don’t know the insurance profession. As there is no real indi- June 1999, together with details of the advice, extent of the damage that could be caused. It’s cation of the extent of the likely disruption, it if any, given to clients on the Millennium never happened before and there are no well- has been difficult for insurers to set an ade- issue and confirmation that all data stored on practiced contingency plans to draw upon. quate premium rate for the risks that are to be the computer system is backed-up with a hard Even if your own practice is Year 2000 com- underwritten. copy file. With such guarantees, insurers will pliant, you could still be affected by suppliers Recently, the Law Society’s Professional indemnify the solicitor for the statutory cover and clients whose systems are not. Indemnity Insurance Committee has met to and the Law Society will issue the required Depending upon the scope of their engage- address the implications of the Millennium practising certificate. ment, solicitors may find themselves implicat- Bug for practices of all sizes and the various The onus is therefore on the solicitor to ed in Year 2000 problem claims when they, for stances taken by qualified insurers on the provide the relevant information to ensure example: extent of cover available. Statutory Instrument full cover is awarded to each practice. 1 ● Fail to fulfil a duty to advise a company to 209 of 1998 saw the minimum limit of indem- January 1999 looms large on the horizon, and disclose Year 2000 problems or exposures to nity increased to £1,000,000 – an indemnity the Law Society will be unable to issue prac- investors or potential investors limit that provides cover for civil liability tising certificates to those who fail to secure ● Draft a sales or servicing contract that fails actions, including those arising out of date- unrestricted insurance cover. It is therefore to account for Year 2000 exposures or inad- recognition issues. imperative that renewal negotiations in vertently shift Year 2000 exposures to their respect of professional indemnity cover be clients Year 2000 questionnaire addressed immediately. ● Assist with the valuation of a closely-held Qualified insurers have agreed to provide You should not sit back and do nothing in company without addressing Year 2000 this ‘across-the-board’ limit, but any cover is the hope that the consequences of failure of exposures, or subject to details of the individual practices’ non-compliant computer systems and legal ● Fail to identify or address Year 2000 claims response to the potential Year 2000 problem. liabilities arising from system failures will be or exposures in drafting a settlement agree- As a result, insurance brokers conducting automatically covered under insurance poli- ment in litigation. professional indemnity renewals on behalf of cies. The purpose of insurance is to protect their solicitor clients – with the exception of against the unpredictable rather than the The problem appears grave and is an issue the Solicitors Mutual Defence Fund Ltd – inevitable, and the Year 2000 problem is a none of us can ignore. Yet the key to how well have issued, in conjunction with the normal known and well-publicised event. we can survive the event is the level to which annual renewal proposal form, a Year 2000 the risk of failure can be minimised. This questionnaire. The satisfactory completion Appropriate steps obviously requires finding the right balance of the questionnaire will result in full profes- Those insurers deciding to offer protection will between time, resource and budget – all of sional indemnity cover being provided to need to ensure that the policyholder has taken which are in short supply as the focus on the each solicitor and the issuance by the Law all appropriate steps to achieve Year 2000 com- Millennium issue increases with the passage Society of a practising certificate. The pliance – hence the plethora of additional ques- of time to 31 December 1999 and beyond. SMDF alone does not require the completion tionnaires that have been issued by brokers in In recent months, there has been much of this questionnaire before providing full the run-up to renewal of insurance policies. debate in the insurance market over the Year PII cover. (See also practice note from the And as each insurer’s stance on the issue looks 2000 problem and its impact on insurance Professional Indemnity Insurance Commit- to be unique, it is important that any concerns policies. Insurers have been taking legal tee on page 33.) should be addressed to your broker as soon as advice and developing their own positions The questionnaire is by its every nature possible. G regarding specific policy terms and condi- technical as it seeks to explore the extent to tions they wish to apply – so much so, in fact, which each practice has acknowledged the Cefyn James is an executive with insurance that there is no single position taken by the Year 2000 issue and the implications deriving company Sedgwick Dineen.

DECEMBER 1998 LAW SOCIETY GAZETTE 27 FFaceace to faceface w

Tune in, turn on and drop all that long-distance travelling associated with business meetings. Video conferencing allows you to link up with colleagues or clients anywhere in the world, whenever you need a one-to-one. Grainne Rothery reports

ideo conferencing integrates the latest on you’, he argues. ‘At the moment, I think audio, visual and communications there’s also a sense of shared adventure V technology to allow people to conduct between those participating and this helps to face-to-face meetings, regardless of their establish better relationships’. respective locations. The technology has Denis Cregan of PVL Communications developed rapidly over the past couple of Group, Stillorgan, Dublin, which supplies years with the result that prices have fallen, Sony video conferencing equipment in functionality has increased and the actual sys- Ireland, also believes that the overall quality tems have become considerably smaller in of meetings can be enhanced by video confer- size. Because costs were originally high, large encing. ‘By using this technology you can companies and academic institutions were the actually include a greater number of relevant first to be able to exploit the advantages of people at meetings, who may otherwise have video conferencing, but now, as systems been excluded if travel was involved’, he become more affordable, use of the technolo- claims. gy looks set to become more widespread. Cutting down on the need to travel to meet- First-hand information ings when visual interaction may still be need- Barbara Driver of Alcatel Business Systems, ed is the most obvious and probably the also located in Stillorgan, says that this can biggest advantage of video conferencing. have benefits for training and staff meetings. Time and money spent on travel can be dra- ‘People can hear about things first-hand rather matically cut, as can the disruption caused by than receiving information through other peo- having to leave the office for such meetings. ple who attended the meetings’, she says. Also, where video conferencing replaces an Although video conferencing is already ordinary telephone call, it can help to improve widely used in the United States, the market the quality of information communicated has been slower to develop in Europe. ‘We’re between those taking part. still probably a couple of years behind the UK, David Johnston, managing director of but seem to be following that market, with medical specialists who are geographically equipment supplier Sight & Sound educational and medical applications being distant from their patients. This is already in Distributors, based in Clonskeagh, Dublin, the first to catch on’, says Cregan. A number use at a number of hospitals in Ireland, includ- believes that video conferencing can actually of third-level colleges have already embraced ing Beaumont Hospital in Dublin, which be a more personal and productive way of this technology and use it to transmit lectures receives CT scans from other centres around holding meetings than the traditional format of to remote locations. the country via video for specialist diagnoses. sitting around a conference table. ‘If you’re in Meanwhile, ‘telemedecine’ is the popular ‘Recruitment is another important area for front of a camera, you tend to be more atten- name given to the use of video technology to video conferencing’, says Barbara Driver, who tive because you’re not sure who is focusing in carry out remote diagnoses or consultations by points out that recruitment companies are

28 LAW SOCIETY GAZETTE DECEMBER 1998 TECHNOLOGY ith the futurefuture

US, video conferencing is used quite widely for witness presentations and arraignments, and such applications could be very useful in Ireland’, he says. ‘It could, for example, be

PIC: ROSLYN BYRNE PIC: ROSLYN used as an alternative to transporting remand prisoners to and from the courts. Likewise, witnesses who have left Ireland could give their testimony on camera rather than travelling back to the country. Where an expert’s opinion is needed in a case, meanwhile, this could also be given via video. These examples show how considerable cost savings could be made’. In America, at least 29 states and many federal courts are now using video conferencing for appeals, bail and parole hearings and arraignments. In some states, assistant district attorneys interview police officers by video, while video examination of out-of-court expert witnesses is commonly used in civil trials. Many of the larger solicitors’ firms in Ireland have already looked at the advantages of video conferencing, but few have invested in such systems. ‘We don’t have our own in- house system but we have considered video conferencing and have used it in certain cases’, says Paul Errity of Dublin solicitors McCann FitzGerald. Although Errity believes that it will be a useful tool in the future, he’s not completely convinced of the benefits at the moment. ‘It’s difficult to know if it’s more useful than a telephone’, he says. ‘My own personal opinion is that the novelty value may distract from the communication of the mes- increasingly using this technology to carry out use in Ireland. ‘Up to 95% of the large sage’. initial interviews with overseas applicants for American companies based in this country use John Furlong, IT manager at solicitors jobs. video conferencing extensively’, he says. William Fry, says that his firm has not ‘Video conferencing has positive applica- ‘Irish companies are also becoming increas- installed its own equipment. ‘Firms will prob- tions wherever there is a geographic boundary ingly interested in its benefits’. ably start investing in this kind of technology to the sharing of information’, says Kevin He points out that the technology has a when their clients are using it’, he says. O’Boyle, video conferencing product manager number of benefits specific to the legal pro- ‘Meanwhile, if we do need to use it, we are at TEIS. According to him, approximately 500 fession although, for the most part, these have aware that it is possible to hire the facilities’. video conferencing systems are currently in not yet been applied in this country. ‘In the The Law Society’s Continuing Legal

DECEMBER 1998 LAW SOCIETY GAZETTE 29 INDEPENDENT FINANCIAL ADVICE FOR CLIENTS – COMMISSION FOR YOU

SOLICITORS FINANCIAL SERVICES

All’s changed

Under recent regulations most solicitors* who wish to earn commission and provide a service to their clients in regard to investments must now transact this business through Solicitors Financial Services (SFS)

Why not phone Freephone 1800 300900 and see how easy it is

* If you hold letters of appointment from a financial institution you can receive commission from that institution. TECHNOLOGY

phone call rate. So, when a 384kbit/sec system is being used to its full capacity, six channels are in operation: while a daytime call to the United States costs 36p a minute, the

PIC: ROSLYN BYRNE PIC: ROSLYN 384kbit/sec video conferencing rate will be £2.16 a minute. Likewise, a video call to Britain will cost £1.44 a minute and a call to Japan will work out at £5.82. In situations where one line is being used, these rates will go down to just a third of these prices. ‘The initial investment may seem quite high’, says David Johnston, ‘but you simply have to calculate the amount of time and money spent on travel in order to work out how cost effective these systems can be. Within a short space of time, we believe that having this level of equipment is going to be very common’. Normally, video conferencing calls are conducted between two locations. However, if it’s necessary for more than two sites to par- ticipate in a conference, third-party bridging services can be used to control the technical side of the session. Sony video conferencing systems offer an alternative to this with their own built-in multi-conferencing units Education Committee, meanwhile, has been These systems normally consist of the (MCUs) which allow connection to up to four looking at various video conferencing systems engine, which carries out encoding and decod- sites simultaneously. over the past couple of months with a view to ing functions, camera, TV unit and a mobile It is possible to buy significantly cheaper linking up with other centres around the coun- cabinet. It is also possible to add on various systems which operate on desktop computers try for seminars. A number of considerations peripherals such as a document camera, video and do not require ISDN lines for transmission. have to be taken into account so it has not yet recorder, multimedia projector or a PC for However, such systems are usually more suit- gone ahead, and the most suitable system has sharing computer applications during the con- able for staying in touch with overseas family not been decided on. ference. This kind of system will generally or friends or for sharing computer-based infor- range in price from £10,000 to £16,000. mation and software rather than carrying out What the hardware costs formal business meetings. While computer- The cost of video conferencing equipment has Here comes the science bit based equipment can be bought for a few hun- fallen quite significantly over the last couple of Because the band-width required for transmit- dred pounds, the picture quality is generally years. In the past, high-quality systems tended to ting high-quality video images is a lot greater quite poor and video images are usually con- cost between £30,000 and £50,000. According than that needed for making normal voice fined to a small corner of the PC screen. ‘The to Sight & Sound’s David Johnston, equipment calls, up to three ISDN lines will be needed for principal function of these cheaper desktop- manufacturers have started to recognise the need use with this equipment. Each ISDN line pro- based systems is to share computer informa- for video conferencing facilities at middle-man- vides two 64kbit/sec channels. To transmit tion’, says PVL’s Denis Cregan. agement level and systems have now been full-motion video, with images moving at a Many Irish video conferencing equipment designed for this market. ‘You can now buy a rate of 30 frames a second, 384kbit/sec of suppliers provide facilities (known as bureau good quality system which can be wheeled from bandwidth – or a total of three ISDN lines – is services) for companies and individuals to room to room for around £10,000’, he says. required. Video can also be sent over hire out a room and all the necessary equip- ‘These machines have their own dedicated 128kbit/sec lines but this only provides up to ment for setting up video-conference meet- video-conference engines, do not depend on a 15 frames a second, which results in a poorer- ings. These services can be useful both for computer, and are very easy to use’. quality picture. those who have limited requirements and for The higher-quality systems are recommend- people who want to try out the hardware ed for high-level meetings. Three-line systems before investing in their own systems. are backward compatible so it’s possible to use Sight & Sound provides a video conferenc- this equipment on a single line when picture ing facility which involves a charge of £70 for quality is not a major issue. Dedicated single- the first hour and £50 for each hour after that. line systems, meanwhile, now cost under The client is also charged for the cost of the £5,000. actual call if phoning out. TEIS charges £100 At the moment, Telecom Éireann is the only an hour for its video conferencing suite. Both company providing ISDN connections and PVL and Alcatel also provide bureau ser- each line installation costs £384 (excl VAT). vices. G Line rental is a further £29 each month. When David Johnston of Sight & Sound: ‘a shared making an ISDN call, each channel on each Grainne Rothery is a freelance journalist spe- sense of adventure’ line being used is charged at the normal tele- cialising in technology issues.

DECEMBER 1998 LAW SOCIETY GAZETTE 31 BRIEFING

Committee reports

the Revenue’s Forms and Leaflets Scheme Panel will be required to January 1999* but where, due to TAXATION Service (tel: 01 8780100) or from submit a tax clearance certificate in delays in the clearance procedure any tax office. order to be eligible for the assign- or where a certificate has been New Revenue code of A full briefing note on the code ment of new cases under the refused and the matter remains practice in relation to will be published in a forthcoming Criminal Legal Aid Scheme has unresolved on 1 March 1999, the audits edition of the Gazette. been deferred to 1 March 1999. solicitor’s name will remain on the Practitioners are advised that, as Taxation Committee The Department of Justice panel until such time as the certifi- from 1 December 1998, the expects to have application forms cate issues or the matter in dispute Revenue Commissioners will intro- available from early January. This has been determined. However, duce a new code of practice in rela- must then be submitted to the where application to the Collector CRIMINAL tion to the conduct of audits. The Collector General on or before 15 General has been made after 15 new code will have implications for January 1999*. When the certifi- January 1999 and a certificate has taxpayers and their legal advisors, Criminal Legal Aid cate is issued by the Revenue, the not issued for whatever reason, the particularly in relation to voluntary Scheme: tax clearance practitioner should immediately solicitor’s name will be removed disclosure issues. The Revenue will certificates forward same to the County from the panel. circulate a copy of the code to those The Criminal Law Committee has Registrar for noting before the 1 * The above dates are the antici- solicitors who subscribe to the been advised by the Department of March 1999 implementation date. pated dates at the time of going to Revenue’s Tax briefing publication. Justice that the date by which prac- Where a solicitor has applied to the press. Copies may also be obtained from titioners on the Criminal Legal Aid Collector General on or before 15 Criminal Law Committee

LEGISLATION UPDATE: 20 OCTOBER – 13 NOVEMBER 1998

ACT PASSED as it inserts sections 20, 21, 22 and 29 Leg implemented: Dir 93/37; Dir Housing (Traveller Accommo- International War Crimes into the Guardianship of Infants Act, 97/52 dation) Act, 1998 (Commence- Tribunals Act, 1998 1964) and part III of the Children Act, Commencement date: 13/10/1998 ment) (No 2) Order 1998 Number: 40/1998 1997 shall come into operation. Number: SI 428/1998 Contents note: Enables Ireland to Hepatitis C Compensation Contents note: Appoints 3/11/1998 fulfil its obligations to co-operate European Communities (Award Trib-unal Act, 1997 (Extension as the commencement date for sec- with the international tribunals of Public Service Contracts) of Classes of Claimants Before tion 6 of the Act (assessment of established by the United Nations for Regula-tions 1998 Tribunal) Regulations 1998 accommodation needs). the prosecution and punishment of Number: SI 378/1998 Number: SI 432/1998 international war crimes committed Leg implemented: Dir 92/50; Dir Contents note: Extends the classes Waste Management (Packaging) in the former Yugoslavia and in 97/52 of claimants to include (a) a diag- (Amendment) Regulations 1998 Rwanda. Also provides for similar co- Commencement date: 13/10/1998 nosed relative of a person referred to Number: SI 382/1998 operation with any other tribunal or in section 4(1)(a) or (b) of the Act and Contents note: Amend the Waste court which may be established by European Communities (Award who has been diagnosed positive for Management (Packaging) Regula- the United Nations with a similar of Public Supply Contracts) Hepatitis C; (b) a person responsible tions 1997 (SI 242/1997). The 1997 remit. (Amend-ment) Regulations 1998 for the care of a diagnosed relative regulations, as amended, provide Date enacted: 10/11/1998 Number: SI 379/1998 and who has incurred financial loss or that a person may not supply packag- Commencement date: 10/11/1998 Leg implemented: Dir 93/36; Dir expenses as a direct result of providing or packaged products to the Irish 97/52 ing such care; and (c) any dependant market unless the packaging con- SELECTED STATUTORY Commencement date: 13/10/1998 of a diagnosed relative where the cerned complies with essential INSTRUMENTS diagnosed relative has died as a requirements as to its nature and Children Act, 1997 European Communities (Award result of having contracted Hepatitis composition. (Commencement) Order 1998 of Public Works Contracts) C or where Hepatitis C was a signifi- Commencement date: 1/12/1998 Number: SI 433/1998 (Amend-ment) Regulations 1998 cant contributory factor to the cause Leg implemented: Dir 94/62 Contents note: Appoints 1/1/1999 as Number: SI 380/1998 of death. the date on which section 11 (insofar Commencement date: 13/10/1998 Commencement date: 31/10/1998 Prepared by the Law Society Library

32 LAW SOCIETY GAZETTE DECEMBER 1998 BRIEFINGBRIEFING

Practice notes

Solicitor/client fees he correct usage of the term up bill. The latter is, incorrectly, some- The solicitor should explain mat- by the Law Society from dissatisfied T ‘solicitor/client bill’ is when it is times termed the ‘solicitor/client bill’. ters fully to the client beforehand so clients arise because of the fact that used to indicate the total amount These concepts are difficult for the that the client can make an matters are not explained fully to which is charged by a solicitor to a solicitor to explain to the client. informed decision in relation to any the client at the time of the settle- client in a contentious matter. This is However, these concepts are of sec- settlement. In particular, an explana- ment. There is less likelihood of com- so, whether the bill is presented as ondary importance for a client. The tion should be given of the legiti- plaint when the client is fully aware one bill for the total amount or as two client’s main concern will be to know mate deductions which must be of all matters. bills, one being the party/party bill the net amount which the client will made from the settlement figure which is presented to the defendant’s receive following payment of the set- before negotiations are concluded. Keenan Johnson, Chairman, insurers and the second being a top- tlement monies. Many of the complaints received Guidance and Ethics Committee

Clients of unsound mind s with any other contract, if a sion or erratic or abnormal behav- concerns with the client and advis- ical practitioners or with the Wards A client is of unsound mind, he iour. Even if the client subsequently ing the client that, in order to avoid of Court Office. In these circum- or she does not have the legal presents normally, the solicitor possible queries from family or stances, the professional duty of capacity to enter into a contractual should treat the previous incidents third parties in relation to the valid- absolute confidentiality is lessened relationship with a solicitor. as significant. ity of instructions at a later date, in the client’s own interest, to the If the solicitor’s instructions pre- The mental illness may be irre- the client should obtain a medical extent necessary. Having contacted date the mental illness, the retainer versible. On the other hand, it may certificate confirming mental the appropriate parties, the solici- of the solicitor is determined by law be merely an episode of mental ill- health. tor’s professional obligations are at when the client becomes mentally ness from which the client will If an issue arises with regard to a an end. ill. The solicitor cannot proceed on recover after treatment. client’s mental health, the solicitor If the solicitor is on record in a the basis of instructions given This is clearly a delicate matter should ensure that detailed and litigation matter, the solicitor before the mental illness. for a solicitor when dealing with a accurate attendances of all meet- should, as a matter of courtesy, The solicitor is a layman and not client. Whether the matter is dis- ings or conversations with the client inform the court that he or she con- a medical practitioner and can only cussed with the client or not can are made. siders any instructions given to make a judgement of the client’s only be decided on a case-by-case The solicitor should take reason- have been terminated. mental health on that basis. basis. able steps to ensure that the client’s Indications of illness would include In marginal cases, the solicitor interests are protected. This may Keenan Johnson, Chairman, incidents of forgetfulness, confu- may consider discussing his or her involve contact with relatives, med- Guidance and Ethics Committee

Professional indemnity insurance: Year 2000 compliance issues t has been brought to the atten- to the satisfaction of the insurer pro- ments set out in Statutory Instrument The committee has been advised I tion of the Professional Indemnity viding the cover, it will lead to restric- No 312 of 1995. As confirmation of that the insurers are liaising with the Insurance Committee of the Law tions on the cover offered. It is cover bearing restrictions will not be profession to solve the problem to Society that the qualified insurers, imperative, therefore, that the ques- acceptable to the Society, it will the best of their abilities, but they with the exception of the Solicitors tionnaire is completed with care to therefore affect the issuing of solici- require the co-operation of solicitors Mutual Defence Fund Ltd, have for- avoid unnecessary restrictions. tors’ practising certificates for the who might have a problem that warded a questionnaire with the The Professional Indemnity practice year 1999. A practising cer- needs to be addressed in this regard. proposal forms for the renewal of Insurance Committee has decided tificate will not issue until documen- professional indemnity insurance that restrictions of any type are not tary evidence is filed with the Society Ward McEllin, Chairman, cover for 1999 to every practice. If acceptable, as they would not con- confirming that unrestricted cover Professional Indemnity Insurance the questionnaire is not completed form with the regulations or agree- has been effected. Committee

DECEMBER 1998 LAW SOCIETY GAZETTE 33 BRIEFING Disciplinary Tribunal An

he Disciplinary Tribunal is ly confined to receiving and which would be a felony or a son from drawing or prepar- Tconstituted under the provi- hearing complaints of profes- misdemeanour if committed ing certain documents), as sions of the Solicitors Acts, 1954 sional misconduct against solici- in the State amended by the Solicitors to 1994 and its powers are large- tors. The tribunal consists of ten c) The contravention of a provi- (Amendment) Act, 1994 of solicitor members and five lay sion of the Solicitors Acts, the Solicitors Act, 1954 or members, who are appointed by 1954 to 1994 or any order or section 2 of the Solicitors Disciplinary Tribunal the President of the High Court. regulation made thereunder (Amendment) Act, 1998, or Under section 16 of the d) Conduct tending to bring the ii) Accepting instructions from Solicitor members Solicitors (Amendment) Act, profession into disrepute. any such person to provide Walter Beatty (Chairman) 1994, the lay members are nomi- legal services to any other Clare Connellan nated by the Minister for Justice However, it should be noted that person’. Andrew O Donnelly to represent the interests of the the Solicitors (Amendment) Bill, Terence Dixon general public. For the purpose 1998 has further extended the The procedures before the tri- Michael Hogan of hearing and determining any definition of misconduct to bunal are formal and, as the out- Donal Kelliher application, the tribunal sits in include the following: come of a hearing may affect the Eugene McCague divisions comprising two solici- In the course of practice as a livelihood of a solicitor, the tri- Brian Price tor members and one lay mem- solicitor bunal requires a high standard of Moya Quinlan ber. i) Having any direct or indirect proof. In this regard, the tribunal Grattan d’Esterre Roberts Under section 3 of the connection, association or has available an information Solicitors (Amendment) Act, arrangement with any person leaflet and other documentation Lay members 1960, as amended by the whom the solicitor knows, or to assist members of the public Pauline Coonan Solicitors (Amendment) Act, upon reasonable enquiry when making an application to Sean McCarthy 1994, misconduct includes: should have known, is a per- the tribunal. Mary Morris a) The commission of treason or son who is acting or has acted During the period under Marie O’Brien a felony or a misdemeanour in contravention of section 55 review, the tribunal amended its Jacqueline O’Dowd b) The commission outside the or 56 or section 58 (which rules to allow an exchange of State of a crime or an offence prohibits an unqualified per- affidavits between the applicant

Between 1 November 1997 and 31 No misconduct...... 1 7(9) of the Solicitors That the respondent solicitor be October 1998, the Disciplinary Awaiting hearing ...... 2 Amendment Act, 1960 as substi- suspended from practice for such Tribunal met on 27 occasions. The tuted by section 17 of the period and on such terms as the following applications were consid- Applications from Solicitors (Amendment) Act, court thinks fit and that he pay the ered by the tribunal during this previous period: ...... 38 1994: Law Society’s costs ...... 2 period: Law Society Censure, fine and costs...... 2 Censure, fine and costs...... 1 At hearing Restitution, fine and costs...... 1 That the name of the respondent New applications:...... 42 Misconduct ...... 11 Fine and costs...... 5 solicitor be struck off the Roll of Law Society No misconduct...... 1 Fine ...... 2 Solicitors ...... 1 Prima facie cases found ...... 15 Withdrawn ...... 1 Censure and costs ...... 4 No prima facie case found ...... 1 Adjourned ...... 7 Costs...... 1 Cases presented to the High Awaiting prima facie decision .....3 No order ...... 1 Court:...... 9 Private Suspended the respondent solicitor At hearing Prima facie cases found ...... 2 The tribunal made two orders from practice for ten years subject Misconduct ...... 8 No prima facie cases found...... 11 removing the names of solicitors to two conditions and awarded the Adjourned ...... 1 from the Roll of Solicitors, at their Society its costs...... 1 Awaiting inquiry ...... 6 At hearing own request. Practising certificate be limited to No misconduct...... 2 the effect that the solicitor is limit- Private Leave granted to withdraw Reports of the Disciplinary ed to practice as an assistant to a Prima facie cases found ...... 4 application...... 2 Tribunal under section solicitor of not less than ten years’ No prima facie cases found...... 17 Struck out for want of 7(3)(b)(ii) of the Solicitors standing...... 3* Application withdrawn...... 1 prosecution...... 1 (Amendment) Act, 1960 as sub- Adjourned ...... 5 Awaiting prima facie decision .....1 Adjourned ...... 2 stituted by section 17 of the *Two High Court orders made in Solicitors (Amendment) Act, respect of the same solicitor At hearing Orders made by the Disciplinary 1994 Awaiting presentation to the Misconduct ...... 1 Tribunal pursuant to section Recommendation: High Court:...... 1

34 LAW SOCIETY GAZETTE DECEMBER 1998 BRIEFINGBRIEFING nnual Report 1997/1998

and respondent solicitor before ensure that they act promptly and period under review there has experienced difficulties in prac- deciding whether or not there is a efficiently and that they keep been an increase in the number tice. This support has enabled prima facie case for inquiry. their clients informed of all of instances where solicitors solicitors to redress their prob- The most frequent ground for progress that has been made. A have misled the Society and in lems, which might otherwise complaint continues to fall under solicitor should always answer particular the Registrar’s have multiplied. the general heading of delay/fail- letters from their clients, col- Committee. The Society in its Mr Brian Price was appointed ure to communicate or reply to leagues and the Law Society as submissions to the tribunal has to the tribunal in December 1997 correspondence from clients, failure to do so may amount to indicated that failure or delay in until the year 2000. colleagues or the Law Society. It unprofessional misconduct. The corresponding with the Society I would like to express my is of concern to the tribunal that tribunal has indicated to respon- frustrates the investigation of thanks to the members of the tri- this type of complaint is a con- dent solicitors that to copy corre- complaints. Such conduct is par- bunal for all their hard work and stant allegation in the majority of spondence to clients is not an ticularly damaging to the reputa- assistance during the year. applications before it. For exam- onerous task and could help to tion of the profession and the tri- Ms Mary Lynch, the Clerk to ple, in one case the respondent improve the relationship between bunal has consequently made the the Disciplinary Tribunal, has solicitor failed to correspond solicitor and client. appropriate finding. given us great assistance. Her with his client or to respond to Every solicitor has a duty to The tribunal has welcomed understanding and dedication are her 40 telephone calls. The tri- reply promptly and accurately to the assistance given by local very much appreciated. bunal would like to emphasise to the Law Society in response to a practitioners who have come to Walter Beatty, Chairman solicitors that they have a duty to complaint. However, during the the aid of solicitors who have 16 November 1998

Subject matter of complaints title to property ● Failing to correspond with ● Failing to comply with a notice Conveyancing ● Failing to arrange for an clients or to answer their tele- served under section 19 of the Litigation assignment of premises which phone calls 1960 Act as amended by sec- Probate was purchased by the com- ● Failing to respond to col- tion 27 of the 1994 Act plainants to be executed in a leagues’ correspondence ● Failing to furnish to the Principle grounds on which timely manner or at all ● Failing to satisfactorily answer Society a copy of the brief to professional misconduct was ● Failing to protect the interests queries in relation to failure to counsel together with coun- found of a client comply with an undertaking in sel’s opinion as to whether or ● Failing to comply with an ● Failing to institute proceedings a timely manner or at all not he was entitled to exercise undertaking given to the com- on behalf of a client in a time- ● Failing to hand over a file to a a lien over money plainants in a timely manner ly manner or at all client when instructed to do so ● Misleading the Society by indi- or at all ● Failing to advise a client that in a timely manner or at all cating that certain steps would ● Failing to comply with an an action was statute barred ● Failing/delaying in handing be taken and subsequently undertaking given to the com- ● Issuing a letter of undertaking over a file to the complainant’s failing to take those steps plainants thereby causing the to a third party at a time when new solicitors despite being ● Misleading the Society by stat- complainants to be unable to the complainant’s action was requested to do so ing at the Registrar’s comply with an undertaking statute barred ● Failing/delaying in correspond- Committee meeting that files which they in turn had given ● Misleading a client about the ing with the Society thereby had been handed over to the to colleagues acting for a lend- existence of court dates, settle- frustrating the investigation of complainant’s new solicitors ing institution ment meetings and settlement complaints when this was not true ● Failing to stamp and register proposals ● Failing to comply with the ● Misleading the Society by title documents in a timely ● Acting in conflict with the direction of the Registrar’s indicating an undertaking as manner interests of a client and Committee by failing/delaying to costs was awaited and that ● Failing to exercise any or ade- breaching a client’s confiden- in handing over files to the this was the reason for the quate supervision over tiality complainant’s new solicitors delay in forwarding files employees ● Failing to keep financial ● Failing to comply with a sec- when the necessary undertak- ● Failing to hand over docu- records on behalf of clients in tion 10 notice in a timely man- ing had already been fur- ments of title to a bank fol- breach of the Solicitors ner or at all nished lowing the closing of the sale Accounts Regulations ● Failing to produce a file when ● Failing to furnish the informa- in a timely manner or at all ● Failing to comply with clients’ required to do so by the tion requested by the ● Losing clients’ title documents instructions to take out a grant Society pursuant to section Registrar’s Committee and failing to take the neces- of probate in a timely manner 14(1) of the Solicitors ● Failing to attend before the sary steps to register clients’ or at all (Amendment) Act, 1994 Registrar’s Committee.

DECEMBER 1998 LAW SOCIETY GAZETTE 35 WHERE THERE’S A WILL PROBATE PRACTICE IN A NUTSHELL by Eamonn G. Mongey BL THIS IS THE WAY… The second edition - 1998

The second edition, incorporating important When a client makes a will in favour of the Society, it would statutory changes made since the first be appreciated if the bequest were stated in the following words: edition in 1980, is now available from- “I give, devise and bequeath the sum of X pounds to the Irish Cancer Society Limited to be applied by it for any of its Eamonn G. Mongey charitable objects, as it, at its absolute discretion, may decide.” Ashleigh Carrickbrennan Road All monies received by the Society are expended within the Monkstown, Co. Dublin Republic of Ireland. Price: £17.50 including p & p (Hardback) “Conquer Cancer Campaign” is a Registered Business Name £12.50 including p & p (Paperback) and is used by the Society for some fund-raising purposes. The “Cancer Research ORDER FORM: Probate Practice in a Nutshell Advancement Board” allocates all Research Name: Grants on behalf of the Address: Society.

5 Northumberland Road, Dublin 4. Tel: (01) 668 1855 I require copies. Hardback / Paperback I enclose cheque/postal order for £ .

IRISH KIDNEY Irish ASSOCIATION Donor House, 156 Pembroke Road, Stenographers Ballsbridge, Dublin 4. Tel: 01 -668 9788/9 Fax: 01 - 668 3820 Ltd

The Irish Kidney Association was formed in 1978 to: Director: Sheila Kavanagh 1. Promote the general welfare of persons suffering kidney failure - financial and psychological. Experts in 2. To give advice and guidance to parents and relatives. Overnight Transcripts 3. To arrange lectures, conferences and meetings Specialists in pertaining to kidney disease. Court Reporting 4. To support research projects into the causes and Medical Cases / Arbitrations effects of inherited disorders and kidney failure. Conferences / Board Meetings 5. To print and distribute the Multi-Organ Donor Card and actively promote public awareness of organ Contact: failure. Hillcrest House, Dargle Valley, Bray, Co. Wicklow. REMEMBER US WHEN Telephone/Fax: (01) 286 2184 or MAKING A WILL! 4b Arran Square, Dublin 7 Certified by the Revenue Commissioners as a charity: 6327 Telephone: (01) 873 2378 OUR FINANCIAL ASSISTANCE IS NATIONWIDE BRIEFINGBRIEFING

ILT digest of legislation and superior court decisions Compiled by David P Boyle

and just resolution to the unfor- Royal College of Surgeons v dence. The defendants contended ADMINISTRATIVE tunate conflict which had taken Convery (Supreme Court), 25 that they had made a lodgment place, and this was not a case November 1997 which fairly met the plaintiffs’ Bord Fáilte grant aid where the Supreme Court would claim. By failing in their claim to to be increased interfere with the discretion of Amount of lodgment have an award fixed in their A Bill has been presented which, the trial judge. undisclosed favour, the plaintiffs had failed to if passed, will increase the aggre- ● In view of the defendants’ ‘beat the lodgment’ and they gate amount of grant aid that may The plaintiff claimed that the defen- refusal to disclose to the trial should, therefore, be liable for the be paid to Bord Fáilte to support dant had wrongfully asserted an judge the amount of any lodg- costs subsequent to the date of tourism capital development interest to certain lands. The plaintiff ments made, in the particular lodgment. The defendants also works from £22,000,000 to wanted to sell the lands. The defen- circumstances of this case the contended that the trial judge had £50,000,000. dant had had an interest in the lands trial judge was entitled to disre- erred in law in stating that the Tourist Traffic Bill, 1998 in the past and did not want to see gard the fact of such lodgment plaintiffs had been substantially them sold. The plaintiff sought to in the exercise of his discretion successful in their claim. In dis- restrain the defendant from alleging with regard to costs. missing the appeal, it was held that he had any rights to the lands. that: COMMERCIAL The defendant refused to comply. The plaintiffs had discovered three ● The superior courts had a dis- Once motion was issued, the defen- wrecks off the Irish coast which cretion to award costs to an Docklands area expanded dant consented to order sought by formed part of the Spanish unsuccessful party in appropri- An order has been made which the plaintiff. The only matter left in Armada. A lengthy trial ensued, ate circumstances and that dis- extends the area of the Custom dispute was one of costs. The High both in the High Court and on cretion had to be exercised on House Docks area in an easterly Court made no order as to costs. The appeal to the Supreme Court. On the facts of each case direction to include the area bound- plaintiff appealed against that order appeal, the Supreme Court ordered ● The issues raised in the High ed generally by the River Liffey, to the Supreme Court. In dismissing that the question of costs be remit- Court were of public impor- Guild Street, New Wapping Street the appeal, it was held that: ted to the High Court for determi- tance and that the decisions and Lower Sheriff Street. ● There was no doubt that the dis- nation. The trial judge awarded the thereon were of value to the Dublin Docklands Development cretion which the Supreme Court plaintiffs their costs for the High State and the defendants Authority Act, 1997 (Extension of had was as wide as it could be, Court action against the defen- ● The trial judge was entitled to Custom House Docks Area) Order and the court was entitled to put dants on a party-and-party basis. have regard to this factor in the 1998 (SI No 344 of 1998) itself in the actual position of the The defendants appealed to the exercise of his discretion with trial judge and substitute its dis- Supreme Court from that decision. regard to the award of costs cretion for his The defendants sought to be ● In view of the defendants’ ● The approach adopted by the trial awarded their costs from the High refusal to disclose to the trial COSTS judge was a very careful and just Court trial. The trial judge had judge the amount of any lodg- resolution to the unfortunate con- ordered that the case was a matter ments made, in the particular High Court decision to flict which had taken place and of public importance which justi- circumstances of this case the make no order as to costs this was not a case where the fied the awarding to the plaintiffs trial judge was entitled to disre- upheld Supreme Court would interfere of their costs. The defendants con- gard the fact of such lodgment ● The approach adopted by the with the discretion of the trial tended that the trial judge’s order in the exercise of his discretion trial judge was a very careful judge. was contrary to the weight of evi- with regard to costs

DECEMBER 1998 LAW SOCIETY GAZETTE 37 BRIEFING

● It could not be suggested that and unconstitutional for the trial to ● The onus was on the accused when he pleaded guilty in the the respondents had been sub- take place after the delay in the to bring to the notice of the earlier case stantially successful in their case. In granting the order sought, prosecution authorities any ● There was nothing to indicate claim in the substantive action it was held that: additional offences which he that the respondent was ever ● That fact was not sufficient to ● The defendant was entitled to a wanted to be taken into consid- made aware of the applicant’s deprive them of their costs of fair trial with reasonable expe- eration by the court. earlier attitude or intention their proceedings in the High dition and a prosecution could ● It could not be said that by sim- Court or render them liable to be dismissed where the delay The applicant was charged with ply missing the opportunity of pay the defendants’ costs was excessive. The onus on various offences and sought an having the later charges consid- ● The trial judge was entitled to proving the probability that order prohibiting the respondent ered with the earlier offences take those factors into account, there was a real risk that the from prosecuting him on foot of that the applicant had missed an which he did when awarding the accused would not get a fair the later charges. The applicant opportunity and had, therefore, plaintiffs their costs trial lay on the accused had earlier been convicted on been prejudiced. The correct ● This case was an exceptional ● Special factors had to be con- foot of similar charges and con- sentence remained the correct case and justice required that sidered in cases of sexual abuse tended that the respondent could sentence irrespective of when it the plaintiffs should not be at of children and young people. have included the new charges was imposed. any particular loss because of There was no special relation- in the earlier proceedings. He their efforts in discovering the ship of trust between the defen- submitted that the delay was Lynch v Director of Public Armada wrecks and that includ- dant and the girls in this case. both unexplained and unreason- Prosecutions (Morris J), 16 ed the costs of proceedings in There was no evidence of able. He also contended that his December 1997 connection therewith, even dominion by the defendant. memory of the events had faded when such proceedings were There was no delay on the part to the extent that it was not pos- Lesser sentence appropri- not successful, as they were of the State or the Director of sible for him to adduce alibi evi- ate for foreign national bona fide and reasonably Public Prosecutions. The abuse dence. In reply, the respondent ● When sentencing an individual brought. was committed in the girls’ contended that the evidence to a term of imprisonment, home but was not perpetrated with regard to the later charges some allowance has to be made In re La Lavia (Supreme Court), by a member of their family only came to light after a year if the individual is a foreign 16 December 1997 and consisted of two one-off and a half, and that he was anx- national for whom a prison term incidents. Two witnesses, who ious to ensure that the evidence will be harsher. would have been available had was proper before charging the the complaints been made earli- applicant in relation to them. In The applicant, who was Jamaican, CRIMINAL er, were not now available, one dismissing the application, it appealed the seven-year sentence having died and the other prov- was held that: of imprisonment which had been Delay as defence ing untraceable. Having regard ● The respondent was entitled to imposed on him following his con- in sexual case to the presumption of inno- postpone the charging of the viction for being in possession of ● Where prohibition on the basis cence, if the defendant was applicant with the later crack cocaine for the purposes of of delay was sought by an innocent, he was deprived of offences for a period of time so supply. In reducing the applicant’s accused in cases of alleged sex- two witnesses who could con- as to enable him to ascertain if sentence to five years, it was held ual abuse of children or young tradict the prosecution evidence in fact the evidence available that: people, special factors had to be ● Without that evidence, the sole was proper ● The court had taken the view in considered. These included way the defendant could defend ● The attitude adopted by the the past that some allowance whether there was any special himself was by his own evi- respondent in delaying the should be made for the fact that relationship of trust or dominion dence and this was unsatisfac- charging of the applicant was applicants were foreign nation- between the accused and the tory as that evidence was not justifiable and reasonable als and that accordingly a prison complainant, whether there was independent and the defendant ● It was not in the interests of regime was more harsh for them delay on the part of the State or had an inherent right not to give society that a charge should be ● The applicant had, because of the Director of Public evidence. The defendant at all laid based upon evidence the colour of his skin, been sin- Prosecutions, and whether wit- times maintained his inno- which was tenuous and suspect gled out for discrimination by nesses who would have been cence. Taking all the factors ● The respondent was not a party other inmates of the prison in available had the complaints into account, there was a seri- to the applicant’s earlier inten- which he was placed and had been made earlier were not now ous risk that the defendant tions when the applicant plead- been attacked and stabbed in the available. would not obtain a fair trial due ed guilty to the earlier charges back to the delay. ● The pleading guilty by an ● Insufficient credit had been In 1997, the defendant was accused to a number of charges given by the trial judge to the charged with the indecent assault Fitzpatrick v Director of Public did not confer an immunity fact that the applicant was a for- and rape of two young sisters in the Prosecutions (McCracken J), 5 from further prosecution eign national and was of previ- early 1980s, the offences relating December 1997 ● The onus was on the applicant ous good character and young. to two alleged incidents in the to bring to the notice of the girls’ home. The defendant sought Should other offences respondent any other offences Director of Public Prosecutions v an order of prohibition of the trial have been taken into which he wanted to be taken Clarke (Court of Criminal on the basis that it would be unjust account? into consideration by the court Appeal), 17 November 1997

38 LAW SOCIETY GAZETTE DECEMBER 1998 BRIEFINGBRIEFING

that it be held in public, then The Attorney General for Broader discovery MEDICAL PROFESSION the second-named respondent England and Wales and the allowed in employment had a discretion to do so British Official Solicitor applied case Whether Medical Council ● When examining the rights to the court to set aside liberty to ● Everything that was relevant enquiries to be held in conferred by article 40.3 of the serve certain proceedings on to the matters in issue in a private or public Constitution and the conven- them. In 1993, the plaintiff’s case up to the date of the ● While the Medical Council by tion, one had to look at the teenage son had either been swearing of the affidavit of virtue of section 45(5) of the procedure as a whole, and it abducted by his father to the UK discovery should be discov- Medical Practitioners Act, was not the function of the or his father had facilitated his ered. 1978 had a discretion to hold Supreme Court to rule in leaving the jurisdiction. The inquiries in private, the sec- advance as to whether any plaintiff had instituted proceed- Following a general unlimited tion did not require it. If all future hearing should be in ings under the Hague conven- order for discovery against the parties to the inquiry agreed public or in camera tion in England where the courts defendant, the plaintiff sought an that it be held in public, then ● As the European convention had invoked an exception to the order for further and better dis- the council had a discretion to on human rights did not form convention and, rather than covery in judicial review pro- hold the inquiry in public. part of the domestic law of returning the boy to the jurisdic- ceedings challenging his dis- Ireland, it was inappropriate tion of the Irish courts, had con- missal from employment. D’s The applicant had sought to for the Supreme Court to sulted the boy and acceded to his view was that only documents quash a decision of the second- decide whether the holding of wishes not to be returned. The leading up to the date of suspen- named respondent in the High an inquiry in private violated current proceedings were issued sion need be discovered, as doc- Court. The second-named it or not on foot of that decision. In uments which came into being respondent had decided to hold ● The second-named respondent granting the relief sought, it was after that date could have no an inquiry under the terms of did not violate article 40.3 of held that: bearing on the issues and were part VI of the Medical the Constitution when decid- ● It was the right of the English not relevant and need not be dis- Practitioners Act, 1978. The ing to hold the inquiry in pri- Court of Appeal under the covered. This view was upheld inquiry was to be held in private. vate Hague convention to decide by the Master of the High Court The applicant wanted the inquiry ● It was not the function of the not to return the child to and the High Court, and the held in public. The trial judge court in such proceedings to Ireland plaintiff appealed. In allowing refused to quash the second- monitor procedure as it ● The Attorney General for the appeal, it was held that: named respondent’s decision to unfolded and only in the most England and Wales, as a ● It was untrue to say that docu- hold the inquiry in private. The exceptional of circumstances member of the British govern- ments which came into exis- applicant appealed to the would the court interfere. ment, was entitled to invoke tence after the dismissal could Supreme Court. Three questions the doctrine of sovereign not be relevant to the issues in were raised on the submission Barry v The Medical Council immunity and the court had to the proceedings. The ordinary that the inquiry be held in pri- (Supreme Court), 16 December accept that under internation- rule applied, that is, the defen- vate: whether the second-named 1997 al law dant should discover every- respondent had a discretion to ● As far as the doctrine of sov- thing that was relevant up to hold the inquiry in private; ereign immunity went, the the date of the swearing of the whether the holding of such an court was not concerned to affidavit of discovery PRACTICE & inquiry in private breached arti- enquire into the desirability or ● While the events may have PROCEDURE cle 6.1 of the European conven- undesirability of what a for- occurred some time ago, what tion on human rights; or whether eign officer might have done. happened since could be rele- it breached article 40.3 of the Increase to sheriffs’ fees Even if a foreign officer had vant in order to interpret those Constitution. In dismissing the Fees are to increase in respect of acted mala fide, he would still events, and no exception was appeal, it was held that: orders lodged with the sheriff or be entitled to invoke the doc- made for cases of dismissal ● The purpose of section 45(5) county registrar for execution on trine of sovereign immunity from employment. Having of the 1978 Act was to protect or after 1 November 1998. ● While the matter these pro- regard to the nature of the the reputations of those prac- Sheriffs’ Fees and Expenses ceedings concerned had been judgment and order under titioners into whose conduct Order 1998 (SI No 314 of 1998) private litigation, the Official appeal, a further affidavit inquiries had been held, who Solicitor had acted as an offi- should be sworn disclosing had not been found guilty of Sovereign immunity cer of the British courts. It any documents relevant to the professional misconduct. Such doctrine upheld was beyond doubt that he had proceedings which came into a provision would have been ● When the doctrine of sover- acted throughout in his offi- existence after the date of dis- pointless had the inquiry been eign immunity is invoked, the cial capacity: hence, if he had missal. held in public court is not concerned to done anything wrong, he was ● While the second-named enquire into the desirability or answerable to the English Tobin v Cashell (Supreme respondent, by virtue of undesirability of what a for- courts but not those in Court), 12 December 1997 G s45(5), had a discretion to eign officer might have done. Ireland. hold inquiries in private, the Even if that foreign officer has The ILT digest is reproduced by section did not require it. If all acted mala fide, he is still enti- Herron v Ireland (Supreme kind permission of the Irish Law parties to the inquiry agreed tled to invoke the doctrine. Court), 5 December 1997 Times.

DECEMBER 1998 LAW SOCIETY GAZETTE 39 BRIEFING

Eurlegal

News from the EU and International Affairs Committee Edited by TP Kennedy, Legal Education Co-ordinator, Law Society of Ireland Towards a new agenda for the future of EU human rights policy

he exact anniversary of the General and Deputy Secretary Union does not possess a bill of acted in the past as a force for Tadoption by the General General of the Council of Europe rights and presently lacks the good both within the Union as Assembly of the United Nations and the Presiding Judge of the competence even to accede to the well as beyond its frontiers. The of the Universal declaration of War Crimes Tribunal in former European convention on human Comité states, however, that the human rights falls on 10 Yugoslavia. rights. The latter convention is key factor limiting the capacity of December. This short, clear and The practical significance of sponsored by the Union’s sister the Union to act in the cause of majestic document has become the agenda cannot be overstated. organisation – the Council of humanity has been the absence of the Magna Carta of the interna- It will be laid before the Council Europe – and administered sepa- a coherent, balanced, substantive tional community. A wide variety of Ministers by the Austrian rately in Strasbourg. and professional human rights of events, both official and unoffi- Presidency in December, when In reality, however, the Union policy. This situation, reasons the cial, are planned to mark the event the Council will be asked to has its roots in a certain ethical Comité, cannot be allowed to in nearly every country on the respond with a landmark resolu- vision of a peaceful and stable remain for a variety of reasons, globe. Since Europe was one of tion of its own. Many will be sur- Europe. It is important to recall including the increasing inci- the earliest and main beneficiaries prised if the Council strays too far that economics was only viewed dence of racism, the tendency of the human rights idea, it is par- from the proposals put forward in as a means (albeit a crucially toward a ‘fortress Europe’ which ticularly fitting that it should find the agenda. important means) toward integra- is hostile to outsiders, the growth its own distinctive way of mark- To aid it in its task, the Comité tion and not the ultimate end of in co-operation in security mat- ing the event. appointed approximately 20 rap- integration. Now and then, the ters which is not matched by ade- In anticipation of the 50th porteurs who wrote highly- ethical dimension of the Union quate human rights safeguards, anniversary, the European detailed papers on various aspects has manifested itself in the case and the likelihood of new Commission decided last year to of the EU’s human rights policy in law of the European Court of Member States joining the Union establish a Comité des Sages com- fields as diverse as conditionality Justice and has evolved incre- in the near future. posed of four eminent persons and EU aid, racism and EU law, mentally in the text of the found- The agenda asserts that a new known for their integrity and gender discrimination, social rights ing treaties, including the Treaty EU human rights agenda should commitment to human rights. The and the rights of persons with dis- of Amsterdam. Indeed, the Union have the following objectives. essential task of the Comité was to abilities. The overall research is perhaps the biggest direct First, the Union should acknowl- reflect on the evolution of the effort was led by Professor Philip provider of humanitarian assis- edge the existing web of legal EU’s human rights policy (or poli- Alston of the European University tance worldwide and has a long obligations under international cies) and to put forward practical Institute in Florence who is one of tradition of informing its collec- law and, just as important, proposals to advance that policy. the world’s leading authorities on tive foreign policy with human announce its willingness to The Comité has now reported human rights law. rights concerns. explore opportunities to honour with a strongly-worded and It is therefore entirely natural those obligations both within the admirably clear text: Leading by Human rights in the EU that the Union would mark the Union and beyond its borders. example: a human rights agenda To some, it might seem surprising 50th anniversary by returning to Secondly, the Union should for the European Union for the that the European Union, as such, its roots and by undertaking a always uphold the principle that Year 2000. The agenda was has an interest in, or even a com- thoroughgoing evaluation of its human rights are universal and launched on Friday 9 October in petence in, the field of human human rights policies to date. must be respected by all states and Vienna under the auspices of the rights. After all, the vast majority apply to all individuals. Thirdly, Austrian Presidency of the Union. of the competences of the Union Key objectives of the Union should respect the indi- One of its members was Mary are in the area of economic inte- the new agenda visibility of both sets of human Robinson. The other members gration. Furthermore, and quite The agenda of the Comité fully rights, civil and political as well as include the former Secretary unlike a ‘normal’ constitution, the acknowledges that the Union has economic, social and cultural

40 LAW SOCIETY GAZETTE DECEMBER 1998 BRIEFINGBRIEFING

rights. Fourthly, and quite crucial- Pressing human ties. It also focused on conditions in biotechnology from a human ly, the Union should ensure con- rights concerns of detention, the plight of refugees rights perspective. Few can doubt sistency between its own internal The Comité did focus on certain fleeing persecution, and the gen- the immediacy of these issues. human rights policy and the pressing human rights issues. It eral treatment of third country human rights policy it adopts was particularly mindful that nationals within the EU. Also of Practical steps forward toward third countries. Fifthly, the racism and xenophobia are thriv- concern was the need to ensure The Comité did not confine itself Union should expand and deepen ing and that EU efforts in this that the ‘information society’ was to high rhetoric about rights. It the existing knowledge-base to regard need to be broadened and developed along lines that pro- put forward a series of practical ensure that its policy is rational, reinforced. It was concerned that mote and respect human rights proposals to make a coherent EU informed and consistent. Sixthly, EU policy towards persons with and that regulation would be policy a reality. Prominent among the Union should ensure the effec- disabilities should reflect a applied where appropriate and in a these recommendations are the tive mainstreaming of human human-rights approach – one that manner consistent with freedom following. First, the Commission rights perspectives into all its poli- aims to eliminate barriers to full of expression. Yet another matter should appoint a Commissioner cies and law-making processes. participation and equal opportuni- of concern was the breakthroughs for Human Rights to play a cen-

RECENT DEVELOPMENTS IN EUROPEAN LAW

an applicant can seek compensation but those decided on after it has State. The ECJ considered articles 30 DIRECTIVES for unfair dismissal. Ms Smith and ceased or where harmful effects are and 36 of the treaty and Directive Time Limits Ms Perez had been dismissed from produced after it has ceased. The 92/100/EEC (on rental right and Edilizia Industriale Siderguica Srl their posts before they had complet- ECJ pointed out that under article 6 lending right and on certain rights (Edis) v Ministero delle Finanze ed two years’ employment. They of the directive all persons have the related to copyright in the field of (Case 231/96), judgment of 15 claim that this two-year qualifying right to obtain an effective remedy intellectual property). It considered September 1998. An Italian charge period discriminates against in a competent court against mea- the principle of exhaustion of distri- on registration of companies, women, as more women than men sures which have interfered with the bution rights. Generally, exclusive payable annually, had been held by fail to meet the two-year require- equal treatment of men and rights guaranteed by national law the Court of Justice to be contrary to ment. The Advocate General opined women. This provision would be on industrial and commercial prop- EC law. Edis had paid the charge that this two-year qualifying period deprived of an essential part of its erty are exhausted when the prod- between 1986 and 1992. The charge made it very difficult to provide a effectiveness if its protection did not uct has been lawfully distributed on was reduced by Italian law in 1993 legal remedy for those who had extend to measures taken by an the market in another Member and ceased to be annual. Edis been wrongfully dismissed. employer after the employment State by the proprietor of the right sought a refund. Italian law provid- Therefore, he was of the view that it relationship has ceased. Fear of such or with his consent. However, the ed that any claim for a repayment of was contrary to Directive 76/207, measures could deter workers from release into circulation of a picture charges wrongly paid must be irrespective of the gender of the pursuing claims for sex discrimina- and sound recording cannot render brought within a period of three applicant. The final judgment of the tion and jeopardise the objectives of lawful other acts of exploitation of years from the date of payment. The court is expected later this year. the directive. Thus, there is an oblig- protected work, such as rental, ECJ distinguished between national Belinda Jane Coote v Granada ation on Member States to intro- which are of a different nature from limitation rules which would Hospitality Ltd (Case 185/97), judg- duce into national law measures sale or any other lawful act of distri- deprive an applicant of a remedy ment of 22 September 1998. Ms necessary to ensure judicial protec- bution. Rental right remains one of and domestic procedural rules to Coote had been employed by tion for workers from employers the prerogatives of the author and deal with a situation of this nature. Granada from December 1992 to who take retaliatory action (such as producer, notwithstanding sale of The court held that it is compatible September 1993. In 1993, she refusing a reference) after the the physical recording. The same with EC law to lay down reasonable brought a claim for sex discrimina- employment relationship has ceased. reasoning was applied to the effect limitation periods for bringing pro- tion against Granada, arguing that of the offer for rental. The court ceedings. The limitation period must she had been dismissed because of pointed out that the specific right to INTELLECTUAL be equivalent to similar limitation pregnancy. The claim was settled authorise or prohibit rental would PROPERTY periods for domestic actions. and she left the employment of be rendered meaningless if it was Granada in September 1993. In Foreningen af danske Videogram- held to be exhausted as soon as the 1994, she had difficulty finding distributører (‘FDV’) v Laserdisken object was first offered for rental. In EMPLOYMENT employment. She argued that her (Case 61/97), judgment of 22 addition, the directive expressly pre- Gender discrimination difficulties stemmed from Granada’s September 1998. The question cludes the possibility that lending R v Seymour Smith and Laura Perez failure to supply a reference. The UK before the court was whether it was right, unlike distribution rights, can (Case 167/97). The case had been Employment Appeals Tribunal contrary to EC law for the holder of be exhausted by any act of distribu- referred by the House of Lords seek- sought guidance on whether in the an exclusive rental right in a film to tion of the object in question. Thus, ing an interpretation of article 119 light of the Equal treatment direc- prohibit copies of that film from the ECJ held that the exclusive right of the treaty and certain provisions tive (76/207/EEC) UK legislation being offered for rental in a to authorise or prohibit the rental of of the Equal treatment directive ought to be interpreted as prohibit- Member State even where offering a film is not exhausted when it is (76/207/EEC). UK law requires a two- ing not only retaliatory measures those copies for rental has been first exercised in the EC Member year period of employment before during the employment relationship authorised in another Member States. G

DECEMBER 1998 LAW SOCIETY GAZETTE 41 BRIEFING

tral co-ordinating role within the effective consultation with human forces a realisation that Europe be ignored. Commission. Secondly, the rights non-governmental organisa- can be an even greater and more On the internal side of the Council should establish a spe- tions (NGOs) should be developed effective force for good both inter- equation, the result will be to add cialist Human Rights Office to by all EU institutions. nally and on the wider world stage a human face to the cold and assist in the work of the new High The agenda ends with a general provided it adopts a coherent impersonal dynamics of the inter- Representatives for the Common appeal to the Council to adopt a approach to human rights. Given nal market and the European insti- Foreign and Security Policy. solemn statement in December sufficient political will, this tutions that regulate this market. Thirdly, a European Human confirming the Union’s commit- should not be too difficult to In its relations with third coun- Rights Monitoring Agency should ments to a human rights policy achieve. There will always be tries, the result will be a harness- be established with a general based on the principles and objec- practical reservations concerning ing of the undoubted power of the information-gathering function in tives set out above. It asks specifi- legal competence. This is not sur- Union to the principles which relation to all human rights in the cally that a Commissioner be set prising since the Union has gave rise to it and which should field of application of EU law. aside for human rights responsibil- always evolved through a haphaz- henceforth animate it. This could prove particularly use- ities and that a feasibility study be ard process of incremental expan- No more fitting tribute can be ful to the two new Commissions undertaken as to the establishment sions in competence. found on the European stage to on Human Rights to be set up on of a European monitoring centre. A frank recognition of the the visionaries who first penned either side of the Irish border It also asks that the details of the Union’s human rights responsibil- the Universal Declaration 50 under the terms of the Good agenda be studied in detail with a ities and powers is long overdue. years ago. G Friday agreement. Fourthly, the view to bringing forward practical As a matter of law, it is inevitable, Union should accede to the proposals in light of the recom- given the new human rights provi- Dr Gerard Quinn is Director of European convention on human mendations contained therein. sions in the Treaty of Amsterdam. Research at the Law Reform rights. Fifthly, the human rights More importantly, as a matter of Commission. He acted (in his per- aspect of the Commission’s devel- Europe as a force morality it is inevitable since the sonal capacity) as rapporteur to opment co-operation programme for good Union has evolved to the point the Comité des Sages on the rights should be expanded. Sixthly, more The publication of the agenda that the human dimension cannot of people with disabilities.

European law healthcheck he EU and International Affairs President Patrick O’Connor. He ● Milk quota regulations, Owen ● Recent developments in EC TCommittee recently invited the welcomed the concept of the con- Binchy (James Binchy & Son) consumer law, Ken Casey profession to have the health of ference and pointed out the very ● Competition law develop- (William Fry) their European law knowledge low level of knowledge of this ments, Denis Cagney (Mathe- ● Recent developments in EC checked. 94 solicitors, apprentices subject. The Law Society is son Ormsby Prentice) employment law, Gary Byrne and other lawyers took up the chal- endeavouring to combat this ● The euro: legal aspects, Mark (BCM Hanby Wallace). lenge and attended a seminar where through programmes such as the Ryan (Whitney Moore & they became aware of a wide range Diploma in applied European law Keller) Copies of these papers can be pur- of EU law developments in differ- and seminars such as this one. ● Free movement of persons: chased from TP Kennedy in the ent practice areas. Many afterwards The seminar was run in a multi- recent developments, John Law Society. This was the second commented that they were almost ple-choice format with two ses- Handoll (William Fry) annual ‘healthcheck’. The third is frightened by how quickly sions being conducted simultane- ● Intellectual property update, being planned for September European law changes and the ously, to allow attendees opt for Wendy Hederman (Mason 1999. The committee would wel- direct implications of various pro- the lecture of their preference. Hayes & Curran) come any suggestions about posals on day-to-day practice. The following papers were given: ● Developments in cross-border future topics to be covered. Any The one-day seminar was ● Money laundering and solici- litigation, Roderick Bourke suggestions should be given to TP opened by the Law Society tors, John Fish (Arthur Cox) (McCann FitzGerald) Kennedy (tel: 01 6724802). G

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Rights of pregnant workers affirmed n Margaret Boyle and Ors v nant workers. The industrial tri- period of maternity leave. It held contrary to EC law to limit the IEqual Opportunities Commis- bunal stayed proceedings and that the right to the minimum accrual of annual leave to the sion (Case 411/96), judgment of referred a number of questions to period of 14 weeks provided for period of 14 weeks’ maternity 27 October 1998, the ECJ give its the ECJ. by the directive can be waived by leave. However, it is contrary to first interpretation of the The ECJ considered the claus- workers (with the exception of EC law to limit, in the context of Directive on improvements in the es concerned in turn. A clause two weeks’ compulsory maternity an occupational scheme wholly safety and health at work of preg- which made the application of a leave). However, if a woman financed by the employer, the nant workers. more favourable maternity becomes ill during the period of accrual of pension rights during Six employees of the Equal scheme than the statutory scheme statutory maternity leave and the 14 weeks’ leave to the period Opportunities Commission in the conditional on the pregnant places herself under the more during which the woman receives United Kingdom applied to an woman’s returning to work after favourable sick leave arrange- pay. industrial tribunal in Manchester the birth of the child, failing ments and the sick leave ends The ECJ finally held that for a declaration that certain which she was required to repay before the expiry of the period of although an employment contract clauses of their employment con- the difference between the con- maternity leave, the period of sick may provide for a period of sup- tracts were void. They argued that tractual maternity pay and the leave does not affect the duration plementary unpaid maternity the clauses in question discrimi- statutory payments in respect of of the maternity leave, which con- leave, it cannot, without infring- nated against female workers and the leave, was held not to be dis- tinues until the end of the period ing EC law, limit the period dur- were contrary to EC law on equal criminatory on grounds of sex. of 14 weeks. ing which pension rights accrue pay and equal treatment for preg- The court then examined the The court held that it is not to the period of paid leave. G Conferences and seminars Academy of European Law Topic: Annual congress 1999 Law Society of Scotland Topic: Litigation in Luxembourg Contact: (Tel: 0049 651 937370) Date: 22-27 August 1999 Contact: (Tel: 0044 141 5531930) Date: 26 April 1999 Venue: Brussels, Belgium Venue: London, England Topic: Biotechnology in the Single Topic: 50th anniversary conference Market British Institute of International Date: 8-10 July 1999 Topic: The new merger rules one Date: 22 January 1999 and Comparative Law year on and other developments Venue: Edinburgh, Scotland Contact: Valerie Echard (tel: 0044 Solicitors’ European Group Date: 18 May 1999 171 3232016) Contact: (Tel: 0044 1905 724734) Venue: London, England AIJA (International Association of Young Lawyers) Topic: Current problems in Topic: Vertical restraints and other Topic: Public procurement Contact: Gerard Coll (tel: 01 international arbitration competition reform projects policy in the Community 6761924) Date: 19 January 1999 Date: 13 January 1999 Date: 16 June 1999 Venue: London, England Venue: London, England Venue: London, England Topic: The position of employees with an insolvent Topic: Legal problems in the regula- Topic: Future of takeover regulation Topic: Broadcasting, pay-per-view employer tion of vertical restraints in the UK and the European view and sports competition law Date: 28-30 January 1999 Date: 12 February 1999 Date: 8 February 1999 Date: 6 July 1999 Venue: Amsterdam, Holland Venue: London, England Venue: London, England Venue: London, England

ENDURING POWER OF ATTORNEY PRESCRIBED FORM As per SI no 196 and 287 of 1996. Available in Word 2, 6 and 7, and WordPerfect 6.1. Reproduced with the permission of the Controller, Government Stationery Office. Price per disk (incl p&p): £5 + 1.05 (VAT): £6.05 PRECEDENT FAMILY LAW DECLARATIONS New edition. Available in Word 6 and WordPerfect 5.1. Price per disk (incl p&p): £5 + 1.05 (VAT): £6.05 ALL NOW SECTION 68 –PRECEDENT LETTERS Available in Word 6 and WordPerfect 5.1. Price per disk (incl p&p): £5 + 1.05 (VAT): £6.05 AVAILABLE on DISK ORDER FORM Please supply disk(s)(disk suitable for Word 2, 6 and 7, and WordPerfect 6.1) for Enduring Power of Attorney Prescribed Form Please supply disk(s) (disk suitable for Word 6 or WordPerfect 5.1) for Precedent Family Law Declarations Please supply disk(s) (disk suitable for Word 6 or WordPerfect 5.1) for Section 68 Letters

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44 LAW SOCIETY GAZETTE DECEMBER 1998 PEOPLE AND PLACES New officer team at Law Society

Anthony Ensor Gerard Griffin Senior Vice-President, Anthony Junior Vice-President Gerard Ensor, practises in Ensor O’Connor Griffin of Kelly & Griffin in on Court Street, Enniscorthy, Co Terenure, Dublin, qualified in Wexford, with his wife Beatrice. Michaelmas 1978 and was nomi- He qualified in Michaelmas 1974 nated to the Law Society Council and was first elected to the Law four years later by the Dublin Society Council in 1982. Solicitors’ Bar Association. Ensor played international He has served on all the rugby and was capped 22 times for Society’s committees and chaired Ireland. He served as chairman of a the Compensation Fund, number of key committees. His Litigation, Registrar’s, and Costs brother David is a partner in committees. As Chair of the Eugene F Collins and his brother Conference Committee, he helped Rod is a partner in Matheson organise annual conferences in Ormsby Prentice. His youngest Berlin, Barcelona, and Florence, The president and his men: Law Society President Patrick O’Connor brother, Simon, is a partner in and will lead the charge to (centre) pictured with Senior Vice-President, Anthony Ensor (right), and Sherry Fitzgerald auctioneers. Ashford Castle, Mayo, next May. Junior Vice-President, Gerard Griffin

Giving children a voice: independent representation of children

At the recent Continuing Legal Education seminar on discovery and privilege were (left to right) Mr Justice Peter Kelly, CLE Co-ordinator Barbara Joyce, Petria McDonnell, partner at solicitors McCann FitzGerald, newly-appointed CLE Executive Sarah O’Reilly, and the then President of the Law Society Pictured at the recent Giving children a voice seminar were (from left): Laurence K Shields solicitor Barbara Hussey, Dr James Gerard Byrne, Mrs Justice Catherine McGuinness, Eugene Davy, then Chairman of the Family Law and Civil Legal Aid Committee, and UK solicitor Margaret Bennett

very lively, informative and Margaret Bennett (Children, par- Aworthwhile seminar was ents and the State); Dr James hosted by the Family Law and Gerard Byrne (The role of the Civil Legal Aid Committee of the expert witness); and solicitor Law Society in Blackhall Place on Barbara Hussey (The role of the 10 October, the aim of which was solicitor both in the context of to bring together the various pro- custody disputes and disputes fessionals who work for and with involving children, parents and children in the legal system. the State). The attendance num- The breadth and quality of the bered social workers, probation participants in the seminar indi- workers, health care officials, cated the huge interest there is in doctors, mediators, solicitors and the subject and the perceived barristers and, coupled with the need for all professionals to work excellence of the papers, was the together in the best interests of lively, stimulating and challeng- Gerard Coakley, Managing Director of law publishers Butterworths Ireland the children. ing question-and-answer sessions (third from left) presenting the Butterworths Perpetual Trophy to Donal The speakers themselves gave at the end of each session. Horgan, Cork Stamps Office, following his team’s win over the Southern voice to this need, with papers The committee hopes that this Law Association in their annual game at Cork Golf Club. Included in the seminar is a first step in a forum picture are (from left) Jim Duggan, Cork Stamps Office, Simon Murphy, being given by Mrs Justice Southern Law Association, SLA President Fionnuala Breen-Walsh, and Catherine McGuinness (Children for continued co-operation David Donegan of the SLA and the law); UK solicitor between the various professions.

DECEMBER 1998 LAW SOCIETY GAZETTE 45 PEOPLE AND PLACES

Launch of CPS booklet

At the launch of the CPS booklet at Blackhall Place were (from left): Michael Carroll, Group Solicitor with CIE and then Chairman of the The Law Society’s Practice Management Committee has produced a Corporate and Public Services Committee, then Law Society President series of practice management audio tapes which are due to be distributed Laurence K Shields, and Edward J Hughes, Law Agent at Dun to every firm in the country shortly. Pictured at the launch of the tapes were Laoghaire-Rathdown CC the then Law Society President Laurence K Shields (centre) and then chairman of the Practice Management Committee Risteard Pierse (far left), n information booklet for ships, to the corporate and public with Mary Considine, Carol Bolger and Paddy Delaney of Bank of Ireland, solicitors starting employ- services world is a move to very which sponsored the project A ment in the corporate and public different cultures. This is an services sectors was recently important booklet containing One STEP beyond launched by Laurence K Shields, practical information for solici- then President of the Law Society. tors and will be a continuing ref- The move from private prac- erence for them in the course of tice, where most solicitors will their work. Copies are available have served their apprentice- from the Law Society.

The Society of Trust and Estate Practitioners (STEP) was officially launched in Dublin in early October. STEP is a new international body covering lawyers, accountants, corporate trust professionals, bankers, insurers and anyone else involved in trusts, estates, executorship administration and related taxes. Pictured at the launch of STEP were (from left) solicitors John O’Connor, Edmund Fry, Cedric Christie, Speaking at the recent CLE seminar on the administration of estates were Rachel Curran, Gerry Sheedy and Richard Grogan Patricia T Rickard-Clarke, partner at solicitors McCann FitzGerald, and Paula Fallon, partner at solicitors Maxwell Weldon & Darley Out of Africa A very distinguished group of visitors to Blackhall Place recently were judges taking part in the second African workshop on constitutionalism at Trinity College Law School. Back row (from left): Chief Justice Ngulube, Zambia; Chief Justice Sapire, Swaziland; Chief Justice Banda, Malawi; Ken Murphy, Director General, Law Society; Professor William Binchy, Trinity College; Laurence K Shields, then President of the Law Society; Judge Oliver, South Africa; Judge Ampiah, Ghana; Professor Robert Martin, University of Western Ontario; Judge Maqutu, Lesotho. Front row (from left): Judge Obayan, The Gambia; Chief Justice Wambuzi, Uganda; Chief Justice Uwais, Nigeria; Chief Justice Gubbay, Zimbabwe; Judge Chipota, Tanzania; Judge Tunoi, Kenya; Chief Justice Pillay, Mauritius; Judge Onu, Nigeria; Chief Justice Nganunu, Botswana; Chief Justice Mangaze, Mozambique.

DECEMBER 1998 LAW SOCIETY GAZETTE 47 LawTech exhibition 1998

Visitors and exhibitors get together at LawTech

he Law Society’s annual TLawTech exhibition was held in Blackhall Place last month, providing a unique opportunity for the legal profession to view the very latest technology available for the legal practice. The exhibition was organised under the auspices of the Society’s Technology Committee and fea- tured even more exhibitors than last year. Practice management systems, accounts packages, voice recognition software, document storage and retrieval systems – you name it, they were all on display at the exhibition, offering solicitors a taste of new techniques and ideas that could help them increase efficiency in their offices and improve the services Doing business at the LawTech exhibition they provide to their clients.

Aidan O’Neill and Aveen Murphy of practice management software Kevin MacDonald of Avenue Legal Systems with solicitor Michael Hegarty of suppliers Ivutech get that sinking feeling Dublin firm Smyth O’Brien & Hegarty and Tony Byrne of Star Computers

48 LAW SOCIETY GAZETTE DECEMBER 1998 PEOPLE AND PLACES

Legal and General’s David McCorriston, Michael Gilmartin and Gerry Wogan man their stand

Doreen Levins and Donal Quinn of PC consultancy Milestones Systems

Conor Molloy of Corel demonstrates voice recognition software to Tipperary solicitors John Carroll and Mary Maher of Clonmel firm JG Skinner & Co

Dennis Farrell of Dennis Farrell and Associates with solicitor Eamonn Keenan of Dublin firm Sexton Keenan & Co

Galway solicitor Peter Crowley of CP Crowley & Co chats LawLink’s Managing Director Stewart Thompson, with Kathy Lee (seated), Lisa Buckley to John Clifford of Safeguard Business Systems and Sarah Dallaghan all of LawLink

DECEMBER 1998 LAW SOCIETY GAZETTE 49 BOOKS Cathal O’Neill’s Dublin: special offer for readers Books JUST PUBLISHED athal O’Neill, former Head of Mareva injunctions and related Irish social services (third ed) Emmins on sentencing CUCD’s School of Architec- interlocutory orders John Curry (third ed) ture, has produced a collection of Thomas B Courtney IPA (1998), Martin Wasik Butterworths (Ireland) Ltd (1998), Vergemount Hall, Clonskeagh, Blackstone Press (1998), watercolour paintings of his 26 Upper Ormond Quay, Dublin 6 Aldine Place, favourite Dublin buildings, con- Dublin 7 ISBN: 1 902448 01 4. London W12 8AA, England ISBN: 1 85475 1077. Price: £9.50 p/b ISBN: 1-85431-681-8. temporary and historic, private Price: £75 Price: stg£29.95 and public. The High Court: a user’s guide Gangland Kieron Wood Blackstone’s indexes: Paul Williams Four Courts Press (1998), case precedents O’Brien Press (1998), Fumbally Lane, Dublin 8 1900-1997 20 Victoria Road, Dublin 6 ISBN: 1-85182-307-7. (CD-ROM) ISBN: 0-86278-576-6. Price: £25 Maxwell Barrett and Price: £7.99 p/b Law Reform Commission Jonathan Rush Blackstone Press (1998), Banking law in the Republic consultation paper on aggravated, exemplary and Aldine Place, of Ireland London W12 8AA, England John Breslin restitutionary damages Law Reform Commission (1998), ISBN: 1-85431-836-5. Gill & Macmillan (1998), Price: stg£320 plus VAT Goldenbridge, Inchicore, Ardilaun Centre, 111 St Stephen’s Green, Dublin 2 Dublin 8 Blackstone’s sentencing ISBN: 0-7171-2373-1. ISSN: 1393-3140. Each painting is accompanied Price £15 index: case precedents Price: £150 1900-1997 by a personal commentary from Law Reform Commission Maxwell Barrett A casebook on equity and Blackstone Press (1998), the author. Unfortunately, our own trusts report on privacy Law Reform Commission (1998), Aldine Place, Prof JCW Wylie Blackhall Place does not make it Ardilaun Centre, London W12 8AA, England Butterworths (Ireland) Ltd (1998), 111 St Stephen’s Green, Dublin 2 ISBN: 1-85431-850-0. into the pages of O’Neill’s beauti- 26 Upper Ormond Quay, ISSN: 1393-3132. Price: stg£49.95 fully produced book, but the Four Dublin 7 Price: £20 Courts do adorn the front cover. ISBN: 1 85475 8802. Price: £50 Blackstone’s law of Enforcement of intellectual evidence index: Perhaps to make up for this omis- property in European and Journal of international case precedents sion, the publishers Marino Books international law 1900-1997 banking law Christopher Wadlow are offering Cathal O’Neill’s Ed by Barnabas Reynolds Maxwell Barrett Sweet & Maxwell (1998), Blackstone Press (1998), Dublin to readers of the Gazette at Sweet & Maxwell (1998), Cheriton House, North Way, Cheriton House, North Way, Aldine Place, a 10% discount on the usual price Andover, Hampshire SP10 5BE, London W12 8AA, England Andover, England of £25 (please quote Gazette offer Hampshire SP10 5BE, ISBN: 1-85431-851-9. ISBN: 0 421 50160 X. Price: stg£49.95 England Price: stg£120 when ordering). For more infor- ISBN: 0-421-65040-0. mation on this special offer, con- Price: stg£110 Commercial secrecy: Blackstone’s criminal law index: case precedents tact Rosemary Dawson at Marino law and practice Handbook on arbitration John Hull 1900-1997 Books on 01 284 2036. in Ireland Sweet & Maxwell (1998), Maxwell Barrett Blackstone Press (1998), Cathal O’Neill’s Dublin, Michael Carrigan Cheriton House, North Way, Law Society of Ireland (1998), Andover, Hampshire SP10 5BE, Aldine Place, Marino Books (1998), 16 Hume Blackhall Place, England London W12 8AA, England Street, Dublin 2. ISBN: 186023 Dublin 7 ISBN: 0 421 580402. ISBN: 1-85431-737-7. Price: £12.50 plus 70p p&p Price: stg£85 Price: stg£49.95 064 4. G

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DECEMBER 1998 LAW SOCIETY GAZETTE 51 THE CREDIT CARD YOU’VE BEEN WAITING FOR… The Law Society has arranged an attractive credit card for members and LAW SOCIETY now you can take full advantage of a CREDIT CARD comprehensive range of benefits MORE FREEDOM... DESIGNED ● Credit limit up to £15,000 for Standard Cards and £25,000 EXCLUSIVELY FOR for Gold Cards SOLICITORS ● Free Credit Card Cheque Book MORE PRIVILEGES... ● Up to £100,000 free Travel Accident Insurance For a Priority Request form or to apply online call FREEPHONE quoting ref: 08GG ● Free Purchase Protection Insurance 1800 409 510 ● 24 Hour Freephone Customer Service from anywhere in the world Please send me full details and a Priority Request Form for the Law Society Credit Card ● Free lost card registration ● No liability for lost or stolen cards Name Address MORE FOR YOUR MONEY... Home Telephone Number ● No annual fee ● Low APR for purchases – only 19.9% APR (variable) Please note, NO STAMP REQUIRED. Send this coupon to: Law Society of Ireland Visa Card, Priority ● 9.9% APR for balance transfers fixed for six months Applications, MBNA Ireland, FREEPOST, PO Box 5898, Dublin 2. (Ref: 08GH). The Law Society of Ireland Visa Card is issued by MBNA International Bank Limited, incorporated in England and Wales under ORE REASONS TO SAY YES number 2783251. Registered office: Stansfield House, Chester Business Park, Wrexham Road, Chester CH4 9QQ. Registered M ... as a branch in Ireland under number E3873 as 46 St. Stephen’s Green, Dublin 2. Credit is available subject to status, only to All approved accounts ROI residents aged 18 or over. Written quotations available on request. WEBWATCH Webwatch The Net delivers

ecently the Net recovered its Internet to murder (www.nando- Rpride. A mass audience had felt times.com). Net users alerted let down in the Louise Woodward police officers who found at least case after it had been promised a one e-mail containing a confes- copy of Judge Hiller Zobel’s judg- sion to the murder of his daughter ment on the World Wide Web. In on Froistad’s computer. It must the event, the web site housing the only be a matter of time before a judgment crashed under the weight crime is detected thanks to one of of demand for copies. the many webcams (camcorders The experience with the Starr linked to a web site) which are sit- Report (http//starreport.excite. uated in a variety of places com/toc.html) was more positive. throughout the globe. Once published on the Web, the report was soon duplicated and Dublin’s Fair City made available on many mirror Ireland has a few views of its web sites. News organisations own to offer. One is of such as CNN were quick to O’Connell Bridge. Another is include a copy of the report on situated on Lower Gardiner St in their site, doubling the visitor ‘hit unique code and a digital certifi- now that the Internet really is a Dublin. Meanwhile, in the North, rate’ almost instantly. Within one cate. To sign the document, each great Swiss Army type gadget traffic flows can be checked at a hour of publication, thousands of leader inserted his smart card into with lots of tools for a variety of number of locations in Belfast by people throughout the world knew a reader while entering a unique tasks. For example, visitors to going to the urban traffic control what Kenneth Starr had to say PIN code. This process generated www.tpc.int will see that it is now web site. about US President Bill Clinton’s a signature which was then possible to send a fax from the All the above webcams can be activities. The Net had proved that attached to the communiqué doc- World Wide Web and at no cost accessed through Ireland’s legal it could deliver to a world audi- ument. The final result can be (save for the cost of a local call to directory at www.legal-island. ence, almost immediately and at viewed at www.baltimoreinc. connect call to the Net). This facil- demon.co.uk/. The directory little cost. com/clintonvisit98.html. ity is useful not only to those includes links to numerous web Back in the world of publish- sites likely to be of use to lawyers Clinton’s bad news ing, Butterworths in London researching on the Web. It also There was more bad news for recently launched Legislation contains links to law firms in President Clinton, however. US direct which includes the full Ireland (north and south) which District Court Judge Susan Webber (amended) text of Acts and statu- now have a Web presence. Law Wright recently released papers tory instruments of general appli- firms may have their site listed involving Paula Jones’ dismissed cation in England and Wales free of charge by sending details harassment lawsuit. The docu- (around 17,000). Remarkably, all including a brief description of ments are available at www.are. texts are cross-referenced to each the firm to habeas@legal- uscourts/gov/unsealed/jones_vs_ other by hypertext. island.demon.co.uk. clinton.htm. Butterworths has also requiring a back-up fax facility Finally, the Net also delivered But it seems a little unfair if, in launched the Personal injury ser- but also offices which regularly another first this summer which the IT world at least, President vice. The service includes the All fax long distance and overseas. probably had nothing to do with Clinton is going to be remembered England Law Reports, the quan- The cost saving in the latter case Bill Clinton. On 16 June at an because he was the first interna- tum cases and an expert witness can be substantial. The TPC facil- Orlando hospital, the first live tional figure to have his dirty database, a calculation facility for ity also provides an e-mail-to-fax birth took place on the Web washing displayed for all to see on damages, and a weekly journal. service. This allows the user to (www.ahn.com/). It’s not clear a web site. He made a more Costs start from £295 plus VAT a send messages in e-mails which what prompted the mother to respectable contribution to IT his- year for a single user. A free are converted on the Net and want her husband, the midwife tory recently in Dublin when he week’s trial may be obtained by eventually delivered through a and a good number of anonymous signed a joint US-Irish commu- e-mailing Butterworths at fax machine. viewers to be at the birth, but niqué on e-commerce without lift- [email protected]. Meanwhile, bizarre happen- Baby .com is said to be doing ing a pen. This was the first time While many view the Net as a ings connected with the Web confine. G that an international agreement great research tool, its potential tinue to surprise even the most had been signed using digital sig- for the admin department of law imaginative of Net fanatics. In the Mark Reid is a freelance journal- natures. Before the signing, both firms should not be underestimat- United States recently, a court ist with a particular interest in the Clinton and the Taoiseach were ed. The more astute administra- sentenced Larry Froistad Jr to life Web. He can be contacted on issued with cards containing a tive officer will have realised by in prison after he confessed on the [email protected].

DECEMBER 1998 LAW SOCIETY GAZETTE 53 PROFESSIONAL INFORMATION

Regd owner: Matthew F Lynch of 34 Regd owner: Kathleen Rassmussen; Folio: 14; Folio: 13863; Lands: Monage; Co LOST LAND Errigal Road, Drimnagh, Dublin 12; 3603F; Lands: Townland of Kilcolman; Monaghan CERTIFICATES Folio: 94265F; Lands: 34 Errigal Road Barony of Pubblebrien, Co Limerick Regd owner: Bridget Lougman; Folio: Registration of Title Act, 1964 situate in the parish and district of Regd owner: John J Keating; Folio: 12232; 1461F; Townland: Oldglass, Barony of Crumlin; Co Dublin Lands: Townland of Faranefranklin, Clarmallagh; Area: 0a 3r 25p; Co An application has been received from the Regd owner: Frank Dunne and Olive Barony of Owneybeg; Area: 15 acres, Queens registered owners mentioned in the sched- Dunne, both of site 7 Grove Court, Naas 30 perches; Co Limerick Regd owner: Patrick McGinn, Hilltown, ule hereto for the issue of a land certificate Road, Dublin 12; Folio: 94658F; Lands: Regd owner: John Guerin; Folio: 13387; Castlepollard, Co Westmeath; Folio: as stated to have been lost or inadvertently Property known as 7 Grove Court situate Lands: Townland of Ballyomin, Barony 2053; Area: 45.169 acres; Lands: destroyed. A new certificate will be issued in the parish and district of Drimnagh; of Connello Lower; Area: 38 acres, 2 Hilltown; Co Westmeath unless notification is received in the reg- Co Dublin rood, 2 perches; Co Limerick Regd owner: William Hughes, Bonaribba, istry within 28 days from the date of publi- Regd owner: Carmel Duffy of 100 Kildonan Regd owner: Patrick O’Neill; Folio: Athlone, Co Roscommon; Folio: 2683; cation of this notice that the original cer- Avenue, Finglas West, Dublin 11; Folio: 2136F; Lands: Townland of Jockey Area: (a) Toberclare 2 acres 2 roods, (b) tificate is in existence and in the custody of 41520F; Lands: Property known as 12 Hall, Barony of Pubblebrien; Co One thirty-first part of Toberclare, 4 some person other than the registered O’Curry Road situate in the parish of St Limerick acres, 3 roods and 20 perches; (c) owner. Any such notification should state Catherine and District of South Central; Regd owner: Kevin and Pauline Bright, Cartronkeel, 25 acres, 1 rood and 15 the grounds on which the certificate is Co Dublin Knappogue, Clondra, Co Longford also perches; Co Westmeath being held. Regd owner: Patrick Waters (deceased), Orchardstown, Washington Lane, Regd owner: James Cullen, Ballyconnigar (Register of Titles), Central Office, Land Ballina, Ballglunin, Co Galway; Folio: Rathfarnham, Dublin 14; Folio: 2539F; Lower, Blackwater; Folio: 10291; Registry, Chancery Street, Dublin 29372; Lands: Townland: of Ballina; Lands: Knappoge; Area: 0.506 acres; Lands: Ballynaglogh; Area: 7.063; Co (Published 4 December 1998) Area: (1) 19a 3r 32p, (2) 13a 2r 27p, (3) Co Longford Wexford 9a 2r 32p, (4) 2a 1r 20p; Barony of Clare; Regd owner: Garvey Holdings, Regd owner: Clive RV Castle; Folio: Regd owner: William Considine Co Galway Moneymore, Drogheda, Co Louth; 1974L; Lands: Kilcoole, Barony of (deceased), Danganella, Cooraclare, Co Regd owner: Denis Kearney; Folio: 22267; Folio: 6700F; Lands: Marshes Lower, Newcastle; Co Wicklow Clare; Folio: 17835; Lands: Townland of Lands: Townland of Addergown, Dysert Dundalk, Co Louth Danganella East, Barony of Moyarta; Marches, Barony of Clanmaurice; Co Regd owner: Alice Dorothy Wright, Area: 0a 2r 36p; Co Clare Kerry ‘Beverley’, Rathbrist, Dundalk; Folio: WILLS Regd owner: Eugene O’Shea and Patricia Regd owner: Tom Blennerhassett, 11721; Lands: Rathbrist; Area: 0.425 O’Shea, Mount Catherine, Clonlara, Co deceased; Folio: 663; Lands: Townland acres; Co Louth Clare; Folio: 14041F; Lands: Townland of Glanageenty, Barony of Regd owner: Alan and Alice Moore, 28 St Bennett, Patrick J, deceased, late of 520 of Mount Catherine; Area: 0.519 acres; Trughanacmy; Area: 127 acres 1 rood Nicholas Village, Mornington, Co Newtown, Maynooth, Co Kildare. Would Co Clare and 14 perches; Co Kerry Meath also known as 28 St Nicholas any person having knowledge of the origi- Regd owner: Cork County Council; Folio: Regd owner: Brendan Boland; Folio: Village, Golf Links Road, Bettystown, nal will/codicil of the above named 13077; Lands: Property in the Kanturk 3038R; Lands: Rathbone, Barony of Salt Co Meath; Folio: 3626F; Lands: deceased, who died on 23 August 1997, Rural District, County of Cork (the South; Co Kildare Mornington; Co Meath please contact Dixon Quinlan, Solicitors, 8 Labourers Order 1907) Co Cork Regd owner: Martin Kiernan; Folio: 3132; Regd owner: Sarah Jones, 19 Regd owner: Pat and Helen Buckley; Folio: Lands: Longfield, Barony of North Salt; Broadmeadow Green, Ashbourne, Co LOST A WILL? 22729F; Lands: Property situate in the Co Kildare Meath; Folio: 1430L; Lands: Townland of Coolroe, Barony of Regd owner: William Heffernan, Killegland; Co Meath TRY THE Muskerry East; Co Cork Caherleske, Callan, Co Kilkenny and Regd owner: Denis Corish, 7 Dollymount REGISTRY OF WILLS Regd owner: Frank Devine, Milltown, Caherleske, Dunnamaggin, Co Park, Clontarf, Dublin 3; Folio: 13440; SERVICE Convoy, Co Donegal; Folio: 40607; Kilkenny; Folio: 37R and 2251; Lands: Lands: Betaghstown; Co Meath Lands: Convoy Townparks; Co Donegal Loughbeg, Loughsollish, and Caherlesk; Regd owner: James Sharpe, Aghareagh, Regd owner: James and Bridget McNeill, Area: 25a 3r 11p of lands no 1 of folio Drum, Co Monaghan; Folio: 12119; 47 Glenkeen, Church Road, 37R of Loughbeg, 80a 0r 11p of lands no Lands: Aghareagh, Tonytallagh; Area: Tuckey’s House, Randalstown, Co Antrim; Folio: 2 of folio 37R of Loughsollish, 95a 1r 12 acres 3 roods 28 perches of lands no 8, Tuckey Street, 34389F; Lands: Magherawarden; Area: 17p of lands of folio 2251 of Caherlesk; 1 Aghareagh; 1 acre 1 roods 15 perches CORK. 0.200 hectares; Co Donegal Co Kilkenny of lands no 2 Tonytallagh; Co Tel: +353 21 279225 Regd owner: Helena Marie Runciman; Regd owner: Michael Hutchinson; Folio: Monaghan Fax: +353 21 279226 Folio: 8774F; Lands: Umrycan; Area: 1035; Lands: Tawlerton, Barony of Regd owner: Eamonn Donnelly, 28 Dx No: 2534 Cork Wst 0.500 acres; Co Donegal Slievemargy; Co Laois Glenwood Park, Clonskeagh, Dublin

FORENSIC ACCOUNTING AND LITIGATION SUPPORT SERVICES

FORENSIC ACCOUNTING BRINGS A STRUCTURED APPROACH TO PREPARING AND REVIEWING FINANCIAL EVIDENCE. Applications include: * Personal injury and loss of earnings * Matrimonial proceedings * Breach of contract and commercial disputes * Negligence and professional malpractice * Insurance Claims * Fraud and white collar crime OUR DIRECTORS HAVE EXTENSIVE EXPERIENCE IN PREPARING REPORTS AND GIVING EVIDENCE IN COURT AS EXPERT WITNESSES. James Hyland and Company Forensic Accountants 26/28 South Terrace, Cork Carmichael House, Tel: (021) 319 200 Fax: (021) 319 300 60 Lower Baggot Street, Dublin 2. Tel: (01) 475 4640 Fax: (01) 475 4643 email: [email protected]

54 LAW SOCIETY GAZETTE DECEMBER 1998 PROFESSIONAL INFORMATION

Parnell Square, Dublin 1, tel: 8788085, al injury matters. Please reply in writing to fax: 8787626 Val W Stone & Company, Solicitors, 14 North Main Street, Wexford, our reference: Moore, Mary, deceased, late of 153 VS. Reply Box 102 Griffith Road, Finglas, Dublin 11 and The ADVERTISING RATES Croft Nursing Home, 2 Goldenbridge Urgent – solicitor/academic (with word- Advertising rates in the Professional information section are as follows: Walk, Inchicore, Dublin 8. Could any per- processing skills), previously in general son having knowledge of a will executed practice and now lecturing on law, and • Lost land certificates – £30 plus 21% VAT by the above named deceased, who died on very anxious to keep up-to-date with cur- • Wills – £50 plus 21% VAT Monday 19 October 1998, please contact rent general practice trends, seeks post as • Lost title deeds – £50 plus 21% VAT O’Reilly Doherty & Company, Solicitors, assistant to a top general practitioner with • Employment miscellaneous – £6 per printed 6 Main Street, Finglas, Dublin 11, tel: computer literacy during the two months of line plus 21% VAT (approx 4/5 words a line) 8344255, fax: 8344482 July and August 1999. Reply Box No 103 All advertisements must be paid for prior to publication. Deadline for Pearce, Daphne, deceased, late of 26 Assistant solicitor required for Midlands January/February Gazette: 22 January 1999. For further information, contact Wainsfort Grove, Terenure, Dublin 6W. office from January 1999. Reply Box No Catherine Kearney or Andrea MacDermott on 01 672 4800 Would any person having knowledge of an 104 original will of the above named deceased, who died on 13 April 1998, please contact Solicitor required for long-established London solicitors will advise on UK mat- Fee apportionment. ML White, Solicitors, Orpen Franks, Solicitors, 28/30 Burlington Galway City practice. Five years’ post- ters and undertake agency work. All areas. 43-45 Monaghan Street, Newry, County Road, Dublin 4, tel: 6689622, fax: qualification experience in general con- Corporate/private clients. Ellis & Fairbairn, Down, tel: 080 1693 68144, fax: 080 1693 6761077 veyancing desirable. Excellent terms and 26 Old Brompton Road, South Kensington, 60966 opportunities for suitable candidate. London SW7 3DL, tel: 0044 171 589 0141, Modern office. Reply to Box No 105 fax: 0044 171 225 3935 For sale – two intoxicating liquor EMPLOYMENT licences in rural areas. Replies to Sweeney Agents – England and Wales. We are McGann, Solicitors, 67 O’Connell Street, MISCELLANEOUS willing to act as agents for Irish solicitors in Limerick, tel: 061 317533, fax: 061 Solicitor required for practice in country civil and criminal litigation. Contact: 319496 town mid-Munster location, with at least Olliers, Solicitors, Alderman Downward one year’s post-qualification experience in Northern Ireland agents for all con- House, 2/3 The Birtles, Civic Centre, Statutes and reports. We seek to purchase general practice, particularly conveyanc- tentious and non-contentious matters. Wythenshawe, Manchester M22 5RF, tel: second-hand sets of Irish statutes and Irish ing, probate and taxation work. Reply to Consultation in Dublin if required. Fee 0044 161 437 0527, fax: 0044 161 437 reports. English statutes and reports will Box No 100 sharing envisaged. Offices in Belfast, 3225 also be considered. Contact Box No 106 Newry and Carrickfergus. Contact Norville Solicitor with four years’ PQE in general Connolly, D&E Fisher, Solicitors, 8 Trevor Northern Ireland solicitors. Will advise For sale – seven day ordinary publican’s practice seeks fresh challenge. Reply Box Hill, Newry, tel: 080 1693 61616, fax: 080 and undertake NI-related matters. All areas licence. Replies to CE Callan & Co, No 101 1693 67712 corporate/private. Agency or full referral of Solicitors, Boyle, Co Roscommon, tel: 079 cases as preferred. Consultations in Dublin 62019, fax: 079 62869 Locum solicitor required from 4 January Personal injury claims, family law, or elsewhere if required. Fee sharing 1999 for three to four months for busy criminal law and property law in England envisaged. Donnelly Neary & Donnelly, 1 Practice for sale – sole practitioner – practice in Wexford Town. Must have min- and Wales. We have specialist depart- Downshire Road, Newry, Co Down, tel: South West area. Reply Box No 107 imum two years’ PQE in plaintiff’s person- ments in each of these areas, and offices 080 1693 64611, fax: 080 1693 67000. in London (Wood Green and Camden) Contact KJ Neary and Birmingham. One of our staff is in Ireland for one week in every month. TITLE DEEDS Northern Ireland solicitors providing an DUBLIN SOLICITORS Legal aid available to clients that qualify. efficient and comprehensive legal service Contact David Levene & Company, PRACTICE OFFERS in all contentious/non-contentious matters. Ossory and Leighlin Diocesan Board of Ashley House, 235-239 High Road, Wood AGENCY WORK Dublin-based consultations and elsewhere. Education Green, London N22 4HF, England, tel: Will any person holding or knowing the IN NORTHERN 0044 181 881 7777, fax: 0044 181 889 whereabouts of the following documents IRELAND 6395, and The McLaren Building, 35 of title relating to the Kilkenny Model Dale End, Birmingham B4 7LN, tel: 0044 School, Newpark, Kilkenny, the proper- * All legal work undertaken 121 212 0000, fax: 0044 121 233 1878 ty of the above, please contact: Frank on an agency basis ENGLISH AGENTS: * All communications to clients Lanigan Malcomson & Law, Solicitors, through instructing solicitors Agency work undertaken Court Place, Carlow, (reference * Consultations in Dublin if required OSBORNE for Irish solicitors in 1/L52517). both litigation and Contact: Séamus Connolly RECRUITMENT Moran & Ryan, Solicitors, non-contentious matters – 1. Original indenture of 4 June 1936 made Arran House, including legal aid. between the Right Reverend John 35/36 Arran Quay, Dublin 7. • PA for Senior Godfrey Day and the Right Reverend Partner c£19K! Fearon & Co, John Percy Phair of the first part, the Tel: (01) 8725622 • Sec for County of Kilkenny Vocational Fax: (01) 8725404 Building Soc Solicitors, Educational Committee of the second part and the Minister of Education of E-mail: [email protected] c£14K! Westminster House, or Bank Building, Hill Street • Banking Sec 12 The Broadway, Woking, Saorstat Eireann of the third part and the Newry, County Down. c£16K & Bens! Surrey GU21 5AU. Ossory Diocesan Board of Education of Tel: (0801693) 65311 the fourth part. Tel: 662 8686 Tel: 0044 1483 726272 Fax: (0801693) 62096 2. Original deed poll (incumbered estates E-mail: [email protected] Fax: 662 8689 Fax: 0044 1483 725807 Email: osborne@ tinet.ie court conveyance), dated 24 March 1855, grantee: James St John.

DECEMBER 1998 LAW SOCIETY GAZETTE 55